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Cotz v. Mastroeni

February 23, 2007

LYDIA COTZ, PLAINTIFF,
v.
DEBRA MASTROENI, INDIVIDUALLY AND AS CLERK OF THE VILLAGE OF MONTEBELLO; SANTOS LUCIANNO, INDIVIDUALLY AND AS INSPECTOR OF ELECTIONS OF THE VILLAGE OF MONTEBELLO; VILLAGE OF MONTEBELLO; F/N/U LAMPERT, INDIVIDUALLY AND AS LIEUTENANT OF THE TOWN OF RAMAPO POLICE DEPARTMENT; TOWN OF RAMAPO; AND BRADLEY WEIDEL, DEFENDANTS



The opinion of the court was delivered by: Conner, Sr. D.J.

OPINION AND ORDER

Plaintiff Lydia B. Cotz, proceeding pro se, brings this action, pursuant to 42 U.S.C. § 1983 and the New York Human Rights Law, against defendants the Village of Montebello (the "Village"), Debra Mastroeni ("Mastroeni"), Santos Luciano ("Luciano"),*fn1 the Town of Ramapo ("Ramapo"), Leslie Lampert ("Lampert")*fn2 and Bradley Weidel ("Weidel")*fn3 (collectively, "defendants") for violations of her federal and state constitutional rights and Title III of the American with Disabilities Act, 42 U.S.C. § 12182 (the "ADA"), as well as for common law claims of slander and assault. Defendants move for summary judgment on all counts. For the reasons that follow, defendants' motions are granted.

BACKGROUND

Viewed in the light most favorable to plaintiff,*fn4 the record reveals the following relevant facts. Plaintiff is an attorney admitted in the State of New Jersey and the United States Court of Appeals for the Third Circuit and has practiced law for more than six years.*fn5 (Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 12-13, 103).) Plaintiff's Complaint, Amended Complaint*fn6 and submissions in opposition to defendants' motion for summary judgment, although confusing at times and consisting of well over one thousand pages, appear to allege seven distinct incidents (or series of incidents) from which plaintiff's various causes of action arise. (See generally Complt.; Am. Complt; Pl. Aff.)

I. The "Late 1993 or 1994" Traffic Stop

The earliest incident of which plaintiff complains occurred in late 1993 or 1994 and involves a traffic stop conducted by Thomas Donnelly ("Donnelly"), a Ramapo police officer. (See Pl. Aff. ¶ 7; Complt. ¶ 16.) Plaintiff alleges that Donnelly, while off-duty, pulled her over while she was driving on Route 59 in Tallman, New York after allegedly observing plaintiff illegally cross a double-yellow line. (See id.) Plaintiff claims that he "forced her into a dark[] parking lot, where he blocked the only exit[,] . . . threatened to arrest [p]laintiff" and ultimately issued her a traffic summons. (See id.) According to plaintiff, "[w]hen [she] told him [that] she was going to report him to his superiors, he laughed and said 'my father-in-law is the chief . . . . You can't touch me.'" (See id.) Although plaintiff thereafter filed a complaint with the Ramapo Police Department, the Department has no record of her complaint, and the traffic summons was never prosecuted.*fn7 (See Pl. Aff. ¶ 7.)

II. Domestic Visitation Disputes

The next series of incidents of which plaintiff complains dates back to the 1980s extending to 1999, and concerns the involvement of the Ramapo Police Department in the domestic disputes between plaintiff and her former husband regarding his visitation with their sons. (See Complt. ¶¶ 9-15.) Plaintiff and James Peikon ("Peikon") were divorced in 1987 (see Pl. Aff., Ex. 10; Complt. ¶ 9), and the Family Court of the State of New York awarded plaintiff sole custody of the children and awarded Peikon visitation with the child on alternate weekends commencing on January 24, 1998. (See M. Burke Aff., Ex. J; Complt. ¶ 9.)

On several occasions, however, plaintiff refused Peikon visitation with their sons when plaintiff did not believe it was in her sons' best interest. (See Pl. Aff. ¶ 11; Complt. ¶¶ 9-15.) On such occasions, Peikon called the Ramapo Police Department to assist him in enforcing the court's visitation order. (See M. Burke Aff., Ex. J; Complt. ¶¶ 9-15.) According to plaintiff, in response to Peikon's calls for police assistance, the Ramapo Police Department "took it upon themselves to interpret and try to enforce the [visitation order of the family court] by attempting to intimidate [p]laintiff into surrendering her children using threats of arrest and jail." (See Complt. ¶ 9.) Specifically, in the summer of 1997, plaintiff and Peikon had frequent disagreements as to the particular weekends during which Peikon had visitation. (See Pl. Aff. ¶ 8.) On one such occasion, Peikon came to plaintiff's house to pick up their sons, and plaintiff refused to allow her sons to leave the house because she believed that Peikon did not have visitation on that particular weekend. (See id.) Peikon called the police for assistance and, according to plaintiff, Donnelly responded and tried to gain entry into plaintiff's home without a warrant or consent. (See id.) Although plaintiff claims that she and her current husband, George J. Cotz ("Cotz"), were able to prevent Donnelly from gaining entry, the record does not indicate whether plaintiff ultimately complied with Donnelly's demands or any other fact relating thereto. (See id.)

Plaintiff also alleges that, on December 27, 1997, she refused to allow her son to go to a Giants football game with Peikon because the weather was bad and the child was not feeling well.*fn8 (See Complt. ¶ 15.) Peikon called the police for assistance, and Mark A. Emma ("Emma"), a police officer of the Ramapo Police Department, responded. (See Pl. Aff. ¶ 9; Complt. ¶ 15.) Plaintiff claims that Emma attempted to gain entry into her home and threatened to arrest plaintiff if she did not allow her son to go with Peikon. (See Pl. Aff. ¶ 9; Complt. ¶ 15; G. Cotz Aff. ¶¶ 3-4.) At the time, plaintiff had just finished showering and was wrapped only in a towel, and Emma threatened to "take her to the station 'just as [she] was.'" (See Pl. Aff. ¶ 9; Complt. ¶ 15; G. Cotz Aff. ¶¶ 3-4.) In fear of arrest, plaintiff acquiesced and allowed her son to leave with Peikon. (G. Cotz Aff. ¶ 4.)

Approximately seven months later, on July 24, 1998, plaintiff called Peikon and informed him that their son was sick and that Peikon's visitation the next day would be cancelled or at least delayed. (See Pl. Aff. ¶ 12; Complt. ¶ 13.) Plaintiff claims that her son had chest pains and that they were waiting to hear back from the child's cardiologist and to receive the results of a chest x-ray. (See Pl. Aff. ¶ 12; Complt. ¶ 13; G. Cotz Aff. ¶ 5.) The next day, however, Peikon went to plaintiff's house and plaintiff refused to allow her son to go with him.*fn9 (See id.) Peikon then drove to the Ramapo police station for police assistance, and he returned with Donnelly, Emma and Officer Byrnes.*fn10 (See id.) According to plaintiff, Donnelly "proceeded to ring the door bells, . . . bang on doors, call at windows and kick doors in an effort to get [p]laintiff to speak to him." (See Complt. ¶ 13; Pl. Aff. ¶ 12.) Plaintiff claims that when she opened the door to her house, Donnelly put his body in the doorway and entered "her premises . . . and refused to leave." (See id.) Plaintiff also claims that the Ramapo Police Department attempted to retrieve the child's medical records from the hospital where he was being treated in an attempt to verify his medical condition.*fn11 (See Pl. Aff. ¶ 12; G. Cotz Aff. ¶ 5.)

Plaintiff alleges that, "[u]pon information and belief, from before 1990 until January 1999, the [Ramapo Police Department] had a policy . . . [or custom] of using the threat of criminal contempt charges, primarily directed at women/mothers, to enforce their interpretation of visitation orders." (See Complt. ¶ 11.) In fact, prior to 1998, the Ramapo Police Department did not have a specific policy regarding its handling of domestic visitation or custodial disputes. (See Specht Affm., Ex. C (Dolan Aff. ¶ 3).) However, on September 9, 1998, in light of the constant police involvement in plaintiff and Peikon's visitation disputes, the Chief of Police issued a memorandum to the Ramapo Police Department in which he stated that plaintiff and her former husband were improperly using "the police as tools in their matrimonial dispute." (See id. (Dolan Aff. ¶ 6); Pl. Aff., Ex. 44.) Accordingly, the memorandum instructed officers to refrain from intervening in their visitation disputes "where no crime other than a violation of a visitation order was alleged[,] but rather[,] take a report and then suggest to the parties that they seek redress from the court that issued the order that was allegedly violated." (See Specht Affm., Ex. C (Dolan Aff. ¶ 3); Pl. Aff., Ex. 44.) The memorandum stated:

Based upon a review of the reports submitted by officers who have had to respond to 49 Mile Road with respect to the domestic situation at this location, it has become clear that the department is being used by both parties to leverage their individual positions.

A court order exists which defines child visitation provisions between Cotz and Peikon. It is usually an allegation of a violation of the agreement which generates police involvement.

Officers responding to a domestic related call involving these persons should refrain from making an arrest based upon an assertion that the visitation order is or was violated. Further, officers should not pursue or engage in activities to evidence any assertion that a violation occurred. As an example, do not enter or even ask to enter a premise to verify that a child is sick or not at home. Each party knows well the stipulations of their court order. If either alleges a violation, simply take the report along with their statements and refer the complainant to Family Court. Arrest is only an option if an officer is acting on a lawful warrant. Even if it is clear that one of the parties is in contempt of a court order, an information should be filed and submitted to the appropriate court.

The "no-arrest" position of the department does not apply if the conduct by either party requires action pursuant to our domestic violence policy, i.e., HADARM offenses. If it is criminal contempt, it gets paper only. (See Pl. Aff., Ex. 44.)

The Ramapo Police Department expanded this policy on January 27, 1999 to apply to domestic visitation and custody disputes of all complainants. (See Specht Affm., Ex. C (Dolan Aff. ¶ 7); Pl. Aff., Ex. 43.) The policy, which is still in effect, instructs an officer "not to make an arrest where the only dispute is whether or not a party violated a visitation or custody order, but to refer the parties back to the court issuing the order after taking each side's statements." (See id.) The policy is designed to avoid excessive entanglement with domestic disputes that a family court can handle more effectively and to help conserve police resources for other matters. (See Specht Affm., Ex. C (Dolan Aff. ¶ 8).)

III. 2001 Strip Search Incident

The next incident of which plaintiff complains occurred in September 2001, shortly after the terrorist attacks on September the 11th. (See Complt. ¶ 29.) Plaintiff and her husband attended a public hearing at the Ramapo Town Hall regarding a proposal to construct a power plant in the town. (See Pl. Aff. ¶ 37; Complt. ¶ 29.) The security at the meeting was more rigorous than usual as a result of the recent terrorist attacks. (See id.) All attendees, including plaintiff and Cotz, were required to enter through a metal detector, which was monitored by two Ramapo police officers, one of which was Officer Kirk Budnick ("Budnick"). (See id.) Plaintiff alleges that when she approached the metal detector, Budnick threatened to strip search her.*fn12 (See Specht Affm., Ex. H (Pl. Dep. at 288); Pl. Aff. ¶ 37.) Plaintiff immediately called Michael Specht, Ramapo Town Attorney and counsel of record in the present action, and plaintiff thereafter entered the building without further incident.*fn13 (See Pl. Rule 56.1 Stmt. ¶ 37; Pl. Aff. ¶ 37; Complt. ¶ 29.)

IV. Plaintiff's Police Complaints Regarding Her Neighbor

Next, plaintiff alleges that the Ramapo Police Department failed to properly handle the complaints filed by her and Cotz regarding disputes that they have had with their neighbor, Joseph A. Verboys ("Verboys"). (See Complt. ¶¶ 17-28.) Specifically, in November 1998, plaintiff called the Ramapo Police Department for assistance when she and Verboys had a disagreement regarding his right to trim and cut certain trees growing along their common property boundary. (See id. ¶ 17; Pl. Aff. ¶ 31.) Police Officer Kevinson*fn14 and Sergeant Michael Colbath of the Ramapo Police Department responded and, according to plaintiff, instructed Verboys to "ignore" plaintiff's objections. (See id.) Plaintiff alleges that although Colbath was not called to respond to the dispute, he responded nonetheless because he is a personal friend of Verboys.*fn15 (See Pl. Aff. ¶ 31, Ex. 48 (Colbath Dep. at 32).)

Plaintiff alleges that subsequently, on October 31, 2000, Verboys "harassed and assaulted" her and her daughter by walking his Rottweiler on a leash near her daughter's school bus stop, which was immediately adjacent to plaintiff's property. (See Complt. ¶ 18.) Plaintiff called the Ramapo Police Department, which dispatched Police Officer Robert Collins ("Collins"). (See id.) At this time, Collins apparently had a discussion with Verboys regarding plaintiff's allegations. (See id. ¶ 20.) The next day, however, Verboys repeated his conduct from the previous day, and plaintiff again called the Ramapo Police Department, which dispatched Collins. (See id.) The same day, plaintiff and Cotz also went to the Ramapo police station and requested "to have criminal charges filed against [Verboys], or to press charges themselves." (See id. ¶ 22.) Plaintiff alleges that the officers on duty initially refused "to prepare criminal charges" against Verboys, but "[a]fter nearly five hours at the [station]," they finally acquiesced. (See id. (emphasis removed).)

On November 2, 2000, Collins was assigned to plaintiff's daughter's bus stop to determine whether Verboys was engaging in harassing or criminal behavior. (See id. ¶ 24.) Although Verboys walked his Rottweiller in direct view of Collins and in the vicinity of plaintiff and her daughter, the Ramapo Police Department found that Verboys's actions were neither harassing nor criminal in any way. (See id.; Specht Affm., Ex. D (Collins Dep. at 43-44).) Plaintiff claims, however, that Verboys was notified that the police were on watch and, as a result, he acted differently on this day than on the previous occasions when plaintiff had called the police. (See Complt. ¶ 24.) Plaintiff alleges:

Not only did [Verboys] act as though he was he [sic] aware that he was under observation but, upon information and belief, he was told of the observation by his friend, PO Colbath [who] worked the 11:00 [p.m to] 7:00 [a.m.] shift (on the night of November 1-2, 2000), and would have been in the station when Collins was given the observation assignment. []Colbath is a family friend of [Verboys] (their parents are also friends) and []Colbath has, for several years before and including 2000, rented [Verboys's] house at Beach Haven, [New Jersey] in the summer. Upon information and belief, []Colbath called [Verboys] and alerted him to Collins['s] observation. (See id. ¶¶ 24-25.)

The charges filed against Verboys were ultimately dismissed. (See id. ¶ 28.) Executive Assistant District Attorney Michael Eaton supervised the investigation and after "speaking to [plaintiff] and other witnesses, [he] determined that the acts complained of, if they in fact occurred, were not criminal in nature . . . ." (See Specht Affm., Ex. E (Eaton Aff. ¶ 4).) Following the dismissal of the charges, Verboys filed a civil action for malicious prosecution against the Ramapo Police Department, plaintiff and Cotz. (See M. Burke Aff., Ex. E; Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 161); Specht Affm., Exs. F, H (Pl. Dep. at 273, 276).) Although Verboys's claim against the Ramapo Police Department was dismissed, a New York state jury awarded him a $20,000 verdict against plaintiff and Cotz, which was subsequently affirmed by the Appellate Division. (See id.)

According to plaintiff, Verboys continued to harass her "[o]ver the course of 2001, 2002 and 2003" and, as a result, she sought an order of protection against Verboys in the Ramapo Justice Court. (See Complt. ¶ 33; Specht Affm., Ex. C (Dolan Aff. ¶ 14).) After both Ramapo Justices recused themselves, the matter was transferred to Town Justice Joel J. Flick of Clarkstown, New York who issued an order of protection against Verboys. (See Complt. ¶¶ 33, 35; Pl. Aff., Ex. 52.) Verboys was charged with harassment and he subsequently accepted an Adjournment in Contemplation of Dismissal. (See id.)

Plaintiff claims that thereafter, the Ramapo Police Department "refused to enforce the [o]rder of [p]rotection" in response to several complaints by plaintiff concerning incidents in which Verboys allegedly: (1) "stopped his car in the street and stared at [p]laintiff . . ."; (2) "passed her at the bus stop[] in a truck[] and yelled 'bitch' at her"; and (3) "pulled a dump truck [onto her street,] cutting off her daughter's school bus, on three successive days." (See Complt. ¶ 34.) According to the Ramapo Police Department, its officers conducted thorough investigations of plaintiff's complaints and found that staring at plaintiff and calling her a "bitch," while demeaning, were not criminal acts nor violative of the order of protection. (See Specht Affm., Ex. C (Dolan Aff. ¶ 15).) In addition, with respect to the dump truck incident, the police interviewed plaintiff and at least one of the school bus drivers and reviewed a video tape provided by plaintiff. (See id.) It determined that "no proof existed that Mr. Verboys committed this act intentionally, let alone in an effort to harass [plaintiff]." (See id.) According to the Ramapo Police Department, plaintiff was informed at this time that "if Mr. Verboys committed an actual violation of the order of protection, or any other offense, he would be arrested and charged, but that [they] felt that the actions she described did not rise to that level." (See id. (Dolan Aff. ¶ 16).)

V. Tree Trimming Allegations

Plaintiff next complains of incidents of harassment involving the Ramapo Highway Department and its attempt to trim trees on plaintiff's property that were blocking view of a stop sign. (See Complt. ¶¶ 36-39; Pl. Aff. ¶¶ 42-43.) Plaintiff alleges that in August 2001, a highway department crew "attempted to enter [her] property through a gate on her stone wall, and she asked them what they were doing on her property." (See Complt. ¶ 36.) Plaintiff claims that upon her inquiry, the crew left, "but made some sort of report to the [Ramapo Police Department], who arrived and questioned [p]laintiff about this 'incident.'" (See id.) Plaintiff alleges that "[u]pon information and belief, in similar circumstances, the [Ramapo Highway Department] has simply called other members of the community to advise them to cut branches down." (See id.)

Three years later, in August 2004, "a crew from the [Ramapo Highway Department] was again dispatched to [the same] corner . . . to trim the same trees on [p]laintiff's property that obstructed the same [stop] sign in 2001." (See id. ¶ 37; Pl. Aff. ¶ 42; Specht Affm., Ex. H (Pl. Dep. at 300).) According to plaintiff, the crew again "attempted to enter [p]laintiff's property[] through the same gate on her stone wall, but she told them not to trespass." (See Complt. ¶ 37; Specht Affm., Ex. H (Pl. Dep. at 300).) Both at her deposition and in her affidavit, she claimed that they then left without incident.*fn16 Plaintiff thereafter called the Ramapo Highway Supervisor and the Ramapo Attorney, Beth Modica ("Modica"), and informed them that she would have her landscaper trim the trees, which they both indicated was fine. (See id.) However, plaintiff claims that while she was on the phone with Modica, her home [was] surrounded by [four] [Ramapo Highway Department] trucks, a foreman's vehicle, two [Ramapo Police Department] patrol cars, at least ten . . . men from [the Ramapo Highway Department] and [two] police officers, including Lt. Bakker. All of the vehicles had flashing lights on, the road was blocked and traffic was stopped. [The Ramapo Highway Department] crewmen were festive and laughing. (See Complt. ¶ 38; Specht Affm., Ex. H (Pl. Dep. at 300-03).) Plaintiff approached one of the officers and said "you guys are just, you guys are going crazy again." (See Specht. Affm., Ex. H (Pl. Dep. at 303).) One of the officers immediately ordered everyone to leave the area, and both the Highway Department crew and police officers left. (See id.)

VI. Plaintiff's Removal from the Polling Place and the Alleged Denial of Her Right to Vote

Plaintiff next alleges that she was unlawfully removed from the polling place during the March 2005 Village Trustee election at which she was serving as a poll watcher*fn17 and thereafter prohibited from voting in that same election. (See Complt. ¶¶ 42-75.) She claims that she was removed from the polls in retaliation for her political activity and her previous public criticism of Mastroeni, the Election Commissioner, who directed Ramapo police officers to remove her. (See Complt. ¶¶ 43-47; Pl. Aff. ¶¶ 44-46, 50.) Specifically, during the March 2003 Village mayoral election at which plaintiff also served as a poll watcher, plaintiff criticized Mastroeni for allegedly failing to prevent a poll watcher, who was the husband of a mayoral candidate, from electioneering at the polling place. (See Complt. ¶ 45; Pl. Aff. ¶ 45; Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 20).) Also, at the conclusion of the 2003 election, Mastroeni instructed plaintiff to leave the polling place when the officials began tallying the votes, which plaintiff claims, as a poll watcher, she had the right to participate in or at least observe.*fn18 (See Pl. Aff. ¶ 45.) Furthermore, plaintiff was the campaign manager for the incumbent candidate in the March 2005 election, and she claims that Mastroeni may have aligned herself with the opposing party and was therefore motivated to remove plaintiff, "the incumbent's campaign manager and articulate supporter," from the polls. (See Complt. ¶ 43; Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 20); Pl. Mem. Opp. Summ. J. at 7.)

As in the 2003 Village election, Mastroeni, as Election Commissioner, had "ultimate authority" over the Village election on March 15, 2005, which was held during the hours of noon to nine o'clock p.m. at Village Hall. (See Silverman Not. Mot. Supp. Summ. J., Ex. G (Kelly Dep. at 60--61); Complt. ¶ 48.) Mastroeni was present throughout the election and was responsible for overseeing the election and maintaining order at the polls.*fn19 (See Silverman Not. Mot. Supp. Summ. J., Ex. G (Kelly Dep. at 60--61); Pl. Aff., Ex. 70 (Mastroeni Dep. at 46).) An exceptionally large number of voters turned out for the election, and voters waited on long lines to cast their ballots. (See Silverman Not. Mot. Supp. Summ. J., Ex. I (Borders Dep. at 49); id. at Ex. K (Desiderio Dep. at 16); Pl. Aff., Ex. 123 (Berliner Dep. at 9).)

At around 12:15 p.m., plaintiff arrived at Village Hall to begin her shift as a poll watcher. (See Complt. ¶ 50; Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 28-29).) As required by New York Election Law, Mastroeni requested to inspect plaintiff's poll watcher certificate. (See Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 29).) Plaintiff had left the certificate at home, and Mastroeni instructed her to go home to retrieve it. (See id. (Pl. Dep. at 29, 31).)

At approximately 12:30 p.m., plaintiff returned to Village Hall with her certificate and presented it to Mastroeni. (See id. (Pl. Dep. at 31-32, 38).) Upon her return, plaintiff searched the room for a location from where she could hear the Election Inspectors call out each voters' name as they signed in to vote. (See id. (Pl. Dep. at 41).) Traditionally, poll watchers have a list of all the registered voters and they keep track of those who voted. (See id. (Pl. Dep. at 27-28, 52-53); id., Ex. G (Kelly Dep. at 26-27).)

The Election Inspectors were stationed at two tables towards the rear of the room, and behind the tables were the voting machines. (See Complt. ¶ 53; Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 33-34, 45-47).) Plaintiff decided to stand between these two tables, leaning against the left table, thereby reducing the space between the tables through which the voters must pass to get to the voting machines. (See Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 45-47, 51-52).) Although there were six tables with seats at which the poll watchers were expected to sit, plaintiff remained standing because (1) she claims that she had difficulty hearing the Election Inspectors call out the voters' names from those seats and (2) she has a back ailment that causes her severe pain when she sits for certain periods of time.*fn20 (See Complt. ¶ 51; Pl. Aff. ¶ 51; Silverman Not. Mot. Supp. Summ. J., Ex. D (Mastroeni Dep. at 118-19); M. Burke Aff., Ex. G.)

However, Mastroeni and all four Election Inspectors testified that plaintiff "paraded" around the Election Inspectors which impeded the flow of voters, particularly in light of the heavy voter turnout. (See Silverman Not. Mot. Supp. Summ. J., Ex. D (Mastroeni Dep. at 155-60, 162-63, 165, 206, 219, 288) (testifying that plaintiff "paraded around the back of the inspectors" and walked "around all over the place impeding the route of the voters"); id. Ex. E (Luciano Dep. at 104-05, 161-64) (testifying that plaintiff was behind the registration tables and blocking the voting machines); id. Ex. K (Desiderio Dep. at 37-38, 42) (testifying that plaintiff attempted to go behind the Election Inspectors table and that she heard plaintiff, among other people, yelling and shouting); id. Ex. H (Sorrillo Dep. at 52-53) (testifying that all four of the Election Inspectors at one point told plaintiff that she could not be behind their table); id. Ex. I (Borders Dep. at 52-55, 60) (testifying that the Election Inspectors were frustrated with plaintiff because she was walking around the election area and impeding the flow of voters and the ability of the Inspectors to perform their jobs); id. Ex. J (Whalen Dep. at 41-42, 67) (testifying that plaintiff was being disruptive and impeding the movement of the voters). Mastroeni also testified that plaintiff aggressively spoke to the Election Inspectors when she discovered that they did not have a voters' list that she could use. (See id. Ex. D (Mastroeni Dep. at 165, 206).)

Plaintiff maintains, however, that she simply stood by the Election Inspectors and did not cause any sort of disruption. (See Pl. Aff. ¶ 51; see generally Silverman Not. Mot. Supp. Summ J., Ex. C (Pl. Dep. at 38-73.) Similarly, Robert Berliner, a voter present at the polls, testified that he saw plaintiff at approximately 12:30 p.m. for several minutes just standing by the Election Inspectors and did not see her behaving in a disruptive manner. (See Pl. Aff., Ex. 122 (Berliner Dep. at 8), Ex. 125 (Berliner Dep. at 23).) However, plaintiff admits that she remained standing and, on one occasion, walked behind the Election Inspectors' table, which was directly in front of the voting machines. (See Pl. Rule 56.1 Stmt. ¶ 16 (in response to the Village of Montebello, Mastroeni and Luciano).)

Mastroeni approached plaintiff and requested that she sit and not remain standing. (See Silverman Not. Mot. Supp. Summ., Ex. C (Pl. Dep. at 47-48).) Plaintiff refused to comply with Mastroeni's request, insisting that she was not required to sit, and asked Mastroeni why she had to sit when "[Mastroeni herself] was allowed to stand during the election with the deputy clerk."*fn21 (See id.; Complt. ¶ 56; M. Burke Aff., Ex. G.) According to plaintiff, she also explained to Mastroeni that she had a back ailment that prevented her from siting for long periods of time and that she could not hear the Election Inspectors when seated.*fn22 (See Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 47-48); Complt. ¶ 56; Pl. Aff., Ex. 107.) At some point, Luciano, who was serving as an Election Inspector, approached plaintiff and stated, "Who do you think you are, you know, . . . if you were a guy I'd take you outside and beat the crap out of you." (See Complt. ¶ 59; Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 56); Pl. Aff., Ex. 102 (Luciano Dep. at 255).)

Mastroeni claims that, after plaintiff refused to comply with her request, she called the New York State Board of Elections ("BOE")*fn23 in Albany, New York and talked to Pat Murray ("Murray"), an attorney for BOE. (See Silverman Not. Mot. Supp. Summ. J., Ex. D (Mastroeni Dep. at 222-21).) Mastroeni claims that she described plaintiff's behavior to Murray, and Murray advised Mastroeni that she had the authority to remove plaintiff from the polling place. (See id. (Mastroeni Dep. at 223-25).) However, the phone records of Village Hall show calls to Albany at 12:57 p.m. and 2:21 p.m., thus it is unlikely that Mastroeni called Albany before calling the Ramapo Police Department which responded to the Village prior to the first call to Albany. (See Pl. Aff. ¶¶ 60, 65, Ex. 119a.)

In any event, Mastroeni approached plaintiff a second time and requested that she sit, but plaintiff again refused to comply.*fn24 (See id. (Mastroeni Dep. at 226); id. Ex. C (Pl. Dep. at 54).) Mastroeni then called the Ramapo Police Department for assistance. (See id. Ex. D (Mastroeni Dep. at 186-87); Complt. ¶ 61.) The first police officer, Shawn Bakker ("Bakker"), arrived at 12:46 p.m., and Mastroeni immediately approached him near the vestibule at the entrance of the polling place. (See Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 67, 77-80); Pl. Aff. ¶ 65.) As plaintiff walked over to them, she heard Mastroeni yell that she wanted plaintiff removed from Village Hall. (See Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 72, 76).) Two additional police officers arrived shortly after Bakker, including Lampert. (See id. (Pl. Dep. at 77-80, 87); id. Ex. D (Mastroeni Dep. at 254).) When Lampert arrived, she and Mastroeni left the election area and went upstairs.*fn25 (See id.)

While Mastroeni and Lampert were upstairs, Mastroeni explained to Lampert that plaintiff was being disruptive and impeding the flow of the voters. (See id. Ex. D (Mastroeni Dep. at 255); id. Ex. F (Lampert 6/28/06 Dep. at 19).) Mastroeni also indicated that she had the authority to request that plaintiff be removed from the polling place. (See id. Ex. D (Mastroeni Dep. at 270).) In the presence of Lampert, Mastroeni called Murray, counsel at the BOE, and requested the specific citation of the statute that provides the Village Clerk with the authority to maintain order and request police assistance in connection therewith.*fn26 (See id. (Mastroeni Dep. at 256, 261).) Lampert testified that she also spoke with Murray for several minutes at this time. (See id. Ex. F (Lampert 6/28/06 Dep. at 70).) Mastroeni then located the statute in her compilation of the New York State Election Law and provided a copy to Lampert. (See id. Ex. D (Mastroeni Dep. at 255-56, 266, 269); id. at Ex. F (Lampert 6/28/06 Dep. at 31-32).)

After about fifteen minutes, Mastroeni and Lampert came back downstairs to the vestibule area where plaintiff was standing, and Lampert directed her to gather her belongings and leave Village Hall. (See id. Ex. C (Pl. Dep. at 88-89).) Plaintiff asked why she was being removed from the polls and Lampert said, "Miss Mastroeni is in charge of the elections and she's authorized to make the decision to remove you . . . ." (See id. (Pl. Dep. at 89-90).) Plaintiff then explained to Lampert that she could not hear the Election Inspectors when seated and that she had a back problem that prevented her from sitting for periods of time. (See id. Ex. F (Lampert 6/28/06 Dep. at 20-21); Complt. ¶ 56.) Plaintiff also repeatedly told Lampert to call Brower, but Lampert ignored plaintiff's request because she thought it unlikely that the police Captain would ask plaintiff to instruct her to call him. (See Silverman Not. Mot. Supp. Summ J., Ex. C (Pl. Dep. at 90-91); id. Ex. F (Lampert 6/28/06 Dep. at 14-15).) She testified that "[i]f he wanted me to call him, he would have [had] somebody call me on the radio." (See id. Ex. F (Lampert 6/28/06 Dep. at 15).) Plaintiff eventually gathered her belongings and left Village Hall.*fn27 (See id. Ex. C (Pl. Dep. at 92-93).

After plaintiff left Village Hall, she called the BOE and asked to speak with an attorney. (See id. (Pl. Dep. at 97-99, 100).) The call was directed to Murray, the attorney to whom Mastroeni spoke previously. (See id. (Pl. Dep. at 102).) Plaintiff and Murray knew each other from previous discussions regarding the Village's election procedure. (See id.) Plaintiff explained to Murray that she had been removed from the polling place at Village Hall and that she was barred from returning to vote. (See id. (Pl. Dep. at 101, 106).) Murray then revealed to plaintiff that Mastroeni had previously called her to determine whether she had the authority to remove a particular individual who was being disruptive. (See id., Ex. C (Pl. Dep. at 101-02).) Murray indicated to plaintiff that she advised Mastroeni that, as the Election Commissioner, she had the authority to remove anyone who she reasonably believed was disrupting the election. (See id.) Plaintiff stated to Murray, "[D]id she tell you that it was over her telling me to sit as opposed to stand[?]" (See id. (Pl. Dep. at 102).) According to plaintiff, Murray was surprised that plaintiff was removed merely because she refused to sit and suggested that she would attempt to mediate the situation. (See id. (Pl. Dep. at 102, 105).)

Plaintiff then went to the Ramapo Police Department to file a complaint regarding her removal from the polls. (See id. (Pl. Dep. at 105-06).) Eichner, who was on duty, brought plaintiff to a room where the officers typically take civilian complaints, and plaintiff demanded that she be allowed to write her own report. (See id. (Pl. Dep. at 108-09).) Although Eichner did not allow plaintiff to write it herself, he transcribed plaintiff's statement.*fn28 (See id. (Pl. Dep. at 109); M. Burke Aff., Ex. G.) She informed him that she was removed from the polls and barred from voting in the election. (See id. (Pl. Dep. at 106-07).) The report states in part:

When I returned to Mrs. Cotz in the lobby of the police station[,] I asked Mrs. Cotz if she had a chance to vote, she stated no. When I asked Mrs. Cotz how long was she in the polling location[,] she stated that she did not have to answer that. I advised her that I would record her accounts of the incident. . . . That Debra Mastroeni violated her civil rights and harassed Mrs. Cotz by saying that she would throw Mrs. Cotz out for standing up, got up in her face screaming and told her to leave the building and not to continue to be a Poll Watcher. She didn't get a chance to vote. Debra Mastroeni didn't care. Mrs. Cotz told Debra Mastroeni that she was going to call the police then Debra Mastroeni called the police. . . . While speaking with Mrs. Cotz[,] she was continually interrupting our conversation by making calls on her cell phone. She stated that she was going to sue everyone including the police. At one point while speaking on her cell phone[,] she stated that Leslie Lampert was going to get her ass kicked. From one minute to the next[,] Mrs. Cotz was calm then excited. (See M. Burke Aff., Ex. G.) After Eichner took plaintiff's statement, she left the station at approximately 2:30 p.m. (See Silverman Not. Mot. Supp. Summ. J., Ex. C (Pl. Dep. at 106-07).)

After leaving the Ramapo Police Department, plaintiff received a phone call from Murray who indicated that Mastroeni "was not going to allow [her] back in . . . ." (See id. (Pl. Dep. at 114).) Plaintiff then went to see Warren Berber ("Berber"), the attorney for the Village, who worked with plaintiff on political campaigns and was apparently friendly with her. (See id. (Pl. Dep. at 113, 117-18).) After plaintiff informed him of the situation, of which he already may have had knowledge, he said that he was going to call Mastroeni. (See id. (Pl. Dep. at ...


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