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Cilauro v. Duff

May 18, 2009


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



The present case arises from plaintiff's arrest on April 27, 2005, at the State Trooper Barracks in Queensbury, New York. Plaintiff was arrested and charged with criminal possession of stolen property and resisting arrest. Plaintiff commenced the within action under 42 U.S.C. § 1983 claiming that defendant, John Duff, an investigator for the New York State Police Bureau of Criminal Investigation, used excessive force in executing his arrest in violation of the Fourth Amendment to the United States Constitution. Plaintiff also asserts § 1983 claims for false arrest and malicious prosecution and claims that defendant violated his Sixth Amendment right to counsel and his Fifth Amendment right of due process. Finally, plaintiff raises state law claims for false arrest and malicious prosecution. Presently before the Court is defendant's partial motion for summary judgment (Dkt. No. 19) seeking dismissal of plaintiff's first, third, fourth, fifth and sixth causes of action pursuant to Fed. R. Civ. P. 56.*fn1 Plaintiff has opposed defendant's motion.


The facts, unless otherwise noted, are undisputed. In April 2005, Steven Quirion, the owner of Bare Bones Furniture Store ("Bare Bones") in Glens Falls, New York, complained to the State Police that furniture was missing, and presumed stolen, from his warehouse. The warehouse was located on Luzerne Road in Queensbury, New York and was distinct from the showroom and store.

Trooper Warren Law was assigned to conduct an initial investigation of the matter.

Trooper Law traveled to the store and interviewed Mr. Quirion and Nehemia Rivera, a Bare Bones employee. Mr. Quirion indicated that he had not done a full inventory, but that certain items were missing including a dresser, a bar and nightstands. On April 26, 2005, Mr. Rivera provided a supporting deposition to Trooper Law and stated that he worked at the warehouse on weekends with Harry Mundell ("Mundell"), another Bare Bones employee. Mr. Rivera stated that people would come to the warehouse and Mundell would show them furniture. Mr. Rivera stated that "the people that live on 12 Beacon Street in the city of Glens Falls" were at the warehouse almost every weekend and they would pick up furniture without a receipt.*fn3 In January or February 2005, Mundell asked Mr. Rivera to help load the Bare Bones truck with two other men, who were not Bare Bones employees. Mr. Rivera noticed that the boxes were never opened and the items were never compared to receipts. After loading the truck, Mr. Rivera followed the truck in his own vehicle to 12 Beacon Street, Glens Falls, New York. Upon arriving, Mr. Rivera helped unload the items from the truck.

Based upon Mr. Rivera's statement, Trooper Law went to 12 Beacon Street and spoke with Lorraine Cilauro, plaintiff's wife.*fn4 Ms. Cilauro told Trooper Law that her husband had purchased furniture from Bare Bones and allowed Trooper Law into her home to see the items. On April 26, 2005, Ms. Cilauro provided a supporting deposition to Trooper Law. Ms. Cilauro stated that in March 2005, Bare Bones "people" delivered furniture to her house. Ms. Cilauro stated that her husband told her that he bought the furniture on Sunday at a warehouse from "a guy at Bare Bones who told him that he had purchased these items as overstock and was reselling them". Ms. Cilauro stated that a bar, dresser and nightstand, among other items, were at her home. Ms. Cilauro stated that her husband paid for the items in cash but she did not know the amount paid.

Upon completing his initial investigation, Trooper Law turned the matter over to defendant and advised defendant what he had learned from his investigation.*fn5 Defendant asked State Police Investigator Steven J. Wetmore ("Wetmore") to assist him with the investigation. On April 27, 2005, defendant and Wetmore went to the Bare Bones warehouse to speak with Mundell. Defendant asked Mundell to accompany them to the barracks for an interview.

According to Wetmore, Mundell was very cooperative during the interview and cried because he was "very concerned that he was going to lose his job". Initially, Mundell represented to defendant and Wetmore that the furniture was Mundell's to sell and that Mundell told plaintiff the same. However, when Mundell was asked to produce receipts, Mundell stated he could not.*fn6

During his deposition, Wetmore testified that Mundell admitted the he sold furniture from the Bare Bones warehouse to people, including plaintiff, for less than cost and without a receipt. According to Wetmore and defendant, Mundell provided one sworn statement.*fn7

In his sworn statement, Mundell averred that he was employed by Bare Bones and that he needed money so his friend, Jeff Fugazy, introduced him to a contractor named John who had a lot of money and needed furniture. Beginning in February 2005, Mundell sold furniture to plaintiff. Mundell stated that plaintiff came to the warehouse on Luzerne Road to pick out items. Mundell stated that he told plaintiff it would have to be a cash deal without a receipt. Mundell also stated that he told plaintiff that "some of the stuff was mine but [plaintiff] questioned why it was in Bare Bones boxes and I told him that it wasn't mine". Mundell claimed that plaintiff selected a King mattress set, 2 coffee tables, 3 sofas and a love seat. Plaintiff paid $825 (including a $25 tip) for the items. Mundell stated that he delivered the items to plaintiff's home at 12 West Beacon Street in Glens Falls. Mundell admitted to selling additional items to plaintiff two weeks later. At that time, plaintiff paid cash for a set of end tables ($50.00 each), a chest ($75.00) and a queen set of bedding ($100.00). In April 2005, plaintiff returned to the warehouse and purchased a bar and stools for $200.00. Mundell stated that plaintiff also wanted a set of "antler lamps" which were $180.00 but Mundell gave them to plaintiff at no cost. Defendant arrested Mundell on a charge of grand larceny. Defendant gave Mundell an appearance ticket and allowed Mundell to leave the barracks based upon his "attitude".

Later the same day, plaintiff appeared at the barracks and was interviewed by defendant and Wetmore.*fn8 Plaintiff admitted that he bought furniture from Mundell on two separate occasions, each time on a Sunday.*fn9 Plaintiff told defendant that he had one receipt for the furniture but did not produce the receipt. Plaintiff admitted to purchasing 15 pieces of furniture in the amount of $2,200.00, which he paid in cash. During his deposition, plaintiff testified that he told defendant that he did not know that the furniture was stolen. Defendant testified that he could not recall exactly what plaintiff stated regarding Mundell's representations to plaintiff and that plaintiff would not provide specifics other than the fact that "Mundell had told him that there was some of the stuff that he owned, but he purchased additional items". Wetmore testified that plaintiff, "did not discuss the specifics of his purchase of furniture from Mr. Mundell in any detail".

During the interview, plaintiff became irate and attempted to leave the interview room.*fn10

Defendant prevented plaintiff from leaving the room.*fn11 Plaintiff was arrested and charged with criminal possession of stolen property in the fourth degree and resisting arrest.

Plaintiff filed the within complaint alleging six causes of action. In the first cause of action, plaintiff alleges:

That the detention and arrest of plaintiff, John Cilauro, by defendant, John V. Duff, was wrongful, unlawful and unconstitutional, as there was no probable cause to ...

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