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October 9, 2001


The opinion of the court was delivered by: Homer, United States Magistrate Judge.


Plaintiff Michael Noga ("Noga") brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two City of Schenectady police officers and a private citizen, violated his constitutional rights under the Fourth Amendment by unlawfully arresting and maliciously prosecuting him. Am. Compl. (Docket No. 13). Noga also alleges pendent state claims. Id. Presently pending is a motion by defendant John Lewis ("Lewis") for summary judgment pursuant to Fed.R.Civ.P. 56(b). Docket No. 23. Noga opposes the motion. Docket No. 28. For the reasons which follow, the motion for summary judgment is denied in part and granted in part.

I. Background

The following facts are presented in the light most favorable to Noga as the non-movant on this motion for summary judgment. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

In accordance with their rental agreement, Noga removed a welder and a generator from the garage and placed both in storage pending payment by Cirincione. App. at 284-85. Cirincione told Lewis about these events and sought Lewis' advice. Id. at 165, 200, 371 While on duty, Lewis sought the opinions of fellow officers William Potenza ("Potenza"), a defendant herein, and Robert P. McHugh ("McHugh") but failed to inform either detective about the rental agreement's self-help provision. Id. at 250, 349, 389. McHugh told Lewis that Cirincione's problem was civil in nature and Cirincione would have to go to small claims court. Id. at 393. Potenza told Lewis that if Cirincione wanted the situation investigated, he would have to fill out a Standard Incident Report ("SIR"). Potenza Aff. (Docket No. 36) at ¶ 6. While on duty, Lewis told Cirincione that he could file a complaint and then called another uniformed officer to come to Cirincione's place of business formally to file the complaint. App. at 358-59. Cirincione only believed that Noga had no right to enter the garage and take his property because Lewis had told him that the self-help provision was illegal. Id. at 197-98. Lewis acted as a middleman between Cirincione and the investigating officers. Id. at 358.

On February 9, 1998, Cirincione filed an incident report with the Schenectady Police Department charging Noga with burglary. App. at 71. Potenza was assigned the case and on February 20, 1998, Potenza signed a felony complaint charging Noga with burglary in the third degree. Id. at 77. Lewis was aware that Cirincione was behind in his rent and that the lease authorized the seizure of collateral by Noga but never so advised any official. Id. at 217-19, 241-46. An arrest warrant was issued and on February 26, 1998, Noga was arrested. Id. at 15, 273. Lewis spoke with the Assistant District Attorney who prosecuted the case against Noga, Mark Caruso ("Caruso"), while the case was pending. Id. at 353-54.

Shortly afterwards, Lewis learned of Noga's arrest and assumed that Noga was arrested for burglary. App. at 360. On March 6, 1998, the charges against Noga were reduced to criminal trespass in the third degree. Id. at 273. Lewis learned of the reduction in charges from either Caruso or Potenza. Id. at 360-61. On October 17, 1998, the criminal charges against Noga were dismissed. Id. at 273. This action followed.

II. Discussion

A. Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), if "there is no genuine issue as to any material fact[,] . . . the moving party is entitled to judgment as a matter of law." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Lee v. Sandberg, 136 F.3d 94, 102 (2d. Cir. 1997). Once the moving party has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P 56(e); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). "Furthermore, the non-movant `will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996) (citations omitted). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Section 1983*fn2

1. Personal ...

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