Williams v. Vaccaro et al
Case Number: 1:2019cv03548
Filed: April 22, 2019
Court: US District Court for the Southern District of New York
Office: Foley Square Office
Presiding Judge:
Nature of Suit: Civil Rights: Other
Cause of Action: 42 U.S.C. ยง 1983 Civil Rights Act
Jury Demanded By: Plaintiff
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Date Filed Document Text
October 5, 2023 Opinion or Order Filing 98 CALENDAR NOTICE, Please take notice that the above captioned matter has been re-scheduled for a: Pre-trial conference on Wednesday, October 11, 2023 at 11:00 A.M. before the Honorable Colleen McMahon, United States District Judge in Courtroom 24A , U. S. District Court 500 Pearl Street, New York, New York 10007. So Ordered. ( Pretrial Conference set for 10/11/2023 at 11:00 AM in Courtroom 24A, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon.) (Signed by Judge Colleen McMahon on 10/5/23) (yv)
September 13, 2023 Opinion or Order Filing 97 AMENDED CALENDAR NOTICE, Please take notice that the above captioned matter has been re-scheduled for a: Pre-trial conference on Thursday, October 5, 2023 at 10:45 A.M. before the Honorable Colleen McMahon, United States District Judge. Parties sho uld dial in at 1(888)363-4749, access code (9054506) to join the conference. So Ordered. ( Telephone Conference set for 10/5/2023 at 10:45 AM before Judge Colleen McMahon.) (Signed by Judge Colleen McMahon on 9/13/23) Copy mailed by chambers on 9/13/23. (yv)
May 31, 2023 Opinion or Order Filing 93 ORDER DENYING MOTION FOR LEAVE TO AMEND COMPLAINT TO NAME JOHN DOE DEFENDANTS AND DISMISSING WITH PREJUDICE CLAIMS AGAINST JOHN DOE DEFENDANTS; VACATING ORDER OF MAY 10, 2023, DKT. NO. 62, ONLY TO RESTORE PLAINTIFF'S CLAIM FOR MALICIOUS PROSECUT ION (COUNT SIX) AGAINST DEFENDANT MICHAEL VACCARO; AND GIVING PLAINTIFF UNTIL JULY 14, 2023, TO EFFECT SERVICE ON DEFENDANT VACCARO: Plaintiff Williams' motion for leave to file an amended complaint naming the two ESU officers who were sued as J ohn Does in the original complaint is DENIED. The claim for malicious prosecution against Officer Vaccaro is deemed restored to this case in exactly the state it enjoyed on the date when it was wrongfully dismissed - that is to say, there are 44 day s left to run on the statute of limitations, 44 days from today, May 31, 2023, is Friday, July 14, 2023. Mr. Williams must obtain a summons from the Clerk and serve Officer Vaccaro ( which he may do at the officer's current place of employment, the 3 3rd Precinct) on or prior to the close of business Friday, July 14, 2023. He must then advise the court whether he has served the officer. If he effects service by July 14, the court will schedule a new conference promptly. And as set forth herein. (Signed by Judge Colleen McMahon on 5/31/2023) Copies Mailed By Chambers. (ama)
July 26, 2022 Opinion or Order Filing 65 ORDER DISMISSING OFFICER VACCARO FROM THE ACTION WITH PREJUDICE: Accordingly, Officer Vaccaro's dismissal from this action without prejudice is hereby converted to a dismissal with prejudice. (Signed by Judge Colleen McMahon on 7/26/2022) BY ECF TO ALL COUNSEL (kv)
June 16, 2022 Opinion or Order Filing 62 DECISION AND ORDER ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AARON AND ADOPTING THE REPORT AS THE OPINION OF THE COURT for 61 Report and Recommendations. For the reasons set forth in his Report and Recommendation issued June 1, 2022 (Docket No. 61), Magistrate Judge Aaron recommends that the court dismiss the action without prejudice as to Officer Vaccaro. I have reviewed the Report and Recommendation in which the learned Magistrate Judge concludes that Plaintiff's req uest for an extension of time to service Officer Vaccaro should be denied and this action should be dismissed without prejudice as to Officer Vaccaro because Plaintiff has not made a showing of good cause for his failure to properly serve which would entitle him to such an extension. Plaintiff has not filed any objections to the Report and Recommendation. The deadline for doing so passed yesterday. Judge Aaron's analysis cannot be faulted. I agree with the Report's conclusion that the complaint should be dismissed as against Officer Vaccaro, notwithstanding the fact that the statute of limitations has run and any new lawsuit against the officer would be dismissed as time barred. Indeed, my only quarrel with Judge Aaron's deci sion is that he recommends that the complaint be dismissed without prejudice (and indeed, the order to show cause directed Mr. Williams to show why the complaint should not be dismissed "without prejudice"). I do not want Mr. Williams to be under any misapprehension; his claim against Officer Vaccaro is time barred and because I agree that it should be dismissed for failure to serve the officer, it cannot be resurrected. The effect of this order is to dismiss his claim against Officer Vaccaro with prejudice, as Judge Aaron recognized. (See Report and Recommendation at 8-9). Mr. Williams is not without a remedy. As the learned Magistrate Judge notes, he may well have a timely claim against his former lawyers for malpractice, assumi ng he sues them (in the New York State Supreme Court, since it is a state law claim in which diversity is lacking) very soon. His lawyers withdrew in November 2020, having failed to effect proper service on the Officer within three years of the occur rence of the event that precipitated this lawsuit; they did so having been advised by the City that the Officer had not in fact been served. Mr. Williams was indeed entitled to rely on his lawyers to get Officer Vaccaro served, right up until the tim e they were relieved of their representation. Serving police officers is not difficult; lawyers accomplish it all the time, so serving in the wrong way (which is what counsel did) would appear to be an error that falls below the standard of care incu mbent on a licensed professional. As Judge Aaron noted, Mr. Williams would have to prove his underlying claim against Officer Vaccaro in order to succeed on a malpractice claim. (Report and Recommendation, n. 7). But the only venue presently open to him to prove his claim against Officer Vaccaro is a lawsuit against his former counsel. He cannot sue the officer any longer. I appreciate that Mr. Williams was not asked why his claim should be dismissed with prejudice, so I will at this moment acce pt the Report's recommendation and dismiss it without prejudice. However, I direct Mr. Williams to show cause, no later than July 15, 2022, why the dismissal should not be converted to one with prejudice, on the ground that the statute of limitations has run. (Signed by Judge Colleen McMahon on 6/16/2022) BY ECF TO ALL COUNSEL (kv)
May 12, 2022 Opinion or Order Filing 57 ORDER re: 56 Letter. In this letter, Attorney Gray states that, in order to effect service upon Officer Vaccaro of the New York City Police Department ("NYPD"), Attorney Gray personally served the Summons and Complaint upon the NYPD o n August 22, 2019. (See id.) In light of the foregoing, no later than May 23, 2022, the New York City Law Department shall file a letter advising the Court whether the Law Department will be representing Officer Vaccaro in this action. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 5/12/2022) (kv)
April 11, 2022 Opinion or Order Filing 45 ORDER: Following a telephone conference with the parties today, and as stated on the record, it is hereby ORDERED, as follows: 1. No later than April 29, 2022, the City of New York shall file a letter indicating whether any body camera footage a nd any surveillance footage from a second camera exists, and, if such footage exists, the City shall produce the footage to Plaintiff promptly. If the City, by April 29, 2022, is unable to ascertain whether any such footage exists, it shall so sta te and shall indicate the earliest date by which it can provide such information to the Court. 2. No later than May 13, 2022, Plaintiff shall respond to the document requests and interrogatories served upon him. 3.A settlement conference is sched uled before Magistrate Judge Stewart Aaron on May 26, 2022, at 2:00 p.m. The settlement shall proceed by telephone unless the parties advise the Court that they have access to and prefer proceeding by alternative remote means, such as by video. Th e Court will provide dial-in information to the parties by email prior to the conference. The parties must comply with the Settlement Conference Procedures for Magistrate Judge Stewart D. Aaron, available at https://nysd.uscourts.gov/hon-stewart- d-aaron. 4. Plaintiff is advised that that there is a legal clinic in this District to assist individual parties in civil cases who do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group; it is not part of, or run by, the Court. The Clinic is open on weekdays from 10:00 a.m. to 4:00 p.m., except on days when the Court is closed. An unrepresented party can make an appointment by filling out the intake form on the Court's website, s ee https://nysd.uscourts.gov/attorney/legal-assistance, or by calling 212- 659-6190 and leaving a message. SO ORDERED. (Telephonic Settlement Conference set for 5/26/2022 at 02:00 PM before Magistrate Judge Stewart D. Aaron.) (Signed by Magistrate Judge Stewart D. Aaron on 4/11/2022) (kl)
February 10, 2022 Opinion or Order Filing 35 ORDER terminating 33 Motion for Extension of Time to File. There is no indication on the docket that there is any order in this action entered on 2-2-20, 2-2-21 or 2-2-2022 from which an appeal could be taken.. (Signed by Judge Colleen McMahon on 2/10/2022) (kv)
February 4, 2022 Opinion or Order Filing 31 ORDER: The Court is conducting a review of its docket and making inquiry into cases where there has been no recent activity. The present case appears to fall into that category. Accordingly, the parties are directed to file a letter within Seven ( 7) Days (either jointly or separately) reporting on the status of the current litigation. Failure to respond will result in the dismissal of the above-captioned case for failure to prosecute. SO ORDERED. (Signed by Judge Colleen McMahon on 2/4/2022) (kv)
October 28, 2020 Opinion or Order Filing 21 CALENDAR NOTICE: Please take notice that the above captioned matter has been scheduled for a: Telephone conference on Wednesday, November 4, 2020 at 11:30 A.M. before the Honorable Colleen McMahon, United States District Judge. Parties should dial in at 1(888)363-4749, access code (9054506) to join the conference Any scheduling difficulties must be brought to the attention of the Court in writing and faxed to Chambers at (212) 805-6326. SO ORDERED. (Telephone Conference set for 11/4/2020 at 11:30 AM before Judge Colleen McMahon.) (Signed by Judge Colleen McMahon on 10/28/2020) (jca)
May 26, 2020 Opinion or Order Filing 19 ORDER granting 18 Letter Motion to Stay: OK. (Signed by Judge Colleen McMahon on 5/26/2020) (jwh)
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