BY ECF

J une 22, 2014

Magistrate J udge Cheryl L. Pollak
United States District Court for the E.D.N.Y
225 Cadman Plaza East
Brooklyn, New York 11201

RE: Iijima v. City of New York, et al. 13-CV-2688 (ARR) (CLP)

Dear J udge Pollak:

We represent plaintiff in the above action. This is to request a pre-motion
conference with respect to an anticipated motion to amend the complaint.

Plaintiff’s motion will argue for leave to amend the complaint to include
additional theories of liability which only became apparent following defendants’ recent
productions of documents. Plaintiff also seeks to add additional parties (all of whom are
NYPD personnel), who would bear liability under the additional theories, which are:

• Negligent Entrustment and Failure to Train, Supervise and Discipline: Plaintiff
would prove, under both state and federal law, that defendant the City of New
York (the “City”) and certain NYPD supervisory personnel behaved in a
negligent, reckless and/or deliberately indifferent manner with respect to the
entrustment of an NYPD vehicle to Defendant Darren Ilardi (“Ilardi”), and in
failing to train, supervise and discipline him in the operation of NYPD vehicles.

• Monell: Plaintiff would prove that the City had a policy, practice and/or custom
concerning the training, entrustment, supervision and discipline of Ilardi and other
NYPD police officers with respect to operation of motor vehicles, which deprived
decedent and plaintiff of constitutionally-protected rights.

• Denial of Access to the Courts: Plaintiff would prove that certain NYPD
personnel intentionally departed from standard investigative procedures and
caused the loss of critical evidence, prejudicing plaintiff’s ability to prosecute this
wrongful death action.
Case 1:13-cv-02688-ARR-CLP Document 31 Filed 06/22/14 Page 1 of 3 PageID #: 81
Hon. Cheryl L. Pollak 2 J une 22, 2014



Because the proposed modifications are warranted, the Court is respectfully
requested to grant leave, or set a briefing schedule for plaintiff’s motion to amend.
1


Standard for Granting Leave to Amend. Plaintiff meets the standard for granting
leave to amend. Rule 15(a) of the Federal Rules of Procedure governs, and states that

a “court should freely give leave when justice so requires.” Fed. R. Civ. Pro.
15(a)(2). Generally, leave to amend should be granted freely, and amendment is
typically permitted. See Foman v. Davis, 371 U.S. 178, 182 (1962). Although
the decision to grant or deny a motion to amend rests within the sound discretion
of the district court, there must be good reason to deny the motion. See Acito v.
IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). In rendering its decision,
the court should consider whether (1) the party seeking amendment unduly
delayed or acted in bad faith, (2) the amendment would be futile, or (3) the non-
moving party would suffer unfair prejudice. Foman, 371 U.S. at 182.

Hall v. N. Bellmore Union Free Sch. Dist., 08-CV-1999 (J S) (ARL), 2010 WL 1049280,
at *2 (E.D.N.Y. Mar. 18, 2010).
2


There is No Delay or Bad Faith. The requested amendments would state new
claims that become apparent only upon defendants’ production of documents, which
began in April and has continued through May of this year. Defendants provided
plaintiff with virtually no discovery prior to April 2014. Thus Plaintiff lacked a solid
basis to bring the new claims prior to defendants’ disclosures of the last two months.

As observed in Hall, courts in appropriate cases have granted leave to amend the
complaint years after the filing of the complaint — allowing the parties in those cases “to
amend their pleadings to assert new claims long after they acquired the facts necessary to
support those claims.” id. at *2. Here, plaintiff has proceeded diligently and in good
faith, following retention of new counsel and defendants’ first document disclosures in
April 2014.

The Amendments Would Not Be Futile. Plaintiff’s proposed new claims are
neither futile nor novel. As the Court itself observed in its recent order, “Ilardi’s prior
traffic accidents are potentially relevant and subject to discovery because they could
provide evidence of possible supervisory liability or municipal liability under Monell v.

1
Counsel for defendants has refused to consent to the proposed amendment of the
complaint.
2
When the plaintiff seeks to amend after a court deadline for doing so has passed, the
somewhat higher burden of showing “good cause” to amend applies. Beckett v. Village
of Freeport, No. 11-cv-02163 (E.D.N.Y. Mar. 31, 2014). No such deadline was set in this
action, but in any event, for the reasons explained there is “good cause” to grant leave.
Case 1:13-cv-02688-ARR-CLP Document 31 Filed 06/22/14 Page 2 of 3 PageID #: 82
Hon. Cheryl L. Pollak 3 J une 22, 2014


Department of Social Services, 436 U.S. 658 . . . .” (Order of April 29, 2014, DE #25).
Now that plaintiff has obtained discovery of this evidence ordered disclosed by the Court,
she can state a colorable Monell claim, as well as federal and state law claims for lack of
training, supervision, and discipline based on the same evidence.

Plaintiff also can state a federal Section 1983 claim for denial of access to the
courts, based on evidence that in the investigation of decedent’s death, NYPD personnel
made departures from standard investigative practice that suggest the concealment,
destruction, and loss of evidence. Small v. City of New York, 274 F. Supp. 2d 271, 278-
80 (E.D.N.Y 2003), addressed a similar case in which NYPD officers dispersed
witnesses, disturbed the crash scene, and took other steps to thwart the ability of a fatal
crash victim’s representative to prosecute a wrongful death claim against any NYPD
officer responsible for the crash. As in Small, here there is sufficient evidence of lost and
destroyed evidence for plaintiff to state a claim for denial of access to the courts.

The Amendments Would Not Prejudice the Defendants. There is no prejudice to
defendants in adding the proposed claims, because discovery is still in the document
phase, and no depositions have occurred. While the additional claim will require
additional document and other discovery, no unfair prejudice results to defendants.

Similarly, while Plaintiffs seek to name additional defendants, all of them are
NYPD personnel who were involved in the NYPD investigation and response to
decedent’s death. These proposed additional plaintiffs were all aware of the facts
underlying plaintiff’s claims before plaintiff learned of them during the last 90 days.
There is no unfair prejudice in joining them as parties defendant because all of the
proposed new claims relate back to the death of Ryo Oyamada.

For the above reasons, plaintiff has established that she should be granted leave to
amend, or the opportunity to formally brief the issue.

Respectfully,

/s/
Steve Vaccaro

cc: Binyomin Travis, New York City Law Department (by ECF)
Case 1:13-cv-02688-ARR-CLP Document 31 Filed 06/22/14 Page 3 of 3 PageID #: 83

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