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October 30, 2002


The opinion of the court was delivered by: William C. Conner, United States District Judge.


Defendant has moved for summary judgment dismissing plaintiffs claims on grounds that (1) defendant did not use excessive force, (2) defendant's actions are shielded by qualified immunity because his use of excessive force was "objectively reasonable" as a matter of law, (3) defendant's use of force was not negligent and (4) neither plaintiff nor distributees of decedent's estate have suffered pecuniary loss. For the reasons discussed below, defendant's motion is granted in part and denied in part.


At the time of the incident giving rise to plaintiffs cause of action, Dineen was under the care of Drs. Burt and Young at Memorial Sloan-Kettering Hospital ("Memorial"), located in New York, New York for treatment of lung cancer. (DeL Mem. Supp. Summ. J., Ex. 7 at 2, 6-7, 51.) Dineen saw his family doctor for a persistent sore throat and was referred to Memorial where he was diagnosed with Stage IV lung cancer in April 1997. (Id. at 7.) Dineen was subsequently told that the cancer had metastasized into his spine, ribs and brain and that he had only a few months to live. Dineen informed his family of his illness in May or June 1997. (E. Abruzzo Dep. at 13.) Dineen died at Memorial on August 24, 1997 of metastatic lung cancer. (Def Mem. Supp. Summ. A, Ex. 7 at 182.)

This claim arises out of the apprehension of Dineen during the evening hours of August 1, 1997 following a car chase involving defendant, a New York State Parks Police Officer and two Town of Tuxedo, New York patrol cars. (Stramka Aft ¶ 5-17.) The pursuit stretched some distance along Route 106, in the Harriman Park area of Orange and Rockland Counties in the state of New York before defendant and Tuxedo officers terminated the chase by executing a "box-in" maneuver to stop Dineen's car. (Id. ¶¶ 20-24.)

On August 1, 1997 Dineen left his apartment in Manhattan at 11:00 a.m. to drive his car to Connecticut to meet a friend at 1:00 p.m. but never arrived at the appointment. (J. Dineen Dep. at 46.) That evening, a park visitor driving on Route 106 in Harriman State Park was run off the road by Dineen. (Stramka Aft ¶¶ 5-13.) Shortly thereafter, the park visitor contacted New York State Parks Ranger Bruce Crowfut to complain of the erratic driver, describing the car, giving the license number and describing the driver as a young white male, skin-head. (Id. ¶¶ 1-11, 5-17, 20-24.) Shortly before 9:25 p.m. the Park Ranger radioed headquarters, advising the Parks Police of the report and relaying the description given by the park visitor. Id. The defendant then saw a vehicle matching the description and proceeded to intercept it. After identifying the license plate number as that given by headquarters, defendant turned on his flashing lights and sirens and directed the driver to pull over using the loudspeaker. The driver did not respond. (Id. ¶¶ 12-15.)

During the ensuing pursuit, defendant observed erratic driving with the driver crossing over from his lane into oncoming traffic several times. Defendant radioed the Parks Police dispatcher to advise the Town of Tuxedo Police Department that assistance was needed. Two Town of Tuxedo patrol cars. each with an officer, one of whom was Officer Patrick Welsh, responded to the scene. (Id. ¶¶ 18-20.) The driver continued down Route 106 driving erratically, at speeds varying from five miles per hour to forty miles per hour, and neither stopped nor pulled over in response to defendant's lights, sirens or hails. Officer Welsh, at defendant's direction and with his assistance, attempted to execute a "box-in" maneuver to stop the driver's vehicle. When the vehicle was finally brought to a stop, the driver was identified as Edward Dineen. (Id. ¶¶ 16-24.)

The parties disagree over what happened next. Officer Welsh apparently noticed Dineen's vehicle rolling forward and attempted to stop it by opening the car door, placing the transmission in park and taking the keys out of the ignition. According to defendant, as Officer Welsh was between the steering wheel and the driver, defendant observed Dineen place one of his hands on Welsh's gun and the other hand on Welsh's gunbelt. (Id 26-28.) Defendant grabbed Dineen's left hand off Welsh's gun and placed handcuffs on his left hand while Welsh grabbed Dineen's other hand or arm. Dineen was disoriented and combative and began to fall forward to the ground onto his knees until defendant and Officer Welsh guided him down to the ground on his stomach. (Id. ¶¶ 28-31.) Defendant claims that Dineen would not place his hands behind his back as directed, and flailed his arms, resisting being handcuffed. After Dineen was placed in the patrol car, he complained that the handcuffs were annoying him and defendant immediately took them off. (Id. ¶ 34.) Throughout the ordeal, Dineen's speech was slurred and he kept repeating, "I'm on medication." (Welsh Dep. at 20.) Defendant called his headquarters for an ambulance to be dispatched and an emergency medical technician ("EMT") arrived on the scene. The EMT examined Dineen and found him to be disoriented. An ambulance then took Dineen to Good Samaritan Hospital where he was diagnosed as having a spiral fracture of the humerus bone in his left upper arm. (Pl. Rule 56.1 Stmt. ¶ 68.)

Plaintiff presents a different version of the events occurring after Dineen's vehicle was stopped. According to plaintiff, Dineen never placed his hand on Welsh's gun. (Welsh Dep. at 52.) Plaintiff maintains that Dineen was dragged out of the car, beaten against the back of his knees with a night stick by defendant and thrown to the ground. (J. Abruzzo Dep. at 11; J. Dineen Dep. at 28; E. Abruzzo Dep. at 17-18; Murphy Dep. at 38, 62.) Contrary to defendant's account, plaintiff claims that Dineen was pleading with Stramka to loosen the handcuffs because they were hurting his arm but defendant refused. (E. Abruzzo Dep. at 17, 21.) According to plaintiff, defendant used excessive force in apprehending Dineen which resulted in bruises on the back side of both Dineen's knees as well as a bruise on his right forehead and a spiral fracture of the proximal left humerus. (E. Abruzzo Dep. at 45; Trop Aff. ¶ 11.)

Defendant suggests that Dineen's fracture occurred prior to the August 1, 1997 incident due to the metastatic cancer that had spread to the bone. (Def Mem. Supp. Summ. J. at 21-22.) Similarly, defendant contends that the alleged bruise on Dineen's right forehead was actually a protruding tumor, a result of Dineen's spreading lung cancer. (Id. at 4.)


I. Summary Judgment Standard

Defendant moves for summary judgment pursuant to FED. R. Civ. P. 56. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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." FED. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F. Supp.2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See ...

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