Cabisca v. City of Rochester, New York et al

Filing 45

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
TINA CABISCA,
Plaintiff,

DECISION

&

ORDER

14-CV-6485
v.

CITY OF ROCHESTER et al.,
Defendants.

Factual Smary

At approximately 9: 5 O p. m.
2013,

Investigator

Nolan

on the evening of September 7,

Wengert

with

the

Rochester

Police

Department saw an individual later identified as Tyrone Flowers
pushing two bicycles down the sidewalk in the area of Kingsboro
See

Road.

Def.'s

Mot.

for

Summ.

J.

(Docket#

18-1)

at

9.

Investigator Wengert was not in uniform, but was in plainclothes.
Id.

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.

Id.

Investigator Wengert called

for back-up, and Officers Hogg and Prinzi responded to assist in
uniform.

The officers detained Flowers in a police vehicle.

Investigator Wengert decided to investigate further by asking
Tina

Cabisca

(hereinafter "plaintiff" or "Cabisca"), about the bikes.

Wengert

the

homeowner

of

207

Kingsboro,

plaintiff

walked up plaintiff's driveway and up the steps leading to the
open front porch.

Id.

Officers Hogg and Prinzi stood at the end

of

the

driveway

According

near

to Wengert

the

sidewalk,

and Hogg,

knocked on the front door.

observing

Wengert

rang

Id. at 9, 16.

Wengert.

the

Id.

doorbell

and

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."

"if

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.
9,

16.

Id. at

Wengert backed up onto the front porch, and then, as the

dog continued to approach, shot the dog twice.

Id. at 9, 16, 23-

24.

According to Cabisca,

she opened her side door because she

saw flashlights on her garage.
a man shot Bailey.
were

aggressive,

Id.

Her dogs stepped out with her, and
Plaintiff denies that the dogs

at 31.

barking,

or

charging.

She

claims

that

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.

2

The parties agree that Cabisca, after witnessing her dog shot
by the police,

became angry and visibly upset,

cursed at

the

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.

43.

According to the officers, plaintiff confronted Officer Hogg

and pushed him backwards using both of her hands, causing him to
step back.

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.
illegal."

That's

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."

Id.

at 35.
Plaintiff was placed in the back seat of a police car.
at 12.

Id.

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
3

Penal Law

she was released by the police. 1

205.30,

§

Attorney Aff.

Id. at 10, 16,

Cabisca appeared as directed in Rochester City Court on

· September 18,

All charges were dismissed on October 22,

2013.

2013 by Rochester City Court Judge Ellen M. Yacknin.
Aff.

see

Plaintiff refused medical help,

(Docket # 36-1).

choosing instead to go to the hospital herself.
36-37.

Id.;

See Attorney

(Docket # 36-1).
Based on this incident, Cabisca filed this federal action on

August

22,

2014,

defendants for

alleging

(1)

trespass;

malicious prosecution;
property;

(7)

eight
(2)

causes
battery;

of
(3)

action against

the

false arrest;

(4)

(5) abuse of legal process;

§ 1983 violation of plaintiff's 4th,

(6)

injury to

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,

2017,

one day before the deadline to file

dispositive motions, plaintiff filed a motion to compel discovery
(Docket # 15).

See Amended Scheduling Order (Docket# 14)

("All

motions to Compel Discovery to be filed on or before 7-30-16.").

Plaintiff was also served with six citations asserting Animal
Control violations.

1

4

Defendants opposed that motion as untimely (Docket# 19), and filed
for summary judgment the following day, January 30, 2017.
# 18.

Docket

Plaintiff filed a reply to the motion to compel on February

18, 2017.

Docket# 21.

The Court set a
judgment
respond.

motion,

briefing deadline for defendants'

giving plaintiff

Docket # 20.

until

On February 27,

cross-motion for summary judgment.

February

27,

summary
2017

to

2017, Plaintiff filed a
Defendants

Docket## 22-24.

responded in opposition on March 10, 2017, noting that plaintiff's
summary judgment motion was filed after the Court's dispositive
motion deadline.
6, 2017.

Docket# 27.

Plaintiff filed a reply on March

Docket# 31.

The Court heard argument on the motion to compel and the two
summary judgment motions on June 1,

2017.

During

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
reserved decision.
defense

issues,

and

Thereafter, counsel for the

submitted additional briefing on June 2 and 15,

Docket## 33-34.
36.

See Docket# 32.

number of

Plaintiff responded on June 18, 2017.

2017.

Docket#

On that same date, plaintiff filed a motion for the Court to

reconsider its decision on her motion to compel.
5

Docket # 35.

The defendants responded to this new motion on June 20,
Docket# 38.

Plaintiff filed an additional affirmation on July 1,

and an additional motion for discovery on July 31, 2017.
## 39,

40.

2017.

Docket

This Decision and Order is intended to resolve all

pending motions before the Court.

Discussion

A.

Defendants'

Motion for Summary Judgment

(Docket# 18):

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
the

summary

judgment

stage.

Because

the

elements

and

facts

pertaining to each claim are, for the most past, unique, the Court
will address each cause of action separately.
However,
motion,

before

turning to

the merits

of

the defendants'

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 []
law.

11

Fed.

the movant is entitled to a judgment as a matter of
R.

Ci V.

P.

A genuine issue exists "if the

5 6 ( c) .
6

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
judgment

motion,

plaintiff

"must

come

forth

with

evidence

sufficient to allow a reasonable jury to find in her favor."
v. Henderson, 257 F. 3d 246, 252 (2d Cir. 2001) .

Brown

"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
citations omitted).

With this standard established,

the Court

will now turn to the merits of the motion.
False Arrest:

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).

See

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
7

'(1)

the

defendant intended to confine the plaintiff,
conscious of the confinement,
the

confinement,

privileged.'"
Cir. 2003)
Cir.

and

(4)

Savino v.

(2) the plaintiff was

(3) the plaintiff did not consent to
the

confinement

City of New York,

was

not

otherwise

331 F.3d 63,

75

(2d

(citing Bernard v. United States, 25 F.3d 98, 102 (2d
"The

1994)).

existence

of

probable

cause

to

arrest

constitutes justification and 'is a complete defense to an action
for false arrest,' whether that action is brought under state law
or under§ 1983."
(2d Cir.
57,

2007)

Jenkins v. City of New York, 478 F.3d 76,

(quoting Broughton v.

373 N.Y.S.2d 87,

335 N.E.2d 310

84

State,

37 N.Y.2d 451,

456-

(1975)

(additional internal

quotation omitted)).
Defendants contend that there was probable cause to arrest
plaintiff for harassment and resisting arrest.
exists when an officer has

"Probable cause

'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
be arrested.'"

Curley v. Village of Suffern, 268 F.3d 65, 69-70

(2d Cir. 2001)

(quoting Martinez v. Simonetti, 202 F.3d 625, 634

(2d

Cir.

Harassment

internal

2000)

(additional

in the

second degree

occurs

quotation
when,

omitted)).

"with intent

to

harass, annoy or alarm another person," someone "strikes, shoves,
kicks or otherwise subjects such other person to physical contact,
8

or at tempts or threatens to do the same."
(McKinney).

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
effecting

an

authorized

arrest."

N.Y.

Penal

Law

205.30

§

(McKinney)
In

seeking

summary

judgment,

defendants

rely

deposition testimony of Officers Wengert, Hogg and Prinzi.

on

the

Wengert

described plaintiff as being "completely uncooperative, yelling,
screaming, flailing her arms around and just yelling a variety of
insults towards the officers."
Def.'s Mot.

for Summ.

J.

Wengert Dep., Ex. "B" attached to

(Docket# 18-1)

According to

at 25.

Wengert, plaintiff was irate and yelling, and "physically shoved
Officer Hogg in the chest causing him annoyance and alarm."
at

26-27.

After

Officer Hogg

"escorted her

to

the

Id.

ground,"

plaintiff was "struggling, yelling and screaming and swearing, and
essentially trying to push herself up and not cooperating with
being

handcuffed."

Id.

at

27.

Officer Hogg

testified

that

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.
9

Prinzi

Dep.,

Ex.

(Docket# 18-1) at 43.

"D'1

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.

# 18-1)

at 32.

(Docket

Plaintiff testified that she also observed two

uniformed police officers with weapons also pointed at her,
Id.

she repeatedly asked them to "help me with my dog."

and
The

officers then directed her to "come here" and she responded: "I'm
not going to step off my property with you.
and did this.
33.

You came to my house

You need to tell me what you're here for."

According to plaintiff,

Id. at

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

minimally I

should have been given basic information.

they don't do that, my tone became extremely different."
10

And when
Id. at

33.

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.

her property:

You need to

tell me what you're doing here and you need to tell me who you
are.

Id.

11

After receiving no response, plaintiff put her hands

straight out and said to the officers,
and

get

away

from

me."

According

to

"[y] ou need to step back
plaintiff,

one

of

the

uniformed officers then said "that's it," and came towards her.
Id.

The approaching officer "put his left chest in my left hand

and said, 'You touched me. That's illegal. You're going to jail.'"
Id.

Plaintiff testified that when she tried to get away from the

officer,
ground.
me.

he

"grabbed me,

threw me around,

Two officers on top of me.

Two.

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."

Id.

Plaintiff testified that the "man who

shot the dog" then "told them to get off of me" and they did.
at 35.

Id.

At that point, plaintiff went into her house to check on

her children and call her family.

Id.

"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).
11

Weyant v.

Clearly, this is not one

of

those

situations.

"Assessments

of

credibility

and

choices

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. ,

(citations omitted).

the record in a light most favorable to plaintiff,

Viewing

as I must,

I

find that there are issues of fact as to whether the defendants
had probable cause to arrest plaintiff for harassment and resisting
arrest.

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:

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;

(iii)

(ii)

the

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,

841

(internal quotations omitted).

Plaintiff has satisfied the first two elements by providing
proof of the dismissal of both charges against her.

See Docket#

36-1; Mitchell v. New York, 841 F.3d at 79 (proceeding terminated
in plaintiff's favor where District Attorney declined to prosecute
her).

As discussed above,

there are issues of fact as to the
12

existence of probable
defendants'

motion

for

cause for plaintiff's
summary

judgment

Thus,

arrest.

necessarily

the

hinges

on

whether plaintiff can show that the defendants acted with malice.
To

demonstrate

malice,

defendant acted in bad faith,

"a

plaintiff

i.e.,

must

show

on the basis of

that

the

'a wrong or

improper motive, something other than a desire to see the ends of
justice served."'
Cir.

2017)

3d 747
the

Watson v. United States, 865 F.3d 123, 134 (2d

(quoting Torres v.

(2016)

Jones,

26 N.Y.3d 742,

47 N.E.

"In most cases,

(additional citations omitted)).

lack of probable cause -

761,

while not dispositive -

'tends to

show that the accuser did not believe in the guilt of the accused,
and malice may be
Lowth v.

Town of

inferred from
Cheektowaga,

(citation omitted);
72,

78

82

the

lack of

F. 3d 563,

see also Boyd v.

probable
573

cause. '"

( 2d Cir.

City of New York,

1996)

336 F.3d

(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,

I find

that the existence of malice is also an issue of material fact.
Plaintiff has testified that she did not resist arrest,

but that

Officer Hogg purposely caused her hand to touch his chest.
that

contact

took place,

plaintiff
13

claims

that

Hogg

Once

threatened

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
objections

to

their

conduct,

that

See Lowth v.

prosecution of plaintiff.
573

and

there

was

a

Cheektowaga,

malicious
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
For

through")
judgment

as

to

this

reason,

plaintiff's

defendants'

claim

of

motion

malicious

for

summary

prosecution

is

denied.

Abuse of Legal Process:

Under New York law,

"' a malicious

abuse-of-process claim lies against a defendant who
regularly

issued

legal

process

to

compel

(1)

employs

performance

or

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)).

Savino v.

(quoting Cook

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.

14

See Hoyos v. City of New York, 999 F. Supp. 2d 375, 391 (E.D.N.Y.
2013).
As with claims of malicious prosecution, "[w]hile there is no
showing of actual malice, malice may be inferred from the lack of
Berman v.

probable cause."
A.D.2d 624,

625

Silver,

Forrester

&

Schisano,

156

(2d Dept. 1989); see also Sforza v. City of New

York, No. 07CIV6122DLC, 2009 WL 857496, at *17 .(S.D.N.Y. Mar. 31,
2009)

("lack of probable cause gives

rise

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
establish

that

claim for abuse of process,
the

defendants

instigating the action."
original).

had

Savino,

an

"In

a plaintiff must

improper

331 F.3d at 77

purpose

in

(emphasis in

Here, plaintiff alleges that defendants filed charges

against her
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.
Pl.'s Br.

(Docket# 23-1)

improper motive
excuse"

for

for

their

the

abuse

at 17.
officers'
of

While this may constitute an
actions

authority
15

in

creating a
entering

"lame

plaintiff's

property and charging her with "concocted"
plaintiff

has

failed

to

offer

proof

criminal offenses -

that

defendants

"had

a

collateral purpose beyond pursuing, and prevailing in, plaintiffs'
Hoffman v.

criminal prosecution."

Town of Southampton,

893 F.

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.
29,

see also McKnight v.

2013);

Vasile,

1176051, at *30 (W.D.N.Y. Mar. 30, 2017)

ll-CV-6328P,

(Payson, M.J.)

2017 WL
(argument

that officer commenced criminal prosecution to justify use of force
against

plaintiff

is

"insufficient

to

suggest

objective, as opposed to an improper motive");

motive

of

plaintiff

collateral

Gilliard v. City

of New York, No. 10-CV-5187, 2013 WL 521529, *14
(" [alt most,

a

(E.D.N.Y. 2013)

[dl efendants issued the summons with the improper

covering

up

their

abuse

of

authority

in

arresting

... [, 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")

(internal quotations

and brackets omitted); Dotson v. Farrugia, No. 11 Civ. 1126, 2012
WL 996997,
summons

was

*8

(S.D.N.Y.

issued

to

2012)
him

in

(plaintiff's contention that the
retaliation

"for

his

perceived

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
16

if taken as true,
because

they

actionable,

do not support a claim for abuse of process,

allege
rather

only
than

objective, which may be.")
County of Nassau, No.
2007)

an
an

improper
ulterior

motive,

which

collateral

is

purpose

not
or

(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.
Municipal Liability:

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
in

the

mistreatment

instructing,

the

the

plaintiff,"

and

for

training and supervising the officers.

(Docket # 1)
against

of

at 8.
City

of

negligently
Complaint

This is the only cause of action alleged
Rochester.

The

City

moves

for

summary

judgment, arguing that plaintiff has asserted no facts to support
a Monell claim in this matter.
4-5.

See Def.'s Mot (Docket# 18-2) at

I agree.
To plead a§ 1983 claim against a municipality, a plaintiff

is required to assert a violation of a federally protected right
17

that was caused by the municipality's official policy or custom,
or

by

a

authority.
U.S.

658,

employees

decision

of

a

policymaker

with

final

policymaking

Monell v. Dep't of Soc. Serv. of City of New York, 436
694

"The failure to train or supervise city

(1978).

may constitute

an official policy or custom if

the

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)
Here,

plaintiff

has

Connick

(citation omitted)

provided

nothing

by

way

of

facts,

policies,

or other admissible evidence that raises a plausible

assertion

of

a

policy

municipal liability.

or

custom

that

could

be

the

basis

of

"[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
municipal liability."
81 (2d Cir. 2012)

Jones v. Town of East Haven, 691 F.3d 72,

(citations omitted).

Further, even if plaintiff

could link some type of decision-making to the municipality, the
Supreme Court has

stated that

"it is not enough for a

§

1983

plaintiff merely to identify conduct properly attributable to the
municipality.

The plaintiff must also demonstrate that, through
18

its deliberate conduct,
behind the

the municipality was the
Board of

injury alleged."

County Com' rs

County, Oklahoma v. Brown, 520 U.S. 397, 404
original).

'moving force'

(1997)

of

Bryan

(emphasis in

Plaintiff has not even provided any municipal policies,

not to mention any evidence that hints at municipal liability.

I

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.
Trespass:

Plaintif:f:'s first cause of action asserts a state

law claim for trespass against the individual defendants.
Complaint

(Docket

#

1)

at

Plaintiff

3.

also

pleads

Fourth

Id.

at 8.

Amendment violations in her seventh cause of action.
Defendants

move

for

summary

federal and state law claims.

judgment

against

See

both plaintiff's

See Def.'s Mem. of Law (Docket#

18-2) at 5-8; Def.'s Supp. Mem. of Law (Docket# 33) at 1-2.

For

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'
motion

for

summary

judgment

for

both

of

plaintiff's

trespass

claims.
The facts as related to the alleged trespass are not really
in dispute.

Both parties agree that on the evening of September

7, 2013, between 9:30 and 10:00 p.m., defendants Wengert, Prinzi
19

and Hogg

entered plaintiff's

Investigator

dressed

Wengert,

plaintiff's porch.

property
in

including her driveway.

plain

clothes

went

onto

None of the officers had plaintiff's permission
As Investigator Wengert testified,

to enter her property.

the

purpose of the nonconsensual entry was to investigate a potential
burglary of two bicycles from plaintiff's home.
Ex.

"B" attached to Def.'s Mot.

for Summ. J.

See Wengert Dep.,
(Docket# 18-1) at

18-24.
The Second Circuit has held that there is "no Fourth Amendment
violation based on a
individual's

law enforcement officer's presence on an

driveway

when

that

officer

legitimate law enforcement business."
F.3d 446, 465 (2d Cir. 2002)

was

in

pursuit

of

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,
452,

470

(2011)).

8

(2013)

Similarly,

Florida v.

(quoting Kentucky v. King, 563 U.S.
under New York state

law,

"law-

enforcement officials have a privilege to enter private property
to perform their legal duties."

Reynolds v. United States, 927 F.

Supp.

(dismissing a

91,

96

(W.D.N.Y.

1996)

20

claim of

trespass

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
duty.

Although plaintiff

officers
convert

conducted
their

Accordingly,

their

presence
defendants'

disagrees

with the

investigation,
on

her

motion

that

property
for

way

in which the

alone

into

summary

a

does

not

trespass.

judgment

on

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
claim fails.
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).

21

The

Shooting

of

Plaintiff's

Dog:

Plaintiff's

complaint

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
Carroll v.

Amendment."
Cir. 2013)

County of Monroe,

(citations omitted).

712 F.3d 649,

651

(2d

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).
Id.

In Carroll, the court found that shooting a family dog is "a

severe intrusion given the emotional attachment between a dog and
an owner.

Id.

11

However,

the court al so noted that "in some

circumstances, it is reasonable for an officer to shoot a dog that
he believes poses a
community."
F.3d 194,

Id.

205-06

threat to his safety or the safety of the

(citing Altman v. City of High Point, N.C., 330
(4th Cir.

2003);

F.3d 205, 210-11 (3d Cir. 2001)).
22

Brown v.

Muhlenberg Tp.,

269

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
warrant.
Because there are critical facts in dispute here,
the

jury

and

not

this

Court

to

decide

it is for

whether

Investigator

Wengert's conduct in shooting the dog was reasonable.

For example,

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
dogs,

no people,

and then the dogs

charging up the driveway."

Wengert Dep. , Ex. "B" attached to Def. 's Mot for Summ. J.
# 18-1) at 23.

(Docket

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.

She opened

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.

The

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,

"charging up."

One

of the dogs continued towards Wengert, he took steps backwards,
23

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
Fourth Amendment.

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,

unleashed,

uncontrolled,

and unsupervised,

for at

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.

A

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,

I

Viewing
find the

current record creates an issue of fact on whether "the totality
of the circumstances"
Bailey the dog.
shooting,

justified the Fourth Amendment seizure of

Because of these disputed facts surrounding the

summary

judgment

is

denied on

claim.
24

this

Fourth Amendment

New

York

General

Construction

Law

Plaintiff's

25-b:

§

complaint also includes a state law claim under New York General
Construction Law

§

25-b for "injury to property"

totaling $800.

Section 25-b provides that "'injury

See Complaint (Docket# 1).
to property'

is an actionable act, whereby the estate of another

is

other than a

lessened,

contract."

N. Y.

personal

injury,

General Construction Law

or the breach of a
§

25-b

(McKinney's) .

Plaintiff's complaint alleges that her pet had a property value of
$800

and

"the

defendant

Wengert

willfully

and

maliciously

destroyed the dog by shooting it and whereupon Wengert, Hogg, and
Prinzi allowed it to bleed to death."
7.

Complaint (Docket# 1) at

Defendants move for summary judgment on this claim,

arguing

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.

(Docket# 18-

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."

large dog

Def.'s Supp. Mem. of Law

(Docket# 33) at 4.
At

first

plaintiff's

blush,

it

would

Fourth Amendment

appear

claim,

that can only be resolved by a jury.

that

presents

this

claim,

questions of

like
fact

However, neither plaintiff's

nor defendants' moving papers set forth the required elements of
25

a claim under§ 25-b or provide any supporting case law for their
positions.

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
presented here.

Both counsel filed post-hearing briefs (Docket##

33, 36) and both are remarkable in their failure to mention alone

address -

the

Court's

let

Indeed,

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

position.
"[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."

Heart

Disease Research Found. v. Gen. Motors Corp., 463 F.2d 98, 100 (2d
Cir. 1972); see also Duncan v. AT
232,

234

(S.D.N.Y.

1987)

&

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").
sides'

briefings

are

equally

non-responsive
26

to

While both
the

Court's

concerns,

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
legal

authority

but

expressed by the
construct

a

also

Court.

reasonable

fails

to

It is not
analysis

of

even
the
how

address

the

concerns

job of this

Court to

§

25-b of

New York's

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
action.

Accordingly, summary judgment is granted to defendants

on this cause of action.
Excessive

Force:

Plaintiff's

seventh

causes

of

action

alleges that defendants used excessive force in violation of the
Fourth Amendment while executing their arrest. 3
(Docket# 1).

See Complaint

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.
27

specific and requires balancing the nature and quality
of the intrusion on the plaintiff's Fourth Amendment
interests
against
the
countervailing
governmental
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
arrest,
(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.
Tracy v.

Freshwater,

623

F.3d 90,

96

(2d Cir.

2010)

(internal

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."

Def.'s Supp.

Mem. of Law (Docket# 33) at 5; see also Def.'s Rep.

(Docket# 27)

at

'I! 23.

Defendants also argue that the officers have qualified

immunity as a matter of law against plaintiff's excessive force
claim.

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.

light most

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.
28

The officers then told plaintiff that if she did not comply with
them,

she would be arrested.

Id.

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
her.

Id.

According to plaintiff,

at 34.

one of the uniformed

officers said "that's it," and came up to plaintiff and "put his
left chest in [her]
illegal. '"

left hand and said 'you touched me.

That's

Plaintiff says the officer then "grabbed" her,

Id.

"threw" her "around like a rag doll," and the two ended up in her
lawn.

Plaintiff testified that she "tried to get away from him,"

and he "grabbed" her,
ground.
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.

Id.

[her]

ribcage and the other on the

Plaintiff said that she told the officers

that she was asthmatic and could not breathe.

In response,

the

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
than plaintiff

only

pays

tribute

to why

issues

of

fact

often

permeate excessive force claims.

See, e.g., Breen v. Garrison,

169 F.3d 152, 153

("The issue of excessive force

(2d Cir.

1999)
29

also was for the jury, whose unique task it was to determine the
amount of force used,

the

injuries suffered and the objective

reasonableness of the officer's conduct.").
summary

judgment

on

the

basis

of

For the same reason,

qualified

inappropriate at this juncture of the dispute.

immunity

is

also

"[S] ummary judgment

on qualified immunity grounds is not appropriate when there are
facts

in

dispute

that

are

material

to

a

determination

of

reasonableness" of a police officer's use of force under the Fourth
Amendment.

Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir.

(internal

2001)

quotation

and

citation

omitted).

For

these

reasons, defendants' motion for summary judgment as to plaintiff's
claim of excessive force is denied.
B.
January

Plaintiff's Discovery Motions (Docket## 15, 35, 40):
29,

201 7,

plaintiff

discovery documents.

the

a

See Docket# 15.

filing of this motion,
before

filed

dispositive

motion to

compel

On

certain

Defendants objected to the

noting that the motion was made one day
motion

deadline,

and

that

plaintiff's

counsel had not discussed outstanding discovery prior to filing
the motion to compel.

See Docket # 17 .

At oral argument,

the

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
30

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
actually made."
1995).
does

Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir.

Such a motion may be made so long as the relief sought
not

affect

substantive

Dudley ex rel.

judicial oversight."
America Ins.

Co.,

rights

313 F.3d 662,

665

but

"merely

correct [s]

Estate of Patton v.
(2d Cir.

2002);

see,

a

Penne.g.,

Robert Lewis Rosen Associates, Ltd v. Webb, 473 F.3d 498 (2d Cir.
2007)

(finding

the

court

related to arbitration);
155, 158 (2d Cir. 2001)

&

corrected

a

clerical

error

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

properly

wrong name in the judgment);

Hardart Co.,

31

893 F.2d 525

(1990)

Burger

(district

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,

The Court's

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."
14.

See Docket#

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,

The motion

and was properly denied by the Court.

Plaintiff's motion to reconsider (Docket# 35) is denied.
Plaintiff has also asked the Court
critical witness,

Mr.

deadline has passed.

Tyrone Flowers,

for

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.
Mr.

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,

2013.

Mr. Flowers

was the individual who was walking two bikes down the street and
32

pointed

to

plaintiff's

house

as

being

the

location

where

he

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
onto

her

See

property.

Pl.'s

Reply

(Docket

30)

#

at

9-11.

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
no

question

that

defendants

have

been aware

of

Mr.

Flowers'

involvement in the events of September 7, 2013 since this lawsuit
was

Given

commenced.

prejudice to defendants

these

facts,

there

is

no

demonstrated

in allowing both sides to question Mr.

Flowers and preserve his testimony.
For

the

above

reason,

plaintiff's

motion

to

permit

the

deposition of Mr. Flowers outside of the Scheduling Order (Docket
# 40)

591

is granted.
(2d

Cir.

1988)

See Outley v. City of New York, 837 F.2d 587,
( "only extreme

misconduct

on

the

part

of

plaintiff or extreme prejudice suffered by the defendants would
justify

the

extraordinary

sanction

of

preclusion").

Unless

extended by agreement of the parties, the Flowers deposition shall
be conducted no later than November 10, 2017.
33

Conclusion

For the reasons stated above,
summary judgment
part;

(Docket# 18)

(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)

(3)

Plaintiff's motion to compel discovery

is denied as untimely;

(4)

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,

2017,

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.
SO ORDERED.

ED STATES MAGISTRATE JUDGE

Dated: September 20, 2017
Rochester, New York

34