PRITZKER v. CITY OF HUDSON

The opinion of the court was delivered by: McAVOY, Chief Judge.

Plaintiffs Howard and Katherine Pritzker commenced this action against defendants pursuant to 42 U.S.C. § 1983 alleging claims of malicious prosecution, excessive force, and denial of due process of law and the right of privacy. By Memorandum — Decision & Order dated October 30, 1998 ("MDO"), familiarity with which is assumed, the Court granted, in part, defendants' motion pursuant to FED.R.CIV.P. 12(b)(6). Pritzker v. City of Hudson, 26 F. Supp.2d 433 (N.D.N.Y. 1998). The only remaining claims are Howard Prtizker's ("plaintiff") first cause of action against James L. O'Neil and Paul Kisselbrack (malicious prosecution) and the second cause of action against Anthony Moon (excessive use of force). The parties have completed discovery and defendants now move pursuant to FED.R.CIV.P. 56 seeking dismissal of the Complaint in its entirety.

I. BACKGROUND

The Court will not now recite the full set of facts previously detailed in the MDO. Pritzker, 26 F. Supp.2d at 437-38. The relevant facts pertaining to this motion are as follows and, because this is a motion for summary judgment by the defendants, are presented in the light most favorable to plaintiff. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

In 1988, plaintiff cooperated with law enforcement officials regarding the investigations of certain members of the City of Hudson Police Department ("HPD"). Plaintiff alleges that certain members of the HPD became aware of his cooperation and instituted a campaign of retaliation against him.

Plaintiff alleges that the campaign of retaliation began on January 10, 1990, when Defendant James L. O'Neil ("O'Neil"), a detective with the HPD, signed two misdemeanor complaints alleging that plaintiff bad made false statements violating N YPENAL LAW § 210.45. O'Neil's complaints charged that plaintiff falsely signed a deposition stating that he was the victim of a theft. Plaintiff further alleges that O'Neil obtained a copy of plaintiffs military records "[i]n order to verify Mr. Pritzker's military record, and establish his credibility." See Complaint, § 12. The Army Reserve Personnel Center in St. Louis, Missouri, sent a copy of plaintiffs military records to the HPD. The Assistant District Attorney withdrew the false statement charges in April 1990, and the Hudson City Court dismissed the charges on April 17, 1990.

In April 1990, Defendant O'Neil signed a new complaint alleging that Pritzker violated Hudson City Code § 78-31 by turning in a false alarm. This new complaint was based upon the same underlying conduct as the false statement charges and was signed by O'Neil after he learned that the District Attorney's office declined to prosecute the false statement charges. The Hudson City Court dismissed this complaint on September 24, 1990.

Plaintiff asserts that, upon the favorable termination of these charges against him, defendants were required to seal or return plaintiffs military records in accordance with N.Y.CRIM.PRO.LAW § 160.50 ("CPL § 160.50"). In fact, the City Court signed an order requiring defendants to return plaintiffs military records. However, defendants failed to do so.

On February 13, 1996, plaintiff testified as a witness in a tort case in Supreme Court, Columbia County. Plaintiff was retained to investigate the scene of a slip and fall accident. In his testimony, plaintiff stated that he "joined the United States military at the age of 18, volunteered for and was accepted in the Special Forces Green Berets and spent 20 years doing that, four-and-a-half years in Vietnam." Pl. Appendix, at 3. Attorney Eugene Keeler ("Keeler") was present in the courtroom when plaintiff testified about his military career. Keeler subsequently had a discussion with O'Neil and relayed the substance of plaintiffs testimony. Having previously reviewed plaintiffs military records back in 1990, O'Neil believed plaintiffs testimony to be false.

Thus, O'Neil prepared an incident report, reexamined plaintiffs military records, requested a copy of the transcript of plaintiffs trial testimony, and began a preliminary investigation. O'Neil concluded that a felony had been committed and that further investigation was warranted. Alter three weeks of preliminary investigation, O'Neil turned the matter over to the detective division with instructions that they "[s]hould follow up on it [and that] [t]here were still a lot of open leads on it." The detective division assigned the case to Defendant Paul Kisselbrack ("Kisselbrack").

Kisselbrack pursued the investigation, including obtaining a copy of plaintiffs trial transcript and having plaintiffs military records reviewed by an Army Major in Latham, New York (the "Major"). According to Kisselbrack, the Major advised that there was no way that plaintiff was in the Green Berets or that he served more than ten months in Vietnam. On January 8, 1997, Kisselbrack signed a felony complaint charging plaintiff with perjury in the first degree in violation of N.Y.PENAL LAW § 210.15. The complaint specifically charged that:

Kisselbrack then presented the felony complaint to a Hudson City Court judge. Subsequently, Kisselbrack had several meetings with the detective sergeant and the chief of police regarding the appropriate way to pursue the case against plaintiff. At least one of the discussions pertained to the information Kisselbrack received from the Major. Kisselbrack ultimately prepared a warrant for plaintiffs arrest, which was signed by a Hudson City Court judge on January 24, 1997.

The detective sergeant apparently instructed Kisselbrack to hold the warrant because defendants were attempting to obtain further verification of plaintiffs military records from the Army Reserve Personnel Center in St. Louis. Kisselbrack ultimately was told to execute the warrant. Accordingly, Kisselbrack telephoned plaintiffs attorney and advised ...