The opinion of the court was delivered by: BRIEANT
By motions heard April 23, 1997, Plaintiff and Defendants in this action pursuant to 42 U.S.C. § 1983 charging the excessive use of force, seek summary judgment in their favor.
On February 26, 1994, Plaintiff was driving his automobile southbound on Interstate 87 ("I-87") with a passenger Bruce Malone. At approximately 5:15pm, Plaintiff approached the Yonkers Toll Plaza. Defendant Forte, a State Trooper, was stationed at the toll plaza. Trooper Forte heard the sound of screeching tires and turned his head in time to view the Plaintiff's vehicle speeding at approximately 70 miles per hour toward the toll barriers. Plaintiff's vehicle skidded dangerously, spun 360 degrees out of control and turned up onto its two right wheels, before eventually coming to a stop in Lane 2 of the Toll Plaza, approximately 100 feet from the toll barrier.
Trooper Forte immediately responded by driving up to and parking behind Plaintiff's car in order to investigate. Mr. Forte approached the driver side window and requested that the Plaintiff produce his license and registration. Plaintiff told the Trooper that his brakes "had locked up on him," and that he "left his license at home," and that his name was "Carmen Caridi," with a date of birth of July 4, 1956. A Department of Motor Vehicles computer check revealed a valid license for that person, who later turned out to be Plaintiff's brother. When the Trooper requested that the passenger, Malone, exit the vehicle, Trooper Forte saw a knife handle sticking out of Malone's waistband. Trooper Forte noticed further that Malone seemed disoriented. Trooper Forte retrieved the knife from Malone, which turned out to be an illegal, double edged, lock-blade, so called "butterfly knife." Trooper Forte then patted Malone down, at which time he recovered four vials of crack cocaine from Malone's person.
Trooper Forte then placed Malone under arrest, at which time Plaintiff came out of his vehicle shouting, "What the fuck are you doing? Fuck You, you n --!" Plaintiff then attacked and repeatedly charged at Mr. Forte, who struggled to keep him at bay while holding onto Malone. As Trooper Forte attempted to fend off the Plaintiff's repeated attacks, he kicked the Plaintiff once in the groin with enough force so that it should have stopped a man of the Plaintiff's size. However, the kick had no effect on the Plaintiff. Trooper Forte assumed that Plaintiff's indifference to the kick in the groin was the result of drug intoxication, an assumption that was later proved correct by drug analysis after the Plaintiff's arrest.
Plaintiff again charged at the Trooper Forte with his hands behind his back, out of the Trooper's view. Trooper Forte, believing that the Plaintiff was armed and possibly reaching for a weapon, drew his service pistol and told Plaintiff to "get back." Plaintiff then backed off. Trooper Forte holstered his weapon and signaled to the toll collectors that he needed immediate assistance. Accordingly, Yonkers Toll Plaza Manager, Allen Youngstein left his office to render assistance to Forte. Youngstein witnessed Plaintiff attacking Forte again, whereupon he used Forte's police car radio to call for back up. Youngstein witnessed Forte drawing his gun again and ordering the Plaintiff to get back, whereupon the Plaintiff yelled in response, "You are nothing but a fucking n --! You are a n -- with your gun! You don't know who I am! My family runs this place!" Trooper Forte again ordered the Plaintiff to, "get back or I'll shoot." To which Plaintiff replied, "I don't care. Shoot me."
Plaintiff again lunged at Trooper Forte while shouting "I'll fuckin' kill you!" Trooper Forte was able to effectuate Plaintiff's arrest several minutes later only after a passing off-duty, Investigator, Defendant Calderin, assisted. Trooper back up had not yet arrived when Calderin arrived upon the scene and helped Forte subdue the Plaintiff. Together the two officers managed to handcuff Plaintiff, who was then read his Miranda warning. No shots were fired, despite the Plaintiff's aggressive and life-threatening behavior. Trooper Forte injured his hand during the attack, and could smell alcohol on the Plaintiff's breath. Forte and Calderin observed behavior consistent with Plaintiff being under the influence of both alcohol and drugs. Several open containers of beer were found in the Plaintiff's car.
Plaintiff was then asked to take a chemical test and warned of the consequences of noncompliance. His response was, "I'm not taking no fuckin' test, n --! All you n --s belong in Alabama." While this was occurring, Malone asked a trooper to telephone his father to bring him several prescription drugs, including alprazolam. When Malone's father arrived, the drugs were brought to Malone, who immediately gave Plaintiff some. Plaintiff swallowed the drugs before he could be stopped.
Thereafter, Trooper Forte began to uncuff Plaintiff so that he could be fingerprinted, whereupon Plaintiff struck Trooper Forte in the face with his hands, augmented by the handcuffs, and did so with enough force to knock him to his knees. He then struck Forte repeatedly, while Forte attempted to subdue him by striking him in the thighs with his baton. Plaintiff yelled during the scuffle, "Just me and you n --. Die motherfucker!" Plaintiff was subdued and recuffed only after the intervention of Defendant Vigne.
Because Plaintiff had consumed Malone's prescription drugs, Plaintiff's family released his medical records to the police so that he could be treated properly. Thereafter, Plaintiff was transported to Phelps Memorial Hospital, in North Tarrytown, New York, where he was treated for drug ingestion and bruises to the groin and other parts of his body. Plaintiff, who never lost consciousness, was released from the hospital at approximately 11:30 p.m. the same day.
Thereafter, Plaintiff was arraigned in the Dobbs Ferry Village Court before Justice Badie on charges: (1) Resisting Arrest in violation of Penal Law § 205.30; (2) Assault in the Second Degree in violation of Penal law § 120.05; (3) Driving While Ability Impaired by Drugs in violation of Vehicle and Traffic Law § 1192(4); (4) Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192; (5) Aggravated Harassment in the Second Degree in violation of Penal Law § 240.30; (6) Speeding in violation of Vehicle and Traffic Law § 1180(e); (7) Criminal Impersonation in Violation of ...