Opinion
June 13, 1994
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court acted properly in denying the appellants' motion to dismiss the action against them on the ground of qualified immunity. While the applicability of this doctrine to a given case should be resolved at the earliest appropriate stage of the litigation (see, Hunter v. Bryant, 502 U.S. 224, 112 S Ct 534), "[a] factual inquiry may be necessary to determine if [qualified] immunity is available" (Krause v. Bennett, 887 F.2d 362, 368). Although the appellants contend that their warrantless re-entry into the plaintiff's premises was based on their objectively reasonable belief that they had consent to do so or that the re-entry was justified by adequate exigent circumstances, the affidavits and documents in the record demonstrate that there are sharp factual disputes regarding these issues (see, e.g., Hurlman v. Rice, 927 F.2d 74). Moreover, the parties have submitted conflicting evidence regarding the scope of the search itself, an issue which bears directly on the question of the appellants' potential liability. Accordingly, the question of whether the appellants are entitled to qualified immunity cannot be resolved on the present record and must await discovery or, if necessary, a plenary trial. Sullivan, J.P., Balletta, Altman and Friedmann, JJ., concur.