The opinion of the court was delivered by: Mark D. Fox, United States Magistrate Judge
Plaintiff Queen Hamlett brought this action, pursuant to 42 U.S.C. § 1983 and New York state law, seeking to recover damages for injuries allegedly sustained during an encounter with police officers for the Town of Greenburgh (the "Town"). Plaintiff asserted claims of false arrest and excessive force under § 1983 and pendent claims of negligence; assault; battery; false arrest; and negligent hiring, screening, retention, supervision and training under New York State law. She also asserted a claim against the Town pursuant to Monell v. Dep't of Social Svcs., 436 U.S. 658 (1978), and a conspiracy claim. The matter is before me on consent of all parties, pursuant to 28 U.S.C. § 636(c).
In October 2006, the parties consented to the dismissal of Plaintiff's claims against defendants Fertig, Kapica, DeCarlo, and Malfetano. The remaining defendants, the Town and Police Officer Massett (the "Defendants"), have moved for summary judgment on all of Plaintiff's claims. On December 19, 2006, this Court rendered an oral decision on the record, denying the Defendants' motion as to Plaintiff's § 1983 false arrest claim and her state law assault and false arrest claims against Massett and granting the motion as to all of the remaining claims. Upon consent of counsel for all parties, the Court's oral decision is withdrawn, and this decision is substituted.
On April 17, 2004, Plaintiff was shopping in the Dress Barn store located on Route 119 in the Town. While Plaintiff was in the store, the store manager called the Town police to report that a group of women was shoplifting in the store. The Town police department sent two plain-clothed police officers, in separate vehicles, to the scene, one of whom was defendant Massett.
Massett took up surveillance. The store manager had continuing telephone conversations with the Town's police dispatcher, who relayed information to the officers by radio. At 6:16 p.m., the manager advised the police dispatcher that only one of the suspected shoplifters was in the store and was about to leave and gave a physical description of Plaintiff.
According to the officers, upon leaving the store and while crossing the parking lot, Plaintiff crossed back and forth, apparently looking for a vehicle and examining various cars. The officers on surveillance thought her conduct was suspicious, as if looking for accomplices. Plaintiff denied such conduct and claims she walked directly across the parking lot and Route 119 to wait at the bus stop.
According to defendant Massett, while Plaintiff was waiting at the bus stop, he observed a bus approaching and became concerned that Plaintiff would board it and leave the scene. He then approached Plaintiff in order to question her. Massett confirms that he was in surveillance clothes and asserts that, upon approaching Plaintiff, he identified himself as a police officer. Plaintiff denies that Massett identified himself as a police officer and maintains that she was frightened. Plaintiff backed away from Massett and did not cooperate with him. She also began to scream and wave her arms.
Within a very brief period of time, apparently less than one minute, Police Officer Malfetano, in uniform, arrived at the scene. Plaintiff continued to resist and was subsequently arrested for disorderly conduct.
After the arrest, it was determined that Plaintiff had not been shoplifting. She had various merchandise in her possession that had come from the Dress Barn, but, apparently, had paid for it. The only charge lodged against her was disorderly conduct.
On June 8, 2004, Plaintiff was acquitted on the disorderly conduct charge after a bench trial in Greenburgh Town Court, on the basis that she lacked the requisite intent to commit the offense. The trial judge concluded that Plaintiff had been frightened when approached by someone who she believed was not a police officer.
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (emphasis in original). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. In order for there to be a genuine issue for trial, there must be sufficient evidence in the record to support a jury verdict in the non-moving party's favor. See id. at 249. When ...