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Joseph Ferlito and Angelo Ferlito v. the County of Suffolk

September 6, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiffs bring this action against the County of Suffolk (the "County"), its County Executive at the time of the alleged conduct, Steve Levy, and two Suffolk County police officers pursuant to 42 U.S.C. § 1983, alleging excessive force, false arrest, and malicious prosecution, and pursuant to state law alleging battery, assault, false arrest, negligent hiring and defamation.*fn1 Before the Court is defendants' motion for partial summary judgment as to plaintiffs' federal Monell*fn2 claims against the County, and as to all of plaintiffs' remaining state law claims. For the reasons that follow, defendants' motion is granted in part and denied in part.


On July 24, 2005, plaintiff Joseph Ferlito ("Joseph") confronted one Ronald Bowman in Lindenhurst, New York and began "lecturing" him for operating his motorcycle in an "unsafe, obnoxious, and rude" manner. (Plaintiffs' Statement of Facts Pursuant to Local Civil Rule 56.1 ("Pls.' 56.1") ¶ 4.) Plaintiff Angelo Ferlito ("Angelo") approached his brother Joseph to inquire about the conflict. (Id. ¶ 5.) Meanwhile, defendant police officers Michael S. Turansky ("Turansky") and Christian A. Hubert ("Hubert"), who were parked in their vehicles approximately four houses away, saw the interaction, got out of their cars and ran towards the two plaintiffs. (Id. ¶ 6.) One of these two officers, "jumped [Joseph] from behind, and put him into a choke hold and punched him in the head." (Id. ¶ 7.) The other officer "jumped" Joseph as well. As he did, the first officer turned and "grabbed [Angelo] by the neck, punched him[, ] knocked him down, slamming his face into the ground . . . sprayed him in the face with OC spray (mace), [ ] violently twisted his arms behind his back then handcuffed him," and kicked him as he lay handcuffed on the ground. (Id. ¶¶ 8-10.) The second officer maced Joseph and repeatedly punched and elbowed him in the head. (Id. ¶¶ 12-14.) Several onlookers witnessed these events, including Angelo's fourteen-year-old daughter. (Id. ¶¶ 11,15.)

Both plaintiffs were taken to the hospital. Although the emergency room physician recommended that they be admitted, for reasons not apparent in the parties' fact statements, they were instead taken to the nearest police precinct, where the officers charged both individuals with misdemeanor resisting arrest. (Id. ¶¶ 19-22.)

The Suffolk County Police Department initiated an internal affairs investigation, which concluded that Turansky failed to follow Department procedure requiring that individuals charged with resisting arrest be photographed. (Id. ¶ 25.) The investigation further recommended that Turansky receive "training/counseling in that area." (Id. ¶ 26.) Hubert "recalls" at least two excessive force claims having been brought against him prior to this incident. (Id. ¶ 29.) He was not disciplined in relation to these accusations and has since received a promotion. (Id. ¶ 30.)



Summary judgment should be granted where the pleadings and admissible evidence offered to the Court demonstrate "no genuine issue as to any material fact and that the movant is entitled to a 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 verdict 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; "[o]nly 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, 322 (1986) ("Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence 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). Conclusory statements in affidavits or allegations in the pleadings are insufficient to defeat a motion for summary judgment. Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996).


Defendants seek summary judgment on plaintiffs' claims against the County pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), arguing that plaintiffs have failed to set forth evidence of a custom, policy, or practice of the County that would entitle them to relief.

A municipality may not be held liable under section 1983 on a respondeat superior theory of liability for its employees' alleged constitutional violations. See Monell, 436 U.S. at 691; Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A municipal entity may only be liable if the alleged conduct was undertaken pursuant to "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [its] officers" or a "governmental 'custom' even though such a custom has not received formal approval through [ ] official decisionmaking channels." Monell, 436 U.S. at 690-91. Therefore, a local government may not be sued under ยง 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or ...

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