Cabisca v. City of Rochester, New York et al
ORDER denying 15 Motion for Disclosure; denying 35 Motion for Reconsideration ; granting 40 Motion for Discovery; granting in part and denying in part 18 Motion for Summary Judgment; denying 22 Motion for Summary Judgment. The parties are directed to contact the Court for purposes of scheduling a status conference should this case not be resolved during Settlement Week. Signed by Hon. Jonathan W. Feldman on 09/20/2017. (JKT)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CITY OF ROCHESTER et al.,
At approximately 9: 5 O p. m.
on the evening of September 7,
Department saw an individual later identified as Tyrone Flowers
pushing two bicycles down the sidewalk in the area of Kingsboro
Investigator Wengert was not in uniform, but was in plainclothes.
Suspecting that the bicycles may have been stolen, Wengert
questioned Flowers, who said that he had found the bikes on the
front lawn of 207 Kingsboro Road.
Investigator Wengert called
for back-up, and Officers Hogg and Prinzi responded to assist in
The officers detained Flowers in a police vehicle.
Investigator Wengert decided to investigate further by asking
(hereinafter "plaintiff" or "Cabisca"), about the bikes.
walked up plaintiff's driveway and up the steps leading to the
open front porch.
Officers Hogg and Prinzi stood at the end
knocked on the front door.
Id. at 9, 16.
Plaintiff claims that
she did not hear a doorbell ring or any knocks on the door, and
that she would have,
because with three dogs in the house,
somebody knocks on the door, it's just a bark fest."
Id. at 31.
According to the officers, Wengert heard a door open on the
side of the house.
Id. at 23.
He went down the steps and around
the side of the house saying "hello," at which time two "large
breed" dogs began to bark and run aggressively down the driveway.
Id. at 16, 23.
One dog continued running to the end of the driveway
while the other, Bailey, turned and "charged" at Wengert.
Wengert backed up onto the front porch, and then, as the
dog continued to approach, shot the dog twice.
Id. at 9, 16, 23-
According to Cabisca,
she opened her side door because she
saw flashlights on her garage.
a man shot Bailey.
Her dogs stepped out with her, and
Plaintiff denies that the dogs
Investigator Wengert had the gun pointed right at her, and she did
not know that he was an officer because he was not in a uniform.
Id. at 31-32.
The parties agree that Cabisca, after witnessing her dog shot
by the police,
became angry and visibly upset,
officers and refused to follow their instructions to step away
Id. at 16, 25-26, 32-34.
Plaintiff had two
small children unattended to inside the house.
Id. at 12, 16, 35,
from the dying dog.
According to the officers, plaintiff confronted Officer Hogg
and pushed him backwards using both of her hands, causing him to
Id. at 11, 16, 26, 47.
Plaintiff states that she had
her hands out in front of her and Hogg took her arm and put his
left chest in her left hand and said "you touched me.
Id. at 34.
Officer Hogg then forced Cabisca to the ground.
Id. at 47.
Hogg employed two different "defensive techniques" on plaintiff,
including a straight arm bar and a two-point landing, causing her
to fall to the ground.
cuffed behind her back.
Id. at 11.
Plaintiff then had her hands
Id. at 34-35, 47.
Plaintiff claims that
she told Officer Hogg that she could not breathe, and that Hogg
said "those kids are going to CPS and you're going to jail."
Plaintiff was placed in the back seat of a police car.
After being served with appearance tickets charging her
with harassment in the second degree in violation of New York Penal
Law § 240.26(1),
and resisting arrest in violation of New York
she was released by the police. 1
Id. at 10, 16,
Cabisca appeared as directed in Rochester City Court on
· September 18,
All charges were dismissed on October 22,
2013 by Rochester City Court Judge Ellen M. Yacknin.
Plaintiff refused medical help,
(Docket # 36-1).
choosing instead to go to the hospital herself.
(Docket # 36-1).
Based on this incident, Cabisca filed this federal action on
(5) abuse of legal process;
§ 1983 violation of plaintiff's 4th,
5th, and 14th
amendments; and (8) a Monell claim against the City of Rochester.
See Complaint (Docket# 1).
Motions Before the Court
On January 29,
one day before the deadline to file
dispositive motions, plaintiff filed a motion to compel discovery
(Docket # 15).
See Amended Scheduling Order (Docket# 14)
motions to Compel Discovery to be filed on or before 7-30-16.").
Plaintiff was also served with six citations asserting Animal
Defendants opposed that motion as untimely (Docket# 19), and filed
for summary judgment the following day, January 30, 2017.
Plaintiff filed a reply to the motion to compel on February
The Court set a
briefing deadline for defendants'
Docket # 20.
On February 27,
cross-motion for summary judgment.
2017, Plaintiff filed a
responded in opposition on March 10, 2017, noting that plaintiff's
summary judgment motion was filed after the Court's dispositive
Plaintiff filed a reply on March
The Court heard argument on the motion to compel and the two
summary judgment motions on June 1,
Docket # 32.
the hearing, the Court denied plaintiff's motion to compel (Docket
# 15) and plaintiff's motion for summary judgment (Docket# 22).
As to defendants' motion for summary judgment, the Court requested
further briefing from both parties on a
Thereafter, counsel for the
submitted additional briefing on June 2 and 15,
See Docket# 32.
Plaintiff responded on June 18, 2017.
On that same date, plaintiff filed a motion for the Court to
reconsider its decision on her motion to compel.
Docket # 35.
The defendants responded to this new motion on June 20,
Plaintiff filed an additional affirmation on July 1,
and an additional motion for discovery on July 31, 2017.
This Decision and Order is intended to resolve all
pending motions before the Court.
Motion for Summary Judgment
The defendants have moved for summary judgment on many of the state
and federal claims alleged in the complaint. The Court notes at
the outset that there are a number of factual disputes in this
case, suggesting the difficulty of resolving plaintiff's claims at
pertaining to each claim are, for the most past, unique, the Court
will address each cause of action separately.
it is important to recognize the role of the Court in
The general principles used to
resolving a dispositive motion.
evaluate the merits of summary judgment motions are well-settled.
Pursuant to Federal Rule of Civil Procedure 56 (c), summary judgment
is warranted where "there is no genuine issue as to any material
fact and 
the movant is entitled to a judgment as a matter of
A genuine issue exists "if the
5 6 ( c) .
evidence is such that a reasonable jury could return a verdict for
the nonmoving party."
242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
All inferences and ambiguities must be resolved
in favor of the party against whom summary judgment is sought.
Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990); Donahue v.
Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).
While the burden of showing that no genuine factual dispute exists
is on the defendants, when faced with a properly supported summary
sufficient to allow a reasonable jury to find in her favor."
v. Henderson, 257 F. 3d 246, 252 (2d Cir. 2001) .
"Such an issue is
not created by a mere allegation in the pleadings, nor by surmise
or conjecture on the part of the litigants."
United States v.
Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 1982) (internal
With this standard established,
will now turn to the merits of the motion.
Federal claims of false arrest implicate the
Fourth Amendment right to be free from unreasonable seizures.
Posr v. Doherty, 944 F.2d 91, 97
(2d Cir. 1991).
A§ 1983 claim
alleging false arrest is "substantially the same" as the tort under
New York state law,
and thus the Court analyzes both state and
federal claims together.
Id. at 96.
arrest under New York law,
"To state a claim for false
a plaintiff must show that
defendant intended to confine the plaintiff,
conscious of the confinement,
(2) the plaintiff was
(3) the plaintiff did not consent to
City of New York,
331 F.3d 63,
(citing Bernard v. United States, 25 F.3d 98, 102 (2d
constitutes justification and 'is a complete defense to an action
for false arrest,' whether that action is brought under state law
or under§ 1983."
Jenkins v. City of New York, 478 F.3d 76,
(quoting Broughton v.
373 N.Y.S.2d 87,
335 N.E.2d 310
37 N.Y.2d 451,
Defendants contend that there was probable cause to arrest
plaintiff for harassment and resisting arrest.
exists when an officer has
'knowledge or reasonably trustworthy
information sufficient to warrant a person of reasonable caution
in the belief that an offense has been committed by the person to
Curley v. Village of Suffern, 268 F.3d 65, 69-70
(2d Cir. 2001)
(quoting Martinez v. Simonetti, 202 F.3d 625, 634
harass, annoy or alarm another person," someone "strikes, shoves,
kicks or otherwise subjects such other person to physical contact,
or at tempts or threatens to do the same."
N. Y. Penal Law
24 0. 2 6
Resisting arrest requires "intentionally prevent[ing]
or attempt[ing] to prevent a police officer or peace officer from
deposition testimony of Officers Wengert, Hogg and Prinzi.
described plaintiff as being "completely uncooperative, yelling,
screaming, flailing her arms around and just yelling a variety of
insults towards the officers."
Wengert Dep., Ex. "B" attached to
Wengert, plaintiff was irate and yelling, and "physically shoved
Officer Hogg in the chest causing him annoyance and alarm."
plaintiff was "struggling, yelling and screaming and swearing, and
essentially trying to push herself up and not cooperating with
plaintiff "charged towards me" and then "pushed me in my chest
area" whereupon he "escorted her to the ground."
"E" attached to Def.'s Mot.
for Summ. J.
Hogg Dep., Ex.
(Docket# 18-1) at 47.
Officer Prinzi testified that plaintiff "approached Officer Hogg
and with both hands
pushed his chest."
attached to Def.'s Mot. for Summ. J.
(Docket# 18-1) at 43.
Plaintiff's recollection of the physical contact between her
and Officer Hogg was different.
According to plaintiff, she had
come out of her house and witnessed her dog shot by a man who was
not dressed like a police officer.
Her pet was still alive and
bleeding on her driveway, while the man who shot her dog continued
to point his weapon at her.
I think at that point I was just terrified to see that
I had somebody on my porch pointing a gun at me. And I
don't know who he is. And he doesn't have a uniform on.
He doesn't look like a cop. And he just shot my dog and
now he has a gun on me.
Cabisca Dep. , Ex. "C" attached to Def.' s Mot. for Summ. J.
Plaintiff testified that she also observed two
uniformed police officers with weapons also pointed at her,
she repeatedly asked them to "help me with my dog."
officers then directed her to "come here" and she responded: "I'm
not going to step off my property with you.
and did this.
You came to my house
You need to tell me what you're here for."
According to plaintiff,
the officers refused to explain to
her why they were on her property and why they had shot her dog.
Plaintiff acknowledged that she became "heavily irritated."
"I didn't come out there, you know, looking for bear.
I came into
a situation that was created at my home not by me.
I feel that
should have been given basic information.
they don't do that, my tone became extremely different."
At this point one of the uniformed officers told plaintiff
that if she "didn't cooperate with him, that I would be arrested."
Id. at 34.
Plaintiff told the officers that she was not leaving
"You came to my house and did this.
You need to
tell me what you're doing here and you need to tell me who you
After receiving no response, plaintiff put her hands
straight out and said to the officers,
"[y] ou need to step back
uniformed officers then said "that's it," and came towards her.
The approaching officer "put his left chest in my left hand
and said, 'You touched me. That's illegal. You're going to jail.'"
Plaintiff testified that when she tried to get away from the
threw me around,
Two officers on top of me.
and threw me to the
Two adult men on top of
One with his elbow in my ribcage and the other one on the
other half of me."
Plaintiff testified that the "man who
shot the dog" then "told them to get off of me" and they did.
At that point, plaintiff went into her house to check on
her children and call her family.
"The question of whether or not probable cause existed may be
determinable as a matter of law if there is no dispute as to the
pertinent events and the knowledge of the officers."
Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Clearly, this is not one
between conflicting versions of the events are matters for the
jury, not for the court on summary judgment."
85 F.3d 1002, 1011
(2d Cir. 1996)
Rule v. Brine, Inc. ,
the record in a light most favorable to plaintiff,
as I must,
find that there are issues of fact as to whether the defendants
had probable cause to arrest plaintiff for harassment and resisting
For this reason, defendants' motion for summary judgment
as to plaintiff's claim of false arrest is denied.
In order to prevail on a claim of
malicious prosecution under§ 1983, plaintiff must establish the
elements of malicious prosecution under state law.
Thus, in New
York, "a plaintiff is required to demonstrate: (i) the commencement
or continuation of a
criminal proceeding against her;
termination of the proceeding in her favor;
that there was
no probable cause for the proceeding; and (iv) that the proceeding
was instituted with malice."
F.3d 72, 79 (2d Cir. 2016)
Mitchell v. City of New York,
(internal quotations omitted).
Plaintiff has satisfied the first two elements by providing
proof of the dismissal of both charges against her.
36-1; Mitchell v. New York, 841 F.3d at 79 (proceeding terminated
in plaintiff's favor where District Attorney declined to prosecute
As discussed above,
there are issues of fact as to the
existence of probable
cause for plaintiff's
whether plaintiff can show that the defendants acted with malice.
defendant acted in bad faith,
on the basis of
'a wrong or
improper motive, something other than a desire to see the ends of
Watson v. United States, 865 F.3d 123, 134 (2d
(quoting Torres v.
26 N.Y.3d 742,
"In most cases,
(additional citations omitted)).
lack of probable cause -
while not dispositive -
show that the accuser did not believe in the guilt of the accused,
and malice may be
F. 3d 563,
see also Boyd v.
( 2d Cir.
City of New York,
(2d Cir. 2003) ("Once we find an issue of material fact as
to probable cause, the element of malice also becomes an issue of
material fact as well.
A lack of probable cause generally creates
an inference of malice.").
Having found an issue of fact as to probable cause,
that the existence of malice is also an issue of material fact.
Plaintiff has testified that she did not resist arrest,
Officer Hogg purposely caused her hand to touch his chest.
that her "kids are going to CPS and you're going to jail," and
Construing all inferences in a
then tackled her to the ground.
light most favorable to plaintiff,
a jury could reasonably find
that the defendants were annoyed or angry with her attitude and
See Lowth v.
prosecution of plaintiff.
82 F.3d at
(plaintiff had suggested malice on the part of the police
officer who may have been angry for what plaintiff "had put him
Abuse of Legal Process:
Under New York law,
"' a malicious
abuse-of-process claim lies against a defendant who
forbearance of some act (2) with intent to do harm without excuse
of justification, and (3) in order to obtain a collateral objective
that is outside the legitimate ends of the process.'"
City of New York, 331 F.3d 63, 76-77 (2d Cir. 2003)
v. Sheldon, 41 F.3d 73, 80
(2d Cir. 1994)).
Abuse of process by
state actors is also a violation of the procedural due process
rights guaranteed by the Fourteenth Amendment, and the same factors
are used to evaluate the merits of a federal civil rights claim.
See Hoyos v. City of New York, 999 F. Supp. 2d 375, 391 (E.D.N.Y.
As with claims of malicious prosecution, "[w]hile there is no
showing of actual malice, malice may be inferred from the lack of
(2d Dept. 1989); see also Sforza v. City of New
York, No. 07CIV6122DLC, 2009 WL 857496, at *17 .(S.D.N.Y. Mar. 31,
("lack of probable cause gives
to an inference of
However, more than simply a
malice" in abuse of process claim).
malicious motive is needed to prove abuse of legal process.
order to state a
claim for abuse of process,
instigating the action."
a plaintiff must
331 F.3d at 77
Here, plaintiff alleges that defendants filed charges
to provide some lame excuse for committing their
outrageous actions - coming onto her property at night,
needlessly shooting her dog, refusing to cooperate with
their improper orders, and refusing to respond to her
questions as to why they had entered her property,
needlessly throwing her to the ground - actions the
defendant police knew they could not defend in any manner
without concocting an offense and crime with which to
charge the plaintiff.
While this may constitute an
property and charging her with "concocted"
criminal offenses -
collateral purpose beyond pursuing, and prevailing in, plaintiffs'
Town of Southampton,
Supp. 2d 438, 448 (E.D.N.Y. 2012), aff'd sub nom Peter L. Hoffman,
Lotte, LLC v. Town of Southampton, 523 F. App'x 770 (2d Cir. Apr.
see also McKnight v.
1176051, at *30 (W.D.N.Y. Mar. 30, 2017)
that officer commenced criminal prosecution to justify use of force
objective, as opposed to an improper motive");
Gilliard v. City
of New York, No. 10-CV-5187, 2013 WL 521529, *14
(" [alt most,
[dl efendants issued the summons with the improper
... [, l [bl ut an improper motive does not equate to an
improper purpose; the
[dlefendants used the process of the court
for the purposes for which the law created")
and brackets omitted); Dotson v. Farrugia, No. 11 Civ. 1126, 2012
(plaintiff's contention that the
affront, and to attempt to cover up the wrongdoing of the Court
Officers in having arrested plaintiff" was insufficient to state
a claim for abuse of process; "[tlhese allegations, however, even
if taken as true,
do not support a claim for abuse of process,
objective, which may be.")
County of Nassau, No.
(internal quotations omitted); Crews v.
06-CV-2610, 2007 WL 4591325, *12 (E.D.N.Y.
( "Because plaintiffs have merely alleged that defendants
were motivated by their desire to cover up their misdeeds, but not
that defendants had a purpose other than to prosecute [plaintiff],
the abuse of process claim fails.")
For this reason, defendants
are entitled to summary judgment on plaintiff's malicious abuse of
process claims, and this motion is granted.
Plaintiff's eighth cause of action sets
forth a claim against defendant City of Rochester for negligently
failing "to properly investigate the defendant officers involved
training and supervising the officers.
(Docket # 1)
This is the only cause of action alleged
judgment, arguing that plaintiff has asserted no facts to support
a Monell claim in this matter.
See Def.'s Mot (Docket# 18-2) at
To plead a§ 1983 claim against a municipality, a plaintiff
is required to assert a violation of a federally protected right
that was caused by the municipality's official policy or custom,
Monell v. Dep't of Soc. Serv. of City of New York, 436
"The failure to train or supervise city
an official policy or custom if
failure amounts to 'deliberate indifference' to the rights of those
with whom the city employees interact.'"
490 F.3d 189, 195 (2d Cir. 2007)
489 U.S. 378, 388 (1989)).
Wray v. City of New York,
(quoting City of Canton v. Harris,
A claim against a municipality is "at
its most tenuous where a claim turns on failure to train."
v. Thompson, 563 U.S. 51, 61 (2011)
or other admissible evidence that raises a plausible
"[I]solated acts of excessive force by non-
policymaking municipal employees are generally not sufficient to
demonstrate a municipal custom, policy, or usage that would justify
81 (2d Cir. 2012)
Jones v. Town of East Haven, 691 F.3d 72,
Further, even if plaintiff
could link some type of decision-making to the municipality, the
Supreme Court has
"it is not enough for a
plaintiff merely to identify conduct properly attributable to the
The plaintiff must also demonstrate that, through
its deliberate conduct,
the municipality was the
County Com' rs
County, Oklahoma v. Brown, 520 U.S. 397, 404
Plaintiff has not even provided any municipal policies,
not to mention any evidence that hints at municipal liability.
therefore grant the City of Rochester's motion for summary judgment
and direct the Clerk of Court to terminate the City as a defendant
in this lawsuit.
Plaintif:f:'s first cause of action asserts a state
law claim for trespass against the individual defendants.
Amendment violations in her seventh cause of action.
federal and state law claims.
See Def.'s Mem. of Law (Docket#
18-2) at 5-8; Def.'s Supp. Mem. of Law (Docket# 33) at 1-2.
the reasons stated below, the Court concurs with defendants that
plaintiff has not established facts that could lead a reasonable
factfinder to find liability for trespass, and grants defendants'
The facts as related to the alleged trespass are not really
Both parties agree that on the evening of September
7, 2013, between 9:30 and 10:00 p.m., defendants Wengert, Prinzi
including her driveway.
None of the officers had plaintiff's permission
As Investigator Wengert testified,
to enter her property.
purpose of the nonconsensual entry was to investigate a potential
burglary of two bicycles from plaintiff's home.
"B" attached to Def.'s Mot.
for Summ. J.
See Wengert Dep.,
(Docket# 18-1) at
The Second Circuit has held that there is "no Fourth Amendment
violation based on a
law enforcement officer's presence on an
legitimate law enforcement business."
F.3d 446, 465 (2d Cir. 2002)
United States v. Reyes, 283
(finding that several other circuits
have reached similar conclusions regarding the accessible, semiprivate nature of driveways).
Further, a "police officer not armed
with a warrant may approach a home and knock, precisely because
that is 'no more than any private citizen might do.'"
Jardines, 569 U.S. 1,
(quoting Kentucky v. King, 563 U.S.
under New York state
enforcement officials have a privilege to enter private property
to perform their legal duties."
Reynolds v. United States, 927 F.
because the agent "was on the property precisely because he was a
police officer acting within the scope of his employment").
The law protecting police officers from claims of trespass
when investigating possible criminal conduct is clear, and there
is no dispute in this case that defendants entered plaintiff's
property in order to ring her doorbell for the purpose of inquiring
Their initial foray onto plaintiff's property
about the bikes.
was indisputably in furtherance of a legitimate law enforcement
in which the
plaintiff's trespass claims are granted. 2
2 Plaintiff also alleges trespass in that after the dog was shot,
a police officer insisted on accompanying Lee Windsor, plaintiff's
partner, when he entered the home to retrieve plaintiff's inhaler.
See Pl.' s Atty Aff. (Docket # 36) at ~ 4. This "trespass" is not
alleged in the complaint and is made only in an attorney affidavit.
Absent any facts from someone with first-hand knowledge suggesting
that Windsor objected to being accompanied into the home, this
See Matthews v. Malkus, 377 F. Supp. 2d 350, 359
(S.D.N.Y. 2005) (trespass is "the intentional entry of defendants
on to plaintiff's land and the wrongful use without justification
or consent") ; cf. Green v. City of Mount Vernon, 96 F. Supp. 3d
263, 293 (S.D.N.Y. 2015) (plaintiff adequately pleaded a claim of
trespass by asserting that defendant police officers knew they
were in the wrong location but did not leave).
alleges two separate causes of action arising from the shooting of
her dog by the police.
First, plaintiff alleges that the killing
of her pet dog violated the Fourth Amendment.
The Second Circuit,
along with "a number of our sister circuits," has concluded that
"the unreasonable killing of a
companion animal constitutes an
unconstitutional 'seizure' of personal property under the Fourth
County of Monroe,
712 F.3d 649,
As the court stated in Carroll,
To determine whether a seizure is unreasonable, a court
must "balance the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the
importance of the governmental interest alleged to
justify the intrusion" and determine whether "the
totality of the circumstances justified [the] particular
sort of . . . seizure." Tennessee v. Garner, 471 U.S. 1,
8-9 (1985) (internal quotation marks omitted). We have
long held that the plaintiff has the burden to prove
that a seizure was unreasonable. See Ruggiero v.
Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991).
In Carroll, the court found that shooting a family dog is "a
severe intrusion given the emotional attachment between a dog and
the court al so noted that "in some
circumstances, it is reasonable for an officer to shoot a dog that
he believes poses a
threat to his safety or the safety of the
(citing Altman v. City of High Point, N.C., 330
F.3d 205, 210-11 (3d Cir. 2001)).
Ultimately the court in Carroll
did not disrupt the jury's verdict that the defendant-officer was
reasonable in shooting the plaintiff's dog while executing a search
Because there are critical facts in dispute here,
it is for
Wengert's conduct in shooting the dog was reasonable.
the parties' accounts differ substantially over the point at which
plaintiff's dogs came outside.
Wengert testified that as he was
waiting on the front porch after ringing the doorbell and knocking,
he heard a door open on the side of the house.
He walked off the
porch to come around the corner, and "was shocked to see multiple
and then the dogs
charging up the driveway."
Wengert Dep. , Ex. "B" attached to Def. 's Mot for Summ. J.
# 18-1) at 23.
Plaintiff's recollection is considerably different.
She testified that she observed police lights outside other house
and then she saw a flashlight in the back of her house.
the side door to see if anybody was outside, and Bailey, the dog,
"stepped out" "a couple feet ahead of" her.
attached to Def.'s Mot for Summ. J.
Cabisca Dep, Ex. "C"
(Docket# 18-1) at 31.
parties' accounts also diverge on the circumstances leading up to
the shooting of the dog.
Investigator Wengert described that two
large dogs were running aggressively at him,
of the dogs continued towards Wengert, he took steps backwards,
backed into something,
Wengert Dep. at 24.
and fired his handgun at the dog twice.
Plaintiff disagrees that the animal posed any
danger to Wengert, stating that the dog was just a few feet ahead
of her when Wengert shot it.
Cabisca Dep. at 31.
Specific facts matter in determining reasonableness under the
In Brown v. Muhlenberg Township, the court held
that police may not be justified in "destroy [ing]
a pet when it
poses no immediate danger and the owner is looking on, obviously
269 F.3d at 211.
desirous of retaining custody."
In Altman v.
City of High Point, the court concluded "that dog owners forfeit
many of these possessory interests when they allow their dogs to
run at large,
that point the dog ceases to become simply a personal effect and
takes on the nature of a public nuisance."
330 F.3d at 206.
jury could reasonably determine that plaintiff's pet dog presented
no immediate danger to the officers and that the animal was not
uncontrolled and unsupervised when it was shot by Wengert.
the facts in the light most favorable to plaintiff,
current record creates an issue of fact on whether "the totality
of the circumstances"
Bailey the dog.
justified the Fourth Amendment seizure of
Because of these disputed facts surrounding the
complaint also includes a state law claim under New York General
25-b for "injury to property"
Section 25-b provides that "'injury
See Complaint (Docket# 1).
is an actionable act, whereby the estate of another
other than a
General Construction Law
or the breach of a
Plaintiff's complaint alleges that her pet had a property value of
destroyed the dog by shooting it and whereupon Wengert, Hogg, and
Prinzi allowed it to bleed to death."
Complaint (Docket# 1) at
Defendants move for summary judgment on this claim,
generally that Investigator Wengert perceived an "imminent threat
from Plaintiff's unleashed and approaching dog,"
justified in shooting.
2) at 6.
and was therefore
See Def.'s Mot. for Summ. J.
Defendants urge that "[t]he Court may not substitute its
judgment for the judgment of Officers surprised by a
approaching them in the dark of night."
Def.'s Supp. Mem. of Law
(Docket# 33) at 4.
that can only be resolved by a jury.
However, neither plaintiff's
nor defendants' moving papers set forth the required elements of
a claim under§ 25-b or provide any supporting case law for their
Disturbed by this lack of law and analysis, the Court,
during the motion hearing, directed both counsel to further brief
the viability of a§ 25-b claim under the facts and circumstances
Both counsel filed post-hearing briefs (Docket##
33, 36) and both are remarkable in their failure to mention alone
concern and directions.
neither counsel mention the General Construction Law statute, the
elements of a§ 25-b cause of action or its availability for the
loss of a pet,
or any case law supporting or contesting such a
"[T]here is a limit to how much a court may be called upon to
divine in assessing the sufficiency of the complaint before it,
particularly when the plaintiff is represented by counsel."
Disease Research Found. v. Gen. Motors Corp., 463 F.2d 98, 100 (2d
Cir. 1972); see also Duncan v. AT
T Commc'ns, Inc., 668 F. Supp.
("the court's responsibilities do not
include cryptography, especially when the plaintiff is represented
by counsel"); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988) (the "complaint must contain either direct
or inferential allegations respecting all the material elements to
sustain a recovery under some viable legal theory").
the defendants have moved for summary judgment on this
cause of action and it is plaintiff's responsibility to demonstrate
the existence of a valid cause of action and issues of fact so as
to preclude summary judgment.
Plaintiff simply has not done so.
Counsel's briefing is not only bereft of any citation to relevant
expressed by the
It is not
job of this
Construction Law applies to the police shooting of a pet dog.
Plaintiff now unfortunately faces the consequences of ignoring the
Court's direction to provide legal support for her§ 25-b cause of
Accordingly, summary judgment is granted to defendants
on this cause of action.
alleges that defendants used excessive force in violation of the
Fourth Amendment while executing their arrest. 3
The elements of such a claim are well established:
The Fourth Amendment prohibits the use of unreasonable
and therefore excessive force by a police officer in the
course of effecting an arrest. Because the Fourth
Amendment test of reasonableness is one of objective
reasonableness, the inquiry is necessarily case and fact
' Plaintiff's fourth cause of action includes a battery action
against the officers, but defendants do not move for summary
judgment on that cause of action and thus the Court will not
analyze the merits of it here.
specific and requires balancing the nature and quality
of the intrusion on the plaintiff's Fourth Amendment
interests at stake. In conducting that balancing, we are
guided by consideration of at least three factors: (1)
the nature and severity of the crime leading to the
(2) whether the suspect poses an immediate
threat to the safety of the officer or others, and (3)
whether the suspect was actively resisting arrest or
attempting to evade arrest by flight.
quotations and citations omitted)
Defendants move for summary judgment on the excessive force
claim, stating that "Plaintiff was taken to the ground with minimal
force after she admitted ignoring lawful orders, and 'trying to
get away' after she was told she was under arrest."
Mem. of Law (Docket# 33) at 5; see also Def.'s Rep.
Defendants also argue that the officers have qualified
immunity as a matter of law against plaintiff's excessive force
See Def.'s Mot for Summ. J.
(Docket# 18-2) at 7-8.
Like plaintiff's other claims, the evidence at this summary
judgment stage of litigation must be viewed in the
favorable to plaintiff.
According to plaintiff, after her dog was
shot, the officers told her to come towards them and to step away
from the dead dog.
Mot. for Summ. J.
See Cabisca Dep. , Ex. "C" attached to Def.' s
(Docket# 18-1) at 33-34.
Plaintiff claims she
asked the officers what they were doing and what was going on.
The officers then told plaintiff that if she did not comply with
she would be arrested.
Plaintiff had her two small
grandchildren asleep inside, and did not want to leave them alone.
The officers again told plaintiff that she needed to step away
from the dog and come with them, and she told them to "step back
and get away from" her, putting her hands straight out in front of
According to plaintiff,
one of the uniformed
officers said "that's it," and came up to plaintiff and "put his
left chest in [her]
left hand and said 'you touched me.
Plaintiff says the officer then "grabbed" her,
"threw" her "around like a rag doll," and the two ended up in her
Plaintiff testified that she "tried to get away from him,"
and he "grabbed" her,
"threw" her around, and "threw" her to the
She stated that then there were two officers on top of
"one with his elbow in
other half" of her.
ribcage and the other on the
Plaintiff said that she told the officers
that she was asthmatic and could not breathe.
officers told to her to stop moving, which she did, and then they
got off of her.
Id. at 35.
The fact that the defendants recall the encounter differently
permeate excessive force claims.
See, e.g., Breen v. Garrison,
169 F.3d 152, 153
("The issue of excessive force
also was for the jury, whose unique task it was to determine the
amount of force used,
injuries suffered and the objective
reasonableness of the officer's conduct.").
For the same reason,
inappropriate at this juncture of the dispute.
"[S] ummary judgment
on qualified immunity grounds is not appropriate when there are
reasonableness" of a police officer's use of force under the Fourth
Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir.
reasons, defendants' motion for summary judgment as to plaintiff's
claim of excessive force is denied.
Plaintiff's Discovery Motions (Docket## 15, 35, 40):
See Docket# 15.
filing of this motion,
Defendants objected to the
noting that the motion was made one day
counsel had not discussed outstanding discovery prior to filing
the motion to compel.
See Docket # 17 .
At oral argument,
Court denied plaintiff's motion as untimely because the reigning
Scheduling Order called for motions to compel to be filed on or
before July 30, 2016.
See Docket# 14.
Plaintiff thereafter filed
a motion to reconsider pursuant to Federal Rule of Civil Procedure
60(a), arguing that counsel's delay was due to a clerical error.
See Docket# 35.
Plaintiff's motion papers contain no law or legal
arguments in support of the relief requested.
In determining what constitutes a clerical error, our
analysis is informed by the corrections permitted under
Fed.R.Civ.P. 60(a), which provides n[c]lerical mistakes
in judgments, orders or other parts of the record and
errors therein arising from oversight or omission may be
corrected by the court at any time of its own initiative
or on the motion of any party and after such notice, if
any, as the court orders."
Rezzonico v. H
R Block, Inc., 182 F.3d 144, 150 (2d Cir. 1999).
A motion under Rule 60(a) is available only to correct a judgment
"for the purpose of reflecting accurately a decision that the court
Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir.
Such a motion may be made so long as the relief sought
Dudley ex rel.
313 F.3d 662,
Estate of Patton v.
Robert Lewis Rosen Associates, Ltd v. Webb, 473 F.3d 498 (2d Cir.
related to arbitration);
155, 158 (2d Cir. 2001)
Hodge ex rel. Skiff v. Hodge, 269 F.3d
(finding a clerical mistake where the clerk
of court used the parties'
King Corp. v. Horn
wrong name in the judgment);
893 F.2d 525
court had power to amend judgment to clarify intended disposition
of a case).
Here, plaintiff does not argue that the Court made a clerical
error, but that counsel made an error by not reading the totality
of the Court's January 15,
2016 Scheduling Order.
Scheduling Order was a one-page letter facsimile which contained
scheduling deadlines proposed by the parties and signed by both
counsel, on which the Court stamped "So Ordered."
The Court altered nothing on the document, and filed it "as
Plaintiff's counsel has no excuse for not
is" on the ECF system.
abiding by those deadlines, which he himself proposed.
to compel was untimely,
and was properly denied by the Court.
Plaintiff's motion to reconsider (Docket# 35) is denied.
Plaintiff has also asked the Court
deadline has passed.
leave to depose a
even though the discovery
See Docket## 40, 42.
The defendants oppose
a deposition of Flowers and ask the court to preclude his testimony
at trial because plaintiff did not list Mr. Flowers as a witness
in her Rule 26 disclosures.
See Docket# 43.
Flowers appears to be a critical witness in this case.
According to plaintiff,
Flowers was an eyewitness to the events
that occurred on the evening of September 7,
was the individual who was walking two bikes down the street and
According to Flowers, he was placed in the
obtained the bikes.
back of a police vehicle while the officers entered plaintiff's
property to inquire about the bicycles, and Flowers alleges that
he told the officers that plaintiff had dogs before they walked
Plaintiff submitted an affidavit from Mr. Flowers in support of
her motion for summary judgment, a motion which the Court summarily
Irrespective of the fact that plaintiff did
denied as untimely.
not disclose Flowers as a witness in initial disclosures, there is
involvement in the events of September 7, 2013 since this lawsuit
prejudice to defendants
in allowing both sides to question Mr.
Flowers and preserve his testimony.
deposition of Mr. Flowers outside of the Scheduling Order (Docket
See Outley v. City of New York, 837 F.2d 587,
( "only extreme
plaintiff or extreme prejudice suffered by the defendants would
extended by agreement of the parties, the Flowers deposition shall
be conducted no later than November 10, 2017.
For the reasons stated above,
(1) the defendants' motion for
is denied in part and granted in
(2) Plaintiff's motion for summary judgment (Docket# 22) is
denied as untimely;
(docket # 15)
Plaintiff's motion to compel discovery
is denied as untimely;
Plaintiff's motion to
reconsider (Docket# 35) is denied; and (5) plaintiff's motion for
discovery (Docket# 40) is granted.
This case has been referred to mediation during the Court's
concentrated Settlement Week between November 13 and 22,
pursuant to Section 2.l(B) and 4.l(A) (5) of the Court's Alternative
Dispute Resolution Plan.
See Docket# 41.
Should the parties not
reach settlement during this period, they are directed to contact
the Court in order to schedule a status conference.
ED STATES MAGISTRATE JUDGE
Dated: September 20, 2017
Rochester, New York
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