Ostroski v. Town of Southold
| Decision Date | 21 July 2006 |
| Docket Number | No. 99-CV-2648(JFB).,99-CV-2648(JFB). |
| Citation | 443 F.Supp.2d 325 |
| Parties | Debra OSTROSKI, Plaintiff, v. TOWN OF SOUTHOLD, Vincent Tirelli, Individually and as a Town of Southold Police Officer; Kevin Lynch, Individually and as a Town of Southold Police Officer; Richard Perkins, Individually and as a Town of Southold Police Officer; Tom Beebe, Individually and as a Town of Southold Police Officer; Joseph Conway, Jr., Individually and as a Town of Southold Police Officer; Ned Grathol, Individually and as a Town of Southold Police Officer, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Thomas F. Liotti, Esq., Garden City, NY, for plaintiff.
Dominic P. Bianco, Esq., and Michael P. Biancanello, Esq. of Gallagher, Walker, Bianco and Platsaras, Esqs., Mineola, NY, for defendants.
Plaintiff Debra Ostroski brought this action, alleging claims for violation of her civil rights under 42 U.S.C. § 1983 and pendent claims under state law. Defendants move for summary judgment on all claims. For the reasons stated below, summary judgment is granted for all claims other than plaintiff's claims against the individual officer defendants for malicious prosecution and excessive force under § 1983, and malicious prosecution, assault, and battery under New York law. Because the Court grants summary judgment for the Town of Southold, dismissing plaintiff's claim for municipal liability under § 1983, the Town of Southold is dismissed as a party from this lawsuit.
The following facts are undisputed unless otherwise indicated. On May 15, 1997, Florence Ostroski called 911 regarding a domestic dispute at her residence between her children, Debra Ostroski, plaintiff, and Butch Ostroski, plaintiff's brother. (See Plaintiff's Rule 56.1 Statement of Material Facts ("56.1 Statement"), ¶ 5.) During the call, Florence Ostroski told the 911 operator that plaintiff and her brother were going to retrieve weapons, a gun and a knife, that were located on the premises. (See Declaration of Michael P. Biancanello ("Biancanello Aff."), Ex. D; see also Plaintiff's 56.1 Statement, 6; see also Defendants' 56.1 Statement, 114.) After receiving the call, the Town of Southold police department dispatched officers to the Ostroski residence. (See Plaintiffs 56.1 Statement, ¶ 5.) A number of officers arrived at the scene, including defendants Vincent Tirelli, Kevin Lynch, Richard Perkins, Ted Beebe and Joseph Conway, Jr.
The events which occurred after the officers arrived at the scene are largely disputed. According to the police report and the testimony of several officers at the plaintiffs subsequent criminal trial, discussed infra, Florence Ostroski specifically requested that the officers remove the shotgun that was located in plaintiffs bedroom. (See Defendants' 56.1 Statement, 114; see also Biancanello Aff., Exs. E, G at vol. 1., p. 150, 172; vol. 2, p. 38.) Officer Tirelli testified that when he and Officer Perkins attempted to go upstairs and retrieve the guns, plaintiff blocked their path and informed the officers that they were not going to take the guns. (See id., Ex. G at vol. 1, pp. 151-52.) Tirelli and Sergeant Lynch both testified that plaintiff initiated physical contact with Tirelli and Perkins, and then informed plaintiff that she was under arrest. (See id., Ex. G at vol. 1, pp. 152, 213-14; vol. 2, pp. 92-93.) The officers then struggled to subdue plaintiff to the ground, and finally handcuffed her. (See id., Ex. G at vol 2., p. 94.) The officers placed plaintiff in the back seat of the patrol car, and she subsequently kicked out the rear window of the vehicle. (See Plaintiffs 56.1 Statement, ¶ 10.)
According to plaintiff's account of the events, after the officers arrived at the scene, they began to engage in a heated verbal exchange, and plaintiff called one of the officers a "pig." (See Biancanello Aff., Ex. G., at vol. 3, p. 92.) After the police officers informed her that they were going to remove the guns, she protested the fact that they did not have a warrant. (See id.) According to plaintiff, Lynch replied, "I am the Search Warrant." (Id.) Both plaintiff and her mother testified that the officers then initiated physical contact. (See id., Ex. G at vol. 2, pp. 139-40; vol. 3, p 93.) Further, they testified that, after the officers had successfully handcuffed and subdued plaintiff and she was not showing any resistance, the officers kicked her, kneed her in the back, punched her in the back of the head and twisted her neck. (See id., Ex. G. at vol. 2, pp. 141-43; vol. 3, pp. 92-94.) Finally, plaintiff testified that the officers dragged her to the patrol car, and they sealed her inside, with the car's heating system on full blast, which caused her to experience breathing problems. (See id., Ex. G at vol. 3, pp. 94-95.) She requested that the officers turn off the heat, but the officers stood and laughed. (See id., Ex. G at vol. 3, p. 95.) Plaintiff then kicked out the patrol car's rear window, and the officers subsequently shackled her legs. (See id., Ex. G at vol. 3, pp. 95-96.)
As a result of this incident, plaintiff was charged with resisting arrest (N.Y. Penal Law § 205.30), obstruction of governmental administration (N.Y. Penal Law § 195.05), second degree harassment (N.Y. Penal Law § 240.26[1]), and fourth degree criminal mischief (N.Y. Penal Law § 145.00). Plaintiff faced a jury trial for these charges, and was convicted on November 19, 2002, of the charges of fourth degree criminal mischief and second degree harassment and acquitted of resisting arrest and obstruction of governmental administration. (See Biancanello Aff., Ex. F.)
On March 1, 2006, the Supreme Court, Appellate Term, affirmed plaintiff's conviction for second degree harassment. See People v. Ostroski, 2006 WL 543067, at *1 (N.Y.Sup.App.Term Marl, 2006). Plaintiff did not appeal her conviction for fourth degree criminal mischief. See id.
Prior to her criminal trial, plaintiff filed the instant civil rights action, pursuant to 42 U.S.C. § 1983, with accompanying state law tort claims, seeking damages against the Town of Southold, as well as the officers that were involved in her arrest. Specifically, plaintiff alleges § 1983 causes of actions against the defendant officers arising under the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution, including claims for false arrest, false imprisonment, malicious prosecution, abuse of process, and violation of plaintiff's right to equal protection under the law. (See Compl. ¶ 1, 2, 31.) Plaintiff has also raised a § 1983 claim for municipal liability against defendant Town of Southold. (See id., ¶ 35.) Plaintiff's state law claims include assault and battery, false arrest, false imprisonment, malicious prosecution and abuse of process. (See id., ¶¶ 1, 2.) In the instant motion, defendants move for summary judgment on all of plaintiff's claims.
Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.Cfv.P. 56(c); Globecon Group, LLC v. Hartford Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty America v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir.2004) (citation omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (). Once the moving party has met its burden, the opposing party Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (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)).
Both parties contend that they are entitled to prevail on the instant motion for summary judgment, based upon an argument that their adversary failed to comply with necessary procedural requirements involved in summary judgment motion practice. Specifically, plaintiff asserts that defendants failed to comply with Local Rule 56.1 in failing to initially include a separate statement of undisputed material facts with numbered paragraphs, and defendants aver that plaintiff failed to comply with Fed.R.Civ.P. 56(e) by failing to attach to its opposition an affirmation of an individual with personal knowledge of the facts that are relevant to this dispute, to demonstrate that admissible evidence exists that depicts disputed issues of material fact. The Court entertains each party's assertion that the other side committed procedural default with regards to the instant motion in turn.
Plaintiff argues that defendants' motion for summary judgment should be summarily denied, predicated upon a failure to adhere to the requirements of Local Civil Rule 56.1. According to the relevant part of the Rule, which is applicable in United States District Courts for the Eastern and Southern Districts of New York:
Upon any motion for summary...
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