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Kastle v. Town of Kent Police Officer Chris Tompkins

United States District Court, S.D. New York

July 27, 2017

BARBARA B. KASTLE and MATTHEW L. KASTLE, Individually and as Joint Administrators of the Estate of MICHAEL W. KASTLE, Deceased, Plaintiffs,
v.
Town of Kent Police Officer CHRIS TOMPKINS, Town of Kent Police Officer DARREN M. CEA, Town of Kent Police Chief ALEX DIVERNIERI, Town of Kent Police Sergeant JERRY RANERI, Putnam County Deputy Sheriff J.P. KERWICK, Putnam County Deputy Sheriff DANIEL HUNSBERGER, Town of East Fishkill Police Detective KYLE P. DOUGHTY, Town of East Fishkill Police Officer DANIEL P. DIDATO, Town of East Fishkill Police Detective RYAN J. ANGIOLETTI, Defendants.

          MEMORANDUM OPINION AND ORDER

          VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.

         Before the Court is Magistrate Judge Paul E. Davison's Report and Recommendation (“R&R”), dated March 13, 2017 (Doc. #158), on defendants' motions for summary judgment. (Docs. ##122, 126, 130). Judge Davison recommended that the motions be granted in part and denied in part.

         For the following reasons, the Court adopts the R&R, except that the Court rejects the recommendation that the Kent defendants Tompkins, Cea, DiVernieri, and Raneri, and the East Fishkill defendants Doughty, DiDato, and Angioletti, are entitled to summary judgment on plaintiffs' wrongful death claim.

         Familiarity with the procedural background of this case is presumed.

         I. Standard of Review

         A district court reviewing a magistrate judge's report and recommendation on a dispositive motion, such as a motion for summary judgment, “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Objections to the recommended ruling are reviewed de novo. Id.; accord, Fed.R.Civ.P. 72(b)(3). Unobjected to portions of the recommended ruling are reviewed for clear error. See Wilds v United Parcel Service, Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).

         II. Rule 56.1 Statements

         Preliminarily, the Court notes its full agreement with Judge Davison's observations regarding plaintiffs' non-compliant (i) responses to defendants' Rule 56.1 Statements and (ii) Rule 56.1 counter-statement of material facts. (R&R at 2-6). This Court shares Judge Davison's justifiable frustration with plaintiffs' counsel's inability and/or failure to comply with the requirements of Local Rule 56.1, thus impeding the Court's ability to determine which, if any, material facts are in dispute. The Court will assume plaintiffs' counsel's failure to comply was merely sloppy and careless; regardless, the Court fully agrees with and adopts Judge Davison's decision to “take[] into account the admissible record evidence to which plaintiffs specifically cite and consider[] whether it raises issues of material fact but [to] otherwise deem[] admitted those facts in defendants' Local Rule 56.1 Statements which plaintiffs have failed to sufficiently controvert - provided defendants' factual assertions are duly supported by the record evidence.” (R&R at 5-6).

         III. The Parties' Objections

         Plaintiffs object to all of Judge Davison's findings and recommendations, except that plaintiffs do not object to the recommendation that the motion of East Fishkill defendants DiDato and Angioletti for summary judgment be denied as to (i) the fair trial claim based on the suppression of narrative reports containing information of Officer Bade's consumption of alcohol, and (ii) the conspiracy claim against these two defendants.

         The East Fishkill defendants object to Judge Davison's recommendation to deny the motion as to the fair trial claim and the conspiracy claim against DiDato and Angioletti.

         In conducting a de novo review of the R&R, the Court has independently and thoroughly reviewed the record and the relevant case law. Having done so, the Court finds no merit in plaintiffs' or defendants' objections, with one important exception: the Court respectfully disagrees with Judge Davison's finding and recommendation that there are no material issues of fact with respect to the wrongful death claim against the Kent defendants (Tompkins, Cea, DiVernieri, and Raneri) and against the East Fishkill defendants (Doughty, DiDato, and Angioletti). The Court finds that the R&R is correct in all other respects.

         As to the wrongful death claim, the Court agrees with plaintiffs that - construing the facts, resolving all ambiguities, and drawing all permissible factual inferences in plaintiffs' favor - there is sufficient admissible evidence from which a reasonable jury could find a persistent course of harassment and intimidation by the Kent and East Fishkill defendants over a period of months prior to Michael Kastle's death that, when considered as a whole, constituted a “wrongful act, neglect or default which caused the decedent's death, ” committed by persons “who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.” N.Y. Est. Powers & Trusts L. § 5-4.1; accord, Chong v. N.Y.C. Transit Auth., 83 A.D.2d 546, 547 (2d Dep't 1981).[1]

         First, the evidence is undisputed that Michael had numerous police encounters with Kent and East Fishkill police officers starting with the Bade car accident on April 27, 2011, and continuing through his encounter with Officer Cea on March 30, 2012. There is also evidence East Fishkill defendants Doughty, DiDato, and Angioletti, and Kent defendants DiVernieri and Raneri, knew of and suppressed evidence that Bade had consumed alcohol prior to the accident - from which a permissible inference could be drawn that they were attempting to protect their colleague Bade, who had been seriously injured in the accident, from the consequences of being found to have driven while his ability to do so was impaired by alcohol. That inference is supported by the testimony of Michael's lawyer, Scot F. Hersh, and Michael's mother, Barbara Kastle. Hersh testified that Kent defendant Tompkins and other Kent police officers told Hersh the Kent police had “continued to look for” Michael after the accident and asked rhetorically, “Is the kid getting the message?” Hersh also testified a “systematic organized pattern . . . developed after” the car accident, in which Kent ...


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