# Rivera

> District Court, S.D. New York · September 10, 2025

URL: https://www.frixlaw.com/law-library/cases/11183079

## Case

- **Full name:** Humberto Rivera, Jr. v. Town of New Fairfield, David Koonitsky, Jamie Olsowy, David Tharas, and James King; Humberto Rivera, Jr. v. Deputy Sheriff Thomas Varbero
- **Court:** District Court, S.D. New York
- **Decided:** September 10, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
HUMBERTO RIVERA, JR., :
Plaintiff, :
:
v. : OPINION AND ORDER
:
TOWN OF NEW FAIRFIELD, DAVID : 22 CV 1874 (VB)
KOONITSKY, JAMIE OLSOWY, DAVID :
THARAS, and JAMES KING, :
Defendants. :
--------------------------------------------------------------x
HUMBERTO RIVERA, JR., :
Plaintiff, :
:
22 CV 1877 (VB)
v. :

:
DEPUTY SHERIFF THOMAS VARBERO, :
Defendant. :
--------------------------------------------------------------x
Briccetti, J.:
Plaintiff Humberto Rivera, Jr., brings these related actions against defendants Town of
New Fairfield (the “Town”), Trooper David Koonitsky (collectively, the “New Fairfield
Defendants”), Trooper James King, Trooper Jamie Olsowy, and Trooper David Tharas
(collectively, the “Connecticut State Trooper Defendants”), and Deputy Sheriff Thomas Varbero.
Plaintiff alleges defendants violated his Fourth Amendment rights when they entered and
detained him in his home in response to a domestic violence call involving his young daughter.1
0F
Plaintiff also brings state law claims for trespass and false imprisonment against the Town.

1 Plaintiff has voluntarily dismissed his Fourteenth Amendment substantive and procedural
due process claims against all defendants. (See Docs. ##154 at 2 n.1; 149 at 2 n.1; 73 at 2 n.1,
22cv1877). Plaintiff has also voluntarily dismissed his negligence claim against the Town. (See
Doc. #154 at 2 n.1).

Citations to the record are to case no. 22cv1874, unless otherwise noted.
Now pending are defendants’ motions for summary judgment. (Docs. ##134, 142;
Doc. #63, 22cv1877).
For the reasons set forth below, the motions are GRANTED IN PART and DENIED IN
PART. All claims are dismissed except for plaintiff’s Fourth Amendment seizure claim against

Deputy Varbero.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
BACKGROUND
The parties have submitted briefs, statements of material facts pursuant to Local Civil
Rule 56.1, and declarations with exhibits. These submissions reflect the following factual
background.
I. The 911 Call
On March 2, 2019, plaintiff was at home in Brewster, New York, with his eight-year-old
daughter, SR. Plaintiff’s fiancée, Jennika Suero, and their infant son were also at home. Plaintiff
and SR’s mother, Wendy Cotte, are separated, and Cotte lives in Manhattan. That weekend,

plaintiff had visitation rights with SR and had picked her up at school in Manhattan the previous
day.
At around 8:00 p.m., SR called Cotte. SR told Cotte she was afraid because plaintiff had
been drinking and that she was currently hiding in the bathroom. (Doc. #152 ¶¶ 4, 14). SR told
Cotte plaintiff had said that “they need to put your mother in a place,” and that doing so would
mean SR would live with plaintiff permanently. (Id. ¶ 16). SR told Cotte she was “really
scared” and wanted to leave, and asked Cotte to pick her up. (Id. ¶¶ 14–15). SR called Cotte
two more times after her initial call and Cotte recorded one of the calls. (Id. ¶ 2). Cotte asked a
friend to drive her from Manhattan to Brewster and arrived around 11:00 p.m.
Upon their arrival, Cotte and her friend parked several houses down from plaintiff’s
home and Cotte called 911. Cotte told the 911 dispatcher that her daughter had texted and called
to say she felt scared and unsafe with her intoxicated father and had asked Cotte to pick her up.
(Doc. #152 ¶ 22). Cotte also told the dispatcher that she and plaintiff had a history of domestic

violence and she was afraid to knock on plaintiff’s door for fear of how plaintiff would react.
(Id. ¶ 23). Cotte asked for assistance to check on SR and determine whether she could take her
daughter home.
Plaintiff’s home is located near the border between New York and Connecticut. Although
plaintiff’s home is in Brewster, New York, the home is accessible via roads in New Fairfield,
Connecticut. In plaintiff’s neighborhood, homes on one side of the street are located in New
York and those on the other side are in Connecticut. (Doc. #157 ¶¶ 1–3). When Cotte called
911, the 911 call was picked up by the closest cell tower, which was in Connecticut, and was
answered by the Town of New Fairfield dispatch. (Doc. #152 ¶¶ 28–30). The Town of New
Fairfield is a “resident trooper town,” meaning the town has its own police department but also

receives support and supervision from the Connecticut State Police. (Id. ¶ 31). Therefore,
although New Fairfield receives 911 calls due to its location, the Connecticut State Police also
listens in on dispatch calls. (Id.).
As a result, while in his patrol vehicle, Trooper Tharas received a call from New Fairfield
dispatch reporting a potential domestic violence situation where a father was allegedly
preventing his daughter from leaving the residence. (Doc. #152 ¶ 35). The dispatcher informed
Tharas that the 911 call had been made by the child’s mother and that young children were
involved. (Doc. #141-5 at 30).
II. The Connecticut State Trooper Defendants Arrive on the Scene
At approximately 11:14 p.m., Tharas and his partner Trooper Olsowy arrived at plaintiff’s

home. (Doc. #152 ¶ 43). Cotte met with Tharas and Olsowy, showed them the text messages SR
sent her, and played the recording of one of her calls with SR. Cotte also told Tharas and
Olsowy that SR was locked inside the house and was not being permitted to leave. (Id. ¶¶ 46–
48). While Olsowy continued talking to Cotte, Tharas approached the front door of plaintiff’s
house. According to Tharas and Cotte, Tharas knocked on the door and SR opened it. (Id.
¶¶ 50–51). However, plaintiff disputes that SR opened the door because he contends the door
was too heavy for an eight-year-old child to open. Moreover, plaintiff contends he had never
previously seen SR open the front door. (Id. ¶ 51).
Tharas then entered the home through the front door. Tharas asked SR where plaintiff
was, and she responded he was in her bedroom sleeping. Olsowy entered soon afterwards.

(Doc. #152 ¶¶ 52, 55).
Tharas and Olsowy proceeded to SR’s bedroom, opened the door, and found plaintiff
sleeping on a futon on the floor. Olsowy called out to wake plaintiff, causing plaintiff to fall off
the futon. (Docs. ##141-5 at 35; 153 ¶ 15). Tharas determined plaintiff was intoxicated due to
his demeanor and the odor of alcohol in the room. (Doc. #152 ¶ 58).
Olsowy then asked plaintiff for his identification and Tharas continued speaking with
SR. SR told Tharas her father had been sleeping on the futon and had not been keeping her in
the house against her will. After speaking with SR, Tharas determined the situation was not as
reported and the Troopers concluded it was not an active domestic violence situation. (Doc.
#152 ¶¶ 60–61).
When Olsowy reviewed plaintiff’s identification, he realized plaintiff’s home was located
in New York, not Connecticut. Although Tharas then requested dispatch to confirm the address,

which they asserted was a Connecticut address, plaintiff told the officers his home was located in
New York. (Doc. #152 ¶¶ 63–64). As a result, at around 11:20 p.m., Tharas called dispatch to
inform them to contact the New York state police. (Id. ¶ 66).
While waiting for the New York authorities to arrive, Tharas and Olsowy sat with
plaintiff in the living room and engaged in small talk. (Doc. #152 ¶ 69). According to plaintiff,
he asked Troopers Olsowy and Tharas to leave his property. (Id. ¶ 71). At some point, Trooper
King arrived on the scene and remained outside with Cotte. (Id. ¶ 52).
III. The New Fairfield Defendants Arrive on the Scene
Sometime after 11:20 p.m., Officer Koonitsky from the New Fairfield Police Department
arrived on the scene and entered through the open front door, which at that point was being

monitored by Trooper King. (Doc. #157 ¶¶ 31–34). Koonitsky joined Olsowy and Tharas and
continued to engage in small talk with plaintiff while waiting for the New York authorities to
arrive.
According to plaintiff, Koonitsky did not touch or otherwise instruct plaintiff to remain in
place, did not enter any other rooms besides the living room, and did not conduct any searches.
(Doc. #141-3 at 101–02).
IV. Defendant Varbero Arrives on the Scene
At approximately 11:43 p.m., Putnam County Deputy Sheriff Varbero arrived in response
to the Connecticut dispatch request. Upon Varbero’s arrival, he became the officer in control of
the scene. (Doc. #157 ¶ 37).

Varbero spoke first with SR and Cotte, who were outside plaintiff’s home. SR told
Varbero that plaintiff had been drinking, that he had taken away her medication, and that she felt
unsafe with him. (Doc. #76 ¶¶ 112–13, 22cv1877). Cotte also told Varbero she feared for SR’s
safety because of plaintiff’s history of domestic violence. (Id. ¶ 115).
Deputy Varbero then approached the house. One of the Connecticut State Troopers
opened the front door and let Varbero in. (Doc. #76 ¶ 117, 22cv1877). Once inside, Varbero met
with the Troopers. (Doc. #64-8 at 27). Tharas spoke to Varbero and explained that, in his
assessment, the situation was not a domestic violence incident but rather a custody dispute.
(Doc. #141-5 at 37–38). The Connecticut State Troopers also told Varbero there were other
people inside the house and pointed to the master bedroom. (Doc. #76 ¶ 118, 22cv1877).

Varbero spoke to plaintiff in the living room and then proceeded to the master bedroom. He
opened the door to the master bedroom, spoke briefly with Suero, and then returned to the living
room where plaintiff and the other officers were waiting. (Id. ¶¶ 119–22).
After returning to the living room and kitchen area, Varbero told plaintiff that SR felt
unsafe and would be leaving with Cotte. Varbero then advised plaintiff that he and Cotte should
pursue any further remedies in family court. (Doc. #76 ¶¶ 125–28, 22cv1877).
According to plaintiff, Varbero also told him that if he “wasn’t quiet,” he would “end up
in the hospital.” (Doc. #77 ¶ 32, 22cv1877). Varbero disputes making this comment. (Doc.
#75-6 at 55, 22cv1877).
In total, Varbero was inside plaintiff’s home for five to seven minutes and on-site for less
than an hour. (Docs. ##76 ¶¶ 131–32, 22cv1877; 64-8 at 27, 22cv1877). Tharas, Olsowy, King,
and Koonitsky left the scene shortly after Varbero’s arrival. The Connecticut State Troopers did
not prepare a report related to the incident and classified it as an “assist” to a different law

enforcement agency. (Doc. #141-5 at 38).
DISCUSSION
I. Standard of Review
The Court must grant a motion for summary judgment if the pleadings, discovery
materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).2
1F
A fact is material when it “might affect the outcome of the suit under the governing
law . . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010). It is the moving party’s burden to establish the absence of any genuine issue of material
fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).

2 Unless otherwise indicated, case quotations omit all internal citations, quotations,
footnotes, and alterations.
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc. v.
CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in the non-movant’s favor on the issue on which summary

judgment is sought, summary judgment is improper. Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
II. Fourth Amendment Claims
A. Legal Standard
The Fourth Amendment, applicable to the states through the Fourteenth Amendment,
prohibits “unreasonable searches” by law enforcement. U.S. Const. amend. IV. Under the Fourth
Amendment, warrantless searches and seizures inside a home are “presumptively unreasonable.”
Payton v. New York, 445 U.S. 573, 586 (1980).
However, “[t]he Fourth Amendment does not require law enforcement to obtain a warrant
to search a home if exigent circumstances exist, including the need to assist persons who are

seriously injured or are threatened with imminent injury.” United States v. Laurent, 33 F.4th 63,
95 (2d Cir. 2022), cert. denied, Laurent v. United States, 143 S. Ct. 394 (2022). To determine
whether exigent circumstances existed, “the core question is whether the facts, as they appeared
at the moment of entry, would lead a reasonable, experienced officer to believe that there was an
urgent need to render aid or take action.” United States v. Laurent, 33 F.4th 63, 95 (2d Cir.
2022). One such exigency is the “emergency aid doctrine,” which applies when “law
enforcement agents were confronted by an urgent need to render aid” inside a home. United
States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc).
The Second Circuit has identified six non-exhaustive factors for courts to consider in
determining whether the emergency-aid exception to the warrant requirement applies:
(1) the gravity or violent nature of the offense with which the suspect is to be
charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear
showing of probable cause. . . to believe that the suspect committed the crime; (4)
strong reason to believe that the suspect is in the premises being entered; (5) a
likelihood that the suspect will escape if not swiftly apprehended; and (6) the
peaceful circumstances of the entry.

United States v. MacDonald, 916 F.2d at 769–70. As for domestic disputes, courts have
recognized that the “combustible nature” of such disputes requires “great latitude to an officer’s
belief that warrantless entry was justified by exigent circumstances when the officer had
substantial reason to believe that one of the parties to the dispute was in danger.” Tierney v.
Davidson, 133 F.3d 189, 197 (2d Cir. 1998).
Moreover, the Fourth Amendment prohibits “unreasonable . . . seizures.” U.S. Const.
amend. IV. “[T]he first step in any Fourth Amendment claim (or, as in this case, any section
1983 claim predicated on the Fourth Amendment) is to determine whether there has been a
constitutionally cognizable seizure.” Medeiros v. O’Connell, 150 F.3d 164, 167 (2d Cir. 1998).
A Fourth Amendment “seizure” occurs when police detain an individual under circumstances in
which a reasonable person would believe he or she is not “free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
B. The Connecticut State Trooper Defendants
The Connecticut State Trooper defendants contend the emergency aid exception to the
Fourth Amendment applies and that, alternatively, they are entitled to qualified immunity.
1. Entry
The emergency aid exception to the Fourth Amendment applies if law enforcement
officers are confronted with the urgent need to render aid inside a home. Whether such an urgent
need exists turns on whether the facts, “as they appeared at the moment of entry, would lead a
reasonable, experienced officer, to believe that there was an urgent need to render aid or take
action.” Chamberlain ex rel. Chamberlain v. City of White Plains, 960 F.3d 100, 106 (2d Cir.
2020).

Here, several factors weigh in favor of finding that the emergency aid exception applies.
The Connecticut State Trooper defendants were dispatched in response to a 911 call requesting
help for a potential domestic violence situation involving children. In response to SR’s messages
saying she was afraid of her father and that he had been drinking, and her pleas that her mother
pick her up, Cotte, who did not own a car, asked a friend to drive her for two hours at night so
she could pick up her child. When the Connecticut State Troopers arrived, Cotte told them she
and plaintiff had a history of domestic violence and that SR was not being allowed to leave the
house. Cotte expressed fear that plaintiff would react violently if she knocked on the door and
tried to collect SR herself. A reasonable jury could find that, under these circumstances, the
Connecticut State Trooper defendants were facing a potentially volatile domestic violence

situation involving children and were justified in entering plaintiff’s home to prevent imminent
violence.
However, several other factors weigh against finding the emergency aid exception
applies. The MacDonald factors are particularly instructive. When the Connecticut State
Troopers arrived on the scene, there was: no evidence or allegation that plaintiff had a weapon;
no likelihood that plaintiff would escape; no history of domestic violence involving SR, or other
children, only Cotte; and no evidence of violence when the officers arrived to the home, such as
screaming or broken glass. Therefore, construing the facts in plaintiff’s favor, a reasonable jury
could find the Connecticut State Trooper defendants did not need to enter plaintiff’s home to
prevent an emergency.
Yet the Connecticut State Trooper defendants are nevertheless entitled to qualified
immunity because plaintiff’s rights were not clearly established and because it was objectively

reasonable for defendants to believe their conduct was lawful. Qualified immunity shields
government officials whose conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (citations omitted). “The issues on qualified immunity are: (1)
whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether
that right was ‘clearly established’; and (3) even if the right was ‘clearly established,’ whether it
was ‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.”
Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting Taravella v. Town of
Wolcott, 599 F.3d 129, 133–34 (2d Cir. 2010)). “Rights must be clearly established in a
particularized sense, rather than at a high level of generality; and such rights are only clearly

established if a court can identify a case where an officer acting under similar circumstances was
held to have acted unconstitutionality.” Grice v. McVeigh, 873 F.3d 162, 166 (2d Cir. 2017).
The Supreme Court has cautioned that the appropriate inquiry of “whether the violative
nature of the particular conduct is clearly established” should be “undertaken in light of the
specific context of the case, not as broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12
(2015). Therefore, although warrantless searches without probable cause or exigent
circumstances violate the Fourth Amendment, a right is “clearly established” only if it is “clearly
established that the circumstances with which [an officer] was confronted did not constitute
probable cause and exigent circumstances.” Anderson v. Creighton, 483 U.S. 635, 640–41
(1987).
Here, the Court cannot find—and plaintiff has not provided—a case that would have put
the Troopers on notice that their actions, under these specific circumstances involving a potential

domestic violence dispute, violated plaintiff’s constitutional rights. See Grice v. McVeigh, 873
F.3d at 166. Indeed, the Second Circuit has instructed that, given the “combustible nature of
domestic disputes,” courts should apply “great latitude to an officer’s belief that warrantless
entry was justified by exigent circumstances when the officer had substantial reason to believe
that one of the parties to the dispute was in danger.” Tierney v. Davidson, 133 F.3d at 197. In
this situation, the Connecticut State Trooper defendants were responding to a 911 call reporting a
potential domestic violence situation involving an allegedly intoxicated father and a frightened
child. Given Cotte’s statements about plaintiff’s prior history of domestic violence and
drunkenness, SR’s text messages and calls to Cotte, and the lack of conclusive evidence that SR
was not in immediate danger, the Connecticut State Trooper defendants could have believed that

their actions were lawful given the situation. Therefore, plaintiff’s constitutional rights, under
these particular circumstances, were not clearly established.
Furthermore, even assuming plaintiff’s rights in this situation were clearly established—
and they were not—the Connecticut State Trooper defendants are entitled to qualified immunity
because it was objectively reasonable for them to believe their conduct was lawful. An officer’s
conduct is objectively reasonable when officers of “reasonable competence” could disagree as to
its legality. Malley v. Briggs, 475 U.S. 335, 341 (1986). Here, despite the exigencies identified
by the defendants—namely, the potential domestic violence situation, SR’s statements that she
was afraid of her father, and Cotte’s statements that she was afraid to knock on plaintiff’s door
due to their history of domestic violence—a different, equally competent officer could conclude
that these circumstances did not justify a warrantless entry. Accordingly, because reasonable
officers could disagree amongst each other as to whether the potential risk of violence justified
their entry into plaintiff’s home, the Connecticut State Trooper defendants’ conduct was

objectively reasonable.
“The qualified immunity standard is forgiving and protects all but the plainly
incompetent or those who knowingly violate the law.” Grice v. McVeigh, 873 F.3d 162, 166 (2d
Cir. 2017). It cannot be said that the Connecticut State Trooper defendants here were “plainly
incompetent” when they entered plaintiff’s home to prevent a potentially volatile domestic
violence situation involving young children. Mullenix v. Luna, 577 U.S. 7, 12 (2015).
Accordingly, the Connecticut State Trooper defendants are entitled to qualified immunity
on plaintiff’s Fourth Amendment entry claim.
2. Seizure
As to plaintiff’s seizure claim, the Connecticut State Trooper defendants argue their brief

detainment of plaintiff during their investigation does not amount to a seizure.
The Court agrees.
The Constitution “forbids not all searches and seizures, but unreasonable searches and
seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968). A seizure does not occur “simply because a
police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S.
429, 434 (1991). “Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”
Terry v. Ohio, 392 U.S. at 19 n.16. Courts routinely consider several factors to determine
whether a seizure has occurred, including the “threatening presence of several officers; the
display of a weapon; physical touching of the person by the officer; [and] language or tone
indicating that compliance with the officer was compulsory.” Dejesus v. Vil. of Pelham Manor,
282 F. Supp. 2d 162, 168 (S.D.N.Y. 2003).
Plaintiff points to several actions taken by the Connecticut State Troopers during their

investigation to argue that he was detained, but each is without merit. First, plaintiff argues the
Connecticut State Trooper defendants “woke him up” with “forceful yelling,” but fails to
articulate how this act of waking up plaintiff amounts to a seizure or otherwise restrained
plaintiff’s liberty. (Doc. #149 at 9). He does not contend, moreover, that the officers’ attempts to
wake him up was in any way an “indicat[ion] that compliance with the officer’s request might be
compelled,” United States v. Mendenhall, 446 U.S. 544, 554 (1980), rather than just an attempt
to awaken plaintiff. Plaintiff also contends he was threatened with violence if he did not comply
with the officers’ demands, but he points to a statement that defendant Varbero, not the
Connecticut State Trooper defendants, purportedly made to him. (Doc. #149 at 9). Lastly,
plaintiff alleges the Connecticut State Trooper defendants “touched him” while he was in the

process of providing them with his identification, but “inoffensive contact between a member of
the public and the police cannot, as a matter of law, amount to a seizure of that person.” United
States v. Mendenhall, 446 U.S. at 555.
Accordingly, the Connecticut State Trooper defendants are entitled to summary judgment
on plaintiff’s seizure claim.
C. The New Fairfield Defendants
As for Officer Koonitsky, plaintiff contends Koonitsky violated his Fourth Amendment
rights when he entered the home without a warrant and joined the Connecticut State Troopers’
seizure of him in the living room.
The Court disagrees.
“A law enforcement officer without personal knowledge of the facts is permitted to take
action based on the representations of another officer, if it is reasonable to believe that the other
officer is telling the truth.” Lederman v. Adams, 45 F. Supp. 2d 259, 271 (S.D.N.Y. 1999). Here,

Officer Koonitsky had been given a brief description of Cotte’s 911 call by the Town of New
Fairfield dispatcher and was responding to a scene to which other officers had already been
dispatched. Upon seeing the open door to plaintiff’s home, and given the potential domestic
violence situation to which he was responding, it was reasonable for Koonitsky to rely on the
determinations of the Connecticut State Troopers and enter the home.
Moreover, “the direct physical participation of the defendant in the constitutional
violation is not alone a sufficient basis for holding the defendant liable if the defendant had no
awareness or notice of the facts that rendered the action illegal.” Provost v. City of Newburgh,
262 F.3d 146, 155 (2d Cir. 2001). Although Officer Koonitsky joined the Connecticut State
Troopers as they were interviewing plaintiff in the living room, his mere presence is not enough

to impute liability when he reasonably relied on the Trooper defendants’ decision to enter the
home. “[S]uch innocent participation” in the alleged constitutional violation “cannot make him
liable for its illegality.” Id. Rather, direct participation is only a basis of liability if the
participant “has knowledge of the facts that rendered the conduct illegal.” Id.
Finally, plaintiff does not allege Officer Koonitsky touched or otherwise exhibited any
force towards plaintiff. Instead, the entirety of plaintiff’s Fourth Amendment claim against
Koonitsky rests on his mere presence on the scene while the Connecticut State Troopers were
interviewing plaintiff. This is insufficient, as a matter of law, to constitute a seizure in violation
of the Fourth Amendment.
Accordingly, Officer Koonitsky is entitled to summary judgment on plaintiff’s Fourth
Amendment claim.
D. Defendant Varbero
As for Deputy Varbero, plaintiff argues there are genuine issues of material fact that make

summary judgment improper as to whether Varbero violated plaintiff’s Fourth Amendment rights
when Varbero entered the home, conducted a search of the master bedroom, and threatened
plaintiff during his investigation.
The Court disagrees as to plaintiff’s entry and search claim but agrees as to plaintiff’s
seizure claim.
1. Entry
As with Officer Koonitsky, Deputy Varbero was “entitled to rely” on the other officers’
determination of legality of the entry, “[a]bsent significant indications to the contrary.” Loria v.
Gorman, 306 F.3d 1271, 1288 (2d Cir. 2002). Upon his arrival to the scene, Varbero entered
through the front door, which was held open by one of the Connecticut officers. Plaintiff does

not allege that Varbero was aware that a lack of consent existed for his entry. Moreover, the
Connecticut State Trooper defendants told Varbero that they observed no domestic disturbance
only after he was already in the house. Therefore, the manner in which the Connecticut State
Troopers entered plaintiff’s home is not material or germane to Varbero’s “awareness or notice of
the facts that rendered the action illegal.” Provost v. City of Newburgh, 262 F.3d at 155.
Accordingly, even if the Connecticut State Troopers’ entry was unlawful, plaintiff has failed to
proffer evidence that Varbero was aware of this illegality, and thus there is “no basis for holding
the defendant liable.” Id.
In short, like Officer Koonitsky, Deputy Varbero is entitled to summary judgment on
plaintiff’s Fourth Amendment claim relating to Varbero’s entry into the home.
2. Search
Plaintiff further contends Deputy Varbero conducted an unconstitutional search when he

opened the door to the master bedroom during his investigation. Specifically, plaintiff argues
that the presence of the Connecticut State Troopers and Officer Koonitsky, and the removal of
SR from the home, ameliorated any need for a “protective sweep” of the home.
An officer is permitted to conduct a limited search of a home when the officer has a
reasonable suspicion that the “area to be swept harbors an individual posing a danger to those on
the arrest scene.” Maryland v. Buie, 494 U.S. 325, 334 (1990). “A Buie protective sweep is a
quick and limited search of premises that is narrowly confined to a cursory visual inspection of
those places in which a person might be hiding.” United States v. Gandia, 424 F.3d 255, 261 (2d
Cir. 2005). However, courts are split on the issue of when a Buie sweep is permitted. Some
circuits have cabined Buie to lawful process, like a warrant, but others extend Buie to other types

of lawful entry, like exigency or consent. Here, the original entry by the Connecticut officers
was either via exigency or consent, and the Second Circuit has not yet decided if Buie extends to
entries by either exigency or consent. See United States v. Hassock, 631 F.3d 79, 87 (2d Cir.
2011).
Plaintiff argues there are factual disputes as to whether Deputy Varbero had reasonable
suspicion to search plaintiff’s home. Plaintiff points out that the Connecticut officers informed
Varbero that, in their determination, the situation did not involve a live domestic violence issue
but rather a custody dispute, and plaintiff avers this determination negates any reasonable
suspicion Deputy Varbero may have had prior to entering the home.
Yet even assuming Deputy Varbero conducted a Buie sweep without reasonable
suspicion, he is nevertheless entitled to qualified immunity because his conduct was objectively

reasonable. Here, Varbero arrived late to the scene and was let inside the home by the
Connecticut officers. Varbero’s brief search of the master bedroom, where he only touched the
doorknob and spoke briefly to plaintiff’s fiancée, Ms. Suero, was, at the very least, one where
reasonable officers could disagree as to the legality. Plaintiff points to no established case
detailing the limits of reliance a responding officer may have when taking control of an incident
from an out-of-jurisdiction agency. Moreover, the Second Circuit has long afforded “great
latitude” to an officer responding to domestic disputes due to their “combustible nature.”
Tierney v. Davidson, 133 F.3d at 197. Because Varbero’s responsibilities and the limits of the
Buie sweep were not clearly established, he is entitled to qualified immunity for the search of the
master bedroom.

Accordingly, plaintiff’s Fourth Amendment claim arising from Deputy Varbero’s search
of his home must be dismissed.
3. Seizure
As for plaintiff’s seizure claim, plaintiff argues there is a genuine issue of material fact as
to whether Deputy Varbero seized plaintiff.
The Court agrees.
A Fourth Amendment “seizure” occurs when police detain an individual under
circumstances in which a reasonable person would believe he or she is not “free to leave.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980). For a plaintiff to allege a cognizable
seizure, the plaintiff must allege the officer intended to restrain that individual. Medeiros v.
O’Connell, 150 F.3d 164, 168 (2d Cir. 1998).
If there is a seizure, the Court must next determine what type of seizure occurred. There
are two relevant types of seizures, each of which requires a different level of justification: (i) an

investigatory (or Terry) stop, which must be based on “a reasonable suspicion supported by
articulable facts that criminal activity may be afoot”; and (ii) an arrest, which must be based on
probable cause. United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
Here, plaintiff contends that, while Deputy Varbero was questioning him in the living
room, he told plaintiff that, “if [plaintiff wasn’t] quiet,” he would “end up in the hospital.” (Doc.
#77 ¶ 32, 22cv1877). A reasonable person in plaintiff’s circumstances could have considered
Varbero’s language and tone to indicate he was not “free to leave.” Brown v. City of Oneonta,
221 F.3d 329, 340 (2d Cir. 2000). Therefore, drawing all inferences in plaintiff’s favor, a
reasonable jury could find plaintiff was seized by Deputy Varbero.

Having concluded that plaintiff was seized, the Court must next consider whether the
seizure was an investigatory Terry stop or an arrest.3 “Whether a seizure is an arrest or . . .
2F
merely an investigatory detention, depends on the reasonableness of the level of intrusion under
the totality of the circumstances.” Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991). “As the level
of intrusiveness rises, . . . an encounter between the police and a citizen is more properly
categorized as an arrest.” Id. Although plaintiff does not allege he was detained by Deputy

3 The Court previously held, in denying Deputy Varbero’s motion to dismiss (Doc. #30,
22cv1877), that plaintiff had sufficiently alleged that Varbero conducted a Terry stop when
Varbero prevented plaintiff from exiting his home. At the summary judgment stage, plaintiff has
waived this argument and only alleges he was seized when Deputy Varbero questioned and
allegedly threatened him.
Varbero for a specific amount of time, the extent of his detention could not have exceeded the
length of Varbero’s investigation inside the home, which amounted to five to seven minutes.
Moreover, plaintiff was held in his living room for the entirety of the alleged seizure, and he does
not allege Varbero handcuffed him or brandished a weapon. These factors demonstrate that

Varbero’s seizure involved a low level of intrusion, and weigh against the finding of a de facto
arrest. Therefore, Varbero’s detention of plaintiff constituted a Terry stop requiring reasonable
suspicion.
Deputy Varbero nevertheless contends he is entitled to qualified immunity because it was
objectively reasonable for him to believe that reasonable suspicion existed to justify a Terry stop.
The Court is not persuaded.
A determination of reasonable suspicion depends on the totality of circumstances
“through the eyes of a reasonable and cautious police officer on the scene, guided by his
experience and training.” United States v. Padilla, 548 F.3d 179, 187 (2008). Here, a reasonable
jury could find Deputy Varbero’s seizure of plaintiff was not based on reasonable suspicion.

Varbero made his alleged threat to plaintiff inside the home after he had spoken with the
Connecticut State Trooper officers, who had informed him the situation did not involve a live
domestic violence issue but rather a custody dispute. Moreover, prior to his entry into the home,
Varbero spoke with Cotte and SR outside, further supporting the Connecticut State Troopers’
determination that the initial potential incident, that of a domestic violence situation involving a
minor child, was no longer active. Therefore, a reasonable jury could conclude Varbero did not
possess the requisite reasonable suspicion to detain plaintiff and threaten him to comply.
Admittedly, the evidence supporting plaintiff’s claim is extremely thin. Plaintiff only
points to this one remark as evidence that Deputy Varbero’s brief detention of him was unlawful.
Plaintiff does not contend Varbero touched him, exhibited force, displayed weapons, blocked
plaintiff’s ability to walk away, or otherwise indicated to plaintiff that he was not free to leave.
Yet a reasonable jury could still conclude that Deputy Varbero’s alleged threat made plaintiff
believe he was not “free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).

Therefore, construing the facts and drawing all reasonable inferences in plaintiff’s favor, there is
a genuine issue of material fact as to whether plaintiff was unlawfully seized under the Fourth
Amendment.
Accordingly, plaintiff’s Fourth Amendment claims against Deputy Varbero as to his entry
and search of the home must be dismissed, but plaintiff’s claim relating to Varbero’s allegedly
unconstitutional seizure may proceed.
III. State Law Claims
Pursuant to 28 U.S.C. § 1367(c), having dismissed the federal claims in case no.
22cv1874 over which it has original jurisdiction, the Court declines to exercise supplemental
jurisdiction over plaintiff’s remaining state-law claim for trespass and false imprisonment against

the Town. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“[W]hen the federal-
law claims have dropped out of the lawsuit in its early stages and only state-law claims remain,
the federal court should decline the exercise of jurisdiction.”).
CONCLUSION
The motions for summary judgment are GRANTED IN PART and DENIED IN PART.
Plaintiff’s Fourth Amendment claim against Deputy Sherriff Thomas Varbero arising from his
alleged seizure of plaintiff may proceed. All other claims are dismissed.
The Court will conduct a case management conference in case no. 22cv1877 on October
14, 2025, at 3:30 p.m., to be held in person at the White Plains courthouse, Courtroom 620, at
which time counsel shall be prepared to discuss, among other things, the setting of a trial date
and a schedule for pretrial submissions, as well as what good faith efforts they have made and
will continue to make to settle this case. To be clear, counsel shall discuss settlement in good
faith prior to that date.
The Clerk is instructed to terminate the motions. (Docs. ##134, 142 in 22cv1874; Doc.
#63 in 22cv1877).
The Clerk is further instructed to close case no. 22cv1874.
Dated: September 9, 2025
White Plains, NY
SO ORDERED:

Vincent L.Briccetti
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11183079. Public record. Not legal advice.