United States District Court, E.D. New York
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For the Plaintiff: Gregory Dale Abram, Esq., Of Counsel, Abram & Associates, Hempstead, NY.
For the Defendants: Debrah Ann Ubrano-Disalvo, Village Attorney, Village of Hempstead Attorney's Office, Hempstead, NY.
For the Defendants: William J. Garry, Esq., Keith Michael Corbett, Esq., Of Counsel, Harris Beach PPLC, Uniondale, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On September 20, 2011, the Plaintiff Troy Pittman (the " Plaintiff) commenced this action against the Defendants Incorporated Village of Hempstead (the " Village" ) and Michael Holley (" Holley," and together with the Village, the " Defendants" ). Pursuant to 42 U.S.C. § § 1981 and 1983, the Plaintiff alleges that the Defendants violated his rights under the Fourth Amendment and Fourteenth Amendment of the United States Constitution by (1) using excessive force constituting an unreasonable seizure of the Plaintiff and (2) falsely arresting the Plaintiff as no probable cause existed to arrest him.
Presently before the Court is the Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56 or in the alternative, for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). The Court notes that in their moving papers, the Defendants have included footnotes in violation of this Court's Individual Rule I.A. Notwithstanding this infraction, the Court will consider the Defendants' papers in rendering its decision. However, the Court advises the Defendants' counsel that any future filings that contain footnotes will not be considered by this Court.
For the reasons that follow, the Court denies the motion in part and grants the motion in part.
A. The Admissibility of the Plaintiff's Factual Assertions
At the outset, the Court notes that in reply to the Plaintiff's opposition, the Defendant argues that the Court should disregard the Plaintiff's factual assertions as they are only supported by a declaration by the Plaintiff's attorney, who has no personal knowledge of the underlying facts of this case. However, the Defendants overlook that in his declaration, the Plaintiff's attorney cites to evidence in the record, including the Plaintiff's deposition testimony, in order to support his factual assertions. " Despite the requirement that a declaration be made upon personal knowledge, attorneys often submit declarations in support of or in opposition to a motion for summary judgment for the purpose of introducing documents into the record." Osuna v. Gov't Employees Ins. Co., 11-CV-3631 JFB AKT, 2014 WL 1515563 (E.D.N.Y. Apr. 17, 2014) (quoting Degelman Indus. Ltd. v. Pro--Tech Welding & Fabrication, Inc., No. 06--CV6346T, 2011 WL 6752565, at *3 (W.D.N.Y. Dec. 23, 2011)). For this reason, the Court will consider those factual assertions made in the Plaintiff's opposition papers, including those recited in the declaration by the Plaintiff's attorney, so long as they are supported by admissible evidence in the record. Id.
With that being said, the Court pauses here to discuss the following two exhibits that the Plaintiff includes with his opposition: (1) a printout from the New York State Department of Corrections and Community Supervision's website providing inmate information with regard to the Defendant Holley's son; and (2) an article from the website of the Long Island Press, dated June 4, 2010, allegedly concerning the arrest of Holley's son for shooting a man during a robbery. In his declaration, based on these two exhibits, the Plaintiff's attorney suggests that the Plaintiff made a comment to Holley about his son's situation,
causing Holley to lose his temper resulting in him allegedly using excessive and unreasonable force against the Plaintiff. However, the Plaintiff cites no evidence in his opposition papers to support this speculation.
Indeed, these allegations appear to only be substantiated by the declaration of the Plaintiff's attorney. The Plaintiff cites to no deposition testimony, affidavits or declarations from either himself or from any other individual who would have had personal knowledge of the facts in question and that support this conjecture. Thus, " this Court may not consider [these] 'facts' set forth in [the] [P]laintiff's memorandum of law because they were not submitted in proper, admissible form." Dobson v. Citigroup, Inc., 03-CV-0680 (SR), 2009 WL 1796579, at *3 (W.D.N.Y. June 24, 2009) (citing Fed.R.Civ.P. 56).
B. Underlying Facts
On May 26, 2010, at about 8:45 p.m., the Plaintiff's former girlfriend, Shanel Cummings filed a formal complaint at the Defendant Village's Police Headquarters against the Plaintiff. She claimed that the Plaintiff entered her house while intoxicated and became upset when she asked him to leave. According to Cummings, the Plaintiff then picked up two televisions sets, which were valued at approximately three-hundred fifty dollars, and threw them to the ground, thus breaking them both.
While at the Village's Police Headquarters to make her complaint, Cummings signed a Statement of Allegation/Supporting Deposition (the " Statement" ). The Statement set forth facts supporting a New York State Domestic Incident Report (the " Incident Report" ) and was drawn up by Police Officer Melody Washington. However, apparently, in filling out the Statement, Officer Washington inadvertently listed Cummings's boyfriend as " Troy Cummings" instead of " Troy Pittman," which is the Plaintiff's name. When she realized her error, the Defendant's allege that Officer Washington used white-out in order to change the name from " Troy Cummings" to " Troy Pittman." The Court notes that, on both versions of the form, the Suspect Name Box listed " Troy Pittman" and the Incident Report also alleges that " Troy Pittman" was the intoxicated individual who came to Cummings's apartment and broke two televisions after she told him to leave.
Approximately one month later, on June 21, 2010 at about 4:00 p.m., the Defendant Holley, a police officer, along with another police officer, Daniel P. Larkin, responded to a call for assistance by a Village Crossing Guard at the Franklin School located on South Franklin Street in Hempstead. The Village Crossing Guard had reported that the Plaintiff had walked up to an ...