United States District Court, Southern District of New York
June 20, 1990
WALLIE COOPER SIMPSON AND THE LOWER EAST SIDE INTERNATIONAL COMMUNITY SCHOOL, INC., PLAINTIFFS,
NEW YORK CITY POLICE SERGEANT STEVEN SAROFF, BADGE NO. 1155, TWO UNIDENTIFIED PLAINCLOTHES NEW YORK CITY POLICE OFFICERS, FOUR UNIDENTIFIED NEW YORK CITY UNIFORMED POLICE OFFICERS, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
Defendant Steven Saroff ("Saroff") has moved pursuant to Rule
56 of the Federal Rules of Civil Procedure for summary judgment
or in the alternative, partial summary judgment to dismiss the
claims of either plaintiff Wallie Cooper Simpson ("Simpson") or
plaintiff Lower East Side International Community School, Inc.
("LESICS") separately. For the reasons set forth below the
motion is denied.
Simpson is the principal and director of LESICS which, prior
to its eviction, operated out of a building at 203 Rivington
Street in the borough of Manhattan.
Saroff is a sergeant in the New York City Police Department
and assigned to the 7th Precinct located at 19 1/2 Pitt Street
in Manhattan. He is presently and was on November 6, 1987 a
Patrol Supervisor, which involves supervising police officers
and also responding to serious crimes.
Simpson commenced this action on May 27, 1988 under 42 U.S.C. § 1983
alleging that Simpson was falsely arrested and
imprisoned, assaulted and illegally searched and that Saroff
violated LESICS' Fourth Amendment right to be free from
unreasonable governmental intrusions. Saroff moved for summary
judgment urging dismissal of all claims on the grounds that
Saroff had probable cause to arrest Simpson for obstruction of
governmental administration and that undisputed material facts
indicate that the police in arresting Simpson did not use
excessive force and that LESICS had no reasonable expectation
of privacy because of its holdover tenant status. The motion
was heard and submitted on February 16, 1990.
A. The Events of November 6, 1987
The following facts are uncontroverted:
On November 6, 1987, Saroff responded to a radio call which
required his presence at a public school located at 100
Attorney Street. Upon arrival, Saroff entered the school and
was informed by a police officer who had preceded Saroff's
arrival, that two of the public school students had been beaten
and another child had been robbed, apparently by students from
a nearby private school. Those three children, as well as the
principal of the public school, an aide to the principal and
the father of two of the children, Reverend Rodriquez
("Rodriguez"), were present in the kitchen area of the public
school. After arrival, Rodriguez asked Saroff if he would
accompany them to talk with the principal, Simpson, of the
private school, LESICS. Saroff instructed two of the officers
to attempt to locate the mother of the one child who was robbed
and on the way to the school Saroff learned that the officers
were unable to locate the mother.
Upon arrival at the door of LESICS, the police officers rang
the school's bell and Simpson and another woman opened the
door. At that time there were seven police officers, including
two plainclothes officers,*fn1 standing in front of the school
building, along with the group of civilians.
What follows is disputed. According to Saroff, Simpson asked
what the problem was, and Saroff told Simpson that students
from LESICS had been accused of assaulting and robbing students
from the public school. Simpson then expressed annoyance at the
civilians for involving the police and questioned the
culpability of her students. She indicated to Saroff that she
wanted to call her lawyers, and she instructed an assistant to
do so. While a call was being placed to the lawyer, Simpson
remained in the doorway, and Saroff remained on the steps in
front of the door. Saroff maintains that he asked whether the
police, the principal, and Rodriguez could enter to speak with
Simpson. Simpson refused. Simpson and the Reverend allegedly
engaged in a heated discussion about Rodriguez's children.
While waiting in the doorway
for the call to the attorney, Simpson, according to Saroff
said, in effect, "Why don't you people come in and we'll talk."
Saroff claims to have understood her to mean that everyone
should come in, both the civilians and the officers. Rodriguez,
his two children, the public school aide, the other child and
the public school principal started to walk into LESICS. As the
civilians entered LESICS, Saroff told the two plainclothes
officers to accompany them. Saroff intended to wait outside on
the steps until the attorney called back.
When the plainclothes officers attempted to follow the
civilians in, Simpson allegedly blocked the doorway with her
body and grasped each side of the door with her hands. At this
point Saroff allegedly told Simpson that he had brought the
civilians to LESICS and that he wanted the two plainclothes
officers to be with the civilians while they were inside the
building. Simpson said "No" and Saroff allegedly told her that
he wanted the civilians out of the school to which Simpson
again replied, "No." Although Saroff allegedly was unable to
see the civilians inside the school from his view, Officers
Balestireri, Creta, and Pagano indicate that the civilians were
visible inside the doorway.
According to Saroff, Saroff told Simpson two or three times
that if she did not let the civilians out she would be arrested
for obstructing governmental administration. When Simpson
allegedly continued to refuse Saroff's request to let the
civilians out and continued to block the doorway, Saroff
ordered the two plainclothes officers to place her under
arrest. Saroff's own deposition contains conflicting claims as
to whether Saroff participated in handcuffing Simpson. Saroff
and the other officers on the scene contend that Simpson
resisted their attempts to arrest her.
According to Simpson, she never invited the police officers
into the school building nor did they attempt to enter. Simpson
claims she was never instructed to move away from the doorway,
nor was Simpson ever warned that she would be arrested. Once
the civilians had entered the school building, they always
remained within the view of the police officers standing
outside. According to Simpson, Saroff never asked Simpson to
allow the civilians to leave the school building, and she never
prevented them from leaving. Instead, Saroff allegedly ordered
Simpson arrested because she would not give the officers
permission to enter the school building. Furthermore, she
maintains that she did not resist arrest, but rather submitted
to arrest without resistance.
B. 203 Rivington
LESICS took possession of the building at 203 Rivington as a
tenant of New York City (the "City") in May 1976 and remained
there for more than twelve years. The School used a television
monitor, intercom and buzzer to control entrance to the
LESICS signed a lease with the City for 203 Rivington Street,
dated January 17, 1980. LESICS paid rent both to the City and
the subsequent landlord, Ornette Coleman ("Coleman"). At
various times, LESICS engaged in negotiations with Coleman and
the subsequent landlord, 203 Rivington Street Associates, for
the right to remain in the building at that address.
In August 1985, Coleman entered into a verbal agreement with
LESICS to remain in 203 Rivington as a month-to-month tenant.
Beginning in 1985, Coleman sought to evict LESICS from 203
Rivington. On January 8, 1986 the State Civil Court ordered
possession of 203 Rivington to the landlord. This order was
later vacated, and the eviction action against LESICS
dismissed. The first attempt was unsuccessful because the Civil
Court ruled that the 30-day notice, necessary to terminate a
month-to-month tenancy had been served with only twenty-nine
days' notice and therefore dismissed the petition. On August
22, 1986 Coleman served LESICS with a second thirty-day notice
and on October 30, 1986 Coleman commenced a second summary
proceeding to recover possession of the premises. That action
was dismissed subsequently as well.
On December 30, 1986, 203 Rivington Associates purchased the
Coleman. Between December 30, 1986 and May 1987, LESICS and 203
Rivington Street Associates engaged in amicable but
unsuccessful attempts to resolve the dispute over LESICS'
continued possession of the building.
On March 27, 1987, 203 Rivington Street Associates served
LESICS with a thirty-day notice to terminate LESICS'
"month-to-month tenancy". In May 1987, 203 Rivington Street
Associates served a petition commencing the third Civil Court
summary proceeding against LESICS to recover possession of 203
Rivington Street alleging that LESICS had been a month-to-month
tenant pursuant to an "oral rental agreement."
In July 1987, LESICS answered the petition demanding judgment
dismissing the petition. On January 6, 1988, LESICS and 203
Rivington Street Associates settled the pending Civil Court
action by a court-ordered stipulation that, among other things,
permitted LESICS to remain in the building until June 30, 1988.
A warrant of eviction was made enforceable against LESICS in
September 1988. Consequently, on November 6, 1987, the date of
the events in question, LESICS was involved in litigation with
203 Rivington Street Associates in which 203 Rivington Street
Associations was seeking to evict LESICS from the building.
Standards for Summary Judgment
To grant summary judgment the court must determine that no
genuine issue of material fact exists and that the moving party
is entitled to summary judgment as a matter of law.
See Fed.R.Civ.P. 56(c). The court's responsibility is not to
resolve disputed issues of fact, Donahue v. Windsor Lock Bd. of
Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987) but to determine
whether there are any factual issues to be tried, while
resolving ambiguities and drawing inferences against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09,
26 L.Ed.2d 142 (1970)). Summary judgment enables the court to
dispose of meritless claims before becoming entrenched in a
costly trial. Donahue, 834 F.2d at 58 (citing Knight v. U.S.
Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) cert. denied,
480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)).
1. False Arrest and Imprisonment and Improper Search
A claim for false arrest or false imprisonment as an
unconstitutional deprivation of civil rights under 42 U.S.C. § 1983
may be established only if there was no probable cause
to support the plaintiff's arrest and detention. Pierson v.
Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Zanghi
v. Incorporated Village of Old Brookville, 752 F.2d 42 (2d Cir.
According to Saroff, he had probable cause to arrest Simpson
for obstruction of governmental administration, a position
which rests on disputed facts and is therefore inappropriate
for a summary judgment motion on this record. Although a
finding of probable cause would dismiss the false imprisonment
and invalid search claims, Cameron v. Fogarty, 806 F.2d 380,
387 (2d Cir. 1986), cert. denied, 481 U.S. 1016, 107 S.Ct.
1894, 95 L.Ed.2d 501 (1987); U.S. v. Chadwick, 433 U.S. 1, 14,
97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977), a dismissal is
unwarranted here on this submission.
2. Excessive Force
A claim for use of excessive force as an unconstitutional
deprivation of civil rights under Title 42 U.S.C. § 1983 may be
established only if the force used was excessive or
unreasonable in light of the circumstances. Graham v. Connor,
___ U.S. ___, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); United
States v. Schatzle, 901 F.2d 252
(2d Cir. 1990); Johnson v.
Morel, 876 F.2d 477
(5th Cir. 1989). The circumstances of the
arrest here are disputed as to the extent of force used, the
resistance to arrest and the participation of Saroff.
Saroff contends that summary judgment is proper nevertheless
in this case because the injury suffered by Simpson under any
circumstances does not rise to the level of a constitutional
Mark v. Caldwell, 754 F.2d 1260, 1261 (5th Cir. 1985), cert.
denied, 474 U.S. 945, 106 S.Ct. 310, 88 L.Ed.2d 287 (1985);
Moats v. Village of Schaumberg 562 F. Supp. 624, 629-30
(N.D.Ill. 1983); Estes-El v. State of New York, 552 F. Supp. 885,
890 (S.D.N.Y. 1982).
Although not every "push or shove" is actionable under §
1983, a plaintiff alleging injurious or excessive actions by
police officers can properly proceed under § 1983. Robison v.
Via, 821 F.2d 913, 923 (2d Cir. 1987); Johnson v. Morel,
876 F.2d 477 (5th Cir. 1989). The Robison Court also held that
testimony of bruises lasting "a couple of weeks" was
"sufficient to prevent summary dismissal of a § 1983 claim for
excessive force." Id. at 924; see also Bellows v. Dainack,
555 F.2d 1105, 1106 and n. 1 (2d Cir. 1977) (alleged arm-twisting
and punching sufficient to sustain an excessive force claim).
Since Simpson alleges a punched stomach, swollen and bleeding
wrists from the tight handcuffs, as well as a faintly
detectable scar on her left wrist, her complaint is sufficient
to allege a § 1983 claim.
Because genuine issues of material fact exist as to Simpson's
and Saroff's conduct during the time of the arrest, and because
Simpson has alleged sufficient injury to support a § 1983
claim, the motion for dismissal of the excessive force claim
must be denied.
3. Unlawful Search of LESICS
Saroff asserts that LESICS' Fourth Amendment claim is
improper because: (1) it failed to assert an interest in the
property searched, and (2) LESICS, in rental arrears and
subject at the time to an eviction action, had no reasonable
expectation of privacy in the premises, and therefore no
standing to sue. LESICS therefore bears the burden of showing
that it had an interest in the property that was searched, a
subjective expectation of privacy in the premises, and that
this expectation was objectively reasonable. N.J. v. TLO,
469 U.S. 325
, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); Smith v. Md.,
442 U.S. 735
, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Rakas v.
Illinois, 439 U.S. 128
, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978);
Katz v. U.S., 389 U.S. 347
, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967); U.S. v. Roy, 734 F.2d 108
(2d Cir. 1984), cert. denied,
475 U.S. 1110
, 106 S.Ct. 1520
, 89 L.Ed.2d 918 (1986); U.S. v.
Smith, 621 F.2d 483
(3d Cir. 1980), cert. denied,
449 U.S. 1086
, 101 S.Ct. 875
, 66 L.Ed.2d 875 (1981).
Simpson must establish an ownership or possessory interest in
the property that was searched. Barr v. Adams, 641 F. Supp. 547,
552 (S.D.N.Y. 1986), aff'd 810 F.2d 358 (2d Cir. 1987); Davis
v. Hudson, 436 F. Supp. 1210, 1213 (D.S.C. 1977). "If the
appellant does not own or rent the premises searched, however,
he may establish standing by demonstrating 'an unrestricted
right of occupancy for custody and control of the premises as
distinguished from occasional presence'." United States v.
Sarda-Villa, 760 F.2d 1232, 1236 (11th Cir. 1985) (citing
United States v. Bachner, 706 F.2d 1121, 1126 n. 6 (11th Cir.
1983)). LESICS properly has alleged an interest in the premises
because it occupied them on a permanent basis, kept up the
premises through expenditures on improvements, and exercised at
all times the right to exclude others from the premises (by use
of video camera and buzzer system at the school's entrance).
LESICS efforts to exclude people by means of the security
system described above, also establish that LESICS had a
subjective expectation of privacy in the premises. Citizens
occupying premises pursuant to a lease agreement have an
objectively reasonable expectation of privacy in the premises.
United States v. Showalter, 858 F.2d 149, 151 (3d Cir. 1988).
If LESICS was a tenant at the time of the search, a question
determined by New York State law, then LESICS had an
objectively reasonable expectation of privacy in the property.
See United States v. Curcio, 705 F. Supp. 237, 240 (E.D.Pa.
New York's Real Property Law ("RPL") § 232-c states in
Where a tenant whose term is longer than one month
holds over after the expiration of such term . . .
the landlord may proceed, in any manner permitted
by law, to remove the tenant, or, if the landlord
shall accept rent for any period subsequent to the
expiration of such term, then, unless an agreement
either express or implied is made providing
otherwise, the tenancy created by the acceptance
of such rent shall be a tenancy from month to
month . . .
When LESICS' original lease with New York City expired, it
continued to pay rent on a monthly basis to the City, and to
the subsequent landlord, Coleman, thus establishing a
month-to-month tenancy under § 232-c. Comorford v. Jones,
121 Misc.2d 141, 467 N.Y.S.2d 329 (1983); Park Summit Realty v.
Frank, 107 Misc.2d 318, 322, 434 N.Y.S.2d 73 (1st Dept.App.Term
1980), aff'd 56 N.Y.2d 1025, 453 N.Y.S.2d 643, 439 N.E.2d 358
(1982); Jaroslow v. Lehigh Valley, 23 N.Y.2d 991, 298 N.Y.S.2d
999, 246 N.E.2d 757
(1969). Therefore, as a tenant, LESICS had
a legitimate expectation of privacy in the premises that were
searched. United States v. Showalter, 858 F.2d 149
, 151 (3d
The nonpayment of rent to the subsequent landlord, 203
Rivington Associates does not automatically strip LESICS of its
rights as a tenant on the premises. See also United States v.
White, 541 F. Supp. 1181, 1183 (N.D.Ill. 1982) (an occupant who
has not been ousted lawfully from the premises has a legitimate
expectation of privacy even though he may be in violation of
his lease); Rakas v. Illinois, 439 U.S. at 148, 99 S.Ct. at
432-33 (1978) ("legitimate presence on the premises . . .
cannot be deemed controlling"). New York's Real Property
Actions and Proceedings Law ("RPAPL") § 749 states that the
landlord-tenant relationship is annulled only upon issuance of
a warrant for removal of the tenant. Although several
proceedings were commenced to remove LESICS from the premises
for non-payment of rent, none were successful. Under the
requirements of the law, then, LESICS' tenancy was never
terminated because no warrant to remove was issued. Therefore,
the landlord-tenant relationship between LESICS, Coleman, and
subsequently 203 Rivington Associates was not annulled at the
time of the search.*fn2
LESICS' expectation was thus objectively reasonable. A
perfected title is not required to assert a privacy interest;
a colorable claim to the property will suffice. Amezquita v.
Hernandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975). Although
LESICS may have been in violation of its lease at the time of
the search, the law requires that official court orders be
issued to terminate a tenant's rights. Such orders were never
issued against LESICS and therefore its interests as a
month-to-month tenant, including its constitutional expectation
of privacy, were intact at the time of the search.
For the foregoing reasons, Saroff's motions for summary
judgment on claims of false arrest and imprisonment, illegal
search of the purse, excessive force, and unlawful search of
the premises are all denied.
This case will be set on the ready trial calendar.
It is so ordered.