The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM DECISION and ORDER
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
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
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
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
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
(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) ...