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August 3, 2004.

SCOTT W. LASHER, Plaintiff,
THE CITY OF SCHENECTADY, EDWARD RITZ, KENNETH HILL, DAN KANE, YONI MOSKOW, ROBERT W. GLASSER, Individually and as Agents, Servants, and/or Employees and Police Officers of the City of Schenectady and the City of Schenectady Police Department Defendants.

The opinion of the court was delivered by: THOMAS McAVOY, District Judge



  Plaintiff Scott W. Lasher ("Plaintiff") commenced the instant action pursuant to 42 U.S.C. § 1983 and 1988, asserting claims of excessive force, false arrest, unlawful imprisonment, malicious abuse of process, denial of prompt medical care, assault and battery, and violations of his Fourth and Fourteenth Amendment rights, arising out of his arrest on January 20, 2002. Presently before the Court are motions for summary judgment submitted pursuant to FED. R. CIV. P. 56 by Defendant Kenneth Hill and Defendants City of Schenectady, Edward Ritz, Dan Kane, Yoni Moskow, and Robert W. Glasser seeking dismissal of the Complaint in its entirety.


  On January 20, 2002, Plaintiff and Damien Schon ("Schon") were at a bar in downtown Schenectady. Also present at the bar were Defendants Kenneth Hill ("Hill") and Edward Ritz ("Ritz"). At all times relevant hereto, Hill and Ritz were off-duty, non-uniformed police officers for the Defendant City of Schenectady ("the City"). While at the bar, Plaintiff and Ritz consumed alcohol. Hill stated that he may have drank alcoholic beverages, but does not recall what he consumed.

  Plaintiff and Schon left the bar when it closed at 4:00 a.m. They entered Plaintiff's Honda sport utility vehicle, drove out of the parking lot and proceeded past the bar. At the same time, Hill and Ritz also left the bar and entered Hill's vehicle. As they began to exit the parking lot, Michael Parisi, the bar owner, ran towards them. He told Hill and Ritz that a gunshot emerged from a vehicle as it passed by the bar. Parisi pointed to Plaintiff's passing vehicle as the source of the shot.*fn1 Hill and Ritz then exited the lot and began to follow Plaintiff's vehicle.

  Parisi also reported the incident by telephone to the Schenectady Police Department, describing the vehicle as a red Blazer (sports utility vehicle). An employee of the bar also called in a report that a "drive-by" shooting had occurred and identified the vehicle as a red Blazer or red Rodeo.

  After being followed for several blocks, Plaintiff stopped his vehicle at an intersection near Schenectady Police Department Headquarters. Hill stopped four to five car lengths behind Plaintiff and remained in his vehicle with Ritz. Plaintiff and Schon then exited their vehicle. Plaintiff put his hand in his jacket in a manner indicating that he had a weapon.*fn2 Plaintiff and Schon then returned to their vehicle and drove away. Hill ran into the police station to report the incident. Ritz moved into the driver's seat of Hill's vehicle and continued to follow Plaintiff's vehicle. He eventually stopped to use a pay phone to contact police dispatch. After five to ten minutes at the police station, Hill learned that Plaintiff's vehicle had been located. He and Officer Thomas Kelly left to go to the scene.

  At approximately 4:45 a.m., uniformed officers apprehended Plaintiff and Schon as they were walking on a sidewalk. Officer Thomas Harrigan ("Harrigan") instructed Plaintiff to get down on the ground. Harrigan then handcuffed Plaintiff and helped him to stand up.*fn3 Next, Harrigan and Defendant Schenectady Police Officer Dan Kane ("Kane") escorted Plaintiff to a police car operated by Officer Phillip Feldhaus ("Feldhaus") and Defendant Schenectady Police Officer Yoni Moskow ("Moskow"). Plaintiff asserts that on the way to the car, a non-uniformed man approached him, asked "[r]emember me?", and then punched him in the face, causing him to bleed profusely. Plaintiff was then seated in the police car where his nose continued to bleed. No ambulance was called to the scene.

  Officers Hill and Ritz were the only persons employed by the City of Schenectady Police Department who were not in uniform on the night in question and who were present at some point in time at the location where Plaintiff was arrested. Hill contends that when he arrived at the scene with Officer Kelly, Sergeant Peters asked him to identify Plaintiff and advised him that Plaintiff was in the back of a police car. Hill states that he walked to the police car operated by Feldhaus and Moskow and identified Plaintiff. Feldhaus and Moskow state that they never saw Hill approach the car.

  Ritz asserts that he stayed at the location of the payphone until uniformed officers arrived and reported the arrest. He states that he then drove Hill's vehicle to the scene and remained in the vehicle while he identified Plaintiff. He contends he did not exit the vehicle at any time while Plaintiff was handcuffed.

  Plaintiff, who stands 5'11", states that the man who punched him was taller than he. According to a Schenectady Police Department Personal Information Sheet, Ritz is 5'8" tall. Hill states that he is 5'10" tall, however at a deposition held in a previous action, he testified that he was 6' tall. At the time Plaintiff was punched, he was not walking at his full height, but was "bent over" from the handcuffs connecting his wrists from the rear.

  At approximately 5:06 a.m., Feldhaus and Moskow left with Plaintiff in custody. Paramedics with the Schenectady Fire Department arrived at the police station to treat Plaintiff's injuries at 6:37 a.m. At 4:10 p.m., after he had been released from custody, Plaintiff received treatment for his injuries at the hospital. His medical records indicate that he suffered a "nasal fracture with deformity and obstruction." Plaintiff also complained of a chipped lower front tooth and wrist pain.

  Plaintiff was eventually charged by Defendant Robert W. Glasser ("Glasser"), a detective with the Schenectady City Police Department, for violating New York Penal Law § 120.20, reckless endangerment in the second degree, for attempting to assault Hill and Ritz with a handgun. The matter was adjourned in contemplation of dismissal pursuant to N.Y. CRIM. PROC. § 170.55 (McKinney 2004).

  Plaintiff commenced the instant action contending that Defendants violated his constitutional rights under the Fourth and Fourteenth Amendments and that he was subject to excessive force, false arrest, unlawful imprisonment, malicious abuse of process, denial of prompt medical care, and assault and battery. Defendants now move to dismiss the Complaint in its entirety pursuant to FED. R. CIV. P. 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). IV. DISCUSSION

  a. False Arrest, Unlawful Search and Seizure, Malicious Abuse of Process, and Unlawful Imprisonment

  Plaintiff asserts claims for false arrest, unlawful search and seizure, malicious abuse of process, and unlawful imprisonment. The existence of probable cause is a complete defense to each of these claims. See Weyant v. Okst, 101 F.3d 845, 852-53 (2d Cir. 1996) (false arrest under New York State and federal law, unlawful search and seizure, unlawful imprisonment); Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (malicious abuse of process); Berman v. Silver, Forrester, & Schisano, 156 A.D.2d 624, 625 (2d Dep't 1989).

  Whether probable cause exists is based upon the totality of the circumstances. Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996) (citing Illinois v. Gates, 462 U.S. 213, 231-33 (1983)). It exists when an officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Provost v. City of Newburgh, 262 F.3d 146, 157 (2d Cir. 2001). "It is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting Miroslavsky v. AES Eng'g Soc'y, 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd 993 F.2d 1534 (2d Cir. 1993)). Probable cause can also exist "even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (N.Y. 1983)). In the present case, Hill and Ritz had probable cause to believe that Plaintiff committed a crime. As they were leaving the parking lot at the bar, bar owner Michael Parisi ran towards them and reported that a gunshot had been fired from a passing vehicle. Parisi identified Plaintiff's vehicle as the source of the gunshot. Plaintiff contends that Schon threw a billiard ball from Plaintiff's vehicle, and that Parisi mistook the sound of the ball striking an outside wall of ...

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