Lanorith v. City of New York et al

Filing 44

MEMORANDUM AND OPINION: For the foregoing reasons, Defendants' Motion (Dkt. 34 ) is GRANTED IN PART AND DENIED IN PART. Summary judgment is granted in favor of Defendants on the following claims. These claims are therefore DISMISSED: Plaintiff 's false arrest claim against Velez; Plaintiffs excessive force claims against Velez and Litrell; Plaintiffs failure to intervene claim against Velez, Litrell, Smimov, and DelPrete with respect to Plaintiff's underlying malicious prosecuti on claim; Plaintiff's failure to intervene claim against Velez, Litrell, Smimov, and DelPrete with respect to Plaintiffs underlying denial of a fair trial claim. (See attachment for further details). Ordered by Judge Nicholas G. Garaufis on 8/22/2017. (Basnight, Jasmine)

DI~

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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*

AUG 22 2017

*

BROOKLYN OFFICE

PATRICK LANORITH,
Plaintiff,

MEMORANDUM & ORIDER

I

15-CV-617 (NGG) (LB)

-againstARTHUR TRUSCELLI, JOHN FANIZZI,
ANDREY SMIRNOV, NICHOLAS VELEZ,
RANDALL LITRELL, and GERARD
DELPRETE,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.
On February 6, 2015, Plaintiff Patrick Lanorith conunenced this action pursuant to
42 U.S.C. § 1983 against Defendants the City of New York (the "City") and New York City
Department (''NYPD") Police Officers Arthur Truscelli, Jolm Fanizzi, Andrey Smimov,
Nicholas Velez, and John Does 1through5, in their individual capacities. (Comp!. (Dkt. 1).)
On July 7, 2015, Plaintiff amended his Complaint to remove the Jolm Doe Defendants and to add
Martin Banghart, Randall Litrell, and Gerard DelPrete as additional defendants. 1 (Am. Comp!.
(Dkt. 9).) Plaintiff's lawsuit arises from his arrest on May 25, 2012 (the "Incident"), and
subsequent prosecution for assault and criminal possession of a controlled substance~ He asserts
the following causes of action against Defendants: (1) false arrest; (2) excessive force;
(3) malicious prosecution; (4) denial of a fair trial; and (5) failure to intervene.
All claims against the City and Banghart have been dismissed. (See Order Adopting
R. & R. (Dkt. 28); Stip. of Dismissal (Dkt. 31).) Defendants move for partial summary

1

The Clerk of Court is respectfully DIRECTED to amend the case caption to (I) reflect the fact that the John Doe
Defendants have been removed from the lawsuit; and (2) change the spelling of Nicholas Velez's name from
''Nicolas Velez" to ''Nicholas Velez."

1

judgment, seeking dismissal of the following claims: (1) false arrest as to all Defendants; (2)
excessive force as to Litrell, DelPrete, Velez, Fanizzi, and Smimov; (3) malicious prosecution as

to Litrell, De!Prete, Velez, Smirnov, and Truscelli; (4) denial of a fair trial as to Litrell, De!Pretej
Velez, Smimov, and Truscelli; and (5) failure to intervene as to Litrell, DelPrete, Velez, and
Smirnov. (Defs. Mot. for Partial Summ. J. ("Mot.") (Dkt. 34); Defs. Mem. in Supp. of Mot.
("Defs. Mem.") (Dkt. 35).) Plaintiff opposes Defendants' Motion. (Pl. Mem. in Opp'n to Mot.
("Pl. Opp'n") (Dkt. 38).)
For the foregoing reasons, Defendants' Motion is GRANTED IN PART and DENIED IN
PART.

I.

BACKGROUND
The facts in this opinion are drawn, where possible, from the parties' statements of

undisputed facts, submitted pursuant to Local Rule 56.1. 2 (See Defs. R. 56.1 Statement ("Defs.
56.1") (Dkt. 37); Pl. R. 56.1 Statement ("Pl. 56.1") (Dkt. 40); Defs. Opp'n to Pl. 56.1 ("Defs.
Opp'n 56.1") (Dkt. 42).) See also Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(The court "is not required to consider what the parties fail to point out in their Local Rule 56.1
statements." (internal quotation marks and citations omitted)). Except as otherwise indicated,
the facts in this section are not in dispute. 3

2

Where the relevant facts are not in dispute, the court cites to the parties' Rule 56.1 statements and omits the
underlying citations to the record.
3

On various occasions in his Rule 56.1 Statement, Plaintiff cites his own deposition testimony in support of
assertions of material fact. (See. e.g., Pl. 56.1if~83, 85, 91.) Defendants assert a blanket objection as to these
assertions: "Plaintiff has not included sufficient admissible evidence in the record to support [his] allegations."
(See. e.g .• Defs. Opp'n 56.1 ifif irir 83, 85, 91.) Defendants' denial on this basis does not create a genuine dispute of
material fact, as Defendants both fail to explain why Plaintiff's deposition testimony is not admissible evidence or
cite affirmative evidence in support of their position. Cf. Scott v. Harris, 550 U.S. 372, 380 (2007) (explaining that
"opponent must do more than simply show that there is some metaphysical doubt as to the material facts"); Joseph
v. N. Shore Univ. Hosp., 473 F. App'x 34, 36 (2d Cir. 2012) (summary order) ("Conclusory allegations, conjecture,
and speculation, ... are insufficient to create a genuine issue of fact." (quoting Shannon v. N.Y. City Transit
Auth., 332 F.3d 95, 99 (2d Cir. 2003)).

2

A. Plaintiff's May 25, 2012, Police Encounter
At roughly 8:00 p.m. on May 25, 2012, Plaintiff and his friend, Dennis Gambino
("D.G."), went to a store in Staten Island to get something to eat. (Pl. 56.1 ifif 65-66; Defs.
Opp'n 56.1 ifif 65-66.) While there, Truscelli states that he observed D.G. engaged in what
appeared to be a drug transaction near a deli. (Defs. 56.1 if 7 (citing Ex. B to Mindrutiu Deel. in
Supp. of Mot. ("Defs. Truscelli Dep. Tr.") (Dkt. 36-2) 32:25-33:11).) Plaintiff denies this
allegation, pointing to the fact that Truscelli's supervisor, Smimov, did not observe D.G.
engaged in any criminal activity. (Pl. 56.1if7 (citing Ex. C to Trainor Deel. in Opp'n to Mot.
("PL Smimov Dep. Tr.") (Dkt. 39-3) 32-35).)
After buying their food, Plaintiff and D.G. drove away from the store in D.G. 'scar.
(Pl. 56.1if66; Defs. Opp'n 56.1if66.) Truscelli, who was accompanied in his vehicle by Velez
and Smimov, followed D.G. 's car as it left the area. (Defs. 56.1 if 9; Pl. 56.1 if 9.) Defendants
allege that Truscelli and Smirnov smelled the odor of burning phencyclidine ("PCP") as they
followed D.G.'s car and that Truscelli told Velez that he smelled PCP. (Defs. 56.l

irir 11-12

(citing Defs. Truscelli Dep. Tr. 37:15-17; Ex. C. to Mindrutiu Deel. ("Defs. Smimov Dep. Tr.")
(Dkt. 36-3) 33:22-34:7; and Ex. D. to Mindrutiu Deel. ("Defs. Velez Dep. Tr.") (Dkt. 36-4)
54:2-9).) Plaintiff denies that either he or D.G. was smoking PCP and alleges that neither of
them "had any PCP on them at any time during this incident." (Pl. 56.1if11 (citing Ex. I to
Trainor Deel. ("Pl. D.G. Dep. Tr.") (Dkt. 39-9) 69:23-70:9).)
According to Defendants, the police officers next pulled D.G. 's car over. (Defs. 56.1
if 13 (citing Defs. Smimov Dep. Tr. 39:15-18).) According to Plaintiff, D.G. voluntarily parked
the car so that Plaintiff and D.G. could eat the sandwiches they had just purchased. (Pl. 56.1 ifif
13, 66-67 (citing Ex. A to Trainor Deel. ("Pl. Lanorith Dep. Tr.") (Dkt. 39-1) 33:13-34:22 and

3

PL D.G. Dep. Tr. 36:24-37:7, 39:7-40:22).) Once the car was parked, Truscelli, Velez, and
Smirnov approached the vehicle. 4 (Defs. 56.1ir14; Pl. 56.1if14.) D.G. was seated in the
driver's seat and Plaintiff was in the front passenger seat. (Defs. 56.1 ir 2; Pl. 56.l ir 2.)
Truscelli approached Plaintiff's side of the vehicle and another officer, whose name Plaintiff
cannot recall, came up to D.G. 's side of the car. (Defs. 56.1 ifir 3, 5-6; Pl. 56.1 ifil 3, 5-6.) Each
of the officers stated: "Get the fuck out of the car." (Pl. 56.1

ifif 70-71; Defs. Opp'n 56.l

irir 70-71.)
Much of what happened next is in dispute. The court details each party's version of the
subsequent events. Defendants assert that Truscelli, Srnimov, and Velez "all attempted to
[handcuffJ D.G." (Defs. 56.l

if 15 (citing Defs. Smimov Dep. Tr. 44:24-45:23 and Defs. Velez

Dep. Tr. 65:12-66:5).) Smimov assisted Plaintiff out of the car and called Fanizzi and Banghart
to request backup. ®.:.if 18 (citing Defs. Smirnov Dep. Tr. 66:4-8; 51 :3-52:8); if 35 (citing Ex. F
to Mindrutiu Deel. ("Defs. Fanizzi Dep. Tr.") (Dkt. 39-6) 57:9-60:5).) Once Fanizzi and
Banghart amved on the scene, Smimov instructed Fanizzi to handcuff Plaintiff. iliL_ ir 36 (citing
Defs. Fanizzi Dep. Tr. 71:9-19, 73:14-23).) Smirnov then "went back to deal with D.G." (Id.

if 18 (citing Defs. Smimov Dep. Tr. 66:4-8, 51:3-52:8).)

Fanizzi testified at his deposition that

Plaintiff was "flailing his arms" as Fanizzi tried to handcuff him and as Fanizzi "went to put the
cuff on him ... [they both] slid off the car" and onto the ground. (Def. Fanizzi Dep.
Tr. 71 :4-73:16.) At some point, DelPrete and Litrell also arrived at the scene to provide backup.
@ ir 42 (citing Ex. Gto Mindrutiu Deel. ("Defs. DelPrete Dep. Tr.") (Dkt. 36-7) 40:9-41 :10).)
When DelPrete arrived, he smelled a strong odor of PCP and observed Banghart interacting with

4

The court notes that Defendants' Rule 56.1 Statement is internally inconsistent as to how many officers first
approached D.G.'s vehicle. (Compare e.g., Defs. 56.1~3 ("Two police officers came up to [D.G.'s] car, one on
plaintif:rs side and the other on D.G.'s side."), with, e.g., Defs. 56.l ~ 14 ("All three officers approached the car.").)

4

Plaintiff and Fanizzi "slumped over in obvious pain." (Id.

if 43 (citing Defs. DelPrete Dep.

Tr. 46:9-25), if 45 (citing Defs. DelPrete Dep. Tr. 56:5-9).)
Plaintiff's version of the Incident is as follows. When the officers told Plaintiff and D.G.
to exit the vehicle, D.G. unlocked the car doors. (Pl. 56.l if 72 (citing Pl. Lanorith Dep.
Tr. 41:15-20).) Truscelli opened the passenger door, yanked Plaintiff out of the car, placed
handcuffs on him, slammed him onto the car, forced him towards the back of the vehicle, and
punched him in the nose. (IfL ifif 72-75 (citing Pl. Lanorith Dep. Tr. 41:24-25, 42:1-45:12,
46:20-24).) The other officers then began to "rain[] punches and kicks upon [Plaintiff]."

CM:.

if 76 (citing Pl. Lanorith Dep. Tr. 47:7-11).) Smirnov, Fanizzi, DelPrete, and Banghart each had
"aggressive physical interaction[s]" with Plaintiff. (Id. ifif 78-81 (citing Pl. Smimov Dep.
Tr. 50-52; Ex. D to Trainor Deel. ("Pl. Fanizzi Dep. Tr.") (Dkt. 39-4) 66-71; Ex. E to Trainor
Deel. ("PL DelPrete Dep. Tr.") (Dkt. 39-5) 59:8-18; Ex. H. to Trainor Deel. ("Pl. Banghart Dep.
Tr.") (Dkt. 39-8) 46:21-47:13, 53:1-15).) Plaintiff lost consciousness during the assault and did
not regain consciousness until he awoke in a hospital. (Pl. 56.1 ifif 83-84 (citing Pl. Lanorith
Dep. Tr. 52: 11-24).) Plaintiff admits that neither Litrell nor Velez had physical contact with him
during the Incident, as they were both dealing with D.G. (Defs. 56.1ifif19, 20, 46, 47; Pl. 56.1
ir~

19, 20, 46, 47.)
It is uncontested that Litrell escorted Plaintiff to the hospital. (Pl. 56.1 if 89; Defs. Opp'n

56.l if 89.) It is also undisputed that Plaintiff, Fanizzi, Velez, and Truscelli received treatment at
a hospital for injuries sustained during the Incident. (See Defs. 56.l ifif 16-17, 37, 39; Pl. 56.1

irir 16-17, 37, 39, 83-84, 87; Defs. Opp'n 56.l ifif 83-84, 87.)
(Pl. 56.l

ir 91; Defs. Opp'n 56.l ir 91.)

Plaintiff suffered a broken nose.

Smimov sprained his right ankle and Velez sustained a

shoulder injury as a result of their interactions with D.G. (Defs. 56.1 ifif 16-17; Pl. 56.l

5

ifif 16-17.) Fanizzi tore his rotator cuff and bicep muscle, requiring surgery on his shoulder, and,
ultimately, his retirement from the NYPD. (Defs. 56.l ifif 37, 41-42; Pl. 56.1ifif37, 41-42.)
Fanizzi allegedly told Smirnov that "he struggled with plaintiff and his shoulder went out."
(Defs. 56.l if 40; Pl. 56.l if 40.) While Plaintiff does not dispute that Fanizzi told another officer
that he was in pain and sustained a shoulder injury (see Defs. 56.l if 39; Pl. 56.1if39), Plaintiff
maintains that he did not cause this injury (see Pl. 56.1 if 37 (citing Pl. Fanizzi Dep.
Tr. 72: 16-23).)

B. Plaintiff's Arrest and Prosecution
Plaintiff was arrested at the scene for criminal possession of a controlled substance,
assault, resisting arrest, and disorderly conduct. (Defs. 56.1 if 51; Pl. 56.1if51.) The arrest
report lists Truscelli as the arresting officer. (See Ex. H to Mindrutiu Deel. ("Arrest Report")
(Dkt. 36-8).)
On May 26, 2012, Plaintiff was charged with assault in the second degree pursuant to
New York Penal Law§ 120.05(3) and criminal possession of a controlled substance in the
seventh degree pursuant to New York Penal Law § 220.03. (See Ex. I to Mindrutiu Deel.
("Crim. Compl.") (Dkt. 36-9).) Truscelli signed the criminal complaint. (See id.) On May 27,
2012, Plaintiff was arraigned and pleaded not guilty to these charges. (Defs. 56.1 ifif 57, 59;
Pl. 56.l ifif 57, 59.) Plaintiff was released the same day after making bail. (Pl. 56.l if 92; Defs.
Opp'n 56.l if 92.) In connection with these charges, Plaintiff returned to criminal court on four
separate occasions. (Pl. 56.l if 93; Defs. Opp'n 56.l
was dismissed on speedy trial grounds. (Defs. 56.1

6

if 93.)

Ultimately, Plaintiffs criminal case

if 60; Pl. 56.1 if 60.)

C. The Instant Lawsuit
On April 15, 2014, prior to filing the instant lawsuit, Plaintiff wrote to the Clerk of
for the Criminal Court of the City ofNew York, Richmond County, requesting a copy of the
court's file in Plaintiff's criminal case for use "in connection with a civil matter." (See Ex. J to
Trainor Deel. ("Apr. 15, 2014, Ltr.") (Dkt. 39-10).) Plaintiff alleges that he received a copy of
the court's file "but it only revealed the names of Defendants Truscelli, Fanizzi, Smirnov, and
Velez." 5 (Pl. 56.l ~ 96.) On January 14, 2015, Plaintiff requested a copy of the Richmond
County District Attorney's (the "DA's Office") records regarding Plaintiff's criminal case. (See
Ex. K to Trainor Deel. ("Jan. 14, 2015, Ltr.") (Dkt. 39-11).) Plaintiff alleges that he never
received a response from the DA's Office. 6 (Pl. 56.1~99.)
Plaintiff initiated this lawsuit on February 6, 2015, naming the City, Truscelli, Fanizzi,
Smimov, and Velez as defendants. (Compl.) He also named John Doe 1through5 as
defendants and identified those Doe defendants as members of the NYPD's Narcotics Bureau
Staten Island (''NBSI") who assaulted him "[o]n May 25, 2012, between 8:30 p.m. [and] 9:00
p.m.... in the vicinity of 420 Netherland Avenue, Staten Island, New York." (Mk ~il 9, 12.) On
June 25, 2015, Defendants served Plaintiff with initial disclosures pursuant to Federal Rule of
Civil Procedure 26. (Ex. L to Trainor Deel. ("Defs. Initial Disclosures") (Dkt. 39-12).) These
initial disclosures indicated that DelPrete, Litrell, and Banghart were likely to have discoverable
information related to the facts and circumstances surrounding Plaintiff's arrest. (See lib)
On July 7, 2015, Plaintiff amended his Complaint to remove the John Doe Defendants
and add Banghart, Litrell, and Delprete as additional defendants. (Am. Compl.) Defendants

s Defendants contest this assertion of fact but fail to provide competing evidence in support of their denial. (See
Defs. Opp'n 56. I ,~ 96-99.)
6

See supra note 4.

7

consented to the amendment but reserved their right to seek dismissal of any claims that may be
time-barred. 7 (Pl. 56.l ~ 108.)

II.

LEGAL STANDARD
S ununary judgment must be granted when "there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). "A
'material' fact is one capable of influencing the case's outcome under governing substantive law,
and a 'genuine' dispute is one as to which the evidence would permit a reasonable juror to find
for the party opposing the motion." Figueroa v. Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party bears the initial burden to show an absence of genuine factual dispute.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will be granted
if the opposing party then "fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat summary judgment, the
opposing party must do more than demonstrate "some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co., Ltd. v. Zanith Radio Com., 475 U.S. 574, 586 (1986). The
non-moving may not rely on "conclusory allegations." Twin Labs., Inc. v. Weider Health &
Fitness, 900 F.2d 566, 568 (2d Cir.1990); see Joseph v. N. Shore Univ. Hosp., 473 F. App'x 34,
36 (2d Cir. 2012) (summary order) ("Conclusory allegations, conjecture, and speculation, ... are
insufficient to create a genuine issue of fact." (quoting Shannon v. N.Y. City Transit
Auth., 332 F.3d 95, 99 (2d Cir. 2003)). "[T]he Court 'must construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all reasonable

7 Defendants contest this assertion of fact but fail to provide competing evidence in support of their denial. (See
Defs. Opp'n 56.l ~ 108.)

8

inferences against the movant."' Fireman's Fund Ins. Co. v. Great Am. Ins. Co. ofN.Y.,
822 F.3d 620, 631 n.12 (2d Cir. 2016) (quoting Beyer v. Cty. ofNassau, 524 F.3d 160, 163
(2d Cir. 2008)).

ill.

DISCUSSION
Defendants move for partial summary judgment, seeking dismissal of the following

claims: (1) false arrest as to all Defendants; (2) excessive force as to Litrell, DelPrete, Velez, and
Smimov; (3) malicious prosecution as to Litrell, DelPrete, Velez, Smirnov, and Truscelli;
(4) denial of a fair trial as to Litrell, DelPrete, Velez, Smimov, and Truscelli; and ( 5) failure to
intervene as to Litrell, DelPrete, Velez, and Smimov. (Defs. Mem. at 1.) The court addresses
each claim in tum.

A. False Arrest
Defendants move for summary judgment on Plaintiffs false arrest claim as to all
Defendants. (Defs. Mem. at 4.) Defendants argue that (1) the claims against DelPrete and Litrell
are time-barred; (2) Plaintiff cannot show that Velez and Litrell were personally involved in
Plaintiffs arrest; and (3) in any event, all of the Defendants are entitled to qualified immunity on
Plaintiff's false arrest claim because it was objectively reasonable for Truscelli to believe that
there was probable cause to arrest Plaintiff.

ilih at 4-9.)

1. Plaintiffs False Arrest Claims Against DelPrete and Litrell Are Timely
The statute of limitations for a Section 1983 claim that accrued in New York is three
years. Jaghory v. N.Y.S. Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997). The statute of
limitations for a false arrest claim brought pursuant to Section 1983 "begins to run at the time the
claimant becomes detained pursuant to legal process." Wallace v. Kato, 549 U.S. 384, 397
(2007). Here, Plaintiffs cause of action accrued on May 25, 2012-the date of Plaintiffs arrest.

9

See Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990) (holding that claimant's causes of action
accrued on the day of his allegedly unlawful arrest rather than the day of his arraignment).
There is no dispute that Plaintiff brought his claims against Defendants Truscelli, Fanizzi,
Smimov, and Velez within the applicable statute oflim.itations. (See Pl. 56.l
56.1

~

~

112; Defs. Opp'n

112.) The dispute lies in whether the claims against DelPrete and Litrell are time-barred.

Plaintiff appears to concede that the limitations period expired before he added DelPrete and
Litrell as defendants to this action on July 7, 2015. (See Pl. Opp'n at 3.) He asserts, however,
that the claims against these officers "relate back" to the date of the original complaintFebruary 2, 2015-and are, therefore, timely. (Id. at 3-4.)
Under Federal Rule of Civil Procedure 15, a complaint may "relate[] back to the date of
the original pleading when ... the law that provides the applicable statute of limitations allows
relation back." Fed. R. Civ. P. 15(c). New York law provides a more forgiving principle of
relation back in the John Doe context than does the federal relation back doctrine. Hogan v.
Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Pursuant to Section 1024 of the New York Civil
Practice Law and Rules ("CPLR"),
[a] party who is ignorant, in whole or in part, of the name or identity
of a person who may properly be made a party, may proceed against
such person as an unknown party by designating so much of his
name and identity as is known. If the name or remainder of the name
becomes known all subsequent proceedings shall be taken under the
true name and all prior proceedings shall be deemed amended
accordingly.
N.Y. C.P.L.R. § 1024. A plaintiff relying on§ 1024 must: (1) "exercise due diligence, prior to
the running of the statute of limitations, to identify the defendant by name"; and (2) "describe the
John Doe party in such form as will fairly apprise the party that [he] is the intended defendant."
Hogan, 73 8 F.3d at 519 (internal quotation marks and citations omitted).

10

Here, Plaintiff clearly "exercise[d] due diligence, prior to the nmning of the statute of
limitations, to identify the defendant[ s] by name." Id. Plaintiff requested files related to his
criminal case from both the relevant court and the DA's Office. 8 (See Apr. 15, 2014, Ltr.;
Jan. 14, 2015, Ltr.) These requests "only revealed the names of Defendants Truscelli, Fanizzi,
Smirnov, and Velez." (Pl. 56.l 1f 96.) It was not until June 25, 2015, when Defendants served
Plaintiff with their initial disclosures, that Plaintiff obtained the names of the John Doe
defendants. 9 (See Defs. Initial Disclosures.) Plaintiff amended his complaint shortly thereafter
to remove the John Doe Defendants and add Banghart, Litrell, and DelPrete as additional
defendants. (Am. Compl.) These steps clearly demonstrate Plaintiff's diligence in ascertaining
the identities of the officers involved in the Incident.
Plaintiff also meets the second Section 1024 requirement. In his original complaint,
Plaintiff identified the John Doe defendants as members of the NYPD's Narcotics Bureau Staten
Island ("NBSI") who assaulted him "[o]n May 25, 2012, between 8:30 p.m. [and] 9:00 p.m....
in the vicinity of 420 Netherland Avenue, Staten Island, New York." (Compl.1f1f 9, 12.)
Plaintiff described "with particularity the date, time, and location of the alleged ... incident,"
Hogan, 73 8 F .3d at 519, and identified the John Does as members of a specific NYPD bureau.
These allegations are sufficiently detailed so as to provide "notice to the John Does that they
[were] the intended defendants." Id.

8

Plaintiff eventually obtained a copy of the DA Office's records on August 15, 2016, from defense counsel in this
action. (PL 56.l, 100; Defs. Opp'n 56.1~100.)

9 Defendants

assert that Plaintiff did not exercise due diligence because "at least as early as March 4, 2015,
plaintiff's counsel was in contact with defense counsel about this matter and ... could have requested information
about the two missing police officers" but "has not claimed to [have done] so." (Defs. Reply at 4.) The court notes
that while it may have been wise for Plaintiff to ask Defendants for this information, the fact that Plaintiff did not do
so is not dispositive of the inquiry.

11

Accordingly, the court finds that Plaintiff's false arrest claims against DelPrete and
Litrell "relate back" to the date of the original complaint- February 6, 2015-and are therefore
timely.
2. Plaintiffs False Arrest Claim Against Velez Is Dismissed
Defendants argue that Plaintiff has not demonstrated that Velez and Litrell were
personally involved in Plaintiff's arrest. (Defs. Mem. at 6.) "It is well settled in this Circuit that
personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under§ 1983." Wright v. Smith, 21F.3d496, 501 (2d Cir. 1994) (internal
quotation marks and citation omitted). Personal involvement can be shown by evidence that a
defendant "participated directly in the alleged constitutional violation" or, if defendant was a
supervisory official, he or she:
after being informed of the violation through a report or appeal,
failed to remedy the wrong, created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, ... was grossly negligent in supervising
subordinates who committed the wrongful acts, or . . . exhibited
deliberate indifference to the rights of [an individual] by failing to
act on information indicating that unconstitutional acts were
occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Upon review of the parties' Rule 56.1 statements and briefing on Defendants' Motion,
the court concludes that Plaintiff has failed to put forth any evidence demonstrating that Velez
was personally involved in Plaintiff's arrest. Accordingly, Plaintiff's false arrest claim is
dismissed.
However, the court cannot conclude as a matter oflaw that Litrell was not personally
involved in Plaintiff's arrest. (Defs. Mem. at 6.) Litrell did not have any physical contact with
Plaintiff during the Incident; however, the parties agree that Litrell took Plaintiff, in handcuffs, to
12

the hospital for medical treatment after he was arrested. (Defs. 56.l

ifif 46-47; Pl. 56.1 iJif 46-47,

89; Defs. Opp'n iJ 89.) In addition, Litrell testified at his deposition that he restrained Plaintiff
on the hospital bed and eventually transported him from the hospital to the precinct. (See Ex. F.
to Trainor Deel. ("PL Litrell Dep. Tr.") 60:19-61:4, 64:11-24.) In light of these facts, the court
cannot conclude as a matter oflaw that Litrell was not personally involved in Plaintiffs alleged
false arrest.
3. Defendants Truscelli, Fanizzi. Smimov. Litrell, and DelPrete are Not Entitled to
Qualified Immunity as a Matter of Law

a. Legal Standard
Claims for false arrest under Section 1983 "are analyzed pursuant to the same standards
as the applicable state law's false arrest tort." Nzegwu v. Friedman, 605 F. App'x 27, 29
(2d Cir. 2015) (summary order) (citing Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003)).
To prevail on a false arrest claim under New York law, "a plaintiff must show that (1) the ·
defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged." Id. (quoting Jocks, 316 F.3d at 134-35).
"The existence of probable cause to arrest constitutes justification and is a complete
defense to an action for false arrest." Gonzalez v. City of Schenectady, 728 F.3d 149, 155
(2d Cir. 2013) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). "Probable cause to
arrest exists when the authorities have knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in the belief that an offense has been
committed by the person to be arrested." Schwartz v. Marcantonatos, 567 F. App'x 20, 22
(2d Cir. 2014) (summary order) (quoting Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995)).
"The question of whether or not probable cause existed may be determinable as a matter of law if
13

there is no dispute as to the pertinent events and the knowledge of the officers." Weyant,
101 F.3d at 852.
Moreover, "under both New York and federal law, summary judgment dismissing a
plaintiff's false arrest claim is appropriate if the undisputed facts indicate that the arresting
officer's probable cause determination was objectively reasonable," entitling an officer to
qualified immunity. Jenkins v. City ofN.Y., 478 F.3d 76, 87-88 (2d Cir. 2007). "An officer's
determination is objectively reasonable ifthere was 'arguable' probable cause at the time of
arrest-that is, if 'officers of reasonable competence could disagree on whether the probable
cause test was met."' Id. at 87 (quoting Lennon v. Miller, 66 F.3d 416, 423-24 (2d Cir. 2005)).

b. Analysis
Defendant appears to argue that there was probable cause for Plaintiff's arrest for
criminal possession of a controlled substance based on (1) Truscelli's statement that he observed
D.G. engaged in a drug transaction; and (2) the allegation that "the smell of PCP was emanating
from the car in which D.G. and the plaintiff were riding." (Defs. Mem. at 8.) Alternatively,
Defendants argue that it was at least reasonable for Fanizzi, Smimov, Litrell, and DelPrete to
rely on Truscelli's statement that he observed D.G. engaged in a drug transaction, entitling each
of the Defendants besides Truscelli to qualified immunity on Plaintiff's false arrest claim. (Id.)
Finally, Defendants contend that Truscelli is also entitled to qualified immunity because there
was probable cause "for at least a resisting arrest charge," as it is undisputed that Fanizzi
suffered a shoulder injury during the Incident and went to the hospital.

ilih at 9.)

Plaintiff correctly points out that multiple disputed issues of material fact preclude
granting summary judgment here. First, Truscelli's report that he observed D.G. engaged in a
drug transaction is thoroughly in dispute. (See Defs. Truscelli Dep. Tr. 32:25-33:11.) Plaintiff
refers the court to the deposition ofTruscelli's supervisor, Smirnov, in which Smirnov testified
14

that he did not observe D.G. engaged in criminal activity outside his vehicle. (Pl. Opp'n
at 11-12; see Pl. Sm.irnov Dep. Tr. 34:2-25; 35:14-17.) In addition, there is a genuine dispute as
to whether Plaintiff and D.G. were smoking PCP in D.G. 's vehicle. Truscelli and Smimov allege
that they smelled PCP as they were following D.G.'s car. (See Defs. Truscelli Dep.
Tr. 37:15-17; Defs. Sm.irnov Dep. Tr. 33:22-34:7.) However, Plaintiff refers the court to D.G.'s
deposition, in which he testified that there were no drugs recovered from his car, his person, or
Plaintiffs person. (See Pl. D.G. Dep. Tr. 69:23-70:9).
These factual disputes can only be resolved through credibility determinations, which are
not properly considered on a motion for summary judgment. See Li~erty Lobby, 4 77 U.S. at 255
("Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether he is ruling on a
motion for summary judgment or for a directed verdict."); Jeffreys v. City ofN.Y., 426 F.3d 549,
553 (2d Cir. 2005) ("Assessments of credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary judgment.") Accordingly, the
question of whether there was probable cause, or even arguable probable cause, for Plaintiffs
arrest is properly left for a jury to decide. 10 Defendants' Motion with respect to Plaintiff's false
arrest claim against Truscelli, Fanizzi, Smirnov,' Litrell, and DelPrete is therefore denied.

10 The court rejects Defendants' argument that there was probable cause to arrest Plaintiff because Plaintiff resisted
arrest. "Under New York law, an essential element ofthe offense ofresisting arrest is that the arrest allegedly
resisted was 'authorized."' Weyant, 101 F.3d at 855 (citing N.Y. Penal Law§ 205.30). Because the court cannot
determine as a matter of law that there was probable cause for Plaintiff's arrest, it cannot conclude that there was
probable cause for a resisting arrest charge. See Cuny v. City of Svracuse, 316 F.3d 324, 336 (2d Cir. 2003) ("It is
well established in New York that 'probable cause to arrest is a prerequisite for making an authorized arrest,' and if
there is no probable cause to arrest a person, that person 'cannot be guilty of resisting arrest."' (quoting People v.
Mohamadou, 698 N.Y.S.2d 445, 447-48 (N.Y. Crim. Ct. 1999)).

15

B. Excessive Force
Defendants move for summary judgment with respect to Plaintiffs excessive force claim
against Litrell,·DelPrete, Velez, and Smimov. (Defs. Mem. at 9.) They argue that (1) Plaintiffs
claims against DelPrete and Litrell a~e time-barred; and (2) Plaintiffs excessive force claims
against DelPrete, Litrell, Fanizzi, Velez, and Sm.irnov should be dismissed because those officers
were not personally involved in the alleging beating of Plaintiff. (Mk at 9-10.)
1. Plaintiff's Excessive Force Claims Against DelPrete and Litrell Are Timely
As articulated above, the statute of limitations for a Section 1983 claim that accrued in
New York is three years. Jaghory, 131 F .3d at 331. An excessive force claim brought pursuant
to Section 1983 "accrues when the use of force occurred." Jefferson v. Kelly, No. 06-CV-661
(NGG) (LB), 2008 WL 1840767, at *3 (E.D.N.Y. Apr. 22, 2008) (citing Singleton v. City of
N.Y., 632 F.2d 185, 191 (2d Cir. 1980)). The statute oflimitations for Plaintiffs excessive force
claim therefore accrued on May 25, 2012. For the reasons articulated supra in Section III.A.I.,
Plaintiff's excessive force claims against DelPrete and Litrell "relate back" to the date of the
original complaint-February 6, 2015-and are therefore timely.
2. Plaintiff's Excessive Force Claim Against Velez and Litrell Are Dismissed But
His Claims Against DelPrete, Fanizzi, and Smimov Survive
A claim that law enforcement officers used excessive force in the course of an arrest is

analyzed under the Fourth Amendment reasonableness standard. See Graham v. Connor,
490 U.S. 386, 395 (1989). Under this standard, the determinative question is whether the
officers' actions were '"objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation." Id. at 397.
Reasonableness is judged "fi:om the perspective of a reasonable officer on the scene," and'" [n]ot
every push or shove, even ifit may later seem unnecessary in the peace of a judge's chambers,'
16

violates the Fourth Amendment." Id. at 396 (quoting Johnson v. Glick, 481F.2d1028, 1033
(2d Cir. 1973)). The court considers the totality of the circumstances, "including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.
(citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
Defendants assert that Plaintiff has failed to put forth evidence demonstrating that
DelPrete, Litrell, Fanizzi, Velez, and Smimov were involved in applying excessive force against
Plaintiff. (Defs. Mem. at 9-10.) In response, Plaintiff argues that his deposition testimony
"establishes the personal involvement of these defendants." (Pl. Opp'n at 15.) Plaintiff testified
that Truscelli "started hitting [him]" and "then they all started. It was like, []raining punches
and kicks." (Pl. Lanorith Dep. Tr. 47:7-11.) Plaintiff further argues that the Smimov, Fanizzi,
and DelPrete's own deposition testimony establishes that they each had an "aggressive and
forceful physical interaction" with Plaintiff. (Pl. Opp'n at 16-17; see Pl. Smimov Dep. Tr. 50-52
(Smirnov testifying that he "grabbed" Plaintiff); Pl. Fanizzi Dep. Tr. 66-68 (Fanizzi testifying
that he "grabbed two hands behind [Plaintiff] [and] went to place one cuff on him" and Plaintiff
"struggl[ed] with [him] and we like slid off the car and then down to the floor"); see Pl. DelPrete
Dep. Tr. 59:8-15 (DelPrete testifying that he punched Plaintiff in his ribs "[t]o try to get control
over [Plaintiff's] hands").) In sum, Plaintiff asserts that "viewing [his] testimony that punches
and kicks were raining down upon him and [D. G.], as they were next to each other, in the light
most favorable to him, and combining it with the defendants' own testimony of applying
physical force to [him], the Court must deny summary judgment." (Pl. Opp'n at 17.)
The court determines that it is proper to grant summary judgment with respect to
Plaintiffs excessive force claims against Velez and Litrell. Plaintiff has failed to put forth any

17

evidence which demonstrates that these defendants were personally involved in applying
excessive force against him. In fact, Plaintiff does not dispute that neither Velez nor Litrell had
any physical contact with Plaintiff during the Incident. (See Defs. 56. l

ifif 19, 46, 47.)

iJiJ 19, 46, 4 7; Pl. 56.1

Accordingly, Plaintiff's excessive force claims against Velez and Litrell are

dismissed.
On the other hand, the court finds that factual disputes preclude summary judgment with
respect to the excessive force claims against DelPrete, Fanizzi, and Smimov. DelPrete, Fanizzi,
and Smimov' s own deposition testimony puts them in physical contact with Plaintiff during the
Incident. Plaintiff alleges that after Truscelli punched him, the other officers started "raining
punches and kicks" on him. (Pl. Lanorith Dep. Tr. 47:7-11.) It is undisputed that Plaintiff was
taken to the hospital for medical treatment following the alleged assault and suffered a broken
nose. (See PL 56.1

iJiJ 85, 91; Defs. Opp'n 56.1 iJif 85, 91.)

Plaintiff testified at his deposition

that he lost consciousness during Incident. (Pl. Lanorith Dep. Tr. 52:11-24.) Construing these
facts in the light most favorable to Plaintiff, the court cannot conclude that Plaintiffs excessive
force claim against these officers fails as a matter of law, as a reasonable jury could return a
verdict for Plaintiff based on this evidence. See Liberty Lobby, 477 U.S. at 248 ("[S]ummary
judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party."); see. e.g., Robison v. Vi~ 821 F.2d 913, 923-24 (2d Cir. 1987) (holding
that plaintiffs excessive force claim should have survived summary judgment where plaintiff
alleged a police officer "'pushed' her against the inside of the door of her car, 'yanked' her out,
'threw [her] up against the fender,' and 'twisted [her] arm behind [her] back'" and plaintiff
suffered "bruises lasting a 'couple weeks'" as a result of the incident).

18

Accordingly, Defendants' Motion is denied with respect to Plaintiffs excessive force
claims against DelPrete, Fanizzi, and Smimov, but granted with respect to Velez and Litrell.

C. Malicious Prosecution
In his opposition to the Motion, Plaintiff states that he will voluntarily dismiss his
malicious prosecution claims against Defendants Smirnov, DelPrete, Litrell, and Velez. (Pl.
Opp'n at 18 n.2.) Therefore, the court need only address Defendants' Motion with respect to
Truscelli. 11
To support a claim for malicious prosecution under Section 1983, a plaintiff is required
establish that (1) "the defendant initiated a prosecution against the plaintiff'; (2) "the defendant
lacked probable cause to believe the proceeding could succeed;" 12 (3) "the defendant acted with
malice;" 13 (4) "the prosecution was terminated in the plaintiffs favor;" and (5) ''there was ... a
sufficient post-arraignment liberty restraint to implicate the plaintiffs Fourth Amendment
rights." 14 Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (citations omitted).
"[T]he existence of probable cause is a complete defense to a claim of malicious prosecution."
Stansbury v. Wertman, 721F.3d84, 94-95 (2d Cir. 2013) (citation omitted).
Plaintiff was charged with assault in the second degree pursuant to New York Penal Law
§ 120.05(3) and criminal possession of a controlled substance in the seventh degree pursuant to
New York Penal Law§ 220.03. (Crim. Compl.) It is undisputed that Truscelli swore out the

11

Defendants have not moved for summary judgment with respect to Plaintiff's malicious prosecution claim against
Fanizzi.
12

"The probable cause standard in the malicious prosecution context is slightly higher than the standard for false
arrest cases ... Probable cause, in the context of malicious prosecution, has ... been described as such facts and
circumstances as would lead a reasonably prudent person to believe the plaintiff guilty." Stansbury v. Wertman,
721 F.3d 84, 95 (2d Cir. 2013) (internal quotation marks and citation omitted).
13

"A lack of probable cause generally creates an inference of malice." Boyd v. City ofN.Y., 336 F.3d 72, 78 (2d
Cir. 2003).
14
Plaintiff must also demonstrate that the post-arraignment liberty restraint "resulted from the initiation or pendency
ofjudicial proceedings." Rohman, 215 F.3d at 215 (citation omitted).

19

criminal complaint which charged Plaintiff with the aforementioned crimes. (See Crim. Compl.;
see also Defs. 56.1

~

54; Pl. 56.1

~

54.) As such, it is clear that Truscelli was personally

involved in the initiation of criminal charges against Plaintiff.
Notwithstanding, Defendants argue that Truscelli is entitled to qualified immunity on
Plaintiff's malicious prosecution claim because Truscelli "was reasonable in relying on his
observations of Detective Fanizzi's injuries to determine that there was a viable Assault charge
against plaintiff." 15 (Defs. Mem. at 11.) New York Penal Law§ 120.05(3) provides that a
person is guilty of assault if ''with intent to prevent a ... police officer ... from performing a
lawful duty, ... he or she causes physical injury to such ... police officer." In Defendants'
view, "Truscelli could reasonably determine that-because of Detective Fanizzi's injuryplaintiff must have tried to prevent Detective Fanizzi from attempting to arrest plaintiff, thereby
causing an injury to Detective Fanizzi." (Defs. Mem. at 12.)
The court finds that Defendants' statement is conclusory and does not demonstrate that
there was probable cause to arrest Plaintiff for assault of a police officer, much less prosecute
Plaintiff for such offense. See Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013) ("[T]he
probable cause standard in the malicious prosecution context is slightly higher than the standard
for false arrest cases."). Defendants make much ofthe fact that New York Penal Law
§ 120.05(3) "does not require an intent to actually hurt a police officer," arguing that "it does not
matter exactly how Defendant Fanizzi sustained his injury, as long as the injury was sustained as

15

Defendants have not argued that Plaintiffs malicious prosecution claim should be dismissed because there was
probable cause to believe Plaintiff guilty of the criminal possession of a controlled substance charge. Cf. D 'Angelo
v. Kirschner. 288 F. App'x 724, 726-27 (2d Cir. 2008) (citing Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989)
("[A] finding of probable cause to arrest as to one charge does not necessarily defeat a claim of malicious
prosecution as to other criminal charges that were resolved in the plaintiffs favor."). For the reasons articulated in
Section III.A.3 .b, the court cannot conclude as a matter of law that there was probable cause to arrest Plaintiff on
this drug possession charge, much less probable cause to believe Plaintiff guilty of this charge. As such, Plaintiffs
malicious prosecution claim as to the drug possession charge survives summary judgment.

20

a result of an interaction with plaintiff in which plaintiff was intending to prevent Defendant
from performing a lawful duty." (Defs. Reply at 6.) Defendants are correct that "[u]nder the
plain wording of this subdivision it is evident that a defendant may be convicted even though the
injury caused is unintended or accidental." People v Campbell, 532 N.E.2d 86, 87 (N.Y. 1988).
That said, the fact that Fanizzi was injured does not prove that Plaintiff intended to prevent
Fanizzi from lawfully arresting him. People v. Bueno, 960 N.E.2d 405, 413 (N.Y. 2011) ("The
intent to injure and the extent of the injuries do not suffice to show the intent to prevent the
victim from performing a lawful duty required under subdivision (3) of Penal Law§ 120.05.
The viciousness of the assault does not rationally lead to the conclusion that defendant had the
specific requisite intent to interfere with the victim's performance of his lawful duties ....").
The question of whether Plaintiff caused Fanizzi's injuries with intent to prevent Fanizzi
from lawfully arresting him implicates material facts that are in dispute. In Plaintiffs telling,
Plaintiff did not resist arrest and therefore did not cause any injury with intent to prevent Fanizzi
from arresting him. 16 As noted in Section I.A., Plaintiff alleges that he was peaceably complying
with the officers' directions when they began assaulting him, while Fanizzi recounts a struggle
with Plaintiff that resulted in his shoulder injury. Plaintiff and Defendants' version of the
Incident differ dramatically; however, for purposes of Defendants' summary judgment motion,
the court must view the facts in the light most favorable to Plaintiff. See Fireman's Fund Ins.
Co., 822 F.3d at 631 n.12. As such, while it is possible that Plaintiff resisted arrest and caused
Fanizzi's shoulder injury, as Plaintiff points out, "[i]tjust as reasonable [to conclude] that
Defendant Fanizzi injured himself by unlawfully assaulting [Plaintifi]." 17 (Pl. Opp'n at 20.)

16 Plaintiff testified at his deposition that Truscelli handcuffed him; however, Fanizzi testified that he handcuffed
Plaintiff. (Compare Pl. Lanorith Dep. Tr. 42:22-44:2, with Pl. Fanizzi Dep. Tr. 71:4-72:12.)

17

As articulated supra in Section III.A.3.b., the court cannot conclude as a matter of law that Fanizzi was
performing a lawful duty when he attempted to arrest Plaintiff.

21

Based on these disputed facts, the court therefore determines that there is a genuine
dispute as to key facts such that a jury could reasonably decide either way as to whether there
was probable cause, or even arguable probable cause, to believe Plaintiff was guilty of second
degree assault. Summary judgment is therefore inappropriate. Anderson, 477 U.S. at 252; see
also Weyant, 101 F.3d at 858 (holding that because officers' version of the facts is "sharply
disputed," "the matter of the officers' qualified immunity ... cannot be resolved as a matter of
law"); Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 339 (E.D.N. Y. 2006) ("Since there is
a disputed issue of material fact as to whether the circumstances would allow an objectively
reasonable officer to believe that probable cause existed to prosecute for resisting arrest,
defendants are not entitled to qualified immunity as a matter of law."). Accordingly,
Defendants' Motion as to Plaintiffs malicious prosecution claim must be denied.

D. Denial of a Fair Trial
As with his malicious prosecution claims, Plaintiff states that he will voluntarily dismiss
his denial of a fair trial claims against Defendants Smirnov, DelPrete, Litrell, and Velez. (Pl.
Opp'n at 21 n.3.) Therefore, the court need only address Defendants' Motion with respect to
Truscelli. 18
Plaintiff alleges that Truscelli and Fanizzi "manufactured the underlying false allegations
and forwarded this information to the DA's Office knowing that it would be used against
[Plaintiff] at trial." (Am. Compl., 24.) Plaintiff avers that these misrepresentations "caused
Plaintiff ... to be prosecuted without any probable cause until all of the charges against him
were dismissed outright on December 12, 2012."

ilih ~ 60.)

18 Defendants have not moved for summary judgment with respect to PlaintifP s denial of a fair trial claim against
Fanizzi.

22

Claims of denial of the right to a fair trial "based on fabrication of information" arise in
cases where "(1) [an] investigating official (2) fabricates information (3) that is likely to
influence a jury's verdict, (4) forwards that information to prosecutors, and (5) the plaintiff
suffers a deprivation oflife, liberty, or property as a result." Garnett v. Undercover Officer
C0039, 838 F.3d 265, 279 (2d Cir. 2016) (describing the standard established in Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997)). "A plaintiff need not have been tried or
convicted to assert a fair trial claim, as the constitutional violation occurs when the false
information is transmitted to prosecutors." Nnodimele v. Derienzo, No. 13-CV-3461 (ARR)
(RLM), 2016 WL 337751 (E.D.N.Y. Jan. 27, 2016) (citing Ricciuti, 124 F.3d at 127, 130). A
plaintiff must show that he suffered a deprivation of liberty "as a result" of the forwarded false
information. Garnett, 838 F.3d at 279 (citing Ricciuti, 124 F.3d at 123).
Defendants argue that even if the information Truscelli provided to the DA' s Office was
false, he is entitled to qualified immunity because (1) the information he provided was based on
what Fanizzi told him and (2) "a reasonable officer who did not see the interaction between
Fanizzi and plaintiff could reasonably conclude that, based on Detective Fanizzi' s undisputed
injury, plaintiff caused an injury to Detective Fanizzi during the course of his arrest." 19 (Defs.
Mem. at 14.)
The court cannot determine as a matter of law that Truscelli provided only truthful
information to the DA's Office. The criminal complaint states that Truscelli was informed by
Fanizzi that Fanizzi "attempted to arrest [Plaintiff]" and Plaintiff"thr[e]w [Fanizzi] on the
ground causing inju[r]ies, including, but not limited to, a sprained right shoulder." (Crim.
Compl. at 2.) When asked at his deposition whether Fanizzi did in fact relay these facts to him

19

Plaintiff has not specified whether the allegedly false information Truscelli conveyed to the DA's Office relates to
the drug possession charge or the assault charge. Defendants' arguments focus exclusively on the assault charge.

23

before he swore out the criminal complaint, Truscelli answered: "I believe so yes." (Pl. Truscell
Dep. Tr. 66:4-22.) However, Plaintiff casts doubt on the veracity ofTruscelli's testimony by
pointing to Fanizzi's deposition testimony. Fanizzi testified that Plaintiff did not throw him to
the ground but rather Fanizzi and Plaintiff "fell to the ground." (Pl. Fanizzi Dep. Tr.
98:24-99:6.) When asked why Truscelli would state in a criminal complaint that Plaintiff threw
Fanizzi to the ground, Fanizzi responded "I don't know." (Id. 99:7-14.) While a close question,
the court determines that Plaintiff has identified facts from which a reasonable jury could
conclude that Truscelli did not truthfully relayed what Fanizzi had told him to the DA's Office.
Cf. Crawford-El v. Britton, 523 U.S. 574, 600 (1998) (holding that a plaintiff opposing a
defendant's "properly supported [summary judgment] motion ... must identify affirmative
evidence from which a jury could find that the plaintiff has carried his or her burden"). In order
to ascertain whether.Fanizzi did in fact tell Truscelli that Plaintiff had thrown him to the ground,
the court would need to assess Fanizzi and Truscelli's credibility, which would be inappropriate
on a motion for summary judgment. See Liberty Lobby, 477 U.S. at 255; Jeffreys, 426 F.3d at
553. In view of the conflicting information, the court cannot determine as a matter of law that
Truscelli accurately relayed the information Fanizzi provided to him to the DA's Office, entitling

him to qualified immunity. Moreover, for the reasons articulated supra in Section IILC., the fact
that Fanizzi was injured does not prove that Plaintiff caused Fanizzi's injuries with intent to
prevent Fanizzi from lawfully arresting him.
Assuming arguendo that Truscelli fabricated information about Plaintiff's wrongdoing
and relayed this information to the DA's Office, Truscelli would not be entitled to qualified
immunity on Plaintiffs denial of a fair trial claim. Qualified immunity is unavailable where "the
action violates an accused's clearly established constitutional rights" and "[w]hen a police officer

24

creates false information likely to influence a jury's decision and forwards that information to
prosecutors, he violates the accused's constitutional right to a fair trial." Garnett, 838 F.3d
at 275-76 (quoting Ricciuti, 124 F.3d at 130 (alteration in original) (internal quotation marks
omitted)).
Accordingly, Defendants' argument that Truscelli is entitled to qualified immunity on
Plaintiffs denial of a fair trial claim is unavailing. The court therefore denies Defendants'
Motion on this claim.

E. Failure to Intervene
Defendants move for summary judgment with respect to Plaintiffs failure to intervene
claim against Litrell, DelPrete, Velez, and Smimov. (Defs. Mem. at 1.) The court addresses the
bases for the Motion, which differ among Defendants, separately.
1. Plaintiffs Failure to Intervene Claims Against DelPrete and Litrell Are
Timely
Defendants argue that "DelPrete and Litrell cannot be liable for failure to intervene on
any alleged excessive force, false arrest, or denial of a fair trial because they were named after
the statute of limitations expired on the underlying claims." (Defs. Mem. at 15.) The court has
already determined that Plaintiffs false arrest and excessive force claims against DelPrete and
Litrell are timely. (See supra Sections III.A.I. and IIl.B.l.) Moreover, although Plaintiff has
agreed to voluntarily dismiss his denial of a fair trial claim against DelPrete and Litrell among
others (see Pl. Opp'n at 21 n.3), the court must now determine whether those claims are timely in
order to determine whether Litrell and DelPrete can be held liable on a failure to intervene
theory. For the reasons articulated supra in Section III.A. I., Plaintiffs denial of a fair trial
claims against DelPrete and Litrell "relate back" to the date of the original complaintFebruary 6, 2015-and are therefore timely.
25

Accordingly, because Plaintiffs underlying false arrest, excessive force, and denial of a
fair trial claims against DelPrete and Litrell are timely, the court rejec:ts Defendants' argument
that Plaintiffs failure to intervene claims against these defendants should be dismissed as
time-barred.
2. Plaintiff Direct Participation Claims and Failure to Intervene Claims Can
Be Pleaded in the Alternative
Defendants further argue for dismissal of the failure to intervene claims, maintaining that
a defendant cannot simultaneously be held liable on a theory of direct participation and a theory
of failure to intervene. (See Defs. Mem. at 15.) The court rejects this argument. Although a
failure to intervene claim cannot ultimately be sustained against a direct participant in the alleged
primary violation, Plaintiff is entitled to plead a failure to intervene claim as an alternative to
direct liability. See, e.g., Guerrero v. Citv ofN.Y., No. 16-CV-516 (JPO), 2017 WL 2271467,
at *4 (S.D.N.Y. May 23, 2017) ("Though a failure to intervene theory of liability is inapplicable
where a defendant is a direct participant in the alleged primary violation, at this stage, these two
claims may be pleaded in the alternative."); Buchy v. City of White Plains, No. 14-CV-1806
(VB), 2015 WL 8207492, at *3 (S.D.N.Y. Dec. 7, 2015) (allowing excessive force and failure to
intervene claims "to proceed in the alternative beyond the summary judgment stage"). As such,
the court declines to grant summary judgment in favor of Defendants on this basis.
il.

3. Plaintiffs Failure to Intervene Claims on Underlying Malicious
Prosecution and Denial of a Fair Trial Claims
Defendants argue that "Plaintiff has no evidence to show that Defendants Litrell,
DelPrete, Velez, and Smirnov knew plaintiff's rights were being violated as related to the claims
for malicious prosecution or denial of a right to fair trial." (Defs. Mem. at 16.) Plaintiff does not
address this argument in his opposition, nor has he identified evidence suggesting that Litrell,
DelPrete, Velez, or Smirnov were involved in preparing the criminal complaint or were aware of
26

the alleged false statements made by Truscelli in the complaint and had "a realistic opportunity
to intervene to prevent the harm [to Plaintiff] from occurring," a prerequisite for liability to
attach. 20 Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Accordingly, Plaintiffs failure to intervene claims against Velez, Litrell, Smirnov, and
DelPrete are dismissed insofar as they relate to Plaintiffs underlying malicious prosecution and
denial of a fair trial claims.
4. Plaintiffs Failure to Intervene Claims on Underlying False Arrest and
Excessive Force Claims
In his opposition brief, Plaintiff clarifies that he does not bring failure to intervene claims
against Truscelli, Fanizzi, Smimov, or DelPrete on his underlying excessive force and false
arrest claims. (Pl. Opp'n at 23.) He does, however, bring failure to intervene claims against
Litrell and Velez on his underlying false arrest and excessive force claims on the basis that those
officers "could have prevented the excessive force and false arrest of [Plaintiff]." @)
Defendants do not appear to move for summary judgment with respect to the failure to
intervene claim against Litrell on the underlying false arrest and excessive force claims, nor did
their opening memorandum of law in support of the Motion make any arguments with respect to
Velez. Defendants argue in their reply brief that the failure to intervene claim against "Velez
should be dismissed because plaintiff has no evidence to demonstrate that Defendant Velez could
have intervened in his alleged false arrest or excessive force (or any other claimed violation)."
(Defs. Reply at 5.) They assert that "Plaintiff has no evidence to show that Defendant Velez was

20
The so-called "collective knowledge doctrine" allows knowledge possessed by one police officer to be imputed to
others working on the same team, see United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001), but this doctrine
"has traditionally been applied to assist officers in establishing probable cause-not to impute bad faith to one
member of an enforcement team on the basis of another member's knowledge," Simone v. United States,
642 F. App'x 73, 75 (2d Cir. 2016) (summary order) (quoting Savino v. Citv ofNew York, 331F.3d63, 74
(2d Cir. 2003)).

27

even present for any of the alleged beating [Plaintiff] received. The only evidence in the record
is Defendant Velez'[s] testimony that he was dealing with third party D.G. the entire time on
scene, on the other side of the vehicle with no view of plaintiff." (Id. at 5-6.) Because
Defendants raised this argument for the first time in their reply memoranda of law, the court
declines to consider it. See U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., No. 02-CV-4182
(CSH), 2006 WL 3146422, at *3 (S.D.N.Y. Oct. 30, 2006) ("The Court need not consider a new
argument raised for the first time in a reply brief, as arguments presented in this fashion deny the
opposing party a fair opportunity to respond.").
Accordingly, the court declines to grant summary judgment on Plaintiffs failure to
intervene claims against Litrell and Velez with respect to Plaintiffs underlying false arrest and
excessive force claims.

IV.

CONCLUSION
For the foregoing reasons, Defendants' Motion (Dkt. 34) is GRANTED IN PART AND

DENIED IN PART.
Summary judgment is granted in favor of Defendants on the following claims. These
claims are therefore DISMISSED:
•

Plaintiff's false arrest claim against Velez;

•

Plaintiffs excessive force claims against Velez and Litrell;

•

Plaintiffs failure to intervene claim against Velez, Litrell, Smimov, and DelPrete
with respect to Plaintiff's underlying malicious prosecution claim;

•

Plaintiff's failure to intervene claim against Velez, Litrell, Smimov, and DelPrete
with respect to Plaintiffs underlying denial of a fair trial claim;

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The following claims survive summary judgment: 21
•

Plaintiffs false arrest claims against Truscelli, Fanizzi, Srnirnov, Litrell, and
DelPrete;

•

Plaintiff's excessive force claims against Truscelli, Fanizzi, Smimov, and
DelPrete;

•

Plaintiff's malicious prosecution claim against Truscelli and Fanizzi;

•

Plaintiff's denial of a fair trial claim against Truscelli and Fanizzi;

•

Plaintiff's failure to intervene claim against Truscelli and Fanizzi with respect to
Plaintiff's underlying malicious prosecution claim;

•

Plaintiff's failure to intervene claim against Truscelli and Fanizzi with respect to
Plaintiff's underlying denial of a fair trial claim;

•

Plaintiff's failure to intervene claim against Velez and Litrell with respect to
Plaintiff's underlying false arrest claim;

•

Plaintiff's failure to intervene claim against Velez and Litrell with respect to
Plaintiff's underlying excessive force claim;

Plaintiff is DIRECTED to file a stipulation of voluntary dismissal with respect to the
following claims:
•

Plaintiff's malicious prosecution claims against Smimov, DelPrete, Litrell, and
Velez;

•

Plaintiff's denial of a fair trial claims against Smimov, DelPrete, Litrell, and
Velez;

•

Plaintiff's failure to intervene claim against Truscelli, Fanizzi, Smimov, and
DelPrete with respect to Plaintiff's underlying false arrest claim; and

•

Plaintiffs failure to intervene claim against Truscelli, Fanizzi, Smimov, and
DelPrete with respect to Plaintiff's underlying excessive force claim.

21

This list of claims surviving summary judgment includes those claims as to which Defendants did not move for
summary judgment.

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The court DIRECTS the parties to follow the court's Individual Rules for pre-trial
procedures.

SO ORDERED.

s/ Nicholas G. Garaufis
Dated: Brooklyn, New York
August ~ 2017

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