C.D. v. City of New York et al

Filing 55

MEMORANDUM AND ORDER. For the reasons stated in the attached Memorandum and Order, the court grants defendants motion for summary judgment in its entirety and plaintiffs claims of false arrest and false imprisonment in violation of 42 U.S.C. § 1983 and state law claims of assault and battery are hereby dismissed. The Clerk of the Court is directed to enter judgment accordingly and close this case. Ordered by Judge Kiyo A. Matsumoto on 1/7/2016. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
C.D., an infant, by his mother and
natural guardian, JOAN MEDINA, and
JORDAN MEDINA,
PlaintiffS,
MEMORANDUM AND ORDER

-againstCITY OF NEW YORK, P.O. BENITA BUNCH,
Shield No. 3222 individually and
officially, P.O. SHUYAN LAM Shield No.
7814, individually and officially,

13-CV-6287 (KAM)(MDG)

Defendants.
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MATSUMOTO, United States District Judge:
Plaintiffs Jordan Medina and C.D., by his mother and
natural guardian Joan Medina, (collectively, “plaintiffs”) bring
this action pursuant to 42 U.S.C. § 1983 and New York state law
against the City of New York, Police Officer Benita Bunch
(“Officer Bunch”), and Police Officer Shuyan Lam (“Officer
Lam”)(collectively, “defendants”) in connection with plaintiffs’
arrest on September 30, 2013 in the Borough Park neighborhood of
Brooklyn, New York.

(First Am. Compl., ECF No. 12.)

Plaintiffs

have withdrawn their claims for excessive force and municipal
liability.

(See Letter from J. Massimi dated March 12, 2015,

ECF No. 34; Stipulation of Dismissal of Monell Claim dated Dec.
17, 2015, ECF No. 53.)

The remaining claims are false arrest

and false imprisonment pursuant to 42 U.S.C. § 1983, and state

1

law claims for assault and battery premised upon the handcuffing
and physical contact incidental to plaintiffs’ arrests.
Presently before the court is a motion by defendants for summary
judgment pursuant to Federal Rule of Civil Procedure 56.
Notice of Mot., ECF No. 42.)

(See

The court heard oral argument on

defendants’ motion on December 10, 2015.

For the reasons set

forth below, defendants’ motion for summary judgment is granted
in its entirety.
BACKGROUND
The following facts, taken from the parties’ Rule 56.1
statements and the deposition testimony cited and annexed to the
parties’ motion papers, are undisputed unless otherwise noted.
The court has considered whether the parties have proffered
admissible evidence in support of their positions and has viewed
the facts in the light most favorable to the nonmoving
plaintiffs.

See Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d

Cir. 2010).
On September 30, 2013, Mr. Medina and his nephew,
C.D., were returning home from a birthday party for the sister
of C.D.’s girlfriend.

(Pls.’ Resp. to Defs.’ Stmt. of

Undisputed Facts and Additional Material Facts (“Pls.’ 56.1
Stmt.”) ¶

16, ECF No. 48; Defs.’ Reply to Pls.’ Stmt. of

Additional Material Facts (“Defs.’ 56.1 Reply Stmt.”) ¶ 16, ECF
No. 50.)

Mr. Medina and C.D. took a bus to 39th Street and 12th
2

Avenue in Brooklyn, New York, and began walking toward Mr.
Medina’s mother’s house located at 54th Street and Fort Hamilton
Parkway.

(Pls.’ 56.1 Stmt. ¶ 17; Defs.’ 56.1 Stmt. ¶ 17.)
On September 30, 2013, for approximately fifteen

minutes, Mr. Saul Steinmetz observed two male individuals in the
vicinity of New Utrecht Avenue and 48th Street, near a vehicle
that he later saw them enter.

(Joint Dep. Tr. App’x (“Joint

App’x”) Ex. 5 (Steinmetz Dep.) at 14:7-14, 23:17-21.)

During

that time, Mr. Steinmetz observed the two individuals walk down
the block away from the vehicle whenever a passerby would
approach, but noted that the two individuals would walk back to
the same vehicle.

(Id. at 15:20-16:3.)

Mr. Steinmetz then

observed the two individuals enter the vehicle when no one else
was nearby.

(Id.)

Mr. Steinmetz is a member of Shomrim, a

neighborhood watch group, and he alerted other members of
Shomrim of the suspicious activity via two-way radio.
14:15-18.)

(Id. at

Shomrim patrol members have identification badges

issued by the New York Police Department and occasionally attend
roll call at the 66th Precinct.
56.1 Stmt. ¶ 34.)

(Pls.’ 56.1 Stmt. ¶ 34; Defs.’

Other members of Shomrim arrived at the

vicinity of New Utrecht Avenue and 48th Street a few minutes
later and continued observing the two individuals while Mr.
Steinmetz went inside his house.

(Joint App’x Exh. 5 at 15:8-

16; 25:20-22.)
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Within one or two minutes after receiving Mr.
Steinmetz’s radio call, Mr. Abraham Rosenberg, a Shomrim member,
arrived at 11th Avenue and 48th Street, a block away from New
Utrecht Avenue and 48th Street.
25.)

(Joint App’x Exh. 9 at 27:18-

Mr. Rosenberg saw two individuals and confirmed with Mr.

Steinmetz that they were the individuals Mr. Steinmetz had
observed.

(Id.)

Thereafter, Mr. Rosenberg continuously kept

the two individuals within his sight and followed them on foot
for approximately five blocks to Fort Hamilton Parkway and 52nd
Street.

(Id.)

The two individuals remained in Mr. Rosenberg’s

view the entire time, and along the way, he observed the two
individuals pulling the door handles of three to five cars as if
to determine if they were unlocked.

(Id. at 33:21-34:7.)

Defendants Police Officer Benita Bunch and Police
Officer Shuyan Lam were assigned to patrol areas of the 66th
Precinct, located in the Borough Park neighborhood of Brooklyn,
New York, on September 30, 2013.

(Defs.’ Stmt. of Undisputed

Facts (“Defs.’ 56.1 Stmt”) ¶ ¶ 1-2, ECF No. 44; Pls.’ 56.1 Stmt.
¶¶ 1-2).

Officers Bunch and Lam were in uniform and patrolling

an area with a high rate of automobile robberies in a marked
police vehicle.

(Defs.’ 56.1 Stmt. ¶ 3; Pls.’ 56.1 Stmt. ¶ 3.)

At approximately 1:00 a.m. on September 30, 2013, a
Shomrim member waved his hand out of the window of his car to
gain the attention of Officers Bunch and Lam in the vicinity of
4

Fort Hamilton Parkway and 51st Street.

(Defs.’ 56.1 Stmt. ¶¶ 4-

5; Pls.’ 56.1 Stmt. ¶¶ 4-5; Joint Dep. Tr. App’x (“Joint App’x”)
Exh. 1 (Bunch Dep.) at 50:19-22, ECF No. 43.)

Thereafter,

Officers Bunch and Lam rolled down their car windows and the
Shomrim member told the officers that “some guys are breaking
into cars” and that other members of Shomrim were following the
suspects.

(Defs.’ 56.1 Stmt. ¶¶ 6-7; Pls.’ 56.1 Stmt. ¶¶ 6-7.)

The Shomrim member who initially flagged down Officers Bunch and
Lam directed them “down the block” to the vicinity of Fort
Hamilton Parkway and 52nd or 53rd Street.

(Defs.’ 56.1 Stmt. ¶

8; see also Joint App’x Exh. 1 at 60:2-18.1)
Officers Bunch and Lam drove to the vicinity of Fort
Hamilton Parkway and 52nd or 53rd Street, where they observed
the plaintiffs and other members of the Shomrim.
Stmt. ¶¶ 10-11; Pls.’ 56.1 Stmt. ¶¶ 10-11.)

(Defs.’ 56.1

The Shomrim member

who initially flagged down Officers Bunch and Lam also drove to
the vicinity of Fort Hamilton Parkway and 52nd or 53rd Street,
where the plaintiffs were located.
Pls.’ 56.1 Stmt. ¶ 9.)

(Defs.’ 56.1 Stmt. ¶ 9;

Members of Shomrim pointed to the

plaintiffs as the persons they had observed, and Officers Bunch

1

Plaintiffs dispute that the Shomrim member who initially flagged down
Officers Bunch and Lam verbally directed the officers down the block to the
location where plaintiffs were stopped, but instead contend that the officers
followed the Shomrim member to plaintiffs without any verbal directions.
(Pls.’ 56.1 Stmt. ¶¶ 8, 10.) The court, however, finds that plaintiff’s
contention that the Shomrim member did not give any verbal directions to
where the plaintiffs were located is not supported by the evidence in the
record. In any event, this fact is not material to the court’s resolution of
the issues in this case.

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and Lam exited their vehicle and stopped the plaintiffs, who
were the only individuals walking on Fort Hamilton Parkway
toward 53rd Street.

(Defs.’ 56.1 Stmt. ¶ 10; Pls.’ 56.1 Stmt.

¶ 10; Joint App’x Exh. 2 (Lam Dep.) at 55, 64.)
Officers Bunch and Lam then spoke to one or two
members of the Shomrim who identified the plaintiffs as the
individuals who were breaking into cars and “checking out” cars.
(Defs.’ 56.1 Stmt. ¶ 12; Pls.’ 56.1 Stmt. ¶ 12.)

One of the

Shomrim members told the officers that the vehicle that
plaintiffs were observed entering belonged to his cousin.
(Joint App’x Exh. 2 at 59:5-7.)

Officers Bunch and Lam also

questioned Mr. Rosenberg about the situation, and Mr. Rosenberg
told the officers that he observed the plaintiffs pull the door
handles of several cars to see if they were open.
Exh. 9 at 36:12-14, 38:22-39:4.)

(Joint App’x

Viewing the facts in the light

most favorable to the plaintiffs, some of the Shomrim members
stated that the plaintiffs were the individuals suspected of
breaking into cars and others stated that the plaintiffs were
misidentified.2

(Pls.’ 56.1 Stmt. ¶ 20; Defs. 56.1 Reply Stmt. ¶

2

Defendants argue that plaintiffs’ testimony that Shomrim members disagreed
about whether plaintiffs were the individuals that Mr. Steinmetz observed
breaking into cars is inadmissible hearsay. Defendants’ argument is
unavailing, because the statements of the Shomrim members are not being
offered for the truth of the matter (that plaintiffs were not the individuals
breaking into cars), but to shed light on Officer Bunch and Lam’s states of
mind and as evidence of the information that was available to the officers
when they were making their probable cause determination. If these
statements made by Shomrim members constitute inadmissible hearsay, the

6

12.)

Defendants dispute this fact, citing the testimony of Mr.

Rosenberg, who testified that he never heard anyone at the scene
tell the police that the plaintiffs were not the individuals
suspected of breaking into cars.

(Defs.’ 56.1 Reply Stmt. ¶

20.)
It is undisputed that Mr. Steinmetz was summoned to
the location where plaintiffs were stopped.
¶ 14; Pls.’ 56.1 Stmt. ¶ 14.)

(Defs.’ 56.1 Stmt.

The parties, however, dispute

whether Mr. Steinmetz spoke to Officers Bunch and Lam prior to
or after plaintiffs’ arrest.

Plaintiffs cite Mr. Steinmetz’s

deposition testimony, wherein Mr. Steinmetz testified that, to
the best of his recollection, when he arrived at the scene of
the arrest, plaintiffs were in handcuffs and were being placed
in the police vehicle and that he did not speak to the police
before plaintiffs were handcuffed.

(Pls.’ 56.1 Stmt. ¶ 23.)

Defendants cite Officer Bunch’s deposition testimony, wherein
Officer Bunch testified that she spoke to Mr. Steinmetz prior to
arresting the plaintiffs.

(Defs.’ 56.1 Reply Stmt. ¶ 23.)

Officers Bunch and Lam placed plaintiffs under arrest
after Sergeant Tony Wong was called to the scene of the arrest,
and Sergeant Wong approved the arrest.
Pls.’ 56.1 Stmt. ¶ 39.)

(Defs.’ 56.1 Stmt. ¶ 163;

The plaintiffs do not dispute that

statements made the Shomrim member who initially flagged down Officers Bunch
and Lam would also constitute inadmissible hearsay.
3
Plaintiffs appear to have overlooked ¶ 16 of defendants’ 56.1 Statement, but
it is undisputed that Officers Bunch and Lam placed plaintiffs under arrest.

7

Sergeant Wong recalls speaking to Officer Bunch who told him
“that she had stopped someone who committed a crime” prior to
approving the arrest.
Stmt. ¶ 39.)

(Pls.’ 56.1 Stmt. ¶ 39; Defs.’ 56.1 Reply

Plaintiffs were charged with unauthorized use of a

motor vehicle pursuant to New York Penal Law § 165.05, but the
Office of the District Attorney for Kings County declined to
prosecute the charges.

(Pls’ 56.1 Stmt. ¶¶ 40-41; Defs.’ 56.1

Reply Stmt. ¶¶ 40-41.)
LEGAL STANDARD
I.

Summary Judgment
“Summary judgment is appropriate where there is no

genuine issue as to any material fact and . . . the record taken
as a whole could not lead a rational trier of fact to find for
the non-moving party.”

Rodal v. Anesthesia Grp. of Onondaga,

P.C., 369 F.3d 113, 118 (2d Cir. 2004) (internal citations and
quotation marks omitted).

“In ruling on a summary judgment

motion, the district court must resolve all ambiguities, and
credit all factual inferences that could rationally be drawn, in
favor of the party opposing summary judgment and determine
whether there is a genuine dispute as to a material fact,
raising an issue for trial.”

McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal citations and
quotation marks omitted).

“A fact is material when it might

affect the outcome of the suit under governing law.”
8

Id.

(internal citations and quotation marks omitted).

Moreover, an

issue of fact is genuine only if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“In order to defeat a motion for summary judgment supported by
proof of facts that would entitle the movant to judgment as a
matter of law, the nonmoving party is required under Rule 56[]
to set forth specific facts showing that there is a genuine
issue of material fact to be tried.”

Ying Jing Gan v. City of

New York, 996 F.2d 522, 532 (2d Cir. 1993).
II.

False Arrest4 Pursuant to 42 U.S.C. § 1983
A claim pursuant to 42 U.S.C. § 1983 (“§ 1983”) for

false arrest is substantially the same as a claim for false
arrest under New York law.
(2d Cir. 1996).

Weyant v. Okst, 101 F.3d 845, 852

“The existence of probable cause to arrest

constitutes justification and ‘is a complete defense to an
action for false arrest,’ whether that action is brought under
state law or under § 1983.”

Id. (internal citations omitted);

see also Broughton v. State, 37 N.Y.2d 451, 456–57, 373 N.Y.S.2d
87, 335 N.E.2d 310 (N.Y. 1975) (plaintiff will prevail on a

4

Plaintiffs allege claims of both false arrest and false imprisonment. “In
New York, the tort of false arrest is synonymous with that of false
imprisonment.” Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991)(citation
omitted). Additionally, probable cause is a complete defense to both false
arrest and false imprisonment claims. Betts v. Shearman, 751 F.3d 78, 82 (2d
Cir. 2014). Consequently, the court combines the probable cause analysis for
the two claims.

9

claim of false arrest under New York law if he can show that the
arrest was not privileged, i.e., not based on probable cause).
Probable cause requires an 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 quotation
marks and citation omitted).

“When determining whether probable

cause exists courts must consider those facts available to the
officer at the time of the arrest and immediately before it.”
Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
(internal quotation marks and citation omitted).
cause does not require absolute certainty.”
York, 336 F.3d 72, 76 (2d Cir. 2003).

“Probable

Boyd v. City of New

Courts should look to the

“totality of the circumstances” and “must be aware that probable
cause is a fluid concept--turning on the assessment of
probabilities in particular factual contexts--not readily, or
even usefully, reduced to a neat set of legal rules.”
Caldarola, 298 F.3d at 162 (citation omitted).
“[I]t is well-established that a law enforcement
official has probable cause to arrest if he received his
information from some person, normally the putative victim or
eyewitness,” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.
2000) (internal quotation marks and citation omitted), unless
10

the circumstances raise doubt as to the person's veracity,
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.
1995).

See also Oliveira v. Mayer, 23 F.3d 642, 647-48 (2d Cir.

1994) (“Information about criminal activity provided by a single
complainant can establish probable cause when that information
is sufficiently reliable and corroborated.”)

The reliability or

veracity of the informant and the basis for the informant's
knowledge are two important factors.
162.

Caldarola, 298 F.3d at

“[I]nformation provided by an identified bystander with no

apparent motive to falsify has a peculiar likelihood of
accuracy, and [the Second Circuit has] endorsed the proposition
that an identified citizen informant is presumed to be
reliable.”

Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir.

2006) (internal quotation marks and citation omitted).
Even where a reviewing court concludes that probable
cause to arrest was lacking in a given case, an officer “will
still be entitled to qualified immunity . . . if he can
establish that there was ‘arguable probable cause’ to arrest.”
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).

“Arguable

probable cause exists if either (a) it was objectively
reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree
on whether the probable cause test was met.” Id. (internal

11

quotation marks and citations omitted); accord Walczyk v. Rio,
496 F.3d 139, 163 (2d Cir. 2007).
APPLICATION
The court finds that Police Officers Bunch and Lam had
probable cause to arrest plaintiffs on September 30, 2013.
Officers Bunch and Lam had the following facts available to them
at the time of the arrest and immediately preceding the arrest:
Officers Bunch and Lam were patrolling an area that they knew
had a high rate of automobile robberies; a member of Shomrim, a
neighborhood watch group that works with the New York Police
Department, flagged down Officers Bunch and Lam and alerted them
that “some guys are breaking into cars” while walking in a
particular vicinity and that other Shomrim members were
following them; upon the officers’ arrival at the vicinity of
Fort Hamilton Parkway and 52nd or 53rd Street, more than one
Shomrim member identified plaintiffs as the individuals who were
breaking into cars; Officers Bunch and Lam spoke with an
eyewitness, Shomrim member Mr. Rosenberg, who told the officers
that he observed plaintiffs pulling the door handles of three to
five cars as he followed them from 11th Avenue and 48th Street;
and another Shomrim member reported to Officers Bunch and Lam
that the vehicle plaintiffs entered belonged to his cousin.

The

parties dispute whether Officers Bunch and Lam spoke to
eyewitness Mr. Steinmetz prior to or after arresting plaintiffs.
12

Mr. Steinmetz was the eyewitness who initially notified the
Shomrim of two individuals pacing around and entering a vehicle
at New Utrecht Avenue and 48th Street.

This particular dispute

of fact, however, is not material, because, as a matter of law,
Officers Bunch and Lam had probable cause to arrest plaintiffs
based on the totality of the circumstances, even prior to
speaking with Mr. Steinmetz.
It is well-established that law enforcement officials
have probable cause to arrest if they receive reliable
information from “some person, normally the putative victim or
eyewitness.”

Martinez, 202 F.3d at 634.

Here, the parties do

not dispute that multiple Shomrim members identified plaintiffs
as individuals who were breaking into cars, and that statements
by bystander witnesses are considered “presumptively reliable.”
Oliveira, 23 F.3d at 647.

Additionally, it was proper for

Officers Bunch and Lam to give weight to statements by members
of the Shomrim, as they regularly patrol the neighborhood and
have a working relationship with the New York Police Department.
See Panetta, 460 F.3d at 397 (finding it appropriate to give
weight to statement of a nonpolice peace officer who indicated
that he had expertise relevant to the situation); Riccuiti v.
New York City Transit Auth., 124 F.3d 123, 128 (2d Cir.
1997)(noting that fact that correctional officer “identified
himself a law enforcement officer” increased his credibility for
13

purposes of determining probable cause for arrest).

Viewing the

facts in the light most favorable to plaintiffs, plaintiffs
claim that an unspecified number of Shomrim members indicated
that the plaintiffs were not the individuals breaking into cars.
Nonetheless, the information provided by other Shomrim members
constitutes “reasonably trustworthy information sufficient to
warrant a person of reasonable caution in the belief” that
plaintiffs were attempting to use a vehicle without
authorization.

Martinez, 202 F.3d at 634.

Prior to the

plaintiffs’ arrest, a Shomrim member reported to Officers Bunch
and Lam that the vehicle which Mr. Steinmetz observed the
plaintiffs enter belonged to his cousin, and Mr. Rosenberg
reported to the officers that, after confirming with Mr.
Steinmetz that the plaintiffs were the individuals Mr. Steinmetz
first observed, Mr. Rosenberg then followed behind the
plaintiffs for four to five blocks during which time he observed
the plaintiffs attempt to open the doors of three to five cars.
The facts here are readily distinguishable from
Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), to which
plaintiffs cite in support of their opposition to defendants’
motion for summary judgment.

(Pls.’ Mem. of Law in Opp. to

Defs.’ Mot. for Summ. J. (“Pls.’ Opp.”) at 6, ECF No. 47.)

In

Oliveira, police officers arrested the plaintiffs based solely
on a report that the plaintiffs were “three dark-skinned males[]
14

handling an expensive video camera while driving in a
dilapidated station wagon through an affluent area of North
Stamford, Connecticut.”

23 F.3d at 644.

The Second Circuit

held that an observation that “one occupant of a vehicle that
appeared to be of low value with what appeared to be a somewhat
expensive item of personal property” does not “indicate or even
reasonably suggest that a crime had taken place.”
48.

Id. at 647-

Here, Mr. Rosenberg observed plaintiffs attempting to open

the doors of three to five cars as they walked from 48th Street
and 11th Avenue to the vicinity of Fort Hamilton Parkway and
52nd or 53rd Streets, which, coupled with the report that Mr.
Steinmetz observed two individuals pacing around and entering a
vehicle belonging to someone other than the plaintiffs,
establishes probable cause to believe that plaintiffs were
attempting to use or take a vehicle unlawfully.
The court finds that Officers Bunch and Lam had
probable cause, or at the very least arguable probable cause, to
arrest plaintiffs on September 30, 2013.

Consequently, the

court finds no deprivation of a constitutional right and
dismisses plaintiffs’ claim of false arrest and false
imprisonment in violation of 42 U.S.C. § 1983.

Given the

court’s finding that plaintiffs’ arrest was lawful and
plaintiffs have withdrawn their allegations that Officers Bunch
and Lam used any excessive force in effectuating the arrest,
15

plaintiffs’ state law assault and battery claims are also
dismissed.

See, e.g., Cornett v. Brown, 04-CV-0754, 2007 WL

2743485, at *10 (E.D.N.Y. Sept. 17, 2007).
CONCLUSION
For the foregoing reasons, the court grants
defendants’ motion for summary judgment in its entirety and
plaintiffs’ claims of false arrest and false imprisonment in
violation of 42 U.S.C. § 1983 and state law claims of assault
and battery are hereby dismissed.

The Clerk of the Court is

directed to enter judgment accordingly and close this case.

SO ORDERED.
Dated:

January 7, 2016
Brooklyn, New York

___________/s/______________
Kiyo A. Matsumoto
United States District Judge

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