The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Debra Ostroski brought this action, alleging claims for violation of her civil rights under 42 U.S.C. § 1983 and pendent claims under state law. Defendants move for summary judgment on all claims. For the reasons stated below, summary judgment is granted for all claims other than plaintiff's claims against the individual officer defendants for malicious prosecution and excessive force under § 1983, and malicious prosecution, assault, and battery under New York law. Because the Court grants summary judgment for the Town of Southold, dismissing plaintiff's claim for municipal liability under § 1983, the Town of Southold is dismissed as a party from this lawsuit.
The following facts are undisputed unless otherwise indicated. On May 15, 1997, Florence Ostroski called 911 regarding a domestic dispute at her residence between her children, Debra Ostroski, plaintiff, and Butch Ostroski, plaintiff's brother. (See Plaintiff's Rule 56.1 Statement of Material Facts ("56.1 Statement"), ¶ 5.) During the call, Florence Ostroski told the 911 operator that plaintiff and her brother were going to retrieve weapons, a gun and a knife, that were located on the premises. (See Declaration of Michael P. Biancanello ("Biancanello Aff."), Ex. D; see also Plaintiff's 56.1 Statement, ¶ 6; see also Defendants' 56.1 Statement, ¶ 4.) After receiving the call, the Town of Southold police department dispatched officers to the Ostroski residence. (See Plaintiff's 56.1 Statement, ¶ 5.) A number of officers arrived at the scene, including defendants Vincent Tirelli, Kevin Lynch, Richard Perkins, Ted Beebe and Joseph Conway, Jr.
The events which occurred after the officers arrived at the scene are largely disputed. According to the police report and the testimony of several officers at the plaintiff's subsequent criminal trial, discussed infra, Florence Ostroski specifically requested that the officers remove the shotgun that was located in plaintiff's bedroom. (See Defendants' 56.1 Statement, ¶ 4; see also Biancanello Aff., Exs. E, G at vol. 1., p. 150, 172; vol. 2, p. 38.) Officer Tirelli testified that when he and Officer Perkins attempted to go upstairs and retrieve the guns, plaintiff blocked their path and informed the officers that they were not going to take the guns. (See id., Ex. G at vol. 1, pp. 151-52.) Tirelli and Sergeant Lynch both testified that plaintiff initiated physical contact with Tirelli and Perkins, and then informed plaintiff that she was under arrest. (See id., Ex. G at vol. 1, pp. 152, 213-14; vol. 2, pp. 92-93.) The officers then struggled to subdue plaintiff to the ground, and finally handcuffed her. (See id., Ex. G at vol 2., p. 94.) The officers placed plaintiff in the back seat of the patrol car, and she subsequently kicked out the rear window of the vehicle. (See Plaintiff's 56.1 Statement, ¶ 10.)
According to plaintiff's account of the events, after the officers arrived at the scene, they began to engage in a heated verbal exchange, and plaintiff called one of the officers a "pig." (See Biancanello Aff., Ex. G., at vol. 3, p. 92.) After the police officers informed her that they were going to remove the guns, she protested the fact that they did not have a warrant. (See id.) According to plaintiff, Lynch replied, "I am the Search Warrant." (Id.) Both plaintiff and her mother testified that the officers then initiated physical contact. (See id., Ex. G at vol. 2, pp. 139-40; vol. 3, p. 93.) Further, they testified that, after the officers had successfully handcuffed and subdued plaintiff and she was not showing any resistance, the officers kicked her, kneed her in the back, punched her in the back of the head and twisted her neck. (See id., Ex. G. at vol. 2, pp. 141-43; vol. 3, pp. 92-94.) Finally, plaintiff testified that the officers dragged her to the patrol car, and they sealed her inside, with the car's heating system on full blast, which caused her to experience breathing problems. (See id., Ex. G at vol. 3, pp. 94-95.) She requested that the officers turn off the heat, but the officers stood and laughed. (See id., Ex. G at vol. 3, p. 95.) Plaintiff then kicked out the patrol car's rear window, and the officers subsequently shackled her legs. (See id., Ex. G at vol. 3, pp. 95-96.)
As a result of this incident, plaintiff was charged with resisting arrest (N.Y. Penal Law § 205.30), obstruction of governmental administration (N.Y. Penal Law § 195.05), second degree harassment (N.Y. Penal Law § 240.26), and fourth degree criminal mischief (N.Y. Penal Law § 145.00). Plaintiff faced a jury trial for these charges, and was convicted on November 19, 2002, of the charges of fourth degree criminal mischief and second degree harassment and acquitted of resisting arrest and obstruction of governmental administration. (See Biancanello Aff., Ex. F.)
On March 1, 2006, the Supreme Court, Appellate Term, affirmed plaintiff's conviction for second degree harassment. See People v. Ostroski, 2006 WL 543067, at *1 (N.Y. Sup. App. Term. Mar. 1, 2006). Plaintiff did not appeal her conviction for fourth degree criminal mischief. See id.
Prior to her criminal trial, plaintiff filed the instant civil rights action, pursuant to 42 U.S.C. § 1983, with accompanying state law tort claims, seeking damages against the Town of Southold, as well as the officers that were involved in her arrest. Specifically, plaintiff alleges § 1983 causes of actions against the defendant officers arising under the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution, including claims for false arrest, false imprisonment, malicious prosecution, abuse of process, and violation of plaintiff's right to equal protection under the law. (See Compl. ¶¶ 1, 2, 31.) Plaintiff has also raised a § 1983 claim for municipal liability against defendant Town of Southold. (See id., ¶ 35.) Plaintiff's state law claims include assault and battery, false arrest, false imprisonment, malicious prosecution and abuse of process. (See id., ¶¶ 1, 2.) In the instant motion, defendants move for summary judgment on all of plaintiff's claims.
Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty America v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (citation omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (stating that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
A. Procedural Default Issues
Both parties contend that they are entitled to prevail on the instant motion for summary judgment, based upon an argument that their adversary failed to comply with necessary procedural requirements involved in summary judgment motion practice. Specifically, plaintiff asserts that defendants failed to comply with Local Rule 56.1 in failing to initially include a separate statement of undisputed material facts with numbered paragraphs, and defendants aver that plaintiff failed to comply with Fed. R. Civ. P. 56(e) by failing to attach to its opposition an affirmation of an individual with personal knowledge of the facts that are relevant to this dispute, to demonstrate that admissible evidence exists that depicts disputed issues of material fact. The Court entertains each party's assertion that the other side committed procedural default with regards to the instant motion in turn. 1. Compliance with Local Civil Rule 56.1 Plaintiff argues that defendants' motion for summary judgment should be summarily denied, predicated upon a failure to adhere to the requirements of Local Civil Rule 56.1. According to the relevant part of the Rule, which is applicable in United States District Courts for the Eastern and Southern Districts of New York:
Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends that there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
Local Civil Rule 56.1(a). Specifically, plaintiff decries the fact that defendants did not attach to his notice of motion a separate statement, including a numbered list of material facts for which they contend that there is no genuine issue to be tried. Shortly after plaintiff raised this issue in her own statement pursuant to Local Civil Rule 56.1, defendants submitted a separate statement that complied with the requirements of Local Civil Rule 56.1(a).
"A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., Inc., 258 F.3d 63, 73 (2d Cir. 2001) (citations omitted); see, e.g., Gilani v. GNOC Corp., No. 04-CV-2935 (ILG), 2006 WL 1120602, at *2 (E.D.N.Y. Apr. 26, 2006) (exercising court's discretion to overlook the parties' failure to submit statements pursuant to Local Civil Rule 56.1). In exercise of this broad discretion, the Court refrains from denying defendants' motion based upon this technical failure to adhere with Local Civil Rule 56.1 because defendants promptly cured the error once it was brought to their attention, and plaintiffs have not alleged that they suffered any prejudice from the initial defect. Cf. Frooks v. Town of Cortlandt, 997 F. Supp. 438, 445 n.1 (S.D.N.Y. 1998) ("Rule 56.1 does not prohibit the consideration of untimely statements, particularly where the admission of the statement will not prejudice an opposing party.") (internal citations omitted); see also Thaler v. Casella, 960 F. Supp. 691, 697 (S.D.N.Y. 1997) (excusing technical deficiency of party's submission where moving party failed to submit required statement together with initial moving papers, but subsequently submitted statement with their reply papers). Finally, even if defendants had not submitted the supplemental statement, the relevant facts were readily apparent from the facts section of the memorandum of law, and so plaintiff could not have been prejudiced. Cf. Photopaint Technologies, LLC v. Smartlens Corp., 335 F.3d 152, 156 n.2 (2d Cir. 2003) (noting that failure to comply with Local Civil Rule 56.1 was excused since the relevant facts were apparent from the parties' submissions and there was no evidence of prejudice from the defect); Williams v. R.H. Donnelley, Inc., 199 F. Supp. 2d 172, 174 n.1 (S.D.N.Y. 2002) (excusing failure to submit statement pursuant to Local Civil Rule 56.1 where the facts were set forth in the party's memorandum of law, to the extent that the other requirements of the rule were also met).
2. Compliance with Fed. R. Civ. P. 56(e)
Defendants argue that plaintiff's opposition papers are insufficient because they are not accompanied by exhibits and admissible evidence which demonstrate the existence of a disputed issue of material fact, pursuant to Fed. R. Civ. P. 56(e).
Rule 56(e) establishes the forms of evidence that may be used in favor or opposition to a motion for summary judgment, specifically providing that:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, ...