Boyd v. The City of Buffalo et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DARRYL BOYD,
Plaintiff,
V.
THE CITY OF BUFFALO, THE COUNTY
OF ERIE, MICHAEL G. GUADAGNO,
JOHN MONTONDO, LINDA J. FIAL AS
EXECUTOR FOR THE ESTATE OF ROBERT
GRABOWSKI, MARTIN BULLOCK AS
EXECUTOR FOR THE ESTATE OF JAMES E.
HUNTER, JENNIFER FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF
ROBERT F. ARNET, JENNIFER FLANNERY
AS ADMINISTRATOR FOR THE ESTATE OF
FRANK C. DEUBELL, JENNIFER FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF LEO J.
DONOVAN, JENNIFER FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF
FRANCIS M. MANISTA, AND DAWN
M. DIRIENZO AS EXECUTOR FOR THE
ESTATE OF PAUL R. DELANO,
Defendants.
JOHN WALKER, JR.,
DECISION AND ORDER
22-cv-00519-MAV
Plaintiff,
V.
DECISION AND ORDER
22-cv-00520-MAV
THE CITY OF BUFFALO, THE COUNTY
OF ERIE, MICHAEL G. GUADAGNO,
JOHN MONTONDO, LINDA J. FIAL AS
EXECUTOR FOR THE ESTATE OF ROBERT
GRABOWSKI, MARTIN BULLOCK AS
EXECUTOR FOR THE ESTATE OF JAMES E.
HUNTER, JENNIFER FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF
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ROBERT F. ARNET, JENNIFER FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF FRANK
C. DEUBELL, JENNIFER G. FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF LEO J.
DONOVAN, JENNIFER FLANNERY AS
ADMINISTRATOR FOR THE ESTATE OF
FRANCIS M. MANISTA, AND DAWN
M. DIRIENZO AS EXECUTOR FOR THE
ESTATE OF PAUL R. DELANO,
Defendants.
INTRODUCTION
Plaintiffs Darryl Boyd and John Walker, Jr. each spent over twenty years in
prison for the 1976 murder of William Crawford. In August 2021, the New York
Supreme Court in Erie County vacated the convictions of both men. Plaintiffs then
sued the County of Erie (the "County"), the City of Buffalo, and the individual Buffalo
Police Department ("BPD") detectives involved in the investigation of Crawford's
murder (collectively, the "City Defendants"), alleging multiple violations of their civil
rights under federal law, and multiple violations of New York state law. Plaintiffs
and the City Defendants reached a settlement agreement that involved dismissal
with prejudice of all of Plaintiffs' claims against the City Defendants. Therefore, the
only remaining claims in Plaintiffs' complaints are against the County. 1
On December 13, 2024, the Court granted the County's motion for summary
judgment with respect to Count X of each Plaintiffs Amended Complaint-a state-
1 Plaintiffs previously dismissed their claims voluntarily against the individual prosecutors. ECF No.
160; see Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (describing prosecutorial immunity for
claims brought pursuant to 42 U.S.C. § 1983).
2
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law claim for negligent hiring, discipline, and supervision. ECF No. 206. 2 However,
the Court denied the County's motion for summary judgment with respect to each
Plaintiffs Count VII-a federal Monell claim seeking to hold the County liable for its
widespread policies, practices, and customs that caused the prosecutors in Plaintiffs'
cases to violate Boyd's and Walker's constitutional rights. Id. The Court issued a
written order explaining the bases for its ruling on the County's motion for summary
judgment on January 14, 2025. ECF No. 219. Beyond Plaintiffs' Monell claims against
the County, the only other pending claims in this pair of complex cases are the
County's crossclaim against the City Defendants. 3 The County's crossclaim purports
to 	raise 	indemnification 	and/or 	contribution 	against 	the 	City 	Defendants 	(the
"Crossclaim"). See ECF No. 83 at 72.
Before the Court are the County's Cross-Motion to Amend/Correct its Answer
to Plaintiffs' Amended Complaints (the "Cross-Motion to Amend"), ECF No. 208, and
2 For the sake of ease, unless otherwise noted, the ECF entries referenced by the Court are from the
Boyd docket though.they also appear on the Walker docket with slightly different numbering.
3 The County raises a single crossclaim against the City Defendants in each of Boyd's and Walker's
cases. See Boyd ECF No. 83; Walker ECF No. 82. The crossclaims are identical, and in briefing the
motions at issue in this Decision and Order, no party raised arguments that apply to only one of
Plaintiffs' cases. For purposes of this Decision and Order, the Court will refer to the County's
"Crossclaim," in the singular, but this Decision and Order applies equally to each of the County's
single, identical, crossclaims in the Boyd and Walker cases.
The City Defendants had asserted crossclaims for indemnification and contribution against
the County. The Court finds those crossclaims are moot because the City Defendants no longer face
potential liability on Plaintiffs' claims by virtue of their settlement. See ECF Nos. 204-1, 215; Getz
Photography, Inc. v. Cosms. Plus N. Y., Ltd., No. 97 CIV. 4609 (JSM), 1998 WL 345413, at *1 (S.D.N.Y.
1998); Trisura Specialty Ins. Co. v. Robinson, No. 22CV3216KAMMMH, 2023 WL 4539843, at *3
(E.D.N.Y. July 14, 2023), report and recommendation adopted, No. 22CV3216KAMMMH, 2023 WL
4940170 (E.D.N.Y. Aug. 1, 2023) ("A claim is 'derivative of another when a defendant alleges that
another is secondarily liable to it as a contributor .... The traditional 'derivative' claims are
indemnification, contribution and subrogation." (quotation omitted)).
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the City Defendants' Motion for Judgment on the Pleadings, or in the alternative for
Summary Judgment, on the County's Crossclaim (the "Rule 12(c) Motion"), ECF No.
213. For the reasons discussed below, the County's Cross-Motion to Amend is granted
in part and denied in part, and the City Defendants' Rule 12(c) Motion as to the
County's Crossclaim is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed their Amended Complaints on March 13, 2023. ECF No. 78. As
described, the only claims remaining therein are Count VII against the County. These
counts are each entitled "42 U.S.C. § 1983 and Monell Municipal Liability Against
the County of Erie for the Misconduct of Prosecutors." Id. at 66 (holding omitted).
Count VII seeks to hold the County liable for its municipal policies that are alleged
to have caused prosecutors in the Erie County District Attorney's Office ("DA's
Office") to violate Plaintiffs' constitutional rights. See Monell v. New York City Dep't
of Soc. Servs., 436 U.S. 658 (1978). The County answered on March 30, 2023, raising
twenty-seven 	affirmative 	defenses 	and 	raising its 	Crossclaim 	against 	the 	City
Defendants. ECF No. 83. The complete recitation of the Crossclaim is as follows:
Although the County is not aware of any culpable conduct on the
part of the codefendants, any injuries or damages sustained by the
Plaintiff as alleged in the Complaint, if not caused by reason of the
negligence, carelessness, illegal, reckless, and/or other culpable conduct
of the 	Plaintiff, 	were 	caused 	or 	contributed to 	by the 	negligence,
wrongful, 	carelessness 	and/or 	other 	culpable 	conduct 	of the 	[City
Defendants].
Therefore, the County will be entitled to indemnification by and
judgment against the above referenced co-defendants.
4
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Id. 	,r,r 	28-29. 	Although 	the 	language 	of 	the 	Crossclaim 	references 	only
indemnification, the County's prayer for relief in its answers seek, inter alia, a
judgment, "[a]warding contribution and/or indemnification to the County from co-
defendants." Id. at 72.
The 	City 	Defendants 	answered 	Plaintiffs' 	Amended 	Complaints 	shortly
thereafter and raised crossclaims of indemnification and contribution against the
County. 	ECF No. 	86. All but one of Plaintiffs' claims alleged in the Amended
Complaints have since been dismissed, either due to voluntary dismissal (Counts IV
and V), settlement with the City Defendants (Counts I-VI, VIII, and IX), or summary
judgment (Count X). ECF Nos. 160, 206, 210.
Upon learning, in November 2024, that Plaintiffs had reached a tentative
settlement agreement with the City Defendants, the County raised several concerns
about how such a settlement would affect its defenses against Plaintiffs' claims and
its Crossclaim. Plaintiffs had filed a stipulation of dismissal, to which the County was
not a party and to which the County, in essence, objected. ECF No. 201. After hearing
from the parties on these issues at a status conference on December 10, 2024, the
Court directed Plaintiffs to file 	a motion to dismiss its claims against the City
Defendants and set an expedited briefing schedule. See Fed. R. Civ. P. 41(a); ECF No.
203. In response to Plaintiffs' motion to dismiss, the County filed the Cross-Motion to
Amend that is presently before the Court. ECF No. 208. In it, the County argues that
it should be granted leave to amend its answers to include the following affirmative
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defenses: (1) "Set-off'; (2) "N.Y. Gen. Oblig. Law § 15-108"; (3) "Apportionment of
Liability''; and "N.Y. C.P.L.R. § 1601." Id. at 3-10.
The 	Court set another briefing schedule on the County's Cross-Motion to
Amend and, disagreeing with the County's position that its Cross-Motion must be
decided before Plaintiffs' claims against the City Defendants could be dismissed,
issued an Order granting Plaintiffs' motion to dismiss its remaining claims against
the City Defendants with prejudice. ECF Nos. 210-11. The Plaintiffs and the City
Defendants each filed briefs in response to the County's Cross-Motion to Amend. ECF
Nos. 209, 215-16. The County filed a reply on January 10, 2024. ECF No. 217.
Meanwhile, in keeping with the parties' discussion at the December 10 status
conference, the City Defendants filed a motion for judgment on the pleadings on the
County's Crossclaim against them under Rule 12(c) of the Federal Rules of Civil
Procedure, or in the alternative a motion for summary judgment under Rule 56 (the
Rule 12(c) Motion). ECF No. 213. The County filed a response on January 17, 2025,
stating that it "does not oppose the City Defendants' motion" and contending that 	1
their motion to amend maintains the "status quo" as far as liability and exposure
"initially contemplated" in its Crossclaim against the City Defendants. ECF No. 221
at 1. The City Defendants filed a reply on January 21, 2025, reiterating that the
Court's disposition of its Rule 12(c) Motion is a separate question from whether the
County should be granted leave to amend. ECF No. 222 at 3, 6.
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LEGAL STANDARDS
I. 	Motions for Judgment on the Pleadings
The City Defendants filed a motion for judgment on the pleadings or, in the
alternative, summary judgment, seeking to dismiss the Crossclaim. Rule 12(c) of the
Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed -- but
early enough not to delay trial -- a party may move for judgment on the pleadings."
Fed. R. Civ. P. 12(c). In deciding a Rule 12(c) motion, the Court applies the same
standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations
contained in the complaint (here, the Crossclaim) as true and drawing all reasonable
inferences in favor of the non-moving party. Ziemba v. Wezner, 366 F.3d 161, 163 (2d
Cir. 2004). A court analyzes whether the crossclaim has pleaded "'enough facts to state
a claim to relief that is plausible on its face."' Ruotolo v. City of New York, 514 F.3d
184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
The court must limit itself to the pleadings and matters of which judicial notice
may be taken when evaluating a motion under Rule 12(c). Kramer v. Time Warner
Inc., 937 F.2d 767, 773 (2d. Cir. 1991). It is within a district court's discretion to
convert a motion to dismiss or a motion for judgment on the pleadings to a motion for
summary judgment when the parties have presented matters outside the pleadings,
provided that the parties are given reasonable notice and an opportunity to present
pertinent material before such a motion is converted. Charles v. Cnty. of Nassau, 116
F. Supp. 3d 107, 117-18 (E.D.N.Y. 2015); see Best v. Bellevue Hosp. New York, NY, 115
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Fed. App'x. 459, 461 (2d Cir. 2004) (discussing conversion of motions pursuant to Rule
12(b)(6) and 12(c)).
II. 	Motions to Amend Pleadings
Rule 15 of the Federal Rules of Civil Procedure governs motions to amend. At
this stage of the proceedings, a party may only amend a pleading with the opposing
party's written consent or leave of court. Fed. R. Civ. P. 15(a)(2). "The court should
freely give leave when justice so requires." Id. "'[I]t is within the sound discretion of
the district court to grant or deny leave to amend."' Pall Corp. v. Enters, Inc., No.
05CV5894JFBWDW, 2007 WL 9709768, at *1 (E.D.N.Y. 2007) (quoting McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)). Absent "undue delay, bad
faith, 	or 	dilatory motive 	on the 	part 	of the 	movant, 	repeated failure 	to 	cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.-the leave
sought should, as the rules require, be 'freely given."' Id. (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)); see also McCarthy, 482 F.3d at 200 ("A district court has
discretion to deny leave for good reason, including futility, bad faith, undue delay, or
undue prejudice to the opposing party.").
Upon a motion to amend its answer, a defendant need not prove that it would
ultimately 	prevail 	at 	trial; 	however, 	amendment 	is 	futile 	where 	the 	proposed
affirmative defense could not survive on its face. See Pall Corp., 2007 WL 9709768,
at *1 (citing Godard v. Ala. Pilot, Inc., No. 06-CV-0267 (WS), 2007 U.S. Dist. LEXIS
933, at *6 (D. Ala. 2007) ("a finding of futility is, in effect, a legal conclusion that the
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proposed defense would necessarily fail"); Massie v. Bd. of Trs., Haywood Cmty. Coll.,
357 F. Supp. 2d 878, 884 (W.D.N.C. 2005) (motion to amend answer to state new
affirmative defense in FLSA case should be denied as futile only if amendment is
"clearly insufficient or frivolous on its face")); cf Posadas de Mexico, S.A. de C. V. v.
Dukes, 757 F. Supp. 297, 302 (S.D.N.Y. 1991) ("[B]ecause there is no colorable merit
to defendant['s] ... proposed affirmative defense ... , amendment of the answer to
include that defense would constitute a futile endeavor."). "[A]ffirmative defenses,
like claims, must comply with the requirement that such defense plausibly plead a
legally valid defense." New York v. Grand River Enters. Six Nations, Ltd., No. 14-CV-
910A(F), 2020 WL 13252320, at *6 (W.D.N.Y. 2020) (citing GEOMC Co., Ltd. 	v.
Calmare Therapeutics Inc., 918 F.3d 92, 98 (2d Cir. 2019) (requiring affirmative
defenses to comply with plausibility test established by Twombly and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
DISCUSSION
I. 	City Defendants' Rule 12(c) Motion as to the County's Crossclaim
The Court finds there is no need to look beyond the operative pleadings to
resolve the City Defendants' motion as to the County's Crossclaim. Therefore, the
Court analyzes said motion as a motion for judgment on the pleadings, and not as one
for summary judgment (the Rule 12(c) Motion). See Fed. R. Civ. P. 12(c).
Turning to the merits thereof, 4 the Court construes the County's Crossclaim
to, on its face, assert claims of indemnification and contribution against the City
4 The County's response states it "does not oppose the City Defendants' Motion'' to dismiss its
Crossclaim. ECF No. 221 at 1. However, the Court elects to address the merits of the City Defendants'
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Defendants. These causes of action are both considered "derivative" claims, meaning
that a defendant alleges another is secondarily liable to it for harm the defendant is
deemed to have caused the plaintiff. See Trisura Specialty Ins. Co. v. Robinson, No.
22CV3216KAMMMH, 	2023 	WL 	4539843, 	at 	*3 	(E.D.N.Y. 	2023), 	report 	and
recommendation adopted, No. 22CV3216KAMMMH, 2023 WL 4940170 (E.D.N.Y.
2023) 	("The traditional 'derivative' claims 	are indemnification, 	contribution and
subrogation." 	(quotation 	omitted)). 	Derivative 	claims 	such 	as 	contribution 	and
indemnification thus operate only on liability the pleading defendant faces. See, e.g.,
Wyatt 	v. 	City 	of Lackawanna, 	No. 	1:17-CV-446-WKS, 	2021 	WL 	848932, 	at 	*2
(W.D.N.Y. 	2021) 	("[B]ecause 	the 	Plaintiffs 	Section 	1983 	claims 	against 	the
[defendants] have been dismissed, there is no basis for liability. The cross-claims
based upon Section 1983 liability are therefore dismissed without prejudice." (citation
omitted)). Therefore, at this stage of Plaintiffs' cases, the County's Crossclaim, if
viable, would operate on the remaining potential liability that the County faces on
Plaintiffs' Monell claims (Count VII).
A United States Supreme Court decision that has come to be known simply as
"Monell" ruled that municipalities may be held liable as "persons" under 42 U.S.C. §
1983 when a plaintiff establishes that a municipal custom, policy, practice or usage
of the municipality caused their injury. Monell, 436 U.S. at 690-91; see Connick v.
Thompson, 563 U.S. 51, 60-61 (2011) (municipalities can be held liable under§ 1983
Rule 12(c) Motion. See Thakoopersaud v. Nat'l City Bank, No. 12CV3096CBAVMS, 2013 WL 12358477,
at *2 (E.D.N.Y. 2013) ("[T]he Second Circuit has held that an unopposed motion for judgment on the
pleadings should be decided on its merits." (citing McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000))).
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for "practices so persistent and widespread as to practically have the force of law");
42 U.S.C. § 1983 (providing that "person[s]" acting under the color of state law shall
be liable for depriving another of their constitutional rights). Monell, in other words,
created a means by which a municipality can be subject to liability under § 1983. See
Monell, 436 U.S. at 690-91; cf. 	Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006) ("Monell does not provide a separate cause of action for the failure by the
government to train its employees; it extends liability to a municipal organization
where that organization's failure to train, or the policies or customs that it has
sanctioned, led to an independent constitutional violation.").
To establish Monell liability, 	a plaintiff cannot merely establish that the
municipality 	employed 	a 	tortfeasor; 	the 	plaintiff 	must 	establish 	that 	the
municipality's 	own 	acts 	or 	inaction 	caused 	its 	employees 	to 	violate 	plaintiffs
constitutional rights. See Monell, 436 U.S. at 691-93 (interpreting§ 1983 to "impose □
liability on a government that, under color of some official policy, 'causes' an employee
to violate another's constitutional rights" and expressly ruling that § 1983 does not
impose respondeat superior liability).
Although there is no binding precedent on this issue, district "courts in this
Circuit have widely held that there is no right to indemnification or contribution
under Section 1983." Wyatt, 2021 WL 848932, at *2 (dismissing crossclaims seeking
"indemnity and/or contribution" and collecting cases); see, e.g., Castro v. 	Cnty. of
Nassau, 739 F. Supp. 2d 153, 184 (E.D.N.Y. 2010) ("To the extent the County seeks
indemnification and contribution on plaintiffs § 1983 claims, they cannot do so as a
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matter of law. No right to contribution exists under § 1983. Nor is there a federal
right of indemnification under the statute."). As several district courts have echoed,
"the '[p]rinciples of contribution and indemnity are not of assistance to federal civil
rights plaintiffs in pursuing their claims, and may inject issues into the litigation
which could interfere with the prompt and orderly trial of such cases. [C]ommon law
or statutory indemnity and contribution principles serve different interests than the
constitutional values sought to be vindicated in a § 1983 action."' Thomas v. City of
Troy, 293 F. Supp. 3d 282, 302 (N.D.N.Y. 2018), on reconsideration sub nom., Thomas
v. Mason, No. l:17-CV-626 (DJS), 2019 WL 6111572 (N.D.N.Y. 2019) (quoting Koch
v. Mirza, 869 F. Supp. 1031, 1041 (W.D.N.Y. 1994) (alterations in original and citation
omitted) (collecting cases)).
In addition, and as the next section contemplates further, if Plaintiffs' cases
proceed to trial and the County is found liable on Plaintiffs' Monell claims, the County
would be liable for its own actions, not those of the City Defendants. See Thomas, 293
F. Supp. 3d at 302; cf. City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988)
("Monell's rejection of respondeat superior, and its insistence that local governments
could be held liable only for the results of unconstitutional governmental 'policies,'
arose from the language and history of§ 1983."). Therefore, the County's Crossclaim
for contribution and indemnification from the City Defendants is dismissed on the
pleadings. See Fed. R. Civ. P. 12(b)(6), 12(c); Ziemba, 366 F.3d at 163.
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II. 	County's Cross-Motion to Amend its Answers
Because the County now faces potential liability on only Monell claims, the
Court analyzes the viability of its proposed amended affirmative defenses in the
context of 42 U.S.C. § 1983. The County seeks to assert four additional affirmative
defenses to its answers filed in March 2023, arguing that they are now needed as a
consequence of the Plaintiffs' settlement with the City Defendants at the end of 2024.
ECF No. 208-1 at 5, 10-11.
First, the County sets forth a theory of "setoff," alleging that it "is entitled to a
setoff of money damages awarded to the Plaintiff against it, if any, by the Plaintiffs
settlement agreement with the City Defendants." ECF No. 208-3 1 36; see ECF Nos.
208-1 at 5-6, 208-31128-36. Second, the County contends that N.Y. Gen. Oblig. Law
§ 15-108 applies to "confirm the County's rights to setoff' and "limit □" Plaintiffs'
damages by the amount of their settlement with the City Defendants. ECF Nos. 208-
1 at 7, 208-3 1 40. The County also contends that N.Y. C.P.L.R. § 1601 is a "natural
corollary" to its other proposed affirmative defenses 	and operates to "limit" its
liability to Plaintiffs. ECF Nos. 208-1 at 9-10, 208-3 1 42. Finally, the County seeks
to add an affirmative defense for "apportionment of liability," alleging that "[a]s a
consequence of [Plaintiffs'] Settlement Agreement, [it] is entitled to apportionment of
fault and liability, if any, between it and any other tortfeasor." ECF Nos. 208-1 at 8-
9, 208-3 1 38.
Before 	turning to 	the 	merits 	of these 	proposed 	amendments, 	the 	Court
addresses Plaintiffs' threshold position that the Court should deny leave to add these
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affirmative defenses because the County has failed to "show good cause for its delay
in moving to amend." ECF No. 216 at 5. The Court agrees, at least in part, with
Plaintiffs that 	their 	settlements with the 	City Defendants 	did 	not trigger the
availability to plead all the proposed theories 	regarding allocations 	of fault 	or
limitations damages that the County only recently sought to add. Cf. ECF Nos. 208-
1 at 10-11 (County arguing otherwise); ECF No. 221 at 1, 3-4 (County's response to
City Defendants' Rule 12(c) Motion arguing it should be granted leave to amend to
"maintain the status quo" of limiting its "exposure" as was initially contemplated by
its Crossclaim). That said, assertion of such concepts should not come as a surprise,
and it is plain from the operative Amended Complaints that parsing out the actions
and 	responsibility 	of 	the 	City 	Defendants 	and 	the 	County 	was 	thoroughly
contemplated in these actions. Moreover, while discovery did close over seven months
ago, and we are past summary judgment on Plaintiffs' claims, there was no motion
practice pertaining to any crossclaims in these cases until the instant Rule 12(c)
Motion, filed on December 20, 2024, and the pretrial orders in Plaintiffs' cases were
issued less than a week ago. ECF Nos. 213, 220.
In light of these circumstances, the Court does not find that the County's delay
in seeking amendment of its answers is "undue." Pall Corp., 2007 WL 9709768, at *1;
see Duling v. Gristede's Operating Corp., 265 F.R.D. 91, 97 (S.D.N.Y. 2010) ("[U]nder
the liberal standard of Rule 15(a), leave to amend may be appropriate at any stage of
litigation."); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1488 at 652-57 (2d ed. 1990) (noting that courts have granted
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leave to amend "following discovery; after a pretrial conference; at a hearing on a
motion to dismiss or for summary judgment; after a motion to dismiss has been
granted but before the order of dismissal has been entered; when the case is on the
trial calendar and has been set for a hearing by the district court; at the beginning,
during, and at the close of trial; after a judgment has been entered; and even on
remand following an appeal"); cf. Smith v. City of New York, 611 F. Supp. 1080, 1093
(S.D.N.Y. 1985) (where a party seeks amendments "literally on the eve of trial ... [it]
bears a heavy burden of persuasion to explain and justify the delay"). 	Notably,
Plaintiffs did not argue that they are unduly prejudiced by this late amendment. See
Pall Corp., 2007 WL 9709768, at *1; ECF No. 216.
On the merits, the Court finds that only the concept of "apportionment of fault
or responsibility" has a legally sufficient basis to warrant amendment of the County's
answers. The County's other proposed affirmative defenses, as pleaded, otherwise fail
to state colorable, legally cognizable defenses and, therefore, amendment to assert
them is futile.
The Second Circuit's opm10n in Restivo v. 	Hessemann 	directs the Court's
assessment of the County's proposed affirmative defenses. 846 F.3d 547 (2017). One
of the several issues addressed in Restivo was the defendant's argument that the
damages he owed to plaintiffs should be set off by the amount the plaintiffs received
in a settlement with a former co-defendant. See id. at 582-83. Three rulings are of
particular relevance here: (1) federal law does not provide a sufficient basis on which
to prescribe the "effect of a settlement on the damage award against a non-settling
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defendant in a Section 1983 case," thus necessitating review of state law, id. at 582;
(2) N.Y. Gen. Oblig. Law§ 15-108, providing "for either a pro tanto (dollar for dollar)
setoff or a setoff of the settling tortfeasor's equitable share of damages, whichever is
greater, is inconsistent with federal policy underlying Section 1983," and thus is not
a legally cognizable basis for setoff, id. at 585; and (3) federal common law establishes
that a tortfeasor's damages owed in a § 1983 action may be reduced by "a settling
tortfeasor's proportionate fault," id. at 586.
A. N.Y. Gen. Oblig. Law § 15-108
As an initial matter, Restivo is clear that N.Y. Gen. Oblig. Law § 15-108
cannot, as a matter oflaw, serve as the legal basis for reducing a defendant's damages
obligation by the amount of a settlement with a former co-defendant in a § 1983
action. 	See 	id. 	at 	584-86. 	This 	is because 	N.Y. 	Gen. 	Oblig. 	Law 	§ 15-108 is
"inconsistent with the 	deterrent 	goal of Section 1983, 	as it 	allows 	nonsettling
tortfeasors to bear less than the full cost of the harm they inflicted if settling
tortfeasors settle for more than their proportional share of liability." Id. at 586. The
Second Circuit went on to note, "[a] rule that removes the burden of damages from
the 	wrongdoer certainly conflicts with the 	policy of deterrence." 	Id. 	(quotation
omitted). Contrary to the County's arguments, this holding was made irrespective of
the particular facts of the Restivo matter and applies here as well. 5 Id. (ruling that a
pro tanto setoff of a co-defendant's settlement is inconsistent with§ 1983, and then
5 In support of its proposed amendments regarding N.Y. Gen. Oblig. Law§ 15-108 and "setoff," the
County cites district court case law predating Restivo that applied N.Y. Gen. Oblig. Law§ 15-108 in§
1983 cases. ECF Nos. 208-1 at 5-7, 211 at 5-6. Nevertheless, Restivo, a 2017 case, clarified the Second
Circuit's view on this issue and is controlling on the Court.
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turning 	to 	whether 	the 	individual 	detective-defendant 	was 	"entitled 	to 	a
proportionate reduction" of plaintiffs' damages award against him); see ECF No. 211
at 5-6 (County's reply brief). Consequently, the County's proposed amendment to add
an affirmative defense to Plaintiffs' Monell claims asserting N.Y. Gen. Oblig. Law§
15-108 is denied as futile.
B. "Setoff'' for Plaintiffs' Settlement with City Defendants
Though the County's motion papers are less precise as to what type of "setoff'
it argues it is entitled to, the County's proposed amended answers specifically allege
that its right to "setoff' is based on a purported entitlement "to a setoff of money
damages awarded to the Plaintiff against it, if any, 	by the Plaintiff's settlement
agreement with the City Defendants." ECF No. 208-3 ,r 36 (emphasis added); see ECF
Nos. 208-1 at 5-6, 208-3 ,r,r 28-36 (alleging facts limited to Plaintiffs' settlement with
City Defendants); cf. ECF No. 221 at 3 ("The County's proposed amendments merely
seek to offset its liability relative to the settlement between the City Defendants and
Plaintiffs.").
While Restivo authorizes setting off a defendant's damages owed by other
responsible parties' proportional share of fault, as analyzed further below, it clearly
holds that there is no lawful basis entitling a defendant in a § 1983 action to a dollar-
for-dollar setoff of the amount of a settling defendant's settlement agreement. See
Restivo, 846 F.3d at 582-86 (holding federal law is deficient on the topic and, as
discussed, N.Y. Gen. Oblig. Law§ 15-108 cannot, as a matter oflaw, provide the basis
for such a setoff because it is "inconsistent with the deterrent goal of Section 1983").
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The County cites no other legal basis to support its entitlement to a "setoff' for
the amount of Plaintiffs' settlement with the City Defendants, and, as pleaded, the
County only contemplates the value of each Plaintiffs $4.35 million settlement as the
amount by which a damages award should be setoff. See ECF Nos. 208-1 at 7, 208-3
,r,r 28-36 (proposed amended affirmative defense of "setoff', invoking only Plaintiffs'
settlement agreements as the 	amount for setoff); see also ECF No. 	208-3 	,r 40
(contending that N.Y. Gen. Oblig. Law § 15-108 applies to "confirm the County's
rights to setoff' and "limit" Plaintiffs' damages by the amount of their settlement with
the City Defendants). Thus, as pleaded, the County's proposed affirmative defense
for "setoff' is denied as futile.
C. Apportionment of Fault
Although a reduction of a non-settling defendant's damages owed to a plaintiff
by the amount of a co-defendant's settlement is not a legally cognizable defense to a
claim pursuant to§ 1983, the Second Circuit's decision in Restivo does support that
a defendant in a§ 1983 action should be financially responsible for its fault, and only
its fault, in causing a plaintiffs injuries.
This distinction is warranted because the amount of a settlement may not
reflect at all, let alone be necessarily tied to, the settling defendant's "fault" in causing
a plaintiffs injuries. See Restivo, 846 F.3d at 582-86 (holding N.Y. Gen. Oblig. Law§
15-108 is inconsistent with the policy behind § 1983 because "it allows nonsettling
tortfeasors to bear less than the full cost of the harm they inflicted if settling
tortfeasors settle for more than their proportional share of liability"). In an opinion
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that was repeatedly and favorably cited by the Second Circuit in Restivo, the Fifth
Circuit Court of Appeals observed:
The philosophy of settlements does not encompass, save in infrequent
cases, elements of logic or fairness. The dollar figure is not a precise
mathematically derived figure; rather it represents a melange of factors
including the parties' estimates of damages, the probability of recovery,
costs 	of 	litigation, 	and 	preferences 	of 	the 	parties 	for 	avoiding
uncertainty."
Dobson v. Camden, 705 F.2d 759, 768 (5th Cir. 1983), on reh'g, 725 F.2d 1003 (5th
Cir. 1984). Moreover, as is the case in Plaintiffs' actions here, a plaintiffs settlement
often provides that the settling defendant is not admitting to liability. 6 ECF No. 213-
2 	at 	2. 	In 	short, 	the 	amount 	of 	a 	former 	co-defendant's 	settlement 	is 	not
interchangeable with proving proportional fault for a plaintiffs damages at trial.
Contrary to Plaintiffs' arguments in response to the County's Cross-Motion to
Amend, 	Restivo reinforces that proportional fault is 	available to 	a 	non-settling
defendant in§ 1983 cases assuming the non-settling defendant satisfies its burden to
prove such at trial. Restivo, 846 F.3d at 583-87; see Red Tree Invs., LLC v. Petroleos
de Venezuela, S.A., 82 F.4th 161, 171 (2d Cir. 2023) ("The burden of proof to establish
an affirmative defense ... falls on the defendant."); Dobson, 705 F.2d at 770 ("[W]e
would have no problem in holding that the party desiring a reduction in judgment on
account of a settlement has the burden of proving its entitlement to that reduction by
showing another party shares responsibility for the injuries and submitting jury
issues on relative fault/causation.").
6 Additionally, Plaintiffs settled with the "City Defendants" as a group here, and their settlement
agreements do not specify any particular actions or omissions by any individual parties. See ECF No.
213-2 at 1-6.
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A further clarifying look at Restivo is warranted. In Restivo, two plaintiffs, who
each spent eighteen years in prison on rape and murder convictions that were later
vacated, sued a detective and a hair-evidence technician, under § 1983 and for
malicious prosecution, 	on the 	basis 	of two 	shared theories-that the 	detective
suppressed exculpatory evidence and/or that the detective, independently or with the
assistance of the technician, planted hairs found in one of the plaintiff-S cars. Restivo,
846 F.3d at 558. The jury found that only the detective was liable under§ 1983 and
for malicious prosecution. Id. A special verdict was not requested. Id. After a separate
damages trial, the jury awarded each plaintiff $18 million in damages pursuant to
the detective's liability under § 1983. Id. The detective-defendant argued on appeal
that, inter alia, the district court erred in denying his post-damages-trial request to
offset the plaintiffs' damages awards against him by the plaintiffs' pretrial settlement
with the State of New York on related state law claims. Id. at 581-82.
After holding that (1) "federal statutory law is silent on the question of the
effect of a settlement on the damage award against a non-settling defendant in a
Section 1983 case, and because federal common law is not clear on this point," and
(2) that application of N.Y. Gen. Oblig. Law § 15-108 to § 1983 actions is inconsistent
with federal policy underlying § 1983, 	the 	Second 	Circuit proceeded to 	assess
"whether the district court was correct in applying a policy of proportional reduction
based on the nonsettling party's proportionate share of liability." Id. at 586.
In Restivo, the Second Circuit reasoned- not that the concept of proportioning
f~ult amongst tortfeasors was precluded as a matter oflaw in§ 1983 cases-but that
20
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there was no practical way to reduce the detective's damages by the purported
"proportionate fault" of the State of New York in that case for two reasons relevant
to this analysis. 7 See id. at 586-87. First, the detective-defendant introduced no
evidence of the State of New York's fault, thus the jury had no occasion to determine
additional parties' relative responsibility for "plaintiffs' incarcerations." Id. Second,
"once the jury had found at the liability phase that only [the detective] was liable to
[plaintiffs] then, at the damages phase, all that the jury considered was the amount
of damages that [the detective], as an individual, owed [plaintiffs] as a result of their
eighteen-year incarceration," and "[t]here [was] no known full amount ofloss [t]here."
Id. at 583-84, 586-87.
In objecting to the County's Cross-Motion to Amend, Plaintiffs here argue that
the Second Circuit, in Restivo or otherwise, has not explicitly addressed whether
liability under § 1983 is joint and several, and they cite to district court cases from
this district, predating Restivo, and case law from the Sixth, Seventh, and Eleventh
Circuit Courts of Appeals that hold defendants are jointly and severally liable under
§ 1983 and that apportionment of damages was reversible error. ECF No. 216 at 8-9
(citing Weeks v. Chaboudy, 984 185, 188 (6th Cir. 1993); Finch v. City of Vernon, 877
F.2d 1497, 1502-03 (11th Cir. 1989); Watts v. Laurent, 774 F.2d 168, 179 (7th Cir.
1985)). Despite the holdings of these other Circuits, the Court concludes that the
Second Circuit's decision in Restivo, though falling short of explicitly mentioning
7 The third reason provided by the Second Circuit that, practically speaking, frustrated the application
of proportional fault in that case was that the State of New York is not a viable defendant in a § 1983
action. Restivo, 846 F.3d at 583.
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"joint and several liability," runs counter to the application of joint and several
liability to Plaintiffs' Monell claims.
The Second Circuit held that "a nonsettling party is entitled to a setoff only of
a 	settling tortfeasor's 	proportionate 	fault," 	noting that 	"'[e]lemental notions 	of
fairness dictate that one who causes a loss should bear the loss."' Restivo, 846 F.3d at
586 (emphasis added) (quoting Owen v. 	City of Independence, 445 U.S. 622, 654
(1980)); see also Dobson, 705 F.2d at 769 ("The fairness of a tortfeasor paying an
injured 	party 	rests 	not 	solely 	on 	the 	fact 	that 	the 	injured 	party 	deserves
compensation, but also on the fact that the tortfeasor deserves to pay."). The Second
Circuit then contemplated under what circumstances apportioning damages could
have been feasible - a moot analysis if such apportionment was barred as a matter of
law in § 1983 cases due to defendants' joint and several liability. See Restivo, 846 F.3d
at 586-87 (explaining that defendant's evidence and the jury's decisions in the
separate liability and damages trials could not, 	as a practical matter, facilitate
apportioning 	damages 	attributable 	to 	a 	settling 	co-defendant's 	fault). 	Restivo,
entitling defendants in a §1983 action to a proportional reduction in total damages
owed based on others' proven fault, is binding authority on this Court.
Moreover, the Fifth Circuit, as favorably relied upon by the Second Circuit in
Restivo, 	squarely and comprehensively addressed the 	applicability of joint and
several liability in § 1983 actions. The Fifth Circuit stated, "joint and several liability
does not mesh well with section 1983's goals of fairness and deterrence. Under both
fairness 	and 	deterrence 	theories 	we 	found 	that 	fault 	or 	causation 	should 	be
22
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apportioned 	among 	the 	parties 	and 	each 	party 	should 	be 	responsible 	for 	a
proportional share of the damages." Dobson, 705 F.2d at 767-78. The Fifth Circuit
reasoned that "[t]he key principle in deterrence is the economic idea of internalizing
the costs of an action to the party that made the decision to act .... It further follows
that each party should internalize the costs to the extent that that party caused
them," and that "[t]he fairness rationale places financial responsibility on a tortfeasor
out of a moral feeling that the tortfeasor should pay for the damage he, she, or it
caused. Accordingly, 	if a tortfeasor was only a partial cause of an injury, that
tortfeasor should pay for only a part of the damage." Id. The Court finds the reasoning	r
of Dobson persuasive and consistent with Second Circuit case law.
In sum, the Court grants the County's Cross-Motion to Amend to the extent it
seeks to add the affirmative defense of "Apportionment of Fault/Responsibility for
Plaintiffs Damages."
D. N.Y. C.P.L.R. § 1601
The Court now turns to the County's last proposed amendment. Whether N.Y.
C.P.L.R. § 1601 provides a legally cognizable basis on which to limit a defendant's
damages in a § 1983 action appears to be an issue of first impression. N.Y. C.P .L.R. § _
1601(1) provides:
Notwithstanding any other provision of law, when a verdict or decision
in an action or claim for personal injury is determined in favor of a
claimant in an action involving two or more tortfeasors jointly liable or
in a claim against the state and the liability of a defendant is found to
be fifty percent or less of the total liability assigned to all persons liable,
the liability of such defendant to the claimant for non-economic loss
shall 	not 	exceed 	that 	defendant's 	equitable 	share 	determined 	in
accordance 	with the 	relative 	culpability of each person causing or
23
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contributing 	to 	the 	total 	liability 	for 	non-economic 	loss; 	provided,
however that the culpable conduct of any person not a party to the action
shall not be considered in determining any equitable share herein if the
claimant proves that with due diligence he or she was unable to obtain
jurisdiction over such person in said action (or in a claim against the
state, in a court of this state); and further provided that the culpable
conduct of any person shall not be 	considered in determining any
equitable share herein to the extent that action against such person is
barred because the claimant has not sustained a "grave mJury" as
defined in section eleven of the workers' compensation law.
N.Y. C.P.L.R. § 1601(1).
However, Restivo provides the framework by which the Court must analyze
this issue - 	an analysis in which the County does not engage in support of its Cross-
Motion to Amend. Pursuant to 42 U.S.C. § 1988(a), which outlines jurisdiction over§
1983 claims, state law is only applicable to the extent there are gaps in federal law,
and the state law is not inconsistent with federal law. Restivo, 846 F.3d at 582; see 42
U.S.C. § 1988(a); Valley Disposal Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 113 F.3d
357, 362 (2d Cir. 1997) ("Section 1983 . . . 	provides that where there are gaps in
federal law with respect to suitable remedies for civil rights violations, the court
should look to state law insofar as it is not inconsistent with federal law.").
The County argues that N.Y. C.P.L.R. § .1601 "is a natural corollary to the
inclusion of apportionment of liability" and would provide that "[s]hould a jury
apportion less than 50% of liability to the County, the County would be required to
pay only its proportionate share of Plaintiffs' noneconomic damages." ECF No. 208-1
at 9-10 (further arguing that N.Y. C.P.L.R. § 1601 "would merely reinforce the
proportionate share rule that the Second Circuit has declared applicable in § 1983
actions"). As discussed, federal law that is controlling on this Court is clear that the
24
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County, as a defendant in a§ 1983 action, is entitled to limit total-loss damages owed
to Plaintiffs by the proportionate fault of other tortfeasors, as determined at trial.
See, e.g., Restivo, 846 F.3d at 586. Such proportioning is not limited to economic
damages. See id. Therefore, there is no basis to look to state law, and invocation of
New York state law to establish a basis for proportional fault as to non-economic
damages is not appropriate. See id. at 582; 42 U.S.C. § 1988(a); Valley Disposal Inc.,
113 F.3d at 362. Amending the County's answers to include an affirmative defense of
N.Y. C.P.L.R. § 1601 is, thus, denied as futile.
ORDER
For the foregoing reasons,
IT IS HEREBY ORDERED that the City Defendants' Rule 12(c) Motion as to
the County's Crossclaim is GRANTED [ECF No. 213]; and it is further
ORDERED that the County's Cross-Motion to Amend its Answer [ECF No.
208] 	is 	GRANTED 	to 	the 	extent 	it 	seeks 	to 	add 	the 	affirmative 	defense 	of
"Apportionment of Fault/Responsibility for Plaintiffs Damages" based upon federal
common law as discussed above, and is otherwise DENIED; and it is further
ORDERED that, given the fast-approaching trial dates, the County's Amended
Answers, 	asserting 	the 	additional 	affirmative 	defense 	of 	Appointment 	of
Fault/Responsibility for Plaintiffs Damages and removing its Crossclaim, shall be
filed and served on Plaintiffs on or before January 27, 2025; and it is further
ORDERED that the Clerk's Office shall terminate the City Defendants as
parties in these two cases, leaving the County as the only active defendant.
25
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Dated:
SO ORDERED.
January 22, 2025
Rochester, New York
26
0C4,,dJi;tJ~HON. MEREDITH A. VACCA
UNITED STATES DISTRICT JUDGE
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