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BENNETT v. TOWN OF RIVERHEAD

July 11, 1996

CHRISTY BENNETT, Individually and as Guardian, Plaintiffs, - v - TOWN OF RIVERHEAD, et al., Defendants.


The opinion of the court was delivered by: POHORELSKY

 POHORELSKY, Magistrate Judge:

 This civil rights case arises from a domestic relations dispute in which the Riverhead, New York, Police Department was called upon to intervene. The plaintiffs' Complaint asserts numerous civil rights and common law tort claims against the Town of Riverhead, Sergeant Robert Peeker, individually, and Chief Lawrence Grattan and Lieutenant Joseph Grattan of the Riverhead Police Department in their official capacities. *fn1" The plaintiffs' civil rights claims under section 1983 of Title 42, United States Code, are for alleged unreasonable seizures in violation of the Fourth Amendment and deprivations of due process in violation of the Fourteenth Amendment. Their common law tort claims include various claims of negligence, false imprisonment, intentional infliction of emotional distress, abduction, duress and trespassing.

 The defendants have moved for summary judgment on the plaintiffs' section 1983 claims, and have moved to dismiss the common law tort claims. *fn2" For the reasons set forth below the motion for summary judgment is DENIED in its entirety, the motion to dismiss is GRANTED in favor of all defendants on the plaintiffs' common law claims for interference with legal remedy and in favor of all defendants except Peeker on the common law duress claims, and DENIED with respect to all other claims.

 FACTS

 Certain of the facts here are undisputed. The plaintiffs are Christy K. Bennett ("Christy") and her daughter Charlotte Bennett ("Charlotte"). In February 1992, the Supreme Court of the State of New York, County of Suffolk, dissolved the marriage of Christy and William Bennett ("William") by a judgment of absolute divorce. The divorce judgment entitled Christy to sole custody of the couple's minor daughter, Charlotte. The judgment also granted William liberal visitation including three weeks per year away from the custodial residence in Suffolk County. William had the right to exercise visitation away from the residence upon thirty-days' written notice to Christy. William did not exercise any of his visitation rights until the incident on August 1, 1992 which gives rise to this litigation.

 In April 1992, Christy decided to seek the family court's permission to move with Charlotte from New York to Arizona. To that end, on May 7, 1992, Christy petitioned the family Court in Riverhead, New York for modification of William's visitation rights. On May 31, 1992, William was personally served with an order to show cause why the modification should not be granted. Before any proceedings were held on the order to show cause, however, in compliance with the original divorce decree, William gave Christy written notice, on June 23, 1992, of his intention to exercise his three weeks of visitation commencing August 1, 1992.

 On July 27, 1992, the family court held a hearing on Christy's order to show cause regarding modification of the visitation decree. William did not attend. Upon default the family court modified the original order to allow Christy to move to Arizona with Charlotte. Two days later, on July 29, 1992, William called Christy and asked if he could pick up Charlotte on Saturday, August 1, 1992, for the three-week visitation about which he had earlier given proper notice. Christy told William that she would not allow the visitation because of the new court order that had just been entered.

 Nevertheless, on Saturday, August 1, 1992, William sought to exercise visitation, and went to the headquarters of the Riverhead Police Department for assistance in securing custody of his daughter. Because the police viewed the situation as a potentially hostile domestic relations dispute, defendant Sergeant Robert Peeker ("Peeker") accompanied William to the Riverhead residence of Christy and Charlotte. William and Peeker arrived at approximately 7:00 p.m. Upon their arrival, Christy informed Peeker that William was trespassing, so Peeker directed William to return to the sidewalk, and William complied. Christy then invited Peeker into her home to explain her refusal of visitation and to show Peeker the modified order. Peeker accepted the suggestion and entered Christy's home.

 Peeker told Christy to help Charlotte get ready to leave, but Christy refused. Peeker then ordered eight-year-old Charlotte to pack her things and prepare to leave. While Charlotte packed, Christy told Peeker that his threat of arrest was unlawful and that the proper course of action was for William to go to court on Monday to seek a contempt order. She also told Peeker that her act of releasing her child to Peeker and William was not voluntary. In response Peeker said that he would be violating William's civil rights if he did not enforce his understanding of the divorce decree. Peeker removed Charlotte from the home and released her to her father. William did not return Charlotte to Christy for four weeks.

 Christy contends that because of Sergeant Peeker's threat of arrest, she was coerced into giving up custody of her child against her wishes. Further, Christy contends that Peeker's actions caused her to miss two days of work, frustrated her plans to have Charlotte start school in Arizona in two weeks, and created financial hardship that prevented the move until April of the following year.

 The defendants' version of the events, as set forth in an affidavit made by their counsel supported in part by excerpts from Christy's deposition, is in sharp conflict with Christy's affidavit regarding Peeker's actions in her home. They contend that Peeker did not threaten Christy with arrest, but rather merely examined the two court orders and warned her about the possible consequences if she did not release Charlotte to William's custody. According to the defendants, Christy's subsequent release of Charlotte was made with consent, and Charlotte herself had no objection to leaving with her father. Thus, there were no constitutional violations for which the plaintiffs are entitled to recovery.

 DISCUSSION

 I. Summary Judgment Standards

 A motion for summary judgment will be granted when no material issue of fact remains to be decided and the undisputed facts warrant judgment for the moving party as a matter of law. Tomka v. The Seiler Corp, 66 F.3d 1295, 1299 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). If a reasonable jury could return a verdict for the non-movant, then a material issue of fact remains in contention and the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 The burden of proving that no material issue of fact remains in dispute rests on the movant. Celotex, 477 U.S. at 322. Once a motion has been made, however, the non-moving party must set forth specific factual allegations to avoid summary judgment. Kurisoo v. Providence and Worcester Railroad Company, 68 F.3d 591, 594 (2d Cir.1995); Fahle v. Braslow, 913 F. Supp. 145, 149 (E.D.N.Y. 1996) (citations omitted). Conclusory, ipse dixit assertions will not defeat a Summary judgment motion. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

 The parties may not rely on the pleadings but must support their respective positions with affidavits, exhibits, discovery responses, or deposition testimony. Celotex, 477 U.S. at 324; United States v. Rem, 38 F.3d 634, 635 (2d Cir. 1994). The non-movant need not, however, submit evidence in a form that would be admissible at trial to avoid summary judgment. Fahle, 913 F. Supp. at 149. Any ambiguities and all inferences must be drawn in favor of the non-movant. Institute for Shipboard Education v. Cigna Worldwide Insurance Co., 22 F.3d 414, 418 (2d Cir. 1994); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Finally, this court is charged not with "issue ...


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