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June 21, 2004.

DAVID T. CAPUTO, individually/also as a police officer for the Village of Ravena; SCOTT GIROUX, Police Chief for the Ravena Police Department; JOHN BUONO, Mayor of the Village of Ravena; JAMES CAMPBELL; MICHAEL BRESLIN, County Executive for the County of Albany, a Municipality; OFFICER SLURES, Badge Number 105, individually and as a police officer for the Albany CO. Sheriff, Defendants.

The opinion of the court was delivered by: LAWRENCE KAHN, District Judge



Plaintiff Robert Hogan Jr. ("Plaintiff") commenced the instant action asserting claims for false arrest, malicious prosecution, the intentional infliction of emotional distress, and violations of his Fourth and Fourteenth Amendment rights, arising out of his arrest on August 21, 1999. Presently before the Court are Defendants' motions for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety.


  During the days of August 20-21, 1999, Plaintiff resided with his girlfriend and two minor children (aged three and eleven) at 55 Van Buren Avenue, Ravena, New York. Plaintiff's next door neighbor was Lisa Mascione ("Mascione"). At that time, Plaintiff was on probation. At approximately 10:00 p.m. on August 20, 1999, Plaintiff's girlfriend left for work. At around that same time, Plaintiff retrieved his children from Mascione, who had been babysitting them. While at home, Plaintiff consumed two glasses of rum and coke, thereby violating the terms and conditions of his probation, which prohibited him from consuming alcoholic beverages. At approximately 5:00 a.m. on August 21, 1999, Plaintiff took Mascione's car to purchase cigarettes. At approximately 5:15 a.m., Mascione called the police and reported that her car was missing.

  Shortly thereafter, Defendant Town of Coeymans Police Officer David Caputo ("Caputo") arrived at Mascione's house. Mascione reported that she observed her vehicle leaving her driveway and that she had not given anyone permission to use it. Mascione further reported that Plaintiff knew that she often left the keys in the car and that she had let him borrow it in the past.

  Approximately 15-20 minutes later, Plaintiff returned with Mascione's car. Caputo inquired of Plaintiff whether he had permission to take the car. Plaintiff apparently responded that he had permission to use the car whenever he wanted. Mascione denied that and claimed that Plaintiff was first required to obtain permission before using the vehicle on any particular occasion.

  Caputo claims that he smelled alcohol on Plaintiff's breath and further noticed that his eyes were glassy and his speech slurred. Caputo attempted to perform sobriety tests on Plaintiff, which, according to Caputo, Plaintiff failed to properly complete. Caputo then administered a breathalyzer test (also known as a screening test) to Plaintiff. Caputo claims that Plaintiff was attempting to circumvent the test. Plaintiff claims that he fully complied with the tests. Caputo contends that, as he was administering the breathalyzer test to Plaintiff, Plaintiff shoved Caputo and ran into his home, which Plaintiff denies. Plaintiff contends that, with Caputo's permission, he went into the house to call his girlfriend and to use the bathroom. At around this same time, Defendant Albany County Sheriff's Deputy Craig Sleurs ("Sleurs") arrived at the scene. Sleurs witnessed the commotion between Caputo and Plaintiff. Sleurs then saw Plaintiff flee from Caputo and run into his home. Sleurs ran after Plaintiff while Caputo went to cover the back entrance into the home, ensuring that Plaintiff did not exit from the rear of the home.

  As Plaintiff entered his home, he slammed the door behind him. Sleurs opened the door and pursued Plaintiff into the house. Caputo returned to the front of the home and also entered after Plaintiff. Plaintiff ran into one of the rooms in his home and shut the door. Caputo and Sleurs ordered Plaintiff out of the room. Plaintiff complied. Caputo then placed Plaintiff under arrest.

  Plaintiff was later arraigned on charges of obstruction of governmental administration ("OGA") and endangering the welfare of a child. Defendants contend that these charges were adjourned in contemplation of dismissal ("ACOD"), pursuant to N.Y. Criminal Procedure Law § 160.50. Plaintiff denies that he received an ACOD, claiming that he did not consent to such a disposition as is required by § 160.50. Plaintiff claims that the charges were dismissed outright.

  Plaintiff also was charged with violating the terms of his probation. After a hearing at the Albany County Court, Plaintiff was found to have violated the terms of his probation by, among other things, obstructing governmental administration as a result of his having pushed, and fled from, Caputo. Plaintiff appealed the revocation of his probation to the Appellate Division, Third Department, which affirmed. See People v. Hogan, 284 A.D.2d 655 (3d Dep't 2001).

  Plaintiff commenced the instant action, contending that Defendants' actions violated his constitutional rights under the Fourth and Fourteenth Amendments and that he was subject to false arrest, malicious prosecution, and the intentional infliction of emotional distress. Defendants now move to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 56. III. STANDARD OF REVIEW

  Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "`resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the nonmovant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).


  (a) Intentional Infliction of Emotional Distress

  In New York, the statute of limitations applicable to claims for the intentional infliction of emotional distress is one year. N.Y.C.P.L.R. § 215(3). Plaintiff commenced the instant action in August 2002. There is no evidence in the record of any conduct by Defendants toward Plaintiff during the one year period prior to the filing of this lawsuit. Indeed, there are no allegations of any allegedly intentional and outrageous acts by these Defendants aside from the date of arrest in August 1999. Accordingly, Plaintiff's claim for the intentional infliction of emotional distress is time-barred.

  (b) False Arrest and Malicious Prosecution

  State law claims for false arrest and malicious prosecution also are subject to a one year statute of limitations. N.Y.C.P.L.R. § 215(3). Plaintiff was arrested in August 1999. In his January 23, 2004 affidavit, Plaintiff claims that the charges against him were dismissed in October 2000. Assuming this to be true, any claim for false arrest had to be instituted before November 2001. Because Plaintiff commenced the instant action more than one year after the date he was arrested and more than one year after the date the criminal prosecution was dismissed, his common law false arrest and malicious prosecution claims are untimely. Convington v. City of New York, 171 F.3d 117 (2d Cir. 1999) (false arrest); Dudick v. Gulyas, 277 A.D.2d 686, 688 (3d Dep't 2000) (malicious prosecution).

  The false arrest and malicious prosecution claims also must be dismissed as to Sleurs because: (1) there is no evidence in the record from which a fair-minded trier of fact could reasonably conclude that Sleurs arrested Plaintiff; and (2) ...

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