Searching over 5,500,000 cases.

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.

Connie L. Clarke v. County of Broome

March 23, 2012


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



Plaintiff Connie L. Clarke ("Clarke" or "plaintiff") commenced the within action pursuant to 42 U.S.C. § 1983 and New York State law. Plaintiff's claims stem from an incident that occurred at plaintiff's home on April 5, 2009. The amended complaint includes claims under the Fourth Amendment to the United States Constitution and state law causes of action for false imprisonment, intentional and negligent infliction of emotional distress, slander and negligent supervision. Presently before the Court are defendants' motions (Dkt. Nos. 29 and 30) pursuant to Fed. R. Civ. P. 56 seeking summary judgment and dismissal of plaintiff's amended complaint. Plaintiff has opposed the motions but has voluntarily abandoned her claims against defendants Broome County Sheriff's Department and David Harder. (Dkt. No. 31).


Plaintiff resides at 4 Wiley Swamp Court, Athens, New York, Unit 1067 in Greene County. Plaintiff is the natural mother of Kaitlin Clarke ("Kaitlin"), born on July 31, 1991. In January 2008, Kaitlin became pregnant. At the time, Kaitlin was while living with plaintiff in Greene County. For a short period of time, while she was pregnant, Kaitlin stayed with plaintiff's sister, Christine and plaintiff's brother-in-law/Christine's husband, defendant Mark Smolinksy ("Smolinsky") in Berkshire, New York.*fn2 Kaitlin later relocated to Binghamton where she resided at a Catholic Charities residence.

On September 2008, Kaitlin gave birth to a daughter, H.C.*fn3 , at Binghamton General Hospital. From the time H.C. was born until mid-March 2009, Kaitlin and H.C. stayed, on an alternating basis, at plaintiff's residence in Greene County and at the Catholic Charities residence in Binghamton. In early March 2009, Kaitlin was forced to move out of the Catholic Charities residence and went to stay with her older sister, Candace, in Binghamton. Shortly thereafter, plaintiff received a telephone call from Kaitlin asking plaintiff to travel to Binghamton and pick up H.C. When plaintiff arrived, Kaitlin asked her to keep H.C. while Kaitlin checked herself into a facility for counseling or rehabilitation or "whatever she needed". On or around March 17, 2009, plaintiff drove back to her Athens residence with H.C.

A few weeks later, while H.C. was still in plaintiff's care, plaintiff received a telephone call from Tonya Dannibale, a Broome County Child Protective Services ("CPS") caseworker. Ms. Dannibale stated that Kaitlin was deemed an "unfit parent" and that CPS would take custody of H.C. unless plaintiff agreed to serve as Kaitlin's security, or safety plan. As Kaitlin's safety plan, plaintiff understood that she would need to care for H.C.

Plaintiff testified that on or around March 26, 2009, she received a threatening voicemail from Kaitlin. On March 27, 2009, plaintiff sought an Order of Protection against Kaitlin and obtained paperwork for filing a petition for Temporary and Immediate Order of Protection in Greene County Family Court. Plaintiff subsequently learned that she needed to file her petition in Broome County, not Greene County. Sometime between March 27, 2009 and March 31, 2009, plaintiff went to Broome County and also learned that she needed a court order to obtain legal custody of H.C. On March 31, 2009, plaintiff filed a Petition for "Emergency Temporary" Custody of H.C. On or around that time, plaintiff claims that Christine called her and said that Christine and Smolinsky knew that plaintiff was in Broome County Family Court with H.C. Plaintiff claims that Christine told her that plaintiff's paperwork was faxed to Smolinsky.*fn4 On April 1, 2009, the Broome County Family Court sent plaintiff a "Notice to Appear in Court" which scheduled an initial appearance regarding the custody petition for April 15, 2009.

The parties present diverging accounts of the events that occurred between April 1, 2009 and April 6, 2009. However, the record establishes that an emotionally charged custody dispute began. On April 2, 2009, the matter was referred to the State Police barracks in Catskill, New York and assigned to Trooper Nicole Dellarocco for investigation. On the same day, Trooper Dellarocco went to plaintiff's home and was allowed inside by Greg Torti ("Torti"), plaintiff's fiancee. Dellarocco explained that she received a complaint regarding H.C. and asked plaintiff to return the child. Plaintiff refused and showed Dellarocco a copy of the paperwork she filed in Greene and Broome County including the Broome County Family Court custody petition. Trooper Dellarocco reviewed the paperwork and called CPS. The caseworker told Trooper Dellarocco that plaintiff's temporary order was valid. After speaking with the caseworker, Trooper Dellarocco left H.C. with plaintiff and left the premises.

On April 2, 2009, Trooper Dellarocco prepared a report.*fn5 In the Narrative section, she stated:

1. Kaitlin Clark called to report her mother, Connie Clark, had her six month old daughter and refused to give her back.

2. Interviewed Connie Clark who states she has temporary custody of the child while the matter is pending in both Greene and Broom[e] County's.

3. Reviewed all paperwork stating same and conferred with on-call CPS worker who stated the temporary order is valid.

4. Re-contacted Kaitlin Clark advised of same and that she is expected to be in Family Court on April 13, 2009 at 10:30 a.m.

On April 3, 2009, Kaitlin filed a petition in Broome County Family Court seeking custody of her daughter. Plaintiff was named as a respondent in the petition. Smolinksy claims that K.C. called him after she was in court. On the same day, Kaitlin contacted the police. Kaitlin claims she called the Binghamton and Coxsachie police because, "my mother was saying she had custody, even though they had found out there was no custody order, and I believed I was the only one entitled to have custody of my own daughter". Kaitlin claims she called to inquire as to whether her mother's conduct amounted to kidnaping. On April 3, 2009, an officer from City of Binghamton Police Department prepared an Incident Write-Up.*fn6 The complainant was Kaitlin Clarke. The report provided:

Clarke stated she has a question regarding the custody of her daughter H.C. Kaitlin advised she let her mother take custody of H.C. a few weeks ago, and now her mother is stating she has gained temp. custody of H.C. through a court in Coxsachie, NY, which is in Upstate NY, Clarke stated. Kaitlin wanted to know how this was possible. I advised Kaitlin that she needs to follow up with the family court in Coxsachie along with the P.D. where her mother and daughter are living currently to gain the current status of the situation. Kaitlin stated she is trying to find a place to live and is staying at random friends homes.

On April 4, 2009, Smolinsky contacted the Department of Social Services for Broome County and spoke with Kate Bednar, a caseworker. Smolinsky advised her that Kaitlin wanted her child back. Soon thereafter, Kaitlin called Smolinsky to tell him that she spoke with the caseworker who told Kaitlin that she should wait to speak with the caseworker assigned to the matter, Tonya Dannibale. Kaitlin did not want to wait until Monday to speak with Ms. Dannibale and told the caseworker that "she wanted something done that day". Kaitlin also told the caseworker that she and H.C. could stay with her aunt, Christine and Smolinsky. Shortly thereafter, Smolinksy received a call from the caseworker who asked if Smolinsky would be a resource for H.C. and he confirmed that he would.*fn7

On April 5, 2009 (Sunday), defendant Diana Benoit ("Benoit")*fn8 received a telephone call regarding this custody dispute. Benoit claims that she was contacted by both Smolinsky and K.C. Smolinsky told her that Kaitlin was living at his residence and that plaintiff was refusing to return Kaitlin's child. Smolinsky asserts that he explained to Benoit that he spoke with a trooper a few days earlier who informed him that plaintiff had an order of protection but that he had been told by someone at CPS that plaintiff did not have a custody order. Smolinsky claims that both he and Kaitlin asked Benoit to go to plaintiff's home to see if plaintiff would voluntarily turn H.C. over that evening. Benoit confirms that she spoke with Smolinsky.

After speaking with Smolinsky, Investigator Benoit reviewed Trooper Dellarocco's April 2, 2009 report. Benoit claims that she then spoke with Kaitlin over the telephone who told her that she wanted her child back. Benoit claims that she attempted to call plaintiff but was unable to reach anyone at the phone number on Dellarocco's report. Benoit and a uniformed trooper, Dave Lane (deceased) drove to plaintiff's home. Torti saw the trooper and Benoit approach the house and invited them into the kitchen through the sliding glass doors. When plaintiff came downstairs, she saw Benoit and the trooper standing near the doors. Benoit did not search the house or "check it out" but remained in the back corner of the kitchen. Benoit did not pull her gun or threaten to do so and did not order plaintiff to "freeze". Benoit did not touch plaintiff at any time.

Plaintiff testified that Benoit repeatedly threatened plaintiff and told plaintiff that if she did not return the child, Benoit would arrest plaintiff. Benoit disputes this account of the events and claims that she, "may have said something to the effect that if there is no custody order and the mother asserts her custodial rights, plaintiff could get arrested for custodial interference". Plaintiff handed Benoit the same documents that she had shown to Trooper Dellarocco. Benoit claims that plaintiff had an application for a family court hearing, but not a custody order. Benoit responded that the paperwork did not entitle plaintiff to legal custody. While Benoit and Trooper Lane were at her home, plaintiff called her attorney. Plaintiff put the telephone on speaker phone so that Benoit could hear her attorney. Plaintiff's attorney told Benoit to leave if she did not have a warrant. Plaintiff's attorney "screamed" at Benoit "over and over to leave". Shortly thereafter, Benoit and Trooper Lane left. Benoit claims that she called Smolinksy and told him that plaintiff "went ballistic" and refused to surrender the child.

The next day, April 6, 2009, plaintiff made several telephone calls in an effort to avoid having to return H.C. to Kaitlin. Plaintiff testified that on April 6, 2009, she had a telephone conversation with Ms. Dannibale. Ms. Dannibale told plaintiff that Kaitlin revised her safety plan to designate Smolinsky and that CPS made a mistake with the paperwork. Plaintiff claims that Ms. Dannibale told her that if she did not turn H.C. over, that plaintiff could be arrested. On April 6, 2009, Torti drove plaintiff and H.C. to the Catskill station.

On April 6, 2009, Benoit after contacting the Greene County District Attorney, Benoit made arrangements to transfer the child by first contacting Kaitlin and Smolinsky to see when they could be at the Catskill station and then calling CPS. Smolinsky claims that he took K.C. to Broome County Family Court to file additional papers. Smolinsky claims that, "soon thereafter, Kaitlin and I were again in touch with Inv. Benoit" and as a result, Smolinsky drove Kaitlin to the barracks. Benoit met Torti in the foyer and took H.C. Benoit then went to a conference room and gave H.C. to Kaitlin.

On April 9, 2009, plaintiff withdrew her custody petition. As a result, Kaitlin's petitions were rendered "moot" and she maintained custody of H.C. On April 14, 2009, the petitions were dismissed. On April 22, 2009, the Broome County Department of Social Services Child Protective Services generated a report and determined that Kaitlin made an appropriate safety plan to reside with her aunt and uncle in Tioga County. The plan was approved by the department and the case was "closed".

On August 25, 2011, plaintiff filed an amended complaint in the within action. Defendant Benoit moves for summary judgment and dismissal: (1) of plaintiff's Fourth Amendment claims; (2) dismissal of plaintiff's Fourth Amendment claims based upon qualified immunity; and (3) of plaintiff's state law claims. In the alternative, defendant also argues that the Court should decline to exercise jurisdiction of plaintiff's state law claims if the federal cause of action is dismissed. Defendants County of Broome and Smolinsky move for summary judgment and dismissal: (1) of plaintiff's claims against the individual defendants in their official capacities; (2) of plaintiff's Fourth Amendment claims; (3) of plaintiff's Fourth Amendment claims on the basis of qualified immunity; (4) of plaintiff's Monell claims; and (5) of plaintiff's state law causes of action. Plaintiff has opposed both motions.


I. Standard on Motion for Summary Judgment

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ( c ). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the Court, viewing the evidence in the light most favorable to the non-movant, determines that the movant has satisfied this burden, the burden then shifts to the non-movant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the non-movant fails to carry this burden, summary judgment is appropriate. See id.

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that ...

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.