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Tassel v. County of Columbia

September 21, 2006

DONNA J. VAN TASSEL, PLAINTIFF,
v.
COUNTY OF COLUMBIA ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

On February 9, 2006, defendants Shook, Shufelt, Cordato, Columbia County and Columbia County Sheriff's Department filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12. For the reasons that follow, the motion is granted in part and denied in part.

II. Background

Donna J.Van Tassel filed this lawsuit alleging violations of her constitutional rights by various defendants pursuant to 42 U.S.C. § 1983 and supplement state claims.*fn1 The original response on this motion was due on March 6. Dkt. No. 19. On March 3, Van tassel requested more time to respond to the motion. Dkt. No. 25. On March 8, the court permitted Van Tassel time to obtain representation until April 10 and extended the time to respond until May 10. See Min. Entry dated 03/08/06. On May 17, this court ordered Van Tassel to explain why she failed to file a response. Dkt. No. 37. On May 31, 2006*fn2 , Van Tassel filed a letter requesting more time to file her response. Dkt. No. 38. On June 26, Van Tassel again asked for more time to file a response. Dkt. No. 41. To date, the court has not received a response from Van Tassel. Regardless, the court will resolve the motion to dismiss without the benefit of Van Tassel's response.

III. Facts*fn3

On March 29, 2004, Van Tassel contends that while she was innocently at the Columbia County Courthouse as a spectator, Deputy Sheriff Cordato used excessive force when removing her from the building. See Am. Compl. ¶86-91.

On April 20, 2004, Van Tassel claims that her Fourth Amendments rights were violated when Deputy Shufelt falsely arrested her and used excessive force, and permitted a private actor, Hotaling, to illegally search her home. Am. Compl. ¶ 61-85. According to Van Tassel, those events occurred in response to an order issued by Columbia County Family Court Judge Nichols who is not a defendant. Van Tassel further asserts that Columbia County had a "municipal policy" of "supporting" Hotaling. See Am. Compl. § 114. On April 21, 2004, Van Tassel filed a notice of claim with the county. See Am. Compl. § 57.

IV. Discussion

A. Notice of Claim Requirement

Under New York General Municipal Law, a plaintiff seeking to sue a New York municipality or its employees arising out of alleged state law torts, must file a notice of claim within ninety days after the claim arises and to submit to an examination if one is demanded. N. Y. Gen. Mun. § 50-i(1).*fn4

In this case, defendants contend that Van Tassel's state law claims are barred because she failed to submit to an examination. Moreover, they contend that the claims are also time barred because by the time the complaint was served, the statue of limitations had expired.

As mentioned, Van Tassel never responded to this motion. However, in a letter submitted to the court on May 31, 2006, she indicated that if she missed a hearing it was because her attorney, at the time, told her that there were problems with knowing who was representing the county and the hearing was put off. At this juncture, the court will not dismiss the state claims, since a question of fact remains as to what actually transpired. Moreover, the court will deem her complaint ...


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