Defendants, the City of New York, Det. John Roberts, Shield No. 3656, Det. Sean Ward, Shield No. 5533, Sgt. James Hanrahan, Tax Registry No. 89139, Sgt. Sean O'Hara, Tax Registry No. 905535, Lt. Mic Miltenberg, Tax Registry No. 896558, Richard A. Brown, individually and as district attorney of the County of Queens and Brian F. Allen, individually and as assistant district attorney of the County of Queens, collectively move inter alia for summary judgment dismissing plaintiffs' complaints as asserted against them.

Plaintiffs, Tyrone Blake and Dwayne Johnson, cross-move inter alia to strike defendants' answer.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of their arrest and prosecution for the shooting of Matthew Siley on October 5, 2008 at 223-113th Avenue, in the County of Queens, City and State of New York.

Defendants move to dismiss certain causes of action pursuant to CPLR § 3211 and for summary judgment, dismissing the remaining causes of action pursuant to CPLR § 3212.

As an initial matter, contrary to plaintiff's contentions, defendants' motion seeking summary judgment is not untimely.

CPLR 3212(a) requires motions for summary judgment to be made no later than 120 days after the filing of the note of issue, except with leave of the court on good cause shown (Brill v. City of New York, 2 NY3d 648, 652 [2004]).

Plaintiffs' filed their note of issue on May 3, 2013. As such defendants' motion was required to be served no later than September 3, 2013. According to the affidavit of service, defendants' motion was served on September 3, 2013 and is timely.

Contrary to plaintiffs' contentions, the motion cannot be deemed untimely merely because defendants did not address the issue of timeliness in their reply papers. It is the Court, not the parties, that determines whether a motion is timely (See generally, Coty v. County of Clinton, 42 AD3d 612 [3d Dept. 2007]). [*2]

With respect to those portions of defendants' motion seeking dismissal pursuant to CPLR § 3211, plaintiffs only specifically oppose those portions of defendants' motion seeking dismissal for failure to comply with General Municipal Law (GML) § 50-e.

Plaintiff Blake served a Notice of Claim on the City of New York (hereinafter "City"), naming only the City, on March 29,2010. The March 29, 2010 Notice of Claim sets forth claims for inter alia false arrest, false imprisonment, assault, battery, negligence and civil rights violations. Blake served a second notice of claim, again naming only the City, on July 26, 2010. The July 26, 2010 Notice of Claim sets forth claims for malicious prosecution and civil rights violations.

Plaintiff Dwayne Johnson, upon leave of Court, served a Notice of Claim on the City, naming all defendants in this action, on September 28, 2011. The September 28, 2011 Notice of Claim sets forth claims for inter alia false arrest, false imprisonment, assault and battery, negligence, malicious prosecution and civil rights violations.

Contrary to plaintiffs' contentions, plaintiff Blake's fourth and fifth causes of action must be dismissed as asserted against defendants Richard A. Brown and Brian F. Allen (hereinafter, collectively "DA defendants") due to plaintiff's failure to name the DA defendants in either of his Notices of Claim (See Cleghorne v. City of New York, 99 AD3d 443, 446 [1st Dept. 2012] Tannenbaum v. City of New York, 30 AD3d 357, 358 [1st Dept. 2006] see also Santoro v. Town of Smithtown, 40 AD3d 736, 737 [2d Dept. 2007]).

However, plaintiff Johnson's Notice of Claim, which properly names the DA defendants, plainly alleges a claim for malicious prosecution and provides details regarding the date and location of his arrest, the date the criminal charges were dismissed. Contrary to defendants' contentions, this is sufficient to comply with the requirements of GML 50-e (See Clark v. City of Ithaca, 235 AD2d 746, 747-48 [3d Dept. 1997] cf. Santoro, supra, at 737; Scott v. City of New York, 40 AD3d 408, 408-09 [1st Dept. 2007]).

In addition, Plaintiff Blake's first, second, third, fifth and sixth causes of action against defendants Sgt. James Hanrahan, Sgt. Sean O'Hara, and Lt. Mic Miltenberg (hereinafter, [*3]collectively "NYPD Defendants") must likewise be dismissed for the failure to name the NYPD defendants in the notice of claim (See Cleghorne, supra, at 446; Tannenbaum, supra, at 358).

However, contrary to defendants' contentions, plaintiff Johnson's Notice of Claim, which properly names the NYPD defendants and plainly alleges all causes of action asserted against them, is sufficient to comply with the requirements of GML 50-e (See Clark, supra, at 747-48).

Plaintiffs do not specifically oppose those portions of defendants' motion seeking dismissal pursuant to CPLR § 3211 on other grounds. Nevertheless, plaintiffs contend that the motion must be denied, in its entirety, due to outstanding discovery.

Defendants allege that plaintiffs' first cause of action, alleging assault and battery on October 15, 2008, must be dismissed against all defendants because it is untimely.

Pursuant to GML § 50-i, plaintiffs were required to file any complaint for assault and battery no later than January 15, 2009.

Plaintiff Blake's Complaint was filed October 10, 2010 and is untimely by more than one year and eight months. Plaintiff Johnson's Complaint was filed on September 29, 2011 and is untimely by more than two years and eight months.

Plaintiffs fail to allege any outstanding discovery that is material and relevant to the issue of timeliness of the first cause of action (See Lambert v. Bracco, 18 AD3d 619, 620 [2d Dept. 2005]).

Defendants have likewise established their entitlement to dismissal of plaintiffs' fifth, sixth, seventh and eighth causes of action pursuant to CPLR § 3211[a][7].

Plaintiffs' fifth cause of action alleges intentional infliction of emotional distress. It is well settled that "public policy bars claims for intentional infliction of emotional distress against a governmental entity" (Rodgers v. City of New York, 106 AD3d 1068, 1070 [2d Dept. 2013] (internal citations omitted); see also Eckardt v. City of White Plains, 87 AD3d 1049, 1051 [2d Dept. 2011] Ellison v. City of New Rochelle, 62 AD3d [*4]830, 833 [2d Dept. 2009]). Additionally, this cause of action is duplicative of plaintiffs' causes of action for false arrest, false imprisonment and malicious prosecution (See Rodgers, supra, at 1070; see also Leonard v. Reinhardt, 20 AD3d 510 [2d Dept. 2005]).

Plaintiffs' sixth cause of action, which alleges negligent police investigation, fails to state a cognizable cause of action separate and distinct from plaintiffs' causes of action for false arrest, false imprisonment and deprivation of civil rights(See Carlton v. Nassau County Police Dep't, 306 AD2d 365, 366 [2d Dept. 2003]).

Plaintiffs fail to allege any outstanding discovery that is material to the issue of whether plaintiffs' fifth and sixth causes of action are cognizable (See Lambert v. Bracco, 18 AD3d 619, 620 [2d Dept. 2005]).

Plaintiffs' seventh and eighth causes of action allege negligent hiring, training, retention and supervision.

In the absence of gross negligence on the part of the employer, where an employer is liable for an employee's negligence under a theory respondeat superior, no cause of action against the employer for negligent hiring, training, retention and supervision may proceed (See Quiroz v. Zottola, 96 AD3d 1035, 1037 [2d Dept. 2012] Watson v. Strack, 5 AD3d 1067, 1068 [4th Dept. 2004]).

Plaintiffs' complaint fails to allege that the City was grossly negligent in its hiring, training, retention and supervision of its employees. Plaintiffs' complaint only alleges simple negligence, and plaintiffs have not sought to amend their complaint to include allegations of gross negligence.

Defendants, however, have failed to establish their entitlement to CPLR § 3211[a][7] dismissal of plaintiffs' fourth, ninth, and tenth causes of action as asserted against the DA defendants on the ground of absolute immunity.

Absolute immunity only protects those activities of a prosecutory that are "intimately associated with the judicial phase of the criminal process" (Johnson v. Kings County DA's [*5]Office, 308 AD2d 278, 285 [2d Dept. 2003] see also Spinner v. County of Nassau, 103 AD3d 875, 877 [2d Dept. 2013] Rodrigues v. City of New York, 193 AD2d 79, 85 [1st Dept. 1993]]). Those that are not, including administrative and investigative activities, receive only qualified immunity (See Rodriguez, supra, at 85; see also Johnson, supra, at 85).

The criterion in considering a motion to dismiss under CPLR § 3211[a][7] "is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Allen v. City of New York, 49 AD3d 1126, 1127 [3d Dept. 2008] (citing Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977] see Griffin v. Anslow, 17 AD3d 889, 891 [3d Dept. 2005])).

It is well settled that on a motion to dismiss pursuant to CPLR § 3211[a][7], the Court must accept all allegations in the complaint as true (See Fischer v. Sadov Realty Corp., 34 AD3d 630, 631 [2d Dept. 2006] Sirlin v. Town of New Castle, 15 AD3d 387 [2d Dept. 2005] Melnik v. Saks & Co., 248 AD2d 446 [2d Dept. 1998]). Plaintiffs' respective complaints clearly allege that the DA defendants were acting in administrative and investigative capacities and, contrary to defendants' contentions, the complaints clearly sets forth a cause of action sufficient to avoid CPLR § 3211[a][7] dismissal (See Sirlin, supra, at 387; Melnik, supra, at 446).

Defendants have likewise failed to establish their entitlement to CPLR § 3211[a][7] dismissal of plaintiffs' eleventh cause of action which alleges that the City violated plaintiffs' constitutional rights pursuant to 42 U.S.C. § 1983.

Contrary to defendants' contentions, plaintiffs' respective complaints allege that the City maintained a policy or custom that caused them to be subjected to a denial of their constitutional rights and, as such, include all allegations necessary to assert a cause of action under 42 U.S.C. § 1983 (See Elie v. City of New York, 92 AD3d 716, 717-18 [2d Dept. 2012]).

In the absence of CPLR § 3211 dismissal, defendants seek summary judgment, dismissing plaintiffs' fourth, ninth, and tenth causes of action as asserted against the DA defendants on the ground of absolute immunity and qualified immunity and dismissing plaintiffs' ninth and tenth causes of action as asserted against [*6]the individually named Officers on the ground of qualified immunity.

In addition, defendants seek summary judgment and dismissal of plaintiffs' second, third, fourth, ninth, tenth, and eleventh causes of action, in their entirety on the ground that there was probable cause for the arrest and subsequent prosecution.

Finally, defendants seek summary judgment and dismissal of all causes of action asserted against the NYPD defendants and defendant Sean Ward on the ground of lack of involvement.

Plaintiffs, however, have demonstrated that summary judgment on these causes of action is premature due to outstanding discovery.

Specifically, despite agreeing to produce a witness and all named defendants for depositions in the Preliminary Conference Order dated April 6, 2011 and agreeing to produce individual defendants Det. John Roberts, Det. Sean Ward, Sgt. James Hanrahan, Sgt. Sean O'Hara, Lt. Mic Miltenberg, and ADA Brian F. Allen in a stipulation dated February 1, 2013, not a single one of these depositions has been held.

In the absence of these depositions, facts essential to the issues of absolute and qualified immunity, probable cause and the involvement of the named defendants in the arrest, imprisonment and prosecution of plaintiff remain exclusively within defendants' possession (See Evangelista v. Kambanis, 74 AD3d 1278, 1279 [2d Dept. 2010] Conciatori v. Port Auth. of NY & N.J., 46 AD3d 501, 503 [2d Dept. 2007]).

In addition, defendants have failed to produce a copy of the Grand Jury Minutes and an un-redacted copy of the District Attorney's file.

As defendants specifically agreed to produce the District Attorney's file in the April 6, 2011 Preliminary Conference Order, the September 22, 2011 Compliance Conference Order and the March 13, 2012 Compliance Conference Order and did, in fact, produce a redacted copy of the same, their objection to producing this file as not being in their possession is completely without merit. [*7]

Defendants objection to producing the Grand Jury Minutes on the ground that plaintiff can obtain those documents on their own is likewise lacking in merit given the District Attorney's apparent refusal to provide plaintiff with those documents.

Contrary to defendants' contentions, plaintiffs did not waive their right to outstanding discovery by filing the note of issue. Indeed, plaintiffs' Note of Issue specifically states that discovery in note complete and outlines all of the outstanding discovery plaintiffs' continue to seek (Cf. Lindesay v. City of New York, 56 AD3d 532, 533 [2d Dept. 2008]).

Nevertheless, actions should be resolved on the merits wherever possible (See Maiorino v. City of New York, 39 AD3d 601 [2d Dept. 2007] (citing Cruzatti v. St. Mary's Hosp.,193 AD2d 579, 580 [2d Dept. 1993])).

"To invoke the drastic remedy of striking an answer, it must be shown that a defendant's failure to comply with a disclosure order was the result of willful and contumacious conduct" (Maignan v. Nahar, 37 AD3d 557 [2d Dept. 2007] (citing CPLR § 3126; Bates v. Baez, 299 AD2d 382 [2d Dept. 2002])). "The willful and contumacious character of a party's conduct can be inferred from his or her repeated failures to comply with disclosure, coupled with inadequate explanations for those defaults" (Poulas v. U-Haul International Inc., 288 AD2d 202 [2d Dept. 2001] see also Goldstein v. Kingsbrook Jewish Med. Ctr., 39 AD3d 816, 817 [2d Dept. 2007]). Determination of whether or not to strike a pleading rests within the sound discretion of the trial court (Patterson v. Greater NY Corp. of Seventh Day Adventists, 284 AD2d 382, 383 [2d Dept. 2001]).

While defendants' objections to producing the outstanding discovery lack merit, they are sufficient to demonstrate that defendants' failure to produce discovery was neither willful nor contumacious.

Accordingly, defendants' motion is granted to the extent that plaintiffs' first, fifth, sixth, seventh and eighth are dismissed in their entirety, plaintiff Blake's fourth cause of action is dismissed as asserted against defendants Richard A. Brown and Brian F. Allen, only, and plaintiff Blake's second and third causes of action are dismissed as asserted against defendants Sgt. James Hanrahan, Sgt. Sean O'Hara, and Lt. Mic Miltenberg, only. The motion is denied in all other respects. [*8]

Plaintiffs' cross-motion is granted to the extent that defendants shall produce all individually named defendants, as well as a witness for the City of New York, for depositions to be completed no later than July 18, 2014.

Defendants shall provide plaintiffs with a complete copy of the Grand Jury Minutes no later than May 30, 2014.

Defendants shall produce an un-redacted copy of the District Attorney's file for an in camera inspection no later than May 30, 2014.

Plaintiffs' cross-motion is denied in all other respects.

The discovery deadlines set herein are final and no adjournments will be permitted.

April 11, 2014 ____________________

J.S.C.