The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
AMENDED*fn1 MEMORANDUM, DECISION AND ORDER
Presently before the court in this civil rights action are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants seek summary judgment dismissing the entire complaint. Plaintiffs oppose and cross move for summary judgment on their second cause of action. Defendants oppose and both parties have submitted their respective reply papers. Decision on the pending motions is based entirely on the submitted papers, without oral argument. For the reasons that follow, defendants' motion is granted in part and denied in part, and plaintiffs' motion is granted in part and denied in part.
II. Procedural Background
Plaintiffs Constance Hines and her daughter, Marshay Hines ("Plaintiffs") bring this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated rights guaranteed them by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Defendants are the City of Albany ("the City"); the Albany Chief of Police, James W. Tuffey ("Tuffey"); Assistant Chief of Police, Steven Krokoff*fn2 and ten named Albany Police Department ("APD") officers.
By their Second Amended Complaint,*fn3 Plaintiffs set forth claims against the City pursuant to Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 2037-38 (1978), as well as claims against the individual defendants based on two separate constitutional violations. First, Plaintiffs allege that all defendants except Michael Haggerty ("M. Haggerty") violated their Fourth and Fourteenth Amendment rights when they were held for approximately eight hours pending the application for a search warrant. Second, plaintiff Constance Hines alleges that all defendants violated her Fourth, Fifth and Fourteenth Amendment rights when they seized her vehicle without probable cause and without a warrant, and when they subsequently failed to provide her with a hearing or any kind of process to determine whether the vehicle should be returned to her or retained by the City.
The following facts, relevant to the two claimed constitutional violations, are undisputed unless otherwise noted.*fn4
In or around September 2005, the New York State Office of the Attorney General's Organized Crime Task Force ("OAG"), the New York State Police ("the State Police") and APD commenced a multi-agency investigation into the distribution and sale of illegal narcotics within the Albany, New York area. The OAG was the lead agency in this investigation and was responsible for the criminal prosecutions incurred as a result of the investigation. One of the targets of the investigations was Prince Hines, also known as "J-Rock." Prince resided at 38 Osborne Street in Albany along with his mother and sister, plaintiffs Constance and Marshay Hines.
A. Seizure of Constance Hines's Vehicle
Constance Hines owned a 2000 Cadillac Escalade ("Escalade" or "vehicle") that was registered in her name. According to Defendants, Prince Hines "was a known drug dealer in [Albany] and often conducted his illegal activity from" the Escalade. Defs.' Statement of Material Facts ("SOMF") ¶ 7, Dkt. No. 71-2. Defendants further allege that "the Escalade was widely known throughout the community as Prince's vehicle." Id. ¶ 9. Plaintiffs dispute that the evidence establishes that Prince was conducting illegal activity from the vehicle, and further argue that the evidence Defendants cite to support their latter assertion is based on "inadmissible hearsay and opinion without any supporting foundational evidence." See Pls.' Resp. to Defs.' SOMF ¶¶ 7, 9, Dkt. No. 77-7.
Defendants cite deposition testimony of John W. Dormin ("Dormin"), who was the Assistant Deputy Attorney General that was assigned to prosecute the criminal charges against Prince Hines. See Dep. of John W. Dormin, May 28, 2009, 5:7-17; 61:3-11, at Ex. A to Aff. of Phillip G. Steck, Oct. 9, 2009, Dkt. No. 77 ("Steck Aff."). Dormin explained the basis of targeting the Escalade for seizure:
Prince Hines used the  Escalade throughout this conspiracy as his main mode of transportation. As I testified earlier, this conspiracy transported drugs through vehicles primarily. There was a prior arrest of Mr. Hines in that vehicle, in possession of narcotics. There were observations -- I recall being told of observations by various investigators of Mr. Hines using the vehicle or moving about in the conduct of this drug conspiracy in the vehicle.
Dormin Dep., 59:17-60:7. Clearly, Dormin's testimony is, in part, hearsay, insofar as it is offered to support Defendants' factual assertion that the Escalade was known throughout the community as Prince's vehicle and was used by Prince to conduct illegal activity in furtherance of the conspiracy. Also, Dormin does not provide the foundation for his opinion that Prince used the Escalade throughout this conspiracy as his main mode of transportation. Thus, by itself, the submitted testimony of Dormin would be inadmissible to support the Defendants' factual assertion.
Defendants' also cite deposition testimony from defendant Jeff Roberts ("Roberts") that throughout his surveillance of Prince Hines as well as his presence in the neighborhood working other cases, he regularly saw Prince driving the Escalade. See Dep. of Jeffrey Roberts, Apr. 8, 2009, 10:18-11:8, at Ex. X to Aff. of Stephen J. Rehfuss, Aug. 14, 2009, Dkt. No. 71 ("Rehfuss Aff."). Further, Constance Hines testified that between September 2005 and April 2006, Prince would have control of the Escalade during the day once or twice per week. See Dep. of Constance Inger Hines, Mar. 26, 2009, at Ex. B to Steck Aff. and Ex. HH to Rehfuss Aff.
In support of their assertion that Prince was a known drug dealer and often conducted illegal activity from the Escalade, Defendants cite deposition testimony of defendant Alfred Martin ("Martin") that he knew Prince to be a member of a certain gang on the south end of Albany and that for a period of about three years they had a "working relationship" and knew each other by face. Dep. of Alfred Martin, Apr. 9, 2009, 10:17-11:2, at Ex. BB to Rehfuss Aff. Martin also testified that he had "been a party to [Prince] being arrested for drugs." Id., at 10:20-22. To be sure, Defendants submitted a copy of a January 4, 2004 incident report, which reflects that Prince was charged with criminal possession of a controlled substance and criminal possession of a narcotic with intent to sell after a traffic stop during which Prince was driving a 2000 Cadillac Escalade. See Ex. D to Rehfuss Aff.*fn5 According to the report, crack cocaine was found in the driver's side door. See id. Thus, the only evidence in this record that Prince ever conducted illegal activity from the Escalade is his January 2004 arrest.
After several months of surveillance by the OAG, APD and the State Police, Dormin obtained sealed indictments and arrest warrants for approximately fifteen individuals, including Prince Hines, in connection with drug activity within the City of Albany. At approximately 6:25 a.m. on April 29, 2006 certain members of APD executed the arrest warrant for Prince Hines at 38 Osborne Street. During the course of his arrest, Prince admitted to possessing marijuana in his bedroom. Based on this admission, defendant John Monte ("Monte") applied for and received a warrant to search 38 Osborne St. See Ex. H to Rehfuss Aff. Prior to the date of Prince's arrest, a meeting was held between APD, OAG and the State Police to discuss the execution of the arrest warrants. At that time, a discussion took place regarding a list of vehicles that were targeted for possible forfeiture, including the Escalade. See Dormin Dep., 58:8-59:9. According to Dormin, he was asked at this meeting if he believed there was sufficient evidence to take possession of the Escalade and Dormin responded that he "believed there was." Id., 44:1-20. Dormin also testified that during the meeting, APD expressed an interest in forfeiting the Escalade. See id., 75:21-76:3.
On April 29, 2006, in the course of executing the arrest warrant for Prince, APD seized the Escalade. Plaintiffs submit that the Escalade was seized without a warrant, citing only an attorney affidavit for support. Defendants object on the basis that the statement is not supported by admissible evidence. To be sure, attorney affidavits are not part of the record for purposes of a motion for summary judgment. See N.D.N.Y. R. 7.1(a)(3); Fed. R. Civ. P. 56(c)(4). See also Randell
v. United States, 64 F.3d 101, 109 (2d Cir.1995). Here, counsel for Plaintiffs submits by affidavit that his examination of the record reflects that APD never obtained a warrant to search or seize the Escalade. See Steck Aff. ¶ 8. Without waiving their objection, Defendants deny this statement, arguing that Dormin "unequivocally testified that the APD had authority to search and seize the vehicle pursuant to the arrest warrant he obtained, as well as the search warrant later obtained by the APD." Defs.' Resp. to Pls.' SOMF at ¶ 4, Dkt. No. 80-2, citing Dormin Dep., 44-45. In fact, there is nothing unequivocal about Dormin's testimony in this regard. For example, the portion of his testimony cited by Defendants merely represents that about a week before Prince's arrest, Dormin stated that there was sufficient evidence to take possession of the Escalade, and it was agreed that the police would seize the Escalade in the course of Prince's arrest. Dormin also testified that APD did not apply for a warrant to seize the Escalade, see Dormin Dep., 43:18-23, but earlier testified that the warrant to search 38 Osborne Street references a vehicle and "does specify the Cadillac Escalade[,]" 8:19-9:6. When asked to identify the location of the warrant that specifies the Escalade, Dormin cited the section directing a search of 38 Osborne Street, including "other areas that  Prince  has dominion and control over, to include but not limited to a yard, storage area, shed, attic, basement or safe" as well as the section describing property to be seized as items "that prove ownership or control of the above described location, vehicle or item and/or Possession, Sale or Conspiracy to Possess, Sell and Distribute [Marihuana]." See id., 8:19-9:20; Ex. H to Rehfuss Aff. Clearly the above-cited language does not mention the Escalade specifically. Moreover, the reference to "vehicle" relates to any "above described" vehicle, of which there is none. At best, "other areas that  Prince  has dominion and control over" could be interpreted to include the Escalade. Nonetheless, the application for the search warrant was made after the Escalade was seized, and the arrest warrant makes no mention of the Escalade or any vehicle whatsoever.
On April 29, 2006, Roberts transported the vehicle from 38 Osborne Street to the APD traffic safety vehicle lot. See Dep. of Brian D. Quinn, Mar. 16, 2009, 33:17-34:16; 44:11-17, Ex. W to Rehfuss Aff. Roberts completed a "Property Report" regarding the Escalade when it was taken into custody. See Roberts Dep., 16:23-17-9. See also Ex. J to Rehfuss Aff. According to Roberts, the vehicle was seized per the direction of OAG. See Roberts Dep., 18:17-22. Roberts also testified that he authorized the seizure of the vehicle, and that he was responsible for the vehicle from the time it was seized until it was transferred to the traffic safety lot. See id., 20:1-19. The vehicle was held there for forfeiture proceedings at the direction of Defendant Quinn. See Ex. I to Rehfuss Aff.
According to Dormin, once a criminal case concluded, it was up to the police agency with custody of the vehicle to decide whether or not it should be forfeited. See Dormin Dep. 67:6-23. In this case, according to Dormin, that agency was APD. See id., 10-63:2. According to Quinn, Dormin requested that the Escalade be seized for possible forfeiture, and it was up to Quinn's discretion whether to comply with that request. See Quinn Dep., 32:21-34:4; Dep. of James
W. Tuffey, June 23, 2009, 17:7-18:20, Ex. U to Rehfuss Aff. Dormin testified that prior to the arrest of Prince Hines, it was determined that the vehicle was to be seized as evidence for his criminal prosecution, and that during the course of the criminal prosecution by OAG, it was decided that the vehicle would be held as evidence. See Dormin Dep., 81:8-82:3. Dormin also testified that there were no photographs taken of the vehicle, nor was it his intent to bring the vehicle into the courtroom during a criminal trial. See id., 52:14-53:1.
On April 29, 2006, APD found no contraband in the Escalade, nor did it find contraband during an inventory search of the Escalade, conducted that same day or soon thereafter.
After the events of April 29, 2006, Constance Hines repeatedly contacted OAG, APD, and even the criminal court, seeking the return of her vehicle. On May 23, 2006, Constance Hines's then counsel wrote to Dormin seeking return of the Escalade. Dormin replied that "[w]e will not agree to release the car at this time." Ex. M to Rehfuss Aff. Dormin explained that the vehicle "is evidence in an ongoing investigation and a pending criminal charge" and "evidence exists that would support a forfeiture of the car at the conclusion of the criminal case." Id. Dormin testified that he never took any steps to forfeit the vehicle. See Dormin Dep., 2-8. On August 2, 2006, and again on August 15, 2006, Constance Hines's current counsel wrote to Dormin seeking return of the Escalade. On September 6, 2006, Tuffey*fn6 replied that the "vehicle is in the possession of [APD]. [APD] and [OAG] seized the vehicle pursuant to a narcotics investigation that is being conducted. The vehicle will be held by these agencies until said investigation is complete. At such time, [you] will be notified of the disposition of the vehicle." Ex. P to Rehfuss Aff.
Constance Hines also made repeated telephone calls to APD between April 29 and September 6, 2006 regarding the Escalade. See Dep. of Michael Haggerty, Apr. 8, 2009, 18:15-19; 20:19-20:2; 24:13-26, at Ex. EE to Rehfuss Aff. Those calls were dealt with by M. Haggerty, whose responsibility it is to develop and implement the procedures regarding seized assets for APD. See id., 8:19-22. His role is to initiate forfeiture proceedings once the assets have been seized. See id., 12:15-17. According to M. Haggerty, in this case, someone from OAG alerted him prior to April 29, 2006, that the Escalade, among other vehicles, would be seized, so that he could initiate the proper paperwork. See id., 9:9-10:13. Once the Escalade was seized, M. Haggerty went to the traffic safety lot and inspected the outside of the vehicle to make sure that it was secure. See id., 13:18-14:8. According to M. Haggerty, APD was holding the vehicle for OAG, who was actually prosecuting the case, "[s]o anything that was going to be done with [the vehicle,] would be done by them." Id., 14:9-14. Normally, under New York State law, according to M. Haggerty, the forfeiture procedure would be commenced by his issuing a letter of abandonment to the owner of the vehicle. No such letter was issued in this case. See id., 15:13-17-23. About a week after seizure of the Escalade, Dormin notified M. Haggerty by telephone that OAG intended to hold the vehicle, and that it should not be released until Dormin gave him authority to do so. See id., 18:2-16. Sometime thereafter, M. Haggerty made Tuffey aware of the substance of his conversation with Dormin. See id., 19:3-9. Thus, when M. Haggerty received a call from Constance Hines, he would call Dormin, who would indicate that the vehicle should be held until the criminal case is resolved. See id., 19:15-20:12; 21:19-22:3.
On June 27, 2007, Constance Hines wrote to Albany County Court Judge Stephen W. Herrick seeking information on the status of her vehicle. See Ex. H to Steck Aff. Constance Hines wrote that pursuant to a conversation she had that day with M. Haggerty, the vehicle is being held for OAG at an APD garage despite attorney Lee having said, at the final court appearance, that "he had no interest in [her] truck." Id. M. Haggerty testified that at some point in 2007, he received a call from a lawyer for OAG authorizing him to release the Escalade. Robert J. Lee, assistant deputy attorney general with OAG, notified M. Haggerty in writing on July 10, 2007, that the Escalade "is not needed as evidence in any criminal proceedings" and OAG "will not seek forfeiture of this vehicle." Ex. Q to Rehfuss Aff. Accordingly, Lee wrote, "this vehicle can be released to the registered owner." Id. M. Haggerty thereafter authorized the vehicle to be released from the traffic safety division and informed Constance Hines by telephone that she could come and pick up her vehicle. That same day, Constance Hines picked up the vehicle. See id., 25:16-28:11.
B. Seizure of Constance and Marshay Hines
At approximately 6:25 a.m. on April 29, 2006 one team of officers from APD's Emergency Services Team ("EST") was stationed at the front door and another at the back door of 38 Osborne Street. These officers, including Monte, Martin, and Brian Plante ("Plante"), then entered the residence in order to effectuate the arrest warrant for Prince Hines.
During the time that officers searched for Prince Hines, arrested him and removed him from the house, it is undisputed that Constance and Marshay Hines were secured and held with handcuffs. It is also undisputed that during this time, Plaintiffs were secured for their safety. See Defs.' SOMF ¶43; Pls.' Resp. to Defs.' SOMF ¶ 43.*fn7 Moreover, it is undisputed that the defendant officers who were effectuating the arrest of Prince Hines were inside 38 Osborne Street for ten ...