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May 31, 2001


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



On January 6, 2000, plaintiff David Kinzer ("Kinzer" or "plaintiff") commenced the instant action against defendant David Harris ("Harris" or "defendant")*fn1 pursuant to 42 U.S.C. § 1983, and asserting causes of action for false arrest and malicious prosecution in violation of his rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution, and state law.

Harris now moves for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes. Oral argument was heard on April 27, 2001, in Albany, New York. Decision was reserved.


This action arises from the arrest and prosecution of Kinzer following an attempt to exchange his valid U.S. Virgin Islands ("U.S.V.I.") driver's license for a New York State driver's license. Plaintiff was arrested because Harris allegedly believed his valid license was a forgery. The following are the pertinent facts as stated in the light most favorable to the non-moving plaintiff.

On or about April 12, 1999, Kinzer entered the New York State Department of Motor Vehicles ("DMV") branch office in Albany, New York. He attempted to exchange his valid U.S.V.I. driver's license for a New York State driver's license. In accordance with DMV procedures, DMV employees compared the license presented by Kinzer with the information contained in the U.S. Identification Manual (the "ID. manual"). The I.D. manual contains samples and detailed descriptions of driver's licenses issued by each U.S. state and territory. Because the license presented by plaintiff differed substantially from the information contained in the I.D. manual,*fn2 DMV employees suspected that his license was a forgery. He was told to return on another day to complete the license exchange. The employees' suspicions were reported to DMV Investigative Aide Stanley Bronakowski ("Bronakowski") the next day. (Bronakowski Aff. ¶ 2.)

Because of the concerns about the validity of plaintiff's license, Bronakowski called the U.S.V.I. Department of Motor Vehicles ("U.S.V.I.DMV") on April 13, 1999. to inquire about the validity of Kinzer's license. (Bronakowski Aff. ¶ 5.) He was told by a representative of the U.S.V.I. DMV that they had no record of Kinzer's license in their computers.*fn3

On April 15. 1999. Bronakowski was notified that Kinzer had returned to the DMV office to again attempt to exchange his license. (Id. at ¶ 9.) Bronakowski reported this fact to Harris and to DMV Supervising Investigator Brad Schwartz ("Schwartz"). (Id.) Harris, accompanied by DMV Investigator Joseph Cardero ("Cardero"), then traveled to the Albany DMV office to inspect the license proffered for exchange by Kinzer. (Cardero Aff. ¶ 3.) After inspecting the license, and speaking with Schwartz, Harris introduced himself to Kinzer and confirmed that he had attempted to exchange the license in question. (Id. at ¶ 6.) Harris then personally called the U.S.V.I. DMV to again confirm that there was no record of a valid driver's license issued to Kinzer by that agency. (Harris Aff. ¶ 19; Cardero Aff. ¶ 7.)*fn4

After completing the call to the U.S.V.I. DMV, Harris called Schwartz to discuss the case. Both Harris and Schwartz determined that probable cause existed for the arrest of Kinzer. (Harris Aff. ¶ 24; Schwartz Aff. ¶ 27.) Harris requested the assistance of a City of Albany police officer to effect the arrest of plaintiff. (Harris Aff. ¶¶ 24, 25; Cardero Aff. ¶ 9.) When the Albany Police officer arrived, he informed Kinzer that he was being arrested for possession of a forged driver's license because the U.S.V.I. DMV had indicated that it did not have a record of his license. (Cardero Aff. ¶ 12.)*fn5 Plaintiff was taken to the Albany Police Department station and booked. Later that afternoon, he was arraigned before a judge of the Albany City Court on charges of Criminal Possession of a Forged Instrument in the Second Degree in violations of N.Y. Penal Law § 170.25.*fn6 At the arraignment, Harris spoke with Albany County Assistant District Attorney Francisco Calderone ("ADA Calderone") regarding the facts of the case as Harris then knew them to be. (Harris Aff. ¶ 27.)

On April 20, 1999, Harris received a letter from the U.S.V.I. DMV indicating that Kinzer did, in fact, have a valid U.S.V.I. driver's license, and that the license which Kinzer had attempted to exchange at the DMV was not a forgery. Harris alleges that he unsuccessfully attempted to forward this information to ADA Calderone on several occasions, including hand delivering the information to the Albany County District Attorney's office on or about April 24, 1999. Harris alleges that he assumed that ADA Calderone received this information and dismissed the charges against Kinzer because Harris never heard otherwise. Plaintiff denies the validity of these assertions. He argues that, given the small size of the Albany County District Attorney's office, it is incredible to believe that Harris was unable to deliver the exonerating information to ADA Calderone, and that the evidence indicates that Harris affirmatively misled the prosecutor through omission and inaction concerning the information that he received from the U.S.V.I. DMV. (Pl. Mem. at 18.)*fn7

ADA Calderone continued to prosecute Kinzer. Plaintiff was forced to appear in court on seven occasions. (Kinzer Aff. ¶ 37.) In June of 1999, Kinzer attempted to obtain a New York State driver's license by taking the driver's test at the DMV office in Troy, New York. (Id. ¶ 42.) After passing the examination, he was informed that there was a hold placed on him in the computer as of April 15, 1999. (Id. ¶ 43.) The DMV representative at the Troy office called the DMV main office in Albany. Kinzer was placed on the telephone with Harris, who indicated that he was attempting to help him clear up the matter. (Id. ¶ 44.) The charges against plaintiff were finally dismissed on August 24, 1999. This was 126 days after Harris first received confirmation that completely exonerated the plaintiff. The instant action followed.


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