The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
The claims in this case arise from Defendants' warrantless entry into and search of Plaintiffs' home. On September 14, 2007, Defendants moved for partial summary judgment. For the reasons stated below, Defendants' motion is granted in part and denied in part.
During the night of September 7, 2003, a Department of Transportation warehouse in LaGrange, New York was broken into and vandalized. The vandals spray-painted the inside of the building and broke the windows of a school bus and a dump truck in the parking lot. (Pltf. Rule 56.1 Response ¶¶ 1-2) Defendants Leto and Dolce, New York State troopers, assisted in the investigation of this crime the following day. Nick Rivera -- the son of Plaintiff Barbara Rivera and the older brother of Plaintiffs Maritza and Meliza Rivera -- lives in an apartment complex located near the warehouse. The caretaker of the complex identified Nick to Trooper Leto as a troublemaker and as a "subject to look at" concerning the vandalism. (Id. ¶¶ 3-8) Leto was also told that Nick "liked to jump out of windows to evade the police," had previously "struggled with a trooper," and "had a mental health issue." (Id. ¶¶ 31-32)
On the morning of September 8, 2003, Leto went to the Rivera residence and met with Barbara Rivera, who explained that Nick had been away at school for several months. (Id. ¶ 12) Dolce separately spoke to Nick's father, who also stated that Nick was not at home. (Id. ¶¶ 13-14)
The next day, Dolce told Leto that he had heard that Nick had recently been seen in the area. (Id. ¶ 17) While driving by the vandalized DOT warehouse, the Defendants saw some middle school-aged children get off a school bus, and decided to ask them if they had any information about the crime. (Id. ¶¶ 18-19) One of the children "brought up" Nick Rivera's name. (Id. ¶ 19; Dolce Dep. 12-13; Leto Dep. 19) The Defendants then decided to revisit the Rivera residence. (Pltf. Rule 56.1 Response ¶ 21)
The troopers arrived at the Rivera residence at approximately 4:30 p.m. and knocked on the door. (Id. ¶¶ 21-22) Maritza and Meliza Rivera, twin girls who appeared to the Defendants to be about 10 years old, opened the door.*fn1 (Id. ¶¶ 24-26)
The parties differ as to what happened next. Defendants assert that one of them asked Maritza if anyone was home, to which she responded that Nick was home, while Meliza responded that no one else was home. (Def. Rule 56.1 Statement ¶¶ 27, 29) Plaintiffs claim that one of the Defendants asked specifically whether Nick was home, to which Maritza initially answered that he was, while Meliza said that he was not. (Pltf. Rule 56.1 Response ¶¶ 27, 29) Both sides agree that, at this point, the troopers entered the Rivera home. (Id. ¶ 30)*fn2
The parties also disagree as to what happened once Defendants entered the Rivera home, including whether Leto pointed his handgun at Maritza. For purposes of this motion, however, the material facts concerning Defendants' activities in the Rivera home are largely undisputed. Defendants both went upstairs to the second floor, with Leto calling for Nick to come speak with them. (Id. ¶¶ 37-38) Both Defendants had their guns drawn while they were on the stairs. (Leto Dep. 58) Once upstairs, Defendants opened doors and looked inside the upstairs rooms, still with their guns drawn. (Pltf. Rule 56.1 Response ¶ 39; Leto Dep. 63) Returning downstairs, they found that one of the twins was on the phone with Barbara Rivera, who arrived at home approximately 10 minutes later. (Id. ¶¶ 40-42)
B. The Riveras' Claims and the Pending Motion
The Complaint asserts five claims based on Defendants' conduct in entering and searching the Rivera home: (1) an equal protection claim on behalf of Maritza and Meliza Rivera (Count I); (2) an unlawful search and seizure claim on behalf of all plaintiffs(Count II); (3) an excessive use of force claim against Leto, on behalf of Maritza and Meliza Rivera (Count III); (4) a claim that Maritza and Meliza Rivera were injured by Defendants' negligence "in the manner in which they set about to enter and search" their residence (Count IV); and (5) a claim that Barbara Rivera is entitled to damages due to Defendants' negligent infliction of emotional distress, for the lost services of her daughters, and for medical expenses that she has incurred and will incur in the future for treatment for her daughters (Count V).
Defendants concede that disputes over material facts preclude judgment as a matter of law with respect to Count III, Count IV to the extent it relates to Leto's conduct in drawing his gun, and Count V to the extent Barbara Rivera seeks to recover damages relating to medical expenses she has already incurred for treatment of her daughters. (Def. Br. at 2 n.1, 20 n.8, 22) Defendants have moved for summary judgment with respect to the remainder of Plaintiffs' claims.
A court must grant summary judgment if "there is no genuine issue as to any material fact" and the moving party has shown that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A fact is 'material' for . . . purposes [of summary judgment] if it 'might affect the outcome of the suit under governing law.'" Electrical Inspectors, Inc. v. Village of East Hills, 320 F.3d 110, 117 (2d Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id.
"To survive . . . [a] motion for summary judgment," the non-moving party "must establish that there is a genuine issue of material fact" by doing more than "simply show[ing] that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). A court should not grant summary judgment if, "after resolving all ambiguities and drawing all inferences in favor of the non-moving party," it determines that "a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
I. The Riveras' Unlawful Entry and Search Claims
Plaintiffs assert that Defendants' warrantless search of their home violated their constitutional rights.*fn3 Defendants argue that they are entitled to summary judgment on this claim because: (1) their conduct was justified by exigent circumstances -- specifically, the need to ensure the safety of Meliza, Maritza and Nick Rivera (Def. Br. at 12); and (2) they are protected by qualified immunity (id. at 13-18). As explained below, summary judgment on this claim is not appropriate because Defendants have failed to meet their burden of showing that no ...