The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiff brings this action alleging that defendants subjected him to excessive force and battery. Presently before the Court is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons discussed below, defendants' motion is denied in its entirety.
This is defendants' second motion for summary judgment in this case. The Court granted in part, and denied in part the previous motion, dismissing the §1983 claims against the Incorporated Village Of Hempstead (the "Village") under Monell v. N. Y. City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978), but allowing the §1983 claims against Police Office John Zoll ("Zoll") to proceed as defendants failed to demonstrate that he was entitled to qualified immunity. Getlin v. Zoll, 707 F. Supp. 2d 369, 375 (E.D.N.Y. 2010)("Getlin II").
Defendants, apparently seizing on language in that decision that the "the claims against  Zoll were no yet 'ripe for determination,'" (Defendants' Memorandum of Law in Support of the Motion for Summary Judgment ("Ds' Mot.") at 6 (citing Getlin II, 707 F.Supp. 2d at 379)), now bring this second motion for summary judgment after the close of discovery, notwithstanding the fact that the same material issues of fact identified by the Court in Getlin II still exist. As many of the background facts underlying plaintiff's claim have been set forth in the prior decisions in this case some familiarity with such facts is assumed.
The relevant events begin in the early morning hours of February 16, 2007 when plaintiff's attempt to outrun Village police officers in his car came to an abrupt end as he turned into a dead end street in the town of Merrick. By the time the chase was over that morning, more than 25 police cars had joined in the pursuit. The parties' versions of what transpired next differ starkly.
Plaintiff's version tells of the following sequence of events. Upon realizing that he had hit a dead-end, plaintiff attempted to turn his vehicle around, but was stymied by a number of police cars that had pulled in behind him and blocked the street. As commanded, he then "brought his motor vehicle to a complete stop[,] turned off the [car]," (Plaintiff's Statement Pursuant to Local Civil Rule 56.1 ("56.1 Stmnt.") ¶ 9), "pulled the keys out of the ignition and threw them onto the dashboard," (Transcript of Plaintiff's Deposition ("P's Dep.") at 119, attached to the Declaration of Alan Levine ("Levine Decl.") as Exhibit E.) At this point, a number of officers were already standing on both sides of plaintiff's car, pointing their weapons at him. (P's Dep. at 123-25, 127). Plaintiff put his hands in the air and screamed "don't shoot, don't shoot." (P's Dep. at 125, 143.) Zoll then fired one shot from his sidearm through the driver's side window, hitting plaintiff in the left arm and chest. (P's Dep. at 125.) Thereafter, a number of unidentified officers pulled plaintiff from the car through the shattered driver's side window. (56.1 Stmnt. ¶ 10; P's Dep. at 128-29.) Those officers then cuffed plaintiff as he was pulled out (P's Dep. at 129), put him on the ground, and proceeded to kick him in the ribs, chest, back and head. (P's Dep. at 129-30.) An ambulance arrived shortly thereafter to transport him to the hospital.
Defendants provide a very different version of events. According to their version, the officers pursuing plaintiff entered the dead-end street, stopped, exited their vehicles, and ordered plaintiff to place his car in park and get out. (Deposition of Zoll ("Zoll Dep.") at 42-46.) Plaintiff refused to do so, choosing instead to turn his car around by driving onto three of the front lawns lining the street. (Id. at 43.) The officers again ordered plaintiff to stop the vehicle, but he refused. (Id. at 48-49.) Instead, he accelerated in the direction of Nassau County Police Officer Michael Mahoney who stood on an iced-over stretch of street between plaintiff's vehicle and two cars parked along the side. (Id. 45-49.) As the vehicle moved in Officer Mahoney's direction, plaintiff was again ordered to stop. (Id.) He did not, and Zoll fired a single shot at plaintiff. (Id. at 50.) The bullet entered plaintiff's left arm and chest. (South Oaks Hospital Physical Examination and Assessment at 2, attached to defendants' motion as Exhibit M.) The car veered away from Officer Mahoney, slowed, and eventually came to a stop. (Zoll Dep.at 51-52.) The officers approached and directed plaintiff to put the car in park and get out, but plaintiff remained seated with his hands on the steering wheel. (Id. at 52.) Plaintiff was then removed from the vehicle through an open door. (Id. at 53.) He was never kicked or punched or battered.
Summary judgment should be granted where the pleadings and admissible evidence offered to the Court demonstrate 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; Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). An issue of fact is genuine if the "evidence is such that a reasonable jury could return a judgment for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). Further, the relevant governing law determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Accordingly, where the undisputed facts demonstrate the union of all the required elements of a cause of action and no reasonable juror could find otherwise, the plaintiff is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existent of an element essential to that party's case.").
A party may defeat a motion for summary judgment only "by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of [an] element at trial." Roe,542 F.3d at 36 (quoting Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998)). The non-movant must advance "more than a scintilla of evidence," Anderson, 477 U.S. at 252, and demonstrate more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed.R.Civ.P. 56(e)).*fn1 Conclusory statements in affidavits or allegations in the pleadings are therefore insufficient to defeat a motion for summary judgment. Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
II.EXCESSIVE FORCE AND QUALIFIED IMMUNITY
a.Standard for Excessive Force Under the ...