shawn thomas cross claim

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X SHAWN THOMAS, ANSWER TO THE COMPLAINT WITH Plaintiff, CROSS-CLAIMS -against- 15-CV-2594 (MKB- THE CITY OF NEW YORK, POLICE OFFICER YVES (MKB)(RML) DORISME, Shield No. 12335 SERGEANT MOHAMMED KARIMZADA, Shield No.: 786, POLICE OFFICER KRZYSZTOF BOGDANOWICZ, Tax ID No.: 938080 POLICE OFFICER SOTO, COURT OFFICER ROBERT JURY TRIAL KEANE, COURT OFFICER SERGEANT KNOLLEN, DEMANDED POLICE OFFICER EFRAIN ROJAS, Shield No. 19553, and JOHN and JANE DOES 1 through 10, Individually and in their official capacities (the names John and Jane Doe being fictitious, as the true names are presently unknown), Defendants. ------------------------------------------------------------------X Defendant NEW YORK CITY POLICE OFFICER EFRAIN ROJAS by his

attorneys Worth, Longworth, and London, LLP respectfully answers Plaintiff’s

Complaint as follows:

PRELIMINARY STATEMENT

1. Deny knowledge and information sufficient to form a belief as to the allegations

contained in paragraph 1 of Plaintiff’s Complaint and refers all questions of law to the

Court.

JURISDICTION

2. Deny the knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 2 of Plaintiff’s Complaint and refers all questions

of law to the Court.

Case 1:15-cv-02594-MKB-RML Document 13 Filed 08/11/15 of 14 PageID #: 43

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contained in paragraph 3 of Plaintiff’s Complaint and refers all questions of law to the

Court.

VENUE


contained in paragraph 4 of Plaintiff’s Complaint and refer all questions of law to the

Court.

JURY DEMAND

5. Paragraph 5 is a jury demand to which a response is not required.

PARTIES


contained in paragraph 6 of Plaintiff’s Complaint.






contained in paragraph 9 of Plaintiff’s Complaint, except admit that at all relevant

times mentioned in the Complaint Defendant POLICE OFFICER EFRAIN ROJAS,

was performing his duties lawfully under the color of law and within the scope of his

employment as a New York City Police Officer.




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contained in paragraph 12 of Plaintiff’s Complaint, except admit that at all relevant

times mentioned in the Complaint Defendant POLICE OFFICER EFRAIN ROJAS,

was performing his duties lawfully under the color of law and within the scope of his

employment as a New York City Police Officer.

13. Deny the allegations contained in paragraph 13 of Plaintiff’s Complaint, except

admit that at all relevant times mentioned in the Complaint Defendant POLICE

OFFICER EFRAIN ROJAS, was performing his duties lawfully under the color of

law and within the scope of his employment as a New York City Police Officer.


admit that at all relevant times mentioned in the Complaint POLICE OFFICER

EFRAIN ROJAS, was performing his duties lawfully under the color of law and

within the scope of his employment as a New York City Police Officer.

FACTUAL ALLEGATIONS








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JANUARY 4, 2013 ARREST















JUNE 15, 2013 ARREST






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OCTOBER 25, 2013 ARREST

















FEBRUARY 15, 2014 ARREST

38. Deny the allegations contained in paragraph 38 of Plaintiff’s Complaint.


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AS FOR AN ANSWER TO THE FIRST CAUSE OF ACTION

(42 U.S.C. § 1983)

44. In response to paragraph 44 of Plaintiff’s Complaint Defendant POLICE

OFFICER EFRAIN ROJAS, repeats and reiterates each and every answer set forth in

paragraphs numbered 1 through 43 as if the same were fully set forth at length herein.













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AS FOR AN ANSWER TO THE SECOND CAUSE OF ACTION (42 U.S.C. § 1983 and Fourth and Fourteenth Amendments Against All Defendants)










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AS FOR AN ANSWER TO THE THIRD CAUSE OF ACTION (42 U.S.C. § 1983 and Fourth and Fourteenth Amendments Against Defendants Dorisme,

Karimzada (January 4, 2013 Arrest) and Rojas (February 15, 2015 Arrest) and JOHN DOES 1-10)







AS FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION (42 U.S.C. § 1983 and Fourth and Fourteenth Amendments Against Defendants Dorisme,

Karimzada (January 4, 2013 Arrest) and Rojas (February 15, 2015 Arrest) and JOHN DOES)










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AS FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION (42 U.S.C. § 1983 and Fifth and Fourteenth Amendments By Plaintiff Against All

Defendants)









AS FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION (Monell Claim against Defendant City of New York)


OFFICER EFRAIN ROJAS repeats and reiterates each and every answer set forth in



67. Deny the allegations contained in paragraph 67 of Plaintiff’s Complaint






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AS FOR A FIRST AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

72. Plaintiff’s Complaint fails to state a claim upon which relief can be granted

against Defendant POLICE OFFICER EFRAIN ROJAS.

AS FOR A SECOND AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

73. The alleged incident and damages, if any, alleged to have been sustained by the

Plaintiff on the occasion mentioned in the Complaint were wholly or in part caused

by the culpable conduct of the Plaintiff.

AS FOR A THIRD AFFIRMATIVE DEFENSE OF DEFENDANT POLICE

OFFICER EFRAIN ROJAS

74. If it is determined that Defendant POLICE OFFICER EFRAIN ROJAS was

acting under the color of law, then the actions of Defendant POLICE OFFICER

EFRAIN ROJAS, as a sworn police officer of the Defendant, CITY OF NEW YORK,

were justified and were done in good faith, in that Defendant POLICE OFFICER

EFRAIN ROJAS reasonably believed that he was exercising and acting within his

statutory and constitutional powers.

AS FOR A FOURTH AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

75. Plaintiff’s Complaint fails to set forth facts sufficient to constitute deprivation of

any constitutional rights or other basis for a civil rights claim.


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AS FOR A FIFTH AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS


acting under the color of law, then Defendant POLICE OFFICER EFRAIN ROJAS

acted reasonably and in good faith in discharging his official duties and

responsibilities, and as such Defendant POLICE OFFICER EFRAIN ROJAS is

entitled to qualified immunity.

AS FOR A SIXTH AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

77. Causes of Action alleged in the Plaintiff’s Complaint are barred by the applicable

statute of limitations.

AS FOR A SEVENTH AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

78. That any sums or consideration paid or promised to Plaintiff, by any person or

corporations claimed to be liable for injuries or damages alleged in the Complaint,

shall reduce any judgment rendered in favor of Plaintiff as against Defendant

POLICE OFFICER EFRAIN ROJAS to the extent of the greater of either the sums or

consideration paid or promised to Plaintiff or the amount of the released

tortfeasor’s(s) equitable share(s) of the damages in accordance with General

Obligations Law § 15-108, et. seq.


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AS FOR AN EIGHTH AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

79. Any award for recovery of the cost of medical care, dental care, custodial care or

rehabilitation services, loss of earnings, or other economic loss claimed by Plaintiff

shall be reduced to the extent that any such cost or expense was or will with

reasonable certainty be replaced or indemnified from any collateral source pursuant to

CPLR § 4545.

AS FOR A NINTH AFFIRMATIVE DEFENSE OF DEFENDANT POLICE OFFICER EFRAIN ROJAS

80. Upon information and belief, the injuries or damages alleged in the Complaint

were or may have been caused in whole or in part by parties now or hereafter to be

named as Co-Defendants or Third-Party Defendants and accordingly the liability of

the answering Defendant POLICE OFFICER EFRAIN ROJAS, is, or may be limited

by the provisions of Article 16 of the CPLR.

AS FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT CITY OF NEW YORK

81. If the Plaintiff was caused damages as alleged in the Plaintiff’s Complaint, due to

any culpable conduct other than Plaintiff’s own culpable conduct, then such damages

were subsequently due to the culpable conduct, negligent acts of omission or

commission of Defendant, CITY OF NEW YORK.

AS FOR A SECOND CROSS-CLAIM AGAINST DEFENDANT CITY OF NEW YORK


acting under the color of law, then all of the acts of Defendant POLICE OFFICER


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EFRAIN ROJAS were performed within the scope of his duties and within the scope

of his employment as a New York City Police Officer, and any liability to the

Plaintiff must be assumed by his employer, the Defendant, CITY OF NEW YORK,

pursuant to the principle of Respondeat Superior.

AS FOR A THIRD CROSS-CLAIM AGAINST DEFENDANT CITY OF NEW YORK

83. Pursuant to this principle of law, if the Plaintiff recovers any judgment against

Defendant POLICE OFFICER EFRAIN ROJAS, then said Defendant is entitled to

recover the amount of such judgment from Defendant, CITY OF NEW YORK.

AS FOR THE FOURTH CROSS-CLAIM AGAINST DEFENDANT CITY OF NEW YORK


acting under the color of law, then all of the actions of Defendant POLICE OFFICER

EFRAIN ROJAS were performed within the performance of his duties and within the

scope of his employment as New York City Police Officer, and any liability to

Plaintiff must be assumed by Defendant, CITY OF NEW YORK, pursuant to NYS

General Municipal Law Section 50-k.

85. Any damages sustained by the Plaintiff at the time or place mentioned in

Plaintiff’s Complaint are embraced within the provisions of NYS General Municipal

Law Section 50-k.

86. Pursuant to this provision of NYS General Municipal Law Section 50-k, if

Plaintiff recovers any judgment against Defendant POLICE OFFICER EFRAIN


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ROJAS then the answering Defendant is entitled to recover the amount of such

judgment from the Defendant, CITY OF NEW YORK.

WHEREFORE, Defendant POLICE OFFICER EFRAIN ROJAS respectfully

demands judgment against the Plaintiff as follows:

(a) Dismissing Plaintiff’s Complaint in its entirety;

(b) Over and against the Defendant, CITY OF NEW YORK for the amount of

any judgment obtained against Defendant POLICE OFFICER EFRAIN ROJAS;

(c) Granting Defendant POLICE OFFICER EFRAIN ROJAS costs,

disbursements, and expenses of the action, reasonable attorney’s fees, and

(d) Such other and further relief as this Court deems just and proper.

Dated: New York, New York

August 11, 2015 Yours, etc.,

___________/s/____________________

By: Doug LaBarbera (DL 3880) WORTH, LONGWORTH & LONDON LLP Attorneys for Defendant P.O. EFRAIN ROJAS 111 John Street - Suite 640 New York, New York 10038 (212) 964-8038

TO: VIA ECF

Edward Friedman Attorney for Plaintiff 26 Court Street – Suite 1903 Brooklyn, NY 11242 Tavish C. Deatley New York City Law Department Attorneys for Defendant City of New York 100 Church Street, New York, NY 10007


shawn thomas cross claim

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