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BRAWER v. CARTER

August 29, 1996

RON BRAWER, Plaintiff, against CORNELIUS CARTER III, et al., Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Ron Brawer ("Brawer") brings this civil rights action pursuant to 42 U.S.C. ┬ž 1983 and state law. Defendants Detectives Cornelius Carter, George DelGrosso, Paul Warren, Sergeants William Hassett and Glenn Vukov, and Police Officers Lana Bailey, Jose DeJesus, Diane Greco, Janet O'Keefe, *fn1" Nicholas Reina, Iris Rivera, and the City of New York move for summary judgment pursuant to Fed. R. Civ. P. 56(b) dismissing the Amended Complaint as to them. For the reasons set forth below, the motion is granted in part and denied in part.

 BACKGROUND

 A. Nature of the Case

 Brawer asserts various federal civil rights and state law claims arising from a bitter custody dispute with his ex-wife, Tonya Pinkins ("Pinkins"). *fn2" He alleges that Pinkins "became friendly" with the police and, in effect, persuaded the defendant detectives and police officers to interfere in the custody dispute by, among other things, arresting him twice.

 B. The Facts

 Brawer and Pinkins were married on February 10, 1987 and had two children. The couple separated in November 1992, and Pinkins moved out of their New York City loft and into a house in New Jersey. In November 1992, Brawer commenced a proceeding against Pinkins in the Supreme Court of the State of New York, New York County, to obtain custody of the children.

 On April 7, 1993, the parties entered into a stipulation on the use of the loft and custody of the children for the period of April 7, 1993 to June 30, 1993, which was so ordered by Justice Eliot Wilk of the Supreme Court of the State of New York (the "April 7th Order"). (See Def. Exh. G). Among other things, the April 7th Order provided that Brawer was to have exclusive use and occupancy of the loft, and custody of the children, from Wednesday at 7:30 p.m. through Saturday at 10:00 p.m. From Saturday at 10:00 p.m. through Wednesday at 7:30 p.m. Pinkins was to have similar privileges. (See Def. Exh. G).

 Disputes arose between Brawer and Pinkins over their use of the loft. On May 10, 1993, Brawer brought contempt proceedings against Pinkins for her alleged violations of the April 7th Order. (See Def. Exh. I). In turn, on June 3, 1993, Pinkins filed, and Judge Friedman signed, an order to show cause based upon Brawer's alleged violations of the April 7th Order. (See Def. Exh. J). The order to show cause contained an order of protection (the "June 3rd Order of Protection"), which prohibited Brawer from having any contact with Pinkins pending a hearing on the contempt charges. (See Def. Exh. J). As of April 10, 1995, the contempt proceedings had not been resolved. (See Def. Exh. K, at 8).

 The following incidents stemming from the custody dispute form the basis of plaintiff's claims:

 1. The June 21, 1993 Check Incident

 On June 21, 1993, Brawer filed criminal charges in the 13th Precinct against Pinkins for fraudulently signing a number of checks on his business account totalling approximately $ 9,600. (Brawer Dep. at 76-77). Pinkins, who was not a signatory on the account, took the checks from Brawer's filing cabinet and used them to pay bills. (See id. at 75-76).

 At the precinct, Brawer was referred to the detective squad where he spoke to Detectives Cornelius Carter ("Carter") and Paul Warren ("Warren"). (Brawer Dep. at 77, 78-79). Brawer told the detectives that he wanted to file a complaint against Pinkins because she had taken his checks without authorization. (Id. at 82). Carter and Warren refused to file a complaint, stating that no crime had been committed. (Id. at 80-81).

 2. The June 26, 1993 Arrest

 On Saturday, June 26, 1993, Brawer was to vacate the loft at 10:00 p.m., as required by the April 7th Order. Paulina, Pinkins's au pair, arrived at the loft at approximately 9:00 or 9:15 p.m. to pick up the children. (Brawer Dep. at 88). *fn3" Brawer told Paulina that she was early and asked her to wait until the regular time before leaving with the children. (Id.).

 At 10:00 p.m., Pinkins rang the apartment's intercom from the lobby of the building. (Brawer Dep. at 88). Brawer answered and heard several voices, including Pinkins's. (Id.). Pinkins said "I'm here, let me up," and Brawer buzzed her into the apartment building. (Id.). When the elevator arrived, Brawer heard several voices laughing and saw that someone's hand was covering the peephole so that he could not see inside the elevator, which opens into the apartment. (Id. at 88-89). Brawer asked Pinkins to identify the people who were with her and to remove her hand from the peephole, but she simply said "let me in." (Id. at 89). Brawer stated to Pinkins: "Why don't you just send Paulina up by herself, the way we normally do it, and I'll leave. I'm ready to go." (Id.). When Pinkins continued to ask Brawer to let her into the apartment, Brawer stated that he would not let her in until he saw who was with her, stating that he felt threatened. *fn4" (Id.). Pinkins then stated that she would call the police and left. Brawer also called 911, explaining the situation and stating that he was concerned for the safety of his children. (Id. at 89-90).

 Defendant Police Officers O'Keefe and Greco arrived at the loft at approximately 10:15 to 10:20 p.m. (O'Keefe Dep. at 67). There they met Pinkins, who showed them a court order. *fn5" O'Keefe testified that Brawer opened the door to the officers without any resistance. (Id. at 32). Brawer testified that he told the officers that he "was leaving." (Brawer Dep. at 95, 108). Yet, O'Keefe or Greco informed Brawer that he would be arrested for failure to leave the loft by 10:00 p.m. (Id. at 31-34). Pursuant to police policy, O'Keefe called for a sergeant to come to the scene and approve the arrest. (Id. at 33).

 Thereafter, defendant Sergeant Vukov arrived at the loft, accompanied by three police officers he was training, defendants Bailey, Rivera, and DeJesus. Defendants Sergeant Hassett and Officer Reina were next to arrive.

 Officers O'Keefe and Greco arrested Brawer, as instructed by either Sergeant Hassett or Sergeant Vukov or both. (See O'Keefe Dep. at 37-38 (stating that Sergeant Vukov instructed her to arrest Brawer); Hassett Dep. at 24 (stating that he instructed the officers to arrest Brawer); Vukov Dep. at 9, 13, 16 (stating that, although he was in backup role, both he and patrol sergeant Hassett decided to arrest Brawer)).

 After arresting Brawer, O'Keefe and Greco drove him to the 13th Precinct, where he was placed in a cell. (Brawer Dep. at 109-110). After two hours, Brawer was taken to Central Booking, where he was held from approximately 1:00 a.m. to noon or 1:00 p.m. on Sunday, June 27, 1993. (Id. at 111, 112). He was then transferred by van with 20 to 25 other people to 100 Centre Street, where he was held for approximately six hours until his arraignment. (Id. at 112-14). Brawer was charged with Criminal Contempt in the Second Degree for violating the April 7th and June 3rd court orders. (See Def. Exh. M). Brawer was then released on his own recognizance. (Brawer Dep. at 114).

 On August 5, 1993, the Criminal Court dismissed the criminal charges on application of the Assistant District Attorney and pursuant to an order signed by Justice Friedman, (see Def. Exh. P), with the understanding that they would be handled by Justice Friedman as part of the divorce and custody proceedings. (See Def. Exh. Q). The record is incomplete with respect to the subsequent history of the charges stemming from this arrest.

 3. The July 20, 1993 Arrest

 On July 1, 1993, Brawer changed the locks to the loft, pursuant to his understanding of an oral order that Justice Friedman dictated from the bench on June 26th or 27th concerning custody of the children for the summer. (Brawer Dep. at 127-28). A written order issued by Justice Friedman on July 1, 1993, however, did not grant exclusive rights to the loft to either Brawer or Pinkins (the "July 1st Order"). (See Def. Exh. H P 3).

 On July 4, 1993, Pinkins filed a complaint with the 13th Precinct against Brawer for evicting her from the loft in violation of Justice Friedman's July 1st order. (See Def. Exh. N). At the precinct, Pinkins was referred to defendant Detective Carter. This was the first time Pinkins met defendant Carter. (Carter Dep. at 58).

 Pinkins showed Carter a court document that she said Brawer was violating. (Carter Dep. at 59). Carter determined that it was an order of protection that granted the spouses joint use of the apartment. (Id. at 62). From Pinkins's allegations, Carter determined that Brawer had committed an unlawful eviction, which Carter believed to be a misdemeanor. (Id. at 62-63). Carter filed a ...


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