AMENDED MEMORANDUM-DECISION AND ORDER
Presently before the Court are a partial Motion for summary judgment (Dkt. No. 11) filed by Defendants and a partial cross-Motion for summary judgment (Dkt. No. 15) filed by Plaintiff Jeffrie Moore ("Moore" or "Plaintiff"). Defendant parties, as designated, are Kevin Meehan, who Plaintiff sues individually and as an employee of the Albany Police Department; John and Jane Doe, representing other employees of the Albany Police Department whose actual names are presently unknown; and the City of Albany, New York (collectively, "Defendants"). The Court shall address these Motions in turn.
The instant action alleges six causes of actions against Albany Police Department officers and the City of Albany, New York arising from an incident occurring on June 23, 2007. At approximately 8:45 p.m., the Defendant officers arrived at Three Lincoln Square, Albany, NY in response to a radio call indicating that "a tall black male 6'3" with afro, dark brown T-shirt, dark jeans" was selling drugs in that area. At approximately 9:30 p.m., the Plaintiff was found by the officers to be situated outside his residence at One Lincoln Square, near the site of the reported seller of illegal drugs. There is disagreement between the parties as to whether and to what extent Plaintiff met the description given in the radio call. In any case, the officers approached the Plaintiff and made assorted inquiries about his person. There is substantial disagreement as to what transpired next; it is alleged by Plaintiff that the officers initiated a physical altercation and inflicted various forms of force upon his body, particularly with pepper spray and a baton. While the Defendants' version of events is unclear, they recognize that a physical altercation occurred, and that the dispute occasioned by Plaintiff's refusal to answer the officers' questions led the officers to arrest and charge Plaintiff with Disorderly Conduct, Obstruction of Governmental Administration and Resisting Arrest.
All the charges against Plaintiff were dismissed by the Honorable Thomas K. Keefe, Albany City Court Judge, on November 15, 2007 because the charging instrument was facially invalid. See Dkt. No. 11, Ex. E. As to the obstruction charge, the court wrote that "the People's sole argument -that Penal Law 195.05 does not require physical force - appears to be based entirely on a misreading of the statute and is at odds with prevailing caselaw" and that the People's "sole allegation is that the defendant failed to provide pedigree information to a police officer upon request. . . . [which] cannot support a Penal Law § 195.05 charge." Id. As to the disorderly conduct charge, because it rested entirely on a conclusory statement about the use of obscene language by Moore, the court found that "no facts have been alleged to support a conclusion that the defendant's statements were made, 'with intent to cause public inconvenience, annoyance or alarm, or recklessly created a risk thereof' - a material element of the charged crime." Id. (emphasis in original). As to the resisting arrest charge, the court found that "no factual allegations are made establishing that the underlying arrest was authorized" and that the People could not cure this defect in opposition. Id.
Plaintiff filed suit against Defendants on March 10, 2008 in Albany County Supreme Court. Pursuant to 28 U.S.C. § 1441(b) and due to the nature of Plaintiff's claims, Defendants removed the action to this Court on April 1, 2008 on the basis of district courts' federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff asserts the following claims: (1) denial of liberty under 42 U.S.C. 1983; (2) excessive force under 42 U.S.C. 1983; (3) malicious prosecution under 42 U.S.C. 1983; (4) common law false arrest and imprisonment; (5) common law assault and battery; (6) and common law malicious prosecution. Plaintiff seeks damages and attorney fees pursuant to 42 U.S.C. § 1988. On July 28, 2009, Defendants moved for summary judgment on the Plaintiff's Third and Sixth Claims, the malicious prosecution claims, and to dismiss the § 1983 claims against the City of Albany. On September 1, 2009, Plaintiff, along with opposing Defendants' Motion in part, moved for partial summary judgment on issues pertaining to the Third and Sixth Counts.
Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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); Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing the judgment.'" Brown v. Henderson, 257 F.2d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings;" bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment. FED. R. CIV. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). "Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony." Brown, 257 F.3d at 251 (citation omitted).
Defendants contend that Plaintiff's Third and Sixth Claims fail as a matter of law because Plaintiff cannot establish at least one of the necessary elements of the tort of malicious prosecution.*fn1
"To succeed on a claim for malicious prosecution, the plaintiff must show that a prosecution was initiated against him, that it was brought with malice but without probable cause to believe that it could succeed and that the prosecution terminated in favor of the accused plaintiff." Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003) (citing Martinez v. City of Schenectady, 97 N.Y.2d 78, 84 (Ct. App. 2001) (other citation omitted). It is argued that Plaintiff's prosecution was not terminated in his favor and that he failed to allege malice on the part of Defendants. Neither of these arguments is persuasive, however, as the Court finds that the prosecution for the underlying criminal action in the instant case was resolved in favor of the Plaintiff and that the Plaintiff alleged facts which render the issue of malice a question for the jury.
The Defendants' assertion that the prosecution of the Plaintiff was not resolved in his favor rests entirely on the view that a criminal court's dismissal on grounds that the charging instrument lacked sufficient information to be valid is not a termination in favor a plaintiff. Taken by itself, the proposition that such a dismissal is not a favorable resolution is most likely true. See Smith-Hunter v. Harvey, 95 N.Y.2d 191, 197 (Ct. App. 2000) (discussing a case in which the court held, in a summary judgment context, that a dismissal without prejudice of the information for insufficiency under NY CPL 170.30(1)(a) and 170.35(1)(a) did not provide the basis for a malicious prosecution claim because "the dismissal without prejudice was not a final termination of the action" and the People "remained at ...