Preview
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM INDEX NO. E2021008190
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3231220
Book Page CIVIL
Return To: No. Pages: 9
ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: MEMO OF LAW
New York, NY 10016
Control #: 202210201519
Index #: E2021008190
Date: 10/20/2022
ADAMIDES, KATHERINE Time: 11:24:58 PM
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, INDEX NO.: E2021008184
LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN
MOORE, HENRY O’BRIEN, PAMELA OWENS,
RASHIDA PRICE, ZACHARY ROBERTS, CORY
ROBINSON, CRESCENZO SCIPIONE, MICHAEL
SPORTIELLO, JAMES STAIR, DAVE SUTLIFF-ATIAS,
RHYS WHITMORE,
Plaintiffs,
-against-
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 IN SUPPORT OF MOTION TO RENEW AND REARGUE
DISMISSAL OF THE FOURTH AND FIFTH CLAIMS FOR RELIEF FOR NEGLIGENT
PLANNING OF THE PROTEST RESPONSE
Elliot Dolby Shields
Roth & Roth, LLP
Attorneys for Petitioner
192 Lexington Avenue, Suite 802
New York, New York 10016
212-425-1020
eshields@rothandrothlaw.com
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INTRODUCTION
This case presents important questions regarding the response of law enforcement in
Rochester to peaceful protests following release of the video of RPD officers killing Daniel Prude.
In this case, the 23 plaintiffs—including peaceful protesters, legal observers, professional
photojournalists and amateur photojournalists—were all brutalized and attacked with chemical
weapons other “less lethal” weapons by Sheriff’s Deputies, RPD officers and other law
enforcement officers, who were executing the protest response plan devised jointly by Monroe
County Sheriff Todd Baxter and officials from the City and Rochester Police Department.
Plaintiffs respectfully submit that the facts and law with respect to the negligent planning
claims are novel and complicated, and the “special duty” rule is perhaps one of the thorniest and
most confusing areas of tort law. While the Court adroitly navigated many of the complex facts
and legal claims in this case in its clear and well-reasoned August 26, 2022 Decisions and Orders
(NYSCEF 54 and 55), Plaintiffs respectfully submit that the Court erred in dismissing the negligent
planning claims against defendants the City of Rochester and Monroe County Sheriff Todd Baxter.
Plaintiffs’ negligent planning claims, the fourth and fifth claims for relief, were well pled
under the Court of Appeals’ landmark March 2022 decision in Ferreira v. City of Binghamton,
2022 NY Slip Op 01953 (Mar. 23, 2022). In that case, the Court of Appeals effected a significant
expansion of what previously had been the least frequently invoked category of special duty cases,
those involving instances where the municipality assumes positive direction and control over a
known hazard. The leading prior case on this principle, on which Ferreira relied, was Smullen v.
City of New York, 28 N.Y.2d 66 (1971). Smullen involved a finding that the City assumed control
over a single person by direct verbal contact. Ferreira found that, by assuming control over an
entire premises by way of a no-knock warrant, the municipality accepted a duty to everyone inside.
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There is no conceptual distinction between assuming control over an entire premises, and
assuming control over a group of protesters by trapping and kettling them into a confined space,
as the Defendants did in this case on multiple nights in September 2020. Similar to a no-knock
warrant, kettling and trapping hundreds of people in confined spaces is extremely dangerous,
especially when law enforcement does not have an adequate plan. For example, on September 4,
2020, Sheriff’s Deputies and RPD officers led hundreds of peaceful protesters in a march onto the
Court Street Bridge, where metal barricades had been set up on the far side, trapping them all on
the bridge. Thereafter, Defendants issued a dispersal order, knowing it was physically impossible
for plaintiffs and other protesters to comply, and then 30 seconds after the order was issued,
Defendants attacked the protesters with chemical weapons and other “less lethal” weapons. Under
Ferreira, Plaintiffs respectfully submit that they adequately pled that the police took control of an
extremely dangerous situation that they affirmatively created, and thus, they adequately pled the
Defendants owed the Plaintiffs a special duty. (Id. at *5-6)
Plaintiffs respectfully submit they adequately pled a special duty under Ferreira and that
the Court overlooked the supplemental authority they submitted after the instant motions were
fully briefed. For these reasons, as detailed below, Plaintiffs respectfully submit the Court should
grant their motion to renew and reargue and reinstate the negligent planning claims against the
City and Sheriff Baxter—the fourth and fifth claims for relief in Plaintiffs’ amended complaint,
respectively.
ARGUMENT
The CPLR 2221(e) states that a motion for leave to renew, “shall be based upon new facts
not offered on the prior motion that would change the prior determination or shall demonstrate that
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there has been a change in the law that would change the prior determination.” (McKinney’s CPLR
§ 2221).
Leave to reargue is warranted where a party demonstrates that "the court overlooked or
misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision"
(Schneider v. Solowey, 14l AD2d 813,813 (1988); see also, Bigun v Ahmed, l50 AD 3d 1186 (2d Dept
20l7); Salcedo v. Demon Trucking, Inc.,146 AD 3d 849 (2d Dept 2017).
The within motion is timely pursuant to CPLR 2221(d)(3) in that it is made within thirty days
of service of the Notices of Entry of the Orders Plaintiffs seek to be re-argued. A motion to renew has
no definite deadline under the CPLR.
I. Plaintiff’s motion to renew should be granted because the Court did not
consider the supplemental authority submitted by Plaintiffs.
A court has broad discretion to grant renewal where new facts show entitlement to relief.
(Framapac Delicatessen, Inc. v. Aetna Casualty and Surety Co., 249 A.D.2d 36 [1st Dept. 1998];
see also Webb & Knapp v United Cigar, 276 A.D. 583 [1st Dept. 1950] [on a motion for a
rehearing it is not necessary that the additional facts be newly discovered so long as they are legally
sufficient and remedy the defects in the proofs submitted on the original motion]).
Here, on July 26, 2022, the Plaintiffs submitted a letter regarding the June 30, 2022
decisions and orders handed down by United States District Court Judge Frank Geraci, and
attached the decisions themselves, as “supplemental authority”. (NYSCEF 34-45) The letter
pointed out that in Barnhart v. City of Rochester et al, 21-cv-6718 (FPG), Flannery City of
Rochester et al, 22-cv-6062 (FPG), Hilderbrant v. City of Rochester et al, 21-cv-6714 (FPG),
Lynch v. v. City of Rochester et al, 21-cv-6708 (FPG), Maring v. City of Rochester et al, 21-cv-
6720 (FPG), and Sorokti v. City of Rochester et al, 21-cv-6709 (FPG), Judge Geraci conducted a
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detailed and thorough analysis of the negligent planning claims, and determined that under
Ferreira, Plaintiff had adequately pleaded a “special duty.”
For example, in the Order denying the County’s motion to dismiss in Barnhart, Judge
Geraci explained that the Court of Appeal’s decision in Ferreira was instructive:
“Although this case does not present the no-knock situation
addressed in Ferreira, there are some compelling similarities.
Indeed, like executing a no-knock warrant, law enforcement
responding to a protest may in some senses take “positive control of
a known and dangerous condition”—one that is dynamic,
potentially dangerous, and buttressed by constitutional protections.
That is what Plaintiff alleges here. See, e.g., ECF No. 9 ¶¶ 19-23
(alleging that police directed protestors and fired upon them).
Neither party cites cases—let alone any cases post- Ferreira—
addressing the unique facts presented here. Given Ferreira’s
reasoning and the absence of case law confirming that special duty
does not exist—while also recognizing the absence of case law
directly on point establishing such a special duty in these
circumstances—the Court concludes that the claim should proceed.
While the Court cannot say with certainty that a special duty exists
in the circumstances presented by Plaintiff here, the Court finds that
Plaintiff’s allegations are sufficient to survive the motion to
dismiss.”
(NYSCEF 36 p. 13-14).
While the June 30, 2022 decisions in Barnhart, Flannery, Hilderbrant, Lynch, Maring, and
Sorokti were not available to the parties or the Court before Defendants’ underlying motions to
dismiss were fully briefed and submitted, the CPLR gives a mechanism by which the Court can
consider law decided during the pendency of a fully-briefed motion, to wit, the motion to renew
pursuant to CPLR § 2221(e).
Moreover, it is clear from this Court’s Decisions and Orders dismissing the negligent
planning claims against the City and Sheriff Baxter that it did not consider the proffered
supplemental authority. (See NYSCEF 54 and 55) However, because Judge Geraci’s decisions in
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Barnhart, Flannery, Hilderbrant, Lynch, Maring, and Sorokti were decided after the parties briefed
the motions to dismiss, it is appropriate for the Court to consider them now, in Plaintiffs’ motion
to renew and reargue. Although the federal court decision are not binding on this Court, the
reasoning behind the denial of the motion to dismiss the same claim, arising from the same protests,
is sound and should be considered by this Court.
II. Plaintiff’s motion to reargue should be granted because the Court did not
consider Plaintiff’s arguments that the negligent planning claim was
adequately pled under Ferreira v. City of Binghamton, 2022 NY Slip Op
01953 (Mar. 23, 2022).
In dismissing the negligent planning claims, the Court simply stated that “Plaintiffs have
failed to plead this Claim for Relief by failing to sufficiently allege the existence of a special duty
or relationship.” (NYSCEF 54 at 5, NYSCEF 55 at 3)
Plaintiffs respectfully submit that the Decisions and Orders demonstrate that the Court
overlooked and/or misapprehended the arguments advanced in their opposition to the City and the
County’s motions to dismiss. In the opposition papers, Plaintiffs explained that they had
adequately pleaded a “special duty” under the Court of Appeals recent decision in Ferreira v. City
of Binghamton, which held that where the police take positive control of a dangerous situation that
they affirmatively created, the municipality owes the plaintiff a special duty. (2022 NY Slip Op
01953 at *5-6 [Mar. 23, 2022])
The Ferreira Court majority applied this method of establishing a “special duty” to the
facts before it as follows:
“In a no-knock warrant situation, the police exercise extraordinary
governmental power to intrude upon the sanctity of the home and
take temporary control of the premises and its occupants. In such
circumstances, the police direct and control a known and dangerous
condition, effectively taking command of the premises and
temporarily detaining occupants of the targeted location. As a result,
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the municipality's duty to the individuals in the targeted premises, a
limited class of potential plaintiffs, exceeds the duty the
municipality owes to the members of the general public. A special
duty therefore arises when the police plan and execute a no-knock
search warrant at an identified residence, running to the individuals
within the targeted premises at the time the warrant is executed. In
other words, in those circumstances, the police take positive control
of a known and dangerous condition, creating a special duty under
the third situation recognized by this Court.”
(Id. at 20–21)
In opposition to the County’s motion to dismiss the negligent planning
claim, Plaintiffs argued:
“The facts here fit squarely within the holding of Ferreira. The FAC
pleads that the police affirmatively created a “dangerous situation”
by negligently planning the protest response. Prior to the protests,
the CITY and BAXTER developed a coordinated strategy for
responding to the protests, a protest response plan where Sheriff’s
Deputies were trained and instructed to police “peaceful protests” in
the same manner they would police “violent mobs” and riots. (See
e.g., FAC ¶¶ 3, 32, 85-88) Specifically, BAXTER and City
policymakers created a dangerous situation by developing protest
response plan where they armed law enforcement officers with
military-grade equipment, including tear gas and pepper spray, 40
millimeter blunt-impact projectiles, pepper balls, flash-bang
grenades and other supposedly “less-than-lethal” munitions. (See
e.g., FAC ¶ Id. ¶¶ 24, 28-31, 42-62, 66, 72, 88).
On the nights in question, Sheriff’s Deputies and RPD officers
“affirmatively took control” of the “dangerous situation” they had
created. For example, on September 4, 2020, Defendants allowed
the protest march onto the Court Street Bridge where Plaintiffs and
hundreds of other protesters were “kettled” and trapped; when they
had nowhere to go, then suddenly they were attacked with chemical
weapons and other “less lethal” weapons and then attacked with
batons. (FAC ¶ 26, 53-59). Similarly on September 5, 2020,
Defendants led the protest march to the intersection of Broad Street
and Exchange Blvd., where they again kettled protesters in a
confined area, before attacking them with tear gas and other
chemical weapons, rushing them and physically striking them with
fists and batons. Id. ¶¶ (60-62).”
(NYSCEF 31 pp. 14-15).
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Plaintiffs respectfully submit that the FAC adequately plead a “special duty” under the
“took positive control of a known and dangerous safety condition” method, as articulated in
Ferreira. While this method of establishing a special duty may be novel, it was specifically
endorsed by the Court of Appeals. Plaintiffs are entitled to discovery to prove this claim.
Conclusion
For these reasons and the reasons articulated in the underlying papers, Plaintiffs
respectfully submit that the Amended Complaint adequately pleaded that the City and Sheriff
Baxter owed them a special duty under the Court of Appeals decision in Ferreira, for failing to
properly plan for an extremely dangerous situation, and respectfully submit that the instant motion
to renew and reargue should be granted, and that the negligent planning claims, the fourth and fifth
claims for relief, should be reinstated.
WHEREFORE, Plaintiffs pray that this Court should enter an order granting the instant
motion and reinstating the fourth and fifth claims for relief in the Amended Complaint.
Dated: New York, New York
October 20, 2022
~//s//~
ELLIOT D. SHIELDS
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Preview
FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM INDEX NO. E2021008190 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3231220 Book Page CIVIL Return To: No. Pages: 9 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Instrument: MEMO OF LAW New York, NY 10016 Control #: 202210201519 Index #: E2021008190 Date: 10/20/2022 ADAMIDES, KATHERINE Time: 11:24:58 PM 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 1 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 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, INDEX NO.: E2021008184 LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN MOORE, HENRY O’BRIEN, PAMELA OWENS, RASHIDA PRICE, ZACHARY ROBERTS, CORY ROBINSON, CRESCENZO SCIPIONE, MICHAEL SPORTIELLO, JAMES STAIR, DAVE SUTLIFF-ATIAS, RHYS WHITMORE, Plaintiffs, -against- 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 IN SUPPORT OF MOTION TO RENEW AND REARGUE DISMISSAL OF THE FOURTH AND FIFTH CLAIMS FOR RELIEF FOR NEGLIGENT PLANNING OF THE PROTEST RESPONSE Elliot Dolby Shields Roth & Roth, LLP Attorneys for Petitioner 192 Lexington Avenue, Suite 802 New York, New York 10016 212-425-1020 eshields@rothandrothlaw.com 2 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 INTRODUCTION This case presents important questions regarding the response of law enforcement in Rochester to peaceful protests following release of the video of RPD officers killing Daniel Prude. In this case, the 23 plaintiffs—including peaceful protesters, legal observers, professional photojournalists and amateur photojournalists—were all brutalized and attacked with chemical weapons other “less lethal” weapons by Sheriff’s Deputies, RPD officers and other law enforcement officers, who were executing the protest response plan devised jointly by Monroe County Sheriff Todd Baxter and officials from the City and Rochester Police Department. Plaintiffs respectfully submit that the facts and law with respect to the negligent planning claims are novel and complicated, and the “special duty” rule is perhaps one of the thorniest and most confusing areas of tort law. While the Court adroitly navigated many of the complex facts and legal claims in this case in its clear and well-reasoned August 26, 2022 Decisions and Orders (NYSCEF 54 and 55), Plaintiffs respectfully submit that the Court erred in dismissing the negligent planning claims against defendants the City of Rochester and Monroe County Sheriff Todd Baxter. Plaintiffs’ negligent planning claims, the fourth and fifth claims for relief, were well pled under the Court of Appeals’ landmark March 2022 decision in Ferreira v. City of Binghamton, 2022 NY Slip Op 01953 (Mar. 23, 2022). In that case, the Court of Appeals effected a significant expansion of what previously had been the least frequently invoked category of special duty cases, those involving instances where the municipality assumes positive direction and control over a known hazard. The leading prior case on this principle, on which Ferreira relied, was Smullen v. City of New York, 28 N.Y.2d 66 (1971). Smullen involved a finding that the City assumed control over a single person by direct verbal contact. Ferreira found that, by assuming control over an entire premises by way of a no-knock warrant, the municipality accepted a duty to everyone inside. 1 3 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 There is no conceptual distinction between assuming control over an entire premises, and assuming control over a group of protesters by trapping and kettling them into a confined space, as the Defendants did in this case on multiple nights in September 2020. Similar to a no-knock warrant, kettling and trapping hundreds of people in confined spaces is extremely dangerous, especially when law enforcement does not have an adequate plan. For example, on September 4, 2020, Sheriff’s Deputies and RPD officers led hundreds of peaceful protesters in a march onto the Court Street Bridge, where metal barricades had been set up on the far side, trapping them all on the bridge. Thereafter, Defendants issued a dispersal order, knowing it was physically impossible for plaintiffs and other protesters to comply, and then 30 seconds after the order was issued, Defendants attacked the protesters with chemical weapons and other “less lethal” weapons. Under Ferreira, Plaintiffs respectfully submit that they adequately pled that the police took control of an extremely dangerous situation that they affirmatively created, and thus, they adequately pled the Defendants owed the Plaintiffs a special duty. (Id. at *5-6) Plaintiffs respectfully submit they adequately pled a special duty under Ferreira and that the Court overlooked the supplemental authority they submitted after the instant motions were fully briefed. For these reasons, as detailed below, Plaintiffs respectfully submit the Court should grant their motion to renew and reargue and reinstate the negligent planning claims against the City and Sheriff Baxter—the fourth and fifth claims for relief in Plaintiffs’ amended complaint, respectively. ARGUMENT The CPLR 2221(e) states that a motion for leave to renew, “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that 2 4 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 there has been a change in the law that would change the prior determination.” (McKinney’s CPLR § 2221). Leave to reargue is warranted where a party demonstrates that "the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision" (Schneider v. Solowey, 14l AD2d 813,813 (1988); see also, Bigun v Ahmed, l50 AD 3d 1186 (2d Dept 20l7); Salcedo v. Demon Trucking, Inc.,146 AD 3d 849 (2d Dept 2017). The within motion is timely pursuant to CPLR 2221(d)(3) in that it is made within thirty days of service of the Notices of Entry of the Orders Plaintiffs seek to be re-argued. A motion to renew has no definite deadline under the CPLR. I. Plaintiff’s motion to renew should be granted because the Court did not consider the supplemental authority submitted by Plaintiffs. A court has broad discretion to grant renewal where new facts show entitlement to relief. (Framapac Delicatessen, Inc. v. Aetna Casualty and Surety Co., 249 A.D.2d 36 [1st Dept. 1998]; see also Webb & Knapp v United Cigar, 276 A.D. 583 [1st Dept. 1950] [on a motion for a rehearing it is not necessary that the additional facts be newly discovered so long as they are legally sufficient and remedy the defects in the proofs submitted on the original motion]). Here, on July 26, 2022, the Plaintiffs submitted a letter regarding the June 30, 2022 decisions and orders handed down by United States District Court Judge Frank Geraci, and attached the decisions themselves, as “supplemental authority”. (NYSCEF 34-45) The letter pointed out that in Barnhart v. City of Rochester et al, 21-cv-6718 (FPG), Flannery City of Rochester et al, 22-cv-6062 (FPG), Hilderbrant v. City of Rochester et al, 21-cv-6714 (FPG), Lynch v. v. City of Rochester et al, 21-cv-6708 (FPG), Maring v. City of Rochester et al, 21-cv- 6720 (FPG), and Sorokti v. City of Rochester et al, 21-cv-6709 (FPG), Judge Geraci conducted a 3 5 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 detailed and thorough analysis of the negligent planning claims, and determined that under Ferreira, Plaintiff had adequately pleaded a “special duty.” For example, in the Order denying the County’s motion to dismiss in Barnhart, Judge Geraci explained that the Court of Appeal’s decision in Ferreira was instructive: “Although this case does not present the no-knock situation addressed in Ferreira, there are some compelling similarities. Indeed, like executing a no-knock warrant, law enforcement responding to a protest may in some senses take “positive control of a known and dangerous condition”—one that is dynamic, potentially dangerous, and buttressed by constitutional protections. That is what Plaintiff alleges here. See, e.g., ECF No. 9 ¶¶ 19-23 (alleging that police directed protestors and fired upon them). Neither party cites cases—let alone any cases post- Ferreira— addressing the unique facts presented here. Given Ferreira’s reasoning and the absence of case law confirming that special duty does not exist—while also recognizing the absence of case law directly on point establishing such a special duty in these circumstances—the Court concludes that the claim should proceed. While the Court cannot say with certainty that a special duty exists in the circumstances presented by Plaintiff here, the Court finds that Plaintiff’s allegations are sufficient to survive the motion to dismiss.” (NYSCEF 36 p. 13-14). While the June 30, 2022 decisions in Barnhart, Flannery, Hilderbrant, Lynch, Maring, and Sorokti were not available to the parties or the Court before Defendants’ underlying motions to dismiss were fully briefed and submitted, the CPLR gives a mechanism by which the Court can consider law decided during the pendency of a fully-briefed motion, to wit, the motion to renew pursuant to CPLR § 2221(e). Moreover, it is clear from this Court’s Decisions and Orders dismissing the negligent planning claims against the City and Sheriff Baxter that it did not consider the proffered supplemental authority. (See NYSCEF 54 and 55) However, because Judge Geraci’s decisions in 4 6 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 Barnhart, Flannery, Hilderbrant, Lynch, Maring, and Sorokti were decided after the parties briefed the motions to dismiss, it is appropriate for the Court to consider them now, in Plaintiffs’ motion to renew and reargue. Although the federal court decision are not binding on this Court, the reasoning behind the denial of the motion to dismiss the same claim, arising from the same protests, is sound and should be considered by this Court. II. Plaintiff’s motion to reargue should be granted because the Court did not consider Plaintiff’s arguments that the negligent planning claim was adequately pled under Ferreira v. City of Binghamton, 2022 NY Slip Op 01953 (Mar. 23, 2022). In dismissing the negligent planning claims, the Court simply stated that “Plaintiffs have failed to plead this Claim for Relief by failing to sufficiently allege the existence of a special duty or relationship.” (NYSCEF 54 at 5, NYSCEF 55 at 3) Plaintiffs respectfully submit that the Decisions and Orders demonstrate that the Court overlooked and/or misapprehended the arguments advanced in their opposition to the City and the County’s motions to dismiss. In the opposition papers, Plaintiffs explained that they had adequately pleaded a “special duty” under the Court of Appeals recent decision in Ferreira v. City of Binghamton, which held that where the police take positive control of a dangerous situation that they affirmatively created, the municipality owes the plaintiff a special duty. (2022 NY Slip Op 01953 at *5-6 [Mar. 23, 2022]) The Ferreira Court majority applied this method of establishing a “special duty” to the facts before it as follows: “In a no-knock warrant situation, the police exercise extraordinary governmental power to intrude upon the sanctity of the home and take temporary control of the premises and its occupants. In such circumstances, the police direct and control a known and dangerous condition, effectively taking command of the premises and temporarily detaining occupants of the targeted location. As a result, 5 7 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 the municipality's duty to the individuals in the targeted premises, a limited class of potential plaintiffs, exceeds the duty the municipality owes to the members of the general public. A special duty therefore arises when the police plan and execute a no-knock search warrant at an identified residence, running to the individuals within the targeted premises at the time the warrant is executed. In other words, in those circumstances, the police take positive control of a known and dangerous condition, creating a special duty under the third situation recognized by this Court.” (Id. at 20–21) In opposition to the County’s motion to dismiss the negligent planning claim, Plaintiffs argued: “The facts here fit squarely within the holding of Ferreira. The FAC pleads that the police affirmatively created a “dangerous situation” by negligently planning the protest response. Prior to the protests, the CITY and BAXTER developed a coordinated strategy for responding to the protests, a protest response plan where Sheriff’s Deputies were trained and instructed to police “peaceful protests” in the same manner they would police “violent mobs” and riots. (See e.g., FAC ¶¶ 3, 32, 85-88) Specifically, BAXTER and City policymakers created a dangerous situation by developing protest response plan where they armed law enforcement officers with military-grade equipment, including tear gas and pepper spray, 40 millimeter blunt-impact projectiles, pepper balls, flash-bang grenades and other supposedly “less-than-lethal” munitions. (See e.g., FAC ¶ Id. ¶¶ 24, 28-31, 42-62, 66, 72, 88). On the nights in question, Sheriff’s Deputies and RPD officers “affirmatively took control” of the “dangerous situation” they had created. For example, on September 4, 2020, Defendants allowed the protest march onto the Court Street Bridge where Plaintiffs and hundreds of other protesters were “kettled” and trapped; when they had nowhere to go, then suddenly they were attacked with chemical weapons and other “less lethal” weapons and then attacked with batons. (FAC ¶ 26, 53-59). Similarly on September 5, 2020, Defendants led the protest march to the intersection of Broad Street and Exchange Blvd., where they again kettled protesters in a confined area, before attacking them with tear gas and other chemical weapons, rushing them and physically striking them with fists and batons. Id. ¶¶ (60-62).” (NYSCEF 31 pp. 14-15). 6 8 of 9 202210201519 10/20/2022 11:24:58 PM CIVIL 202210201519 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 10/20/2022 11:22 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/20/2022 Plaintiffs respectfully submit that the FAC adequately plead a “special duty” under the “took positive control of a known and dangerous safety condition” method, as articulated in Ferreira. While this method of establishing a special duty may be novel, it was specifically endorsed by the Court of Appeals. Plaintiffs are entitled to discovery to prove this claim. Conclusion For these reasons and the reasons articulated in the underlying papers, Plaintiffs respectfully submit that the Amended Complaint adequately pleaded that the City and Sheriff Baxter owed them a special duty under the Court of Appeals decision in Ferreira, for failing to properly plan for an extremely dangerous situation, and respectfully submit that the instant motion to renew and reargue should be granted, and that the negligent planning claims, the fourth and fifth claims for relief, should be reinstated. WHEREFORE, Plaintiffs pray that this Court should enter an order granting the instant motion and reinstating the fourth and fifth claims for relief in the Amended Complaint. Dated: New York, New York October 20, 2022 ~//s//~ ELLIOT D. SHIELDS 7 9 of 9