The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Roger Harris commenced this action under 42 U.S.C. §§ 1981, 1983, and 1985 against defendants Harry Buffardi, Gordon Pollard, Timothy Bradt, John Does, County of Schenectady, Kathleen Rooney, Ronald Walsh, and Schenectady County Sheriff's Department (County defendants), and Schenectady County Sheriff's Benevolent Association, Local 3874/#82 and Walsh in his capacity as Union President (Union defendants), alleging violations of his rights under the Fourteenth Amendment of the United States Constitution, Title VII of the Civil Rights Act of 1964,*fn1 the ADEA,*fn2 New York State Human Rights Law (NYSHRL),*fn3 and New York State common law, including deprivation of property without due process, procedural due process and equal protection violations, race and age discrimination, bad faith inadequate investigation, fabrication of evidence, obstruction of justice, wrongful discharge and termination, intentional infliction of emotional distress (IIED), breach of duty of fair representation, interference with the right to make and enforce a contract, and conspiracy. (See 2d Am. Compl., Dkt. No. 33.) Pending are County defendants' motion for summary judgment, (Dkt. No. .55); Union defendants' motion for summary judgment, (Dkt. No. 57); Harris's cross-motion for summary judgment, (Dkt. No. 70); and Harris's untimely motion for declaratory and injunctive relief, (Dkt. No. 71).*fn4 For the reasons that follow, defendants' motions are granted, Harris's motions are denied, and the complaint is dismissed.
On May 20, 2007, plaintiff Roger Harris, a 62-year-old African-American male, was hired by the Schenectady County Sheriff's Department as a correction officer at the Schenectady County Jail. (See County Defs. SMF ¶ 3, Dkt. No. 55:2.) As a newly hired correction officer, Harris was considered probationary for his first year of employment. (See id. at ¶ 5.) During this probationary period, correction officers are expected to abide by the Sheriff's Department's Code of Conduct, which requires employees "to conduct themselves in a manner which brings credit to the department," "to represent themselves in the highest standards and traditions," "to conduct themselves in a professional manner at all times," not to "engag[e] in any criminal, infamous, dishonest, notorious or disgraceful conduct," and not to "use physical force or deadly physical force on any person except as defined by law." (Bernstein Aff., Ex. H, Code of Conduct, Dkt. No. 55:17.)
On September 28, 2007, Harris was involved in an off-duty altercation outside of McArthur's Pub in Schenectady, New York. (See County Defs. SMF ¶ 13, Dkt. No. 55:2.) As a result of his involvement in this altercation, members of the Schenectady City Police Department arrested Harris and charged him with assault in the third degree, N.Y. PENAL LAW § 120.00. (See Union Defs. SMF ¶¶ 14-15, Dkt. No. 57:1.) After being arrested, charged, and released, Harris's employment with the County was immediately terminated, (see id. at ¶ 16; County Defs. SMF ¶ 10, Dkt. No. 55:2), which was memorialized in a letter issued to Harris on September 28, 2007, by Undersheriff Gordon Pollard, (see Bradt Aff., Ex. J(a), Dkt. No. 55:25). Sheriff's Department Chief Timothy Bradt conducted an investigation into the alleged assault, during which he reviewed a video of the incident that had been recorded by MacArthur's Pub's surveillance camera. (See County Defs. SMF ¶¶ 12-13, Dkt. No. 55:2.) The video recording showed Harris assaulting an individual, Byron Lake, outside of McArthur's Pub. (See County Defs. June 23, 2010 Letter Exs., Dkt. No. 52; County Defs. SMF ¶ 13, Dkt. No. 55:2.) Ultimately, on March 15, 2010, after a jury trial in Schenectady City Court, Harris was found guilty of third-degree assault. (See County Defs. SMF ¶ 21, Dkt. No. 55:2; Bernstein Aff., Ex. K, Trial Tr. at 443-44, Dkt. No. 55:29.)
On September 29, 2007, Harris contacted Ronald Walsh, President of the Schenectady County Sheriff's Benevolent Association, Local 3874, Council 82. (See Union Defs. SMF ¶ 17, Dkt. No. 57:1.) In response to Harris's questions regarding his termination, Walsh avers that he explained to Harris that, as a probationary employee, he "could be dismissed for any legitimate purpose including being arrested," that he was "not entitled to a hearing under the collective bargaining agreement challenging [his] termination," and that the Union "would not be filing a grievance on [his] behalf given the [Sheriff's Department's] broad power to terminate a probationary employee." (Walsh Aff. ¶¶ 4-6, Dkt. No. 57:7.) Walsh, however, did advise Harris that the Union-though not obligated to-would assist in paying the costs associated with Harris's criminal matter by paying for the assistance of criminal attorney Steven Kouray. (See id. at ¶¶ 8-9.)
In October 2007, Harris met with Walsh and attorney Ennio Corsi, General Counsel to Council 82, to review and discuss Harris's termination and evaluate whether any action could be taken to challenge it. (See id. at ¶ 12.) During this meeting, Harris was again advised that the Sheriff's Department could terminate his probationary employment simply based on his arrest. (See id.) Harris was further advised to seek a second opinion and that he had the right to contact or file a grievance with the New York State Division of Human Rights (DHR) and the Equal Employment Opportunity Commission (EEOC). (See id. at ¶ 14;Union Defs. SMF ¶ 23, Dkt. No. 57:1; Corsi Aff. ¶ 16, Dkt. No. 70:5.)
Shortly thereafter, on October 31, 2007, Harris filed a notice with the Sheriff's Department requesting a "name clearing hearing" on the grounds that his termination violated his Fourteenth Amendment rights because it was based on "false and manufactured information ... [that] the parties knew or should have known was false[ly] manufactured (video evidence) and bias [sic]." (See Ryan Aff., Ex. E, Dkt. No. 57:6.)
On March 5, 2008, Harris filed a verified complaint with the DHR, charging the Sheriff's Office with race- and age-based discrimination. (See Bernstein Aff., Ex. G, Dkt. No. 55:10.) After conducting an investigation, the DHR determined that no probable cause existed for Harris's claims, dismissed his complaint, and notified Harris that he may file an appeal with the New York State Supreme Court, which must be filed "within sixty (60) days," and that he may request a review of his complaint by the EEOC. (See id.) On November 13, 2008, the EEOC issued a decision adopting the DHR's findings and notifying Harris of his right to file a civil action under Title VII in state or federal court. (See 2d Am. Compl., Ex. 1, Dkt. No. 33.)
Harris commenced this action on December 19, 2008, and thereafter amended his complaint, alleging a series of claims arising under the Fourteenth Amendment, Title VII, the ADEA, NYSHRL, and state common law. (See 2d Am. Compl., Dkt. No. 33.) Following discovery, County and Union defendants moved for summary judgment on Harris's claims. (See Dkt. Nos. 55, 57.) In response, Harris cross-moved for summary judgment, (see Dkt. No. 70), and moved for declaratory and injunctive relief, seeking to preclude the introduction of the DVD-R video recordings of the September 28, 2007 incident, (see Dkt. No. 71).
The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
A. Declaratory and Injunctive Relief
As an initial matter, Harris, by letter dated September 16, 2010, requests the court to declare inadmissible the two DVD-Rs submitted by County defendants. (See Harris Sept. 16, 2010 Letter Mot., Dkt. No. 71; see also County Defs. June 23, 2010 Letter & Exs.,*fn5 Dkt. No. 52.) Harris further seeks to enjoin defendants from using or distributing, among other things, the DVD-Rs and the County Sheriff's Investigation Report. (See Harris Sept. 16, 2010 Letter Mot., Dkt. No. 71; see also Bradt Aff., Ex. A, 55:25.) Essentially, Harris contends that the DVD-Rs have been fabricated, altered, and contain dropped video frames, and that the Investigation Report is derivatively inadmissible as it was prepared in reliance on the contents of the DVD-Rs. (See id.)
Having viewed the DVD-Rs, reviewed the Report, and considered the
parties' arguments, the court denies Harris's motion for declaratory
and injunctive relief. As defendants highlight, the testimony elicited
during Harris's criminal trial abundantly supports the accuracy and
consequent admissibility of both the DVD-Rs and the Report. (See
generally Union Defs. Resp. Mem. of Law, Dkt. No. 73:1; see also
County Defs. Reply Mem. of Law at 6, Dkt. No. 76:6; Bernstein Nov. 30,
2010 Letter, Dkt. No.
85.) As to the DVD-Rs, and pursuant to FED. R. EVID. 901, the footage
was identified by the eyewitnesses to the event in question-namely,
Sandra Naparty, (see Bernstein Aff., Ex. K, Trial Tr. at 167, Dkt. No.
55:28), and Byron Lake, (see id. at 271-77)-and authenticated by
testimonial evidence regarding the camera's installation, activation,
and operation, and the recording's chain of possession-specifically,
the testimony of Michael Bump, (see id. at 115-32, Dkt. No. 55:27),
Doug Hitchcock, (see id. at 150-51), Officer William Fennell, (see id.
at 228, Dkt. No. 55:28), Sergeant Edward Barbagelata, (see id. at
239-40), and Assistant District Attorney John Healy, (see Healy Aff.,
Dkt. No. 55:33). As to the Report, and pursuant to FED. R. EVID.
803(6), Chief Bradt has affirmed that it was prepared and kept in the
normal course of the Sheriff's Department's business.*fn6
(See Bradt Aff. ¶ 2, Dkt. No. 55:24.) Moreover, under FED. R.
EVID. 803(8) and as discussed by the Second Circuit in Gentile v.
Cnty. of Suffolk, 926 F.2d 142, 148 (2d Cir. 1991), the Report is
admissible as a product made in accordance with N.Y. COUNTY LAW §§ 650
and 652. (See Union Defs. Mem. of Law at 1, 8-9, Dkt. No. 73:1.)
Therefore, since there is no viable question regarding the actual
relevance of the content of the
DVD-Rs and the Report, the court denies Harris's motion to preclude
defendants' submission and the court's consideration of the DVD-Rs and
B. Failure to Serve and File a Notice of Claim
"Notice of claim requirements are construed strictly by New York state courts. Failure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action." Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999) (internal quotation marks and citations omitted); see also Olsen v. Cnty. of Nassau, No. CV 05-3623, 2008 WL 4838705, at *3-4 (E.D.N.Y. Nov. 4, 2008).
County defendants assert that this court lacks subject matter jurisdiction over Harris's state law claims as a result of Harris's failure to serve a notice of claim on the County in accordance with N.Y. COUNTY LAW § 52. (See County Defs. Mem. of Law at 18-19, Dkt. No. 55:1; see also Gardner Aff. ¶ 4, Dkt. No. 55:32 ("A search of the County's records reveals that a Notice of Claim was never served and filed by ... Harris with regard to any of the claims asserted in this action.").) In response, Harris has submitted a copy of his purported notice of claim dated December 20, 2007, and a series of certified mail receipts, (see Harris Ex. 19, Dkt. No. 70:4), to establish that he served a notice of claim upon the County, (see Pl. Resp. Mem. of Law ¶ 20, Dkt. No. 70). While the court has significant reservations regarding the individual County defendants' amenability to suit for failure to serve each of them with a notice of claim, (see County Defs. Mem. of Law ...