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McNamara v. City of New York

March 20, 2009



Plaintiff Kevin McNamara ("Plaintiff" or "McNamara") brings this action pursuant to 42 U.S.C. §§ 1983 and 1988 asserting claims for false arrest and malicious prosecution against defendants Sergeant Michael Zadwas, Captain Matthew Whelan, Lieutenant Frank Tarantola, Police Officer Michael Girdusky (collectively the "on-duty officers"), and the City of New York ("City"), and claims for false arrest, excessive force, and malicious prosecution against defendant Detective Michael Grady ("Det. Grady"), stemming from his April 28, 2005 arrest. Plaintiff also asserts various state law claims. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

The City and the individual on-duty officer defendants (collectively, the "City Defendants") now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Det. Grady, who is represented separately, moves for partial summary judgment pursuant to Rule 56.


The following material facts are undisputed, except where indicated. On April 28, 2005, Plaintiff was walking in the vicinity of 43rd Street and Laurel Hill Boulevard in Queens, NY. (Pl.'s Dep. 39:13--23, Mar. 12, 2008.) As Plaintiff walked down the sidewalk, Det. Grady was walking toward him with a large Rottweiler dog. (Pl.'s 56.1 Stmt. in Opp'n to Def. Grady's 56.1 Stmt. ¶ 5 ("Pl.'s Grady 56.1 Stmt.").) As they walked past each other, Det. Grady asked Plaintiff "what's your problem?" (Pl.'s Grady 56.1 Stmt. ¶ 31; Def. Grady's 56.1 Stmt. ¶ 4.) Plaintiff responded to Det. Grady by telling him that all he wanted to do was walk down the street without being menaced by Det. Grady's dog. (Pl.'s Grady 56.1 Stmt. ¶ 32.) Det. Grady responded by cursing at Plaintiff. (Id. ¶ 33.) At some point, Det. Grady tied his dog's leash to a fence and kicked Plaintiff in the groin. (Pl.'s Dep. 69:3--70:14; Def. Grady's 56.1 Stmt. ¶ 7.) Plaintiff then kicked Det. Grady in the knee. (Pl.'s Dep. 72:22.) When Plaintiff kicked Det. Grady in the knee, Det. Grady backed away. (Id. 73:3--5, 73:19--21.)

At this point, Det. Grady pulled a revolver out and pointed it at Plaintiff. (Pl.'s Grady 56.1 Stmt. ¶ 36; Def. Grady's 56.1 Stmt. ¶ 10.) Det. Grady also held up his badge for Plaintiff to see, and identified himself as a police officer. (Pl.'s Dep. 78:3--15, 79:13--19; Def. Grady's 56.1 Stmt. ¶ 11.) Prior to Det. Grady holding up his badge and identifying himself as a police officer, Plaintiff did not know or believe that Det. Grady was a police officer. (Pl.'s Dep. 80:11--17, 107:21--13.) Plaintiff retrieved his cell phone from his bag and called 911, reporting that someone had pulled a gun on him and requesting immediate police assistance; he gave a description of Det. Grady. (Pl.'s Dep. 82:1--5, 85:6--21.) As Plaintiff called 911, Det. Grady left the scene. (Pl.'s Dep. 84:4--14.) At no point during the encounter did Det. Grady attempt to arrest Plaintiff. (Pl.'s Dep. 108:14--18.)

Uniformed officers, including P.O. Girdusky, responded to Plaintiff's 911 call and began driving around the neighborhood, with Plaintiff in the patrol car, in search of Det. Grady. (Pl.'s Grady 56.1 Stmt. ¶ 41.) While searching for Det. Grady, P.O. Girdusky heard over his police radio that other officers had apprehended Det. Grady. (Id. ¶ 42.) The on-duty officers who had picked up Plaintiff drove to 47th Street and Laurel Hill Boulevard, where Det. Grady was talking to the other on-duty officers, and Plaintiff identified Det. Grady as the person who had pulled a gun on him. (Pl.'s Dep. 90:13--92:3.)

After Det. Grady and Plaintiff had given their respective versions of the altercation, both were taken into custody by the on-duty officers and transported to the 108th police precinct. (Pl.'s Dep. 93:5--18; Def. Grady's 56.1 Stmt. ¶ 19.) At the precinct, Plaintiff was placed in a room, and, after a while, P.O. Girdusky entered the room and placed Plaintiff under arrest. (Pl.'s Dep. 96:7--21.) P.O. Girdusky informed Plaintiff that he was being arrested because Det. Grady had reported that Plaintiff had pulled a knife on him. (Pl.'s Dep. 96:23-- 97:4.) Plaintiff was charged with Menacing in the Second Degree, under N.Y. Penal Law § 120.14, and Harassment in the Second Degree, under N.Y. Penal Law § 240.26. (Colihan Decl., Ex. 1.) Officer Girdusky completed and signed a Criminal Court Complaint stating that Plaintiff had pulled a knife on Det. Grady, and that the complaining witness was Det. Grady. (Fourth Colihan Decl., Ex. 1.) Plaintiff denied ever having a knife, and no knife was recovered. (Pl.'s Dep. 97:18-19; Fourth Colihan Decl., Ex. 4, at 2.)

Plaintiff spent approximately 23 hours in custody. (Pl.'s Grady 56.1 Stmt. ¶ 46.) The District Attorney's office prepared an intake report stating that Det. Grady desired to prosecute Plaintiff, and also that Det. Grady wanted a Temporary Order of Protection ("TPO") against Plaintiff. (Pl.'s Grady 56.1 Stmt. ¶¶ 47--49; Fourth Colihan Decl., Ex. 4, at 1.) On May 10, 2005, Det. Grady signed a Supporting Declaration, swearing that he had read the accusatory instrument charging Plaintiff with Menacing in the Second Degree and Harassment in the Second Degree, and that the facts underlying those criminal charges were true. (Pl.'s 56.1 Stmt. ¶¶ 23, 51; Fourth Colihan Decl., Ex. 2.)

The criminal charges against Plaintiff were dismissed on February 27, 2006. (Fourth Colihan Decl., Ex. 5.) The parties have not proffered any evidence as to the reason for the dismissal.

For the following reasons, the Court grants the City Defendants' motion for summary judgment, and grants in part and denies in part Det. Grady's motion for partial summary judgment.


Legal Standard

Summary judgment is to be granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In opposing the motion, the nonmoving party may not rest on mere arguments that there are contested facts, but must "set forth specific facts showing that there is a genuine issue." Fed. R. Civ. P. 56(e). The facts will be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences shall be drawn on the non-movant's behalf. Am. Cas. Co. of Reading, Pa v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). Summary judgment is not appropriate if there are disputes about material facts "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). However, ...

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