Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allan Teller v. City of Schenectady; Jonathan Favata

June 3, 2011

ALLAN TELLER, PLAINTIFF,
v.
CITY OF SCHENECTADY; JONATHAN FAVATA, INDIVIDUALLY AND AS AN AGENT AND/OR EMPLOYEE AND POLICE OFFICER OF THE CITY OF SCHENECTADY AND THE CITY OF SCHENECTADY POLICE DEPARTMENT; AND KATHLEEN BOUDREAU, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff filed the present action on June 24, 2010, pursuant to 42 U.S.C. §§ 1983 and 1988. See Dkt. No. 1. Currently before the Court is plaintiff's motion for a default judgment against defendant Kathleen Boudreau. See Dkt. No. 24. For the reasons set forth below, plaintiff's motion is granted.

II. BACKGROUND

On June 15, 2007, following a conviction in Albany County Court, plaintiff was sentenced to serve a term of five-years' probation. See Dkt. No. 1 at ¶ 11. On or about June 15, 2009, defendant Boudreau assaulted plaintiff, which caused plaintiff to decide to move from the residence that they jointly shared. See id. at ¶ 14. On July 2, 2009, plaintiff went with his mother to defendant Boudreau's apartment in Schenectady, New York, to retrieve some of his belongings still in the apartment. See id. at ¶ 15. Shortly after their arrival, but before they entered the apartment, City of Schenectady police officers were called to the apartment and arrived there at around 3:00 p.m. See id. at ¶ 16. Defendant Favata was among the police officers who were dispatched to the apartment. See id. at ¶ 17. "The City of Schenectady police and defendant Favata determined that no official action was warranted at that time, that there was no probable cause to conclude that any crimes had been committed by [plaintiff], and neither plaintiff . . . nor his mother was arrested nor was any official action commenced against them on July 2, 2009." See id. at ¶ 18.

However, plaintiff alleges that, while defendant Favata was at the apartment on July 2, 2009, he and defendant Boudreau exchanged contact information. See id. at ¶ 19. In the days that followed, defendant Boudreau and defendant Favata began communicating with one another. See id. at ¶ 20. On July 4, 2009, defendant Boudreau and defendant Favata met at a restaurant in Schenectady. See id. at ¶ 21. While at the restaurant, defendant Boudreau stated to defendant Favata and others present that plaintiff had physically assaulted her in the past and she further made other disparaging statements concerning plaintiff; none of which were true. See id. at ¶¶ 22-23.

In response to these allegations, plaintiff contends that "defendant Favata agreed to assist defendant Boudreau in taking actions that would result in plaintiff . . . being arrested and prosecuted." See id. at ¶ 25. Specifically, defendant Favata informed defendant Boudreau how she could have plaintiff arrested, which would cause his probation to be violated and subsequent incarceration, and thereby interfere with his efforts to obtain custody and visitation rights with his and defendant Boudreau's minor children. See id. at ¶ 26.

"In furtherance of the discussions, Defendants[ ] Favata and Boudreau reached an agreement, and defendant Favata, under color of law of the State of New York and the City of Schenectady, in his capacity as a Police Officer of the City of Schenectady Police Department, while engaged in his official duties thereof, prepared, signed and filed two separate Criminal Informations against [plaintiff] in the Schenectady City Court on July 7, 2009 while fully aware that he had no[ ] probable cause or legal right to do so." See id. at ¶ 27. The first information charged plaintiff with Criminal Mischief in the Fourth Degree for allegedly taking defendant Boudreau's clothes out of her bedroom closet on July 2, 2009, throwing them on her bedroom floor, and then urinating on them. See id. at ¶ 30. The second information charged plaintiff with Criminal Contempt in the Second Degree for violating an order of protection through the commission of the act forming the basis of the Criminal Mischief in the Fourth Degree charge. See id. at ¶ 32. Plaintiff alleges that the statements in the criminal informations were false and known to be false when made by defendants. See id. at ¶¶ 33, 35.

Thereafter, defendant Favata obtained an arrest warrant and plaintiff was arrested on July 23, 2009. See id. at ¶¶ 34, 38. On July 30, 2009, plaintiff's probation officer, with the encouragement of defendant Boudreau's family, submitted a recommendation of incarceration to the Saratoga County Court. See id. at ¶ 39. On December 7, 2009, the two charges filed against plaintiff were dismissed by the Schenectady City Court. See id. at ¶ 41.*fn1

Plaintiff filed the present action on July 25, 2010. Plaintiff caused a copy of the complaint and summons to be personally served on defendant Boudreau on July 6, 2010. See Dkt. No. 8. Defendant Boudreau was required to answer the complaint by July 27, 2010, see Dkt. No. 24-1 at ¶ 9, but failed to do so. Moreover, defendant Boudreau did not respond to a deposition subpoena issued by Magistrate Judge Treece. See Dkt. No. 23. Defendant boudreau has not appeared in this action, made any motion, or otherwise undertaken to defend against the complaint. See id. at ¶ 8.

On August 23, 2010, the Clerk of the Court entered default against defendant Boudreau. See Dkt. No. 12. Plaintiff served its motion for default on defendant Boudreau on April 29, 2011, see Dkt. No. 25, to which Defendant Boudreau has failed to respond.

III. DISCUSSION

A. Entry of default judgment

"Rule 55(b) of the Federal Rules of Civil Procedure provides that when a party moves for judgment against an adverse party who has failed to answer or otherwise appear in the action, the court may enter judgment against the defaulting party." Coated Fabrics Co. v. Mirle Corp., No. 06-CV-5415, 2008 WL 163598, *4 (E.D.N.Y. Jan. 16, 2008) (citing Fed. R. Civ. P. 55(b)). "That rule, in tandem with the Northern District of New York Local Rule 55.2, sets forth certain procedural prerequisites that must be met before a default judgment may be entered[.]" Pert 35, Inc. v. Amari Aviation Ltd., No. 09-CV-0448, 2010 WL 1257949, *3 (N.D.N.Y. Mar. 5, 2010). More specifically, in order to grant plaintiff's motion for default judgment, plaintiff must satisfy the following requirements: "1) show that the defendant was properly served with a summons and complaint; 2) obtain the entry of default; and 3) provide an affidavit setting forth the salient facts ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.