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NOGA v. CITY OF SCHENECTADY POLICE OFFICERS
October 9, 2001
MICHAEL NOGA, PLAINTIFF,
CITY OF SCHENECTADY POLICE OFFICERS WILLIAM POTENZA AND JOHN LEWIS AND PAUL S. CIRINCIONE,[FN1] DEFENDANTS.
The opinion of the court was delivered by: Homer, United States Magistrate Judge.
MEMORANDUM-DECISION AND ORDER
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
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 February 1995, defendant Paul S. Cirincione ("Cirincione")
entered into an agreement to rent a garage from Noga. App. To
Ravalli Aff. (Docket No. 26) (hereinafter "App.") at 208.
Paragraph 3(d) of the rental agreement allowed the landlord
to secure the premises and remove property from the garage as
collateral when the rent was late. Id. Cirincione's friend,
Lewis, a City of Schenectady police officer, used the garage to
store his race car. App. At 282-83. In early 1998, Cirincione was
several months late with his rent and late fees had accumulated.
Id. at 261, 280-84. Noga was unable to collect rent from
Cirincione and when he tried to collect rent from Lewis, Lewis
told Noga that nothing could be done because Lewis was a police
officer and Noga better "watch out." Id. at 111, 119, 139-40,
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.
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"
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).