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Marina Tsesarskaya v. the City of New York

February 14, 2012

MARINA TSESARSKAYA, PLAINTIFF,
v.
THE CITY OF NEW YORK, LIEUTENANT MICHAEL MCGUINESS, DETECTIVE JAMES COLL, SHIELD #01121, AND DETECTIVE SEAN MULCAHY, SHIELD #03204, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Marina Tsesarskaya, represented by counsel, brings this action pursuant to 42 U.S.C. § 1983 against the City of New York, Lieutenant Michael McGuiness, Detective James Coll and Detective Sean Mulcahy, alleging violations of her constitutional rights under the Fourth, Fifth and Fourteenth Amendments and under state law. (Dkt. No. 1: Compl; Dkt. No. 8: Am. Compl.) Tsesarskaya specifically claims deprivation of federal rights, false arrest, excessive force, failure to intercede and municipal liability under § 1983, and assault, battery, false arrest, false imprisonment and negligent hiring, training, supervision and retention under state law. (Compl.; Am. Compl.)*fn1

Presently before the Court is defendants' motion for partial summary judgment on Tsesarskaya's claims except her excessive force, assault and battery claims. (Dkt. No. 10: Defs. Notice of Motion; see also Dkt. No. 13: Defs. Br.; Dkt. No. 27: Defs. Reply Br.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 15.)

For the reasons set forth below, defendants' summary judgment motion is DENIED as to the false arrest and municipal liability claims under § 1983, and false arrest and imprisonment claims under state law, but GRANTED as to the state law negligent hiring, training, supervision and retention claim.

FACTS*fn2

On November 12, 2010, real estate agent Artis Minor contacted Tsesarskaya to see if two Italian women could rent her apartment for three days. (Dkt. Nos. 11 & 24: Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 5;*fn3 Ex. C: Tsesarskaya Dep. at 139-41.*fn4) While the parties dispute exactly what happened after the Italian women arrived, they agree that the women had a disagreement with Tsesarskaya and left the apartment. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 6-7; Ex. C: Tsesarskaya Dep. at 144-45, 156-57, 166-67; Ex. D: Tsesarskaya 50-H Hearing Tr. at 12-15; Ex. Q: Tsesarskaya CCRB Interview Tr. at 7-8, 15, 62, 65-66; Dkt. No. 28: Weiner 2/2/12 Aff. Ex. G: Tsesarskaya Dep. at 159, 162, 164.) Tsesarskaya noticed that the women had left two large shopping bags in the apartment, and she told Minor to tell the two women to wait in the lobby and that she would bring them their bags. (Ex. C: Tsesarskaya Dep. at 171-73; Ex. Q: Tsesarskaya CCRB Interview Tr. at 8.) The two women, however, returned directly to Tsesarskaya's apartment, banging on the apartment door and yelling. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 8; Ex. C: Tsesarskaya Dep. at 173-75; Ex. Q: Tsesarskaya CCRB Interview Tr. at 8-9.) Tsesarskaya refused to open the door because the women had been told to wait in the lobby for Tsesarskaya to bring the bags down. (Ex. C: Tsesarskaya Dep. at 180-82.)

The two women called the police for assistance in recovering their property, and Officers Adriana DeLeon and Lazaros Asters responded. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 9, 11; Ex. C: Tsesarskaya Dep. at 181-82; Ex. R: DeLeon CCRB Interview at 73-74; Ex. S: Asters CCRB Interview at 89-91.) Officers Asters and DeLeon knocked (or, according to Tsesarskaya, banged) on Tsesarskaya's door and identified themselves as police, but Tsesarskaya refused to open the door. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 12, 12(A-C); Frank 1/23/12 Aff. Ex. R: DeLeon CCRB Interview at 74, 76; Ex. S: Asters CCRB Interview at 90-91.) Officer Asters recalled that Tsesarskaya may have stated that she did not believe that they were real police officers. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 12, 12(A); Ex. S: Asters CCRB Interview at 96.) Officer Asters thought that Tsesarskaya was irrational because she would not open the door, and Officer DeLeon thought that Tsesarskaya had some psychological issues because she would not open the door and was not responding to them. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 13; Ex. R: DeLeon CCRB Interview at 78-79; Ex. S: Asters CCRB Interview at 95-96.) Officer Asters called the Emergency Services Unit ("ESU") in order to gain access to the apartment. (Ex. S: Asters CCRB Interview at 92-93; Ex. R: DeLeon CCRB Interview at 76-77, 79.)

ESU Detectives Coll and Mulcahy arrived, as well as ESU Sergeant (now Lieutenant) Michael McGuiness, who was informed that Tsesarskaya was acting crazy, threw the women out of the apartment and was unresponsive to the officers at the door. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 9, 15, A8; Ex. I: 911 Sprint Report at NYC-84; Ex. J: Emergency Service Report; Ex. L: Coll Aff. ¶ 5; Ex. M: Mulcahy Aff. ¶ 5; Ex. T: McGuiness CCRB Interview at 103-05.) Dets. Coll and Mulcahy and Sgt. McGuiness attempted to communicate with Tsesarskaya for approximately thirty minutes. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 16; Ex. L: Coll Aff. ¶ 6; Ex. M: Mulcahy Aff. ¶ 6; Ex. Q: Tsesarskaya CCRB Interview Tr. at 17; Ex. R: DeLeon CCRB Interview at 80; Ex. S: Asters CCRB Interview at 93-94; Ex. T: McGuiness CCRB Interview at 104-05.)

During the time the police were trying to get Tsesarskaya to open her apartment door, Tsesarskaya made and received calls, including two calls to 911 and one call from 911, and looked out her window and saw police officers, police vehicles, ambulances and fire trucks filling the street. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 17, 21, A2; Ex. C: Tsesarskaya Dep. at 188, 191-94, 196-97; Ex. N: Audio CD of 911 calls; Ex. Q: Tsesarskaya CCRB Interview Tr. at 10-13, 18-19; Ex. T: McGuiness CCRB Interview at 104-05.) After her first call to 911, Tsesarskaya called her friend Svetlana Sky, sounding scared but rational, and said that her door was being broken by people claiming to be the police. (Tsesarskaya Rule 56.1 Stmt. ¶ A4; Weiner 1/23/12 Aff. Ex. D: Sky Aff. ¶ 3.) Sky called 911, and the 911 operator said: "'if you were her friend, you should advise her so they don't break the door down, for her to open the door'" and "'[f]or the certain call that this job was put in there, yes, they will break that door down.'" (Tsesarskaya Rule 56.1 Stmt. ¶ A4; Weiner 1/23/12 Aff. Ex. D: Sky Aff. ¶¶ 4-5; Weiner 1/23/12 Aff. Ex. E: Sky-911 Transcript at 8.) Sky called Tsesarskaya and conveyed this message. (Tsesarskaya Rule 56.1 Stmt. ¶ A4; Weiner 1/23/12 Aff. Ex. D: Sky Aff. ¶ 6.)

Tsesarskaya eventually spoke with the officers at the door and told them that she was okay and did not want to open the door. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 22; Ex. C: Tsesarskaya Dep. at 197-202; Ex. Q: Tsesarskaya CCRB Interview Tr. at 66-67.)

While Tsesarskaya told the 911 operator that she would leave the bags outside her apartment, Tsesarskaya did not communicate this to the officers outside her door. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 22; Ex. C: Tsesarskaya Dep. at 203-04; Ex. Q: Tsesarskaya CCRB Interview Tr. at 12, 68; Ex. U: Coll 1/30/12 Aff. ¶ 7; Ex. V: Mulcahy 1/30/12 Aff. ¶ 7; Ex. W: McGuiness 1/30/12 Aff. ¶ 7.)

When Tsesarskaya opened her door to avoid it being broken down, the officers rushed inside. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶ 22; Ex. C: Tsesarskaya Dep. at 203-04; Ex. Q: Tsesarskaya CCRB Interview Tr. at 13, 68; Ex. R: DeLeon CCRB Interview at 80-81, 83; Ex. S: Asters CCRB Interview at 94.)

Dets. Coll and Mulcahy and Lt. McGuiness handcuffed Tsesarskaya and transferred her to officers from the 17th Precinct. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 23, A8-A9; Ex. D: Tsesarskaya 50-H Hearing Tr. at 26-27; Ex. L: Coll Aff. ¶ 6; Ex. M: Mulcahy Aff. ¶ 6; Ex. R: DeLeon CCRB Interview at 81; Ex. T: McGuiness CCRB Interview at 106, 116-17.) At approximately 8:30 p.m., Tsesarskaya was taken without her consent by ambulance to Bellevue Hospital Center for a psychiatric evaluation; she was released around 2:30 a.m. (Defs. & Tsesarskaya Rule 56.1 Stmts. ¶¶ 23, A9; Ex. C: Tsesarskaya Dep. at 212-14; Ex. D: Tsesarskaya 50-H Hearing Tr. at 26-27; Ex. I: 911 Sprint Report at NYC-89; Ex. Q: Tsesarskaya CCRB Interview Tr. at 13-14, 46-48; Ex. T: McGuiness CCRB Interview at 106.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P . 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is generally disputed." Fed. R. Civ. P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.*fn5 The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] ...


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