Digennaro v. Gates Police Dep't

Decision Date17 June 2013
Docket Number07-CV-6426 CJS
PartiesMARY DIGENNARO, Individually and as Limited Executrix of the Estate of Albert DiGennaro, on behalf of all distributees, Plaintiff, v. TOWN OF GATES POLICE DEPARTMENT, POLICE CHIEF DAVID R. DICARO, LT. JAMES VANBREDERODE, OFFICER CARL BONFERRARO, OFFICER DANIEL LOOMIS, TOWN OF GATES, and JOHN DOE, being other unknown Gates Police Department Personnel, individually and in their official capacity, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
DECISION AND ORDER

APPEARANCES

For Plaintiff:

Jeffrey Wicks, Esq.

Jeffrey Wicks, PLLC

For Defendants:

Michael B. Risman, Esq.

Hodgson Russ LLP

INTRODUCTION

This is an action in which Mary DiGennaro ("Plaintiff" or "Mrs. DiGennaro") alleges that Defendants violated the constitutional rights of herself and her husband, Albert DiGennaro ("Albert"), and committed state-law torts, during the course of a police arrest in which Albert died. Now before the Court is Defendant's motion for summary judgment. (Docket No. [#77]). The application is granted.

BACKGROUND

Unless otherwise noted, the following are the facts of this case viewed in the light most-favorable to Plaintiff. At all relevant times, Lieutenant James VanBrederode ("VanBrederode"), Officer Carl Bonferraro ("Bonferraro") and Officer Daniel Loomis ("Loomis") were all employed as police officers by the Town of Gates Police Department in Gates, New York. At all relevant times, R.D. was an adult, mentally ill man who lived with his elderly parents, Albert DiGennaro and Mary DiGennaro, at their home in Gates. According to Mrs. DiGennaro, R.D. was "bipolar" and "schizophrenic," and since 2006 had thought that "everyone was out to get him." Mary DiGennaro Dep. [#77-3] at 26-27.

The DiGennaro home was well-known to the Gates Police Department because of R.D.'s bizarre and threatening behavior, which was often directed at the DiGennaro's neighbors.2 See, e.g., Mary DiGennaro Dep. [#77-3] at 150-151. As examples of this, R.D. had damaged neighbors' vehicles and property, detonated home-made bombs and, on at least one occasion, sat on the hood of a car in his parents' driveway while cleaning a rifle. Diane Hayes Dep. [#77-4] at 92. R.D.'s behavior resulted in several of the neighborsinstalling video surveillance cameras on their homes. Id. at 22-25. Neighbors also called officers from the Gates Police Department to the DiGennaro residence on several occasions because of R.D.'s behavior. On one such occasion, police responded after R.D. had been "carrying a rifle around," because he thought that "the mob was after him." Mary DiGennaro Dep. [#77-3] at 62.

On another occasion, in June 2006, Mrs. DiGennaro herself called the Gates Police after R.D. escaped from a mental hospital and returned home. In response to Mrs. DiGennaro's call, VanBrederode and Bonferraro, as well as other officers, went to the home to arrest R.D., and found him in the bathtub holding a pit bull dog. VanBrederode Aff. [#78-3] at ¶ 14. On that occasion, Albert attempted to prevent the officers from taking R.D. into custody. Id. at ¶ 16. During that incident, officers confiscated two hunting rifles and a BB gun. However, a few months later the officers returned the guns to the DiGennaro residence after Albert falsely indicated that the guns belonged to him and not R.D.3 Mary DiGennaro Dep. [#77-3] at 62-63.

From these contacts with the DiGennaro family, the Gates Police were aware that both R.D. and Albert were combative toward, and uncooperative with, the police. According to Mrs. DiGennaro, Albert, in particular, was "real excitable" and did not like police officers, because he thought that they were just "looking for trouble." Mary DiGennaro Dep. [#77-3] at 55-56. Because of Albert's and R.D.'s attitude toward the police, Mrs. DiGennaro worried about police visits to her house, and would retreat to her bedroom when they occurred, because she felt that the police visits, and her husband'sreactions to them, were "scary." Id. at 98-99. Gates Police were also aware, from their prior contacts with the DiGennaros, that Albert and R.D. had access to the aforementioned rifles. In particular, VanBrederode was aware that Albert "routinely kept a rifle behind the front door." VanBrederode Aff. [#78-3] at ¶ 18.

According to Mrs. DiGennaro, between July 2006 and November 2006, R.D. was "way out of it," "hallucinatory" and "talking crazy." Mary DiGennaro Dep. [#77-3] at 31. On or about October 28, 2006, R.D. intentionally damaged a video camera on a neighbor's property, which resulted in the Gates Police Department obtaining a warrant for his arrest.4 On or about October 28, 2006, a Gates Police Officer went to the DiGennaro residence to execute the warrant, but R.D. was not home, because he had left to stay at another family property for a few days. Id. at 103. On the morning of November 1, 2006, R.D. returned to the home, and a neighbor called the police to notify them that R.D. had returned. Later that morning, VanBrederode, Loomis and Bonferraro went to the DiGennaro home to arrest R.D., pursuant to the aforementioned warrant. Parts of the ensuing encounter were observed by at least two neighbors, and were also recorded by a video camera mounted on a house across the street from the DiGenarro residence.

On the day in question, Albert DiGennaro, a retired construction worker, was eighty years of age, and used a cane because of arthritis in his knees. Albert generally distrusted doctors, and did not have a regular physician. Mary DiGennaro Dep. [#77-3] at 33-34. In 1982, Albert suffered a heart attack, and was prescribed medication, but he eventually decided on his own to stop taking the medication. Id. at 36-37. Subsequently, Albert didnot seek treatment from a cardiologist. Id. at 37. During the period between 2000 and 2006, Albert sought medical attention possibly twice - once to have fluid removed from his knee and once, on October 3, 2006, because of chest pains. Id. While seeking medical attention for chest pain in October 2006, at Park Ridge Hospital, Albert declined treatment because he did not want to stay overnight at the hospital. Id. at 33, 43. Albert generally took aspirin when he had chest pains, and early on the morning of November 1, 2006, he told Mrs. DiGennaro that he did not feel well, and took aspirin. However, Mrs. DiGennaro is not sure whether he did so because of his arthritis or because of chest pain. Id. at 52. Later that morning, Albert told Mrs. DiGennaro that he felt well enough to attend their senior citizen's center.

In any event, on the morning of November 1, 2006, at approximately 10:27 a.m., Officers VanBrederode, Loomis and Bonferraro arrived at the DiGennaro residence to execute the warrant. After Bonferraro surveilled the back of the house and confirmed that R.D. was inside, Van Brederode and Loomis went to the front door and knocked. R.D. told Albert not to let the officers in the house, and Mrs. DiGennaro retreated to her room because she did not want to witness the impending confrontation. After Albert opened the door a crack, VanBrederode and Loomis told Albert that they had a warrant, but Albert swore at them and closed the door. Mary DiGennaro Dep. [#77-3] at 128. During the events that immediately followed, Mrs. DiGennaro remained in her room, and R.D. remained in his room, where he was attempting to telephone his lawyer. Consequently, it does not appear that either Mrs. DiGennaro or R.D. witnessed the confrontation at the front door.

Moreover, video footage taken from across the street is grainy, and does not clearly show what happened inside the doorway. However, the video footage does clearly show VanBrederode kicking open the door, and then appearing to struggle with Albert in the doorway for many seconds. According to VanBrederode, after Albert refused to open the door, VanBrederode succeeded in kicking the door open some distance, though Albert, who was 5' 5" tall and weighed 192 pounds, continued to block the doorway with his body and to press against the door to prevent it from opening fully. VanBrederode attempted to move Albert out of the way, but Albert continued to block the doorway. VanBrederode then sprayed Albert twice in the face with pepper spray. Albert, though, seemed unfazed and continued to block the door. Van Brederode and Loomis then pulled Albert out the door, and down the steps of the house to the front yard.

The above mentioned videotape of the incident, which the Court has reviewed numerous times, while grainy, appears to show that as Van Brederode and Loomis pulled Albert down the small porch stoop, consisting of perhaps three steps, Albert's momentum carried him down to the lawn. It does not appear to the Court that the officers "threw" Albert on the ground. Plaintiff, though, contends that the videotape shows Albert being thrown to the lawn with such force that he "bounced." Pl. Memo of Law [#90-4] at 7-8. Moreover, Stacy Head ("Head"), a neighbor who claims to have witnessed the event from across the street indicates that the officers "threw" Albert on the ground with "a lot of force." Stacy Head Dep. at 11.5

Once Albert was on the lawn, Loomis handcuffed him, though Albert resisted being handcuffed. While this was happening, Albert repeatedly yelled at the officers, calling them "heartless," and demanding that they give him his cane. The officers placed Albert in a sitting or kneeling position on the lawn, and VanBrederode went inside the house to arrest R.D.. According to Loomis, Albert did not appear to be injured or in any distress at that time. Loomis Aff. [#79] at ¶ 37. VanBrederode brought R.D. outside, placed him on the ground and handcuffed him. Bonferraro then began walking R.D. to a patrol car, when Albert slumped over. Upon seeing his father slump over, R.D. began yelling, "He's having a heart attack, call an ambulance." See, Report [#78-6] at 3. According to VanBrederode, he turned Albert from his side onto his back and...

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