upstairs again he told plaintiff that he spoke to her sister-in-law and she told him that plaintiff's husband was not in her apartment. Officer Ozer then explained to plaintiff that he could not enter the basement apartment to search for her husband unless invited in by the tenant.
According to Officer Ozer's deposition, he met plaintiff on the front lawn. She showed him her Order of Protection which stated that she was to have "exclusive use and occupancy of the marital residence," and sought her husband's arrest. Her husband then came onto the front lawn and, responding to Officer Ozer's questions, he explained that he lived in the downstairs apartment and paid rent. Plaintiff agreed that he lived there and Officer Ozer determined that he could not make an arrest under those circumstances.
Under plaintiff's version of these events, this Court finds that Officer Ozer made a reasonable investigation regarding Thomas Eagleston's presence in the basement apartment, but was unable to proceed further because he was told by the tenant that Thomas Eagleston was not there and he had no warrant to search for him in the rented basement apartment.
Under Officer Ozer's version of these events, this Court finds that it was objectively reasonable for him to conclude that Thomas Eagleston was not in violation of plaintiff's Order of Protection because her husband had not harmed her, there was no evidence that he had threatened her, and he was apparently renting a room in the basement of the house. Moreover, it was objectively reasonable for Officer Ozer to conclude that the term "exclusive use and occupancy of the marital residence" in plaintiff's Order of Protection did not apply to a separate, income-producing basement apartment. Accordingly, this Court finds that under either version, Officer Ozer's failure to arrest Thomas Eagleston on December 7, 1986 was objectively reasonable and he is therefore entitled to qualified immunity.
2. Officer Pesale
According to plaintiff's complaint, on December 8, 1986, Thomas Eagleston threatened her and then attempted to run her over with his car, driving it up onto the front lawn of a neighbor's house. When Officer Pesale responded to her call, she advised him of her Order of Protection and sought her husband's arrest. However, Officer Pesale refused to look for her husband in the basement apartment.
Plaintiff's deposition testimony as to these events differs significantly. In that version, plaintiff states that she reported this incident at the precinct; that her son, Steven, informed the police that his father was living in the basement; and that she is not certain as to whether or not the police went to the basement apartment to try to find her husband.
Officer Pesale's version of these events is in sharp contrast to both of plaintiff's versions. Officer Pesale states that he responded to a radio call, spoke to plaintiff, attempted, unsuccessfully, to locate her husband in the basement apartment, and advised plaintiff to contact the Crime Control Unit if she wished to have her husband arrested.
Rule 56(c) of the Federal Rules of Civil Procedure provides "that summary judgment shall be rendered only when a review of the entire record demonstrates that there is no genuine issue as to any material fact." Moreover, "factual allegations backed by affidavits or other evidence made by the party opposing the motion are regarded as true and are viewed in the light most favorable to the non-movant." Cartier, 955 F.2d at 846 (citations omitted).
This Court finds that under plaintiff's versions of the events of December 8, 1986, as viewed in the light most favorable to her, it was not objectively reasonable for Officer Pesale to refuse to go to the basement apartment to investigate as to whether her husband was there. Accordingly, Officer Pesale is not entitled to qualified immunity at this time.
3. Officer Milward
According to plaintiff's complaint and deposition, on the evening of December 24, 1986, she called the Suffolk County Police because she had received numerous telephone threats from her husband and because a rock was thrown through the window in the front room of the marital home. When Officer Milward responded, she advised him that she had an Order of Protection and that she sought her husband's arrest. She also advised him that she had called the police earlier in the day due to other threatening phone calls from her husband and another rock which had been thrown through a window in the house. Furthermore, she stated that she was certain that her husband was in the basement apartment. Officer Milward asked her if she saw her husband throw the rock and she said that she did not. Officer Milward (like the officers who responded to plaintiff's earlier call that day) made a note of plaintiff's belief that her husband was in the basement, but refused to go downstairs to investigate.
In his deposition, Officer Milward states that he has no independent recollection of the events of December 24, 1986, and his testimony is based on the report that he made at that time. According to that report, Officer Milward spoke to plaintiff and ascertained that the broken window could be related to a marital dispute. He does not recall being advised of plaintiff's Order of Protection or of any other incidents regarding Thomas Eagleston. He states that he did not search the premises for plaintiff's husband because he came to investigate a report of criminal mischief and he lacked probable cause. He filed his report with the Crime Control Unit for follow-up.
This Court finds that under the above-described circumstances, it was not objectively reasonable for Officer Milward to have refused to go down to the basement apartment to further investigate plaintiff's allegations. Admittedly, it is unlikely that such an action would have led to Thomas Eagleston's arrest for violation of his wife's Order of Protection. However, read broadly, plaintiff's Complaint alleges not only that defendants failed to arrest her husband, but also that they failed to properly investigate her allegations against him. Accordingly, Officer Milward is not entitled to qualified immunity at this time.
For the aforementioned reasons the pendant state action is dismissed and plaintiff's action is dismissed as to Guido. Defendants' motion for dismissal/summary judgment pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure is granted as to defendants Rivera, Bugge, Kopf, Kern, Donnelly, Ozer, Moore and Rooney. The motion is denied at this time as to defendants Pesale and Milward.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
April 22, 1992