Valdiviezo v. City of New York et al

Filing 68

MEMORANDUM & ORDER granting 58 Motion for Summary Judgment. For the reasons stated in the attached Memorandum and Order, defendants' motion for summary judgment is granted. The Clerk of the Court is respectfully requested to enter judgment in favor of defendants, serve a copy of the Memorandum and Order and judgment on pro se plaintiff and close this case. Ordered by Judge Kiyo A. Matsumoto on 10/4/2018. Associated Cases: 1:14-cv-04897-KAM-ST, 1:15-cv-01727-KAM-ST (Abugo, Uzezi)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------x
MARIO VALDIVIEZO,
Plaintiff,
MEMORANDUM AND ORDER

-againstDETECTIVE GREER, DETECTIVE BOLDEN,
and DETECTIVE MARSHALL.

14-CV-4897 (KAM)

Defendants.
---------------------------------------x
MATSUMOTO, United States District Judge:
Plaintiff Mario Valdiviezo, (“plaintiff” or
“Valdiviezo”), proceeding pro se, commenced this action on
August 14, 2014, against defendants City of New York, the 66th
Precinct, Detective William Greer and, by amendment, Detective
John Bolden, alleging violations of his rights under the Civil
Rights Act of 1871, 42 U.S.C. § 1983 (“Section 1983”).

(See ECF

No. 1, Complaint (“Compl.”); ECF No. 16, Order Amending
Complaint and Case Caption.)

The action was consolidated with a

separate action, alleging violations of plaintiff’s
constitutional rights by defendants the City of New York, Edward
Friedman and Detective Kimberly Marshall.

(ECF No. 37, Order

Granting Motion to Consolidate Cases 14-CV-4897 and 15-CV-1727.)
1

In the Complaint, plaintiff seeks $2 million in damages for

1 By Order dated September 16, 2014, the Court dismissed defendants City of
New York and the 66th Precinct from the action for failure to state a claim
pursuant to 28 U.S.C. §§ 1915A(b). (See ECF No. 6.) By Order dated August 24,
2015, the Court dismissed defendants City of New York and Edward Friedman

1

his “unlawful arrest,” the warrantless search of his apartment,
the solicitation of a false statement, and a failure to
immediately disclose the “Complainant’s Statement of Intent.”
(See Compl. At 5.)
On July 21, 2017 Detectives William Greer, John Bolden
and Kimberly Marshall (hereinafter “defendants”) moved for
summary judgment on the basis that the General Release signed by
Valdiviezo precludes Valdiviezo’s 42 U.S.C. § 1983 claim in its
entirety and, in the alternative, that summary judgment should
granted as (1) the majority of plaintiff’s claims are barred by
Heck v. Humphrey; (2) defendants are entitled to summary
judgment on plaintiff’s unlawful search and seizure, false
arrest and malicious prosecution claims; (3) defendants are
entitled to qualified immunity; (4) plaintiff has failed to
establish personal involvement of defendant Detective Bolden;
(5) plaintiff’s claim for deprivation of property fails as a
matter of law; (6) plaintiff’s state law claims and allegations
regarding Miranda rights, racial remarks and denial of food and
use of the restroom are not actionable; and (7) the Court should
decline to exercise jurisdiction over any remaining state law

from a separate action filed by Valdiviezo under docket number 15-CV-1727.
(See 15-CV-1727, ECF No. 9.)

2

claims. 23

For the following reasons, the defendants’ motion

for summary judgment is granted.
I.

Background

On February 28, 2013, Delia Hernandez, plaintiff’s
girlfriend at the time, filed a complaint with the New York City
Police Department (“NYPD”) at the 62nd Precinct in Brooklyn, New
York that led to plaintiff’s arrest. (See ECF No. 60,
Defendants’ Statement Pursuant to Local Civil Rule 56.1(“Def.
56.1”), dated July 21, 2017, ¶ 3).
The parties agree on some basic facts regarding the
February 28, 2013 arrest and the events that follow, but
plaintiff disputes the legality of his arrest and certain events
related to his arrest and prosecution.

The facts below are

drawn primarily from defendants’ 56.1 Statement, and where
plaintiff materially disputes defendants’ representations, those
disputes are noted.
a. Plaintiff’s Arrest, Indictment and Conviction
Ms. Hernandez was interviewed by Detective Greer of
the NYPD’s 66th Precinct on February 28, 2013, the day she filed
her complaint.

(Id. ¶ 4.)

During the interview Ms. Hernandez

2 By Order dated August 24, 2015, the Court dismissed plaintiff’s claims
regarding a right “to a Grand Jury” and freedom “of speech or of the press,”
as well as plaintiff’s claim for ineffective assistance of counsel. (See 15CV-1727, ECF No. 9.)
3

This case was reassigned to the undersigned on February 21, 2018.

3

informed Detective Greer that on February 25, 2013 she argued
with plaintiff about a video on plaintiff’s laptop that depicted
plaintiff and Ms. Hernandez’s relative, who was a minor, engaged
in sexual activity, and that plaintiff pointed a handgun at Ms.
Hernandez and said, “[d]on’t make me use this.”

(Id. ¶¶ 5- 6.)

Ms. Hernandez further informed the detective that two days
later, on February 27, 2013, Ms. Hernandez found the sex video
in plaintiff’s backpack and that plaintiff had placed his
handgun under the bed.

(Id. ¶ 7.)

On February 28, 2013, Ms.

Hernandez signed a Consent to Search form for the apartment she
shared with plaintiff.

On that same day, Detective Greer and

Detective Bolden went to the apartment located at 6408 New
Utrecht Avenue, Apt 3R, Brooklyn, New York to arrest plaintiff.
(Id. ¶¶ 8-11 (citing ECF No. 61 Englert Declaration (“Englert
Dec.”), Ex. C 4, Arrest Report, dated February 28, 2013; Ex. O,
Declaration of Detective William Greer in Support of Motion for
Summary Judgment (“Greer Dec.”).)
Plaintiff disputes many aspects of the police reports,
particularly pointing to the fact that two police reports list
an occurrence taking place on February 26, 2013 when the first
report, Ex. A, indicates that Hernandez reported that the
argument about the video took place on February 25, 2013.

(See

Hereinafter references to exhibits cited in the Englert Declaration will be
referred to as “Ex. ___.”
4

4

ECF No. 63, Plaintiff Declaration in Opposition to the Motion
for Summary Judgment, (“Pl. Opp.”) ¶¶ 4-6.)

Plaintiff also

argues that there are inconsistencies in Ms. Hernandez’s
statements, including those she made in her police report and
those she made at trial, regarding the dates and timing of her
discovery of the explicit dvd and report to the police. (See
e.g. Id. ¶¶ 6,7 (citing Plaintiff Exs. D and E).)
Based on the complaint by Ms. Hernandez and her
subsequent interview by the police, plaintiff was arrested at
approximately 5:05 p.m. at the 6408 New Utrecht Avenue apartment
on February 28, 2013 and was charged with Criminal Possession of
a Weapon in the Second Degree and Menacing in the Second Degree.
(See Def. 56.1 ¶ 10.)

Plaintiff was taken to the 66th Precinct,

where he signed a statement acknowledging that he was advised of
his Miranda rights. (Id. ¶¶ 11-12 (citing Ex. D, Miranda
Warning).)
Plaintiff contends that he signed the Miranda Warning
document without knowing what it was and that he was denied the
translator he requested.

(See Pl. Opp. ¶ 12.)

Plaintiff also

challenges the validity of his arrest, which he alleges was
improperly executed without a warrant, summons or probable cause
and with false evidence about a gun that he alleges was actually
a starter pistol.

(See Id. ¶ 9.)

Plaintiff submits a sworn

declaration in support of some of his assertions.
5

(See Pl.

Opp.)

Notably, plaintiff does not contradict the substance of

the argument that he had with Ms. Hernandez or the threat he
made against her, the fact that Ms. Hernandez consented to a
search of their apartment, or the fact that a gun was present in
his home.
Later in the evening of February 28, 2013, at
approximately 8:00 p.m., Detective Greer informed Detective
Marshall that plaintiff was in custody for threatening Ms.
Hernandez with a gun and that Ms. Hernandez complained that she
found a video showing plaintiff engaged in sexual activity with
her niece, who was 15 at the time the video was produced.

(See

Def. 56.1 ¶¶ 14-15 (citing Ex. E, Complaint Follow Up
Informational Report (“DD5”), General Investigation, dated
February 28, 2017; Ex. P, Declaration of Detective Kimberly
Marshall In Support of Motion for Summary Judgment (“Marshall
Dec.”).)
Detective Marshall spoke by telephone with Ms.
Hernandez’s niece on February 28, 2017 at approximately 10:45
p.m. and she informed Detective Marshall that she had engaged in
a “consensual” sexual relationship with plaintiff from the age
of 13 and last had sexual contact with Plaintiff in 2011.

(See

Id. ¶¶ 16-18 (citing Ex. F, Complaint Follow Up Informational
Report, Interview Telephone, dated February 28, 2013; Ex. P.,
Marshall Dec.)

Plaintiff does not dispute the factual accuracy
6

of the statements summarized from the call, but objects to what
he characterizes as the lack of a record or proof of the
telephone interview.

(See Pl. Opp. ¶ 16.)

He does not cite to

evidence supporting his claim.
At approximately 11:15 p.m., Detective Marshall
interviewed plaintiff in a private room at the 66th precinct
where she reminded plaintiff of his Miranda rights, and offered
him food, beverages and a bathroom break. (See Def. 56.1. ¶¶ 1922 (citing Ex. G, Complaint Follow Up Informational Report,
Interview In-Person, dated February 28, 2017; Ex. P.).)
Defendants assert that plaintiff agreed to the interview
regarding the case and declined the offers of food, drink and a
bathroom break.

(Id.)

Plaintiff denies he ever received a

reminder of his Miranda rights or an offer of food, drink and a
bathroom break.

(See Pl. Opp. ¶¶ 20-22.)

Detective Marshall’s

interview notes reflect that Plaintiff stated that he had been
in a sexual relationship with Ms. Hernandez’s minor relative,
but that she was 16 years old at the time, and admitted to
videotaping himself and C/V engaging in sexual intercourse.
(See Def. 56.1 ¶¶ 23-25 (citing Ex. G; Ex. P.).)

Plaintiff

agreed to, and drafted, a written statement at approximately
11:45 p.m., which outlined his activities with Ms. Hernandez’s
minor relative.

(See Id. ¶¶ 26-27 (citing Ex. H, Plaintiff’s

Written Statement; Ex. P).)
7

Plaintiff asserts that during the interview he stated
C/V was 17 at the time of the video and alleges that his written
statement was made on the false pretense that he would be sent
home after writing it, and submits his declaration in opposition
to Defendants’ summary judgment motion supporting his
assertions.

(See Pl.Opp ¶¶ 7-12.)

Plaintiff does not dispute

the substance of his incriminating written statement.
¶¶ 23-26.)

(See id.

At approximately 11:50 p.m., Detective Marshall

arrested plaintiff, and plaintiff was charged with “Rape in the
Second Degree, Criminal Sex Act in the Second Degree, Sex Abuse
in the Second Degree and Acting in a Manner Injurious to a
Child.”

(Def. 56.1 ¶ 28 (citing Ex. I, Arrest Report, dated

February 28, 2013; Ex. P.).)

Plaintiff alleges that no one

notified him of the charges at the time of his arrest. (Pl. Opp.
¶ 28.)

On March 1, 2013, Detective Greer recovered a handgun

from beneath plaintiff’s and Ms. Hernandez’s bed after searching
plaintiff’s home on consent of Ms. Hernandez.

(See Def. 56.1 ¶

29(citing Ex. J.).)
Plaintiff was indicted by a grand jury on or around
April 13, 2013 for:
two (2) counts of Use of a Child in a Sexual
Performance; two (2) counts of Promoting a Sexual
Performance by a Child; two (2) counts of Possessing a
Sexual Performance by a Child; five (5) counts of Rape
in the Second Degree; ten (10) counts of Criminal
Sexual Act in the Second Degree; fifty-eight (58)
counts of Sexual Misconduct; twelve (12) counts of
8

Sexual Abuse in the Second Degree; forty-six (46)
counts of Sexual Abuse in the Third Degree; thirteen
(13) counts of Rape in the Third Degree; twenty-two
(22) counts of Criminal Sexual Act in the Third
Degree; one (1) count of Menacing in the Third Degree;
and one (1) count of Endangering the Welfare of a
Child.
(Id. ¶ 30(citing Ex. K, Indictment No. 01936-2013.)
Plaintiff was tried and convicted of 34 counts related
to his sexual activity with a minor.

On March 24, 2015,

plaintiff was sentenced to 184 years in prison for:
two (2) counts of Use of a Child in a Sexual
Performance (N.Y.P.L. § 263.05); five (5) counts of
Rape in the Second Degree (N.Y.P.L. § 130.30); five
(5) counts of Criminal Sexual Act in the Second Degree
(N.Y.P.L. § 130.45); nine (9) counts of Rape in the
Third Degree (N.Y.P.L. § 130.25); twelve (12) counts
of Criminal Sexual Act in the Third Degree (N.Y.P.L. §
130.40); and one (1) count of Endangering the Welfare
of a Child (N.Y.P.L. § 260.10).
(Def. 56.1 ¶¶ 32-33 (citing Ex. M, Certificate of Disposition,
dated May 5, 2015.) 5
Plaintiff raised a number of arguments in his
Opposition to defendants’ motion that did not directly respond
to the 56.1 statement, did not cite to supporting evidence, and
opined on the credibility of Ms. Hernandez, the defendants, and
the minor victim before and during his trial.

Given his lack of

evidence to support most of his objections, the court need not

5
The charges for menacing and criminal possession were dismissed on speedy
trial grounds. (See Id. ¶ 31, (citing Ex. M. Certificate of Disposition,
dated November 18, 2014).)

9

address plaintiff’s contentions of fact that lack evidentiary
support and fail to respond directly to defendants’ 56.1
statement.

Instead the court may deem to be established

defendants’ actual assertions that are supported by admissible
evidence, and not disputed by admissible evidence in the record.
Plaintiff also provided a signed declaration reciting his
recollection of certain facts from the time leading up to his
argument with Ms. Hernandez, through April 8, 2014, when he
alleges he was served with exculpatory documents related to Ms.
Hernandez for the first time.

(See Pl. Opp. ¶¶ 7-12.)

In it,

he again contends that he was denied a translator for his
interview by the police.

(Id. at 10.)

b. The Instant Action and the General Release
On August 14, 2014, plaintiff filed the instant
Complaint against the City of New York, Detective Greer and the
66th Precinct in the United States District Court for the Eastern
District of New York.

(See Compl.)

On March 24, 2015,

plaintiff filed another Complaint arising out of plaintiff’s
February 23, 2018 arrest.

(See Complaint, 15 CV 1727 (SLT).)

In May 2015, plaintiff settled a state court civil
case captioned Valdiviezo v. City of New York and New York City
Department of Corrections, Supreme Court Bronx County Index No.
306346-2014, with the City of New York for $3,000. (See Def.
56.1 ¶ 37 (citing Ex. S, Stipulation of Discontinuance with
10

Prejudice, dated May 22, 2015, and General Release, dated May
23, 2015.)

On May 22, 2015, plaintiff executed a Stipulation of

Discontinuance with Prejudice dismissing the state court civil
case, and on May 23, 2015, plaintiff executed a General Release
in the same civil case.

(Id.)

Plaintiff was represented by

Jeffrey Zeichner, Esq. in the civil case, Index No. 306346-2014,
including in the settlement of the case.

(Id.)

The General

Release explicitly released the City of New York and the New
York City Department of Corrections, as well as the City of New
York’s “past and present officers, directors, managers,
administrators, employees, agents, assignees, lessees, and
representatives of the City of New York and all other
individually named defendants and entities represented or
indemnified by the City of New York from any “claims, causes of
action, suits . . . and demands whatsoever” that plaintiff “had,
now has or hereafter can, shall, or may have, either directly or
through subrogees or other third persons, against the RELEASEES
for, upon or by reason of any matter, cause or thing whatsoever
that occurred through the date of this RELEASE.”
2.)

(See Ex. S at

Directly above plaintiff’s signature line, the General

Release states “THE UNDERSIGNED HAS READ THE FOREGOING RELEASE
AND FULLY UNDERSTANDS IT.”

(Id.)

notarized by plaintiff’s counsel.

11

The General Release was
(Id. at 3)

On March 22, 2016 plaintiff’s civil actions in the
Eastern District of New York were consolidated under Docket No.
14-CV-4897.

(See ECF No. 37, Order Granting Motion to

Consolidate Cases 14-CV-4897 and 15-CV-1727.)
c. Defendants Discover the Release
On March 28, 2017, defendants deposed plaintiff.
(See ECF No. 64, Supplemental Declaration of Eviana Englert
(“Supp. Englert Dec.”), ¶ 3 (citing Supp. Ex. R, Transcript of
Plaintiff’s Deposition (“Dep. Tr.”), dated March 28, 2017.) 6

At

deposition, plaintiff testified that he “had two cases in Rikers
Island” and that, “they were resolved . . . so we had an
agreement. . . [a] settlement.”

(See Dep. Tr. 12:20 – 13:8.)

After plaintiff’s deposition, defense counsel conducted a search
for the prior settlement paperwork within the records of the
Office of the Comptroller and, upon receiving the settlement
paperwork, wrote to plaintiff asking if he would voluntarily
withdraw the instant consolidated action with prejudice due to
the terms of the General Release. (Supp. Englert Dec. ¶ 5
(citing Supp. Ex. B, Defendants’ Letter to Plaintiff, dated
April 5, 2017).)

Plaintiff refused and, on July 2, 2017,

briefing commenced on defendants’ motion for Summary Judgment.
(See Id. ¶¶ 13-19; ECF No. 51, Order Denying Motion for PreHereinafter references to exhibits cited in the Supplemental Declaration of
Eviana Englert will be referred to as “Supp. Ex. ___.”
6

12

Motion Conference And Granting Defendants Permission to Move for
Summary Judgment.)

Briefing was completed on Defendants’ Motion

for Summary Judgment on September 22, 2017.
II.

Legal Standard

Summary judgment is appropriate where “the movant
shows that there is no genuine dispute as to any material fact,”
Fed. R. Civ. P. 56(a), “and the facts as to which there is no
such issue warrant the entry of judgment for the moving party as
a matter of law.”

Kaytor v. Electric Boat Corp., 609 F.3d 537,

545 (2d Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986).

“All ambiguities must be resolved in favor

of the non-moving party and all permissible inferences from the
factual record must be drawn in that party's favor.”

Zalaski v.

City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).

If the moving party can show that “there is no genuine

issue as to any material fact and that it is entitled to
judgment as a matter of law, the nonmoving party must come
forward with specific facts showing that there is a genuine
issue for trial.”

Peterson v. Regina, 935 F. Supp. 2d 628, 634

(S.D.N.Y. 2013) (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
To defeat a motion for summary judgment, the nonmoving party must identify probative, admissible evidence from
which a reasonable factfinder could find in his favor.
13

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986).

It

“requires the nonmoving party to go beyond the pleadings and by
[his or] her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.”
U.S. at 324 (citations omitted).

477

If, as to the issue on which

summary judgment is sought, there is any evidence in the record
from any source from which a reasonable inference could be drawn
in favor of the nonmoving party, summary judgment is
improper.

Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d

Cir. 1994)(citations omitted).

A pro se complaint must be

construed liberally to raise the strongest claim it suggests and
pro se pleadings are granted special solicitude.

See Erickson

v. Pardus, 551 U.S. 89, 94 (2007).
Under Local Civ. R. 56.1(a) a party moving for summary
judgment must submit a statement of undisputed facts and under
Local R. 56.1 (b) the party opposing the motion must include “a
correspondingly numbered paragraph responding to each numbered
paragraph in the statement of the moving party.”
Rockefeller & Co., 258 F.3d 62, 72 (2d Cir. 2001).

Holtz v.
Local Rule

56.1(d) requires that “[e]ach statement of material fact by a
movant or opponent must be followed by citation to evidence
which would be admissible” as required by Fed. R. Civ. P.
56(e).”

Id. at 73 (2d Cir. 2001).
14

“[W]here there are no[]

citations or where the cited materials do not support the
factual assertions in the Statements, the Court is free to
disregard the assertion.”

The local rules warn that,

Id.

“[e]ach numbered paragraph in the statement of material facts
set forth in the statement required to be served by the moving
party will be deemed to be admitted for purposes of the motion
unless specifically controverted by a correspondingly numbered
paragraph in the statement required to be served by the opposing
party.”

Local Civ. R. 56.1(c).

A represented party moving for

summary judgment against a pro se party is required to serve and
file a “Notice to Pro Se Litigant Who Opposes a Motion For
Summary Judgment” with Fed. R. Civ. P. 56 and Local Civil Rule
56.1 attached.

Local Civ. R. 56.2.

The defendants have

complied with the requirements of Local Civil Rule 56.2 based on
defendants’ letter dated July 21, 2017, giving appropriate
notice to pro se plaintiff.

(See ECF No. 56, Defendant Letter

to Plaintiff Enclosing Defendants’ Motion for Summary Judgment.)
III.

Discussion

a. Choice of Law
Federal law governs the validity of releases of
federal causes of action, but state contract law typically
provides the substantive content and context for such disputes.
See Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 463 (2d Cir.
1998)(“Under New York law, a release that is clear and
15

unambiguous on its face and which is knowingly and voluntarily
entered into will be enforced.”).

However, where a release

would waive a fundamental constitutional right, such as those
guaranteed by 42 U.S.C. § 1983, the question of validity is
controlled by federal law.

See e.g. Town of Newton v. Rumery,

480 U.S. 386, 392 (1987)(analyzing a release-dismissal agreement
that waived rights pursuant to Section 1983); Intermor v. Inc.
Vill. of Malverne, No. 03CV5164, 2007 WL 2288065, at *8
(E.D.N.Y. Aug. 8, 2007)(citations omitted); Morris v. New York
City Employees' Ret. Sys., 129 F. Supp. 2d 599, 605-606
(S.D.N.Y. 2001); Murray v. Town of N. Hempstead, 853 F. Supp. 2d
247, 259 (E.D.N.Y. 2012)(citations omitted) (“Although the
Plaintiff cites to New York law in support of his argument that
there was no release of his 42 U.S.C. § 1983 claims, this is
incorrect, because the question of a waiver of a federally
guaranteed constitutional right is, of course, a federal
question controlled by federal law.”).
b. Defendants Have Sufficiently Established the Validity
of the General Release and its Applicability
to the Instant Action
A court may ascertain whether a party knowingly and
voluntarily waived his rights only “after a careful evaluation
of the totality of all surrounding circumstances.”
Warner v. Orange Cty. Dep't of Prob., 968 F. Supp. 917, 923
(S.D.N.Y. 1997), aff'd, 173 F.3d 120 (2d Cir. 1999) (citations
16

omitted).

Analyzing the validity of a release “is a peculiarly

fact-intensive inquiry.”

Livingston v. Adirondack Beverage Co.,

141 F.3d 434, 437–38 (2d Cir. 1998) (citing Bormann v. AT & T
Communications, Inc., 875 F.2d 399, 403 (2d Cir.1989)).
The Second Circuit recently affirmed the “totality of
circumstances test” in Livingston for determining whether a
release of claims is knowing and voluntary.

Charlery v. City of

New York Dep't of Educ., No. 17-1888-CV, 2018 WL 4355914, at *1
(2d Cir. Sept. 12, 2018) (citing Livingston, 141 F.3d at 437–38)
(affirming grant of summary judgment dismissing claims where
plaintiff knowingly and voluntarily waived federal claims by
executing a release).

In determining whether a waiver was

knowing or voluntary, the court should consider:
1) the plaintiff’s education and business experience,
2) the amount of time the plaintiff had possession of
or access to the agreement before signing it, 3) the
role of plaintiff in deciding the terms of the
agreement, 4) the clarity of the agreement, 5) whether
the plaintiff was represented by or consulted with an
attorney, and 6) whether the consideration given in
exchange for the waiver exceeds [ ] benefits to which
the [the plaintiff] was already entitled by contract
or law.
Id. (quotation marks omitted).
Defendants offer uncontroverted evidence supporting
the enforcement of the release.

Defendants contend that

plaintiff was represented by Jeffrey Zeichner, Esq. in the civil
case, Index No. 306346-2014, including in the settlement of the
17

state court case, as established by attorney Zeichner’s
signature on the Stipulation of Discontinuance and his
notarization of plaintiff’s signature on the General Release.
(See Def. 56.1 ¶ 37 (citing Ex. S, Stipulation of Discontinuance
with Prejudice, dated May 22, 2015, and General Release, dated
May 23, 2015.)

The language of the General Release, dated May

23, 2015, clearly and explicitly released the City of New York
and the New York City Department of Corrections, as well as the
City of New York’s “past and present officers, directors,
managers, administrators, employees, agents, assignees, lessees,
and representatives of the City of New York and all other
individually named defendants and entities represented or
indemnified by the City of New York” from any “claims, causes of
action, suits . . . and demands whatsoever” that plaintiff “had,
now has or hereafter can, shall, or may have, either directly or
through subrogees or other third persons, against the RELEASEES
for, upon or by reason of any matter, cause or thing whatsoever
that occurred through the date of this RELEASE.”
2.)

(See Ex. S at

Directly above plaintiff’s signature line, the release

states “THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY
UNDERSTANDS IT.”

(Id.)

The General Release also provides $3000

in consideration for the execution of the release, an amount
plaintiff does not appear to be otherwise entitled to receive.
(Id.)
18

Plaintiff’s opposition does not allege that the
General Release was invalid or other otherwise infirm, and
offers no admissible evidence showing that the General Release
is not enforceable, as necessary to raise a genuine dispute as
to a material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986) (citations omitted).

Plaintiff’s only reference to the

General Release in his opposition is what appears to be an
objection to its inclusion in defendants’ 56.1 statement, based
on plaintiff’s contention that the copy of the General Release
was served on plaintiff on April 5, 2017, one day after the
close of discovery.

(See Pl. Opp. ¶¶ 37-39 (citing Pl. Ex. K.))

Plaintiff, however, does not make the basis of his objection
clear. 7
The April 5, 2017 disclosure of the General Release
will not preclude its admission as evidence.

As defendants

aptly noted in their reply, it was plaintiff’s knowledge of and
disclosure of the settlement agreement at deposition on March

By letter dated June 12, 2017, plaintiff filed Plaintiff's Affirmation and
Respond against Defendants’ Preliminary Statement Pursuant to Local Civil
Rule 56.1. (See ECF No. 53., Plaintiff’s Affirmation and Response (“Pl. Aff.
And Response.) Plaintiff’s submission contained preliminary objections to
defendants’ yet-to-be-filed 56.1 statement and was improperly filed prior to
the court’s June 22, 2017, order granting defendants’ permission to move for
summary judgment. (See ECF No. 51.) Further it is almost fully duplicative
of plaintiff’s actual opposition to the defendants’ summary judgment motion.
(See ECF No. 63.) Plaintiff merely asserts that he did not recall or possess
any Stipulation of Discontinuance With Prejudice, dated May 22, 2015. (See
Pl. Aff. And Response at 5. Plaintiff’s bare statement that he neither
recalls nor possesses the Stipulation of Discontinuance with Prejudice, even
if asserted in opposition to defendants’ Motion for Summary Judgment, is
insufficient to raise an issue of triable fact.
7

19

28, 2017 that first put defendants on notice that the General
Release existed.

(See Supp. Ex. R, Dep. Tr. 12:20 – 13:8.)

At

an April 11, 2017 conference before Magistrate Judge Tiscione,
defendants advised Judge Tiscione of their recent discovery of
the existence of the release and plaintiff advised the court
that he was missing several documents requested in discovery, at
which time Judge Tiscione directed plaintiff to send defendants
a list of the missing items.

(Sup. Englert Dec. ¶¶ 6-7.)

In

the list of missing items plaintiff sent to the defendants,
plaintiff also requested that defendants schedule a call to
discuss the April 5, 2017 letter regarding the General Release.
(Id. ¶ 13.)

On the call, which took place on May 19, 2017,

plaintiff informed defense counsel that he would not voluntarily
dismiss the instant action.

(Id. ¶ 18.)

Given plaintiff’s

awareness of the General Release and the ongoing exchange of
discovery materials after April 5, 2017, when defendants sent a
letter to plaintiff enclosing a copy of the release, the court
finds that plaintiff is not prejudiced by the inclusion of the
General Release in defendants’ summary judgment submission for
consideration by the court.
The General Release fully precludes the instant action
if the release is valid and enforceable.

On August 14, 2014,

plaintiff filed the instant Complaint against the City of New
York, NYPD Detective William Greer and the NYPD 66th Precinct in
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the United States District Court for the Eastern District of New
York.

(See Compl.)

On March 24, 2015 plaintiff filed another

Complaint arising out of plaintiff’s arrest against the City of
New York, NYPD Detective Kimberly Marshall and Edward Friedman.
(See Complaint, 15 CV 1727 (SLT).)

The General Release, by its

terms, released any claims or causes of action plaintiff had
against the City of New York and its employees as of the date
plaintiff signed the release on May 23, 2015. (See Ex. S at 2.)
Given the foregoing facts and the absence of contrary
evidence, the General Release is valid and enforceable and, as
such, precludes the instant action in its entirety.

Cuffee v.

City of New York, No. 15-CV-8916, 2018 WL 1136923, at *6
(S.D.N.Y. Mar. 1, 2018)(internal quotations omitted)(granting
summary judgment and enforcing the release “because Plaintiff
has neither raised [a] challenge as to the authenticity of his
signature on the Release, nor asserted that he signed the
agreement under duress or based upon misinformation, no
reasonable juror could find that Plaintiff did not

. . .

voluntarily, knowingly, and willingly release Defendants from
any and all liability, claims, or rights of action”);

Staples

v. Officer Acolatza, No. 14-CV-3922, 2016 WL 4533560, at *3
(S.D.N.Y. Mar. 9, 2016)(finding General Release barred recovery
where plaintiff did not allege any facts reasonably supporting
his lack of knowledge as to the applicability of the release );
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Arzu v. City of New York, No. 13-CV-5980, 2015 WL 4635602, at *5
(S.D.N.Y. Aug. 3, 2015)(finding that General Release precluded
claims where plaintiff did not allege the release was invalid,
but incorrectly asserted that certain claims did not accrue
until after the execution of the release); Hackshaw v. Urquiaga,
No. 15 Civ. 4005, 2016 WL 6534253, at *4 (S.D.N.Y. Nov. 2,
2016)(finding general release precluded claims that accrued
prior to the signing of the release); Cuadrado v. Zito, No. 13
Civ. 3321 VB, 2014 WL 1508609, at *3 (S.D.N.Y. Mar. 21, 2014)
(holding that “because plaintiff unambiguously agreed to waive
the claims asserted in this case [in a general release] and does
not raise any legitimate defense, defendant is entitled to
summary judgment”); Roberts v. Doe 1, No. 14-CV-9174, 2015 WL
670180, at *5 (S.D.N.Y. Feb. 17, 2015) (enforcing General
Release where plaintiff was represented when executing the
release and plaintiff’s counsel alleged defense counsel
misrepresented the scope of the release to plaintiff but failed
to submit evidence in the form of an affidavit).
c. Plaintiff’s Motion to Amend Filed in Opposition
Plaintiff, in conjunction with his Opposition to the
Motion for Summary Judgment, moved to amend his complaint to add
Delia Hernandez as a party, alleging defamation of character,
manufacturing false evidence, violating plaintiff’s right to a
fair trial and for facilitating a violation of Brady v.
22

Maryland, 373 U.S. 83 (1963) (“Brady”).

(See Pl. Opp. At 13.)

An opposition to a motion for summary judgment is not the proper
vehicle to amend a complaint, and as such the court typically
will not address such a motion.
Although leave to amend is generally freely granted,
absent undue delay, prejudice to the existing and proposed
defendant and futility, Burch v. Pioneer Credit Recovery, Inc.,
551 F.3d 122, 126 (2d Cir. 2008), the court denies plaintiff’s
motion to amend.

Here, plaintiff offers no reason for his undue

delay in seeking leave to amend his complaint to add Delia
Hernandez as a defendant.

Plaintiff was clearly aware of Ms.

Hernandez’s conduct at the time he commenced the instant
consolidated action in 2014, but delayed until September 2017 to
request leave to amend, in his opposition to defendants’ summary
judgment motion.
Moreover, the amendment would cause existing
defendants and Ms. Hernandez prejudice, as the existing parties
have engaged in discovery and the defendants have moved for
summary judgment.

Ansam Assocs., Inc. v. Cola Petroleum, Ltd.,

760 F.2d 442, 446 (2d Cir. 1985) (citing Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330–31 (1971) (denying
motion to amend filed after the close of discovery and after a
motion for summary judgment was filed).)
Finally, the amendment would be futile because the
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statutes of limitations for plaintiff’s proposed claims against
Ms. Hernandez have expired.

The statute of limitations for

plaintiff’s proposed defamation claim is one year, Lesesne v.
Brimecome, 918 F. Supp. 2d 221, 224 (S.D.N.Y. 2013)(citations
omitted), and any claim would have accrued on February 28, 2013,
when Ms. Hernandez complained to the police.

The remaining

claims for manufacturing of evidence, denial of fair trial and
Brady violations, which plaintiff seeks to bring pursuant to 42
U.S.C. § 1983, have statutes of limitations of three years.
Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997).
Moreover, as the instant Complaint is barred in its
entirety by the General Release and is, therefore, dismissed,
the court need not reach that question and plaintiff’s Motion to
Amend is denied, as moot.

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IV.

Conclusion

For the foregoing reasons, defendants’ Motion for
Summary Judgment Motion is GRANTED and the instant action is
dismissed with prejudice.
with prejudice.

Plaintiff’s Motion to Amend is DENIED

The Clerk of Court is respectfully requested to

enter judgment in favor of defendants, and send pro se plaintiff
a copy of this memorandum and order, and the judgment, and close
this case.

SO ORDERED.
Dated: Brooklyn, New York
October 4, 2018
________/s/
____________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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