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INDOMENICO v. BREWSTER

April 7, 1994

GIOVANNI INDOMENICO, Plaintiff,
v.
J.A. BREWSTER, Officer, Individually and in his Official Capacity, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This lawsuit presents the problem of proper treatment of a New Yorker whose license is suspended for disregarding a speeding ticket, and who returns to driving in the state with out-of-state license and out-of-state plates leading to conflict with the police. Plaintiff, claiming false arrest and improper use of force during an incident on August 18, 1990 (the "incident"), brought this suit under 42 U.S.C. 1983; the defendant officer has moved for summary judgment dismissing the complaint. For the reasons set forth below, defendant's motion is granted with respect to plaintiff's damage claims, but not with respect to possible injunctive relief.

 II

 In 1979, plaintiff received a ticket on the Taconic State Parkway for speeding. According to his deposition ". . . the ticket I just forgot about. I don't remember at all that ticket, you know. Pay, not pay, I don't remember. I paid the tickets."

 According to law enforcement records, plaintiff did not respond to the 1979 ticket and his New York driver's license and privilege to drive in New York were suspended on February 7, 1980 under New York Vehicle & Traffic Law 510(4-a). Thereafter, plaintiff moved to Connecticut and secured a Connecticut license and registration, and a single Connecticut license plate.

 Where a driver's license or privileges are suspended, the Department of Motor Vehicles automatically sends a notice to the driver at the address given on the license application, stating that "this order suspending your driver's license or privileges" will become effective thirty days from the date of the notice unless steps to avoid this are taken. No such steps occurred in this case. While it might have be preferable on a prospective basis under plain language concepts now in effect under State Administrative Procedure Act 201 as added by L. 1992 ch 201, for the notice to be made even more clear by using such terms as "privileges to drive in New York, " the notice actually given should be sufficient to warn an ordinary person with sufficient knowledge of English to obtain a driver's license that driving in the State after receiving the notice is prohibited. *fn1"

 III

 Plaintiff was driving in Poughkeepsie on Sunday morning, August 18, 1990, when he was observed by defendant both visually and by radar to be going approximately 45 miles per hour in a 30 mile zone. *fn2"

 The defendant officer signalled plaintiff to pull over because of the speeding infraction. *fn3" At this stage, during the initial stop, no violence occurred; plaintiff turned over his Connecticut license to the defendant officer for inspection without being required to exit his vehicle.

 A police radio check revealed that plaintiff's privilege to drive in New York had been suspended and the suspension was never lifted. At this point, the defendant officer initiated an arrest of plaintiff under New York Vehicle & Traffic Law 511(1). Because at the time of the arrest plaintiff was not permitted to drive in New York, the police determined that plaintiff must be taken to the station in handcuffs and his car driven to an impoundment depot by police officers.

 The defendant officer was in civilian clothes driving a car with police markings, wearing a badge which was observed by plaintiff. Although plaintiff had turned over his Connecticut driver's license and other papers without incident, plaintiff demanded additional evidence that defendant was a police officer and resisted when told to get out of his car to be taken to the police station. A scuffle ensued during which defendant and other officers who had arrived subdued plaintiff. Plaintiff insisted repeatedly at his deposition that three officers pointed machine guns at him and talked about machine guns.

 Plaintiff asserts without medical corroboration that a prior elbow impairment was aggravated by the incident. He visited an emergency room on August 19, 1990, the day after the incident. A small abrasion on plaintiff's wrist was found; x-rays disclosed no indication of fractures. No stitches or other medical treatments were deemed ...


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