UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
September 27, 2012
RAYMOND C. KNOX, JR. AND KATHERINE, C. BARRAMEN,
COUNTY OF PUTNAM, PUTNAM COUNTY SHERIFF'S DEPARTMENT, TIMOTHY R. GANNON, CATHERINE BRUMLEY, ANDREW D. CLAVY, PATRICK J. O'CONNELL , RONALD SCHIAVONE AND CATHY BOOKLESS, DEFENDANTS.
The opinion of the court was delivered by: Ramos, D.J.:
OPINION AND ORDER
Defendants Putnam County and Timothy R. Gannon ("Defendants") bring this Motion for Summary Judgment seeking dismissal of Plaintiff's complaint in its entirety pursuant to Fed. R. Civ. P. 56. Doc. 43. For the reasons set forth below, Defendants' Motion is GRANTED in part and DENIED in part.
Plaintiff Raymond C. Knox and his wife Katherine C. Barramen commenced
this action against Putnam County (the "County"), the Putnam County
Sheriff's Department ("PCSD"), Timothy R. Gannon, Catherine Brumley,
Andrew D. Clavy, Patrick J. O'Connell, Ronald Schiavone and Cathy
Bookless on March 2, 2010, alleging state and federal claims for
malicious prosecution, a federal claim for deprivation of a right to a
fair trial, and a derivative claim for
loss of services and consortium on behalf of Barramen.*fn1
Doc. 1 ("Compl."). On March 31, 2010, pursuant to a
stipulated order executed by the parties and entered by the Honorable
Cathy Seibel, to whom this case was previously assigned, Plaintiff
discontinued his action against the PCSD, and discontinued his federal
§ 1983 malicious prosecution and fair trial claims against the County.
Doc. 12. Plaintiff did not discontinue his state law malicious
prosecution claim against the County. Id. On June 16, 2010, Plaintiff
sought partial default judgment against Defendants Catherine Brumley,
Andrew D. Clavy, Patrick J. O'Connell, Ronald Schiavone and Cathy
Bookless (the "non-County Defendants"). After a show cause hearing on
July 23, 2010, Judge Seibel entered partial default judgment against
all of the non-County Defendants except for Bookless who appeared at
the show cause hearing.*fn2 Doc. 26.
This case was reassigned to the undersigned on January 5, 2012. Doc. 41. Pursuant to a briefing schedule set by Judge Seibel, Defendants filed their Motion for Summary Judgment on January 17, 2012; Plaintiff filed his opposition papers on March 2, 2012; Defendants filed their Reply on March 22, 2012; and, with leave of this Court, Plaintiff filed a Sur-Reply on March 27, 2012.
The following facts are undisputed except where otherwise noted.*fn3
In February 2007, Plaintiff was the owner and manager of a bar/restaurant known as "The Paddock" located on Route 22 in the Town of Patterson and County of Putnam, New York. Defs.' 56.1 Stmt. ¶¶ 11-12.*fn4 Sandra Longchamps, who is not a party to this action, was employed as a part-time bartender at The Paddock in and prior to February 2007. Id. ¶ 11. Catherine Brumley and Mary Ann Arvisais were also employed as part-time bartenders at The Paddock. Pls.' 56.1 Stmt. ¶ 3, at 15. *fn5 On February 4, 2007, which was Super Bowl Sunday, Brumley was the bartender for the 12:00 pm to 5:00 pm shift at The Paddock, and Arvisais was the bartender for the night shift, which began immediately thereafter. Id. Longchamps was not scheduled to work that day, id.; however, it is undisputed that she was at The Paddock at various times throughout the day. Defs.' 56.1 Stmt. ¶ 13. Plaintiff saw Longchamps in The Paddock at least three times on that day: first, at approximately 12:00 or 12:30 pm; a second time, at approximately 3:00 or 3:30 pm; and finally, at approximately 7:45 pm, when Longchamps arrived to order dinner for her children.*fn6 Defs.' 56.1 Stmt. ¶ 14; Sivin Decl. Ex. 7 ("Knox. Tr.") 81, 83-84, 88, 94.*fn7
At approximately 9:37 pm on February 4, 2007, Longchamps was driving south on Route 22 when she crossed over the double yellow line and crashed head-on into a van in the northbound lane, killing herself and the driver of the van (the "Accident"). Defs.' 56.1 Stmt. ¶ 1. Gannon, who is a certified Accident Reconstructionist and a Sergeant in the PCSD, was on his way to work when he was directed to respond to the location of the Accident. Id. ¶ 3. Gannon arrived at the scene at approximately 10:40 pm. Id. ¶ 4. Other members of the PCSD were already at the scene when Gannon arrived. Id. ¶ 2. Captain Thomas Lindert of the PCSD assigned Gannon to handle the investigation of the Accident on February 6, 2007. *fn8 Id. ¶ 17.
Over the course of the next five weeks, Gannon interviewed various
witnesses to that day's events, including each of the witnesses who
provided sworn statements, and who testified for the prosecution at
the trial of the Plaintiff. See Randazzo Decl. Exs. L-P, R-T; Compl.
¶¶ 37-43, 52-57. On February 23, 2007, Gannon received a toxicology
report indicating that Longchamps had a blood alcohol concentration of
.345 at the time of her death. Defs.' 56.1 Stmt. ¶ 52.*fn9
The same report revealed that Longchamps had cocaine in her
system. Id. ¶ 53.
On March 30, 2007, Gannon executed three sworn accusatory instruments charging Plaintiff with selling alcohol to a visibly intoxicated person, in violation of New York Alcoholic Beverage Control ("ABC") Law § 65(2); permitting gambling on a licensed premises in violation of ABC Law § 106(6);*fn10 and serving alcohol to a habitual drunkard in violation of ABC Law § 65(3). Defs.' 56.1 Stmt. ¶ 54; Pls.' 56.1 Stmt. ¶ 39, at 22. Gannon issued a desk appearance ticket for the charges and served it on Plaintiff on April 4, 2007. Randazzo Decl. Ex. V.
Beginning on December 12, 2007, Plaintiff was tried for the criminal violations in the Justice Court for the Town of Patterson before a local, non-attorney judge. Pls.' 56.1 Stmt. ¶ 40, at 22; Compl. ¶ 51. On January 8, 2008, at the conclusion of the trial, Plaintiff was convicted on the charges of selling alcohol to a visibly intoxicated person and permitting gambling on a licensed premises. He was acquitted of serving a habitual drunkard.*fn11 Defs.' 56.1 Stmt. ¶ 55. On March 24, 2008, Plaintiff was sentenced to a nine-month term of incarceration. Compl. ¶ 65. Plaintiff served five months, and was released from custody on October 17, 2008. Id. ¶¶ 66-67. He thereafter served an additional eleven months of supervised parole. Id. ¶ 68. On August 19, 2009, Plaintiff's convictions were reversed by the Appellate Term of the Supreme Court of the State of New York, and the underlying accusatory instruments were dismissed. Id. ¶¶ 69-70; Randazzo Decl. Ex. X.
II.Legal Standard Governing Motions for Summary Judgment
A.Summary Judgment Standard
Summary judgment is only appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is "material" if it might affect the outcome of the litigation under the governing law. Id. The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 504 (S.D.N.Y. 2010) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)) (internal quotation marks omitted).
In deciding a motion for summary judgment, the Court must "'construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do more than show that there is "some metaphysical doubt as to the material facts."McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (internal quotation marks omitted). To defeat a motion for summary judgment, "the non-moving must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor." Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256--57 (1986)).
A claim for malicious prosecution under § 1983 is "substantially the same" as a claim for malicious prosecution under New York law. Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003). To prevail on a claim for malicious prosecution, a plaintiff must show that: (1) the defendant commenced or continued a criminal proceeding against him; (2) the proceeding was terminated in his favor; (3) there was no probable cause for the criminal charge; and (4) the defendant acted with malice. Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004). When a plaintiff asserts a federal malicious prosecution claim under § 1983, he must also establish a Fourth Amendment violation. Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (explaining that plaintiff must show a post-arraignment"deprivation of liberty consistent with the concept of 'seizure.'").
The first two elements of Plaintiff's malicious prosecution claim are not disputed. Defendants contend that they are entitled to summary judgment because Plaintiff's conviction establishes probable cause,*fn12 and because there is no evidence of malice.*fn13 Mem. Law Supp. Defs.' Mot. Summ. Judg. ("Defs.' Mem.") 14-18, Doc. 45. "[A] presumption of probable cause is created by a criminal conviction; 'A conviction establishes the existence of probable cause which, even when the conviction is reversed on appeal, becomes a rebuttable presumption.' This presumption can be rebutted only by a showing that the conviction itself was a result of fraud, perjury, or other unethical acts on the part of the defendant which affected the integrity of the prosecution." Mitchell v. Victoria Home, 434 F. Supp. 2d 219, 228 (S.D.N.Y. 2006) (quoting Sassower v. City of White Plains, No. 89 Civ. 1267 (MJL), 1993 WL 378862, at *3 (S.D.N.Y. Sept. 24, 1993)) (internal citations omitted).
In seeking to rebut this presumption, Plaintiff makes a multitude of arguments regarding Gannon's credibility and the credibility of nearly every person who provided a sworn statement implicating Plaintiff in the underlying criminal investigation. For the most part, these arguments are based on conclusory assertions, speculation, conjecture and surmise;*fn14 however, there is one argument in Plaintiff's submissions that is supported by admissible evidence in the record, which raises a triable question of fact regarding Gannon's credibility.
C.Sergeant Gannon's Credibility
In answering Defendants' motion, Plaintiff relies heavily on the deposition testimony of Arvisais who claims that Gannon attempted to coerce her on more than one occasion into providing him with a written statement implicating Plaintiff in the underlying criminal case.*fn15
Pls.' Mem. 6-7, 17; Sivin Decl. Ex. 8 ("Arvisais Tr.") 42:2-5. For example, Arvisais testified that during the first conversation she had with Gannon:
He told me that it was a felony. Whoever served her, it was a felony matter and it was a real serious thing, and he thought that I was not taking it seriously at all. He was calling me little girl, and stuff like that. . . . He told me that I could be charged with a felony. It was between me and [Plaintiff] getting charged with a felony. Cathy [Brumley] was out. She's a good girl.
Arvisais Tr. 56:20-57:6. Arvisais stated that during one telephone conversation with Gannon, he said to her (in sum and substance): "All you have to do is you just tell them that you did not- you know, it wasn't you. [Plaintiff] served [Longchamps]. You did not serve her." Id. at 34:22-25. Arvisais testified that even after she told Gannon that neither she nor Plaintiff had served Longchamps, he said: "tell them-do you know what I mean-that it was [Plaintiff]. You won't get in any trouble if both [you and Brumley] agree that it was [Plaintiff]." Id. at 34:24-35:3. Arvisais also said she told Gannon that she would not write a statement saying that Plaintiff had served alcohol to Longchamps, "because it was a lie," id. at 43:8-10, and estimated that she told Gannon that she was not going to lie multiple times during every telephone conversation. Id. at 52:5-7. According to Arvisais, Gannon reacted by getting "quite aggravated" and telling her that she "would be in a lot of trouble for serving [Longchamps]." Id. at 52:10-11.*fn16
Based on the deposition testimony of Arvisais, Plaintiff has raised a question of fact regarding Gannon's credibility and, consequently, a question of fact about the integrity of the entire investigation.*fn17 See, e.g., United States v. 3234 Washington Ave. N., 480 F.3d 841, 845-46 (8th Cir. 2007) (denying summary judgment where non-moving party's "evidence put the overall credibility of the [movant's] witnesses squarely at issue."). It is well-settled that a district court may not make credibility determinations on a motion for summary judgment. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.") (quoting Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007)); see also VanWormer v. Gruppo Rizzi 1857, s.r.l., No. 5:03-CV-1121, 2007 WL 2091224, at *4 (N.D.N.Y. July 20, 2007) ("Summary judgment becomes improper when credibility of a witness is crucial to the case. . . . Since there is a question regarding the credibility of a key witness,  there is a question of fact for the jury to decide.") (citing Arnstein v. Porter, 154 F.2d 464, 470-71 (2d Cir. 1946)). "If the credibility of the movant's witness is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied."Sterling Nat'l Bank & Trust Co. v. Federated Dep't Stores, Inc., 612 F. Supp. 144, 146 (S.D.N.Y. 1985); see also Drake v. Handman, 30 F.R.D. 394, 396 (S.D.N.Y. 1962) ("[W]here, as in the case at bar, credibility, including that of the defendant, is crucial , summary judgment seems particularly inappropriate.") (internal quotation marks omitted). This is true even if the credibility of a critical interested witness is only partially undermined in a material way by the non-moving party's evidence. Chem. Bank v. Hartford Accident & Indem. Co., 82 F.R.D. 376, 378-79 (S.D.N.Y. 1979) (denying summary judgment where non-moving party pointed to specific facts that "sufficiently attacked the credibility of the [moving party's] affiants so as to place that fact in issue."); see also Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d 326, 331 (5th Cir. 2000) (reversing summary judgment where circumstantial evidence offered by non-moving party raised genuine issue of fact as to the credibility of moving party's witnesses who had motive to lie, because "when questions about the credibility of key witnesses loom as large as they do here, summary judgment is inappropriate").
Construing all inferences and resolving all ambiguities in the light most favorable to Plaintiff, a reasonable jury that accepted Arvisais' allegations as true could reasonably infer that Gannon used similar tactics to gather statements from other witnesses who did provide statements implicating Plaintiff and who testified against Plaintiff at trial. Given the centrality of Gannon's role in gathering the evidence that was used to prosecute Plaintiff, Arvisais' testimony is sufficient to create a triable issue of fact with respect to probable cause. Additionally, where, as here, there is a triable question as to the truth of the allegations supporting probable cause, malice is also a question for the jury. Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003) ("Once we find an issue of material fact as to probable cause, the element of malice also becomes an issue of material fact as well."); see also Chimurenga v. City of New York, 45 F. Supp. 2d 337, 344 (S.D.N.Y. 1999) ("This is even more the case where, as here alleged, the defendants attempted to falsely create a sham probable cause.").
Therefore, having carefully reviewed the record, the Court concludes that this case cannot be resolved by way of summary judgment; rather, a jury will need to hear Arvisais' testimony, Gannon's testimony and the other evidence in the record to resolve the issues of fact surrounding the strongly contested version of events offered by the parties as it relates to the underlying criminal investigation and Plaintiff's prosecution. Boyd, 336 F.3d at 77.
IV.Deprivation of A Right to a Fair Trial
Defendants have also moved for summary judgment on Plaintiff's claim that his Sixth and Fourteenth Amendment rights to a fair trial were violated by Gannon's "perjured" testimony. Specifically, Plaintiff alleges that Gannon committed perjury when he testified that he saw of steam coming from a bag or container of food in Longchamps' car when he arrived at the scene of the Accident. Pls.' Mem. 11-13, 21-22; Pls.' Sur-Reply Mem. Law Further Opp. Defs.' Mot. Summ. Judg. 2-3, Doc. 55; Sivin Decl. Ex. 15. Notwithstanding Defendants' failure to directly address Plaintiff's claim that Gannon's testimony was false,*fn18 their motion for summary judgment on this claim is granted, because there is no admissible evidence in the record to support Plaintiff's assertions that Gannon offered false testimony during the trial.*fn19
In an effort to substantiate his assertion that Gannon's testimony was false, Plaintiff points to evidence that does not in fact support his allegations, and an "expert affidavit" that is palpably deficient and indisputably inadmissible. Sivin Decl. Ex. 6. First, Plaintiff argues that the falsity of Gannon's testimony can be inferred from the fact that there are no contemporaneous notes or photographs corroborating Gannon's trial testimony, and from Investigator Bambino's inability to recall the subject of his conversation with Gannon on the night of the Accident-which conversation, contrary to Plaintiff's representations, Bambino did recall. Sivin Decl. Ex. 14 (Bambino Tr. 41:10-43:19). However, these facts, which essentially amount to a purported absence of evidence, are not evidence of anything.*fn20 Pls.' Mem. 21-23; Pls.' 56.1 Stmt. ¶¶ 45, 48-49, at 23-24.
Second, Plaintiff's attempt to rely on the "expert affidavit" of Raj Parikh, Sivin Decl. Ex. 6 (the "Parikh Affidavit"), to discredit Gannon's testimony is clearly improper, as the Parikh Affidavit is inadmissible on a number of grounds. Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 309-10 (2d Cir. 2008) (explaining that courts can only consider admissible evidence in deciding a summary judgment motion).
While Defendants did not move to strike the affidavit, or address its deficiencies in any respect, the Court has an independent responsibility to serve as the "gatekeeper" for expert testimony, and to rely only on competent, admissible evidence in ruling on a motion for summary judgment.*fn21 Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). The Parikh Affidavit is neither competent nor admissible on its face.By way of brief example, the Parikh Affidavit does not adequately describe Parikh's educational background or experience, it does not contain any explanation of the techniques or methodologies that he used to form his opinion, the documents referenced in the affidavit are not part of the record, and Plaintiff has not submitted any expert report. This is plainly inadequate under Rule 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90 (1993) (explaining that under Rule 702 an expert's testimony must be grounded in "the methods and procedures of science," and must present "more than subjective belief or unsupported speculation" to be admissible); see also Nimely, 414 F.3d at 396 ("In addition to setting forth  criteria for testing an expert's methodology, the Supreme Court has also stated that reliability within the meaning of Rule 702 requires a sufficiently rigorous analytical connection between that methodology and the expert's conclusions"); In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d 230, 284 (E.D.N.Y. 2007) ("Unfounded extrapolations not supported by, or sufficiently related to, scientific data or expertise should be rejected; opinion that 'is connected to existing data only by the ipse dixit of the expert' need not be admitted. Expert opinion based on insufficient facts or data, or on unsupported suppositions is not acceptable.") (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)) (internal citations omitted). Notably, the Parikh Affidavit does not even contain the basic information required for initial expert disclosures under Rule 26, nor has Plaintiff otherwise provided such information to the Court. See Fed. R. Civ. P. 26(a)(2).
Finally, the case law upon which Plaintiff relies to support his assertion that his fair trial claim can be decided based solely on Gannon's alleged perjury simply serves to demonstrate the weakness of his case. See, e.g., Morillo v. City of New York, No. 95 Civ. 2176 (JSM), 1997 WL 72155, at *1 (S.D.N.Y. Feb. 20, 1997) (plaintiff brought malicious prosecution claim against defendant who confessed to, inter alia,obtaining physical evidence through an illegal search and seizure and falsely testifying before two grand juries and at trial in order to secure plaintiff's conviction, and who pled guilty to perjury prior to plaintiff's civil suit); see also White v. Frank, 855 F.2d 956, 957-58 (2d Cir. 1988) (plaintiff brought malicious prosecution claim against defendants who testified before the grand jury and at trial but subsequently confessed that such testimony had been perjured, which resulted in plaintiff's conviction being vacated).
Therefore, because Plaintiff has offered no admissible evidence to substantiate the claim that Gannon's trial testimony was perjurious, Defendants' motion for summary judgment on the claim for deprivation of a right to a fair trial is GRANTED.
V.Section 1983 Conspiracy Claim
Although not plead as a separate cause of action in the Complaint, Defendants also seek summary judgment on Plaintiff's claim of a conspiracy between Gannon and the non-state actors to violate Plaintiff's constitutional rights. Defs.' Mem. 20-21. As Defendants correctly note, the Complaint is replete with allegations that all of the defendants named in the Complaint engaged in a conspiracy to have Plaintiff wrongfully charged, prosecuted and convicted of the ABC Law violations discussed above. See, e.g., Compl. ¶¶ 36-47, 52-60. In answering Defendants' motion, Plaintiff failed to respond to (or even acknowledge) Plaintiff's arguments regarding the allegations of a conspiracy, despite obtaining leave of court to file a sur-reply in addition to his opposition papers. Accordingly, to the extent Plaintiff intended to assert a § 1983 conspiracy claim among Gannon and the non-County Defendants, such a claim is deemed abandoned and Defendants' motion for summary judgment on this claim is GRANTED. See Adams v. N.Y. State Educ. Dep't, 752 F. Supp. 2d 420, 452 n.32 (S.D.N.Y. 2010) (collecting cases where courts dismissed claims as abandoned because plaintiff failed to address them in opposing defendant's dispositive motion), aff'd sub nom. Ebewo v. Fairman, 460 F. App'x 67 (2d Cir. 2012).
For the reasons set forth above, Defendants' Motion for Summary Judgment is GRANTED as to Plaintiff's Fourteenth Amendment and conspiracy claims, and DENIED as to Plaintiff's state and federal malicious proseuction claims and Barramen's derivative claim based on Plaintiff's malicious prosecution claims. The Clerk of the Court is respectfully directed to terminate this motion. Doc. 43.
Additionally, Plaintiff is directed to show cause in writing by October 5, 2012, why his claims against Bookless should not be dismissed without prejudice for failure to prosecute. Plaintiff's submission to this Court should include accurate and up-to-date information about Bookless' bankruptcy proceeding.
The parties are directed to appear for a conference on October 30, 2012 at 11:30 am.
It is SO ORDERED.