Stone v. Port Auth. of N.Y. & N.J.

OTIS STONE, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, POLICE CHIEF JOHN RYAN,in his individual and official capacity, OFFICER SCOTT SEAMON,in his individual and official capacity, OFFICER JOHN TUCCI, in his individualand official capacity, OFFICER JOHN CURNYN, in his individual and official capacity, Defendants.

11-CV-3932 (SMG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: July 8, 2014

MEMORANDUM &ORDER

GOLD, STEVEN M., U.S.M.J.:

INTRODUCTION

Plaintiff Otis Stone owned and operated a restaurant at John F. Kennedy International Airport ("JFK") called Chef's Orchid. Plaintiff leased the restaurant's location from Japan Airlines. Chef's Orchid did not have a permanent liquor license. On November 8, 2010, a fire ignited in a mechanical room adjacent to the restaurant. When Port Authority personnel responded to the scene, they found boxes of liquor being stored illegally. They then searched the restaurant and performed a fire inspection, through which they identified a number of Fire Code violations. Mr. Stone was told not to leave. He was eventually escorted to the police station, but not handcuffed, and issued three summonses. His restaurant was closed until the code violations were remedied. The summonses resulted in Adjournments in Contemplation of Dismissal and a civil penalty paid to the New York State Liquor Authority.

Plaintiff now brings this action pursuant to 42 U.S.C. § 1983 against the Port Authority of New York and New Jersey ("Port Authority") as well as the police officers who responded to the scene: Police Chief John Ryan, Officer Scott Seamon, Officer John Tucci, and Officer John Curnyn, all of whom are sued in their individual and official capacities. Second Amended Complaint ("2d Am. Compl."), Docket Entry 32. In the ten causes of action he asserts, plaintiff alleges that he was subjected to unlawful search and seizure, assault and battery, excessive force, false arrest, false imprisonment, malicious prosecution, racial discrimination, tortious interference with prospective economic advantage, violation of his constitutional and state law rights, and denial of his right to due process. He also alleges that the Port Authority was negligent in failing to train and supervise its employees. See 2d Am. Compl.

Defendants have moved for summary judgment. Docket Entry 37. The case has been reassigned to me for all purposes with the consent of the parties. Docket Entry 28. For the reasons stated below, defendants' motion is granted in part and denied in part.

FACTUAL BACKGROUND

The parties have submitted statements of material facts but have failed to comply with the requirements of Local Civil Rule 56.1. See Defs. R. 56.1, Docket Entry 38; Pl. R. 56.1, Docket Entry 48. Local Rule 56.1(a) requires a party moving for summary judgment to provide "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Defendants have done so. Defs. R. 56.1, Docket Entry 38. The rule further requires the party opposing summary judgment to submit papers that "include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as towhich it is contended that there exists a genuine issue to be tried." Local Civil Rule 56.1(b). Plaintiff has submitted a counter-statement of material facts. Docket Entry 48. However, plaintiff's counter-statement does not include paragraphs numbered to correspond to the paragraphs in defendants' statement and does not respond to the factual allegations defendants make in their statement. Defendants have similarly failed to submit a proper response to plaintiff's counter-statement of material facts.

This Court may consider any facts not properly controverted as admitted. Local Civil Rule 56.1(c). Instead, however, I review the evidentiary support cited by the parties in their respective statements of material facts and, unless otherwise noted, rely only on those facts that are properly supported and not rebutted with citations to contradictory evidence presented in a form that would be admissible at trial. See Fed. R. Civ. P. 56(c).

From 1998 to 2011, Plaintiff Otis Stone operated a cafeteria called Chef's Orchid in Building 14 at JFK in Jamaica, New York. Defs. R. 56.1 ¶ 13; Defs. Ex. H, Deposition of Plaintiff Otis Stone ("Stone Dep."), Docket Entry 39-8, at 14-15, 21. Stone contracted to operate the cafeteria with Japan Airlines, Inc. ("JAL"), which in turn leased the building from the Port Authority of New York and New Jersey ("Port Authority"). Defs. R. 56.1 ¶¶ 13-14; Stone Dep. at 21-22.¹ On November 8, 2010, a fire broke out in a mechanical room adjacent to Chef's Orchid and occasionally used by Stone for storage. Defs. Ex. F, Deposition of John Ryan ("Ryan Dep."), Docket Entry 39-6, at 61-62; Defs. Ex. G, Deposition of Scott Seamon ("Seamon Dep."), Docket Entry 39-7, at 47-57; Affidavit of Otis Stone ("Pl. Aff."), Docket Entry 51-2, at ¶ 2. The Fire Department of New York responded to the scene, as did a number of officersemployed by the Port Authority, and the building was evacuated. See Stone Dep. at 41-42; Seamon Dep. at 56, 107; Ryan Dep. at 62.

Defendants Ryan, Seamon, Tucci, and Curnyn, each employed by the Port Authority, were among those who responded to the fire on November 8, 2010. Ryan Dep. at 11, 57; Seamon Dep. at 14, 18, 56; Defs. Ex. E, Deposition of John Curnyn ("Curnyn Dep."), Docket Entry 39-5, at 10, 26; Defs. Ex. I, Deposition of John Tucci ("Tucci Dep."), Docket Entry 39-9, at 12-13, 28-29. At that time, Ryan was a Police Lieutenant assigned to the JFK command for emergency security and equipment; Seamon was a Police Officer and Fire Marshal at the JFK command; Tucci was a Police Investigator in the Office of the Inspector General ("OIG") with an office at JFK; and Curnyn was a Police Detective assigned to OIG who also held an office at JFK. Id.²

Although Stone was not present when the fire started, he arrived at the restaurant after it was extinguished. Stone Dep. at 35, 39-40. According to Stone, after he arrived, Ryan told him that he could not go inside the restaurant at that time, and that he was not free to leave. Pl. R. 56.1 ¶ 3; Stone Dep. at 61; Pl. Aff. ¶ 6.³ Ryan asked for written consent to search the nonpublic areas of plaintiff's business, including the office and conference room, which plaintiff asserts he declined to provide. Pl. Aff. ¶¶ 9-10. Nonetheless, Seamon and Ryan conducted a walk-through fire inspection of the entire restaurant premises. Seamon Dep. at 110 ("I did an entire inspection of the entire tenant space including the office . . . . [A]nytime after a fire occurs, I do a full building inspection of the premise."), 117 (Seamon indicating that Ryan accompanied him through the inspection of the premises).

Upon his arrival, Seamon learned from a fellow officer that the fire started in a mechanical room and had already been extinguished. Seamon Dep. at 107. Seamon went to the mechanical room, where he observed smoke in the area. Id. at 108. Seamon also discovered combustible materials in the mechanical room, including wine, beer and lighter fluid, as well as files in the adjoining corridor and additional New York City Fire Code ("NYCFC" or "Fire Code") violations in the electrical room. Seamon Dep. at 124-25, 142, 263. At his deposition, Seamon stated that he learned from Japan Airlines personnel that plaintiff was using the mechanical room space. Seamon Dep. at 53-54, 134-35. Seamon further testified that Stone himself acknowledged to Seamon that the combustible material stored in the mechanical room belonged to him. Seamon Dep. at 53-54, 134-35. After observing the combustible material in the mechanical room, Officer Seamon issued a summons charging plaintiff with violating the Fire Code. Seamon Dep. at 31-32, 47; Defs. Ex. V. Other than to claim that the mechanical room was the responsibility of Japan Airlines, Pl. Aff. ¶ 24, plaintiff did not offer any testimony in his deposition or in his affidavit in opposition to summary judgment contrary to Seamon's on this point.

After he arrived on the day of the fire, Officer Curnyn learned from other officers that plaintiff did not have a liquor license for Chef's Orchid. Curnyn Dep. at 21-22. Curnyn observed liquor being stored there, though, and also saw a bar where it "appeared liquor was for sale." Curnyn Dep. at 24. After making these observations, Curnyn called the Queens County District Attorney's Office, described what he had seen, and was authorized to make an arrest or issue a summons. Curnyn Dep. at 25. Curnyn then brought plaintiff to the police station and issued two tickets to him charging liquor law violations. Curnyn Dep. at 41; Defs. Ex. U. Stone acknowledged during his deposition that, on November 8, 2010, Chef's Orchid did not have aliquor license, Stone Dep. at 130, and he did not deny that there was alcohol on the premises on the day of the fire. To the contrary, at his deposition, Stone challenged only the number of bottles of alcohol reported by the officers, and seems to have acknowledged in his counter-statement of material facts that he stored liquor at Chef's Orchid. Stone Dep. at 131, Pl. R. 56.1 ¶ 41. Stone also admitted in a written statement made on the day of the fire that he was storing alcohol at Chef's Orchid for use in another restaurant, Clippers II. Defs. Ex. T.

The summonses issued to plaintiff by defendants Seamon and Curnyn were eventually resolved after court proceedings, with an Assistant District Attorney and counsel for Stone present, at which Stone accepted Adjournments in Contemplation of Dismissal ("ACDs"). Defs. R. 56.1 ¶¶ 26-27; Defs. Exs. W, X. Plaintiff also agreed to pay a $10,000 civil penalty to the New York State Liquor...