KEVIN D. BLOOM, ESQ., BLOOM, BLOOM & ASSOCIATES, PC, New Windsor, NY, Attorneys for Plaintiff.
ROBERT N. ISSEKS, ESQ., OFFICE OF ROBERT N. ISSEKS, Middletown, NY, Attorney for Plaintiff.
CARL S. SANDEL, ESQ., MATTHEW C. WEIR, ESQ., MORRIS DUFFY ALONSO & FALEY, New York, NY, Attorneys for Defendants Meghan Sutton, Gary Short, and Town of Ulster.
KEVIN R. BRYANT, ESQ., OFFICE OF KEVIN R. BRYANT, Kingston, NY, Attorney for Defendant Danielle L. Short
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
Plaintiff Mary Ann LaLumia ("plaintiff") brings this action against defendants Meghan Sutton ("Officer Sutton"), Danielle L. Short ("Mrs. Short"), Gary Short ("Mr. Short"), and the Town of Ulster, New York (collectively "defendants") under 42 U.S.C. § 1983 and state common law. She asserts claims for violation of the Fourth and Fourteenth Amendments, false arrest, malicious prosecution, intentional and/or negligent infliction of emotional distress, and failure to train and discipline.
Mrs. Short moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim or alternatively for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes and cross-moves to amend her complaint pursuant to Federal Rule of Civil Procedure 15. Mrs. Short replied. Oral argument was heard on December 12, 2013, via videoconference in Utica, New York. Decision was reserved.
II. FACTUAL BACKGROUND
This case arises from an incident on March 4, 2013, at the Target department store in the Town of Ulster. The facts are largely undisputed. At approximately 2:30 p.m., Mr. and Mrs. Short left the Target parking lot after completing their shopping at Target. On the drive home, Mrs. Short realized she left her purse in the shopping cart in the Target parking lot. Mr. Short, an off-duty Town of Ulster police officer, called the Ulster Police Department to send an officer to Target to retrieve his wife's purse.
Town of Ulster Police Officer Sutton arrived at Target but was unable to locate the purse. The Shorts returned to Target and Mr. Short began investigating with Officer Sutton. After speaking with Target's Loss Prevention, they viewed video footage from the parking lot which showed a vehicle parked in the same spot where the Shorts were last parked. An elderly woman, later identified to be plaintiff, exited her vehicle, approached the cart corral, and removed the purse from a cart. She then returned to the front seat of her vehicle where she stayed for approximately five minutes. She then exited her vehicle, placed the purse in her trunk, and entered Target. Upon learning the identity of the owner of this vehicle, Officer Sutton and Mr. Short located plaintiff in Target. They explained they were police officers and asked if she had found a purse.
Plaintiff, a 70 year old woman, stated that she did find a purse and tried to find contact information for the owner. She informed them that she then locked the purse in her trunk to keep the contents safe because she didn't trust giving it to a Target employee. She then entered the store to shop. Plaintiff's supporting deposition, which Mrs. Short submitted in support of her motion to dismiss, also states that upon looking in the purse for a phone number so she could call the owner, plaintiff noticed many cards and twenty dollar bills. After finding a driver's license, she called 411, and the operator gave a name and number for Gary Short. She called that number from her cell phone and left a message as soon as she entered Target. She called a second time after realizing she did not leave her name, and again left a message. In each message she said she found a purse in a shopping cart at Target.
Officer Sutton then retrieved the purse from plaintiff's trunk and returned it to Mrs. Short. Nothing was missing from the purse. Mrs. Short then told her husband and Officer Sutton that she wanted plaintiff arrested for stealing her purse. Officer Sutton took plaintiff into custody and transported her to the Ulster Police Department. The Shorts left Target and proceeded to the Ulster Police Department.
Plaintiff was charged with criminal possession of stolen property in the fifth degree. She was arraigned on March 20, 2013, in Ulster Town Court. On April 3, 2013, the charges against her ...