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HOLZAPFEL v. TOWN OF NEWBURGH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


August 1, 1996

JOSEPH H. HOLZAPFEL, and Others Similarly Situated, Plaintiffs, against TOWN OF NEWBURGH, New York, and CHARLES M. KEHOE, Chief of Police, Town of Newburgh Police Department, Defendants.

The opinion of the court was delivered by: CONNER

OPINION AND ORDER

 CONNER, Senior D.J.:

 On December 11, 1995, plaintiff Joseph Holzapfel filed this action against defendants Town of Newburgh (the "Town") and Charles M. Kehoe, the Chief of Police for the Town of Newburgh Police Department. Plaintiff has alleged that defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. ยง 201 et seq., by failing to compensate him adequately for "off the clock" activities that he performed as a police dog handler and assistant trainer. Plaintiff has also asserted a quantum meruit claim under New York state law. Plaintiff has moved for summary judgment, pursuant to Fed. R. Civ. P. 56(c), on certain issues relating to his FLSA claim. For the reasons set forth below, plaintiff's motion is denied.

  BACKGROUND

 The following facts are undisputed, unless otherwise noted. Plaintiff became a police officer in the Town of Newburgh Police Department in September 1990. In September 1991, plaintiff was selected to be a police dog (K-9) handler and was assigned a German Shepherd named Bandit. Due to an injury that he sustained while trying to apprehend a suspect, plaintiff has been on injury leave and unable to do patrol work since May 9, 1995. On or about January 1, 1996, the Town retired Bandit and sold him to plaintiff for one dollar.

 Following plaintiff's selection as a K-9 handler, the Town sent plaintiff and Bandit to a fourteen-week training program at the Orange County Sheriff's K-9 training facility. Plaintiff was taught the basics of police K-9 work, including caring for his police dog, obedience training, agility training, tracking, criminal apprehension, searches for articles and building searches. Subsequently, in July 1994, Bandit was certified as being trained in narcotics detection. Plaintiff and defendants agree that some ongoing training is necessary to maintain a police dog's skills. Under the Town's Standard Operating Procedures for police K-9 units, police dog handlers "are encouraged to work their dogs during their tour of duty, when time permits, in areas that they are weak in, or on special training needs as designated by the trainer or Sgt. in charge." Appendix D, at 4, attached to Plaintiff's Memorandum of Law. K-9 officers and police dogs also receive two days of training per month at the Orange County Sheriff's K-9 training facility.

 Under the Town's Standard Operating Procedures, each K-9 officer keeps his police dog at his home. The Town pays for the dog's food, for any necessary equipment and for veterinary care. The officer is responsible for feeding the dog once a day, ensuring that the dog has fresh water, brushing the dog once a day, giving the dog its heartworm medicine, keeping its nails clipped, providing the dog with shelter, ensuring that the dog receives appropriate veterinary care and taking every reasonable precaution to maintain a high standard of health for the dog. The officer is also responsible for maintaining the cleanliness of the patrol vehicle to which the officer and dog are assigned. Plaintiff has asserted that until May 9, 1995, his regularly scheduled shifts as a Town police officer totalled forty hours per week. During that time, plaintiff was paid for sixteen hours per month of training at the Orange County Sheriff's K-9 training facility. Plaintiff has asserted that prior to May 9, 1995, he spent the following amounts of off-duty time caring for and training Bandit: Activity Time Per Day Time Per Week Grooming and Bonding 60 min. 7 hrs. (daily) Bathing, flea dipping, 1 hr. nail trimming Exercising and walking 60 min. 5 hrs. (workday) Exercising and walking 90-120 min. 3-4 hrs. (non-workday) Cleaning kennel--home 45 min. 5 hrs. 15 min. (daily) Cleaning kennel--work 15 min. 1 hr. 15 min. (workday) Cleaning patrol vehicle 20 min. 1 hr. 40 min. (workday) Cleaning personal 15 min. 1 hr. 45 min. vehicle (daily) Feeding (daily) 25 min. 2 hrs. 55 min. Training (daily) 90 min. 10 hrs. 30 min. obedience, fetch Training (weekly) *fn1" 45 min. 5 hrs. 15 min. (average) TOTAL: (workday) 6 hrs. 15 min. 44 hrs. 35 min. (non-workday) 6 hrs. 10-40 min. to 45 hrs. 35 min.

19960801

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