Andrew Rosa v. The City of New York and New York City Police Officers - U.S. District Court, SDNY

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK______________________________

ANDREW ROSA,

PLAINTIFF11 Civ 02942 (LBS)(TK)

vs COMPLAINT [JURY TRIAL]

THE CITY OF NEW YORK, amunicipal entity, NEW YORKCITY POLICE OFFICER VINCENTKONG, Shield # 01661, NEWYORK CITY POLICE SERGEANTCHRISTOPHER KOCH, Shield #2875, NEW YORK CITY POLICELIEUTENANT “JOE” COSTELLO,NEW YORK CITY POLICE CAPTAINSTEVEN BRAILLE, NEW YORK CITYPOLICE CHIEF BRIAN CONROY,NEW YORK CITY UNDERCOVER POLICEOFFICER 293 (previously knownas NEW YORK CITY UNDERCOVERPOLICE OFFICER 2948, andprior to that as NEW YORKCITY UNDERCOVER POLICE OFFICER4325), NEW YORK CITY POLICEOFFICERS ”JOHN DOES”, each ofthe identified and non-identifiedpersons in his/her individualand official capacities,

DEFENDANTS________________________________

I. INTRODUCTION

1. This litigation arises out of the custodial arrest of the Plaintiff on the late evening of Thursday, July 17, 2008 and the early morning of Friday, July 18, 2008 at theHot Lap Dance Club, 344 West 38th Street, New York City, New York and the preferral of criminal charges and the prosecution of the Plaintiff associated therewith.

2. The Plaintiff was detained in custody for approximately twenty seven hours until at or about 2:30

Case 1:11-cv-02942-LBS Document 1 Filed 05/02/11 of 21

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A.M. in the morning of Saturday, July 19, 2008 when the Plaintiff appeared at an arraignment in the Criminal Court of the City of New York, County of New York, and State of New York and was then released without bail and directed to return to Court for further proceedings on September 25, 2008.

3. The Plaintiff appeared in Court on September 25, 2008 where and when, on the motion of the New York County District Attorney’s Office, the Criminal Court chargeagainst the Plaintiff was dismissed and the matter sealed.

4. This is an action in which the Plaintiff seeks relief for the violation of his rights as guaranteed under the laws and Constitution of the United States.

5. The Plaintiff seeks monetary damages and such other relief, including injunctive relief and declaratory relief [if appropriate], as may be in the interest ofjustice and as may be required to assure that the Plaintiff secures full and complete relief and justice for the violation of his rights.

II. JURISDICTION

6. Jurisdiction of this Court is invoked pursuant to and under 28 U.S.C. Sections 1331 and 1343 in conjunctionwith the Civil Rights Act of 1871, 42 U.S.C. Section 1983, and the Fourth and Fourteenth Amendments to the United States Constitution.

7. The Plaintiff also invokes the jurisdiction of this Court in conjunction with the Declaratory Judgment Act, 28 U.S.C. Sections 2201, et seq., this being an action in which the Plaintiff seeks, in addition to monetary damages, whatever other relief is needed to provide full and complete justice including, if appropriate, declaratory and injunctive relief.

8. This is an action in which the Plaintiff seeks relief for the violation of his rights as guaranteed under the laws and Constitution of the United States.


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III. THE PARTIES

9. The Plaintiff is an American citizen and resident of the State of New York, the City of New York, and the County of Kings.

10. The Defendant City of New York is a municipal entity which was created under the authority of the laws and Constitution of the State of New York and which is authorized with, among other powers, the power to maintain a police department for the purpose of protecting the welfare of those who reside in the City of New York.

11. Defendants Christopher Koch, Shield # 2875,Vincent Kong, Shield # 01661, “Joe” Costello, StevenBraille, Brian Conroy, New York City Undercover PoliceOfficer 293 (previously known as New York City UndercoverPolice Officer 2948, and prior to that as New York City Undercover Police Officer 4325), and “John Does” are New York City Police Department line and command Officers and agents and employees of the City of New York.

12. Although their actions and conduct herein described were unlawful and wrongful and otherwise violative of the Plaintiff’s rights as guaranteed under the laws and Constitution of the United States, they were taken in and during the course of their duties and functions as New York City Police Department line and command Officersand as agents and employees of the City of New York and incidental to the otherwise lawful performance of their duties and functions as New York City Police Officers and agents and employees of the City of New York.

IV. ALLEGATIONS

13. This litigation arises out of the Plaintiff’scustodial arrest on Thursday night, July 17, 2008 and on Friday morning July 18, 2008 at the Hot Lap Dance Club which is located at 344 West 38th Street, New York, New York

14. The Plaintiff was employed at the Hot Lap Dance Club on a part time basis as an elevator operator. Plaintiff had been employed thereat only since around or about July 8, 2008.

15. The Plaintiff was released from custody without bail at an arraignment at or about 2:30 A.M. on July 19,


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2008 and he was directed to return to the Court on September 25, 2008 for further proceedings in connectionwith his arrest allegedly for promoting prostitution.

16. The Plaintiff appeared in Court on September 25, 2008 where and when, on the motion of the New York County District Attorney’s Office, the charges, which had been preferred against the Plaintiff, were dismissed and the matter sealed.

17. The Plaintiff, who is an American citizen and resident of the City of New York, County of Kings, State of New York, is thirty three [33] years of age.

18. The Plaintiff’s birth date is December 7, 1977.

19. The Plaintiff is married. He has been married since 2001. The Plaintiff does not have any children.

20. The Plaintiff resides with his wife on St. Marks Avenue in the Crown Heights section of Brooklyn, New York. He has resided at his present residence since approximately 2002.

21. The Plaintiff was born and raised in Brooklyn, New York.

22. The Plaintiff attended and graduated from the Lowell High School, a private academy, in Flushing, Queens, New York.

23. The Plaintiff has attended Kingsborough Community College where he is approximately one semester’s credits short of an associate’s degree.

24. The Plaintiff is presently employed, part time, byUnited Parcel Services [UPS].

25. The Plaintiff commenced his employment with UPS onapproximately November 20, 2008.

26. The Plaintiff was initially employed by UPS in a “pre-loader” position.

27. Since approximately October of 2010, the Plaintiff has been employed by UPS in the position of “operationssupervisor”.


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28. At the time of the arrest the Plaintiff was employed as a full time security police officer by the gated private community known as Seagate in the far reaches of the Coney Island area of Brooklyn, New York.

29. The Plaintiff was employed by the Seagate community Police Department in his position as a security police officer in or about October, 2006.

30. He continued in his employment as a Seagate community Police Department security police officer until July 19, 2008 or thereabouts when, after his arrest, he was suspended from his position as a Seagate community PoliceDepartment security police officer by the Seagate community.

31. Eventually the Plaintiff resigned his position on or about November 20, 2008 because, notwithstanding that on or about September 25, 2008 the charge, on which the Plaintiff was arrested on July 17, 2008 [as more fully described hereinafter] was dismissed and the records sealed, the Seagate Police Department and the Seagate community Board were refusing to allow the Plaintiff to return to work as a security police officer in the Seagate community Police Department.

32. Prior to being employed by the Seagate community Police Department as a security police officer the Plaintiff was employed in or about January 2003 by the Hunts Point Department of Public Safety as a security officer.

33. The Plaintiff worked as a Hunts Point Department of Public Safety security officer, where in or about April 2006 he was certified as peace officer with the power under New York State law to arrest individuals, until he obtained his position with the Seagate community Police Department as a security police officer [with the power, as a duly certified peace officer, to arrest individuals].

34. In order to obtain his peace officer’s certification, which allowed him to arrest individuals which he could not do as a security officer without peace officer certification, the Plaintiff took a course, whichconsisted of approximately forty seven hours of training, and passed an examination at the conclusion of which he was


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duly certified as a peace officer with the power, under the laws of the State of New York, to arrest individuals.

35. While employed by the Seagate community Police Department [with certification as a peace officer], the Plaintiff applied to the New York City Police Department for a gun license and obtained a gun license to bear and carry a gun.

36. Prior to his employment as a security officer by the Hunts Point Department of Public Safety in or about January, 2003, the Plaintiff was employed by Bryne Security International as a security officer and was assigned to perform his duties and functions at Kingsborough Community College where he did so for approximately eight or nine months.

37. Before being employed at Kingsborough Community College, the Plaintiff attended Kingsborough Community College as a student.

38. On the date of his July 17, 2008 arrest, the Plaintiff was, in addition to being employed as a security police officer in the Brooklyn, New York Seagate communityPolice Department, also employed, part time, at the Hot Lap Dance Club [hereinafter referred to as “Club”] which waslocated at 344 West 38th Street, New York City, New York.

39. The Plaintiff’s part time position at the afore-mentioned Club was that of elevator operator.

40. In his position as part time elevator operator at the afore-mentioned Club, the Plaintiff brought patrons of the Club from the ground floor level of the building in which the Club was located to an upper floor where the Club was situated and the Plaintiff returned patrons from the Club on an upper floor of the building to the ground floor.

41. The elevator was a freight type elevator.

42. The Plaintiff had been employed in his part time position for only approximately a week or thereabouts and,on the date of the Plaintiff’s arrest, the Plaintiff was working a shift for only the third time.

43. On the date of the Plaintiff’s arrest, the Plaintiff was working in his part time position at the


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afore-described location doing the functions of an elevator operator as described.

44. The only thing of which the Plaintiff was aware about the Club, where he was functioning part time as anelevator operator and had done so on only two occasions prior to July 17, 2008, was that the Club was a lap dancingclub.

45. The Plaintiff understood the Club was owned and operated by one Lou Posner whom the Plaintiff had met only in passing when he had worked as the elevator operator on the two occasions prior to the July 17, 2008.

46. The Plaintiff was aware that the Club employed woman as lap dancers.

47. The Plaintiff did not know most of the individuals employed at the Club.

48. The Plaintiff was hardly ever in the Club on the upper floor of the building when employed on the two prior occasions when he worked except to go to the bathroom on an occasion.

49. When the Plaintiff brought patrons of the Club in the elevator to the floor on which the Club was situated,the patrons were deposited on the floor in a hallway which the patrons then traversed to the Club entrance on said floor. When the Plaintiff brought patrons who had been in the Club back to the ground floor in the elevator, the Plaintiff received the patrons in the hallway by the entrance to the elevator.

50. The Plaintiff was working as a part time employee at the Club location because the Plaintiff was in need of more income to supplement the salary which he was receiving as a Seagate community Police Department security police officer.

51. On July 17, 2008, the Plaintiff commenced his job as part time elevator operator at or about 8:00 P.M.

52. At or about 11:30 P.M., while working in hisposition as part time elevator operator at the Club and as the Plaintiff was to learn, plain clothes Police Officers, entered into the Club as part of what turned out to be an


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on- going New York City Police Department undercover field operation at the Club.

53. At that time and while the Plaintiff was working the elevator in his capacity as a part time elevator operator, two plain clothes individuals, subsequently learned to be New York City Police Officers, entered into the elevator.

54. The Plaintiff took the two white male plain clothes New York City Police Officers in the elevator from the ground floor of the building to the upper floor on which the Club was situated.

55. One of the individuals, who appeared to have a badge on display that appeared to the Plaintiff to identifyhim as a police officer, asked the Plaintiff who his boss was and the Plaintiff responded that Lou Posner was the owner and operator of the Club.

56. As the two individuals exited the elevator into the hallway on the upper floor where the Club was situated,they directed the Plaintiff to get against the wall.

57. The Plaintiff, being a police officer himself and it appearing to the Plaintiff that one of the individuals was wearing a badge, asked the individuals whether he was under arrest.

58. One of the Officers indicated to the Plaintiff to “shut up” and not to think about running.

59. Together they walked to the entrance to the Club and into the Club.

60. Once in the Club, the Officer stated to the Plaintiff to slowly walk toward where his boss was.

61. The Plaintiff informed the Officer that he did not know where “his boss” was and that he might be in a back room pointing to a room in the loft area which described the Club.

62. The Officers and the Plaintiff began to walk toward the back room at which time the Officer said to the Plaintiff not to move fast.


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63. The Plaintiff responded that he was not moving fast.

64. As they walked, the Officer directed the Plaintiff to stay by a wall.

65. The Plaintiff did as directed and stayed by a wallalong with one of the two Officers.

66. The Club was crowded with patrons.

67. The Plaintiff stayed by the wall and the Plaintiff observed what appeared to him to be additional plain clothes officers in the Club.

68. The Plaintiff remained by the wall, as directed, for approximately five minutes or perhaps more.

69. Individuals were directed by persons who appeared to be plain clothes officers to sit down.

70. Individuals were sitting, some sat, and some still remained standing.

71. As the arrest operation commenced and took place, patrons of the Club were rounded up and located in one areaof the Club while the employees of the Club, including dancers employed in the Club, were gathered together by the police in another area within the Club location.

72. The Plaintiff was placed by the police in the areawith other employees of the Club.

73. Individuals, including the Plaintiff, were asked to provide identification.

74. Eventually those individuals, who were identified as patrons, were informed that they could leave.

75. During the period, police officers would go to the area where the employees of the Club had been situated and would, then, from what appeared to be a list of the employees, identify some of the employees from their list,and take all the employee arrestees to the office in the Club and handcuff the individuals and place the individualsunder arrest.


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76. When the Plaintiff was informed that he was under arrest and was then handcuffed and arrested, the Plaintiff indicated that he had done nothing improper, that he was a part time employee, and that he had only just started to work at the Club location recently.

77. When the Plaintiff asked why he was being arrested, he received no response.

78. Along with other individuals who were arrested at the time and at the location, the Plaintiff was transported to the 7th Precinct where he was processed.

79. The Plaintiff had no information or ideawhatsoever as to the basis for his arrest as he had only been working in the Club location for about a week or thereabouts and was only on his third part time employmentshift as an elevator operator.

80. When the Plaintiff questioned why he had beenarrested, he was directed by a police officer to “keep quiet”.

81. During the period that he was being arrested at the Club, the Officers examined the Plaintiff’s wallet, which was in his pocket, and they observed the Plaintiff’s peace officer badge, which the Plaintiff carried in his wallet, and the identification which described him as a security police officer at the Seagate community PoliceDepartment in Brooklyn, New York.

82. The Plaintiff had no idea about any unlawful or illegal conduct, if any, which was alleged, as part of the police operation, was on-going at the Club location.

83. As noted and because the Plaintiff had only just commenced to work at the Club, he hardly knew any of the employees, whether they be dancers at the Club or others employed at the Club; and he did not know Lou Posner although he knew of him and who he was.

84. The Plaintiff tried to tell the police officersthat he had only just been employed at the Club and that he was unaware of any alleged unlawful activity in the Club but the police simply told the Plaintiff to “keep quiet”.


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85. After several hours at the 7th Precinct to which the Plaintiff and other of the Club employees had been transported, the Plaintiff, along with others, wastransported to Manhattan Central Booking in the morning hours of July 18, 2008.

86. At or about 2:30 A.M. on Saturday, morning, July 19, 2008, the Plaintiff was presented at an arraignment in the Criminal Court of the City of New York, County of New York, and the State of New York.

87. The Plaintiff was charged with promoting prostitution.

88. The Plaintiff never promoted prostitution or other unlawful conduct, ever, in the Club location or otherwise; and he was unaware of any unlawful conduct whatsoever in the Club location.

89. The Plaintiff never engaged in any criminal conduct or other unlawful while employed part time at the Club.

90. As of the time of his arrest, the Plaintiff had noprior criminal record.

91. The Plaintiff’s arrest on the night in question, in front of employees and others, was humiliating andembarrassing and stress and anxiety inducing.

92. In fact, subsequent to his arrest, an article, referring to him as a Seagate community Police Departmentsecurity police officer, appeared in the New York Postindicating that he, among others, had been arrested in a New York City Police Department operation in the Hot Lap Dance Club and that he had been charged in the field operation with a prostitution related charge.

93. The inclusion in the New York Post article wasenormously embarrassing to the Plaintiff and had serious ramifications for him with respect to his employment by the Seagate community Police Department as a security police officer in the Seagate community where he had been employed for a considerable period of time prior thereto.


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94. At his arraignment, the Plaintiff was released without bail and on his own recognizance and directed to return to Court on September 25, 2008.

95. When the Plaintiff was released, the Plaintiff called his supervisor at the Seagate community Police Department to inform the Seagate community Police Department that he had been arrested.

96. The Plaintiff was informed that he was suspended.

97. The Plaintiff learned that, when he had been arrested and the police had learned that the Plaintiff wasa security police officer in the Seagate community PoliceDepartment in the Coney Island area of Brooklyn, New York,the 7th Precinct called the Seagate community PoliceDepartment office and informed the office that thePlaintiff had been arrested as part of the undercover vice squad field operation at the Club.

98. The Plaintiff learned, moreover, that, unbeknownst to the Plaintiff while he was at the 7th Precinct, Seagatecommunity Police Department Lieutenant Eugene Moyce had actually traveled to the 7th Precinct, while the Plaintiff was in custody at the 7th Precinct, and unsuccessfullysought to obtain the release of the Plaintiff.

99. While at the 7th Precinct, Lieutenant Moyce was given the Plaintiff’s peace officer badge and the Seagate community Police Department identification which the Plaintiff carried with him in his wallet.

100. The Plaintiff returned to Court on September 25, 2008 when and where, upon the Motion of the New York County District Attorney’s Office, the case was dismissed and the matter sealed.

101. The Plaintiff immediately informed the Seagatecommunity Police Department that the charge had been dismissed.

102. The Plaintiff spoke with, among others, Jeffrey Fortunano, the Chief of the Seagate community Police Department about his suspension and about securing the re-activation of his active duty security police officer status in the Seagate community Police Department.


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103. The Plaintiff was informed by Chief Fortunano that he was not bringing the Plaintiff back because the Plaintiff had brought great embarrassment to the Seagatecommunity Police Department and to the Seagate community at large and that the Seagate community Board would not permit the Plaintiff to be re-employed, from his suspension, in his previously held position as a Seagate community security police officer.

104. Eventually on or about November 20, 2008, the Plaintiff was able to find some part time employment withthe UPS [as described above].

105. Because the Plaintiff was still not being re-activated by the Seagate Police Department into his Seagate community Police Department security police officer position, the Plaintiff resigned his position under duress.

106. The pendency of the Criminal Court proceeding, until it was dismissed, was stress and anxiety inducing, emotionally distressful, and otherwise publicallyhumiliating and embarrassing.

107. Because of his arrest and the publicity generated about such, generally, and particularly and specifically as to the Plaintiff, the Plaintiff lost his job as a security officer.

108. Furthermore and because of his arrest and notwithstanding the dismissal of the charge and the sealing of the records, the likelihood that the Plaintiff can ever be employed in what the Plaintiff had hoped to be his chosen field of security and law enforcement, is minimal if existent at all.

109. Furthermore and as a consequence of his arrest, the Plaintiff’s gun license was cancelled.

110. The Plaintiff committed no criminal offense or other offense whatsoever and no reasonable police officer could have reasonably and objectively believed that the Plaintiff committed any criminal offense or any other offense under the law to justify even a stop yet alone an arrest, a custodial arrest, incarceration and detention,the preferral of any charge, including but not limited to promotion of prostitution charge, against him, and his criminal prosecution associated with the preferral of


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criminal charges including but not limited to the promotion of prostitution charge.

111. It is believed that Defendants “Does”, Costello,Braille, Koch, Kong, New York City Undercover PoliceOfficer 293 (previously known as New York City UndercoverPolice Officer 2948, and prior to that as New York City Undercover Police Officer 4325), and Conroy were involved in the pre-planning and/or the execution of the Hot Dance Lap Club field operation on July 17, 2008.

112. It is believed that, among the Defendants, all orsome had been in the Hot Lap Dance Club as part of a pre-July 17, 2008 undercover operation which was taking place in said Club.

113. Among other efforts in which some or all of the Defendants engaged was an undertaking and effort to secure a search warrant for the premises where the Hot Lap Dance Club was located.

114. Notwithstanding that it is believed that a search warrant was obtained for the search of the Hot Lap DanceClub, no pre-July 17, 2008 arrest warrant was obtained from a Court for the Plaintiff.

115. It is believed that no pre-July 17, 2010 arrest warrant was obtained for the arrest of the Plaintiff notwithstanding undercover operations which the Defendants had taken in the Club prior to July 17, 2008 because the Defendants lacked an objectively reasonable probable cause fact and information basis on which to believe that the Plaintiff was engaged in any criminal conduct prior to July 17, 2008 just as, on July 17, 2008, there was no such objectively reasonable probable cause fact basis for the Defendants to believe that the Plaintiff was engaged in any kind of criminal conduct to justify the Plaintiff’s arrest.

116. There was no basis for the stop, arrest andcustodial arrest of the Plaintiff by the New York City Police Officers, each of whom is an agent and employee of the City of New York.

117. In addition to the lack of any basis for the stop, arrest and custodial arrest of the Plaintiff, there was no reasonable basis to believe that the Hot Lap Dance club was a brothel or promoted any sort of systemic


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prostitution business, as New York City Undercover PoliceOfficer 293 (previously known as New York City UndercoverPolice Officer 2948, and prior to that as New York City Undercover Police Officer 4325) - as well as his partner, named Detective Rijos, Shield No. 3026 - have testified that in the course of their undercover operation at the club there were a number of times where they reached“negative results” in their attempts to reach prostitution agreements with the dancers at the club.

118. There is, in fact, significant doubt as to whether they in fact reached those prostitution agreements with those particular dancers with whom they claim to have reached agreement. Their investigatory techniques and procedures were rife with incompetence and it is believed fabricated accounts.

119. There was no justification to handcuff the Plaintiff, frisk search the Plaintiff, or to detain the Plaintiff in custody for the period of time he was held in custody until he appeared at his arraignment when and wherehe was released without bail and required to return to Court thereafter when and where, upon the motion of the New York County District Attorney’s Office, the charge preferred against the Plaintiff was dismissed.

120. The Plaintiff was simply rounded up as part of a collective group of employees at the Club without anyspecific and particularized objectively reasonable fact and information basis to believe that the Plaintiff had engaged in any unlawful conduct.

121. The Plaintiff was rounded up and left to be sorted out as part of a wholesale New York City collectiveprobable cause arrest policy and without any objectively reasonable specific and particular fact and informationbasis to believe that the Plaintiff was involved in any criminal conduct associated with the Club.

122. The Defendants, per the policy of the City of New York, “employed a ‘shoot ‘em all, and let God sort ‘em out’ arrest psychology” which is “abhorrent to the Fourth Amendment”, by arresting the Plaintiff simply because he was present in the Club as an employee [part-time] of the Club without possessing any specific and particularized conduct by the Plaintiff that linked the Plaintiff to any


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alleged unlawful conduct supposedly taking place in the Club.

123. Employment at the Club and by the Club in and of itself and without any specific and particular independentfact and information basis to believe that the Plaintiff even knew about any alleged unlawful conduct at the Club,let alone was involved in any such alleged unlawfulconduct, is not a crime.

124. While the actions and conduct of the New York City Police Department line and command Officers were unlawful they were taken in the course of their duties and functions and incidental to the otherwise lawful performance of those duties and functions as New York City Police Departmentline and command Officers and as agents and employees of the City of New York. Among others involved in the challenged actions and conduct herein were New York City Police line and command Officers “John Does”, Vincent Kong, Shield # 1661, Brian Conroy, Steven Braille, “Joe” Costello, New York City Undercover Police Officer 293 (previously known as New York City Undercover Police Officer 2948, and prior to that as New York City Undercover Police Officer 4325), and Christopher Koch, Shield # 2875.

125. There was no probable cause for the arrest of the Plaintiff or for the preferral of any — any - chargesagainst the Plaintiff or for the criminal prosecution of the Plaintiff.

126. The Plaintiff was subjected to a Fourth Amendment offensive probable cause lacking stop, false arrest and unlawful custodial detention and imprisonment, and he was subjected to excessive, unreasonable and unnecessary force in the form of his handcuffing. Moreover, he was subjected to an unlawful frisk search and to malicious prosecution, and to a malicious abuse of criminal prosecution.

127. The actions and conduct herein described were propelled by the vice crime offense enforcement initiatives of the City of New York which are grounded in the philosophy of the “ends justifies the means” and which propel New York City Police Officers to make unlawful andotherwise unjustified arrests.

128. Such vice crime offense enforcement initiatives,for which the City provided inadequate training, propelled


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the Defendant officers to make custodial arrests in this situation, including the Plaintiff’s arrest, where there was no specific and particular Plaintiff linked objectively reasonable probable cause factual basis to believe that the Plaintiff was engaged in unlawful conduct to justify thearrest of the Plaintiff.

129. The Plaintiff was falsely arrested and subjectedto an excessive and unreasonable and unnecessary force [in the form of handcuffing] and excessive detention and anunlawful frisk search and a malicious abuse of criminal process and to a malicious prosecution.

130. The actions, conduct, policies and practices and customs herein described violated the Plaintiff’s rights as guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of1871, 42 U.S.C. Section 1983.

131. The Plaintiff suffered injuries and damages including loss of liberty, fear, anxiety, mental distress, emotional anguish, and psychological trauma and physical pain and suffering.

132. The Plaintiff suffered public humiliation and embarrassment.

133. The Plaintiff suffered the loss of his employment as a security officer in the Seagate community Police Department specifically because of his arrest and all associated therewith.

134. The Plaintiff has not yet placed a monetary value on the damages which he incurred although he believes them to be substantial and to include compensatory and punitive damages.

135. The Plaintiff has no other adequate remedy of law other than for the institution of this litigation.

V. CAUSES OF ACTION

A. FIRST CAUSE OF ACTION

136. The Plaintiff reiterates Paragraph #’s 1 through135 and incorporates such by reference herein.


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137. The Plaintiff was unlawfully and falsely arrested and falsely and excessively imprisoned and detained andsubjected to excessive force and unreasonable terms and conditions of confinement in violation of his rights as guaranteed under the Fourth and Fourteenth Amendments tothe United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. Section 1983.

138. The Plaintiff suffered injuries and damages.

B. SECOND CAUSE OF ACTION

139. The Plaintiff reiterates Paragraph #’s 1 through 138 and incorporates such by reference herein.

140. The Plaintiff was subjected to malicious prosecution in violation of his rights as guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. Section 1983.


C. THIRD CAUSE OF ACTION


143. The Plaintiff was arrested for collateral objectives other than legitimate law enforcement functions including, as a collateral justification, that it was simply easier to arrest someone and sort it out later than it was to utilize the power of arrest in its proper, probable cause grounded form and fashion based on an objective and reasonable belief of the arresting law enforcement officer at the time of the arrest that the individual was engaged in unlawful conduct.

144. Simply being present at a location and being employed by the entity which does business at the locationis not a sufficient basis on which to form the requiredobjectively reasonable probable cause fact based and information belief to arrest an individual therebypropelling a belief that a non legitimate, ancillary purpose was the basis on which the arrest of the individual was grounded.


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145. The Plaintiff was subjected to malicious abuse of criminal process in violation of his rights as guaranteed under the Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. Section 1983.


D. FOURTH CAUSE OF ACTION

147. The Plaintiff reiterates Paragraph #’s 1 through 146 and incorporates such by reference herein.

148. The policies, practices and customs herein described, including the vice crime offense enforcement initiatives and the inadequate training policy associated therewith, propelled the actions and conduct herein. Those policies, practices, and customs violated the Plaintiff’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. Section 1983.


E. FIFTH CAUSE OF ACTION


151. If the City of New York elects to represent itsofficers as it does in the overwhelming number of cases brought against its officers [it is believed that the City of New York elects to represent its officers inapproximately 99 percent of the cases brought against its officers in the federal courts for alleged police officer misconduct], the City of New York uniformly and as a matter of policy and practice and custom pays the judgments awarded against its represented officers [both compensatoryand punitive damages] and otherwise pays any settlements, all without requiring contribution from the Officers.

152. The named and unnamed individual Defendants are employees and agents of the City of New York and their conduct, as described, was taken in the course of their duties and functions as New York City Police Officers and, in their capacities as such, as agents and employees of the City of New York.


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153. Their actions and conduct, while unlawful and unconstitutional, nonetheless were actions and conduct taken in connection with the otherwise lawful performance of their duties and functions as agents and employees of the City of New York.

154. The Plaintiff is entitled to recover directlyagainst the City of New York for the conduct of its named and unnamed officers under the federal claim jurisdiction and/or against the City pursuant to the doctrine of respondeat superior as the City is, as a matter of fact and law and policy and practice and custom, the real party in interest in this litigation.



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WHEREFORE and in light of the foregoing, it is respectfully requested that the Court assume jurisdictionand:

[a] Invoke pendent party and pendent claimjurisdiction.

[b] Award appropriate compensatory andpunitive damages.

[c] Award appropriate declaratory andinjunctive relief.

[d] Empanel a jury.

[e] Award attorney’s fees and costs.

[f] Award such other and further relief asthe Court deems to be in the interestof justice.

DATED: New York, New YorkMay 1, 2011

Respectfully submitted,

JAMES I. MEYERSON /s/James I. Meyerson_____

64 Fulton Street @ Suite # 502New York, New York 10013[212] 226-3310[212] 513-1006/[email protected]

JEFFREY A. ROTHMAN315 Broadway @ Suite # 200New York, New York 10007[212] 227-2980[212] 591-6343/[email protected]

ATTORNEYS FOR PLAINTIFFBY:_______________________


Andrew Rosa v. The City of New York and New York City Police Officers - U.S. District Court, SDNY

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Transcript of Andrew Rosa v. The City of New York and New York City Police Officers - U.S. District Court, SDNY