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Gurevich v. City of New York

January 10, 2008

LIDIYA GUREVICH, PLAINTIFF,
v.
THE CITY OF NEW YORK, POLICE OFFICER KOLANOVIC, SHIELD NO. 14340, AND POLICE OFFICER HAGAN, SHIELD NO. 1470, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiff Lidiya Gurevich brings this action pursuant to 42 U.S.C. § 1983 alleging that the City of New York and Police Officers Frank Kolanovic and John Hagan (collectively, "defendants") violated her constitutional rights by, inter alia, subjecting her to an illegal arrest. Plaintiff also asserts ancillary claims under New York State law for false imprisonment, assault and battery, and negligent hiring, training, and retention. Defendants have moved for summary judgment on numerous grounds, chiefly that the arrest was supported by probable cause. Plaintiff has also cross-moved for summary judgment. For the reasons discussed below, defendants' motion will be granted, and plaintiff's cross-motion will be denied.

BACKGROUND

On April 1, 2005, at about 7:00 p.m., Police Officers Kolanovic and Hagan, who were on patrol together in a marked car, received a radio call from a police dispatcher to respond to an apartment building on Benson Avenue in Brooklyn because a female reportedly refused to let a male remove his things from her apartment and the two were "fighting." (Myrvold Decl. Ex. 6; D. Rule 56.1 Stmt. ¶ 12.) The officers arrived at the apartment building shortly thereafter and were met by Eric Oganov and two of his friends. (Myrvold Decl. Ex. 4 ("Kolanovic Dep."), at 18:2-4; D. Rule 56.1 Stmt. ¶ 14.) Oganov told the officers that he used to live in plaintiff Gurevich's apartment in the subject building, and that Gurevich would not let him enter to retrieve certain of his belongings. (D. Rule 56.1 Stmt. ¶ 14.)

The two officers, accompanied by Oganov and his two friends, proceeded to the door of Gurevich's apartment. (Id. ¶ 15.) After Officer Kolanovic knocked on the door, Gurevich's son, Gene Yanenco, opened the door and confirmed to the officers that Oganov used to live in the apartment and had left behind some of his personal property. (Id. ¶ 16.) Yanenco then permitted the officers and Oganov to enter the apartment.*fn1 (Id.) Oganov told the officers that Gurevich had prevented him from retrieving a television set and computer that he had left behind. (D. Rule 56.1 Stmt. ¶ 22; Myrvold Decl. Ex. 2 ("P. Dep."), at 55:18-19.) Moments later, Gurevich emerged from her bedroom into the apartment hallway. (D. Rule 56.1 Stmt. ¶ 21.) Gurevich admitted to the officers that the television and computer belonged to Oganov, but she refused to relinquish those items until Oganov paid back monies that he allegedly stole from her. (Id. ¶¶ 22-23; P. Dep. 55:23-56:4.) The officers told Gurevich that she "must give back the items" or face arrest, but Gurevich persisted in her refusal and responded, "Okay. Arrest me." (P. Dep. 56:15-18.) The officers also allegedly called Gurevich a "Fucking Russian." (Id. at 56:6.)

According to the officers, "Gurevich was screaming, yelling and acting irrational . . ., was flailing her arms striking Kolanovic, was throwing and breaking small items, and attempted to lock the apartment door on the police officers with them inside." (D. Rule 56.1 Stmt. ¶ 25.) Gurevich denies making any physical contact with the officers, but admits that she was "very emotional," under "stress," and not "controlling" herself at the time. (P. Dep. 56:21-22, 57:11, 58:17-18). At 7:25 p.m., Officer Kolanovic contacted Sergeant Caro over the radio to request additional assistance. (D. Rule 56.1 Stmt. ¶ 28.) At 7:33 p.m., after Sergeant Caro arrived at the apartment, Officer Kolanovic handcuffed Gurevich, escorted her out of the apartment, and placed her in a police car. (Id. ¶¶ 29-30.) Gurevich was then taken to the 62nd Precinct. (Id. ¶ 33.)

Shortly after arriving at the precinct, Gurevich complained to the desk lieutenant, Lieutenant Delaney, that she was feeling ill and needed a doctor. (Id.) Lieutenant Delaney responded that he would call a doctor for her. (Id.) When an ambulance arrived half an hour later, Gurevich's handcuffs were removed and the paramedics conducted a physical examination (Id. ¶¶ 34-35.) At the direction of Lieutenant Delaney, Gurevich was released into the custody of paramedics and taken to Victory Memorial Hospital. (P. Rule 56.1 Resp. ¶ 45.) None of the officers accompanied her in the ambulance to the hospital. (D. Rule 56.1 Stmt. ¶ 37.) Lieutenant Delaney informed Officer Kolanovic that Gurevich's arrest would be voided and that she should be treated as an emotionally disturbed person. (Id. ¶ 38; Kolanovic Dep. 60:10-15.)

After more than twenty-four hours at Victory Memorial Hospital, Gurevich was discharged and returned to the precinct to lodge a complaint against the defendant officers. (P. Rule 56.1 Resp. ¶ 52.) Later that day, Gurevich continued to feel ill and went to Maimonides Hospital where she spent the next several days. (Id.)

On May 31, 2005, Gurevich served a Notice of Claim on the City of New York. (Compl. ¶ 28.) Gurevich commenced the instant action against the individual officers and the City of New York on March 2, 2006.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. at 254-55. However, summary judgment may be granted "[i]f the evidence is merely colorable, or is not significantly probative." Id. at 249-50 (citations omitted).

The party seeking summary judgment bears the burden of showing that no genuine factual dispute exists. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving party has made a showing that there are no genuine issues of material fact, the burden shifts to the nonmoving party to raise triable issues of fact. Anderson, 477 U.S. at 250.

A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of ...


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