force claim, Maxwell argues that the Court incorrectly understood her deposition testimony with regard to the manner in which she was escorted into the police car by Mannuzza when she was arrested to contradict later statements she made in her affidavit submitted in opposition to Municipal Defendants' motion for summary judgment. Specifically, Maxwell argues that because upon being asked at her deposition, "Do you remember, though, whether you were shoved in head first so that you fell forward onto the seat . . .," she answered, "No. I scraped my forehead against the thing that divides the perps from the police officers," that it was left unclear during the deposition whether or not she was pushed into the police car head first. (See deposition testimony of Maxwell ("Maxwell Dep."), dated June 12, 2002, attached as Exh. I to the Declaration of John H. Graziadei ("Graz.Decl."), dated November 1, 2002, at 75-76.) Therefore, Maxwell argues that it was proper for her to clarify her response in an affidavit submitted in opposition to summary judgment in which she indicates that she was "violently shoved head first into the police car."
However, Maxwell incorrectly cites the Court's Decision, omitting the clear question and response, directly preceding the one cited, that led this Court to hold that Maxwell should not be permitted to alter her deposition testimony in her opposition to Municipal Defendants' motion for summary judgment. In its Decision, the Court held that "with regard to being pushed in head first", in her additional affidavit [Maxwell] directly contradicts her deposition testimony, in which she indicates, in response to being questioned if she was pushed in head first, "I was shoved. I don't know. It was just like `get in.'" Maxwell, 2003 WL 21638216, at *9. The question posed to Maxwell that elicited this very clear response was, "So, when he shoved you into the car, was it head first or did he turn you around and seat you?" (Maxwell Dep. at 74-75.)
After unambiguously indicating, under oath, in response to a clear and precise question that she did not remember how she was "shoved" in the car, and that it was "just like `get in,'" the Court can not permit Maxwell to reconsider her answer and thereafter give a different response later in the proceedings. As the Court explained in the Decision, "[a] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). Moreover, the Court is not convinced that Maxwell's original testimony was "ambiguous, confusing or incomplete" so as to warrant elaboration. Palazzo v. Corio, 232 F.3d 38, 43 (2d Cir. 2000). Maxwell's cite to Langman Fabrics v. Graff Californiawear, 160 F.3d 106, 112 (2d Cir. 1998), and Palazzo to support her position is unpersuasive because the question posed to her at her deposition and the response given, cited by the Court in the Decision, were clear, precise and unambiguous.
Therefore, that Maxwell, in response to another question, which Maxwell contends was focused on a different issue — as to whether or not she fell into the back seat — answered in a manner that was potentially ambiguous does not change the Court's determination that its reliance on the deposition testimony and not on Maxwell's subsequent affidavit is appropriate. Having carefully read through Maxwell's deposition, the Court is persuaded that the alleged force used by Mannuzza, as described by Maxwell herself, was not objectively unreasonable so as to create a constitutional violation. See Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990). Hence, there is no material fact in dispute to be determined by a jury with regard to Maxwell's excessive force claim.
Second, Maxwell claims that the Court erred by improperly indicating that she had not addressed Municipal Defendants' motion to dismiss Maxwell's state law negligence claim. However, the Court notes that Maxwell's response to the argument advanced by Municipal Defendants that she failed to file the required notice of claim with the City is in a footnote attached to the summary sentence under the "Conclusion" heading on page 26 of her brief. Pursuant to the Court's Individual Practices, opposition briefs are limited to 25 pages. Therefore, the Court does not believe Maxwell has reason to complain, nor should the Court reconsider its Decision in order to "correct" its alleged error.
In any event, even upon taking notice of page 26 of Maxwell's brief, Maxwell concedes in that footnote precisely what the Court found — that she failed to file a notice of claim with the City. Therefore, Maxwell withdraws her state law claim of negligence against Municipal Defendants, creating no substantive reason for the Court to alter the Decision in which it reaches the same result. The Court does note for the record, however, that Maxwell did address Municipal Defendants' argument for dismissing Maxwell's state law claims of negligence against Municipal Defendants on page 26, note 8, by admitting the she had not fulfilled the prerequisites for filing such a claim and therefore withdrawing her claim.
For the foregoing reasons, it is hereby
ORDERED that Maxwell's leave to file a motion for reconsideration of the Court's Decision entered on July 14, 2003 is DENIED; and it is further
ORDERED that the Clerk of the Court enter judgment dismissing Maxwell's claims against Municipal Defendants.