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ALLAN v. CITY OF NEW YORK

September 12, 2005.

SAMANTHA ALLAN, Plaintiff,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE OFFICER EDWIN NIEVES, NEW YORK CITY POLICE OFFICER JOHN DOE, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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 service.

Prior Proceedings

  Allan filed her complaint on August 19, 2003 pursuant to 42 U.S.C. ยง 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

  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 prosecution.

  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 Plaza.

  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 ...


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