less entry into the Post was lawful. 907 F.2d at 1292-93. Specifically, the Second Circuit noted that
although the [individual federal defendants] concededly had no specific knowledge concerning the admission policy of the Post, their investigative experience with related social clubs indicated that official membership was not required for entry, nor was public access limited. Moreover, it is undisputed that Supervising Agent Maduro specifically instructed the members of [JOCTF #4] "that the [social clubs they] were to visit were . . . accessible to the public and therefore no search warrants were necessary." Clearly, the [individual federal defendants], with a total of approximately fifty-eight years of FBI experience, were not only entitled to rely on the implications of the information known to them in assessing the necessity of securing a warrant, but were also entitled to rely on the reasonable instructions of their superior in the chain of command, particularly where those instructions were not inconsistent with their personal knowledge and experience. There was after all no guard barring entry and the door was apparently unlocked. We therefore conclude that, based on the information possessed by the [individual federal defendants], it was objectively reasonable for them to believe that their warrantless entry into the Post was lawful.
Id. at 1293 (citations omitted; emphasis in original).
The individual City defendants now argue that it was just as objectively reasonable for them to have believed that their warrantless entry into the Post was lawful, because they too believed that the Post was open to the public and therefore could be entered without a warrant. In the instant action, it is undisputed (and admitted) that FBI and NYPD supervisors had previously determined that no search warrants would be required to permit entry into any of the targeted social clubs, because it was believed that such locations were open to the public; that many JOCTF #4 members had had prior investigative experience with social clubs, and in their experience, such social clubs in general are open to the public; and that none of the JOCTF #4 members had ever been told by the patrons of the social clubs that they needed a search warrant to enter the premises. In addition, JOCTF #4 included both FBI agents and NYPD members, including the individual City defendants, and plaintiffs do not contend that the information that the individual City defendants possessed was significantly different from the information possessed by the individual federal defendants in connection with their warrantless entry into the Post. The Court finds that, for reasons similar to those articulated by the Second Circuit with respect to the individual federal defendants, the individual City defendants are qualifiedly immune from suit on plaintiffs' § 1983 claim for alleged violations of their 4th Amendment rights; based upon the information possessed by the individual City defendants, it was objectively reasonable for them to believe that their warrantless entry into the Post was lawful.
The Court thus concludes that there are no genuine issues of material fact in dispute in connection with plaintiffs' § 1983 claim, and the individual City defendants are entitled to judgment on the § 1983 claim as a matter of law.
Plaintiffs do not dispute the merits of the individual City defendants' argument that they are qualifiedly immune to suit with respect to plaintiffs' § 1983 claim. Instead, plaintiffs contend that the summary judgment motion "should be denied on the basis of laches." Affirmation of William M. Kunstler, Esq., Counsel for Plaintiffs, dated October 22, 1991 ("Kunstler Aff."), P 2. Specifically, plaintiffs argue that
It would seem that, under any reasonable interpretation of the doctrine of laches, the City defendants should not be permitted to assert contentions which could have been raised at least five years ago. They now seek to dismiss the complaint on grounds that were readily available to them in late 1986 or early 1987, or, with reference to the Second Circuit opinion, more than a year ago. They chose to sit by, even after the federal defendants had filed their Notice of Appeal two years ago, and merely await the outcome of that appeal.
Kunstler Aff., P 9. Plaintiffs' reliance on the doctrine of laches is, however, misplaced. As the Second Circuit has explained:
Historically laches developed as an equitable defense based on the Latin maxim vigilantibus non dormientibus aequitas subvenit (equity aids the vigilant, not those who sleep on their rights). In contrast to a statute of limitations that provides a time bar within which suit must be instituted, laches asks whether the plaintiff in asserting her rights was guilty of unreasonable delay that prejudiced the defendants. The answers to these questions are to be drawn from the equitable circumstances peculiar to each case.
Stone v. Williams, 873 F.2d 620, 623-24 (2d Cir.) (citations omitted), reh'g granted; vacated on other grounds, 891 F.2d 401 (2d Cir. 1989), cert. denied, 496 U.S. 937, 110 S. Ct. 3215, 110 L. Ed. 2d 662 (1990). Plaintiffs have cited no legal authority, nor is the Court aware of any, for the proposition that a defendant in a pending civil action may be barred from moving for summary judgment because the defendant did not bring such a motion at an earlier point in the litigation. Indeed, such a proposition is nonsensical, because the very purpose Rule 56 is to avoid an unnecessary trial on the merits, if a defendant is entitled to summary judgment because there are no genuine issues of material fact in dispute and the defendant is entitled to judgment as a matter of law, it would be preposterous to deny the motion on the ground that it could have been brought earlier and to require that the defendant go through a trial on the merits for a claim on which the plaintiff cannot prevail. In any event, plaintiffs' contention conflicts with the explicit text of Rule 56(b), which provides that a party against whom a claim is asserted may "at any time" move for summary judgment as to all or any part of that claim, and the Court rejects plaintiffs' argument that the individual City defendants' summary judgment motion should be denied on the basis of laches. Accordingly, the individual City defendants' motion for summary judgment on the § 1983 claim is granted.
The individual City defendants have also moved for summary judgment on plaintiffs' pendent state law tort claims for assault, battery, and intentional infliction of emotional distress, on the ground that plaintiffs have failed to satisfy the notice of claim requirements of N.Y. Gen. Mun. Law § 50-e and § 50-i.
Plaintiffs do not dispute that they have failed to comply with the notice of claim requirements or that such failure requires dismissal of their pendent state law tort claims, and, as discussed above, the Court rejects plaintiffs' contention that the summary judgment motion should be denied on the basis of laches. Accordingly, the individual City defendants' motion for summary judgment on the pendent state law tort claims is granted.
For the reasons stated above, the individual City defendants' motion pursuant to Fed. R. Civ. P. 56 for summary judgment on the remaining claims against them is granted. Plaintiffs' complaint is hereby dismissed in its entirety.
New York, New York
August 31, 1992
Peter K. Leisure