Cheikhaoui v. City Of New York

Background

Kamal Cheikhaoui sued the City of New York, Apple, Inc., Omniscient Investigations Corp. doing business as OIC Security, Brian Plunkett, and New York City police officers. He asserted civil-rights claims under 42 U.S.C. § 1983 against the City and the officers, alleging violations of the First, Fourth, Fifth, and Fourteenth Amendments. He also asserted New York-law claims, including assault and battery, false arrest, false imprisonment, malicious prosecution, abuse of process, negligence, negligent screening and supervision, and intentional and negligent infliction of emotional distress.

Cheikhaoui alleged that on October 19, 2021, while he was at an Apple Store, Plunkett grabbed him, removed and threw down his bag, and ripped off his jacket. He further alleged that police officers used force against him, arrested him, failed to promptly remove pepper spray from him, and detained him until his arraignment. He alleged that charges of resisting arrest and trespass were dismissed on November 29, 2021. He also alleged that Plunkett and Apple or OIC Security employees made false reports to police.

Cheikhaoui moved for permission to file a second amended complaint solely to identify Police Officer Salvatore Provenzano as a defendant and assert the same claims against him as against the other officers. No defendant opposed the amendment. The court granted leave to amend and treated Apple’s and OIC Security’s and Plunkett’s pending motions to dismiss as directed at the second amended complaint.

Legal standard

Apple, OIC Security, and Plunkett moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to plausibly support a legal claim. At this stage, the court accepted well-pleaded factual allegations as true and drew reasonable inferences for Cheikhaoui.

Rulings

The court denied Apple’s and OIC Security’s motions to dismiss claims based on respondeat superior, a legal theory that can make an employer responsible for an employee’s torts committed within the scope of employment. The court found that the complaint alleged that Plunkett was working as a security guard when the conduct occurred and that the question whether he was Apple’s or OIC Security’s employee or independent contractor required factual development.

The court denied Plunkett’s motion to dismiss the assault and battery claims. It held that the allegations that Plunkett intentionally grabbed Cheikhaoui, removed his bag, and ripped his jacket, without consent or legal justification, were sufficient at the pleading stage. The court also rejected Plunkett’s argument that he was privileged to use reasonable force to remove a trespasser because the complaint alleged that Cheikhaoui was a lawful store visitor and did not establish that Plunkett had the right to use force.

The court granted the motions by Apple, OIC Security, and Plunkett to dismiss the abuse-of-process claim. The court found that the complaint alleged an intent to cover up the defendants’ alleged misconduct, but did not allege the separate, collateral objective required for an abuse-of-process claim.

The court denied those defendants’ motions to dismiss the malicious-prosecution claim. It held that the allegations that Plunkett and Apple or OIC Security employees gave false information to police were sufficient, at this stage, to support an inference that their statements contributed to the arrest and prosecution. The alleged falsification also sufficiently supported the required improper motive.

The court granted the motions to dismiss the negligence claim. It found that the complaint attributed Cheikhaoui’s injuries to intentional conduct rather than negligent acts, did not adequately allege a special duty owed by these defendants, and asserted a negligence theory duplicative of the other claims.

The court granted Apple’s and OIC Security’s motions to dismiss the negligent screening, hiring, training, supervision, and retention claim. The complaint did not adequately allege that either company knew or should have known, before the incident, that Plunkett had a tendency to engage in the conduct that allegedly caused Cheikhaoui’s injuries.

The court granted the motions to dismiss both the intentional infliction of emotional distress and negligent infliction of emotional distress claims. For the intentional claim, the court found that the alleged conduct did not meet New York’s exceptionally high standard for extreme and outrageous conduct and that the allegations of severe emotional distress were conclusory. For the negligent claim, the court found that Cheikhaoui did not adequately allege negligent conduct, a special duty, or sufficiently supported emotional harm.

Disposition

The court granted Cheikhaoui leave to amend. It granted in part and denied in part Apple’s motion to dismiss, and granted in part and denied in part OIC Security’s and Plunkett’s motions to dismiss. The opinion did not decide the claims against the City of New York or the police officers. The conclusion contains a general statement that the motion to dismiss Cheikhaoui’s claims was “GRANTED,” but the body and headings specify the claim-by-claim partial grants and denials described above.