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Bardo v. City of Little Falls

United States District Court, N.D. New York

January 5, 2018

DAVID BARDO et al., Plaintiffs,
v.
CITY OF LITTLE FALLS, NEW YORK et al.,

          FOR THE PLAINTIFFS: Office of Anthony J. LaFache

          FOR THE DEFENDANTS: MICHAEL J. MURPHY, ESQ. Carter, Conboy Law Firm BRIENNA L. CHRISTIANO, ESQ

          MEMORANDUM-DECISION AND ORDER

          GARY L. SHARPE U.S. DISTRICT JUDGE.

         I. Introduction

         Plaintiffs 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.

         II. Background

         A. Facts[1]

         Plaintiffs 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.)

         Later 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. ¶¶ 25-26.)

         Two 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.)[2] The parties also dispute whether David gave the officers permission to enter the residence. (Id. ¶ 31; Pls.' SMF ¶ 31.)

         The 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.)

         B. Procedural History

         The 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).

         III. Stan ...


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