Gagliano v. Cnty. of Suffolk

• Decision Date: 29 August 2022
• Docket Number: CV 18-1895 (JMA)(ARL)
• Parties: MICHAEL GAGLIANO, Plaintiff, v. COUNTY OF SUFFOLK, P.O. TIMOTHY VICINANZA, P.O. BRIAN McMURRAY, P.O. JOHN DOE 1-2, SGT. BRENDAN PILKINGTON and LT. JOHN ROE, Defendants.
• Court: U.S. District Court — Eastern District of New York

MICHAEL GAGLIANO, Plaintiff,
v.
COUNTY OF SUFFOLK, P.O. TIMOTHY VICINANZA, P.O. BRIAN McMURRAY, P.O. JOHN DOE 1-2, SGT. BRENDAN PILKINGTON and LT. JOHN ROE, Defendants.

No. CV 18-1895 (JMA)(ARL)

United States District Court, E.D. New York

August 29, 2022

REPORT AND RECOMMENDATION

ARLENE R. LINDSAY, UNITED STATES MAGISTRATE JUDGE

Plaintiff Michael Gagliano (“Plaintiff”) brings this action against the County of Suffolk (the “County”) and Suffolk County Police Officers Timothy Vicinanza,^[1] Brian McMurray and Brendan Pilkington (the “Individual Defendants, and together with the County, “Defendants”) for violation of his constitutional rights, pursuant to 42 USC § 1983 and the New York constitution, as well as for negligence. Before the Court, on referral from District Judge Azrack, is the motion by Defendants for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, the Court respectfully recommends that Defendants' motion be granted, in part, denied, in part.

BACKGROUND

I. Factual Background

A. Local Rule 56.1

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As an initial matter, the Court notes that Plaintiff failed to follow the directives of 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"). Local Rule 56.1 provides as follows:

The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried

Local Civil Rule 56.1(b); Suares v. Cityscape Tours, Inc., 603 Fed.Appx. 16, 17-18 (2d Cir. 2015). Here, Plaintiff did not respond to Defendants' Statement Pursuant to Local Rule 56.1 (“Def. Rule 56.1 Stmt.”). Instead, Plaintiff submitted an entirely new Local Rule 56.1 Statement, Plaintiff's Rule 56.1 Counter Statement of Material Facts (“Pl. Rule 56.1 Stmt.”), that does not respond to the numbered paragraphs in Defendants' Rule 56.1 Statement. "The rule states that each paragraph of the movant's statement that is not 'specifically controverted by a correspondingly numbered paragraph in' the counterstatement 'will be deemed to be admitted for purposes of the motion.'" Suares, 603 Fed.Appx. at 17-18; United States v. Schwartz, No. 18-CV-1583 (ARR) (VMS), 2022 U.S. Dist. LEXIS 127857 (E.D.N.Y. July 19, 2022) (where party opposing summary judgment submits their own statement of facts, rather that admitting or denying the statement of facts as presented, the moving parties' statement of facts deemed admitted); see also T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) ("A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible"). Accordingly, the facts set forth in Defendants' Rule 56.1 Statement are deemed admitted.

Additionally, the Court will disregard Plaintiff's Rule 56.1 Statement since Plaintiff is not moving for summary judgment and therefore this document is superfluous.

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See, e.g., Chen v. Stony Brook Univ., No. CV 15-6698 (JMA)(AYS), 2020 U.S. Dist. LEXIS 128608, 2020 WL 7047305 (E.D.N.Y. July 20, 2020) (Plaintiff's 56.1 Counter Statement of Material Facts, “is irrelevant since Plaintiff is not moving for summary judgment herein, but rather is merely responding to Defendants' motion. Accordingly, the Court will disregard Plaintiff's additional Counter-Statement of Material Facts”). However, mindful of the fact that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules" see Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001), the undersigned has also undertaken a comprehensive, independent review of the record. Accordingly, the facts that follow are still construed in the light most favorable to the non-moving party, except as otherwise noted. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).

B. Facts

The following facts are drawn from Defendants' Local Rule 56.1(a) Statement and are deemed admitted, unless otherwise noted.

Plaintiff Michael Gagliano is a citizen of the State of New York and a resident of Suffolk County. Compl. ¶ 3. On December 30, 2016, Plaintiff met several friends at a bar located in Patchogue, New York. Def. Rule 56.1 Stmt. ¶ 4. While at the bar, Plaintiff consumed a pint of beer. Id. at ¶ 5. The group then sat for dinner and Plaintiff consumed two more pints of beer and had some food. Id. at ¶ 6. Plaintiff left the bar at approximately 10:45 p.m. with a friend that had joined him at dinner. Id. After leaving the bar, Plaintiff went to his car which was parked in the lot behind the restaurant and was planning to drive his friend to her car which was parked approximately 1/8 to 1/4 mile from the bar. Id. at ¶ 8.

Plaintiff and his friend got into his car and drove out of the parking lot onto North Ocean Avenue and made a left turn to go north. Id. at ¶ 9. As he neared his friend's car, Plaintiff saw the headlights of a police vehicle coming up behind him. He pulled his car into a driveway of a

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medical building on the right side of the road. Id. at ¶ 10. Defendant Suffolk County Police Officer Timothy Vicinanza got out of the police vehicle and went over to Plaintiff's car.^[2] Id. at ¶ 12. According to Defendants, Officer Vicinanza smelled alcohol on Plaintiff's breath and noticed that his speech was slurred, his reactions were slowed and his pupils were constricted. Id. at ¶ 14. Officer Vicinanza asked Plaintiff where he was coming from and if he had been drinking. Id. Plaintiff acknowledged that he had consumed three pints of beer. Id. Officer Vicinanza asked Plaintiff if he had taken any medication and he replied that he had taken Wellbutrin.^[3] Id.

To determine whether Plaintiff was impaired by alcohol or drugs, Officer Vicinanza conducted several field sobriety tests. Id. at ¶ 15. First, he administered the horizontal gaze nystagmus test, noting that Plaintiff was swaying during the test, but the officer opined that Plaintiff had passed that test. Id. Officer Vicinanza then administered the walk and turn test, observing that Plaintiff failed the test since he displayed all eight clues of non-sobriety that the test looks for. Id. at ¶ 16. Officer Vicinanza did not note the clues that Plaintiff missed. Next, Officer Vicinanza had Plaintiff perform the one leg stand test. Id. at ¶ 17. According to Defendants, this test looks for four clues of non-sobriety with the presence of two being considered a failure, and Officer Vicinanza noted that Plaintiff exhibited all four clues. Id. Officer Vicinanza then gave Plaintiff the lack of convergence sobriety test, that Plaintiff passed. Id. at ¶ 18. Officer Vicinanza next conducted the Romberg test, a sobriety test that looks at the

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neurological function of balance and he observed that Plaintiff performed poorly on the Romberg test. Id. at ¶ 19. Finally, Officer Vicinanza administered a breath alcohol test to Plaintiff using a device called an Alco-Sensor. As he informed Plaintiff, the test indicated a blood alcohol level of .027. Id. at ¶ 20. This is below the threshold of .08 which is required for an arrest for driving while intoxicated. See N.Y. Vehicle and Traffic Law §1192.2 (“Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva”). Officer Vicinanza performed the field sobriety tests in accordance with the National Highway Traffic Safety Administration standards that he had been trained in. Id. at ¶ 21.

After performing all of the field sobriety tests, Officer Vicinanza testified he felt confident that Plaintiff should be arrested for driving while impaired, however, instead of proceeding with an arrest at that time, Officer Vicinanza called defendant Suffolk County Police Officer Brian McMurray for a second opinion because Officer McMurray is a Drug Recognition Expert (“DRE”) and Officer Vicinanza is not. Id. at ¶ 22. Officer Vicinanza told Officer McMurray that he had observed that Plaintiff's pupils were a little constricted, and that his performance on the walk and turn and one leg stand tests was consistent with drug impairment and he asked Officer McMurray to “take a look” at Plaintiff. Id. at ¶ 25. Officer Mc Murray asked Plaintiff if had had been drinking and Plaintiff said he had a “couple or a few.” Officer McMurray also asked Plaintiff if he had taken any medication and Plaintiff said that he had taken Wellbutrin. Id. at ¶ 26. Officer McMurray began conducting field sobriety tests. He first conducted the horizontal gaze nystagmus test. He checked Plaintiff's eyes for smooth pursuit and saw that he had smooth pursuit in both eyes. Id. at ¶ 27. Officer McMurray observed that

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Plaintiff's eyes were a little bloodshot and that his pupils were constricted with little to no reaction to light. He also observed that Plaintiff's speech was a little slurred and that he had “kind of a sway.” Further, he also observed that Plaintiff did not have distinct and sustained nystagmus at maximum deviation. Id. at ¶ 28. Officer McMurray then tested for Plaintiff's eyes for the onset of nystagmus prior to 45 degrees with a negative result. Next, he checked for vertical gaze nystagmus which is not a clue for impairment but an indication for certain drugs and alcohol. Officer McMurray observed no vertical gaze nystagmus. No clues of impairment were seen in this test. Id. at ¶ 29. Officer McMurray then Plaintiff perform the walk and turn test. Before the test...