Paul Kaczmarek, Pro Se, Schenectady, NY.
Timothy J. Mahoney, Pro Se, Schenectady, NY.
Dawn DeLucca, Pro Se, Schenectady, NY. for the Plaintiffs.
NANNETTE R. KELLEHER, ESQ., WILLIAM C. FIRTH, ESQ., City of Schenectady, City of Schenectady Police Department, John Doe, and Eric Peters, Bailey, Kelleher Law Firm, Albany, NY.
DEREK L. HAYDEN, ESQ, Town of Niskayuna and John Doe Shantz, Belkin Law Firm, Latham, NY, for the Defendant:
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiffs pro se Paul Kaczmarek, Timothy J. Mahoney, and Gerald DeLucca commenced this action pursuant to 42 U.S.C. § 1983, alleging defendants violated their Fourth Amendment rights and New York common law. (Compl. ¶ 14, Dkt. No. 1 at 7-24.) Pending are both Schenectady Defendants' and Niskayuna Defendants' unopposed motions for summary judgment. (Dkt. Nos. 33, 35.) For the reasons that follow, defendants' motions are granted.
A. Procedural History
On September 7, 2010, plaintiffs filed a complaint in New York State Supreme Court, County of Schenectady. (Compl.) On October 5, 2010, the Schenectady Defendants removed the case to this court. (Dkt. No. 1.) Since the filing of this action, neither John Doe defendant has been identified or formally served. Additionally, although Peters was named as a defendant in the summons, he was neither listed in the caption of the complaint nor mentioned within it. ( Compare Dkt. No. 35, Attach. 8, with Compl.) Further, during the pendency of this action, DeLucca died, (Dkt. No. 12; Dkt. No. 26 at 9), and his daughter, Dawn DeLucca, advised the court that she is the executor of DeLucca's estate, (Dkt. No. 26). A motion to substitute was never filed.
On January 15, 2013, Schenectady Defendants and Niskayuna Defendants moved for summary judgment. (Dkt. Nos. 33, 35.) On the same date, Niskayuna Defendants provided plaintiffs with notice that explained the consequences of failing to respond to the pending motions. (Dkt. No. 33, Attach. 1.) On January 16, 2013, the court also provided the plaintiffs with notice that failure to respond may result in dismissal of some or all of their claims. (Dkt. Nos. 38, 39.) On February 7, 2013, by order, the court again warned plaintiffs of the possible consequences of failing to respond, and granted plaintiffs a fourteen-day extension of time to respond. (Dkt. No. 44 at 3-4.) Finally, on April 18, 2013, the court issued a second order warning plaintiffs of the possible consequences of failing to respond, and granted them a second fourteen-day extension of time to respond. (Dkt. No. 51 at 3-4.) Nevertheless, plaintiffs failed to respond.
On July 14, 2009,  Toni DeLucca, ex-wife of DeLucca, called 9-1-1 and reported to the Town of Niskayuna Police Department (NPD) that DeLucca or Kaczmarek had stolen her car keys. (Schenectady Defs.' Statement of Material Facts (SMF) ¶¶ 25, 27, Dkt. No. 35, Attach. 1.) Before the NPD arrived, DeLucca, Mahoney, and Kaczmarek left in ...