Justin Thomas Response

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------------x JUSTIN THOMAS,

Plaintiff,

-against-

THE CITY OF NEW YORK; New York City Police Department (NYPD) Sergeant (Sgt.) VIET CAO, (Shield No.1925) and JOHN DOE (the name John Doe being fictitious as the true name and shield number is not presently known), in their individual capacities,

Defendants.

ANSWER ON BEHALF DEFENDANTS CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT AND VIET CAO

13 CV 06139 (SJ)(LB) Trial By Jury Requested

-----------------------------------------------------------------------x

Defendants City of New York, New York City Police Department, Viet Cao, by

their attorney Jeffrey A. Friedlander, Acting Corporation Counsel of the City of New York, as

and for their answer to the complaint, respectfully allege, upon information and belief, as

follows:

1. Deny the allegations set forth in paragraph 1 of the complaint, except

admit that plaintiff purports to bring this action as set forth therein.

2. Deny the allegations set forth in paragraph 2 of the complaint.



admit that plaintiff purports to proceed as stated therein.


admit that plaintiff purports to invoke the Courts jurisdiction and base venue as set forth therein.

Case 1:13-cv-06139-SJ-LB Document 7 Filed 01/27/14 Page 1 of 7 PageID #: 24

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7. Deny knowledge or information sufficient to form a belief as to the truth

of the allegations set forth in paragraph 7 of the complaint.

8. Admit that defendant City of New York is a municipal entity organized

pursuant to the laws of the State of New York, and state that the remaining allegations of

paragraph 8 of the complaint are legal conclusions to which no response is required.


admit that Viet Cao is employed by the City of New York as a sergeant.



11. Paragraph 11 of the complaint contains a conclusion of law, and not an

averment of fact and as such no response is required.





admit that plaintiff was filming the exterior of the 72nd Precinct.






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admit that Sgt. Cao placed plaintiff under arrest.


admit that Sgt. Cao called for assistance.


admit that plaintiff did not physically resist arrest.






admit that plaintiff was arrested and subsequently released with a Desk Appearance Ticket.



of the allegations set forth in paragraph 26 of the complaint


admit that plaintiff was released from the precinct in less then two hours.

28. In response to the allegations set forth in paragraph 28 of the complaint,

defendants repeat and reallege the responses set forth in the preceding paragraphs of this answer

as if fully set forth herein.



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33. Paragraph 33 of the complaint contains a conclusion of law and not an

averment of fact, and as such no response is required.











41. Deny the allegations set forth in paragraph 41 of the complaint,

including all subparts.






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49. Paragraph 49 is a demand for a jury demand, and as such no response is

required.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE:

72. The complaint fails in whole or in part to states a claim upon which relief

can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE:

73. Defendants have not violated any rights, privileges or immunities under

the Constitution or laws of the United States or the State of New York or any political

subdivision thereof, nor have defendants violated any act of Congress providing for the

protection of civil rights.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE:

74. Any injury alleged to have been sustained resulted from plaintiffs own

culpable or negligent conduct and/or the culpable or negligent conduct of third parties, and was

not the proximate result of any act of the defendants.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:

75. There was probable cause for plaintiffs arrest, detention, and/or

prosecution.


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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:

76. Punitive damages are not obtainable as against defendant City of New

York or against the individual defendants in their official capacities.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:

77. Plaintiff has failed to comply with one or more of the conditions precedent

to suit.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:

78. At all times relevant to the acts alleged in the complaint, the duties and

functions of municipal defendants officials entailed the reasonable exercise of proper and lawful

discretion. Therefore, the City is entitled to governmental immunity from liability.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:

79. Plaintiffs state law claims are barred, in whole or in part, for failure to

comply with one or more of the applicable statutes of limitations.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE:

80. Plaintiff failed to mitigate his alleged damages.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE:

81. Defendant Cao is immune from suit for their exercise of discretion in the

performance of a governmental function and/or his exercise of professional judgment.


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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:

82. Defendant Cao did not violate any clearly established constitutional or

statutory right of which a reasonable person would have known and, therefore, they is entitled to

qualified immunity.

AS AND FOR TWELTH AFFIRMATIVE DEFNSE:

83. The New York City Police Department is not a suable entity.

WHEREFORE, defendants City of New York, New York City Police

Department, and Sgt. Viet Cao, request judgment dismissing the complaint in its entirety,

together with the costs and disbursements of this action, and such other and further relief as the

Court may deem just and proper.

Dated: New York, New York January 27, 2014

JEFFREY A. FRIEDLANDER Acting Corporation Counsel of the

City of New York Attorney for Defendants City of New York,

New York City Police Department, Viet Cao

100 Church Street New York, New York 10007 (212) 356-2415

By: ______________/S/________________ SUMIT SUD Senior Counsel

To: David Rankin, Esq.

Rankin & Taylor, PLLC Attorney for Plaintiff 11 Park Place, Suite 914 New York, NY 10007


Documents

Justin Thomas Response