holding that not verifying the assertions in the motion for summary judgment “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”
How later courts described this case
- holding that not verifying the assertions in the motion for summary judgment “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ISRAEL VAZQUEZ-CURET,
1:20-cv-151
Plaintiff, (MAD/DJS)
v.
RYAN BERKERY et al.,
Defendants.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Law Office of Jeffrey L. Zimring JEFFREY L. ZIMRING, ESQ.
120 Broadway - Suite 250
Menands, NY 12204
FOR THE DEFENDANTS:
Town of Colonie VERONIKA DeGIOVINE, ESQ.
534 New Loudon Road
Latham, NY 12110
Mae A. D’Agostino
District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Israel Vazquez-Curet brought this action pursuant to 42
U.S.C. § 1983, alleging that defendants Ryan Berkery and Nicholas
Morgan, Town of Colonie Police Officers, violated his Fourth Amendment
rights.1 (Am. Compl., Dkt. No. 53.) Defendants now move for summary
judgment. (Dkt. No. 71.) For the reasons that follow, defendants’ motion
is denied.
II. Background
A. Facts2
On November 11, 2019, defendants responded to a call from a
Target store on Central Avenue in Colonie. (Defs.’ Statement of Material
Facts (SMF) ¶¶ 1-3, Dkt. No. 71, Attach. 2.) Defendants approached
Vazquez-Curet, “whom they believed to be [an] alleged shoplifter based
on the information provided to them by dispatch and [Target] loss
prevention,” in the Target parking lot. (Id. ¶¶ 3-9.) Vazquez-Curet was
unable to provide a receipt for the items in his vehicle and defendants told
him that he needed to return to Target with them to review the shoplifting
allegations and surveillance footage. (Id. ¶¶ 14, 16.) Vazquez-Curet was
not placed under arrest at that time, but was told that he was not free to
leave. (Id. ¶ 17.) As defendants and Vazquez-Curet approached the
entrance of the Target, Vazquez-Curet turned around and began to run
1 The amended complaint also refers to the Fourteenth Amendment, however, as
Vazquez-Curet’s only claim is for alleged use of excessive force, solely a Fourth Amendment
challenge has been raised.
2 Unless otherwise noted, the facts are not in dispute.
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back through the parking lot, weaving through parked cars, and
defendants pursued him on foot.3 (Id. ¶¶ 20-22.) While in pursuit, Officer
Berkery told Vazquez-Curet that he was under arrest, but he continued to
flee. (Id. ¶ 30.) The parties agree that, at some point during the foot
pursuit and arrest, Vazquez-Curet suffered a “left forearm Galeazzi
fracture.” (Id. ¶ 52.) The parties disagree, however, about the sequence
of events leading up to Vazquez-Curet’s injury.
Defendants state that Vazquez-Curet, before physical contact was
made by either officer, fell to the ground “hard,” face down, and then tried
to get back to his feet to resume running, forcing defendants to restrain
and handcuff him while he resisted and continued to attempt to flee.4 (Id.
¶¶ 29-37.) However, Vazquez-Curet testified during his deposition that, to
end the chase, he decided to lay flat with his palms on the ground and
elbows up, and defendants “jumped on [his] left shoulder” before arresting
3 A video surveillance system maintained by Target captured video footage of the foot
chase. (Dkt. No. 71, Attach. 1, Exs. F, G, H, I, J, K.) The court has carefully reviewed these
videos.
4 Vazquez-Curet denies a number of defendants’ asserted material facts, however,
many of his denials fail to cite to the record as required by N.D.N.Y L.R. 56.1(b). Indeed,
Vazquez-Curet’s denials of paragraphs 28, 32, and 34 refer to future anticipated testimony
and, without any specific citation, Vazquez-Curet’s self-serving affidavit. (Dkt. No. 78, Attach.
2 at ¶¶ 28, 32, 34.) The court overlooks this carelessness because there is evidence in the
record, in the form of Vazquez-Curet’s deposition testimony, (Dkt. No. 71, Attach. 6 at 15:11-
21, 19:19-20:8), that supports his denial of such facts.
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him, causing his arm to break. (Dkt. No. 71, Attach. 6 at 15:11- 21, 19:19-
20:8; Dkt. No. 78, Attach. 4 ¶¶ 11-13, 19.)
B. Procedural History
Vazquez-Curet initiated this action against Officer Berkery and the
Colonie Police Department, alleging that his Fourth Amendment rights
were violated. (Dkt. No. 1.) The court adopted, in its entirety, a Report
and Recommendation that recommended any claims against the Colonie
Police Department be dismissed with prejudice. (Dkt. No. 19.) Vazquez-
Curet amended his complaint, adding Officer Morgan as a defendant, and
alleging that Officers Berkery and Morgan violated his Fourth Amendment
rights by using excessive force while arresting him. (Dkt. No. 53.) Now
pending is defendants’ motion for summary judgment. (Dkt. No. 71.)
III. Standard of Review
A court may grant a motion for summary judgment only if it
determines that there is no genuine issue of material fact to be tried and
that the facts as to which there is no such issue warrant judgment for the
movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994). When analyzing a summary judgment motion,
the court “cannot try issues of fact; it can only determine whether there are
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issues to be tried.” Id. at 36-37 (quotation and other citation omitted).
Moreover, it is well-settled that a party opposing a motion for summary
judgment may not simply rely on the assertions on its pleadings. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P.
56 (c), (e)).
In assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all ambiguities and draw
all reasonable inferences in favor of the nonmoving party. See Chambers,
43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). Where the non-movant either does not respond to the motion or
fails to dispute the movant’s statement of material facts, the court may not
rely solely on the moving party’s Rule 56.1 statement; rather the court
must be satisfied that the citations to evidence in the record support the
movant’s assertions. See Giannullo v. City of New York, 322 F.3d 139,
143 n.5 (2d Cir. 2003) (holding that not verifying the assertions in the
motion for summary judgment “would derogate the truth-finding functions
of the judicial process by substituting convenience for facts”).
“‘Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the court on
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summary judgment.’” Jeffreys v. City of New York, 426 F.3d 549, 553-54
(2d Cir. 2005) (citation omitted). “However, ‘[t]he mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for the
plaintiff.’” Id. (quoting Anderson, 477 U.S. at 252). “To defeat summary
judgment, therefore, nonmoving parties ‘must do more than simply show
that there is some metaphysical doubt as to the material facts,’ . . . and
they ‘may not rely on conclusory allegations or unsubstantiated
speculation.’” Id. (citations omitted).
IV. Discussion
Defendants argue that summary judgment is appropriate because
they did not use excessive force; and that, even if they did, they are
entitled to qualified immunity. (Dkt. No. 71, Attach. 3 at 4-20.) Vazquez-
Curet contends that questions of material fact regarding the timing and
manner of his injury preclude summary judgment. (Dkt. No. 78, Attach. 3
at 2-4.)
The right of law enforcement to make an arrest or investigatory stop
“carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). To
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establish the use of excessive force, a plaintiff must demonstrate that the
officer’s actions were unreasonable such that “the government interests at
stake were outweighed by ‘the nature and quality of the intrusion on [the
plaintiff’s] Fourth Amendment interests.’” Barlow v. Male Geneva Police
Officer, 434 F. App’x 22, 26 (2d Cir. 2011) (quoting Graham, 490 U.S. at
396). Although the test for reasonableness is “‘not capable of precise
definition or mechanical application,’” the court must consider (1) the
severity of the crime at issue; (2) whether the plaintiff posed an immediate
threat to the officers or others; and (3) whether the plaintiff was actively
resisting or evading arrest. Cugini v. City of New York, 941 F.3d 604, 612-
13 (2d Cir. 2019) (quoting Graham, 490 U.S. at 396).
The officer’s conduct must be judged from the perspective of a
reasonable officer on the scene, without regard to the officer’s underlying
motivation and without the benefit of hindsight. See Graham, 490 U.S. at
396-97. Moreover, the calculus of reasonableness “must embody
allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a
particular situation.” Id. Accordingly, “‘[n]ot every push or shove, even if it
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may later seem unnecessary in the peace of a judge’s chambers, violates
the Fourth Amendment.’” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.
2010) (quoting Graham, 490 U.S. at 396).
Here, Vazquez-Curet does not dispute that he fled from defendants
or that he was under arrest at the time he was restrained. (Dkt. No. 78,
Attach. 2 at 2-3.) However, as discussed above, the parties disagree
about whether Vazquez-Curet voluntarily laid on the ground waiting to be
restrained or if he fell and had to be forcefully restrained—a material
disagreement bearing on whether a reasonable amount of force was used.
Defendants suggest that the surveillance videos contradict Vazquez-
Curet’s allegations and support their account of the incident. (Dkt. No. 71,
Attach. 3 at 15-16.) Indeed, “‘[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the video recording so
that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary
judgment.’” Goode v. Blue, No. 3:10-CV-135, 2011 WL 2118645, at *5 (D.
Conn. May 25, 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)
(emphasis added)). However, the videos—which are low-resolution and
subject to interpretation—do not, on their own, conclusively establish
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exactly what occurred and, therefore, do not “blatantly contradict”
Vazquez-Curet’s version of events. See id. And, consistent with the
standard of review, the court must resolve such ambiguities in Vazquez-
Curet’s favor. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). As such, the material issues of
fact, which are essential to the determination of whether reasonable force
was used, cannot be resolved at this juncture.
Ultimately, if Vazquez-Curet’s version of events is to be believed, a
reasonable jury could find that defendants used excessive force, in
violation of his Fourth Amendment rights.5 Therefore, summary judgment
must be denied.6
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
5 Defendants’ reliance on Tracy, 623 F.3d 90, is well reasoned—diving on-top of an
arrestee who is actively fleeing and resisting is objectively reasonable under certain
circumstances. (Dkt. No. 71, Attach. 3 at 12-14.) However, here, there is a dispute regarding
whether Vazquez-Curet was still fleeing and resisting at the time force was used and there is a
question of when and how, during the arrest, his arm was fractured.
6 To the extent that defendants argue that they are entitled to summary judgment on
qualified immunity grounds, “[b]ecause a material factual dispute remains as to the
circumstances surrounding the use of force in this case, summary judgment on qualified
immunity is inappropriate.” Durr v. Slator, No. 5:20-CV-662, 2023 WL 8277960, at *6
(N.D.N.Y. Nov. 30, 2023) (citing Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir.
2001)).
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ORDERED that defendants’ motion for summary judgment (Dkt. No.
71) is DENIED; and it is further
ORDERED that this case is deemed trial ready and a trial scheduling
order will be issued in due course; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.
Albony. New York Lak Dighs = LD □
U.S. District Judge
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