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Coward v. Town and Village of Harrison

September 30, 2009

NEVILLE COWARD, PLAINTIFF,
v.
THE TOWN AND VILLAGE OF HARRISON, THE POLICE DEPARTMENT FOR THE TOWN AND VILLAGE OF HARRISON, THE RECREATION DEPARTMENT FOR THE TOWN AND VILLAGE OF HARRISON, LIEUTENANT FRANK BISCEGLIA, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE POLICE DEPARTMENT OF THE TOWN AND VILLAGE OF HARRISON, DETECTIVE GARY CHIARELLA, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE POLICE DEPARTMENT OF THE TOWN AND VILLAGE OF HARRISON, RALPH TANCREDI, INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE POLICE DEPARTMENT OF THE TOWN AND VILLAGE OF HARRISON, STEPHEN MALFITANO, INDIVIDUALLY AND IN HIS CAPACITY AS THE SUPERVISOR/MAYOR OF THE TOWN AND VILLAGE OF HARRISON, RONALD BELMONT, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE RECREATION DEPARTMENT OF THE TOWN AND VILLAGE OF HARRISON, MARGARET MINISHI, INDIVIDUALLY AND IN HER CAPACITY AS AN EMPLOYEE OF THE RECREATION DEPARTMENT OF THE TOWN AND VILLAGE OF HARRISON, AND JOHN DOE ONE THROUGH TEN, INDIVIDUALLY AND IN THEIR CAPACITY AS EMPLOYEES OF THE POLICE DEPARTMENT FOR THE TOWN AND VILLAGE OF HARRISON, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Neville Coward ("Plaintiff") brings this action, pursuant to 42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. § 1983 ("Section 1983"), 42 U.S.C. § 2000a ("Section 2000a"), and state law, alleging that in the spring of 2003 the Town and Village of Harrison ("Harrison") and several of Harrison's officials and employees (collectively, "Defendants") subjected Plaintiff to, inter alia, false arrest, malicious prosecution, unreasonable search and seizure, and racially discriminatory exclusion from a public park. Defendants have moved for partial summary judgment. For the reasons stated herein, Defendants' motion is granted in part and denied in part.

I. Background

A. Plaintiff's May 3, 2003 Arrest

Plaintiff, an African-American male resident of Harrison (Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 1), was part of "[a] group of young adult males" who would play pickup baseball games at various parks in the vicinity of Harrison (Decl. of Joseph DeMatteo ("DeMatteo Decl.") Ex. A (Dep. of Neville Coward ("Pl. Dep. A") 47)). A few months before May 2003, Plaintiff was playing baseball at Silver Lake Park (the "Park") in Harrison, and was approached by a man named Mark Jaffe ("Jaffe"). (Id. 53.) Jaffe expressed interest in Plaintiff helping Jaffe's son to improve his baseball skills, and Plaintiff and Jaffe exchanged phone numbers. (Id. 53-55.)

Jaffe invited Plaintiff to watch Jaffe's sons play a Harrison Recreation League baseball game at the Park on May 3, 2003, and Plaintiff arrived at the Park between 2:00 and 3:00 p.m. on that date. (Def.'s 56.1 ¶ 2; Pl. Dep. A 104-05; DeMatteo Decl. Ex. L (Trial Testimony of Mark Jaffe ("Jaffe Testimony") 4-6.) Also playing in the game, among the other children aged approximately eleven or twelve, was Gerard Weinstein, a boy that Plaintiff had previously met through Jaffe. (Pl. Dep. A 45, 134-35, 146.) According to Plaintiff, during the game Plaintiff was "calling out" to one of Jaffe's sons, who was playing third base, and to Weinstein, who was pitching, telling them to "remember[] certain . . . fundamentals that [they] worked on," such as getting their body behind the ball when fielding and taking care not to injure themselves by throwing too hard. (Id. 45, 145-47.) Plaintiff was positioned in foul territory, approximately ten feet from the third-base line, and about ten feet in front of the bleachers. (Id. 147-48.) At a hearing prior to his deposition, Plaintiff testified that he did not "observe any other adults advising the children on how to play," stating that the other adult spectators were "just observing." (Decl. of Neil Torczyner, dated Dec. 10, 2008 ("Torczyner Reply Decl."), Ex. A (Mun. Hr'g Tr., dated Dec. 1, 2003), at 85-86.)

Plaintiff testified at his deposition that, after one or two innings, he left his position near the third-base line, and "wandered off to go exercise," which had been his primary reason for coming to the Park. (Decl. of Neil Torczyner, dated Sept. 17, 2008 ("Torczyner Decl."), Ex. E (Dep. of Neville Coward ("Pl. Dep. B") 159-60).)*fn1 Plaintiff went to exercise behind some bleachers, approximately forty-five to fifty yards from the baseball game. (Defs.' 56.1 ¶ 5.) He then saw Defendant Gary Chiarella, an off-duty Harrison police detective, "walking into the practice area beyond the bleachers where [Plaintiff] was located." (Pl. Dep. A 164; Defs.' 56.1 ¶ 6.) As Chiarella "walked past [Plaintiff]," Plaintiff said to him something to the effect that if he needed - I was trying to say do you need someone to catch behind the kids, to field the ball behind the kids? . . . I said something to the effect that can I play along with you guys or join you guys, something to that effect. . . . I was trying to say, since you have a few kids, that the ball usually will pass the kids and did you want, you know, an adult that would save you the trouble since you really want to get a full practice session in with the kids.

(Pl. Dep. A 164-65; Defs.' 56.1 ¶ 6.) Plaintiff was about three feet away from Chiarella and made this offer in a conversational tone. (Pl. Dep. A 171.) Chiarella did not respond to Plaintiff, and Plaintiff continued exercising. (Defs.' 56.1 ¶ 8.) Plaintiff's exercises included "stretching, cal[i]sthenics, jumping jacks and pitching motions." (Id. ¶ 9.)

According to Chiarella, when he was walking into the Park with his son and another tenor eleven-year-old boy to warm up for a Little League game, Plaintiff came up to me, directly up to me, to my face, and with the baseball glove on and a ball. While he is pounding his mitt he said, Coach, do you need any players. I was, like taken back. I just said, No, we don't need any players. You are a little too old to play with these guys. And I continued on another maybe 20 feet to the other side of the bleachers and started putting our stuff down. (Torczyner Decl. Ex. F. (Dep. of Gary Chiarella ("Defs.' Chiarella Dep.") 19).) As Chiarella and his son put on their cleats, Chiarella noticed that Plaintiff was "pounding his ball in his mitt, stretching, doing calisthenics, looking like he is getting ready to play." (Id. 20.) Chiarella saw Defendant Margaret Minishi, a Recreation Department supervisor, and told her about Plaintiff's behavior that Chiarella had just observed. (Id.) Minishi told Chiarella that "she had a problem with [Plaintiff] earlier," namely, "that he was standing by the main baseball field where the game was going on and critiquing the kids playing, telling them they were no good and telling them other things." (Id.) Minishi told Chiarella that "she asked [Plaintiff] to leave." (DeMatteo Decl. Ex. D (Dep. of Gary Chiarella ("Pl.'s Chiarella Dep.") 30.)*fn2 However, according to Jaffe, Plaintiff was not "doing anything different from [the type of] parents that yell out encouragement and critiques" during their children's baseball games, and was not doing anything that made Jaffe feel he should be removed. (DeMatteo Decl. Ex. F (Dep. of Mark Jaffe ("Jaffe Dep.") 81-82).)

Chiarella called the police precinct and related the incident to Defendant Frank Bisceglia, a Harrison police lieutenant, though his intent was not to have Plaintiff arrested. (Pl.'s Chiarella Dep. 42.) According to Chiarella, Plaintiff was not "insistent" on playing baseball with Chiarella and the children, and Chiarella did not tell Bisceglia anything to the contrary. (Id. 30, 33.) According to Bisceglia, Chiarella told him that Plaintiff "was being disruptive and scaring the parents and their children." (DeMatteo Decl. Ex. J (Dep. of Frank Bisceglia ("Bisceglia Dep.") 49.) Chiarella also told Bisceglia that Minishi had told Plaintiff to leave. (Id.)

Bisceglia testified that he arrived in the Park and saw Plaintiff "pretending to throw [a] ball toward the crowd, where there were people sitting." (Id. 42.) Bisceglia himself was "a little alarmed" when Plaintiff "turned toward [him] and . . . pretended to throw the ball," because "for a second, [Bisceglia] thought he was going to throw the ball at [Bisceglia]." (Id.) Plaintiff testified that Bisceglia appeared in uniform at the top of a hill and shouted at Plaintiff to go away. (Pl. Dep. A 186.) Bisceglia also said: "'You didn't hear what I said? You ignoring me? You crazy?'" (Id. 187.) Bisceglia walked down the hill toward Plaintiff, told Plaintiff that he was under arrest, grabbed Plaintiff's arm, forced him up against the bleachers, and handcuffed him. (Pl. Dep. B 188.) Plaintiff was then transported by car to the Harrison police precinct, where he received a desk appearance ticket; thereafter, he was driven back to the Park and released. (Defs.' 56.1 ¶¶ 13-14.) Plaintiff testified at his deposition that he was at the police precinct for between thirty minutes and an hour (id. ¶ 14), though he had testified at a previous hearing that he had been under arrest for "approximately two hours" (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1") ¶ 12).

Bisceglia signed a criminal complaint against Plaintiff, dated May 3, 2003, accusing Plaintiff of "[h]arassment in the second degree," stating that [Plaintiff] did intentionally harass, annoy and alarm children, coaches and the recreation supervisor who were trying to play baseball within the Silver Lake Park. [Plaintiff] did shout repeated insults and insist that he be allowed to play with the 10 and 11 year old children who were involved in the game. [Plaintiff] despite being asked by both coaches and the Harrison Recreation supervisor to stop continued his irrational and alarming behavior. (Torczyner Decl. Ex. H (May 3, 2003 Criminal Compl.).)

B. Plaintiff's Exclusion from the Park and May 31, 2003 Detention

Plaintiff's appearance ticket instructed him to appear in Justice Court on May 16, 2003. (Torczyner Decl. Ex. G (Appearance Ticket).) According to Plaintiff, when Bisceglia gave Plaintiff the ticket, he told Plaintiff, "'Don't go back into the park until you go to court.'" (Pl. Dep. A 211.) Around the time of Plaintiff's first appearance in court, Plaintiff went to the City Hall office of Defendant Ronald Belmont, the Commissioner of Recreation, who told Plaintiff that he should not go back to the Park.*fn3 (Id. 212-14.)

According to Belmont, Minishi had told him that Plaintiff "wanted to play ball with the boys," that he "insisted on playing ball," and that he "wanted to jump in the game and play." (Torczyner Decl. Ex. I (Dep. of Ronald Belmont ("Belmont Dep.") 37).) Chiarella told Belmont that Plaintiff "should not be allowed in the park" because "[a]n individual [who] acts this way should not be allowed in the park," and Belmont agreed. (Id. 49.) Belmont decided to direct his staff to exclude Plaintiff from the Park "[b]ecause he was arrested" for "inappropriate behavior." (Id. 36.) Belmont believed that he had the authority, as Superintendent of the Recreation Department, to "give a directive," based on his own "judgment" [sic], to exclude an individual from a public park in Harrison where Belmont perceived that there had been "actions by the individual that would prohibit [him] from going into a park," such as "abusive" conduct. (Id. 47.)

Plaintiff also sent a letter, dated May 7, 2003, to Defendant Stephen Malfitano, who was then Mayor of Harrison, decrying the use of "race consciousness and force towards [Plaintiff]" and "demand[ing] . . . that [Malfitano] pursue the swiftest measure to enforce [Plaintiff's] constitutional guarantees and provide equal access and right a wrong that was perpetuated by falsehood and myth." (Torczyner Decl. Ex. M (Pl. Letter, dated May 7, 2003).) According to Malfitano, he received the letter on May 9, 2003, read it, referred it to Harrison's law department, and discussed the situation with Belmont. (Torczyner Decl. Ex. L (Dep. of Stephen Malfitano ("Malfitano Dep.") 9-10).) At his deposition, Malfitano testified that he was satisfied with the Police and Recreation Departments' handling of the situation and did not personally take any further action. (Id. 15.) He also testified that Belmont did have the authority to ban an individual from the Park for misconduct. (Id. 18-19.)

On May 31, 2003, at 4:00 p.m., Plaintiff returned to the Park.*fn4 (Defs.' 56.1 ¶ 22.) Plaintiff testified that he had once again been invited by Jaffe to watch his son's baseball game and "to help him with his baseball skills." (Pl. Dep. B 215.) When Plaintiff arrived, he sat on the bleachers. (Pl. Dep. A 217.) Minishi came over and introduced herself to Plaintiff, calling him by name, and "advised [him] that [he] was not permitted to enter the park and asked [him] if [he] would leave . . . before she has to call the authorities." (Id. 217, 219-20.) Plaintiff responded to Minishi by saying "'certainly'" and proceeded to "walk[] back towards . . . the recreational facility with her," so that he could "talk to her specifically about why [he] wasn't allowed in the park," as Plaintiff "thought this whole incident [had been] resolved." (Id. 221.) According to Plaintiff, during this conversation Minishi denied that her request for Plaintiff to leave the Park was racially motivated, saying, "'I'm not doing this because you're black' . . . or something to that effect." (Id. 231.) At the end of Plaintiff's conversation with Minishi, Jaffe approached Plaintiff on his way out of the Park (id. 232), and Plaintiff and Jaffe walked toward "the far end of the park," which was near Plaintiff's house (Pl. Dep. B 234).

According to Minishi, Belmont had advised her that Plaintiff "was not allowed in the park anymore." (DeMatteo Decl. Ex. E (Dep. of Margaret Minishi ("Minishi Dep.") 15).) When Minishi saw Plaintiff sitting on the bleachers with Jaffe, she "called Mr. Belmont and told him and he told me to call the police department." (Id.)

Plaintiff testified that he and Jaffe exited the Park, walked up the hill toward Plaintiff's driveway, and were about to enter Plaintiff's yard when "a police officer came to the base of the hill and asked [Plaintiff and Jaffe] to come back down, and [they] politely said, 'No, we're not coming back down, that's too far a distance. You can come around if you want to talk to us,' because [Plaintiff and Jaffe] were already almost at the fence to get onto [Plaintiff's] driveway." (Pl. Dep. A 235.) As "the police officer was cooperative," Plaintiff and Jaffe continued to move up to Plaintiff's driveway, where they were then "detained" by the unidentified officer. (Id. 237.) The officer exited his vehicle and said that he had been "told that [Plaintiff] didn't belong in the park." (Pl. Dep. B 239.) He then asked Plaintiff and Jaffe "to stand up against the fence," approximately ten feet away from where they were standing at the time. (Id. 242-43.) After they went over to stand by the fence, the officer remained at the scene, and spoke on his phone for about one minute. (Id. 248-49.) Other police officers then arrived. (Id. 249.) The officer who had originally stopped Plaintiff and Jaffe indicated that the officers "were trying to check out whether [Plaintiff] w[as] permitted in the park." (Pl. Dep. A 262.) The officers said "they had to call people and get it resolved." (Id. 263-64.)

Plaintiff testified that he and Jaffe remained in Plaintiff's driveway with the police officers for "probably . . . the better part of a half an hour," or approximately thirty minutes.*fn5

(Pl. Dep. B 249-50.) According to Plaintiff, "there was a lot of abuse from a lot of cops in that 30 minutes." (Id. 250.) Plaintiff testified that one of the officers said that he had been present at Plaintiff's previous eviction (id. 251), that Defendant Ralph Tancredi (a police officer, not in uniform, who had arrived in the driveway from the inside of his sister's garage next door) asserted that Plaintiff had not paid his rent (id.), that Tancredi told the other officers that Plaintiff had written a letter to Malfitano (Pl. Dep. A 253), that Tancredi told the other officers that Plaintiff had permitted his prior landlord to retain his security deposit (id. 255), and that another officer mocked Plaintiff for reportedly having given his previous landlord a security deposit totaling $10,800, which was the equivalent of three months' rent (id. 255-57). At some point, "a sergeant . . . who lives at the far end . . . of the housing development" arrived in his car and "told Tancredi that he should stand down, [though] not in those words, and leave us alone." (Id. 259.) After approximately thirty minutes, one of the officers told Plaintiff and Jaffe that they were free to go, and the officers left. (Id. 250, 261.) The officer said that they "got a call from the lieutenant, [who] went down to speak to Miss Minishi, [and] it's okay," or "something to that effect." (Id. 250, 261-62.) Plaintiff and Jaffe were told that "it was okay for [them] to go" and that "[t]hey had resolved the issue." (Id. 262.)

Edward Arce, a Harrison police officer not named as a Defendant, testified that he interviewed Plaintiff, Minishi, and Belmont during Plaintiff's May 31 detention, that Minishi told him "that she had 'orders' from Belmont that [Plaintiff] was not allowed in the park," and that Minishi and Belmont told him that they did not wish to press charges against Plaintiff. (Defs.' 56.1 ¶¶ 37-39.)

C. June 2003 Incidents at Plaintiff's House

According to Plaintiff, on or about June 2, 2003 (Pl. Dep. B 336), Tancredi and Plaintiff had a conversation at Plaintiff's residence.*fn6 (DeMatteo Decl. Ex. B (Trial Testimony of Neville Coward ("Pl. Trial Testimony") 204-05).) Tancredi was there in order to serve court papers relating to a landlord-tenant dispute between Plaintiff and Tancredi's sister, Janet, who was Plaintiff's landlord. (Id. 205, 209-10.) When Tancredi knocked, Plaintiff opened the door and allowed Tancredi to enter his house. (Id. 206.) Plaintiff and Tancredi had a "cordial conversation" lasting at least fifteen minutes, Tancredi served Plaintiff with the court papers, and Tancredi exited Plaintiff's house. (Id. 209-10, 212.)

Soon after, another unidentified police officer arrived at the door of Plaintiff's house. (Pl. Dep. B 336.) Plaintiff spoke with the officer at the door for no more than two minutes. (Id. 337.) The officer said that Janet Tancredi had complained about Plaintiff using unspecified racial slurs. (Id. 342; Pl. Trial Testimony 200-03.) The officer said that Janet Tancredi had "filed a complaint of harassment" alleging that Plaintiff "had uttered racial slurs at her," and that the officer "doesn't want to hear none of [Plaintiff's] jailhouse bullshit." (Pl. Trial Testimony 202-03, 212-13.) The officer said to Plaintiff, "'You're going to go back in your house and you're not going to say anything to this lady.'" (Id. 200.)

Later that day, four or five unidentified police officers, including a lieutenant, entered Plaintiff's house. (Pl. Dep. B 349-50.) Two entered first, and the others entered later. (Id. 349.) The officers said that they were "investigating the landlady's complaint." (Id. 356.) Plaintiff was upset that the officers had "broke[n] in" and were in his house without his permission. (Id.) About five minutes after the officers arrived in Plaintiff's house, Plaintiff called his current counsel and gave the phone to the officers, but the officers hung up the phone. (Pl. Trial Testimony 214-15; Pl. Dep. B 361-62.) The officers asked Plaintiff to sit in the living room of his house, and refused to leave the house despite Plaintiff asking them to do so. (Pl. Trial Testimony 215-16.) Plaintiff called his attorney again, and his attorney "talked to the lieutenant and asked them politely to leave [Plaintiff's] house," and then they left. (Id. 216-17; Pl. Dep. B 361-62.) The officers were in Plaintiff's house for about thirty minutes. (Pl. Trial Testimony 217.)

D. Plaintiff's Criminal Trial

At some point a decision was made to supersede the criminal complaint against Plaintiff in order to charge him with disorderly conduct rather than harassment. (Bisceglia Dep. 44.) According to Bisceglia, he was not involved in the decision, but "believe[d] somebody told [him] that the DA's office suggested that we change it." (Id. 45.) Someone prepared a "Violation ...


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