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Marcano v. City of Schenectady

United States District Court, N.D. New York

August 13, 2014

ALEXANDER MARCANO, Plaintiff,
v.
THE CITY OF SCHENECTADY, MICHAEL HUDSON, RYAN KENT, ANTHONY J. SAVIGNANO, KEVIN DERKOWSKI, SHAWN DONOVAN, WILLIAM FENNELL, BRET FERRIS, JEFFREY S. PARDI, CHRISTOPHER SEMIONE, and STEVEN SHELDON, Individually and as Agents, Servants, and/or Employees and Police Officers of the City of Schenectady and the City of Schenectady Police Department, Defendants

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For Alexander Marcano, Plaintiff: Carlo Alexandre C. de Oliveira, Cooper, Erving Law Firm - Albany Office, Albany, NY.

For The City of Schenectady, Michael Hudson, Individually and as Agent, Servant, and/or Employee and Police Officer of the City of Schenectady and the City of Schenectady Police Department, Anthony J. Savignano, Individually and as Agent, Servant, and/or Employee and Police Officer of, the City of Schenectady and the City of Schenectady Police Department, Ryan Kent, Individually and as Agent, Servant, and/or Employee and Police Officer of, the City of Schenectady and the City of Schenectady Police Department, Kevin Derkowski, individually and as Agent, Servant and/or Employee and Police Officer of, the City of Schenectady and the City of Schenectady Police Department, Shawn Donovan, individually and as Agent, Servant and/or Employee and Police Officers of, the City of Schenectady and the City of Schenectady Police Department, William Fennell, individually and as Agent, Servant, and/or Employee and Police Officers of, the City of Schenectady and the City of Schenectady Police Department, Brett Ferris, individually and as Agent, Servant, and/or Employee and Police Officer of, the City of Schenectady and the City of Schenectady Police Department, Jeffrey S. Pardi, individually and as Agent, Servant, and/or Employee and Police Officer of, the City of Schenectady and the City of Schenectady Police Department, Christopher Semione, individually and as Agent, Servant, and/or Employee of the City of, Schenectady and the City of Schenectady Police Department, Steven Sheldon, individually and as Agent, Servant, and/or Employee of the City of, Schenectady and the City of Schenectady Police Department, Defendants: Michael J. Murphy, LEAD ATTORNEY, Alaina K. Laferriere, Carter, Conboy Law Firm, Albany, NY.

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DECISION & ORDER

Thomas J. McAvoy, Senior United States District Judge.

I. INTRODUCTION

Plaintiff Alexander Marcano (" Plaintiff" ) commenced this action on January 9, 2012 alleging violations of rights secured by the United States Constitution and New York State law. His claims, which arise in connection with his arrest on January 7, 2011, sound in false arrest, malicious prosecution, malicious abuse of process, excessive force, intentional and negligent infliction of emotional distress, assault and battery, and negligence.

Presently before the Court are Plaintiff's motion for partial summary judgment, dkt. # 50, and Defendants' cross-motion

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for summary judgment. Dkt. # 56. The Court has considered all of the submissions presented by the parties relative to these motions in rendering this Decision and Order.

II. STANDARD OF REVIEW

On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007), and may grant summary judgment only where " there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see O'Hara v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011). When considering cross-motions for summary judgment, the Court " must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Hotel Employees & Rest. Employees Union, Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002)(citation omitted). " [N]either side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it . . . [and] a district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).

III. BACKGROUND[1]

On January 7, 2011, at approximately 7:50 P.M., the Schenectady Police Department's Special Investigation Unit (" SIU" ) received a complaint that a black male had brandished a gun at a location on Paige Street. Hudson Dep. p. 23; Savignano Dep., pp. 34, 36. The SIU called in the complaint to the police department. Hudson Dep. p. 28; Savignano Dep., p. 37. The police dispatcher, in turn, instructed " all units" to respond, and indicated that the " perpetrator," a black male with a gun, had jumped over a fence around 501-503 Paige Street and was headed towards Mumford Street. See In-Cruiser Video (" ICV" ) recordings, Def. Ex. 1. Defendants Savignano and Hudson, both Schenectady police officers, were on duty in the City of Schenectady and responded by driving in their police cruiser to Mumford Street, arriving moments after they received the dispatch. Id.

At the time, it was dark out, it was snowing, the roadways were covered with snow, and there were very few people on the streets. Id., at 007KVY00. Driving down Mumford Street from Strong Street, the officers passed a man shoveling snow on the left side of the street. They asked if he had " just seen a black guy come through here," and received a negative response. Id. Continuing down the street, the officers saw a lone individual (later identified as Plaintiff) walking on the right side of Mumford Street (the side closest to Paige Street) moving toward them and away from the corresponding address on Mumford Street where the suspect had

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allegedly jumped over the fence. Id. Savignano attests that when he first observed Plaintiff, he could tell he was either a black or Hispanic male because of his dark skin tone. Savignano Dep. 39. At that time, Plaintiff was not engaged in any illegal or suspicious behavior beyond the possibility that he was the individual who had brandished a gun on Paige Street. Although no weapon was observed, Savignano testified that he " couldn't see [Plaintiff's] hands." DRPSOF ¶ 8.[2]

Hudson and Savignano decided to approach Plaintiff because he matched the dispatcher's description, was one of the few individuals on Mumford Street during the snow storm, was near where the incident allegedly occurred, and was walking away from where the suspect reportedly jumped over the fence to Mumford Street. The officers shined the vehicle's spotlight on Plaintiff, pulled their car to the side of the street adjacent to where Plaintiff was walking, and both officers exited the vehicle.[3] The In-Cruiser Video/Audio recording indicates that, although out of sight of the video recording (which only displays events in front of the vehicle), Savignano[4] can be heard stating: " 37. [5] Let me see your hands. Let me . . . ." Def. Ex.1, 007KVY00. At this point Plaintiff began to flee from the police, apparently attempting to run down a driveway headed toward Paige Street. PSOF ¶ ¶ 12-15; [6] PRDCSOF at ¶ 14. Both officers gave chase and, in a matter of moments, both officers and Plaintiff fell on ice. Hudson grabbed Plaintiff's foot but Plaintiff was able to get away. See PSOF ¶ 15 (" Within moments, Defendant Hudson grabbed Mr. Marcano by the foot but was unable to keep hold ...." ). Plaintiff then turned back across Mumford Street and continued to flee with Hudson and Savignano in pursuit. The In-Cruiser Video recording depicts Plaintiff fleeing in front of the vehicle and running to the opposite side of ...


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