Dean v. City of Buffalo

• Decision Date: 30 September 2008
• Docket Number: No. 02-CV-6029P.,02-CV-6029P.
• Citation: 579 F.Supp.2d 391
• Parties: Andrew DEAN and Aaron Horowitz, Plaintiffs, v. CITY OF BUFFALO, et al., Defendants.
• Court: U.S. District Court — Western District of New York

579 F.Supp.2d 391

Andrew DEAN and Aaron Horowitz, Plaintiffs, v. CITY OF BUFFALO, et al., Defendants.

No. 02-CV-6029P.

United States District Court, W.D. New York.

September 30, 2008.

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Steven M. Cohen, Lorenzo & Cohen, Buffalo, NY, for Plaintiffs.

Craig Dexter Hannah, City of Buffalo Department of Law, Lisa Marie Yaeger, City of Buffalo Corporation Counsel's Office, Jeffrey Alan Carlino, Thomas M. Moll, Goldberg Segalla LLP, Buffalo, NY, Erin Patricia Mead, Mandy McFarland, Thorn, Gershon, Tymann & Bonanni, LLP, Albany, NY, for Defendants.

DECISION & ORDER

MARIAN W. PAYSON, United States Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiffs Andrew Dean ("Dean") and Aaron Horowitz ("Horowitz") initiated this action on January 16, 2002 against defendants WPH Midtown Associates, Hart Hotels, Inc., Shamrock Security, Inc., Earl Perrin, the City of Buffalo, the Buffalo Police Department and various officers of the Buffalo Police Department. (Docket ## 1, 33). Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 45). Currently before this Court are two separate motions for summary judgment, the first filed by defendants WPH Midtown Associates and Hart Hotels, Inc. (Docket # 101) and the second filed by defendants Shamrock Security, Inc. and Earl Perrin (Docket #120). Plaintiffs oppose both motions.

BACKGROUND

The following facts are undisputed except where otherwise noted. (See Docket ## 33, 104, 105, 111, 122, 123, 124, 129). Defendants WPH Midtown Associates and Hart Hotels, Inc. (collectively, "the Hart Hotel defendants") are the owner and operator, respectively, of the Holiday Inn hotel located at 629 Delaware Avenue, Buffalo, New York. Prior to the events giving rise to this lawsuit, the Hart Hotel defendants had contracted with defendant Shamrock Security, Inc. ("Shamrock") to provide security services for the Holiday Inn. Shamrock is owned and managed by Edward Cotter, who was an officer with the Buffalo Police Department at all times relevant to this litigation. Cotter's practice was to hire only active police officers to serve as security guards in their offduty hours, and defendant Earl Perrin ("Perrin") was one of those officers hired by Shamrock as a security guard.

On October 21, 2000, while Perrin was working his scheduled shift as a Buffalo police officer, Shamrock contacted him to request that he work the overnight security shift at the Holiday Inn. Perrin agreed to do so, but did not have a change of clothing with him. At the conclusion of his police shift, Perrin reported directly to the Holiday Inn and removed certain portions of his police uniform, such as his hat and utility belt. Perrin wore the remainder of his police uniform and carried his firearm in a holster during his security shift at the hotel.

That night plaintiffs Dean and Horowitz were guests of the hotel, assigned to room 618. Earlier that evening, Dean and Horowitz had attended a concert in Buffalo and then had spent the late night and early morning hours in the Buffalo area. Sometime after 4:00 a.m., on October 22nd, they hailed a taxi and returned to the hotel. Plaintiffs allege that when they returned to the hotel, the lobby was empty and the front desk was unattended. Defendants maintain that the front desk was staffed throughout the night.

Shortly after plaintiffs returned to the hotel, hotel staff received complaints about excessive noise coming from room 618. The front desk manager, Carol Bonner ("Bonner"), notified Perrin of the disturbance and asked him to investigate.

Plaintiffs allege that not long after they retired to their room, someone arrived outside their door, began to yell, pound the door and attempt to kick it in. Plaintiffs secured the door and looked through the peephole into the hallway. They observed a man who resembled the driver of the taxi that had driven them to the hotel. According to plaintiffs, the man beat upon their door, demanded entry and threatened them with physical and bodily harm. Plaintiffs yelled through the door that they were calling the police, and the man left. They then called 911 to report the incident, and the dispatcher replied that officers would respond to the scene. Plaintiffs allege that they also called the front desk, but that their call was not answered.

A short time later, plaintiffs allege, two other individuals arrived outside their door, demanded entry and threatened plaintiffs. Plaintiffs did not know who they were, and they did not identify themselves. Only later did they learn that one of the individuals was Perrin. Plaintiffs again called 911 and requested police assistance.

Defendants Tim Downs and Steven Malkowski, lieutenants with the Buffalo Police Department, responded to the scene. According to plaintiffs, they did not identify themselves as police officers and instead joined Perrin in pounding on the door, demanding admittance into the room and threatening plaintiffs with physical harm. The plaintiffs again called 911 and asked the dispatcher to confirm the badge numbers of the individuals outside the hotel room. Plaintiffs were told that could not be done. Plaintiffs claim that they also made several calls to the front desk in an attempt to identify the persons outside their door, but that those calls also went unanswered.

All parties agree that the officers eventually released pepper spray into the room, prompting plaintiffs to open their door. At that point, according to plaintiffs, the officers and Perrin entered the room, and Perrin punched Horowitz in the face. The officers handcuffed and arrested both plaintiffs.

Defendants maintain that the events at issue did not transpire in the manner that plaintiffs have described. Rather, according to them, after Perrin was directed to investigate the noise complaint for room 618, he went to plaintiffs' room and identified himself as a security guard. He asked plaintiffs to quiet down or vacate the premises, and plaintiffs responded by challenging Perrin's representation that he was a security guard and maintaining instead that he was their taxi driver. They refused to quiet down and began to shout obscenities and racially derogatory remarks at Perrin. Perrin then left the area outside their room.

Perrin returned to room 618 a short time later accompanied by Bonner. Perrin and Bonner identified themselves and requested that plaintiffs quiet down or leave. Plaintiffs again refused to acknowledge Perrin as a security guard, continued to yell disparaging remarks and refused to leave. Because plaintiffs ignored Perrin's and Bonner's requests to quiet down or leave voluntarily, they contacted the Buffalo Police Department to request assistance in removing plaintiffs from the hotel.¹ Lieutenants Malkowski and Downs responded to the hotel, advised plaintiffs that the hotel wanted them to leave and asked them to open the door and leave the hotel. Plaintiffs refused to open the door all the way, but did eventually crack the door slightly while keeping the security latch engaged. Although the officers displayed their police badges and uniforms to plaintiffs through the opening, plaintiffs persisted in their refusal to open the door. Faced with plaintiffs' continued refusal to vacate the room, the officers deployed pepper spray into their room to force their exit. Once the spray was activated, plaintiffs opened the door, and Lieutenants Malkowski and Downs entered the room and arrested them. Perrin denies that he entered plaintiffs' hotel room or that he assisted in subduing or arresting either plaintiff.

DISCUSSION

The Hart Hotel defendants move for judgment as a matter of law as to each of the claims asserted against them in plaintiffs' complaint. (Docket # 101). Perrin and Shamrock also move for summary judgment as to those claims raised against them. (Docket # 120). Plaintiffs oppose both motions. (Docket ## 111, 130).

I. Standard for Summary Judgment

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there exist any disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coach Leatherware Co., Inc. v. AnnTaylor. Inc., 933 F.2d 162, 166-67 (2d Cir. 1991).

A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Catanzaro v. Weilden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, after which the nonmoving party must come forward with sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based upon conjecture, surmise or the existence of "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d at 982 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The party opposing summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in [Rule 56]—set out specific facts showing a genuine...