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McKenna v. Incorporated Village of Northport

July 13, 2007


The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge


Before the court are the following motions by the plaintiff, Kevin P. McKenna ("plaintiff" or "McKenna"): (1) a motion to amend the complaint to add Sergeant William Ricca ("Ricca") as an additional defendant and to amend the date on which the plaintiff served a Notice of Claim on the Village of Northport (the "Village"); and (2) a motion to compel the defendants to produce the personnel files and any records of complaints filed against the individual defendants, Christopher J. Hughes ("Hughes"), Alan M. Bakker ("Bakker") and Ricca (collectively referred to as "defendant police officers"). Oral argument was held with respect to these motions on June 28, 2007, before the undersigned. For the following reasons, the plaintiff's motions to amend and compel are granted.


On November 5, 2005, at approximately 1:15 a.m., the plaintiff, Kevin P. McKenna, was operating his automobile on Fort Salonga Road in the Village of Northport when he was directed to pull over by defendant police officers Alan Bakker and Christopher Hughes, for allegedly speeding and failing to "maintain lane." (Compl. ¶¶ 10, 11.)*fn1 Bakker approached plaintiff's vehicle and instructed plaintiff to exit the vehicle, which plaintiff did. (Id., ¶ 12.) Bakker then joined Hughes at the rear of plaintiff's vehicle and instructed plaintiff to join them. (Id., ¶ 13.) Plaintiff complied and was instructed to walk a straight line on the side of his vehicle, which he successfully did. (Id.) Bakker then attempted to place plaintiff under arrest for DWI. (Id.)

Plaintiff asserts that when he questioned why he was being arrested, defendants Bakker and Hughes "launched a vicious physical assault upon him," striking him with a flashlight several times in the head, tackling him and placing him in handcuffs while he was lying on the ground, kicking him and slamming his head into the pavement repeatedly. (Id., ¶ 14.) Plaintiff further asserts that one of the officers sprayed him in the face with mace, whereupon the two officers picked him up and "heaved him violently" into the rear compartment of their patrol car. (Id.)

The officers then drove plaintiff to Huntington Hospital, where he was admitted for treatment for injuries sustained during his arrest. (Id., ¶ 15.) However, plaintiff refused medical treatment other than allowing a doctor to inspect his facial bruises. (Id.)

Plaintiff was then transported by defendants Bakker and Hughes to the Northport Police Station where plaintiff was asked to take a breathalyzer test.*fn2 (Id., ¶ 16.) Plaintiff asserts in his complaint that at approximately 12:00 p.m. on November 6, 2005, emergency medical technicians were called to the Northport Police Station because plaintiff's medical condition was worsening. (Id.) Technicians allegedly responded and provided plaintiff with medical aid. (Id.)

The defendant police officers thereafter charged plaintiff with seven traffic citations as well as two misdemeanor informations and one felony complaint. (Id., ¶ 17.) The felony complaint charged plaintiff with theft of one of the defendant police officer's flashlights, allegedly used by the officer to strike the plaintiff in the head, and the misdemeanor informations charged plaintiff with driving under the influence of alcohol and resisting arrest. (Id.) The seven traffic citations charged plaintiff with: (1) crossing the double yellow line; (2) refusing a pre-screen test; (3) speeding; (4) failure to maintain lane (three counts) and (5) driving while intoxicated (based on plaintiff's "refusal to test"). (Id.)

Plaintiff was arraigned before Northport Village Justice Ralph Crafa on November 6, 2005, who temporarily suspended plaintiff's driver's license pending the adjudication of the charges and released plaintiff on $3,600 bail that day. (Id., ¶ 18.) On November 7, 2005, plaintiff appeared before Northport Village Justice Paul Senzer who dismissed the citation for refusing a pre-screen test. (Id., ¶ 19.) A hearing was held on November 14, 2005 regarding plaintiff's refusal to take a blood alcohol test. (Id., ¶ 20.) Administrative Law Judge Chester J. Weinstein ruled that there was indeed a refusal and permanently suspended plaintiff's driver's license. (Id.) The remaining charges were referred to a grand jury.*fn3 (Id., ¶ 19.)

On January 10, 2006, plaintiff was examined by a radiologist and a neurologist and found to have serious damage to his vertebrae, including herniation of several discs and nerve damage to his hand, which he attributes to the alleged physical abuse inflicted on him by the defendant police officers. (Id., ¶ 21.) Plaintiff alleges that he has undergone and will continue to undergo therapy for his neck, shoulders, cervical spine, hand and wrist, as well as psychiatric treatment. (Id., ¶ 22.)

Plaintiff filed his Complaint in this action on June 8, 2006, asserting seven federal and state law causes of action, including: (1) denial of federal constitutional rights under 42 U.S.C. § 1983; (2) denial of state constitutional rights; (3) false arrest; (4) assault; (5) battery; (6) intentional infliction of emotional distress; and (7) negligent supervision and hiring of employees (which is solely against the Village of Northport). Defendants served an Answer in response to plaintiff's Complaint on June 27, 2006, basically denying all of the actionable allegations in the Complaint.


I. Plaintiff's Motion to Amend the Complaint

A. Amendment to Add Sergeant William Ricca as a Defendant

Plaintiff moves to amend his complaint to include a third defendant police officer, Sergeant William Ricca. In support of his motion, plaintiff asserts that he did not learn of Sergeant Ricca's presence and participation in plaintiff's arrest until Sergeant Ricca was called to testify as a rebuttal witness during plaintiff's criminal trial in December 2006. (Aff. of Kevin McKenna, undated, ΒΆ 4.) Plaintiff further asserts that he has never seen any police report or other document listing Sergeant ...

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