Gilliard v. City of New York et al

Filing 45

MEMORANDUM & ORDER granting in part and denying in part Defendants' 36 Motion for Summary Judgment. See document for further detail and scheduling. So Ordered by Judge Nicholas G. Garaufis on 2/7/2013. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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RICHARD GILLIARD,

MEMORANDUM & ORDER
Plaintiff,

10-CV-5187 (NGG) (CLP)
-against-

:
THE CITY OF NEW YORK, CHRISTIAN ALLEN,
individually and in his official capacity, ANTHONY
COPPOLA, individually and in his official capacity,
KEVIN COSTELLO, individually and in his official
capacity, and JOHN/JANE DOES, Nos. 1-10,
individually and in their official capacities (members
of.the New York City Police Department whose
names are presently unknown to plaintiff),
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Richard Gilliard brings suit against Defendants Officer Christian Allen, Officer
Kevin Costello, Officer Anthony Coppola (together, the "Individual Defendants"), and the City
ofNew York (the "City") under 42 U.S.C. § 1983 ("Section 1983") and New York law. Before
the court is Defendants' motion for summary judgment. For the reasons set forth below,
Defendants' motion is GRANTED IN PART and DENIED IN PART.
~...

I.

·.

:

·.' :.

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BACKGROUND
A.

Factual Background 1

On June 13, 2010, Allen and Costello were on patrol near the Marcy Houses, a housing
development in Brooklyn maintained by the New York City Housing Authority ("NYCHA").
(Def. 56.1 St. (Dkt. 38) ~~ 4, 6, 12; Pl. 56.1 St. (Dkt. 41) ~~ 4, 6, 12.) The rooftops of three

Except as otherwise noted, the following facts are undisputed or taken in the light most favorable
to Plaintiff.

1

buildings in the Marcy Houses-·those located at 621, 623, and 625 Park Avenue-are connected
to each other. (Def. 56.1 St., 8; Pl. 56.1 St., 8.) Access to the roof of any of these buildings is
restricted to NYCHA and NYPD employees; violators may be arrested. (Def. 56.1 St., 5; Pl.
56.1 St. , 5.)
According to Costello and Allen, at approximately 7:25p.m., they observed a black male
with cornrows in his hair on the roof of 625 Park A venue peering over the fence that surrounds
the rooftop. (See Def. 56.1 St.,., 12-14.) Costello testified that as soon as he saw this
individual, the trespasser "took off out of site from the roof." (Costello Dep. (Ex. I to Haber
Decl. (Dkt. 37-9)) at 14:18-21; see also Def. 56.1 St., 16.) Because Costello knew that the roofs
of 623 and 625 Park Avenue were connected, Costello decided to enter the lobby of 623 Park

.

.\

Avenue to ''think two steps ahead" of the trespasser and cut him off. (Costello Dep. at 14:18-24,
15:15-16:5; Def. 56.1 St.,, 17-18; see also Costello Dep. at 15:18-16:1 ("I figured [that the
trespasser1would think that l was going to come up 625 [Park Avenue1so in turn, I tried to think
one step ahead of the individual and tried to get into the next adjoining building, which I
believed he was coming down, which I believe was 623 Park Avenue.").) Together, Costello
and Allen "walk[ed]" into the lobby of 623 Park A venue. (See Def. 56.1 St. , 12; Pl. 56.1 St.
, 12; see also Costello Dep. at 16:6-10; Allen Dep. (Ex. G. to Haber Decl. (Dkt. 37-7)) at
17:8-18:10.) Neither officer entered 625 Park Avenue in an attempt to confront the trespasser.
.

. I

(See Allen Dep. at 17:9-18:8; Costeli<(Qep. at 't5:i5-16:1 0.)
As they entered the lobby, Costello and Allen saw Plaintiff--an African American who at
the time had cornrows in his hair (Def. 56.1 St., 15; Pl. 56.1 St., 15)-emerge from the lobby
elevator and purportedly stopped him to investigate the trespassing (Def. 56.1 St. , 20). Costello
and Allen asked Plaintiff where he had been coming from and if he had been visiting anyone in
2

the building. (Id. ~ 21; Pl. 56.1 St. ~ 21.) Plaintiff, who was calm and relaxed, told the officers
that he had just come from a birthday party in Apartment 6D of623 Park Avenue, his son's
mother's apartment. (Def. 56.1 St. ~ 22; Pl. 56.1 St. ~~ 22, 26.) Costello and Allen asked for
Plaintiff's identification, which he eventually provided. (Def. 56.1 St.~ 23; Pl. 56.1 St.~ 23.)
At this point, Costello observed a bulge in J;>.Iaintiff' s waistband, frisked Plaintiff, and recovered
a cell phone holder. (Def. 56.1

St.~ 24;

St.~

Pl. 56.1

24.) Sometime during the questioning,

Defendant Coppola and his partner, Officer Dominico Sarris, entered the lobby of623 Avenue.
(Def. 56.1 St. ~ 25; Pl. 56.1 St.

~

25.) Costello debriefed Coppola on the situation. (Coppola

Dep. (Ex. D to Perry Decl. (Dkt 40-1)) at 22:4-23:3.)
Costello and Allen then told Plaintiff that they were headed upstairs to verify that
Plaintiff had in fact been coming from Apartment 6D. (Def. 56.1
Costello and Allen entered the elevator.. (Def. 56.1 St.

~

St.~

27; Pl. 56.1

St.~

27.)

28; Pl. 56.1 St. ~ 28.) Plaintiff also

entered the elevator for purportedly two reasons: (1) one officer, he claims, said he could do so;
and (2) to ensure that the police approached the correct apartment, because he had been
1

previously erroneously prosecuted for tresp~~stng in ~ similar situation where the police failed to
actually verify his whereabouts. (See Def. 56.1 St. ~ 28; Pl. 56.1 St. ~ 28; see also Gilliard Dep.
(Ex. A to Perry Decl. (Dkt. 40-1)) at 54:23-55:9, 57:2-24.) As Plaintiff entered the elevator, he
turned on his Blackberry cell phone and began to record a video. (See Ex. J to Haber Decl. (Dkt.
37-1 0) ("Pl. Videos"); see also Def. 56.1 St.

~

30; Pl. 56.1 St. ~ 30.) Plaintiff kept the phone in

his hand during the entire incident, producing two videos. (See Pl. 56.1 St. ~ 29; Gilliard Dep. at
63:15-19; Pl. Videos.)
Costello, Allen, and Coppola instructed Plaintiff to exit the elevator and remain in the
lobby. (See Def. 56.1 St. ~ 31 ; Pl. 56.1 St. ~ 31.) Plaintiff refused to exit, repeating that he was

•

,:

3 t•'

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·I

I

going to accompany the officers upstairs. (Def. 56.1 St. ~ 32; Pl. 56.1 St. ~ 32.) At this point,
Coppola grabbed Plaintiff by his neck, removed him from the elevator, and threw him face-first
against a wall that was approximately four-to-six feet away. (See Def. 56.1 St. ~ 33; Pl. 56.1 St.
~

33; see also Gilliard Dep. at 60:2-61:7.) Plaintiff suffered a "busted" lip and experienced neck

and back pain, which was particularly bothersome because Plaintiff had a bullet lodged near his
spine from a prior incident. (Def. 56.1 St.~ 38; ~Pl. 56.1 St.~ 38.) On a scale of one-to-ten,
Plaintiffs pain was a "ten." (Gilliard Dep. at 27:1-18, 70:8-13.) After Plaintiff told Coppola
that he busted his lip, Coppola responded: "I don't give a shit .... You're under arrest for
discon [disorderly conduct], you did not obey a lawful order. That's it. It's not a big deal." (Pl.
Videos.)
During this altercation in the elevator and lobby, other civilians were "coming and
going." (Gilliard Dep. at 69:19-25.) Although no one attempted to use the elevator during this
time (Gillard Aff. (Dkt. 40-3) ~ 2),2 a few people had at least walked through the lobby and a few
others began to congregate (see Pl. 56.1 St. ~ 34; see also Pl. Videos; Allen Dep. (Ex. B to Perry
Decl. (Dkt. 40-1)) at 45:6-46:12; Coppola Dep. at 27:14-25).
With Plaintiff secure, Allen and Costello went upstairs and verified that Plaintiff had, in
fact, been in Apartment 6D. (Def. 56.1

St.~~

35-36; Pl. 56.1

St.~~

35-36.) Neither Allen nor

Costello checked the roof to see if the trespaSser was still there. (See Pl. 56. St.~ 36; Costello
Dep., Ex. C to Perry Decl. (Dkt. 40-1) at 47:5-12.) Gillard was detained for a "couple of hours."
(Gilliard Dep. at 81:4-84: 1.)
2

Defendants claim that Plaintiff's affidavit submitted in opposition to their motion-in which he
swears that no civilians attempted to enter, exit, or use the elevator-must be stricken because it
contradicts his prior testimony that a number of people were in the lobby and observed him being
removed from the elevator. (See Def. Reply Mem. (Dkt. 44) at 6.) But there is nothing contradictory
about testifying that people were gathered in the lobby, but were not hoping to use the elevator.

4

Costello issued Plaintiff a summons for disorderly conduct, citing New York Penal Law
§ 240.20(2); he wrote on the summons: "Deft was observed causing a public inconvenience in a
public place by acting in a loud and boisterous·manner." (Def. 56.1 St.~ 37; Pl. 56.1 St.~ 37;
Ex. K to Haber DecI.) On August 11, 201 0, the summons was dismissed for legal insufficiency.
(See Def. 56.1 St.~ 43; Pl. 56.1 St.~ 43; Ex. Q to Haber Decl. (Dkt. 37-17).)
Plaintiff did not tell the police that he needed medical attention, but after being released,
he immediately visited the Woodhull Hospital Emergency Room. (Def. 56.1 St.~~ 39-40; Pl.
. 56.1

St.~~

39-40.) Plaintiff was treated for a lacerated lip and discharged with a prescription for

325 milligrams of Acetaminophen. (Def. 56.1

St.~

41; Pl. 56.1

St.~

41.) It took two and a half

weeks "or more" for Plaintiffs injuries to heal, although as of his deposition on October 11,
2011, he still felt bothersome scar tissue in his mouth. (Def. 56.1 St. ~ 42; Pl. 56.1 St. ~ 42;
Gillard Dep. at 86: 10-24.)

B.

Procedural History

On September 10,2010, Plaintiff served a Notice of Claim on the City. (See Def. 56.1
St.~

44; Pl. 56.1

St.~ 44.)

On October 13,2010, the City served a notice of a hearing under

New York General Municipal Law§ 50-h ("50-h Hearing") on Plaintiff. (See Def. 56.1
Pl. 56.1

St.~

St.~

45;

45.) See also N.Y. Gen. Mun. L. § 50-h (requiring a potential tort claimant against

a city to appear for an examination upon demand). Upon receiving this letter, Plaintiffs counsel
at the time called the New York City Comptroller's Office to request an adjournment. (See Pl.
56.1 St. ~ 46; K.neitel Decl. (Dkt. 40-2) ~ 4.) The woman who answered the phone granted the
adjournment, but Plaintiffs counsel never received a letter from the Comptroller's Office
re-scheduling the 50-h Hearing, and Plaintiff never appeared for any such hearing. (See Pl. 56.1
St.~ 46;

Kneitel Decl. ~ 5.)
~ ·. . .I

I

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On November 9, 20IO, Plaintiff filed his Complaint against the City, one Jane Doe
Defendant, and ten John Doe Defendants. (See Compl. (Dkt. I).) On May I8, 201I, Plaintiff
filed an Amended Complaint adding Allen, Coppola, and Costello as Defendants. (See Am.
Compl. (Dkt. I5).) Plaintiff alleges six causes of action against the Individual Defendants under
Section I983: (1) false arrest; (2) excessive force; (3) retaliation for exercise of the right to free
speech under the First Amendment; (4) malicious prosecution; (5) malicious abuse of process;
and (6) failure to intervene. (See id. ~~ 2I-32.) ·He also asserts a claim against the City under
Section 1983 pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). (See
Am. Compl. ~~ 33-40.) He alleges six state law claims against the Individual Defendants:
(I) false arrest; (2) assault; (3) battery; (4) malicious prosecution; (5) malicious abuse of process;
and (6) retaliation for exercise ofthe right to free speech under the New York State Constitution.
(See id. ~~ 46-57.) Plaintiff alleges two state law claims against the City: ( 1) negligent
screening, hiring and retention; and (2) negligent training and supervision. (See id. ~~ 58-61.)
On December 16, 2011 , after discovery on Plaintiffs claims against the Individual
Defendants was completed and after brief discovery on his Monell claim, Defendants requested a
pre-motion conference in anticipation of their intended motion for summary judgment. (See
Dec. 16,2011, Def. Ltr. (Dkt. 30).) In response,;Piaintiffrequested that discovery on his Monell
ciaim against the City proceed while Defendants' motion for summary judgment was pending.
(See J?ec. 23,2011, Pl. Ltr. (Dkt. 31) at 3.) On March 1, 2012, the parties appeared at the premotion conference. (See Mar. I, 2012, Minute Entry.) At the hearing, the court granted
Defendants' leave to file their motion for summary judgment and denied Plaintiffs request to
proceed with Monell discovery during the pendency of the motion without prejudice. (Id.) The
court granted Plaintiff leave to move to re-open discovery if his claims were not resolved at

6

summary judgment. (See i4J The parties then filed their respective briefs. (See Def. Mem.
(Dkt. 39); Pl. Opp'n Mem. (Dkt. 42); Def. Reply Mem.)

II.

SUMMARY JUDGMENT STANDARD
Summary judgment is proper if"the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). The burden to make this showing rests upon the party moving for summary judgment.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he court must draw all
reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods ..
Inc., 530 U.S. 133, 149 (2000).
A fact is material if its existence or non-existence "might affect the outcome of the suit
under the governing law," and an issue of fact is genuine if"the evidence is such that a
reasonable jury could return a verdict for the ~o~moving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A genuine jss~~ is created by "specific facts" grounded in
testimony or other admissible evidence, not by "mere allegations or denials" of the adverse
party's pleadings, ish, "by the presentation of assertions that are conclusory," Patterson v. Cnty.
ofOnie~

375 F.3d 206, 219 (2d Cir. 2004), or "by conjecture[] or speculation" from the

non-movant, Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). However, "[t]o the
extent that ... inconsistencies [between a witness's testimony and the rest of the record] can only
be resolved based upon credibility determinations, such questions of witness credibility are to be
decided by the jury." Reeves v. Johnson Controls World Servs.. Inc. 140 F.3d 144, 157 (2d Cir.
1998), superseded by statute on other grounds as stated in Hilton v. Wright, 673 F.3d 120 (2d
Cir. 2012); see also United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) ("Resolutions of

7

credibility conflicts and choices between conflicting versions of the facts are matters for the jury, ·
not for the court on summary judgment.").

III.

DISCUSSION
Because the issue of whether the Individual Defendants had probable cause to arrest

Plaintiff frames much of Defendants' motion, the court addresses this issue first. The court then
turns to Plaintiffs specific claims.

A.

Probable Cause

Probable cause exists when, based on the totality of the circumstances, the arresting
officer has "knowledge of, or reasonably trustworthy information as to, facts and circumstances
that are sufficient to warrant a person of reasonable caution in the belief that an offense has been
or is being committed by the person to be arrested." Zellner v. Summerlin, 494 F.3d 344, 368
(2d Cir. 2007). Probable cause "requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213,243 n.l3
(1983). "The question of whether or not probable cause existed may be determinable as a matter
oflaw ifthere is no dispute as to the pertinent events and the knowledge of the officers ... or
may require a trial if the facts are in dispute." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Probable cause to arrest an individual for obstruction of governmental administration, therefore,
requires the police to have "reasonably trustworthy information" that each of these four elements
has been met. Zellner, 494 F.3d at 368; see also Alhovsky v. Paul, 406 F. App'x 535, 536 (2d
Cir. 2011) ("Probable cause must extend to every element ofthe crime for which a person is
arrested.").
Defendants maintain that the Individual Defendants had probable cause to arrest Plaintiff
for obstruction of governmental administration and for disorderly conduct. The court examines

8

these in turn.
1.

Obstruction of Governmental Administration

"Under New York law, obstructing governmental administration has four elements:
'(1) prevention or attempt to prevent (2) a public servant from performing (3) an official function

(4) by means of intimidation, force or interference."' Cameron v. City ofNew York, 598 F.3d
50,68 (2d Cir. 2010) (quoting Lennon v. Miller, 66 F.3d 416; 424 (2d Cir. 1995)); see also N.Y.
Penal Law § 195.05. For the third element-that police were performing an "official
function"-to be satisfied, the police's conduct must have been "lawful." Cameron, 598 F.3d at
68. And the legality of a police investigation depends on whether the officers had a reasonable
suspicion that criminal activity was afoot when they first stopped the suspect. See Terry v. Ohio,
392 U.S. 1, 26-30 (1968); see also People v. Bowden, 928 N.Y.S.2d 12, 13 (N.Y. App. Div. 1st
Dep't 2011) ("[l]ndividuals of whom the police have no reasonable suspicion of criminal activity
have the right not to answer an officer's question, or even to run from the police, without those
acts creating grounds to detain that individual."). Probable cause for obstruction of
governmental administration, therefore, exists only where the police's initial stop was supported
by reasonable suspicion. See Williams v. City of Mount Vernon, 428 F. Supp. 2d 146, 156-57
(S.D.N.Y. 2006) (finding that the plaintiff sufficiently pled the absence of probable cause for a
violation of obstruction of governmental administration where the initial stop was not supported
by reasonable suspicion); cf. Cameron, 598 F.3d at 68 ("[I]f[the officers] knew that they did not
have probable cause to arrest [the plaintiff] for.any ciime ... then they could not have probable
cause to arrest [the plaintiff] for obstructing governmental administration."); United States v.
Olavarri~

No. 09-CR-870 (PGG), 2011 WL 1529190, at* 7 (S.D.N.Y. Apr. 20, 2011) ("Where

the police are engaged in an illegal arrest, other unlawful seizure, or an unlawful search, no
9

charge for obstruction of governmental investigation will lie."). In other words, if the police "did
not possess a reasonable suspicion that [Plaintiff] was involved in criminal activity," then the
police ''were not authorized to attempt to detain [him and he was] free to walk away." People v.
Lupinacci, 595 N.Y.S.2d 76,76 (N.Y. App. Div. 2d Dep't 1993).
Defendants claim that Plaintiffs refusal to exit the elevator interfered with the police's
attempt to verify his stated reason for being in~~d~. the building as part of its trespass
investigation. (See Def. Mem. at 8-9; Def. Reply Mem. at 2-5.) Plaintiff does not dispute that
the officers' testimony concerning the alleged trespasser, iftrue, would constitute reasonable
suspicion to stop Plaintiff and would justify the officers' order to leave the elevator. Rather, his
sole basis for arguing that the police did not have probable cause to arrest him for obstruction of
governmental administration is that the officers fabricated their statements regarding a trespasser
on the roof of 625 Park Avenue to justify their unlawful stop, meaning that they had no
reasonable suspicion to stop him in the lobby. 3 (See Pl. Opp'n Mem. at 11-13.) Plaintiff
identifies four specific facts in support of this assertion: (1) even though the officers purportedly
saw the trespasser on the roof of 625 Park Avenue, th.ey entered the lobby of 623 Park Avenue;
(2) Costello and Alien both entered 623 Pai'k.Avenue, instead of splitting up between the two
buildings to cover both possible escape routes; (3) Allen testified that he "walked," not that he
ran, into 623 Park Avenue; and (4) no police officer ever checked the roof to search for the
supposed trespasser. (I d. at 11-12; see also Pl. 56.1 St. ~ 12.) Defendants argue that Plaintiff's

3

Defendants claim that Plaintiff has not pled an unlawful stop claim. (See Def. Reply Mem. at 2.)
But Plaintiff has not, and does not purport to, plead an independent claim for an improper stop. Plaintiff
challenges the legality of the stop only to rebut Defendants' claim that there was probable cause to
support his arrest.

10

claims of perjury are "conclusory" and insufficient to create a genuine issue of material fact.
(Def. Reply Mem. at 2-3.)
It is axiomatic that a party may not "rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986). Simply asserting that a party is lying is insufficient to create a
genuine issue of material fact. See Henry v. Bloomingdale's; Inc., No. 95-CV-4861 (JG), 1997
WL 1068693, at *6 n.2 (E.D.N.Y. Nov. 3, 1997) (granting summary judgment where "plaintiff
ha[d] presented no evidence, other than her speculation that defendant [wa]s lying," that certain
evidence was false). But where the non-movant can identify facts in the record that.cast doubt
on a witness's testimony such that the ultimate issue "turns largely on [that witness's]
credibility[,] ... a genuine issue of material fact e~ists precluding summary judgment." Dillon
v. Morano, 497 F.3d 247, 254-54 (2d Cir. 2007). Put differently, "[t]o the extent that ...
inconsistencies [in the record] can only be resolved based upon credibility determinations, such
questions ofwitness credibility are to be decided by the jury." Reeves, 140 F.3d at 157; see also
Boutsis v. Home Depot, 371 F. App'x 142, 144 (2d Cir. 2010) (reversing grant of summary
judgment, in part, because portions of a witness's testimony were "inconsistent"); Matya v.
United Refining Co., 323 F. App'x 65, 67 (2d Cir. 2009) (same); Adams v. Master Carvers of
Jamestown. Ltd., 91 F. App'x 718, 725 (2d Cir. 2004) ("The evidence offered by Adams to
counter the non-discriminatory explanations provided by the defendants and the inconsistencies
in the defendants' stated reasons throughoutthe course of this case raise a genuine issue of
material fact as to the credibility of the defendants' assertions."); cf. Distory v. Cont'l Gm .• Inc.,
859 F.2d 1108, 1116 (2d Cir. 1988) (granting summary judgment because, "[v]iewing the

11

evidence in the light most favorable to plaintiff, there [we]re no material·inconsistencies that
might cause a reasonable jury to doubt" the defendant's version of events).
Here, Plaintiff does not rely on mere speculation to dispute the officers' proffered reason
for stopping him. He identifies four specific, undisputed facts that, if fully credited, allow a
reasonable jury to infer that the officers con~octed their story about a trespasser. (See Pl. Opp'n
Mem. at 11-12.) For example, it strikes the court as a bit odd that after seeing the alleged
trespasser "t[ake] off'-with no indication as to which direction he went-the police would walk
only into the adjoining building in an attempt to think "two steps ahead" of him. (Pl. 56.1 St.
, 12.) Not only that, even after confirming that Plaintiffs stated reason for being in the building
was true, no officer performed even a cursory additional check to locate the trespasser. (See .!QJ
Of course, if the officers were telling the truth, at that point such a check may have been useless
because the trespasser may have already left the scene. And a reasonable jury could certainly
credit their attempt to head off the trespasser together. But the fact remains that the ultimate
issue as to whether there was a trespasser-which, if true, would clearly give them reasonable
suspicion to stop Plaintiff, meaning that his' subsequent refusal leave the elevator would
constitute obstruction with governmental administration-"tums largely on [the officers']
credibility."4 Dillon, 497 F.3d at 253. The court cannot make such a determination at this stage.
Therefore, viewing the facts in the light most favorable to Plaintiff, the police never observed
any trespasser, stopped Plaintiff without any reasonable suspicion, and therefore did not have
probable cause to arrest him for obstruction of governmental administration.

4

It should also be noted that Allen's credibility may be especially weak because he testified that he
was "almost positive" that Plaintiff told police he was coming from Apartment 6C (see Allen Dep. at
21:1 5-23), whereas all parties agree that Plaintiff stated that he was coming from Apartment 60 (see Def.
56.1 St. ~ 22; Pl. 56.1 St. ~ 22).

12

.,

2.

Disorderly Conduct

Under New York Jaw, in relevant part, "[a] person is guilty of disorderly conduct when,
with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof," he (1) "makes unreasonable noise[,] ... [(2)] obstructs ... pedestrian traffic[;] ... or
[(3)] congregates with other persons in a public place and refuses to comply with a lawful order
ofthe police to disperse." N.Y. Penal L. §§ 240.20(2), (5)-(6).
Defendants claim that Plaintiffs admitted refusal to leave the elevator when ordered to
do so "interfere[ed] with the officers' trespass investigation and obstruct[ed] pedestrian traffic,"
providing probable cause for his arrest. (Def. Mem. at 8.) But as discussed above, a reasonable
jury could conclude that the officers were not conducting a lawful trespass investigation,
meaning that there would be no "lawful order of the police to disperse." And despite
Defendants' claim that the video Plaintiff took with his cell phone "clearly shows that other
individuals were present in the lobby at the time of the incident" (Def. Mem. at 8 (citing Pl.
Videos)), it is not at all clear whether a group had formed or whether pedestrians were blocked
from passing through the lobby or using the elevator. The video shows only one person in the
lobby for a very brief period of time. (See Pl. Videos.} A reasonable jury could also credit
Plaintiffs claim that civilians were "coming and going," and that no one attempted to use the
elevator during the incident. (Gilliard Dep. ~t 66:20-22; Gilliard Aff. , 2.) Moreover, an issue of
fact remains as to whether Plaintiff was being so loud "that a reasonable person, under the
circumstances, would not tolerate." Provost v. City ofNewburgh, 262 F.3d 146, 159 (2d Cir.
2001) (citation omitted) (interpreting ''unreasonable noise" as used in N.Y. Penal L.

§ 240.20(2)). Contrary to Defendants' assertions, the video indicates that the officers, not
Plaintiff, were screaming expletives and causing a disturbance. (See Pl. Videos.)
13

Defendants' cited authority is inapposite. In Crenshaw v. City of Mount Vernon, 372 F.
App'x 202 (2d Cir. 2010), an unreported case with no precedential value, see 2d Cir. Local Rule
32.1.1, the Second Circuit held that a police officer was entitled to qualified immunity-which,
as discussed below, requires only that the defendant had "arguable probable cause"-and did not
opine on the underlying constitutional violation. 5 See Crenshaw, 372 F. App'x at 206. In Posr v.
Killackey, No. 01-CV-2320 (LTS) (GWG), 2003 U.S. Dist. LEXIS 12755 (S.D.N.Y. July25,
2003) (report and recommendation),6 adopted by 2003 U.S. Dist. LEXIS 22617 (S.D.N.Y. Dec.
17, 2003), the plaintiff's own version of the facts had demonstrated that he obstructed a
courthouse doorway. See id. at *13-14. And in People v. Maher, 520 N.Y.S.2d 309 (N.Y. City
Crim. Ct.

19~7),

the defendant was found guilty of disorderly conduct after a bench trial in

which the court found that she disobeyed ten lawful orders over a period of two and a half hours.
See id. at 310.
Taking the facts in the light most favorable to Plaintiff-as the court must at this stage-a reasonable jury could determine that Plaintiff did not make unreasonable noise, did not impede
any pedestrian traffic, and did not fail to comply with a lawful order. Thus, the court cannot
conclude as a matter oflaw that it was objectively reasonable to believe that Plaintiff had done
so, meaning that there may not have been probable cause for Plaintiff's arrest for disorderly

'
The Second Circuit's decision in Crenshaw is less than clear in this regard. After stating that the
officer had "reasonably trustworthy information" to warrant his beliefthat the plaintiff had committed
disorderly conduct-which mirrors the probable cause standard, see Williams v. Town of Greenburgh,
535 F.3d 71, 79 (2d Cir. 2008}-it concluded that the officer was entitled to qualified immunity, which
requires a lower showing. See Crenshaw, 372 F. App'x at 206.
6

Although Defendants' counsel fails to mention it, the case cited in Defendants' brief is actually a
Magistrate Judge's report and recommendation that the district court adopted because, after neither party
objected, it did not find any clear error. See Posr v. Killackey, No. 0 1-CV-2320 (LTS) (GWG), 2003
U.S. Dist. LEXIS 22617, at *1-2 (S.D.N.Y. Dec. 17, 2003).
I

14

'

conduct. Defendants' lack of probable cause to arrest Plaintiff for any cime informs the court's
analysis of his specific claims, as set forth below.

B.

Claims Against the Individual Defendants7
1.

False Arrest

"To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that
'the defendant intentionally confined him without his consent and without justification."'
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Wevant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996)). Similarly, under New York law,

apolice officer is personally liable for

conducting an unlawful arrest. See Jenkins v. City ofNew York, 478 F.3d 76, 78 (2d Cir. 2007).
As to claims brought under Section 1983, although "the issuance of a pre-arraignment,
non-felony summons requiring a later court appearance, without further restrictions, does not
constitute a Fourth Amendment seizure [underlying a false arrest claim]," Burg v. Gosselin, 591
F.3d 95, 96 n.3 (2d Cir. 201 0), '"a plaintiff pleads seizure when he alleges that a police officer
held on to his identification and ordered him to stay put while the police officer wrote out a
summons,"' Amore v. Novarro, 624 F.3d 522,532 n.13 (2d Cir. 2010) (quoting Burg, 591 F.3d
at96 n.3)).
'"The existence of probable cause is an absolute defense to a false arrest claim."'
Torraco v. Port Auth. ofN.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (quoting Jaegly v.
Vouch, 439 F.3d 149 152 (2d Cir. 2006)). If the police had probable cause to arrest a defendant
for any charge, even one not "invoked by the arresting officer at the time of arrest," the claim
fails. Jaegly. 439 F.3d at 154.

7

Except where otherwise noted, the court jointly addresses the Section 1983 and state law claims
that have the same standards.

15

Viewing the facts in the light most favorable to Plaintiff, he has set out a viable false
arrest claim under both Section 1983 and New York law. The police held him against his will in
the lobby of623 Park Avenue for a ''couple" of hours. (See Def. 56.1 St., 35; Gilliard Dep. at
· 81 :4-84:1.) This is a decidedly greater restriction than issuing only a summons, and clearly
constitutes a seizure. See Amore, 624 F.3d at 532 n.13; cf. Burg, 591 F.3d at 98 ("We hold that
the issuance of a pre-arraignment, non-felony summons requiring a later court appearance,
without further restrictions, does not constitute a Fourth Amendment seizure." (emphasis

added)). And as detailed above, Defendants' lone· ground for dismissing the false arrest claimthat the Individual Defendants had probable cause to arrest Plaintiff--fails.
Although there is a question of fact that prevents a determination of probable cause as a
matter of law, the Individual Defendants may still be immune from prosecution under Section
1983 and New York law for false arrest if they had arguable probable cause. See Amore, 624
F.3d at 536 ("In determining whether an officer is entitled to qualified immunity for a false arrest
claim in the absence of probable cause, we examine whether there was 'arguable probable
cause."' (citation omitted)); Jenkins, 478 F.3d at 88 ("Similar to the federal doctrine, if, when the
facts are construed in favor of the plaintiff, the officer's probable cause determination was
objectively reasonable, the court under New York law should dismiss the plaintiff's false arrest
claim at the summary judgment stage."); see also Alhovsky, 406 F. App'x at 537 ("Because ...
the arresting officers had at least arguable probable cause to arrest Alhovsky and they detained
him for an objectively reasonable amount of time, the officers have state law immunity to
Alhovsky's state law claims of false arrest and false imprisonment.").
"Arguable probable exists if either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of reasonable competence could disagree on
16

whether the probable cause test was met." Amore, 624 F.3d at 536 (internal quotation marks
omitted). To determine whether an officer's belief was "objectively reasonable;" the court looks
to the "information possessed by the officer at the time of the arrest, but [does] not consider [his]
subjective intent, motives, or beliefs." Id. (internal quotation marks omitted). "This forgiving
standard prote~ts 'all but the plainly incompetent or those who knowingly violate the law."'
Provost v. City ofNewburgh, 262 F.3d 146, 160 (2d Cir. 2001) (quoting Malley v. Briggs, 475

u.s. 335,341 (1986)).
As discussed above, a reasonable jury could determine that the alleged trespasser never
existed, which would mean that the police did not have even arguable probable cause to believe
that Plaintiff had obstructed governmental administration.
But given the undisputed facts, it was objectively reasonable for the police to at least
believe thatthere was probable cause that he had committed disorderly conduct. Although it is

unclear whether it.was objectively reasonable for. the police to believe that Plaintiff's actions

actually impeded any pedestrians, it is undisputed that civilians had gathered around, which
could lead a reasonable officer to believe that their path was so impeded.
Plaintiff's video demonstrates that at least one person was present in the lobby when he
refused to exit the elevator. (See Pl. Videos.) Plaintiff also testified that civilians were "coming
and going," although none wished to use the elevator. (Pl. 56.1 St., 34; Gilliard Aff., 2.)
Plaintiff further highlights that Allen testified that "several" tenants had passed through the lobby
as Allen and Costello frisked Plaintiff, and ·that Coppola testified that civilians began to gather

after Plaintiff was removed from the elevator. (Pl. 56.1 St., 34; see also Allen Dep. at
44:23-45:5; Coppola Dep. (Ex. H to Haber Decl. (Dkt. 37-8)) at 27:14-25.) A reasonable officer
focused on Plair:ttiff, who indisputably disobeyed the officers' orders, could have thought that
17

one of these civilians wished to use the elevator or was impeded from passing through the lobby.
Phrased differently, although there is an issue of fact as to whether the police reasonably
believed that civilians were actually obstructed from walking through the lobby or using the
elevator, there is no such issue as to whether an officer could have reasonably thought so. See
Lennon, 66 F.3d at 424-25 ("Perhaps a rational jury could find that the officers lacked probable
cause and should not have arrested [the plaintiff]; however, in our view, a rational jury could not
find that the officers' judgment was so flawed that no reasonable officer would have made a
similar choice."); cf. Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997) ("A review ofthe
circumstances of this case reveals that while the State Troopers, as stipulated, did not in fact have
actual probable cause to arrest the plaintiff [for disorderly conduct under Connecticut law], they
certainly had 'arguable' probable cause, and accordingly, it was objectively reasonable for the
State Troopers to believe that probable cause existed."). The Individual Defendants therefore
'

I

had arguable probable cause that Plaintiff had committed disorderly conduct, see N.Y. Penal L.

§ 240.20(5), and the false arrest claims against. them are dismissed.
2.

Excessive Force, Assault, and Battery

Excessive force claims brought under Section 1983 are "judged under the Fourth
Amendment's 'objective reasonableness' standard." Terranova v. New York, 676 F.3d 305, 308
(2d Cir. 2012) (quoting Graham v. Connor, 490 U.S. 386,395 (1989)). The same is true for
claims of assault and battery brought under New York law. 8 See Kramer v. City of New York,

8

To be precise, under New York law an "assault" is "'an intentional placing of another person in
fear of imminent harm or offensive contact[ and a] 'battery' is an intentional wrongful physical contact
with another person without consent."' Girden v. Sandals Int'l, 262 F.3d 195,203 (2d Cir. 2001) (citation
omitted). The court agrees with the many courts that have equated the standard for assault and battery
with excessive force. See, e.g.. Mesa v. City ofNew York, No. 09-CV-10464 (JPO), 2013 WL 31002,
at *27 (S.D.N.Y. Jan. 3, 2013) (''New York law regarding assault and battery generally parallels federal

18:

No. 04-CV-106 (HB), 2004 WL 2429811, at *11 (S.D.N.Y. Nov. 1, 2004) ("In the context of
state officers performing their lawful duties, New York State law regarding assault and battery
parallels the federal laws regarding excessive force."). Under this standard, the determinative
question is whether the officers' actions are "'objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation."
Spinelli v. City ofNew York, 579 F.3d 160, 167 (2d Cir. 2009) (citation omitted).
In determining whether the amount of force used is reasonable, courts consider "'the facts
and circumstances of each particular case, including the crime committed, its severity, the threat
of danger to the officer and society, and whether the suspect is resisting or attempting to evade
arrest."' Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (quoting Thomas v. Roach, 165 F.3d
137,.143 (2d Cir. 1999)). Furthermore, courts "are required to make allowance for the fact that
police officers are often forced to make split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving-about the amount of force that is necessary in a particular
situation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (internal quotations marks
omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a
judge's chambers, violates the Fourth Amendment." ld. (internal quotation marks omitted).
However, "[g]iven the fact-specific nature ofth~ [objective reasonableness] inquiry, granting
summary judgment against a plaintiff on an excessive force claim is not appropriate unless no
reasonable fact-finder could conclude that the officers' conduct was objectively unreasonable."
Amnesty America v. Town ofWestHartford, 361 F.3d 113, 123 (2d Cir. 2004).
Defendants challenge Plaintiffs excessive force claim against Coppola on two grounds:

law regarding excessive force ...." (internal quotation marks omitted); Castro v. Cnty. of Nassau, 739 F.
Supp. 2d I 53, 178 n.l7 (E.D.N.Y. 20 I 0) (stating that "the same standard applies to these claims").

19

(1) that the use of force was not excessive or unreasonable under the circumstances; and (2) that
Plaintiff's injuries were de minimis. (See Def. Mem. at 11-14; Def. Reply Mem. at 6-8.)
Neither is meritorious.
First, whether or not Coppola's use of force was justified is a matter properly decided by
a jury. Taking the facts in the light most favorable to Plaintiff, the police stopped him without
any cause, they did not allow him to accompany them to verify his whereabouts, and then
Coppola threw him by his neck some four-to-six feet into a wall. (See supra Part liLA; see also
Pl. Videos.) Coppola did testify that Plaintiff was holding an "unknown black object" in his
hand when Coppola removed him from the elevator. (Coppola Dep. at 25:23-26:19.) But
Costello had previously frisked Plaintiff for his safety, recovering Plaintiff's cell phone holder.
(Def. 56.1 St., 24.) Costello also "debriefed" Coppola on the situation when he arrived, which
likely included this fact. (See Coppola Dep.

at'~2:21-23:3.)

And Allen testified that the only

time Plaintiff was asked to show his hands was when he was initially stopped in the lobby,
implying that the officers were never concerned about the "unknown object." (See Allen Dep. at
20: 13-20: 16, 20:24-21 :6.) Moreover, the video taken by Plaintiff demonstrates that after
removing Plaintiff, Coppola did not try to confiscate this "unknown" object, but told Plaintiff
that he was being detained for failure to obey a lawful order without mentioning the object or
any potential danger. (Pl. Videos.) It is only after Coppola seems to realize that he is being
recorded that he knocks the phone away. (See iQJ Even if Coppola did believe that Plaintiff's
cell phone posed a concern, a reasonable jury could determine that throwing Plaintiff-who was
calm and collected (see Gilliard Dep. at 49: 15-20; see also Pl. Videos.)-into the wall, busting
his lip, was unreasonable. This is all the more possible if the jury determines that the officers'
story regarding the alleged trespasser was a lie: Ail told, the court cannot conclude that "no
20

·.,'

reasonable fact-finder could conclude that [Coppola's] conduct was objectively unreasonable."
Amnesty Americ!!, 361 F.3dat 123.
Second, Defendants' claim that Plaintiffs injuries were de minimis and insufficient as a
matter of law to support his excessive force claim also fails. 9 (See Def. Mem. at 13-14.)
Although Plaintiff did not tell the officers he needed medical attention (Gilliard Dep. at 71 :7-9),
he testified that he went to the emergency room immediately after being released, where he was
treated for his busted lip and pain that, on a scale of one-to-ten, was a ten

fuL at 27:14-18,

70:23-71 :3). Plaintiff also testified that his injuries did not heal for two and a half weeks "or
more" and caused bothersome scar tissue to form. (See Def. 56.1 St. ~ 42; Pl. 56.1 St.

~

42;

Gillard Dep. at 86:10-24.) Therefore, Plaintiff's injuries are not so minor as to be unactionable
as a matter oflaw. See. e.g .. Robison v.

Vi~

821 F.2d 913, 924 (2d Cir. 1987) (noting that

accusations that officers "twist[ed] plaintiff's arm, push[ ed] liim into the back seat of a police
car, pull[ed] him by the scruff of the neck, and str[uck] him in the ribs" may support a claim for
excessive force, to the extent that such acts were unreasonable and excessive); Hodge v. Village
of Southampton, 838 F. Supp. 2d 67, 77-78 (E.D.N.Y. 2012) (denying summary judgment where
plaintiff was treated for bruising at hospital and discharged with ice and Motrin). 10

9

For one thing, the court is not convinced that de minimis injuries preclude an excessive force
claim based upon the Fourth Amendment as a matter law. Although a few district courts have implied
this, see, e.g.. Cunningham v. City of New York, 04-CV-1 0232 (LBS), 2007 WL2743580, at *6
(S.D.N.Y. Sept. 18, 2007), the court is not aware of any Second Circuit precedent establishing this rule.
Rather, this doctrine is typically applied to prisoners' claims of excessive force brought under the Eighth
Amendment, where different interests are at stake. See, e.g .. Wright v. Goord, 554 F.3d 255, 269 (2d Cir.
2009) ("[nhe Eight Amendment's prohibition against cruel and unusual punishment does not extend to
'de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the
conscience of mankind."' (citation omitted)).

of

10

Defendants' cited authority (see Def. Mem. at 12-13) is unpersuasive. Cunningham v. City of
New York, concerned a plaintiff's "temporary" discomfort. 2007 WL 2743580 at *7. In Cunningham v.
Rodriguez, No. 01-CV-1123 (DC), 2002 WL 31654960 (S.D.N.Y. Nov. 22, 2002), a medical technician

21

For similar reasons, issues of fact preclude granting summary judgment to Coppola on
immunity grounds.

11

It is "well established· that the use of excessive force i~ the course of an
•'

arrest is constitutionally prohibited." Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002). And a
reasonable jury could very well determine that: (1) while in the elevator Plaintiffs hands were
removed from his pockets; (2) Costello and Allen had previously frisked Plaintiff and found no
weapons, which they told Coppola; (3) there was no reason to think Plaintiff posed any danger;
(4) Plaintiff was calm and collected; and (5) Coppola threw Plaintiff into a wall by his neck
four-to-six feet-away. It is not possible to "determine whether [Coppola] reasonably believed
that [his] force was not excessive when several material facts are still in dispute," Curry v. City
of Syracuse, 316 F.3d 324, 334 (2d Cir. 2003), and summary judgment must therefore be
denied. 12

3.

. l: ! ·'
Free Speech Retahatton ·

"To prevail on [a] free speech [retaliation] claim, plaintiff must prove: (1) he has an
interest protected by the First Amendment; (2) defendants' actions were motivated or
found that the plaintiff had "no injuries or complaints." Id. at *5. And in Dzwonczyk v. Syracuse City
Police Dep't, 710 F. Supp. 2d 248 (N.D.N.Y. 2008), the plaintiff admitted that he "did not sustain any
serious injuries." Id. at 263~
11

New York's good faith immunity doctrine parallels federal qualified immunity jurisprudence for
these claims. See Mesa, 2013 WL 31002, at *27 (dismissing assault and battery claims on state immunity
grounds because the officers' conduct was objectively reasonable under federal law); Davis v. Cnty. of
Nassau, No. I 1-CV-0076 (LOW) (ARL), 2013 WL 66021, at *7 (E.D.N.Y. Jan. 3, 2013) ("The court's
holdings as to the presence of issues of material fact concerning Plaintiff's federal claims [including
excessive force, against which the defendants asserted qualified immunity,] also preclude the entry of
judgment as to Plaintiff's state law claims [including,assault and battery, against which the defendants
asserted good faith immunity].").
12

Although Coppola's motion for summary judgment on this claim is denied, there is no indication
that Allen or Costello used any force against Pl~intiff.: ;Indeed, Plaintiff seems to abandon any claim of
joint activity involving Allen or Costello. (See Pl. Opp'n Mem. at 16-18 (arguing repeatedly that "Officer
Coppola used excessive force'').) Any excessive force claims lodged against these two Defendants (see
Am. Compl., 24 (alleging that "Defendants" used excessive force)) are therefore dismissed.

22

substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled
the exercise of his First Amendment right." Curley v. Village of Suffern, 268 F.3d 65, 73 (2d
Cir. 2001 ). The same is true for free speech retaliation claims brought under the New York State
Constitution. 13
Defendants challenge Plaintifrs ability to raise an issue of fact as to the second and third
.

·'

elements. Specifically, Defendants claim that: ( 1) a reasonable jury could not find that the
police issued Plaintiff a summons because of the fact that he recorded the incident with his cell
phone; and (2) there is no admissible evidence 14 that Plaintiffs speech was actually chilled. (See
Def. Mem. at 15.) Plaintiff maintains that as to the second prong, crediting the evidence in his
favor, "there is ample evidence that Officers Allen, Coppola, and Costello knew, at some point

13

Although the New York State Constitution "generally affords greater protection than the United
States Constitution with regard to speech ... [c ]laims of free speech retaliation under Article I, section 8
ofthe New York State Constitution are governed by the same principles that apply under the First
Amendment to the United States Constitution." Dotson v. Farrugia, No. 11-CV-1126 (PAE), 2012 WL
996997, at *8-9 (S.D.N.Y. Mar. 26, 2012) (internal quotation marks omitted);~ Carter v. Inc. Village of
Ocean Beach. 693 F. Supp. 2d 203,212 (E.D.N.Y. 2010) ("[F]ree speech [retaliation] claims under
Article I, Section 8 of the New York State Constitution are subject to the same analysis as free speech
claims under the First Amendment."); cf. Nichik v. N.Y. City Transit Auth., No. 10-CV-5260 (JG), 2013
WL 142372, at *7 n.4 (E.D.N.Y. Jan. 11, 2013) ("The parties agree that claims of retaliation in violation
of Article I, section 8 ofthe New York State Constitution are subject to the same analysis as First
Amendment claims .... ").
14

Defendants claim that Plaintiff's affidavit submitted in opposition to their motion for summary
judgment, which states that he has "been reluctant to videotape police officers, even when they are
engaged in misconduct, for fear that [he] will be re-arrested" (Gillard Aff., 3), contradicts his deposition
testimony and.must therefore be rejected. (Def. Reply Mem. at 9.) They point to Plaintiff's deposition at
which he testified that there "is not anything he could do before the incident that he cannot do today
because of his injuries sustained." (ld. (citing Gilliard Dep. at 87:25-88:3 [sic]).) Defendants' argument
is, at best, frivolous. The three preceding questions posed by Defendants' counsel-who also authored
the brief-.-demonstrate that Plaintiff was describing the lack of lingering physical effects from his
physical injuries and that his answers were in no way connected to Plaintiff's subsequent speech or lack
thereof. (See Gilliard Dep. at 87:20-88:2 ("Q. Did you seek treatment from any other doctor for the
injuries you allegedly sustained? A. No. Did you see Dr. Lucas? A. No. Q. Are there any other
physical injuries that you sustained? A. No. Q. As a result of the incident on June 13? A. No. Q. Is
there anything you could do before the accident that you can't do now because of the injuries? A. No.").)

23

during the incident, that plaintiffwas videotaping them." (Pl. Opp'n Mem. at 20.) Plaintiff cites
·.•

only to his videos, arguing that after realizing he 'was being recorded, Coppola reached for the
cell phone and turned his head away. (See id. (citing Pl. Vi~eos).) Because the summons was
issued later that evening, Plaintiff argues, "a jury could infer a causal connection to the
videotaping." (ld.)
Given all of the undisputed evidence, however, a reasonable jury could not make such a
causal connection. For one thing, the video clearly shows that Coppola told Plaintiff that he was
under arrest for disorderly conduct because he disobeyed a lawful order. (Pl. Videos.) The
video also demonstrates that the officers were concerned with Plaintiff's admitted refusal to exit
the elevator. (llh) It is also undisputed that pedestrians were present in the lobby during the
altercation, which gave the officers arguable probable cause to arrest Plaintiff for disorderly
conduct. (See Pl. 56.1

St.~

.

34; Gilliard Dep. at 69:19-25.) All told, solely on the basis of

Coppola's brief expression after apparently realizing that he was being recorded, a reasonable
jury could not conclude that the summons was "motivated or substantially caused by" Plaintiff's
First Amendment activity. Curley, 268 F.3d at 73; see also id. ("Specific proof of improper
motivation is required in order for plaintiff to survive summary judgment on a First Amendment
retaliation claim."). Accordingly, Plaintiff's free speech retaliation claims brought under the
First Amendment and the New York State Constitution are dismissed. 15

IS

The weakness of Plaintiff's argument is reflected by his lone citation-using a "cf." signal-to
Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009). (See Pl. Opp'n Mem. at 20.) In Espinal, the Second
Circuit held that the six-month period between the .~js~issal of a lawsuit and a thirty-minute-long beating
was insufficient to sustain a motion to dismiss. See 558 F .3d at 129-30. But in Espinal, no evidence
suggested that the defendants beat the plaintiff for some reason other than his First Amendment activitythey simply denied having beaten the plaintiff at all. See id. at 122. The district court had dismissed the
plaintiff's claim because of the passage of time and the fact that the defendants were not aware of the
lawsuit. See id. at 129. Here, at the summary judgment stage, there is a m~untain of evidence
demonstrating that the police issued Plaintiff his summons because of his refusal to exit the elevator and

24

4.

Malicious Prosecution

The elements of a malicious prosecution claim under Section 1983 and New York law
are: "( 1) commencement of a criminal proceeding, (2) favorable termination of the proceeding,
(3) lack of probable cause, and (4) institution of the proceedings with actual malice." Swartz v.
Insogna, No. 11.:.2846-CV, 2013 WL 28364, at *5 (2d Cir. Jan. 3, 2013); see also id. ("The
elements of a malicious prosecution ~laim under section 1983 are derived from applicable state
law."); Cornejo v. Bell, 592 F.3d 121, 129 (2d Cir. 2010) (setting out these elements). Also, "to
be actionable under section 1983 there must be a post-arraignment seizure, the claim being
grounded ultimately on the Fourth Amendment's prohibition of unreasonable seizures." Swartz,
2013 WL 28364, at *5.
Plaintiffs claims here fail for two reasons: (1) Plaintiff did not obtain a "favorable
termination of the proceeding," as defined under New York law; and (2) as to Plaintiff's Section
1983

c~aim,

he did not suffer a "post-arraignment seizure" as defined under the Fourth

· Amendment. ·
First, the New York Court of Appeals has stated that "[a] criminal proceeding terminates
favorable to the accused, for purpose of a malic~6\is prosecution claim, when the final disposition
of the proceeding involves the merits and indicates the accused's innocence." MacFawn v.
Kreiser, 88 N.Y.2d 859, 860 (1996). Where a court "conclude[s] that the facts alleged by the
People were not legally sufficient to support the charge ... [t]he People [are] at liberty to amend
the information to correct the deficiency." Id. This, according to the Court of Appeals, means
that if"the criminal action was disposed of on procedural·grounds [and the] complaint in the

the potential interference with pedestrian traffic, which forecloses any reasonable inference that the
summons was motivated by the videotaping.

25

civil action fail[s] to state a cause of action for malicious prosecution." ld.; see also Garrett v.
Port Auth. ofN.Y. and N.J., No. 04-CV-7368 (DC), 2006 WL 2266298, at *5 (S.D.N.Y. Aug. 8,
· 2006) ("[l]n MacFawn, the Court of Appeals concluded that the dismiss~ for legal insufficiency
was not a favorable termination for purposes of malicious prosecution."). Since Plaintiffs
summons was unquestionably dismissed for legal insufficiency (see Pl. 56.1 St. ~ 43; Def. 56.1
St.~

43; Ex. Q to Haber Decl.), his malicious prosecution claims fail as a matter of law.
Second, as to his Section 1983 claim, Plaintiff cannot show that he suffered a "seizure" as

contemplated by the Fourth Amendment because it is undisputed that Plaintiff was issued a
non-felony summons that was dismissed for legal insufficiency less than two months after it was
issued. (Def. 56.1 St.~~ 37, 43; Pl. 56.1 St.~~ 37, 43; see also Ex. Q to Haber Decl. (showing
that Plaintiffs summons was dismissed and not indicating any court appearances)); Def. Mem. at
11 ("Plaintiff was not arraigned, not required to post bail, had no travel restrictions, and was not
required to appear in criminal court more than once, if at all.").) This level of post-arrest seizure
is insufficient to support a malicious prosecution claim under Section 1983. 16 See Mes!!, 2013
WL 31002, at *15 ("With respect to Mesa's C summons, a warrantless summons, coupled with a
court appearance, is generally insufficient to give rise to a malicious prosecution claim-under
both§ 1983 and state law.").
5.

Malicious Abuse of Process

To establish a malicious abuse of process claim under both Section 1983 and New York
' .

~

I

.

law, a plaintiff must e·stablish that the defendants "(1) employ[ed] regularly issued legal process
16

Although Plaintiff has not suffered a Fourth Amendment "seizure" with respect to his malicious
prosecution claim, his detainment in the lobby is sufficient to support his false arrest claim. See Mesa,
2013 WL 31002, at *15 ("[T]he fact that Mesa was detained before, not after, her arraignment is relevant
to her claim for false arrest, but not to her claim for malicious prosecution.")

26

to compel performance or forbearance of some act, (2) with intent to do harm without excuse of
justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of
the process." Savino v. City ofNew York, 331 F.3d 63, 76 (2d Cir. 2003) (internal quotation
marks omitted); see also Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) ("[W]e turn to state law
to find the elements of the malicious abuse of process claim."). This requires a plaintiff to
"establish that the defendants had an improper purpose in instigating the action." Savino, 331
F.3d at 77. "[I]t is not.sufficient for a plaintiff to allege that the defendants were seeking to
retaliate against him by pursuing his arrest and prosecution. Instead, he must claim that they
aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution." Id.
Plaintiff has not identified any evidence supporting any "collateral purpose beyond or in
addition to his criminal prosecution." Id. At most, Defendants issued the siunmons with the
improver motive of"cover[ing] up their abuse of authority in arresting plaintiff." (Am. Compl.

mf 30, 55.)

But an improper motive does not eq~ate to an improper purpose; the Defendants

"used the process of the court for the purpose for which the law created." Hauser v. Bartow, 273
N.Y. 370, 374 (1937); see Silver v. Kuehlbeck, '2f1 F. App'x 18, 21 (2d Cir. 2007). For these
reasons, Plaintiff's malicious abuse of process claims are dismissed. 17

17

The court notes that Plaintiff failed to even mention his malicious prosecution or malicious abuse
of process claims in his opposition brief, which some courts have found sufficient grounds for dismissal.
See. e.g.• Liang v. Cafe Spice SB. Inc., No. 09-CV-1306 (JFB) (ETB), 2012 WL 5988766, at *22 n.27
(E.D.N.Y. Nov. 29, 2012) ("[T]he fact that plaintiff did not oppose defendants' motion for summary
judgment on her claim of intentional infliction of emotional distress is also adequate grounds for granting
summary judgment in defendants' favor on this claim."); Taylor v. City ofNew York, 269 F. Supp. 2d
68, 75 (E.D.N.Y. 2003) ("Federal courts may deem a claim abandoned when a party moves for summary
judgment on one ground and the party opposing summary judgment fails to address the argument in any
way."); Arias v. NASDAO/AMEX Mkt. Grp., No. 00-CV-9827 (MBM}, 2003 WL 354978, at *13
(S.D.N.Y. Feb. 18, 2003) (dismissing two of pl~intiff's Claims as "abandoned" where plaintiff's
opposition papers "neither refute[ d) nor even mention[ed]" defendant's argument for summary judgment
on those claims); see also Local Civ. R. 7.1 ("[A]ll'oppositions thereto shall be supported by a
memorandum of law, setting forth the points and authorities relied upon ... in opposition to the motion

27

6.

Failure to Intervene

Under Section 1983, '"[a] law enforcement officer has an affirmative duty to intercede on
the behalf of a citizen whose constitutional rights are being violated in his presence by other
officers."' Jean-Laurent v. Wilkerson, 461 F. App'x 18,21 (2d Cir. 2012) (quoting O'Neill v.
Krzeminski, 839 F.2d 9, 11 (2d Cir.1988)). "In order for liability to attach, there must have been
a realistic opportunity to intervene to prevent the harm from occurring." Id. (quoting Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).; ~'Failure to intercede results in liability where an
officer observes excessive force is being used or has reason to know that it will be." Curley v.
Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001).
Plaintiff claims that Allen and Costello are liable for their failure to stop Coppola's
alleged use ofe?'cessive force. (See Pl. Opp'n Mem. at 21-22.) Defendants' sole ground for
summary judgment on this claim is that "Plaintiff has failed to establish a constitutional
violation." (Def. Mem. at 17-18.) But as the court has determined above, Plaintiff's excessive
force claim against Coppola may proceed to trial. His failure to intervene claim against Allen
and Costello, therefore, may also proceed. See Anderson, 17 F.3d at 557 ("Whether an officer
had sufficient time to intercede or was capable of preventing the harm being caused by another
I

•·

officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could
not possibly conclude otherwise.");
I',

. . . . Willful failure to comply with this rule may be deemed sufficient cause for the ... granting of a
motion by default."). But see Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 3 73 F .3d 241, 244 (2d
Cir. 2004) ("This Court has made clear, however, that where the non-moving party 'chooses the perilous
path of failing to submit a response to a summary judgment motion, the district court may not grant the
motion without first examining the moving party's submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial."' (citation omitted)).

28

B.

Claims Against the City
1.

Monell Liability

Because Plaintiffs excessive force and failure to intervene claims may proceed to trial
against the respective Individual Defendants, the City may also be liable under Monell. See
Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) ("Under the standards of Monell v.
D~ent

of Social Services, a municipality can be held liable under Section 1983 if the

deprivation ofthe plaintiffs rights un<Jer federal law is caused by a governmental custom,
policy, or usage ofthe municipality." (citation omitted)); see also Wray v. City ofNew York,
490 F.3d 189, 195 (2d Cir. 2007) (requiring "a denial of a constitutional right" for Monell
liability). And the City may also be liable for Plaintiffs false arrest claim-to the extent there
was a policy or custom responsible for his injury-because municipalities are not entitled to
qualified immunity. See Vives v. City ofNew York, 524 F.3d 346, 350 (2d Cir. 2008).
The parties thus far have completed o~ly limited Monell discovery. 18 Plaintiff wishes to
re-open Monell discovery. (See Dec. 23, 2011, Pl. Ltr. at 3.) In their reply brief, Defendants
request that Monell discovery be stayed and the claim be bifurcated for purposes of trial. (See
Def. Reply Mem. at 10.) Because Plaintiffhas not yet weighed in on this request, the parties are
instructed to confer and inform the court whether they agree to proceed to trial against the
Individual Defendants now and, if necessary, proceed to trial against the City thereafter. If
Plaintiff does not agree, he may renew his motion to re-open Monell discovery, Defendants may
oppose any such motion and/or formally move for a bifurcated trial. At that point, the parties
shall propose a joint briefing schedule for these motions.
18

To the extent Defendants seek summary judgment as to Plaintitrs Monell claim at this stage,
their motion is denied. (See Mar. 1, 2012, Minute Entry ("If Plaintiffs' [sic] claims are not resolved at
summary judgment, Plaintiff may move to reopen discovery and the court will consider the request at that
time.").)

29

2.

State Law Claims

Defendants assert that all state claims against the City must be dismissed for Plaintiff's
failure to comply with the Notice of Claim requirements under New York law. 19 (See Def.
Mem. at 23-25.) Specifically, they assert that Plaintiff's failure to attend a hearing required by
New York General Municipal Law section SO-h-without requesting an adjournment in
writing-mandates dismissal. Plaintiff coun~ers that after receiving notice of the 50-h Hearing,
his then-counsel received an adjournment from a member of the Comptroller's Office by phone,
but the hearing was never rescheduled. (See Pl. Opp'n Mem. at 25; Pl. 56.1

St.~

46.)

As a condition precedent to bringing a state law tort claim against a municipality, a
plaintiff must file a Notice of Claim within ninety days after her claim accrues. See N.Y. Gen.
Mun. L. § 50-e. After receiving the Notice of Claim, the municipality may demand a 50-h
Hearing to examine "the claimant relative to the occurrence and extent ofthe injuries or damages
for which claim is made." Id. § 50-h( 1). "[l]f the claimant fails to appear at the hearing or
request an adjournment or postponement," the state law claims cannot proceed against the
municipality. ld. § 50-h(S). Notice of claim requirements are construed "strictly" and "[f]ailure
to comply with these requirements ordinarily' requires dismissal for failure to state a cause of
action." Hardy v. N.Y. City Health & Hosp. Com., 164 F.3d 789,793-94 (2d Cir. 1999).
·'
.
Here, Plaintiff's state law claims against the City must be dismissed regardless of the

19

Defendants state generally that Plaintiff's failure means that "his state law claims are ... barred
and should be dismissed" (Def. Mem. at 25; see also Def. Reply Mem. at 10), apparently arguing that the
state claims against both the City and the Individual Defendants should be dismissed. But failure to
comply with section 50-h precludes only claims against the City, not employees who are sued in their
individual capacities alongside the City. See N.Y. Gen. Mun. L. § 50-h ("Where a demand for
examination has been served as provided in subdivision two of this section no action shall be commenced
against the city, county, town, village, fire district, or school district against which the claim is made
unless the claimant has duly complied with such demand for examination ...." (emphasis added)).

30

reason why he failed to appear for his SO-h Hearing. Although the Second Circuit has not
definitively decided the issue, courts have placed the burden on the plaintiff to resolve any
I

discrepancies regarding the rescheduling of a SO-h Hearing in accordance with the Second
Circuit's directive to construe Notice of Claim requirements "strictly." See, e.g., Simon v. City
ofNewYork, No. 09-CV-1302 (ENV) (RER), 2011 WL 31797S, at *IS n.17 (E.D.N.Y. Jan. 3,
2011) (report and recommendation) ("[EJven if Simon did not get the notice of the rescheduled
[SO-h] hearing, precedent suggests that it is the claimant who is required to ensure that the
hearing she has adjourned is rescheduled to a new date."), adopted by 2011 WL 3447S7
(E.D.N.Y. Feb. 1, 2011); cf. Kemp v. Cnty. of Suffolk, 878 N.Y.S.2d 13S, 136 (N.Y. App. Div.
2d Dep't 2009) ("Under the circumstances of this case, where the plaintiff invoked his Fifth
Amendment privilege against self-incrimination at the hearing pursuant to General Municipal
Law § SO-h ... the plaintiff, not the County defendants, was obligated to reschedule a
continuation of the SO-h hearing after the criminal proceeding terminated two years later.").
Disregarding any proffered reason is also good policy: while the City must handle the
rescheduling of thousands of SO-h Hearings, a plaintiff is only concerned with her own and is in
a better position to .ensure that the parties are on the same page. For these reasons, Plaintiffs
failure to attend the SO-h Hearing-no matter the reason-is a complete bar to his state law
claims against the City. 20

IV.

CONCLUSION
Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN

PART. The following claims may proceed to trial: (1) excessive force under Section 1983
Even if the court were to excuse a plai~titrs·reasonable failure to appear for a 50-h Hearing,
Plaintiff's previous counsel acted unreasonably. Obtaining an adjournment by phone, and failing to
follow up with the Comptroller's Office where the viability of a portion of Plaintiffs case is on the line,
is patently unreasonable.
20

31

against Coppola; (2) failure to intervene under Section 1983 against Allen and Costello;
(3) assault under New York law against Coppola; and (4) battery under New York law against
Coppola. Plaintiff's claims against the City under Monell predicated on these claims and
Plaintiff's false arrest claim may also proceed. By February 22, 2013, the parties are to confer
and provide the court either: ( 1) a stipulation to a bifurcated trial against the Individual
.,

Defendants, after which the parties may, if necessary, conduct Monell discovery; or (2) a
proposed briefing schedule, if necessary, for P~aintiff's anticipated motion to re-open Monell
discovery and/or Defendants' motion for a bifurcatedtrial.
SO ORDERED.

s/Nicholas G. Garaufis
i4ICHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
February_:)_, 2013

32

0- .