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Boles v. County of Montgomery

United States District Court, N.D. New York

February 13, 2014

PATRICK J. BOLES, Plaintiff,
THE COUNTY OF MONTGOMERY et al., Defendants.

ELMER R. KEACH, III, ESQ., Office of Elmer R. Keach, III, Amsterdam, NY, for the Plaintiff.

MURRY S. BROWER, ESQ., The County of Montgomery, Michael Amato, Jeffrey Smith, Thomas Flickinger, Office of Theresa J. Puleo, Albany, NY, for the Defendants.

MICHAEL F. INGHAM, ESQ., Lisa Seymour d/b/a American Lenders Services Company of Glens Falls, , Dakota Seymour, Deniz Kana, Carman, Callahan Law Firm, Farmingdale, NY.


GARY L. SHARPE, Chief Magistrate Judge.

I. Introduction

Plaintiff Patrick J. Boles commenced this action pursuant to 42 U.S.C. § 1983, alleging that defendants[1] violated his Fourth and Fourteenth Amendment rights, along with a claim under New York State law, all in connection with the allegedly unlawful repossession of Boles' truck.[2] (Am. Compl., Dkt. No. 13.) Before the court are the County and Repo Defendants' motions for summary judgment. (Dkt. Nos. 32, 38.) For the reasons that follow, defendants' motions are denied.

II. Background[3]

On May 6, 2010 at approximately 9:00 P.M., Dakota Seymour (hereinafter "Seymour") and Kana, both employees of Lisa Seymour, owner of American Lenders Services Company of Glens Falls, arrived at Boles' home with a tow truck to attempt to repossess Boles' Ford F-250 pick-up truck (the "Truck") pursuant to a bank order. (County Defs.' Statement of Material Facts (SMF) ¶¶ 1-2, 8, Dkt. No. 32 at 3-9; Repo Defs.' SMF ¶¶ 1-2, Dkt. No. 42; Am. Compl. ¶ 9.) Upon arriving, Seymour and Kana attached Boles' Truck to the tow truck.[4] (Repo Defs.' SMF ¶ 2.) At that time, Boles, who was inside his home, noticed lights in his side yard, thought someone may be trespassing, instructed his mother to call the police, and went outside to investigate. (Pl.'s SMF ¶¶ 1-2, Dkt. No. 49.)

Moving forward from the time Boles went outside to investigate, the facts are largely disputed. Boles claims that, as he was walking toward his Truck, the back of which was attached to the tow truck, Kana "popped up" from behind his Truck and startled him, causing him to make physical contact with Kana for a "split second." (Pl.'s SMF ¶¶ 3, 5; Dkt. No. 45, Attach. 1 at 18.) Defendants claim that, as Boles exited his house, he "pushed" or "physically assaulted" Kana. (County Defs.' SMF ¶ 5; Repo Defs.' SMF ¶ 4.) Boles also claims that he told Kana and Seymour that they could not take his truck because he had made all of the payments, (Pl.'s SMF ¶¶ 6-7), but both Seymour and Kana dispute that Boles ever told them that they could not take his truck, (Dkt. No. 45, Attach. 4 at 26-27; Dkt. No. 45, Attach. 5 at 41-42).

Next, Boles entered his Truck and started the engine. (Pl.'s SMF ¶ 8; County Defs.' SMF ¶ 6; Repo Defs.' SMF ¶ 4.) While Seymour and Kana maintain that Boles then attempted to drive his Truck off the dolly, Boles claims that he never pressed the accelerator. (Pl.'s SMF ¶ 8; County Defs.' SMF ¶¶ 6, 9; Repo Defs.' SMF ¶ 4; Dkt. No. 45, Attach. 5 at 81-82.) Seymour and Kana then returned to their truck, and Seymour called the police and explained that he was trying to repossess Boles' Truck, but that Boles was trying to drive it off the tow truck. (Pl.'s SMF ¶ 9; County Defs.' SMF ¶ 7; Dkt. No. 45, Attach. 20.)

Road Patrol Sergeant Flickinger, after receiving a radio call from dispatch informing him that there were two 911 calls-one stating that someone was trying to take a vehicle and another stating that there was a repossession-arrived on the scene.[5] (Pl.'s SMF ¶¶ 17-18; Dkt. No. 45, Attach. 22.) Boles claims that Seymour and Kana were inside their truck when Flickinger arrived, (Pl.'s SMF ¶ 20), but Flickinger claims that they were standing by the front of the tow truck, (County Defs.' SMF ¶ 11).

Kana and Seymour then showed Flickinger a copy of the bank order, which he reviewed. (Pl.'s SMF ¶ 19; Repo Defs.' SMF ¶ 6.) Defendants claim that Boles' Truck was running and leaning off the dolly and Boles was upset and yelling. (County Defs.' SMF ¶ 13-14.) Boles, however, maintains that, at the time Flickinger arrived, his Truck was in park and securely on the dolly, he was not attempting to drive, Kana and Seymour were safely inside their truck, his parents were not near the Truck, and he was calm. (Pl.'s SMF ¶ 20-23; Dkt. No. 45, Attach. 1 at 41; Dkt. No. 45, Attach. 4 at 46-47.)

Flickinger then approached Boles, who was still sitting in his Truck. (Pl.'s SMF ¶¶ 21-22.) Flickinger ordered Boles to exit the Truck, but Boles refused.[6] (County Defs.' SMF ¶ 15; Pl.'s SMF ¶ 38.) After Boles refused to exit, Flickinger pulled him out of the Truck. (County Defs.' SMF ¶ 15; Repo Defs.' SMF ¶ 6; Pl.'s SMF ¶ 41.) Once Boles was out of the Truck, the two continued to scuffle, but Flickinger ultimately released Boles. (Pl.'s SMF ¶¶ 44-45; County Defs.' SMF ¶ 16; Repo Defs.' SMF ¶ 6.) At this point, a second 911 call was placed.[7] (County Defs.' SMF ¶ 17; Pl.'s SMF ¶ 42; Repo Defs.' SMF ¶ 6.) Boles then reentered the Truck. (Pl.'s SMF ¶¶ 45-46; County Defs.' SMF ¶ 17.) Boles claims that he asked Flickinger if he could wait inside of the Truck because he was barefoot, and that Flickinger allowed him to reenter the Truck, but then quickly changed his mind and pulled Boles out of the Truck a second time. (Pl.'s SMF ¶¶ 45-46; County Defs.' SMF ¶ 17.)

Additional officers then arrived on the scene, including Officer Leon Pratt, from the City of Amsterdam Police Department, and Deputy Theresa Pingitore, of the Montgomery County Sheriff's Department. (County Defs.' SMF ¶ 18; Pl.'s SMF ¶ 47; Dkt. No. 45, Attach. 7 at 11.) Pratt ordered Boles to cooperate and threatened to use his taser on him if he refused. (County Defs.' SMF ¶ 18; Pl.'s SMF ¶ 47.) Flickinger then placed Boles in handcuffs and placed him in his patrol car. (County Defs.' SMF ¶ 22; Pl.'s SMF ¶ 48.) Once Boles was taken away, Seymour and Kana removed the Truck, completing the repossession. (Repo Defs.' SMF ¶ 7.)

Boles was charged with obstructing governmental administration (OGA) in the second degree and resisting arrest. (County Defs.' SMF ¶ 22; Pl.'s SMF ¶ 52); see N.Y. Penal Law §§ 195.05, 205.30. In the OGA Criminal Information, Flickinger wrote that Boles obstructed governmental administration by "preventing public servant... Flickinger... from performing an official function of a car repossession." (Dkt. No. 45, Attach. 10 at 1.) All of the charges against Boles were ultimately dismissed. (Pl.'s SMF ¶ 58.)

III. Standard of Review

The standard of review pursuant to Fed.R.Civ.P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F.Supp.2d 85, 92 (N.D.N.Y. 2011), ...

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