The opinion of the court was delivered by: Seybert, District Judge
Plaintiffs commenced the instant action on September 3, 2004 against the County of Suffolk ("County") and Police Officers Michael A. Crowley ("Crowley") and Brian MacDermott*fn1 ("MacDermott" and, together with "Crowley", the "Defendant Police Officers"). Plaintiffs allege violations of the First, Fourth, Fifth, Sixth and Fourteenth Amendments and the New York State Constitution.
Plaintiffs seek damages pursuant to 42 U.S.C. §1983 for false arrest, excessive force, assault, malicious prosecution and loss of consortium and services. Additionally, Plaintiffs allege corresponding pendent state law claims.
Presently pending before the Court is Defendants' motion for partial summary judgment with respect to the pendent state law claims (other than malicious prosecution) and Plaintiff Thomas Kreutzberg's ("Mr. Kreutzberg") Section 1983 claim for loss of consortium and services. For the reasons explained below, Defendants' motion for partial summary judgment is hereby GRANTED.
The underlying incident that gives rise to this motion is the arrest of Plaintiff Sally Kreutzberg ("Ms. Kreutzberg") on Saturday, June 7, 2003 by Crowley and MacDermott. (Pls.' Mem. of Law 1.) Plaintiffs' attorney sent a certified letter to the Suffolk County Attorney's Office containing a purported notice of claim made in the names of Plaintiffs and their son, Thomas Kreutzberg, which was dated "June __, 2004" (the "Notice of Claim"). (Defs.' Am. R. 56.1 Statement ¶¶ 2-3.) The certified mailing envelope was date stamped June 17, 2004 by the post office, and the contents of the envelope were time stamped received by the Suffolk County Attorney's Office on June 28, 2004, 10:15 a.m. (Id. ¶¶ 3-4, Ex. A & C.) The Notice of Claim was rejected by Defendants' counsel and returned to Plaintiffs' counsel accompanied by a letter dated July 9, 2004. (Id. ¶ 4.) The Notice of Claim was rejected for failure (1) to serve within the ninety-day time limit, (2) to adequately state the place and manner in which the alleged claim arose and (3) to sign, all as required by Section 50-e of the General Municipal Law of the State of New York. (Id. ¶ 4, Ex. C; N.Y. Gen. Mun. Law §50-e.) Subsequently, Plaintiffs' counsel sent a second purported notice of claim, via regular mail, to the Suffolk County Executive, which was a photocopy of the first Notice of Claim with added language about the place and manner in which the alleged claim arose and the signatures of Mr. Merritt and Ms. Kreutzberg (the "Second Notice of Claim"). (Defs.' Am. R. 56.1 Statement ¶¶ 5-6.) The Second Notice of Claim was dated "June 15, 2004"; however, Ms. Kreutzberg's verification of the Second Notice of Claim was notarized by Mr. Merritt on July 15, 2004. (Id. ¶ 6, Ex. E.) The Second Notice of Claim was time stamped received by the Suffolk County Attorney's Office on July 22, 2004, 10:35 a.m., and the envelope in which it was mailed was date stamped July 18, 2004 by the post office. (Id. Exs. D & E.) Once again, Defendants' counsel rejected and returned the Second Notice of Claim, with an accompanying letter dated July 22, 2004, because it was not served personally or by certified mail within the ninety-day time limit. (Id. ¶ 7, Ex. F.)
"Summary judgment is appropriate where there is no genuine dispute concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998)(citing Fed. R. Civ. P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).
"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.
"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). Under the law of the Second Circuit, "when no rational jury could find in favor of the nonmoving party because the evidence is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Indeed, when a motion for summary judgment is made, it is time to "to put up or shut up. . . .
[U]nsupported allegations do not create a material issue of fact." Weinstock, 224 F.3d at 41 (internal citations omitted). It is within this framework that the Court addresses the present summary judgment motion.