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

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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JUSTIN THOMAS,
Plaintiff,
-againstTHE 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,

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

Defendants.

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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.

3.

Deny the allegations set forth in paragraph 3 of the complaint.

4.

Deny the allegations set forth in paragraph 4 of the complaint, except

admit that plaintiff purports to proceed as stated therein.

5.

Deny the allegations set forth in paragraph 5 of the complaint, except

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

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6.

Deny the allegations set forth in paragraph 6 of the complaint, except

admit that plaintiff purports to proceed as stated therein.

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.
9.

Deny the allegations set forth in paragraph 9 of the complaint, except

admit that Viet Cao is employed by the City of New York as a sergeant.
10.

Deny the allegations set forth in paragraph 10 of the complaint, except

admit that plaintiff purports to proceed as stated therein.

11.

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

averment of fact and as such no response is required.

12.

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

of the allegations set forth in paragraph 12 of the complaint.

13.

Deny the allegations set forth in paragraph 13 of the complaint.

14.

Deny the allegations set forth in paragraph 14 of the complaint, except

admit that plaintiff was filming the exterior of the 72nd Precinct.
15.

Deny the allegations set forth in paragraph 15 of the complaint.

16.

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

of the allegations set forth in paragraph 16 of the complaint.

17.

Deny the allegations set forth in paragraph 17 of the complaint.

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18.

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

of the allegations set forth in paragraph 18 of the complaint.

19.

Deny the allegations set forth in paragraph 19 of the complaint, except

admit that Sgt. Cao placed plaintiff under arrest.

20.

Deny the allegations set forth in paragraph 20 of the complaint, except

admit that Sgt. Cao called for assistance.

21.

Deny the allegations set forth in paragraph 21 of the complaint, except

admit that plaintiff did not physically resist arrest.

22.

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

of the allegations set forth in paragraph 22 of the complaint.

23.

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

of the allegations set forth in paragraph 23 of the complaint.

24.

Deny the allegations set forth in paragraph 24 of the complaint, except

admit that plaintiff was arrested and subsequently released with a Desk Appearance Ticket.
25.

Deny the allegations set forth in paragraph 25 of the complaint.

26.

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

of the allegations set forth in paragraph 26 of the complaint

27.

Deny the allegations set forth in paragraph 27 of the complaint, except

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.
29.

Deny the allegations set forth in paragraph 29 of the complaint.

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30.

Deny the allegations set forth in paragraph 30 of the complaint.

31.

In response to the allegations set forth in paragraph 31 of the complaint,

defendants repeat and reallege the responses set forth in the preceding paragraphs of this answer
as if fully set forth herein.
32.

Deny the allegations set forth in paragraph 32 of the complaint.

33.

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

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

34.

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

of the allegations set forth in paragraph 34 of the complaint.

35.

Deny the allegations set forth in paragraph 33 of the complaint.

36.

In response to the allegations set forth in paragraph 36 of the complaint,

defendants repeat and reallege the responses set forth in the preceding paragraphs of this answer
as if fully set forth herein.
37.

Deny the allegations set forth in paragraph 37 of the complaint.

38.

Deny the allegations set forth in paragraph 38 of the complaint.

39.

Deny the allegations set forth in paragraph 39 of the complaint.

40.

Deny the allegations set forth in paragraph 40 of the complaint.

41.

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

including all subparts.

42.

Deny the allegations set forth in paragraph 42 of the complaint.

43.

Deny the allegations set forth in paragraph 43 of the complaint.

44.

Deny the allegations set forth in paragraph 44 of the complaint.

45.

Deny the allegations set forth in paragraph 45 of the complaint.

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46.

Deny the allegations set forth in paragraph 46 of the complaint.

47.

Deny the allegations set forth in paragraph 47 of the complaint.

48.

Deny the allegations set forth in paragraph 48 of the complaint.

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
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