Averett v County of Broome
Annotate this CaseDecided on August 7, 2007
Supreme Court, Broome County
Tonja Averett, Plaintiff,
against
County of Broome, Broome County Sheriff's Department, Broome County Deputy Sheriff A.J. Bennett, Defendants.
2004-0697
APPEARANCES:
COUNSEL FOR PLAINTIFF:
CHARLES L. BROWNING, ESQ.
OFFICE & POST OFFICE ADDRESS:
76 GENESEE STREET
P.O. BOX 237
GREENE, NY 13778
COUNSEL FOR DEFENDANTS:
JOSEPH SLUZAR, ESQ.
BY:AARON J. MARCUS, ESQ., OF COUNSEL
OFFICE & POST OFFICE ADDRESS:
EDWIN L. CRAWFORD COUNTY OFFICE BUILDING
P.O. BOX 1766
BINGHAMTON, NY 13902-1766
Ferris D. Lebous, J.
Defendants County of Broome, Broome County Sheriff's Department, and Broome County Deputy Sheriff Alan J. Bennett move for summary judgment dismissing the complaint. Plaintiff Tonja Averett opposes the motion.[FN1] The jury trial of this matter is scheduled to commence on October 3, 2007.
Background
On April 4, 2003, plaintiff Tonja Averett lived with Wayne Cook at 14 Church Street, Chenango Forks, New York. Plaintiff co-owns said residence with Mr. Cook. At approximately 8:00 p.m. that evening, plaintiff and Mr. Cook became involved in a domestic dispute prompting Mr. Cook to call 911 for assistance. In response to said call, Deputy Bennett was dispatched to the Averett/Cook residence.
The parties have differing accounts of how events unfolded upon Deputy Bennett's arrival at the Averett/Cook residence. According to Deputy Bennett, upon his arrival at the Averett/Cook residence, he spoke to Mr. Cook, as the complainant, to ascertain what had precipitated the emergency call. Mr. Cook stated plaintiff had been drinking and was on medication and was destroying items in the house and requested that plaintiff be removed from the property. Deputy Bennett avers that he did not immediately ask plaintiff to leave the residence, but when Mr. Cook repeated his request he decided to ask plaintiff to leave the residence for the night and stay with family living nearby for a cooling down period. Deputy Bennett alleges that he attempted to explain his reasoning to plaintiff who refused to leave and became verbally abusive and combative and walked away from him into the dining room. Deputy Bennett states that he followed plaintiff into the dining room as did Mr. Cook who reiterated that he and his daughter (who was in the house as well) were scared of plaintiff. Deputy Bennett avers that "I approached the plaintiff and put out my hand to escort her, and at that point, the plaintiff turned and punched me in the jaw area. I attempted to take her to the ground to handcuff her but she started to fight harder" (Bennett Affidavit, ¶ 5). Deputy Bennett indicates he was unable to get control of plaintiff so he backed away and used pepper spray on her which he claims was "ineffectual as she continued to scream and curse while sitting in the middle of the floor" (Bennett Affidavit, ¶ 6).
Deputy Bennett avers that he asked plaintiff to get up, which she did, but then - without warning - reached out and punched him in the mouth. Deputy Bennett states he "took her to the floor again" and that during this altercation plaintiff yelled at him that "I'm going to gouge your eyes out" and sunk her finger nails into his face. Deputy Bennett admits he threw two punches at plaintiff's head, hitting her in the eye both times, ultimately breaking her hold on him and placed her in handcuffs. After plaintiff was handcuffed, Deputy Bennett avers that plaintiff continued to struggle and started to run up the stairs to the second floor of the house. Deputy Bennett states that he prevented plaintiff from running up the stairs and escorted her outside to meet additional law enforcement which had been summoned. [*2]
Plaintiff's version of events is presented via the testimony of Mr. Cook during plaintiff's criminal trial, several statements and interviews provided by Mr. Cook, as well as the verified pleadings. Mr. Cook testified during the criminal trial that plaintiff was handcuffed when he went upstairs (Def Ex B, pp 174-177), although his written statement provided after the incident states Deputy Bennett did not get plaintiff handcuffed until later (Def Ex J, p 2). Additionally, in another statement given to an investigator from the District Attorney's office, Mr. Cook admitted confusion over when plaintiff was handcuffed, but also admitted some trepidation in fully explaining in his statement on the date of the incident what had transpired due to the presence of so many law enforcement personnel (Plaintiff's Ex E).
Following this incident, plaintiff was immediately transported to Binghamton General Hospital for examination and treatment. At approximately 2:00 a.m., plaintiff was then escorted to the Town of Chenango Town Court on criminal charges of disorderly conduct, resisting arrest, assault on a police office, and obstruction of governmental administration. Plaintiff remained in custody from April 4, 2003 in the Broome County Jail hospital unit until she was released on her own recognizance on April 8, 2003. On April 7, 2003, plaintiff was seen by an intake specialist from public defender's office and ultimately by her attorney that evening.
Plaintiff served a notice of claim sworn to on July 7, 2003. Defendants served a notice of examination pursuant to General Municipal Law § 50-h scheduling a hearing for September 9, 2003. Upon consent of counsel, plaintiff's request to postpone the hearing was permitted. Defense counsel twice confirmed in writing to plaintiff's counsel that the hearing was postponed and noted his understanding that plaintiff would pursue rescheduling of the hearing.
On April 2, 2004, plaintiff filed a summons and complaint with the Broome County Clerk's Office alleging the following seventeen causes of action:
1)Intentional conduct;
2)Fourth Amendment violations (unreasonable search and seizure);
3)Fourteenth Amendment violations (equal protection);
4)First Amendment violation (right to demand deputy leave her home);
5)Sixth Amendment (denial of assistance of counsel);
6)42 USC § 1983 violation (conspiracy/filing false and inaccurate reports);
7)42 USC § 1983 violation (denial of counsel/right to take photographs);
8)42 USC § 1983 violation (unreasonable search and seizure; secure in person and home; conspiracy to trump up criminal charges against plaintiff);
9)Wanton negligence and/or reckless disregard (by deputy in scope of duties);
10)Reckless indifference and/or willful negligence (by deputy in scope of duties);
11)Assault and battery;
12)Malicious and unwarranted prosecution;
13)Use of excessive force (by deputy in scope of duties);
14)False imprisonment;
15)Negligent supervision & training;
16)Assault and battery;
[*3]
17)Punitive damages.
Defendants served a Verified Answer containing numerous affirmative defenses including, among others, failure to state a cause of action, culpable conduct, immunity, statute of limitations, good faith, jurisdictional defects, failure to comply with GML § 50-h; and naming of an improper party.
Plaintiff was acquitted of all criminal charges after a criminal trial conducted before a jury on February 17-18, 2005.
Discussion
The County Defendants lists 16 separate grounds on which they believe summary judgment is warranted. For ease of discussion, the court has divided defendants' arguments into the following areas: jurisdictional issues; pleadings; punitive damages; GML 50-h hearing; and substantive issues.
Jurisdictional issues
Defendants argue that the Broome County Office of the Sheriff, mistakenly identified as the Broome County Sheriff's Department, is an arm of the county and, as such, need not be named separately from the county itself. Defendants also assert that it is unnecessary to name Deputy Bennett separately to the extent he is sued in his official capacity. While the County Defendants' arguments are well-taken, the court finds no reason to promote form over substance. Rather, the court will hereinafter collectively refer to defendants County of Broome, the Broome County Office of the Sheriff, and Deputy Bennett, in his official capacity, as the "County Defendants".
To the extent that Deputy Bennett is named as a defendant in his individual capacity, the County Defendants argue that he was not properly served with the summons and complaint. In opposition, plaintiff has produced an affidavit of service establishing proper service of the summons and complaint on Deputy Bennett by personal delivery on April 8, 2004.
Consequently, the County Defendants' motion for summary judgment dismissing the
complaint against Broome County Sheriff's Department and Deputy Bennett is denied.
Pleadings
Next, the County Defendants contend that the complaint contains inconsistent allegations pertaining to Deputy Bennett's actions as both intentional and negligent. Plaintiff concedes that some of her claims (§1983 and Fourth Amendment claims) involve intentional actions, rather than negligent acts, but argues that pleading in the alternative is permitted. The court agrees. The CPLR permits alternative pleading (CPLR §3014), even though a party is not permitted [*4]inconsistent recovery. The court finds that the County Defendants' concerns will better be addressed at trial. Obviously, if plaintiff's proof is lacking as to negligence then the County Defendants retain the right to make the proper motion at trial. In any event, the verdict sheet ultimately submitted to the jury will be drafted in such a manner to exclude the possibility of inconsistent recovery. As such, the County Defendants' motion for summary judgment dismissing all negligence claims is denied.
Punitive damages against municipality
Plaintiff's seventeenth cause of action seeks punitive damages against the County Defendants. However, it is well-settled that "[t]here is no separate cause of action for punitive damages" since "punitive damages are but an incident of ordinary damages" (Pietras v Gol Pak Corp., 131 AD2d 239 [1987]). This is not to say, however, that plaintiff may not be entitled to punitive damages at trial, only that a separately stated cause of action is unwarranted. The County Defendants' motion for summary judgment dismissing plaintiff's seventeenth cause of action is granted.
Failure to comply with GML § 50-h examination
Defendants argue that any state law based claims should be dismissed because plaintiff failed to appear at a General Municipal Law 50-h examination or request an adjournment within the statutory ninety day period (GML § 50-h[5]). The parties agree that the County Defendants demanded an examination which was scheduled for September 9, 2003. Plaintiff requested an adjournment which was granted and confirmed by way of letter dated September 4, 2003. It appears counsel had a telephone discussion regarding scheduling which was confirmed by way of a letter from the County Attorney's office on October 1, 2003. Plaintiff filed her Summons and Complaint on April 2, 2004 without having rescheduled the examination.
Defendant argues that plaintiff had the burden of rescheduling said hearing citing Bailey v NYC Health & Hosp. Corp., 191 AD2d 606 [1993], lv denied 83 NY2d 759 [1994]). Bailey is clearly distinguishable from the case at bar. In Bailey, defendant had already agreed to two adjournment, when plaintiff's third request for an adjournment of the GML§ 50-h hearing was denied. Here, by comparison, we have one adjournment at plaintiff's request, but subsequent conversations and correspondence between counsel regarding rescheduling none of which make clear why the matter was not given a date specific during those subsequent conversations. In any event, the court finds the parties here share equal responsibility for failing to finalize the scheduling of the GML §50-h hearing. In view of the foregoing, the court finds that plaintiff's failure to comply with GML § 50-h prior to filing her action is not fatal to any of her state law based claims.
Substantive claims
Plaintiff's remaining allegations contain a myriad of constitutional law based violations,
§1983 claims, malicious prosecution, false imprisonment, use of excessive force, assault and battery, and negligence based claims. The court has reviewed the pleadings, the partial transcripts of plaintiff's deposition testimony, partial transcripts of Wayne Cook's and Deputy [*5]Bennett's testimony during plaintiff's criminal trial, Deputy Bennett's supporting affidavit, the arrest report and supplemental report, witness statements, and photographs of plaintiff's injuries.
It is well-settled that excessive force cases typically raise questions of fact regarding whether a particular use of force was reasonable which should be resolved by a jury (Mazzariello v Town of Cheektowaga, 305 AD2d 1118 [2003]; Harvey v Brandt, 254 AD2d 718 [1998]). In this court's view, plaintiff's version of events raises triable issues of fact on not only whether the force used by Deputy Bennett was objectively unreasonable, but also whether Deputy Bennett is entitled to the defense of qualified immunity (Stipo v Town of North Castle, 205 AD2d 608 [1994]). In sum, the court finds that the factual disputes, inconsistencies and credibility determinations inherent therein prevent resolution by way of this pre-trial motion of any of the substantive arguments presented at this time. That having been said, however, the court will reserve the right of the County Defendants at trial to make any motions they deem appropriate at the close of plaintiff's proof.
Conclusion
For the reasons stated, defendants' motion for summary judgment dismissing the complaint is GRANTED IN PART and DENIED IN PART in accordance with the foregoing.
The trial of this matter on these remaining issues shall commence on October 3, 2007.
The foregoing constitutes an order of the court.
It is so ordered.
Dated: August 7, 2007
Binghamton, New York
s/ Ferris D. Lebous
Hon. Ferris D. Lebous
Justice, Supreme Court
Footnotes
Footnote 1:Also known as Tonja Goins.
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