Breitkopf v. Gentile (41 F. Supp. 3d 220, 2014)

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Paula Breitkopf (“plaintiff’), individually and on behalf of the estate of her deceased husband, Nassau County Police Department (“NCPD”) Officer Geoffrey Breitkopf (“Breitkopf’ or “decedent”), brings this action against defendants Metropolitan Transportation Authority (“MTA”) Police Officer Glenn Gentile (“Gentile”); MTA Police Officer Jose Ramos (“Ramos”); the MTA and the MTA Police Department (“MTAPD”) (collectively, the “MTA”); John Cafarella (“Cafarella”); the Estate of Anthony G. DiGeronimo (“Anthony” or the “Estate”); David DiGeronimo (“David”) and Joanne DiGeronimo (“Joanne”) (collectively, the “DiGeronimos”); and the City of New York (“NYC” or the “City”). Gentile killed Breitkopf by friendly fire on March 12, 2011, during the aftermath of an incident that resulted in Anthony’s death at his home in Massapequa Park, New York. Plaintiff brings numerous claims against defendants, including federal claims pursuant to 42 U.S.C. § 1983 for violations of Breitkopfs Fourth Amendment rights, state law negligence and intentional tort claims for personal injury and wrongful death, and state law claims for violations of New York General Municipal Law (“GML”) § 205-e.

Presently before the Court are motions for summary judgment from all defendants except the Estate. (Motion for Summary Judgment by John Cafarella (“Cafarella Motion”), Docket No. 95; Motion for Summary Judgment by David D. DiGeronimo and Joanne DiGeronimo (“Di-Geronimo Motion”), Docket No. 116; Motion for Summary Judgment by Glenn Gentile (“Gentile Motion”), Docket No. 119; Motion for Summary Judgment by Metropolitan Transportation Authority, Metropolitan Transportation Authority Police Department, Jose Ramos (“MTA & Ramos Motion”), Docket No. 139; Motion for Summary Judgment by City of New York (“NYC Motion”), Docket No. 149.) For the reasons set forth in detail below, the motions for summary judgment are granted in part and denied in part with respect to Gentile, the MTA, and Cafarella, and granted in their entirety with respect to Ramos, the City, and the DiGeronimos.

In particular, with respect to the Section 1983 claim against Gentile, the Court concludes that genuine disputes of material fact preclude summary judgment on the issue of whether Gentile’s failure to realize Breitkopf was a police officer and Gentile’s decision to use lethal force were objectively reasonable under the Fourth Amendment. Those disputes also preclude summary judgment on the Section 1983 claim against Gentile on qualified immunity grounds. For the same reasons, the state law claims for battery and wrongful death against Gentile, as well as the state law claim against the MTA under a theory of respondeat superior liability, also survive summary judgment.

With respect to the Section 1983 and state law battery and wrongful death claims against Ramos, the Court concludes that no rational jury could find that Ramos’s decision to grab Breitkopf, upon hearing retired New York City Police Department (“NYPD”) Sergeant Cafarella yell “gun” (or “drop your weapon”) as he saw Breitkopf walking past him in plainclothes and holding a rifle, was objectively unreasonable and, thus, constituted excessive force under the circumstances. In the alternative, the Court concludes that Ramos’s actions would be protected by qualified immunity.

With respect to the Section 1983 claims against the MTA and the City for failure to adequately train Gentile and Ramos, the Court concludes that such claims cannot survive summary judgment because, inter alia, there is insufficient evidence in the record to create a genuine issue of material fact on those claims. The Court also concludes that any negligence claim against the City cannot survive summary judgment.

With respect to the negligence and wrongful death claims against Cafarella, the Court concludes that there are disputed issues of material fact on the issue of whether Cafarella’s alleged involvement in the police activity (as a retired NYPD sergeant) and his decision to yell “gun” (or words to that effect) negligently caused Breitkopf s death. Thus, summary judgment on these claims against Cafarella is unwarranted. The Court similarly concludes that the Section 205-e claim against Cafarella, based upon an alleged violation of N.Y. Penal Law § 190.25(3), survives summary judgment, because there are issues of fact as to whether Cafarella was trying to induce Breitkopf and/or other police officers to act in reliance on his pretended official of approved authority, and induced Ramos and Gentile to act on that pretended authority.

With respect to the negligence claim against the DiGeronimos, the Court concludes that any alleged act or omissions by them, including as it relates to their son’s possession of knives (which precipitated the police activity), cannot form the basis of a negligence claim against them as it relates to Breitkopfs death. The DiGeronimos had no duty to prevent friendly-fire shootings among police officers at the scene after Anthony was killed, and, in any event, no rational jury could conclude, in light of the other intervening events, that the DiGeronimos’ alleged negligence involving their son proximately caused Breitkopfs death. Thus, summary judgment in favor of them on the negligence claim is warranted.

Finally, the Court also concludes that, with the exception of the above-referenced claim against Cafarella, the GML § 205-e claims cannot survive summary judgment.

I. Background

A. Factual Background

The Court takes the following facts from the parties’ affidavits, depositions, exhibits, and Rule 56.1 Statements of Fact. The Court construes the facts with respect to each motion in the light most favorable to the nonmoving party, plaintiff. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). The parties’ Rule 56.1 statements contain specific citations to the record, and the Court generally cites to the statements rather than to the underlying citations. Unless otherwise noted, where a Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any contradictory evidence in the record.

1. The Death of Anthony DiGeronimo

On March 12, 2011, the day Gentile shot Breitkopf, the DiGeronimos; their 21-year-old son, Anthony; and Anthony’s brother, Jonathan, resided at 5 Fourth Avenue in Massapequa Park, New York. (Plaintiff’s Supplementary Facts in Response to the DiGeronimos’ Rule 56.1 Statement (“PI. DiGeronimo 56.1 Suppl.”) ¶ 1.) The DiGeronimos previously owned a hobby shop in Amityville, New York, where they sold radio-controlled cars, rockets, knives, and swords, among other products. (Id. ¶ 2.) Although Anthony had worked in the store, he was unemployed in March 2011, and his parents supported him economically. (Id. 113.) Anthony, an avid video gamer who would wear costumes while playing, was interested in different religions, including Satanism. (Plaintiff’s Counterstatement of Facts in Response to the DiGeronimos’ Rule 56.1 Statement (“PI. DiGeronimo 56.1 Counter-statement”) ¶4.) He maintained a collection of knives, swords, and other weapons in his bedroom, which he kept unlocked and his mother entered almost every day. (Id. ¶¶ 5-6.) One of the knives was an Interceptor, a knuckles blade knife that Anthony generally kept in a plastic holder. (DiGeronimo 56.1 ¶ 7; see MySpace Profile Screenshot, Response in Opposition to the Motion for Summary Judgment of David D. DiGeronimo and Joanne DiGeronimo (“DiGeronimo Opp.”) Ex. E (showing Anthony holding the Interceptor).) Joanne testified that, prior to March 12, 2011, she never saw Anthony leave the house with any weapons, and she had no concerns about his interests. (PL DiGeronimo 56.1 Counterstatement ¶ 8; PL DiGeronimo 56.1 Suppl. ¶ 11.)

At around noon on March 12, the DiGeronimos were in their kitchen when Anthony entered the kitchen dressed in an outfit he often wore while playing video games, including a mask that covered his face from his nose down to his chin. (PL Di-Geronimo 56.1 Suppl. ¶ 12.) David told Anthony to take the mask off; the two then had a heated exchange, and David told Anthony to leave and come back when his attitude changed. (Id. ¶¶ 13-14.) During his first deposition, David testified that when Anthony left the house, he was carrying a thin, black-handled, seven-inch knife. (Id. ¶ 16; see also Memorandum of Interview with David DiGeronimo (“DiGeronimo Interview”), DiGeronimo Opp. Ex. D (corroborating first deposition testimony during interview on June 10, 2011).) During a later deposition, David recanted and stated: “When [Anthony] was in the kitchen before he left, I didn’t see knives at that point. When he came back to the house is when I saw the knives on him, but before he left, I didn’t see it.” (Second Deposition of David DiGeronimo (“Second D. DiGeronimo Dep.”) at 6:4-19, DiGeronimo Opp. Ex. F.) The DiGeronimos did not see Anthony again until that evening.

At approximately 8:10 p.m., NCPD Officer Paul Lewis (“Lewis”) responded to the intersection of Front Street and Fourth Avenue in Massapequa Park after a 911 caller reported seeing a male walking with knives. (Deposition of Paul Lewis (“Lewis Dep.”) at 10:3-14:12, MTA & Ramos Motion Ex. A; Nassau County District Attorney’s Office: “Investigation into the Deaths of Anthony DiGeronimo and Officer Geoffrey Breitkopf’ (“DA Report”), MTA & Ramos Motion Ex. Y; see also PI. DiGeronimo 56.1 Suppl. ¶ 18.) Lewis encountered Anthony, who was wearing a mask and clothing Lewis described as “satanic in nature,” and carrying a knife in each hand. (Lewis Dep. at 15:21-16:19; PL DiGeronimo 56.1 Suppl. ¶21.) Lewis ordered Anthony to drop the knives, and, in response, Anthony charged Lewis. (Lewis Dep. at 19:12-21:7.) Cafarella, a retired NYPD sergeant, also was present. He urged Anthony to comply with Lewis’s orders. (Lewis Dep. at 28:14-20; Deposition of John Cafarella (“Cafarella Dep.”) at 11:4-18, 34:0-35:22, 38:11-24, MTA & Ramos Motion Ex. B; see also Cafarella 56.1 ¶ 1.) Anthony, ignoring Lewis’s commands, eventually stopped charging, turned back, and started walking towards his home. (Lewis Dep. at 23:10-24:6.) Lewis radioed for an Emergency Services Unit, and Cafarella called 911 to request assistance for Lewis. (Lewis Dep. at 31:3-32:10; Cafarella Dep. at 41:8-12.) Cafarella approached the house to get the address. (Plaintiffs Supplementary Facts in Response to Cafarella’s Rule 56.1 Statement (“PL Cafarella 56.1 Suppl.”) ¶ 15.)

After Anthony reached his house and David ushered him inside, Lewis and NCPD Officer Richard McDonald entered with their guns drawn. (Pl. DiGeronimo 56.1Suppl. ¶¶ 25-27; Lewis Dep. at 36:3-39:2.) Anthony eventually emerged from his bedroom, came towards the officers with a knife held upward, and was shot and killed. (MTA & Ramos 56.1 ¶ 3; DA Report, at 6-7.) Officers then transmitted a radio broadcast of “shots fired” and requested an ambulance. (MTA & Ramos 56.1 ¶ 4.) This was quickly followed by the broadcast of a code 1087, or “slow down” order, meaning that while officers could still respond to the scene, there was no immediate urgency to do so, or need to come as fast as before. (See id. ¶ 5; Plaintiffs Counterstatement of Facts in Response to the MTA’s and Ramos’s Rule 56.1 Statement (“Pl. MTA & Ramos 56.1 Counterstatement”) ¶ 5.) NCPD officers also panned out and created a perimeter around the DiGeronimos’ house. (Pl. Di-Geronimo 56.1 Suppl. ¶ 39.)

After the whole incident, including Breitkopf s death, officers from the NCPD Crime Scene Unit responded and took photographs of Anthony’s room. (Id. ¶ 46.) Shelves contained a hatchet, mallet, swords, and several large and small knifes. (Id.) Officers recovered a knife, leather cap, and a black and gray mask on the floor near Anthony’s body. (Id. ¶47.) Among the weapons recovered were two 16-inch (with 10-inch blade) knives, a wooden-handled knife, a machete with a 17.75-inch blade, a samurai sword, a Dacor knife with a 7-inch serrated blade, a Marines saber with a 29-inch blade, and the Interceptor. (Id. ¶ 48.)

2. Gentile and Ramos Respond

The night of the shootings, MTAPD Officers Gentile and Ramos were patrolling in a marked vehicle in Massapequa. (MTA & Ramos 56.1 ¶6.) They saw an NCPD cruiser speed by with its lights and sirens activated, heard an “agitated” broadcast over their MTA-issued NCPD radio concerning an emotionally disturbed person in the area of Front Street and Fourth Avenue in Massapequa Park, and proceeded to that location. (Id. ¶ 7; Pl. MTA & Ramos 56.1 Counterstatement ¶ 7.) Upon arriving, Gentile and Ramos saw NCPD vehicles and heard the “shots fired” transmission. (MTA & Ramos 56.1 ¶ 7.) They then walked towards 5 Fourth Avenue, where five or more uniformed NCPD officers were on the front lawn, to offer assistance. (Id. ¶ 8.) According to Gentile, he entered the house, saw officers crouched over a body, and went back outside “[t]o assist in any way I could.” (Deposition of Glenn Gentile (“Gentile Dep”) at 57:13-59:28, 66:12-16, MTA & Ramos Motion Ex. H.) Ramos, who had overheard the “slow down” transmission, decided to remain on the front lawn talking to NCPD officers, and intended to leave if he was not needed. (Deposition of Jose Ramos (“Ramos Dep.”) at 52:17-54:4, 63:9-12, 65:2-21, 80:19-81:3, MTA & Ramos Motion Ex. G.)

After Anthony was shot, more uniformed officers arrived, and onlookers gathered in front. (E.g., Ramos Dep. at 55:4-17, 69:14-16; Gentile Dep. at 60:4-8; Lewis Dep. at 68:2-22; see also PI. MTA & Ramos 56.1 Counterstatement ¶ 33.) One man attempted to force his way past the NCPD officers and onto the property. (PI. MTA & Ramos 56.1 Counterstatement ¶ 34; Plaintiff’s Supplementary Facts in Response to the MTA’s and Ramos’s Rule 56.1 Statement (“PI. MTA & Ramos 56.1 Suppl.”) ¶ 34.) Cafarella blocked the path of a woman, Theresa Kelly (“Kelly”), who was exiting her car and proceeding toward the house while “ranting” that “he [Anthony] scratched my car.” (Cafarella Dep. at 58:7-60:12.) Cafarella, who had identified himself to NCPD officers as “retired from the job” (see Plaintiffs Counterstatement of Facts in Response to Cafarella Rule 56.1 Statement (“PI. Cafarella Counter-statement”) ¶ 2), told Kelly that the situation could be dangerous and to move her vehicle, and he ultimately kicked the car and yelled at her, “[G]et the f* * * out of here, do you want to get killed?” (Cafarella Dep. at 59:24-60:12; PI. MTA & Ramos 56.1 Counterstatement ¶ 36.) NCPD Officer David Hicks (“Hicks”) testified that there were “disturbances all around.” (Deposition of David Hicks (“Hicks Dep.”) at 43:16-17, MTA & Ramos Motion Ex. J.) 3. The Shooting of Geoffrey Breitkopf

NCPD Officers Breitkopf and Hector Rentas (“Rentas”) were members of NCPD’s Bureau of Special Operations (“BSO”), a tactical unit that receives SWAT training. (MTA & Ramos 56.1 ¶ 10.) On March 12, a BSO lieutenant instructed Breitkopf and Rentas to respond to a call of a man with a knife at Fourth Avenue. (Id. ¶ 11.) Breitkopf and Rentas, both in plainclothes, drove to the location in an unmarked vehicle. (Id. ¶ 12.) Rentas did not recall sending a transmission that a BSO unit was responding, nor did he recall hearing a transmission conveying that information. (Deposition of Hector Rentas (“Rentas Dep.”) at 56:4-12, MTA & Ramos Motion Ex. M.) En route, Breitkopf and Rentas heard the “shots fired” communication and the request for an ambulance, followed by the “slow down” order. (MTA & Ramos 56.1 ¶ 13.) They reduced their speed, but continued towards the location. (Id. ¶ 14.)

Breitkopf and Rentas parked on Front Street and went to the trunk to retrieve their Rock River AR15 long rifles (also known as M4 long rifles). (Id. ¶ 15.) According to Rentas, despite the “slow down” order, they “didn’t know what kind of condition the scene was” in. (Id. ¶ 15.) Inside the trunk, Breitkopf and Rentas had raid jackets with an orange NCPD patch on each shoulder and the word “POLICE” emblazoned on the front and back, but they did not put them on. (Id. ¶¶ 16-17.) The officers also left behind mesh vests with identifying markings. (Id. ¶ 18.) Rentas did not believe these were necessary under the circumstances. (Rentas Dep. at 68:7-10.) He did make sure that that his police shield was displayed visibly on a chain around his neck. (MTA & Ramos 56.1 ¶ 19.) Breitkopf, meanwhile, was wearing a burgundy maroon-colored hoodie and pants. (Rentas Dep. at 64:16-20.) Rentas did not see Breitkopfs shield when they left the car, but he “was not even looking at [Breitkopf].” (Id. at 65:21-23.) Breitkopf, with his long rifle held in front of him on a one-point shoulder sling with the muzzle pointed downward, proceeded toward the home over twenty feet away at a “brisk” pace. (Id. ¶ 20; PI. MTA & Ramos 56.1 Counter-statement ¶ 20.) Hicks saw Breitkopf cross the street and recognized him as a BSO officer, but he did not see a shield. (Hicks Dep. at 38:7-39:16, 41:18-21.) They acknowledged each other, and Hicks allowed Breitkopf to pass. (Id. at 42:22-43:13.)

Cafarella, who had remained at the scene, was looking towards the DiGeronimos’ home when, out of his peripheral vision, he saw a person — Breitkopf—carrying a rifle. (Cafarella Dep. at 71:19-72:25, 95:4-21.) The shoulder strap and large capacity magazine caught Cafarella’s attention. (MTA & Ramos 56.1 1122.) Because Cafarella did not know Breitkopf, Breitkopf was in plainclothes, and Cafarella saw nothing clearly identifying the man as a police officer, Cafarella believed that Breitkopf was a civilian carrying an assault rifle. (See id. ¶ 23; Cafarella Dep. at 109:9-110:13 (“I did not see any police uniform on this person or any identifying mark as a police officer.... I saw somebody with an assault rifle on the lawn where a crime had just been committed .... He didn’t identify himself. He didn’t have any outermost garments. I don’t know if he was going to create an imminent threat, but he did not identify himself.”).) According to Cafarella, Cafarella shouted, “Gun, this guy has got a gun.” (MTA & Ramos 56.1 1Í24.) He testified that Breitkopf did not move, turn, or exhibit any aggressive body movement towards him. (Cafarella Dep. at 98:7-15.) Further, after he said “gun,” he saw some quick movement, instinctively turned and backed away for his own safety, and then heard “some sort of scuffle” followed by a “pop.” (Id. at 99:19-100:17.) “[A] few seconds” elapsed from the point Cafarella said “gun” to the point he heard the gunshot. (Id. at 96:23-97:5.) Cafarella never saw the barrel of the gun go up, because he had looked away. (Id. at 100:18-23.) He also did not “hear anybody speaking, such as who are you, on the job, MOS, LEO”;, that is, he heard no identification from anyone, including Breitkopf. (Id. at 113:8-15.)

Ramos was on the lawn facing the front of the house and talking to two NCPD officers when he “overheard what I assumed to be a Nassau County Police Officer challenge somebody” and say “drop the weapon.” (Ramos Dep. at 77:3-15.) Ramos reached for his weapon but did not unlock the holster, and he turned to see “who was being challenged.” (Id. at 82:4-83:25.) To his left, he saw a white male in a dark shirt, without “identifying marks” and carrying “a long rifle or a long weapon.” (MTA & Ramos 56.1 ¶ 26.) According to Ramos, the stock of the weapon was at the man’s right side, in the area of his chest and shoulder, and the man’s right hand was close to the trigger. (Id. ¶ 27.) Ramos did not see exactly where the barrel was pointed:

Q. Did you see the muzzle when you first saw it?

A. I don’t recall specifically getting to see where the muzzle was.

Q. Did you have an idea knowing weapons what the direction the rifle was pointing in?

A. Yes.

Q. Which direction was it pointing in? A. It was pointing in towards his lower left quadrant.

Q. Was it pointing towards his foot, his pelvis, his ribs, or something else?

A. It was pointing downward. I don’t know what the specific direction it was. I didn’t get the time to do that.

(Ramos Dep. at 86:7-21.)

Ramos did not hear any warning other than “drop your weapon.” (Id. at 87:23-88:2.) When he turned towards the direction of the command, he testified that he saw NCPD officers about three to four feet away “go for [the man], you know, try to interact, physically interact with him, and I grabbed him with my left hand.” (Id. at 88:11-25.) Ramos grabbed Breitkopfs right shoulder and grasped for the rifle in an “attempt to stop [what Ramos perceived as] the threat.” (MTA & Ramos 56.1 ¶ 28.) He recalled “seeing the Nassau County Officers grab him at the same time, and we were attempting to subdue what I assumed was a threat.” (Ramos Dep. at 104:14-17, 108:22-109:14 (testifying that when he had his hands on Breitkopf, the NCPD officers’ hands were on Breitkopf, too).) Ramos gave no warning to Breitkopf. (See PI. MTÁ & Ramos 56.1 Counterstatement ¶28.) He also did not know exactly where Breitkopf s gun was pointed. (See Ramos Dep. at 108:13-21, 112:5-9 (“It [the barrel] was in a downward position, but we were also struggling, so I don’t know where the barrel was going at the particular time.... [Breitkopf] could have shot any particular direction.”).) Ramos did not believe, however, that Breitkopf could have shot him during the “struggle.” (Id. at 111:10-24.) Within little more than a second after he grabbed Breitkopf, Ramos heard a gunshot. (Id. at 104:18-105:3.)

Gentile recalled that, while he was on the front lawn facing the house, police officers and civilians were “all over.” (MTA & Ramos 56.1 ¶ 30.) He stated that he saw a “look of alarm” on the faces of two NCPD officers about ten to fifteen feet to his left, and simultaneously heard someone shouting “something about a gun or a weapon.” (Id. ¶ 31.) According to Gentile, he turned to the left and saw “a dark figure walking at a brisk pace from my left rear,” two Nassau cops “perk” up, and “a uniformed arm grab the shoulder of the figure.” (Id. ¶ 32; Gentile Dep. at 104:5-23.) He had not seen the man before. (Gentile Dep. at 110:3-4 (“My first glimpse of him was him being spun around.”).) Gentile testified: “I saw the figure kind of shrug off the attempt to grab him. Then I saw the two Nassau cops go for his other side. They made contact with him and there was a brief struggle between the figure, the two Nassau cops on one side, the other uniformed arm that I saw grabbing him on the other side____” (Id. at 105:13-19; see id. at 106:19-21 (recalling that NCPD officers made contact with Breitkopf).) Gentile remembers seeing the NCPD officers “make contact with” Breitkopfs body. (Id. at 106:19-21.) According to Gentile, “[D]uring the struggle, I saw a rifle slung across the front of [Breitkopfs] chest, and during the struggle, I saw the rifle start coming up.” (Gentile Dep. at 111:22-25, 115:2-9.) About one second later, Gentile, who was about five to ten feet away, fired one fatal shot at Breitkopf. (MTA & Ramos 56.1 ¶ 35; Gentile Dep. at 110:7-9 (stating that he heard a shot go off about one second after he saw Breitkopf spin around); 118:16-18.) Gentile has no “conscious memory” of having fired the fatal shot. (Gentile Dep. at 110:10-22, 119:5-22.) There is no evidence that Gentile saw any shield on Breitkopf. Gentile also did not issue any commands to Breitkopf. (Id. at 115:12-13.)

NCPD Officer Keith - Jaklitsch (“Jaklitsch”) testified that, after Anthony was shot, officers continued showing up and everything was “settled.” (Deposition of Keith Jaklitsch (“Jaklitsch Dep.”) at 42:13-14, 43:8-19, MTA & Ramos Motion Ex. K.) Then, while walking along the curb in front of the house, Jaklitsch heard someone say “gun,” and he turned back towards the house. (Id. at 47:24-48:8.) It was dark out, but Jaklitsch saw Breitkopf in' front of him, and there was one officer to Breitkopfs right and another “kind of off tq his left.” (Id. at 105:17-21, 48:10-13.) Jaklitsch did not see any other officers within arm’s distance of the three individuals. (Id. at 49:2-6.) Then, immediately upon turning, he saw the officer on the right shoot Breitkopf. (Id. at 49:11-19.)

Immediately before the gunshot, NCPD Officer Robert Kiesel (“Kiesel”) heard a “commotion” that “sounded like someone was trying to get past where the officers were on the lawn and they were trying to stop that person from coming through.” (Deposition of Robert Kiesel (“Kiesel Dep.”) at 36:20-37:14, MTA & Ramos Motion Ex. N.) Kiesel thought he heard someone say “stop” and “gun” or “he has got a gun.” (Id. at 54:4-16.) Hicks testified that, after hearing “gun,” he turned around, saw the downward barrel pointing near Breitkopfs leg, and then kept looking to see what was going on. (Hicks Dep. at 44:4-46:4.) After hearing the gunshot, Hicks saw two or three officers go down to the ground with Breitkopf. (Hicks Dep. at 48:12-24.) Rentas testified that, after the gunshot, the officers were “trying to take control of [Breitkopf],” and “[t]hey brought him down face first.” (Rentas Dep. at 92:2-21.) According to Cafarella, after Breitkopf went down, Cafarella “leaned over, stretched out, the magazine had come off the shoulder, I grabbed it and dragged it out.” (Cafarella Dep. at 102:6-12; see also Jaklitsch Dep. at 50:19-51:3 (testifying that, after Breitkopf fell, Cafarella ran over, grabbed the rifle, and pulled the strap off Breitkopf).) Jaklitsch grabbed Cafarella by the neck and asked him what he'was doing, and told Kiesel to keep Cafarella nearby. (Jaklitsch Dep. at 51:3-14.) NCPD Officer Thomas Lively (“Lively”) was attempting to handcuff Breitkopf on the ground when Rentas ran over and displayed his shield, and Lively then realized he knew Breitkopf. (Deposition of Thomas Lively (“Lively Dep.”) at 47-49, MTA & Ramos Motion Ex. P; Rentas Dep. at 75:7-76:20.) The officers then began trying to save Breitkopfs life. (Jaklitsch Dep. at 51:14-17.)

Less than ten minutes elapsed between the first police contact with Anthony Di-Geronimo and Breitkopf being shot. (PL Cafarella 56.1 Suppl. ¶ 59.) On February 28, 2012, the Nassau County District Attorney’s Office issued a report on Anthony’s and Breitkopfs deaths, and, based on the totality of the circumstances, declined to bring criminal charges against Gentile for killing Breitkopf. (See generally DA Report.)

4. MTA Police Officer Training

a. NYPD Academy Training

i. 2004 and 2006 Training Program

Pursuant to a contractual agreement with the City, MTAPD recruits attend a six-month program at the NYPD Academy, which provides classroom and tactical training identical to that provided to NYPD recruits. (MTA & Ramos 56.1 ¶ 37; NYC 56.1 ¶ 6.) Recruits receive three months of academic training and three months of hands-on training, and the program covers approximately forty different subjects. (NYC 56.1 ¶¶ 3, 9.) Ramos completed the program in 2004, and Gentile completed it in 2006. (MTA & Ramos 56.1 ¶ 38.)

Recruits are instructed to review the NYPD Police Student’s Guide, which addresses the use of force, including the “escalating scale of force” and the circumstances in which using deadly physical force is appropriate. (NYC 56.1 ¶ 13; Police Student’s Guide: 2004 Use of Force Chapter, NYC Motion Ex. F; Police Student’s Guide: 2006 Use of Force Chapter, NYC Motion Ex. G; MTA & Ramos 56.1 ¶ 39.) The NYPD’s standard for use of force is more restrictive than the penal law standard. (NYC 56.1 ¶ 14.) Recruits are taught (1) to use firearms as a last resort, and to use only the minimal amount of force necessary in all cases; (2) to use deadly force only if there is no other way to protect the officer or another person against imminent death or serious physical injury; and (3) where feasible and consistent with personal safety, to give some warning before shooting. (Id. ¶ 16.) Recruits also learn that the standard challenge in armed confrontations is: “Police! Don’t move!” (Id. ¶ 17.) The subject matter is covered in classes and includes audiovisual presentations and role play scenarios. (MTA & Ramos ¶ 40.) According to NYPD Sergeant Aaron Lai, there may be “impromptu” role plays, where they “create a scenario and just try to use some of the guidelines, to reenact some of the guidelines to see, and then we have a discussion as to what if the recruit were to fire and was that appropriate or not based on the guidelines.” (Deposition of Aaron Lai (“Lai Dep.”) at 74:18-75:4, MTA & Ramos Motion Ex, T.) Recruits also receive “judgmental firearms training via the firearms training simulator,” a computer-based program that requires the recruit to exercise her “understanding of the use of force guidelines, and escalating scale of force,” in various scenarios. (MTA & Ramos 56.1 ¶ 43.)

The firearms tactical training includes close combat training, cover and concealment, a simulator workshop, identification of plainclothes officers in confrontation situations, and a full day in a tactical house and village with simulations. (NYC 56.1 ¶ 36.) For one day during the tactical firearms training, recruits are lectured on confrontation situations, including how “to safely resolve confrontation[s] between members of service both on and off duty.” (MTA & Ramos 56.1 ¶¶ 41^42; see also NYC Motion ¶¶20, 21; Plaintiffs Supplementary Facts in Response to NYC’s Rule 56.1 Statement (“PI. NYC 56.1 Suppl.”) ¶ 3.) One of the fourteen lectures is about identifying members of the service in civilian clothes. (PI. MTA & Ramos Counter-statement ¶42.) Recruits are instructed that the “challenging officer” — the uniformed officer who comes upon the scene and observes an unidentified person— should (1) take cover to the rear of the “confronted officer” — the officer in plainclothes who may be armed and may be taking police action — if possible; (2) issue the standard challenge of “Police! Don’t move!”; (3) request that the confronted officer give the exact location of his or her identification and produce that identification slowly; and (4) examine the confronted officer’s identification to ensure that it is valid. (NYC 56.1 ¶ 23.) The confronted officer is instructed to (1) remain motionless, even if it means that a fleeing suspect escapes; (2) obey all directions from the challenging officer; (3) inform the challenging officer of the location of identification before moving; and (4) produce the identification slowly, in a controlled manner, without unnecessary movement. (Id. ¶ 24.) Recruits are instructed to follow the confrontation procedure in incidents involving potential officers from any law enforcement agency. (Id. ¶ 25.) The material taught in lectures is reinforced in scenario training in the tactics house and tactics village. (MTA & Ramos 56.1 ¶ 42.)

Ramos and Gentile completed the firearms and tactical training. (Id. ¶ 62-68.)

ii. 2008 RAND Evaluation

In 2007, then-NYPD Commissioner Raymond Kelly charged the RAND Corporation (“RAND”) to undertake a comprehensive review of the NYPD’s firearms training. (PI. NYC 56.1 Suppl. ¶ 9; see Evaluation of the New York City Police Department Firearm Training and Firearm-Discharge Review Process (“RAND Report”), NYC Opp. Ex. W.) With respect to confrontation training, role-playing workshops, and simulations, RAND found that “[t]he NYPD engages in a substantial amount of complex-skill training using role-playing exercises,” but concluded, inter alia, that “recruit training could be significantly improved by increasing the quality, number, and use of scenario-based training events that each recruit experiences.” (RAND Report, at 31.) RAND noted that the NYPD’s “failure to ensure that students have internalized the right way to approach situations by providing sufficient opportunities to practice what they have been taught may create an inappropriate response on the street and is a shortcoming in the NYPD recruit-training program.” (Id. at xvii.) RAND also noted that, during the “complex-skill training events,” instructors did not respond to recruit error by demonstrating the correct behavior themselves. (Id. at 27.)

RAND issued several recommendations to improve the training. (E.g., id. at xviii-xix.) The MTA was unaware of the report and its recommendations before Breitkopfs death. (See PI. NYC 56.1 Suppl. ¶ 17.)

iii. New York State Task Force on Police-on-Police Shootings

In 2010, a task force empaneled by then-New York State Governor David Paterson examined issues and implications arising from police-on-police shootings, including confrontations with plainclothes officers. (Reducing Inherent Danger: Report of the Task Force on Poliee-on-Police Shootings (“Task Force Report”), NYC Opp. Ex. Z.) Governor Paterson empaneled the Task Force after the shooting deaths of two off-duty Black police officers in the state in 2008 and 2009. (Id. at 1.) According to the report, there were twenty-six fatal police-on-police, mistaken-identity shootings from 1971 to 2009. (Id. at ii.) From 2006 to 2010, there were three fatal mistaken-identity poliee-on-police shootings in New York. (NYC’s Counterstatement in Response to Plaintiffs Supplementary Rule 56.1 Statement (“NYC 56.1 Suppl. Opp.”) ¶ 22.) None of these, however, involved the MTA.

The Task Force issued a series of recommendations to help prevent police-on-police shootings, including (1) developing state and national protocols for police-on-police confrontations, such as a suggestion that confronted officers do not move or reflexively spin and instead identify themselves loudly while using specific language, a suggestion that challenging officers not stereotype and clearly shout and identify themselves, and a suggestion that the challenging officer broaden her focus from the gun to assess the situation; (2) increasing the use of simulations and roleplaying; and (3) developing testing and training to reduce unconscious racial bias. (Task Force Report, at 54-67.)

b. MTAPD In-Service Training

After MTAPD officers graduate from the Academy, the MTA conducts an orientation regarding the policing of railroad facilities, and three months of field training in the MTA’s geographical regions. (MTA & Ramos 56.1 ¶44.) Police-on-police confrontations are discussed (id. ¶ 45), but the MTA conducted no related field or in-service scenario training before March 2011 (PL MTA & Ramos Counterstatement ¶ 45).

All officers receive the MTAPD manual, which details a “use of force” policy. (MTA & Ramos 56.1 ¶ 46.) The policy instructs officers that “[t]he primary duty of Members is to preserve human life,” explains the “use of force continuum,” and admonishes that deadly physical force may be used only to “protect the Member or others from what is reasonably believed to be a threat of imminent death or serious physical injury.” (Id. ¶ 47.) It provides that, “[w]here feasible, and consistent with personal safety,” the officer should identify herself as an officer and “give some warning prior to discharging a firearm in a deadly physical force situation.” (MTAPD Manual, MTA & Ramos Motion Ex. AA, at 0169.)

The manual also contains a policy on “plainclothes police encounters,” which establishes “guidelines to assist Members in safely resolving confrontations between law enforcement personnel both on and off duty where a police officer’s identity is not clear.” (MTA & Ramos 56.1 ¶ 48.) The policy delineates the responsibilities of the challenging and confronted officers in a police-on-police encounter, emphasizing that “[i]n any confrontation, the burden of proving identity rests on the confronted officer, whether on or off-duty; however, the challenging officer also has the responsibility to use sound tactics and judgment approaching the situation.” (MTAPD Manual, MTA & Ramos Motion Ex. BB, at 0189.) When confronting an unidentified armed person who may be a law enforcement officer, the MTAPD officer should identify herself as an officer, attempt to verify the situation if the other person states that she is an officer, and remain alert until completely satisfied with the identification. (Id. at 0190.)

According to the MTA, the policies are reinforced annually during mandatory firearms requalifieation. (MTA & Ramos 56.1 ¶ 50.) Plaintiff, on the other hand, contends that, before Breitkopfs death, the MTAPD did not provide hands-on training on all of these policies, including the plainclothes officer and police-on-police confrontations policies. (E.g. Pl. MTA & Ramos 56.1 Counterstatement ¶¶ 45, 48, 50.) Specifically, according to the MTA, officers are lectured on the use of deadly physical force and receive a written examination to assure they have mastered the material. (Id. ¶ 51.) For example, the “Deadly Physical Force” Lesson Plan delineates a progression of force that officers should follow, and provides that “[a] stage in the progression may be skipped due the circumstances,” although “[i]f possible, the police officer should give the subject the opportunity to comply at each stage.” (MTAPD Lesson: Deadly Physical Force, MTA & Ramos Opp. Ex. DD, at Bates #207-08.) Plaintiff emphasizes that the MTAPD Manual instructs officers who challenge an unidentified armed person to “[i]dentify [them]self in a loud clear voice by stating ‘Police! Don’t move.’ ” (Pl. MTA & Ramos 56.1 Counterstatement ¶ 50.) In addition, all MTA officers must complete a “course of fire” on the firearms range, consisting of multiple drills and instruction on cover, concealment, and tactics. (MTA & Ramos 56.1 ¶ 52.) The drills are conducted at various distances and include “police challenge” or “shoot/ don’t shoot” exercises in which the officer must determine whether a target, which flips to one side or the other, poses a deadly threat. (Id. ¶ 53.) According to MTAPD Training Sergeant Glenn Pleeter (“Pleeter”), in one drill, the officer is trained to fire if the officer sees a weapon when the target flips; no verbal command is necessary beforehand. (Deposition of Glenn Pleeter (“Pleeter Dep.”) at 77:2-78:2, MTA & Ramos Motion Ex. V; see also id. at 56:14-25 (stating that officer is told “obviously to shoot, if there is a gun,” when the target flips).) If the target is unarmed, however, the officer should cover the target; yell “Police, don’t move!”; and refrain from shooting. (MTA & Ramos 56.1 ¶ 54.)

5. Causes of Action

Plaintiff brings six counts for relief:

(1)42 U.S.C. § 1983 claims against Gentile and Ramos for violating Breitkopf s right under the Fourth and Fourteenth Amendments (First Amended Complaint (“FAC”) ¶¶ 22-53, Docket No. 39) ;

(2) “Civil rights” claims against the MTA and NYC for failing to adequately train Gentile and Ramos (FAC ¶¶ 54-82);

(3) State law negligence, wrongful death, and GML § 205-e claims against the DiGeronimos (FAC ¶¶ 83-88);

(4) State law negligence, wrongful death, and GML § 205-e claims against the Estate (FAC ¶¶ 89-92);

(5) State law negligence, wrongful death, and GML § 205-e claims against Cafarella (FAC ¶¶ 93-103); and

(6) State law battery, wrongful death, and GML § 205-e claims against Gentile and Ramos, and against the MTA based on respondeat superior (FAC ¶¶ 104-14).

B. Procedural Background

Plaintiff commenced this action on March 6, 2012, and filed an amended complaint on July 17, 2012. In their respective answers to both the original and amended complaints, each defendant asserted cross-claims against other defendants. Cafarella moved for summary judgment on December 2, 2018. The DiGeronimos filed their motion on December 6, 2013; Gentile, the MTA and Ramos, and NYC filed their motions on December 13, 2013. Plaintiff filed her oppositions on March 7, 2014. The DiGeronimos filed their reply on April 2, 2014, while the other moving defendants filed their replies on April 4, 2014. The Court held oral argument on May 5, 2014. Plaintiff filed a sur-reply to the City on May 7, 2014. The Court has fully considered the submissions of the parties.

II. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.2013). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Once the moving party has met its burden, the opposing party “‘must do more than simply show that there is some metaphysical doubt as to the material facts____ [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties alone will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “‘concrete particulars’ ” showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33).

III. Discussion

Plaintiffs theories of liability under federal and state law differ from defendant to defendant. Thus, the Court proceeds by addressing each claim separately. F.or the reasons set forth below, the Court concludes that genuine issues of material fact preclude summary judgment on plaintiffs excessive force claim against Gentile, the corollary state law assault and battery claims against Gentile and the MTA, and the negligence and GML § 205-e claims against Cafarella.

A. 42 U.S.C. § 1983 Claims

Plaintiff brings 42 U.S.C. § 1983 claims against Gentile, Ramos, the MTA, and the City. To prevail on a claim under Section 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, (2) by a person acting under the color of state law. 42 U.S.C. § 1983; see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999). Section 1983 does not itself create substantive rights; instead, it offers “a method for vindicating federal rights elsewhere conferred.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir.2004). Further, to hold a municipality liable under Section 1983, a plaintiff must show: “(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir.2010) (citations omitted); see also Monell v. Dep’t of Social Servs, of N.Y.C., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

It is undisputed that Gentile and Ramos acted under color of state law. The questions presented, therefore, are: (1) whether Ramos’s and Gentile’s conduct deprived Breitkopf of his Fourth Amendment rights when (a) Ramos grabbed Breitkopf after hearing Cafarella yell “gun” (or “drop your weapon”) and (b) Gentile shot Breitkopf after seeing his interaction with Ramos; (2) whether, in the alternative, Ramos and Gentile are entitled to qualified immunity; (3) whether the MTA was deliberately indifferent to the need to train its officers on how to identify and properly confront plainclothes officers; and (4) whether the City is liable under Section 1983 because the MTAPD officers were trained at the Academy. The Court also addresses the disputed negligence claim against the City.

1. Excessive Force and Qualified Immunity

The officers argue that the excessive force claims cannot survive summary judgment because the force employed — Ramos grabbing Breitkopf and the rifle, and Gentile shooting Breitkopf — was objectively reasonable. In the alternative, the officers contend they are entitled to qualified immunity. As set forth below, the Court concludes that there is insufficient evidence in the record, even when construed most favorably to plaintiff, for the excessive force claim against Ramos to survive summary judgment both on the merits and on qualified immunity grounds. There is sufficient evidence, however, if plaintiffs evidence is credited and all reasonable inferences are drawn in her favor, for the claim against Gentile to survive, because there is a genuine dispute of material fact as to whether Gentile’s split-second decision to shoot Breitkopf was objectively reasonable. Similarly, the disputed issues of fact concerning the circumstances surrounding the shooting preclude summary-judgment on the qualified immunity issue,

a. Excessive Force Standard

A police officer’s use of force is excessive, in violation of the Fourth Amendment, “if it is objectively unreasonable ‘in light of the facts and circumstances confronting [the officer], without regard to [the officer’s] underlying intent or motivation.’ ” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004) (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). More specifically, “[determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal quotation marks omitted). Physical force is often necessary, and thus, “not every push or shove” is unconstitutionally excessive, “even if it may later seem unnecessary in the peace of a judge’s chambers.” Maxwell, 380 F.3d at 108 (internal brackets, citation, and quotation marks omitted).

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865; accord Jones v. Parmley, 465 F.3d 46, 61 (2d Cir.2006). The court must inquire into the totality of the circumstances, “including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others and whether he is actively resisting arrest.” Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir.2000) (citations omitted). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.

There may be certain circumstances where the alleged unconstitutional act and injury are so de minimis that they cannot constitute a constitutional violation as a matter of law. See, e.g., Vogeler v. Colbath, No. 04-CV-6071 (LMS), 2005 WL 2482549, at *11 (S.D.N.Y. Oct. 6, 2005) (granting summary judgment for defendant where plaintiffs failed to demonstrate that alleged action by police officer “was any more than de minimis force exerted during the course of an arrest following the raid of a suspected drug trafficking locale”); Johnson v. Police Officer #17969, No. 99-CV-3964 (NRB), 2000 WL 1877090, at *5 (S.D.N.Y. Dec. 27, 2000) (dismissing excessive force claim based on admission that plaintiff resisted arrest and only alleged minor injuries); cf. Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir.1998) (finding qualified immunity existed for excessive force claim under Due Process Clause, where claim was related to police conduct toward individuals present during execution of search, because force used “was de minimis, necessary, appropriate, and benign”); Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir.1999) (noting, in addressing excessive force claim under Eighth Amendment, that “de minimis uses of force generally do not suffice to state a constitutional claim”). A plaintiff, however, need not sustain a severe injury to maintain a claim that the use of force was objectively unreasonable under the Fourth Amendment. See Maxwell, 380 F.3d at 108 (“[W]e have permitted a plaintiffs claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, ‘yanked’ her, and threw her up against a car, causing only bruising.” (citing Robison v. Via, 821 F.2d 913, 924-25 (2d Cir.1987))); Weather v. City of Mount Vernon, No. 08 Civ. 192(RPP), 2011 WL 1046165, at *11 (S.D.N.Y. Mar. 22, 2011) (“Under the law, police are not permitted to use any degree of force in all instances — in some circumstances, no use of force is reasonable because none is required.”), aff'd, 474 Fed.Appx. 821 (2d Cir.2012); see also Hayes v. N.Y.C. Police Dep’t, 212 Fed.Appx. 60, 62 (2d Cir.2007) (“[W]e have permitted claims to survive summary judgment where the only injury alleged is bruising.”); Davenport v. Cnty. of Suffolk, No. 99-CV-3088 (JFB), 2007 WL 608125, at *11 (E.D.N.Y. Feb. 23, 2007) (use of force causing de minimis injury could be excessive if “gratuitous”).

With respect to deadly force, “an officer’s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir.2003) (internal quotation marks omitted); see also Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“Where the suspéct poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”). In such cases, “the objective reasonableness inquiry, for purposes of either Fourth Amendment liability or qualified immunity, ‘depends only upon the officer’s knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.’ ” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36-37 (2d Cir.2003) (quoting Salim v. Proulx, 93 F.3d 86, 92 (2d Cir.1996), and citing Graham, 490 U.S. at 396, 109 S.Ct. 1865; Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994)). Therefore, “[t]he objective reasonableness test will not be met if, on an objective basis, it is obvious that no reasonably competent officer would have concluded in that moment that ... use of deadly force was necessary.” Id. at 37 (internal citation and quotation marks omitted); see also Keene v. Schneider, 350 Fed.Appx. 595, 596 (2d Cir.2009) (explaining that, even if the force used was objectively unreasonable, “an officer may still be eligible for qualified immunity if it was objectively reasonable for the officer to believe that her action did not violate clearly established law” (citing Salim, 93 F.3d at 89) (emphasis in original)); Salim, 93 F.3d at 89 (“The objective reasonableness test [for qualified immunity purposes] is met if ‘officers of reasonable competence could disagree’ on the legality of the defendant’s actions.” (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986))). This is because qualified immunity “protects officers from the ‘sometimes hazy border between excessive and acceptable force.’ ” Keene, 350 Fed.Appx. at 596 (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)).

b. Qualified Immunity Standard

According to the Second Circuit, qualified immunity shields a government official from liability for civil damages if the official’s “conduct did not violate plaintiff’s clearly established rights, or if it would have been objectively reasonable for the official to believe that [her] conduct did not violate plaintiffs rights.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir.2003); see also Fielding v. Tollaksen, 257 Fed.Appx. 400, 401 (2d Cir.2007) (setting forth same). Qualified immunity shields an official even if her conduct resulted from “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (Kennedy, J., dissenting)). As the Second Circuit has noted, “[t]his doctrine is said to be justified in part by the risk that the ‘fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.’ ” McClellan v. Smith, 439 F.3d 137, 147 (2d Cir.2006) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999)). Thus, qualified immunity is not merely a defense, but is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Accordingly, a court should determine the availability of qualified immunity “at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).

“A right is clearly established when the contours of the right [are] sufficiently clear that a reasonable official would understand that what [she] is doing violates that right.... The unlawfulness must be apparent.” Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir.1998) (quotation marks omitted). Even where the plaintiffs rights are clearly established, however, the qualified immunity defense protects the government actor if it was objectively reasonable for her to believe her actions were lawful at the time of the challenged act. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995). “The objective element of this test requires the court to look beyond the generalized constitutional protection, such as the right to be free of unreasonable searches and seizures, and to determine whether the law is clearly established in a more particularized sense,” given the specific factual situation with which the officer is confronted. Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir.2001).

With respect to summary judgment, the Second Circuit has held that a court should cloak a defendant with qualified immunity at this juncture “only ... when a court finds that an official has met his or her burden demonstrating that no rational jury could conclude ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.’ ” Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir.2012) (quoting Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)); see also Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir.2003) (holding that finding qualified immunity at summary judgment stage is appropriate “only ‘if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible inferences drawn in [the plaintiffs] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right’ ” (quoting Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir.1996))); see also Stancuna v. Sherman, 563 F.Supp.2d 349, 356 (D.Conn.2008) (“Here, the court finds that summary judgment on qualified immunity grounds is inappropriate. As the Second Circuit has held, when a motion for summary judgment is made in the context of a qualified immunity defense, the question of whether the factual disputes are material is even more critical. As noted above, there are issues of material fact in this case that this court may not decide. These issues of fact are critical to determining whether Sherman was operating under a reasonable belief as to what kind of search he was permitted to conduct.” (internal citation, alteration, and quotation marks omitted)).

c. Application to Ramos’s Actions

Ramos argues that summary judgment is appropriate because his actions were objectively reasonable and, regardless, any injury to Breitkopf was de minimis. Plaintiff counters that a reasonable jury could hold Ramos liable because his “actions in grabbing Breitkopf and attempting to wrest his rifle were precipitous and not ‘objectively reasonable’ since Officer Breitkopf s gun was pointed down,” Breitkopf had passed several NCPD officers without issue, and Ramos did not issue a warning. (MTA & Ramos Opp., at 18.) Plaintiff claims that this “precipitous act ... was both a catalyst and a proximate [cause] for Officer Gentile negligently discharging his weapon.” (Id.) Viewing the evidence and drawing all reasonable inferences in the light most favorable to plaintiff, the Court concludes that no rational jury could find that Ramos acted unreasonably under the circumstances. Further, any injury to Breitkopf from Ramos’s seizure alone — irrespective of Gentile’s independent conduct in response to Ramos’s actions, cf. Schulz v. Long, 44 F.3d 643, 649 (8th Cir.1995) (“[E]vidence that [the officers] created the need to use [deadly] force by their actions prior to the moment of seizure is irrelevant....”)— was de minimis and cannot support an excessive force claim.

It is uncontroverted that Ramos only employed force against Breitkopf when, after hearing Cafarella say “gun” or “drop the weapon” (the actual phrase being immaterial to assessing Ramos’s liability), Ramos saw an armed man in plainclothes and, in an attempt to “subdue what [he] assumed was a threat,” grabbed the man’s right shoulder and grasped for the rifle, which was pointed downward at that moment. (MTA & Ramos 56.1 ¶¶ 26-28.) There is no evidence that Ramos employed or directed anyone to employ deadly force, continued to employ physical force despite hearing someone identify Breitkopf or seeing Breitkopf submit to his authority, or injured Breitkopf by grabbing him.

Given these uncontroverted facts, even drawing all reasonable inferences in plaintiffs favor, no rational jury could find that Ramos’s de minimis use of force was objectively unreasonable. Compare Rodriguez v. Vill. of Ossining, 918 F.Supp.2d 230, 238 (S.D.N.Y.2013) (granting summary judgment to officer who grabbed plaintif