Crown Heights Shomrim Volunteer Safety Patrol, Inc. et al v. City of New York et al

Filing 66

ORDER granting 53 Motion to Dismiss for Failure to State a Claim; granting 64 Motion to Dismiss for Failure to State a Claim. For the reasons stated in the attached Memorandum and Order, defendants' motions to dismiss are granted in the ir entireties and all claims against them are dismissed. Because the court finds that it would be futile for plaintiffs to amend their Complaint with regard to these defendants, particularly in light of the fact that the Complaint has been amended tw ice previously, all of the claims are dismissed with prejudice. The Clerk of Court is accordingly respectfully requested to terminate defendants the City of New York, Crown Heights Shimra, Inc., Skoblo, Simonetti (s/h/a Simminetti), Troise, Hammond (s/h/a Hammad), Wright (s/h/a White), Duffy, Mangan, Kelch, and McHugh from this case. In addition, pursuant to Federal Rule of Civil Procedure 4(m), plaintiffs must show cause no later than October 9, 2014 as to why defendants Shuchat, Okonov, and S tern, who have not been served with the operative complaint, should not be dismissed. Also by October 9, 2014, plaintiffs must confer with defendants Huebner and Poltorak and provide the court with a joint status letter regarding how they intend to proceed with the case. Finally, plaintiffs' counsel shall serve a copy of this order on defendants Shuchat, Okonov, and Stern and file proof of service with the court forthwith. Ordered by Judge Kiyo A. Matsumoto on 9/25/2014. (Keefe, Reed)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------x
CROWN HEIGHTS SHOMRIM VOLUNTEER
SAFETY PATROL, INC., ARON
HERSHKOP, CHAIM HERSHKOP, YEHUDA
HERSHKOP, BENJAMIN LIFSHITZ,
SCHNEUR PINSON and NECHEMIZ
SLATTER,

MEMORANDUM & ORDER
11-CV-329 (KAM)

Plaintiffs,
-againstTHE CITY OF NEW YORK, CROWN
HEIGHTS SHMIRA, INC., LEIB
SKOBLO, PAUL HUEBNER, PETER
SIMONETTI, BOBBY TROISE, JOHN
HAMMAD, LENNY WHITE, BRIAN DUFFY,
WAYNE MANGAN, TIMOTHY KELCH,
SEAMUS McHUGH, YITZCHOK SHUCHAT,
EFRAIM OKONOV, YOSSI STERN, ELI
POLTORAK, JOHN DOES A-M, JANE
DOES 1-5,
Defendants.
--------------------------------x
MATSUMOTO, United States District Judge:
On January 21, 2011, plaintiffs, Crown Heights Shomrim
Volunteer Safety Patrol, Inc. (“Shomrim”) and six of its
members, filed the instant case.

Plaintiffs filed the

operative, Second Amended Complaint pursuant to 42 U.S.C. § 1983
(“Section 1983”) and state law on June 8, 2012, alleging
violations of plaintiffs’ rights pursuant to the First, Fourth
and Fourteenth Amendments of the United States Constitution and
analogous rights protected by New York law.
ECF No. 41.)

(“2d Am. Compl.,”

Defendants Levi (s/h/a Paul) Huebner and Elie

(s/h/a Eli) Poltorak answered the Second Amended Complaint on
June 28, 2012 and asserted counterclaims against plaintiffs for
libel and slander per se, intentional infliction of emotional
distress, and violations of 18 U.S.C. § 1030(g) (fraud and
related activity in connection with computers).

(ECF No. 44.)

The remaining appearing defendants moved to dismiss.

Now before

the court are motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) by two sets of defendants: first, by
The City of New York, Peter Simonetti (s/h/a “Peter
Simminetti”), Robert Troise (s/h/a “Bobby Troise”), John Hammond
(s/h/a “John Hammad”), Leonard Wright (s/h/a “Leonard White”),
Brian Duffy, Wayne Mangan, Timothy Kelch, and Seamus McHugh
(collectively, “the City defendants”) (City Defs. Mot. to
Dismiss, ECF No. 53); and, second, by Crown Heights Shmira, Inc.
(“Shmira”) and Leib Skoblo (“the Shmira defendants”) (Shmira
Defs. Mot. to Dismiss, ECF No. 64).

For the reasons that

follow, the defendants’ respective motions are granted, and the
claims against them are dismissed.
FACTUAL BACKGROUND
I.

Documents Considered
The following facts are drawn primarily from

plaintiffs’ Second Amended Complaint, as well as certain
documents submitted by the City defendants.

“Generally,

consideration of a motion to dismiss under Rule 12(b)(6) is
2

limited to consideration of the complaint itself.”
Beer, 463 F.3d 130, 134 (2d Cir. 2006).

Faulkner v.

The court “must accept

all allegations in the complaint as true and draw all inferences
in the non-moving party’s favor.”

LaFaro v. New York

Cardiothoracic Grp., PPLC, 570 F.3d 471, 475 (2d Cir. 2009)
(internal quotation and citation omitted).

Nonetheless, the

court is “not bound to accept as true legal conclusions couched
as factual allegations,” id. at 475-76, and “[c]onclusory
allegations . . . will not suffice to [defeat] a motion to
dismiss,” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d
328, 337 (2d Cir. 2006) (alterations in original and internal
quotation marks omitted).
Moreover, there is a limited category of documents
outside of the complaint that may be taken into account on a
motion to dismiss.

“Documents that are attached to the

complaint or incorporated in it by reference are deemed part of
the pleading and may be considered,” as may “a document ‘upon
which [the complaint] solely relies and which is integral to the
complaint.’”

Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)

(quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
47 (2d Cir. 1991)) (emphases in the original).

In addition,

“[i]t is well established that a district court may rely on
matters of public record in deciding a motion to dismiss under
Rule 12(b)(6).”

Vasquez v. City of New York, No. 99-CV-4606,
3

2000 WL 869492, at *2 n.1 (S.D.N.Y. June 29, 2000) (quoting Pani
v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.
1998)).

Matters of public record of which the court may take

judicial notice include arrest reports and certificates of
disposition, see Wingate v. Deas, No. 11-CV-1000, 2012 WL
1134893, at *1 n.1 (E.D.N.Y. Apr. 2, 2012), arraignments, see
Parker v. City of New York, No. 09-cv-910, 2010 WL 1693007, at
*3 n.2 (E.D.N.Y. Apr. 28, 2010), and criminal complaints and
indictments, see Garcia-Garcia v. City of New York, No. 12-CV1302, 2013 WL 3832730, at 1 n.1 (S.D.N.Y. July 22, 2013).

In

addition, a “court may take judicial notice of a document filed
in another court – not for the truth of the matter asserted in
the other litigation, but rather to establish the fact of such
litigation and related filings.”

Int’l Star Class Yacht Racing

Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.
1998).
II.

Relationship Between Shomrim, Shmira, and the City
Plaintiff Shomrim is a New York non-profit

corporation, made up of volunteers who act as a safety patrol in
Crown Heights, Brooklyn.

(2d Am. Compl. ¶¶ 6, 30.)

The

organization was founded in 1968 and incorporated in 1997, and
similar groups exist in other Hasidic Jewish neighborhoods in
Brooklyn and internationally.

(Id. ¶¶ 30-31.)

Shmira, a

similar group also operating in Crown Heights, was formed in
4

1999, by two former Shomrim members who had been expelled from
Shomrim.

(Id. ¶ 31.)

Plaintiffs indicate in their Complaint

that tension exists between the two groups.

(See id. ¶¶ 32,

42.)
Plaintiffs allege “on information and belief” that, on
an unspecified date, defendants Yossi Stern, the Administrative
Director of Shmira, and Paul (“Levi”) Huebner, legal advisor to
Shmira, as well as other Shmira members, met with the “District
Attorney of Kings County and/or members of his staff and police
officials of NYPD.”

(Id. ¶ 34.)

At that meeting, it was

decided that Shmira would work with the police to combat crime
in the Jewish community in Crown Heights.

(Id.)

In December of

2007, defendant Simonetti, the commanding officer of New York
City Police Department (“NYPD”) Precinct 71 in Crown Heights,
informed Shomrim members that NYPD would recognize only one
volunteer citizen patrol in Crown Heights, and Shmira made a
similar announcement that it was endorsed by the NYPD.
¶¶ 20-21, 33, 35.)

(Id.

As a result of its affiliation with the

NYPD, Shmira members “wore patches simulating the patches worn
by members of the [NYPD] and [used] vehicles supplied by the
NYPD similar in appearance to police cars and [used] other
equipment supplied by the NYPD.”

(Id. ¶ 36.)

Shmira patrolled

the Crown Heights neighborhood and apprehended those it observed
committing crimes.

(Id.)
5

III. The January 22 and 28, 2008 Arrests
In January of 2008, plaintiffs Chaim Hershkop, Yehuda
Hershkop, Benjamin Lifshitz, Schneur Pinson, and Nechemiz
Slatter were arrested for the alleged December 29, 2007 assault
of several residents at a dormitory located at 749 Eastern
Parkway in Brooklyn.

(Id. ¶ 43; see also Haber Decl. Exs. G

(NYPD SPRINT reports) and H (Omniform System Complaints).) 1

On

that date, the NYPD received 911 calls regarding men being
attacked at the dormitory.

(Haber Decl. Ex. G, at 7.)

Four

victims went to the hospital suffering injuries to the head and
body, including facial fractures, bruising, swelling and
contusions, and, on December 30, 2007, while still at the
hospital and thereafter, lodged complaints with defendant
Sergeant Wayne Mangan.

(See Haber Decl. Exs. I (NYPD Aided

Reports), and J (Kings County District Attorney Complaint Room
Screening Sheet).)

Defendant NYPD Detective Brian Duffy, of the

77th Precinct Detective Squad, subsequently began investigating
the case.

(See Haber Decl. Ex. K, at NYC34.)
Plaintiffs allege that on January 3, 2008, defendant

Huebner contacted the Detective Squad and spoke with Detective
Duffy.

(Id.)

Huebner conveyed to Duffy that he knew the

victims of the December 29 incident and that they primarily
1

“Haber Decl.” refers to the Declaration of Assistant Corporation Counsel
Erica M. Haber, who represents the City defendants. (ECF No. 54.) Attached
to Ms. Haber’s declaration are a number of public documents of which the
court has taken judicial notice.

6

spoke Hebrew.

Aware that Huebner was legal advisor to Shmira,

which had interests “strongly adverse to Shomrim,” the NYPD
accepted Huebner’s offer to come to the Precinct with one of the
victims and act as a translator, “notwithstanding Huebner’s
interest being at variance with the NYPD.”

(Id.; 2d Am. Compl.

¶¶ 43-44.)
Between January 9 and January 22, 2008, Detective
Duffy and other officers interviewed the complaining witnesses
with Huebner translating.

During these interviews, the

complainants identified plaintiffs as their attackers.

(Haber

Decl. Ex. K, at NYC35 (witness’s statement that plaintiff
Lifshitz “grabbed [the witness], shook him around and
attempt[ed] to tear off his clothes); 40 (witness identified
photograph of plaintiff Lifshitz); 49 (witness’s statement that,
after another individual started choking him and pushed him
against a wall, “Yehudah (‘Yudi’) Herschkop punshed [sic] him
three times in the face and then kicked him in the head” and
“Nossi Slater [sic] punched him”); 55 (witness’ identification
of photographs of plaintiffs Slatter and Chaim Hershkop as his
assailants); 66 (witness statement that plaintiffs Pinson and
Lifshitz attacked him); 72 (witness’s identification of
plaintiffs Pinson and Lifshitz’s photographs); 81 (witness’s
statement that Yehudah Hershkop, Chaim Hershkop, and Slatter
attacked him); 87 (witness photo identification of plaintiffs
7

Pinson, Chaim Hershkop, and Slatter).

The complainants

subsequently signed supporting deposition forms regarding the
incident, which also identified the above-named plaintiffs.
(See generally Haber Decl. Ex. L.)
On an unspecified date in January of 2008, Shmira
provided the Police Department with a video of the incident.
(2d Am. Compl. ¶ 45.)

Plaintiffs allege that the video was

later used at trial.

(See Pls. Ltr. dated Sept. 9, 2013, ECF

No. 62.)

Detective Duffy testified at trial, however, that he

was not aware of the videotape.
09.)

(Haber Decl. Ex. Q, at 1708-

In light of the fact that the video is specifically

referenced and relied upon in the Complaint, the court has
viewed and considered the video.

See Roth, 489 F.3d at 509; see

also Garcia v. Does, --- F.3d ----, 2014 WL 4099270, at *1 (2d
Cir. Aug. 21, 2014) (considering video evidence incorporated
into the complaint by reference when evaluating defendants’
qualified immunity prior to discovery taking place in the case).
The video depicts one member of Shomrim, identifiable by his
labeled jacket and hat, speaking to a group of men.

It is clear

that several members of the crowd do not wish for the Shomrim
member to be there, and one man appears to be accusing Shomrim
of assaulting people in the past.

Subsequently, as the argument

escalates and some pushing occurs, another member of Shomrim can
be seen attempting to calm the crowd and then pushing a man in
8

the crowd defensively.

The video goes black at the same time as

there is increased shouting, and the video ends.
On January 22, 2008, plaintiffs Chaim Hershkop,
Lifshitz, Pinson, and Slatter surrendered themselves at the 77th
Precinct and were arrested and charged with Assault in the Third
Degree.

(See Haber Decl. Exs. K, M, N.)

Appearance Tickets.

(Id. Ex N.)

They were issued Desk

Plaintiff Yehuda Hershkop

later surrendered on January 28, 2008 and was arrested.

(Id. Ex

K, at NYC57.)
In March of 2008, the Kings County District Attorney’s
Office charged plaintiffs (other than Aron Hershkop) with
Assault in the Third Degree, Assault in the Second Degree,
Menacing in the Third Degree, and the Harassment in the Second
Degree.

Plaintiffs Lifshitz and Pinson were additionally

charged with Menacing in the Second Degree and Criminal
Possession of a Weapon in the Fourth Degree.

(Id. Ex. O.)

On

approximately July 7, 2008, the Grand Jury indicted plaintiffs.
(Id. Ex. P (Grand Jury indictment).)

Following a jury trial,

plaintiffs were acquitted of the charges against them on
December 9, 2009.
IV.

(2d Am. Compl. ¶ 49.)

Other Alleged Harassment of Shomrim by the NYPD and City
Plaintiffs allege, without providing specific dates,

locations, or supporting facts, that NYPD officers engaged in a
number of actions calculated to “intimidate” and “humiliate”
9

Shomrim because of the Police Department’s favoritism of Shmira.
(2d Am. Compl. ¶ 38.)

These actions include the following.

Plaintiffs allege that defendant Robert Troise, an NYPD sergeant
in the 71st Precinct, threatened Shomrim members with future
arrests or harassment if plaintiffs continued to associate with
Shomrim and that Troise supervised other officers who issued
meritless parking tickets.

(Id. ¶¶ 22, 38A.)

Plaintiffs

similarly allege that they were threatened with arrest and
further harassment by defendant NYPD Officer Leonard Wright.
(Id. ¶¶ 24, 38C.)
Plaintiffs further allege that 71st Precinct Officers
John Hammond and Seamus McHugh engaged in the improper ticketing
of Shomrim and Shomrim members’ vehicles.
38F.)

(Id. ¶¶ 23-24, 38B,

Specifically, plaintiffs allege that Officer Hammond

ticketed and caused to be towed Shomrim vehicles that were
legally parked during a Jewish holiday.

(Id. ¶ 38B.)

According

to the Complaint, the towing of the vehicles was scheduled to
coincide with the time that community members were leaving
synagogue, “which greatly impaired [Shomrim’s] standing in the
community.”

(Id.; see also id. ¶ 78 (alleging that the NYPD

issued tickets and towed vehicles at the direction of Shmira and
the Crown Heights Jewish Community Council, Inc. (“CHJCC”),

10

which is not a named defendant in this matter).) 2
V.

Other Alleged Harassment of Shomrim by Shmira Members
Plaintiff alleges that Shmira members harassed

plaintiff Aron Hershkop, President of Shomrim, by making
unfounded complaints to the City regarding certain real property
owned by Mr. Hershkop.

(Id. ¶¶ 62-63.)

Defendant Leib Skoblo,

a member of Shmira, allegedly initiated the complaints by
providing information to defendant Yitzchok Shuchat, who is also
a Shmira member.

(Id. ¶¶ 14, 16, 65.)

Skoblo also surveilled

Aron Hershkop’s property in a vehicle provided to him by the
City.

(Id. ¶ 65.)

Shuchat in turn informed City agencies,

which issued unspecified citations on unspecified dates to Mr.
Hershkop.

Most of these citations have now been dismissed.

(Id. ¶¶ 63-64.)
Plaintiff also makes a set of allegations regarding
non-moving defendant Efraim Okonov, a member of Shmira.
id. ¶¶ 19, 70.)

(See

According to the Complaint, in 2008, Okonov,

acting on Shmira’s instructions, began to harass Shomrim members
by “jamming Shomrim’s radio system and making false police
reports that [plaintiffs] Aron [Hershkop] and [Benjamin]
Lifshitz made threats to kill [Okonov] and [Okonov’s] family.”
2
In addition to this allegation, plaintiffs also allege that CHJCC and fellow
non-defendant Crown Heights Beth Din sent harassing letters to the Hershkop
plaintiffs. Because CHJCC and Crown Heights Beth Din are not named
defendants in this action and there is minimal information about these
entities in the operative complaint, the letter-writing allegation is
immaterial, fails to state a claim, and will not be addressed further.

11

(Id. ¶ 70.)

The NYPD allegedly investigated Okonov’s complaints

but closed them without criminal action.

(Id. ¶¶ 71-72.)

DISCUSSION
I.

Motion to Dismiss Standard
Both the City defendants and Shmira defendants seek to

dismiss the claims asserted against them pursuant to Federal
Rule of Civil Procedure 12(b)(6).

Under Rule 12(b)(6), a

pleading may be dismissed for “failure to state a claim upon
which relief can be granted.”

In considering a motion to

dismiss, the court must “accept as true all allegations in the
complaint and draw all reasonable inferences in favor of the
non-moving party.”

Gorman v. Consolidated Edison Corp., 488

F.3d 586, 591-92 (2d Cir. 2007).

Nonetheless, a complaint must

“contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

In order to be plausible,

the alleged factual content must “allow[] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Matson v. Bd. of Educ. of City Sch. Dist.

of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal, 556 U.S.
at 678).

“While a complaint need not contain ‘detailed factual

allegations,’ it requires ‘more than an unadorned, the
defendant-unlawfully-harmed-me accusation.’”
12

Id. (quoting

Iqbal, 556 U.S. at 678); accord DiFolco v. MSNBC Cable LLC, 622
F.3d 104, 111 (2d Cir. 2010).
II.

City Defendants’ Motion to Dismiss
The City defendants move to dismiss all claims brought

against them, which include the following causes of action,
brought pursuant to 42 U.S.C. § 1983: 1) that the individual
defendants violated plaintiffs’ First Amendment rights by
issuing unwarranted tickets, illegally towing Shomrim vehicles,
and threatening Shomrim members with arrest if they continued
associating with Shomrim (First Claim for Relief); 2) that
plaintiffs Chaim and Yehuda Hershkop, Lifshitz, Pinson and
Slatter were falsely arrested and maliciously prosecuted (Second
Claim for Relief); 3) that the City defendants treated
plaintiffs unequally, as compared to Shmira members (First,
Second, and Fourth Claims for Relief); and 4) that the City is
liable for the aforementioned, allegedly unconstitutional
actions. 3

The court will consider the viability of each of these

3

Plaintiffs also bring a Third Claim for Relief against all defendants. This
Claim for Relief states that, based on the allegations in the remainder of
the Complaint, defendants “intentionally, maliciously, and willfully deprived
the plaintiffs” of their rights under the First Amendment and that “[a]ll
defendants are liable for said damages and injuries pursuant to the Fourth
and Fourteenth Amendments,” 42 U.S.C. § 1983, and the laws of New York. The
factual bases for the conclusory legal allegations in this claim are wholly
unclear, and, accordingly, the court must dismiss it. See Brandon v. City of
New York, 705 F. Supp. 2d 261, 268-69 (S.D.N.Y. 2010) (“[G]eneral allegations
[in the Complaint], without supporting facts other than a clause
incorporating an entire complaint by reference, are insufficient to withstand
even a motion to dismiss because they do not give fair notice of what the
claim is and the grounds upon which it rests.” (internal quotation marks and
citations omitted)).

13

claims in turn.
a. Plaintiffs’ First Amendment Claims Related to
Individual City Defendants’ Alleged Harassment
i. Legal Standard
In their “First Claim for Relief,” plaintiffs allege
that the individual City defendants engaged in a number of
harassing actions in order to discourage plaintiffs’ membership
in Shomrim, thereby violating of plaintiffs’ right to assemble
and to free speech.

(2d Am. Compl. ¶¶ 38, 41.)

To adequately

plead a First Amendment retaliation claim under Section 1983, “a
plaintiff must allege that: (1) he has a right protected by the
First Amendment; (2) the defendant’s actions were motivated by
or substantially caused by plaintiff’s exercise of that right;
and (3) the defendant’s actions effectively chilled the
plaintiff’s exercise of his rights.” 4

Whitfield v. Imperatrice,

477 Fed. App’x 806, 808-09 (2d Cir. 2012) (citing Cornell v.
Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (summary order)).
Plaintiffs identify two separate rights protected by
the First Amendment that they allege were violated: their
freedom of speech and freedom of association.
4

“[A]s a general

Certain courts in the Second Circuit have held at the summary judgment stage
that a plaintiff “need not show a chilling effect” to prevail on a First
Amendment retaliatory prosecution claim if he can “demonstrate that the
prosecution was not supported by probable cause.” Bradley v. City of New
York, No. 04-CV-8411, 2007 WL 232945, at *8 (S.D.N.Y. Jan. 25, 2007) (citing
Yuan v. Rivera, 48 F. Supp. 2d 335, 351 n.6 (S.D.N.Y. 1999)). To the extent
that plaintiffs allege that the prosecution subsequent to their January 2008
arrests was retaliatory, a sufficient allegation of the prosecution’s
chilling effect is still be required because, as will be discussed below, the
court finds that the prosecution was supported by probable cause.

14

matter, the First Amendment means that government has no power
to restrict expression because of its message, its ideas, its
subject matter, or its content.”

United States v. Alvarez, 132

S.Ct. 2537, 2543 (2012) (quoting Ashcroft v. Am. Civil Liberties
Union, 535 U.S. 564, 573 (2002)).

Such expression includes

conduct that, “at the very least, [is intended] to convey a
‘particularized message’ along with . . . a great likelihood
that the message will be understood by those viewing it.”

Jones

v. Schneiderman, 974 F. Supp. 2d 322, 333 (S.D.N.Y. 2013)
(quoting Zalewska v. Cnty. of Sullivan, 316 F.3d 314, 319 (2d
Cir. 2003)).

“The right to free association is ‘a right closely

allied to freedom of speech.’”

State Emp. Bargaining Agent

Coalition v. Rowland, 718 F.3d 126, 132 (2d Cir. 2013) (quoting
Shelton v. Tucker, 364 U.S. 479, 485-86 (1960)).

The Supreme

Court has held that “implicit in the right to engage in
activities protected by the First Amendment [is] a corresponding
right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and
cultural ends.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 622

(1984).
ii. Application
As a preliminary matter, the court notes that there
are several individual City defendants against whom plaintiffs
do not in fact make any accusations of unconstitutional conduct.
15

See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (“It is
well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations in a
prerequisite to an award of damages under § 1983.” (internal
citation omitted)).

First, no allegations at all are made

against NYPD Officer Timothy Kelch in the Second Amended
Complaint and plaintiffs concede that Officer Kelch is not
properly named in this complaint and may be dismissed.
Pls. Opp. 26 n.18, ECF No. 61.)
dismissed from this case.

(See

Accordingly, Officer Kelch is

Second, the sole allegation regarding

Inspector Simonetti is that he announced the NYPD’s policy of
endorsing one volunteer citizen patrol in Crown Heights.
Am. Compl. ¶ 33.)

(2d

Even assuming that this policy was

unconstitutional, there is no allegation that Simonetti
conceived the policy, only that he communicated it.

Because

there are no allegations in the Complaint that Simonetti
violated plaintiffs’ constitutional rights, all claims against
him are dismissed.
As to the other individual defendants, plaintiffs’
allegations do not state a claim for a First Amendment
violation.

Regarding plaintiffs’ freedom of speech claims, it

is wholly unclear what, if any, speech they allege was impaired
by the City defendants’ actions.

Moreover, the Second Amended

Complaint is devoid of any allegation that plaintiffs’ speech or
16

associational rights were chilled, or that Shomrim members have
been at all deterred from their activities.

For this reason,

plaintiffs’ First Amendment Claims must be dismissed.

See Old

St. George’s LLC v. Bianco, 389 Fed. App’x 33, 35 (2d Cir. 2010)
(dismissing a complaint that alleged no actual chill to
plaintiff’s speech); Ford v. Reynolds, 167 Fed. App’x 248, 250
(2d Cir. 2006) (noting that the “allegation of a chill is
indispensable for private plaintiffs” and dismissing plaintiffs’
claims for failing to make such an allegation); MacPherson v.
Town of Southampton, 738 F. Supp. 2d 353, 369-70 (E.D.N.Y. 2010)
(dismissing plaintiff’s First Amendment claims because he failed
to make “any factual allegations setting forth specific
instances in which [he] desired to exercise [his] First
Amendment rights but was chilled by Defendants’ alleged conduct”
(internal citation and quotation marks omitted)); Mangino v.
Inc. Vill. of Patchogue, 739 F. Supp. 2d 205, 249 (E.D.N.Y.
2010) (same). 5

Accordingly, the court dismisses plaintiffs’

5

The plaintiffs make one allegation that could arguably be construed as a
claim that Shomrim’s First Amendment rights were constrained: that Shomrim’s
“standing in the community” was “greatly impaired” causing Shomrim (but not
its members) to suffer embarrassment and humiliation when Shomrim vehicles
(but not its members’ vehicles) were towed in front of congregants leaving a
synagogue. (2d Am. Compl. ¶ 38B.) Although the Second Circuit has held that
“other forms of tangible harm will satisfy the injury requirement [of First
Amendment claims],” “[h]urt feelings or a bruised ego are not by themselves
the stuff of constitutional tort.” Zherka v. Amicone, 634 F.3d 642, 645-46
(2d Cir. 2011) (holding that an allegation of defamation per se under New
York law did not meet the injury requirement for plaintiff’s constitutional
claim). Instead, plaintiffs must allege a concrete harm, such as the denial
of building permits in retaliation for speech critical of the local
government. See, e.g., Dorsett v. Cnty. of Nassau, 732 F.3d 157, 161 (2d
Cir. 2013) (collecting cases). Plaintiffs’ conclusory assertion that the

17

First Amendment claims against the City defendants in their
entirety.
Even had plaintiffs adequately alleged that their
speech or association with Shomrim and each other was chilled by
the City defendants’ actions, the court would nonetheless find
that plaintiffs have failed to provide sufficiently specific
allegations in the operative complaint to allow their
constitutional claims to proceed against the individual
defendants.

For example, the Second Amended Complaint alleges

generally that defendant-police officers threatened Shomrim
members and inappropriately issued them tickets or towed
Shomrim’s vehicles.

These allegations are barren of facts about

the content of these threats, to whom they were made, why the
towing and ticketing were illegal or defective, and the time
period during which these actions occurred.

See Anderson News,

L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012)
(noting that Federal Rule of Civil Procedure 8 “requires factual
allegations that are sufficient to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” (quoting Twombly, 550 U.S. at 555)); Atkins-Payne v.
Alterman, No. 14-CV-4066, 2014 WL 4388597, at *3 (E.D.N.Y. Sept.

towing of Shomrim vehicles harmed its reputation is not a tangible harm
sufficient to satisfy the injury requirement articulated by the Second
Circuit and does not counsel against dismissal in this case. See Zherka, 634
F.3d at 645 (“[A]s a general matter, First Amendment retaliation plaintiffs
must typically allege ‘actual chilling.’”).

18

5, 2014) (finding a complaint deficient where plaintiff failed
“to provide facts connection each of [the] defendants to a
violation of plaintiff[’s] federal rights.”).

Moreover,

plaintiffs allege no facts to support their First Amendment
claim against the City.

Therefore, plaintiffs’ First Amendment

claims against the City and the individual City defendants are
dismissed.
b. Plaintiffs’ Fourth and Fourteenth Amendment Claims
Related to Their Arrest and Prosecution
Plaintiffs allege false arrest and malicious
prosecution of the individual plaintiffs, with the exception of
Aron Hershkop, who was not involved, in violation of their
rights under the Fourth and Fourteenth Amendments.

The court

will first address the false arrest claim and then turn to the
malicious prosecution claim.
i. False Arrest
1. Legal Standard
A plaintiff alleging false arrest “must show . . .
that the defendant intentionally confined him without his
consent and without justification.”
845, 852 (2d Cir. 1996).

Weyant v. Okst, 101 F.3d

“The existence of probable cause to

arrest constitutes justification and is a complete defense to an
action for false arrest.”

Jenkins v. City of New York, 478 F.3d

76, 84 (2d Cir. 2007) (internal quotation and citation omitted).

19

Probable cause to arrest exists “when the officers have
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 . . . a crime.”
(collecting cases).

Weyant, 101 F.3d at 852

In undertaking this analysis, the court

looks to “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
them [at the time of the arrest], without regard to their
underlying intent or motivation.”

Bryant v. City of New York,

404 F.3d 128, 136 (2d Cir. 2005) (quoting Graham, 490 U.S. at
397).

A victim’s statement is sufficient to establish probable

cause “unless circumstances raise doubt as to the person’s
veracity.”

Carthew v. Cnty. of Suffolk, 709 F. Supp. 2d 188,

197 (quoting Curley v. Village of Suffern, 268 F.3d 65, 69-70
(2d Cir. 2001)); see also Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000) (analyzing probable cause in the context of
an officer’s qualified immunity defense and noting that “it is
well-established that a law enforcement official has probable
cause to arrest if he received his information from . . . the
putative victim or eyewitness.”).
2. Application
In their Second Claim for Relief, plaintiffs allege
that, on January 22, 2008, the City defendants falsely arrested
20

plaintiffs Chaim and Yehuda Herkskop, Lifshitz, Pinson, and
Slatter.

Specifically, plaintiffs allege that, at the time of

their arrest, the NYPD was aware that the complaints “through
Huebner and Shmira” against plaintiffs were baseless and were
retaliatory and “followed complaints by Lifshitz on December 29,
2007, to the NYPD that he and other members of Shomrim had been
assaulted when they responded” to the incident at the dormitory.
(2d Am. Compl. ¶ 46.)

The court finds, however, that there was

probable cause supporting plaintiffs’ arrests and that,
accordingly, plaintiffs’ false arrest claims against the City
defendants fail.
The arrests were made after several complaining
witnesses made statements to Detective Duffy and identified
plaintiffs’ photographs.

The complainants’ subsequent signed

statements also implicated plaintiffs and discussed the
significant injuries for which complainants were treated at
Kings County Hospital, where they had also been interviewed and
observed by Sergeant Mangan.

Absent any allegations of facts

that would undermine the veracity of the victims’ statements,
the multiple statements by the complaining victims were
sufficient as a matter of law to establish probable cause for
plaintiffs’ arrests.

See, e.g., Martinez, 202 F.3d at 634.

Although plaintiffs object to the use of defendant Huebner as a
translator during the process of gathering these statements,
21

there is no allegation in the Complaint that Huebner
inaccurately translated or otherwise altered the complaining
witnesses’ statements.
Plaintiffs also assert in their briefing that the NYPD
should have known that the complainants’ accounts of the
December 2007 incident were untrustworthy because the video of
the incident contradicted those statements.

(Pls. Opp. 22.)

Even had Detective Duffy received and viewed the video of the
incident prior to the arrests, a fact which the operative
complaint does not specifically allege, the court does not view
the video to contradict the victims’ statements in the record.
The visual portion of the video cuts off at the end and shouts
can be heard.

It is not clear if the video captured the entire

incident at the dormitory on December 29, 2007.

The video,

therefore, does not speak to whether or not the assaults
occurred and the roles of the individual plaintiffs (indeed, it
is unclear who is depicted in the video).

Consequently, the

video does not undermine probable cause based on the complaining
witnesses’ statements.

Moreover, as the City defendants

correctly note, an arresting officer is not, by law, required
“to explore and eliminate every theoretically plausible claim of
innocence before making an arrest.”

Martinez, 202 F.3d at 635;

see also Koester v. Lanfranchi, 288 Fed. App’x 764, 766 (2d Cir.
2008) (“an officer is not required to eliminate every possible
22

line of impeachment that might apply to a victim complainant”).
Accordingly, plaintiffs’ false arrest claims are dismissed.
ii. Malicious Prosecution
1. Legal Standard
To succeed on a section 1983 claim of malicious
prosecution, the plaintiff “must show some post-arraignment
deprivation of liberty that rises to the level of a
constitutional violation.”

Singer v. Fulton Cnty. Sheriff, 63

F.3d 110, 117 (2d Cir. 1995).

This showing requires four

elements: (1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.

Kinzer v. Jackson, 316 F.3d 139, 143 (2d

Cir. 2003); accord Conway v. Vill. of Mt. Kisco, 750 F.3d 205,
214 (2d Cir. 1984).
A police officer-defendant may be held liable for
malicious prosecution where he or she “brought formal charges
and had the person arraigned, or filled out complaining and
corroborating affidavits, or swore to and signed a felony
complaint.”

Cunninham v. City of New York, No. 04-CV-10232,

2007 WL 2743580, at *5 (S.D.N.Y. Sept. 18, 2007) (quoting
Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 382-83
(S.D.N.Y. 2005)) (internal citations omitted).
23

“[A] plaintiff

usually cannot show arresting officers initiated a criminal
proceeding against him solely based on an arrest,” unless false
information provided by the officer “influences a decision
whether to prosecute.”

Levy v. City of New York, 935 F. Supp.

2d 575, 588-89 (E.D.N.Y. 2013) (internal quotation marks and
citation omitted).
As in claims of false arrest, probable cause is a
complete defense to malicious prosecution claims.

Manganiello

v. City of New York, 612 F.3d 149, 161-62 (2d Cir. 2003) (citing
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)).
“If probable cause existed at the time of arrest, it continues
to exist at the time of prosecution unless undermined ‘by the
discovery of some intervening fact.’”

Johnson v. Constantellis,

221 Fed. App’x 48, 50 (2d Cir. 2007) (quoting Kinzer, 316 F.3d
at 144).

Moreover, an indictment by a grand jury “creates a

presumption of probable cause that may only be rebutted by
evidence that the indictment was procured by ‘fraud, perjury,
the suppression of evidence or other police conduct undertaken
in bad faith.’”

Savino, 331 F.3d at 72 (quoting Colon v. City

of New York, 60 N.Y.2d 78, 83 (1983)) (emphasis in original).
2. Application
Plaintiffs’ malicious prosecution claims fail both
because the named defendants did not initiate the prosecution
and because there was probable cause for the prosecution.
24

First, plaintiffs do not allege facts establishing
that any of the individual defendants in this case initiated the
prosecution.

To the contrary, Assistant District Attorney

Meredith McClosky of the Kings County District Attorney’s Office
swore out the criminal complaints made against each of the
prosecuted plaintiffs, initiating the prosecution.
Decl. Ex. O.)

(See Haber

The complaint does not identify any false

information provided by Sergeant Mangan or Detective Duffy that
motivated the prosecution.

Although the complaint alleges in a

conclusory fashion that Sergeant Mangan “lied in paperwork
regarding particulars concerning the Lifshitz arrest” (2d Am.
Compl. ¶ 38E), it does not articulate what Mangan lied about,
and the public records related to this case establish that the
statements about plaintiffs’ culpability came from the
complaining witnesses, not the officers.
Moreover, there was probable cause to prosecute
plaintiffs based on the probable cause for the arrest, the lack
of any intervening fact that undermined probable cause to
arrest, and the Grand Jury indictment.

There is no allegation

in the complaint that the probable cause established by the
arrest and the Grand Jury indictment was disturbed by an
intervening fact or fraud or perjury.

To the contrary,

plaintiffs state in their papers that they do not allege any
perjury before the Grand Jury or at trial, “but for the decision
25

by the City to arrest the plaintiffs and refer the matter for
prosecution.”

(Pls. Opp. 16.)

For the foregoing reasons, and

for the reasons stated in the court’s analysis of plaintiffs’
false arrest claims, plaintiffs’ malicious prosecution claims
are dismissed.
c. Plaintiffs’ Equal Protection Claim
i. Legal Standard
Plaintiffs allege in a general fashion that the City
defendants treated plaintiffs unequally, as compared to Shmira
members.

(2d Am. Compl. ¶¶ 42 (“the NYPD should not have

sponsored and supported a community group involved in ongoing
political battles within the community”); 56 (“plaintiffs and
particularly Lifshitz were treated unequally by the NYPD and the
City of New York compared to treatment meted out to Shmira[’]s
members and their co-operators” [in connection with the January
2008 arrests]); 67 (“though members of Shmira have conducted
business in violation of the same City regulations [for which
Aron Hershkop received citations], no citations have issued
against [Shmira] members”).

It is unclear what legal theory

plaintiffs intend to invoke by making these allegations;
however, the Court will interpret the allegation, as do the City
defendants, as an Equal Protection Claim regarding selective
enforcement of city and state laws pursuant to the Fourteenth
Amendment.
26

“To state a claim for selective enforcement, the
plaintiff must establish ‘(1) that [he] was treated differently
from others similarly situated, and (2) that such differential
treatment was based on impermissible considerations such as
race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to
injure a person.’”

Fierro v. New York City Dep’t of Educ., 994

F. Supp. 2d 581, 592 (S.D.N.Y. 2014) (quoting Gentile v. Nulty,
769 F. Supp. 2d 573, 578 (S.D.N.Y. 2011)); accord Kamholtz v.
Yates Cnty., 350 Fed. App’x 589, 591 (2d Cir. 2009) (citing
LaTrieste Rest. & Carbaret, Inc. v. Vill. of Port Chester, 40
F.3d 587, 590 (2d Cir. 1994)).

Two groups are similarly

situated when “a prudent person, looking objectively at the two
instances of conduct, would think them roughly equivalent and
the protagonists in more or less the same situation.”

Tasadfoy

v. Ruggiero, 365 F. Supp. 2d 542, 552 (S.D.N.Y. 2005); see also
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.
1997) (“To be ‘similarly situated,’ the individuals with whom
[plaintiff] attempts to compare herself must be similarly
situated in all material respects.” (internal citation
omitted)).
ii. Application
Plaintiffs have not made sufficient factual
allegations to sustain their claim that certain laws were
27

selectively enforced by the City defendants against Shomrim
members as opposed to Shmira members.

Specifically, plaintiffs

do not allege that members of Shmira were similarly situated to
plaintiffs when the City defendants’ alleged discrimination
occurred.

For example, in their allegations regarding the

issuance of parking tickets to plaintiffs and the towing of
Shomrim vehicles, plaintiffs never allege that the Shmira
defendants also violated parking laws but were not ticketed or
towed.

(See, e.g., 2d Am. Compl. ¶ 38.)

Similarly, in alleging

that the City and NYPD treated plaintiffs unequally when
arresting them for the alleged December 2007 assaults,
plaintiffs do not allege, even in a conclusory manner, that
there was probable cause for the arrest of Shmira members that
the NYPD declined to arrest.

(See id. ¶ 56.)

Finally, with

regard to the building citations plaintiff Aron Hershkop
received, plaintiffs do not allege that Shmira members’ similar
violations were known to the City defendants and ignored.

(Id.

¶ 67.)
Furthermore, the NYPD’s decision to work with Shmira
instead of Shomrim does not provide the basis for an Equal
Protection claim.

Plaintiff does not allege any impermissible

reason, such as race, religion, or a desire to punish Shomrim
members for exercising their constitutional rights, that the
City defendants would train and provide resources to Shmira.
28

Accordingly, the court must dismiss plaintiffs’ Equal Protection
claims against the City defendants.

See Kamholtz, 350 Fed.

App’x at 591 (dismissing a selective enforcement claim where
plaintiff failed to compare his treatment to others similarly
situated); Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir. 2005)
(holding that a showing of disparate treatment alone is
insufficient to state a selective enforcement claim).
d. Municipal Liability
Plaintiffs seek to hold the City responsible for the
above described constitutional claims.

“Following [Monell v.

Department of Social Services, 436 U.S. 658 (1978)] and its
progeny, a municipality cannot be held liable under § 1983 under
a theory of respondeat superior.

Rather, there must be a

‘direct causal link between a municipal policy or custom and the
alleged constitutional deprivation.’”

Abreu v. City of New

York, 657 F. Supp. 2d 357, 360 (E.D.N.Y. 2009) (quoting City of
Canton v. Harris, 489, U.S. 378, 385 (1989)) (additional
internal citations omitted).

Because the court has found that

plaintiffs have not adequately alleged any constitutional
violations, plaintiffs’ municipal liability claims also fail,
and plaintiffs’ claims against the City of New York are
dismissed. 6

See, e.g., Vassallo v. Lando, 591 F. Supp. 2d 172,

6

Plaintiffs’ related allegation that the City failed to train and supervise
its employees (2d Am. Compl. ¶¶ 40, 55) must be dismissed for the same
reasons.

29

202 (E.D.N.Y. 2008) (holding that, where the individual City
employees had not committed any constitutional violations, the
claim against the City pursuant to Monell must also fail).
Accordingly, all claims against the City defendants are
dismissed.
III. The Shmira Defendants’ Motion to Dismiss
Shmira and Skoblo (“the Shmira defendants”) also move
to dismiss the claims against them in the Second Amended
Complaint.

As the court reads the operative complaint, there

are two causes of action brought against the Shmira defendants,
both pursuant to 42 U.S.C. § 1983: 1) that the Shmira
defendants, in concert with defendant Shuchat, violated
plaintiffs’ freedoms of speech and association and their due
process rights by making complaints to the City about Aron
Hershkop’s property (Fourth Claim for Relief); and 2) that the
Shmira defendants violated plaintiffs’ freedoms of speech and
assembly and their due process rights by making false police
reports regarding plaintiffs Aron Hershkop and Lifshitz and by
interfering with Shomrim’s radio system (Fifth Claim for
Relief). 7

Plaintiffs allege that, at all times relevant to these

causes of action, the Shmira defendants acted under color of
7
As previously noted, plaintiffs also make a sixth claim for relief, which
makes allegations against a non-party, the CHJCC. In light of the fact that
this Claim for Relief makes no substantive allegations against a person or
entity sued in this case and for the same reasons, discussed below, that the
court dismisses the other claims against the Shmira defendants, the Claim is
dismissed.

30

law.

(See 2d Am. Compl. ¶¶ 66, 68, 73.)
a. Legal Standard
The first inquiry in determining whether plaintiffs

have adequately pled their constitutional claims against the
Shmira defendants is whether, in fact, the defendants were
acting under color of law.

See Sybalski v. Indep. Grp. Home

Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per
curiam) (citing Tancredi v. Metro. Life Ins. Co., 316 F.3d 308,
312 (2d Cir. 2003)) (“[a] plaintiff pressing a claim of
violation of his constitutional rights under § 1983 is . . .
required to show state action.”)

Private conduct, no matter how

wrongful, is generally beyond the reach of Section 1983.

See,

e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 838-43 (1982)
(affirming dismissal of § 1983 claim because defendants were not
state actors); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57
(1978) (stating § 1983 reaches only deprivations of rights by
persons acting under color of law).
Non-state actors may only be held liable under Section
1983 “if there is a sufficiently ‘close nexus between the State
and the challenged action’ that seemingly private behavior ‘may
be fairly treated as that of the State itself.’” 8

8

Sykes v. Bank

The Supreme Court has set forth three scenarios in which a private entity
may be considered a state actor: (1) [when] the entity acts pursuant to the
‘coercive power’ of the state or is ‘controlled’ by the state (‘the
compulsion test’); (2) when the state provides ‘significant encouragement’ to
the entity, the entity is a ‘willful participant in joint activity with the

31

of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001)).

A “merely conclusory allegation that a private entity

acted in concert with a state actor does not suffice to state a
§ 1983 claim against the private entity,” Ciambriello v. Cnty.
of Nassau, 292 F.3d 307, 324 (2d Cir. 2002).
It is also inadequate for a plaintiff to plead that
the state and private actor were involved in joint activity
generally; “rather, the plaintiff must allege that the state was
involved ‘with the activity that caused the injury’ giving rise
to the action.”

Sybalski, 546 F.3d at 257-58 (quoting Schlein

v. Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir. 1997))
(emphases in original); see also Fabrikant v. French, 691 F.3d
193, 207 (2d Cir. 2012) (“In analyzing whether a private entity
acts under color of state law for purposes of § 1983, we begin
by identifying the specific conduct of which the plaintiff
complains, rather than the general characteristics of the
entity” (internal quotation marks and citation omitted)).
Moreover, even if a private entity is considered to be
functionally a state actor, the wrongdoing complained of must
take place within the scope of the actor’s duties.

Cf. Isaac v.

City of New York, No. 10-CV-4177, 2012 WL 314870, at *2
[s]tate,’ or the entity’s functions are ‘entwined’ with state policies (‘the
joint action test’ or ‘close nexus test’); or (3) when the entity ‘has been
delegated a public function by the [s]tate,’ (‘the public function test’).”
Sybalski, 546 F.3d at 257 (quoting Brentwood Acad., 531 U.S. at 296).

32

(E.D.N.Y. Feb. 1, 2012) (noting that acts “of officers in the
ambit of their personal pursuits are plainly excluded from acts
considered under color of law” and dismissing the Section 1983
claims where the Corrections Officer-defendant engaged in a
fight for personal reasons with the plaintiff).
b. Application
The court need not decide whether Shmira functioned as
a state actor for the purposes of Section 1983 liability;
plaintiffs have not adequately pled state involvement in the
specific injuries alleged in their Fourth and Fifth Claims for
Relief.

Specifically, plaintiffs allege that Shuchat, using

information from Skoblo, complained about Aron Hershkop’s
property to City authorities.

(2d Am. Compl. ¶ 65.)

There is

no allegation that the City participated in making these
complaints or that Shuchat and Skoblo acted as part of their
policing activities for Shmira.

Although the plaintiffs allege

that Skoblo surveilled the Hershkop property with a vehicle
provided by the City, this allegation is not sufficient to
convert that private surveillance into state action.

See, e.g.,

Gonzalez v. City of New York, 135 F. Supp. 2d 385, 394 (E.D.N.Y.
2001) (citing Tavoloni v. Mt. Sinai Med. Ctr., 984 F. Supp. 196,
200-04 (S.D.N.Y. 1997)) (“[S]tate funding and regulation of a
private entity alone is insufficient to transform the actions of
that entity into state action without showing that the state
33

exercised its power to bring about the specific allegedly
unconstitutional actions.”); accord Engelhardt v. Beth Israel
Med. Ctr., No. 00-CV-2239, 2000 WL 1871736, at *3 (S.D.N.Y. Dec.
20, 2000).
Plaintiffs’ allegations that non-moving defendant
Okonov, encouraged by Shmira, made false accusations against
Aron Hershkop and Lifshitz also does not implicate the City or
Shmira’s status as a City-approved community watch group in any
way.

To the contrary, it appears from the Complaint that the

NYPD investigated these accusations independently and closed the
complaints.

(See 2d Am. Compl. ¶ 72.)

Accordingly, the

plaintiffs’ Fourth and Fifth claims are dismissed.
CONCLUSION
For the foregoing reasons, plaintiffs’ claims against
the City defendants, Shmira, and Skoblo are dismissed in their
entirety. 9

Because the court finds that it would be futile for

9

Although plaintiffs mention in a cursory fashion that the City and Shmira
defendants violated state law in addition to certain provisions of the United
States Constitution, they fail to specify what state laws they are invoking.
In addition, plaintiffs do not press these state law claims in opposition to
defendants’ motions to dismiss, and the court therefore considers any state
law claim plaintiffs sought to make abandoned and the state law claims are
therefore dismissed. See Martinez v. City of New York, No. 11-CV-7461, 2012
WL 6062551, at *1 (S.D.N.Y. Dec. 6, 2012) (“A court may, and generally will,
deem a claim abandoned when a plaintiff fails to respond to a defendant’s
arguments that the claim should be dismissed.”)
Furthermore, as the City defendants note, in order to bring state law
tort claims against a municipality or its employees, a plaintiff must file a
notice of claim within ninety days of the claim’s accrual. See, e.g., Eberle
v. Town of Southampton, 985 F. Supp. 2d 344, 347-48 (E.D.N.Y. 2013) (citing
N.Y. Gen. Mun. Law § 50-e and collecting cases). New York law mandates that
a plaintiff plead that he has filed the notice of claim in his complaint.
N.Y. Gen. Mun. Law § 50-i. There is no such allegation in plaintiffs’

34

plaintiffs to amend their Complaint with regard to these
defendants, particularly in light of the fact that the Complaint
has been amended twice previously, all of the claims are
dismissed with prejudice.

The Clerk of Court is accordingly

respectfully requested to terminate defendants the City of New
York, Crown Heights Shimra, Inc., Skoblo, Simonetti (s/h/a
Simminetti), Troise, Hammond (s/h/a Hammad), Wright (s/h/a
White), Duffy, Mangan, Kelch, and McHugh from this case.
Accordingly, there are five non-moving defendants
remaining in this case: Huebner, Poltorak, Shuchat, Okonov, and
Stern.

It appears from the docket sheet that defendant Okonov

was never served with the first or second amended complaints and
that Shuchat and Stern were never served with any version of the
complaint.

Pursuant to Federal Rule of Civil Procedure 4(m),

plaintiff must show cause no later than October 9, 2014 as to
why these defendants should not be dismissed.

Also by October

9, 2014, plaintiffs must confer with defendants Huebner and
Poltorak and provide the court with a joint status letter
complaint or any other indication that they have filed a notice of claim,
and, the court would therefore dismiss any state tort claims brought against
the City defendants. See Am. Tel. & Tel. Co. v. New York City Dep’t of Human
Res., 736 F. Supp. 496, 499 (S.D.N.Y. 1990) (“Notice of claim requirements
are construed strictly by New York state court, and failure to abide by their
terms mandates dismissal of the action.”). Additionally, any state law
claims regarding plaintiffs’ arrests would be time-barred, as may other
claims for which plaintiffs have not provided a date of accrual. See N.Y.
CPLR § 215(3) (actions to recover damages for state law torts must be
commenced within one year) and N.Y. Gen. Mun. Law § 50-i (tort claims against
municipal entities and their employees must be commenced within one year and
ninety days).

35

regarding how they intend to proceed with the case.

Finally,

plaintiffs’ counsel shall serve a copy of this order on
defendants Shuchat, Okonov, and Stern and file proof of service
with the court forthwith.

SO ORDERED.

Dated:

September 25, 2014
Brooklyn, New York

________/s_________________
KIYO A. MATSUMOTO
United States District Judge

36