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Elijah Green v. City of Yonkers

February 21, 2012

ELIJAH GREEN, PLAINTIFF,
v.
CITY OF YONKERS, NEW YORK, CITY OF YONKERS POLICE DEPARTMENT, POLICE OFFICER D. LYONS, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER IN THE CITY OF YONKERS POLICE DEPARTMENT, POLICE OFFICER THOMAS CLEARY, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER IN THE CITY OF YONKERS POLICE DEPARTMENT, SERGEANT SUSAN PINTO-TULINO, INDIVIDUALLY AND/OR IN HER: CAPACITY AS A SERGEANT IN THE YONKERS POLICE DEPARTMENT, AND LIEUTENANT HENRY TRABUCCO, INDIVIDUALLY AND/OR IN HIS CAPACITY AS A LIEUTENANT IN THE YONKERS POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: John F. Keenan, United States District Judge:

OPINION AND ORDER

Before the Court is the City of Yonkers, Yonkers Police Department, Officers David Lyons ("Lyons") and Thomas Cleary ("Cleary"), Sergeant Susan Pinto Tulino ("Tulino"), and Lieutenant Henry Trabucco's ("Trabucco") (collectively, "Defendants") motion for summary judgment on each of Plaintiff Elijah Green's ("Green" or "Plaintiff") various claims under 42 U.S.C. § 1983 ("§ 1983") and state law. For the reasons that follow, the motion is granted in all respects.

I. Background

On July 8, 2008, just before 7 p.m., the Yonkers Police Department received an anonymous report that an unattended child was on the fire escape of 189 Saratoga Street in Yonkers, New York. (Def.'s Rule 56.1 Statement ¶ 1). Two of the Defendants, Lyons and Cleary, responded to the report. Once the officers arrived at 189 Saratoga Street, they observed Green's daughter Alyssa, who was then two-and-a-half-years old, on the fifth-floor fire escape, but state that they were unable to climb the fire escape to bring her to safety. (Id. ¶ 2). Ultimately, a neighbor retrieved Alyssa and carried her into her bedroom in the fifth-floor apartment uninjured. (Pl.'s Rule 56.1 Statement ¶ 4). It was later discovered that the screen on the window in Alyssa's room had been torn, leaving an opening about the size of a basketball. (Id.).

The officers state that, unable to climb the fire escape, they entered Green's apartment through the front door, walked into Alyssa's room, and then questioned Green and the neighbor. (Def.'s Rule 56.1 Statement ¶¶ 3, 6-7). According to Green, however, Cleary and Lyons climbed into Alyssa's bedroom through the window, and immediately yelled at Green and the neighbor to get against the wall. There, they conducted a patdown of Green and his neighbor, and proceeded to question the men. (Pl.'s Rule 56.1 Statement ¶ 4).

During the questioning at Green's apartment, Green told the officers that he had returned home from work thirty minutes earlier, and Alyssa's mother, LaToya McNeill ("McNeill"), informed him that she had put Alyssa to sleep. (Id. ¶¶ 3, 5, 9). Green told the officers that he drank one beer while reviewing the mail and watching television, but never heard any noises from Alyssa's room, nor did he in any way check on her. (Id. ¶ 9). Cleary and Lyons reported that they observed two to three cans or bottles of beer on a table in the bedroom, although they could not determine whether any were empty. (Def.'s Rule 56.1 Statement ¶ 9). After completing the questioning, the officers placed Green under arrest. (Id. ¶ 11).

Green states that McNeill was in their bedroom when the questioning began, and later came into Alyssa's bedroom. (Pl.'s Rule 56.1 Statement ¶ 8). Green and McNeill both allege that the officers told Green that "someone's got to pay for this," referring to Alyssa's being on the fire escape. (McNeill Aff. ¶ 14). After the officers arrested Green, McNeill confronted the officers and asked them why Green was being arrested. Green and McNeill allege that the police replied, "Do you want us to take you too? If we take you we are taking the kids." (Id. ¶ 15).

At the Yonkers Police Department, the Lieutenant on duty, Trabucco, assisted Cleary and Lyons in determining the charges against Green. Cleary and Lyons then prepared a Crime Investigation Report and Domestic Incident Report, which was reviewed and certified by the Sergeant on duty, Tulino. Green was charged with reckless endangerment of a child in the second degree and endangering the welfare of a child. (Pl.'s Rule 56.1 Statement ¶¶ 12-13).

Green was arraigned in Yonkers City Court. The arraignment court set bail at $1500 and imposed a one-year protective order, mandating that Green stay away from Alyssa. (Id. ¶ 15). Green was incarcerated for twenty-one days before his family could raise sufficient funds to post bail. (Id.). The Westchester County District Attorney's Office prosecuted Green in Yonkers City Court on July 16, 2009. After a two-day jury trial, Green was acquitted of all charges.

According to Green, the arrest and subsequent prosecution caused him to lose two months of employment and wages. (Id.) Because the order of protection barred him from seeing Alyssa, Green could not return to his home. As a result, he alleges, he slept on the streets or at friends' homes during the period he could not return home. (Id.).

II. Discussion

Green brings claims under 42 U.S.C. § 1983 ("§ 1983") for false arrest, malicious prosecution, abuse of process, and deprivation of liberty without due process against all individual defendants. He has also alleged that Cleary and Lyons, Trabucco, and Tulino conspired to violate his rights under § 1983. Green extends his § 1983 claim to the City of Yonkers and the Yonkers Police Department, made applicable to municipalities under Monell v. Dept. of Social Services of the City of N.Y., 436 U.S. 658 (1978). Finally, Green has asserted state law claims for malicious prosecution against all defendants except Trabucco.

A. Summary Judgment Standard

Summary judgment is warranted when "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists for summary judgment purposes "where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). Thus, when determining whether such factual issues exist, the court must "construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Summary judgment is appropriate when the non-moving party has no evidentiary support for an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 322--23. "The mere ...


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