Rossy v. City of Buffalo et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARGARITA ROSSY, as Administrator of the
Estate of Jose Hernandez-Rossy,
Plaintiff,
vs.
CITY OF BUFFALO, et al.,
Defendants.
DECISION AND ORDER
17-CV-0937 (MA V)
This matter is presently before the Court on Plaintiffs motion for
reconsideration of the dismissal of her claim for punitive damages. ECF Nos. 160,
179. For the reasons discussed below, Plaintiffs motion for reconsideration is
granted, and Plaintiffs claim for punitive damages is reinstated on her claims
regarding alleged violations of the Fourth and Fourteenth Amendments under 42
U.S.C. § 1983.
BACKGROUND
In September 2017, Plaintiff commenced this case alleging seven causes of
action against Defendants, including a claim under 42 U.S.C. § 1983 for violation of
decedent Jose Hernandez-Rossy's Fourth, Eighth, and Fourteenth Amendment
rights. ECF No. 1. Discovery extended well into 2022, and in early 2023, the parties
filed four motions for summary judgment. ECF Nos. 98, 99, 103, 107.
In September 2023, Hon. William M. Skretny issued a Decision and Order
("Rossy !') addressing Plaintiffs summary judgment motion against the "City
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Defendants,"
1
and the City Defendants' summary judgment motion against Plaintiff.
Rossy v. City of Buffalo, No. 17-CV-937S, 2023 WL 5725283 (W.D.N.Y. Sept. 5, 2023),
vacated in part, appeal dismissed in part, No. 23-7296-CV, 2025 WL 816301 (2d Cir.
Mar. 14, 2025). Judge Skretny noted that the parties' statements of material fact
presented "two materially different versions of the traffic stop and subsequent
shooting of Jose Herndandez-Rossy," and found that those differences "preclude[d]
summary judgment on Plaintiffs Fourth and Fourteenth Amendment claims
asserted in her First Cause of Action or granting qualified immunity to Officers
Tedesco and Acquino." Rossy I, 2023 WL 5725283 at *17. However, Judge Skretny
found for the City Defendants on Plaintiffs Eighth Amendment claim and all of the
other causes of action in the complaint, and dismissed those claims. Id. at *9-17.
Further, Judge Skretny ruled that Plaintiff could not recover punitive damages on
her Fourth and Fourteenth Amendment claims from the City Defendants because
Plaintiff had "not presented any evidence from which it could reasonably be concluded
that the officers' took the complained-of actions in their personal capacities," and
municipal employees sued in their official capacity are not liable for punitive
damages. Id. at *17.
The City Defendants appealed Rossy I arguing that it was improper not to
award Officers Acquino and Tedesco qualified immunity from the Fourth and
Fourteenth Amendment claim. Rossy v. City of Buffalo, No. 23-7296-CV, 2025 WL
816301, at *4 (2d Cir. Mar. 14, 2025) ("Rossy Il'). Plaintiff cross-appealed, "arguing,
1
The "City Defendants" include the City of Buffalo, Police Commissioner Daniel Derenda, and Buffalo
Police Department Police Officers Joseph Acquino and Justin Tedesco.
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among other things, that the district court improperly concluded that the complaint
failed to assert any individual capacity Section 1983 claims and erroneously applied
the qualified immunity argument to the official capacity claims rather than
individual capacity claims." Id.
In a decision issued in March 2025, the Second Circuit vacated that part of
Judge Skretny's decision which held that Plaintiff had not sued Officers Acquino and
Tedesco in their individual capacities and remanded the matter for further
proceedings. Rossy II, 2025 WL 816301 at *7. As relevant here, in a footnote in Rossy
II, the Second Circuit stated:
[B]ecause we conclude that Plaintiff also asserted individual capacity
claims, the justification provided by the district court [in Rossy 1] for
granting summary judgment in favor of the City Defendants on the
punitive damages issue is no longer applicable, as the immunity from a
claim for punitive damages afforded to municipal employees in their
official capacities "does not extend to a municipal official sued in his
individual capacity." New Windsor Volunteer Ambulance Corps., Inc. v.
Meyers, 442 F.3d 101, 122 (2d Cir. 2006). We nevertheless decline to
exercise pendent jurisdiction over this issue because the question is not
inextricably intertwined with, or necessary for, our review of the district
court's ruling on qualified immunity. Our decision not to exercise
pendent jurisdiction, however, does not preclude Plaintiff from seeking
reconsideration of the punitive damages issue in the district court based
on our ruling with respect to the individual capacity claims ....
Id. at *5 n.2.
Following the Second Circuit's ruling in Rossy II, Plaintiff filed a motion to
"hold the punitive damages issue in abeyance pending trial," which essentially asked
the district court to reconsider the ruling in Rossy I dismissing the punitive damages
claim. ECF No. 160 ,r 5. After that motion was briefed, the parties engaged in
mediation through November 2025, at which time Plaintiff requested a status
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conference to set a trial date. ECF No. 171. The matter was re-assigned to the
undersigned in December 2025, and the Court held a status conference in January
2026. ECF No. 175. A trial is set to begin on September 14, 2026. ECF No. 176.
In April 2026, Plaintiff renewed her motion for reconsideration of the dismissal
of Plaintiffs claims for punitive damages. ECF No. 179. That motion is presently
before the Court.
DISCUSSION
Plaintiff argues that the Second Circuit's decision in Rossy II established that
the decision in Rossy I regarding punitive damages was clear error. ECF No. 179-1 at
10. Therefore, Plaintiff maintains that the Court should reconsider the issue of
punitive damages, and "hold that the propriety of punitive damages is a jury
question." Id. at 12. In response, the City Defendants contend that "no evidence in
the record showed that Defendant's decision to use force in a split second after
multiple warnings was motivated by evil motive or intent." ECF No. 182 at 16
(referencing the standard set forth in Smith v. Wade, 461 U.S. 30, 56 (1999)). Thus,
the City Defendants ask the Court to deny Plaintiffs motion to reconsider. Id. at 20.
I. Motion for Reconsideration
As an initial matter, the Court finds that reconsideration of the punitive
damages issue is warranted in this case.
A. Legal Standard
The Federal Rules of Civil Procedure do not recognize a motion for
"reconsideration." See Lopez v. Goodman, No. 10-CV-6413 CJS, 2013 WL 5309747, at
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*1 (W.D.N.Y. Sept. 20, 2013) (citing Hamilton v. Williams, 147 F.3d 367, 371 n. 10
(5th Cir. 1998)). However, "'[m]otions for reconsideration may be filed under Federal
Rules of Civil Procedure 59(e), 54(b), or 60(b) .... "' Warr v. Liberatore, No. 13-CV-
6508P, 2018 WL 3237733, at *1 (W.D.N.Y. July 3, 2018) (quoting McAnaney v. Astoria
Fin. Corp., 2008 WL 222524, *3 (E.D.N.Y. 2008)). Here, because the Court's decision
on Defendant's motion to dismiss did not result in an appealable final judgment,
2
Rule 54(b) governs this motion for reconsideration.
Rule 54(b), "Judgment on Multiple Claims or Involving Multiple Parties,"
provides that:
When an action presents more than one claim for relief--whether as a
claim, counterclaim, crossclaim, or third-party claim--or when multiple
parties are involved, the court may direct entry of a final judgment as to
one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. Otherwise,
any order or other decision, however designated, that adjudicates fewer
2
The Second Circuit explained its jurisdiction over the parties' appeal:
"Ordinarily, the denial of summary judgment is not immediately appealable because
such decision is not a final judgment." ... However, under the collateral order doctrine,
"a district court's denial of a claim of qualified immunity, to the extent that it turns on
an issue oflaw, is an appealable 'final decision' within the meaning of 28 U .S.C. § 1291
notwithstanding the absence of a final judgment." ... Accordingly, "we may review a
denial of summary judgment based on qualified immunity on an interlocutory basis if
it may be resolved on stipulated facts, or on the facts that the plaintiff alleges are true,
or on the facts favorable to the plaintiff that the trial judge concluded the jury might
find." . ... However, "[i]f a factual determination is a necessary predicate to the
resolution of whether immunity is a bar, review is postponed and we dismiss the
appeal." ....
When reviewing a qualified immunity determination, we may also "exercise pendent
jurisdiction over issues that are not ordinarily subject to interlocutory review
whenever (1) they are 'inextricably intertwined' with the determination of qualified
immunity or (2) their resolution is 'necessary to ensure meaningful review' of the
district court's ruling on qualified immunity." ... . Pendent jurisdiction may be
appropriate where, for instance, there is "substantial factual overlap bearing on the
issues raised," . . . or where doing so "best serves the interests of judicial economy" . . .
Rossy II, 2025 WL 816301 at *4 (internal citations omitted).
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than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). Though this rule indicates that the district court has inherent
power to reconsider its own entries prior to the entry of a judgment adjudicating all
the claims, "[t]he Second Circuit has 'limited district courts' reconsideration of earlier
decisions ... by treating those decisions as law of the case, which gives a district court
discretion to revisit earlier rulings in the same case, subject to the caveat that where
litigants have once battled for the court's decision, they should neither be required,
nor without good reason permitted, to battle for it again."' Warr, 2018 WL 3237733,
at *2 ( quoting Official Comm. of the Unsecured Creditors of Color Title, Inc. v. Coopers
& Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)).
For these reasons, the Second Circuit has also stated that motions for
reconsideration should generally be denied '"unless there is an intervening change of
controlling law, the availability of new evidence, or the need to correct clear error or
prevent manifest injustice."' Warr, 2018 WL 3237733, at *2 (quoting Virgin Atl.
Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.), cert. denied, 506
U.S. 820 (1992)). "'These criteria are strictly construed against the moving party so
as to avoid repetitive arguments on issues that have been considered fully by the
court."' Boyde v. Osborne, 2013 WL 6662862, *1 (W.D.N.Y. 2013) (quoting Griffin
Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)).
B. The Punitive Damages Ruling in Rossy I
Here, the specific ruling at issue from Rossy I is the ruling that Plaintiff cannot
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recover punitive damages from the City Defendants because Plaintiff sued the officers
only in their official capacities, and municipal employees sued in their official
capacities are not liable for punitive damages. Rossy I, 2023 WL 5725283 at *17. In
Rossy II, the Second Circuit found that "the district court erred in concluding that
Plaintiff failed to sue Tedesco and Acquino in their individual capacities." Rossy II,
2025 WL 816301 at *5. Although the Second Circuit declined to address the punitive
damages issue because it was not "inextricably intertwined with, or necessary, for
[the Circuit Court's] review of the district court's ruling on qualified immunity," it
noted that Plaintiff was not precluded from seeking reconsideration of Rossy Is ruling
on the punitive damages issued "based on our ruling with respect to the individual
capacity claims." Rossy II, 2025 WL 816301 at *5 n.2.
The so-called "mandate rule," a branch of the law-of-the-case doctrine, "holds
'that where issues have been explicitly or implicitly decided on appeal, the district
court is obliged, on remand, to follow the decision of the appellate court."' Burrell v.
United States, 467 F.3d 160, 165 (2d Cir. 2006) (quoting United States v. Minicone,
994 F.2d 86, 89 (2d Cir.1993)). "To determine whether an issue remains open for
reconsideration on remand, the trial court should look to both the specific dictates of
the remand order as well as the broader spirit of the mandate." United States v. Ben
Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (internal citation and quotation marks omitted).
Here, although the specific dictates of the remand order do not compel a
reconsideration of Rossy Is ruling on punitive damages, the "spirit of the mandate"
nevertheless suggests that reconsideration of the punitive damages issue is
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appropriate because the Second Circuit's Rossy II decision undermined the basis for
that ruling. That is, by finding that it was error in Rossy I to find that Plaintiff did
not sue Officers Tedesco and Acquino in their individual capacities, Rossy II rendered
the justification offered in Rossy I for the ruling on punitive damages "no longer
applicable." Rossy II, 2025 WL 816301 at *5 n.2. Accordingly, this Court will
reconsider the issue of punitive damages to correct a clear error.
II. Punitive Damages
Upon reconsideration of the punitive damages claims dismissed in Rossy I, the
Court reinstates Plaintiffs request for punitive damages.
A. Legal Principles
It is well-settled that '"punitive damages are available in a 'proper' § 1983
action .... "' Smith, 461 U.S. at 35 (quoting Carlson v. Green, 446 U.S. 14, 22 (1980)).
This includes actions "against state or local officials in their individual capacity when
their actions violate Section 1983." Phelan ex rel. Phelan v. Torres, No. 04 CV3538
ERK, 2005 WL 4655382, at *15 (E.D.N.Y. Sept. 20, 2005) (citing Smith, 461 U.S. at
35). Whether or not punitive damages should be awarded is typically a question for
the jury to decide. Picciano v. McLaughlin, 723 F. Supp. 2d 491, 506 (N.D.N.Y. 2010).
"[A] a jury may be permitted to assess punitive damages in an action under
§ 1983 when the defendant's conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected
rights of others." Smith, 461 U.S. at 56. Where the plaintiff "'has provided sufficient
evidence to overcome summary judgment with respect to excessive force, the Court
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cannot state as a matter of law that the [plaintiff] is not entitled to punitive
damages."' Paul v. City of New York, No. 16-CV-1952 (VSB), 2023 WL 3724152, at
*13 (S.D.N.Y. May 30, 2023) (quoting Lazaratos v. Ruiz, 00-CV-2221, 2003 WL
22283832, at *9 (S.D.N.Y. Sept. 30, 2003), and collecting cases).
B. The Evidence in the Present Case
As noted in Rossy I, and as is evident from the briefing on the instant motion
(ECF Nos. 179-1, 182, 183) and the parties' statements of "undisputed" facts (ECF
Nos. 104, 107-2, 118-1, 120), "[r]eview of the alleged facts shows two materially
different versions of events." Rossy I, 2023 WL 5725283 at *8. For instance,
The City Defendants claim that the officers had probable cause to stop
Hernandez-Rossy, but he repeatedly refused to stop when commanded.
They also claim that Hernandez-Rossy reached for and fired a handgun
at Officer Acquino and then started to drive off with the officer hanging
from the open driver-side door. The City Defendants further contend
that Hernandez-Rossy continued to resist arrest and refuse commands
and tried to flee. The City Defendants maintain that these actions
justified the use of deadly force.
Plaintiff counters that the officers violated Buffalo Police Department
regulations in commencing and conducting the traffic stop and in
pursuing Hernandez-Rossy, and that Hernandez-Rossy did not possess
drugs or a weapon to provide probable cause for the stop.
Both sides agree that Officer Acquino's ear was injured when he was
leaning into Hernandez-Rossy's car but disagree about the cause of the
injury. If Hernandez-Rossy shot Officer Acquino-or Officer Tedesco
reasonably believed that Hernandez-Rossy did so-a reasonable jury
could conclude that Officer Tedesco had a reasonable basis to pursue
and use force upon Hernandez-Rossy as he attempted to flee. Such a
finding could result in the denial of Plaintiffs civil rights claims and the
extension of qualified immunity to the officers. The factual
disagreement as to the cause for Officer Acquino's injury, however,
precludes entry of judgment as a matter of law for either side.
Rossy I, 2023 WL 5725283 at *8-9.
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The City Defendants argue that "no evidence in the record showed that
Defendant's decision to use force in a split second after multiple warnings was
motivated by evil motive or intent .... [and] nothing from the record could be used
to infer that Defendants had any reason to harbor a personal animus toward the
Decedent." ECF No. 182 at 16. The Court disagrees. In this case, material facts
remain in dispute regarding whether the City Defendants had probable cause to stop
Hernandez-Rossy, the actual cause of the injuries to Officer Acquino, and the
reasonableness of Officer Tedesco's perception of the cause of Officer Acquino's
injuries (and therefore the reasonableness of Officer Tedesco's use of force). Rossy II,
2025 WL 816301 at *6; Rossy I, 2023 WL 5725283 at *9.
Therefore, the Court finds that -in light of the Second Circuit's decision in
Rossy II -the City Defendants are not entitled to summary judgment on the issue of
Plaintiffs entitlement to punitive damages, and that claim is reinstated. See, e.g.,
Farnsworth v. City of Geneva, 750 F. Supp. 3d 152, 170 (W.D.N.Y. 2024) (denying the
defendants' motion to strike plaintiffs request for punitive damages because the court
found the plaintiff had provided sufficient evidence to overcome summary judgment
with respect to excessive force); Lee v. Cnty. of Onondaga, No. 513CV01285BKSTWD,
2016 WL 9441472, at *10 (N.D.N.Y. Aug. 19, 2016) (declining to dismiss a claim for
punitive damages where material facts were in dispute regarding whether the
plaintiff resisted while being escorted into the booking area, and whether the officers
took him to the ground using reasonable force). As Plaintiff notes, "[i]f defendants
believe, after the trial proof has closed, that no reasonable jury could award punitive
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damages, they can make the appropriate motion at that time." ECF No. 179-1 at 15.
CONCLUSION
For the foregoing reasons, Plaintiffs motion to reconsider [ECF No. 160, 179]
is GRANTED, and Plaintiffs punitive damages claim is reinstated.
SO ORDERED.
--
Dated:
June /? , 2026
Rochester, New York
~A.~
United States District Judge
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