The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
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
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
(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
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 ...