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MALATESTA v. NEW YORK STATE DIV. OF STATE POLICE

November 7, 2000

SHANNON MALATESTA AND ANTHONY MALATESTA, PLAINTIFFS,
V.
NEW YORK STATE DIVISION OF STATE POLICE; SUPERINTENDENT JAMES W. MCMAHON; STATE OF NEW YORK; TOWN OF NORTH GREENBUSH; JOHN J. OGDEN, JR.; WILLIAM GONZALES; GARY KELLY; GEORGE ADDIS; ERIC MOORE; AND ROBERT ASHE, DEFENDANTS.



The opinion of the court was delivered by: Hurd, District Judge.

  MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On December 16, 1997, plaintiff Shannon Malatesta ("Malatesta") and her husband Anthony Malatesta, commenced the instant action against defendants State of New York, New York Division of State Police, Eric Moore, Robert Ashe, Town of North Greenbush, Gary Kelly, William Gonzalez, John J. Ogden, Nicholas Georgeadis,*fn1 and James W. McMahon, pursuant to 42 U.S.C. § 1983, 1985, and 1988, alleging that the defendants violated their rights under the Fourth and Fourteenth Amendments to the Constitution of the United States of America. Anthony Malatesta subsequently withdrew as a plaintiff, discontinuing his claims with prejudice.*fn2 The defendants State of New York, New York Division of State Police, and James W. McMahon were dismissed by court order on March 25, 1999. (Doc. No. 28). Malatesta also stipulated to dismissal with prejudice of her claims against defendants Robert Ashe, Town of North Greenbush, William Gonzales, Nicholas Georgeadis, and Eric Moore, (Doc. Nos. 21 and 42); leaving only her claims against defendants John J. Ogden ("Tpr.Ogden") and Gary Kelly ("Inv.Kelly").

Tpr. Ogden and Inv. Kelly now move for summary judgment on all claims against them, pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes. Oral argument was heard on May 25, 2000, in Albany, New York. Decision was reserved.

II. FACTS

This action arises out of events occurring at the Malatesta residence in the Town of North Greenbush, New York. On or about December 3, 1997, Thomas Mahan ("Mahan"), Anthony Malatesta's grandfather, entered the New York State Police barracks in East Greenbush, New York, seeking to obtain assistance in repossessing his pickup truck from his grandson. According to Mahan, he had loaned his truck to his grandson, Anthony Malatesta, approximately one year earlier; his grandson now refused to return it, and had threatened him with bodily harm if he attempted to repossess it. Trooper Nicholas Georgeadis ("Tpr.Georgeadis") and Tpr. Ogden informed Mahan that he could either have his grandson arrested or retrieve the truck himself while troopers stood by to insure that there was no breach of the peace — a procedure known as a "civil standby." Mahan left the barracks to consider his options.

On December 6, 1997, Mahan returned to the East Greenbush barracks. He informed Troopers Ogden and Georgeadis that he had arranged for a tow truck operator to go with him to the Malatesta residence, and requested that the troopers accompany them in order to prevent a breach of the peace. They agreed to perform a civil standby. Mahan then drove to the Malatesta residence in his own vehicle, followed by the tow truck and the troopers in a marked New York State Police cruiser.

Upon arriving at the Malatesta residence, the troopers observed what appeared to be Mahan's pickup truck parked behind the Malatesta trailer home. While Tpr. Ogden went to announce their presence to plaintiff, the tow truck operator went to the pickup truck to compare the vehicle identification number ("VIN") with that on the vehicle registration provided by Mahan. The tow truck operator observed that the VIN tag had apparently been removed from the dashboard of the pickup truck, and that there appeared to be metal shavings around the area where the VIN should be. The tow truck operator informed the troopers of this fact. The troopers walked to the truck and looked in the windshield to confirm that the VIN tag had, in fact, been removed.

Because it is a felony to remove a VIN tag from a motor vehicle in New York, the troopers contacted two inspectors from the New York State Police Bureau of Criminal Investigations. After conferring with the inspectors, the troopers informed plaintiff that the truck, which was not the Mahan truck, but actually belonged to Anthony Malatesta, was to be seized as contraband.

Tpr. Ogden returned to the State Police barracks and spoke with New York State Police Investigator Kelly. Inv. Kelly drafted a search warrant to search the Malatesta property for the VIN tag and the tool used to remove it. The warrant was issued by Poestenkill Town Justice Marie Hoffman, and executed by Troopers Ogden and Georgeadis, and Inv. Kelly.

On December 9, 1997, while executing this search warrant at the Malatesta property, the troopers and Inv. Kelly observed property which they believed to be stolen. Based on the observation of stolen property, the search was halted while Inv. Kelly returned to Justice Hoffman and requested that the previously issued search warrant be amended to permit the police to search the Malatesta premises for stolen property, and to seize the same. Justice Hoffman amended the search warrant as requested by Inv. Kelly.

The search resumed pursuant to the amended warrant, and disclosed various items of stolen property on the Malatesta property, as well as the VIN tag that had been removed from the pickup truck. Plaintiff and her husband were arrested and subsequently indicted by a Rensselaer County Grand Jury on various criminal charges stemming from the illegal VIN tag and possession of the stolen property.*fn3

III. STANDARD OF ...


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