Getlin v. Zoll
| Decision Date | 20 April 2010 |
| Docket Number | Civil Action No. 08-1872. |
| Citation | 707 F.Supp.2d 369 |
| Parties | Dorian GETLIN, Plaintiff,v.P.O. John ZOLL and The Incorporated Village of Hempstead, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Law Offices of Alan D. Levine by Alan D. Levine, Esq., Kew Gardens, NY, for Plaintiff.
Jaspan Schlessinger LLP by Laurel R. Kretzing, Esq., Seth Presser, Esq., for Defendants.
Dorian Getlin (“Plaintiff”) commenced this action alleging inter alia, that Defendants violated his Fourth Amendment Rights by subjecting him to excessive force. Presently before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the motion is granted in part and denied in part.
The following facts are undisputed unless otherwise noted.
On or about February 16, 2007, at approximately 1:30 a.m. Plaintiff left his house and, while under the influence of drugs and/or alcohol, drove a borrowed automobile to Terrace Avenue in the Village of Hempstead and purchased narcotics. Plaintiff was then followed in a low speed chase by police officers, including defendant P.O. Zoll (“Zoll”), an employee of defendant Incorporated Village of Hempstead (“Hempstead”). The chase ended on a dead-end street in Merrick, New York at approximately 2:45 a.m, at which time Plaintiff was being pursued not only by Zoll in an unmarked car but by four marked police cars. What happened on that dead-end street is in dispute.
According to Plaintiff, when he attempted to turn his vehicle around on the dead end street there was a police officer standing on the side of the vehicle. He further avers that police officers did not leave their patrol cars until he had already stopped. He claims he “put the car in park, turned the engine off, pulled the keys out, threw them on the dashboard and put [his] hands up.” He saw police coming at him with their guns drawn, some yelling for him to put his hands up and freeze while others yelling for him to get out of the vehicle. Afraid that his reaching for the door to exit might be mistaken for reaching for a weapon, Plaintiff began repeatedly yelling “don't shoot.” Then, He slumped over and started coughing up blood. “The next thing [he] felt was a bunch of sets of hands grab [him], all parts of [his] body, you know, and just rip [his] seat belt off, and just drag [him] through the window and right ... out in the street.” The officers then began kicking and punching Plaintiff. Ex. D to Levine Declar. at 123-29.
According to defendants, police officers blocked the only exit from the street with their vehicles and began approaching plaintiff's vehicle with weapons drawn and yelling for plaintiff to stop and exit the vehicle. Plaintiff attempted to make a u-turn with his vehicle, driving it over the front lawn of one or more homes until a physical barrier forced plaintiff to turn back into the street. Plaintiff then pointed his vehicle toward a Nassau County police officer who was near enough to plaintiff's car that the officer was at risk of serious physical injury. Again numerous officers yelled verbal commands for plaintiff to stop and exit. The Nassau County officer took several steps backward as the vehicle approached at a rate of approximately ten to fifteen miles per hour. When the vehicle was about ten feet away from the Nassau County officer, Zoll believed there was a very real and very imminent threat of serious bodily injury and fired one shot through the driver's side window of plaintiff's vehicle, striking plaintiff. Plaintiff then refused to exit the vehicle and it took five officers to take him into custody. The force used was only that necessary to affect the arrest; no kicking or punching occurred.
It is undisputed that Plaintiff was arrested and received medical treatment for his wounds. Plaintiff was charged with reckless endangerment in the first degree, resisting arrest, criminal possession of a controlled substance, driving while ability impaired by drugs, reckless driving, and failure to stop at a stoplight.
On April 24, 2008, Plaintiff pled guilty to reckless endangerment in the second degree, a class A misdemeanor and to operating a motor vehicle while under the influence of alcohol or drugs, a violation. “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” N.Y. Penal Law § 120.20. The following is an excerpt from Plaintiff's plea allocution:
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). The relevant governing law in each case determines which facts are material; “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the nonmovant, that no rational jury could find in the non-movant's favor. See SCR Joint Venture, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996). The non-movant must present more than a “scintilla of evidence,” Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505), or “some metaphysical doubt as to the material facts,” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must “set forth facts as would be admissible in evidence,” and must show that the affiant is “competent to testify to the matters stated therein.” Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir.2004) (citing Fed.R.Civ.P. 56(e)). “Rule 56(e)'s requirement the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial.” Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999)).
When determining whether a genuinely disputed factual issue exists, “a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability,” or “the substantive evidentiary standards that apply to the case.” Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505. A district court considering a summary judgment motion must also be “mindful of the underlying standards and burdens of proof,” Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir.1997) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505), because of the evidentiary...
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