Kaczmarek et al v. City of Schenectady et al

Filing 52

MEMORANDUM-DECISION and ORDER - That Schenectady Defendants' 35 Motion for Summary Judgment is GRANTED. That Niskayuna Defendants' 33 Motion for Summary Judgment is GRANTED. That the complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 10/4/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PAUL KACZMAREK et al.,
Plaintiffs,

No. 1:10-cv-1193
(GLS/CFH)

v.
CITY OF SCHENECTADY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Paul Kaczmarek
Pro Se
4 Huron Court
Apartment 122
Schenectady, NY 12305
Timothy J. Mahoney
Pro Se
507 South Toll Street
Schenectady, NY 12302
Dawn DeLucca
Pro Se
1111 3rd Avenue
Schenectady, NY 12303

FOR THE DEFENDANT:
City of Schenectady, City of
Schenectady Police Department,
John Doe, and Eric Peters
Bailey, Kelleher Law Firm
Pine West Plaza 5
Suite 507
Washington Avenue Extension
Albany, NY 12205

NANNETTE R. KELLEHER,
ESQ.
WILLIAM C. FIRTH, ESQ.

Town of Niskayuna and John Doe
Shantz, Belkin Law Firm
26 Century Hill Drive
Suite 202
Latham, NY 12110

DEREK L. HAYDEN, ESQ

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs pro se Paul Kaczmarek, Timothy J. Mahoney, and Gerald
DeLucca commenced this action pursuant to 42 U.S.C. § 1983, alleging
defendants1 violated their Fourth Amendment rights and New York

1

Defendants include the City of Schenectady, the City of
Schenectady Police Department, John Doe, individually and in his
capacity as an employee of the City of Schenectady, New York, Police
Department, and Eric Peters, individually and in his capacity as an
employee of the City of Schenectady New York, Police Department
(collectively “Schenectady Defendants”); The Town of Niskayuna, and
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common law.2 (Compl. ¶ 14, Dkt. No. 1 at 7-24.) Pending are both
Schenectady Defendants’ and Niskayuna Defendants’ unopposed motions
for summary judgment. (Dkt. Nos. 33, 35.) For the reasons that follow,
defendants’ motions are granted.
II. Background
A.

Procedural History
On September 7, 2010, plaintiffs filed a complaint in New York State

Supreme Court, County of Schenectady. (Compl.) On October 5, 2010,
the Schenectady Defendants removed the case to this court. (Dkt. No. 1.)
Since the filing of this action, neither John Doe defendant has been
identified or formally served. Additionally, although Peters was named as a
defendant in the summons, he was neither listed in the caption of the
complaint nor mentioned within it. (Compare Dkt. No. 35, Attach. 8, with
Compl.) Further, during the pendency of this action, DeLucca died, (Dkt.
No. 12; Dkt. No. 26 at 9), and his daughter, Dawn DeLucca, advised the
John Doe, individually and in his capacity as an employee of the Town of
Niskayuna, New York, Police Department (collectively “Niskayuna
Defendants”).
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Plaintiffs New York common law claims include negligence,
intentional and negligent infliction of emotional distress, and false
imprisonment. (See, e.g., Compl. ¶ 17-19, 21-23, 24-27, 28-32.)
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court that she is the executor of DeLucca’s estate, (Dkt. No. 26). A motion
to substitute was never filed.
On January 15, 2013, Schenectady Defendants and Niskayuna
Defendants moved for summary judgment. (Dkt. Nos. 33, 35.) On the
same date, Niskayuna Defendants provided plaintiffs with notice that
explained the consequences of failing to respond to the pending motions.
(Dkt. No. 33, Attach. 1.) On January 16, 2013, the court also provided the
plaintiffs with notice that failure to respond may result in dismissal of some
or all of their claims. (Dkt. Nos. 38, 39.) On February 7, 2013, by order,
the court again warned plaintiffs of the possible consequences of failing to
respond, and granted plaintiffs a fourteen-day extension of time to
respond. (Dkt. No. 44 at 3-4.) Finally, on April 18, 2013, the court issued a
second order warning plaintiffs of the possible consequences of failing to
respond, and granted them a second fourteen-day extension of time to
respond. (Dkt. No. 51 at 3-4.)3 Nevertheless, plaintiffs failed to respond.

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The court notes that, on January 30, 2013, Kaczmarek filed a
letter with the court indicating that he does not have the legal ability to
respond to the motions and is unsure of what to do. (Dkt. No. 41.) In two
separate orders, the court informed him that it is unable to provide legal
advice to plaintiffs, and instead, as discussed above, afforded plaintiffs
additional time to respond. (Dkt. Nos. 44, 51.)
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B.

Facts
On July 14, 2009,4 Toni DeLucca, ex-wife of DeLucca, called 9-1-1

and reported to the Town of Niskayuna Police Department (NPD) that
DeLucca or Kaczmarek had stolen her car keys. (Schenectady Defs.’
Statement of Material Facts (SMF) ¶¶ 25, 27, Dkt. No. 35, Attach. 1.)
Before the NPD arrived, DeLucca, Mahoney, and Kaczmarek left in
Kaczmarek’s pick up truck. (Id. ¶ 26; Niskayuna Defs.’ SFM ¶ 2, Dkt. No.
33, Attach. 4.)
When Officer Douglas Anderson and Sergeant Joseph Twitty of the
NPD arrived on the scene, Toni DeLucca told them that the three plaintiffs
stole her car keys, provided a description of Kaczmarek’s truck and the
identity of plaintiffs, and stated that Kaczmarek’s vehicle was traveling on

4

Plaintiffs and defendants disagree over the exact date of the
incident at issue. (Compare Schenectady Defs.’ SMF ¶ 35 with Compl. ¶
5.) Plaintiffs claim the incident occurred on July 22, 2009, (Compl. ¶ 5),
while defendants claim the incident occurred on July 15, 2009,
(Schenectady Defs.’ SMF ¶ 35). While the precise date is of no moment,
for the purposes of the disposition of the pending motions, the court will
assume that the incident at issue occurred on July 15, 2009.
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Providence Avenue towards the City of Schenectady. (Schenectady Defs.’
SMF ¶¶ 27, 28; Niskayuna Defs.’ SMF ¶ 3.) Thereafter, the NPD issued a
“be on the lookout” (BOLO) alert for Kaczmarek’s vehicle to the City of
Schenectady Police Department (SPD). (Schenectady Defs.’ SMF ¶ 31.)
On July 15, 2009, Detective Joseph McCabe of the SPD located
Kaczmarek’s vehicle in a parking lot located near 277 State Street in the
City of Schenectady. (Id. ¶ 41; Niskayuna Defs.’ SMF ¶ 6; Dkt. No. 35,
Attach. 19 ¶ 6.) Detective McCabe confirmed that the vehicle was the
same vehicle for which the BOLO alert was issued. (Schenectady Defs.’
SMF ¶¶ 41, 42.) At that time, Detective McCabe notified the NPD that
Kaczmarek’s vehicle was located and that the occupants would be
detained until the NPD arrived on the scene. (Id. ¶ 43; Niskayuna Defs.’
SMF ¶ 6.)
Detective McCabe questioned Kaczmarek and placed him in
handcuffs. (Schenectady Defs.’ SMF ¶¶ 44-47.) Detective McCabe then
detained Kaczmarek in the back of a police car for approximately fifteen
minutes so that he could safely detain DeLucca and Mahoney. (Id. ¶ 47.)
Subsequently, DeLucca and Mahoney emerged from a nearby barbershop,
and Detective McCabe detained them. (Id. ¶¶ 45, 48.) Neither DeLucca

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nor Mahoney were placed in handcuffs. (Id. ¶ 49.) Approximately fifteen
minutes after Detective McCabe arrived on the scene, the NPD advised
him that they could not reach Toni DeLucca to ascertain whether her car
keys had been returned and authorized Detective McCabe to release the
three plaintiffs. (Id. ¶ 50; Niskayuna Defs.’ SMF ¶ 7.) All three plaintiffs
were immediately released. (Schenectady Defs.’ SMF ¶ 51.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d, 489 F. App’x 500 (2d Cir.
2012).
IV. Discussion
Defendants assert multiple grounds in support of their motions for
summary judgment, including failure to name and identify the John Doe
defendants, failure to provide adequate notice to Peters, who was named
in the summons, but not the complaint, failure to substitute DeLucca, and
failure to prove the requisite elements of plaintiffs’ causes of action. (Dkt.
No. 33, Attach. 5 at 1-6; Dkt. No. 36 at 2-13.) On the basis of the record

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before it, the court concludes that summary judgment is warranted.
A.

John Doe Defendants5
Plaintiffs named two John Doe defendants. (Compl.) However,

plaintiffs have neither identified nor formally served either John Doe.
Under the Federal Rules, the plaintiff is responsible for effectuating service
for each defendant within 120 days of filing the complaint. Fed. R. Civ. P.
4(m). Failure to properly serve any defendant in accordance with the
Federal Rules will result in the court, upon motion or on its own initiative,
dismissing the case without prejudice as to that defendant. Id. Because
plaintiffs have failed to timely identify and serve the John Doe defendants,
plaintiffs’ claims against both John Doe defendants are dismissed.

B.

Eric Peters
Eric Peters was named as a defendant in the summons, but was

5

Schenectady Defendants state that Officer McCabe was the officer
who stopped and detained plaintiffs. (Schenectady Defs.’ SMF ¶ 34, 4152; Dkt. No. 35, Attach. 19.) Plaintiffs never named Detective McCabe as
a defendant, despite having the opportunity to conduct discovery and
identify him as one of the John Doe defendants. The court notes that
plaintiffs were represented by counsel for the first year and a half that this
action was pending.
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neither listed in the caption of plaintiffs’ complaint nor mentioned within it.6
Despite the liberal reading the court must apply to the submissions of a pro
se plaintiff, Rahl v. N.Y. Telephone Co., No. 1:09-cv-01165, 2010 WL
3338832, at *2 (N.D.N.Y. Aug. 24, 2010), “the complaint, nonetheless,
must satisfy the minimum pleading requirements of Rule 8(a) of the
Federal Rules of Civil Procedure,” Gould v. Russi, 830 F. Supp. 139, 142
(N.D.N.Y. 1993). Here, plaintiffs have failed to meet this minimum
requirement. Accordingly, the claims against Peters are dismissed.
C.

DeLucca
Defendants contend that all claims advanced by DeLucca must be

dismissed because a proper party has not been substituted in accordance
with Rule 25(a) of the Federal Rules of Civil Procedure.7 (Dkt. No. 33,
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Kaczmarek and Mahoney testified that they were uncertain about
Peters’ involvement. (Dkt. No. 35, Attach. 12 at 2-3; Dkt. No. 35, Attach.
13 at 19-21). In addition, Peters denies involvement. (Dkt. No. 35,
Attach. 20 ¶ 4).
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Defendants also contend that DeLucca’s state law claims must be
dismissed because he failed to serve a timely notice of claim in
accordance with New York General Municipal Law § 50-e. (Dkt. No. 36 at
7; Dkt. No. 33, Attach. 5 at 7.) Under New York law, the service of a
Notice of Claim is a condition precedent to the commencement of a tort
action against a municipality or its agents, officers, or employees. N.Y.
Gen. Mun. Law § 50-e. Although Kaczmarek and Mahoney each served a
Notice of Claim, (Dkt. No. 35, Attachs. 3, 4), defendants contend that
DeLucca failed to do so, contrary to his own allegations, (Compl. ¶¶ 719

Attach 5 at 6; Dkt. No. 36 at 6.) The court agrees. Rule 25 provides that
“[i]f a party dies and the claim is not extinguished, the court may order
substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). The Rule further
states that “[a] motion for substitution may be made by any party or by the
decedent’s successor or representative.” Id. However, “if [that] motion is
not made within 90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.” Id.; see Unicorn
Tales, Inc. v. Banerjee, 138 F.3d 467, 470-71 (2d Cir. 1998); Nauman v.
Rensselaer Polytechnic Inst., No. 07-CV-0740, 2010 WL 1257876, at *1
(N.D.N.Y. Mar. 26, 2010).
This action was commenced on September 7, 2010. (Compl.)
DeLucca passed away on January 28, 2011. (Dkt. No. 26 at 9.) On
March 2, 2011, the Niskayuna Defendants filed a Statement Noting a
Party’s Death. (Dkt. No. 12 at 1.) Here, ninety days have passed without
substitution.8 Accordingly, all claims advanced by DeLucca must be
72). For the reasons discussed above, however, this point is moot, as all
of DeLucca’s claims are dismissed for failure to substitute a proper party.
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The court is cognizant that, on April 25, 2012, Dawn DeLucca filed
a letter with the Clerk’s Office informing the court that she is the executor
of DeLucca’s estate and that she would represent the interests of her
father in the present action. (Dkt. No. 26.) This letter was filed well in
excess of ninety days—indeed, more than one year—after the Niskayuna
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dismissed.
D.

Municipal Liability/Monell Claims
Both Schenectady and Niskayuna Defendants argue that plaintiffs’

have failed to allege an unconstitutional custom or policy. (Dkt. No. 33,
Attach. 5 at 2; Dkt. No. 36 at 2-3.) The court agrees.
A municipality may be liable under § 1983 only “when execution of a
government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts
the injury.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
694 (1978). To establish a municipal policy or custom, a plaintiff must
allege:
(1) the existence of a formal policy officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision making authority, which caused the
alleged violation of plaintiff’s civil rights; (3) a practice so

Defendants filed the Statement Noting a Party’s Death. Even assuming
that this letter satisfies Rule 25(a)’s requirement that a formal motion to
substitute be made, late substitution may be sought and granted only if, in
the court’s discretion, the party making the late motion to substitute
sufficiently shows excusable neglect. See, e.g., Gordon v. Kaleida Health,
No. 08-cv-378S(F), 2013 WL 2250431, at *6 (W.D.N.Y. May 21, 2013)
(citing Jones v. Siegfried Constr. Co., Inc., 105 F.R.D. 491, 491-92
(W.D.N.Y. 1984), aff’d, 792 F.2d 136 (2d Cir. 1986)). Here, no attempt to
demonstrate such excusable neglect in support of a belated substitution
request has been made.
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persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the
policymaking officials; or (4) a failure by policymakers to properly
train or supervise their subordinates, amounting to “deliberate
indifference” to the rights of those who come in contact with the
municipal employees.
Prowisor v. Bon-Ton, Inc., 426 F. Supp. 2d 165, 174 (S.D.N.Y. 2006), aff’d,
232 F. App’x 26 (2d Cir. 2007) (citation omitted). Moreover, “a single
incident alleged in a complaint, especially if it involved only actors below
the policy-making level, does not suffice to show a municipal policy.”
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). (citations
omitted); see City of Canton v. Harris, 489 U.S. 378, 387 (1989).
Here, plaintiffs fail to allege an unconstitutional custom or policy in
their complaint. Moreover, there is no evidence—either direct or
circumstantial—to support such an allegation. See Prowisor, 426 F. Supp.
2d at 174. Instead, the complaint sets forth only a single incident of
allegedly unconstitutional activity, which is insufficient to establish
municipal liability under § 1983. Ricciuti, 941 F.2d at 123. Thus, plaintiffs’
remaining Fourth Amendment claims against the Town of Niskayuna and
the City of Schenectady are meritless because plaintiffs failed to allege an
unconstitutional custom or policy. Accordingly, defendants’ motion for
summary judgment with respect to plaintiffs’ Fourth Amendment claims is
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granted.
E.

New York Common Law Claims
Plaintiffs’ remaining causes of action include New York common law

claims of negligence, intentional and negligent infliction of emotional
distress, and false imprisonment. (See, e.g., Compl. ¶¶ 17-19, 21-23, 2427, 28-32.) The court, however, declines to exercise supplemental
jurisdiction over these claims. “In the absence of original federal
jurisdiction, the decision of whether to exercise jurisdiction over pendent
state law claims is within the court’s discretion.” Butler v. LaBarge, No.
9:09-CV-1106, 2010 WL 39077258, at *3 (N.D.N.Y. Sept. 30, 2010) (citing
Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 121-22 (2d Cir. 2006)).
When all federal claims have been dismissed before trial, the balance of
factors in deciding whether to exercise jurisdiction over remaining state law
claims leans toward dismissal. Kolari, 455 F.3d at 122. Accordingly, the
court declines jurisdiction over any state law claims.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Schenectady Defendants’ motion for summary
judgment (Dkt. No. 35) is GRANTED; and it is further
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ORDERED that Niskayuna Defendants’ motion for summary
judgment (Dkt. No. 33) is GRANTED; and it is further
ORDERED that the complaint (Dkt. No. 1) is DISMISSED; and it is
further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

IT IS SO ORDERED.
October 4, 2013
Albany, New York

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