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.
Preview
FILED: MONROE COUNTY CLERK 04/24/2023 11:07 AM INDEX NO. E2021008190
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 04/24/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3407994
Book Page CIVIL
Return To: No. Pages: 4
ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: REPLY AFFIRMATION
New York, NY 10016
Control #: 202304240472
Index #: E2021008190
Date: 04/24/2023
ADAMIDES, KATHERINE Time: 11:44:26 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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NO. E2021008190
FILED: MONROE COUNTY CLERK 04/24/2023 11:07 AM
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 04/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE
ALLMAN, ALAN BEADLE, KENNETH BRALEY, AFFIRMATION IN REPLY
JEREMY DOBNER, MATTHEW GOULD, BRIAN AND FURHTER SUPPORT OF
GRAVELLE, ARSENIY GUTNIK, DAMIAN HAMMOND, MOTION TO RENEW AND
LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN REARGUE
MOORE, HENRY O’BRIEN, PAMELA OWENS,
RASHIDA PRICE, ZACHARY ROBERTS, CORY INDEX NO.: E2021008190
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.
ELLIOT SHIELDS, an attorney duly admitted to practice law in the State of New York,
affirms the truth of the following pursuant to CPLR § 2106.
1. I am associated with Roth & Roth LLP, attorneys for Plaintiff herein and as such, I
am fully familiar with the facts and circumstances of this action based on the files maintained by
my office.
2. I submit this Affirmation in reply to the City defendants’ opposition and
in further support of the within motion to renew and reargue.
3. Notably, the County defendants have not opposed the instant motion to renew and
reargue, and have consented to reinstatement of the Negligent Planning claim against Monroe
County Sheriff Todd Baxter.
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4. In its opposition, the City claims that Justice Ark must have considered the letter
that plaintiffs submitted on July 26, 2022, which highlighted the fact that on June 30, 2022, in 11
cases in Federal Court arising from the same protests in September 2020, United States District
Judge Frank Geraci issued decisions and orders in which he denied the City and the County’s
motions to dismiss the Negligent Planning claims, finding that these claims were adequately
pleaded under the Court of Appeal’s recent holding in Ferreira v. City of Binghamton, No. 10,
2022 WL 837566 (N.Y. Mar. 22, 2022). The plaintiffs in this case assert the same negligent
planning claims in the fourth and fifth causes of action in the Amended Complaint.
5. Nowhere in Justice Ark’s August 24, 2022 orders dismissing the Negligent
Planning claims against the City and County did Justice Ark indicate that he considered plaintiff’s
letter or Judge Geraci’s decisions.
6. The City also attempts to distinguish Judge Geraci’s decision, claiming that he
found that the Negligent Planning claim was sufficiently pled under federal law, but that Justice
Ark found that it was insufficiently pled under state law. This is incorrect for two reasons.
7. First, the motion to dismiss standard in Federal Court under Iqbal v. Ashcroft,
556 U.S. 662 (2009) is much more stringent than the standard under CPLR 3211.
8. Second, the analysis under Ferreira is whether a special duty existed under the
circumstances that were pled. The opinions by Judge Geraci included a detailed factual analysis
of why the reasoning of the Court of Appeals in Ferreira was directly applicable to the
circumstances pleaded by the plaintiffs in the protest cases.
9. In contrast, Justice Ark failed to engage in any analysis of how the holding in
Ferreira applied to the facts pleaded in the amended complaint, and instead simply claimed that
“plaintiff[s] failed to assert any facts supporting a special relationship.” In doing so, Justice Ark
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ignored the detailed allegations in the amended complaint that make out a special duty under
Ferreira. (See NYSCEF 13 ¶¶ 3, 53-55, 57, 60-61, 166, 173, 185, 191, 201, 236, 248, 253)
10. In its opposition, the City argues that Ferreira “was not misapprehended or
misunderstood by Justice Ark” and instead that it was simply applied differently by him than by
Judge Geraci. However, this is pure speculation by the City, because Justice Ark’s opinion did not
mention Ferreira or provide any analysis or explanation for the holding that plaintiffs had not
properly pled a special duty.
11. For these reasons and the reasons explained in the underlying motion papers,
plaintiffs respectfully submit the motion to renew and reargue should be granted, and both the
Fourth and Fifth Claims for Relief should be reinstated.
WHEREFORE, plaintiffs respectfully requests that their motion to renew and reargue be
granted in its entirety and for such other and further relief as this Honorable Court deems just
and proper.
Dated: New York, New York
April 24, 2023
~//s//~
Elliot D. Shields
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Preview
FILED: MONROE COUNTY CLERK 04/24/2023 11:07 AM INDEX NO. E2021008190 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 04/24/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3407994 Book Page CIVIL Return To: No. Pages: 4 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Instrument: REPLY AFFIRMATION New York, NY 10016 Control #: 202304240472 Index #: E2021008190 Date: 04/24/2023 ADAMIDES, KATHERINE Time: 11:44:26 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 1 of 4 202304240472 Index # INDEX : E2021008190 NO. E2021008190 FILED: MONROE COUNTY CLERK 04/24/2023 11:07 AM NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 04/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE ALLMAN, ALAN BEADLE, KENNETH BRALEY, AFFIRMATION IN REPLY JEREMY DOBNER, MATTHEW GOULD, BRIAN AND FURHTER SUPPORT OF GRAVELLE, ARSENIY GUTNIK, DAMIAN HAMMOND, MOTION TO RENEW AND LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN REARGUE MOORE, HENRY O’BRIEN, PAMELA OWENS, RASHIDA PRICE, ZACHARY ROBERTS, CORY INDEX NO.: E2021008190 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. ELLIOT SHIELDS, an attorney duly admitted to practice law in the State of New York, affirms the truth of the following pursuant to CPLR § 2106. 1. I am associated with Roth & Roth LLP, attorneys for Plaintiff herein and as such, I am fully familiar with the facts and circumstances of this action based on the files maintained by my office. 2. I submit this Affirmation in reply to the City defendants’ opposition and in further support of the within motion to renew and reargue. 3. Notably, the County defendants have not opposed the instant motion to renew and reargue, and have consented to reinstatement of the Negligent Planning claim against Monroe County Sheriff Todd Baxter. 2 of 4 202304240472 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 04/24/2023 11:07 AM NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 04/24/2023 4. In its opposition, the City claims that Justice Ark must have considered the letter that plaintiffs submitted on July 26, 2022, which highlighted the fact that on June 30, 2022, in 11 cases in Federal Court arising from the same protests in September 2020, United States District Judge Frank Geraci issued decisions and orders in which he denied the City and the County’s motions to dismiss the Negligent Planning claims, finding that these claims were adequately pleaded under the Court of Appeal’s recent holding in Ferreira v. City of Binghamton, No. 10, 2022 WL 837566 (N.Y. Mar. 22, 2022). The plaintiffs in this case assert the same negligent planning claims in the fourth and fifth causes of action in the Amended Complaint. 5. Nowhere in Justice Ark’s August 24, 2022 orders dismissing the Negligent Planning claims against the City and County did Justice Ark indicate that he considered plaintiff’s letter or Judge Geraci’s decisions. 6. The City also attempts to distinguish Judge Geraci’s decision, claiming that he found that the Negligent Planning claim was sufficiently pled under federal law, but that Justice Ark found that it was insufficiently pled under state law. This is incorrect for two reasons. 7. First, the motion to dismiss standard in Federal Court under Iqbal v. Ashcroft, 556 U.S. 662 (2009) is much more stringent than the standard under CPLR 3211. 8. Second, the analysis under Ferreira is whether a special duty existed under the circumstances that were pled. The opinions by Judge Geraci included a detailed factual analysis of why the reasoning of the Court of Appeals in Ferreira was directly applicable to the circumstances pleaded by the plaintiffs in the protest cases. 9. In contrast, Justice Ark failed to engage in any analysis of how the holding in Ferreira applied to the facts pleaded in the amended complaint, and instead simply claimed that “plaintiff[s] failed to assert any facts supporting a special relationship.” In doing so, Justice Ark 3 of 4 202304240472 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 04/24/2023 11:07 AM NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 04/24/2023 ignored the detailed allegations in the amended complaint that make out a special duty under Ferreira. (See NYSCEF 13 ¶¶ 3, 53-55, 57, 60-61, 166, 173, 185, 191, 201, 236, 248, 253) 10. In its opposition, the City argues that Ferreira “was not misapprehended or misunderstood by Justice Ark” and instead that it was simply applied differently by him than by Judge Geraci. However, this is pure speculation by the City, because Justice Ark’s opinion did not mention Ferreira or provide any analysis or explanation for the holding that plaintiffs had not properly pled a special duty. 11. For these reasons and the reasons explained in the underlying motion papers, plaintiffs respectfully submit the motion to renew and reargue should be granted, and both the Fourth and Fifth Claims for Relief should be reinstated. WHEREFORE, plaintiffs respectfully requests that their motion to renew and reargue be granted in its entirety and for such other and further relief as this Honorable Court deems just and proper. Dated: New York, New York April 24, 2023 ~//s//~ Elliot D. Shields 4 of 4