Delamota v. City of New York et al

Filing 40

OPINION AND ORDER granting in its entirety defendants' 29 Motion to Dismiss for Failure to State a Claim. Plaintiff has not identified any additional facts that he may include in an amended complaint, nor is it apparent how plaintiff coul d allege any additional facts that are not already a part of the record as described by the New York Court of Appeals. But, if plaintiff does choose to move the court for leave to amend his Complaint, he must do so within 30 days. Ordered by Judge Nina Gershon on 5/23/2016. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SEBASTIAN DELAMOTA,
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OPINION AND ORDER
Plaintiff,
14-cv-5888 (NG)
- V. -

L)

THE CITY OF NEW YORK, DET. BRUCE KOCH
RICHARD A. BROWN, ADA PAUL SCOTTI,
Defendants.

4 CLERK'S OFFICE

U.*. DISTRICT COURT

* MAY 24201 *
ROOKLTh 0Fi-C.

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GERSHON, United States District Judge:

This action is brought under 42 U.S.C. §§ 1983, 1985 and 1986 against the City of New
York, New York Police Department Detective Bruce Koch, Queens County District Attorney
Richard Brown individually and in his official capacity, and Assistant District Attorney Paul
Scotti. The Complaint arises from plaintiff's conviction for robbery, which was reversed by the
New York Court of Appeals on the ground that the trial court erred when it denied Delamota's
motion, made during trial, to reopen the identification hearing which had been held, and denied,
before trial. Plaintiff now brings a variety of claims arising out of the events relating to the
identification procedures used before his arrest. Defendants move to dismiss the Complaint for
failure to state a claim.
On October 4, 2007, after a jury trial, plaintiff was convicted of robbery in the first degree,
criminal possession of a weapon in the third degree and menacing in the second degree. On
February 13, 2008, the trial court denied plaintiff's motion to set aside his conviction and for a
new trial. People v. Delainota, 18 Misc. 3d 1130(A) (Sup. Ct. Queens Cty. 2008). On June 22,
2010, the Appellate Division affirmed the conviction and the trial court's denial of plaintiffs

motion. People v. Delamota, 74 A.D.3d 1225 (2d Dep't 2010). On November 17, 2011, the New
York Court of Appeals overturned plaintiff's conviction and remanded the case for a new trial.
People v. Delainota, 18 N.Y.3d 107 (N.Y. 2011).
I.

The Complaint and State Court Proceedings

The background and facts are taken from plaintiff's Complaint and the decision of the New
York Court of Appeals, which plaintiff references in the Complaint.
On October 27, 2006, Juan Hernandez's son ("Juan Jr.") called 911. Juan Jr., pretending
to be his father, reported that he was robbed at knife point in an elevator in his apartment building.
Detective Bruce Koch spoke to Juan Hernandez that same evening, with Hernandez's son,
Juan Jr., acting as translator. Hernandez, through his son, described the perpetrator as an Hispanic
male in his twenties, about five feet, six inches tall and weighing approximately 140 pounds. At
that time, Hernandez stated that the perpetrator held the knife in his right hand and took the stolen
items with his left hand.
Detective Koch then assembled photographs, which did not include one of plaintiff, to
conduct a photo array. Hernandez was unable to make an identification.
A few days after the incident, Juan Jr. told Detective Koch that he had heard from
neighborhood gossip that the perpetrator was "Sebastian" and that this individual had been the
victim of a shooting earlier that year. Koch asked Juan Jr. if he knew Sebastian, and Koch accepted
Juan Jr.'s answer that he did not know Sebastian. Koch then showed Hernandez a new photo array
containing a photograph of the plaintiff and, with Juan Jr. acting as translator, Hernandez identified
plaintiff as the perpetrator.
In January of 2007, Detective Koch conducted a lineup that included plaintiff and at which
Assistant District Attorney Paul Scotti ("ADA Scotti") was present. With a Spanish speaking

Pj-

officer acting as translator, Hernandez identified plaintiff as his attacker. At that time, plaintiff
was 18 years old and six feet, three inches tall, and he had a functionally impaired left arm.
Plaintiff was indicted for first degree robbery, third and fourth degree weapon possession
and second degree menacing. Plaintiff's counsel moved to suppress the photo identification and
lineup pursuant to United States v. Wade, 388 U.S. 218 (1926), on the ground that Juan Jr.'s
presence and role as an interpreter at the photo identification rendered the procedure unduly
suggestive. The trial court determined that, although it was not good practice to use Juan Jr. as an
interpreter, the identification should not be suppressed, since Juan Jr. did not know plaintiff.
At the jury trial, Detective Koch testified to Hernandez's statement that the perpetrator
used his left hand to take certain articles of property, but Hernandez testified that the perpetrator
was unable to raise his left arm above his waist and denied ever telling the police that the
perpetrator used both arms during the attack. The jury learned, by stipulation, that Hernandez had
told a therapist the day after the robbery that he recognized the man who attacked him. In contrast,
Detective Koch testified that Hernandez had told him that he was not familiar with the perpetrator.
Juan Jr. testified that he knew plaintiff prior to the robbery. Upon this revelation, defense
counsel moved to reopen the Wade hearing. The trial judge denied this application on the ground
that the suppression motion would have been denied even had it been known that Juan Jr. knew
Delamota.
The Appellate Division, in affirming the conviction and the trial court's decision not to
reopen the Wade hearing, noted that defendant "failed to show that the evidence adduced at trial
constituted additional pertinent facts which could not have been discovered by him with reasonable
diligence." Delamota, 74 A.D.3d 1225. The Appellate Division also concluded that the evidence
was legally sufficient to establish Delamota's identity as the perpetrator. Id.

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On November 17, 2011, the Court of Appeals vacated plaintiff's conviction on the ground
that the photo array was unduly suggestive and remanded for a new trial to be preceded by an
independent source hearing. (Three dissenting judges agreed with vacating the conviction, but
would have dismissed the indictment altogether.) People v. Delamota, 18 N.Y.3d 107 (N.Y. 2011).
The Court of Appeals noted Detective Koch's testimony that, immediately following the robbery,
Hernandez described the perpetrator as an Hispanic man in his mid-twenties, weighing about 140
pounds who used his left arm to steal property, when in fact, at the time of the robbery, Delamota
was 18 years old, six feet three inches tall and had an impaired left arm.

Id. The Court found

Hernandez "unwavering" during his testimony that the perpetrator did not use his left arm. Id. at
116. The Court explained that the jury could have "rationally conclude[d]. . .that the victim's
recollection was credible and accurate, that the attacker had limited mobility in his left arm and
that Hernandez did not tell Detective Koch that defendant used both of his arms during the
robbery." Id.
In holding that the identification should have been suppressed because Juan Jr. participated
in the photo array, the Court of Appeals explained:
In this case, the trial court erred when it denied defendant's
motion to reopen the Wade hearing because Juan Jr.'s trial testimony
fatally undermined the suppression court's rationale for denying that
motion. The suppression court had been troubled by Juan Jr.'s role
at the identification procedure but ultimately concluded that
suppression was not warranted because Juan Jr. did not know
defendant. The significant revelation to the contrary at trial
considerably strengthened defendant's suggestiveness claim when
viewed in conjunction with other relevant facts: (1) the detective
acted on unspecified neighborhood gossip (the reliability of which
was never directly questioned or tested) regarding the robber's name
and history based on information provided by Juan Jr.; (2) the
detective was apparently concerned about the son's possible
preexisting familiarity with defendant (and the suggestiveness that
this could cause) and broached the topic before the photo array was
conducted; (3) the detective either was or should have been aware

of the substantial risk that the son was familiar with defendant
despite his assurance to the contrary; (4) there was no apparent
impediment to the detective utilizing a Spanish interpreter who did
not have preexisting information about the possible perpetrator or a
familial connection to the victim; and (5) the detective could not be
reasonably sure that the son would accurately translate the
conversation.
Although any one of these facts or even several of them
combined may not have established the requisite level of
suggestiveness, their confluence with Juan Jr.'s testimony leads us
to conclude that the record does not support the finding of the courts
below that defendant failed to satisfy his burden of proving that the
photo array was unduly suggestive. In our view, the suggestiveness
cannot be attributed to the victim's son, but to the detective's
decision to utilize him as the interpreter notwithstanding the
possible risks that were involved in this practice. In addition, we do
not believe that defendant could have discovered, before the
suppression court ruled on the motion, the true extent of Juan Jr.'s
familiarity with defendant or what Juan Jr. misrepresented to the
police. The photo array identification, therefore, should have been
suppressed and defendant is entitled to a new trial. Before that
occurs, the People may attempt to demonstrate, by clear and
convincing evidence, that Hernandez's ability to identify defendant
has not been impermissibly influenced by the suggestive pretrial
procedure that was employed here.

Id. at 118-119 (citations omitted).
On September 13, 2012, all charges against plaintiff were dismissed.
In addition to the facts developed at the trial and the Court of Appeals' statement of the
facts regarding the identification procedure, which provide the bulk of the factual allegations in
the Complaint, plaintiff alleges that the grand jury was never informed that Juan Jr. translated for
his father during the photo array or that Juan Jr. knew plaintiff. (Compi. ¶J 40-42).

II.

Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true all

well-pleaded factual allegations and must draw all inferences in the plaintiff's favor. Swiatkowski
v. Citibank, 446 Fed. Appx. 360, 360-61 (2d Cir. 2011). To survive a motion to dismiss, a

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complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its

face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ad. Corp. v. Twombly, 550 U.S.
544 5 570 (2007)). A claim is facially plausible when a plaintiff "pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal,556 U.S.at 678.
The court may consider the pleading itself, documents referenced in the complaint,
documents that plaintiff relied on in bringing the suit and matters of which judicial notice may be
taken. Arrocha v. City Univ. off. Y., 878 F. Supp. 2d 364, 368 (E.D.N.Y. 2012). Defendants have
submitted for judicial notice: the indictment; the state court decisions related to the underlying
criminal case; and the Wade hearing minutes. Plaintiffs have submitted for judicial notice: a
pleading in another matter; a letter from the Chief Assistant District Attorney; a copy of the
Informational Report signed by Detective Koch; and two portions of transcripts of the trial
testimony of Juan Hernandez, Sr. The parties agree that the court may consider these documents
in deciding defendants' motion to dismiss.
III.

The Claims
Plaintiff alleges claims under 42 U.S.C. §§ 1983, 1985 and 1986 for: false arrest and

imprisonment; malicious prosecution; conspiracy; denial of procedural and substantive due
process; unreasonably prolonged detention; unreasonable continued prosecution; unduly
suggestive identification procedures; failure to intervene; failure to investigate. Plaintiff also
brings a § 1983 claim under Brady v. Maryland, 373 U.S. 83 (1963), and a claim against the City
under Monell v. Department of Social Services, 436 U.S. 658 (1978). Plaintiff does not dispute
that his claim for false arrest and false imprisonment is barred by the three year statute of
limitations and that any claim against District Attorney Brown in his personal capacity is barred

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by absolute immunity. Plaintiff has withdrawn his claim for failure to intervene as against ADA
Scotti 1 and his claim for unreasonable prolonged prosecution as against all defendants.
a. Malicious Prosecution
In order to prevail on a claim for malicious prosecution under § 1983, a plaintiff must
demonstrate that: (1) the defendant initiated or continued a criminal proceeding; (2) the proceeding
terminated in plaintiff's favor; (3) absence of probable cause for the proceeding; (4) actual malice
as a motive; and (5) post-arraignment deprivation of liberty. Rohman v. New York City Transit

Auth., 215 F.3d 208 1 216 (2d Cir. 2000). Defendants raise only a challenge to the alleged absence
of probable cause.
The indictment of an individual by a grand jury creates a rebuttable presumption of
probable cause. Savino v. City of New York,

331 F.3d 63, 72 (2d. Cir. 2003). The presumption

may be rebutted by evidence that the indictment was procured by fraud, perjury, suppression of
evidence or other police conduct undertaken in bad faith. Id. A claim must be plausible to survive
a motion to dismiss and, in the absence of sufficient factual allegations supporting the rebuttal of
the presumption, the claim must be dismissed. Bond v. City of New York, 2015

WL 5719706

(E.D.N.Y. Sept. 18, 2015).2 Even where, on a motion for summary judgment, plaintiff testified
that the arresting officer told him that the officers would falsify evidence and manipulate line-ups,
the Second Circuit affirmed judgment for defendants stating that, even those allegations, were not
"without more, sufficient to raise an inference that the indictment was procured by fraud or bad

1

Plaintiff's claim for failure to intervene against Detective Koch is deemed abandoned as he has
not briefed it.
2

Although, at oral argument, plaintiff's counsel suggested Detective Koch had a pre-existing
familiarity with plaintiff, that allegation is wholly absent from the Complaint. Even if it were
included, however, that allegation alone would not change the conclusion that the allegations are
insufficient.

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faith conduct." Simmons v. New York City Police Dept., 97 Fed.Appx. 341 (2d Cir. 2004). Accord,

Savino, 331 F.3d at 72.
Here plaintiff alleges that:
40. Upon information and belief, defendant, KOCH,
withheld information from the grand jury concerning the unduly
suggestive nature of the photo array.
41. Upon information and belief, defendant, KOCH,
withheld information from the grand jury of his using the victim's
son as an interpreter during the photo array.
42. Upon information and belief, defendant, KOCH,
withheld information from the grand jury about the likelihood that
Juan Jr. knew plaintiff, DELAMOTA, from the neighborhood prior
to the assault on Juan Sr.
(Compi. ¶ 40-42). Plaintiff also alleges that Detective Koch acted in "bad faith and without
justification" when he arrested plaintiff. Id. at ¶ 30.
While the New York Court of Appeals found errors that justified reversing plaintiff's
conviction, there is nothing in its decision, nor in the Complaint, that supports a claim that
Detective Koch lied or acted in bad faith to help procure the indictment. Rather, the Court of
Appeals' decision and even the Complaint permit only the inference that Detective Koch
performed sub-optimal police work, not that his conduct rose to the level of fraud, perjury,
suppression of evidence or other bad faith. The claim for malicious prosecution is dismissed.
b. Conspiracy
Plaintiff has not adequately alleged a claim for conspiracy against defendants Koch, Scotti
and Brown. In order to prevail on a § 1985 claim for conspiracy, a plaintiff must show: (1) an
agreement between two or more state actors; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that goal. Pangburn v. Culberston, 200 F.3d 65,
72 (2d Cir. 1999). A plaintiff must allege facts that support a meeting of the minds or agreement,

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rather than vague or conclusory allegations of a conspiracy.

Webb v. Goord, 340 F.3d. 105, 110

(2d Cir. 2003).
Plaintiff relies on McCray v. City of New York, 2007 WL 4352748, at *23 (S.D.N.Y. Dec.
11, 2007), where the court found plaintiff alleged sufficient facts to make a claim of conspiracy
plausible. In that case, a youth made inculpatory statements to investigating officers without his
family members present. McCray, 2007 WL 4352748, at *4 The Assistant District Attorney was
present in the precinct during the interrogation and prevented one of plaintiff's family members
from seeing him during the interrogation. Id.
Here, in contrast, plaintiff does not allege any fact from which one may infer that the
defendants acted in concert. There is no indication that ADA Scotti was present at the initial photo
identification or that he was even aware of the identification procedure before it happened.
Likewise, there is no indication that, after the identification, there was any agreement between
ADA Scotti and Detective Koch. Rather, plaintiff's allegations simply support the obvious fact
that Detective Koch investigated a crime which later became ADA Scotti's case to prosecute.
C.

Unduly Suggestive Identification

Plaintiff has not adequately alleged a claim for § 1983 relief based upon the photo array.
A constitutional violation occurs when an unduly suggestive identification is admitted at trial and,
as a result, impairs a defendant's right to a fair trial. Wray v. City ofNew York,

490 F.3d 189, 193

(2d Cir. 2007). A plaintiff may not recover damages for an unduly suggestive identification if
there is an intervening cause of that damage—such as the decision of the prosecutors to offer, or
the trial judge to admit, the evidence; that is, unless the plaintiff can show evidence that the officer
misled or pressured the prosecution or the trial judge, the prosecutor's subsequent decision to offer

Ee

the identification into evidence or the judge's decision to permit it as evidence cuts off a plaintiffs
claim for recovery. Id.
Plaintiff relies on Bermudez v. City of New York, 790 F.3d 368 (2d Cir. 2015), to support
his position. In Bermudez, the Assistant District Attorney was not informed about the alleged
suggestive procedures used during the identification. Id. Plaintiff submitted an affidavit by one of
the original witnesses against him saying he was coerced into identifying plaintiff with a threat of
prosecution—a fact which directly conflicted with the police officer's statement, on videotape,
that the witness identified plaintiff quickly and voluntarily. Bermudez, 790 F.3d at 375. The
Second Circuit found a factual issue in that the officer's failure to inform the ADA of the problems
in the initial questioning of the witness "could have prevented the ADA from making an informed
decision about the reliability of that evidence." Id. at 376.
In contrast, here plaintiff does not allege that the intervening decision-maker, in this case
the trial judge, was misled in any way. The alleged wrongdoing is that Detective Koch withheld
information about the photo identification from the District Attorney's office and from the grand
jury. (Compi. ¶J 39-42). When the trial judge learned that Juan Jr. was familiar with plaintiff, he
nonetheless declined to reopen the Wade hearing. Although found to be error by the New York
Court of Appeals, the judge's decision not to reopen the Wade hearing is an independent decision
cutting off plaintiffs claim. See Wray, 490 F.3d at 193.
d. Due Process
Plaintiffs procedural and substantive due process claim is based on the conclusory
allegation that Detective Koch fabricated evidence and forwarded that evidence to ADA Scotti and
the grand jury. When a police officer fabricates evidence likely to influence a jury's decision and

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"forwards that information to prosecutors," a plaintiff has stated a claim under the Fourteenth
Amendment. Ricciuti v. N YC. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997).
But here plaintiff does not specify a piece of fabricated evidence. Rather, in his Complaint,
he alleges that, as a result of "falsely arresting and imprisoning plaintiff and maliciously
prosecuting [plaintiff], defendants violated plaintiff's rights to equal protection and both
substantive and procedural due process..." (Compi. ¶ 131). Plaintiff goes onto allege, in a blanket
statement devoid of specificity, that
defendants violated plaintiff [sic] civil rights by fabricating an account and/or
evidence concerning the arrest of plaintiff -,withholding exculpatory evidence,
employing unduly suggestive identification procedures; failing to properly
investigate the circumstances of the crime of which plaintiff was wrongfully
accused and in [sic] knowingly accusing plaintiff of a crime that defendants knew
he had not committed.
(Compi. ¶ 133). This is insufficient. Moreover, plaintiff essentially has restated his claims under
the Fourth Amendment as a Fourteenth Amendment claim. Because this claim is duplicative of
his Fourth Amendment claims, it must be dismissed. Singer v. Fulton County Sheriff, 63 F.3d 110,
115 (2d Cir. 1995); see also Albright v. Oliver, 510 U.S. 266, 273-4 (1994).
e. Unreasonably Prolonged Detention
To prevail on a claim for unreasonably prolonged detention, a plaintiff must show "(1) that
he has a right to be free from continued detention stemming from law enforcement officials'
mishandling or suppression of exculpatory evidence, (2) that the actions of the officers violated
that right, and (3) that the officers' conduct shocks the conscience." Russo v. City of Bridgeport,
479 F.3d 196, 205 (2d Cir. 2007) (internal quotations omitted). In Russo, plaintiff could show his
Fourteenth Amendment rights were violated where he had been incarcerated for a long time, but
easily could have been exculpated; he also alleged facts supporting the intentionality of the
officers' behavior. Id. Indeed, he could have been exculpated with a videotape that was in the sole

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custody of the police officers and which was improperly stored. Id. at 208. The Second Circuit
explained that a jury could find that the officers "actively hid the exculpatory evidence" in an act
of "affirmative wrongdoing." Id. at 21 0.3 The unreasonably prolonged detention claim could not
be dismissed because the officers had a duty to "investigate specific, readily-verifiable claims of
innocence in a reasonable time period." Id. at 209.
Plaintiff here alleges that Detective Koch withheld information from the District Attorney's
office and the grand jury regarding the "suggestive nature" of the photo array, withheld the fact
that Juan Jr. interpreted for his father, and withheld the likelihood that Juan Jr. may have known
plaintiff. (Compl. at ¶ 37-42). These allegations do not give rise to an inference that Detective
Koch actively withheld exculpatory evidence. See Virgil v. Town of Gates, 455 Fed.Appx. 36, 41
(2d Cir. 2012). There is no allegation in the Complaint that Detective Koch had, in his possession,
evidence that could have proved that plaintiff was not the perpetrator. See Husbands ex rel. Forde
v. City of New York, 335 Fed.Appx. 124, 129 (2d Cir. 2009). This claim is dismissed.
f.

Failure to Investigate

In his Complaint, plaintiff identifies a claim for "failure to investigate," but plaintiff did
not explain this claim in his opposition to defendants' motion or at oral argument. Plaintiff simply
alleges that Detective Koch failed to investigate plaintiff's alibi, failed to investigate the reliability
of the identification, failed to investigate by using Juan Jr. as an interpreter, ignored discrepancies
between plaintiff and the original description of the perpetrator, acted on unspecified neighborhood
gossip, and that he should have been aware that Juan Jr. was familiar with plaintiff. (Compi. ¶
177). Once again, this is the same conduct that underlies plaintiffs malicious prosecution claim.

Plaintiff in Russo also brought Fourth Amendment claims for false arrest and false imprisonment which were
dismissed because plaintiff was positively identified by a witness, which gave arresting officers probable cause to
arrest him. Id. at 204.

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To the extent this claim is not subsumed by the malicious prosecution claim, plaintiff has not
identified any authority suggesting the basis for a distinct claim. As stated in Virgil, supra, "[i]f
probable cause is established, there is no constitutional right, whether under the Fourth or
Fourteenth Amendment, to demand further investigation before arrest or prosecution." 455
Fed.Appx at 40. This claim is dismissed.

g. Brady Violation
A Brady violation occurs when a "State suppresses evidence favorable to an accused that
is material to guilt or punishment." Cone v. Bell, 556 U.S. 449, 451(2009). Evidence is not
"suppressed" for purposes of Brady if "the defendant either knew, or should have known, of the
essential facts permitting him to take advantage of any exculpatory evidence." Leka v Portuondo,

257 F.3d 89, 100, (2d Cir. 2001), quoting United States v. LeRoy, 87 F.2d 610, 618 (2d Cir. 1982).
To be timely, Brady requires that disclosure be made with sufficient opportunity for the defense
to use the information. Id. at 102.
Plaintiff argues that the Brady material withheld at the criminal trial is that Detective Koch
knew that Juan Jr. may have had a preexisting familiarity with plaintiff. (Compi. ¶33). Plaintiff
has made no allegation that Detective Koch was untruthful when he recounted Juan Jr.'s response
in the negative to his question whether Juan Jr. knew plaintiff. In addition, when at trial, Juan Jr.
admitted to knowing plaintiff, defense counsel moved to reopen the Wade hearing. That motion

In Russo, 479 F.3d at 210, the Second Circuit observed that police officers' attempt to "evoke a
confession from him by misrepresenting the very evidence of Russo's innocence that was
available to them" combined with their "failure to investigate the tape to see if the tape was in
fact exculpatory" could support a jury finding of either intentional violation of, or deliberate
indifference to plaintiffs constitutional rights. The Second Circuit made these observations
while analyzing plaintiffs due process claim based on unreasonably prolonged detention, not as
an independent claim of "failure to investigate."

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was denied, but plaintiff has not offered any basis for concluding that defense counsel did not have
sufficient opportunity to use the information which came out at trial. Nor has plaintiff identified
any other piece of information that was withheld. See Virgil, 455 Fed.Appx at 40. The Brady
claim is dismissed.
h. Monell Claim
For a Monell claim to survive a motion to dismiss, plaintiff must allege (1) an official
policy or custom that (2) caused plaintiff to be subjected to (3) a denial of his constitutional rights.

Monell v. Social Services of the City of New York, 436 U.S. 658 (1977).

Plaintiff's Monell theory

is based on the alleged Brady violation and unduly suggestive photo identification, both of which
claims are dismissed. As a result of these dismissals, plaintiff's Monell claim is also dismissed.
IV.

Conclusion
For the above stated reasons, defendants' motion to dismiss is granted in its entirety.

Plaintiff has not identified any additional facts that he may include in an amended complaint, nor
is it apparent how plaintiff could allege any additional facts that are not already a part of the record
as described by the New York Court of Appeals. But, if plaintiff does choose to move the court
for leave to amend his Complaint, he must do so within 30 days.

SO FRDER
J

/s/ Nina Gershon
NINA GERSHON
United States District Judge

Dated: May 23, 2016
Brooklyn, New York

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