Liang v. City of New York et al

Filing 63

MEMORANDUM AND ORDER: The 53 Motion to Dismiss for Failure to State a Claim of New York City and its defendant employees is granted. All claims against them are dismissed, except for Liang's § 1983 claim for unreasonable search and seizure under the Fourth Amendment. That claim survives, but only as to defendants Zee, Hawkins, Shim, Vaughn, Conforti, and Michetti. So Ordered by Judge Eric N. Vitaliano on 9/18/2013. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------- x
GARY LIANG,
Plaintiff,
-againstTHE CITY OF NEW YORK; RAYMOND KELLY,
Commissioner of the New York City Police
Department; BRIAN J. MAGUIRE, Deputy Inspector:
ofNYPD 109th Precinct; NEW YORK CITY
POLICE DEPARTMENT; DETECTIVE ROBERT
ZEE, individually and in his official capacity as a
detective in the New York City Police Department;
DETECTIVE ALBERT HAWKINS, individually and :
in his official capacity as a detective in the New York
City Police Department; DETECTIVE SHIM,
individually and in his official capacity as a detective
in the New York City Police Department;
DETECTIVE CHRISTOPHER VAUGHN,
individually and in his official capacity as a detective
in the New York City Police Department;
DETECTIVE SCALI, individually and in his official
capacity as a detective in the New York City Police
. Department; LIEUTENANT CONFORTI,
individually and in his official capacity as a lieutenant:
in the New York City Police Department;
SERGEANT MICHETTI, individually and in his
official capacity as a sergeant in the New York City
Police Department; SERGEANT NATOLI,
individually and in his official capacity as a sergeant
in the New York City Police Department; "JOHN
DOE," individually and in his official capacity as a
New York City police officer, "JOHN DOE" being a
fictitious name, the true name not known at this time; :
"JANE DOE," individually and in her official
capacity as a New York City police offer, "JANE
DOE" being a fictitious name, the true name not
known at this time; XIN XU; BEi WANG; DA PENG:
SONG; IVAN QUEK, aka IVAN SUN; and YI JING
TAN, aka "KERRY,"
Defendants.
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1

MEMORANDUM AND
ORDER
1O-CV-3089 (ENV) (VVP)

VITALIANO, D.J.
Plaintiff Gary Liang brings this civil rights action against defendants the City
of New York ("the City"), the New York Police Department ("NYPD"), Police
Commissioner Raymond Kelly, Deputy Inspector Brian Maguire, Captain 1 Thomas
Conforti, Sergeant Michetti,2 Sergeant Brian Natoli, Detectives Robert Zee, Albert
Hawkins, Jae Shim, Christopher Vaughn, and Edward Scali, and Police Officers
"John Doe" and "Jane Doe" (collectively "the City defendants"), as well as against
Xin Xu, Bei Wang, Da Peng Song, Ivan Quek (aka Ivan Sun) and Yi Jing Tan (aka
Kerry Tan), individuals unaffiliated with the City (collectively "the non-City
defendants"). Liang alleges violations of his constitutional rights relating to three
occasions on which he was arrested. In his amended complaint, plaintiff sues the
City and NYPD as institutional entities, defendants Kelly and Maguire in their
official capacities, defendants Zee, Hawkins, Shim, Vaughn, Scali, Conforti,
Michetti, Natoli, "John Doe," and "Jane Doe" in both their official and personal
capacities, and all non-City defendants personally. (Am. Compl. (Dkt. No. 2) ~~ 826). The City defendants now move under Rule 12(b)(6) to dismiss all counts against

1

Captain Conforti is listed in the complaint as a lieutenant, but, according to the
City defendants, his current rank is that of captain.
2

Plaintiff did not provide a first name for Sergeant Michetti. Defendants state that
they have been unable to identify any such individual and have received no request
for legal representation by anyone of that name. (City Defs.' Mem. (Dkt. No. 55) at 1
n.l). However, as a purported officer in the NYPD, the Court considers him among
the City defendants and considers their arguments on his behalf.
2

them except for plaintiff's claim for unreasonable search and seizure. 3 For the
reasons discussed below, the motion is granted.
Factual Background
Liang claims that this§ 1983 action springs from the fact, he believes, that he
is or was the target of a large conspiracy involving all defendants to deprive him of
his civil rights. He alleges that the City defendants falsely arrested him on three
occasions in response to the non-City defendants' bribes or improper gratuities and
false complaints. (Am. Compl. ~~ 145-149). 4 He alleges further that, in the case of
each arrest, NYPD officers unlawfully seized or searched his belongings,
44), failed to read him his Miranda rights, (id.
from him,

(id.~

hours, (id.

~

~

(id.~~

143-

90), declined to take a statement

91), prohibited him from contacting counsel for approximately 12

92), and detained him for approximately 24 hours. (Id.

~

93). The

charges stemming from all three arrests were dismissed on speedy trial grounds,
pursuant to New York Criminal Procedure Law§ 30.30.

(Id.~~

53, 80, 89, 147(h)).

At the center of the litigation vortex is defendant Tan, with whom Liang had been

3

Although they have not moved to dismiss this count, the City defendants have
hardly conceded it. They have reserved what is certainly the right to move for
summary judgment later. (City Defs.' Mem. at 1 n.2).

4

According to plaintiff, the City defendants received "benefits" from the civilian
defendants that included a demo line for unlimited cell phone calls and cell phone
accounts; in exchange, City defendants "took the cell phone business from [p]laintiff
and gave it to [defendant] Tan." (Pl.'s Mem. (Dkt. No. 56) at 11).
3

romantically involved from 1999 through 2007 5 and with whom he co-owned several
businesses. (Id.
I.

~~

27-28.)

The July 9 Arrest
On or about July 5, 2007, Tan filed a complaint with NYPD's 109th Precinct

in Queens. (Deel. of Elizabeth Norris Krasnow in Support of City Defs.' Mot. to
Dismiss ("Krasnow Deel.") (Dkt. No. 54), Exh. B). During her interview with
Detective Zee, Tan claimed Liang assaulted her and stole $5000 from her
pocketbook before departing for Shanghai. (Id.). She showed Detective Zee bruises
on her arms and legs that she attributed to Liang, and informed the detective that
Liang would be returning from Shanghai on the night of July 8, 2007. (Id; Krasnow
Deel., Exh. E). On that date, Detectives Zee and Shim met plaintiff at the airport
and Detective Zee arrested him (without a warrant, according to Liang) for
burglary, robbery, and assault. (Krasnow Deel., Exhs. D, E; Am. Compl. ~~ 36-44). 6
According to Liang, Zee claimed that the laptop Liang was carrying belonged to
Tan, and seized both the laptop and Liang's passport. (Am. Compl. ~ 45).
Additionally, Tan was at the 109th Precinct when Liang was brought in; she was
permitted to search his belongings and to take several items, including Liang's

5

Tan asserts in her answer that the relationship began in 2002 (Def. Tan's Ans.
(Dkt. No. 38) ~ 5), but on a motion to dismiss, the Court must accept as true all
factual allegations in the complaint and decide factual disputes in favor of the nonmoving party. See Midouin v. Downey Savings and Loan Ass'n, F.A., 834 F. Supp.
2d. 95, 102 (E.D.N.Y. 2011).
6

The arrest was actually made shortly after midnight on July 9. (Exh. D).
4

apartment keys and ATM card. (Id.~~ 49-50). Liang alleges that he received no
property voucher for any of the items that were taken from him, and that none of
the seizures were documented. (Id. ~ 46).
II.

The February 28 Arrest
On January 30, 2008, Tan obtained an order of protection against plaintiff

("the January 30 order of protection"). (Id. ~ 54; Krasnow Deel., Exh. F). The order
forbade Liang from communicating with Tan or going to her residence/place of
business, but permitted "incidental contact at work and apartment," (Exh. F),
presumably because Liang and Tan co-owned properties and businesses. The
addresses where Liang and Tan had joint interest are not explicitly listed on the
order of protection. On February 28, 2008, Liang went with three friends to 41-40
Kissena Boulevard. {Am. Compl. ~ 57). Although the amended complaint is not
entirely clear on this point, it seems to indicate that 41-40 Kissena Boulevard housed
EW Studio, a business Liang and Tan jointly owned. (Id.

~~

29, 64). Liang claims he

had learned that Tan "had started her own company and had attempted to have the
landlord assign the lease to this new company." (Id.

~

57). The purpose of Liang's

visit, he claims, was to defend his property. 7 Upon encountering several people at
the premises he determined were Tan's employees, and who are now also non-City

7

Liang does not identify the landlord of 40-41 Kissena Boulevard.
5

8

defendants, Liang called the police to report the intruders' presence in his store.
(Id., 59).

Two uniformed officers arrived in response to Liang's call. (Id. , 60). Shortly
thereafter, Detectives Zee, Shim, and Hawkins arrived at the scene in plain clothes,
but in response to a complaint by Tan, which they received by radio dispatch.
(Krasnow Deel., Exh. H). The three detectives instructed the uniformed officers to
"step aside," explaining that Liang was not permitted to be on the premises. (Id.
, , 61-63). Liang pointed out indicia of his business ownership-namely, two licenses
on the wall bearing the name of one of Liang's companies, certificates of
incorporation, and stock certificates. (Id. , , 65-66). However, Detective Shim
discounted those business authorizations in favor of a customer's invoice that
displayed the new company's name, "Sagar Wireless." (Id. , , 63, 67).
Next, Liang claims, Detective Zee searched his belongings without his
permission, then instructed the uniformed officers to arrest him and one of his
friends. (Id.,, 69-70). Following his arrest, Liang was charged, in a complaint
authored by Detective Hawkins, with criminal contempt (violation of an order of
protection) and trespassing. (Id., 71; Exh. G). The next day, February 29, Tan
obtained a second order of protection prohibiting Liang from going to her residence

8

It is unclear precisely which non-City defendants were at the store when Liang

arrived. The criminal complaint filed against Liang mentions Wang (Krasnow Deel.,
Exh. G); Tan mentions Wang and Song in her statement (Krasnow Deel., Exh. K);
and the Amended Complaint mentions Quek. (Am. Compl. , 58). That someone was
there is not disputed; the identities of the entire cast are disputed, but the issue is
immaterial to this motion.
6

or place of business and from contacting her ("the February 29 order of
protection"). (Krasnow Deel., Exh. L).
III.

The June 18 Arrest
On March 24, 2008, in response to a complaint filed by Tan, Detective

Vaughn issued a criminal complaint against Liang charging him with violating the
February 29 order of protection by contacting Tan two days earlier and threatening
to kill her. (Krasnow Deel., Exhs. M, S; Am. Compl., 81). On or around 8 p.m. on
May 30, Detective Vaughn and four other detectives went to plaintiff's apartment.
(Am. Compl. , , 82-83). After learning Liang was out, Detective Vaughn left his card
with plaintiff's doorman. (Id.) On June 18, 2008, Liang voluntarily surrendered at
the 109th Precincts station house and was arrested by Detective Vaughn. (Id. , 84;
Krasnow Deel., Exh. T). Liang claims he had an alibi for March 22, 2008, the date of
the alleged violation, but that Detective Vaughn refused to take his statement. (Am.
Compl. , , 87-88).
IV.

Liang's Post-Arrest Allegations
Liang relies on a number of happenings that occurred after one or more of

the arrests. First, he claims that, on July 9, 2007, Detective Zee, and/or someone
affiliated with Detective Zee and at his behest, went to the office of Allen Chiu,
Liang's attorney, and threatened him not to close on a real estate transaction that
Liang and Tan had negotiated earlier to transfer a condo from Tan to Liang's
mother. (Id.,, 31, 52). Second, he alleges that, on or about July 13, 2007, Detective
Zee "activated a demo line phone, which allows the user to make free calls to any
7

number and is supposed to be reserved to either mobile phone carrier employees or
affiliates." (Id., 55). Third, he alleges that, "on or about November 10, 2007,
Defendant Hawkins activated a wireless account with EW Studio Inc., one of
Plaintiff's businesses." (Id. , 56).
Liang next claims that, on or about September 23, 2008, an otherwise
unidentified "Judge Grace" issued an order enjoining Tan, Tan's employees, and
her "agents" from conducting business at 41-40 Kissena Boulevard and enjoining
Tan from interfering with EW Studio's business operations. (Id. , 98). On or about
October 28, 2008, Liang further asserts, Steve Wong, to whom he had granted
power of attorney, attempted to execute the "order" issued by "Judge Grace." That
effort was stymied, however, when Tan's employees refused to leave the store
premises. When Wong and an otherwise unidentified "retired police officer Phil"
went to 41-40 Kissena Boulevard accompanied by two officers, one of Tan's
employees, he alleges, contacted Detective Zee, who then spoke with the officers who
had accompanied Wong to the premises. (Id.,, 99-105).
Following this episode, plaintiff claims that, in October and November of
2008, Defendant Scali convinced two individuals-Xiao Yun Li and "retired police

officer Phil"- to falsely accuse him of plotting to murder Detective Zee. (Id. , , 10607). Liang also alleges that Detectives Conforti and Michetti took from him the key

to the store at 41-40 Kissena Boulevard on December 2, 2008 and gave it to Tan. (Id.
, , 109-112). Finally, Liang asserts that, on May 27, 2010, he received a letter from

8

the NYPD Investigations Unit in response to two complaints 9 he had filed against
Detective Zee, stating there was sufficient evidence to prove misconduct against the
detective. (Id.
V.

~~

96-97, 119-120).

Liang's Causes of Action
Liang's 13-count complaint asserts federal causes of action based on denial of

equal protection of the law in violation of the Fourteenth Amendment (Count 1),
unreasonable search and seizure of property in violation of the Fourth Amendment
(Count 2), false arrest in violation of the Fourth Amendment (Count 3), civil
violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO")
(Count 5), conspiracy to violate his civil rights under 42 U.S.C. §1985 10 (Count 10),
and violations of his civil rights under 42 U.S.C. § 1983 (Counts 11-13). 11 Liang also
asserts supplemental state law claims for unlawful detention and confinement
(Count 4), filing of false criminal complaints (Count 6), violations of parallel rights
under the New York state constitution (Count 7), tortious interference with a
contract (Count 8), violation of the state's police power (Count 9), and negligent

9

Liang submitted the first of these complaints on July 11, 2008, and the second on
or about September 18, 2008, after allegedly seeing Detective Zee walking out of the
store at 41-40 Kissena Boulevard. (Am. Compl. ~~ 96-97).
10

Although plaintiff does not specifically cite 42 U.S.C. § 1985 in this count, it is
clear from the context of the complaint that he intends to assert this cause of action.
11

Counts 1, 2 and 3 are folded into Liang's § 1983 claim, which is the statutory
vehicle by which an individual may assert a private cause of action against state
officials for federal constitutional injuries.
9

supervision (Count 10). As relief, plaintiff seeks, among other things, compensatory
damages and injunctions against both the City and non-City defendants.
Standard of Review
I.

Stating a Claim
When evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim,

the Court must assume the truth of "all well-pleaded, nonconclusory factual
allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123
(2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). To survive the motion,
the complaint must allege facts sufficient to "state a claim to relief that is plausible
on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plausible claim is
one that "allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556 U.S. at 678. To the extent there are
disagreements or ambiguities of fact, the Court must construe all the facts in a light
most favorable to the plaintiff and draw all reasonable inferences in his favor. See

Matson v. Board of Educ. o/CitySchoo/Dist. o/New York, 631F.3d57, 72 (2d Cir.
2011).
However, the court need not accept as true legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Moreover, "a
pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (internal
citations and quotations omitted). On the other hand, "a complaint need not pin
10

plaintifrs claim for relief to a precise legal theory." Skinner v. Switzer, 131 S. Ct.
1289, 1296 (2011). All that is required is "a plausible 'short and plain' statement of
the plaintiff's claim, not an exposition of his legal argument." Id.
II.

Consideration of Materials Outside the Pleadings
"(O]n a motion to dismiss, a court may only consider (l] the pleading itself,

[2] documents that are referenced in the complaint, [3] documents that the plaintiff
relied on in bringing suit and that are either in the plaintiff's possession or that the
plaintiff knew of when bringing suit, and [4] matters of which judicial notice may be
taken." Arrocha v. City Univ. of New York, 878 F. Supp. 2d. 364, 368 (E.D.N.Y. 2012)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) and Int'/

Audiotext Network, Inc. v. Am. Tel.& Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).
Throughout their briefing, the City defendants refer to various extrinsic documents
they have submitted to the Court as exhibits to the Krasnow Declaration. These
exhibits are as follows: Liang's amended complaint (Exh. A); arrest or complaint
reports (Exhs. D, H, J, M); resulting criminal complaints and their supporting
affidavits (Exhs. E, G, K, U); complaint follow-up reports (or DD5s) (Exhs. B-C, NT); the two orders of protection issued against plaintiff (Exhs. F, L); and an invoice
from the 41-40 Kissena Boulevard store (Exh. I).
There is no dispute that Liang's amended complaint is properly considered
on a motion to dismiss. However, Liang contends that none of the City defendants'
other exhibits fall within any of the four fair game categories described in Arrocha.

(See Pl.'s Mem. at 3). The City defendants press their consideration, claiming that
11

all exhibits have been implicitly incorporated by reference into the complaint and/or
are proper for judicial notice. (See City Defs.' Reply (Dkt. No. 58) at 1-3). All but
the invoice (Exh. I), the Court finds, are properly considered on this motion.
To start, throughout his complaint, Liang explicitly references and relies
upon a number of the exhibits he now seeks to exclude from the Court's
consideration. These documents include the first criminal complaint preferred
against Liang, (see Am. Com pl.~~ 33, 146(a)), the first order of protection, (see id.
~~

54, 75, 86, 88), the second criminal complaint, (see

id.~~

73, 147(a)), supporting

affidavits made by Tan, Song, and Wang on March 12, 2008, (see id.
77), and the second order of protection. (See

id.~

~~

73-74, 76-

79). Exhibits E, F, G, K, and L,

therefore, are clearly incorporated by reference into the complaint, and the Court
may consider them as though they were part of the complaint itself.
With the exception of Exhibit I (the invoice), the remaining exhibits are all
either complaint reports (Exhs. H, M), follow-up reports to the complaint (DD5s)
(Exhs. B-C, N-T), arrest reports (Exhs. D, J), or documents filed in a court of record
(Exhs. U, V). 12 The Court may take judicial notice of these materials, as they are in
the public record. See Wims v. New York City Police Dep't., No. 10-Civ-6128,2011
WL 2946369, at *2 (S.D.N.Y. July 20, 2011) (a district court may take judicial notice
of "arrest reports, criminal complaints, indictments and criminal disposition data"
12

Although Liang explicitly references a complaint filed against him regarding the
third incident for which he was arrested, he dates this complaint March 22, 2008.
(Am. Compl. ~~ 81, 148(a)). Exhibit Vis dated July 18, 2008, and is therefore not
incorporated by reference into the complaint.
12

when deciding a 12(b)(6) motion); Obilo v. City Univ. of City of New York, No. OlCV-5118, 2003 WL 1809471, at *5 (E.D.N.Y. Apr. 07, 2003) ("[J]udicial notice can
be taken of the incident report, police complaint and two DD5s completed by
[defendant police officer]."); Wingate v. Deas, No. 11-CV-1000, 2012 WL 1134893,
at *1 n.1 (E.D.N.Y. Apr. 02, 2012) (taking judicial notice of arrest reports); Canessa

v. Cnty. of Suffolk, No. 09-CV-3256, 2010 WL 1438822, at *1-2 (E.D.N.Y. Apr. 10,
2010) (taking judicial notice of arrest records). Consequently, the Court may
consider these records as well, but only to establish "their existence and legal
effect," or to "determine what statements [they] contained ... not for the truth of
the matters asserted." Twine v. Four Unknown New York Police Officers, No. 10-cv6622 , 2012 WL 6184014, at *7 (S.D.N. Y., Dec. 12, 2012); see also Roth v. Jennings,
489 F.3d 499, 509 (2d Cir. 2007) (internal quotation marks and emphases omitted).
Discussion
I.

Claims Against NYPD
Among the flock of defendants sued by Liang is NYPD. But, as an

organizational entity, NYPD is not a proper defendant, since agencies of New York
City do not have a separate legal identity from the City. See, e.g., Nnebe v. Daus, 644
F.3d 147, 158 n.6 (2d Cir. 2011) ("It is well settled in this Court that, as a general
matter, agencies of New York City are not suable entities in§ 1983 actions.");

Graham v. City of New York, 869 F. Supp. 2d. 337, 348 (E.D.N.Y. 2012) ("'All actions
and proceedings for the recovery of penalties for the violation of any law shall be
brought in the name of the city of New York and not in that of any agency, except
13

where otherwise provided by law."') (quoting N.Y. City. Charter, Ch. 17 § 396);
Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) ("The district court
correctly noted that the NYPD is a non-suable agency of the City."). Accordingly, all
claims against the NYPD are dismissed with prejudice.
II.

Claims Against All Other City Defendants
a. The Legal Framework for§ 1983 Claims
"Section 1983 provides a civil claim for damages against any person who,

acting under color of state law, deprives another of a right, privilege or immunity
secured by the Constitution or the laws of the United States." Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993). "Section 1983 itself creates no substantive rights; it
provides only a procedure for redress for the deprivation of rights established
elsewhere. In order to prevail on a section 1983 claim, the plaintiff must show that
the defendant's conduct deprived him of a federal right." Id. (internal citations
omitted). Although individual state officials, such as police officers, may be liable
under§ 1983 in their individual capacities, they may assert an affirmative defense of
qualified immunity if "(1) their conduct does not violate clearly established
constitutional rights, or (2) it was objectively reasonable for them to believe their
acts did not violate those rights." Southerland v. City of New York, 680 F.3d 127, 141
(2d Cir. 2012) (internal quotations omitted). "A right is 'clearly established' when
the contours of the right are sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id. (internal quotations and

14

alterations omitted). An officer's actions are "objectively reasonable" if "officers of
reasonable competence could disagree on the legality of the action at issue in its
particular factual context." Id. (internal quotations omitted).

b. False Arrest Claims
Claims for false arrest under § 1983 are based on the Fourth Amendment's
protection against unreasonable seizures, which includes the right to remain free
from arrest absent probable cause. See, e.g., Jaegly v. Couch, 439 F.3d 149, 151 (2d
Cir. 2006). It is well established in the Second Circuit that "[p]robable cause is a
complete defense to an action for false arrest brought under New York Law or
§ 1983." Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (internal
quotations omitted); accord Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118-19 (2d
Cir. 1995); Jaegly, 439 F.3d at 151. Courts will dismiss a claim for false arrest if the
complaint is devoid of facts showing that the arresting officer could not have
reasonably concluded that there was probable cause to make the arrest. See, e.g.,

Kennie v. White Plains Police Dep't Vice Control Unit, 108 F.3d 1369, at *2 (2d Cir.
1997); Kafafian v. Young, 477 Fed.Appx. 762, at *1 (2d Cir. 2012); Pugach v.

Ventrella, 152 F.3d 920, at *1 (2d Cir. 1998).
In general, an officer has probable cause to make an arrest if he has
"knowledge or reasonably trustworthy information of facts and circumstances that
are sufficient to warrant a person of reasonable caution in the belief that the person
to be arrested has committed or is committing a crime." Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996). Probable cause exists as a matter of law when there is no
15

dispute as to the relevant facts and officers' knowledge at the time of arrest. See also

Fabrikant v. French, 691 F.3d 193, 217 (2nd Cir. 2012) ("Probable cause
encompasses only that information available to the arresting officer prior to and
including the point of seizure.") (internal quotations omitted). When information is
received from a putative victim or eyewitness, probable cause exists "unless the
circumstances raise doubt as to the person's veracity." Curley v. Viii. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001).
As the record makes clear, the City defendants had, at the very least, a
reasonable basis to find probable cause when arresting Liang on each of the three
occasions described in the complaint. Each arrest either followed a complaint made
by civilians Tan, Wang, and/or Song to officers at the 109th Precinct. That these
complainants would later be named as defendants in this action is irrelevant to the
analysis of the false arrest claims lodged against the City defendants. Each citizen
complaint to the police involved allegations that Liang had committed (or was in the
process of committing) a crime, or had violated (or was in the process of violating)
an order of protection, or both. The record on this motion supports those facts
convincingly, and, other than his naked assertion of conspiracy, Liang offers not a
single plausibly pleaded fact to the contrary. Surely, Liang protested his innocence
to the arresting officers, but points to nothing to show why it was unreasonable for
them to believe the contrary claims that established probable cause to arrest him.
His false arrest claims therefore fall short. See, e.g., Coyle v. Coyle, 354 F. Supp. 2d
207, 211-12 (E.D.N.Y. 2005) (dismissing false arrest claims on a 12(b)(6) motion
16

because officers had no reason to doubt victim's statement that plaintiff violated a
restraining order).
Specifically, regarding the July 9, 2007 arrest, Tan filed a criminal complaint
with the 109th Precinct three days before the arrest, alleging that Liang physically
assaulted her, took $5000 from her pocketbook, and used the money to purchase a
round-trip ticket to Shanghai. (Am. Compl. , 33; Exh. B). The complainant even
advised that plaintiff had a return ticket for July 8. (Id.). As reflected in Exhibit E to
the Krasnow Declarations-the criminal complaint issued against Liang in New
York Criminal Court, Queens County-Detective Zee personally interviewed Tan
on July 5. (Exh. E). Consistent with her allegations, he observed bruises on her arms
and legs. (Id.).
With a powerful effect on this claim, opposite the one he intended, Liang
acknowledges Tan made these statements to Detective Zee, but claims that her
statements were "false," and asserts that Detective Zee did not conduct an
investigation to verify her claims before making the arrest. (Am. Compl. , 34).
Simply, "[t]he actual accuracy or veracity of [a witness's] statement is irrelevant to
a determination of whether [an officer] had arguable probable cause. Rather, the
question is whether [the officer] could have reasonably relied on it." Escalera v.

Lunn, 361 F.3d 737, 745 (2d Cir. 2004). Although Tan's complaint alone would have
been sufficient for probable cause, even without further verification, Detective Zee
visually confirmed that she had injuries consistent with her allegations of assault.
(Exh. E). There can be no contest that Detective Zee had, at a minimum, an
17

objectively reasonable basis to find probable cause. Indeed, he had probable cause.

See, e.g., Obilo, 2003 WL 1809471, at *7 (victim's identification of plaintiff as her
assailant, as well as visible bruises on her arms, supplied arresting officer with
probable cause). 13
If anything, the circumstances surrounding the February 28 arrest, including

breach of the stay away order, demonstrate an even more compelling showing of
probable cause. Detectives Zee, Hawkins, and Shim arrived at the Kissena
Boulevard address in response to a complaint from Tan alleging that Liang had
entered the store, in violation of the January 30 order of protection, and was
threatening and harassing her employees, Song and Wang. (Exhs. G-H, K). In line
with ordinary police procedures, the arresting officers, the record shows, were
dispatched to the store via NYPD's control radio communications. Courts in this
circuit have repeatedly found that, in the absence of reason to doubt the
complainant, an allegation that an individual has violated a stay away order
supports probable cause for arrest. See, e.g., Jaegly, 439 F.3d at 151; Carthew v.

Cnty. of Suffolk, 709 F. Supp. 2d 188, 197 (E.D.N.Y. 2010) (dismissing false arrest
claims because officer had probable cause based on report that plaintiff violated
order of protection); Dudley v. Torres, No. 05-CV-1729, 2008 WL 2149603, at *4-5

13

Liang also asserts a false arrest claim against Detective Shim in connection with
the July 9 arrest. However, in the complaint, Liang merely alleges that he saw
Detective Shim at the airport when he was being escorted a customs agent. (Am.
Compl. ~ 37). This allegation cannot support a claim against Detective Shim for
false arrest, and the count is dismissed as to that defendant as well.
18

(E.D.N.Y. May 21, 2008) (finding probable cause for an arrest based on plaintiff's
alleged violation of a stay away order, despite plaintiff's statement that he "didn't
do anything"); Welch v. City of New York, 95-Civ-8953, 1997 WL 436382, at *5
(S.D.N.Y. Aug. 4, 1997) (finding probable cause to arrest plaintiff for violation of an
expired order of protection because officer had a reasonable basis to believe it was
still in effect), affd, 166 F.3d 1203 (2d Cir. 1998) (summary order).
Once again, Liang pleads no facts supporting even an inference that any of
the City defendants had reason to doubt the information provided by Wang, Song,
or Tan. Indeed, he readily admits to the existence of the January 30 order of
protection, which explicitly directed him to avoid Tan's "place of employment."
(Exh. F). Although the Kissena Boulevard address was not explicitly mentioned in
the order, it was certainly reasonable for the officers to conclude that the store at
that address constituted Tan's "place of employment," since she told the officers
that it was "[her] business." (Exh. H). Nothing in any pleading or paper filed by
plaintiff suggests Tan's business was not located at that address. Moreover, as the
Complaint Report specifies, Tan alleged that Liang "did steal and hold in his
possession a cell phone contract which he removed from the office without
authority," (id.), another allegation Liang does not deny anywhere in his pleadings.
As a result, without a reason to disbelieve the complainants, the officers had an
objectively reasonable basis to conclude that there was probable cause to arrest
Liang on the evening of February 28, 2008.

19

Liang sees a firewall barring dismissal. He correctly observes that the
January 30 stay away order still permitted "incidental contact ... at work and
apartment." (Id.; Am. Comp. ~~ 54, 75). This limited option avails him nothing. But,
the contact on February 28 was far from "incidential." Liang states that he went
with three friends to the store that evening because "he heard that Defendant Tan
had started her own company and had attempted to have the landlord assign the
lease to a new company." (Am. Compl. ~ 57). By his own account, Liang went to the
store to provoke a confrontation, and to resort to self-help to recover what he
thought was rightfully his. Indeed, Liang stayed at the store for approximately two
hours, where, arrest records show, he threatened to beat up Song if he saw him in
the store again. (Exh. K). At a minimum, any officer aware of the January 30 order
would have had a reasonable basis to conclude that Liang had violated the order.
Admissions by plaintiff in his pleadings show that probable cause abounded.
Nor did that probable cause evaporate because, as Liang claims, the arresting
officers ignored his protestations and the visible indications that he owned and
operated the business at 40-41 Kissena Boulevard-namely, two Department of
Consumer Affairs licenses on the wall, certificates of incorporation, and stock
certificates. (Am. Com pl.~~ 64-66). All of it, of course, is beside the point. None of
it, even if authentic, provided an exception to the January 30 order of protection. At
that location, only "incidental" contact was excepted. And, obviously, business
ownership and its indicia would not excuse the threatening and harassing conduct

20

about which Tan and her employees complained to the police-crimes chargeable
independent of any criminal contempt charge for violating an order of protection.
But, clearly, notwithstanding any other objectively reasonable grounds to
conclude that probable cause to arrest Liang existed, the officers arrived at the store
to find a confrontational scene, as the pleadings describe, with an order of
protection barring the arrestee's presence there (except incidentally). This is enough
to establish probable cause, and no further investigation was required to justify the
arrest. See, e.g., Carthew, 709 F. Supp. 2d. at 197-99 (officers had probable cause
based on victims statements, despite "plaintiff's claim that the building was his
place of business and that [the victim] did not work there"); Dudley, 2008 WL
2149603 at *5; Welch, 1997 WL 436382 at *5. Indeed, "officers need not conduct an
investigation which exculpates an arrestee .... To hold otherwise would be to allow
every suspect, guilty or innocent, to avoid arrest simply by claiming 'it wasn't me."'

Dukes v. City of New York, 879 F. Supp. 335, 343 (S.D.N.Y. 1995) (internal citations
and quotations omitted); see also Curley, 268 F.3d at 70 ("[O]nce a police officer has
a reasonable basis for believing there is probable cause, he is not required to explore
and eliminate every theoretically plausible claim of innocence before making an
arrest.") (internal quotations omitted). 14

14

In any event, it is of no moment whether Liang owned and operated a business out
of 40-41 Kissena Boulevard, since stay away orders often forbid an individual from
entering a place he previously shared with the victim. See, e.g., Joan FF. v. Ivon
GG., 85 A.D.3d 1219, 1219-20, 924 N.Y.S.2d 611, 611 (3d Dep't 2011) (upholding
issuance of order of protection barring plaintiff from entering apartment he had
shared with victim); People v. Qike, 182 Misc.2d 737, 740, 700 N.Y.S.2d 640, 643
21

Liang's third arrest, which occurred on June 18, 2008, followed a similar
pattern. On February 29, 2008, Tan obtained a second order of protection against
Liang, the terms of which mirrored, or were stronger than, the January 30 order.
(Exh. L). On March 24, Tan filed a complaint with the 109th Precinct, alleging that
Liang had violated the second order two days earlier by harassing her by telephone.
(Exh. M). The harassing call demanded payment of $200,000. (Id.). Tans' complaint
also accused Liang of approaching her in the garage of the building in which they
both lived while brandishing a knife at her. (Exh. M). On June 18, after learning
that Detective Vaughn and other officers had been looking for him during the
previous days, Liang voluntarily surrendered at the police station. (Am. Compl.
~~

82-84). There, he was arrested for violating the February 29 order of protection

and was charged by a criminal complaint authored by Detective Vaughn. (Exh. U).
Once again, Liang fails to plead a plausible false arrest claim. Given the
antecedents of the arrest in the record, Liang is required, and fails, to offer reasons
why the arresting officers should have doubted Tan's veracity. Instead, he accuses
Detective Vaughn of refusing to credit his alibi for March 22, 2008. (Am. Compl.
~~

87-88). As discussed above, the case law makes clear that the officers were not

obliged to accept Liang's explanation of events over Tan's, and were permitted to

(Sup. Ct., Kings County, 1999) (defendant required to vacate apartment he shared
with victim after an order of protection was issued against him); People v. Scott, 195
Misc.2d 647, 649, 760 N.Y.S.2d 828, 830 (Sup. Ct., Kings County, 2003) (noting that
a home owner can be convicted of burglary for unlawfully entering his own home in
defiance of an order of protection).
22

arrest him based on Tan's allegations. Stated differently, the officers had an
objectively reasonable basis to believe that they had probable cause to arrest Liang
for violating the February 29 order of protection.
For these reasons, the Court finds that the officers had probable cause, or a
reasonable basis to find probable cause, on all three occasions Liang complains of.
Consequently, his§ 1983 claims and state law claims sounding in false arrest are
dismissed with prejudice against the City defendants.

c. Equal Protection Claims
In Count 1, Liang alleges that he was denied equal protection in violation of
the Fourteenth Amendment because the City defendants selectively enforced state
criminal laws against him. (Am. Compl. ~~ 130-141). Specifically, he claims that he
was selectively mistreated as compared to Tan on account of his gender. However,
he fails to plead facts supporting his otherwise speculative assertions. Any claim of
improper targeting for prosecution requires pleading of facts to support it. His
equal protection claim fails because he offers no such facts in his pleading. See, e.g.,

Kamholtz v. Yates County, 350 Fed. Appx. 589, 590 (2d Cir. 2009) (selective
enforcement claim lacking sufficient factual support in the complaint was properly
dismissed on a Rule 12(b)(6) motion); 33 Seminary LLC v. City of Binghamton, 869
F. Supp. 2d. 282, 309-10 (N.D.N.Y. 2012) (same).
Broadly, to succeed on a selective enforcement claim, a plaintiff must prove
that "(1) compared with others similarly situated, [he] was selectively treated; and
(2) that such selective treatment was based on impermissible considerations such as
23

race, religion, intent to inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person." See Brown v. Syracuse, 673 F.3d
141, 151-52 (2d Cir. 2012) (internal quotations omitted). There can be little doubt
that an arrestee's gender is an "impermissible consideration" for the purposes of a
selective enforcement claim. See, e.g., Annis v. County of Westchester, 136 F. 3d 239,
247-48 (2d Cir. 1998) (upholding jury's finding that county had selectively enforced
workplace rules against plaintiff on account of her gender).
However, Second Circuit courts appear split on how to define "similarly
situated." See Viteritti v. Inc. Viii. of Bayville, No. 10-CV-3283, 2013 WL 145811, *8
(E.D.N.Y. Jan. 14, 2013) (describing competing definitions of "similarly situated").
Under the stricter definition, the aggrieved party must show that "(i) no rational
person could regard the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential treatment on the basis of a
legitimate government policy; and (ii) the similarity in circumstances and difference
in treatment are sufficient to exclude the possibility that the [treatment selectors]
acted on the basis of a mistake." Id. (quoting Ruston v. Town Bd. for the Town of

Skaneateles, 610 F.3d 55, 58 (2d Cir.2010)). Under the looser standard, the aggrieved
party need only show that the comparator was or is "similarly situated in all
material respects." Viteritti, 2013 WL 145811 at *8 (quoting Vassallo v. Lando, 591
F. Supp. 2d. 172, 184 (E.D.N.Y. 2008)).
Even under the looser standard, Liang still cannot satisfy the threshold
showing described in Brown. He conclusorily states that he received disparate
24

treatment as compared to Tan, (see Am. Compl. ~~ 135-38), but, from his recitation
of the actual facts, it is readily apparent that the two were not "similarly situated in
all material respects." As discussed in section 11.b, supra, the City defendants
arrested Liang on all three occasions after specific allegations of criminal
behavior-physical abuse, verbal harassment, theft of property, violations of the
orders of protection, making threatening statements, and brandishing a weaponhad been leveled against him by the putative victims. By contrast, Liang does not
allege that he or anyone else ever made complaints about criminal behavior against
Tan at or around the time of his arrests, let alone the kinds of allegations that would
cause her to be "similarly situated in all material respects." On this ground alone,
his selective enforcement claim is subject to dismissal. See, e.g., Christian v. Town of

Riga, 649 F. Supp. 2d. 84, 94 (W.D.N.Y. 2009) (dismissing selective enforcement
claim because plaintiff failed to plead facts showing disparate treatment to similarly
situated individuals).
Assuming, arguendo, that Liang could satisfy Brown's first prong, his claim
would still fail on the second. Front and center are Liang's charge that law
enforcement selectively targeted him based on his gender, and/or their malicious
intent to deprive him of equal protection. What is missing from his pleadings is
something that plausibly pegs this claim to facts. Without even a whiff of facts other
than the gender difference between Liang and Tan, all that is offered are naked
assertions of discrimination. (See Am. Com pl.

~~

134-35, 137). They cannot survive

a 12(b)(6) motion. See, e.g., 33 Seminary LLC, 869 F. Supp. 2d. at 309-10 (plaintiffs
25

failed to satisfy second prong of selective enforcement claim because their claims
were based on "mere[ly] conclusory allegations"); John Gil Const., Inc. v. Riverso, 99
F. Supp. 2d. 345, 353 (S.D.N.Y. 2000) ("[P]laintiffs assertions of selective
enforcement and racial animus are wholly conclusory and unaccompanied by any
supporting factual allegations."); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d
Cir. 1987) ("[l]t is well settled that ... allegations which are nothing more than
broad, simple, and conclusory statements are insufficient to state a claim under
§ 1983."). Nor do they support Liang's claim here, which is dismissed with
prejudice.

d. Civil RICO Claims
Next for consideration are Liang's claims that he was injured by violations of
the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
§§ 1961 et seq. To maintain a civil action under RICO, a plaintiff must show "(l) a
violation of the RICO statute; (2) an injury to business or property; and (3) that the
injury was caused by the violation of RICO." Attorney General of Canada v. R.J.

Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 107 (2d Cir. 2001). To state a
violation of the RICO statute, the plaintiff must allege "(1) conduct (2) of an
enterprise 15 (3) through a pattern (4) of racketeering activity, which is defined to

15

The statute defines "enterprise" as "any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in
fact although not a legal entity." 18 U.S.C. § 1961(4).
26

16

include specified predicate acts." Zimmerman v. Poly Prep Country Day School, 888
F. Supp. 2d. 317, 327 (E.D.N.Y. 2012) (quoting Sedima, S.P.R.L. v. Imrex Co., 473
U.S. 479 (1985)). A plaintiff may also advance a cause of action for conspiracy to
violate RICO, regardless of whether the predicate acts were successfully carried out.

See 18 U.S.C. § 1962(d). Courts have required that "each predicate act ... be
articulated clearly in a civil RICO complaint. This articulation requirement is
particularly enforced when, as in the case at bar, a RICO civil conspiracy claim is
made." Rafter v. Bank ofAmerica, No. 04-Civ.-3341, 2009 WL 691929, at *14
(S.D.N.Y. Mar. 12, 2009).
Liang alleges that the City defendants violated RICO by harassing him and
taking false complaints against him. (Am. Compl.

~~

156-157, 160). He further

claims that the City defendants conspired together and with the non-City
defendants to violate his constitutional rights, harass and falsely arrest him, seize his
business and property, and accept benefits from the non-City defendants in order to
harm him. (Id.

~~

158-159, 161-164). His litany of injurious wrongs include

complaints that he suffered physical, emotional, mental, and financial harm as a
result of the conduct violating RICO. (Id.

~

16

165).

These predicate acts must fall within one of the following categories: a broadlydefined class of offenses encompassing most state-level felonies; an enumerated list
of federal felonies; certain offenses pertaining to union and labor activities; various
fraud offenses; acts indictable under the Currency and Foreign Transactions
Reporting Act; specified acts indictable under the Immigration and Nationality Act;
and any act that is indictable under any provision listed in 18 U.S.C. §
2332b(g)(5)(B). 18 U.S.C. § 1961(1). A "pattern of racketeering activity" means two
or more predicate acts separated by fewer than ten years. Id. § 1961(5).

27

At the pleading doorway, Liang's RICO claim against the City itself is
dismissed because, as many previous courts in this Circuit have held, "a municipal
corporation is incapable of having the criminal intent to support RICO's predicate
offense requirement." Brewer v. Viii. of Old Field, 311 F. Supp. 2d. 390, 398
(E.D.N.Y. 2004) (internal quotations and alterations omitted); see also, e.g., Rafter,
2009 WL 691929, at *15; Pilitz v. Inc. Viii. of Rockville Centre, No. 07-CV-4078, 2008
WL 4326996, at *5 (E.D.N.Y. Sept. 22, 2008); Interstate Flagging, Inc. v. Town of

Darien, 283 F. Supp. 2d. 641, 645-46 (D. Conn. 2003); Frooks v. Town of Cortlandt,
997 F. Supp. 438, 457 (S.D.N.Y.1998); Wee v. Rome Hosp., No. 93-CV-498, 1996 WL
191970, at *5 (N.D.N.Y. Apr. 15, 1996); 0 & K Trojan, Inc. v. Mun. & Contractors

Equipment Corp., 751 F. Supp. 431, 434 (S.D.N.Y. 1990); Nu-Life Construction Corp.
v. Bd. of Educ., 779 F. Supp. 248, 251 (E.D.N.Y. 1991). Furthermore, because the
City is immune to civil RICO liability, its individual officers and agents are similarly
immune in their official capacities. See, e.g., Frooks, 997 F. Supp. at 457 ("[B]ecause
the Town cannot be held liable under RICO as a matter oflaw, neither may the
Town employees in their official capacities."); Rini v. Zwirn, 886 F. Supp. 270, 295
(E.D.N.Y. 1995 ("[S]ince the municipality cannot be held liable for the acts of its
agents, the Town employees, in their official capacity, cannot be held liable under
RICO."). All civil RICO claims against the individual City defendants in their
official capacities are dismissed. See Wood v. Inc. Viii. of Patchogue of New York, 311
F. Supp. 2d. 344, 354 (E.D.N.Y. 2004).

28

Plaintiff fares no better on his individual capacity claims against the City
defendants. None of his allegations are more than "merely consistent" with these
officers' liability, had such liability otherwise been plausibly pleaded. Iqbal, 556 U.S.
at 678. Bluntly, he fails to state facts that plausibly allege racketeering activity.
Under§ 1961(1), "racketeering activity" encompasses an extensive catalogue of
prohibited activities that range from murder to mail fraud. 18 U.S.C. § 1961(1); see,

supra, p. 27 n.16. Liang's complaint cites none of the predicate offenses listed in
§ 1961(1). In their stead, he alleges in vague terms that the City defendants harassed
and accepted false complaints against him, and that they conspired with the nonCity defendants to do both of those things, as well as to violate his constitutional
rights, falsely arrest him, and seize his business and property. (Am. Compl.

~~

156-

164). None of these acts are among the possible predicate offenses listed in§ 1961(1).
Hinged to Liang's RICO claim, but an overtone throughout the entire
complaint, is his theory of a grand conspiracy-that the City defendants conspired
with non-City defendants to punish him and deprive him of his constitutional rights,
and did so corruptly (as RICO predicates) in exchange for bribes, gratuities, and
other benefits from Tan. (Id.

~~

2, 26, 180, 232, 159). The only "benefits" that Liang

points to are a demo phone line that Detective Zee allegedly activated, which
provides free cell phone calls, and a wireless account that Detective Hawkins opened
with EW Studio, one of the companies Tan and Liang had operated together. (Id.
55-56).

29

~~

Deemed true for the purposes of the motion, the fact train stops there.
Standing alone, these acts do not qualify as predicate RICO offenses, nor even
crimes. The void left by the absence of pleaded facts connecting any of the charged
conduct to a conspiracy is even more gaping. No facts supporting the existence a
criminal scheme of any kind are pleaded. See H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 239 (1989) (RICO conspiracy must involve a pattern of "related"

offenses that "amount to or pose a threat of continued criminal activity"). Indeed,
Liang does not even allege that Tan was responsible for providing Zee with access to
the demo line, or that Hawkins did not pay for the wireless account with EW Studio.
Liang's assertions, plainly, do not "allow[] the court to draw the reasonable
inference that the defendant[s]" are liable for violating RICO by taking bribes in a
conspiracy whose focal point is plaintiff's cell phone business. Iqbal, 556 U.S. at 678.
What remains of the wrongdoing charges offered to advance the RICO claim
are, at the end, Liang's allegations that Detective Zee and/or un unidentified
associate threatened Liang's attorney not to proceed with a real estate transaction;
that Defendant Scali convinced two individuals-Xiao Yun Li and an otherwise
unidentified "retired police officer Phil"-to falsely accuse him of plotting to
murder Detective Zee; that Liang had seen Detective Zee leaving the 41-40 Kissena
Boulevard store in September 2008; and that in response to two complaints he had
filed, the NYPD Investigations Unit informed Liang there was sufficient evidence to
prove unspecific misconduct charges against Detective Zee. (Am. Compl.
97, 106-107, 119-120).
30

~~

52, 96-

RICO requires more than a scattergun blast. Accepting as true, as the Court
must, the litany of peccadilloes pleaded by Liang (even those allegations that are not
criminal in nature), Liang pleads no facts showing a pattern of racketeering activity
within the meaning of RICO. Of the acts so alleged, only "threatening" (a
conclusory allegation) an attorney not to proceed with a legal transaction might
conceivably fall within one of the predicate offenses described in § 1961(1). Yet, at
the amended complaint stage, the nature of the putative "threat" is entirely
undescribed. In any case, a single predicate offense will not suffice. Rather, a
plaintiff must show a pattern of predicate offenses-at least two-such that the acts
are "related, and that they amount to or pose a threat of continued criminal activity."

H.J. Inc., 492 U.S. at 239 (emphasis added). Liang pleads no facts to suggest that the
City defendant have constructed a network of related and ongoing racketeering
activities. For this reason in isolation, his RICO claim fails against those defendants
involved in this list of alleged misdeeds.
Furthermore, Liang does not show the existence of an "enterprise" within the
meaning of RICO, which defines it as "group of persons associated together for a
common purpose of engaging in a course of conduct" and united by "an ongoing
organization, formal or informal, and by evidence that the various associates
function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583 (1981).
Although Liang levels most of his fire against officers or detectives from NYPD's
109th Precinct, the bullets are blank. He pleads no facts to support his conclusory
assertions that the City defendants constitute, control, or participate in an
31

enterprise with a distinguishable existence or purpose. Nor, from what is in the
record, may the Court infer the existence of an enterprise with the objective, as
plaintiff effectively claims, to persecute him through a pattern of racketeering
activity. Without such an enterprise, a RICO claim like Liang's must fail.
Finally, Liang accuses the City defendants of conspiring to violate RICO. The
requirements for maintaining a cause of action under§ 1962(d), which creates a
private right of action to bring RICO conspiracies to justice, "are less demanding"
than those for standard-issue RICO claims. To be liable, a '"conspirator must
intend to further an endeavor which, if completed, would satisfy all of the elements
of a substantive criminal offense, but it suffices that he adopt the goal of furthering
or facilitating the criminal endeavor."' Baisch v. Gallina, 346 F.3d 366, 376-77 (2d
Cir. 2003) (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)). "In the civil
context, a plaintiff must allege that the defendant knew about and agreed to
facilitate the scheme." Baisch, 346 F.3d at 377 (internal quotations omitted).
Liang's RICO conspiracy claim is no more meritorious than his standard
RICO claim, and for the simple (and identical) reason that he has pleaded no facts
suggesting either the kind of "scheme" described in Baisch or any enterprise intent
on executing such a scheme. To state a claim for a RICO conspiracy, "mere
allegations of agreement to commit predicate acts are insufficient." Browning Ave.

Realty Corp. v. Rosenshein, 774 F. Supp. 129, 145 (S.D.N.Y. 1991) (describing the
holding in Morin v. Trupin, 711 F. Supp. 97, 111-12 (S.D.N.Y. 1989)). At the core, a
plaintiff must plead facts from which a court may infer that a "meeting of the
32

minds" occurred between the defendants. Rosenshein, 774 F. Supp. at 145. Liang
fundamentally fails to meet that standard, pleading no facts to support the
conclusion that there was a meeting of the minds, or to permit even an inference
supporting it. As a result, all of Liang's RICO claims, including his claims alleging a
conspiracy to violate RICO, are dismissed as to the City defendants.

e. Claims Under 42 U.S.C. § 1985(3)
Civil rights law§ 1985(3) allows plaintiffs to sue state officials who have
conspired to violate their constitutional rights. Morpurgo v. Inc. Viii. of Sag Harbor,
697 F. Supp. 2d 309, 339 (E.D.N.Y. 2010). A plaintiff advancing such a claim must
plead facts that show: 1) a conspiracy; 2) for the purpose of depriving any person or
class of persons of the equal protection of the laws or of equal privileges and
immunities under the laws; and 3) an act in furtherance of the conspiracy; 4)
whereby a person is injured in his person or property or deprived of a right or
privilege of a citizen. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). A
conspiracy is "an agreement between two or more individuals where one acts in
further[ance] of the objective of the conspiracy and each member has knowledge of
the nature and scope of the agreement." Morpurgo, 697 F. Supp. 2d at 339. To
sustain a § 1985 claim, a "plaintiff must provide some factual basis supporting a
meeting of the minds, such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003).
Further, for a§ 1985(3) claim to survive dismissal, the conspiracy must also be
"motivated by some racial or perhaps otherwise class-based, invidious
33

discriminatory animus behind the conspirators' action." Thomas, 165 F.3d at 146
(internal quotations omitted).
Liang's § 1985(3) claim fails as a matter of law because, as discussed
previously, he has pleaded no facts suggesting a "meeting of the minds" among the
City defendants, or any subset of them, or by any one of them with any other
person, to violate his civil rights. Although his complaint states, for instance, that
"defendants acted together to deprive Plaintiff of equal protection and of forth (sic)
amendment protection from unlawful search and seizure," and that they "conspired
... to victimize the plaintiff and take his business away from him," (Am. Com pl.
~~

16-21, 206), these are textbook examples of the kinds of conclusory allegations

that are devoid of factual content. The crumbling point is Liang's failure to plead
facts to support a conspiratorial meeting of the minds. From plaintiff's vantage
point, the claim is nevertheless tantalizing. Given the nature of police work, seizure
of person and property (clearly a harm) is often the result of officers working
together as a team to execute a common plan. What is missing from the pleadings
are any facts plausibly showing that any of the City defendants' conduct was
prompted by a meeting of the minds to a commit a constitutional violation. See, e.g.,
Webb, 340 F.3d at 110 (rejecting a§ 1985(3) claim because "plaintiffs have not

alleged, except in the most conclusory fashion, that any such meeting of the minds
occurred among any or all of the defendants"); Boddie v. Schnieder, 105 F.3d 857,
862 (2d Cir. 1997) ("[A] complaint containing only conclusory, vague, or general

34

allegations of conspiracy to deprive a person of constitutional rights cannot
withstand a motion to dismiss.") (internal quotations omitted).
Furthermore, plaintiff's § 1985(3) claim presents no facts supporting the
charge that the conspiratorial harm flowed from "some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the conspirators' action."

Thomas, 165 F.3d at 146 (internal quotations omitted). Liang asserts that the City
defendants discriminated against him based on his gender and "arbitrarily chose[]
to support the female complainant." (Am. Compl.

~~

134, 137). Assuming that any

non-race based claims qualify, and assuming further that if gender claims do
qualify, that males fall within a protective umbrella, all there is to support such a
claim is Liang's bald assertions that gender drove the conspiracy. That is, as is his
entire claim, wholly without support. The § 1985(3) claims is dismissed.

f. Monell Claims
Liang also brings a claim for Monell liability against the City of New York
under§ 1983. A§ 1983 cause of action against a municipality cannot be premised on

respondeat superior. See Bd. of Cnty. Comm'rs of Bryan Cnty., Oki. v. Brown, 520
U.S. 397, 403 (1997). Instead, a plaintiff suing a city under§ 1983 must show: "(1)
actions taken under color of law; (2) deprivation of a constitutional or statutory
right; (3) causation; ( 4) damages; and (5) that an official policy of the municipality
caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.
2008) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978)); see also

Pearl v. City of Long Beach, 296 F.3d 76, 87 (2d Cir. 2002) (under Monell, "a
35

municipality could be held liable for constitutional torts committed pursuant to a
municipal custom or policy"). See also Roe, 542 F.3d at 36 ("[M]unicipal liability
under§ 1983 attaches where-and only where-a deliberate choice to follow a
course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in
question.").
Under Monell, an actionable municipal policy or custom exists in the
following circumstances:
(1) the existence of a formal policy which is officially endorsed by the
municipality; (2) actions taken or decisions made by municipal officials
with final decision making authority, which caused the alleged
violation of plaintiff's civil rights; (3) a practice so persistent and
widespread that it constitutes a custom of which constructive
knowledge can be implied on the part of the policymaking officials; or
(4) a failure by policymakers to properly train or supervise their
subordinates, amounting to 'deliberate indifference' to the rights of
those who come in contact with the municipal employees.

Bliven v. Hunt, 478 F. Supp. 2d. 332, 336-37 (E.D.N.Y. 2007) (citing Moray v. City of
Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y.1996)). If a plaintiff seeks to show a city policy
by referring to only a single act, that act must have been committed by a city official
"responsible for establishing final policy with respect to the subject matter in
question," and must represent a deliberate and considered choice among competing
alternatives. Pembaur v. City o/Cincinnati, 475 U.S. 469, 483-84 (1986). If the
plaintiff is challenging what he claims is an unofficial custom or practice of the city,
he must show that the practice was "so widespread as to have the force of law." Id.
(quoting Bd. o/Cnty. Comm'rs, 520 U.S. at 404). The custom "need not [have]
36

receive[d) formal approval by the appropriate decision-maker ... [but] plaintiff
must prove ... that [it] is permanent." Davis v. City of New York, 228 F. Supp. 2d.
327, 337 (S.D.N.Y. 2002) (internal citations omitted).
Plaintiff cannot establish a claim for Monell liability. He charges generally
that the City "maintains an unconstitutional policy, practice, and custom of
toleration and approval of their detectives receiving bribes from one party to harass
and assault another party," as well as "policies or customs exhibiting deliberate
indifference to the constitutional rights of victims of hate crimes in the jurisdiction
of the 109th precinct." (Am. Com pl.~~ 232-32). However, using the same whole
cloth throughout, the complaint is entirely devoid of facts to buttress these
assertions. Liang makes no claim, much less pleads facts showing, that the City has
enacted any sort of official policy pursuant to which his rights were violated, and his
allegations regarding an unofficial practice or custom are limited to the actions of
specific detectives in a single police unit and factually supported only by a pleader's
perceptions of his own experience.
Though accepted as true on the motion, these factual allegations show nothing
like the kind of "widespread" and "permanent" unconstitutional practices or
customs that Monell implicates. Nor does Liang include any facts showing that a
single city official with final decisionmaking authority had any awareness of the
supposed "policies or customs" he describes, let alone enacted, formulated, or
ratified those policies. Indeed, he actually pleads facts to the contrary-that NYPD's

37

Investigations Unit was investigating Liang's claims against Detective Zee actions
because they were out of policy. (See Am. Com pl. ~ 120).
Furthermore, Liang fails to plead facts indicating that the City's alleged
failure to properly train or supervise its police officers was so egregious as to
amount to "deliberate indifference" to the rights of individuals such as plaintiff.
Although he contends that defendants Conforti, Michetti, and Natoli negligently
supervised the officers under their command by failing to prevent the actions of
which he complains, that charge is but another factually unsupported conclusion. It
provides no prop for Monell liability.
Finally, as a related matter, Liang brings charges personally against Police
Commissioner Kelly and Deputy Inspector Maguire of the 109th Precinct in their
official capacities only. An official-capacity suit is in essence another avenue to sue
the government entity to which the agent belongs. See, e.g., Hafer v. Melo, 502 U.S.
21, 26, 112 S. Ct. 358 (1991) ("An official-capacity suit against a state officer is not a
suit against the official but rather is a suit against the official's office. As such it is
no different from a suit against the State itself.") (internal quotations omitted); 5

Borough Pawn, LLCv. City of New York, 640 F. Supp. 2d 268, 297 (S.D.N.Y. 2009)
("A suit for damages against a municipal officer in their official capacity is the
equivalent of a damage suit against the municipality itself.") (internal quotations
omitted). Consequently, Liang's claims against Commissioner Kelly and Deputy
Inspector Maguire, being equivalent to his Monell claim against the City, are
dismissed along with the claims against the City, and for the same reasons.
38

g. The Sole Remaining Federal Claim/or Unreasonable Search and
Seizure
The Court having dismissed Liang's federal claims for false arrest, denial of
equal protection, RICO violations, and conspiracy to violate civil rights, his sole
remaining federal cause of action is a § 1983 claim for unreasonable search and
seizure under the Fourth Amendment. Because the City defendants have explicitly
declined to include this claim in their motion to dismiss, and since the parties have
not briefed the issue, the Court does not address it. The Court does, though, observe
that Liang may only sue those officers who are alleged to have been personally
involved in the searches and/or seizures in question. See, e.g., Farrel v. Burke, 449
F.3d 470, 484 (2d Cir. 2006) ("It is well settled in [the Second] Circuit that personal

involvement of defendants in alleged constitutional deprivations is a prerequisite to
an award of damages under§ 1983.") (emphasis added) (internal quotations
omitted); Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986) (a plaintiff in a§ 1983
suit must allege "a tangible connection between the acts of the defendant and the
injuries suffered"). Therefore, though not deciding the viability of the claim in toto,
the Court notes these limiting parameters of case law. At no point does Liang plead
facts connecting defendants Kelly, Maguire, Scali, or Natoli to the relevant searches
or seizures in any personal manner. Accordingly, to the extent plaintiff's
unreasonable search and seizure claim intended to encompass these individual
defendants, those claims are dismissed by force of the Court's other determinations.

39

h. State Law Claims
Liang also interposes a slew of state law claims against the City defendants
that are largely duplicative of his federal claims. The Court shall address them in
turn.

17

First, he asserts a cause of action for unlawful detention and confinement,

which is fundamentally identical to his federal false arrest claim. (Am. Compl.
~~

151-154). For the reasons discussed in section 11.b, supra, the claim is dismissed.

Likewise, his cause of action for filing false complaints is effectively another
iteration of false arrest, (id. ~~ 167-178), and is dismissed as well.1 8
Next, Liang asserts a cause of action for tortious interference with contract.
(Id.~~

184-192). To succeed on such a claim, Liang would have to plead "(1) the

existence of a valid contract between plaintiff and a third party; (2) the defendant's
17

With regard to any state law claims, the Court may only exercise jurisdiction over
them if they are "so related" to his remaining federal claim for unreasonable search
and seizure "that they form part of the same case or controversy." Montejfore Med.
Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011) (quoting 28 U.S.C. §
1367(a)). That is, the claims "must stem from the same common nucleus of operative
fact," and "must be such that the plaintiff would ordinarily be expected to try them
all in one judicial proceeding." Montejfore Med. Ctr., 642 F.3d at 332 (citing United
Mine Workers ofAm. v. Gibbs, 383 U.S. 715, 725 (1966)).
18

In the fact section of his complaint, Liang alleges that defendant Scali convinced
two individuals-- Xiao Yun Li and an unidentified "Officer Phil"- to accuse Laing
of "want[ing]" and "attempting" to murder defendant Zee. It is not clear whether
he intended to include these allegations as part of his claim against the City
defendants for filing false complaints. If he did, they are dismissed along with that
claim. Even assuming these allegations are true, Liang makes no claim that any
claims or charges were brought against him for attempt or conspiracy to commit
murder, nor that he was ever arrested on those grounds. These accusations also
concern entirely different events from those on which he bases his Fourth
Amendment claim. Hence, they are not part of the same "common nucleus of
operative fact," Montejiore Med. Ctr., 642 F.3d at 332, and the court lacks
jurisdiction over those claims in any event.
40

knowledge of that contract; (3) the defendant's intentional procuring of the breach;
and (4) damages." Foster v Churchill, 87 N.Y.2d 744, 749-50, 665 N.E.2d 153, 156
(1996). Liang alleges that he had "valid contracts with Open Lifetime Group and a
store at 41-40 Kissena Blvd.," that the City defendants "knew of the contract as
evidenced by his [sic] relationship with Plaintiff's ex-girlfriend, Defendant Tan,"
and that they "intentionally interfered with the contract by engaging in false arrests
of Plaintiff." (Am. Com pl.,, 184-86). Putting aside the question of whether Liang
has otherwise pleaded a plausible tortious interference claim, he does specifically
plead that his false arrests were the wrongful acts of interference. Since the Court
has already found that Liang has not plausibly pleaded viable false arrest claims, his
tortious interference claim, with its pleaded link to these allegations, lacks an
essential element, and it, too, is dismissed as a matter of law.
Incidentally, as putatively additional component of his tortious interference
claim, Liang alleges that "Defendant Zee intentionally interfered with the contract
by accepting the demo phone." (Am. Compl., 191). First, he does not specify what
contract he is referring to, nor does he plead facts indicating breach. Furthermore,
aside from being a naked accusation of a quid pro quo (and therefore insufficiently
pleaded), it is clear that even this naked claim suggests nothing more than a motive
for Detective Zee's "false" arrest of Liang. Neither the interactions between Zee and
Tan, nor any other factual allegations in the complaint, plausibly support a claim
that Zee or any other defendant tortuously interfered in Liang's contractual
relationships.
41

Liang's next claim is for negligent supervision against the City defendants. As
discussed in Section 11.f, supra, he pleads no material facts to support his conclusory
allegations that the supervisory officials exercised improper oversight over
subordinate officers. As a consequence, this claim fails as a matter of law.
Lastly, plaintiff advances catchall claims against the City defendants under
the New York State Constitution for violating the same kinds of rights protected
under the United States Constitution, and for violating the state's police power. (Id.
~~

180-82, 194-98). The parallel pleading on identical facts yields a congruent result.

More importantly, "a private right of action for a violation of the [New York]
Constitution is unavailable where an alternative remedy ... exists." Waxter v. State,
33 A.D.3d 1180, 1181, 826 N.Y.S.2d 753, 754 (3d Dep't 2006) (citing Lyles v. State of

New York, 2 A.D.3d 694, 770 N.Y.S.2d 81 (2d Dep't 2003)). As is, by now, obvious,
Liang has had a whole host of alternative remedies available to him to vindicate
every claim of harm. (Indeed, a federal search and seizure claim remains open.)
Plaintiff has made no showing that he lacks an alternative remedy, justifying a
private right of action under New York's state constitution. He has convincingly
established just the opposite. That his pursuit of alternative relief fails for lack of
merit does not mean the alternate avenues to relief did not exist.
As for Liang's claim that the City defendants "violat[ed] the state's police
power," after the pleadings, it is hard to divine what that last straw is. It seems to
amount to nothing more than a vague recapitulation of all his claims that the City
and its police officers cloaked with and wielding the power of state law acted

42

unlawfully and caused him injury. It duplicates his federal civil rights claims, but, if
having any legitimacy under state law at all, it must be viewed as a private action
claiming violations directly under the New York State constitution. The availability
of alternative remedies defeats it.
Conclusion
For the reasons set forth above, the motion of New York City and its
defendant employees is granted. All claims against them are dismissed, except for
Liang's § 1983 claim for unreasonable search and seizure under the Fourth
Amendment. That claim survives, but only as to defendants Zee, Hawkins, Shim,
Vaughn, Conforti, and Michetti. 19
So Ordered.

s/Eric N. Vitaliano

- ERic Kv1fA'tWNo
United States District Judge
Dated: Brooklyn, New York
September 18, 2013

19

Because plaintiff has neither identified nor served John and Jane Doe defendants
despite ample time to amend his complaint, and because he has not alleged facts in
the complaint supporting Fourth Amendment claims against them, all causes of
action against John and Jane Doe defendants are dismissed. See Fed. R. Civ. P.
4(m); Hayward v. City of New York, No. 12-CV-3220, 2012 WL 3580286, at *2
(E.D.N.Y. Aug. 17, 2012); Cantave v. New York City Police Officers, No. 09-CV-2226,
2011WL1239895, at *8 n.4 (E.D.N.Y. Mar. 28, 2011).
43