Anderson v. City of New York, 06–CV–5363 (KAM)(VVP).

Citation817 F.Supp.2d 77
Decision Date20 September 2011
Docket NumberNo. 06–CV–5363 (KAM)(VVP).,06–CV–5363 (KAM)(VVP).
PartiesMarvin ANDERSON, Plaintiff, v. The CITY OF NEW YORK, Police Officer James Petronella, and Police Officer William Larkin, Police Officer John Doe # 3, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)


Anthony C. Ofodile, Anthony C. Ofodile, Brooklyn, NY, for Plaintiff.

David Michael Pollack, City of New York, Department of Law, New York, NY, for Defendants.


MATSUMOTO, District Judge:

Plaintiff Marvin Anderson (plaintiff or “Anderson”) brought this action against the City of New York (“the City”) and New York City Police Officers James Petronella (Officer Petronella), William Larkin (Larkin), and John Doe # 3 in their individual capacities, alleging federal civil rights claims pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, and various state law tort claims, all arising out of plaintiff's allegedly false arrest, malicious prosecution, and strip search.

Defendants now move for summary judgment on each of plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. ( See ECF No. 47, Notice of Motion for Summary Judgment, dated July 30, 2010; ECF No. 48, Defendants' Memorandum of Law in Support of Motion for Summary Judgment (“Defs.' Mem.”), dated July 30, 2010.) For the reasons set forth below, defendants' motion is denied in part and granted in part.

I. Parties

Plaintiff Anderson is a resident of Bronx County. (ECF No. 18, Amended Complaint (“Am. Compl.”) ¶ 4, dated Mar. 12, 2009.) Defendants Officer Petronella and Officer Larkin are police officers employed by the New York City Police Department, a branch of defendant City of New York. ( Id. ¶ 6.) At the time of the events alleged in the Amended Complaint, Officers Petronella and Larkin worked at the 112th Precinct. (ECF No. 51–4, Larkin Affidavit (“Larkin Aff.”) ¶ 1; ECF No. 51–5, Petronella Affidavit (“Petronella Aff.”) ¶ 1.) Defendant City of New York is a municipal corporation incorporated under the laws of the State of New York. (Am. Compl. ¶ 5.)

II. Facts

The following facts are set forth based upon the parties' Local Civil Rule 56.1 statements and supporting materials, and are undisputed except as noted below. They do not constitute findings of fact by the court. The court has considered whether the parties have come forth with admissible evidence in support of their positions and has viewed the facts in a light most favorable to the non-moving plaintiff.

The parties do not dispute that on October 14, 2005, plaintiff was arrested at Parkway Hospital in Queens, New York, following an altercation between plaintiff and hospital security guard, Alex Liriano. (ECF No. 49, Defendants' Local Civil Rule 56.1 Statement (“Defs.' 56.1 Stmt.) ¶¶ 1–2.) The same day, a verified criminal court complaint was filed against plaintiff charging him with assault in the third degree, a misdemeanor,1 and harassment in the second degree, a violation,2 under New York Penal Law. ( Id. ¶ 5.)

The events surrounding the arrest, however, are disputed by the parties. Plaintiff alleges that on October 14, 2005, he was sent by his union to Parkway Hospital for medical treatment. (ECF No. 52–2, Affidavit of Marvin Anderson in Opposition to Defendants' Motion for Summary Judgment (“Anderson Aff.”) ¶ 3.) At the hospital, plaintiff was directed to provide a urine sample. ( Id. ¶ 4.) After doing so, plaintiff waited “for a considerable amount of time” for hospital staff to issue further instructions but no one attended to him. ( Id.) Plaintiff eventually asked medical staff where to drop the urine sample, and was “spoken to very harshly and told to sit down until [he] was called.” ( Id.) Plaintiff expressed to hospital staff his view that he had not been attended to promptly because he is a young black man, and that he was being treated differently and being spoken to harshly because of his race. ( Id. ¶ 5.) Plaintiff also expressed his desire to leave the hospital and go to another one for medical treatment because he did not like the treatment he received and how he was spoken to. ( Id.) At this time, the hospital staff called security and two security guards arrived upstairs. ( Id.)

Plaintiff went downstairs to the lobby where he exchanged words with the security guards in the lobby area, which is monitored by a camera. ( Id. ¶ 6.) Plaintiff alleges that the security guards berated him and then one security guard hit him in the face, injuring plaintiff such that one of his eyes was almost swollen shut. ( Id. ¶ 6.) Plaintiff then asked that the police be called, and two “White Police Officers” arrived at the scene. ( Id. ¶ 7.) The officers arrived at the hospital in response to a call, after the altercation between the Anderson and Liriano, the security guard who hit him. (Defs.' 56.1 Stmt. ¶ 2; Larkin Aff. ¶¶ 3–5; Petronella Aff. ¶¶ 3–4.)

A. Plaintiff's Version of Events

Plaintiff claims that when Officers Petronella and Larkin arrived at the hospital, his eye was swollen shut and he explained to them that he was injured from being punched by Liriano. (Anderson Aff. ¶ 7.) Plaintiff told the officers that a review of the hospital camera's tape would show that Liriano assaulted him, and that he did not provoke or punch the security guard. ( Id. ¶ 8.) Plaintiff also stated to the officers that he wanted “the White Security Guard” arrested for assaulting him. ( Id.)

Plaintiff attests that at this point, the officers whispered to each other and then told plaintiff that he would be better off leaving the scene. ( Id.) Plaintiff responded that he did nothing wrong and wanted Liriano arrested, and said again that the incident had been recorded by the hospital camera. ( Id. ¶ 9.) Officers Petronella and Larkin told plaintiff that they might arrest plaintiff along with Liriano. ( Id.) Plaintiff stated that he did not care if he was also arrested, and repeated that he wanted the police to arrest Liriano and that the assault was caught on camera. ( Id.) The officers then told plaintiff to leave or he would be arrested. ( Id. ¶ 10.) After plaintiff again stated that he, not Liriano, had been assaulted and that he wanted Liriano arrested, the officers arrested plaintiff. ( Id.)

According to plaintiff, the officers never spoke with Liriano prior to arresting plaintiff. ( Id. ¶ 12.) Plaintiff states that he was standing in close proximity to Liriano and the officers when the officers arrived, and that Liriano did not once tell them that he had been assaulted by plaintiff. ( Id.) Plaintiff also claims that the officers saw his injuries and did not see any injuries on Liriano. ( Id. ¶ 13.)

Plaintiff further attests that he was strip searched at the police station and at Rikers Island but does not provide details regarding the circumstances or the officers who conducted the alleged strip searches. ( Id. ¶ 15.)

B. Defendants' Version of Events

Officer Petronella attests that he, accompanied by his sergeant and partner, Officer Larkin, “responded to a 911 call from Parkway Hospital regarding a disorderly person hitting people outside of the Emergency Room.” (Petronella Aff. ¶ 3; see also Larkin Aff. ¶ 3.) According to the defendant officers, Liriano complained to them that plaintiff had hit him in the face. (Defs.' 56.1 Stmt. ¶ 3.) Both officers observed that Liriano's lip was bleeding and that he appeared bruised. ( Id. ¶ 4; Larkin Aff. ¶ 4; Petronella Aff. ¶ 4.) Liriano told Officer Petronella that plaintiff had punched and shoved him when plaintiff was asked to leave the hospital for causing a disturbance. (Petronella Aff. ¶ 4.) Officer Petronella observed that plaintiff was in an “agitated state” and that plaintiff did not appear to be injured. ( Id. ¶ 5.)

According to Officer Petronella, he then placed plaintiff under arrest and waited for Officer Larkin, his sergeant, to verify the arrest before transporting plaintiff back to the 112th Precinct. ( Id. ¶ 6.) Officer Larkin swears that he did not authorize the arrest and had no personal involvement in the events, aside from driving his partner, Officer Petronella, to and from the hospital. (Larkin Aff. ¶¶ 5–10.)

Once back at the precinct, Officer Petronella conducted a pat-down search of the plaintiff in front of the precinct's front desk, vouchered his property, and placed him in a holding cell to wait while Officer Petronella completed the arrest paperwork. (Petronella Aff. ¶ 7.) According to Petronella, at no time did he authorize or observe anyone strip search plaintiff at the precinct. ( Id. ¶¶ 8–9.)

C. Post–Arrest Undisputed Facts

On November 26, 2005, plaintiff filed a notice of claim against the City alleging that he was “violated and discriminated at 70–35 Parkway Hospital. I was also arrested by a Sergeant and Police Officer James Petronella, from the 112 Pct. (ECF No. 51–11, Notice of Claim Against a Public Authority (“Notice of Claim”), dated Nov. 26, 2005.)

On May 30, 2007, the Queens County Criminal Court issued an Order of Protection directing plaintiff to stay away from and refrain from communicating with Liriano. (Defs.' 56.1 Stmt. ¶ 6; ECF No. 51–8, Order of Protection, dated May 30, 2007.) On June 22, 2007, plaintiff's criminal court case was dismissed. (Defs.' 56.1 Stmt. ¶ 8; ECF No. 51–10, Certificate of Disposition (“Certificate of Disposition”), dated June 22, 2007.) The parties disagree on whether plaintiff's lawyer took an adjournment in contemplation of dismissal (“ACD”) on his behalf. (Defs.' 56.1 Stmt. ¶ 9; ECF No. 52, Plaintiff's Response to Defendants' Rule 56.1 Statement (“Pl.'s 56.1 Stmt.) ¶ 9, dated Dec. 9, 2010; ECF No. 53, Plaintiff's Memorandum of Law (“Pl.'s Mem.”) at 11, dated Dec. 10, 2010.)

III. Plaintiff's Claims

Plaintiff alleges that the defendant officers, in falsely arresting, maliciously prosecuting, and strip searching him, violated his rights under the “First, Fourth, Fifth and Fourteenth Amendments of the Constitution pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. (Am. Compl. ¶...

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