The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants the City of New York (the "City"), the New York City
Police Department ("NYPD"), New York City Police Officers Edwin
Nieves ("Nieves") and John Doe have moved under Rule 56,
Fed.R.Civ.P., to dismiss the complaint of plaintiff Samantha Allan
("Allan"). For the reasons set forth below, the motion is granted
in part and denied in part. Furthermore, the Court, on its own
initiative, dismisses the complaint as to Nieves for failure of
Allan filed her complaint on August 19, 2003 pursuant to
42 U.S.C. § 1983,*fn1 claiming, inter alia, that she was
falsely arrested in violation of her constitutional rights under
the First and Fourteenth Amendments and tortious interference
with her business under the First Amendment. The action was reassigned to this Court on April 26, 2004.
Discovery proceeded, the pretrial order was submitted on December
13, 2004, and the instant motion was heard and marked fully
submitted on April 27, 2005.
The facts are set forth in the City's Statement pursuant to
Local Civil Rule 56.1. Allan has submitted no Local Civil Rule
56.1(b) Statement in opposition. However, she has submitted
rather an affidavit of her counsel. For the purposes of this
motion, the City has not contested Allan's version of the facts.
The facts have been set forth as follows.
On February 15, 2003, Allan came to New York City from Boston
to take photographs at an anti-war protest. At the protest, she
shot some twenty rolls of film (approximately 672 photographs).
At some point, she was arrested with a group of protesters,
handcuffed, and put inside a police truck. She retained her
camera and photographic equipment. While inside the van, she
suffered an asthma attack. She was able to retrieve her asthma
medication. Within ten minutes of the onset of her asthma attack,
Allan states that an ambulance came to aid her. After refusing to
go to the hospital, she was transferred to a bus, and taken to
the precinct, where she was held overnight and released. She was
able to take photographs while at the precinct. All of her personal property
was returned to her.
According to Allan, she was advised at the protest that her
actions were permitted. At some point during the protest, a
Captain Martinez gave an order to Sergeant McGovern of the 7th
Precinct to have police officers, including Nieves, each make
five arrests. Allan was arrested and prosecuted by the District
Attorney of New York upon a complaint filed by Nieves. The case
against Allan was dismissed on July 9, 2003. The District
Attorney conceding that there was insufficient evidence to prove
Allan's guilt beyond a reasonable doubt.
Allan filed a notice of claim on April 25, 2003, claiming false
arrest, denial of medical attention and damage to personal
property by members of the NYPD, and malicious prosecution by the
NYPD and the Manhattan District Attorney's Office. On June 20,
2003, Allan's examination for purposes of Section 50-h of the General Municipal Law*fn2 was scheduled. However, she
requested that such examination be adjourned.
After Allan requested the adjournment of the 50-h hearing, she
filed the instant lawsuit on August 19, 2003. The 50-h hearing
was held on August 20, 2003.
At the conclusion of discovery, after taking the deposition of
Nieves, Allan narrowed her claims to: (1) violations of her
rights under the First Amendment (including tortious interference
with her business), (2) false arrest, and (3) malicious
Allan has submitted an affidavit of service indicating service
upon Nieves at One Police Plaza on or about August 22, 2003. The
place of business of Nieves is at the local precinct, the 7th
Precinct. No proof has been offered that Allan served Officer
Nieves by mail. According to Allan, her process server was told at the 7th Precinct to make service on Nieves at One Police
Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329,
338 (2d Cir. 2004). The court will not try issues of fact on a
motion for summary judgment, but, rather, will determine "whether
the evidence presents a sufficient disagreement to require
submission to a jury or ...