Kennedy v. City of New York et al
ORDER granting 36 Motion for Summary Judgment. Ordered by Judge Edward R. Korman on 7/10/2013. (Davies, Jamison)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against :
THE CITY OF NEW YORK et al.,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
Plaintiff Michael Kennedy (“Kennedy”) was arrested at around 4:45 a.m. on March 26,
2008, in Brooklyn.
The arrest report indicates that he was arrested pursuant to various
provisions of New York’s Vehicle Traffic Law for driving under the influence of alcohol,
running a red light, refusing to take a breathalyzer test, and failing to wear his seatbelt. Arrest
Report, Ashanti Decl. Ex. I. Officer Carreira testified that he observed plaintiff run a red light
and swerve his vehicle, crossing the double yellow line. Carreira Dep., Ashanti Decl. Ex. D, at
38:4–24. After he was pulled over, plaintiff was asked to exit his vehicle and, according to
Carreira, was unsteady on his feet, exhibited bloodshot, watery eyes, and smelled of alcohol. Id.
at 60:10–12. Carreira testified that plaintiff admitted to having four drinks. Kennedy conceded
in his deposition and his affidavit that he had “three or four drinks” over the course of his
evening prior to the arrest and that he admitted the same to the officers when asked. Kennedy
Dep., Dkt. 46-1, at 87:20; Kennedy Aff., Hazan Decl. Ex. 3, at ¶ 5, 27.
Kennedy was arraigned and charged with several offenses. On March 30, 2011, after he
made “many” court appearances, they were dismissed on the ground that he had been denied his
right to a speedy trial under New York law. Certificate of Disposition Dkt. 2008KN023104,
Kennedy Aff. Ex. C. Kennedy then filed this action against the City and several officers for false
arrest, malicious prosecution, and various other causes of action. After discovery, the defendants
filed the instant motion for summary judgment.
Probable cause (or, in the case of the traffic stop, reasonable suspicion) is a complete
defense to a claim of false arrest. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). It “requires
the arresting officer to have knowledge or reasonably trustworthy information sufficient to
warrant a person of reasonable caution in the belief that an offense has been committed by the
person to be arrested.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (internal citation
and quotations omitted).
In this case, there are two events which plaintiff alleges support a claim for false arrest or
improper seizure in violation of the Fourth Amendment: the initial traffic stop and the
subsequent arrest and confinement. They will be addressed in order.
a. The initial stop of plaintiff’s vehicle
First, as to the initial stop, a traffic stop entails the seizure of the driver within the
meaning of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 255 (2007) (citing
Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Because stopping of a vehicle for questioning is
not so intrusive as to require probable cause, an investigatory stop is justified if officers are
aware of “specific articulable facts, together with rational inferences from those facts that
reasonably warrant suspicion” that the person to be stopped violated the traffic laws. See, e.g.,
United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). The determination of reasonable
suspicion draws from “commonsense nontechnical conceptions” and requires consideration of
the overall context of the stop to determine if the police officer had a “particularized and
objective basis” for suspecting that the person stopped was engaged in criminal activity,
including a violation of the traffic laws. See Ornelas v. United States, 517 U.S. 690, 695–96
Here, Officer Carreira testified that he stopped plaintiff’s vehicle because he observed
plaintiff drive through a steady red light and swerve over the double yellow lines on McDonald
Avenue. Carreira Dep. at 38:10–24. At his deposition Kennedy was unable to contradict the
testimony that he drove through a steady red light.
Indeed, he testified that he had no
recollection of whether he even encountered any red lights.
The relevant portion of the
deposition testimony reads as follows:
Q. At any point in time when you first hit McDonald and where
you were pulled over, did you encounter any red lights?
A. I can't say I did and I can’t say I didn't.
Q. Do you mean you don’t remember?
A. Yes, I don't remember. I don’t remember in the sense of when I
was going and when I stopped. I can’t answer that.
Kennedy Dep. at 101:20–102:2. He also testified that it was “too far back to remember” whether
he stopped at any red lights. Id. at 102:14–15. Notwithstanding the foregoing deposition
testimony, in a later-filed affidavit in opposition to the summary judgment motion, Kennedy
alleges definitively that he never ran a solid red light. Kennedy Aff. ¶¶ 13, 17.
Relying on Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.
1969), defendants argue that his affidavit is insufficient to create a genuine issue of material fact
because it is materially inconsistent with his deposition testimony. In that case, the Second
Circuit held that a party may not submit an affidavit contradicting his prior deposition testimony
with the purpose of manufacturing an issue of material fact and thereby defeating summary
judgment. Id. at 578. “Thus, factual issues created solely by an affidavit crafted to oppose a
summary judgment motion are not ‘genuine’ issues for trial.” Hayes v. N.Y.C. Dept. of Corr., 84
F.3d 614, 619 (2d Cir. 1996).
Particularly applicable here is the Seventh Circuit’s decision in Clark v. Takata Corp.,
192 F.3d 750 (7th Cir. 1999). There, the plaintiff sued Honda after a car accident, alleging the
seatbelt in his vehicle was defective. One issue that arose in the case was whether the seatbelt
detached during the crash or remained buckled. Id. at 753. One of the EMT’s who was on the
scene testified in her deposition that she did not remember whether the plaintiff’s lap belt was
still attached when she reached him. Id. at 759–60. In opposition to summary judgment, the
plaintiff filed a new affidavit from the same EMT stating definitively that the plaintiff’s lap belt
was not still attached. Id. at 760. The Seventh Circuit held that the definitive affidavit could not
overcome the earlier deposition testimony that the witness did not remember the relevant facts.
Quoting from its earlier holding in Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206 (7th
Cir. 1993), which involved a similarly unexplained refreshed recollection of a fact that had been
forgotten in a deposition, the Seventh Circuit held that “‘a party cannot claim a lack of general
knowledge about a subject and later make a statement which requires detailed knowledge about
the same subject.’” Clark, 192 F.3d at 760.
This holding applies equally to the present case in which Kennedy’s affidavit denies he
ran a red light in contradiction of his earlier testimony at his deposition that he has no
recollection of whether he even encountered any red lights. In sum, for reasons explained above,
I decline to consider the challenged statements in Kennedy’s affidavit. This leaves only the
uncontradicted testimony of the police officers, which establishes that the stop of Kennedy’s car,
based on his failure to stop at a red light, did not constitute a violation of the Fourth Amendment.
b. The subsequent arrest
The undisputed facts demonstrate probable cause for the arrest, which is a complete
defense to a § 1983 claim for false arrest.1 Kennedy admits to having had three or four drinks
the night of the arrest and to telling the arresting officers that he had been drinking. Kennedy
Aff. ¶¶ 5, 27. The fact that the police officers saw him run a red light and his admission that he
had been drinking was alone sufficient for them to form an objectively reasonable belief that he
had committed the offenses of driving while intoxicated and failing to stop for a red light. While
Kennedy maintains that he told the arresting officers that he had not had any alcohol for several
hours and was therefore no longer intoxicated, they were under no duty to “explore and eliminate
every theoretically plausible claim of innocence before making an arrest.” Coons v. Casabella,
284 F.3d 437, 441 (2d Cir. 2002); see also Jocks v. Tavernier, 316 F.3d 128, 135–36 (no duty to
“investigate exculpatory defenses offered by the person being arrested or to assess the credibility
of unverified claims of justification before making an arrest”). In any event, even if probable
cause was lacking to justify his arrest for driving while intoxicated, there was a sufficient basis
for his arrest for running a red light.
Moreover, any alleged impropriety with respect to the legality of the initial stop does
affect the subsequent arrest, for which Kennedy’s admissions supplied probable cause. In
Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), the Second Circuit held that at § 1983
plaintiff can only seek damages for an actionable violation of the Constitution and the injuries
directly or proximately caused by the violation. Id. at 145. In that case, the plaintiff was riding
in a taxi which was stopped and searched. Id. at 141. The search uncovered handguns and
cocaine, for which the plaintiff was prosecuted and incarcerated. Id. The plaintiff sued, alleging
Plaintiff’s claim for failure to intervene fails because it is derived from the alleged unconstitutional stop and arrest.
See Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (holding liability precluded for failure to intervene
where arresting officers committed no constitutional infringement).
that the stop and search of the taxi was unconstitutional and sought damages for his conviction
and incarceration. Id. The Second Circuit’s decision in Townes proceeded in two parts.
To start, it held that there is no equivalent to the “fruit of the poisonous tree” doctrine in
civil § 1983 actions, i.e., that the question was not whether the constitutional violation was the
“but for” cause of the plaintiff’s damages. Id. at 145. Instead, the Townes court found that
plaintiffs in § 1983 cases must show that any subsequent harms were “proximately caused” by
the initial misconduct and that there were no superseding causes of the injury, using traditional
principles of tort law. See id. at 146.
Under traditional principles of tort law, the term “proximate cause” is often conflated
with the issue whether the harm to the plaintiff was a “foreseeable consequence” of the
defendant’s conduct. In the last edition of the Law of Torts that was written by Dean Prosser
before his death, he addressed the difficulties inherent in defining the term “proximate cause” in
the context of determining the liability of the defendant for his own negligence. After a lengthy
discussion of the issue, he observed that “the conclusion may well be drawn that, while there are
still rearguard actions, and cases that do not fit, the ‘scope of the foreseeable risk’ is on its way to
ultimate victory as the criterion of what is ‘proximate,’ if it has not already achieved it.”
William L. Prosser, Law of Torts 267 (4th ed. 1971). While Prosser is also critical of the utility
of the term “foreseeable risk,” id., the term seems particularly useful in the present context which
deals with the foreseeability of the consequences of the stop and not whether the defendants were
One case that Prosser cites defines the term “foreseeable risk” as encompassing “all the consequences which a
prudent and experienced person, fully acquainted with the circumstances which in fact existed . . . would at the time
of the negligent act have thought reasonably possible if they had occurred to his mind.” Prosser, Law of Torts 268
n.63 (quoting Butts v. Anthis, 73 P.2d 843, 844–45 (Okla. 1937)) (alterations in the original); see also Restatement
(Second) of Torts § 435(2) (2012) (containing a somewhat different definition, of which Prosser is also critical).
Accepting Kennedy’s version of the facts, the police officer stopped him without any
reason to believe that he was driving while intoxicated or that he had committed any other traffic
infraction. Any evidence they found as a result of that stop was therefore not a foreseeable
consequence of the stop. On the other hand, if the testimony of the police officers is credited,
there would be no basis for precluding them from relying on any evidence they found, even if the
discovery of such evidence was foreseeable.
Plaintiff fares no better under the second part of the Townes holding, which was that
“[v]ictims of unreasonable searches or seizures may recover damages directly related to the
invasion of their privacy . . . but such victims cannot be compensated for injuries that result from
the discovery of incriminating evidence and the consequent criminal prosecution.” Id. at 148
(emphasis added). A plaintiff whose initial, illegal stop led to the discovery of incriminating
evidence may only recover damages for the initial stop and associated seizure, which would “at
most support slight or nominal damages.” Id. at 145; accord Hector v. Watt, 235 F.3d 154, 157
(3d Cir. 2000) (“We agree with Townes: . . . victims of unreasonable searches . . . cannot be
compensated for injuries that result from the discovery of incriminating evidence and consequent
criminal prosecution.”) (internal quotation marks omitted).
Here, Kennedy alleges a cause of action for violation of the Fourth Amendment and
another for false arrest. Compl. ¶¶ 40, 42–43. Under the second part of the Townes analysis,
even if his cause of action relating to the initial stop was to go forward, he would be able to
recover only the nominal damages arising from the minor invasion of privacy occasioned by the
stop of his car.
His subsequent arrest was clearly supported by probable cause and therefore
caused no damages for which he could recover. See Townes, 176 F.3d at 149 (“The lack of
probable cause to stop and search does not vitiate the probable cause to arrest . . . .”); cf. Cyrus v.
City of New York, 450 Fed. App’x 24, 26 (2d Cir. 2011) (assuming initial arrest unlawful,
evidence discovered incident to arrest admissible to support probable cause defense in the
subsequent § 1983 action). Machado v. Weare Police Dept., 494 Fed. App’x 102, 104–07 (1st
Cir. 2012) (even assuming initial stop of vehicle was illegal, discovery of drugs during search
provided “ample” probable cause to justify arrest).
To prevail in an action for malicious prosecution the plaintiff must show: (1) the
initiation of an action by the defendant against him, (2) with malice, (3) without probable cause,
and (4) that the action terminated in his favor. See Swartz v. Insonga, 704 F.3d 105, 111–12 (2d
Cir. 2013). The plaintiff must also be subject to some manner of continuing seizure upon his
release from custody. Id. at 112. While the Second Circuit’s cases on this issue are hardly a
seamless web, compare Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010) (obligation to appear in
court in response to a pre-arraignment summons not a seizure) with Swartz, 704 F.3d at 112
(describing Burg’s discussion of the issue as “dictum” and holding the obligation to appear in
criminal proceeding was a sufficient deprivation of liberty), the most recent case, which I am
bound to follow, holds that a post-arraignment obligation to answer criminal charges and several
court appearances are a sufficient deprivation of liberty. Swartz, 704 F.3d at 112; cf. Burg, 591
F.3d at 98 (number of appearances “may bear” upon whether there was a sufficient deprivation).
Kennedy testified that he made many appearances before the charges against him were
dismissed on speedy trial grounds. This constitutes a termination in favor of the criminal
defendant under New York law. Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417–18 (2d
Cir. 1999) (citing Murphy, 118 F.3d 938 (2d Cir. 1997)).
Nevertheless, the malicious
prosecution claim fails because there was probable cause to initiate a prosecution. See D'AngeloFenton v. Town of Carmel, 470 F. Supp. 2d 387, 396 (S.D.N.Y. 2007) (well-established that a
finding of probable cause defeats a claim for malicious prosecution).
Dismissal of Remaining Claims
In his opposition brief, Kennedy stated his intent to dismiss his claims against all
defendants except Anthony Carreira, Thomas Kulka, and the City of New York, and his fifth
through ninth causes of action against all parties. See Pl. Br. at 2. Though neither party has
addressed this issue in detail, defendants argue that those claims should be dismissed with
prejudice. I agree. A unilateral motion to dismiss an action without prejudice is permissible
only before the defendant has filed an answer or a motion for summary judgment. Fed. R. Civ.
P. 41(a)(1). Because Kennedy no longer has the ability to unilaterally withdraw his claims, the
claims can be dismissed “only by court order, on terms that the court considers proper.” Fed. R.
Civ. P. 41(a)(2). “The theory underlying this limitation is that, after the defendant has become
actively engaged in the defense of a suit, he is entitled to have the case adjudicated and it cannot,
therefore, be terminated without either his consent, permission of the court, or a dismissal with
prejudice that assures him against the renewal of hostilities.” Exxon Corp. v. Maryland Cas. Co.,
599 F.2d 659, 661 (5th Cir. 1979).
Here, the factors considered in deciding whether to dismiss with prejudice weigh in favor
of defendants. See Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990) (setting out
factors). The case has been pending for more than two years, and the arrest complained of
happened more than five years ago. The parties have undertaken significant discovery and
would incur significant expense in relitigation. Moreover, plaintiff has set forth no showing of
the need to dismiss at this stage or the desirability of litigating the other claims in a different
forum or at a later point in time. In light of the governing legal standards, those claims are
unlikely to be successful. Accordingly, they are dismissed with prejudice.
The defendants’ motion for summary judgment is granted on all claims except those
which plaintiff has asked to withdraw, which are dismissed with prejudice.
Brooklyn, New York
July 10, 2013
Edward R. Korman
Senior United States District Judge
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