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MERRIMAN v. TOWN OF COLONIE

July 3, 1996

PAUL MERRIMAN and KRISTIN RYBICKI, Plaintiffs, -v.- THE TOWN OF COLONIE, NEW YORK; YE OLE LOCKSMITH SHOPPE, INC.; MICHAEL DIAZ; JAMES DIAZ; TRENT WILSON; JOHN P. GREBERT, Individually and in his official capacity as Chief of Police for the Town of Colonie, New York; THOMAS LEMIEUR, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; FRANCIS M. FORENZO, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; STEVEN H. HEIDER, Individually and in his official capacity as a Lieutenant in the Police Department of the Town of Colonie, New York; MICHAEL S. RUEDE, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; PATRICK M. GERMAINE, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; ROBERT H. WINN, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; JOHN M. TULLY, Individually and in his official capacity as a Sergeant in the Police Department of the Town of Colonie, New York; THOMAS J. BRESLIN, Jr., Individually and in his official capacity as a Lieutenant in the Police Department of the Town of Colonie, New York; JOHN VAN ALSTYNE, Individually and in his official capacity as a Sergeant in the Police Department of the Town of Colonie, New York; ANDREW NIPCON, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; DANIEL LIMMER, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; DENNIS C. MINK, Individually and in his official capacity as a Police Officer for the Town of Colonie, New York; "JOHN DOE" and "JANE ROE", whose names are fictitious but are meant to indicate one or more presently unknown agents, servants or employees of the Town of Colonie New York Police Department, individually and in their official capacities as Police Officers or agents, servants or employees of the Town of Colonie, New York; and the TOWN OF COLONIE POLICE DEPARTMENT, Defendants.


The opinion of the court was delivered by: HOMER

 Plaintiffs brought this civil action against the above named defendants pursuant to 28 U.S.C. § 1983. Plaintiffs allege in their twelve-count complaint that the defendants violated their rights under the Fourth and Fourteenth Amendments and, in pendent state law claims, committed various torts in a series of events related to the dissolution of a partnership in an autobody repair shop. Plaintiffs seek a declaratory judgment as well as compensatory and punitive damages.

 Presently pending are motions and cross-motions for summary judgment by all parties *fn2" pursuant to Fed. R. Civ. P. 56. (Docket Nos. 25, 30, 34, 38, 42 and 46). For the reasons stated below, the motions of the defendants are granted and that of the plaintiffs is denied.

 I. STATEMENT OF FACTS

 In October 1994, plaintiff Rybicki and defendant Michael Diaz formed a partnership pursuant to an oral agreement to operate an autobody repair business under the name Tri-City Collision. The business was located on premises leased by Rybicki at 76 Exchange Street, Albany, New York [hereinafter the shop]. The business contracted with plaintiff Merriman to provide his services as an autobody repairman. Merriman was permitted to store his tools and other property at the shop. Rybicki, Michael Diaz and Merriman shared equal access to the shop.

 On the evening of April 18, 1995, Rybicki unilaterally dissolved the partnership, personally notifying defendant Michael Diaz both of the dissolution and that he was no longer permitted in the shop. Rybicki then advised defendants Germaine and Tully of the Colonie Police Department *fn3" that the partnership had been dissolved and that Michael Diaz was no longer permitted in the shop. Rybicki then changed the locks to the shop.

 In the next five days several confrontations occurred between Rybicki, Merriman and Michael Diaz both by telephone and at the shop. On one occasion Michael Diaz was accompanied by James Diaz and Trent Wilson. These confrontations led Rybicki and Merriman to attempt to file criminal charges with the Colonie Police Department. The police declined to file charges, however, advising that this was a civil dispute. *fn4" Plaintiff contacted other law enforcement authorities but received the same response.

 On April 22, plaintiffs found at the shop a business card from defendant Ye Olde Locksmith Shoppe, Inc. [hereinafter Locksmith] indicating that Michael Diaz had called the Locksmith to gain entry to the shop. However, the Locksmith had not opened the new lock at that time because Michael Diaz could not produce evidence of his right to enter. Plaintiffs advised the Locksmith that Michael Diaz was not permitted in the shop.

 On April 24, the Locksmith opened the lock at the shop for Michael Diaz after defendant Lemieur, a Colonie police officer, appeared at the shop and verified Diaz's identification and papers. Michael Diaz then seized all the property from the shop, including Merriman's tools, vehicles under repair and partnership property. Plaintiffs called and visited the Colonie Police Department to advise that the shop was being burglarized. They were told that no criminal charges would be brought against any of the defendants.

 This action was commenced on September 20, 1995.

 II. SUMMARY JUDGMENT STANDARD

 Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of the nonmovant. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).

 III. DISCUSSION

 A. Motion of Colonie Defendants

 1. Plaintiffs' Section 1983 Claims

 The Colonie defendants contend that since the autobody repair business partnership remained in existence on April 24, 1995, Michael Diaz retained equal access to partnership property and the shop. There was, therefore, no basis for the police to deny Michael Diaz access to the shop or its contents.

 Under N.Y. Partnership Law § 61 (McKinney 1988), "on dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed." Until the final settlement of all partnership affairs, the partnership remains in existence. See Shandell v. Katz, 95 A.D.2d 742, 743, 464 N.Y.S.2d 177, 179 (1st Dep't 1983); In re Luckenbach's Estate, 45 Misc. 2d 897, 898, 258 N.Y.S.2d 44, 46-7 (Surr. Ct. 1965) (partners of a dissolved partnership carry on the business as liquidating partners); Hamilton Co. v. Hamilton Tile Corp., 23 Misc. 2d 589, 590, 197 N.Y.S.2d 384, 386 (Sup. Ct. 1960) (letter stating that partnership was dissolved did not terminate the partnership relationship).

 Here, although plaintiff Rybicki dissolved the partnership on April 18, 1995, the partnership remained in existence pending an accounting. Toeg v. Margolies, 280 A.D. 319, 321, 113 N.Y.S.2d 373, 375 (1st Dep't 1952). Accordingly, absent a court order to the contrary, Rybicki and Michael Diaz retained equal authority, rights and access as tenants in partnership to the shop and its contents as of April 24, 1995.

 Plaintiffs contend, however, that even if the partnership remained in existence after April 18, 1995, Rybicki was entitled to bar Michael Diaz from the shop because she held the lease to the premises in her own name. However, as long as the partnership remained in existence at the shop, Michael Diaz was legally entitled to equal access with Rybicki. See Charles v. Odum, 664 F. Supp. 747, 751 & n.4 (S.D.N.Y. 1987) (subtenant ...


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