Lopez v. City of New York et al

Filing 38

MEMORANDUM DECISION AND ORDER dated 4/28/15 that defendant's 19 Motion to Dismiss is granted in part and denied in part to the extent set forth herein. Plaintiff's second, third, fourth, and fifth causes of action are dismissed. Decision is reserved on plaintiff's claims under Monell. The Clerk of Court is directed to terminate defendant Tess Allen. ( Ordered by Judge Brian M. Cogan on 4/28/2015 ) (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------ALICE LOPEZ, as Administrator for WILLIAM
LOPEZ,
Plaintiff,
- against THE CITY OF NEW YORK, et al.,
Defendants.
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MEMORANDUM
DECISION AND ORDER
14 Civ. 3743 (BMC)

COGAN, District Judge.
This case is before me on defendants’ motion to dismiss the Second Amended Complaint
(“SAC”) in its entirety for failure to state a claim. William Lopez was convicted of the murder
of a Brighton Beach crack dealer by a New York State jury in 1990. After two decades of postconviction proceedings in state and federal court, his 23.5-year incarceration came to an end in
2013 when Judge Garaufis of this Court granted his petition for a writ of habeas corpus and
ordered his release. Judge Garaufis concluded that
Lopez has been wronged by the State of New York. This wrongdoing has ranged from
an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared
defense attorneys; to a bewildering jury verdict; and to the incomprehensible Justice
Demarest, who [in presiding over his criminal trial] so regrettably failed time and time
again to give meaningful consideration to the host of powerful arguments Lopez
presented to her. The result is that a likely innocent man has been in prison for over
twenty-three years.
Lopez v. Miller, 915 F. Supp. 2d 373, 431 (E.D.N.Y. 2013) (the “Habeas Decision”).
The issue in this case is simply whether any of the defendant Police Officers, Assistant
District Attorneys, or the City of New York are liable to him for damages as a result. Among
other things, plaintiff claims that defendants’ conduct amounts to malicious prosecution under

New York State law and in violation of 42 U.S.C. § 1983, and that he was denied a fair trial by
the fabrication of evidence in violation of his due process rights via § 1983. For the reasons that
follow, defendants’ motion is granted in part and denied in part. 1
BACKGROUND
The facts below are deemed true for the purpose of deciding the pending motion. As an
initial matter, of course, the SAC incorporates by reference the findings made by Judge Garaufis
in his Habeas Decision. 2 Familiarity with those findings is assumed.
The SAC further alleges the following specifics. On August 31, 1989, two men entered
the Brighton Beach apartment of a crack dealer named Elvin Zorilla. One of the two men shot
and killed him. Eyewitness Daisy Flores, who had a “clear look” at the shooter, described him to
police on the scene as “dark, black” and approximately 6’3” tall. A sprint report was published
11 minutes after the initial radio run, “looking for 2 male blacks.” The SAC alleges that Flores
soon thereafter “viewe[d] photos with negative results,” but does not specify whether plaintiff’s
photo was among them.
Plaintiff alleges that from the outset, the investigation into Zorilla’s death was conducted
by defendants Boyle and Klaimitz.3 Boyle had already been “relentlessly badgering and
harassing” plaintiff because plaintiff had sublet his apartment to drug dealers, and thus “[t]he
investigators” (i.e., Boyle and Klaimitz) “targeted” plaintiff to “take the fall” for Zorilla’s
murder.

1

Shortly after filing this case, Lopez passed away. I granted his estate’s motion to be substituted. For the sake of
simplicity, William Lopez is referred to herein as “plaintiff.”

2

At this stage, I need not and do not consider whether such findings, or any evidence taken in that case, will have
any effect as proof in this case. I need only consider whether those findings, incorporated here by reference as
allegations and taken together with the SAC, state a claim for the relief sought here.

3

Defendants describe ADA Klaimitz’s role as that of a “Riding ADA,” who accompanies police during the early
stages of a criminal investigation.

2

Some time after the shooting (presumably the same morning) at the NYPD’s 60th
Precinct, defendants Boyle and Klaimitz questioned Annie Burnell and Edgardo Rodriguez about
plaintiff. Neither Burnell nor Rodriguez were eyewitnesses, and both were at the Precinct for
unrelated reasons. Burnell stated that she knew plaintiff as a drug dealer from the area, and
Rodriguez described him as a 6’2” drug dealer. Rodriguez described plaintiff as “usually armed
with a shotgun.”
The SAC alleges that defendant Boyle did not interview alibi witnesses proffered by
plaintiff, did not follow up on a tip offered by a third party named Cesar Diaz, and did not
interview Howie Sachs, the man in whose apartment the shooting occurred, and who was present
immediately following the shooting.
The SAC alleges that “[d]efendants threaten[ed] [Daisy] Flores [the eyewitness] with jail
time if she w[ould] not positively identify [plaintiff] as the killer” and that “[w]hen that didn’t
work, she was threatened with what eventually made her succumb – deportation. Her description
of the perpetrators to Boyle is not of two black males, as expressed at the crime scene; it is of
two males, Hispanic.” The SAC goes on to allege that Flores was then shown a photo array in
which “the picture of [plaintiff] [wa]s circled” and that at that point, Flores “does what she is
told” and points to his photo. 4 Flores was then interviewed a third time, by defendant Klaimitz. 5
According to the SAC, defendants Boyle and Klaimitz then threatened a second witness,
Annie Burnell, a crack addict, with incarceration “unless [plaintiff] is positively identified as the

4

Although this conduct alleged with respect to Flores is attributed to “[d]efendants,” it appears from the paragraphs
that follow these allegations that only defendant Boyle was involved in this alleged threat and suggestive photo
array.

5

The parties vehemently dispute the inferences to be drawn from certain alleged omissions by defendant Klaimitz in
her questioning. Because I find that plaintiff has adequately alleged that Klaimitz was complicit in fabricating other
statements, as discussed below, I do not rely on any such omissions in deciding the instant motion.

3

killer.” Defendant Boyle recorded her statement on a form DD-5 informational, of which I take
judicial notice. 6 According to that document, Burnell stated that shortly after the shooting,
she was approached by [plaintiff and his brother] who proceeded to engage her in
conversation. At one point [plaintiff] dropped a sawed off shotgun from the front of his
pants onto the floor in front of him. . . . [S]he bent down and looked at the gun and on
the side were the words pump shotgun. . . . [Plaintiff] became very nervous and asked
her why she spoke to the Police. . . . [T]hree male blacks walked by, and [plaintiff] stated
to them “it’s done”.
Burnell then identified a photo of plaintiff as the man she had seen. Klaimitz then took a
recorded statement from Burnell, who was never contacted again.
On September 5, 1989, plaintiff appeared at the Precinct “after hearing he was being
sought” and was not arrested. However, according to the SAC, “nearly a month after the murder
. . . pressure had begun to build for an arrest.” On September 29, 1989, Janet Chapman, a
prostitute with a $200 a day crack habit, was arrested on unrelated charges. Defendants Boyle
and Krudis told her that “[i]f you do not identify [plaintiff] as the killer, you will face
prosecution, incarceration and be denied crack cocaine.” According to the SAC, Chapman then
signed a statement claiming to have partially witnessed the shooting and inculpating Lopez. She
then made a photo array identification. On October 10, 1989, Chambers was arrested and
incarcerated until after plaintiff’s trial. On October 17, 1989, defendants Boyle and Klaimitz
executed a takeout order on plaintiff, and Chambers positively identified him in a lineup. He
was indicted on October 20, 1989.
As set forth in detail in the Habeas Decision, Chapman’s testimony was central to the
prosecution’s case against plaintiff. As the SAC explains, she has since recanted her testimony,
6

Defendant Boyle’s DD-5s are referred to in the SAC, and it is defendant who urges me to take judicial notice of
them. Taking judicial notice of a DD-5 informational is appropriate because they are public records, and there is
clearly no dispute here as to authenticity. See Liang v. City of New York, No. 10-cv-3089, 2013 WL 5366394
(E.D.N.Y. Sept. 24, 2013) (taking judicial notice of DD-5s in considering motion to dismiss); Obilo v. City Univ. of
City of New York, No. 01-cv-5118, 2003 WL 1809471 (E.D.N.Y. Apr. 7, 2003) (same). Of course, I consider them
for the fact of what is stated therein, not for the truth of such statements. See Int’l Star Class Yacht Racing Ass’n v.
Tommy Hilfiger U.S.A., Inc., 146 F.3d 66 (2d Cir. 1998).

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stating among other things that “[a]lthough I never saw anything such as the assistant district
attorney suggested, I readily agreed to make the statement because I wanted to get out of jail.”
Her trial testimony also was the subject of a cooperation agreement, the existence of which
defendant Allen is alleged to have withheld from the court, the jury, and plaintiff’s criminal
defense attorney. In addition, a jailhouse companion of Chapman’s named Earline Cafield sent a
letter to the prosecuting ADAs that they received between plaintiff’s conviction and sentencing.
That letter informed the prosecution that Chapman had told Cafield that someone other than
plaintiff was the shooter.
DISCUSSION
I.

Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). That standard is met “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the court must “accept all factual allegations [in the
complaint] as true and draw all reasonable inferences in favor of plaintiff.” Meyer v. Jinkosolar
Holdings Co., Ltd., 761 F.3d 245, 249 (2d Cir. 2014) (internal quotation omitted). In other
words, if it would be reasonable for a jury to infer a fact from those alleged, I will accept it as
true for purposes of this motion.
II.

Falsification of Evidence
A criminal defendant’s right to a fair trial is violated when an investigating official

“creates false information likely to influence a jury’s decision and forwards that information to

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prosecutors.” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). 7
Unlike a malicious prosecution claim, discussed further below, there is no requirement that
plaintiff allege an absence of probable cause for his prosecution. See Ricciuti, 124 F.3d at 130.
Courts recognize this cause of action as arising from the coercion by officials of false non-party
witness statements. See Bailey v. City of New York, No. 14-cv-2091, 2015 WL 220940
(E.D.N.Y. Jan. 15, 2015) (denying summary judgment on due process fabrication claim because
of coerced eyewitness statement); Blake v. Race, 487 F. Supp. 2d 187 (E.D.N.Y. 2007) (same).
In order to have a cognizable claim for denial of the right to a fair trial under § 1983,
however, a plaintiff must establish a causal connection between the fabricated evidence and a
deprivation of liberty. See Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000) (“The
manufacture of false evidence, in and of itself . . . does not impair anyone’s liberty, and therefore
does not impair anyone’s constitutional right.”).
The causation standard is a familiar one – proximate cause. In Zahrey, analyzing whether
a prosecutor’s immunized use of fabricated evidence before a grand jury was “traceable back
even further to his earlier investigatory act of fabrication, for which he enjoy[ed] only qualified
immunity,” id. at 352, the Second Circuit held that if the defendant had “fabricated evidence in
his investigative role, it was at least reasonably foreseeable that in his advocacy role he would
later use that evidence before the grand jury, with the likely result that [the plaintiff] would be
indicted and arrested.” Id. at 353-54 (emphasis added). The Court therefore held that the
complaint adequately alleged that a deprivation of liberty “was the legally cognizable result of
[the defendant]’s alleged misconduct in fabricating evidence.” Id. at 354.

7

This right is grounded in the protections of the Fifth, Sixth and Fourteenth Amendments. See Zahrey v. City of
New York, No. 98-cv-4546, 2009 WL 1024261 (S.D.N.Y. Apr. 15, 2009).

6

Although not every act of fabrication alleged in the SAC is sufficiently connected to
plaintiff’s indictment and conviction to give rise to liability under this standard, there are
sufficient facts plead to support the inference that defendants Boyle, Klaimitz, Krudis, and
Grimaldi fabricated evidence that was “likely to influence a jury’s decision.” The SAC alleges
that defendant Boyle threatened the only clear eyewitness to the murder with jail time if she
would not identify plaintiff as the perpetrator. She thereafter changed her description of the
shooter significantly to match plaintiff’s appearance. Although Flores never made an in-court
identification of plaintiff before the jury that convicted him, and the nature of her testimony to
the grand jury is not alleged, she is alleged to have testified before both.
The SAC also alleges specifically that defendants Boyle and Krudis threatened Janet
Chapman if she would not identify plaintiff as the shooter. Chapman is alleged to have testified
at plaintiff’s criminal trial in a manner consistent with the statements she made to Boyle, Krudis,
and presumably Klaimitz, allegedly under their coercion. (That she was prosecuted and
incarcerated anyway – allegedly to secure her trial testimony – is if anything further support for
that view.)
I also cannot overlook the SAC’s allegations relating to Annie Burnell, despite the fact
that she did not testify at plaintiff’s trial. In a case such as this, where plaintiff alleges that every
witness against him was coerced to testify falsely, it is reasonable to conclude that any false
witness statement that was part of the case against him played a part in his ultimate deprivation
of liberty. For example, it would be quite reasonable to infer from the facts actually alleged that
defendant Boyle’s DD-5 recording her statement – which is not only alleged to have been
coerced, but is implausible on its face – was before the grand jury.

7

Finally, defendant Grimaldi is alleged to have sworn to a criminal complaint containing
information that he knew to be false.
Focusing specifically on the alleged coercion of Chapman’s testimony, defendants protest
that “in none of the statements attributed to Chapman throughout the [SAC] does she ever claim
that detectives told her what to say or pressured her to testify falsely.” It is helpful, for purposes
of understanding exactly what defendants mean by this, to distinguish between coercion of
testimony and falsification of testimony. Simply put, in the context of assessing the conduct of
an official (rather than that of the witness herself), the latter is a subset of the former. When
false testimony is knowingly elicited by an investigating official, that act can be viewed as the
creation of false evidence for purposes of this inquiry; coercion of a true statement is not. See
Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014) (“Coerced testimony is testimony that a
witness is forced by improper means to give; the testimony may be true or false. Fabricated
testimony is testimony that is made up; it is invariably false. False testimony is the equivalent; it
is testimony known to be untrue by the witness and by whoever cajoled or coerced the witness to
give it.”).
Defendants’ motion, in this regard, relies heavily on pointing out that the record evidence
does not show that Chapman was pressured to testify falsely. To the extent that defendants’
argument is that defendant Boyle pressured her to testify, but not necessarily to any falsehood,
that argument conflates evidence and allegation. Plaintiff need not, at this stage, proffer a
statement by Chapman that expressly and unambiguously admits to testimony that was both false
and coerced. See id. Plaintiff need only allege that it was so. This much the SAC does. The
statements attributed to Chapman in the complaint do more than enough to support a plausible
inference of coerced false testimony.

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III.

Malicious Prosecution
In order to state a claim for malicious prosecution on the part of any of the individual

defendants, plaintiff must allege that that defendant (1) initiated or continued a criminal
proceeding against him; (2) that it was terminated in his favor; and (3) that there was no probable
cause for the criminal proceeding. Manganiello v. City of New York, 612 F.3d 149 (2d Cir.
2010). Plaintiff must also show “actual malice,” which can be inferred from inter alia the
absence of probable cause or from facts suggesting that a defendant acted with reckless disregard
for his rights. Id. at 163.
Plaintiff sufficiently alleges that his prosecution for the murder of Elvin Zorilla was
terminated in his favor when he was released following the grant of his petition for habeus
corpus by Judge Garaufis.
A.

Presumption of Probable Cause

The fact that plaintiff was indicted by a grand jury creates a presumption of probable
cause for his prosecution. See Savino v. City of New York, 331 F.3d 63 (2d Cir. 2003). Thus,
for plaintiff’s malicious prosecution claims to survive, he must allege that the indictment was
“procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in
bad faith.” Id. at 72 (quotation omitted). For purposes of this analysis, it is not necessary for
plaintiff to allege improper conduct in connection with the indictment by every defendant. All
he has to do is overcome the presumption by alleging that it was procured by improper means.
The most significant problem with respect to plaintiff’s claim for malicious prosecution is
that the SAC simply does not set forth any facts relating to the evidence that was before the
grand jury. Plaintiff argues that he has adequately pleaded the “fabrication and coercion of
witnesses,” and – as discussed in Section II above – indeed he has. Plaintiff must show, of
course, that such fabrication led to his indictment.
9

Plaintiff’s brief in opposition to the instant motion is of no help; he contends that he has
adequately overcome the presumption of probable cause because the complaint alleges that the
NYPD defendants “withheld exculpatory material, fabricated statements, [and] acted in bad faith
when presenting evidence to the Grand Jury while knowing Flores described shooter [sic] as tall,
black, and dark” when he is, in fact, 5’7” and light-skinned. Not only do the opposition’s
citations to the SAC fail to correctly identify the paragraphs that they seem intended to cite, but
nothing in those paragraphs (or the SAC as a whole) says anything about the evidence before the
grand jury. Finally, it is true that, in order to prove his case, plaintiff will not be able to rely on
conjecture to establish that his indictment was procured improperly. See Rothstein v. Carriere,
373 F.3d 275 (2d Cir. 2004).
Nevertheless, at this stage of the case, the SAC sets forth enough facts to overcome the
presumption. I consider plaintiff’s allegations in light of the fact (on which the parties appear to
agree) that Daisy Flores was the only eyewitness to testify before the grand jury. On its face, the
SAC sufficiently alleges that defendants Boyle and Klaimitz, if not others, coerced her into
making fabricated statements that inculpated plaintiff and put a fabricated photo identification
into the record prior to his indictment.
Plaintiff’s allegations concerning the inconsistency in Daisy Flores’ statements to police
and at trial, coupled with specific allegations that her description of the shooter was fabricated at
the behest of investigators, support a reasonable inference that she also misled the grand jury.
Even in the absence of a specific allegation, it is also reasonable to infer that defendant Boyle’s
DD-5 recording her testimony was before the grand jury, or at the very least that she did not
contradict it in whatever testimony she gave.

10

Moreover, the case law is clear that it is sufficient to allege that exculpatory evidence was
withheld from the grand jury. See Manganiello, 612 F.3d at 163 (affirming denial of JMOL after
verdict finding of malicious prosecution where, among other things, evidence supported the
inference that police “declined to inform the ADA of, or to document, any exculpatory evidence
or inconsistencies in the statements of witnesses who agreed to inculpate” the plaintiff).
The SAC alleges that during the investigation of the Zorilla shooting, the person in whose
apartment it occurred was “placed at the scene of the murder by Chapman” and had even “rifled
through the victims [sic] pockets at the crime scene” but was never interviewed. Plaintiff alleges
that three days before plaintiff’s grand jury, a line-up was conducted in which Flores – the
principal eyewitness to the murder – was not asked to participate. These allegations, taken as
true, suffice to create a plausible inference that police and prosecutors deliberately avoided
presenting exculpatory evidence to the grand jury.
B.

Initiation of Prosecution

Having surpassed that threshold hurdle, plaintiff must also allege that any individual
defendant “initiated or continued” his prosecution without probable cause. Plaintiff argues that
the NYPD defendants are sufficiently alleged to have initiated his prosecution because that
requirement can be met by “having the plaintiff arraigned, by filling out complaining and
corroborating affidavits, and by signing felony complaints.” However, the only allegation that
would give rise to a claim under that view is that defendant Grimaldi swore out the criminal
complaint that initiated plaintiff’s prosecution, while knowing that it contained false information.
Nevertheless, a defendant can also be held liable for initiating a prosecution when that
defendant fabricates evidence, and forwards that evidence to prosecutors. See, e.g.,
Manganiello, 612 F.3d at 163 (sufficient evidence to find initiation or continuation where police

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officer, among other things, “actively elicited inculpatory statements from witnesses . . . whose
veracity in making such statements was circumstantially suspect” and forwarded them to DAs).
As discussed above, the SAC sufficiently alleges that defendants Boyle, Klaimitz and
Krudis were personally involved in coercing false witness statements from Chapman, Flores,
Burnell, and even Rodriguez that were forwarded to prosecutors in the days prior to plaintiff’s
indictment. There is no requirement for purposes of this analysis that such conduct led to a
deprivation of liberty (as required for a malicious prosecution claim) or an indictment (as
required to overcome the presumption of probable cause). All that is necessary is that plaintiff
allege that each individual was responsible for putting false information into the record, and the
SAC does that.
Defendants argue, in a footnote, that (in effect) it is impossible to allege the initiation of a
prosecution by both police and prosecutors, because liability for investigators does not extend to
a situation in which the prosecutor acts in concert with police, knowing the fabricated evidence
to be so. See Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999) (observing that
“the chain of causation between a police officer’s unlawful arrest and a subsequent conviction
and incarceration is broken by the intervening exercise of independent judgment . . . [a]t least . . .
in the absence of evidence that the police officer misled or pressured the official who could be
expected to exercise independent judgment”). I disagree. As the Second Circuit noted in
Zahrey, 221 F.3d at 352, a case cited by defendants on this point, “[e]ven if the intervening
decision-maker (such as a prosecutor . . .) is not misled or coerced, it is not readily apparent why
the chain of causation should be considered broken where the initial wrongdoer can reasonably
foresee that his misconduct will contribute to an ‘independent’ decision that results in a
deprivation of liberty.” Defendants’ theory would require that if a police investigator foists

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fabricated evidence on an unsuspecting ADA, he can be liable for malicious prosecution, but that
if he acts in concert with an equally culpable ADA to put that evidence before the jury, he
cannot. I decline defendants’ invitation to view Townes as requiring that bizarre result. See
Zahrey, 221 F.3d 342, 352 (2d Cir. 2000) (quoting Barts v. Joyner, 865 F.2d 1187, 1197 (11th
Cir. 1989), for the proposition that intervening acts break chain of causation “in the absence of a
showing that the police officers deceived the court officials or unduly pressured them or that the
court officials themselves acted with malice and the police joined with them” (emphasis added)).
IV.

Absolute Immunity and Monell Claims
Prosecuting attorneys accused of wrongdoing are entitled to absolute immunity from civil

suit for actions taken in their capacity as advocates. Dory v. Ryan, 25 F.3d 81 (2d Cir. 1994).
Plaintiff does not appear to dispute that defendant Allen is entitled to absolute immunity for all
of the alleged misconduct set forth in the SAC. This is with good reason, because the entire
extent of plaintiff’s allegations against defendant Allen concern her role as lead trial prosecutor.
Indeed, the SAC does not contain a single factual allegation concerning defendant Allen that
occurred prior to plaintiff’s indictment. Defendants’ motion is therefore granted with respect to
any claim against defendant Allen individually, and she is dismissed from this case.
Her dismissal as an individual defendant does not mean that her alleged misconduct at
trial is irrelevant to the remaining claims in this case. Defendants do not argue – and I am aware
of no authority that would suggest – that her entitlement to absolute immunity as an individual
defendant means per se that any violation of § 1983 cannot give rise to a claim against the City
under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978), assuming that the
other requirements for pleading such a claim are met. 8

8

Defendant Allen’s immunity does mean, however, that the City is immune from respondeat superior liability as to
her conduct on any of plaintiff’s state-law claims.

13

Of course, defendants move to dismiss plaintiff’s Monell claims based on alleged policies
and practices of, or deliberate indifference toward, constitutional violations by the NYPD and
Kings County DA’s office. I reserve judgment on defendants’ motion with respect to those
claims, pending further clarity as to whether one or both sides will seek to resolve the individual
claims in this case by summary judgment, trial, or other means at the close of discovery.
I therefore need not decide whether plaintiff’s allegations would be sufficient to state a
claim for individual constitutional misconduct against defendant Allen.
V.

Remaining State Law Claims
Plaintiff’s claims for intentional infliction of emotional distress and abuse of process are

untimely. I agree with plaintiff that the applicable statute of limitations is one year plus 90 days
under New York General Municipal Law § 50-i. See, e.g., Matthews v. City of New York, 889
F. Supp. 2d 418, 425 (E.D.N.Y. 2012). However, the SAC’s only allegations concerning that
time period are that defendants “continually lied to and defrauded every court that reviewed [his]
conviction,” and plaintiff argues that this vague allegation supports a theory of continuing
violation that would have delayed the accrual of the statute of limitations on his IIED and abuse
of process claims until he was ordered released in March 20, 2013. Plaintiff was not ordered
released until that time, but Judge Garaufis entered the Habeas Decision granting plaintiff’s
petition in January 2013. The docket in that case suggests no taking of evidence from the
defendants here after that grant. Even if plaintiff’s theory of a continuing violation were valid in
the abstract, which I need not decide, his IIED and abuse of process claims accrued at the
absolute latest on January 16, 2013. Plaintiff’s second and third causes of action are therefore
dismissed. However, plaintiff’s state-law malicious prosecution claim – which did not mature
until his indictment was ordered dismissed on March 20, 2013 – is timely.

14

Plaintiff’s claims for fraud and negligent misrepresentation are not sufficiently plead.
Plaintiff is correct that these causes of action are available outside the commercial setting, but
defendants are correct that reliance is an essential element of both. See Lerner v. Fleet Bank,
N.A., 459 F.3d 273 (2d Cir. 2006); Hydro Investors, Inc. v. Trafalgar Power, Inc., 227 F.3d 8 (2d
Cir. 2000). Plaintiff concedes that he has only colorably alleged reliance on a fraudulent
representation with respect to defendant Allen’s representation that Janet Chapman was not
testifying subject to a plea deal. Because she is entitled to qualified immunity, plaintiff’s fourth
and fifth causes of action are dismissed.
CONCLUSION
Defendants’ [19] motion to dismiss is granted and part and denied in part to the extent set
forth herein. Plaintiff’s second, third, fourth, and fifth causes of action are dismissed. Decision
is reserved on plaintiff’s claims under Monell. The Clerk of Court is directed to terminate
defendant Tess Allen.

SO ORDERED.

Digitally signed by Brian M.
Cogan
______________________________________
U.S.D.J.

Dated: Brooklyn, New York
April 28, 2015

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