The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs Paul Williams and G.B., a twelve year old minor by C.B., her mother, ("G.B.") bring suit against the City of Rome; City of Rome Police Department; Officer Jason Paul; Officer John Williams; Sergeant Sandra Gerhardt; and Deputy Chief of Police Kevin Beach ("defendants"). All police personnel are named as defendants in both their individual and official capacities. Plaintiffs assert causes of action pursuant to 42 U.S.C. § 1983, including claims for false arrest, excessive force, and municipal liability, as well as claims arising under New York State law for assault, battery, negligence, and intentional and/or negligent infliction of emotional distress.
Plaintiff Williams ("plaintiff") moves for summary judgment of his federal law claims pursuant to Federal Rule of Civil Procedure 56. Defendants oppose and cross-move for summary judgment dismissing all of his claims. The parties have not moved with respect to G.B.'s claims. Oral argument was heard on May 15, 2009 in Utica, New York. Decision was reserved.
Plaintiff was employed at the Salvation Army Store (the "store") on Erie Boulevard in Rome, New York. On Sunday, January 7, 2007, he traveled to the store with four pre-teenage girls, including his daughter, his two stepdaughters (T.B. and plaintiff G.B.), and their friend. A driver traveling past the store placed a 911 telephone call reporting a possible burglary of the store after he observed plaintiff and one of the young girls carrying items from the store's entrance to an adjacent van.
Defendant Officer Paul was dispatched to the store and informed of a possible burglary in progress involving two unknown suspects and a gray van parked near the building. Upon arriving to the scene, he observed plaintiff's gray van parked on the east side of the building. He also observed that none of the store's lights were turned on and one of its doors was open. Plaintiff soon emerged from the open door at which point Officer Paul drew his weapon and ordered plaintiff to raise his hands in the air. Plaintiff was wearing baggy jeans, a baggy coat, a baggy shirt, and a backwards baseball cap. None of the clothes he was wearing were part of the Salvation Army's employee uniform.
The ensuing sequence and duration of events is partially contested by the parties, and all disputed facts should be viewed in the light most favorable to the non-moving party when considering each party's respective motion for summary judgment. Nevertheless, both parties agree that plaintiff complied with Officer Paul's requests to place his hands on the outside wall of the store. Officer Paul then handcuffed plaintiff and patted him down for weapons prior to asking him to explain his presence at the store. No weapons were found, and plaintiff explained that he was a store employee doing part of his job to help sort the store's inventory. The young girls accompanying plaintiff soon emerged from the store at which point Officer Paul pointed his weapon towards them and ordered them to stand near the wall.
Defendant Officer Williams was the next officer to arrive at the scene. Upon his arrival, he observed plaintiff in handcuffs alongside the four pre-teenage girls standing outside the store. Defendant Sergeant Gerhardt arrived shortly thereafter and entered the store with Officer Williams in order to determine if there were additional occupants inside. There was no sign of forced entry into the store, no alarm had sounded, and plaintiff was able to produce keys to the store which fit the lock for the store's entrance upon testing performed by Officer Williams. The young girls identified plaintiff as their father or friend's father and corroborated his story that they were helping him sort clothing as part of his job. Although not handcuffed, the girls were not permitted to leave the scene.
Plaintiff remained handcuffed until the store's manager, Bettina Carman, arrived at the scene to identify him as a store employee. Defendants provide several estimates of plaintiff's detention ranging from fifteen to thirty minutes, whereas plaintiff estimates he and the young girls were detained for approximately forty-five minutes.
A. Motion for Summary Judgment
Summary judgment is warranted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits reveal no genuine issue as to any material fact. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986). All facts, inferences, and ambiguities must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Mandell, 316 F.3d at 377. Initially, the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2458 (1986). After the moving party has satisfied its burden, the non-moving party must assert specific facts demonstrating there is a genuine issue to be decided at trial. FED. R. CIV. P. 56; Liberty Lobby, Inc., 450 U.S. at 250, 106 S.Ct. at 2511. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. There must be sufficient evidence upon which a reasonable fact finder could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356.
1. False Arrest -- Officer Paul
Under New York law, a plaintiff asserting a false arrest claim must show that: "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Defendant concedes that the only issue is whether plaintiff's confinement was privileged, i.e., whether there was probable cause to suspect he had committed a crime. (Def's. Mem. of Law in Supp. of Cross-Mot. for Summ. J., Dkt. No. 39, 2.) In order to have probable cause to detain a suspect, the arresting officer must have had "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Rather than contest what Officer Paul knew at the time he handcuffed plaintiff, the parties dispute only whether his knowledge at that moment rose to the level of probable cause. "It has long been recognized that, where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable ...