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Daniel Pelayo and Kristina Kauts v. the Port Authority

September 28, 2012


The opinion of the court was delivered by: John G. Koeltl, District Judge:


Defendants, the Port Authority of New York and New Jersey ("PA"), PA Sergeant Gravano, and PA Officer Robert Sznurkowski (collectively, the "PA defendants"), have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking to dismiss the claims alleged against them by plaintiffs Daniel Pelayo and Kristina Kauts. The events giving rise to this lawsuit took place in the early morning hours of June 3, 2009 when Kauts and Pelayo were detained at the John F. Kennedy Airport ("JFK"). (Pls.' Resp. to Defs.' R. 56.1 Stmt. ("Pls.' Resp."), ¶¶ 4, 22, 25.) The plaintiffs allege claims for false arrest, excessive force, and battery in violation of 42 U.S.C. § 1983 and New York law. The claims against the PA are based on a theory of vicarious liability.

This Court previously dismissed the plaintiffs' claims against Customs and Border Protection ("CBP") officers Bridgeforth and Van Ihsem in their official capacity, as well as Pelayo's false arrest claims against the CBP officers and the PA defendants. This Court has also dismissed Pelayo's excessive force claim against PA Officer Sznurkowski. Kauts has since settled her false arrest claim against the CBP officers in their individual capacities. Consequently, only Kauts's claim against the PA defendants for false arrest, Pelayo's excessive force claim against Sergeant Gravano, and Pelayo's battery claim against Sergeant Gravano and the PA remain.


The PA defendants have moved for summary judgment on the grounds that the PA officers' conduct did not violate the United States Constitution or New York law. The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows 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(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify the material facts and "[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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Chepilko v. Cigna Group Ins., No. 08 Civ. 4033, 2012 WL 2421536, at *1 (S.D.N.Y. June 27, 2012).

In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

If the moving party meets its burden, the burden shifts to the nonmoving party to bring forward "specific facts showing a genuine issue for trial." Ovesen v. Mitsubishi Heavy Indus. of Am., Inc., No. 04 Civ. 2849, 2012 WL 677953, at *1 (S.D.N.Y. Mar. 1, 2012) (citation omitted). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114--15 (2d Cir. 1998) (collecting cases); Ovesen, 2012 WL 677953, at *1.


The following facts are undisputed unless otherwise noted. The plaintiffs, an engaged couple, were returning from a trip to the Dominican Republic on June 3, 2009. (Pls.' Resp. ¶¶ 17, 22.) At 12:54am, when they presented their passports to CBP at JFK, an Inter City Correspondence alert ("ICC") notified the CBP officers of an Outstanding Order of Protection ("OOP") in favor of Kauts against Pelayo. (Pls.' Resp. ¶¶ 22-25.) The CBP officers referred Pelayo to a secondary area to verify whether the ICC alert indeed referred to Pelayo. (Pls.' Resp. ¶ 25.) Kauts testified that she went to the secondary area with Pelayo "thinking that it was nothing. . . . Because I'm from Florida and I'm a young woman in JFK Airport, so I went with my fiance to where he goes." (Kauts Dep. Tr. at 21-22.)

Pelayo and Kauts waited in the secondary area unaccompanied by CBP or PA officers; eventually a CBP officer called Pelayo to a desk and Pelayo handed the officer his documentation. (Kauts Dep. Tr. at 22-23.) Kauts represents that one CBP officer told her "to wait right here." (Kauts Dep. Tr. at 27.) After Pelayo surrendered his passport, the CBP officers allegedly asked Kauts for her passport, asked her to take a seat, and asked the plaintiffs to separate. (Kauts Dep. Tr. at 38.)

The CBP officers informed Kauts and Pelayo that they were separated because of the OOP, to which Kauts replied, "[t]here is no order of protection," and she "pleaded and begged with [the CBP officer] at the front" to let her make a phone call or retrieve the OOP dismissal paperwork. (Kauts Dep. Tr. at 41-42; see Pls.' Resp. ¶ 44.) But the CBP officer allegedly refused, saying, "I can't let you go. You have to wait here until we figure out what we have to do." (Kauts Dep. Tr. at 42.) Kauts maintains that she asked "[w]hy am I being held?" and "[b]asically, the whole time, [she] just pleaded if [she] could leave." (Kauts Dep. Tr. at 47.) A person she identified as "the main [CBP] officer" reportedly responded, "Absolutely not. You cannot go anywhere because you committed a crime." (Kauts Dep. Tr. at 48.) She asked the officer, "Well, if I try to leave, what will happen?" to which she claims that he replied, "Then I will personally put you in handcuffs and stop you from leaving." (Kauts Dep. Tr. at 48.) Kauts was never put in handcuffs or searched. (Kauts Dep. Tr. at 54-55.)

Meanwhile, between 3:00am and 4:00am, the CBP officer faxed Kauts's and Pelayo's travel and identity documents, as well as the OOP, to the PA. (Pls.' Resp. ¶¶ 31, 33.) Upon his arrival at PA headquarters between 5:00am and 5:15am, Sergeant Gravano received the OOP. (Gravano Dep. Tr. at 5.) The OOP indicated that it was issued on May 16, 2008 and that it would remain effective until May 17, 2010. (Pls.' Resp. ¶ 32.) However, the OOP had already been vacated, unbeknownst to the CBP or PA officers. (Pls.' Resp. ¶ 32.) Based on the information contained in the OOP, Sergeant Gravano and Officer Sznurkowski went to JFK between 6:00am and 6:30am to arrest Pelayo. (Pls.' Resp. ¶ 35.)

The PA officers led Pelayo to a hallway, patted him down, asked him to place his hands behind his back, and Officer Sznurkowski handcuffed him for transport to PA headquarters. (Pelayo Dep. Tr. at 185, 193-95; Gravano Dep. Tr. at 14.) Pelayo claims that on their way to the squad car while he was handcuffed he stated, "[t]here's no Order of Protection in effect," to which Sergeant Gravano allegedly replied, "[y]ou shouldn't be worried if there's an Order of Protection in effect or not. You should be worried why you had an Order of Protection to begin with." (Pelayo Dep. Tr. at 190.) Sergeant Gravano maintains that neither he, nor any other PA officer that he knows of, made that statement to Pelayo. (Gravano Dep. Tr. at 19-20.)

Meanwhile, after the PA officers arrived at the secondary area where Kauts and Pelayo were waiting, they escorted Kauts into a room "around the corner" where a PA officer "told [her] to write down the things that [Pelayo] had done to [her]" on page two of the New York State Domestic Incident Report form ("DIR"). (Kauts Dep. Tr. at 53, 55-56; Pls.' Resp. ¶¶ 37-38.) This occurred at approximately 6:25am. (Denalli Decl., Ex. P ("DIR").) Kauts claims that she stated, "This is a false arrest. This should not be happening. He's done nothing wrong. We're just trying to go home." (Kauts. Dep. Tr. at 175.) She wrote on page two of the DIR form that the OOP "is an old order which was dropped on August 22, 2008." (Kauts Dep. Tr. at 60-61; see also DIR.)

After she filled out the DIR form, the PA officers allegedly "made [Kauts] wait in the room until they were done handcuffing Daniel Pelayo," then the PA officers escorted her out of JFK. (Kauts Dep. Tr. at 62.) During this time, the PA officers did not threaten her, handcuff her, or yell at her; she did not ask the officers to leave, and she did not refuse to comply with the request that she fill out the form. (Pls.' Resp. ¶ 39; Gravano Dep. Tr. at 11.) Further, Sergeant Gravano testified that "she could refuse" to cooperate: "She could say I'm not doing this and we would put that on the portion of the DIR." (Gravano Dep. Tr. at 11.) After she filled out the DIR form, two PA officers escorted Kauts from Terminal 4 without handcuffing her, holding her hands, or speaking with her. (Pls.' Resp. ¶ 40.) Kauts remained with the PA officers for a total time of 20 to 30 minutes. (Pls.' Resp. ¶ 38.) Accordingly, she left JFK at approximately 7:00am.

The parties dispute whether Kauts's referral to the secondary area occurred pursuant to CBP or PA policy. The plaintiffs argue that on June 3, 2009 the PA "had an ongoing arrangement and procedure with CBP which required CBP to hold both the subject of an OOP and the person protected by the OOP if that person was travelling with the subject." (Pls.' Resp. ¶¶ 26, 29.) The PA defendants claim that "[t]he [PA] does not order or direct CBP to hold onto the protected party and there is no [PA] policy requiring a protected party to be held by the CBP." (Defs.' R. 56.1 Stmt. ¶ 29.) The PA maintains that "it was CBP's policy to refer a person accompanying the subject of the OOP into the CBP secondary area." (Defs.' R. 56.1 Stmt. ¶ 26). Sergeant Gravano explained that Kauts was taken to the secondary area because the PA "like[s] to interview the protected party . . . and the state mandated that [the PA] fill out a DIR . . . to make sure they were not threatened or hurt in any way." (Gravano Dep. Tr. at 10.) Although the PA "likes" to conduct these interviews, they "don't always necessarily get to do th[em]." (Gravano Dep. Tr. at 10.) Sergeant ...

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