Motion for Child Support in Katherine Adamides, Tyrus Asa Adams, Joe Allman, Alan Beadle, Kenneth Braley, Jeremy Dobner, Matthew Gould, Brian Gravelle, Arseniy Gutnik, Damian Hammond, Louis Elle Herman, Jordan Hughes, Kwann Moore, Henry Obrien, Pamela Owens, Rashida Price, Zachary Roberts, Cory Robinson, Crescenzo Scipione, Michael Sportiello, James Stair, Dave Sutliff-Atias, Rhys Whitmore v. Rochester City Of, Todd Baxter| Trellis.Law

On September 02, 2021 a Motion-Secondary was filed involving a dispute between Alan Beadle, Arseniy Gutnik, Brian Gravelle, Cory Robinson, Crescenzo Scipione, Damian Hammond, Dave Sutliff-Atias, Henry Obrien, James Stair, Jeremy Dobner, Joe Allman, Jordan Hughes, Katherine Adamides, Kenneth Braley, Kwann Moore, Louis Elle Herman, Matthew Gould, Michael Sportiello, Pamela Owens, Rashida Price, Rhys Whitmore, Tyrus Asa Adams, Zachary Roberts, and Rochester City Of, The City Of Rochester, Todd Baxter, for Torts - Other (Police Misconduct) in the District Court of Monroe County.

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FILED: MONROE COUNTY CLERK 05/06/2022 01:09 PM INDEX NO. E2021008190
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/06/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 3071807

Book Page CIVIL

Return To: No. Pages: 22
County of Monroe Department of Law
39 W. Main Street Instrument: MISCELLANEOUS DOCUMENT
Rochester, NY 14614
Control #: 202205090212
Index #: E2021008190

Date: 05/09/2022

ADAMIDES, KATHERINE Time: 9:52:01 AM
ADAMS, TYRUS ASA
ALLMAN, JOE
BEADLE, ALAN
BRALEY, KENNETH

Baxter, Todd
ROCHESTER CITY OF

Total Fees Paid: $0.00

Employee:

State of New York

MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE
ALLMAN, ALAN BEADLE, KENNETH BRALEY, JEREMY
DOBNER, MATTHEW GOULD, BRIAN GRAVELLE,
ARSENIY GUTNIK, DAMIAN HAMMOND, LOUIS
“ELLE” HERMAN, JORDAN HUGHES, KWANN MOORE,
HENRY O’BRIAN, PAMELA OWENS, RASHISA PRICE,
ZACHARTY ROBERTS, CORY ROBINSON, CRESCENZO
SCIPIONE, MICHAEL SPORTIELLO, JAMES STAIR,
DAVE SUTLIFF-ATIAS, RHYS WHITMORE,

Plaintiffs,
-against- Index No. E2021008190

THE CITY OF ROCHESTER, a municipal entity,
“JOHN DOE POLICE OFFICERS “1–200”, (names and
number of whom are unknown at present), TODD BAXTER,
“RICHARD ROE SHERIFF’S DEPUTIES 1-200” (names and
number of whom are unknown at present), and other
unidentified members of the Rochester Police Department and
Monroe County Sheriff’s Office,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE AMENDED
COMPLAINT ON BEHALF OF SHERIFF TODD BAXTER
AND RICHARD ROE SHERIFF’S DEPUTIES

John P. Bringewatt, Monroe County Attorney
Maria E. Rodi
Adam M. Clark
Deputy County Attorneys
307 County Office Building, 39 W. Main Street
Rochester, New York 14614
585.753.1495
mariarodi@monroecounty.gov

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................. iii

PRELIMINARY STATEMENT .........................................................................................1

THE PLEADINGS...............................................................................................................1

ARGUMENT ...................................................................................................................... 3

I. Standard For Dismissal Pursuant To CPLR 3211(a)(7) ................................................. 3

II. First Claim for Relief – Assault Battery......................................................................... 3

III. Second Claim for Relief – Failure to Intervene ........................................................... 6

IV. Third Claim for Relief – Negligent Training, Supervision, and Discipline ................. 7

V. Fourth Claim for Relief – Negligent Planning of the Protest Response .......................10

VI. Sixth Claim for Relief – Negligence Against Individual Defendants ........................ 11

VII. Seventh and Ninth Claims for Relief – Right to Monitor Act....................................12

CONCLUSION .................................................................................................................16

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TABLE OF AUTHORITIES

Cases

Alliance Network, LLC v. Sidley Austin LLP,
43 Misc.3d 848 (Sup. Ct. NY Cty. 2014) ..........................................................................14

Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994) .................................................................6

Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420 (2013) .................................................9, 11

Barr v. Albany County, 50 N.Y.2d 247 (1980) ....................................................................7

Boyler v. City of Lackawanna, 287 F.Supp.3d 308 (W.D.N.Y. 2018)
aff’d, 765 F. App’x 493 (2d Cir. 2019)................................................................................4

Brandes Meat Corp. v. Cromer, 146 A.D.2d 666 (2d Dept. 1989) ...................................14

Bryant v. Ciminelli, 267 F. Supp. 3d 467 (W.D.N.Y. 2017) ...................................9, 11, 12

Case v. City of New York, 233 F. Supp. 3d 372 (S.D.N.Y. 2017) .......................................6

Charkhy v. Altman, 252 A.D.2d 413 (1st Dept. 1998) .........................................................4

De Ratafia v. Cty. of Columbia, 13-cv-174,
2013 WL 5423871 (N.D.N.Y. Sept. 26, 2013) ..............................................................4, 12

Dinger v. Cefola, 133 A.D.3d 816 (2d Dept. 2015).............................................................5

Edrei v. City of New York, 254 F.Supp.3d 565 (S.D.N.Y. 2017),
aff’d sub nom. Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018) ...............................8, 11, 12

Ellington v. Cty. of Monroe, 15-cv-6310, 2019 WL 1207515
(W.D.N.Y. March 14, 2019) ..............................................................................................12

Girard v. Howard, 19-cv-673S, 2021 WL 1737758 (W.D.N.Y. May 3, 2021) ..................7

Gould v. Rempel, 99 A.D.3d 759 (2d Dept. 2012)...........................................................3, 4

Graham v. City of New York, 928 F. Supp. 2d 610 (E.D.N.Y. 2013) ..................................3

Humphrey v. Landers, 344 Fed.App’x. 686 (2d Cir. 2009) .................................................3

Jeffes v. Barnes, 208 F.3d 49 (2d Cir. 2000) .....................................................................15

Lamb v. Baker, 152 A.D.3d 1230 (4th Dept. 2017) .............................................................8

iii

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Lauer v. City of New York, 95 N.Y.2d 95 (2000) ..........................................................9, 10

Leon v. Martinez, 84 N.Y.2d 83 (1994) ...............................................................................3

Lin v. Cty. of Monroe, 66 F.Supp.3d 341 (W.D.N.Y. 2014)................................................4

Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209 (2d Cir. 2002) .......................7, 12

McLean v. City of New York, 12 N.Y.3d 194 (2009) .....................................................9, 10

Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991) .......................................................................3

Salvatore v. Kumar, 45 A.D.3d 560 (2d Dept. 2007) ..........................................................3

Seiden v. Sonstein, 127 A.D.3d 1158 (2d Dept. 2015) ........................................................8

Tango v. Tulevech, 61 N.Y.2d 34 (1983) ...........................................................................10

Tardif v. City of New York, 991 F.3d 394 (2d Cir. 2021) ................................................4, 5

Valdez v. City of New York, 18 N.Y.3d 69 (2011) .........................................................9, 10

Velez v. City of New York, 730 F.3d 128 (2d Cir. 2013) ..................................................7, 9

Wilson v. City of New York, 161 A.D.3d 1212 (2d Dept. 2018) ..........................................6

Statutes

NY Civil Rights Law §79-p .........................................................................................12, 13

NY CPLR 3211 ................................................................................................................1, 3

Monroe County Charter Art. VII .......................................................................................14

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PRELIMINARY STATEMENT

Defendants Sheriff Todd Baxter and “Richard Roes” 1-200 (purportedly Monroe County

Sheriff’s Deputies) (together, the “County Defendants”) seek to dismiss the Plaintiffs’ First

Amended Complaint (the “Complaint”) in its entirety and with prejudice as against the County

Defendants, for failure to state a claim pursuant to Civil Practice Law and Rules 3211(a)(7).

THE PLEADINGS

Plaintiffs are 23 individuals who claim to have been subjected to excessive law

enforcement conduct while participating in protests in downtown Rochester in September 2020.

Plaintiffs have brought the following Claims for Relief against the County Defendants: Assault

and Battery (First Claim for Relief), Failure to Intervene (Second Claim for Relief), Negligence

against Sheriff Baxter (Third and Fourth Claims for Relief), Negligence against the Sheriff’s

Deputies (Sixth Claim for Relief), and violations of the New York Civil Rights Law Right to

Monitor Act (Seventh and Ninth Claims for Relief). Plaintiffs’ Fifth and Eighth Claims for Relief

are against the City of Rochester only.

Plaintiffs’ counsel has brought a number of lawsuits stemming from the same protests,

some are pending before this Court, and a significant number are pending in the United States

District Court. In these lawsuits, the focus has been on the City of Rochester (“City”) and the

Rochester Police Department (“RPD”). Many of these cases have alleged a long history of

purportedly unconstitutional policies, practices, and customs, on the part of the City and the RPD.

Similarly, throughout all of these complaints the Sheriff and his Deputies have been relegated to

the status of an afterthought, with nowhere near the historical depth or focus on details or past

protests or past relevant policies that the Plaintiffs have devoted to their claims against the City.

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The clear basis and purpose of these lawsuits has everything to do with the City and RPD, and

virtually nothing to do with the County Defendants.

This same theme is present in the Complaint herein. In describing law enforcement conduct

during the protests, Plaintiffs allege that (i) the RPD used military-grade crowd control devices

(Comp. ¶24); (ii) the RPD fired tear gas canisters 77 times into groups of protesters (Comp. ¶25);

(iii) the RPD discharged 6,100 pepper balls at protesters (Comp. ¶26); the RPD shot protesters

with 40mm direct-impact foam bullets (Comp. ¶27).1

Moreover, like all of the related protest cases, the Complaint alleges incidents of

purportedly, “unreasonable and discriminatory use of force” on the part of the RPD going back

over a decade. (Comp. ¶78.) In contrast, unable to make any such allegations against the Sheriff

or his Deputies, Plaintiffs make the absurd and implausible allegation that a Hazard Mitigation

Plan created by the Monroe County Office of Public Safety is actually a training policy utilized by

the Sheriff, which it clearly is not. (Comp. ¶¶ 89-100.)

Moreover, the allegations against the Sheriff’s Deputies have consistently been general and

vague, and such is continued in Plaintiffs’ Complaint. No particular act is imputed to any Deputy,

nor is any Deputy identified or described in any way. Instead, allegations against the Sheriff’s

Deputies are against “RPD officers and Sheriff’s deputies.” By way of contrast, a number of

Plaintiffs (Adamides, Allman, Hammond, Herman, Roberts, and Stair) make specific allegations

against RPD officers. Indeed, the only specific allegations in the Complaint against any law

enforcement are against the RPD.

1
In response to the County Defendants’ motion to dismiss their initial complaint, Plaintiffs have conveniently plugged
in allegations against the County Defendants – which were notably absent in their initial complaint. See, e.g., Comp.
¶23, where RPD was changed to “RPD and MCSO.” The initial complaint and the County Defendants’ memorandum
in support of their initial motion can be found at NYSCEF Docs. 1 and 11.

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Like many of the related complaints, Plaintiffs are grasping at straws in an unsuccessful

attempt to include the County Defendants in their lawsuit. Plaintiffs’ bare allegations,

unsubstantiated by specific facts, fail to establish any non-speculative basis for relief. With that in

mind, and for the reasons set forth below, the Complaint should be dismissed in its entirety, as

against the County Defendants, with prejudice.

ARGUMENT

I. Standard for Dismissal Pursuant to CPLR 3211(a)(7)

When determining a motion to dismiss under CPLR 3211(a)(7), a court must afford the

pleading a liberal construction, accept the facts alleged in the complaint accepted as true, and

accord the benefit of every possible favorable inference. See Leon v. Martinez, 84 N.Y.2d 83, 87-

88 (1994). “However, while the allegations in the complaint are to be accepted as true when

considering a motion to dismiss, allegations consisting of bare legal conclusions as well as factual

claims flatly contradicted by documentary evidence are not entitled to any such consideration.”

Salvatore v. Kumar, 45 A.D.3d 560, 563 (2d Dept. 2007) (internal quotation omitted).

II. First Claim for Relief – Assault and Battery

Plaintiffs’ First Claim for Relief, alleging assault and battery should be dismissed as to the

County Defendants because Plaintiffs have failed to allege that any individual County Defendant

was actually involved in any use of force. “To plead a cause of action to recover damages for

assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent

apprehension of harmful contact.” Gould v. Rempel, 99 A.D.3d 759, 760 (2d Dept. 2012).

“Federal excessive force claims and state law assault and battery claims against police

officers are nearly identical.” Graham v. City of New York, 928 F. Supp. 2d 610, 624–25 (E.D.N.Y.

2013) (citing Humphrey v. Landers, 344 Fed.Appx. 686, 688 (2d Cir.2009)); Posr v. Doherty, 944

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F.2d 91, 94–95 (2d Cir. 1991)). See also Lin v. Cty. of Monroe, 66 F.Supp.3d 341, 355-56

(W.D.N.Y. 2014) (dismissing claims, including for assault and battery, against Deputy who was

not present at the time of the use of force). “In the absence of factual allegations establishing that

[the Sheriff Defendants were] personally involved in the alleged state law torts of assault, battery,

false arrest, intentional infliction of emotional distress and negligent infliction of emotional

distress, these claims . . . also fail to state a cause of action under New York law.” De Ratafia v.

Cty. of Columbia, 13-cv-174, 2013 WL 5423871, at *9 (N.D.N.Y. Sept. 26, 2013). See also Boyler

v. City of Lackawanna, 287 F. Supp. 3d 308, 326 (W.D.N.Y. 2018) aff’d, 765 F. App’x 493 (2d

Cir. 2019) (“Accordingly, because there is no evidence that the Individual Defendants effectuated

Plaintiff’s arrest . . . the fact that Plaintiff was arrested fails to raise an issue of material fact in

support of his common law assault and battery claims.)

By failing to specify the actions of any individual Sheriff’s Deputy, the Plaintiffs fail to

adequately allege intentional conduct – an essential element of an assault claim and a battery claim.

See Tardif v. City of New York, 991 F.3d 394, 410 (2d Cir. 2021) (“[C]ivil assault ‘is an intentional

placing of another person in fear of imminent harmful or offensive contact,’” and “civil battery ‘is

an intentional wrongful physical contact with another person without consent.’”) (quoting Charkhy

v. Altman, 252 A.D.2d 413 (1st Dept. 1998)); see also Gould, 99 A.D.3d at 760 (Plaintiff “failed

to allege intent on the part of the defendant.”) Plaintiffs here have not alleged anything to show

that any individual County Defendant intentionally acted in a way that would support a claim for

assault and battery.

This is not simply an argument that no individual Deputy was named; this is not a failure

that could be corrected by discovery of allegedly involved Deputies names; rather it is a failure to

properly plead any specific action against any individual County Defendant. In contrast, Plaintiffs

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have pled specific individual acts against individual RPD Officers, even without knowing their

names. See, e.g. Complaint at ¶121 (RPD officers pushed Mr. ALLMAN to the ground and

dragged him approximately 10 feet across the pavement. The RPD officers then confiscated Mr.

ALLMAN’s cellphone, tripod, light and charging cable, without cause or lawful justification);

¶175 (an RPD officer pepper sprayed Mr. HAMMOND directly in the face); ¶167 (RPD officer

hit Mx. HERMAN in the face with a baton); and ¶243 (RPD officer charged at Mr. STAIR and

struck him with a baton).

Indeed, Plaintiff Roberts – who alleges that he is an international journalist – claims that

the “RPD’s use of force” was “one of the single most violent things I’ve seen in my years of

journalism.” (Comp. ¶211.) (Emphasis added.)

There are no similarly detailed or specific pleadings here sufficient for the Plaintiffs to

maintain a cause of action against the unnamed Sheriff’s Deputies.

Furthermore, Plaintiffs’ assault and battery claim should be dismissed because Plaintiffs

have failed to adequately allege that the County Defendants’ conduct, “was not reasonable within

the meaning of the New York statute concerning justification of law enforcement’s use of force in

the course of their duties.” See Tardif, 991 F.3d at 410. Plaintiffs’ allegations that the County

Defendants’ conduct was “without cause or legal justification” are insufficient to sustain this

pleading burden. See Dinger v. Cefola, 133 A.D.3d 816, 817 (2d Dept. 2015) (“Bare legal

conclusions . . . are not presumed to be true”).

For the above reasons, Plaintiffs’ First Claim for Relief should be dismissed as against the

County Defendants.

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III. Second Claim for Relief – Failure to Intervene

Plaintiffs’ Second Claim for Relief, alleging “failure to intervene,” should be dismissed as

to the County Defendants because, similar to the claim for assault and battery, the Plaintiffs have

failed to meet their pleading burden.

“It is widely recognized that all law enforcement officials have an affirmative duty to

intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Wilson v. City of New York, 161 A.D.3d 1212, 1215 (2d

Dept. 2018) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). See also Case v. City

of New York, 233 F. Supp. 3d 372, 401–03 (S.D.N.Y. 2017).

An officer who fails to intercede is liable for the preventable harm caused by the
actions of the other officers where that officer observes or has reason to know: (1)
that excessive force is being used; (2) that a citizen has been unjustifiably arrested;
or (3) that any constitutional violation has been committed by a law enforcement
official.

Wilson, 161 A.D.3d at 1215. See also Case, 233 F.Supp.3d at 401–03.

Here, Plaintiffs have failed to plausibly allege that any of the Deputies actually witnessed

any violation of Plaintiffs’ rights and similarly fail to allege that any of the Deputies had a realistic

opportunity to intervene in any alleged violations. Rather, the allegations regarding the County

Defendants amount to simple group pleading alleging that Deputies “and/or” RPD officers were

involved in various general acts of crowd control at the protests. No individual Deputy is identified,

in any manner whatsoever. Again, this is contrasted with multiple Plaintiffs making specific

allegations against RPD officers.

Similarly with Sheriff Baxter, the Complaint does not allege anything sufficient to show

that the Sheriff was actually present to witness or had any realistic opportunity to intervene in any

alleged violation of rights.

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Therefore the Plaintiff’s Second Claim for Relief should be dismissed as to the County

Defendants.

IV. Third Claim for Relief – Negligent Training, Supervision, and Discipline

The Third Claim for Relief, brought against Sheriff Baxter and alleging negligent training,

supervision, and discipline, should be dismissed on multiple grounds.

First, to the extent the Claim for Relief is brought against the Sheriff in his individual

capacity, it must be dismissed as no personal involvement outside of his role as Sheriff is alleged.

See Girard v. Howard, 19-cv-673S, 2021 WL 1737758, at *9 (W.D.N.Y. May 3, 2021) (dismissing

personal capacity claim against sheriff when alleged “personal involvement” arose from sheriff’s

official duties, e.g., setting policy).

Plaintiffs have also failed to allege the duty that the Sheriff owed to Plaintiff, which is the

first element required in pleading a negligence claim. See Lombard v. Booz–Allen & Hamilton,

Inc., 280 F.3d 209, 215 (2d Cir. 2002).

Plaintiffs have also failed to allege that the Sheriff’s deputies were acting outside of the

scope of their employment. Though a Sheriff is not liable for the torts of his or her individual

deputies, New York law permits a claim of negligence against a Sheriff where it is shown that

deputies lacked proper training in law enforcement techniques and that direct supervision by the

Sheriff could have altered the consequences of the deputies’ actions. Barr v. Albany County, 50

N.Y.2d 247, 258 (1980).

But this claim survives only if it is shown that the alleged tortfeasor acted outside the scope

of their employment. See Velez v. City of N.Y., 730 F.3d 128, 136 (2d Cir. 2013) (“to maintain a

claim against a municipal employer for the negligent hiring, training, and retention of a tortfeasor

under New York law, a plaintiff must show that the employee acted outside the scope of her

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employment”) (quotations omitted). Moreover, a plaintiff must show that the employer, “was

aware of, or reasonably should have foreseen, the [deputies’] propensity to commit such act[s].”

Lamb v. Baker, 152 A.D.3d 1230, 1231 (4th Dept. 2017), quoting Seiden v. Sonstein, 127 A.D.3d

1158, 1160-61 (2d Dept. 2015) (“An employer may be liable for a claim of negligent hiring or

supervision if an employee commits an independent act of negligence outside the scope of

employment and the employer was aware of, or reasonably should have foreseen, the employee’s

propensity to commit such an act”) (quotations omitted).

Plaintiff has failed to meet these pleading burdens. First, Plaintiff failed to allege that the

Sheriff’s deputies engaged in independent acts of negligence outside the scope of their

employment. In fact, Plaintiff affirmatively alleges that, “[a]t all relevant times, [the Sheriff’s

deputies] were acting within the scope of their employment with the County and under Sheriff

Baxter… .” (Comp. ¶10.) (Emphasis added.)

Moreover, the Complaint is devoid of allegations, “sufficient to infer that . . . [Sheriff

Baxter] knew of the [Sheriff’s deputies’] ... propensity to act in the manner alleged.” See Edrei v.

City of New York, 254 F.Supp.3d 565, 583-84 (S.D.N.Y. 2017), aff’d sub nom. Edrei v. Maguire,

892 F.3d 525 (2d Cir. 2018). There is no allegation that, for example, Sheriff Baxter ever received

prior complaints involving Sheriff’s deputies’ use of crowd control measures or “chemical or

militarized” weapons. Absent such allegations, Plaintiffs’ claim for negligent supervision and

training against Sheriff Baxter must be dismissed. See id. (dismissing negligent training and

supervision claim where plaintiffs did not allege “that defendant [employer] ... knew of the

defendant officers’ propensity to act in the manner alleged, namely using a powerful sound

magnifier in an unnecessarily forceful manner [during a protest]”).

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Further, the Claim for Relief fails for failure to allege a special duty to the Plaintiffs.

[A]n agency of government is not liable for the negligent performance of a
governmental function unless there existed a special duty to the injured person, in
contrast to a general duty owed to the public. Such a duty, we have explained – a
duty to exercise reasonable care toward the plaintiff – is born of a special
relationship between the plaintiff and the governmental entity.
...

A special relationship can be formed in three ways: (1) when the municipality
violates a statutory duty enacted for the benefit of a particular class of persons; (2)
when it voluntarily assumes a duty that generates justifiable reliance by the person
who benefits from the duty; or (3) when the municipality assumes positive direction
and control in the face of a known, blatant and dangerous safety violation.

McLean v. City of New York, 12 N.Y.3d 194, 199 (2009) (internal citations omitted). See also

Bryant v. Ciminelli, 267 F.Supp.3d 467, 479 (W.D.N.Y. 2017).

It is the plaintiff’s obligation to prove that the government defendant owed a special
duty of care to the injured party because duty is an essential element of the
negligence claim itself. In situations where the plaintiff fails to meet this burden,
the analysis ends and liability may not be imputed to the municipality that acted in
a governmental capacity.

Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426 (2013) (citing Lauer v. City of New York, 95

N.Y.2d 95, 100 (2000)); Valdez v. City of New York, 18 N.Y.3d 69, 75 (2011); Bryant, 267

F.Supp.3d at 479. The Plaintiffs here have not alleged any special duty or relationship that would

differentiate them from the public at large or that would require specific, special training with

regard to them.

The cause of action for negligence against Sheriff Baxter should also be dismissed because

the Sheriff is protected by the government function immunity defense. See Valdez, 18 N.Y.3d at

75:

[T]he common-law doctrine of governmental immunity continues to shield public
entities from liability for discretionary actions taken during the performance of
governmental functions.
...

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[E]ven if a plaintiff establishes all elements of a negligence claim, a state or
municipal defendant engaging in a governmental function can avoid liability if it
timely raises the defense and proves that the alleged negligent act or omission
involved the exercise of discretionary authority.

Id. at 75-76. See also Lauer, 95 N.Y.2d at 99. Taking the special duty and the discretionary

immunity defenses together:

[T]he rule that emerges is that ‘government action, if discretionary, may not be a
basis for liability, while ministerial actions may be, but only if they violate a special
duty owed to the plaintiff, apart from any duty to the public in general.

Valdez, 18 N.Y.3d at 76-77 (quoting McLean, 12 N.Y.3d at 203). A discretionary government

action is one which involves, “the exercise of reasoned judgment which could typically produce

different acceptable results.” Valdez, 18 N.Y.3d at 80 quoting Tango v. Tulevech, 61 N.Y.2d 34,

41 (1983).

Here the Plaintiffs allege that Sheriff Baxter was negligent in, “training, supervision and

discipline” of Sheriff’s Deputies. Clearly this allegation is of a protected discretionary government

function, and obviously from the Complaint itself there are multiple different acceptable ways for

the County Defendants to police protests. Therefore since the negligence alleged against Sheriff

Baxter was for the performance of a discretionary government function, the Sheriff is protected by

the government function immunity defense.

Therefore the Plaintiffs’ Third Claim for Relief against Sheriff Baxter for negligent

training, supervision and discipline should be dismissed in its entirety.

V. Fourth Claim for Relief – Negligent Planning of the Protest Response

Plaintiffs’ Fourth Claim for Relief alleges negligence against Sheriff Baxter in his planning

of the Sheriff’s deputies’ protest response. Similar to Plaintiffs’ other claim for negligence against

Sheriff Baxter, Plaintiffs have failed to plead this Claim for Relief by failing to sufficiently allege

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202205090212 IndexNO.

Case Info

Judge

Daniel J Doyle Track Judge’s New Case

Case No.

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Document Filed Date

May 06, 2022

Case Filing Date

September 02, 2021

County

Parties

Alan Beadle Plaintiff
Arseniy Gutnik Plaintiff
Brian Gravelle Plaintiff
CAMPOLIETO, JOHN M. Attorney for the Defendant
CLARK, ADAM M. Attorney for the Defendant
Cory Robinson Plaintiff
Crescenzo Scipione Plaintiff
Damian Hammond Plaintiff
Dave Sutliff-atias Plaintiff
DOLBY-SHIELDS, ELLIOT Attorney for the Plaintiff
Henry Obrien Plaintiff
James Stair Plaintiff
Jeremy Dobner Plaintiff
Joe Allman Plaintiff
Jordan Hughes Plaintiff
Katherine Adamides Plaintiff
Kenneth Braley Plaintiff
Kwann Moore Plaintiff
Louis elle Herman Plaintiff
Matthew Gould Plaintiff
Michael Sportiello Plaintiff
Pamela Owens Plaintiff
Rashida Price Plaintiff
Rhys Whitmore Plaintiff
ROCHESTER CITY OF Defendant
RODI, MARIA E Attorney for the Defendant
The City of Rochester Defendant
Todd Baxter Defendant
Tyrus Asa Adams Plaintiff
Zachary Roberts Plaintiff
MARIA RUSSO Attorney
JOHN MAWE Attorneys for Defendants
LINDA KINGSLEY Attorneys for Defendants
JOHN POLINE Attorneys for Defendants

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