Vesterhalt v. City of New York

• Decision Date: 26 October 2009
• Docket Number: No. 07 Civ. 2142(MGC).,07 Civ. 2142(MGC).
• Parties: Maxine VESTERHALT, Plaintiff, v. The CITY OF NEW YORK, Police Officer Bahir Mustafa, Detective Thomas Hourican, Detective Robert Yaeger, Detective Tracy Kupinski, Detective Thomas Driscoll and Lieutenant Ruel Stephenson, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 292

667 F.Supp.2d 292

Maxine VESTERHALT, Plaintiff, v. The CITY OF NEW YORK, Police Officer Bahir Mustafa, Detective Thomas Hourican, Detective Robert Yaeger, Detective Tracy Kupinski, Detective Thomas Driscoll and Lieutenant Ruel Stephenson, Defendants.

No. 07 Civ. 2142(MGC).

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

October 26, 2009.

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Law Offices of Anthony Ofodile, by: Anthony Chukwuka Ofodile, Esq., Brooklyn, NY, for Plaintiff.

Michael A. Cardozo, Corporation Counsel of the City of New York, by: Craig Andrew Hanlon, Esq., David M. Hazan, Esq., Philip Sebastian Frank, Esq., New York, NY, for Defendants.

OPINION

CEDARBAUM, District Judge.

Plaintiff Maxine Vesterhalt sues defendants for false arrest, use of excessive force, and unreasonable search of her residence under 42 U.S.C. § 1983. She also sues the individual defendants for trespass and assault and battery under New York state law. Defendants move to enforce settlement with Vesterhalt or, in the alternative, for summary judgment on her claims. For the reasons that follow, defendants' motion to enforce settlement is denied. Defendants' motion for summary judgment is granted in part and denied in part.

BACKGROUND

I. Undisputed Facts

Plaintiffs Maxine Vesterhalt, Elizabeth Elohim, and Tyree Davis commenced this action on March 13, 2007 against the City of New York and Police Officer Bahir Mustafa. On December 7, 2007, plaintiffs filed an amended complaint adding the additional individual defendants, Detectives Thomas Hourican, Robert Yaeger, Tracyann Kupinski, and Thomas Driscoll and Lieutenant Ruel Stephenson. Plaintiffs Tyree Davis and Elizabeth Elohim entered into settlement agreements with the defendants on December 3, 2008 and their claims were dismissed with prejudice on December 8, 2008. Therefore, Maxine Vesterhalt is the sole remaining plaintiff in this case.

Vesterhalt's claims arise out of an incident which occurred early in the morning of March 12, 2006, when defendants responded to a 911 call. The caller stated that there was a male in the lobby of 207 West 110th Street screaming and breaking items with a bat. The male in the lobby was Tyree Davis, who came home early in the morning from a party which began the previous evening. Davis had an anxiety attack when he arrived home, which caused him to scream loudly and to break two light bulbs in front of the building. Davis thought the building was trying to kill him and he therefore prayed and yelled at the building for approximately ten to fifteen minutes.

By the time the police officers responding to the call arrived at the scene, Davis was inside his apartment. Davis lives with plaintiffs Vesterhalt and Elohim. After going inside his apartment, Davis continued to scream loudly for an additional fifteen minutes.

Defendant Mustafa and his partner were the first ones to respond to the call. When they arrived at the scene, they found broken glass in the lobby of the building and heard loud screaming coming from Davis' apartment. Mustafa and his partner knocked on the door and identified themselves as police officers. Davis answered orally from inside and refused to open the door unless they had a warrant.

Lieutenant Stephenson also responded to the incident when he heard about it over the police radio. He joined Mustafa and his partner outside the door to the apartment. Next to arrive at the scene was an Emergency Services Unit ("ESU"), which included Detectives Hourican, Kupinski, Yaeger and Driscoll.

The events which occurred after the ESU arrived are disputed. In their Rule 56.1 statement, defendants do not take a clear position on what happened, but rather state that "[a]ccording to Vesterhalt's deposition testimony," certain events occurred. Thus defendants only admit that Vesterhalt testified to certain events, but do not take a position on what actually happened.

Vesterhalt testified that while defendants were outside of the apartment, some of them made verbal threats to her and her daughter that the officers were going to enter the apartment and harm them. However, Vesterhalt eventually agreed to open the door. Vesterhalt testified that she agreed to open the door only because she heard defendants attempting to break it down.

According to her testimony, as soon as she began to open the door, the police burst in, slamming the door into her. The police officers then grabbed her and threw her on the floor and one of them stepped on her neck with his boot to hold her down. She could not see who threw her down or who held her on the floor with his boot. While she was being held down, several officers physically assaulted the remaining occupants of the apartment. Eventually, the officers allowed her to sit up so that they could handcuff her. She remained handcuffed while the other occupants were being transported out of the apartment to the hospital. Vesterhalt did not seek any medical attention for her injuries.

II. Settlement Negotiations

On September 23, 2008, plaintiffs Vesterhalt, Elohim and Davis, accompanied by their attorney, attended a settlement conference before Magistrate Judge Freeman. On October 3, 2008, defendants' attorney made an offer of judgment of $50,001 to plaintiff Elohim pursuant to Fed.R.Civ.P. 68. By email dated October 8, 2008, counsel for Elohim accepted.

On November 12, 2008, counsel for defendants and counsel for plaintiffs entered into an oral agreement to settle the matter in the amount of $27,500 for Vesterhalt, $40,000 for Davis and $40,00 in attorneys fees related to plaintiff Elohim's acceptance of the Rule 68 offer of judgment of $50,001. Counsel for defendants memorialized the settlement agreement in writing and sent a stipulation and general release to counsel for plaintiff on November 14, 2008. The stipulation stated that "Vesterhalt shall execute and deliver to defendants' attorney all documents necessary to effect this settlement, including, without limitation, a release." The stipulation and general release were accompanied by a cover letter signed by defendants' counsel which stated "[k]indly execute these documents and return them to me so that we can begin processing the settlement."

In addition, by a second letter dated November 14, 2008, counsel for defendants informed the Court that the case had been settled on November 12, 2008, and that the stipulation would be submitted upon execution by the plaintiffs. The letter further stated that the parties requested that the trial date be cancelled.

However, almost two months later, plaintiffs' counsel sent a letter dated February 3, 2008, which stated that although all three plaintiffs had signed the settlement papers, the day after signing, plaintiff Vesterhalt had asked him not to transmit her papers to defendants because she had decided not to settle.

DISCUSSION

I. Summary Judgment Standard

Summary judgment should be granted "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). A genuine issue of material fact exists when the evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a genuine issue of fact exists, the court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). It is axiomatic that courts should not assess credibility on summary judgment. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996) (citing United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994)).

Summary judgment is appropriate when "the nonmoving party fail[s] to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[A] plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)).

II. Genuine Issues of Material Fact Preclude Summary Judgment on Plaintiff's Excessive Force Claim

Defendants contend that summary judgment should be granted to them dismissing plaintiff's excessive force claim. Defendants argue that plaintiff cannot establish that any of the individual defendants were personally involved in the alleged use of excessive force against her because she could not see who pushed her down. They also argue that plaintiff cannot prove that the force used against her was excessive because she did not seek any medical attention for her injuries.

A. Personal Involvement of Defendants

It is well-settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). A police officer is personally involved in the use of excessive force if the officer either: (1) directly participates in an assault; or (2) is present during the assault, and fails to intercede on behalf of the victim even though he had a reasonable opportunity to do so. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129 (2d Cir.1997). A plaintiff need not establish which officer, among a group of officers, directly participated in the attack and which officer failed to intervene. Jeffreys v. Rossi, 275 F.Supp.2d 463, 477 (S.D.N.Y. 2003) (citing Skorupski v. County of Suffolk, 652 F.Supp. 690, 694 (E.D.N.Y.1987); Fischl v. Armitage, 128 F.3d 50, 57 (2d Cir.1997)).

In this case,...