Motion for Writ in Eury Roman v. City Of New York, Correction Officer Hilario (Shield No. 19625), John And Jane Doe Correction Officers 1 Through 10, All Defendants Individually And In Their Official Capacities| Trellis.Law

On May 06, 2024 a Complaint,Petition was filed involving a dispute between Eury Roman, and City Of New York, Correction Officer Hilario, John And Jane Doe Correction Officers 1 Through 10, All Defendants Individually And In Their Official Capacities, for Torts - Other (Civil Righs, Negligence) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 05/06/2024 06:18 PM INDEX NO. 807536/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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EURY ROMAN,
SUMMONS
Plaintiff,
Jury Trial Demanded
-against-
Plaintiff designates
CITY OF NEW YORK; CORRECTION OFFICER BRONX County as the
HILARIO (Shield No. 19625); JOHN and JANE place of trial.
DOE CORRECTION OFFICERS 1 through 10, all
defendants individually and in their official capacities, The basis of venue is:
CPLR § 504(3)
Defendants.
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To the above named Defendants:

You are hereby summoned to answer the Complaint in this action, and to serve a copy
of your answer, or, if the Complaint is not served with this Summons, to serve a notice of
appearance on the Plaintiff’s attorney within 20 days after the service of this Summons,
exclusive of the day of service, where service is made by delivery upon you personally within
the state, or, within 30 days after completion of service where service is made in any other
manner. In case of your failure to appear or answer, judgment will be taken against you by
default for the relief demanded in the Complaint.

Dated: New York, New York
May 6, 2024
______________________________
Anna Berezovski, Esq
Of Counsel to
THE LAW OFFICE OF KATHERINE E. SMITH
233 Broadway, Ste. 900
New York, New York 10279
Tel/ Fax: 347-470-3707
anna@legalsmithny.com

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TO:

CORPORATION COUNSEL
Attorney for Defendant THE CITY OF NEW YORK
100 Church Street
New York, New York 10007

CORRECTION OFFICER HILARIO (Shield No. 19625)
Robert N. Davoren Center (RNDC)
11-11 Hazen Street
East Elmhurst, NY 11370

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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EURY ROMAN,

Plaintiff,

COMPLAINT
-against-
Jury Trial Demanded
CITY OF NEW YORK; CORRECTION OFFICER
HILARIO (Shield No. 19625); JOHN and JANE DOE Index No.
CORRECTION OFFICERS 1 through 10, all
defendants individually and in their official capacities, BASIS FOR VENUE:

Defendants. CPLR § 504(3)

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PLAINTIFF EURY ROMAN, by PLAINTIFF’s attorneys, Anna Berezovski, Esq, and

the LAW OFFICE OF KATHERINE E. SMITH, complaining of the defendants, respectfully

alleges as follows:

PARTIES

1. PLAINTIFF EURY ROMAN, is a male and has been at all relevant times a

resident of Bronx County in the City and State of New York.

2. At all times mentioned herein, PLAINTIFF was within the care, custody, and

control of the New York City Department of Corrections (“NYC DOC”).

3. Defendant THE CITY OF NEW YORK was and is a municipal corporation duly

organized and existing under and by virtue of the laws of the State of New York.

4. Defendant, THE CITY OF NEW YORK, maintains, manages, and controls NYC

DOC, duly authorized public authorities and/or correction departments, authorized to perform all

functions of a correction department as per the applicable sections of the New York State

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Criminal Procedure Law, acting under the direction and supervision of the aforementioned

municipal corporation, Defendant THE CITY OF NEW YORK.

5. At all times mentioned herein, Defendants CORRECTION OFFICER HILARIO

(Shield No. 19625), JOHN and JANE DOE 1 through 10 (“DOE Defendants”) were correction

officers, supervisors, agents, servants and/or employees of NYC DOC. PLAINTIFF does not

know the real names and shield/tax numbers of the DOE Defendants.

6. Defendant CORRECTION OFFICER HILARIO (Shield No. 19625) is the

correction officer who appears in Injury to Inmate Report FY 24/155 dated July 15, 2023.

7. At all times hereinafter mentioned, the defendants, either personally or through

their employees, were acting under color of state law and/or in compliance with the official rules,

regulations, laws, statutes, customs, usages and/or practices of the State or City of New York.

8. Each and all of the acts of the defendants alleged herein were done by said

defendants while acting within the scope of their employment by Defendant THE CITY OF

NEW YORK.

9. Each and all of the acts of the defendants alleged herein were done by said

defendants while acting in furtherance of their employment by defendant THE CITY OF NEW

YORK.

10. The CITY OF NEW YORK is liable for the acts of its employees under the theory

of respondeat superior.

11. Plaintiff has complied with all conditions precedent to suit.

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STATEMENT OF FACTS

12. On or about July 14, 2023, at approximately 12:30 p.m. PLAINTIFF was in

custody of NYC DOC incarcerated at Rikers Island within the vicinity of Robert N. Davoren

Center (RNDC) located at 11-11 Hazen Street, East Elmhurst, NY 11370, when he sustained

serious and permanent injuries.

13. Specifically, on the above date and time, PLAINTIFF was in the shower when he

slipped and fell on an unknown substance and/or defect in the shower, through no fault of his

own, and sustained severe and permanent injuries.

14. Defendants THE CITY OF NEW YORK and its servants agents, and/or

employees, including CO HILARIO and the DOE Defendants had a duty to keep the shower and

surrounding areas in a reasonably safe condition, and not to suffer and permit said premises to

be, become and remain in an unsafe and dangerous condition to all incarcerated individuals in

custody of NYC DOC, who were housed at RNDC, including PLAINTIFF.

15. After the incident, PLAINTIFF was in severe pain and repeatedly asked the

Defendants for medical attention. However, the Defendants, including CO HILARIO, and the

DOE Defendants denied PLAINTIFF medical care and treatment for his injuries.

16. PLAINTIFF was eventually taken to a medical clinic where he was treated for

right hand contusion. On or about July 18, 2023, PLAINTIFF was finally diagnosed with acute

fracture through the base of the right fifth metacarpal.

17. Despite PLAINTIFF’s severe injuries, Defendants CO HILARIO, and the DOE

Defendants failed to provide PLAINTIFF with medical treatment or wound care follow-up. This

lack of treatment further exacerbated PLAINTIFF’s condition and caused severe pain, and

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suffering.

18. Had the Defendants CITY OF NEW YORK, and its servants, agents, and

employees, including CO HILARIO, and the DOE Defendants properly maintained the showers

at the above mentioned location, PLAINTIFF’s injuries would have been fully prevented.

19. As a result of the deliberate indifference, negligence, and negligent hiring and

training of Defendants CO HILARIO, and the DOE Defendants denial of access to medical

treatment, and negligent maintenance of the shower area, PLAINTIFF sustained severe and

permanent injuries.

20. Had the Defendants CITY OF NEW YORK, and its servants, agents, and

employees, and the DOE Defendants been monitoring and inspecting the showers as required,

they would have observed the hazardous condition, and fully prevented PLAINTIFF from

sustaining injuries.

21. As a result of deliberate indifference, denial of access to medical treatment,

negligence, gross negligence, and negligent hiring, training, and supervision of Defendants and

the DOE Defendants, PLAINTIFF was deprived of liberty and sustained serious and permanent

injuries that affect his quality of life until this day.

CLAIM ONE
Under State Law
NEGLIGENCE

22. PLAINTIFF repeats, reiterates, and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

23. Defendants THE CITY OF NEW YORK (“CITY”) and its servants, agents, and

employees, including the individually named defendants had a duty to protect inmates.

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24. The defendants breached their duty to protect PLAINTIFF from harm when they

failed to maintain the recreation area and the housing unit within the facility in a safe condition.

25. Defendants CITY, the individually named defendants and the DOE Defendants

were negligent, careless, and reckless, inter alia, when they caused and/or permitted and/or

allowed portions of said premises, particularly around the vicinity of the incident, and the shower

area to be become and remain in a dangerously, defective, hazardous, and unsafe, condition;

when they allowed and permitted the said premises to be and to remain at such a dangerous and

defective condition for such a long and unreasonable length of time so as to cause injuries to

PLAINTIFF; when they created and maintained a dangerous, hazardous and defective condition;

when they failed to properly maintain the above premises, including stairwell, and surrounding

areas of the subject housing unit; and when they were generally negligent, careless, and reckless

in the premises; all in violation of the laws, statutes, ordinances and regulations made and

provided for the safe and proper operation, ownership, maintenance and control of said premises.

26. The defendants had actual and constructive notice regarding the dangers and

threats to PLAINTIFF ’s safety.

27. Defendant CITY is liable for the oversight of its agents, servants, and/or

employees, who include officials and staff at NYC DOC, and Defendants CO HILARIO, and the

DOE Defendants.

28. The said incidents and the resulting injuries to PLAINTIFF were caused through

no fault of his own but were solely and wholly by reason of the negligence, willful, wanton and

gross negligence of the defendants, and their agents, servants and/or employees, including CO

HILARIO, and the DOE Defendants.

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29. Defendant CITY is liable for damages caused by the negligent acts and/or

omissions of servants, agents, and/or employees acting within the scope of their employment.

30. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM TWO
Under Federal Law
FAILURE TO INTERVENE

31. PLAINTIFF repeats, reiterates, and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

32. Those defendants that were present but did not actively participate in the

aforementioned unlawful conduct observed such conduct, had an opportunity to prevent such

conduct, had a duty to intervene and prevent such conduct and failed to intervene.

33. Accordingly, the defendants who failed to intervene, violated the First, Fourth,

Fifth And Fourteenth Amendments.

34. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM THREE
Under Federal Law
DEPRIVATION OF FEDERAL RIGHTS

35. PLAINTIFF repeats, reiterates and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

36. All of the aforementioned acts of defendants, their agents, servants and

employees, were carried out under the color of state law.
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37. All of the aforementioned acts deprived PLAINTIFF of the rights, privileges and

immunities guaranteed to citizens of the United States by the Fourth and Fourteenth

Amendments to the Constitution of the United States of America, and in violation of 42 U.S.C. §

1983.

38. The acts complained of were carried out by the aforementioned individual

defendants in their capacities as corrections officers with all the actual and/or apparent authority

attendant thereto.

39. The acts complained of were carried out by the aforementioned individual

defendants in their capacities as correction officers, pursuant to the customs, usages, practices,

procedures, and the rules of Defendants CITY, and NYC DOC, all under the supervision of

ranking officers of said department.

40. Defendants, collectively and individually, while acting under color of state law,

engaged in conduct which constituted a custom, usage, practice, procedure or rule of the

respective municipality/authority, which is forbidden by the Constitution of the United States.

41. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM FOUR
Under Federal Law
DELIBERATE INDIFFERENCE TO SAFETY/MEDICAL NEEDS

42. PLAINTIFF repeats, reiterates and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

43. The individual defendants were aware of a risk to PLAINTIFF’s safety and a need

for medical care and failed to act in deliberate indifference to PLAINTIFF’s needs.
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44. Accordingly, defendants violated the fourteenth amendment because they acted

with deliberate indifference to PLAINTIFF’s medical needs and safety.

45. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM FIVE
Under State Law
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

46. PLAINTIFF repeats, reiterates and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

47. The aforementioned conduct was extreme and outrageous, and exceeded all

reasonable bounds of decency.

48. The aforementioned conduct was committed by defendants while acting within

the scope of their employment by Defendant CITY.

49. The aforementioned conduct was committed by defendants while acting in

furtherance of their employment by Defendant CITY.

50. The aforementioned conduct was intentional and done for the sole purpose of

causing severe emotional distress to PLAINTIFF.

51. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM SIX
Under State Law
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

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52. PLAINTIFF repeats, reiterates and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

53. By reason of the foregoing, each defendant was negligent in committing conduct

that inflicted emotional distress upon PLAINTIFF.

54. The negligent infliction of emotional distress by these Defendants was

unnecessary and unwarranted in the performance of their duties.

55. Defendants, their officers, agents, servants, and employees were responsible for

the negligent infliction of emotional distress upon PLAINTIFF.

56. The Defendant employers are responsible for their wrongdoings of their

employees and agents under the doctrine of respondeat superior.

57. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM SEVEN
Under State Law
NEGLIGENT HIRING/TRAINING/SUPERVISION/RETENTION

58. PLAINTIFF repeats, reiterates and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

59. Defendant CITY selected, hired, trained, retained, assigned and supervised all

members of its NYC DOC, including the defendants individually named above.

60. Defendant CITY was negligent and careless when it selected, hired, trained,

retained, assigned, and supervised all members of its NYC DOC, including the defendants

individually named above.

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61. As a result of these actions and inactions by prison staff and officials,

PLAINTIFF sustained pain and suffering, severe emotional distress, and the damages

hereinbefore alleged.

CLAIM EIGHT
Under Federal Law
MUNICIPAL LIABILITY

62. PLAINTIFF repeats, reiterates and realleges each and every allegation contained

in the preceding paragraphs with the same force and effect as if fully set forth herein.

63. Defendants, collectively and individually, while acting under color of state law,

engaged in conduct that constituted a custom, usage, practice, procedure or rule of the respective

municipality/authority, which is forbidden by the Constitution of the United States.

64. The aforementioned customs, policies, usages, practices, procedures and rules of

Defendant CITY, and NYC DOC, include, but are not limited to, the following unconstitutional

practices:

i. Failing to properly protect inmates from individuals who are a known risk
to fellow inmates’ safety;

ii. Failing to properly monitor the facility, specifically the housing area;

iii. Failing to patrol/monitor assigned posts, specifically the housing area;

iv. Failing to keep safe living conditions for inmates, specifically in the
housing area;

v. Failing to take action when an imminent threat to inmate safety is
observed.

65. The foregoing customs, policies, usages, practices, procedures and rules of

Defendant CITY, and NYC DOC constituted deliberate indifference to the safety, well-being and

constitutional rights of the PLAINTIFF.

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66. The foregoing customs, policies, usages, practices, procedures and rules of the

Defendant CITY, and NYC DOC were the direct and proximate cause of the constitutional

violations suffered by the PLAINTIFF as alleged herein.

67. The foregoing customs, policies, usages, practices, procedures and rules of the

Defendant CITY, and NYC DOC were the moving force behind the constitutional violations

suffered by the PLAINTIFF as alleged herein.

68. Defendants, collectively and individually, while acting under color of state law,

were directly and actively involved in violating the PLAINTIFF’s constitutional rights.

69. Defendants, collectively and individually, while acting under color of state law,

acquiesced in a pattern of unconstitutional conduct by subordinate corrections officers, and were

directly responsible for the violation of the PLAINTIFF’s constitutional rights.

70. The acts complained of deprived the PLAINTIFF of his right:

A. To be free from cruel and unusual punishment;

B. To have a minimum standard of living;

C. Not to have summary punishment imposed upon him; and

D. To receive equal protection under the law.

71. By the reason of the above, PLAINTIFF demands compensation in an amount

which exceeds the jurisdictional limits of all lower courts which would otherwise have

jurisdiction.

WHEREFORE, PLAINTIFF respectfully requests judgment against defendants as follows:

i. an order awarding compensatory damages in an amount to be determined
at trial;

ii. an order awarding punitive damages in an amount to be determined at
trial;
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iii. reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and

iv. directing such other and further relief as the Court may deem just and
proper, together with attorneys’ fees, interest, costs and disbursements of
this action.

DATED: New York, New York
May 6, 2024

_____________________________
Anna Berezovski, Esq
Of Counsel to
The Law Office of Katherine E. Smith
233 Broadway, Ste. 900
New York, New York 10279
Tel/ Fax: 347-470-3707
anna@legalsmithny.com
Attorney for Plaintiff

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ATTORNEY'S VERIFICATION

ANNA BEREZOVSKI, an attorney duly admitted to practice law in the Courts of the

State of New York, shows:

I am of counsel to THE LAW OFFICE OF KATHERINE E. SMITH the attorney for

PLAINTIFF EURY ROMAN in the within entitled action.

That your deponent has read the foregoing VERIFIED COMPLAINT and knows the

contents thereof, and that the same is true to her own knowledge, except as to the matters therein

stated to be alleged upon information and belief, and as to those matters, she believes it to be

true.

That the source of the deponent’s information is investigation and records in the file.

The reason why the verification is made by the deponent and not by the PLAINTIFF is

that the PLAINTIFF is not within the county wherein the deponent maintains her office.

I affirm this 6th day of May 2024, under the penalties of perjury under the laws of the

State of New York, which may include a fine or imprisonment under penalty of perjury, that the

foregoing is true and correct, and I understand that this document may be filed in an action or

proceeding in a court of law.

Dated: New York, New York
May 6, 2024

_____________________________________
Anna Berezovski

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Complaint,Petition: Eury Roman v. City Of New York, Correction Officer Hilario (Shield No. 19625), John And Jane Doe Correction Officers 1 Through 10, All Defendants Individually And In Their Official Capacities

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