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Peterec v. Hilliard

United States District Court, S.D. New York

December 8, 2014

JOHN L. PETEREC, Plaintiff,
NEW YORK STATE POLICE TROOPER SCOTT D. HILLIARD, in his individual capacity, Defendant.

John L. Peterec, New York, New York, Plaintiff Pro Se.

John E. Knudsen, Assistant Attorney General of the State of New York, New York, New York, Counsel for Defendant.


CATHY SEIBEL, District Judge.

Before the Court are Defendant's Motion for Summary Judgment, (Doc. 82), Plaintiff's Motion for Summary Judgment, (Doc. 74), and Plaintiff's Motion in Limine, (Doc. 73). For the following reasons, Defendant's Motion is GRANTED and Plaintiff's Motions are DENIED.


The following facts are based upon the parties' Local Civil Rule 56.1 statements and supporting materials, and are undisputed except as noted. I set forth only those facts relevant to my decision.

Defendant is a Trooper with the New York State Police. (Knudsen Decl. Ex. A ("D's Aff."), at ¶ 1.)[1] On May 28, 2008, at approximately 8:00 pm, Defendant received a radio transmission from the State Police Barracks in Monroe, New York seeking an available patrol unit on State Route 17 westbound. ( Id. ¶ 2.) Defendant, who was assigned to a construction zone detail on State Route 17, answered this transmission and spoke with Trooper Jason Coulon. ( Id. ) Trooper Coulon notified Defendant that an off-duty Trooper was following a green Toyota that was driving erratically and was approaching the construction zone on State Route 17. ( Id. )

According to Defendant, the following occurred: At about 8:25 pm, he observed the green Toyota and noticed that the passenger side headlight was out. ( Id. ¶ 3.) Defendant then stopped the vehicle and asked Plaintiff, who was driving it, for his license and registration. ( Id. ) When speaking with Plaintiff, Defendant immediately detected an odor of alcohol on his breath, and noticed that Plaintiff had red, watery eyes. ( Id. ) Defendant asked Plaintiff how much he had had to drink, and Plaintiff admitted that he drank two beers earlier in the day. ( Id. ) Defendant then asked Plaintiff to exit his vehicle. ( Id. ¶ 4.) When Plaintiff exited his vehicle, Defendant noticed a container of yellow liquid on the floor in front of the driver's seat and that Plaintiff's fly was open. ( Id. ) In response to Defendant's question as to what was in the container, Plaintiff stated that it was urine. ( Id. ) Defendant then frisked Plaintiff and conducted field sobriety tests. ( Id. ¶¶ 4-5.) Before each field sobriety test, Plaintiff objected that he was too tired to perform what was requested of him. ( Id. ¶ 5.) Due to Plaintiff's complaint of a "crooked back, " Defendant did not require Plaintiff to perform two of the field sobriety tests - the walk and turn and the one leg stand tests. ( Id. ) Plaintiff failed the other five field sobriety tests - horizontal gaze nystagmus, Romberg balance, finger to nose, finger count, and reciting the alphabet. ( Id. ; Knudsen Decl. Ex. D, at 3.) Defendant then arrested Plaintiff and brought him to the Monroe State Police Barracks. (D's Aff. ¶ 5.)

Plaintiff disputes much of Defendant's account. First, Plaintiff argues that Defendant could not have seen a nonfunctioning headlight, because both of his car's headlights were working and, even if a headlight was out, that would not have justified the traffic stop because the sun had not yet set. (P's 56.1 ¶ 2.)[2] Second, according to Plaintiff, Defendant could not have detected any odor of alcohol on Plaintiff's breath, because he did not have anything to drink that day, and his car window did not go down far enough for Defendant to have been exposed to Plaintiff's breath before Plaintiff got out of the car. ( Id. ¶¶ 3-4.) Plaintiff testified, however, that Defendant opened the car door to talk to Plaintiff after Plaintiff told him that the window was broken. (P's Opp. Ex. 8, at 41.)[3] Third, Plaintiff states that Defendant could not have heard Plaintiff admit that he had two beers, because Plaintiff never admitted to drinking alcohol that day. (P's 56.1 ¶ 4.) Fourth, Plaintiff says his eyes were not red and watery, and his speech was not slurred. ( Id. ¶ 12.) Fifth, according to Plaintiff, he did not fail any field sobriety test, because he refused to perform any such test. ( Id. ¶ 5.)[4] Plaintiff, however, admitted in his deposition that he was unsteady on his feet after exiting his car, but claims "divots" on the ground caused his unsteadiness. (Knudsen Decl. Ex. C, at 43.) Finally, Plaintiff avers that the container of yellow liquid was wonton soup, not urine, and that he never said it was urine, (P's 56.1 ¶ 3), although he does not deny that his fly was open.

The events at the State Police Barracks are not in dispute. There, another Trooper, Douglas Tinirello, administered a breathalyzer test. (D's Aff. ¶ 6; see Knudsen Decl. Ex. D, at 2.) The test indicated that Plaintiff had a blood alcohol content ("BAC") of.08 percent. (D's Aff. ¶ 6.) Plaintiff argues that the breathalyzer results were unreliable, and that Defendant knew they were unreliable, for the following reasons: "a) The calibrations were way off. b) Me informing him that [asthma] medications cause false positives for Breathalyzers, thus I required my blood drawn which he refused. c) Fact that the machine couldn't have been properly working as it never printed out from its internal printer[, which produces] the ONLY reliable verifiable result that can be certified as true, as any 8 ½ by 11 print out externally can be deemed false by alteration." (P's 56.1 ¶ 7.) After receiving the results of the breathalyzer test, Defendant gave Plaintiff misdemeanor tickets for driving with a BAC of.08 percent or more, and driving while intoxicated, in violation of N.Y. Vehicle & Traffic Law ("VTL") §§ 1192(2) and (3), respectively, and a traffic infraction ticket for not having two functioning headlights, in violation of VTL § 375(2)(a)-1. (D's Aff. ¶ 6; Knudsen Decl. Ex. D, at 4-6.)

Plaintiff filed this action on May 16, 2012, asserting several state and federal claims against several individuals, Orange County and the Orange County District Attorney. On September 16, 2013, the Court granted motions to dismiss as to all claims except for the state and Section 1983 malicious prosecution claims against Defendant. ( See Doc. 56.) Plaintiff and Defendant both now move for summary judgment on these claims. (Docs. 74, 82.)[5]


A. Summary Judgment Standard

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he dispute about a material fact is genuine'... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. Moreover, the non-movant "must do more than ...

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