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Walsh v. City of Kingston

February 23, 2010


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff commenced this action on June 11, 2008 pursuant to 42 U.S.C.§ 1983, alleging use of excessive force on the part of police officers of the City of Kingston. He also brings a municipal policy claim against the City of Kingston. Defendants move for Summary Judgment pursuant to Fed. R. Civ. P. 56. Plaintiff opposes portions of this motion, and concedes the claims against Defendants Negron, Zell and the City of Kingston.


In determining whether to grant summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004); see also Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999). The party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); see also Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003) (A plaintiff may not create a question of fact by simply making vague, conclusory allegations or broad denials.).

The function of this court, in reviewing a motion for summary judgment, is somewhat limited. As explained in Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 558 (2d Cir. 2001),

[t]he function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried. Assessments of credibility and choices between conflicting versions of events are matters for the jury, not for the court on summary judgment.

The Court may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) ("Federal Rule of Civil Procedure 56(c) requires a court to grant a motion for summary judgment whenever it determines that there is no genuine issue of material fact to be tried.")). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

The Local Rules of the Northern District provide a mechanism for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This mechanism places the burden on the parties to marshal the evidence either in support of or in opposition to the motion. In this regard, Local Rule 7.1(a)(3) requires a party moving for summary judgment to submit a "Statement of Material Facts" which shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citationto the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits.

It does not, however, include attorney's affidavits.

Further, to ensure compliance with this policy of efficient resolution, Local Rule 7.1(a)(3) makes clear that "[f]ailure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion." In the event that the moving party fails to comply with Local Rule 7.1(a)(3), the Court is not required to conduct its own review of the record in support of movant's factual assertions. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002) ("We agree with those circuits that have held that Fed. R. Civ. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.").

Defendant has failed to comply with N.D.N.Y.L.R 7.1(a)(3) despite being aware of it. See Notice of Motion for Summary Judgment, Dkt. #31. Nevertheless, because Plaintiff admits many of the unsupported assertions in Defendant's Statement of Material Facts, the Court will decide the motion based upon the factual admissions and the properly supported facts supplied by the Plaintiff. It should also be noted that Defendants' "denial" of Plaintiff's counter Statement of Material Facts is improper under the Local Rules. See N.D.N.Y.L.R 7.1(a)(3); N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitting a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations.").


Plaintiff, Dylan Walsh ("Walsh"), was stopped during a routine checkpoint inspection by officers of the Kingston Police Department. Plaintiff fled the scene of the vehicle inspection stop, leading officers on a five minute "high speed chase" around the City of Kingston. Ex. 5 at 53:2-53:24. Plaintiff was apprehended by the officers following the conclusion of the chase, handcuffed, transported to the Kingston ...

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