The opinion of the court was delivered by: Wall, Magistrate Judge
Before the court are two motions for summary judgment made by the defendants in this case. One motion was submitted by defendants Cablevision Systems Corporation, Cablevision Systems New York City Corporation, Jeff Eiseman, Tony Venturella, and John Doe (collectively, the "Cablevision defendants"), see Docket Entry ("DE") , and the other by defendants County of Nassau, Nassau County Police Department, and Christopher J. Ferro (collectively, the "County defendants"). See DE . Plaintiff Yasmeen Mitchell ("Mitchell") has opposed the motions.
For the reasons set forth herein, the motions are granted as to the federal law claims, and the remaining state law claims are dismissed without prejudice.
The material facts, drawn from the Amended Complaint and the parties' Rule 56.1 Statements, are undisputed unless otherwise noted.
Cablevision's Investigation of Plaintiff's Use of its Services
Plaintiff Mitchell is an African American female who resided in apartment B1 of the building located at 145 Terrace Avenue, Hempstead, New York, starting in September 2003. In October 2003, Mitchell subscribed to cable television service from Cablevision. Her subscription was terminated at the end of December 2003. Cablevision claims the service was disconnected due to non-payment, see Cablevision 56.1 Statement at ¶81, DE  ("Cablevision Stmt"), while plaintiff claims she voluntarily contacted Cablevision and instructed it to discontinue her service. Pl. 56.1 Counter-Statement at ¶81, DE  ("Pl. Counter-Stmt/Cablevision"). Plaintiff claims that after she returned cable equipment to Cablevision, she owed a balance of $91 for services rendered. Id. ¶83.
The events surrounding the alleged cable connection to plaintiff's apartment in 2004 are contested. The apartment building had a central location referred to by the parties as a "lock box" or "junction box." Generally, Cablevision's cable signals went first to a junction box. Cablevision Stmt ¶18. At this location, one or more distribution taps would distribute the cable signal to individual apartments through separate cables. Id. ¶19. Each cable would be labeled with a tag or tags to designate which apartment the cable was connected to, the Cablevision account and customer number. Id. ¶¶23-24. If a resident did not subscribe to cable or if that resident's subscription had ended, "the cables running from those apartments would not be connected to a port on the distribution tap so that that person's apartment could not receive cable signals." Id. ¶21. In addition, a locking device would be attached to unused ports on the distribution taps to prevent unauthorized connections. Id. ¶22. Plaintiff claims that these generalities are not material to whether this set-up existed at plaintiff's apartment building. She does, however, seemingly concede that there was such a junction box or "common spot" in her apartment building. Pl. Counter-Stmt/Cablevision ¶11. She further argues that the junction box in her building was not secured or locked, but rather was wide open and in disarray. See, e.g., id.¶18.
Cablevision has described its three stage audit process regarding unauthorized cable connections. Pursuant to an audit schedule, all Cablevision connections were subjected to a primary audit. Cablevision Stmt ¶34. If the field audit technician discovered an unauthorized connection during the primary audit, a second pass would be scheduled to recheck the connection. Id. If an unauthorized connection was discovered during a second pass audit, the technician would disconnect the connection and place a locking device on the port. Id. ¶35. A third pass audit would be conducted on any unauthorized connection discovered on the second pass audit. Id. ¶36. During each step of the process, Cablevision's technicians documented their actions by utilizing the "Cabledata" computer data base and by taking photographs on the second and third passes. Id. ¶¶39,42.
Cablevision has provided affidavits from the three technicians who performed the audit process in this case as well as the documentation regarding those audits. The primary audit was conducted on February 13, 2004. According to the technician, based upon his review of the Cabledata, he found an unauthorized connection of the cable connection at plaintiff's residence, he reported the same to the Cablevision coordinator, and he "disconnected and locked the unauthorized connection at the port so that this information could be recorded in Cabledata." Bieber Aff., ¶31, DE . The second pass audit was conducted on April 15, 2004, at which time the technician reported the discovery of an unauthorized connection to plaintiff's apartment and took the same actions as above, as well as taking a digital photograph of the unauthorized connection. Kollar Aff., ¶¶38-41, DE . The photo shows a connected cable that is affixed with a red tag labeled "B1." Id. Ex. C. The third pass audit took place on May 18, 2004. The technician found that "the locking device, which had been securing the port that used to be attached to this cable, had been removed and that this cable was spliced onto that port to establish an unauthorized connection." Driscoll Aff., ¶35, DE . The technician again disconnected and locked the unauthorized connection "at the port" and photographed the connection. Id. ¶¶33, 36. The unauthorized connection was made by removing the locking device on a port and connecting the cable that ran to plaintiff's apartment to that port. Id. ¶¶29-30.
Although plaintiff disputes Cablevision's statements regarding the audit process as applied to her case, she does not truly dispute whether the technicians performed their duties as they described. She contends, however, that Cablevision technicians only checked to see if there was an unauthorized connection at the junction box, but never checked to see if that connection was in fact going to plaintiff's apartment. Pl. Counter-Stmt/Cablevision ¶11. She repeatedly states that Cablevision "never determined if Plaintiff had an unauthorized connection to Plaintiff's dwelling." See, e.g., id. ¶¶97-110 (emphasis in original). Her implied argument is that since they never physically followed the wire back to her apartment, they could not be certain, despite the labeling, that the cable actually terminated in her apartment.*fn1
At some point during Cablevision's audit process, plaintiff's case was assigned to defendant Tony Venturella, an investigator in its Cable & Communications System Security ("C&CSS") division. Cablevision Stmt ¶116. Venturella's supervisor was defendant Jeff Eiseman, the Director of the C&CSS division. Id. ¶¶2-3. As part of his investigation, Venturella created a hard-copy case file and a data-entry cover sheet to record information regarding the investigation. Id. ¶¶118-19. On or about April 16, 2004, Cablevision sent plaintiff a letter stating in part that "[d]uring a routine audit of our cable system, we found an apparent unauthorized connection to your home. We have therefore, removed the connection from our cable system." See Ltr. of 4/16/04, Venturella Aff., Ex. A. The letter further stated "[p]lease be aware that theft of cable service is a violation of both Federal and State law." Id. After the third pass audit, Cablevision sent a second letter to plaintiff on or about May 20, 2004. Cablevision Stmt ¶122.*fn2 The May 20th letter referenced Cablevision's discovery of an unauthorized connection to the cable system on the second and third pass audit dates of April 15, 2004 and May 18, 2004, again advised plaintiff that "theft of cable service is a violation of Federal and State Law, punishable by severe monetary sanctions and a possible prison sentence," and warned that "any future violations will result in additional legal action." See Ltr. of 5/20/04, Venturella Aff., Ex. A. Both letters were sent by defendant Eiseman in his capacity as Director of the C&CSS division.
Plaintiff acknowledges receiving the letters from Cablevision in April and May of 2004. See Pl. Counter-Stmt/Cablevision Ex. A, Mitchell 50-h transcript at 30:4-12. She has testified that she disregarded the first letter, but called Cablevision upon receipt of the second letter. Id. 31:6-8. It was during this call on June 1, 2004 that she allegedly spoke with defendant John Doe, a Cablevision customer service representative. 2d Am. Compl. at ¶¶45-46. At this time, she claims to have asked Cablevision to "please send someone out to my apartment to come cut the wire." Mitchell 50-h transcript at 41:13-15. According to plaintiff, although she was told someone would be sent out to disconnect the wire, nobody knocked on her door to report that the disconnect had been completed, and she did not hear from Cablevision again from May to October 2004. Id. 44:5-22. Plaintiff also testified that there was a "connection" up to October 24, 2004 and that she received channel twelve and TNT, although the latter was "staticky."
Id. 37:14 - 39:14. Cablevision notes that TNT can only be received through a cable connection. Naughton Aff. ¶5.
Cablevision has no record of her call on June 1, 2004 and states that Cablevision procedures would have required the logging of such a call. See Eiseman Aff. ¶42. Cablevision further notes, citing plaintiff's telephone records, that plaintiff did place a call to Cablevision on June 1, 2004, but that call lasted only 3 seconds. Acevedo Aff. ¶7 & Ex. A. Cablevision further states that its records do indicate that it received a call on May 3, 2005 and that the caller during this call, made well after Mitchell's arrest, "stated that she was not supposed to have cable but its [sic] on." Cablevision Stmt ¶196; Eiseman Aff. ¶43 & Ex. A.
Cablevision's Reporting of Alleged Theft of Services & Nassau County Police Response
On or about July 1, 2004, Venturella reported plaintiff to the Nassau County police department for theft of services. At that time, he provided the police with the Cablevision investigative case files for alleged unauthorized cable for plaintiff as well as others. Defendant Detective Ferro was assigned to the investigation of approximately ten complaints, including the one against plaintiff, and he met with Venturella on July 1, 2004 regarding Cablevision's complaints. Prior to July 1, 2004, Venturella had never met Ferro.
There was no activity by the police on Cablevision's complaint between July 1 and October 24, 2004, nor was there any contact in this time frame between the police and Cablevision regarding the complaint. On October 24, 2004, Ferro and Detective Mercado went to plaintiff's apartment "to investigate Cablevision's complaint that an unauthorized cable connection existed at that location." County Defs' Rule 56.1 Statement ("County Stmt") ¶23. Plaintiff argues that Ferro did not conduct an independent investigation but rather went to plaintiff's apartment to arrest her based on the information previously provided by Venturella. Pl. 56.1 Counter-Statement at ¶23, DE  ("Pl. Counter-Stmt/County").
Prior to knocking on the door, Ferro observed a coaxial cable entering plaintiff's apartment above the door. Ferro knocked on the door, identified himself and Detective Mercado as Nassau County police detectives to plaintiff, and told her they were there to investigate Cablevision's complaint. The detectives entered the apartment at plaintiff's invitation. Also present in the apartment for at least some of the time was plaintiff's then-boyfriend, William Flowers. At this juncture, the version of events given by Mitchell and Ferro diverge. None of the parties have provided affidavits or deposition testimony from either Mercado or Flowers.*fn3
The County defendants claim that plaintiff told Ferro that she "should not be receiving Cablevision's cable services and that the whole building was receiving illegal cable." County Stmt ¶29. They further claim that plaintiff voluntarily turned her television to channel 12 at Ferro's request, and that there was programming visible on that channel. Id. ¶31. Ferro "was aware that News 12 Long Island, which appeared on channel 12, was a service offered exclusively by Cablevision in the Long Island area." Ferro Aff. ¶22. Plaintiff claims that she did not make the statements to Ferro, Pl. Counter-Stmt/County ¶29, and that Ferro "never turned on the television at Plaintiff's apartment at any time when they visited her apartment to conduct their alleged investigation." Id. ¶31. Moreover, plaintiff points to Ferro's testimony that there was nothing on the programming he saw that indicated that it was coming from cable channel 12.Id.
The County defendants claim that based upon his investigation at plaintiff's residence, Ferro determined that she was receiving cable services through an unauthorized connection. County Stmt ¶32. Plaintiff counters that Ferro did not conduct an investigation, and he did not see anything that established any unauthorized cable connection. Pl. Counter-Stmt/County ¶32. The parties do not dispute that Ferro advised plaintiff that she was going to be charged with theft of services and that she was told that she would be taken to the police precinct and released on an appearance ticket if she did not have any outstanding warrants.
Detective Ferro called Venturella on October 24th, told him that the police had conducted an investigation and, as a result of that investigation, had arrested plaintiff. Venturella Aff. ¶46. Ferro asked Venturella to come to the precinct to prepare and sign a statement. Cablevision Stmt ¶¶147-48. In that statement or "Supporting Deposition," Venturella reviewed the discovery of unauthorized connections in April and May 2004, verified that two letters were sent to plaintiff, and concluded "I want Yasmeen R. Mitchell arrested for the unauthorized connection into Cablevision cable system." Venturella Aff., Ex. C.
As to the timing of her arrest, the parties do not dispute that plaintiff was en route to the precinct by 12:01 p.m. on October 24th, where she was charged with the misdemeanor crime of theft of services under New York Penal Law 165.15(4), issued a desk appearance ticket returnable on November 9, 2004, and released prior to 4:35 p.m. on October 24th. Plaintiff does not allege any physical injuries as the result of her arrest, see Pl. Counter-Stmt/County ¶47, but claims various emotional and consequential damages. Id.¶¶49-50.
Underlying Criminal Proceeding
Prior to trial, a Huntley hearing was held to determine the admissibility of the oral statements made by plaintiff to Ferro in her apartment on October 24, 2004. Those statements were found to be admissible. Decision of 12/15/05, Berry Aff. Ex. F. The criminal trial commenced with jury selection on January 30, 2007. At the close of the prosecution's case, the trial court issued an order of dismissal in Mitchell's favor. Trial Tr. at 395:21-22. Procedural History of Civil Litigation On October 24, 2005, plaintiff commenced this case. On May 24, 2007, District Judge Feuerstein*fn4 granted in part and denied in part the Cablevision defendant's motion to dismiss. See Mitchellv. County of Nassau, 2007 WL 1580068, at *1 (E.D.N.Y. May 24, 2007).*fn5 Plaintiff was given permission to file an amended complaint to "replead her malicious prosecution claim" and did so. The operative complaint in this matter is the Second Amended Complaint dated May 12, 2008. See 2d Am. Compl., DE .
For reasons that are not readily apparent, the Second Amended Complaint also contains claims expressly dismissed by Judge Feuerstein. Specifically, Judge Feuerstein dismissed 1) plaintiff's §1986 claim against Eiseman, 2) plaintiff's malicious prosecution and false arrest claims against Eiseman and "John Doe," and 3) plaintiff's negligence claim against the Cablevision defendants. Mitchell, 2007 WL 1580068, at *13. As these claims have already been dismissed, they will not be considered on these motions. In addition, plaintiff has indicated in her brief in opposition to Cablevision's motion that she is withdrawing her claims based upon 42 U.S.C. §§1985 and 1986. See Pl. Opp/Cablevision at 1, 18. Accordingly, those claims (Third, Fourth) are deemed withdrawn and dismissed from this action.
As against the County defendants, the following claims remain: false arrest and malicious prosecution under §1983 and state law (First & Fifth), §1983 municipal liability (Second), negligence (Seventh), and "vicarious liability" (Ninth). As to the Cablevision defendants, the following causes of action remain: "vicarious liability" (Eighth), respondeat superior for the negligent hiring, supervision, and retention of Eiseman, Venturella, and John Doe. (Tenth), and state law claims for false arrest and malicious prosecution against Cablevision, and Venturella. (Fifth). Additionally, plaintiff in her opposition papers argues that she has adequately pled a §1983 conspiracy claim against all defendants. If accepted, this would be the sole federal cause of action against the Cablevision defendants. The defendants argue that it is too late to present such a claim, and that any such claim would fail as a matter of law.
I. Summary Judgment Standards
"'Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.'" Jamaica Ash & Rubbish Removal Co. v. Ferguson, 85 F. Supp. 2d 174, 180 (E.D.N.Y. 2000) (quoting In re Blackwood Assocs., L.P. 153 F.3d 61, 67 (2d Cir. 1998) and citing Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In deciding a summary judgment motion, the district court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the opposing party. See Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The applicable substantive law determines which facts are critical and which are irrelevant. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
The trial court's responsibility is "'limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.'" B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). When, however, there is nothing more than a "metaphysical doubt as to the material facts," summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Rather, there must exist 'specific facts showing that there is a genuine issue for trial' in order to deny summary judgment as to a particular claim." Jamaica Ash & Rubbish, 85 F. Supp. 2d at 180 (quoting Celotex, 477 U.S. at 322). To defeat a motion for summary judgment, "the non-moving party must provide this Court 'with ...