Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

CARTER v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

United States District Court, S.D. New York


December 17, 2004.

HAROLD CARTER, Plaintiff,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY; PORT AUTHORITY POLICE DEPARTMENT; ANDREW IADEVAIO, Port Authority Police Officer, Shield No. 322; FRANK VOGRIC, Port Authority Police Officer, Shield No. 2199; CITY OF NEW YORK; PAUL McCORMACK, NYCPO; and UNIDENTIFIED PORT AUTHORITY AND NEW YORK CITY POLICE OFFICERS, Defendants.

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION & ORDER

Plaintiff Harold Carter ("Carter") has brought suit pursuant to 42 U.S.C. § 1983 ("Section 1983") seeking compensatory and punitive damages against the City of New York ("City"), the Port Authority of New York and New Jersey, the Port Authority Police Department (collectively "Port Authority"), New York City Police Officer Paul McCormack ("McCormack"), and Port Authority Police Officers Andrew Iadevaio ("Iadevaio") and Frank Vogric ("Vogric"), in connection with his arrest while on duty as a supervisor for a security firm monitoring the arrivals area for Terminal One at John F. Kennedy International Airport.

Following discovery, the defendants have moved for summary judgment. Those motions, which are unopposed, are granted in part.

  BACKGROUND

  The following facts are undisputed or stated in the light most favorable to the plaintiff unless otherwise noted. On August 11, 2002, Carter was on duty at his job as a supervisor for a security firm monitoring the arrivals area for Terminal One at John F. Kennedy International Airport. That evening, McCormack drove up and parked an unmarked vehicle by the curb in front of the arrivals area at Terminal One, placing a New York City Police Department plaque in the windshield. McCormack asserts that he was there on official police business to pick up visiting Irish dignitaries because he speaks Gaelic. McCormack does not recall, however, whether he had a police radio with him, whether he had any weapons or any other police gear aside from his badge, and he does not recall who the Irish dignitaries were. According to Iadevaio's deposition, McCormack was in plainclothes. There is no evidence in the record to corroborate the existence of such a visit by foreign dignitaries. Carter states in his deposition that whenever there are visiting diplomats or dignitaries, the security staff of Terminal One are notified in advance, and that there had been no such notification for that evening.

  There is no dispute that Carter approached McCormack's vehicle and informed him that he could not park in the restricted area by the curb. Carter asserts in his deposition that McCormack explained that he was a police officer, that he wanted to pick up his girlfriend, who was buying food at the McDonald's restaurant in Terminal One, and that he wished for Carter to extend him a professional "courtesy" to allow him to park in the restricted area briefly. Carter states that he refused to permit McCormack to park in that location pursuant to his understanding of Terminal One policies, because McCormack was not on official police business. There is no dispute that after a brief conversation between Carter and McCormack, McCormack drove away and parked at a different location outside Terminal One.

  According to the defendants' summary judgment papers, Iadevaio and Vogric, in uniform and in a marked Port Authority police car, drove up beside McCormack's vehicle and made contact with McCormack, causing him to identify himself as a police officer. McCormack states in his deposition that when asked why he had not parked in the restricted passenger pickup area, "I told them that a black security guy basically kicked me out of there. They basically said, follow us in and, you know, we'll get to the bottom of this." Iadevaio acknowledges in his deposition that a crime had not been committed at the point when the officers decided to return to Terminal One to confront Carter. McCormack admits then following the Port Authority officers back to the Terminal One arrivals area. He states that he parked his car behind the Port Authority squad car, one of the officers got out of the Port Authority car, and "came back to my car to ask me if I see the black security guard and I did see him on the sidewalk down by the indented area. I said, that's him over there. I pointed him out to him."

  There is no dispute that Iadevaio then approached and confronted Carter, that a scuffle ensued, that Carter was forced face-down onto the sidewalk, that he sustained injuries to his face and arm, and that he was arrested for disorderly conduct and resisting arrest. There appears to be no dispute that McCormack stayed to observe the scene as Carter was taken down and arrested, although the role Vogric played in using force against Carter is unclear based on the papers submitted to this Court. According to the deposition of McCormack, however, both of the Port Authority officers were at one point on the ground handcuffing Carter. How the scuffle between Iadevaio and Carter began is a source of dispute. Iadevaio claims that he calmly approached Carter to ask him why he had not extended a courtesy to McCormack, and that Carter began screaming and pointing at Iadevaio the moment Iadevaio began approaching him. He claims that Carter continued to scream, which "caused a crowd to gather, public alarm," which led Iadevaio to the conclusion that he would arrest Carter for disorderly conduct. He also claims that he asked Carter for identification, which Carter refused to give, and that Carter then struck Iadevaio's hand and grabbed onto it, leading Iadevaio to force Carter to the ground. Vogric states that he took the names of two witnesses, but did not gather any witness statements other than the statement of McCormack.

  Carter claims that Iadevaio approached in an aggressive and intimidating manner and began to question Carter about why he refused to allow McCormack to park in the restricted area. Carter stated in his deposition that he explained his understanding of Terminal One parking policies, and that McCormack should not have been permitted to park there. He states that Iadevaio responded by stating, "Well, ha, ha, ha, what did you think would happen if you tried to call me to remove the vehicle?" Carter states that he responded: "I don't know what you would do, I just know what my responsibilities are." Carter believes Iadevaio responded: "Well, I don't think you know your job." Carter states that he replied: "I think I know what my procedures and my job is, but I think you're unaware of exactly what your position is." At this point, Carter states that the conversation became heated, and that Iadevaio grabbed Carter's tie, initiating contact with Carter, and that Carter attempted to push Iadevaio's hand away. At this point, Carter claims that Iadevaio threw him to the ground and arrested him. Carter states that he was wearing his identification badge on a chain around his neck, face-out, so that it would have been unnecessary for Iadevaio to ask for his identification. He states that this chain was broken when Iadevaio grabbed his tie and Carter attempted to push his hand away.

  There is no dispute that Carter was detained for a number of hours by the Port Authority at Kennedy Airport, and was released at approximately 5:00 a.m. Iadevaio signed the criminal court complaint against Carter, and Vogric signed the corroborating affidavit to the criminal court complaint. McCormack signed a witness statement regarding his observations of the incident. There is no dispute that Carter was forced to make a number of court appearances with regard to the criminal charges that were brought against him. Ultimately, however, on May 2, 2003, all criminal charges against Carter were dismissed. On June 6, 2003, Carter filed a Notice of Claim with the Comptroller's Office of the City, alleging unlawful arrest, seizure, search, and imprisonment, violations of his New York and Federal constitutional rights, assault, libel, slander, negligence, reckless conduct, malicious prosecution, and discrimination. On November 5, 2003, Carter filed the civil complaint that initiated this lawsuit.

  The Complaint contains six causes of action. First, the Complaint alleges Section 1983 violations against McCormack, Iadevaio, and Vogric, including false arrest, unlawful imprisonment, malicious prosecution, and assault as deprivations of Carter's Fourth and Fourteenth Amendment rights under the United States Constitution. Second, the Complaint alleges New York state law intentional tort claims against McCormack, Iadevaio, and Vogric, including false arrest and imprisonment, libel and slander, malicious prosecution, intentional infliction of emotional distress, and invasion of privacy. Third, the Complaint alleges negligent and reckless hiring claims against the City and Port Authority. Fourth, the Complaint alleges negligent and reckless training claims against the City and Port Authority. Fifth, the Complaint alleges state law negligence claims against McCormack, Iadevaio, and Vogric, including negligent and reckless performance of police duties. Sixth, the Complaint alleges claims against the City and Port Authority based on a policy and pattern of deliberate indifference to violations of constitutional rights by police officers.

  Defendants filed motions for summary judgment on October 1, 2004. Plaintiff's opposition to the motion was due on October 22, 2004, but was never filed. As a consequence, the assertions of fact in the defendants' Local Rule 56.1 Statements are taken as true and uncontroverted to the extent they are supported by admissible evidence.

  DISCUSSION

  Legal Standard for Summary Judgment

  Summary judgment may not be granted unless all of the submissions to the Court taken together "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." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).

  State Law Tort Claims

  The defendants move to dismiss the state law claims on the ground that they are barred by the statute of limitations. New York State law applies a one-year statute of limitations to intentional torts:

The following actions shall be commenced within one year:
. . .
3. an action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, or a violation of the right of privacy under section fifty-one of the civil rights law. . . .
CPLR § 215. This statute also applies to claims for intentional infliction of emotional distress in the context of an alleged false arrest. See Parker v. Port Auth. of New York and New Jersey, 493 N.Y.S.2d 355, 358 (2d Dept. 1985). The statute has also been held to apply to claims of abuse of process and malicious prosecution, although courts have suggested that the time limit could run from the termination of the malicious prosecution, not its initiation. See Beninati v. Nicotra, 657 N.Y.S.2d 414, 415 (1st Dept. 1997).

  New York statutes also contain a special one-year statute of limitations provision for the Port Authority. Section 7101 of the Unconsolidated Laws provides consent to lawsuits against the Port Authority, and Section 7107 states:

The foregoing consent is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and . . . that . . . a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff . . . at least sixty days before such suit, action or proceeding is commenced.
McKinney's Unconsolidated Laws of New York § 7107 (emphasis supplied). New York's General Municipal Laws provide special notice of claim and statute of limitations requirements for personal injury lawsuits against municipalities. Section 50-i states:
No action or special proceeding shall be prosecuted or maintained against a city . . . for personal injury . . . alleged to have been sustained by reason of the negligence or wrongful act of such city . . . or of any officer, agent or employee thereof, . . . unless, (a) a notice of claim shall have been made and served upon the city . . . in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint . . . that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused, and (c) the action . . . shall be commenced within one year and ninety days after the [claim arises]. . . .
McKinney's Consolidated Laws of New York, General Municipal Law § 50-i(1) (emphasis supplied). In addition, Section 50-i states that "[t]his section shall be applicable notwithstanding any inconsistent provisions of law, general, special or local." McKinney's Consolidated Laws of New York, General Municipal Law § 50-i(2). Section 50-e states:
In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, . . . or any officer, appointee or employee thereof, the notice of claim shall . . . be served . . . within ninety days after the claim arises
McKinney's Consolidated Laws of New York, General Municipal Law § 50-e(1) (a) (emphasis supplied).

  Carter's arrest took place on August 11, 2002. Criminal charges against Carter were dismissed on May 2, 2003. Carter filed a notice of claim with both the City and Port Authority on June 6, 2003. Carter filed this action on November 5, 2003.

  To the extent that the Complaint alleges intentional tort claims based on New York state law against McCormack, Iadevaio, and Vogric in the second cause of action, and state law negligence claims against McCormack, Iadevaio, and Vogric in the fifth cause of action, as well as state law negligent hiring, training, and policy of deliberate indifference claims against the City and Port Authority in causes of action three, four, and six, those claims that stem directly from the physical confrontation between the officers and Carter, or the immediate filing of the criminal charges against Carter, are barred by the ninety day notice of claim requirement in General Municipal Law § 50-e(1)(a). This includes claims based on false arrest and imprisonment, intentional infliction of emotional distress, invasion of privacy, and libel and slander. The only exception is that Carter's claims based on malicious prosecution survive, because such a claim would survive until the termination of the prosecution on May 2, 2003.

  Claims Against the City and Port Authority

  A municipality may not be held liable under 42 U.S.C. § 1983 based on alleged unconstitutional actions by non-policymaking employees solely on the basis of a respondeat superior theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). In order to establish municipal liability, "a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy." DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (citation omitted). Although this rule "does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation, a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." Id. (citation omitted). The Port Authority, although technically a bi-state agency and not a municipality, is treated as a municipality when courts are analyzing claims "against it under the standards governing municipal liability under Section 1983." Mack v. Port Auth. of New York and New Jersey, 225 F. Supp. 2d 376, 382 n. 7 (S.D.N.Y. 2002) (collecting cases).

  Under New York State law, an employer will be liable to an injured party for negligent hiring based on the tort of an employee when the employer has either "hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm." Borden v. Capital Dist. Transp. Auth., 763 N.Y.S.2d 860, 862 (3d Dept. 2003) (citation omitted). In a negligent training claim, the plaintiff must demonstrate deficiencies in the training of employees that, if corrected, could have avoided the alleged harm. See, e.g., Barr v. Albany County, 428 N.Y.S.2d 665, 671 (1980).

  In the third, fourth, and sixth causes of action in the Complaint, it alleges negligent and reckless hiring claims, negligent and reckless training claims, and claims based on a policy and pattern of deliberate indifference to violations of constitutional rights by police officers, against the City and Port Authority. To the extent that these claims are brought pursuant to Section 1983, the plaintiff has demonstrated no evidence of any policy or custom leading to the alleged assault by the officers in question. To the extent that these claims are brought pursuant to New York State law, the plaintiff has offered no evidence pertaining to the hiring or training policies of the New York City Police Department or the Port Authority Police Department. Therefore, the plaintiff cannot prevail as a matter of law on these causes of action.

  Section 1983 Claims Against the Individual Officers

  To prevail on a claim under Section 1983, Title 42, United States Code, a plaintiff must demonstrate "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004). A private party may incur liability for his conduct when he is "a willful participant in joint activity with the State or its agents." Brentwood Academy v. Tenn. Secondary School Athletic Ass'n, 531 U.S. 288, 296 (2001) (citation omitted). To establish a Section 1983 claim based on false arrest, "a plaintiff must show that the defendant intentionally confined him without his consent and without justification." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (citation omitted). A claim for false arrest is a type of claim for false imprisonment. Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996).*fn1 A claim for false arrest or false imprisonment fails when the arresting officer had probable cause to make the arrest. Escalera, 361 F.3d at 743 (false arrest); see also Boyd v. City of New York, 336 F.3d 72, 76 & n. 6 (2d Cir. 2003) (false arrest and false imprisonment).

  "Probable cause to arrest exists when the arresting 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." Escalera, 361 F.3d at 743 (citation omitted). The existence of probable cause is measured as of the moment of arrest, and is therefore not affected by a later acquittal. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).

  Police officers' use of force may be found excessive, in violation of the Fourth Amendment, "if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (citation omitted). This determination requires analysis of circumstances specific to the arrest, including "the severity of the crime at issue, whether the subject poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2003) (citation omitted).

  In the first cause of action, the Complaint alleges Section 1983 violations against McCormack, Iadevaio, and Vogric, including false arrest, unlawful imprisonment, malicious prosecution, and excessive use of force, as deprivations of Carter's Fourth and Fourteenth Amendment rights under the United States Constitution. The malicious prosecution claims are dealt with in a separate section below. Defendants contend that Carter's claims for false arrest and malicious prosecution are defeated by the existence of probable cause for Carter's arrest. Defendants are wrong. There is a material issue of fact as to whether defendants had probable cause to arrest Carter.

  When defendants Iadevaio and Vogric initially made contact with Carter, they did not believe Carter had, or was, committing a crime. Given this admission, the issue becomes whether Carter or Iadevaio and Vogric are responsible for the physical confrontation that followed, and whether the officers had probable cause for Carter's arrest. Given that there is conflicting evidence, summary judgment on these issues must be denied. McCormack argues that he was not personally involved in Carter's arrest, prosecution, or alleged assault, and that therefore, he cannot, as a matter of law, be held liable for a Section 1983 violation. A jury could conclude that McCormack was aware that Iadevaio and Vogric intended to harass, provoke, and then arrest Carter on some pretext, and led Iadevaio and Carter back to Terminal One for that specific purpose. If so, McCormack would be personally involved in a Section 1983 violation.

  For similar reasons, McCormack's argument that he was not acting "under color of state law" for the purposes of a Section 1983 violation, because he did not make physical contact with Carter when Iadevaio and Vogric returned to confront Carter, must also be rejected. A jury could infer that McCormack acted in concert with Iadevaio and Vogric to ensure that Carter was improperly arrested. This would satisfy the "under color of state law" requirement of Section 1983.

  McCormack also argues that he is immune from liability under the doctrine of qualified immunity, because his actions did not violate any "clearly established" constitutional rights. "Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were clearly established at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002) (citation omitted). The first step in a qualified immunity analysis is to "determine whether the plaintiff? ha[s] alleged a violation of a constitutional right." African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002); see also Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). The second step is to "determine whether the right was clearly established at the time of the alleged violation." African Trade, 294 F.3d at 359. Thus "a qualified immunity defense is established when . . . the defendant's action did not violate clearly established law." Poe, 282 F.3d at 133 (citation omitted). Because it was clearly established at the time of the alleged conduct that working in concert with other law enforcement officers to effect an unlawful arrest and detention violates the subject's constitutional rights, the defense of qualified immunity is not available for McCormack.

  With regard to Carter's excessive force claim against Iadevaio and Vogric, this claim must also be submitted to a jury. The jury will be asked to determine whether Carter posed "an immediate threat to the safety of the officers or others" and whether he was actively resisting a lawful arrest, as well as the extent of the force used by the officers, in order to determine whether the force used by the officers was excessive or not.

  Malicious Prosecution Claims

  Malicious prosecution claims may be brought pursuant to New York common law, or as a Section 1983 claim. The common law tort of malicious prosecution under New York State law requires proof of four elements: (1) the initiation or continuation of criminal process against the plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) the lack of probable cause for commencing the proceeding; and (4) actual malice as the motivation for the defendant's actions. Rounseville v. Dahl, 13 F.3d 625, 628 (2d Cir. 1995). For a police officer to be held responsible for malicious prosecution, his role must be to cause the initiation of criminal process against the plaintiff. See, e.g., Sykes v. James, 13 F.3d 515, 520 (2d Cir. 1993). For the termination of the proceeding to be in the plaintiff's favor, the plaintiff must merely show a termination of the proceeding that is "not inconsistent with innocence." Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir. 2004).

  A malicious prosecution claim brought pursuant to Section 1983 requires the plaintiff to allege and prove the same elements as the state law claim, and, as an additional element of his claim, "some post-arraignment deprivation of liberty that rises to the level of a Constitutional violation." Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995). Being compelled to attend criminal proceedings suffices as a post-arraignment deprivation of liberty. Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003).

  Here, it is clear that the defendants Iadevaio and Vogric initiated and continued criminal process against Carter by swearing out the complaining and corroborating affidavits to initiate the case and being available as witnesses to continue the case. There is no dispute, however, that the witness statement that McCormack filled out in connection with Carter's arrest was not one of the required documents to initiate criminal process against Carter. Therefore, an action against McCormack for malicious prosecution cannot be sustained because a jury could not conclude that McCormack was responsible for the initiation or continuation of criminal process against the plaintiff.

  It is a question for the jury as to whether Iadevaio and Vogric engaged in malicious prosecution. A jury could find that the defendants lacked probable cause for commencing the proceeding and acted with malice. Therefore, Carter's malicious prosecution claims against Iadevaio and Vogric survive the defendants' motions for summary judgment.

  Punitive Damages

  "Punitive damages may be awarded for violations of federal law where a defendant acts with reckless or callous disregard for the plaintiff's rights, and intentionally violates federal law." Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 909 (2d Cir. 1993) (citation omitted). The Port Authority defendants contend that there is insufficient evidence to support a finding that Iadevaio or Vogric intended to violate federal law, or operated with reckless or callous disregard for the plaintiff's rights. This claim goes to the heart of the dispute between Carter and the defendants: whether the defendants intended to harass, provoke, or physically attack Carter as a form of retribution for there is sufficient evidence to support a finding that the defendants possessed such an intent when they made contact with Carter, the question of punitive damages is one for the jury to resolve.

  CONCLUSION

  For the reasons stated above, the defendants' motions for summary judgment are granted as to all state law claims, except for the claims of malicious prosecution against Iadevaio and Vogric. All claims against the City and Port Authority are dismissed. The Section 1983 claim against McCormack for malicious prosecution is dismissed. The Section 1983 claims based on false arrest and unlawful imprisonment against McCormack, Iadevaio, and Vogric, based on excessive use of force and malicious prosecution against Iadevaio and Vogric, and for punitive damages, will proceed to trial.

  SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.