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DZINANKA v. COUNTY OF SUFFOLK

July 2, 1996

JAMES F. DZINANKA, Plaintiff, against THE COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT, HENRY A. WAGER, Individually and as Police Officer of the Suffolk County Police Department, and POLICE OFFICERS JOHN DOE(S), Individually and as unknown Police Officers of the Suffolk County Police Department, and VICTOR LESSARD, Defendants.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Plaintiff James F. Dzinanka ("plaintiff") brought the above-referenced action, pursuant to 42 U.S.C. § 1983, alleging that his rights under the Fourth and Fourteenth Amendments of the United States Constitution were violated during the course of an arrest and criminal prosecution. The Complaint names as defendants Suffolk County, the Suffolk County Police Department, Henry A. Wager ("Wager") and other unidentified police officers in their official and individual capacities (collectively, the "county defendants"), and Victor Lessard ("Lessard"). Presently before the Court are defendants' motions for summary judgment.

 I. BACKGROUND

 Certain background facts are not in dispute. In the Summer of 1992, plaintiff worked as a mover for the McDevitt Moving and Storage Company, Inc (the "company"). Lessard was the company's president.

 Lessard suspected that plaintiff was not returning to the company all the money that he collected from customers at the end of moving jobs. On September 9, 1992, Lessard reported to the Suffolk County Police Department that plaintiff had kept more than $ 3,000 of the company's money and also removed equipment worth approximately $ 1,100 from the company's tractor-trailer. Lessard supported his allegations with an affidavit, which he gave to Wager, the police officer. See County Notice of Motion ("Motion"), Exh. A.

 In October 1992 and January 1993, four customers from whom the company had never received payment gave sworn statements to Wager acknowledging that they had paid cash to plaintiff at the conclusion of their moves in November 1992. Kathy Staib Cox said she gave him $ 600 on August 16, 1992, Motion, Exh. D; Carol Vengroff and Matilda Freeman said they paid him $ 2,217.78 and $ 1,273.40, respectively, on August 7, 1992, Motion, Exhs. E & F; and John McKeon said he paid plaintiff $ 1,892.32 on August 10, 1992, Motion, Exh. G.

 On March 3, 1993, plaintiff was arrested for grand larceny. No warrant had been issued. The county defendants provide no factual detail with respect to the arrest -- there is no affidavit or deposition testimony from the arresting officers and neither counsel's affidavit nor the statement submitted pursuant to Local Rule 3(g) provide anything more than an acknowledgment that a warrantless arrest was made. The details come from plaintiff.

 In opposition to the motion, plaintiff explains that Wager had telephoned his home several times prior to March 3, 1993, threatening to arrest plaintiff if he did not pay Lessard the money he owed. Aff. of James F. Dzinanka, P 8. As to the arrest itself, plaintiff offers the following account: at about nine P.M. on March 3, 1993, plaintiff heard a car pulling up his driveway. Id. P 9. Plaintiff went outside and heard a voice in the darkness (apparently Wager's) say "James? We've come to take you away." Id. P9. Plaintiff ran back inside, and Wager threatened to break the door down if plaintiff did not come out. Id. Soon, a "uniformed officer arrived and spoke with the defendant, Wager, and then he began pounding the door with his nightstick." Id. A pane of glass was broken in the process. Id. Within the hour, thirteen or fourteen police cars had arrived. Id. One officer told plaintiff that they were in the process of obtaining a warrant for his arrest and that, if they got one, he would not "recognize [his] home when they were done." Id. In the face of "overwhelming police presence, and such threats and intimidation," plaintiff finally opened the door. Id. When he did, several officers entered and handcuffed him in his dining room. Id. Wager never entered plaintiff's home. Pl. Resp. to Am. Req. for Admis., P 5.

 On March 4, 1993, plaintiff was arraigned in county court on a felony complaint charging grand larceny. In June 1993, the felony complaint was superseded by a prosecutor's information charging petit larceny. After a bench trial, plaintiff was acquitted.

 In the instant action, plaintiff alleges, inter alia, the following claims: (1) that defendants under color of state law deprived him of the Fourth Amendment right to be free from unreasonable seizures of the person; (2) that defendants' conduct amounted to a false arrest as proscribed by the Fourth Amendment; and (3) that defendants maliciously prosecuted plaintiff in violation of the Fourth Amendment.

 II. DISCUSSION

 A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of ...


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