United States District Court, N.D. New York
THE PLAINTIFFS: Office of Anthony J. LaFache
THE DEFENDANTS: MICHAEL J. MURPHY, ESQ. Carter, Conboy Law
Firm BRIENNA L. CHRISTIANO, ESQ
MEMORANDUM-DECISION AND ORDER
L. SHARPE U.S. DISTRICT JUDGE.
David Bardo and Shirley Bardo commenced this action against
the City of Little Falls, New York and its police department,
alleging violations of their Constitutional rights. (Compl.,
Dkt. No. 1, Attach. 1.) Pending is defendants' motion for
summary judgment. (Dkt. No. 21.) For the following reasons,
defendants' motion is granted.
are a married couple residing at 259 Flint Avenue, Little
Falls, New York. (Defs.' Statement of Material Facts
(SMF) ¶ 1, Dkt. No. 21, Attach. 15.) On March 20, 2014,
at around 10:30 or 11:00 A.M., plaintiffs left their home to
pick up their son, Eric, at his residence in Herkimer, New
York. (Id. ¶¶ 3-4, 8, 10.) At Eric's
request, plaintiffs drove him to the parking lot of BJ's
Wholesale Club in North Utica, New York, where he
“informed [plaintiffs] that he ‘had to see
somebody.'” (Id. ¶¶ 11-12.)
Plaintiffs remained in their car while Eric got out, and
about ten minutes later he returned. (Id.
¶¶ 13-14.) Eric stated “‘let's
go'” and then plaintiffs left and dropped him off
at his residence. (Id. ¶¶ 16-17.)
that day at around 12:04 P.M., the Oneida County 911 services
put out a “be on the lookout (‘BOLO') for a
red 2013 Chrysler 4DSD, bearing New York registration number
CVG4104.” (Id. ¶ 19.) The car, owned by
Shirley Bardo and registered to her address at 259 Flint
Avenue, was reportedly involved in a robbery at BJ's
Wholesale Club in North Utica. (Id. ¶¶ 1,
6-7, 21, 23.) The suspect reportedly held a knife to a
victim's neck and took money. (Id. ¶ 21.)
Two officers of the City of Little Falls Police Department
checked 259 Flint Avenue as soon as the BOLO came out.
(Id. ¶¶ 22, 24.) At first the car was not
there, but an officer drove past periodically and spotted it
in the driveway at about 1:59 P.M. (Id. ¶¶
other officers joined that officer at the scene.
(Id. ¶¶ 27-29.) One officer “posted
himself on the ground in front of the porch with a patrol
rifle, ” while another officer “went to a
location that allowed him to observe the rear of the
residence.” (Id. ¶ 28.) The third officer
knocked on the door, and David Bardo answered. (Id.
¶ 29.) Plaintiffs contend that David was “forcibly
and immediately handcuffed and, thereafter, forcibly placed
in a chair inside the residence.” (Pls.' SMF ¶
30, Dkt. No. 30.) Defendants allege that the officer asked
him “if his name was David Bardo and if he was at the
BJ's Wholesale Club in North Utica that morning, ”
and, when David replied yes, the officer “instructed
[him] to come outside and . . . handcuffed him as a
precaution.” (Defs.' SMF ¶ 30.) The parties also
dispute whether David gave the officers permission to enter
the residence. (Id. ¶ 31; Pls.' SMF ¶
officers entered the residence and searched the second floor.
(Defs.' SMF ¶¶ 32-34, 37.) Plaintiffs told the
officers what happened earlier that morning regarding picking
up their son, driving him to BJ's Wholesale Club, and
driving him back to his residence. (Id. ¶ 38.)
One of the officers obtained plaintiffs' son's
address and called the Herkimer Police Department, believing
that he may be the suspect sought. (Id. ¶ 39.)
The officer was advised by the Herkimer Police Department
that the victim “did not wish to prosecute, ” and
he confirmed the same with the Herkimer County 911 Center.
(Id. ¶ 40.) None of the officers knew about the
cancellation of the BOLO until that point. (Id.
¶¶ 44-45.) The handcuffs on David Bardo “were
immediately removed and all officers cleared the
residence.” (Id. ¶ 41.)
instant action was commenced in this court by removal from
New York Supreme Court on or about March 25, 2015. (Dkt. No.
1.) Plaintiff's complaint alleges that “injuries
and damages . . . were caused solely by reason of the
recklessness, negligence[, ] and carelessness of the
[d]efendants . . . in that said [d]efendants . . .
recklessly, carelessly[, ] and negligently entered
[p]laintiffs' residence and violated their constitutional
and other legal rights by entering said residence without
permission and without probable cause or reason[.]”
(Compl. ¶ 4.) Defendants thereafter filed the pending
motion for summary judgment, (Dkt. No. 21), which plaintiffs
opposed, (Dkt. No. 27).