Getlin v. Zoll et al

Filing 52

MEMORANDUM & ORDER denying 51 Motion for Summary Judgment. See attached. Ordered by Senior Judge Denis R. Hurley on 3/28/2012. (Malley, Sean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DORIAN GETLIN,
Plaintiff,

MEMORANDUM & ORDER
08 CV 1872 (DRH)(AKT)

-againstP.O. JOHN ZOLL, and THE INCORPORATED
VILLAGE OF HEMPSTEAD,
Defendants.
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APPEARANCES:
Alan D. Levine, Esq.
Attorneys for Plaintiff
80-02 Kew Gardens Road
Kew Gardens, New York 11415
Harris Beach PLLC
Attorneys for Defendants
333 Earle Ovington Boulevard, Suite 901
Uniondale, New York 11553
By:
Keith M. Corbett, Esq..

HURLEY, Senior District Judge:
Plaintiff brings this action alleging that defendants subjected him to excessive force and
battery. Presently before the Court is defendants’ motion for summary judgment pursuant to
Fed. R. Civ. P. 56. For the reasons discussed below, defendants’ motion is denied in its entirety.
.
BACKGROUND
This is defendants’ second motion for summary judgment in this case. The Court granted
in part, and denied in part the previous motion, dismissing the §1983 claims against the
Incorporated Village Of Hempstead (the “Village”) under Monell v. N. Y. City Dep't of Soc.

Servs., 436 U.S. 658, 691 (1978), but allowing the §1983 claims against Police Office John Zoll
(“Zoll”) to proceed as defendants failed to demonstrate that he was entitled to qualified
immunity. Getlin v. Zoll, 707 F. Supp. 2d 369, 375 (E.D.N.Y. 2010)(“Getlin II”).
Defendants, apparently seizing on language in that decision that the “the claims against []
Zoll were no yet ‘ripe for determination,’” (Defendants’ Memorandum of Law in Support of the
Motion for Summary Judgment (“Ds’ Mot.”) at 6 (citing Getlin II, 707 F.Supp. 2d at 379)), now
bring this second motion for summary judgment after the close of discovery, notwithstanding the
fact that the same material issues of fact identified by the Court in Getlin II still exist. As many
of the background facts underlying plaintiff’s claim have been set forth in the prior decisions in
this case some familiarity with such facts is assumed.
The relevant events begin in the early morning hours of February 16, 2007 when
plaintiff’s attempt to outrun Village police officers in his car came to an abrupt end as he turned
into a dead end street in the town of Merrick. By the time the chase was over that morning, more
than 25 police cars had joined in the pursuit. The parties’ versions of what transpired next differ
starkly.
Plaintiff’s version tells of the following sequence of events. Upon realizing that he had
hit a dead-end, plaintiff attempted to turn his vehicle around, but was stymied by a number of
police cars that had pulled in behind him and blocked the street. As commanded, he then
“brought his motor vehicle to a complete stop[,] turned off the [car],” (Plaintiff’s Statement
Pursuant to Local Civil Rule 56.1 (“56.1 Stmnt.”) ¶ 9), “pulled the keys out of the ignition and
threw them onto the dashboard,” (Transcript of Plaintiff’s Deposition (“P’s Dep.”) at 119,
attached to the Declaration of Alan Levine (“Levine Decl.”) as Exhibit E.) At this point, a
number of officers were already standing on both sides of plaintiff’s car, pointing their weapons

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at him. (P’s Dep. at 123-25, 127). Plaintiff put his hands in the air and screamed “don’t shoot,
don’t shoot.” (P’s Dep. at 125, 143.) Zoll then fired one shot from his sidearm through the
driver’s side window, hitting plaintiff in the left arm and chest. (P’s Dep. at 125.) Thereafter, a
number of unidentified officers pulled plaintiff from the car through the shattered driver’s side
window. (56.1 Stmnt. ¶ 10; P’s Dep. at 128-29.) Those officers then cuffed plaintiff as he was
pulled out (P’s Dep. at 129), put him on the ground, and proceeded to kick him in the ribs, chest,
back and head. (P’s Dep. at 129-30.) An ambulance arrived shortly thereafter to transport him to
the hospital.
Defendants provide a very different version of events. According to their version, the
officers pursuing plaintiff entered the dead-end street, stopped, exited their vehicles, and ordered
plaintiff to place his car in park and get out. (Deposition of Zoll (“Zoll Dep.”) at 42-46.)
Plaintiff refused to do so, choosing instead to turn his car around by driving onto three of the
front lawns lining the street. (Id. at 43.) The officers again ordered plaintiff to stop the vehicle,
but he refused. (Id. at 48-49.) Instead, he accelerated in the direction of Nassau County Police
Officer Michael Mahoney who stood on an iced-over stretch of street between plaintiff’s vehicle
and two cars parked along the side. (Id. 45-49.) As the vehicle moved in Officer Mahoney’s
direction, plaintiff was again ordered to stop. (Id.) He did not, and Zoll fired a single shot at
plaintiff. (Id. at 50.) The bullet entered plaintiff’s left arm and chest. (South Oaks Hospital
Physical Examination and Assessment at 2, attached to defendants’ motion as Exhibit M.) The
car veered away from Officer Mahoney, slowed, and eventually came to a stop. (Zoll Dep. at
51-52.) The officers approached and directed plaintiff to put the car in park and get out, but
plaintiff remained seated with his hands on the steering wheel. (Id. at 52.) Plaintiff was then

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removed from the vehicle through an open door. (Id. at 53.) He was never kicked or punched or
battered.

DISCUSSION
I.

LEGAL STANDARD
Summary judgment should be granted where the pleadings and admissible evidence

offered to the Court demonstrate that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). An issue of fact is genuine if the
“evidence is such that a reasonable jury could return a judgment for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Roe v. City of Waterbury, 542 F.3d
31, 35 (2d Cir. 2008). Further, the relevant governing law 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, 477 U.S. at 248. Accordingly,
where the undisputed facts demonstrate the union of all the required elements of a cause of
action and no reasonable juror could find otherwise, the plaintiff is entitled to summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“Rule 56(c) mandates the entry
of summary judgment . . . against a party who fails to make a showing sufficient to establish the
existent of an element essential to that party’s case.”).
A party may defeat a motion for summary judgment only “by coming forward with
evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to
establish the existence of [an] element at trial.” Roe, 542 F.3d at 36 (quoting Grain Traders, Inc.
v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998)). The non-movant must advance “more than a

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scintilla of evidence,” Anderson, 477 U.S. at 252, and demonstrate more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Affidavits submitted in opposition to summary judgment must
be based on personal knowledge, must “set forth such 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)). 1 Conclusory
statements in affidavits or allegations in the pleadings are therefore insufficient to defeat a
motion for summary judgment. Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).

II.

EXCESSIVE FORCE AND QUALIFIED IMMUNITY
a. Standard for Excessive Force Under the Fourth Amendment
The use of force exercised by police officers is considered excessive and in violation of a

plaintiff’s Fourth Amendment rights if such force “is objectively unreasonable ‘in light of the
facts and circumstances confronting them without regard to their underlying intent or
motivation.” Maxwell v. City of N. Y., 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v.
Connor, 490 U.S. 386, 397 (1989)).
b. Standard for Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982)). “When a defendant invokes qualified immunity to support a motion for summary
1

The cited portion of FED.R.CIV.P. 56(e) was renumbered as Rule 56(c)(4) as part of the
amendments to Rule 56 effective December 1, 2010
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judgment, courts engage in a two-part inquiry: whether the facts shown ‘make out a violation of
a constitutional right,’ and ‘whether the right at issue was clearly established at the time of
defendant’s alleged misconduct.’” Taravella v. Town of Wolcott, 599 F.3d 129 (2d Cir.
2010)(citation omitted).
c. Application
Defendants argue that plaintiff has failed to meet his burden here by suggesting, inter
alia, that he “must establish by a preponderance of the evidence that the force used by the police
officer was a violation of the Constitution.” (Defendants’ Memorandum of Law in Support of
the Motion for Summary Judgment (“Ds’ Mot.”) at 7. Defendants’ argument here reveals a
fundamental misunderstanding of the parties’ respective burdens at this stage of litigation. 2 If
this case goes to trial, plaintiff would indeed have to prove his case by a preponderance of the
evidence, as any plaintiff in a civil trial must do. But we are not at trial. This is a motion for
summary judgment. Therefore, it is on the defendants to demonstrate that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The parties’ differing versions of the event, set forth above, clearly reflect a
genuine dispute over facts that are patently material to this case. The Court need only recite the
conclusions from its prior summary judgment decision in this case to illustrate that this genuine
dispute still exists.
If the Court were to accept Zoll’s version of the facts, to wit, that
he shot Plaintiff when Plaintiff accelerated his car with a Nassau
County police officer near enough to create a substantial risk of
injury to that officer, then the cases cited by Zoll, e.g., Smith v.
Freland, 954 F.2d 343 (6th Cir. 1992); Reese v. Anderson, 926
F.2d 494 (5th Cit. 1991); Costello v. Town of Warwick, 273 Fed.
2

This misunderstanding is further evidenced by defendants’ repeated citation to Merzon v.
County of Suffolk, 767 F. Supp. 432 (E.D.N.Y. 1991), a decision on a post-trial motion for
directed verdict – an entirely different procedural posture than this case.
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Appx. 118 (2d Cir. 2008), would mandate the granting of Zoll’s
motion. However, the Court is required to view the facts in the
light most favorable to the Plaintiff. Viewing the facts in that light
requires denial of the motion. Zoll would not have had probable
cause to believe that Plaintiff posed a significant threat of serious
bodily injury once the Nassau Police Officer was no longer in
danger and Plaintiff had stopped the car, turned off the engine,
threw the keys on the dash, and put his hands in the air. Nor would
it have been reasonable, once Plaintiff was shot and not resisting
arrest, for the officers to drag his body through the window and
kick and punch him. Moreover, it would be clear to a reasonable
officer that this conduct was unlawful in the situation as viewed in
the light most favorable to Plaintiff. See generally Cowan[ v.
Breen, 352 F.3d 756, 764 n.7 (2d Cir. 2003)](in excessive force
cases, analysis of qualified immunity and the Fourth Amendment
often “converge on one question: Whether in the particular
circumstances faced by the officer, a reasonable officer would
believe that the force employed would be lawful”).

Getlin II, 707 F. Supp. 2d at 378-79.
Although the parties have since had the benefit of discovery to flesh out the facts in this
case, the parties’ respective version of events have not changed in any material respect. The
Court therefore adopts the excerpt above from Getlin II as the rationale for denying summary
judgment once again on defendants’ §1983 claims.
Despite that the underlying dispute remains materially unchanged, defendants
nevertheless urge the Court to grant judgment in their favor because, they argue, plaintiff’s
alleged facts do not “conform with the evidence of the case.” (Ds’ Memo at 12.) Here,
defendants suggest that plaintiff could not possibly have had his hands in the air, instead of on
the steering wheel, because “if his hands were above his head, his chest would have been
exposed and the bullet would not have entered his left arm.” (Ds’ Memo at 12.) While
defendants insist that this evidence “clearly demonstrates that the Plaintiff’s hands were on the

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steering wheel,” their theory actually requires a level of fact-finding that is appropriate only for a
jury to make.
The Court is also not persuaded by defendants’ analogy to the Second Circuit’s summary
order in Costello v. Town of Warwick, 273 Fed. Appx. 118 (2d. Cir 2008)(Summary Order).
That case would perhaps have some bearing here if the Court were to accept defendants’ version
of the facts, and ignore plaintiff’s. But as the Court made quite clear in its prior decision, and as
is required under well-established precedent, the Court must view the evidence in the light most
favorable to the non-movant. That requirement necessarily precludes disregarding plaintiff’s
version of events, as defendants appear to urge the Court to do here.
The Court is similarly unmoved by defendants’ argument that it was objectively
reasonable for Zoll to act as he did based on the fact that leading up to the moment in question
plaintiff had led the police on a lengthy pursuit and drove his car up on several lawns. To the
extent that such facts are coextensive with plaintiff’s version of events, whatever reasonable
belief Officer Zoll may have had that plaintiff posed a serious threat of serious physical harm to
Officer Maloney would have ended once, as plaintiff alleges, the car was turned off, the keys
were thrown on the dashboard, and plaintiff raised his hands in the air.
Defendants’ motion for summary judgment on plaintiff’s §1983 claims is therefore
denied for a second time.

III.

BATTERY
Defendants argue that plaintiff’s claims for battery should be dismissed because Officer

Zoll is protected by New York Penal Law §35.50. That statute provides a justification defense to
police officers for whom “the use of deadly physical force is necessary to defend the police

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officer or peace officer or another person from what the officer reasonably believes to be the use
or imminent use of deadly physical force.” N.Y. Penal Law § 35.30(1)(c). Defendants’ argument
here fails substantially for the reasons that his §1983 arguments fail above, namely, that it would
only have been reasonable for Zoll to believe that the deadly force was necessary if the Court
disregards plaintiff’s version of events. Defendants’ motion for summary judgment on plaintiff’s
claim for battery is therefore denied.

CONCLUSION
Accordingly, defendants’ motion for summary judgment is denied. 3 As Magistrate Judge
Tomlinson has certified this case as trial ready, the Court shall inform the parties shortly of the
dates for a final pretrial conference with the undersigned and trial.

SO ORERED
Dated: Central Islip, New York
March 28, 2012

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/s
Denis R. Hurley
United States District Judge

Plaintiff has withdrawn his claim for negligence. (See P’s Opp. at 11.)
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