The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
I. BACKGROUND: THE INCIDENT IN QUESTION
This lawsuit arises out of an incident at the Columbus Circle Subway Station on September 27, 1990. The following facts are not in conflict:
Plaintiffs are Les Mazurkiewicz, a waiter at the Russian Tea Room and the alleged victim of defendants' acts and his wife Anna Mazurkiewicz. Defendants are officers of the New York City Transit Police and the New York City Transit Authority ("NYCTA") a public benefit corporation responsible for, among other things, policing the New York City subway transit system through the Transit Police Department.
On September 27, 1990 in the late afternoon, after leaving his place of employment, plaintiff stepped over a turnstile while entering the subway system without paying his fare via token. This was done in plain view of both Officers Susan Werman and Barbara Van Cook, both defendants in this action. Plaintiff attempted, at some point shortly after going over the turnstile, to hand a token to Officer Susan Werman who refused to accept it. Officer Werman refused to accept the token and told plaintiff that he was under arrest for attempting to steal a subway ride ("theft of services"). Officer Werman rejected plaintiff's explanation that the turnstile was broken and that he never intended to steal a subway ride. She then proceeded to attempt to handcuff him, succeeding in cuffing one wrist. Police Officer Barbara Van Cook came to Officer Werman's assistance and tried to cuff plaintiff's other hand. Plaintiff contends that he showed a token in his hand and indicated to Officer Werman that he was going over the turnstile because it was inoperable.
The rest of the relevant facts are sharply disputed. Plaintiff alleges in his pleadings that defendants officers Van Cook, Di Donato, McFarland and Smith then proceeded to beat and batter plaintiff without provocation. However, in plaintiff's own deposition, plaintiff stated when asked about each officer's actions, individually, that certain of the defendants' contacts with him were de minimis.
Not surprisingly, defendants' version differs in substantial aspects. Defendants contend that Mr. Mazurkiewicz became abusive when told that he was under arrest and began cursing the officers loudly and attempted to stir up the large and noisy crowd that filled the station. Defendants contend that plaintiff viciously lashed out at arresting officer Werman, bruising her face badly, and that the other defendant officers were also bruised and injured in attempting to subdue plaintiff who refused to be handcuffed. Defendants have submitted voluminous medical records to bolster these claims.
Plaintiff was taken to a police station and criminally charged with nine misdemeanor counts of Assault, Resisting Arrest, Harassment, and Theft of Services. At trial in April of 1991 before Judge Barbara Newman and a jury, plaintiff was acquitted on all counts.
Thereafter plaintiff filed this lawsuit alleging seven counts. Count One, a false arrest and imprisonment charge is alleged under § 1983 and is against the New York City Transit Authority. Count Two is based on alleged Assault and Battery by the individual officers. Count Three is alleged to be False Arrest and False Imprisonment against the individual officers. Count Four is alleged Malicious Prosecution against the officers. Count Five is based in negligence and is a state law claim. Count Six alleges Excessive and Unnecessary Force by the officers. Count Seven is based on alleged lost services by plaintiff's wife.
Defendants have moved for summary judgment on almost all claims. This court has reviewed the documents submitted in support of and in opposition to defendants' motion and heard oral argument in open court on January 8 and 14 of 1993.
Summary judgment is appropriate when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 273, 106 S. Ct. 2548 (1986). Movant need not negate the opponents claim; what movant must do is show that nonmoving party's claims are "factually unsupported." Celotex Corp., 91 L. Ed. 2d at 275. There must be no genuine issue as to any material fact.
For the nonmoving party to prevail it is insufficient for him to merely allege material issues in dispute. Some evidence must be presented in opposition. A summary judgment "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 552, 106 S. Ct. 1348 (1986). It is insufficient to state in opposition to summary judgment, as plaintiff repeatedly does in his pleadings, that material facts will be adduced and proved at trial. If enough evidence is not presented, there will not be a trial; it is not enough merely to promise that at trial some evidence will turn up. (See, e.g. Plaintiffs' Memorandum in Opposition to Defendants' Motion for Summary Judgment, at 2-3, 11, 15, 17, 20).
According to the language of the Rule,
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.Pro. 56(e). The allegations in the pleadings, themselves, do not count as evidence that the actions alleged actually took place as contended therein.
II. COUNT ONE: THE LIABILITY OF DEFENDANT TRANSIT AUTHORITY
The first count of plaintiffs' complaint, grounded in 42 U.S.C. § 1983, alleges that the NYCTA "deprived the plaintiff LES MAZURKIEWICZ of rights secured to him by the Constitution of the United States, including, but not limited to, his Fourth amendment right to be free from unlawful seizure of his person and illegal detention, and his Fifth and Fourteenth amendment rights to due process of law, and said defendants are liable to the plaintiff, LES MAZURKIEWICZ, under the provisons of 28 U.S.C. Sections 1983 and 1988." (sic) (Complaint at P 37). It is assumed that plaintiff means Sections 1983 and 1988 of 42 U.S.C. Defendants' motion for summary judgment on this count is unopposed. This count is, therefore, dismissed.
III. COUNTS TWO THROUGH SEVEN: THE LIABILITY OF THE INDIVIDUAL TRANSIT POLICE OFFICERS AND THEIR DEFENSE OF QUALIFIED IMMUNITY
Counts Two through Seven of plaintiffs' complaint lie against the individual Transit Police Officer defendants: officers Susan Werman (Werman), Barbara Van Cook (Van Cook), Victor Di Donato (Di Donato), James McFarland (McFarland) and Arthur Smith (Smith). Thus, in order to escape summary judgment, plaintiffs must not only show that there are genuine material issues of fact in dispute as to the conduct of defendants but must also show that the officers ...