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Scalpi v. Amorim

United States District Court, S.D. New York

March 29, 2018

MICHELE ELLEN SCALPI, Plaintiff,
v.
POLICE OFFICER TINA AMORIM, Defendant.

          Michelle Ellen Scalpi West Haven, CT Pro Se Plaintiff.

          Adam Lawrence Rodd, Esq. Alana R. Bartley, Esq. Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC New Windsor, NY Counsel for Defendant.

          OPINION & ORDER

          KENNETH M. KARAS, DISTRICT JUDGE.

         Pro se Plaintiff Michelle Ellen Scalpi (“Plaintiff”) brought this Action against Police Officer Tina Amorim (“Defendant”), alleging that Defendant subjected Plaintiff to an unreasonable search and excessive force in violation of her Fourth Amendment rights. (Am. Compl. (Dkt. No. 75).) Before the Court is Defendant's Motion for Summary Judgment. (Notice of Mot. For Summ. J. (Dkt. No. 173).) For the following reasons, the Motion is granted.

         I. Background

         A. Factual Background

         The following facts are taken from the exhibits submitted, (Exhibit List (“Def.'s Ex.”) (Dkt. No. 170)), Defendant's statement pursuant to Local Civil Rule 56.1, (Def.'s Rule 56.1 Statement (“Def.'s 56.1”) (Dkt. No. 171)), and Plaintiff's submissions, (Witness Statement (Dkt. No. 185); Summ J. Resp. (“Pl.'s Mem.”) (Dkt. No. 186); id. at Ex. (“Pl.'s Ex.”)), and are recounted “in the light most favorable to” Plaintiff, the non-movant.[1] Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks omitted). The facts as described below are not in dispute, except to the extent indicated.

         1. The March 17, 2014 Incidents

         a. Pat and Frisk Search

         On February 5, 2011, Plaintiff was arrested for speeding and driving without a license in East Fishkill, New York. (Def.'s 56.1 ¶ 13.) On April 24, 2013, after Plaintiff failed to appear at a scheduled court appearance, Judge Frederick D. Romig of the East Fishkill Town Court issued a Bench Warrant authorizing Plaintiff's arrest. (Id. ¶ 14; Def.'s Ex. F.) On March 17, 2014, Plaintiff was pulled over on the Taconic State Parkway by New York State Park Police Officer James Seresky (“Seresky”) for speeding. (Def.'s 56.1 ¶ 15; Seresky Aff. ¶ 3 (Dkt. No. 176).) Plaintiff was driving without a valid driver's license. (Def.'s 56.1 ¶ 16.) Seresky subsequently discovered that there was a warrant out for Plaintiff's arrest and informed her of this fact. (Id. ¶ 17; Seresky Aff. ¶ 4.) Therefore, “the New York State Park Police contacted the Town of East Fishkill Police Department to make arrangements to transfer the custody of . . . [P]laintiff to the Town of East Fishkill Police Department at the James Baird State Park, located in Dutchess County.” (Def.'s 56.1 ¶ 19.) Seresky handcuffed Plaintiff behind her back and placed her in his patrol vehicle before driving her to James Baird Park. (Id. ¶ 20; Seresky Aff. ¶ 5; Pl.'s Dep. 58.)

         Defendant, a Town of East Fishkill Police Officer, met Seresky and Plaintiff at James Baird Park. (Def.'s 56.1 ¶ 20.) Seresky helped Plaintiff exit his vehicle. (Id. ¶ 21.) Defendant then “guided . . . [P]laintiff over to her patrol car and advised . . . [P]laintiff that she was going to search her.” (Id. ¶ 22.) “It is standard police protocol to conduct a search of an arrestee prior to the placement of such individual in a police vehicle for purposes of a transfer. The purpose of such a search is to check for weapons or other concealed items that could pose a potential safety hazard or threat to the transporting officer or officers, and the arrestee.” (Amorim Aff. ¶ 12 (Dkt. No. 175); see also Seresky Aff. ¶ 7 (same).) Plaintiff did not object. (Def.'s 56.1 ¶ 23.) Defendant then conducted a pat-down search of Plaintiff that lasted “just several seconds.” (Id. ¶ 25.)

         Although the Parties agree that Defendant was standing behind Plaintiff during the search, (see Id. ¶ 24; Pl.'s Dep. 62), they disagree about how it was conducted. At the time of the search, Plaintiff was “wearing a hoodie, a long-sleeved shirt, a bra, pants, underwear, socks and sneakers.” (Def.'s 56.1 ¶ 18.) Defendant avers that she “plac[ed] both of [her] hands on the outside of . . . [P]laintiff's jeans to feel for the presence of concealed weapons” by “plac[ing] both of [her] hands on each of . . . [P]laintiff's legs (and on the outside of her jeans) and felt for weapons from the area of . . . [P]laintiff's upper thighs to her ankles.” (Amorim Aff. ¶ 14.) Defendant further claims that “[a]t no time did [she] reach under . . . [P]laintiff's jeans” or “touch, hit, strike or make contact with . . . [P]laintiff's genital area.” (Id.) Next, Defendant claims that she “placed [her] hands on the bottom part of . . . [P]laintiff's hoodie/sweatshirt, and shook the hoodie/sweatshirt to check for concealed items, ” of which there were none. (Id. ¶ 15.) “Following this, [Defendant] slid [her] hands across the beltline area of . . . [P]laintiff's jeans (by placing [her] hands on the outside of . . . [P]laintiff's jeans) to check for concealed items, ” of which there were none. (Id.) Next, Defendant contends, “with [her] hands placed on the outside of . . . [P]laintiff's hoodie/sweatshirt, [Defendant] slid [her] hands from the middle to the outside of the back portion of . . . [P]laintiff's bra line to feel for concealed weapons, ” of which there were none. (Id.) “Following this, [Defendant] placed the back of [her] hands on the outside of the front portion of . . . [P]laintiff's bra line to feel for concealed weapons or items, ” of which there were none. (Id.) Defendant claims that “[a]t no time did [she] reach under . . . [P]laintiff's shirt, or otherwise touch or grab . . . [P]laintiff's breasts or bra area with the front of [her] hands.” (Id.)

         Seresky avers that he “observed [Defendant] conduct a brief pat-down search of [Plaintiff].” (Seresky Aff. ¶ 7.) He claims that the pat-down search “was performed over [Plaintiff's] clothing, and involved the routine placement, by [Defendant], of her hands around and upon [Plaintiff's] legs, abdomen and torso to feel for weapons and/or concealed items.” (Id. ¶ 8.) Seresky states that “[a]t no time during [Defendant's] pat-down search of [Plaintiff] did [he] observe [Defendant] strike, hit, or touch [Plaintiff's] genital area” or grab [Plaintiff's] breasts.” (Id. ¶¶ 9-10.)[2]

         In disputing Defendant's account, Plaintiff testified:

[Defendant] had me face the vehicle. She went --- she went down my legs. She went inside my belt into my pockets. She went down my legs and then brought her hand back up and that is when she hit me forcefully in the genital area, and then she reached around my waist, she went inside my bra, but through my clothing. My clothing --- she reached underneath my hoodie and went inside my bra on both breasts.

(Pl.'s Dep. 63.) When asked to clarify what “inside the bra” meant, Plaintiff testified that her “shirt was in between [Defendant's] hand and [Plaintiff's] breast, ” and thus Defendant's hands were “over [her] shirt.” (Id. at 64-65.)[3] Plaintiff also testified that Defendant patted down her legs on the outside of Plaintiff's pants, but at some point, when Defendant “had her hands on both sides of [Plaintiff's] legs and went up, ” Plaintiff felt a touch or hit to her genital area. (Id. at 65-66; see also Witness Statement 1 (“I was hit in the genital area during Defendant[']s search.”).) When this occurred, Plaintiff “said, ‘Hey, take it easy, ' because [Plaintiff] flinched, ” but “[t]hat was the only thing [she] said.” (Pl.'s Dep. 65.)

         After the pat down search was complete, Plaintiff did not request medical attention or say she was in pain or discomfort. (Def.'s 56.1 ¶¶ 26-27.) Defendant then removed Plaintiff's existing handcuffs and applied new ones, also behind Plaintiff's back, and advised Plaintiff that she would be transported to the Town of East Fishkill Police Department (“Police Department”). (Id. ¶ 28.) Plaintiff did not complain after the new handcuffs were applied or during the drive, in Defendant's patrol car, from James Baird Park to the Police Department. (Id. ¶¶ 29-30.)

         b. Removal of Handcuffs

         Plaintiff and Defendant arrived at the Police Department around 3:30 p.m. (Id. ¶ 31.) Defendant walked Plaintiff, who was still handcuffed behind her back, into the building. (Pl.'s Dep. 70; Def.'s Ex. Q (“Entrance In Cam.”) at 3:41:11-3:41:15 pm.)[4] Plaintiff asked to use the bathroom, so Defendant removed her handcuffs. (Pl.'s Dep. 70; Def.'s 56.1 ¶ 31.) However, the manner in which Defendant removed the handcuffs is disputed. Defendant, relying on a surveillance video capturing the incident in the Police Department, (see Def.'s Ex. Q (“Squad Rm. Cam.”)), claims that the entire process lasted less than one minute, and “[a]t no time did [Defendant] apply force, or excessive force, in removing the handcuff from . . . [P]laintiff's left wrist.” (Amorim Aff. ¶¶ 20-21.)[5] Specifically, Defendant claims that:

[A]t approximately 3:41:51 p.m., [Defendant] initially removed . . . [P]laintiff's hat. Next, between 3:41:57 and 3:42:10 p.m., [Defendant] used [her] handcuff key to unlock the locking mechanism of the handcuff affixed to . . . [P]laintiff's right wrist-a process that took approximately 15 seconds. As . . . [P]laintiff's right handcuff was unlocked, [Defendant] asked . . . [P]laintiff to place her hand on the back of her head, and . . . [P]laintiff complied with same.
At approximately 3:42:19 p.m., [Defendant] extended . . . [P]laintiff's left arm to her side to remove . . . [P]laintiff's left handcuff. [Defendant] extended . . . [P]laintiff's left arm up and to her side so that [she] could more easily access and visualize the keyhole of the handcuff affixed to . . . [P]lainitff's left wrist. The handcuff was removed by [Defendant] approximately 15 seconds later, as of 3:42:28.

(Id.; see also Squad Rm. Cam. at 3:41:51-3:41:53 pm (Defendant removing Plaintiff's hat); id. at 3:41:57-3:42:11 pm (Defendant unlocking Plaintiff's right handcuff); id. at 3:42:12-3:42:15 pm (Plaintiff placing her right hand on her head); id. at 3:42:16-3:42:28 pm (Defendant extending Plaintiff's left arm up to the side and turning it to face Defendant to remove Plaintiff's left handcuff).) Defendant further claims that Plaintiff “did not, at any time, complain to [her] of any pain in her left shoulder during her stay” at the Police Department, nor did she, “at any time, ask [Defendant] or any other personnel . . . for medical assistance.” (Amorim Aff. ¶ 22.)

         Plaintiff agrees that Defendant initially removed Plaintiff's right handcuff and then “asked [Plaintiff] to put [her] hand on [her] head.” (Pl.'s Dep. 75.) However, Plaintiff testified that Defendant “took [her] left hand and twisted it and brought it up to the side.” (Id.; see also Witness Statement 2 (“My arm was twisted behind my back . . . . Defendant did twist the arm to the side and up.”).) Plaintiff screamed “you're breaking my arm, ” but Defendant “held [her] hand up in the air in an unnatural position and [Plaintiff] felt pain, ” while Defendant “told [her] to stand still and don't move.” (Pl.'s Dep. 75; see also Witness Statement 2 (“I did cry out in pain ‘you are breaking my arm.' Defendant continued to twist my arm.”).)[6] Plaintiff felt pain in her left shoulder, which she had previously injured in a motorcycle accident. (Def.'s 56.1 ¶ 7; Pl.'s Dep. 27-35, 75-76, 99.)[7] Indeed, Plaintiff is shown grimacing on the video. (See Squad Rm. Cam. at 3:42:18 pm.)

         After Plaintiff was uncuffed, at approximately 3:42:35 pm, Plaintiff used the bathroom and discovered she was bleeding. (Pl.'s Dep. 71-72; Witness Statement 2; Squad Rm. Cam at 3:42:28 pm (left handcuff off); id. at 3:42:32-3:42:34 pm (Plaintiff brings both arms, free of handcuffs, down to her side); id. at 3:42:42 pm (Plaintiff entering the bathroom while Defendant waits outside door).)[8] Plaintiff then asked Defendant for a sanitary napkin. (Pl.'s Dep. 72; Def.'s 56.1 ¶ 34; Witness Statement 2; Squad Rm. Cam. at 3:42:45-3:42:50 pm (Defendant reopening bathroom door to speak with Plaintiff and then closing it again).) Defendant said the Police Department did not have any and suggested that Plaintiff use toilet paper instead. (Pl.'s Dep. 72; Def.'s 56.1 ¶ 34; Witness Statement 2.) Plaintiff then placed toilet paper by her vaginal area before putting her underwear and pants over it. (Pl.'s Dep. 72-73.)

         After Plaintiff returned from the bathroom, Plaintiff removed her own shoes. (Squad Rm. Cam. at 3:44:07 pm (Plaintiff exiting the bathroom); Amorim Aff. ¶ 26 (citing Squad Rm. Cam. at 3:44:20-3:44:36 pm (Plaintiff going to sit on bench, removing both shoes, and handing them to Defendant)).) Defendant then handcuffed Plaintiff to the bench inside of a holding cell. (Pl.'s Dep. 73-74; Squad Rm. Cam. at 3:44:37-3:45:17 pm (Defendant bringing Plaintiff into holding cell next to bench in squad room); Def.'s Ex. Q. (“Detention Cam.”) at 3:44:38-3:45:03 pm (Defendant handcuffing Plaintiff to bench inside cell).)[9] At approximately 5:20:30 p.m., Plaintiff was removed from her holding cell, and she then put on her own belt and shoes. (Amorim Aff. ¶ 27; Squad Rm. Cam. at 5:20:30-5:21:05 pm (Plaintiff exiting cell and putting on belt and shoes); Detention Cam. at 5:20:10-5:20:30 pm (Defendant un-handcuffing Plaintiff from bench and Plaintiff exiting holding cell).) At approximately 5:31 p.m., Plaintiff was released from the Police Department. (Def.'s 56.1 ¶ 35.) A New York State Trooper picked Plaintiff up to transport her to the Town of Newburgh Justice Court, where there was another pending Bench Warrant for her arrest. (Id. ¶ 36; see also Squad Rm. Cam. at 5:26:04 pm (Trooper arriving in squad room and approaching Plaintiff).) During this transfer, Plaintiff was handcuffed behind her back again. (Pl.'s Dep. 79, 81; Squad Rm. Cam. at 5:27:03-5:27:38 pm (Trooper handcuffing Plaintiff in squad room).) Upon arrival, Plaintiff again used the bathroom and saw she was “still bleeding, ” so she “asked the trooper for a sanitary napkin.” (Pl.'s Dep. 82-83.) However, the trooper said “they didn't have any and told [Plaintiff] to reapply toilet paper.” (Id. at 83; see also Def.'s 56.1 ¶¶ 37-38.)

         After appearing in court that same day, Plaintiff was brought to the Orange County Jail by a New York State Trooper. (Pl.'s Dep. 84-86; Def.'s 56.1 ¶ 39.) Plaintiff asked several times “for a sanitary napkin because [her] genital area was starting to burn and get irritated.” (Pl.'s Dep. 87; see also Am. Comp. ¶ 102 (alleging that Plaintiff “made several requests to use the bathroom and explained [she] had toilet paper in [her] pants all day as [she] was denied sanitary needs from all police” and that she “was experiencing extreme burning”).) Plaintiff was released on bail that night. (Pl.'s Dep. 88-89.)[10]

         2. The Medical Evidence

         Plaintiff first sought medical attention the next day, when she presented to the emergency room at New Milford Hospital. (Def.'s 56.1 ¶ 41; Pl.'s Dep. 90.)[11] Plaintiff informed hospital personnel that she had used toilet paper instead of a sanitary napkin.[12] (Def.'s 56.1 ¶ 42; id. ¶ 43 (quoting Def.'s Ex. M)); Pl.'s Witness Statement 3; Pl.'s Ex. I (producing same medical record, and an additional “Emergency Center IV Med Sheet”).)[13] After examining Plaintiff and taking a culture, the doctor diagnosed her with vaginitis-an infection of the vagina-and prescribed antibiotics. (Def.'s 56.1 ¶ 42; Pl.'s Dep. 91; Witness Statement 3.) The doctor told Plaintiff that the vaginitis was caused by her use of toilet paper instead of a sanitary napkin. (Def.'s 56.1 ¶ 42; Pl.'s Dep. 91-92.) Plaintiff's vaginitis “cleared up within 48 hours.” (Def.'s 56.1 ¶ 46; see also Pl.'s Dep. 97 (testifying that the vaginal issue cleared up by March 20).) The doctor's physical exam also revealed “[n]o evidence of trauma.” (Def.'s Ex. M. at 12.) Plaintiff was not diagnosed with any other vaginal issue or injuries, (Def.'s 56.1 ¶ 45), nor was she treated again by any other medical providers for any vaginal issues, (id. ¶ 47).

         Plaintiff also informed New Milford Hospital personnel about her shoulder pain, but was advised to see her primary physician. (Pl.'s Dep. 93-94; Witness Statement 3.) The next day, on March 19, 2014, Plaintiff “went to the St. Luke's Cornwall Hospital to have her left shoulder pain evaluated.” (Def.'s 56.1 ¶ 48; see also Witness Statement 4.)[14] An x-ray was taken of Plaintiff's left shoulder. (Def.'s 56.1 ¶ 49.) The x-ray indicated:

FINDINGS:
BONES: Normal. No significant arthropathy or acute abnormality.
SOFT TISSUES: Negative. No visible soft tissue swelling.
EFFUSION: None visible.
OTHER: Negative
CONCLUSION: NO ACUTE FRACTURE OR DISLOCATION.

(Id. ¶ 49 (quoting Def.'s Ex. N at 16); see also Pl.'s Dep. 95 (testifying that the x-rays didn't show “any fractures or breaks”).) Plaintiff was diagnosed with a shoulder sprain, and told to keep her arm in a sling and to see her primary physician. (Pl.'s Dep. 96; Witness Statement 4; Pl.'s Ex. H at 2 (“ORTHO Screen” showing Plaintiff was “received with sling in place” on her left arm); id. at 4 (St Luke's Cornwall Hospital Emergency Room Note listing “[s]prain of shoulder” as diagnosis and indicating that Plaintiff was instructed to “follow up with MD” and continue with unspecified “medication use”).)[15]

         Plaintiff then went to see her primary physician, Dr. Coffey, but instead was examined by his associate. (Witness Statement 4; Pl.'s Dep. 96-97.) This doctor recommended that Plaintiff visit an orthopedic surgeon affiliated with their office, which Plaintiff did immediately that day. (Pl.'s Dep. 97; Witness Statement 4.) More x-rays were taken of Plaintiff's left shoulder; they revealed “no fractures or breaks.” (Pl.'s Dep. 99; see also Pl.'s Ex. G at 4 (“Radiology Report” category stating “NO ACUTE FRACTURE OR DISLOCATION”).) The orthopedic specialists informed Plaintiff that it was likely “a rupture of some sort” and recommended Plaintiff get an MRI and pursue physical therapy. (Pl.'s Dep. 100-01; see also Witness Statement 4; Pl.'s Ex. G at 4 (listing “Pectoralis Major Tendon Rupture-Left” and “Internal Derangement shoulder-Left” under “Assessment/Plan”).)[16] Plaintiff never got an MRI or attended physical therapy because of alleged insurance issues. (Pl.'s Dep. 100-01; Witness Statement 4.) Therefore, after March 20, 2014, Plaintiff neither sought nor received any additional treatment for her left shoulder. (Def.'s 56.1 ¶ 50.)[17] As of the date of her deposition-March 24, 2017-Plaintiff had only one physical complaint relating to the incidents on March 17, 2014: occasionally, when the weather changes, her shoulder “gets achy, ” she feels “some pressure” and “sometimes the pain runs a little bit to [her] shoulder blade.” (Pl.'s Dep. 115; see also Witness Statement 5 (stating that she “use[d] the sling on and off when [she] had pain in the shoulder for about [2-3] more months” after the incident); Def.'s Ex. O (“Weiner Report”) 3 (“At the present time, [Plaintiff] states that she has discomfort in her left shoulder with inclement weather.”).)[18]

         On April 4, 2017, Dr. Bradley Weiner, a Board Certified Orthopedic Surgeon, performed a physical examination of Plaintiff. (Weiner Aff. (Dkt. No. 177) ¶¶ 1, 5; Pl.'s Mem. 4-5; Weiner Report 3.) He also reviewed Plaintiff's medical records, including her x-rays, and the video surveillance from the Police Department. (Weiner Report 3-5; Weiner Aff. ¶ 5.) Dr. Weiner concluded that Plaintiff has a diagnosis of “[l]eft shoulder arthralgia” and stated:

The claimant has suggested that her left shoulder was injured by an arresting officer who forcefully removed her handcuffs on March 17, 2014. The video surveillance footage clearly contradicts the claims made by [Plaintiff]. It is my professional opinion, within a reasonable degree of medical certainty, that there is no evidence to support any claim for a structural injury to the left upper extremity as a consequence of the removal of her handcuffs on March 17, 2014. The claimant has a documented history of significant injury to the left shoulder dating back to 1996, for which she failed to seek out medical treatment. The claimant's current minor restrictions to range of motion documented on today's examination appear to represent her baseline level of function following her initial traumatic injury in 1996. There is no objective medical evidence whatsoever to support a claim for injury to the left shoulder based on the incident that occurred on March 17, 2014. It is my professional opinion that the claimant does not warrant any consideration for orthopaedic treatment based on the incident of record.

(Weiner Report 5; see also Weiner Aff. ¶ 9 (explaining that the physical examination revealed “minor limitations of motion of the left shoulder” but opining that “there is no objective evidence whatsoever to support a claim of injury to the left shoulder based on the removal of handcuffs”); id. ¶ 7 (opining, based upon video footage, that “[t]he removal of the handcuffs, and the raising of . . . [P]laintiff's left arm, did not result in the positioning of . . . [P]laintiff's left arm and shoulder joint in an anatomically abnormal manner that caused an objectively verifiable injury to either the . . . left arm or shoulder joint”).) He further opined that “[i]t is not uncommon for an individual to experience some short-term discomfort or pain when a moveable joint is placed in a fixed position for some extended period of time-as can occur by being handcuffed behind the back for a few hours.” (Weiner Aff. ¶ 8 n.2.)[19]

         Aside from the injury to her left shoulder and her vaginitis diagnosis, Plaintiff is not claiming any other injuries from the March 17, 2014 incidents at issue in this Action. (Def.'s 56.1. ¶ 51.)[20]

         B. Procedural History

         Plaintiff commenced the instant Action on March 26, 2014 against Orange County, Dutchess County, Dutchess County District Attorney William Grady, Dutchess County Assistant District Attorney Melissa Knapp Pasquale, the Town, Amorim, Fields, Justice Romig, Commissioner Barbara J. Fiala, Governor Andrew Cuomo, and Steven K. Patterson. (Compl. (Dkt. No. 1).) Thereafter, all named Defendants filed Motions To Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b). (Dkt. Nos. 40, 42, 47, 52.) Without rendering a decision on these motions, the Court granted Plaintiff's request for leave to amend her Complaint. (Dkt. Nos. 72, 74.) Plaintiff accordingly filed her Amended Complaint on December 31, 2014. (Am. Compl. (Dkt. No. 75).)

         Pursuant to a briefing schedule, (Dkt. No. 88), all Defendants filed renewed Motions To Dismiss on April 9 and 10, 2015, (see Dkt. Nos. 89, 91, 96, 100, 104.) Plaintiff opposed these motions, (Dkt. Nos. 107, 110-113), and Defendants filed replies, (Dkt. Nos. 115, 117, 120, 122, 124.) On February 29, 2016, the Court issued 5 Opinions & Orders granting all Defendants' Motions to Dismiss, with prejudice, except Defendant Amorim's. (Dkt. Nos. 127-131.) Specifically, the Court denied the Motion To Dismiss the excessive force and unreasonable search claims against Defendant. (Dkt. No. 129.) On March 30, 2016, Defendant filed an Answer. (Answer (Dkt. No. 135).) On April 11, 2016, and again on April 29, 2016, Plaintiff filed a Notice of Appeal from all of the Court's Opinion & Orders, (Dkt. No. 138), which the Second Circuit dismissed for lack of jurisdiction, (Dkt. No. 142).

         Pursuant to a Case Management and Scheduling Order, (Dkt. No. 149), the Parties engaged in discovery. On June 7, 2017, Defendant filed a pre-motion letter describing the grounds on which she would move for summary judgment. (Letter from Adam L. Rodd, Esq. to Court (June 7, 2017) (Dkt. No. 162).) Plaintiff filed a letter opposing Defendant's request. (Letter from Plaintiff to Court (June 14, 2017) (Dkt. No. 163).) Pursuant to a scheduling order, (Dkt. No. 165), and after fixing docket entry errors, (see Dkt. Nos. 167-69), Defendant filed a Motion for Summary Judgment and accompanying papers, (Notice of Mot. for Summ. J.; Def.'s Ex.; Def.'s 56.1; Decl. of Adam Rodd, Esq. in Supp. of Mot. for Summ. J. (Dkt. No. 174); Amorim Aff; Seresky Aff.; Weiner Aff; Mem. of Law in Supp. of Mot. for Summ. J. (“Def.'s Mem.”) (Dkt. No. 178).) After Defendant filed a letter explaining that, to resolve a discovery dispute, all Parties consented to, and Magistrate Judge Davison suggested that, Plaintiff be given an extension of time to file opposition papers, (Letter from Adam L. Rodd, Esq. to Court (Sept. 19, 2017) (Dkt. No. 183)), the Court revised the briefing schedule, (Dkt. No. 184). On November 1, 2017, ...


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