Collom v. Incorporated Village of Freeport, NY
| Decision Date | 17 August 1988 |
| Docket Number | No. 86 C 2872.,86 C 2872. |
| Citation | 691 F. Supp. 637 |
| Parties | Robert COLLOM, Plaintiff, v. INCORPORATED VILLAGE OF FREEPORT, NEW YORK, a municipality within the State of New York; Joseph P. Stevens, Shield No. 162, individually and as an officer of the Police Department of the Incorporated Village of Freeport, New York; Mark Wittich, individually and as an officer of the Police Department of the Incorporated Village of Freeport, New York; Daniel Coppola, Shield No. 103, individually and as a detective of the Police Department of the Incorporated Village of Freeport, New York; Gregory B. Turner, Shield No. 104, individually and as a detective of the Police Department of the Incorporated Village of Freeport, New York; Claude F. Tristram, Shield No. 105, individually and as a detective of the Police Department of the Incorporated Village of Freeport, New York; Joseph W. King, Jr., individually and as a lieutenant of the Police Department of the Incorporated Village of Freeport; New York; Mary Jane Regan; James Regan; Virginia Lockyer; Daniel Plotnick; Andrew Plotnick and the County of Nassau, a municipality within the State of New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Arthur V. Graseck, Jr., Port Washington, N.Y., for plaintiff.
Montfort, Healy, McGuire & Salley (Michael A. Baranowicz, of counsel), Mineola, N.Y., for defendants The Incorporated Village of Freeport, Joseph P. Stevens, Mark Wittich, Daniel Coppola, Gregory G. Turner, Claude F. Tristram, Joseph W. King, Jr.
Schulman & Laifer (Michael A. O'Connor, of counsel), Brooklyn, N.Y., for defendants Mary Jane Regan, James Regan, Virginia Lockyer, Daniel Plotnick, Andrew Plotnick.
Edward T. O'Brien, Co. Atty. of Nassau County (Carnell T. Foskey, Deputy Co. Atty., of counsel), Mineola, N.Y., for defendant County of Nassau.
This action arises from an eviction dispute followed by the arrest and prosecution of plaintiff Robert Collom. He states numerous federal, constitutional claims under 42 U.S.C. § 1983 as well as pendent state claims against 13 defendants: the Incorporated Village of Freeport, New York (Freeport), six of its police officers (Officers), five persons involved in the eviction dispute, and the County of Nassau, New York. Freeport and the Officers move for summary judgment on all the claims against them.
The complaint alleges that plaintiff resided from January 1984 through August 31, 1985 in a house at 18 Porterfield Place in Freeport, New York, owned by defendant Virginia Lockyer. These parties had a month-to-month oral lease. Lockyer informed plaintiff on August 1, 1985 that the house had been sold and that he was to vacate it by September 5, 1985. Plaintiff further alleges that defendant Mary Jane Regan ordered him out on August 26, 1985.
The complaint states that on August 31, 1985 defendant Daniel Plotnick entered plaintiff's apartment without permission and assumed a menacing posture. Eventually Plotnick was joined by the other private defendants except for Lockyer. Plaintiff claims he banged a stick on a bannister to signal his displeasure with Plotnick's presence. Movants, relying on statements and sworn depositions from Plotnick and defendant Mary Jane Regan, contend that plaintiff swung at Plotnick's head, just missing or grazing it.
Shortly thereafter, officers Joseph Stevens and Mark Wittich of Freeport's police force arrived and entered the apartment at the invitation of plaintiff. The officers conversed with the disputants in separate conversations. Mary Jane Regan and Daniel Plotnick told them that they had come for items belonging to them that were stored on the premises and that plaintiff had swung at Plotnick's head. In a separate conversation, plaintiff says he told the officers that he merely banged the stick on the bannister and that Plotnick, who had come to steal plaintiff's belongings, was the aggressor. The officers claim and wrote in their reports that plaintiff admitted he swung the stick at Plotnick's head.
Officer Stevens told plaintiff that Plotnick and Regan had come for their property. Plaintiff consented to the removal of several items not belonging to him. Plaintiff objected when Plotnick began to remove plaintiff's bed and fan, and Plotnick desisted. Though the complaint alleges that some of plaintiff's property was removed in the presence of the officers, his sworn testimony at the notice of claim hearing does not make this contention.
Subsequently, as alleged by plaintiff, Officer Stevens said that the home owner had a warrant for plaintiff's eviction. When plaintiff asked to see the warrant, Stevens threatened to arrest him. Stevens denies making these statements. Later that evening, Plotnick vacated the apartment though he left certain bulky items.
On September 3, 1985, Mary Jane Regan and Daniel Plotnick each filed with the Nassau County District Attorney a criminal complaint accompanied by a sworn deposition stating that plaintiff had swung a stick at Plotnick's head. The following day, while plaintiff was retrieving items at the apartment, defendants Gregory Turner and Daniel Coppola, both detectives with the Freeport police, approached plaintiff in the driveway. After a discussion, plaintiff accompanied the officers to the station where further discussion was held. Turner claims, and plaintiff denies, that he again admitted to swinging the stick at Plotnick's head. Plaintiff claims he was placed under arrest. The officers say that plaintiff accompanied them to the station voluntarily.
On September 10, 1985, plaintiff phoned the Freeport police and was informed by Detective Turner that he would be placed under arrest. Plaintiff went to the station, was arrested on a charge of second-degree attempted assault, given an appearance ticket, and released. According to movants, it was thereafter realized that the charge was a felony requiring that plaintiff be arraigned and post bond. Later that day, Detective Turner, in the company of defendant Detective Claude Tristram, went to the home of plaintiff's son where plaintiff was staying and placed him under arrest. Plaintiff was returned to the police station, placed in handcuffs and transferred to the Nassau County Detention Facility where he was incarcerated overnight. He was arraigned the next day and released that evening.
The Nassau County District Attorney's office reduced the felony charge to misdemeanors of (1) criminal mischief, (2) reckless endangerment, (3) possession of a weapon, and (4) third degree attempted assault. The case was tried in Nassau County District Court in May 1987. The court dismissed the mischief charge, and the jury acquitted plaintiff on the remaining charges.
The complaint contains legal claims too numerous to detail. In substance, plaintiff seeks damages for (1) wrongful arrests, once on September 4, 1985 and twice on September 10, 1985, (2) wrongful prosecution and, with respect to the conduct of officers Wittich and Stevens on August 31, 1985, (3) assault, (4) intentional infliction of emotional distress and (5) wrongful eviction.
Plaintiff claims he was arrested three times, once on September 4, 1985 and twice on September 10, 1985, all without probable cause. Because the court concludes that there was probable cause to arrest plaintiff, movants' argument that no arrest occurred on September 4 need not be addressed.
Federal and New York law do not differ in their requirement that an arrest be supported by probable cause. Raysor v. Port Authority, 768 F.2d 34, 39-40 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). Because the alleged arrests were warrantless, defendants bear the burden of this showing by a preponderance of the evidence. Id. Probable cause exists where an officer believes reasonably and in good faith that a suspect committed a crime. See, e.g., Smith v. County of Nassau, 34 N.Y.2d 18, 24-25, 355 N.Y.S.2d 349, 311 N.E.2d 489 (1974). "In many cases where the victim has made a `positive' identification, the circumstances may be such as to warrant a court's finding reasonable cause as a matter of law." Id. at 25, 355 N.Y.S.2d 349, 311 N.E.2d 489.
Prior to the arrests alleged here, Mary Jane Regan and Daniel Plotnick filed complaints with sworn supporting depositions stating that plaintiff had swung a bat at Plotnick's head. Ordinarily, sworn complaints alleging the elements of a crime, see New York Penal Law § 120.05, warrant a court's concluding as a matter of law that an arrest based thereon was supported by probable cause. See, e.g., Romeo v. County of Oneida, 135 A.D.2d 1099, 523 N.Y.S. 2d 318, 319 (4th Dep't 1987).
On the other hand, where the evidence is conflicting such that reasonable persons might draw differing inferences, then the question of probable cause is ordinarily for the jury to decide. See, e.g., Veras v. Truth Verification Corp., 87 A.D.2d 381, 451 N.Y.S.2d 761, 764 (1st Dep't), aff'd, 57 N.Y.2d 947, 457 N.Y.S.2d 241, 443 N.E.2d 489 (1982). In this case, the court assumes the truth of plaintiff's allegation that he told the officers that Plotnick was the aggressor and that he merely rapped the stick on the bannister.
The court is unaware of any controlling civil cases in New York or the Second Circuit addressing the situation herein where there is a "swearing contest" between disputants as to the events that have transpired. It is fair to say that police officers frequently encounter this scenario following street fights and the like. In the court's view, the existence of competing accounts cannot of itself render the issue of probable cause a jury question. In these cases, the question is not whether a given account contains the necessary quantum of evidence to support an arrest, but which account is to be believed. If the mere existence of a "swearing contest" permitted a jury to reexamine an officer's decision, law enforcement...
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