Duncan et al v. City of New York et al

Filing 155

ORDER ADOPTING REPORT AND RECOMMENDATIONS (w/ Modification): For the foregoing reasons, the Court adopts Magistrate Judge Orenstein's R&R as the opinion of the Court but as modified by this Memorandum and Order. For ease of reference, the modifi cations are recapitulated herein. Finally, counsel are directed to contact United States Magistrate Judge James Orenstein to arrange for a conference as to further pretrial matters. (Ordered by Judge Eric N. Vitaliano on 7/17/2017) Must see Order for further details. c/m (Galeano, Sonia)

\

l \,1
J \\ '

Fi LED

IN Cl G'li~'S OFFICE

US DISTRICT COUATE.O.N.Y.

"'\\v~ J~~
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

2 1 20\7 I

C_YRooKLYN OFF~C

------------------------------------------------------------}{
SHAMAINE DUNCAN,

Plaintiff,

MEMORANDUM & ORDER
11-CV-3901 (ENV)(JO) I

-againstTHE CITY OF NEW YORK, et al.,
Defendants.

-----------------------------------------------------------}{
-----------------------------------------------------------}{

EBONY DUNCAN, et al.,

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12-CV-1565 (ENV)(JO)I
Plaintiffs,

-againstTHE CITY OF NEW YORK, et al.,
Defendants.

-----------------------------------------------------------}{
VITALIANO, D.J.
Plaintiffs Shamaine Duncan, Ebony Duncan, Harrison McCombs, Breyon Gray,

an~
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Deborah Harrell have filed suit against the City of New York and several members of the yew
York City Police Department: Inspector John Denesopolis, and 120th Precinct Officers Frank
Aliffi, Jerry Garcia, Jin Tsoi, Bruce Ceparano, Jeff Desio, Bekim Kalicovic, Albert Isaac, /oi
Fahim, Michael Hotaling, Francisco Moncayo, Mashiel Santos, Gregory Howard, Christian

;

Cataldo, and Richard Dinkle. See Shamaine, Dkt. No. 117 (fourth amended complaint)

("Shamaine Compl."); Ebony, Dkt. No. 122 (second amended complaint) ("Ebony Compl."). 1

Consistent with the identifiers used by Magistrate Judge Orenstein, the Court will r~fer to
Shamaine and Ebony Duncan by their first names and to all other individuals by their surnamer
and, accordingly, refer to the separate actions by either Shamaine, 11-CV-3901, or Ebony, /12CV-1565. Shamaine Duncan is the sole plaintiff in Shamaine; Ebony Duncan, Harrison
McCombs, Breyon Gray, and Deborah Harrell are joined as plaintiffs (the "Ebony plaintiffs") tn
Ebony

Plaintiffs charge defendants with violating their rights under federal and New York State law,
and defendants now seek partial summary judgment in each action. 2 Shamaine, Dkt. No. 124;
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Ebony, Dkt. No. 132.

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On September 29, 2016, Magistrate Judge James Orenstein issued a consolidated Ripolrt:
and Recommendation ("R&R) in which he recommended that defendants' motions for sunk

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judgment be granted in part and denied it in part. Shamaine, Dkt. No. 141 ("R&R"); Ebonl, Dtt.
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No. 148 ("R&R"). Pursuant to Federal Rule of Civil Procedure 72(b)(2), on October 17, 2016,

defendants made timely objections in both the Shamaine and Ebony actions. Shamaine,

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D~. No.
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142 ("Shamaine Obj."); Ebony, Dkt. No. 149 ("Ebony Obj."). Plaintiffs responded to these
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objections on November 21, 2016. Shamaine, Dkt. No. 146 ("Shamaine Obj. Opp."); Eb+y,
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Dkt. No. 153 ("Ebony Obj. Opp.").
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After careful consideration of the R&R, defendants' objections, and plaintiffs' opp1siti?n
to those objections, and upon de novo review, the Court adopts Magistrate Judge Orenstei~'s .
R&R, with certain modifications, as discussed below.
Background4
Ebony is the owner of a barbershop located at 411 Jersey Street on Staten Island (the

"barbershop"), and on New Year's Eve 2011, the plaintiffs were gathered inside. At somelpoitt
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2

Officer Dinkle is not named as a defendant in Ebony; therefore, no Ebony claims
implicate him. All plaintiffs previously asserted, and have since withdrawn, claims against
Officer Kalicovic. Shamaine, Dkt. No. 134 at 19; Ebony, Dkt. No. 142 at 29.
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3

The Court granted plaintiffs' request for an extension of time to file their responses: in
both Shamaine and Ebony. See Shamaine, Dkt. No. 145; Ebony, Dkt. No. 151.

4

These facts are drawn, for the most part, from the parties' respective statements made
pursuant to Local Civil Rule 56.1. Facts presented in this section without record citation ate
undisputed. A fuller factual recitation is set out in the R&R. See R&R at 2-4.
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that night, a fight broke out nearby, shots were fired, and the police responded to several 911
calls by racing to Jersey Street. After the officers arrived, certain members of the crowd
retreated inside the barbershop, and the officers - observing this - followed them. Ebony
proceeded to tell the non-officer intruders who had entered the shop to leave. Defendants
contend that Ebony also requested their assistance in removing the intruders, while plaintiffs

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assert that Ebony removed the unwanted persons on her own, and, moreover, informed the bolibe
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of this when they arrived. Shamaine, Dkt. No. 128 (Defendants' Rule 56.1 Statement) ("Df 6")

~~ 70-71, 161-62; Shamaine, Dkt. No. 135 (Shamaine Response & Counter-Statement) ("SS6"j
~~ 70-71, 162;

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Ebony, Dkt. No. 143 (Ebony Response) ("E56") ~~ 70-71, 161-62. The police

entry resulted in a confrontation between various officers, named as defendants, and plaintiffs.
What happened thereafter is, for the most part, hotly contested. In short, defendantl
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assert that, while conducting a lawful investigation of Ebony's barbershop, they issued orders to
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plaintiffs that they disobeyed; disobedience of those orders resulted in a decision to make ~ests.

See e.g., 056 iii! 78, 86, 94-99. Defendants also allege that they discovered two firearms ij

the~

barbershop, one on a counter and the other in a bathroom. Id. ~~ 74, 180. Plaintiffs, on the otb!er
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hand, claim that the officers were not lawfully searching the barbershop. They dispute tha1 thei
officers issued orders that plaintiffs disobeyed. See, e.g., E56 ~~ 78, 86, 94-99. Plaintiffs ~lso
controvert the officers' representations regarding the firearms and they assert that the officers
must have planted the weapons in the barbershop. See id.

iii! 74, 180.

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Plaintiffs Shamaine, Ebony, McCombs, and Gray (i.e., all but Harrell) were formally
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arrested and charged with various offenses. All criminal charges against plaintiffs were

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eventually dismissed. Plaintiffs now pursue a panoply of claims arising under federal and ~tate
law against the officers. See R&R at 4-5. 5
Standard of Review
In reviewing a report and recommendation of a magistrate judge, a district judge "111ay
accept, reject, or modify, in whole or in part, the findings or recommendations ...." 28 U.S.C §
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636(b)(l). Moreover, in conducting its review, the district "court need only satisfy itself thkt
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there is no clear error on the face of the record" to accept a magistrate judge's report and

recommendation, provided no timely objection has been made. Urena v. New York, 160 F.lsuJp.
2d 606, 609-10 (S.D.N. Y. 200 l) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D .N. Y.1
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1985)); see also Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472, 88 L. Ed. 2d 435 (1985).
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However, a district judge is required to "determine de novo any part of the magistrate judg~'s

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disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Arista
Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010).
Discussion

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Defendants timely objected to certain findings in the R&R. With respect to the Sh~maire
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action, defendants objected that (1) as to Officers Fahim and Moncayo, Shamaine's claim for

violation of his right to a fair trial should have been summarily dismissed, Shamaine Obj.

s

~t 2-f;
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The operative Shamaine complaint lists 22 causes of action. Shamaine Compl. at 1p-27.
The operative Ebony complaint lists 23 causes of action. Ebony Compl. at 10-28. As noted in I
Magistrate Judge Orenstein R&R, the Ebony plaintiffs have withdrawn all claims arising ubdetl'
state law. See R&R at 4; Ebony, Dkt. No. 142 at 1 n.1. Shamaine has withdrawn his abus~ of,
process; negligent screening, hiring and retention; and equal protection claims. Shamaine,
No. 134 at 41, 50. Additionally, the R&R recommends dismissing Shamaine's state law
negligence and intentional infliction of emotional distress claims on the merits. R&R at 4 l48
No party having objected to this recommendation, and the Court, finding no clear error on the
face of it, adopts this portion of the R&R as the opinion of the Court. Additionally, as discussed
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infra in Section l.C, the balance of Shamaine's state law claims are dismissed.

/nkl
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(2) Shamaine's malicious prosecution claim should have been dismissed as against Officej

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Ceparano, Desio, Garcia, Tsoi, and Fahim, id. at 3-5; and (3) Shamaine's state law claims should
have been dismissed as procedurally barred, id. at 5-6.
As to the Ebony action, defendants interposed five objections to the R&R: (1) that
defendants are entitled to summary judgment on Ebony's excessive force claim because Ebony
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never made such a claim in the operative complaint, Ebony Obj. at 2-4; (2) that Harrell's
excessive force claim should have been dismissed, id. at 4-7; (3) that Officers Fahim and
Moncayo should have been granted summary judgment dismissing the fair trial claims maqe on
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behalf of McCombs and Gray, id at 7-9; (4) that Ebony's unlawful entry claim should have been
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dismissed, id. at 9-12; and (5) that Ebony's false arrest claim should have been dismissed,

~d.

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at

12-13.
The Shamaine Action

I.
A.

Shamaine's Fair Trial Claim

Shamaine Duncan asserts a§ 1983 claim for violation of his right to a fair trial.
Shamaine Compl. at 13-14. Magistrate Judge Orenstein recommended that the Court denyl

f !i,,
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defendants' motion for summary judgment on this claim as to three defendants - Officers

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Fahim, and Moncayo- but that it grant the defense motion with respect to the remaining offic~s.
R&R at 42. Defendants point out that two of the three officers against whom the fair trial elaim
had survived, Officers Fahim and Moncayo, had only provided prosecutorial information r11atLg
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to Ebony Duncan, and none as to Shamaine Duncan. Shamaine Obj. at 2-3. Summary judgment
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in favor of Officers Fahim and Moncayo should have been granted. The point is concededl
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acknowle~ges that his fair trial claim is asserted against Officer Aliffi only. ShJmai~e
Obj. Opp. at 3.
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Shamaine

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The R&R is modified to award summary judgment of dismissal to Officers Fahim ld
Moncayo on Shamaine's fair trial claim.
B.

Shamaine's Malicious Prosecution Claim

Defendants next object to the R&R on the ground that Shamaine's malicious prosec;ution
claim should have been dismissed as to Officers Ceparano, Desio, Garcia, Tsoi and Fahim, e.,
the subset of defendants who did not sign the criminal court complaint against Shamaine.

Shamaine Obj. at 3-5. More precisely, defendants take issue with the finding by Judge Orerstern
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that the non-signing officers could be liable by way of conferring with Officer Aliffi before
Aliffi signed the criminal complaint, which formally started the wheels of prosecution to

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See Shamaine, Dkt. No. 128-32 ("Aliffi Dep.") at 179-81. 6

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To prevail on a claim of malicious prosecution under state law, a plaintiff must establish
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four elements: (1) defendant initiated a prosecutio'n against plaintiff, (2) without probable caus~
to believe the proceeding can succeed, (3) the proceeding was begun with malice and, and (4) te
•

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matter terminated in plaintiff's favor. Ricciuti v. New York City Transit Auth., 124 F.3d

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(2d Cir. 1997). In order to allege a cause of action for malicious prosecution under§ 1983, a
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plaintiff must additionally assert that there was "a sufficient post-arraignment liberty restraint to
implicate the plaintiff's Fourth Amendment rights." Rohman v. New York City Transit

Au~h.

(NYCTA), 215 F.3d 208, 215 (2d Cir. 2000).

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Plaintiffs' argument that the Court should review the R&R for clear error as to this iclaiin,
since "defendants have provided no new argument[,]" is rejected. Shamaine Obj. Opp. at 3. I
Defendants do not simply rehash arguments from their summary judgment papers, but rather,
make "specific" objections to Magistrate Judge Orenstein's finding. See Mario v. P & C Food
Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002).
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As to the first element, "[t]here is a presumption that a prosecutor exercises independen
judgment in deciding whether to initiate and continue a criminal proceeding ...." See Brome v.

City ofNew York, 02-CV-7184, 2004 WL 502645, at *5 (S.D.N.Y. Mar. 15, 2004).

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Nevertheless, a plaintiff may overcome this presumption by "demonstrating that the defendant
played an active role in the prosecution, such as giving advice and encouragement or
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importuning the authorities to act." Jouthe v. City ofNew York, 05-CV-1374, 2009 WL 7011 lJ,
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at *11 (E.D.N.Y. Mar. 10, 2009) (citation omitted). "A police officer may initiate criminal!
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proceedings by bringing charges and having the plaintiff arraigned, by filling out complaining :
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and corroborating affidavits, and by signing felony complaints." Shabazz v. Kailer, 201 F. 'Supp.
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3d 386, 392 (S.D.N.Y. 2016); see also Llerando-Phipps v. City ofNew York, 390 F. Supp. 2d

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372, 382-83 (S.D.N.Y. 2005) (denying summary judgment to defendant officers on claim ~f
malicious prosecution and noting that "[d]etective [one] reported that he found the evidence of
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drugs in the police car to [d]etective [two], who signed the accusatory instrument[]" and

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therefore "[a] jury could find the officers were sufficiently involved in initiating the criminal
proceeding"). A police officer may also be held liable for malicious prosecution if he prov)ideJsl
false information to the prosecutor that "influences a decision whether to prosecute." Douglas v.
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City ofNew York, 595 F. Supp. 2d 333, 342 (S.D.N.Y. 2009) (citation omitted); see also Ricci Iti,
,
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124 F.3d at 130.

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Defendants' objection goes only to the first element, namely whether the officers

did

not sign the criminal court complaint "initiated a prosecution" against Shamaine. And
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defendants are correct that simply participating in the arrest of Shamaine would not be enough.
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for malicious prosecution liability to attach. However, to the extent these officers provided falke

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information that led to his prosecution, as Shamaine alleges, a reasonable jury could find that this
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element is met. See Williams v. City ofNew York, 06-CV-6601NGO,2009 WL 3254465, it *2
(E.D.N.Y. Oct. 9, 2009); Chimurenga v. City ofNew York, 45 F. Supp. 2d 337, 343 (S.D.N.Y.
1999). For example, in Williams, plaintiff was arrested for, inter alia, resisting arrest.

200~ W

3254465, at *1-2. On plaintiff's version of the facts, at no point during his interaction withlthe
officers did he struggle or resist in any way. Id at *1. The defendant officers, on the other hand,
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alleged that plaintiff "struggle[d]" and "ignored several direct orders to stop resisting." Id. 1at *k.

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The district court denied the defendant officers' motion for summary judgment on plaintiffr s

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malicious prosecution claim, noting that "[o]n [p] laintifr s account of the facts, which the court
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accepts as true on summary judgment, the officers provided false information about the evcints;
leading up to his arrest, which then formed the basis for the criminal complaint against hiJ"
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;d.
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at *9.

enga~e ij
any conduct that could reasonably be construed as endangering or threatening any police o~cr/
Here, Shamaine, of course, contends that "[a]t no time did [he] resist arrest or

or any other individual ...." Shamaine Compl. ~ 20; see also Shamaine, Dkt. No. 136-2
("Shamaine Dep.") at 160 (Shamaine stating that he was not fighting in any way when the

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officers got to the barbershop). His complaint stands in stark contrast to what four of the fiye
officers testified to during their depositions, and to the undisputed fact that Shamaine was
charged with obstructing governmental administration, resisting arrest, attempted assault,
disorderly conduct, and criminal possession of a controlled substance. See Shamaine, Dkt. Noi
136-7; see also Shamaine, Dkt. No. 136-18 ("Desio Dep.") at 86-92, 190-92, 214 ("The
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gentlemen who was being placed under arrest was resisting . . .. "); Shamaine, Dkt. No. 128-27
("Ceparano Dep.") at 93-95, 125, 180 (stating that Shamaine was charging and threateninJto

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the officers); Shamaine, Dkt. No. 136-13 ("Fahim Dep.") at 74-76 (describing the struggle that

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ensued when arresting Shamaine); Shamaine, Dkt. No. 128-28 ("Garcia Dep.") at 188
(describing a "fight" with Shamaine).
Additionally, and of great importance, it is undisputed that these officers conferred wi~
Officer Aliffi before Aliffi provided information to the district attorney regarding Shamainl's
prosecution. See Aliffi Dep. at 178-82; cf Ceparano Dep. at I 13-14, 140-41 (noting that

okic~r
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Ceparano generally signed off on the accuracy of Officer Aliffi' s police reports). More
specifically, when asked at his deposition, Officer Aliffi testified:
Q. Did you speak with all the other officers [t]hat were there?

A. At what point?
Q. Before you spoke with the district attorney?

A. I didn't speak to all of the officers that were there.

Q. You spoke to Police Officer Bruce Ceparano?
A. Yes.
Q. You spoke to Jerry Garcia?

A. Yes.

Q. Did you speak to Jin Tsoi?
A. Yes.

Q. Did you speak to John Fahim?
A. I believe, yes, I spoke to John Fahim.

Q. What about your partner, Officer Desio?

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,

A. Yes. I spoke to him.

Q. The information that you gathered from speaking with your
fellow officers assisted you with preparing your police reports?
A. Yes. Some of the information that was given to me by my
fellow officers assisted me in preparing these reports.
Aliffi Dep. at 178-81; see also Garcia Dep. at 182-83 (noting that Officer Garcia spoke wit~

Officer Aliffi about the incident). After conferencing with these officers, Aliffi then provided
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information regarding the incident to the district attorney on January 2. Aliffi Dep. at 182-~5.
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Taking Shamaine's version of the facts as true, a reasonable jury could conclude that OfficJrs :

Desio, Ceparano, Fahim, and Garcia provided Aliffi with false information, which found it1 wt
into the criminal complaint. See Williams v. City ofNew York, 05-CV-10230, 2007 WL

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2214390, at* 11 (S.D.N.Y. July 26, 2007).

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l~gs, lis
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An identical claim as to Officer Tsoi, in the absence of any supporting evidentiary
not colorable. For Officer Tsoi plaintiffs identify no information possessed by him, much

~ess

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communicated by him, which they allege to be false. Indeed, Officer Tsoi testified at his
deposition that, when he arrived at the scene, other than people drinking, he saw nothing
unlawful going on, i.e., no "disorderly [conduct], drugs, guns, fights, criminal activity[.]"

Shamaine, Dkt. No. 136-11 ("Tsoi Dep.") at 79. Therefore, even if he conferred with Officer
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Aliffi, the best insight into the information that he would have provided to him is informatfon

that plaintiff, himself, asserts as the truth. Plaintiff simply relies on the fact that Officer Tsli was
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present on Jersey Street that evening and then "conferred" with Officer Aliffi before Aliffi
signed the criminal complaint. See Shamaine Obj. Opp. at 4-5.

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Upon de novo review of the relevant portion of the record, therefore, the R&R is
modified to award summary judgment of dismissal to Officer Tsoi on Shamaine's malicious
prosecution claim. The objection to the R&R as to the malicious prosecution claims against
Officers Ceparano, Desio, Garcia, and Fahim is overruled.
C.

Shamaine's State Law Claims

The final objection defendants make to the R&R's finding with respect to Shamaine1
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relates to the state law claims he asserts in his complaint. They argue that the R&R erred

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declining to dismiss them on procedural grounds. Shamaine Obj. at 5-6. The Court agrees.I
In the hodgepodge of process protecting municipalities from suit in New York, pursuant
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to New York's General Municipal Law ("GML"), Shamaine was required to file a notice of
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claim and, then, appear for an oral examination, if the City properly requested Shamaine to do Jo
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within ninety days of his filing the notice of claim. See GML §§ 50-e, 50-h. As the R&R
correctly sets out, New York's "[n]otice of claim requirements are strictly construed .... "

O'Leary v. City of New York, 938 F. Supp. 2d 410, 416 (E.D.N.Y. 2013) (quoting Hardy v. jNelf
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York City Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999)); see also R&R at 4i.

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After a notice of claim is filed against the city, the city "shall have the right to demand an
examination of the claimant ...." GML § 50-h. Where a "claimant is represented by an
attorney" the demand for examination "shall be served personally or by mail upon his attorney.:"
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Id. "If such examination is not conducted within ninety days of service of the demand, the
claimant may commence the action." Id "The action, however, may not be commenced uptil :
compliance with the demand for examination if the claimant fails to appear at the hearing qr
requests an adjournment or postponement beyond the ninety day period." Id. (emphasis

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a~dedr.

While compliance with GML § 50-h has been excused in exceptional circumstance~,
generally, "[a] party who [fails] to comply with a demand for examination pursuant to [GML] §
50-h is precluded from commencing an action against a municipality." Kemp v. Cty. ofSuffolk,
61A.D.3d937, 938, 878 N.Y.S.2d 135, 136 (2d Dep't 2009) (citation omitted); see also
Przybyla v. Cty. ofSuffolk, 09-CV-5129, 2017 WL 1274051, at *3 (E.D.N.Y. Mar. 3, 2017),
(dismissing state law claims for failure to reschedule a 50-h hearing); MB v. Islip Sch. Dist. j 14

CV-4670, 2015 WL 3756875, at *14 (E.D.N.Y. June 16, 2015) ("Only where a claimant's /

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extreme incapacity has been shown have courts made exceptions to the [GML]'s examinatibn
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provisions." (citation omitted)).
The record shows, and the parties agree, that Shamaine complied with the notice
requirement; however, the record also demonstrates that the New York City Comptroller's

Office repeatedly requested that Shamaine appear for an oral examination, and that Shamaine
repeatedly failed to do so. The timeline can be summarized as follows:
•

On or about March 28, 2011, Shamaine filed a notice of claim,
listing Otis Bantum Correctional Center as his address. Shamaine,
Dkt. No. 136-41. It was signed before a notary public, Wadeedah
Sheeheed, who is also Shamaine's attorney of record. Id.

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On April 4, 2011, a second notice of claim was filed, this time
signed by attorney Jason Leventhal of Leventhal & Klein, LLP
("L&K"), who claimed to represent, not only Shamaine, but the
Ebony plaintiffs as well. Shamaine, Dkt. No. 136-42. Indeed, in

that notice of claim, Leventhal represented that he was the "attorney
in fact for the claimants in the within action[,]" and signed
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Shamaine's

name:

"SHAMAINE

DUNCAN

by

Jason

Leventhal[.]" Id at 4-5. Shamaine's address was listed as that of
the law offices of L&K: 45 Main Street, Suite 230, Brooklyn, New
York 11201 (the "45 Main Street address"). Id. at 1.
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On May 19, 2011, the Office of the Comptroller sent a letter to
L&K at the 45 Main Street address, pursuant to GML § 50-h,
scheduling an oral examination of Shamaine Duncan for June 7,
2011. Shamaine, Dkt. No. 128-16 at 1. Shamaine did not appear
for this examination.

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On August 12, 2011, Shamaine filed his initial complaint in this
action. Shamaine, Dkt. No. 1. The complaint was filed by attorney
Wadeedah Sheeheed on behalf ofShamaine. Id. at 14. Sheeheed's
address was also listed as the 45 Main Street address. See also
Shamaine, Dkt. No. 1-1 (civil cover sheet).

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The Comptroller sent a series of letters to L&K at the 45 Main
Street address, on August 8, 2011, September 29, 2011, and January
25, 2012, seeking an examination of Shamaine. Shamaine, Dkt.
No. 128-18. Shamaine did not appear for any of these formallynoticed examinations, despite the fact that Attorney Leventhal,
reciting his firm address, had filed a § 50-e notice on Shamaine' s
behalf as his attorney. 7

7

It appears from the docket that Wadeedah Sheeheed listed her firm address at 45 Main 1
Street, Suite 230, Brooklyn, New York 11201 until February 2016. See Shamaine, Dkt. No. 140.

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Shamaine does not contest this timeline or the fact that he never attended a 50-h hearing;
however, he claims that L&K never represented him, i.e., that Shamaine never authorized L~K
to file a second notice of claim listing its address as his mailing address, and that he was unaware
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of the 50-h notices. See Shamaine Dep. at 22, 50. Shamaine contends that the only contactlhe
had with L&K was sending a letter to L&K, seeking information and advice, at some point
before the second notice of claim was filed. Id. at 243-44.
Notwithstanding any working relationships, all of which are de hors the record, that had
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to exist between Sheeheed and L&K, operating out of the same law office, there is no dispute ,
that the Comptroller's requests for 50-h hearings .were sent to the address listed for ShamaiL's
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attorney of record in this action, i.e., 45 Main Street, Suite 230. See Shamaine, Dkt. No. 116
(declaration of Comptroller). Indeed, it is undisputed that Shamaine's attorney ofrecord filed

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the complaint in this action on August 12, 2011, listing the 45 Main Street address, well before
the Comptroller sent three additional letters to (the same) 45 Main Street address seeking an
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examination of Shamaine. Compare Shamaine, Dkt. No. 1 at 14, with Shamaine, Dkt. No. 1128t
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18. The Court finds it inconceivable, especially given the close work between L&K and I
Sheeheed on the Shamaine and Ebony actions, that Sheeheed was unware of these requests by :
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the Comptroller, simply because "Leventhal & Klein" was listed as the top-line recipient a~ thei
45 Main Street address, and not Sheeheed. Moreover, both notices of claim had roots in

th~

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same law office - in the first, Sheeheed was listed as the notary public, Shamaine, Dkt. No~ 130I

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41; the second was filed by L&K, Shamaine, Dkt. No. 136-42.

Indeed, at the time the hearing notices were sent, Sheeheed maintained her office at the precise
street address where each notice was mailed.
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Even more powerfully, there is no dispute in the record that Wadeedah Sheeheed was
communicating with L&K at the time the Comptroller's Office was sending § 50-h notices 'o the
45 Main Street address. Again, it would confound the practice of a small suite office that such
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1

mail would not be redirected to the attorney actually handling the matter. This is especially truJ
here where the record is crystal clear that lawyers from L&K collaborated closely with Sheeheef
i

I

on many aspects of this litigation. See, e.g., Shamaine, Dkt. No. 76 (Sheeheed cc'ing Lissa

Green-Stark, formerly with L&K, and lawyer for the Ebony defendants, on a motion to comped;
I

!

I

i

Shamaine, Dkt. No. 87 (Sheeheed cc'ing Green-Stark). Certainly, plaintiff offers absolute!~ no

1

admissible proof to the contrary.
What is also incontrovertible is that Attorney Leventhal' s firm, L&K, did file a § 5q-e
I

notice on Shamaine's behalf. It bears noting that the notice of claim filed by L&K explicitly sets

out that attorney Leventhal, "being duly sworn, deposes and says: ... [that Leventhal] is

thb

attorney in fact for the claimants" and that the statements made in the notice of claim are ' l e ,
based on the statements made to [Leventhal] by [the] claimants." Shamaine; Dkt. No.

136t2 jt

5. All that stands against it is Shamaine's naked assertion that he did not authorize it, in thf

,

I

absence of even an attorney affidavit from L&K or from Sheeheed that she was unware of the ;
I

I

Comptroller's requests for hearings. Such naked assertions by Shamaine, in the teeth of SVfOrn
1

documentary proof to the contrary, does not in and of itself create a material dispute of fac~. S~e
I

,

I

Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007); DiStiso v.
I

I

Cook, 691 F.3d 226, 230 (2d Cir. 2012).

I

I

In sum, there is no genuine material dispute: Shamaine cannot disclaim receipt ofie §,
50-h notices, nor, therefore, his failure to appear. Consequently, the balance of Shamaine's st te
I

15

law claims should have been dismissed, and the recommendation of the R&R to the contrary is
rejected.
The Ebony Claims

II.
A.

Ebony's Excessive Force Claim
I

Defendants contend that, contrary to the findings and recommendation in the R&R, re~
are entitled to summary judgment on Ebony's excessive force claim, or, more precisely, that,
since Ebony never pleaded such a claim in the operative complaint, the putative excessive )rcj
claim must be dismissed. Ebony Obj. at 2-4; see also R&R at 32. The Ebony plaintiffs do not I
contest this. Ebony Obj. Opp. at 2. Given the parties agreement on this point, the Court

I
I

modifies the R&R to reflect that any excessive force claim putatively asserted on behalf of .
Ebony Duncan is dismissed.
B.

Harrell's Excessive Force Claim

The Ebony defendants next object that Magistrate Judge Orenstein erred in
recommending that Harrell's excessive force claim, which alleges that she was pushed to ilie
I

I

floor by Officer Ceparano in violation of her constitutional rights, should not be dismissed.

I

I

Ebony Obj. at 4-7; see also R&R at 31. Generally, defendants argue ( 1) that Harrell's injuey w~s

de minimis; (2) that the force applied by Officer Ceparano was objectively reasonable; and 1(3)
1

that, in any event, Ceparano would be entitled to qualified immunity for the push. Becausi the!
Court finds that Officer Ceparano's actions were objectively reasonable, and, additionally,

f

because Officer Ceparano would, in any case, be entitled to qualified immunity for any pu~h,
Harrell's excessive force claim is dismissed.
The facts pertinent to Harrell's excessive force claim are as follows; there is no
substantial dispute about them. Harrell was at the barbershop along with the other New Year's

16

,

I

Eve revelers who are plaintiffs here. Ebony, Dkt. No. 136-23 ("Harrell Dep.") at 106-09. At an
unspecified point, Harrell heard what she described as gun shots and she reactively got to Je
I

floor. Id. at 110. At some point, presumably after the radio run for shots fired that brought .ther
to the scene, officers entered the barbershop. Id at 116-17. Harrell found herself standing

I
i

I

between Shamaine and some of the police officers. Now proximate to police action, she w~s
repeatedly asked to step to the side. Id at 119. It is undisputed that she failed to follow thjse '
I

orders. Id.; D56 ~~ 189-90; E56 ~~ 189-90. Harrell then witnessed, as she explained in her,
deposition, an officer grab Ebony. Harrell Dep. at 131. Harrell, in response, stepped in front of
I

Ebony and, she goes on to testify, told the officer to release Ebony. Id. at 131, 335-37. As lshe ·
continued to interfere in the police action against Ebony, from behind, Harrell felt herself
pushed. Id. She fell to the floor, she says, as a result of the push. Id.

An "excessive force claim aris[ing] in the context of an arrest or investigatory stop

r

a

!

free citizen, ... is most properly characterized as one invoking the protections of the Fourtl!i
I

Amendment[.]" See Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1871, 104 L. rd.
2d 443 (1989). Determining whether the force used during a particular seizure is "reasonable"
under the Fourth Amendment "requires a careful balancing of the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the countervailing
governmental interest at stake." Id. at 396 (citation and internal quotations omitted).
Accordingly, the level of force used must be balanced against "the facts and circumstances.of

!

each particular case, including the [1] severity of the crime at issue, [2] whether the suspecf
poses an immediate threat to the safety of the officers or others, and [3] whether [s]he is

acrive~y

resisting arrest or attempting to evade arrest by flight." Id. (citing Tennessee v. Garner, 4711 US.
1, 8-9, 105 S. Ct. 1694, 1699-1700, 85 L. Ed. 2d 1 (1985)). In doing so, courts are to evaluate

17

I

the record "from the perspective of a reasonable officer on the scene, rather than with the 20/20
I

vision of hindsight." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (internal quotations
and citation omitted). Moreover, district courts "are required to make allowance for the fact thjt
police officers are often forced to make split-second judgments-in circumstances that are t~nsJ,
uncertain, and rapidly evolving-about the amount of force that is necessary in a particular
situation." Id (internal quotations and citation omitted). "Not every push or shove, even i~it
i

may later seem unnecessary in the peace of a judge's chambers, violates the Fourth
Amendment." Graham, 490 U.S. at 396 (internal quotations and citation omitted).
(1)

I

I

Injury

'

As to defendants' first argument, upon de novo review, the Court agrees with Magistraty
Judge Orenstein that, although an extremely close call, summary judgment for defendants ii not
appropriate on this ground. See R&R at 31. It is not a foregone conclusion that any harm tas

1e

minimis. Harrell testified that, as a result of being knocked to the floor, she developed a ljp n
her right knee, that the knee turned black and blue, and that she was impaired with a limp for
I

three-to-four days following the incident. Harrell Dep. at 142-43, 263, 271-72. Ebony alsd
1

I

testified that she treated the injury with ice, an Ace bandage, and Ibuprofen. Id. Although

Harrell's injuries were, uncontestedly, not severe, that she did not take pictures, that she did no!
seek medical treatment, and that there is no proof offered discounting that her prior descent to

I

the floor upon hearing gun shots was the cause of some or all of her injuries, these factors, by
I

themselves, do not doom Harrell's excessive force claim as a matter of law. See id. at 143,1 272;
i

see also Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987).

18

i

(2)

Force

Upon a careful balancing of the nature and quality of the intrusion on Harrell's Fourth
Amendment interests against countervailing governmental interests, however, the Court finds
that any push by Officer Ceparano was objectively reasonable.
I

prevent::~::;:;:::~::::::l :::::::::::::sa::s:~:::::ed::~~~~:[!
parties are in agreement that she was shoved during a chaotic situation in which multiple

o~ce s
I

I

responding to a "shots fired" call were packed into the barbershop with multiple civilians. tr'hete
I

is no suggestion that the shove came in combination with any other force or object. Cf

Sa~h v. i

United States, 674 F. Supp. 2d 531, 539 (S.D.N.Y. 2009) (forcibly shovingplaintiffinto mltal 1

gate, following voluntary surrender, could be actionable conduct). More pointedly, the pjies •
are in agreement that Harrell was shoved as she stepped in front of Ebony during the coursl of

I

Ebony's arrest, and that Harrell was on the floor for "maybe ... a second." Harrell Dep. at 13 .

Indeed, in dismissing Harrell's false arrest claim, Magistrate Judge Orenstein noted that HLe1l
I

ignored repeated requests by an officer to step aside and that, therefore, "[t]he record . ..

conclusively demonstrated a level of affirmative interference that established probable caUse

ti
I

arrest Harrell for OGA[.]" R&R at 19.
Additionally, courts in this circuit have consistently held that some use of force to .
effectuate an arrest is not objectively unreasonable. See, e.g., Lieberman v. City of Rochesrer,

1

I

558 F. App'x 38, 39 (2d Cir. 2014). For example, in Lieberman, similar to what transpire? hefe,
in the early morning hours of June 1, 2007, an altercation erupted between two groups of Reople.
I

See 07-CV-6316L, 2011WL13110345, at *1 (W.D.N.Y. Apr. 29, 2011), aff'd, 558 F.

:

Ap~'x r8

(2d Cir. 2014). At some point the police arrived and plaintiffs, demanding that the officer~ ta.Ke

19

action against their opponents in the altercation, were arrested. Id "Plaintiff Lieberman
I

allege[d] that when he attempted to verbally intervene in the confrontation between the offi¢ers
and the other plaintiffs," a defendant officer grabbed Lieberman's arm, body slammed himjo tHe
ground and handcuffed him. Id. The district court dismissed the excessive force claim, an thei
I

.

i

Second Circuit affirmed (by way of summary order), noting that "[g]iven the volatility of tile
situation into which the officers intervened, ... the force allegedly used against Lieberman was
reasonable, and thus Lieberman's excessive force claim was correctly dismissed by the district

!

I

I

1

court." Lieberman, 558 F. App'x at 39; see also Crowell v. Kirkpatrick, 400 F. App'x 592, 595,1

96 (2d Cir. 2010) (affirming decision that use of a taser in effectuating an arrest, in those
circumstances, did not amount to excessive force).
i

I

I

I

Plaintiff attempts to distinguish these cases by arguing that Harrell, unlike the plain~iffs !in
I

those cases, was not being arrested when she was shoved, making those cases distinguishable

!

I

from what transpired here. Ebony Obj. Opp. at 5. She cites no authority for the proposition th~t
I

I

I

the distinction makes a difference in the force analysis. Id In any event, gone unaddressed by ·
I

,

Harrell is the undisputed fact that the offending shove, by all accounts, was, indeed, "tethetd tf
the goal of effecting an arrest", Crowell, 400 F. App'x at 596 - that is, "tethered" to stoppimg

!

I

Harrell from physically obstructing the arrest of Ebony in a very volatile situation.

(3)

Qualified Immunity 8

i

.

8

Harrell's threshold challenge to this objection is that the objection should be disregkded
because the specific argument it raises was not made in defendants' original motion papersl or,
that, in the alternative, the Court should review the qualified immunity portion of the R&RJ for!
clear error, "to the extent that defendants ... advance[d] a much more cursory qualified /
immunity argument" in their original papers. Ebony Obj. Opp. at 4. That threshold challefgels
rejected. Setting aside the fume and furry, it is clear that defendants did argue, in their
Memorandum of Law in Support of Their Motion for Summary Judgment, that defendantswe f
entitled to qualified immunity as to Harrell's excessive force claim. Ebony, Dkt. No. 133 at 28.

l

20

As many courts have opined, the doctrine of qualified immunity shields government
officials from liability "insofar as their conduct does not violate clearly established statutol or
constitutional rights of which a reasonable person would have known." Pearson v. Callaha ,
555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009) (citation omitted). While
precedent does "not require a case directly on point," for a right to be clearly established,
"existing precedent must have placed the statutory or constitutional question beyond debate "
Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (citation omitted). Moreover,

I
I

Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "In this instance, the
question for the purposes of qualified immunity is whether a reasonable officer could have

I
I

believed that the use of force alleged was objectively reasonable in light of the circumstanf s. "
1

Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) (internal quotations and citation omitted).
Here, it is not the case that "existing precedent placed the conclusion that [Officer
i

Ceparano] acted unreasonably in these circumstances 'beyond debate."' Mullenix, 136 S. Ct.~~

309 (citation omitted); see also Salazar v. City ofNew York, 15-CV-1989, 2016 WL 3748j99,

~t

I

*6 (S.D.N.Y. July 11, 2016) (because it was not "obvious that no reasonably competent of 1ceii
I

That this argument was presented in a slightly briefer manner is of no moment to the Court.
that matters is that the point was presented and rejected in the R&R. See R&R at 40. No
defendants are entitled, upon their written objection, to de novo ("from the start") review.
1

,

21

1

would have concluded that bringing plaintiff to the ground, kneeing her in the back, and twistin
her arm to effect arrest in this scenario was an unlawful use of force, [the officer] would be;
entitled to qualified immunity") (internal quotations and citation omitted).
Accordingly, since, on the undisputed facts, the force used against Harrell was
I

I

objectively reasonable given the totality of the circumstances that evening in the barbershop and,
in the very least, since reasonable debate can be entertained about the constitutionality of

O~cl
I

Ceparano's shove, the Court grants defendants' motion for summary judgment as to Harrell's
excessive force claim. 9
C.

Fair Trial Claims by McCombs and Gray

The parties do not now dispute, as defendants have objected, that Officers Fahim an~

.

Moncayo should have been granted summary judgment dismissing the fair trial claims arglbl y
made on behalf of plaintiffs Mccombs and Gray. Ebony Obj. at 7-9. Indeed, the Ebony

I

plaintiffs concede that Gray and McCombs "assert their claim for right to fair trial as to [Officeb
I

I

Aliffi only." Ebony Obj. Opp. at 7. As a result, the R&R is adopted on this point as modifled ~o
I

'
I

grant Officers Fahim and Moncayo summary judgment, dismissing any fair trial claims that m~y
have been asserted by Gray and/or Mccombs against them.

D.

Ebony's Unlawful Entry Claims

As the pertinent and undisputed facts make plain, and contrary to the correspondinJ
I

I

findings and conclusions of the R&R to which defendants have objected, Ebony's claim re1atirig

I

9

As a consequence of the dismissal of the excessive force claims, the related applicahon
by defendants that Harrell's failure to intervene claim, and supervisory liability claim, premise
on Harrell's excessive force claim is granted, and these claims are dismissed given their
derivative nature. See Ebony Obj. at 7 n.2.
22

to unlawful entry of the barbershop by the police should have been dismissed. Those facts
follow.
There is no genuine dispute that, to set the scene, as the clock struck midnight, Shamain
Duncan witnessed a fight taking place across the street from the barbershop. Ebony, Dkt. No.
144-1 ("Ebony Dep. ") at 92, 94. At or around the same time, shots were fired prompting the
f

police to receive several 911 calls about the shooting. See Ebony, Dkt. No. 136-7 (sprint report).
I

I

I

I

In fact, plaintiffBreyon Gray, who was present at the barbershop that night, heard the shotslrin~
out, as did Harrell. Shamaine, Dkt. No. 136-4 ("Gray Dep.") at 131; Harrell Dep. at 110. 'Iihe l
police arrived, according to Ebony, a "couple of minutes" after the fight had ended. Ebon1 Dep.
at 94-95.

I

Around the time that the responding police officers arrived on the scene, people on the
I

I

street started to scatter and approximately ten persons entered her barbershop. Id. at 95. Ebony
I

I

proceeded to tell the intruders that they could not stay in the barbershop and that they had t~ exit
immediately. Id. at 96. The intruders exited the shop "as the police were already in front of

I

[her] door." Id. A group of officers came into the shop; within seconds another group followeCl;
.

I
I

and seconds after, yet another group arrived. Id at 107. As the first officer opened the do9r, hf
asked Ebony: "What's going on in here?" To which Ebony responded: "Officer, we're haiknJ a
get-together and I was just trying to escort these people out of my shop." Id. at 108. At th t
point, the officers entered the barbershop. Id. at 109.
Certainly, in analyzing a warrantless entry, it is well-settled that it is constitutionality
I

,

permissible for the police to make a warrantless entry into a private place when the police ~ in
I

"hot pursuit" of a suspect. See United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 4
L.Ed.2d 300 (1976). Hot pursuit involves following an individual from a public place into a
23

i

private place, and applies when a pursuit is immediate and fairly continuous from the scene bf
the crime. See Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099, 80 L. Ed. 2d 732
(1984). It bears more than a moment of reflection to assure understanding that "hot pursuit" is
"'not a limitation but rather an illustration of the kind of exigent circumstance justifying entry
I

without a warrant to arrest a suspect."' United States v. Crespo, 834 F.2d 267, 271 (2d Cir.
1987) (citation omitted).
Case law surely provides guidance. The general test for determining whether a

warrantless entry can be justified by exigent circumstances is an objective one that turns onj an
I

I

"examination of the totality of circumstances confronting law ·enforcement agents in the

I

particular case." United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990). The Second
Circuit has adopted six factors as guideposts for evaluating the existence of exigent
circumstances:
the gravity or violent nature of the offense with which the
suspect is to be charged; (2) whether the suspect "is reasonably
believed to be armed"; (3) "a clear showing of probable cause ...
to believe that the suspect committed the crime"; (4) "strong
reason to believe that the suspect is in the premises being
entered"; (5) "a likelihood that the suspect will escape if not
swiftly apprehended"; and (6) the peaceful circumstances of the
entry.

MacDonald, 916 F.2d at 769-70 (citation omitted); see also United States v. Gordils, 982 F.2d!

r

64, 69 (2d Cir. 1992). Yet, at bottom, "[t]he core question, is whether the facts, as they appear¢d

tas
I

at the moment of entry, would lead a reasonable, experienced officer to believe that there

urgent need to render aid or take action." United States v. Moreno, 701 F.3d 64, 73 (2d Cir.

2012) (quoting United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)).

24

I

I

i

le

Here, Magistrate Judge Orenstein determined that "there were issues of fact 'about

I
I

location of the fight,' . . . whether 'the officers who entered were chasing participants - or

indeed chasing anyone at all' and whether the intruders 'had already left the barbershop"'

i

b~ th

time officers entered. Ebony Obj. at 9 (citing R&R at 9). After a thorough review of the reiord,
not all of these facts appear contested. To begin, the Court agrees with defendants that theJ is i
no meaningful dispute in the record as to the general location of the fight on New Year's Ete :
2011. Indeed, Ebony Duncan explicitly stated that she could see a group of some ten to twrty
people fighting across the street from the barbershop located at 411 Jersey Street. Ebony, Dkt.

~

~

No. 134 48; E56 48; Ebony Dep. at 94, 99. Secondly, there also does not appear to be

j

material dispute as to whether certain officers entered the barbershop, at least initially, in pLsult
of persons who had fled from Jersey Street, which was also the vicinity of the shots fired

rto~.

Ebony, Ex. 144-19 ("Hotaling Dep.") at 77-82 (testifying that persons ran into the barbershop).

Importantly, though inferential as it may be, there was confirmation from Ebony, who testihed
that, it was "safe to assume the police officers" upon their arrival "saw [individuals] run inllo the
shop." Id. at 108.
It must be acknowledged, though not creating a dispute of material fact, that the

scene. Ebony testified that the fight had subsided when she perceived the arrival of the police.
See Ebony Dep. at 95. At least one officer, however, testified that he witnessed the fight shn ih
I

I

progress when he arrived on scene. See Hotaling Dep. at 78. Though Ebony's testimony does)

not contradict the police testimony, since she could not testify as to what the police may hLe ;
I
I

i

25

I

been able to see before she perceived their presence, the differences remain relevant to
consideration of the "hot pursuit" exception to the warrantless search rule. 10
What is critical, however, is not that there are factual disputes, but that these disputes ar~

~

·
· ·
·
.I I
1mmatenal smce t hey do not create a genume d.
1spute about an elemental 1act. Even acceptmg i
Ebony's representation that the fight had subsided a few moments before the first officer hah

j

I

arrived, as the Court must, since she is the nonmoving party, it is otherwise undisputed thatJ a
I

street fight involving upward of two dozen persons had erupted on Jersey Street; multiple
I

witnesses had phoned 911 with reports of "shots fired" 11 ; upon arrival, officers encountere4 a (
.

I

group of persons gathered on the street; certain of those persons fled into the barbershop; arid the
barbershop owner told police that she was escorting unwanted intruders from her shop.

Vijwe~

through the lens of the MacDonald exigency test, at least four of the six factors favor the
I

defendants on these facts - the gravity or violent nature of the offense with which the suspdcts
I

I

are to be charged (assault and firearms); whether the suspects are reasonably believed to be
armed (multiple reports of "shots fired"); a strong reason to believe that the suspects are in the
premises being entered (observations by police, and Ebony's acknowledgment, of the presC:ncel
i

of intruders); and, a likelihood that the suspect will escape if not swiftly apprehended (had
already fled upon police arrival). See MacDonald, 916 F.2d at 769-70.
Perhaps not unexpectedly, even if a genuine dispute of material fact were to be found ori
I

i

this point, there would remain one hurdle plaintiff cannot vault- qualified immunity. Even.if :
I

exigency were not established as a matter of law, defendants are entitled to qualified immutjity
for any unlawful entry into the barbershop given that "reasonable officers could disagree as to
whether exigent circumstances were present." Loria v. Gorman, 306 F.3d 1271, 1287 (2d Cir.
I

2002); see also Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 169 (2d Cir. 2002).

I

Powerfully reprised, multiple persons reported "shots fired" from a location that Ebony does not
contest was within viewing distance from her barbershop. Nor is it contested that, regardlels

ton~

whether they might have been engaged in a brawl before, police officers observed a group

I

that recently scattered on the arrival of the police - and officers observed some enter the shop.
I

Indeed, the shop owner confirmed that intruders entered the shop. See also Shamaine Dep.lat
128 (describing how "strangers" ran into the barbershop); Harrell Dep. at 107-09. Reasonable
!

officers are entitled to the belief that certain of the persons running from that location were
armed, and, accordingly, pursue them into the barbershop. On qualified immunity grounds
alone, summary judgment is warranted for defendants on Ebony's unlawful entry claim. The
contrary recommendation of the R&R is not adopted, and the objection is sustained.
E.

Ebony's False Arrest Claim

The final objection by defendants is directed at Magistrate Judge Orenstein's
recommendation that the Court deny defendants' motion for summary judgment on Ebony[s ,
false arrest claim, since a jury could rationally infer that Ebony did not move with the requisite
I

intent to interfere with governmental administration (but, rather, out of concern for her

27

!

I

I
,

brother). 12 Ebony Obj. at 12-13. Defendants assign error on the ground that the analysis
improperly requires an officer to speculate as to the state of mind of the arrestee and that, as a
matter oflaw, Ebony's intentions are irrelevant to a probable cause determination. See Eb

ofy

Obj. at 12. Although on slightly different reasoning, the Court adopts Magistrate Judge

I

Orenstein's recommendation and overrules this objection.

I

I

Now, viewing the facts in the light most friendly to Ebony, at some point after the

I

I

officers entered her barbershop, Ebony saw her brother, Harrison, get hit in the head with al
baton, saw his eyes roll into the back of his head, and saw him fall to the ground. Ebony Dep. at
I

:

143. At that point she tried to go over to him, but was held by Officer Aliffi 13 against a soda
I

machine. Id. at 145-48.
This claim stands or falls on whether there was probable cause to believe Ebony was
!

guilty of OGA. As relevant here, a person is guilty of obstructing governmental adminisln\tion
when, "by means of intimidation, physical force or interference" he "intentionally obstruct~,

I

I

i

impairs or perverts the administration of law or other governmental function or prevents or!
I

attempts to prevent a public servant from performing an official function[.]" N. Y. Penal Law §
I

195.05; see also Bradley v. Jusino, 374 F. App'x 144, 146 (2d Cir. 2010); Ebony, Dkt. No. 1331
1

12

Ebony was actually charged with two counts of criminal possession of a weapon in.the
fourth degree. D56 ~ 184. Defendants moved for summary judgment as to Ebony's false arrest
claim, inter alia, on the ground that even though she was not charged with OGA, "a claim for
false arrest turns only on whether probable cause existed to arrest a defendant, and that it i~ no'
relevant whether probable cause existed with respect to ... any charge actually invoked b~ the/
arresting officer at the time of arrest." Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006); ;see
I
also Ebony, Dkt. No. 145 at 5-10.
1

1

I

1

1

~acJ.

13

Defendants' 56. l statement identified Officer Aliffi as the officer who held Ebony
D56 if 173. Officer Aliffi does not recall whether he took any enforcement action against Eboby,
but does not believe that he did. Aliffi Dep. at 269-72.
'
28

at 6. By judicial construction, the "official function" at issue must be proven to have been~
!

I

lawful exercise of public duty, Diehl v. Munro, 170 F. Supp. 2d 311, 316 (N.D.N.Y. 2001), and;
the arrestee's intent must be to prevent the public servant from engaging in a specific official
function, Akinnagbe v. City ofNew York, 128 F. Supp. 3d 539, 545-46 (E.D.N.Y. 2015). S~e
I

.

also In re Armeli N., 28 Misc. 3d 528, 531, 905 N. Y. S.2d 471, 474 (Fam. Ct., Kings Cnty. 2019)
(collecting cases). "Physical force or (physical) interference can consist of inappropriate

~d

1

I

disruptive conduct at the scene of the performance of an official function." People v. Tarver,
I

188 A.D.2d 938, 938, 591N.Y.S.2d907, 908 (3d Dep't 1992) (citation omitted).

!

Based on those facts not materially disputed here, and regardless what the facts might
!

show Ebony's intent to be, a reasonable jury could find that Ebony's actions did not rise to a

i

i

level of interference required to support probable cause for OGA. While the court is aware of

1

1

cases, like Tarver, 188 A.D.2d 938, establishing that the "threatening approach by defendJt

:

toward the back of a police officer . . . constitute[s] a knowing, physical interference with Ld
disruption of the [arrest] being performed", the facts here are quite distinguishable, given Je
I

complete lack of evidence in the record indicating that Ebony was acting in a threatening rrianrier
!

:

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,

as she took what might be reasonably characterized as one or two steps toward her brother.i Se~
Rasin v. City ofNew York, 14-CV-5771, 2016 WL 2596038, at *7 (E.D.N.Y. May 4, 2016~
I

("[T]hese cases are all distinguishable .... Unlike Tarver, the video does not show [plaintiff];
acting threateningly or aggressively."). As a practical matter, moreover, there is also no

i

I

indication that she was within any proximity to her brother. 14 Consequently, for these reasbns,:

14

It should be noted however, that, just because Ebony may have moved towards her
brother out of "concern" for him, that does not, by itself, prevent the formation of the requisite
intent for OGA. It is entirely possible that a person can both take an action motivated by their
1

29

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the Court overrules the objection and adopts Judge Orenstein's recommendation that defendant '
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motion for summary judgment on Ebony's false arrest claim be denied.
III.

Plaintiff Harrell
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Given that all claims brought by Harrell have now either been voluntarily withdrawy or /
decided in favor of defendants, it comes to pass that Harrell is no longer a proper plaintiff itl thd

Ebony action. See R&R at 19 (recommending, without objection 15 , that Harrell's false arrelt jd
failure to intervene claims be dismissed); supra Section 11.B (granting summary judgment jn
Harrell's excessive force claim and derivative failure to intervene and supervisory liability

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claims); Ebony, Dkt. No. 142 at 1 n.1 (Ebony plaintiffs dismissing certain claims).
Conclusion
For the foregoing reasons, the Court adopts Magistrate Judge Orenstein's R&R as the
I

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,

opinion of the Court but as modified by this Memorandum and Order. For ease of referende, tHe
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modifications are recapitulated below:

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•

Officers Fahim and Moncayo are now granted summary judgment, dismissing apy
fair trial claim that may have been asserted by plaintiff Shamaine.

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•

Shamaine's malicious prosecution claim is dismissed as to Officer Tsoi.

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concern for another but, in the course of acting, intend to interfere with the official functioh ofj an
officer, amounting to a violation of law.
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15

Any attempt by plaintiffs to "object" to this finding by way of a footnote in their
j
opposition to defendants' objections, Ebony Obj. Opp. at 5 n.l, is both untimely (made long ar·
er
the October 17, 2016 deadline) and improper. See also Dorchester Fin. Sec., Inc. v. Bancb B ,
S.A., 11CIV.1529 KMW, 2014 WL 684831, at *2 n.2 (S.D.N.Y. Feb. 21, 2014). Finding no
clear error on the face of the R&R regarding Harrell's false arrest and failure to intervene clai, s,
the Court adopts this portion of the R&R as the opinion of the Court.
'
30

•

Shamaine's state law claims are dismissed as to all defendants for failure to
comply with the requirements of GML § 50-h.

•

Ebony retains no excessive force claims against any defendant.

•

Defendants are granted summary judgment as to Harrell's excessive force clhlmJ

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the related failure to intervene claim, and the supervisory liability claim,

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pre~isJd

on Harrell's excessive force claim.
•

Officers Fahim and Moncayo are granted summary judgment, dismissing any r4r
trial claims that may have been asserted by plaintiffs Gray and/or McCombs.

•

Ebony's unlawful entry claim is dismissed as to all defendants.

Moreover, all plaintiffs having withdrawn claims against Officer Kalicovic, see
Shamaine, Dkt. No. 134 at 19, Ebony, Dkt. No. 142 at 29, the Clerk of Court is directed to
terminate Officer Kalicovic from both the Shamaine and Ebony dockets.
For purposes of clarity and in the aftermath of motion practice, the Court observes that
I

the following claims apparently remain in the Shamaine action:

•

Shamaine's § 1983 excessive force and related failure to intervene claims, R&R at r9;

•

Shamaine' s § 1983 false arrest and related failure to intervene claims as to all defendants,
I

with the exception of Officer Santos, id. at 17, 23;

•

Shamaine's § 1983 malicious prosecution claim as against Officers Aliffi, Ceparanb, :
Desio, Fahim, and Garcia, supra Section l.B;

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Shamaine' s § 1983 fair trial claim as against Officer Aliffi, supra Section I.A; and

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•

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Shamaine' s § 1983 supervisory liability claim as against Officers Denesopolis, Hotaling,
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Isaac, and Ceparano, R&R at 42-43.

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As for the Ebony action, 16 the list is as follows:
•

Ebony's§ 1983 false arrest and related failure to intervene claims as against all
defendants, less Officers Santos, R&R at 18, 23-25, 27-29;

•

Ebony's malicious prosecution claim as against Officers Aliffi, Moncayo, and Fahim, i~.
at 36;

•

Ebony's § 1983 fair trial claim as against Officer Aliffi, Moncayo, and Fahim, id. at! 42; I

•

Gray's§ 1983 false arrest and related failure to intervene claims as against all defenaants,
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less Officer Santos, id. at 19, 23, 25, 29;
•

i

Gray's§ 1983 excessive force and related failure to intervene claims as against all
defendants, less Officers Aliffi and Howard, id. at 32;

•

Gray's § 1983 malicious prosecution claim against Officers Aliffi, id. at 36-37;

•

Gray's§ 1983 fair trial claim as against Officer Aliffi, supra Section 11.C;

•

McCombs's § 1983 false arrest and related failure to intervene claims as against all
defendants, R&R at 18, 23, 29;

•

McCombs's § 1983 excessive force and failure to intervene claims as against all
defendants, less Officer Howard, R&R at 32;

•

McCombs's § 1983 malicious prosecution claim against Officer Aliffi, R&R at 36-37;

•

McCombs's § 1983 fair trial claim as against Officer Aliffi, supra Section 11.C; and

16

!

As a categorical matter, Officer Dinkle is not listed a defendant in the Ebony actio1 anl.
therefore, no claims by the Ebony plaintiffs implicate him.

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/s/ USDJ ERIC N. VITALIANO