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August 30, 1990


The opinion of the court was delivered by: Haight, District Judge:



Haydee Ruiz is a resident of Bridgeport, Connecticut. Ruiz Affidavit at ¶ 1.*fn1 On the evening of February 27, 1988, Ruiz and her husband, Israel Acevedo, drove to a night club called La Cascada located in Port Chester, New York. Ruiz ¶ 3; Acevedo ¶ 3. Ruiz and Acevedo arrived at approximately 11:00 p.m., locked their personal effects in the glove compartment of their car, and walked to La Cascada. Ruiz ¶ 3-4; Acevedo ¶ 3-4. In the night club, they met their friends and relatives, including Ruiz's sister, Olga Arroyo. Ruiz ¶ 5; Arroyo ¶ 3.

There are two accounts as to what happened next. Ruiz and her family remember the evening this way. Ruiz and her sister Arroyo went to the ladies room. They and another woman were in the bathroom when "[s]uddenly, the ladies room door burst open, and three or four Port Chester policemen entered the ladies room . . . ordered [Arroyo] and the other lady to leave . . . [and] told [Ruiz] that [she] was under arrest." Ruiz ¶ 7-8; Arroyo ¶ 5-6. Ruiz asked them why and was told there was an outstanding warrant for her arrest in Connecticut. Ruiz told them they were wrong. One of the officers held a photograph of a female fugitive in his hand and claimed that Ruiz was the woman in the photo. Ruiz ¶ 8; Arroyo ¶ 6-7. Ruiz asked to see the photo but was not allowed. At that point Arroyo insisted that they show her the photo. Arroyo ¶ 8. The police officer obliged, whereupon Arroyo laughed and exclaimed "that's not my sister." Arroyo ¶ 8; Ruiz ¶ 9.*fn2 The police ignored this opinion and "told [Ruiz] that [she] would have to leave with them." Ruiz ¶ 10. Ruiz was allowed to stop at her table to get her coat, whereupon her husband asked what the problem was. The police told Acevedo that Ruiz "was under arrest and was being taken to the police station." Acevedo ¶ 6. Acevedo asked if he could go along and was told he could but warned "not to make trouble." Acevedo ¶ 6.

As they exited La Cascada, "the police suddenly stopped and demanded identification." Ruiz ¶ 11. Acevedo responded that they had left their personal effects in the car, and "asked if the police would allow [him] a minute before taking [Ruiz] away to enable [him] to go to the car to retrieve [their] identification. The police refused." Acevedo ¶ 7. Ruiz was then "placed into a police cruiser and taken to the police station under arrest." Ruiz ¶ 12. Ruiz alleges: "At no time did I ever volunteer to go anywhere with the police. I was transported to the police station under arrest. I know this because police told me so." Ruiz ¶ 14 (emphasis in original). Acevedo states: "There is no question in my mind that Haydee was not transported to the police station voluntarily. She was told, and I myself was told by police, that she was under arrest." Acevedo ¶ 8 (emphasis in original).

The police officers, on the other hand, remember the evening in a slightly different, and much more cordial, way. Police Sergeant William Earley was at the desk of the Port Chester Police Department in the early morning of February 28, 1988. Earley ¶ 1. At or about 12:15 a.m., a man entered the police headquarters and claimed that he knew the location of a fugitive. Earley ¶ 2. The man identified himself as Odel Jones,*fn3 a bail bondsman, and provided Earley with a copy of a surety bond and a photograph. Earley ¶ 2. The photo depicted a woman named Alba George, who had apparently jumped bail. Jones claimed a warrant was out for her arrest and that she was presently in town at the night club La Cascada.

Earley called the Connecticut Police Department and confirmed that there was an active warrant for George's arrest. Earley ¶ 3. Earley then directed Police Officers Herrera, Krzeminski and Monroe to go to the night club and had Jones meet them there to identify George. Earley ¶ 4.

It was about 1:20 a.m. Officers Herrera and Krzeminski proceeded to La Cascada. Herrera ¶ 2; Krzeminski ¶ 2. As the officers entered the bar with Jones by their side, Jones told them that the suspect was going to the ladies room. Herrera ¶ 4. Herrera requested the woman bartender to clear the bathroom so that the officers could talk with the suspect. Herrera ¶ 5. The bar was "very noisy and quite dim." So, when the woman came out of the bathroom, Herrera "asked if [they] could talk to her outside." Herrera ¶ 6. According to the police report filed by Herrera on February 28, 1988, "this officer asked the suspect to please step outside and that we wanted to speak to her." Police Report p. 1 attached to Mastronardi Affidavit. The woman got her coat and she and her husband "came out with [the officers]." Herrera ¶ 6.

When they arrived outside, Police Officer Monroe met them at the door. "It was a typical February night, slightly below freezing and dark. The street lights in the area do not give off much light. It had just stopped snowing and the sky was obscured." Herrera ¶ 8. The woman did not speak English well, so Herrera spoke to her in Spanish and asked her for identification. Herrera could not understand what she was saying, except that her first name was "Heidi," that she and her husband had driven from Connecticut, but that neither she nor her husband had any identification. Herrera ¶ 9. Monroe called Earley on the radio. Earley told the officers "to ask her to come to headquarters so the matter could be cleared up." Earley ¶ 6. Herrera "then told the woman that she was not under arrest but would she please come to headquarters." Herrera ¶ 11. The woman agreed and her husband asked to go along. She got in the front seat of Monroe's car and her husband got in the front seat of Herrera's car and they all drove to headquarters. Herrera ¶ 12.

Once at the police station, the woman gave Earley her name and address. Earley put it through a licence check in Connecticut, which verified her statement. Earley then compared Ruiz to the photograph provided by Jones and determined that she was not Alba George. Earley ¶ 7. Earley then directed Monroe to drive them back to the night club. Ruiz was only in the police station for ten minutes. Earley ¶ 7. The police report recites: "suspect was brought into HQ's at 0125 hrs. and by 0135 hrs., she was informed that she was released and free to leave." Police Report at p. 2.

On November 1, 1988, Ruiz filed this civil action against police officers Herrera, Earley, Krzeminski, and Monroe, in their individual and official capacities, and against bail bondsman Burden, his company, and Jones. Her complaint states two counts, one for false arrest pursuant to 42 U.S.C. § 1983 (Count One), and another for common law negligence (Count Two).


A. New York General Municipal Law § 50-e et seq.:

Defendant police officers contend that the negligence count in this civil action is barred. They argue that since they were on duty at the time of the alleged negligence, plaintiff was required by New York General Municipal Law § 50-e and j to file a notice of claim against the village of Port Chester. Plaintiff responds that the village of Port Chester is not named a defendant, and therefore that Section 50-e by its very terms is not applicable to this action.

Section 50-e(1) of the General Municipal Law provides in relevant part:

  (a) In any case founded upon tort where a notice
  of claim is required by law as a condition
  precedent to the commencement of an action or
  special proceeding against . . . any officer,
  appointee or employee [of a public corporation],
  the notice of claim shall comply with and be
  served in accordance with the provisions of this
  section within ninety days after the claim arises
  (b) . . . If an action or special proceeding is
  commenced against [an officer, appointee or
  employee of a public corporation], but not
  against the public corporation, service of the
  notice of claim upon the public corporation shall
  be required only if the corporation has a
  statutory obligation to indemnify such person
  under this chapter or any other provision of law.
  As to the indemnification of police officers for negligent
conduct in the performance of duties, Section 50-j(1) provides
in relevant part that:

   . . every city, county, town, village,
  authority or agency shall be liable for, and
  shall assume the liability to the extent that it
  shall save harmless, any duly appointed police
  officer of such municipality, authority or agency
  for any negligent act or tort, provided such
  police officer, at the time of the negligent act
  or tort complained of, was acting in the
  performance of his duties and within the scope of
  his employment.

The rule of law that emerges is that the filing of a notice of claim is a prerequisite to filing a civil action in tort against an on-duty police officer.

Plaintiff argues that the statute does not explicitly state that "no action exclusively against police officers can be prosecuted unless a notice of claim is served on the public corporation." It is true that this language is missing and that it is the traditional language by which the notice of claim requirement is ...

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