The opinion of the court was delivered by: JOANNA SEYBERT
In this action, plaintiffs have alleged that defendant New York City police officers and New York City Housing Authority officers are liable under 42 U.S.C. § 1983 for, inter alia, false arrest, illegal searches, an improper show-up and excessive force
in connection with their response to a shooting on February 17, 1991 of a woman in the vicinity of Third Avenue and 58th Street in Brooklyn, New York. Plaintiffs also allege that the City of New York (the "City"), the New York City Police Department (the "NYPD") and the New York City Housing Authority (the "NYCHA") are municipally liable for not developing, implementing or enforcing police procedures intended to minimize the search and arrest of innocent persons, failing to conduct a good faith investigation of the incident and similar police operations and failing to discipline employees accordingly. Plaintiffs also assert numerous state causes of action. Discovery appears to be nearly completed in this action. Presently before the Court are two outstanding motions: (1) plaintiffs' motion for leave to file a second amended complaint which deletes the causes of action under 42 U.S.C. §§ 1981, 1985 and 1986 and adds the names of additional individual defendants who were previously known as "John Does" and (2) defendants' motion to dismiss the proposed second amended complaint and for summary judgment.
A. Undisputed Facts and Plaintiffs' Version of Disputed Facts
On the afternoon of February 17, 1991, at approximately 1:24 p.m., the NYPD received a telephone call that a woman had been shot in the side or the chest on Third Avenue and 59th Street in Brooklyn, New York. Within five minutes of the incident, the police received information that the car driven by the assailants was a grey Jaguar. Within the next 45 minutes, the police were alerted that the Jaguar was a newer-model, light-gray, four-door sedan, that the assailants were two white male youths, that the Jaguar's license plate number was "XBW-656" and that the car was possibly headed in the direction of the Verrazano Bridge.
Defendant Sergeant Paddock of the NYCHA testified that he was driving with his partner, NYCHA Officer John Strype, in a marked patrol car on Hylan Boulevard in Staten Island in the direction of the Verrazano Bridge when he heard the radio transmissions regarding the shooting. At the same time, Frank Signorile ("Signorile"), a 55-year old white male, was driving in a white 1989 Jaguar from Brooklyn over the Verrazano Bridge to his home at 395 Naughton Avenue on Staten Island. Signorile's car was clean on the date in question, and the roads were dry.
Shortly thereafter, Paddock spotted Signorile's car travelling in the opposite direction on Hylan Boulevard. The vehicle was proceeding at a normal rate of speed. Paddock was unable to see who was in the vehicle because the windows were tinted.
Paddock lost sight of the Jaguar when it made a left turn onto a side street. Strype, who was driving, proceeded to make a U-turn on Hylan and turn down Naughton Avenue, the street onto which the Jaguar had just turned. Signorile saw the police drive by his house and observe him getting out of the car.
While following Signorile's Jaguar, Paddock had noted that the first four digits of its license plate number, XBW-628, were identical to the license plate number of the assailant's car. Upon seeing the car parked in the driveway, Paddock ran a check which confirmed that the home to which the license plate was registered was 395 Naughton Avenue.
Approximately twenty to thirty minutes after entering his home, Signorile was informed by a neighbor that the police had surrounded their house. When he looked outside, he noticed "an officer in SWAT-type gear (a helmet and vest) behind the railing of the steps leading to my mother-in-law's door. He was pointing a shotgun at the door. Another officer was behind him with a gun drawn. The officer was yelling at someone to get out." (Signorile Aff. at P 5.) Signorile's wife "opened the window and we asked what was going on. Officer Billings told us to remain inside." (Id. at P 6.) At that point, Signorile, who lived in the upstairs apartment, "started to go outside. Before I could get downstairs, the officer with the shotgun who had been at my mother-in-law's door rushed in with another officer. Pointing his shotgun at us from the foot of the steps, he ordered us out with our hands up." (Id. at P 6.)
Signorile, Greg Signorile, Signorile's then 15-year old son, and John Giordano, Greg Signorile's then 14-year old friend who had stayed overnight at the Signorile's home, allege that they were taken outdoors and frisked against the side of the house. NYPD Officer Parrilla of the 68th precinct in Brooklyn frisked Signorile. Greg Signorile was not wearing a shirt and Giordano was wearing only a T-shirt sweatpants and socks. Greg Signorile and Giordano were kept in a frisk position for approximately 10 to 15 minutes in thirty-degree weather. Paddock and Parrilla proceeded to question Signorile about the shooting in Brooklyn involving a Jaguar similar to his own.
During this time, Martha Signorile, Signorile's wife, was permitted to remain in the house, as she was recuperating from surgery. Another officer came in and stayed with her inside the house. Mrs. Signorile asserts that the officer with the shotgun, later identified as Billings, and another officer went upstairs and searched through parts of the house. Signorile testified that in "my son's room, his books were all thrown on the floor, drawers were open, clothes were all over the place." (Signorile Dep. at 74.) Mrs. Signorile stated that "they went into my son Greg's room and searched it extensively, including dumping out the contents of his schoolbag." She also testified that "the big guy opened my two closet doors that are in my foyer." (Martha Signorile Dep. at 14.)
NYPD Captain Clarke of the 122nd Precinct on Staten Island instructed that the Jaguar be searched without Signorile's permission. Parrilla entered Signorile's apartment to obtain keys to search Signorile's Jaguar. A number of police officers, including Parrilla, proceeded to search Signorile's car. When Parrilla could not find anything in the car, he began roughly treating the car, slamming car doors and the trunk and breaking a heating panel. Afterwards, either Paddock or Parrilla took Signorile aside and told him that he, his son and Giordano would have to travel to Lutheran Medical Center to be viewed by the woman who had been shot. Paddock or Parrilla informed Signorile that if he and the others did not comply, they would be arrested.
Parrilla also decided that Signorile would not be permitted to drive his own car to the hospital and would have to travel there in a Patrol car.
Signorile, Greg Signorile and Giordano were subsequently taken in Paddock and Strype's patrol car to the hospital where the victim was being treated, and a show-up was conducted. The victim failed to identify any of the three as the assailants. The keys to Signorile's car were returned to Signorile along with his automobile which Parrilla had driven to the hospital.
B. NYCHA Sergeant Paddock's Deposition Testimony
Paddock testified that while he was following Signorile's Jaguar, the car was weaving in and out of traffic at a high speed. The Jaguar initially appeared to Paddock to be light gray in color. Paddock admits, however, that after Signorile and the others had been taken from the apartment, he had an opportunity to observe the car more closely and found that it was in fact off-white in color and dirty from salt and grime.
Contrary to Signorile's assertion, Paddock first saw Signorile "when Emergency Service brought him out of the house" (Paddock Dep. at 50) and not as Signorile was getting out of the Jaguar. When asked to describe Signorile's age at a deposition, Paddock testified that "he could be in his late thirties." (Paddock Dep. at 54.)
Paddock did not instruct the Emergency Service officers to enter Signorile's apartment. Paddock denies ever entering the house himself, a fact disputed by Signorile and Sergeant Whalen, a NYPD sergeant in the 72nd precinct in Brooklyn, who testified that he saw Paddock enter Signorile's apartment after the "suspects" were outside.
Paddock also did not direct anyone to search the car nor saw anyone search it. Paddock asked Signorile to participate in a show-up after receiving an indication from Whalen that a detective with whom Whalen had conferred by telephone had requested that Signorile submit to a show-up. Paddock did not threaten Signorile with arrest if he, his son and Giordano did not agree to the show-up. To the contrary, Signorile voluntarily agreed to the show-up. Paddock told Signorile that he could drive his own car to the hospital but it later "became determined that he would ride with us . . ." in the police car. (Paddock Dep. at 71.)
Paddock thought that "at the point where people are being brought out of the house and the house is being made to be secure so no one will be hurt, Emergency Service is in charge of the scene." (Paddock Dep. at 57.) Moreover, he stated that "at the point where the people are outside, I took over, along with Sergeant Whalen, to try to ascertain if these people were indeed involved in the shooting." (Paddock Dep. at 57.)
Paddock recollects that, despite at least five efforts, he never received any further information about the description of the two suspects involved in the shooting. When asked what response he obtained with each attempt, Paddock responded "sometimes I would get none. Sometimes my attention would be drawn away from listening to the radio to see what was going on, so I couldn't listen to it and I wouldn't hear the response anyway." (Paddock Dep. at 63.)
C. NYCHA Officer Strype's Deposition Testimony
Strype testified in a deposition that he and Paddock responded to 395 Naughton Avenue because they had seen a car fitting the description of the car involved in the shooting. Other than driving the patrol car that initially followed Signorile and transporting Signorile, Greg Signorile and Giordano for the show-up, the record contains no other evidence linking Strype to the events at issue.
D. NYPD Officers Billings's and Ottino's Deposition Testimony
Billings, a NYPD Emergency Service officer, testified that when he responded to Sergeant Paddock's call for assistance, Sergeant Paddock informed him that "several perps were wanted for a past shooting from Brooklyn and that the occupants of the vehicle he had followed was [sic] at the location around the corner." (Billings Dep. at 24.) Paddock himself claims to have informed one of the Emergency Service officers as to everything that transpired: "I told him we had an unknown amount of occupants in the jaguar, that we followed the car, it fit the description of the shooting, the plate number was two digits off, that it appeared to be driving at a high rate of speed, possibly to allude us. And it pulled down the block and we lost sight of it, made a U-turn, came up and the occupants were possibly-probably in the house." (Paddock Dep. at 38.) The deposition testimony of Ottino, Billings partner and also an Emergency Service officer, confirms this rendition.
After talking with Paddock, Billings dressed in body armor and took his shotgun with him as he approached the house. Not certain as to which of the two apartments in the house the suspect(s) had entered, Billings first knocked on the apartment door of Signorile's mother-in-law, Theresa DeSantis. The haze and reflection on the door glass made it initially difficult for him to see who had come to the door. When he saw that the person on the other side was a 70- to 75-year old woman, "I took my weapon away and pointed it in a safe direction." (Billings Dep. at 46.)
When Billings subsequently approached the entrance to Signorile's apartment door, "a male exited the house at the location that I was at, at the time, and walked down a set of stairs towards us. When that happened, I entered the house by opening the door and stood at the bottom of the stairway." (Billings Dep. at 62.) Billings described the man as being white and between 40 and 50 years of age.
Billings acknowledges that no one instructed him to enter Signorile's apartment but that he opened the screen door to the apartment and walked in to "secure the door." (Billings Dep. at 69.) Billings further admits that he pointed his weapon towards the top of the inside staircase where Signorile's wife and son and Giordano were standing. He ordered everyone to keep their hands in plain view and asked the teenage boys to come down the stairs.
Billings, who was then joined by Ottino, proceeded up the stairs to the kitchen. At this point, Billings' shotgun was no longer pointed at Mrs. Signorile who had since entered the kitchen herself.
In the Report, Ottino denies having any confrontation with Signorile's mother-in-law. He admits entering Signorile's apartment in order to help secure it after other officers had already entered it. He claims not to have searched either the house or the car.
E. NYPD Officers Parrilla's and Tallarine's Deposition Testimony
Although plaintiffs insist to the contrary, Parrilla denies searching the automobile, frisking Signorile or threatening Signorile with arrest. NYPD Officer Tallarine, who was Parrilla's partner, testified that he did not leave the street corner throughout the incident. He admits only to following the patrol car that transported Signorile and the teenagers to the show-up.
F. NYPD Sergeant Whalen's and Officer Gosling's Testimony
Together with Paddock, Whalen was one of the senior officers involved in the incident. Whalen arrived at the scene just after the Emergency Service unit arrived and prior to any officer entering Signorile's home. Upon his arrival, Whalen was informed by Paddock that "the car in the shooting is parked in the driveway over there, and the guys just went into the house." (Whalen Dep. at 46.) Whalen glanced at the car, and it appeared to him to be light gray in color. Whalen allegedly then asked Paddock what "his plan of attack was to get these people, but he just walked past me." (Whalen Dep. at 46.) Whalen also indicated that he did not ask for a description of the men whom Paddock told him went into the house.
Whalen admits that he entered the Signoriles' home without permission. He testified, however, that once he was inside, he saw Mrs. Signorile who gave him permission to use the telephone.
Whalen spoke to Detective Di Franco by telephone regarding whether a show-up should be conducted. Whalen claims that Di Franco responded simply, "You're going to have to bring them back to [the hospital]." (Whalen Dep. at 113.) Whalen also testified that Di Franco "didn't suggest anybody in particular. Whoever that we decided was possibly in the car." (Whalen Dep. at 82.) Whalen further stated that Di Franco "doesn't direct me. I just asked him for a suggestion." (Whalen Dep. at 104.)
Upon questioning as to who was in charge during the investigation, Whalen testified that "Officer Paddock had commenced the initial investigation at that location." (Whalen Dep. at 51.) He later testified, however, that "technically, I am in charge of a scene like this until an Emergency Service supervisor responds to the ...