1. Memorandum of Law in Support of Motion

Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 1 of 30 PageID #: 263

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
NANCY GENOVESE, 10 CV 3470

Plaintiff,

- against -

TOWN OF SOUTHAMPTON; COUNTY OF SUFFOLK (Bianco, J.)
Southampton Town Police LIEUTENANT ROBERT
IBERGER, Suffolk County Undersheriff JOSEPH T. (Tomlinson, MJ)
CARACAPPA; Suffolk County Sheriff Lieutenant
FREDERICK LUETE; and “JOHN and/or JANE DOES”
1 through 10 (whose identities are currently unknown to
Plaintiff but who are believed to be employees of the
Suffolk County Sheriff’s Office), all of whom are sued
in their individual and official capacities,

Defendants.
----------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT PURSUANT TO RULE 56

DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendants
THE TOWN OF SOUTHAMPTON AND
Southampton Town Police LIEUTENANT
ROBERT IBERGER
50 Route 111
Smithtown, New York 11787
(631) 724-8833

Of Counsel
David H. Arntsen


TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... iii

PRELIMINARY STATEMENT ...................................................................................... 1

FACTS AND PROCEDURAL BACKGROUND ........................................................... 2

ARGUMENT

POINT I

STANDARD OF REVIEW ......................................................................................... 9

POINT II

LT. IBERGER IS ENTITLED TO QUALIFIED
IMMUNITY AND DISMISSAL OF ALL
CLAIMS AGAINST HIM ........................................................................................... 10

A. Qualified Immunity, Generally ............................................................................. 10

B. False Arrest Claims ................................................................................................ 11

i) The investigatory stop passes constitutional muster ....................................... 12

ii) Lt. Iberger is entitled to Qualified Immunity ................................................. 13

C. No excessive Use of Force Claim May Stand ....................................................... 15

D. Removal of the plaintiff’s rifle case from the car was not an
unreasonable search and seizure under the Fourth Amendment ..................... 17

POINT III

THE TOWN OF SOUTHAMPTON IS
ENTITLED TO SUMMARY JUDGMENT .............................................................. 18

POINT IV

PLAINTIFF’S 42 U.S.C. § 1986 COUNT MUST
BE DISMISSED AS A MATTER OF LAW ............................................................. 21

i


POINT V

PLAINTIFF’S NEW YORK STATE SUPPLEMENTAL
JURISDICTION CLAIMS SHOULD BE DISMISSED .......................................... 22

CONCLUSION .................................................................................................................. 23

ii


TABLE OF AUTHORITIES
Cases

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................................................................................ 9

Azor v. City of New York,
2012 WL 1117256 (E.D.N.Y. 2012)................................................................................. 15

Board of County Commissioners of Bryan County, Oklahoma v. Jill Brown,
520 U.S. 597 (1997) .......................................................................................................... 18

Board of County Commissioners v. Brown,
520 U.S. 397 (1988) .......................................................................................................... 19

Brown v. City of Oneonta,
106 F.3d 1125 (2d Cir. 1997)............................................................................................ 21

Cash v. County of Erie,
2011 WL 3625093 (2d Cir. 2011)..................................................................................... 19

Castilla v. City of New York,
2011 WL 4345934 (S.D.N.Y. 2011) ................................................................................. 19

Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .......................................................................................................... 10

Crenshaw v. City of Mt. Vernon,
372 Fed.Appx. 202 (2d Cir. 2010) .............................................................................. 11, 14

DeCarlo v. Fry,
141 F.3d 56 (2d Cir. 1998)................................................................................................ 19

Escalera v. Lunn,
361 F.3d 737 (2d Cir. 2004).............................................................................................. 11

Esmont v. City of New York,
371 F.Supp.2d 202 ............................................................................................................ 16

F.D.I.C. v. Great American Ins. Co.,
607 F.3d 288 (2d Cir. 2010)........................................................................................... 9-10

Graham v. O’Connor,
490 U.S. 386 (1989) .......................................................................................................... 15

iii


Guadagni v. New York City Transit Authority,
2009 WL 205050 (E.D.N.Y 2009).................................................................................... 22

Harlowe v. Floyd,
2011 WL 674024 (D.Conn. 2011) .................................................................................... 14

Hodge v. Village of Southampton,
___ F.Supp.2d ___, 2012 WL 174838 (E.D.N.Y. 2012) .................................................. 18

Horton v. California,
496 U.S. 128 (1990) .......................................................................................................... 18

Javid v. Scott,
913 F.Supp. 223 (S.D.N.Y. 1996) .................................................................................... 20

Maragh v. City of New York,
2012 WL 1745349 (E.D.N.Y. 2012)....................................................................... 9, 10, 11

Marilyn S. v. Independent Group Home Living Program, Inc.,
903 N.Y.S.2d 403 (2d Dep’t. 2010) .................................................................................. 16

Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986) ............................................................................................................ 9

Maxwell v. City of New York,
380 F.3d 106 (2d Cir. 2004).............................................................................................. 15

McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184 (2d Cir. 2007)................................................................................................ 9

McClellan v. Smith,
439 F.3d 137 (2d Cir. 2006).............................................................................................. 11

Mon v. City of New York,
78 N.Y.2d 309, 574 N.Y.S.2d 529 (1991) ........................................................................ 21

Monell v. Department of Social Services,
436 U.S. 658 (1978); ........................................................................................... 1, 2, 19, 20

Munafo v. Metropolitan Transportation Authority,
285 F.3d 201 (2d Cir. 2002).............................................................................................. 10

Ostroski v. Town of Southold,
443 F.Supp.2d 325 (E.D.N.Y. 2006). ..................................................................... 1, 15, 20

iv


Palmeri v. Town of Babylon,
2008 WL 3155153 (E.D.N.Y. 2008)................................................................................. 22

Pembaur v. City of Cincinnati,
475 U.S. 469 (1986) .......................................................................................................... 19

Pikulin v. Gonzalez,
2007 WL 1063353 (E.D.N.Y. 2007)................................................................................. 22

Ricci v. DeStefano,
557 U.S. 557, 129 S.Ct. 2658 (2009) .................................................................................. 9

Ritz v. Breen,
2002 WL 519095 (D.Conn. 2002) ........................................................................ 12, 13, 14

Roundtree v. City of New York,
778 F.Supp. 614 (E.D.N.Y. 1991) .................................................................................... 16

Saucier v. Katz,
533 U.S. 194 (2001) .................................................................................................... 15, 16

Spinelli v. City of New York,
579 F.3d 160 (2d Cir. 2009).......................................................................................... 9, 10

Stephenson v. Doe,
332 F.3d 68 (2d Cir. 2003)................................................................................................ 15

Sutton v. Duguid,
2007 WL 1456222 (E.D.N.Y. 2007).......................................................................... passim

Tango v. Tulevech,
61 N.Y.2d 34, 471 N.Y.S.2d 73 (1983) ............................................................................ 21

Terry v. Ohio,
392 U.S. 1 (1968) .............................................................................................................. 15

U.S. v. Muhammed,
463 F.3d 115 (2d Cir. 2006)........................................................................................ 12, 14

United Brotherhood of Carpenters v. Scott,
463 U.S. 825 (1983) .......................................................................................................... 21

United States v. Navas,
597 F.3d 492 (2d Cir. 2010).............................................................................................. 18

v


Weinstein v. Columbia University,
224 F.3d 33 (2d Cir. 2000)................................................................................................ 10

Wood v. The Town of East Hampton,
2010 WL 3924847 (E.D.N.Y. 2010)................................................................................. 20

Zieper v. Metzinger,
474 F.3d 60 (2d Cir. 2007)........................................................................................... 13-14

Other Authorities

42 U.S.C. § 1983 ..................................................................................................... 1, 14, 15, 18, 19

42 U.S.C. § 1985 ..................................................................................................................... 21, 22

42 U.S.C. § 1986 ........................................................................................................... 1, 14, 21, 22

FED.R.CIV.P. 12(b)(6) ................................................................................................................... 22

FED.R.CIV.P. 56 .......................................................................................................................... 1, 9

N.Y.S. GEN. MUN. LAW § 50-h ....................................................................................................... 3

vi


PRELIMINARY STATEMENT

Defendants, The Town of Southampton (“the Town” and/or “Southampton”) and

Southampton Town Police Lieutenant Robert Iberger (“Lt. Iberger”), bring the instant motion for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking

judgment and dismissal of the complaint of the plaintiff, NANCY GENOVESE, insofar as the

complaint sets forth claims against these defendants. Succinctly, the plaintiff has alleged a litany

of federal (42 U.S.C. §§ 1983 and 1986) and state based claims against Lt. Iberger, including

violation of the plaintiff’s constitutional rights, false arrest, false imprisonment, malicious

prosecution, assault and battery, negligence and the negligent and/or intentional affliction of

emotional distress upon the plaintiff. Additionally, the plaintiff puts forth a claim of negligent

supervision against the Town, as well as claims against the Town based upon the theories of

respondeat superior under New York Law and 42 U.S.C. § 1983.1

Plaintiff’s claims are premised upon an investigatory stop of the plaintiff initiated by Lt.

Iberger, a 30 year veteran of the Southampton Town Police Department with particular training

in counterterrorism awareness. Iberger initiated the encounter following his observation of

plaintiff taking photographs of the military installation, in contravention of posted signs

prohibiting it, located on County Road 31 in Westhampton, New York, known as Gabreski

Airport.2 The plaintiff was slowly moving and stopping repeatedly, ultimately turning into the

access road to the facility. Based upon these observations and his experience and training, Lt.

Iberger, who was unarmed, not in uniform, on vacation and in his personal vehicle at all relevant

1
Fundamentally, a municipality cannot be held liable on a respondeat superior theory. Monell v. Department of
Social Services, 436 U.S. 658, 694 (1978); Ostroski v. Town of Southold, 443 F.Supp.2d 325, 345 (E.D.N.Y. 2006).
As such, these Counts may be dismissed at the outset.
2
Gabreski Airport is within the jurisdiction of the Southampton Town Police Department (Rule 56.1 Statement, ¶
31).

1


times, approached, identified himself as a police officer and showed his badge, spoke with and

briefly detained the plaintiff while he attempted to contact the base so their officials could

investigate.

As will be demonstrated upon the appropriate factual citations and case authorities below,

each and every one of the plaintiff’s claims against Lt. Iberger and the Town must fail as a

matter of law. The claims against the Town must fail because the plaintiff cannot demonstrate

any policy, custom or practice of the Town to engage in violation of the rights of individuals

such as the plaintiff necessary to support such claims. Additionally, the negligent hiring, training

and retention claims against the Town must fail because these are discretionary functions of the

Town and the municipal defendant may not be held answerable in damages for claims involving

such discretion. Additionally, there is not a single fact in the record to demonstrate any

negligence by the Town in its supervision, hiring or discipline of Lt. Iberger. Finally, the claims

against the Town based upon theories of respondeat superior are directly prohibited by Monell,

436 U.S. at 691.

With respect to Lt. Iberger, in the first instance he would be entitled to qualified

immunity, as his conduct was clearly objectively reasonable under the totality of circumstances

analysis. It is respectfully submitted that it is clear from the facts, construed in the light most

favorable to the plaintiff, that nothing Lt. Iberger did, from the initial investigatory stop of the

plaintiff through the time of his departure from the scene, suggest any wrongdoing of a

constitutional, or any other nature.

FACTS AND PROCEDURAL BACKGROUND

Most of the salient facts upon which this court should rely in determining the instant

motion come from the testimonial evidence adduced during discovery in this case. The

2


plaintiff’s claims are set forth in her Complaint (Arntsen Declaration, Exhibit “A”). The plaintiff

was examined under oath pursuant to New York State General Municipal Law § 50-h on March

16, 2010, and was deposed in the federal litigation on August 25, 2011 (Arntsen Declaration,

Exhibits “B” and “C”, respectively). Lt. Iberger was deposed on January 24, 2012 and his

transcript is annexed to the Arntsen Declaration as Exhibit “D”. Suffolk County Deputy Sheriff

Robert Carlock was deposed on February 1, 2012, and his transcript is appended to the Arntsen

Declaration as Exhibit “E”. Also provided for the court’s reference is the plaintiff’s

Supplemental Notice of Claim against the Town (Arntsen Declaration, Exhibit “F”). The facts

have been marshaled from these exhibits and set forth in the moving defendants’ Statement

Pursuant to Rule 56.1, which has been filed in conjunction with the instant motion. The

following facts can be culled from this evidence.

On July 30, 2009, the plaintiff, Nancy Genovese, was traveling to her home from a

shooting range in Ridge, New York and, in the course of doing so, was traveling down County

Road 31 in Westhampton. (Rule 56.1 Statement, ¶¶ 1-3, Exhibit “B”, pp. 16-18). While

approaching the Gabreski Airport, the plaintiff noticed a restored helicopter that she desired to

photograph, thinking it might be a worthy addition to a planned website that she was going to

build for the purpose of demonstrating support for our troops overseas (Rule 56.1 Statement, ¶ 2,

Exhibit “B”, pp. 16-18). At the time that the plaintiff was taking these pictures in July of 2009,

there were warning signs on the fence at Gabreski Airport indicating that it was a military

facility, as well as signs warning that photographing the facility was in violation of federal law

(Exhibit “D”, p. 59, l. 22 - p. 60, l. 16; Exhibit “E”, p. 46, l. 21 - p. 47, l. 16). Either unaware of

the signs, or in knowing violation of them, the plaintiff nonetheless began snapping photographs

3


from different positions along the roadway, allegedly trying to obtain a useful one of the

helicopter in question.

At or about this time, Lt. Iberger was driving south on County Road 31, whereupon he

drove past plaintiff’s convertible vehicle parked to the north of the military entrance for the

airport in which a female subject appeared to be photographing the facility’s fence line (Rule

56.1 Statement, ¶ 41; Exhibit “D”, p. 61, l. 15-25). This observation took place at approximately

6:40 p.m. (Rule 56.1 Statement, ¶ 42; Exhibit “D”, p. 61, l. 9-16). At the time of this

observation, the convertible in which the female occupant was taking pictures had its top down;

it was daylight and clear (Rule 56.1 Statement, ¶ 43; Exhibit “D”, p. 62, l. 11-23).

Lt. Iberger drove past the vehicle and pulled over down the road with the intent of

waiting for that vehicle to eventually pass him so he could record the license plate and forward

the information to the Suffolk County Criminal Intelligence (Rule 56.1 Statement, ¶ 44; Exhibit

“D”, p. 63, l. 25 - p. 64, l. 14). However, as he observed the vehicle while waiting for it to pass

him, he noticed that the vehicle was moving slowly forward in increments followed by a stop,

which process happened continuously (Rule 56.1 Statement ¶ 45; Exhibit “D”, p. 65, l. 9-18).

It is important to again note here that Lt. Iberger, an officer with over 30 years of

experience with the Southampton Town Police, had received specific training and has been

certified by the United States Department of Homeland Security as a counterterrorism awareness

instructor (Rule 56.1 Statement, ¶¶ 29-34; Exhibit “D”, p. 7, l. 16-17). Specifically, Lt. Iberger

has training in tactics, the investigation of suspicious vehicles and persons, a search of motor

vehicles and persons, how to check potential trouble spots, preliminary investigations, the

interview of suspects and the preparation of reports of investigations (Rule 56.1 Statement, ¶ 32;

Exhibit “D”, p. 16, l. 13 - p. 17, l. 15). In fact, Lt. Iberger was questioned at his deposition as to

4


how he evaluates suspicious persons from a counterterrorism standpoint. Lt. Iberger testified

that he looks for individuals that appear to be surveilling critical and/or important facilities or

facilities of interest, particularly individuals who appear to be gathering information regarding

the particular facilities, entrances, egresses, various locations within the facility, activities within

the facility, comings and goings within the facility and/or persons who may be eliciting

information regarding operations within the facility, probing security of the facility and/or

making some type of documentation regarding the facility (Rule 56.1 Statement, ¶ 36; Exhibit

“D”, p. 28, l. 13 - p. 29, l. 18).

After the series of stops and starts and what appeared to be plaintiff’s continuous taking

of photographs, the plaintiff’s vehicle finally turned off the shoulder of County Road 31 and into

the entrance roadway for the military facility (Rule 56.1 Statement, ¶ 46; Exhibit “D”, p. 65, l. 21

- p. 66, l. 24). When he noticed the vehicle turn onto the access road, Lt. Iberger turned his

vehicle, headed north and proceeded to follow onto that entrance road and pulled up alongside

the plaintiff’s vehicle. (Rule 56.1 Statement, ¶ 47; Exhibit “D”, p. 71, l. 15-22). When Lt.

Iberger encountered the plaintiff in the entrance access area, he observed her with the camera out

as if she was taking photographs (Rule 56.1 Statement, ¶ 48; Exhibit “D”, p. 127, l. 12-17). Lt.

Iberger identified himself to the female driver as a Southampton Town police officer, showed her

his badge and asked her what she was doing, whereupon she advised that she was taking a photo

of the helicopter (Rule 56.1 Statement, ¶ 49; Exhibit “D”, p. 72, l. 2-20).

Lt. Iberger and the plaintiff agree that the plaintiff thereafter voluntarily offered Lt.

Iberger a view of the photographs she had been taking in her camera (Rule 56.1 Statement, ¶ 14).

Lt. Iberger testified that when he reviewed these photographs, he observed photographs of the

signs indicating the name of the airport, of the fence, of the barbed wire areas and security

5


features on the fence, consisting of a cable that ran along the fence (Rule 56.1 Statement, ¶ 51;

Exhibit “D”, p. 73, l. 20 - p. 74, l. 21). At this point, Lt. Iberger attempted to get the attention of

the guard in the security booth, which attempt was unsuccessful. He also tried to telephone

Gabreski Airport from his cell phone, which attempt was also unsuccessful, which led him to call

his office at the Southampton Town Police (Rule 56.1 Statement, ¶¶ 52-53; Exhibit “D”, p. 77).

When he reached his dispatcher, he requested that she contact Gabreski security and advise them

that he had an individual outside whom he believed was taking surveillance photos of the base,

and he told her to request that somebody from security come out (Rule 56.1 Statement ¶ 53;

Exhibit “D”, p. 80, l. 5-12). A couple of minutes after the phone call, security guards from

Gabreski came out (Rule 56.1 Statement, ¶ 54; Exhibit “D”, p. 80, l. 19-25).

Thereafter, one of the two security guards who came to the scene approached Lt. Iberger

and asked him if he was aware that there was a gun case in the front seat of the convertible (Rule

56.1 Statement, ¶ 55; Exhibit “C”, p. 83, l. 4-18). Lt. Iberger then accompanied the officer from

Gabreski Airport to the vehicle and noticed that the gun case was leaning against the passenger

door on the floor of the open-topped convertible (Rule 56.1 Statement, ¶ 57; Exhibit “D”, p. 85,

l. 4-6). At this point, Lt. Iberger asked the plaintiff what was in the case and she told him it was

a shotgun, subsequently changing this information to advise that it was a rifle. At this point, Lt.

Iberger advised the plaintiff he was going to secure the gun case for officer safety (Rule 56.1

Statement, ¶ 60; Exhibit “D”, p. 85, l. 16-25).

Despite the fact that Lt. Iberger twice told the plaintiff while he was securing the gun

case to stand back (Rule 56.1 Statement, ¶ 60; Exhibit “D”, p. 101, l. 4-6), the plaintiff tried to

stop Lt. Iberger from removing the case from the car. As he was pulling the rifle case off the

floor and opening the door, his elbow and shoulder came into contact with the right side of the

6


plaintiff’s body (Rule 56.1 Statement, ¶¶ 22-23; Exhibit “C”, p. 131). As a result of this contact,

the plaintiff claims she lost her balance, though she did not fall down (Rule 56.1 Statement, ¶ 23;

Exhibit “C”, p. 131).3 This was the only physical contact between Lt. Iberger and the plaintiff

during the event in question (Exhibit “B”, p. 206, l. 13 - p. 207, l. 14).

Lt. Iberger then took the gun case a short distance from the vehicle, opened it and

observed what appeared to be the stock of an M4-type AR-15 assault rifle (Rule 56.1 Statement,

¶ 61; Exhibit “D”, p. 87, l. 18 - p. 88, l. 4). After making the determination as to the type of gun

that was in the case, the lieutenant advised the plaintiff that it would be secured for officer safety

and handed it to one of the Gabreski security officers, who in turn placed it in the back of a pick-

up truck that did not belong to Lt. Iberger (Rule 56.1 Statement, ¶ 62; Exhibit “D”, p. 90, l. 8-

16).

After the gun was secured in the military vehicle, Lt. Iberger observed that two Suffolk

County Sheriff’s Deputies had arrived on the scene (Rule 56.1 Statement, ¶ 64; Exhibit “D”, p.

92, l. 19-23). The lieutenant did not contact the Sheriff’s office and does not know how it came

about that the Suffolk County Sheriff’s office came to arrive at the scene (Rule 56.1 Statement, ¶

66; Exhibit “D”, p. 94, l. 25 - p. 95, l. 17). Lt. Iberger advised the Sheriffs of his observations

and what occurred to that point (Rule 56.1 Statement, ¶ 68; Exhibit “D”, p. 97, l. 19-23), gave

the Sheriffs his business card and left the scene within moments after their arrival (Rule 56.1

Statement, ¶¶ 70-71; Exhibit “D”, p. 98, l. 10 p. 99, l. 14). In total, Lt. Iberger estimated that he

had been at the scene for approximately 30-40 minutes, since he had arrived at approximately

6:40 p.m. and left at 7:16 p.m. (Rule 56.1 Statement, ¶ 67; Exhibit “D”, p. 96, l. 12-25).

3
While the plaintiff claims that she sustained bruises as part of her damages in this case, she believed that they all
occurred while she was being processed inside the jail by the Suffolk County Sheriffs, and not at the scene during
her interactions with Lt. Iberger (Rule 56.1 Statement, ¶ 24; Exhibit “C”, p. 13, l. 10-22).

7


Lt. Iberger further testified that he had never met or seen the plaintiff before July 30,

2009. (Rule 56.1 Statement, ¶ 73; Exhibit “D”, p. 73).4 He never had the intention to, and did

not arrest the plaintiff (Rule 56.1 Statement, ¶ 75; Exhibit “D”, p. 105, l. 6-9); in fact, it was

Suffolk County Deputy Sheriff Carlock who arrested the plaintiff (Rule 56.1 Statement, ¶ 20;

Exhibit “E”, p. 27, l. 2-7). Moreover, neither Lt. Iberger nor any other Southampton employee

searched the plaintiff’s trunk, handcuffed her, nor participated in any of the follow-up

investigation or events which occurred after her arrest and removal from the scene by the Suffolk

County Deputy Sheriffs. In fact, the plaintiff herself testified that she was not assaulted or

battered by the Southampton Town Police (Rule 56.1 Statement, ¶ 21; Exhibit “B”, p. 226-227).

Despite the plaintiff’s contentions that there appeared to be a number of officers of

various local, state and federal law enforcement at the scene, she has no evidence to back up this

claim. In fact, the only member of the Southampton Town Police who ever dealt with the

plaintiff was Lt. Iberger.

4
Though it is significant for the Court to be made aware of the fact that the plaintiff had been at the military facility
inquiring about the contents of containers behind the secured fence on a prior occasion (Rule 56.1 Statement, ¶ 15;
Exhibit “B”, pp. 43-44), Lt. Iberger was not aware of that fact prior to his encounter with her on July 30, 2009 (Rule
56.1 Statement, ¶ 74; Exhibit “D”, p. 101, l. 10-14).

8


ARGUMENT

POINT I

STANDARD OF REVIEW

Summary judgment is appropriate only if there is no genuine issue as to any material fact

and if the moving party is entitled to judgment as a matter of law. See, FED.R.CIV.P. 56(c);

Sutton v. Duguid, 2007 WL 1456222 *3 (E.D.N.Y. 2007); Maragh v. City of New York, 2012

WL 1745349 *3 (E.D.N.Y. 2012). In ruling on a summary judgment motion, the district court

must first “determine whether there is a genuine dispute as to a material fact, raising an issue for

trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal

quotations and citations omitted); see Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677

(2009) (holding that “[o]n a motion for summary judgment, facts must be viewed in the light

most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”

(Emphasis added) (internal quotations and citation omitted).

“A fact is material if it ‘might affect the outcome of the suit under governing law.’”

Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). “Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci,

129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574 (1986)).

“The moving party bears the initial burden of demonstrating the absence of a genuine

issue of material fact,” F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)

(quotations and citation omitted), after which the burden shifts to the nonmoving party to “come

9


forward with specific evidence demonstrating the existence of a genuine dispute of material

fact.” Id.; see also Spinelli¸ 579 F.3d at 166.

The nonmoving party can only defeat summary judgment “by coming forward with

evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to

establish the existence of” a factual question that must be resolved at trial. Spinelli¸ 579 F.3d at

166 (internal quotations and citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Unsupported allegations do not create a material issue of fact, Weinstock v.

Columbia University, 224 F.3d 33, 41 (2d Cir. 2000); “the opposing party must do more than

show there is some metaphysical doubt as to the material facts.” Sutton, at *3 (internal citations

omitted).

POINT II

LT. IBERGER IS ENTITLED TO QUALIFIED
IMMUNITY AND DISMISSAL OF ALL
CLAIMS AGAINST HIM.

A) Qualified Immunity, Generally

The qualified immunity doctrine protects government officials from suits seeking to

impose personal liability for money damages based on unsettled rights or on conduct that was

not objectively unreasonable, and reduces the general costs of subjecting officials to the risks of

trial--a distraction of officials from their governmental duties, inhibition of discretionary action,

and deterrence of able people from public service. Maragh, at *3, (internal citations omitted). A

government official sued in an individual capacity is entitled to qualified immunity if the

challenged actions were objectively legally reasonable in light of the legal rules that were

established at the time they were taken. Maragh, at *4, citing Munafo v. Metropolitan

Transportation Authority, 285 F.3d 201, 210 (2d Cir. 2002).

10


Qualified immunity is said to be justified in part by the risk that the fear of personal

monetary liability and harassing litigation will unduly inhibit officials in the discharge of their

duties. McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (internal citation omitted).

Qualified immunity is thus not merely a defense, but an entitlement not to stand trial or face the

other burdens of litigation. Sutton, at *5 (internal citations omitted).

B) False Arrest Claims

Though Lt. Iberger did not arrest the plaintiff in this case, the standard for affording

qualified immunity to police officers who make an investigatory stop is the same as that which

applies to a false arrest claim. Sutton, at *6.

The Court of Appeals for the Second Circuit has concluded that an arresting police

officer ultimately found not to have probable cause for a challenged arrest is still entitled to

qualified immunity from a suit for damages if he can establish that there was arguable probable

cause to arrest. See, Crenshaw v. City of Mt. Vernon, 372 Fed.Appx. 202, 205 (2d Cir. 2010).

Arguable probable cause exists if either (a) it was objectively reasonable for the officer to

believe that probable cause existed, or (b) officers of reasonable competence could disagree on

whether the probable cause test was met. Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)

(the analytically distinct test for qualified immunity is more favorable to . . . officers than the

one for probable cause; arguable probable cause will suffice to confer qualified immunity for the

arrest.) Maragh, at *4 citing Escalera, 361 F.3d at 743; Sutton, at *6.

Of course, in this case, Lt. Iberger did not arrest the plaintiff. Rather, based upon his

experience of 30 years on the police force and his status as a certified counterterrorism

awareness instructor, he noticed an illegal activity, which activity was prohibited by marked

signs in the immediate vicinity of where the activity was taking place, and he thus made an

11


investigatory stop which lasted “30-40 minutes” (Exhibit “D”, p. 96, l. 12-25). Lt. Iberger’s

actions, which are not in dispute, consisted of (a) an observation of the plaintiff’s activity, i.e.,

her illegal photographing of the military base, (b) his investigatory stop when she turned her

vehicle into the access roadway to the military base, during which he identified himself as a

police officer and showed his badge, (c) his viewing the photographs, with plaintiff’s consent,

which depicted the signs indicating the name of the airport, the security fence, the barbed wire

areas and security features on the fence, (d) his efforts to communicate with the base to have

them investigate the matter further, (e) his removal of the rifle case from the vehicle and

examination of the weapon therein, and (f) his discussion of the events which transpired prior to

their arrival with the Deputy Sheriffs. None of these actions can be deemed “objectively

unreasonable”.5

i) The investigatory stop passes constitutional muster

Because the balance between the public interest and the individual’s right to personal

security tilts in favor of a standard less than probable cause in cases involving brief investigatory

stops, the Fourth Amendment is satisfied if the officer’s action is supported by a reasonable

suspicion to believe that criminal activity may be afoot. Ritz v. Breen, 2002 WL 519095 *3

(D.Conn. 2002); see also, Sutton at *4. The court must assess the totality of the circumstances

supporting the stop and determine whether the officer’s suspicion of wrongdoing has an

objective and particularized basis. U.S. v. Muhammed, 463 F.3d 115, 121 (2d Cir. 2006); Sutton

at *4. This process allows officers to draw on their own experience and specialized training to

make inferences from and deductions about the cumulative information available to them that

5
While the plaintiff may in fact have been lawfully coming from a shooting range, and further truthfully attempting
to obtain a photograph of the helicopter, in light of the illegality of this activity, Lt. Iberger’s investigatory stop was
not only reasonable, but justified. See, e.g., Sutton at *7, “suspicious circumstances may have innocent
explanations; but the availability of an innocent explanation does not create an issue of fact as to the reasonableness
of the suspicion”.

12


might well elude an untrained person. Ritz, at *4 (internal citation omitted). In this case, the

court must assess whether Lt. Iberger had a particularized and objective basis for suspecting

legal wrongdoing. Ritz, at *4.

ii) Lt. Iberger is entitled to Qualified Immunity

Lt. Iberger’s testimony with regard to the totality of the circumstances clearly supports

his decision to briefly detain plaintiff for investigatory purposes herein. He had observed the

plaintiff taking photographs in an area where such photographs were prohibited by posted signs.

Relying on his experience and specialized training in counterterrorism, Lt. Iberger positioned

himself such as to observe the vehicle if it passed by for the sole purpose, initially, of getting the

license plate and passing it on to the appropriate Suffolk County authorities (Exhibit “C”, p. 63,

l. 25 - p. 64, l. 14). When he noticed the vehicle approaching the entranceway to the military

facility after several continuous starts and stops, he decided to perform further investigation with

the driver of the vehicle, whereupon he properly identified himself as a police officer and was

voluntarily shown copies of the photographs that the plaintiff had been taking, which depicted

various aspects of the secured facility.

This court, in Sutton v. Duguid, at *7 held that the defendants had reasonable suspicion to

stop the plaintiff given the totality of circumstances surrounding the investigatory stop therein.

Moreover, this court held that, “even assuming arguendo that defendants lacked reasonable

suspicion to stop plaintiff, the court finds that defendants are entitled to qualified immunity on

plaintiff’s Fourth Amendment claim based on the initial stop because defendants, at a minimum,

had arguable reasonable suspicion to stop plaintiff because it was objectively reasonable for the

officers to believe reasonable suspicion existed to stop the plaintiff”, citing Zieper v. Metzinger,

474 F.3d 60, 71 (2d Cir. 2007) (“the qualified immunity standard gives ample room for mistake

13


in judgments by protecting all but the plainly incompetent or those who knowingly violate the

law” (internal citation omitted)).

In Crenshaw, the second Circuit afforded qualified immunity to an officer who made an

investigatory stop and detention while the existence of a suspected warrant was confirmed. 372

Fed.Appx. at 206-207. In Harlowe v. Floyd, 2011 WL 674024 *10 (D.Conn. 2011), the court

held that no reasonable jury could find that a 30 minute traffic stop was unreasonable under the

circumstances, including a suspicion of DWI.

This court should likewise find, in light of the totality of the circumstances presented to

Lt. Iberger, viewed from his perspective and with an allowance for him to draw on his own

experience and specialized training to make inferences from and deductions about the cumulative

information available to him, that Lt. Iberger’s suspicion of wrongdoing had an objective and

particularized basis. Muhammed, 463 F.3d at 121. Therefore, under the circumstances

presented, Lt. Iberger’s actions in briefly detaining the plaintiff while he alerted the military base

authorities, did not violate any clearly established right of the plaintiff, nor was it otherwise

violative of the Constitution. He is, therefore, entitled to qualified immunity. (See, Sutton,

supra; Ritz v. Breen, 2002 WL 519095 at *5.6

6
Review of the plaintiff’s complaint (Exhibit “A”) reflects that the plaintiff also makes § 1983 based constitutional
claims alleging that Lt. Iberger deprived her of her “freedom to engage in protected speech, association and
expressive conduct, freedom from arrest without probable cause; freedom from the lodging of false charges against
her by law enforcement officers; freedom from malicious prosecution by law enforcement officers . . . freedom from
the denial of equal protection, privileges and immunities under the laws; and freedom from the deliberate
indifference to plaintiff’s serious medical condition” (Exhibit “E”, ¶145A, D, F, G, I, and J). However, as the court
will glean from review of the complaint, there is no factual basis alleged therein, and certainly no testimonial or
other evidence to support any claim that Lt. Iberger was involved in any action that resulted in a violation of
plaintiff’s First Amendment rights, her right to be free from arrest without probable cause, the lodging of false
charges, malicious prosecution, equal protection or deliberate indifference to the plaintiff’s serious medical
condition. Lt. Iberger did not arrest, lodge charges nor institute any prosecution of the plaintiff. Therefore, not only
would Lt. Iberger be entitled to qualified immunity on the basis of his limited involvement at the scene of the
occurrence, but there is utterly no factual basis to sustain these claims against him in his individual capacity and
therefore the plaintiff’s First Count and Fifth Count (pursuant to 42 U.S.C. § 1986) must be dismissed at the outset.

14


C) No Excessive Use of Force Claim May Stand

Paragraph 145 B of the Complaint contains a perfunctory § 1983 Fourth Amendment

claim that Lt. Iberger used excessive force during the investigatory stop (Exhibit “A”). With

regard to the issue of the physical contact between the plaintiff and Lt. Iberger, it is clear from

the facts, even in a light most favorable to the plaintiff, that Lt. Iberger is entitled to qualified

immunity and, even if he weren’t, the “force” used was not impermissible under the

circumstances.

It is well established that the use of force is only contrary to the Fourth Amendment if it

is excessive under objective standards of reasonableness. Stephenson v. Doe, 332 F.3d 68, 77

(2d Cir. 2003), citing Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Sutton, at *11; Ostroski,

443 F.Supp.2d at 341. The Supreme Court has long recognized that the right to make an arrest

or investigatory stop necessarily carries with it the right to use some degree of physical coercion

to effect it. Graham v. O’Connor, 490 U.S. 386, 396 (1989). Indeed, not every push or shove is

unconstitutionally excessive. See, Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.

2004); Ostroski, 443 F.Supp.2d at 341-342. Amongst the factors to be considered is whether the

suspect poses an immediate threat to the safety of the officers or others. Graham, 490 U.S. at

396. Reasonableness in this context must be assessed from the perspective of a reasonable

officer at the scene, rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396,

citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968).

In Azor v. City of New York, 2012 WL 1117256 *4 (E.D.N.Y. 2012), the Court found

that a “rough grab” search of plaintiff’s pockets, and his being “pushed” by officers on to a rear

door of the police vehicle were “minimal and reasonable” uses of force incidental to search the

plaintiff to make sure he was not armed. In the case at bar, the only contact alleged by plaintiff

15


was clearly incidental to the removal of the rifle case from the vehicle and must likewise be

considered “minimal and reasonable”. See also, Esmont v. City of New York, 371 F.Supp.2d

202, 213-215 (summary judgment granted where officer caused plaintiff to bump his head when

she was placed in the patrol car, left in the hot car for a period of minutes and had handcuffs

applied too tightly). “To conclude that a push that does not cause the slightest physical injury...is

an actionable use of excessive force would be to hold that any physical contact by an arresting

officer is actionable...” Roundtree v. City of New York, 778 F.Supp. 614, 622 (E.D.N.Y. 1991).

Clearly, the incidental contact between plaintiff and Lt. Iberger herein did not offend in the

constitutional sense.

Moreover, even officers who are found to have used excessive force may be entitled

through the qualified immunity doctrine to an extra layer of protection from the sometimes hazy

border between excessive and acceptable force. Saucier, 533 U.S. at 206. The relevant inquiry

is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation

he confronted. Saucier, 533 U.S. at 202.

In this case, under no construction of the facts could Lt. Iberger’s actions in attempting to

secure the rifle case from the vehicle and separate himself from the plaintiff who was trying to

prevent him from doing so be deemed to be unreasonable. Lt. Iberger testified that he twice told

the plaintiff to stand back as he was securing the gun case for officer safety (Exhibit “D”, p. 101,

l. 4-6). The plaintiff testified that Lt. Iberger only contacted her while he was pulling the rifle

case up off the car floor and opening the door, at which time his elbow and shoulder came into

contact with the right side of the plaintiff’s body (Exhibit “B”, p. 131).7 She testified that she did

not fall down, though she lost her balance (Exhibit “B”, p. 131). The plaintiff further testified

7
Clearly, the plaintiff could not have, and did not, apprehend imminent physical (yet unintended and incidental)
contact, thus defeating any common law assault and battery claims (Exhibit “A”, Count 10). See, Marilyn S. v.
Independent Group Home Living Program, Inc., 903 N.Y.S.2d 403, 406 (2d Dep’t. 2010).

16


that the bruising to her body that she alleges as part of her damages claim in this case occurred

while she was being processed inside the jail by the Suffolk County Sheriffs, and did not involve

any of the contact with Lt. Iberger (Exhibit “B”, p. 13, l. 10-22).

D) Removal of the plaintiff’s rifle case from the car was not an
unreasonable search and seizure under the Fourth Amendment

In paragraph 145 C of her Complaint, plaintiff alleges that Lt. Iberger violated her right

to be free from an unreasonable search and seizure of property under the Fourth Amendment

(Exhibit “A”). Under the circumstances to be adduced from the record before the Court, the

retrieval of the assault rifle from the plaintiff’s open-topped vehicle did not violate her Fourth

Amendment rights.

The plaintiff admitted that she was carrying the semiautomatic assault rifle kept in a case,

which was in plain view from the outside of the car, which was a convertible with its top down

(Exhibit “B”, pp. 56-57; p. 202, l. 19 - p. 203, l. 5). In fact, the rifle case clearly said

“Bushmaster” on the outside (Exhibit “B”, p. 202, l. 19 - p. 203, l. 5). The rifle case was noticed

first by one of the Gabreski Airport security officers, who inquired as to what the case was and

whether Lt. Iberger was aware of it (Exhibit “D”, p. 83, l. 4-18). After this discussion with the

Gabreski security officer, Lt. Iberger observed the gun case leaning against the passenger door

on the floor of the open-topped convertible (Exhibit “D”, p. 85, l. 4-6). Lt. Iberger then inquired

of the plaintiff as to the nature of the item in the case, whereupon he was told that there was a

shotgun therein; however, she changed this to note that it was a rifle, but also advised that she

didn’t know what kind of rifle it was at which point Lt. Iberger advised the plaintiff that he

would secure the gun case for officer safety (Exhibit “D”, p. 85, l. 16-25).

It is, therefore, not in serious dispute that the rifle case was in plain view, which allowed

Lt. Iberger to “search” the vehicle, even though the “search” in question only involved the

17


removal of the item which was in plain view and nothing further.8 See, e.g. Hodge v. Village of

Southampton, ___ F.Supp.2d ___, 2012 WL 174838 at *12 (E.D.N.Y. 2012). This “search”, to

the extent it can be considered one, would clearly be valid under the automobile exception to the

warrant requirement, which allows a warrantless search of a readily mobile vehicle where there

is probable cause to believe that the vehicle contains contraband. Hodge, at *12, citing United

States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010). As the Supreme Court noted in Horton v.

California, 496 U.S. 128, 133 (1990), “if an article is already in plain view, neither its

observation nor its seizure would involve any invasion of privacy”. The Horton Court further

held that “an object that comes into view during a search incident to arrest that is appropriately

limited in scope under existing law may be seized without a warrant”. 496 U.S. at 135. As has

already been established herein, Lt. Iberger’s investigatory stop passes all constitutional

guidelines and, therefore removal of the gun case from the vehicle is not violative of the Fourth

Amendment.

POINT III

THE TOWN OF SOUTHAMPTON IS
ENTITLED TO SUMMARY JUDGMENT.

In the plaintiff’s complaint, three of the fourteen counts seek to impose liability against

the Town of Southampton. The plaintiff’s Second Count, entitled “Alternate Liability”, and

purportedly premised upon 42 U.S.C. § 1983, acknowledges that “respondeat superior” is not

now a basis for the Town’s liability under existing law, that there exists a good faith argument

for the modification of that rule based upon Justice Breyer’s dissenting opinion in the Board of

County Commissioners of Bryan County, Oklahoma v. Jill Brown, 520 U.S. 597 (1997) (Exhibit

8
It is to be noted that a second search was undertaken of the plaintiff’s vehicle after the vehicle was impounded by
the Suffolk County Sheriff’s Department. Neither Lt. Iberger nor any other member of the Southampton Town
Police Department took part in nor was even aware of this second search.

18


“D”, ¶ 149). In addition to the Second Count, the Third Count is brought against the Town (as

well as the County) on a “Monell” claim for failure to train, supervise and discipline Lt. Iberger.

Finally, plaintiff’s Fourteenth Count alleges that the Town of Southampton is liable for Iberger’s

actions under the common law doctrine of respondeat superior (Exhibit “D”, ¶ 198).

To sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff

must show (1) the existence of an officially adopted policy or custom and (2) a causal connection

between the custom or policy and the deprivation of a constitutional right. Monell v. Department

of Social Services, 436 U.S. 658, 694 (1978). A plaintiff may demonstrate the existence of a

policy or custom either by providing evidence of a formal policy adopted by the municipality,

Monell, 436 U.S. at 690, or based upon a single unconstitutional act or decision when that act is

taken by an authorized decision maker, thereby sufficient to be considered a policy and thus

subject the municipality to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-484

(1986). Additionally, a policy may be established by showing that the acts of the municipal

agent or a part of a widespread practice that, although not expressly authorized, constitutes a

custom or usage of which a supervising policymaker must have been aware. Board of County

Commissioners v. Brown, 520 U.S. 397, 403-404 (1988); Monell, 436 U.S. at 690-691. Finally,

where a municipality’s failure to provide adequate training or supervision of its agents rises to

the level of deliberate indifference, § 1983 liability may lie against the municipality. Brown, 520

U.S. at 407; Cash v. County of Erie, 2011 WL 3625093 at *7 (2d Cir. 2011). A single incident

alleged in a complaint, especially if it involved only actors below the policymaking level, does

not suffice to show a municipal policy. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); Castilla

v. City of New York, 2011 WL 4345934 at *3 (S.D.N.Y. 2011).9

9
Moreover, punitive damages cannot be awarded against a municipality as a matter of public policy.

19


It is respectfully submitted to the court that none of the avenues of potential Monell

liability available to civil rights plaintiffs can be utilized successfully by the plaintiff in this

action. There is absolutely no evidence of a formal policy officially adopted by the municipality

reflecting ratification of allegedly improper investigatory stops. Lt. Iberger’s actions in

questioning and temporarily detaining the plaintiff were, as demonstrated, clearly reasonable

under the circumstances he encountered. Moreover, Lt. Iberger is not a decision maker and

therefore his singular act on the date in question cannot subject the Town of Southampton to

liability. See, e.g. Wood v. The Town of East Hampton, 2010 WL 3924847, *25 (E.D.N.Y.

2010). Even if Lt. Iberger were to be considered a policymaker, he must also be the policymaker

responsible for establishing final government policy respecting the particular activity in question

before the municipality can be held liable. In this case, as was the situation before the court in

Wood, the plaintiff’s complaint does not allege that Lt. Iberger had final decision making policy,

and the record would not bear out such a claim even if it did.

Finally, the federal claims against the municipality that are exclusively, and

impermissibly, based upon theories of respondeat superior under federal and state law must be

dismissed as a matter of law. See, Monell, supra; Ostroski, 443 F.Supp.2d at 345. Likewise,

plaintiff’s common law tort claim against the Town (Thirteenth Count) based upon a theory of

respondeat superior is not permitted, as allowing such claims would undermine the Monell

requirement that the plaintiffs prove direct causation between the acts of the Town and the

alleged constitutional violation. Plaintiffs may not, therefore, invoke respondeat superior to

circumvent the strict requirements of establishing municipal liability for allegedly

unconstitutional acts by police officers. See, Javid v. Scott, 913 F.Supp. 223 (S.D.N.Y. 1996).

20


Similarly, with respect to the plaintiff’s claims premised upon negligent hiring, training

and retention, the Town is entitled to governmental immunity in the exercise of its discretion in

investigating and evaluating the qualifications of its officers. Mon v. City of New York, 78

N.Y.2d 309, 574 N.Y.S.2d 529 (1991). The hiring, training, discipline and retention of Town of

Southampton Police Department employees are discretionary functions and, thus the Town is not

answerable on damages for any alleged injurious consequences of that action. Tango v.

Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 76 (1983). Moreover, the record before the court

is utterly devoid of any evidence to support the negligent hiring, training, discipline and retention

claims set forth in the complaint.

POINT IV

PLAINTIFF’S 42 U.S.C. § 1986 COUNT MUST
BE DISMISSED AS A MATTER OF LAW.

The Fifth Count of the plaintiff’s complaint alleges unspecified constitutional violations

and liability pursuant to 42 U.S.C. § 1986 (Exhibit “A”, ¶¶ 163-166).

In order to establish a violation of § 1986, a plaintiff must first establish a violation of §

1985 which the § 1986 defendant neglected to prevent. Brown v. City of Oneonta, 106 F.3d

1125, 1133 (2d Cir. 1997). To make out a violation of 42 U.S.C. § 1985(3)10, the plaintiff must

allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly

or indirectly, any person or class of persons of the equal protection of the laws, or of equal

privileges and immunities under the law; and (3) an act in furtherance of the conspiracy; (4)

whereby a person is either injured in his person or property or deprived of any right or privilege

of a citizen of the United States. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828-

29 (1983). With respect to the second element, a plaintiff must show that the conspiracy was

10
The plaintiff’s § 1986 claim is vague and inartfully worded, but seems to invoke subdivision 3 of § 1985 which
directs its attention to the deprivation of rights or privileges of persons.

21


motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus;

thus, in order to maintain a claim for conspiracy under § 1985(3), plaintiffs must allege a

deprivation of rights on account of their membership in a protected class. See, Pikulin v.

Gonzalez, 2007 WL 1063353 at *2 (E.D.N.Y. 2007).

In this action, plaintiff has not alleged nor set forth any facts which would support a §

1985(3) class-based conspiracy claim, and as such, there is no basis herein for the assertion of a

claim under § 1986. See Pikulin, at *3. See also, Guadagni v. New York City Transit Authority,

2009 WL 205050 *4-*5 (E.D.N.Y 2009).

POINT V

PLAINTIFF’S NEW YORK STATE SUPPLEMENTAL
JURISDICTION CLAIMS SHOULD BE DISMISSED.

This court should, in its discretion, decline to exercise supplemental jurisdiction over the

plaintiff’s state law claims following its grant of summary judgment on the federal claims raised

by the plaintiff. See, e.g. Palmeri v. Town of Babylon, 2008 WL 3155153 *19 (E.D.N.Y. 2008).

As noted by the court in Palmeri, “in the interest of comity, the Second Circuit instructs that,

absent exceptional circumstances, where federal claims can be disposed of pursuant to Rule

12(b)(6) or on summary judgment grounds, courts should abstain from exercising pendant

jurisdiction” (internal citations omitted). As such, Counts Six through Fourteen, all of which are

premised upon New York State common law theories of liability and/or New York State

Constitutional claims and properly before this court only upon its exercise of supplemental

jurisdiction should be dismissed.

22


CONCLUSION

It is thus respectfully requested that the court, for the reasons articulated herein and upon

all papers offered in support of defendants’ motion for summary judgment, grant the defendants

summary judgment, along with such other and further relief as to the court seems just and proper.

Dated: Smithtown, New York
May 25, 2012

_____________/S/____________________
DAVID H. ARNTSEN

23

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1. Memorandum of Law in Support of Motion