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July 19, 2001


The opinion of the court was delivered by: Sweet, D.J.


The Parties

Frank Standt is a citizen and resident of Germany.

Defendant City of New York is a municipality organized and existing under the laws of the State of New York.

At all times relevant to this action, Police Officers Tuozzolo and Applewhite, Sergeants Chu, Dempsey, Anderson, and McKernan, and John Does #1-5 were police officers under the command of the 28th Precinct of the New York City Police Department ("NYPD").

The Facts

Almost every material fact in this action is the subject of serious dispute, as set forth below. Rule 56 requires the facts to be construed in the light most favorable to the plaintiff in this summary judgment motion.

At approximately 1:05 a.m. on January 27, 1999, Standt was stopped at a NYPD traffic checkpoint at Mount Morris Park and West 123rd St. in New York City. (Compl. ¶¶ 9, 10; Maazel Decl. Ex. A (Standt Deposition) at 192:11-14.) He was driving a black 1994 Saturn automobile with a "gay pride" rainbow flag hanging from the rear view mirror. (Rosen Decl. Ex. J (Online Booking System Arrest Worksheet) at 34; Maazel Decl. Ex. A at 170; Standt Decl. ¶ 2.) At that time, Standt spoke English with a thick German accent and had difficulty understanding English. (Standt Decl. ¶ 10; Maazel Decl. Exs. G (Dempsey Decl.) at 99, M (Chu Dep.) at 126, N (Parduba Dep.) at 47.)

Officer Tuozzolo approached the vehicle and asked Standt where he was coming from and where he was going. (Rosen Decl. Ex. N (Tuozzolo Deposition) at 159:18-23; Rosen Decl. Ex. E (Intoxicated Driver Examination Form) at 2; Standt Decl. ¶ 4.)Standt contends that he told Tuozzolo that he was coming from a friend's house and was on the way to another friend's house (Standt Decl. ¶ 4), but Tuozzolo alleges that Standt told him he didn't know either where he was coming from or where he was going. (Tuozzolo Dep. at 159:18-23; Rosen Decl. Ex. E.)

Tuozzolo asked Standt to show a drivers' license. Standt produced his German license, which contained the words "drivers license" in English, as well as his passport, from his trunk. (Maazel Decl. Ex. C.) The license did not have any expiration date, and Tuozzolo was unaware that New York law allows non-New York residents to drive with licenses issued by foreign countries. See N.Y. V.T.L. § 250(2); (Tuozzolo Dep. at 248:13-16, 259-60).

Tuozzolo avers that Standt had bloodshot eyes and was not wearing a seatbelt. (Tuozzolo Dep. at 148-50) Standt, on the other hand, does not believe his eyes were bloodshot and contends that he was wearing a seatbelt because the car he was driving has an automatic shoulder belt feature. (Standt Decl. ¶¶ 2, 5; Standt Dep. at 188.) Other officers who interacted with Standt at the checkpoint and at the police station did not observe him to have bloodshot eyes. (Maazel Decl. Exs. M (Chu Dep.) at 127, 167-68, N (Parduba Dep.) at 47-8, 0 (Tolan Dep.) at 76.)

After attempting the line walk, Standt was arrested and charged with driving under the influence of alcohol at approximately 1:10 a.m. (Tuozzolo Dep. at 290; Online Booking Sheet, 1. 9; Rosen Decl. Ex. D (28th Pct. Command Log); Standt Dep. at 34.) Sgt. Chu, the supervisor on the scene, alleges that Standt became agitated, started yelling in German and said "Heil Hitler." (Rosen Decl. Ex. P (Chu Dep.) at 132). Standt denies having said this or raised his voice at all, which Tuozzolo confirms. (Stand Dep. at 34-35; Standt Decl. ¶ 6; Tuozzolo Dep. at 573-74.)

Standt was transported to the 28th Precinct of the NYPD. When he arrived at the precinct, the desk sergeant, Victor Dempsey, did not notice Standt to have any signs of intoxication, such as smelling of alcohol, slurring his speech, being unsteady on his feet, or having bloodshot eyes. (Maazel Decl. Ex. G (Dempsey Dep.) at 99-104.) Nonetheless, Dempsey wrote in the command log that Standt appeared intoxicated. (Dempsey Dep. at 99-104; Command Log ("App Intox").) Dempsey also searched Standt's bag, which contained various gay-related magazines and other items. (Standt Dep. at 59-61, 197-203.)

Officer Parduba administered a breathalyzer test to Standt on the second floor of the precinct at approximately 2:35 a.m. Meanwhile, Tuozzolo began to fill out the appropriate paperwork. In the space for "Physical Condition" in the Online Booking Sheet, Tuozzolo wrote the code "01" for "Apparently Normal." (Maazel Decl. Ex. E 1. 17; Tuozzolo Dep. at 500-02.)*fn1 On the Intoxicated Driver Examination form, Tuozzolo checked boxes indicating that Standt's eyes were bloodshot and his balance was "swaying." (Rosen Decl. Ex. E (Intoxicated Driver Examination form) at 2.) While upstairs, officers including Tuozzolo directed repeated explicit homophobic remarks at Standt. (Standt Dep. at 86-9.) The breathalyzer test revealed that Standt had a blood alcohol level of 0.00%. (Rosen Decl. Exs. F (Chemical Test Analysis), G (Officer's Arrest Report — IDTU).) The DUI arrest was then voided. (Command Log.)

Still in handcuffs since his arrest, Standt was returned downstairs. Crying now, he asked repeatedly to contact the German Consulate. (Standt Dep. at 94-5, 98-100, 104-07.) No officer either notified him of his right to contact the Consulate or allowed him to do so at any time. (Standt Dep. at 100-01, 104-07; Standt Decl. ¶ 9; Tuozzolo Dep. at 404-07.)

When Standt requested that his handcuffs be loosened, an officer tightened them instead, and Standt alleges that officers began to assault him by pulling his hair, hitting him in the shoulders, ribs, and stomach. (Standt. Dep. at 108-17.) The defendants contest this charge, and specifically contend that Officer Tuozzolo attempted to remove the cuffs once the DUI charge was voided, but that Standt "refused to be released," twisted and moved away, began to scream, and attempted to bite him. (Tuozzolo Dep. at 378-79; Tuozzolo memo book).

At or about 3:16 a.m., Sgt. Dempsey ordered Standt to be transported to St. Lukes Hospital as an alleged Emotionally Disturbed Person ("EDP"). (Dempsey Dep. at 131-34, 140.) Upon arrival, Nurse Mary Swett ("Swett") determined that Standt was not emotionally disturbed in any way. (Standt Dep. at 142, 248-49; Tuozzolo Dep. at 460-62; Maazel Decl. Ex. H (Tuozzolo Memo Book) at 4 ("ASS[t.] Head Nurse Nary Swett St. Lukes Hosp. Refused to Do Write up Not EDP").) Standt asked Swett to contact the German Consulate, which she did. Standt spoke briefly to an individual at the Consulate by telephone. (Standt Dep. at 236.)

At approximately 4:30 a.m., Standt, who was still handcuffed, was transported back to a parking lot across from the 28th Precinct station house, where he alleges that he was again beaten by several police officers. (Standt Dep. at 273-82.) Tuozzolo issued Standt two summonses — one for driving without a seatbelt and the other for driving without a valid license — before releasing him. (Standt Decl. ¶ 8; Maazel Decl. Ex. K (summonses).) The summonses had been sworn at approximately 2:45 a.m. — after the breathalyzer test came back negative. (Maazel Decl. Ex. H (Tuozzolo memo book)), but Standt was not notified of them until after 4:30 a.m. (Standt Decl. ¶ 8). He was finally released at approximately 4:39 a.m., more than three hours after he was stopped at the checkpoint. (Tuozzolo memo book.)

Standt then returned to St. Luke's Hospital in order to seek treatment for injuries he had received that night. (Standt Dep. at 293-95; Maazel Decl. Ex. I (St. Luke's Hospital Records)). He alleges that his treatment by officers brought back memories of his brutal detention and imprisonment by the East German STASI police when he lived in East Germany. (Compl. ¶ 57.)

Standt retained an attorney and appeared in traffic court two or three times before both summonses were dismissed. (Maazel Decl. ¶ 3; Standt Decl. ¶ 8.)

Procedural History

After duly serving notices of claim pursuant to New York law and receiving no offer of settlement, Standt filed this action against the City, Tuozzolo, and John and Jane Does #1-#10 on November 3, 1999. An amended complaint adding Applewhite, Chu, Dempsey, Anderson, and McKernan, and reducing number of John Does, was filed on February 20, 2001. The amended complaint contains ten claims: (1) a 42 U.S.C. § 1983 cause of action for conspiracy to violate, and actual violations of Standt's Fourth, Fifth, Sixth, and Fourteenth Amendment rights, by the individual defendants; (2) violations of the Article I, § 2 of the New York State Constitution; (3) assault and battery; (4) false arrest and false imprisonment; (5) Intentional Infliction of Emotional Distress; (6) Malicious Prosecution; (7) Conversion/Unjust enrichment of a watch and bracelet; (8) Article 36(1) of the Vienna Convention on Consular Relations, (9) negligence with regard to the watch and bracelet, each against all defendants; and (10) negligent hiring/training/retention of employment services by the City.

The defendants filed this partial summary judgment motion on March 13, 2001. Specifically, the defendants seek summary judgment on (1) the Vienna Convention claim; (2) the false arrest and false imprisonment claim due to (a) the existence of probable cause and (b) qualified immunity; and (3) the malicious prosecution claim.*fn2 Standt filed opposing papers on April 9, 2001, and the motion was deemed fully submitted upon oral argument on May 2, 2001.


I. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995). If, when viewing the evidence produced in the light most ...

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