Croke v. Cnty. of Suffolk
| Decision Date | 21 September 2021 |
| Docket Number | 19-cv-4124 (DLI) (PK) |
| Parties | MARY ELLEN CROKE and J.C., a minor child, Plaintiffs, v. THE COUNTY OF SUFFOLK, THE HONORABLE ERROL D. TOULON JR., THE DULY ELECTED SHERIFF OF SUFFOLK COUNTY, PETER KIRWIN, individually and as a Deputy Suffolk County Sheriff, VINCENT APARICIO, individually and as a Deputy Suffolk County Sheriff, GEORGE LYNN, individually and as a Deputy Suffolk County Sheriff, DOUGLAS BASSEMIR, individually and as a Deputy Suffolk County Sheriff, MARK SCARANO, individually and as a Deputy Suffolk County Sheriff, JAMES EVANS, individually and as a Deputy Suffolk County Sheriff, individually and as a Deputy Suffolk County Sheriff, THOMAS LYONS, individually and as a Deputy Suffolk County Sheriff, UNKNOWN DEPUTY SUFFOLK COUNTY SHERIFFS 1-10, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On July 17, 2019, Mary Ellen Croke (“Croke”) commenced this action pursuant to 42 U.S.C. § 1983 on behalf of herself and her minor grandson, J.C. (collectively “Plaintiffs”) against the County of Suffolk, the Honorable Errol D. Toulon Jr., the Duly Elected Sheriff of Suffolk County, Deputy Suffolk County Sheriffs Peter Kirwin (“Kirwin”), Vincent Aparicio, George Lynn Douglas Bassemir, Mark Scarano, James Evans, and Thomas Lyons (“Lyons”) in their individual and official capacities (collectively “Defendants”)[1]. Croke contends that the individual defendants illegally entered her home without a warrant, used excessive force, unlawfully searched and seized her vehicle and maliciously prosecuted her in violation of the Fourth Amendment. Croke further asserts Monell claims against the County of Suffolk and New York State law causes of action for unlawful/false imprisonment, intentional infliction of emotional distress, and excessive force. See, generally, Compl., Dkt. Entry No. 1; Monell v. Dep't of Soc. Servs. Of City of N.Y. 436 U.S. 658 (1978). Plaintiff J.C. asserts a cause of action for battery pursuant to 42 U.S.C. § 1983 and New York State law causes of action for intentional infliction of emotional distress and excessive force. Subsequently, Plaintiffs filed an Amended Complaint and a second Amended Complaint, adding the state law cause of action for intentional violation of a known constitutional right. See, Am. Compl., Dkt. Entry No. 13; Second Am. Compl. (“SAC”), Dkt. Entry No. 27.
On January 22, 2021, Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. See, Defs.' Mem. of Law in Supp. of Mot. for Summary J. Pursuant to R. 56 (“Def. Mem.”), Dkt. Entry No. 40-26; Defs.' Statement Pursuant to Local R. 56.1 (“Def. 56.1”), Dkt. Entry No. 40-1. Plaintiffs opposed the motion. See, Pls.' Mem. in Opp'n to Defs.' Mot. for Summary J. (“Pl. Opp'n”), Dkt. Entry No. 40-34; Pls.' Statement Pursuant to Local R. 56.1 (“Pl. 56.1”), Dkt. Entry No. 40-28. Defendants replied. See, Defs.' Reply Mem. of Law (“Def. Reply”), Dkt. Entry No. 40-36.
For the reasons set forth below, Defendants' motion is granted in its entirety.
Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”) requires a party moving for summary judgment to submit “a separate, short and concise statement, in numbered paragraphs” setting forth material facts as to which there is no genuine issue to be tried. See, Local Civ. R. 56.1(a). A party opposing a motion for summary judgment must submit “a corresponding numbered paragraph responding to each numbered paragraph in the statement of the moving party.” See, Local Civ. R. 56.1(b). The facts set forth in the moving party's Rule 56.1 Statement will be deemed admitted “unless specifically controverted by a correspondingly numbered paragraph” in the opposing party's Rule 56.1 Statement. See, Local Civ. R. 56.1(c); Holtz v. Rockefeller & Co., 258 F.3d 62, 72 (2d Cir. 2001).
Here, Defendants submitted a statement of undisputed facts pursuant to Local Rule 56.1. See, Def. 56.1. Rather than responding to Defendants' Rule 56.1 Statement as required by Local Rule 56.1, Plaintiffs submitted a non-corresponding Rule 56.1 Statement. See, Pl. 56.1. Accordingly, the facts set forth in Defendants' Rule 56.1 Statement are deemed admitted. See, Estate of Keenan v. Hoffman-Rosenfeld, 2019 WL 3416374, at *12 (E.D.N.Y. July 29, 2019), aff'd, 833 Fed.Appx. 489 (2d Cir. 2020) ().
Nonetheless, Defendants are not absolved of their burden to show that they are entitled to judgment as a matter of law, and their Local Rule 56.1 statement is not a “vehicle for making factual assertions that are otherwise unsupported in the record.” Holtz, 258 F.3d at 74; See also, Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ( ) (citation omitted).
On February 6, 2018, Croke's daughter, Denise Croke (“Denise”), was driving Croke's car with J.C. in the passenger seat. Def. 56.1 at ¶¶ 1, 3. Denise entered a parking lot without stopping at an intersection and parked the car. Id. at ¶ 2. Deputy Sheriff Kirwin, who was on traffic duty at the time, approached the vehicle and informed Denise that she had failed to stop at the stop sign. Id. at ¶¶ 1, 4-5. In response, Denise laughed and made a comment regarding his “attitude.” Id. at ¶ 5. Denise refused to provide her identification to Kirwin, so he could not issue her a summons for the traffic infraction. Id. at ¶¶ 6-7. Accordingly, he informed Denise that she was under arrest and asked her to exit the car. Id. at ¶¶ 7-9. Denise refused and, instead, instructed J.C. to get out of the car. Id. at ¶ 9. She then moved from the driver's seat to the front passenger's seat and attempted to exit from the front passenger door to elude Kirwin. Id. at ¶ 9. Kirwin grabbed Denise's hand to handcuff her, but she jumped back into the car and J.C. followed. Id. at ¶ 10.
Denise started the car and attempted to drive away as Kirwin held onto the door. Id. at ¶ 12. Kirwin was injured when he lost his grip and fell as Denise drove out of the parking lot. Id. Denise drove to the house that she shared with Croke. Id. at ¶ 13. Kirwin radioed for backup and drove after Denise. Id. at ¶¶ 13, 15. Denise and J.C. got out of the car and ran inside the house, followed by Kirwin. Id. at ¶¶ 16-19. Once inside, Denise ran up the stairs, and Kirwin attempted to follow her, but Croke blocked him. Id. at ¶¶ 20-22. Kirwin informed Croke that Denise was under arrest and, if she continued to interfere with Denise's arrest, Croke also would be arrested. Id. at ¶ 25. Croke told Kirwin to leave her house because he did not have a warrant and instructed J.C. to call the police and bring her the phone. Id. at ¶¶ 26-27. Kirwin then pepper sprayed Croke in the face. Id. at ¶ 32. J.C. was “approximately 8-13 feet from [Croke], when the pepper spray was discharged.” Id. at ¶ 33; J.C. Dep. at 51; Croke Dep. at 60.
Shortly thereafter, Deputy Sheriff Lyons arrived and ran up the stairs toward Denise, pushing Croke aside. Def. 56.1 at ¶¶ 35-36. Kirwin and Lyons handcuffed Denise and took her outside, followed by Croke. Id. at ¶¶ 37-40. Croke later was arrested and charged with resisting arrest in violation of N.Y. Penal Law (“PL”) § 205.30 for attempting to prevent Kirwin from arresting Denise. Id. at ¶¶ 41, 48. Denise was charged with second and third degree assault, resisting arrest, endangering the welfare of a child, and unlawful flight from a police officer in a motor vehicle. Id. at 49. The assault charges resulted from injuries Kirwin sustained as a result of Denise's operation of Croke's vehicle. Id.; See also, Felony Compl., Dkt. Entry No. 40-19. Croke was taken to Peconic Bay Medical Center to be treated for the effects of the pepper spray. Def. 56.1 at ¶¶ 43-44. J.C. was not treated for any injuries. Id. at ¶ 47.
On February 6, 2018, a Notice of Seizure and Hearing was issued to Croke, advising her that her car had been seized and impounded by the Suffolk County Police Department based on Denise's arrest. Def. 56.1 at ¶ 53. On February 22, 2018, Croke and the County executed a stipulation agreeing to release the car to Croke and that Denise would not be drive it again. Id. at ¶ 54. On March 9, 2018, the Suffolk County District Attorney's Office notified Croke that the car was ready to be released to her. Id. at ¶¶ 54-56. On March 14, 2019, the charges against Croke were dismissed. Id. at ¶ 50. On July 17, 2019, this action ensued.
Summary judgment is appropriate where “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). In deciding a motion for summary judgment, the court “must resolve all ambiguities, and credit all factual inferences that could rationally be drawn in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citations omitted). A fact is “material” if it “might affect the outcome of the suit under governing law.” Id. (internal quotation marks and citations omitted). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the...
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