Li v. City of New York et al

Filing 70

MEMORANDUM AND OPINION: For the reasons in the attached, the City Defendants' motion to dismiss is GRANTED in part and DENIED in part. The Medical Center Defendants' motion to dismiss is GRANTED in part and DENIED in part. Plaintiff shall proceed on the following claims: (1) Malicious Prosecution against Defendants Degnan, Landi, and the Medical Center Defendants; (2) Malicious Abuse of Process against Defendants Degnan and Landi; (3) Section 1983 Conspiracy against Defendants Degnan , Moser, Phelan, Heffernan, Landi, and the Medical Center Defendants; (4) Unreasonably Prolonged Detention against Defendants Degnan, Moser, Phelan, Heffernan, and Landi; (5) Due Process (Brady violation and fabrication of evidence) against De fendants Degnan, Moser, Phelan, Heffernan, and Landi, and the Medical Center Defendants; (6) Due Process (speedy trial) against Defendants Degnan, Moser, Phelan, Heffernan, and Landi; (7) Monell claims against the City and Flushing Hospital Me dical Center. Given that several Defendants as to whom claims are proceeding are not yet represented (see footnote 1 in the attached), Plaintiff shall by April 14, 2017 advise the Court in writing how she intends to proceed with respect to these Defendants. Ordered by Judge Pamela K. Chen on 3/31/2017. (Lee, Helen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
YING LI,
Plaintiff,
- against -

MEMORANDUM & ORDER
15-CV-1599 (PKC)

THE CITY OF NEW YORK, DET.
MATTHEW DEGNAN, LT. THOMAS
CONFORTI, DET. DAVID MOSER, LT.
JOHN PERDOCH, DET. JOHN PHELAN,
P.O. YATYU YAM, SGT. GUISELLA
RODRIGUEZ, LT. ARTHUR HALL, DET.
MICHAEL HEFFERNAN, SGT. TIMOTHY
CAI, DET. DOUGLAS LEE, DET. DENNIS
CHAN, SGT “FNU” MANFREDI (“FIRST
NAME UNKNOWN”), ADA P. LEIGH
BISHOP, DR. KRISTEN LANDI, “JOHN
DOES 1-15” (NAMES FICTITIOUS AND
PRESENTLY UNKNOWN), DR.
FERNANDA KUPFERMAN, AND
FLUSHING HOSPITAL MEDICAL CENTER
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
On March 26, 2015, Plaintiff Ying Li commenced this action against Defendants
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and New York law. (See Dkt. 1.) Plaintiff’s tencount Amended Complaint alleges numerous theories of liability against Defendants. (See Dkt.
36, Amended Complaint (“Am. Compl.”).) In general, Plaintiff alleges that she was wrongfully
accused of being responsible for the death of her infant daughter. (Id.) The Amended Complaint
makes claims against two groups of defendants:

(i) the first group is composed of the City of

New York (the “City”) and various City employees (collectively, the “City Defendants”),
including twelve named New York City Police Department (“NYPD”) officers who allegedly

investigated Plaintiff (the “Officer Defendants”) 1; Dr. Kristen Landi (“Dr. Landi”), a physician
employed by the City; Queens County Assistant District Attorney P. Leigh Bishop (“ADA
Bishop”); and fifteen “John Doe” defendants; and (ii) the second group is composed of Flushing
Hospital Medical Center (“Flushing Hospital” or “FHMC”) and one of its employees, Dr.
Fernanda Kupferman (“Dr. Kupferman”) (collectively, the “Medical Center Defendants”).
Plaintiff asserts the following ten counts, of which eight are against all Defendants: Count
1 (false arrest and imprisonment), Count 2 (malicious prosecution), Count 3 (malicious abuse of
process), Count 4 (failure to intervene), Count 5 (conspiracy), Count 6 (unreasonably prolonged
detention), Count 7 (violation of due process), Count 8 (Monell liability against the City), Count
9 (Monell-type liability against Flushing Hospital), and Count 10 (violation of the New York
State Constitution). Except for Count 10, all of Plaintiff’s claims are alleged as federal claims
pursuant to Section 1983.
Presently before the Court are two separate motions to dismiss filed by the two groups of
Defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). For the
reasons set forth below, both the City Defendants’ and Medical Center Defendants’ motions are
GRANTED IN PART and DENIED IN PART. Furthermore, all claims against the following
Defendants are dismissed in their entirety: ADA Bishop, Lt. Conforti, Det. Perdoch, Sgt.
Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.
1

The twelve individual NYPD Officer Defendants are Det. Matthew Degnan (“Det.
Degnan”), Lt. Thomas Conforti (“Lt. Conforti”), Det. David Moser (“Det. Moser”), Lt. John
Perdoch (“Lt. Perdoch”), Det. John Phelan (“Det. Phelan”), P.O. Yatyu Yam (“P.O. Yam”), Det.
Sgt. Guisella Rodriguez (“Sgt. Rodriguez”), Lt. Arthur Hall (“Lt. Hall”), Det. Michael Heffernan
(“Det. Heffernan”), Sgt. Timothy Cai (“Sgt. Cai”), Det. Douglas Lee (“Det. Lee”), Det. Dennis
Chan (“Det. Chan”), Sgt. “FNU” Manfredi (“First Name Unknown”) (“Sgt. Manfredi”).
Of these individual Officer Defendants, Dets. Moser, Phelan, Heffernan, and Sgt.
Manfredi are not represented. (Dkt. 69.)
2

BACKGROUND
I.

THE FACTS 2
Early in the morning of October 23, 2007, Annie, the 8-1/2-week-old daughter of

Plaintiff and her husband Hang Bin Li, suddenly went limp while being fed. (Am. Compl. ¶¶ 92,
95.) The Lis called 911 and took Annie to the emergency room at Flushing Hospital. (Am.
Compl. ¶¶ 95, 98, 108.) Annie was unresponsive when she arrived at the emergency room,
where she was revived and placed on life support. (Am. Compl. ¶ 98.) 3
Suspecting child abuse, Flushing Hospital called Det. Phelan and the NYPD Child Abuse
Squad that day. (Am. Compl. ¶ 101.) Det. Phelan went to the hospital, spoke with the hospital
staff, looked at medical charts, and met with the Lis. (Am. Compl. ¶¶ 101–103.) P.O. Yam, an
officer who spoke Mandarin, accompanied Det. Phelan. (Am. Compl. ¶ 101.) The Lis were
taken to Det. Phelan’s office at the Queens Child Abuse Squad. (Am. Compl. ¶ 104.) When
they arrived at the 109th precinct, other officers and sergeants, including Defendant Manfredi,
were present. (Am. Compl. ¶ 105.) Det. Heffernan also came to the Precinct that night. (Am.
Compl. ¶ 105.) Dets. Phelan and Degnan interrogated Plaintiff, alone, for about an hour while
P.O. Yam interpreted. (Am. Compl. ¶ 106.) They then interrogated Hang Bin Li. (Am. Compl.
¶ 106.) Afterwards, Dets. Degnan and Heffernan drove the Lis back to Flushing Hospital. (Am.
Compl. ¶ 108.) At the hospital, Dets. Degnan and Heffernan had extended conversations with
the hospital staff, including Dr. Kupferman. (Am. Compl. ¶ 108.)
2

The Court takes the allegations in the Amended Complaint as true, as it must on
a motion to dismiss under FRCP 12. See EEOC v. Port Auth. of New York & New Jersey, 768
F.3d 247, 253 (2d Cir. 2014) (“[W]e accept all factual allegations in the complaint as true and
draw all reasonable inferences in favor of the plaintiff.”).
3

A medical report from that day indicated that Annie had no external signs of trauma.
(Am. Compl. ¶ 98.)
3

The next day, October 24, 2007, Det. Phelan went to the Lis’ house, and Plaintiff’s
husband gave written consent for Det. Phelan to search the home. (Am. Compl. ¶ 110.) Later,
detectives from the 109th Precinct went to search the Lis’ home after getting a warrant. (Am.
Compl. ¶ 110.) Subsequently, the Lis were interviewed again by numerous people, including
Dets. Heffernan and Moser, officers from the Queens Homicide Squad, and medical personnel at
Flushing Hospital, including Dr. Kupferman. 4 (Am. Compl. ¶¶ 112–15.) Det. Chan served as an
interpreter from the afternoon of October 24, 2007, until the morning hours of October 25, 2007.
(Am. Compl. ¶ 112.) During these interviews, according to Plaintiff, Dets. Heffernan and Moser
and Dr. Kupferman repeatedly screamed at the Lis that they had killed their daughter and that
unless the Lis told them which one of them had hurt Annie, the doctors could not help her. (Am.
Compl. ¶ 115.) They also promised the Lis that they could see Annie if they admitted to hurting
her. (Am. Compl. ¶ 116.) After being repeatedly told this, Hang Bin Li stated that he might
have inadvertently bumped Annie’s head lightly against a table while trying to resuscitate her.
(Am. Compl. ¶ 117.)
On October 25, 2007, Dr. Kupferman conducted a “forensic interview” of Plaintiff. (Am.
Compl. ¶ 120.) A day later, Annie was confirmed brain dead, and was diagnosed with “Shaken
Baby Syndrome” (“SBS”). 5 (Am. Compl. ¶¶ 123, 134.) That evening, the Lis were again taken
4

The Amended Complaint does not indicate where these interviews occurred. (Am.
Compl. ¶¶ 112-15.)
5

SBS is “a devastating form of child abuse caused by violently shaking a baby, resulting
in traumatic brain injury, which is characterized by a constellation of injuries including subdural
hematomas (i.e. bleeding in the brain), retinal hemorrhages, rib fractures and long-bone
fractures.” Phelan ex rel. Phelan v. Torres, 843 F. Supp. 2d 259, 261 (E.D.N.Y. 2011) (citing,
inter alia, Shaken Baby Syndrome, Medline Plus Medical Encyclopedia, a service of the U.S.
National Library of Medicine, National Institutes of Health (“Medline Plus”),
http://www.nlm.nih.gov/medlineplus/ency/article/000004.htm). However, some courts have
acknowledged that there is an “emergence of a legitimate and significant dispute within the
medical community as to the cause of [ ] injuries” that used to be attributed to SBS. See State v.
4

to the 109th precinct, and Dets. Degnan, Heffernan, and Chan questioned the Lis separately until
the next morning. (Am. Compl. ¶ 124.) Hang Bin Li also gave a written statement regarding the
events that had occurred on October 22 and 23. (Id.) Annie was removed from life support on
October 28. (Am. Compl. ¶ 125.) On October 29, Dets. Moser, Degnan, Heffernan, and Sgt. Cai
questioned Hang Bin Li at the 109th precinct. (Am. Compl. ¶ 126.) Throughout the multiple
investigations and interviews, Plaintiff denied any wrongdoing.

(Am. Compl. ¶ 127.)

Unidentified Defendants ordered Plaintiff to remain in and about her home from approximately
October 26, 2007 up to her arrest five months later. (Am. Compl. ¶ 131.)
On March 11, 2008, Plaintiff and her husband were arrested for Annie’s death based on
the conclusion that Annie had died of SBS. (Am. Compl. ¶¶ 133–34.) Plaintiff was charged
with two counts of Manslaughter in the First Degree, and one count of Endangering the Welfare
of a Child.

(Am. Compl. ¶¶ 146.) The grand jury indicted Plaintiff on various charges,

including Manslaughter in the Second Degree. (Am. Compl. ¶ 181, 184, Ex. C.) Plaintiff pled
not guilty to all charges. (Am. Compl. ¶ 179.) Plaintiff’s husband was also indicted for one
count of Murder in the Second Degree, two counts of Manslaughter in the Second Degree, and
one count of Endangering the Welfare of a Child. (Am. Compl. ¶ 185.) Unable to make bail,
Plaintiff was held at the Riker’s Island correctional facility for about four years without a trial.
(See Am. Compl. ¶¶ 180, 234.) On March 26, 2012, Plaintiff was released after her bail was
reduced. (Am. Compl. ¶ 197.) On January 2, 2013, ADA Bishop moved to dismiss the criminal
charges against Plaintiff. (Dkt. 63–6, Ex. F.)

Hang Bin Li’s trial began the next day. (Am.

Edmunds, 746 N.W.2d 590, 599 (Wis. Ct. app. 2008); see also Cavazos v. Smith, 565 U.S. 1
(2011) (Ginsburg, J., dissenting) (“What is now known about shaken baby syndrome (SBS) casts
grave doubt on the charge leveled against [petitioner].”)
5

Compl. ¶ 199.) On February 1, 2013, he was convicted of reckless manslaughter. (Am. Compl.
¶ 200.)
II.

PROCEDURAL HISTORY
Plaintiff filed this action on March 26, 2015. (Dkt. 1.) On November 19, 2015, she filed

the Amended Complaint. (Dkt. 36.) On March 7, 2016, Defendants moved to dismiss the
Amended Complaint pursuant to FRCP 12(b)(6). (Dkt. 53, 58.)
DISCUSSION 6
I.

COURT’S CONSIDERATION OF MATERIAL EXTRANEOUS TO THE
AMENDED COMPLAINT
Plaintiff and Defendants both seek to have the Court consider certain information and

documents outside of the Amended Complaint.

Both parties have attached to their moving

papers the Queens County criminal court complaint (“criminal complaint”) against Plaintiff (Dkt.
60, Ex. B; Dkt. 63, Ex. B) and the transcript of the court conference at which ADA Bishop
moved to dismiss the criminal charges against Plaintiff (Dkt. 60, Ex. C; Dkt. 63, Ex. F). The

6

As an initial matter, the Court cautions Plaintiff’s counsels that their scatter-shot,
kitchen-sink approach to this litigation thus far has done a great disservice to her client’s case.
Plaintiff’s 275-paragraph Amended Complaint indiscriminately asserts eight of her ten claims
against every single Defendant, even though, as discussed herein, these claims clearly should not
have been brought against many of these Defendants, and many of these Defendants should not
have been named at all. Despite the Court’s repeated suggestions at the pre-motion conference
that Plaintiff’s counsel focus on developing meritorious claims and arguments, and consider
pruning this action of non-viable claims, Plaintiff not only persisted with all of her claims, but
doubled down on her helter-skelter approach by responding to Defendants’ motions to dismiss
with two separate Memoranda of Law (“MOL”s) with internal editing notes left for the Court to
read, place-holders for citations, and multiple grammatical errors. (See, e.g., Dkt. 61 at 22 n.36;
id. at 41; Dkt. 66 at 29). “Not only does the ‘kitchen sink’ approach to briefing cause distraction
and confusion, it also ‘consumes space that should be devoted to developing the arguments with
some promise.’” Dynegy Marketing & Trade v. Multiut Corp., 648 F.3d 506, 512 (7th Cir. 2011)
(citation omitted). Indeed, here, the Court has had to struggle to tease out of Plaintiff’s MOLs
legally coherent and supported positions. While the Court has done so in order to comply with
its duty at this stage to view the complaint in the light most favorable to Plaintiff¸ it will not be
so forgiving as this case progresses.
6

City Defendants also submitted the grand jury minutes (Dkt. 65, Ex. A) with their Reply brief.
Plaintiff also has submitted a copy of the manslaughter indictment returned by the grand jury
against her (Dkt. 63, Ex. C) and two press releases from the Queens District Attorney’s Office,
dated March 12, 2008, and September 11, 2015 (Dkt. 63, Exs. D, E). The March 12, 2008 press
release discusses the District Attorney’s charging of Plaintiff and her husband. (See Ex. D, Dkt.
63–4, at ECF 2.) 7 The September 11, 2015 press release notes that the Queens District Attorney
and the New York City Chief Medical Examiner were to host the 2015 New York City Abusive
Head Trauma / Shaken Baby Syndrome Conference. (See Ex. E, Dkt. 63–5 at ECF 2.)
In determining the adequacy of a claim under Rule 12(b)(6), courts are generally limited
to the facts alleged in the complaint, documents attached to the complaint, documents
incorporated by reference in the complaint, and facts that may be judicially noticed. See DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner,
Inc., 292 F.3d 147, 153 (2d Cir. 2002)); see also Williams v. Kellogg Co., 628 F. App’x. 59, 60
(2d Cir. 2016) (summary order) (noting that the court may consider matters of which judicial
notice may be taken in deciding a Rule 12(b)(6) motion). However, even if the complaint does
not expressly cite a document, the complaint is deemed to include that document if it is
“integral” to the complaint. L–7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir.
2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)); Sira, 380 F.3d at 67 (document
not expressly cited in the complaint was “incorporated into the pleading because [it] was integral
to [plaintiff’s] ability to pursue” his cause of action); Mangiafico v. Blumenthal, 471 F.3d 391,
398 (2d Cir. 2006) (“Even where a document is not incorporated by reference, the court may
nevertheless consider it where the complaint relies heavily upon its terms and effect, which
7

Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing
system and not the document’s internal pagination.
7

renders the document integral to the complaint.” (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152–153 (2d Cir. 2002)); Fed. R. Evid. 201 (a court may take judicial notice of “a fact
that is not subject to reasonable dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned”).
By repeatedly referring to the criminal complaint, the Amended Complaint incorporates it
by reference. 8 As for Plaintiff’s other exhibits, i.e., the indictment, the transcript of the criminal
court conference, and the two press releases, the Court takes judicial notice of them, but for the
limited purpose of establishing their existence and legal effect, and determining the statements
that they contain without considering the truth of those statements. See, e.g., Bejaoui v. City of
New York, No. 13–cv–5667, 2015 WL 1529633, at *6 (E.D.N.Y. Mar. 31, 2015) (recognizing
disagreement among district courts in the Second Circuit as to whether incident reports, arrest
reports, and police complaints may be judicially noticed, but still taking notice of the plaintiff’s
State court indictment and criminal court order to establish their existence and legal effect);
Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A court
may take judicial notice of a document filed in another court not for the truth of the matters
asserted in the other litigation, but rather to establish the fact of such litigation and related
filings.” (quoting Int’l Star Class Yacht Racing Assn’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d
66, 70 (2d Cir. 1998))); see, e.g., Garcia–Garcia v. City of New York, No. 12–cv–1302, 2013
WL 3832730 (S.D.N.Y. July 22, 2013) (taking judicial notice of criminal complaints and
8

The Amended Complaint repeatedly refers to the criminal complaint in alleging
Plaintiff’s fabrication of evidence and malicious prosecution claims. (See, e.g., Am. Compl. ¶
145 (“Defendant DEGNAN signed the criminal court complaint . . . despite his knowing that
there was no truth to those allegations . . . .”); Am. Compl. ¶ 146 (alleging that the criminal court
complaint was based on fabricated information provided to the District Attorney’s Office); Am.
Compl. ¶ 150 (alleging that Dr. Landi made a false statement in the criminal complaint)).
Plaintiff also alleges that Dr. Landi made a false statement in the criminal complaint that Annie
may have been saved had Plaintiff sought medical care for Annie sooner. (Am. Compl. ¶ 150.)
8

indictments for the limited fact that plaintiff was arrested and charged with certain crimes). 9
Here, the criminal court records and the press releases relate to Plaintiff’s allegations that the
criminal case was terminated favorably to her and the date on which the criminal charges were
dropped. 10 (Am. Compl. ¶¶ 201, 212.)
The Court, however, declines to take judicial notice of the grand jury minutes in People
v. Hang Bin Li and Ying Li, Indictment No. 603/08 (Dkt. 65, Ex. A), which the City Defendants
have attached to their Reply brief, because the City seeks to rely on the substance and truth of the
testimony set forth in those minutes, and not just the fact of the testimony being given or the date
on which it was given. See St. John’s Univ., N.Y. v. Bolton, 757 F. Supp. 2d 144, 156 (E.D.N.Y.
2010) (“[T]he court may, at its discretion, consider matters of which judicial notice may be taken
. . . .” (emphasis added) (citation omitted)).
II.

LEGAL STANDARD
Under Rule 12(b)(6) of the FRCP, a defendant may move for dismissal on the ground that

the complaint “fail[s] to state a claim upon which relief can be granted.” To withstand a Rule
9

See also McLoughlin v. People’s United Bank, Inc., 586 F. Supp. 2d 70, 73 (D. Conn.
2008) (“The Court may take judicial notice of the press releases of government agencies” (citing
In re Zyprexa Products Liablity Litigation, 549 F. Supp. 2d 496, 501 (E.D.N.Y. 2008))); Mitchell
v. Home, 377 F. Supp. 2d 361, 367 n.1 (S.D.N.Y. 2005) (“The press release [from the New York
Attorney General] may be considered on this motion to dismiss because . . . this Court may take
judicial notice of it as a matter of public record[.]”); Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.
2007) (“If the court takes judicial notice, it does so in order to determine what statements they
contained—but . . . not for the truth of the matters asserted.”).
10

Moreover, Plaintiff’s counsel has also represented to the Court that she has used one of
the press releases in order to identify the named Defendants (see 1/7/2016 Pre-Motion
Conference Transcript), and the Court therefore may consider at least one of the press releases to
be “integral” to the Complaint. See Sira, 380 F.3d at 67. The Court, however, will not consider
the new factual assertions Plaintiff makes in her opposition papers. See Green v. City of Mount
Vernon, 96 F. Supp. 3d 263, 285 (S.D.N.Y. 2015) (citing, inter alia, Fonte v. Bd. of Managers of
Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (“Factual allegations contained in legal
briefs or memoranda are also treated as matters outside the pleading[s] for purposes of Rule
12(b).”)).
9

12(b)(6) motion, a complaint must plead sufficient facts “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 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 (quoting Twombly, 550 U.S. at 556). In
ruling on a 12(b)(6) motion, a court must accept the factual allegations set forth in the complaint
as true and must draw all reasonable inferences in favor of the plaintiff. See Nielsen v. Rabin,
746 F.3d 58, 62 (2d Cir. 2014). However, that “‘tenet is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 668).

A complaint that “tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement’” will not suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 555 U.S. at 557).
Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level
. . . .” Twombly, 550 U.S. at 555. A complaint should be dismissed where a plaintiff has not
“nudged [its] claims across the line from conceivable to plausible[.]” Id. at 570.
III.

PLAINTIFF’S SECTION 1983 CLAIMS
Plaintiff has brought this action pursuant to 42 U.S.C. § 1983 (“Section 1983”), which

provides a cause of action for anyone subjected “to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” by a person acting under color of state law. 42
U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure
for redress for the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165
F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985));
see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). To state a claim under Section 1983, a
plaintiff must plausibly allege “(1) that the defendants deprived him of a right ‘secured by the
10

Constitution or laws of the United States’; and (2) that they did so ‘under color of state law.’”
Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)); see Flynn v. James, 513 F. App’x 37, 39 (2d Cir.
2013).
Liability of Medical Center Defendants as Private Actors
Plaintiff asserts her federal claims not only against the City Defendants but also against
the Medical Center Defendants, who ordinarily would be considered non-State actors. See White
v. St. Joseph’s Hosp., 369 Fed. App’x 225, 226 (2d Cir. 2010) (“[P]rivate actors and institutions,
such as the hospitals . . . are generally not proper § 1983 defendants because they do not act
under color of state law.” (citing Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50
(1999)); see also Kia P. v. McIntyre, 235 F.3d 749, 756 (2d Cir. 2000) (finding that a hospital
was not a State actor to the extent it acted in its capacity as a private provider of medical care).
As a general matter, liability under Section 1983 is proper only with respect to individuals acting
under “color of state law,” i.e., State actors, or individuals acting in concert with a State actor.
See 42 U.S.C. § 1983; Jones v. City of New York, No. 12–cv–9144, 2013 WL 4028183, at *6 n.3
(S.D.N.Y. Aug. 8, 2013) (“Section 1983 addresses only those injuries caused by state actors or
those acting under color of state law.” (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68
(2d Cir. 1992)). For a private entity to be held liable under Section 1983, a plaintiff must
establish that the private entity acted as a “willful participant in joint activity with the State or its
agents.” Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014) (citation and quotation marks
omitted).
Although the Medical Center Defendants argue that they are not State actors and
therefore not subject to liability under Section 1983, they also note that this issue may be more
appropriate to be decided on summary judgment. (See Dkt. 55 at 19 n.3.) Because the Medical
11

Center Defendants essentially defer arguing the issue, the Court reserves consideration of the
issue for summary judgment. For purposes of ruling on Defendants’ motions to dismiss, the
Court assumes without deciding that the Medical Center Defendants are State actors who acted
“under color of state law.”
City Defendants’ Request to Dismiss the Individual Officer Defendants for
Lack of Personal Involvement
The City Defendants point out—and rightfully so—that Plaintiff has failed to allege any
personal involvement by many of the named Officer Defendants. (Dkt. 59 at 6.) “An individual
defendant is not liable under § 1983 absent personal involvement.” Morris v. Eversley, 282 F.
Supp. 2d 196, 202 (S.D.N.Y. 2003) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994));
Spavone v. New York State Dept. of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (“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.” (quoting Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)). Pleadings that do not differentiate which defendant was
involved in the unlawful conduct are insufficient to state a claim. See, e.g., Wright v. Orleans
Cnty., No. 14–cv–0622A, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a §
1983 case that “[g]roup pleading is insufficient for purposes of Rule 8(a)(2) [of the FRCP] which
requires a short and plain statement of the claim showing that the pleader is entitled to relief.”
(citation and quotation marks omitted)); Holmes v. Allstate Corp., No. 11–civ–1543, 2012 WL
627238, at *7, *22 (S.D.N.Y. Jan. 27, 2012) (“Plaintiffs’ method of group pleading is incoherent
or illogical” and “[FRCP] 8(a) is violated where a plaintiff, by engaging in ‘group pleading,’
fails to give each defendant fair notice of the claims against it.”); Pierson v. Orlando Regional
Healthcare Systems, Inc., 619 F. Supp. 2d 1260, 1273 (M.D. Fla. 2009) (dismissing complaint
because group-pleading method of collectively referring to individual defendants and two
12

physician groups as “Peer Review Defendants” throughout complaint did not satisfy [FRCP]
9(a)).
1.

Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, and Sgt.
Manfredi

The Amended Complaint fails to allege facts from which it can be reasonably inferred
that Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, and Det. Lee had any involvement in
Plaintiff’s Queens County criminal proceedings.

Though the lengthy Amended Complaint

devotes six paragraphs to each of these Defendants (see Am. Compl. ¶¶ 19–22, 82–83 (for Lt.
Conforti); Am. Compl. ¶¶ 27–30, 81–82 (for Det. Perdoch); Am. Compl. ¶¶39–42, 82–83 (for
Sgt. Rodriguez); Am. Compl. ¶¶ 43–46, 82–83 (for Lt. Hall); Am. Compl. ¶¶ 55–58, 82–83 (for
Det. Lee)), these paragraphs simply recite the same conclusory, formulaic, and non-substantive
allegations as to each of these Defendants, asserting that they were “acting within the course and
scope of their employment” and “under color of state law,” that they are being sued in their
individual and official capacities, and that they should be referred to as “CITY DEFENDANTS”
or “OFFICER DEFENDANTS.” In short, Plaintiff does not allege that any of these five officers
had even a minimal role in arresting, investigating, or prosecuting her. For Sgt. Manfredi,
Plaintiff alleges nothing more than that he was present at the 109th Precinct when the Lis arrived
with Det. Phelan. (See Am. Compl. ¶¶ 104–105.) 11
Based on Plaintiff’s counsel’s representation at the pre-motion conference, it appears that
Plaintiff named some of these individual Defendants because they were listed as having
supervisory roles in the Queens County District Attorney’s press release (dated March 12, 2008).

11

Though Plaintiff alleges a claim of failure to intervene in her arrest and prosecution,
the allegation that Sgt. Manfredi simply was present at the precinct when the Lis were brought
there by Det. Phelan is still not enough to plausibly allege that Sgt. Manfredi was aware of the
circumstances relating to Plaintiff’s arrest or detention, such that he had a duty to intervene.
13

(See Ex. D, Dkt. 63–4 at ECF 3.) Even though the Court takes judicial notice of the press
release, as noted, it does not take judicial notice of the press release for the truth of its contents,
i.e., that the identified officers were, in fact, supervisors at the time of Plaintiff’s arrest and
prosecution.

See Roth, 489 F.3d at 509. Furthermore, the mere listing of these officers as

supervisors in a press release is insufficient to create an inference of personal involvement absent
further allegations, especially because “a defendant [may not] be held liable merely by his
connection to the events through links in the chain of command.” Reynolds v. Goord, No. 98–
cv–6722, 2000 WL 235278, at *7 (S.D.N.Y. Mar. 1, 2000); Colon, 58 F.3d at 873–74 (“The bare
fact that [the defendant] occupies a high position in the New York prison hierarchy is insufficient
to sustain [plaintiff’s] claim.”).
2.

P.O. Yam, Sgt. Cai, and Det. Chan

With respect to P.O. Yam, Sgt. Cai, and Det. Chan, the allegations in the Amended
Complaint are also insufficient to show personal involvement in unlawful conduct that supports
any of Plaintiff’s claims. Based on the Amended Complaint, the participation of these officers
was limited to serving as translators during the investigations of Plaintiff’s criminal case. 12 (See
Am. Compl. ¶¶ 35–38, 101, 104, 106 (for P.O. Yam); Am. Compl. ¶¶ 51–54, 126 (for Sgt. Cai);
Am. Compl. ¶¶ 59–62, 112, 119 (for Det. Chan); Am. Compl. ¶ 82–83 (for all Defendants).)
While these translating officers are alleged to have been present during the interviews of the Lis
by the other City Defendants, there are no other allegations from which to infer that these three
officers were involved, in any way, in the conduct that gives rise to Plaintiff’s Section 1983
claims, e.g., arresting Plaintiff without probable cause, initiating criminal process against her,
12

Plaintiff alleges that P.O. Yam interpreted on October 23, 2007 (Am. Compl. ¶¶ 10106), that Sgt. Cai interrogated Hang Bin Li on October 29, 2007 (Am. Compl. ¶ 126), and that
Det. Chan “served as an interpreter” from the afternoon of October 24, 2007, until the morning
of October 25, 2007, when Heffernan and Moser interrogated the Lis (Am. Compl. ¶ 112).
14

forwarding false or fabricated evidence to the prosecution, or concealing exculpatory information
from the prosecutors or the defense.

The translating officers’ mere presence at the Lis’

interviews is simply not enough to allege their direct involvement in the unlawful conduct at
issue in this case, as opposed to their incidental involvement in some of the events related to
Plaintiff’s arrest and detention. All claims against P.O. Yam, Sgt. Cai, and Det. Chan are,
therefore, dismissed.
3.

Dets. Moser, Phelan, and Heffernan

With respect to Dets. Moser, Phelan, and Heffernan, the Court finds that Plaintiff has
provided sufficient allegations as to their personal involvement in the conduct giving rise to
some, but not all, of Plaintiff’s claims, as discussed infra. (See Am. Compl. ¶¶ 112, 119, 126,
130 (alleging Det. Moser’s involvement in the investigation of the Lis); ¶¶ 102–104, 106, 109–
111 (alleging Det. Phelan’s involvement to the extent that he went to the hospital, spoke to the
hospital staff, examined relevant medical charts, and interrogated Ying Li); ¶¶ 112, 126, 130
(alleging Det. Heffernan’s involvement to the extent that he interrogated Hang Bin Li and other
witnesses).)
*

*

*

Accordingly, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi,
P.O. Yam, Sgt. Cai, and Det. Chan are dismissed as Defendants due to the insufficiency of
allegations establishing personal involvement. See Zurich American Ins. Co. v. Dah Sing Bank,
Ltd. No. 03–civ–7778, 2004 WL 1328215, at *6 (S.D.N.Y. Jun. 15, 2004) (dismissing claims
against one defendant bank where plaintiff did not put forth “a single factual allegation” but
instead “lump[ed] the three bank defendants together and assert[ed] that they collectively
processed the checks”); Hernandez v. Goord, 312 F. Supp. 2d 537, 548 (S.D.N.Y. 2004)
(dismissing individual defendants who were merely listed at the beginning of the complaint and
15

were never connected in the complaint to any particular adverse action); see also B. v. City of
New York, No. 14–cv–1021, 2016 WL 4530455, at *13 (E.D.N.Y. Aug. 29, 2016) (dismissing
claims where the complaint did “not even directly name any of the defendants or allege the
particular actions they undertook” (citation omitted)); Barber v. Ruzzo, No. 10–cv–1198, 2011
WL 4965343, at *2 (N.D.N.Y. Oct. 19, 2011) (“Simply stating that [defendants] were
‘personally and actively involved in the continuation of criminal proceedings against [a
plaintiff],’ is grossly insufficient to establish personal involvement in the actual prosecution.”).
IV.

FALSE ARREST
A claim for false arrest under Section 1983, resting on the Fourth Amendment right to be

free from unreasonable seizures, including arrest without probable cause, is substantially the
same as that under New York law. 13 Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007)
(citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). In analyzing Section 1983 claims for
false arrest, courts “generally look[] to the law of the state in which the arrest occurred.” Dancy
v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting Jaegly v. Couch, 439 F.3d 149, 151 (2d
Cir. 2006)). Under New York law, a plaintiff must establish, inter alia, that “the defendant
intentionally confined him without his consent and without justification.” Id. at 107 (quoting
Weyant, 101 F.3d at 852) (quotation marks omitted); see also Ackerson v. City of White Plains,
702 F.3d 15, 19 (2d Cir. 2012) (citing Broughton v. State of New York, 37 N.Y.2d 451, 456
(1975)).

13

Plaintiff also alleges a false imprisonment claim under Section 1983. However, the
Court does not address this claim separately, because pursuant to New York law, false arrest and
false imprisonment are “synonymous.” Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991); see also
Singer, 63 F.3d at 118 (“The common law tort of false arrest is a species of false imprisonment.”
(citing Broughton v. State, 37 N.Y.2d 451, 456 (1975))).
16

Plaintiff’s False Arrest Claim is Barred by the Statute of Limitations
The statute of limitations for Section 1983 claims filed in federal court in New York is
determined by New York State’s statute of limitations for personal injury actions. See Owens v.
Okure, 488 U.S. 235, 251 (1989) (discussing Wilson v. Garcia, 471 U.S. 261 (1985), which held
that courts deciding claims under Section 1983 should “borrow” the State statute of limitations
for personal injury actions); see also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(citing Owens). In New York State, the applicable statute of limitations for personal injuries is
three years. N.Y. C.P.L.R. § 214 (McKinney). Thus, Plaintiff should have filed her false arrest
claim within three years of the date on which the cause of action accrued.
While the applicable limitations period is determined by State law, the accrual date “is a
question of federal law”. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a §
1983 cause of action is a question of federal law that is not resolved by reference to state law.”
(emphasis in the original)). Under federal law, a Section 1983 false arrest claim accrues at the
time that the alleged false arrest ends, i.e., when the arrestee “becomes held pursuant to [legal]
process—when, for example, he is bound over by a magistrate or arraigned on charges.”
Wallace, 549 U.S. at 389; see also Lynch v. Suffolk Cnty. Police Dep’t, Inc., 348 F. App’x 672,
675 (2d Cir. 2009) (summary order) (applying Wallace to find that plaintiff’s § 1983 false arrest
claim was time-barred).
Here, the Medical Center Defendants and the City Defendants contend that Plaintiff’s
false arrest claim as to all Defendants is time-barred. (Dkt. 55 at 4; Dkt. 64 at 3.) Plaintiff
concedes this (Dkt. 66 at 6), and the Court agrees. Plaintiff was arrested on March 11, 2008 in
connection with her daughter’s death. (Am. Compl. ¶ 133.) For Plaintiff’s false arrest claim to
be timely, she must have made an initial appearance or been arraigned on or after March 26,
2012, i.e., three years from the filing of her complaint. See Wallace, 549 U.S. at 389 (false arrest
17

claim accrues when plaintiff’s false arrest ends and plaintiff becomes held pursuant to legal
process). However, Plaintiff alleges that she was arrested on March 11, 2008 and that she was
incarcerated as of that date until March 26, 2012. 14 Because Plaintiff did not bring her false
arrest claim until March 2015, it is plainly barred by the applicable three-year statute of
limitations.
Equitable Tolling
Recognizing that the statute of limitations has run, Plaintiff contends that equity demands
tolling of the statute of limitations. (Dkt. 66 at 7.) Plaintiff’s claim for equitable tolling is based
on the notion of fraudulent concealment. 15 See Pearl, 296 F.3d at 81–84 (noting that the
“taxonomy of tolling, in the context of avoiding a statute of limitations, includes at least three
phrases: equitable tolling, fraudulent concealment of a cause of action, and equitable estoppel,”
and also recognizing that the Second Circuit equates both equitable estoppel and equitable tolling
with fraudulent concealment).
When a “defendant fraudulently conceals the wrong, the [statute of limitations] does not
begin running until the plaintiff discovers, or by the exercise of reasonable diligence should have
14

Although Plaintiff has not alleged in her Amended Complaint when she made her
initial appearance in State court or when she was arraigned on the indictment, given her March
2008 arrest and incarceration date, her arraignment clearly took place long before March 2012.
15

The Court recognizes that “the application of the doctrine of equitable tolling is not
limited to [fraudulent concealment].” Valdez ex rel. Donely v. U.S., 518 F.3d 173, 183 (2d Cir.
2008). However, based on Plaintiff’s articulation of why equitable tolling should be granted, it is
clear that she is seeking equitable tolling based on fraudulent concealment. Plaintiff’s MOL also
mentions “equitable estoppel,” which is applicable “where the plaintiff knew of the existence of
the cause of action, but the defendant’s conduct caused plaintiff to delay in bringing suit.” (Dkt.
66 at 7 n.7 (citing, inter alia, Cerbone v. Int’l Ladies’ Garment Workers’ Union, 768 F.2d 45,
49–50 (2d Cir. 1985)).) However, equitable estoppel is inapplicable here, because Plaintiff’s
theory is that she was unaware of her false arrest claim, not that she was aware of it, but
Defendants’ conduct caused her to delay bringing the claim. (See Am. Compl. ¶ 209; see also
Dkt. 66 at 7 (asking the Court to toll the statute of limitations until 2013, “when Plaintiff became
aware-that she had, in fact, been falsely arrested . . . .” (emphasis added)).)
18

discovered, the cause of action.” Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995)
(quoting Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983)); Pearl, 296 F.3d at 81; see also
Halstead v. City of New York, No. 13–cv–4874, 2015 WL 1506133, at *4 (E.D.N.Y. Mar. 31,
2015). To benefit from this doctrine of equitable tolling based on fraudulent concealment, the
“plaintiff must submit non-conclusory evidence of conspiracy or other fraudulent wrong which
precludes his possible discovery of harms that he suffered.” Pinaud, 52 F.3d at 1157 (emphasis
in original); see also Govt. Employees Ins. Co. v. U.S., No. 13–cv–4063, 2014 WL 582164
(E.D.N.Y. Feb. 14, 2014) (“the ‘burden of demonstrating the appropriateness of equitable tolling
. . . lies with the plaintiff.’” (quoting Boos v. Runyon, 201 F.3d 178, 184–85 (2d Cir. 2000))).
The Second Circuit has made clear that, “as a matter of fairness”, the doctrine should only be
applied “where a plaintiff has been ‘prevented in some extraordinary way from exercising [her]
rights’”. Pearl, 296 F.3d at 85 (citation and quotation marks omitted). Walker v. Jastremski,
430 F.3d 560, 564 (2d Cir. 2005) (noting that courts apply equitable tolling only in “rare and
exceptional circumstances” (citation and internal quotation marks omitted)).
Here, Plaintiff presents only an unsupported, conclusory statement to justify equitable
tolling: “[D]efendants’ fraud, misrepresentation, and deception, induced plaintiff from filing a
timely action. Defendants’ misconduct caused the plaintiff to delay in bringing suit and/or
wrongfully deceived or misled plaintiff in order to conceal the existence of a cause of action.”
(Am. Compl. ¶ 209.) The Amended Complaint does not allege (a) which of the numerous
Defendants committed fraud, misrepresentation, or deception, (b) what information was kept
from Plaintiff, or (c) how the alleged withholding of information made it impossible for Plaintiff
to discover the harms she had suffered. See, e.g., Harrison v. Harlem Hosp., 364 F. App’x. 686,
688 (2d Cir. 2010) (summary order) (“The appellants have failed to identify any specific fact

19

they have learned since the limitations period expired which, if known by them sooner, would
have led them to file suit sooner.” (emphasis in original)).
In her opposition brief, Plaintiff claims that she became aware of her false arrest only
“when Plaintiff’s attorneys were told . . . that there was no ‘medical proof’ that she could have
saved her daughter,” and that Plaintiff’s reliance on Dr. Kupferman’s assessment that earlier
medical intervention could have saved Annie caused Plaintiff to delay filing her false arrest
claim. (Dkt. 66 at 7.) However, as the Medical Center Defendants correctly point out, none of
these factual allegations are in Plaintiff’s Amended Complaint. 16
Furthermore, even assuming arguendo that Dr. Kupferman had concealed information
that might have supported Plaintiff’s false arrest claim, equitable tolling is still not warranted if
this alleged concealment did not sufficiently justify Plaintiff’s failure to pursue her cause of
action. Paige v. Police Dept. of City of Schenectady, 264 F.3d 197 (2d Cir. 2001). In Paige, the
plaintiff, a minor at the time, was sexually assaulted by a police officer. Id. at 198. She reported
the assault to the police department soon after it occurred, but the department told her that there
was insufficient evidence to pursue the case. Id. Fifteen years later, the plaintiff found out
through a newspaper article that the police department might have had an investigatory file with
information identifying the assaulting officer as the suspect, but chose not to pursue the case. Id.
at 199. In bringing a Section 1983 claim against the City, the police department, and the
suspected assaulting officer, the plaintiff argued that none of her claims was time-barred because
16

In fact, there is a discrepancy between what Plaintiff argues in her MOL and what she
alleges in the Complaint regarding the suppressed or concealed information that warrants
equitable tolling. In the Complaint, Plaintiff alleges that Dr. Landi stated that Plaintiff’s failure
to get earlier medical care contributed to Annie’s death. (Am. Compl. ¶ 150.) But in her MOL,
she attributes that statement to Dr. Kupferman. (Dkt. 66 at 7 (“Plaintiff relied on false
statements made by Kupferman that Annie’s death was caused by Ying Li not obtaining lifesaving medical attention for Annie, and that had she come to the hospital sooner, she could have
saved Annie.”)).
20

(a) they did not accrue until the publishing of the newspaper article, and, in the alternative (b) the
statute of limitations should be tolled until the date the article was published under the doctrine
of equitable tolling. Id. The Second Circuit rejected both arguments finding, inter alia, that the
plaintiff had sufficient knowledge to timely commence her causes of action without the
investigatory file.

Id. at 200 (“Although some of the facts putatively concealed by the

defendants might have strengthened [plaintiff’s] case . . . the absence of those facts did not
sufficiently justify [plaintiff] in not pursuing her cause of action as to merit equitable tolling.”);
see also Pearl, 296 F.3d at 78–85 (finding Section 1983 plaintiff, who alleged a brutal beating by
four officers, was not entitled to equitable tolling, despite one of the officer’s subsequent
confession that the officers had fabricated evidence against plaintiff; explaining that plaintiff had
full knowledge of his encounter with the officers and that the officer’s recantation was “not
newly developed awareness of a previously concealed cause of action”, but simply “more
persuasive evidence”).
Even accepting Plaintiff’s new, and improperly asserted, theory of fraudulent
concealment, her case is indistinguishable from Paige and Pearl: Plaintiff “had full knowledge”
of her actions relating to her child’s death, including whether she knowingly delayed getting her
child medical attention, and thus the purportedly withheld information that earlier medical
intervention might not have saved Annie’s life does not lead to a “newly developed awareness of
a previously concealed cause of action”, but simply provides potentially persuasive evidence for
that claim. Indeed, Plaintiff fails to explain how Dr. Kupferman’s purported diagnosis with
regard to Annie made it “impossible” for Plaintiff to learn that she had a claim for false arrest.
See Pearl, 296 F.3d at 85 (reiterating that, with respect to application of the equitable tolling
doctrine, “we made it clear that we had in mind a situation where a plaintiff ‘could show that it

21

would have been impossible for a reasonably prudent person to learn’ about [her] cause of
action.” (emphasis in original)). In fact, some allegations in the Amended Complaint suggest
that Plaintiff always knew or believed that she had a false arrest claim. For example, she alleges
that she had “steadfastly denied wrongdoing throughout the numerous interrogations conducted
by Defendants,” even in the early stages of the investigation of Annie’s death. (See Am. Compl.
¶ 127; see also Am. Compl. ¶ 118 (“Ying Li, however was positive that she did not harm her
daughter, that she never saw Hang Bin do anything but love and treasure Annie. She maintained
her innocence throughout.”).) Plaintiff also pleaded not guilty to all counts in the criminal
complaint and indictment. (Am. Compl. ¶ 179.) Furthermore, Plaintiff also alleges in the
Amended Complaint that she made diligent attempts to disprove the shaken baby syndrome
diagnosis of Annie, thereby demonstrating her belief from the time of her arrest that the
diagnosis was wrong and that Plaintiff had been falsely arrested and accused of causing her
daughter’s death, whether by SBS or failing to get her daughter prompt medical attention. (See,
e.g., AC ¶ 197 (“In May of 2012[,] Judge Gregory Lasak ordered further DNA testing done on
[the Lis], after the OI [Osteogenesis Imperfecta] 17 gene had been detected in Hang Bin Li.”).)
While Plaintiff may have “diligently attempted to disprove Kupferman’s . . . diagnosis (Dkt. 66

17

Osteogenesis imperfecta is “a group of genetic disorders that mainly affect the bones.
The term ‘osteogenesis imperfecta’ means imperfect bone formation. People with this condition
have bones that break easily, often from mild trauma or with no apparent cause. Multiple
fractures are common, and in severe cases, can occur even before birth. . . . The milder forms of
osteogenesis imperfecta . . . are characterized by bone fractures during childhood and
adolescence that often result from minor trauma. . . . Other types of osteogenesis imperfecta are
more severe, causing frequent bone fractures that may begin before birth and result from little or
no trauma. . . . The most severe forms of osteogenesis imperfecta . . . can include an abnormally
small, fragile rib cage and underdeveloped lungs. Infants with these abnormalities have lifethreatening problems with breathing and often die shortly after birth.” See https://ghr.nlm.
nih.gov/condition/osteogenesis- imperfecta (Last visited 3/25/2017.)
22

at 7), in this case, it only reinforces the conclusion that Plaintiff was aware of her false arrest
claim before 2013.
In sum, Plaintiff’s Amended Complaint provides only an unsupported, conclusory
assertion regarding “fraud, misrepresentation, and deception” that is patently insufficient to
support equitable tolling with respect to her false arrest claim, which is barred by the three-year
statute of limitations. Furthermore, even Plaintiff’s belated and improper assertion of facts
regarding the withholding of information by the Medical Center Defendants fails to show that
Plaintiff could not have timely brought her false arrest claim, and thus even these facts, if
accepted as true, would not support the application of the equitable tolling doctrine.
Accordingly, Defendants’ motions to dismiss Plaintiff false arrest claim are granted. 18
V.

MALICIOUS PROSECUTION
Plaintiff asserts a federal malicious prosecution claim against all Defendants. (Am.

Compl. ¶ 211–213.) To allege a Section 1983 claim for malicious prosecution, a plaintiff must
allege the four elements of a malicious prosecution claim under New York law—“(1) the
initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for defendant’s actions”—as well as a violation of the
plaintiff’s rights under the Fourth Amendment. 19 Manganiello v. City of New York, 612 F.3d

18

Because Plaintiff’s false arrest claim is time-barred, the Court does not address the
Defendants’ argument that there was probable cause to arrest Plaintiff.
19

The Second Circuit in Singer v. Fulton Cnty. Sheriff, 63 F.3d 110 (2d Cir. 1995), left
open the possibility of a plaintiff bringing a malicious prosecution claim premised on some other
constitutional right. Id. at 116 n.5 (“It is theoretically possible . . . for a plaintiff to premise a
malicious prosecution claim on some other constitutional right. Where that is the case, it will be
the standard governing that right that will determine whether there has been a constitutional
violation.”)
23

149, 160–61 (2d Cir. 2010) (citations and quotation marks omitted); Cornejo, 592 F.3d at 129
(“And § 1983, in recognizing a malicious prosecution claim when the prosecution depends on a
violation of federal rights, adopts the law of the forum state so far as the elements of the claim
for malicious prosecution are concerned.” (citation omitted)); see also Singer v. Fulton Cnty.
Sheriff, 63 F.3d 110, 116–117 (2d Cir. 1995) (relying in part on common law and New York
State malicious prosecution law in analyzing § 1983 malicious prosecution claim).

In

establishing a violation of a Fourth Amendment right in relation to a Section 1983 malicious
prosecution claim, a plaintiff must demonstrate “a sufficient post-arraignment deprivation[] of
liberty.” 20 Singer, 63 F.3d at 117; see also Rohman v. New York City Transit Auth., 215 F.3d
208, 215 (2d Cir. 2000) (noting that it is insufficient for a plaintiff to assert only the four
elements of New York State malicious prosecution claim alone).
The Medical Center Defendants contend that Plaintiff cannot satisfy three out of the five
requisite elements—specifically, favorable termination, lack of probable cause, and malice.
(Dkt. 55 at 5–9.) The City Defendants argue that Plaintiff’s claim must be dismissed because
there was probable cause and because none of the Officer Defendants initiated the prosecution
against Plaintiff. (See Dkt. 59 at 7–11.) For the reasons stated below, the Court finds that
Plaintiff has adequately alleged a malicious prosecution claim against Det. Degnan, Dr. Landi,
and also Dr. Kupferman, but not as to all of the other Defendants. The malicious prosecution

20

“The Fourth Amendment right implicated in a malicious prosecution action is the right
to be free of unreasonable seizure of the person—i.e., the right to be free of unreasonable
unwarranted restraints on personal liberty. A plaintiff asserting a Fourth Amendment malicious
prosecution claim under § 1983 must therefore show some deprivation of liberty consistent with
the concept of ‘seizure.’ . . . To maintain a § 1983 claim for malicious prosecution under the
Fourth Amendment, the deprivation of liberty—the seizure—must have been effected ‘pursuant
to legal process.’” Singer, 63 F.3d at 116–17.
24

claim is dismissed as to Dets. Moser, Phelan, and Heffernan, Lt. Conforti, Lt. Perdoch, Sgt.
Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.
Initiation of a Criminal Proceeding
To initiate or continue a criminal proceeding, “a defendant must do more than report the
crime or give testimony. He must play an active role in the prosecution, such as giving advice
and encouragement or importuning the authorities to act.”

Manganiello, 612 F.3d at 163

(quoting Rohman, 215 F.3d at 217) (alteration and internal quotation marks omitted). An active
role in prosecution is inferred when a defendant had the plaintiff arraigned, filled out a
complaining and corroborating affidavit, or signed a felony complaint. See Cameron v. City of
New York, 598 F.3d 50, 63 (2d Cir. 2010) (noting that a police officer can initiate prosecution by
filing charges or other accusatory instruments); see also Costello v. Milano, 20 F. Supp. 3d 406,
415 (S.D.N.Y. 2014). Additionally, a defendant could have initiated a prosecution “by creating
material, false information and forwarding that information to a prosecutor or by withholding
material information from a prosecutor.” Costello, 20 F. Supp. 3d at 415; see also LlerandoPhipps v. City of New York, 390 F. Supp. 2d 372, 383 (S.D.N.Y. 2005) (“[A]n arresting officer
may be held liable for malicious prosecution [if he] creates false information likely to influence a
jury’s decision and forwards that information to prosecutors.” (citation and quotation marks
omitted)); Webster v. City of New York, 333 F. Supp. 2d 184, 198–99 (S.D.N.Y. 2004) (noting
that police officers could be held liable for malicious prosecution if they provided false
information to prosecutors).
The Medical Center Defendants do not dispute that they took part in the initiation of the
criminal proceeding (see Dkt. 55), whereas the City Defendants contend that Plaintiff’s
Amended Complaint only alleges active participation in the prosecution by Det. Degnan (see
Dkt. 59 at 9 n.10). The Court finds that the Amended Complaint contains sufficient factual
25

allegations to support a plausible inference that not only Det. Degnan, but also Dr. Landi,
initiated Li’s prosecution. 21 (See Am. Compl. ¶ 149.)
Plaintiff has adequately alleged that Det. Degnan initiated the prosecution, because the
Amended Complaint alleges that Det. Degnan swore to the criminal complaint. (See Am.
Compl. ¶ 145.) Plaintiff has also alleged that Dr. Landi “swore under oath in the criminal
complaint against plaintiff” and made assertions that were “false, misleading, and perjurious, and
entirely unsupported and unsupportable by any medical science or clinical or forensic evidence.”
(Am. Compl. ¶¶ 149–150.) See Cameron, 598 F.3d at 63 (noting that a police officer can initiate
prosecution by filing charges or other accusatory instruments). The Amended Complaint also
alleges that Dr. Landi “played an active role in the prosecution of Ying Li. She provided advice
and encouragement, that went well beyond her role, and into ancillary and forensic aspects of
motive, culpability, and the veracity of Ying Li.” (Am. Compl. ¶ 155.)
These City Defendants “cannot hide behind the decision of the DA to prosecute” when
they, according to Plaintiff’s allegations, provided the prosecutor with false information. Blake
v. Race, 487 F. Supp. 2d 187, 211 (E.D.N.Y. 2007) (rejecting the defendants’ argument that the
District Attorney, not the officers, initiated the prosecution); Zahrey v. Coffey (“Coffey”), 221
21

The Court notes that Plaintiff’s opposition did little to assist the Court in resolving this
issue. In her response, Plaintiff directed the Court to thirty paragraphs in the Amended
Complaint, many of which did not allege facts related to whether the City Defendants initiated
Plaintiff’s prosecution. (See Dkt. 61 at 10 (citing to paragraphs 168-198 of the Amended
Complaint).) For example, paragraph 179 states, “As plaintiff did not commit or aid/abet in the
any of the offenses with which she was charged, she pleaded not guilty to all counts, and bail
was set at $250,000.” (Am. Compl. ¶ 179.) This plainly has nothing to do with whether Plaintiff
has adequately alleged, for each of the City Defendants, participation in the prosecution. Plaintiff
is reminded that “[w]hile the trial court has discretion to conduct an assiduous review of the
record in an effort to weigh the propriety of granting a summary judgment motion, it is not
required to consider what the parties fail to point out.” Monahan v. New York City Dep’t of
Corrections, 214 F.3d 275, 292 (2d Cir. 2000) (quotations and citations omitted); see also 24/7
Records, Inc. v. Sony Music Entertainment, Inc., 429 F.3d 39, 46 (2d Cir. 2005).
26

F.3d 342, 352 (2d Cir. 2000) (“[I]t is not readily apparent why the chain of causation should be
considered broken where the initial wrongdoer can reasonably foresee that his misconduct will
contribute to an ‘independent’ decision that results in a deprivation of liberty.”) Therefore, the
Court finds that Plaintiff has adequately alleged that Det. Degnan and Dr. Landi participated in
the initiation of Plaintiff’s criminal proceeding.
By contrast, the Amended Complaint contains no factual allegations to support the
inference that Dets. Moser, Phelan, and Heffernan, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt.
Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan played an active role in
initiating Plaintiff’s prosecution. Therefore, as to these Defendants, the malicious prosecution
claim is dismissed. See, e.g., Jean-Laurent v. Bowman, No. 12–cv–2954, 2014 WL 4662221, at
* 6 (E.D.N.Y. Jul. 7, 2014) (finding that plaintiff failed to demonstrate that some of the
defendants played an active role in commencing the criminal prosecution against plaintiff, even
though plaintiff alleged that they “authorized, approved and/or participated” in plaintiff’s
criminal prosecution, because the defendants neither swore out a criminal complaint or
corroborating affidavit, nor presented any information to the prosecutor).
Favorable Termination
The second element of a malicious prosecution claim is termination of the criminal
proceeding in the plaintiff’s favor.

The Medical Center Defendants argue that Plaintiff’s

criminal proceeding did not terminate in her favor because (i) the prosecution was not terminated
on its merits, (ii) Plaintiff does not set forth factual allegations to support an inference that the
charges were dropped because she was innocent, and (iii) a dismissal “in the interest of justice”
does not constitute a favorable termination. (See Dkt. 56 at 5–8.) The Court disagrees, and finds

27

that Plaintiff has sufficiently alleged a favorable termination for purposes of her malicious
prosecution claim. 22
The Court looks to New York law to determine whether Plaintiff has sufficiently alleged
a favorable termination of her Queens County criminal proceeding. Neal v. Fitzpatrick, 250 F.
Supp. 2d 153, 154 (E.D.N.Y. 2003) (citing Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir. 1992)).
“Under New York law, there are two ways to establish [a] favorable termination: ‘(1) an
adjudication of the merits by the tribunal in the prior action,’ or (2) ‘an act of withdrawal or
abandonment on the part of the party prosecuting the prior action.’” Liberty Synergistics, Inc. v.
Microflo Ltd., 50 F. Supp. 3d 267 (E.D.N.Y. 2014) (quoting Morgan v. Nassau County, No. 03–
cv–5109, 2009 WL 2882823, at *8 (E.D.N.Y. Sept. 2, 2009) and citing Castro v. East End
Plastic, Reconstructive & Hand Surgery, P.C., 850 N.Y.S.2d 483, 485 (2008)); Castro, 850
N.Y.S.2d at 485 (“The favorable termination element must be established by evidence that ‘the
court passed on the merits of the charge or claim . . . under circumstances as to show . . .
nonliability,’ or evidence that the action was abandoned under circumstances ‘which fairly imply
the plaintiff’s innocence.’” (citation and internal quotation marks omitted). Thus, the fact that a
criminal prosecution never reached the merits does not preclude a plaintiff from alleging a
favorable termination.

See Castro, 850 N.Y.S.2d at 485; see also Norton v. Town of

Brookhaven, 47 F. Supp. 3d 152, 158 (E.D.N.Y. 2014) (noting, on reconsideration, “the fact that
the underlying prosecutions against the Plaintiff [were dismissed pursuant to statutes that] did
not reach the merits does not, without more, render the termination of the prosecution
inconsistent with innocence”); Verboys v. Town of Ramapo, 785 N.Y.S.2d 496, 497 (App. Div.
22

At this stage, the Court need not decide whether the termination of Plaintiff’s criminal
case was, in fact, a favorable one; rather, the only issue before the Court is whether Plaintiff has
sufficiently alleged a favorable termination. See Bacquie v. City of New York, No. 99 CIV10951,
2000 WL 1051904, at *3 (S.D.N.Y. Jul. 31, 2000).
28

2004) (holding that favorable termination can be shown by “the formal abandonment of the
proceedings”).
Furthermore, “New York law does not require a malicious prosecution plaintiff to prove
her innocence, or even that the termination of the criminal proceeding was indicative of
innocence.” Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir. 2004) (citing Smith-Hunter v.
Harvey, 95 N.Y.2d 191, 195–96 (2000)). “[A]ny final termination of a criminal proceeding in
favor of the accused, such that the proceeding cannot be brought again, qualifies as a favorable
termination for purposes of a malicious prosecution action,” Smith-Hunter, 95 N.Y.2d at 195–96,
unless the disposition was “inconsistent with the innocence of the accused,” Cantalino v.
Danner, 96 N.Y.2d 391, 396 (2001). See Rothstein, 373 F.3d at 275 (discussing New York Law
regarding the favorable termination element and citing to both Smith-Hunter, 95 N.Y.2d 191, and
Cantalino, 96 N.Y.2d 391); see also Stampf v. Long Island R. Co., 761 F.3d 192, 201 (2d Cir.
2014) (applying Smith-Hunter, 95 N.Y.2d 191 (2000)).
While New York and federal courts in this circuit have consistently applied the Cantalino
“not inconsistent with innocence” standard in deciding whether a termination is favorable, there
is open disagreement and divergence in this circuit on the constituent issue of whether the
termination of a criminal case “in the interest of justice” is a favorable termination, i.e., a
termination that is not inconsistent with innocence. 23 See Gem Financial Serv., Inc. v. City of
New York, No. 13–cv–1686, 2014 WL 1010408, at *10 n.10.

(E.D.N.Y. Mar. 17, 2014)

(recognizing “an apparent fissure amongst Second Circuit opinions with respect to the proper
23

The Medical Center Defendants cite Singer, 63 F.3d 110, in support of their argument.
(Dkt. 56 at 5.) However, as discussed below, because the New York Court of Appeals decision
in Cantalino largely negates this aspect of Singer, the Court does not address Singer. In any
event, the Medical Center Defendants need not rely on Singer, given the numerous federal court
decisions, including one by the Second Circuit, reaching the same conclusion as Singer.
29

standard for assessing a favorable termination” where an “interest of justice” dismissal is
involved). On the one hand, the New York Court of Appeals in 2001 held in Catalino that there
is no “per se rule that a dismissal in the interest of justice can never constitute a favorable
termination.” 96 N.Y.2d at 396. 24 Nonetheless, in 2009, the Second Circuit in a summary order
in Lynch v. Suffolk County Police Dep’t, Inc. found, “as a matter of law”, that a dismissal in the
interest of justice could not “provide the favorable termination required as the basis for a claim
of malicious prosecution”, because such a dismissal was “neither an acquittal of the charges nor
any determination of the merits[, and left] the question of guilt or innocence unanswered”. 348
F. App’x 672, 675 (2d Cir. 2009) (citing Hygh, 961 F.2d 359). Even after the Lynch decision,
district courts in this circuit have continued to apply Catalino to find that an “interest of justice”
termination can be deemed favorable in a malicious prosecution action. See Norton, 47 F. Supp.
3d at 106 (collecting district court cases that adopted Cantalino even after Lynch); Guzman v.
United States, No. 11–CV–5834, 2013 WL 543343, at *8 (S.D.N.Y. Feb. 14, 2013) (collecting
cases decided by the Southern District of New York that applied Cantalino even after the Second
Circuit decided Lynch); see, e.g., Genovese v. Cnty. of Suffolk, 128 F. Supp. 3d 661, 672 n.3
(E.D.N.Y. 2015) (declining to apply the standard set forth in Lynch, noting that it is a nonbinding summary order failing to cite to Cantalino, which had already been decided at the time
Lynch was decided). Other courts, however, have followed Lynch in dismissing malicious
prosecution claims involving “interest of justice” dismissals. See Norton, 47 F. Supp. 3d at 160–
161 (citing Tribie v. Parwanta, No. 10 Civ. 6016, 2012 WL 246619, at *8 (S.D.N.Y. Jan. 26,
2012) and Paulin v. Figlia, 916 F. Supp. 2d 524, 533 (S.D.N.Y. 2013)). However, as discussed
24

Significantly, reiterating part of its holding in Smith-Hunter, the Court of Appeals in
Cantolino stated, “[t]o be sure, there are circumstances where a dismissal in the interest of justice
is inconsistent with innocence because it represents ‘mercy requested or accepted by the
accused’”. 96 N.Y.2d at 396 (quoting Smith-Hunter, 95 N.Y.2d at 197).
30

below, notwithstanding the Medical Center Defendants’ argument, the Court need not resolve
this issue in order to determine whether Plaintiff has sufficiently alleged a favorable termination.
The Court now turns to the Medical Center Defendants’ three arguments. First, the
argument that Plaintiff cannot show a favorable termination because her criminal case was not
terminated on the merits is plainly unavailing. As discussed, there are “two ways to establish a
favorable termination”, one of which is the “act of withdrawal or abandonment” of the case by
the prosecution, which is what Plaintiff alleges happened here.

(Am. Comp. ¶ 201

(“Contemporaneously with the commencement of Hang Bin’s trial, all charges against plaintiff
were dismissed.”).)
Second, the argument that Plaintiff has not sufficiently alleged malicious prosecution
because she has not alleged facts from which it can be inferred that the criminal charges against
her were dropped because she was innocent similarly lacks merit. As the New York Court of
Appeals made clear in Smith-Hunter, a claim of malicious prosecution does not require that the
plaintiff prove her innocence of the charges that were dropped, or even that the termination of
her prosecution was indicative of innocence. 95 N.Y.2d at 195–96. 25 Rather, all that is required

25

The Medical Center Defendants rely on decisions that define a favorable termination as
one that “involves the merits and indicates the accused’s innocence.” McFawn v. Kresler, 666
N.E.2d 1359, 1360 (1996); (see Dkt. 55 at 6–7) (citing Russell v. Smith, 68 F.2d 33, 36 (2d Cir.
1995); Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980), Fulton v. Robinson, 289
F.3d 188, 196 (2d Cir. 2002); Hershey v. Goldstein, 938 F. Supp.2d 491, 518 (S.D.N.Y. 2013)).
However, the Court does not find this authority persuasive in light of Smith-Hunter, which
implicitly rejected this position in favor of the principle that “a criminal proceeding is terminated
favorably to the accused when ‘there can be no further proceeding upon the complaint or
indictment, and no further prosecution of the alleged offense’”, recognizing only a few
exceptions to this rule. Smith-Hunter, 95 N.Y.2d at 195–96 (noting as exceptions termination
“inconsistent with innocence”; charges withdrawn pursuant to a voluntary compromise with the
accused; and charges being dismissed out of mercy requested or accepted by the accused (citing
Robbins v. Robbins, 133 N.Y. 597, 599 (1892))). Notably, Smith-Hunter also distinguished
McFawn on the basis that it involved a dismissal without prejudice, which also distinguishes it
from the instant case. Id. at 197 (noting that McFawn was “[f]ar from controlling in the case at
31

after Smith-Hunter and Cantalino is that the termination of Plaintiff’s case was “final,” e.g., that
the charges were dismissed with prejudice, and that the termination did not fall into one of the
exceptions recognized by Catalino, e.g., that the disposition of Plaintiff’s criminal case was
“inconsistent with innocence”.

Cantolino, 96 N.Y.2d at 396.

Thus, the absence of any

allegations demonstrating that the termination of Plaintiff’s prosecution is indicative of her
innocence of the charges that were dropped does not preclude her malicious prosecution claim.
Third, the Medical Center Defendants argue that the termination of Plaintiff’s prosecution
was an “interest of justice” dismissal and therefore does not constitute a favorable termination.
However, the Court cannot make that determination at this stage, because it cannot determine the
reason or reasons for the District Attorney’s dismissal of the charges against Plaintiff. The
Amended Complaint simply alleges that, “Defendants . . . caused plaintiff to be prosecuted with
malice and without probable cause—a prosecution that terminated in plaintiff’s favor . . . .” 26
(Am. Compl. ¶ 212 (emphasis added).)

Although Plaintiff does not allege the specific

disposition of the case, the Court finds she has sufficiently alleged favorable termination to

hand” and “simply held that a plaintiff in a malicious prosecution action must show, as a
threshold matter, that the criminal proceeding was finally terminated.” (emphasis in original).
Though the Court did not factor this into its decision, at the status conference in which
the charges against Plaintiff were dismissed, Plaintiff explicitly refused any conditions, i.e., any
compromise (Dkt. 63–6, Ex. F at 3:22–24; see Smith-Hunter, 95 N.Y.2d at 196 (“noting that an
action terminated by settlement cannot sustain a malicious prosecution claim”).)
26

Even if the Court were to consider the City Defendants’ Exhibit B, the dismissal
hearing transcript, and draws all inferences in favor of Plaintiff—as it must at this stage—the
transcript indicates that dismissal of the criminal prosecution was with prejudice. (Ex. F, Dkt.
63–6 at 7:8–9.) While the transcript also includes the prosecution’s explanation for why it is
dismissing the charges (see Ex. F, Dkt. 63–6 at 5:29–6:18), it is inappropriate for the Court to
interpret articulated reasons given by the prosecutor as the real motivation for the government’s
dismissal of the case. See Liang v. City of New York, 2013 WL 5366394, at *5; see also Nielsen,
746 F.3d at 62 (noting that the court must draw all reasonable inferences in favor of the
plaintiff).
32

survive a motion to dismiss. See Rivers v. Towers, Perrin, Foster & Crosby Inc., No. 07–cv–
5441, 2009 WL 817852, at *4 (E.D.N.Y. Mar. 27, 2009) (“There is nothing implausible about a
bare allegation that the prosecution terminated in plaintiff’s favor and hence there is no need to
amplify that allegation by pleading specific facts.”); see also Norton, 47 F. Supp. 3d at 161
(reinstating plaintiff’s malicious prosecution claim on reconsideration after concluding that the
court cannot conclude that the dismissal of the charges was inconsistent with plaintiff’s
innocence); McLennon v. New York City, No. 13–cv–128, 2015 WL 1475819, at *6 n.16
(E.D.N.Y. Mar. 31, 2015); Peros v. Castano, No. CV–01–4457, 2002 WL 603042, at *4
(E.D.N.Y. Mar. 22, 2002) (stating, “Although there apparently is some uncertainty as to the
precise basis of the state court’s dismissal of the criminal charges, I cannot say at this point that
there is no set of facts on which plaintiff could satisfy the favorable termination element of his
claim,” when plaintiff’s Complaint alleged “[t]hat after the Plaintiff was arraigned on [ ] charges
[and] appeared in Court . . . the case was finally disposed of by the Court granting the Motion to
Dismiss.” (citation omitted)); accord Tommy Hilfiger Lic., Inc. v. Bradlees, Inc., No. 99–CIV–
4677, 2002 WL 737477, at *6 (S.D.N.Y. Apr. 25, 2002) (finding that the defendant sufficiently
alleged favorable termination to withstand a motion to dismiss because the basis for the dismissal
of the criminal action was unclear at that particular stage of litigation) (citation omitted); Bacquie
v. City of New York, No. 99–CIV–10951, 2000 WL 1051904, at *3 (denying defendant’s motion
to dismiss plaintiffs’ malicious prosecution claim where the plaintiffs alleged that the charges
against them were dismissed by the district attorney’s motion and where, at the early stage in the
litigation, the Court could not tell why the charges had been dropped); but see Campbell v.
Giuliani, No. 99–cv–2603, 2000 WL 194815, at *4 (E.D.N.Y. Feb. 16, 2000) (“I find that the
bare allegation of dismissal, absent any explanation of the basis on which the case was

33

dismissed, is insufficient to meet the favorable termination requirement.”); Weaver v.
Warrington, No. 14–cv–7097, 2015 WL 4645298, at *5 (E.D.N.Y. Aug. 4, 2015) (directing
plaintiff to amend the complaint alleging additional facts that make clear whether the dismissal
was under circumstances not inconsistent with plaintiff’s innocence). It is important to note that
while the Court has taken judicial notice of the criminal court records submitted by Plaintiff and
the City Defendants, including the transcript of the conference at which Plaintiff’s case was
dismissed, the Court has only considered those documents to establish the date and fact of the
dismissal, but not for the truth of statements made by ADA Bishop at the conference as to why
Plaintiff’s case was being dismissed. See Global Network Commc’ns, Inc., 458 F.3d at 157 (“A
court may take judicial notice of a document filed in another court not for the truth of the matters
asserted in the other litigation, but rather to establish the fact of such litigation and related
filings.”).
Accordingly, the Court finds that Plaintiff has adequately alleged a favorable termination
of her criminal proceedings.
Probable Cause
The Medical Center Defendants also contend that Plaintiff’s malicious prosecution claim
must be dismissed because there was probable cause. (Dkt. 55 at 8.) Specifically, they assert
that the Amended Complaint’s factual allegations regarding Annie’s condition when she arrived
at FHMC and her subsequent medical test results are sufficient to establish the existence of
probable cause at the time criminal proceedings were initiated against Plaintiff. (Dkt. 55 at 8)
They also argue that there is a presumption of probable cause unless the indictment was procured
through improper means. (Dkt. 55 at 9.) For the reasons explained below, the Court finds that
Plaintiff has rebutted the presumption of probable cause, and that the facts alleged in the

34

Amended Complaint support a plausible inference that there was no probable cause for
Plaintiff’s prosecution.
As an initial matter, the Court notes that probable cause for malicious prosecution is
different from probable cause for false arrest. See Posr v. Court Officer Shield No. 207, 180 F.3d
409, 417 (2d Cir. 1999) (“The defendants seem to conflate probable cause to arrest with probable
cause to believe that [the plaintiff] could be successfully prosecuted. Only the latter kind of
probable cause is at issue with respect to the malicious prosecution claim . . . .”). For a malicious
prosecution claim, probable cause to prosecute consists of “facts and circumstances [that] would
lead a reasonably prudent person to believe the plaintiff guilty.” Boyd v. City of New York, 336
F.3d 72, 76 (2d Cir. 2003) (citing Colon v. City of New York, 60 N.Y.2d 78, 82, 455 N.E.2d 1248
(N.Y. 1983)). Probable cause to prosecute is evaluated “in light of the facts known or reasonably
believed at the time the prosecution was initiated, as opposed to at the time of arrest.”
Drummond v. Castro, 522 F. Supp. 2d 677, 677–78 (S.D.N.Y. 2007) (citations and quotation
marks omitted).
A grand jury indictment “gives rise to a presumption that probable cause exists” and
thereby defeats a claim for malicious prosecution. Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir.
2016) (quoting McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006)). “If plaintiff is to succeed
in his malicious prosecution action after he has been indicted, he must establish that the
indictment was produced by fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.” McClellan, 439 F.3d at 145 (quoting Colon, 60 N.Y.2d at 83). A
plaintiff may demonstrate fraud or perjury through “evidence establishing that the [ ] witnesses
have not made a complete and full statement of facts either to the Grand Jury or to the District
Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence

35

or otherwise acted in bad faith.” Rothstein, 373 F.3d at 283 (quoting Colon, 60 N.Y.2d at 82–
93).
1.

Rebutting the Presumption of Probable Cause as to the City Defendants

Plaintiff alleges that the indictment against her was procured by bad faith on the part of
the City Defendants. Plaintiff alleges that “the Officer Defendants failed to obtain or disclose
evidence inconsistent with plaintiff’s guilt, did not document or inform the district attorney’s
office of exculpatory evidence, falsely reported facts in reports and search warrant affidavits, and
fabricated oral statements of witnesses. Officers sought to strengthen their case against plaintiff
in order to avoid acquittal, leading them to falsify and omit information in their reports and
representations to the district attorney’s office.” (Am. Compl. ¶ 178; see also id. ¶ 181.) More
specifically, Plaintiff alleges that “it was apparent from medical evidence that [she] was
innocent.” (Am. Compl. ¶ 201.) Plaintiff also alleges that Dr. Landi “enthusiastically and with
commitment” sought the Lis’ prosecution and conviction “despite the lack of any evidence
connecting them with any crime whatsoever.” (Am. Compl. ¶ 171.) The Amended Complaint
further alleges that Dr. Landi misrepresented that the medical evidence conclusively showed
Plaintiff’s guilt. (Am. Compl. ¶ 208.)
Taking these allegations as true and given the circumstantial nature of the case against
Plaintiff, which, in turn, rested almost entirely on Dr. Landi’s and Dr. Kupferman’s medical
conclusions, the Court finds that these allegations are sufficient to rebut the presumption of
probable cause created by the grand jury indictment. See Anilao v. Spota, 774 F. Supp. 2d 457,
494 (E.D.N.Y. 2011) (denying defendant’s motion to dismiss finding that plaintiff sufficiently
overcame the presumption of probable cause by alleging that the grand jury indictment was
based on falsified evidence and testimony in spite of defendant’s knowledge of significant
exculpatory evidence, and that the defendants agreed to present false evidence to the grand jury);
36

McLennon, 2015 WL 1475819, at *8 (finding sufficient allegations similar to Plaintiff’s
allegations about Defendants procuring indictment in bad faith); see also Brandon v. City of New
York, 705 F. Supp. 2d 261, 273–74 (S.D.N.Y. 2010) (denying summary judgment to defendant
with respect to malicious prosecution claim where jury could reasonably find that the indictment
was secured through bad faith or perjury).
Accordingly, the Court finds that Plaintiff has sufficiently rebutted the presumption of
probable cause.
2.

Rebutting the Presumption of Probable Cause Against the Medical Center
Defendants

Plaintiff also sufficiently alleges that the indictments were procured in bad faith by the
Medical Center Defendants.

For example, Plaintiff alleges that “Defendant FHMC and

Kupferman made no efforts to seek a diagnosis other than SBS.” 27 (Am. Compl. ¶ 122.) This
claim is analogous to an allegation that a police officer failed to obtain evidence inconsistent
with a plaintiff’s guilt, which has been considered sufficient to allege that an indictment was
procured in bad faith. See McLennon, 2015 WL 1475819, at *8 (finding bad faith sufficiently
alleged where officer defendants accused of, inter alia, failing to obtain or disclose evidence
inconsistent with plaintiff’s guilt and not informing the district attorney’s office of exculpatory
evidence).
While the Court acknowledges that a grand jury witness is entitled to absolute immunity
in Section 1983 actions, Rehberg v. Paulk, 566 U.S. 356 (2012), the Second Circuit’s decision in
Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015), provides a clarification of this principle that is
27

The Complaint also alleges that “Dr. Kupferman testified to the forensic interrogation
she conducted with Ying Li . . . [and] deliberately testif[ied] falsely under oath that ‘If you read
any book, it is a classical case of shaken baby syndrome.’ Defendant Kupferman knew that these
statements were false and misleading and contrary to all valid and reliable medical evidence.”
(Am. Compl. ¶ 160.)
37

applicable to Plaintiff’s malicious prosecution claim against Dr. Kupferman. In Coggins, the
plaintiff was arrested and charged with various felonies based on allegations made by two
officers in police paperwork and also verbally to the grand jury. 776 F.3d 108. The Second
Circuit affirmed the district court’s denial of absolute immunity to one of the police officers
because the plaintiff’s Section 1983 claims against that officer were based on alleged misconduct
“prior to and independent of [the police officer’s] perjurious grand jury appearance.” Id. at 113
(“The fact that [the police officer’s] grand jury testimony paralleled information he gave in other
contexts does not mean that [plaintiff’s] malicious prosecution claim was ‘based on’ [the
officer’s] grand jury testimony[;] . . . [thus,] the district court properly found that absolute
immunity is inappropriate.”) Similarly, here, Plaintiff alleges that, separate and apart from Dr.
Kupferman’s grand jury testimony, the Medical Center Defendants, including Dr. Kupferman,
diagnosed Annie with SBS in bad faith and provided false information about the cause of
Annie’s death to the prosecutor. (See Am. Compl. ¶¶ 122, 150-52.) 28 Therefore, even assuming
that Plaintiff cannot rebut the presumption of probable cause based on Dr. Kupferman’s grand
jury testimony alone, Plaintiff has done so based on other allegedly wrongful acts by Dr.
Kupferman. Accordingly, the Court finds that Plaintiff has rebutted the presumption of probable
cause.

28

In her Amended Complaint, Plaintiff alleges that despite Annie’s “lab results . . .
consistent with metabolic bone disease[, an alternative explanation for Annie’s injuries,] Dr.
Kupferman made no effort to seek a diagnosis other than SBS.” (Am. Compl. ¶ 122.) Plaintiff
also alleges that Dr. Landi falsely “swore under oath in the criminal complaint” as to Annie’s
death and that her opinion was “largely based on the evidence” presented by Dr. Kupferman.
(Id. ¶¶ 150-52.) From this, the Court can reasonably infer that Dr. Kupferman also provided
false information that eventually was relayed to the prosecutor.
38

3.

Amended Complaint Sufficiently Alleges Lack of Probable Cause to
Prosecute

For the same reasons just discussed, the Court finds that the allegations in the Amended
Complaint are sufficient to create a plausible inference that there was no probable cause to
prosecute Plaintiff at the time she was indicted. The case against Plaintiff was almost entirely
circumstantial and depended upon the accuracy of the Medical Center Defendants’ determination
that SBS and the failure to obtain prompt medical attention caused Annie’s death. Plaintiff’s
allegations that both the Medical Center Defendants and the City Defendants failed to obtain
evidence that would have contradicted these findings—i.e., that Annie suffered from
osteogenesis imperfecta, and that Annie’s brain damage was so extensive that prompter medical
intervention would not have saved her life—and the resulting communication of false or
incomplete information to the prosecutors support a plausible inference that there was no
probable cause to prosecute when Plaintiff was indicted.
Malice
To plead a malicious prosecution claim, Plaintiff must also allege malice for each of the
Defendants. Manganiello, 612 F.3d at 160–61. “[M]alice may be shown by proving that the
prosecution complained of was undertaken from improper or wrongful motives, or in reckless
disregard of the rights of the plaintiff.” Id. at 163; see also TADCO Const. Corp. v. Dormitory
Auth. of State of New York, 700 F. Supp. 2d 253, 271 (E.D.N.Y.2010) (“Actual malice requires
pleading facts that show the defendant ‘commenced the prior criminal proceeding due to a wrong
or improper motive, something other than a desire to see the ends of justice served.’” (citation
and quotation marks omitted)); Manbeck v. Micka, 640 F.Supp.2d 351, 377 (S.D.N.Y.2009)
(“Malice in this context does not have to be actual spite or hatred.” (citation, internal quotation
marks, and alteration omitted)); Newton v. City of New York, 566 F. Supp. 2d 256, 273 (S.D.N.Y.
39

2008) (Malice is “a wrong or improper motive[.]” (citations and quotation marks omitted)). “[A]
lack of probable cause generally creates an inference of malice.” Manganiello, 612 F.3d at 163
(citation and quotation marks omitted) (emphasis added); see also Lowth v. Town of
Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (“In most cases, the lack of probable cause—
while not dispositive—‘tends to show that the accuser did not believe in the guilt of the accused,
and malice may be inferred from the lack of probable cause.’” (quoting Conkey v. State, 427
N.Y.S.2d 330, 332 (App. Div. 1980))).
1.

The City Defendants’ Malice

Drawing all inferences in favor of Plaintiff, the Court finds that Plaintiff has adequately
pled malice only for Det. Degnan and Dr. Landi. (Am. Compl. ¶ 145 (alleging that Degnan
signed the criminal complaint knowing that its content was false and fabricated); see also Am.
Compl. ¶ 150 (alleging that Dr. Landi swore under oath in the criminal complaint and made a
statement that was false, perjurious, and entirely unsupported by any medical science or clinical
or forensic evidence).) Plaintiff incorrectly argues that she has “plainly alleged malice” for all
Defendants and directs the Court to Paragraph 215 of the Complaint. However, that paragraph is
conclusory and is one of the numerous instances where Plaintiff resorts to “group pleading”
against all the Defendants. 29 While Paragraph 215 properly alleges an improper motive for her
prosecution, i.e., to “us[e] plaintiff as a bargaining chip to pressure Hang Bin Li to plead guilty

29

Paragraph 215 states, “Defendants, acting in concert and within the scope of their
employment and authority, employed regularly issued process against plaintiff compelling the
performance or forbearance of prescribed acts. The purpose of activating the process was intent
to harm plaintiff without economic or social excuse or justification, and the defendants were
seeking a collateral advantage or corresponding detriment to plaintiff which was outside the
legitimate ends of the process. Such collateral objectives included, but were not limited to, using
plaintiff as a bargaining chip to pressure Hang Bin Li to plead guilty and covering up defendants’
illegal actions in knowingly arresting plaintiff without any legal basis, justification, or probable
cause.”
40

and covering up defendants’ illegal actions in knowingly arresting plaintiff without any legal
basis, justification, or probable cause[,]” it fails to allege any facts upon which to plausibly infer
that each of the City Defendants acted out of this improper motive, and instead categorically
states that they all had the same improper motive. Such conclusory allegations are not enough to
infer malice on the part of all City Defendants. The Court, therefore, finds that malice has been
sufficiently alleged only as to Det. Degnan and Dr. Landi.
2.

The Medical Center Defendants’ Malice

Notwithstanding Plaintiff’s failure to cite to the relevant paragraphs in the Complaint, the
Court finds that Plaintiff has adequately alleged malice on the part of the Medical Center
Defendants. Plaintiff alleges that Defendants “arrested and imprisoned [her] despite knowing
that there was no legal justification . . . in order to pressure plaintiff to testify against her husband
. . . or to put pressure on plaintiff’s husband to plead guilty.” (Am. Compl. ¶ 196.) More
specifically, Plaintiff alleges that “[d]espite lab results showing high alkaline phosphatase and
low calcium, consistent with metabolic bone disesase,” FHMC and Dr. Kupferman “made no
effort to seek a diagnosis other than SBS.” (Am. Compl. ¶ 122). Plaintiff also alleges, in
describing “the interrogations and searches of [the Lis’] home by three separate squads . . . [and]
forensic interrogations by several medical personnel at Flushing Hospital,” that she was treated
with “suspicion and unconcealed and unrestrained racism.” (Am. Compl. ¶ 114.) Drawing
inferences in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently
alleged malice on the part of the Medical Center Defendants, based on their motives in
concealing exculpatory medical evidence to enable the prosecutor’s use of Plaintiff as a

41

“bargaining chip” against Plaintiff’s husband 30 and conducting racially biased “forensic
interrogations” of her.
*

*

*

Accordingly, the Medical Defendants’ motion to dismiss the malicious prosecution claim
is denied in its entirety, and the City Defendants’ motion to dismiss Plaintiff’s malicious
prosecution claim is denied as to Det. Degnan and Dr. Landi, but is granted as to all other City
Defendants. 31
VI.

ABUSE OF PROCESS
Plaintiff also asserts a claim of abuse of process under Section 1983 against the City

Defendants. 32 As with malicious prosecution, the Court looks to State law for the elements of a
Section 1983 abuse of process claim. Mangino v. Incorporated Village of Patchogue, 808 F.3d
951, 958 n.5 (2d Cir. 2015) (citing Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) and Savino v.
City of New York, 331 F.3d 63, 76–77 (2d Cir. 2003)). Under New York law, “a malicious
abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to
compel performance or forbearance of some act (2) with the intent to do harm without excuse of
justification and (3) in order to obtain a collateral objective that is outside the legitimate ends of
the process.” Savino, 331 F.3d at 76 (quoting Cook, 41 F.3d at 80); Hoffman v. Town of
30

While Plaintiff may face a steep challenge in ultimately proving that the Medical
Center Defendants colluded with the City Defendants to the extent of sharing the alleged goal of
using Plaintiff as leverage against her husband, at this stage, the Court finds that she has
sufficiently alleged facts to support a plausible inference of such a coordinated effort.
31

The Court discusses infra Defendants’ claims of immunity with respect to all claims.
In sum, the Courts finds that: (1) ADA Bishop is entitled to absolute immunity from all claims;
(2) the Officer Defendants and Dr. Landi are not entitled to qualified immunity at this juncture;
and (3) Dr. Kupferman is not entitled to statutory immunity. (See infra at Section XIII.)
32

Plaintiff withdrew her malicious abuse of process claim against the Medical Center
Defendants. (See 1/7/2016 Minute Entry.)
42

Southampton, 523 F. App’x 770, 771 (2d Cir. 2013) (summary order) (citing Savino, 331 F.3d
63). In the context of an abuse of process claim, “legal process means that a court issued the
process, and the plaintiff will be penalized if he violates it.” Cook, 41 F.3d at 80 (quoting
Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup. Ct. 1942)). So, for example, an arrest executed
by the officers for a “‘collateral objective outside the legitimate ends of the process’, satisfies the
first element of an abuse of process claim.” Crockett v. City of New York, No. 11–CV–4378,
2015 WL 5719737, at *10 (E.D.N.Y. Sept. 29, 2015) (citation and quotation marks omitted); see
also Cook, 41 F.3d at 80 (finding, with respect to abuse of process claim, that New York State
Troopers who stopped and arrested plaintiff “clearly employed criminal process against
[plaintiff] by having him arraigned on charges” that caused him to be held in custody). Notably,
in TADCO Const. Corp., the court found that allegations that defendants “improperly contributed
to [plaintiff’s] arrest, but not that they took any further actions in his prosecution” were sufficient
to withstand a motion to dismiss an abuse of process claim. 700 F. Supp. 2d at 272 (recognizing
“split of opinion” on whether mere act of issuing process is sufficient for first element of
malicious abuse of process claim).
“The crux of a malicious abuse of process claim is the collateral objective element.”
Kraft v. City of New York, 696 F. Supp. 2d 403, 416 (S.D.N.Y. 2010), aff’d, 441 F. App’x 24 (2d
Cir. 2011). To plead a collateral objective, a plaintiff must plausibly plead not that defendant
acted with an “improper motive,” but rather an “improper purpose”: “[A plaintiff] must claim
that [the defendant] aimed to achieve a collateral purpose beyond or in addition to his criminal
prosecution.” Savino, 331 F.3d at 77.
The City Defendants argue that Plaintiff’s abuse of process claim should be dismissed
because the claim accrued at the time of Plaintiff’s arrest, and therefore the three-year statute of

43

limitations expired sometime around March 2011. (Dkt. 59 at 21.) The Court, however, finds
that because Plaintiff could not have discovered one of the two collateral objectives she alleges
until her prosecution was dismissed on January 12, 2013, her complaint in this action was timely
filed.
A claim for abuse of process accrues “at such a time as the criminal process is set in
motion—typically at arrest—against the plaintiff.

However, accrual cannot be appropriate

before such time as plaintiff is aware, or ought to be aware, of those facts providing a basis for
his claim.” Duamutef v. Morris, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997) (Sotomayor, J.)
(citing Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989) and Singleton, 643 F.2d at 192); see also
Hadid v. City of New York, No. 15–cv–19, 2015 WL 7734098, at *5 (E.D.N.Y. Nov. 30, 2015)
(citing Duamutef, 956 F. Supp at 118). Unlike the plaintiffs in other cases, Plaintiff in this case
does not even allege in the Complaint when she learned of her abuse of process claim. See, e.g.,
Duamutef, 956 F. Supp. at 1118–19 (finding that plaintiff’s abuse of process claim was not timebarred because “[a]ccording to the allegations in [plaintiff’s] Complaint, plaintiff was unaware
that he was being retaliated against until September 28, 1995, when he received an affidavit
detailing defendants’ intention to stifle his political activities through a criminal prosecution”);
Lukowski v. Cnty. of Seneca, No. 08–cv–6098, 2009 WL 467075, *8 (W.D.N.Y. Feb. 24, 2009)
(“The Complaint alleges that plaintiffs learned of the allegedly illegal conduct of the defendants
in ‘late March 2007, . . . after being contacted by Ontario County District Attorney Michael
Tantillo[.]’”)
Here, Plaintiff alleges that Defendants had two collateral objectives for prosecuting her:
(1) using her as a “bargaining chip” to get her husband to plead guilty; and (2) covering up their
illegal arrest of her. (See Am. Compl. ¶ 215). While these two objectives are sufficient to state

44

an abuse of process claim 33, the “cover-up” objective does not provide a basis for finding this
claim timely. As the Court has already found in connection with Plaintiff’s false arrest claim,
Plaintiff believed from the time of her arrest that her arrest was illegal, and thus Plaintiff was
aware of or should have been aware of the facts providing a basis for her claim, Duamutef, 956
F. Supp. at 118, that at least one purpose of her prosecution was to cover up this illegal arrest.
Were Plaintiff’s abuse of process claim based solely on this objective, that claim would have
accrued, as the City Defendants maintain, on the date of her arrest, and therefore would be timebarred.
However, Plaintiff also alleges that another purpose of her prosecution was to use her as
leverage to get her husband to plead guilty. As to that collateral objective, the Court finds that
Plaintiff was not reasonably aware of that possible objective until the dismissal of her case,
without any effort to pursue her prosecution during the four years of her pretrial incarceration
and only after her husband was convicted. It was only when Plaintiff’s case was dismissed,
without prosecution and following her husband’s conviction, did the objective of using Plaintiff
as a “bargaining chip” become clear. 34

Accordingly, the Court finds that Plaintiff’s abuse of

process claim did not accrue until the date on which her case was dismissed, January 2, 2013,
and thus her abuse of process is not time-barred. 35

33

See, e.g., Pinter v. City of New York, 976 F. Supp. 2d 539, 569 (S.D.N.Y. 2013)
(finding that there was a collateral objective for plaintiff’s arrest where the defendant “us[ed]
prostitution arrests for leverage in negotiations over nuisance abatement, without any apparent
interest in conviction”).
34

Although Plaintiff has not made this exact argument, the Court has the obligation at
this stage to draw all reasonable inferences in Plaintiff’s favor. See Nielsen, 746 F.3d at 62.
35

The Court also rules that, for the time being, her abuse of process claim can proceed on
the basis of both collateral objectives, even though, as previously discussed, a claim based solely
on the “cover-up” objective would have been time-barred. See Bacchus v. New York City Bd. of
Ed.137 F. Supp. 3d 214 (E.D.N.Y. 2015) (finding that “better course” was not to dismiss claim
45

The Court briefly addresses the City Defendants’ two other grounds for dismissing
Plaintiff’s abuse of process claim. First, they contend that neither police officers nor medical
examiners, such as Dr. Landi, have the authority to offer and/or to induce defendants to accept
plea deals and that, therefore, Plaintiff’s abuse of process claim against them fails “as a matter of
practicality.” (Dkt. 59 at 20.) However, the City Defendants do not cite any legal authority for
this contention, and it is unclear to the Court why the police officers and medical examiners
would not be liable if they worked with the prosecutors to pursue Plaintiff’s prosecution for the
purposes of getting Plaintiff’s husband to plead guilty or covering up an unlawful arrest.
Second, the City Defendants argue that, although “there is a split in the Second Circuit as to
whether probable cause is a defense against abuse of process claims”, the Court should follow
the line of cases finding probable cause to be a complete defense to this claim. (Dkt. 59 at 21
n.17.) The Court declines that invitation, and instead adheres to the view that “[t]he Second
Circuit has long recognized that probable cause is not a complete defense to malicious abuse of
process.” Goldring v. Zumo, No. 14–Civ–4861, 2015 WL 148451, at *5 (E.D.N.Y. Jan. 12,
2015).

In any event, as the Court has already found, in connection with Plaintiff’s malicious

prosecution claim, the Amended Complaint contains sufficient allegations from which the
absence of probable cause to prosecute Plaintiff can be reasonably inferred.
based on same evidence as surviving claims); Thibodeaux v. Travco Ins. Co., 13–CV–5599, 2014
WL 354656, at *2 (E.D.N.Y. Jan. 31, 2014) (“If one of a number of integrally related causes of
action have to be tried, it makes little sense to grant a motion to dismiss as to one or more of
them, as it may prove necessary to hold yet another trial in the event that it is determined on
appeal that the motion to dismiss was improperly granted.”).
However, to the extent that Plaintiff argues in her MOL (Dkt. 61) that another “collateral
motive . . . [for Plaintiff’s arrest was to obtain Hang Bin’s confession because] such confessions
are very valuable to promoting the City’s agenda in promoting the truth of SBS science,”
Plaintiff will not be permitted to pursue this as part of her abuse of process claim, since there is
nothing remotely related to this allegation in the Complaint, nor does Plaintiff cite to any
paragraph in the Complaint to support this newly proffered objective.
46

While the Court finds that Plaintiff has sufficiently and timely pled an abuse of process
claim, she has not adequately alleged that claim as to all City Defendants. Plaintiff, again,
indiscriminately group pleads her abuse of process claim against all Defendants. (See Am.
Compl. ¶¶ 215-217.) As with Plaintiff’s malicious prosecution claim, however, her abuse of
process claim is only properly pled as to Det. Degnan and Dr. Landi. These are the only City
Defendants as to whom Plaintiff has adequately pled involvement in the use of legal process, i.e.,
arresting and detaining Plaintiff on the basis of allegedly false or incomplete evidence, and thus
these are the only Defendants as to whom the pursuit of one or both of the alleged collateral
objectives could be plausibly inferred. Although the court in TADCO Const. Corp. suggested
that individuals who “improperly contributed” to the plaintiff’s arrest could be held liable for
malicious abuse of process, there, the defendants were alleged to have directly contributed to the
plaintiff’s arrest. Here, while Dets. Moser, Phelan, and Heffernan are alleged to have participated
in the investigation of Plaintiff’s case, there is nothing in the Amended Complaint from which to
infer that they participated in the actual legal process that was used against Plaintiff, i.e., her
arrest and detention. 36
Accordingly, Defendants’ motion to dismiss Plaintiff’s abuse of process claim is denied
as to Det. Degnan and Dr. Landi, and granted as to all other City Defendants.
VII.

FAILURE TO INTERVENE
The Amended Complaint asserts, as part of Plaintiff’s Section 1983 claim, that all

Defendants failed to intervene to prevent other Defendants from violating her constitutional
rights not to be subjected to false arrest, malicious prosecution, and abuse of process. Both

36

By contrast, as discussed infra, the involvement of these detectives in the investigation
is sufficient to state a claim against them for Section 1983 conspiracy, unreasonably prolonged
detention, and violating some of Plaintiff’s substantive due process rights.
47

groups of Defendants argue for dismissal of this claim on the grounds that Plaintiff’s claim is
based on conclusory allegations. The Court agrees. Moreover, the Court independently finds
these allegations irreconcilable with Plaintiff’s theory of direct participation by each Defendant.
“It is widely recognized that law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014)
(quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). “An officer who fails to
intercede is liable for the preventable harm caused by the actions of the other officers where that
officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen
has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a
law enforcement official.” Anderson, 17 F.3d at 557 (citations omitted). To establish a claim for
failure to intervene, a plaintiff must show (1) the officer’s failure “permitted fellow officers to
violate [plaintiff’s] clearly established statutory or constitutional rights,” and (2) it was
“objectively unreasonable for him to believe that his fellow officers’ conduct did not violate
those rights.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (citation and
quotation marks omitted). Additionally, Plaintiff must show that the officer had “a realistic
opportunity to intervene to prevent the harm from occurring” but failed to do so. See Cerbelli v.
City of New York, No. 99–CV–6846, 2008 WL 4449634, at *11 (E.D.N.Y. Oct. 1, 2008) (citation
and quotation marks omitted).
Plaintiff’s failure to intervene claim is dismissed as to all Defendants for two reasons. 37
First, Plaintiff’s allegations are merely conclusory. 38 Second, Plaintiff resorts to conclusory

37

In addition to the deficiencies the Court discusses here, the City Defendants also argue
that the failure to intervene claim is time-barred. (Dkt. 59 at 23.) Specifically, they argue that
“because the alleged constitutional violations were being committed ‘by other police officers,’
48

generalized allegations asserting her failure to intervene claim against every single Defendant
and refers to the numerous defendants collectively. Such conclusory and generalized allegations
do not give any of the Defendants “fair notice of what [Plaintiff’s] claim is and the grounds upon
which it rests.”

Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 212 (N.D.N.Y. 2008)

(quotation marks omitted); see Bouche v. City of Mount Vernon, No. 11–Civ–5246, 2012 WL
987592, at *7 (S.D.N.Y. Mar. 23, 2012) (dismissing the plaintiff’s failure to intervene claim
because the plaintiff “only refer[red] to the defendants in the collective, never identifying which
defendants were responsible for specific actions”); see also Clay v. Cnty. of Clinton, No. 8:10–
cv–00239, 2012 WL 4485952, at *14 (N.D.N.Y. Sep. 27, 2012) (granting motion for judgment
on the pleadings as to plaintiff’s failure to intervene claim because the plaintiff “fail[ed] to
distinguish which . . . Defendant was responsible for actually violating Plaintiff’s constitutional
rights and which, if any, Defendant failed to intervene to prevent such violations from
occurring”). As the district court explained in Hardy v. City of New York, No. 12–Civ–17, 2013

and such conduct necessarily would have taken place during or before plaintiff’s arrest in March
2008, the three-year statute of limitations has run.” (Id.) The Court finds this argument unclear
and unpersuasive. Plaintiff’s Complaint alleges constitutional violations that are not limited to
false arrest, and it is conceivable that her constitutional rights were violated after March 2008
since she was in prison—awaiting trial—for over four years. (Am. Compl. ¶¶ 234, 236.) In any
event, because Plaintiff’s claim fails to include sufficient factual allegations, the Court cannot
even determine whether the statute of limitations has expired as to virtually all of the Defendants.
The Court also finds Plaintiff’s response to the City Defendants’ argument deficient at best.
Plaintiff simply recites, in a footnote, the law that the statute of limitations for Section 1983
actions arising in New York is three years and that New York law determines the tolling of the
limitations period while federal law determines when the claim accrues. (Dkt. 61 at 21 n.35.)
This recitation of boilerplate law is in no way responsive or illuminating on the issue of whether
Plaintiff’s failure to intervene claim is time barred.
38

Plaintiff alleges that “[e]ach individual defendant had an affirmative duty to intervene
on behalf of plaintiff, whose constitutional rights were being violated in that defendant’s
presence by other police officers, but failed to intervene to prevent the unlawful conduct, despite
having had a realistic opportunity to do so, in violation of plaintiff’s right under the First, Fourth,
and Fourteenth Amendments to the United States Constitution.” (Am. Compl. ¶ 219.)
49

WL 5231459, at *4 (S.D.N.Y. Jul. 9, 2013), “restatement of the legal standard . . . does not
sufficiently allege constitutional violations in which the [defendants] might have intervened.
Where were the [defendants] in relation to Plaintiff and in relation to each other?

What

impermissible actions did they take? Which officers observed those actions? Plaintiff does not
say. Accordingly, he fails to nudge his failure to intervene claim from possible to plausible.”
Such a generalized pleading, which fails to differentiate between the Defendants, is
especially problematic where, as here, Plaintiff is also alleging that Defendants are all liable
under a theory of direct participation. 39 See Chepilko v. City of New York, No. 06–CV–5491,
2012 WL 398700, at *8 n.5 (E.D.N.Y. Feb. 6, 2012) (finding that if a defendant “may be liable
under a theory of direct participation, there is no claim against [that defendant] for failure to
intervene”); see also Buchy v. City of White Plains, No. 14–CV–1806, 2015 WL 8207492, *3
(S.D.N.Y. Dec. 7, 2015) (same) (citation omitted).

Plaintiff’s failure to specify which

Defendants participated directly in the unlawful conduct, as opposed to failed to intervene in it,
is fatal to her claim, even at this stage.
Accordingly, Defendants’ motion to dismiss with regard to Plaintiff’s failure to intervene
claim is granted as to all Defendants. 40

39

Indeed, Plaintiff names every Defendant in all but her Monell and malicious abuse of
process claims. (See Compl; see also Dkt. 61 at 21 (“Defendant Officers collectively caused
Plaintiff’s constitutional violations and each of those officers also can be found liable for failing
to intervene to prevent his fellow officers from committing those acts.” (citation omitted)).)
40

Given the deficient pleading of Plaintiff’s failure to intervene claim, the Court need not
address the Medical Center Defendants’ argument that, as a non-governmental hospital and a
medical expert who provided testimony and information to the prosecuting authority, they had no
affirmative duty to intervene to prevent the alleged false arrest, malicious prosecution, or abuse
of process. (See Dkt. 55 at 10.)
50

VIII. CONSPIRACY
Plaintiff asserts a Section 1983 conspiracy claim against all Defendants. (Am. Compl. ¶¶
221–223.) “[T]o survive a motion to dismiss on [a plaintiff’s] § 1983 conspiracy claim, [the
plaintiff] must allege (1) an agreement between a state actor and a private party; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal
causing damages.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002).
“[C]omplaints containing only conclusory, vague, or general allegations that the defendants have
engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly
dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific
instances of misconduct.” Id. (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.
1993)). To state a Section 1983 conspiracy claim against a private entity, “the complaint must
allege facts demonstrating that the private entity acted in concert with the state actor to commit
an unconstitutional act.” 41 Id. at 324 (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68
(2d Cir. 1992)). For the reasons stated below, the Court finds that Plaintiff has sufficiently pled a
claim of conspiracy against specific City Defendants and the Medical Center Defendants.
While Plaintiff’s pleading of her conspiracy claim is hardly robust, drawing all
reasonable inferences in her favor, the Court finds that Plaintiff has adequately pled this claim as
to Dets. Degnan, Moser, Heffernan, and Phelan, Dr. Landi, and Dr. Kupferman. The Complaint
provides factual allegations that these Defendants acted jointly. For example, Plaintiff alleges
that Det. Degnan was present at the autopsy of Annie that Dr. Landi performed (Am. Compl. ¶
129) and that “Defendant Degnan and Heffernan engaged in lengthy communications with
41

Given that the parties have not, at this stage, delved into the issue of whether the
Medical Center Defendants can be considered “joint actors” that can be held liable under Section
1983, the Court’s finding that Plaintiff has adequately pled her conspiracy claim is limited to
whether Plaintiff’s claim overcomes a 12(b)(6) motion.
51

FHMC staff, including Defendant Kupferman” (Am. Compl. ¶ 108). Plaintiff also alleged that
Dr. Kupferman joined Dets. Heffernan and Moser in screaming at her during an investigation
(Am. Compl. ¶ 115) and that Dr. Landi “made her determination largely based on the evidence
presented to her by” Dr. Kupferman and other City Defendants (Am. Compl. ¶ 152). Moreover,
Plaintiff alleges that Det. Phelan and Det. Degnan together interrogated the Lis, and participated
in the early stages of investigating Plaintiff’s criminal case. (See, e.g., Am. Compl. ¶¶ 102–104,
106, 110.)
Pointing to Plaintiff’s allegations in paragraphs 157 and 158 that Dr. Kupferman acted
“as a deputy of the NYPD and the Queens County D.A.’s office,” the Medical Center Defendants
argue that they are “legally incapable of conspiring” with the City Defendants under the intracorporate conspiracy doctrine. (See Dkt. 55 at 11–12.) Plaintiff responds that she has adequately
pled facts to support this claim 42 and that “[j]ust because one is alleged to be [sic] State Actor,
does not make them members of the NYPD, or break intro-corporate [sic] conspiracy.” (See
Dkt. 66 at 16–17.) In their reply, the Medical Center Defendants clarify that Plaintiff’s counsel
misconstrues the argument: “[T]he doctrine applies [not simply because Plaintiff alleged that Dr.
Kupferman was a state actor but] because plaintiff alleged that Kupferman ‘acted as a deputy of
the NYPD and the Queen County D.A.’s office[.]’” (Dkt. 56 at ECF 15.)
Under the intra-corporate conspiracy doctrine, “there is no conspiracy if the
conspiratorial conduct challenged is essentially a single act by a single corporation acting
exclusively through its own directors, officers, and employees, each acting within the scope of
42

Though making this argument, Plaintiff does not, in fact, provide adequate citation to
the Amended Complaint. For example, Plaintiff argues in her MOL that “Dr. Kupferman did not
begin her extensive investigation notes imbedded in the medical records until October 25, 2007,
two days after police were first notified of possible child abuse.” (Dkt. 66 at 16.) However, she
fails to provide relevant citation to the Amended Complaint to support this statement.
52

his employment.” Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (citation omitted).
While the Court must accept the factual allegations set forth in the complaint as true, it must also
draw all reasonable inferences in favor of the plaintiff. See Nielsen, 746 F.3d at 62. Here, the
Court infers from paragraphs 157 and 158 that Plaintiff is alleging—albeit in exaggerated
language—that Dr. Kupferman acted in concert with or “acted as a part of the team” that is the
NYPD and the Queens County D.A.’s Office, not that Dr. Kupferman was an actual “employee”
of the NYPD or District Attorney’s Office. Indeed, any inference that Dr. Kupferman actually
worked for those offices is belied by the Amended Complaint’s allegations that Dr. Kupferman
worked for FMHC. (Am. Compl. ¶ 108.) In Herrmann, the case on which the Medical Center
Defendants rely, there was no question that all defendants accused of conspiracy belonged to a
single corporation. See 576 F.2d 453, 459 (“Every one of the defendants . . . was either a trustee
or faculty member of the Brooklyn Law School[.]”) Therefore, at this stage of the proceedings,
the Court does not find it appropriate to dismiss Plaintiff’s conspiracy claim against Dr.
Kupferman based on the intra-corporate conspiracy doctrine.
*

*

*

Accordingly, the City Defendants’ motion to dismiss Plaintiff’s conspiracy claim is
denied as to Dets. Degnan, Moser, Heffernan, and Phelan, and Dr. Landi, but granted as to all
other City Defendants; the Medical Center Defendants’ motion to dismiss Plaintiff’s Section
1983 conspiracy claim is denied. 43

43

Furthermore, to the extent that Dr. Kupferman is alleged to have acted as an agent of
FHMC, the hospital is also liable for the Section 1983 conspiracy. See Niemann v. Whalen, 911
F. Supp. 656, 664 (S.D.N.Y. 1996) (where bank employees who allegedly violated plaintiff’s
constitutional rights were acting as agents of defendant bank, plaintiff could bring § 1983 action
against bank).
53

IX.

UNREASONABLY PROLONGED DETENTION
Plaintiff also asserts a Section 1983 claim for unreasonably prolonged detention in

violation of her Fourth Amendment rights. (Am. Compl. ¶¶ 225–229.) Specifically, Plaintiff
alleges that Defendants’ mishandling, concealing, and suppressing of exculpatory evidence, and
their intimidation and coercion of witnesses, caused her unreasonably prolonged detention. (Id.
(citing Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007).).)
Unreasonably prolonged pretrial detention where exculpatory evidence is readily
available can form the basis of a Section 1983 claim against police officers as a violation of the
Fourth Amendment’s protection against unreasonable seizures. Russo, 479 F.3d at 208–09. To
state such a claim, Plaintiff must allege that (1) she has a right to be free from continued
detention stemming from law enforcement officials’ mishandling or suppression of exculpatory
evidence, (2) the actions of the officers violated that right, and (3) the officers’ conduct “shocks
the conscience.” Russo, 479 F.3d at 205 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833
(1998)). In Russo, the Second Circuit considered the following three factors in determining
whether the plaintiff’s detention was excessive in violation of the Fourth Amendment: (1) the
length of time the plaintiff was incarcerated; (2) the ease with which the exculpatory evidence in
the officers’ possession could have been checked; and (3) the alleged intentionality of the
defendants’ behavior. Id. at 209.
Applying these standards, the Court finds that Plaintiff has adequately alleged an
unreasonably prolonged detention claim against some of the City Defendants, but not against the
Medical Center Defendants.
The City Defendants
The City Defendants argue that this claim should be dismissed because (1) Plaintiff only
recites the elements of the cause of action, and (2) Plaintiff cannot allege the third element, i.e.,
54

that the alleged conduct “shocks the conscience”, because the exculpatory evidence at issue is
not equivalent to the exculpatory evidence in Russo.
First, the Court disagrees with the City Defendants’ contention that Plaintiff only recites
the elements of unreasonably prolonged detention and nothing more.

In the Amended

Complaint, Plaintiff alleges that she was held at Riker’s Island Jail for about four years (Am.
Compl. ¶¶ 180, 234), and that Defendants “disregarded plainly exculpatory evidence” (Am.
Compl. ¶ 173), “failed to . . . disclose evidence inconsistent with plaintiff’s guilt” (Am. Compl. ¶
182), and mishandled and suppressed “exculpatory . . . evidence” (Am. Compl. ¶ 225). Had
Plaintiff only alleged this, her claim would have been conclusory. However, Plaintiff provides
specifics regarding these broad allegations.

For example, she alleges that Defendants

mishandled evidence that “Annie’s injuries could have been caused by osteogenesis imperfecta
or other natural causes” (Am. Compl. ¶ 137), and that Dr. Landi’s statement was “entirely . . .
unsupportable by any medical science” (see Am. Compl. ¶ 150). She also alleges that Dr. Landi
withheld exculpatory evidence (Am. Compl. ¶ 154), falsely “swore under oath in the criminal
complaint” that the Lis could have prevented Annie’s death by getting her prompt medical
attention the night she died (Am. Compl. ¶ 150), and “ignored signs of rib anterior flaring, and
[the need for] any kind of thorough eye [sic] exam for eyes, or bones.” (Am. Compl. ¶ 152.) To
the extent that Dets. Degnan, Moser, Phelan, and Heffernan took an active role in investigating
the Lis, the Court can infer that any exculpatory evidence concealed by Dr. Landi was also
known by these Officer Defendants. From these allegations, the Court can plausibly infer that
these City Defendants failed to disclose medical evidence that would have contradicted Dr.
Landi’s diagnosis and thus suppressed evidence that would have exculpated Plaintiff sooner.

55

Second, the Court disagrees with the City Defendants’ contention that the exculpatory
evidence in this case—i.e., that Annie could not have been saved even if medical care was
sought out sooner or that she died due to a condition other than SBS—is not equivalent to the
definitive and conclusive exculpatory evidence contemplated by the Second Circuit in Russo.
(Dkt. 59 at 25.) The failure to obtain or disclose evidence that is only arguably exculpatory does
not shock the conscience. See, e.g., Wilson v. City of New York, 480 F. App’x. 592, 595 (2d Cir.
2012) (summary order) (distinguishing Russo because the evidence in Wilson was conflicting
and some of the testimonial evidence at issue identified the defendant as an accomplice to the
charged crime). In Russo, the exculpatory evidence at issue was a video surveillance tape that
showed the perpetrator of the robbery in question without tattoos on his arms; Russo, who was
arrested for the robbery, had distinctive tattoos covering his arms and repeatedly alerted the
defendant-officers that the surveillance video would establish his innocence. Id. 200. Here, the
exculpatory evidence that Plaintiff alleges was concealed is the absence of any medical support
for the charge that she caused Annie’s death by SBS. (Id. ¶¶ 150, 135 (asserting that charge of
SBS was “entirely . . . unsupportable by any medical science,” that the “there was no evidence,
and no reasonable basis to believe, that plaintiff had any time engaged in any conduct which
could have caused or contributed to Annie’s injuries and death,” and that “there was no clinical
or diagnostic medical evidence to support a finding of SBS [based on Annie’s condition].”
(emphasis added)).) Although the Amended Complaint is not a model of clarity, the Court infers
that Plaintiff’s unreasonably prolonged detention claim is based on the allegation that the City
Defendants knew from conversations with, or information provided by, the Medical Center
Defendants that there was no medical support for the conclusion that Annie died from SBS or
that earlier medical intervention could have prevented her death—conclusions that were central

56

to the case against Plaintiff—and that the City Defendants concealed this information for over
four years while Plaintiff remained in prison. At this stage of the litigation, the Court takes these
allegations as true—i.e., that there was definitive and conclusive exculpatory evidence—and
finds that Plaintiff has adequately pled the third element of her unreasonably prolonged detention
claim. 44
Accordingly, the City Defendants’ motion to dismiss Plaintiff’s unreasonably prolonged
detention claim is denied as to Dets. Degnan, Moser, Phelan, and Heffernan, and Dr. Landi, but
granted as to all other City Defendants.
The Medical Center Defendants
The Medical Center Defendants contend that Plaintiff cannot state a claim for
unreasonably prolonged detention against Dr. Kupferman because that claim can only be brought
against law enforcement officers. (Dkt. 55 at 12.) Plaintiff, citing no legal authority, argues that
the Second Circuit’s holding in Russo should be extended to non-law-enforcement officials.
(Dkt. 66 at 19.) Plaintiff also argues that as long as the defendant acted under color of state law,
that defendant is subject to an unreasonably prolonged detention claim recognized by the court in
Russo. The Court disagrees with Plaintiff’s overly expansive and unsupported reading of Russo.
In Russo, the Second Circuit specifically stated that a plaintiff has a right to be free from
prolonged detention “stemming from law enforcement officials’ mishandling or suppression of
exculpatory evidence . . . .” See Russo, 479 F.3d at 205 (emphasis added). Indeed, all three

44

While the City Defendants cite to a string of cases in support of their argument that
Plaintiff has failed to adequately plead a claim of unreasonable detention (see Dkt. 59 at 26), the
courts in those cases dismissed the claim either at the stage of summary judgment or after a trial
was conducted. See Nzegwu v. Friedman, No. 10–CV–02994, 2014 WL 1311428 (E.D.N.Y.
Mar. 31, 2014); Harewood v. Braithwaite, 64 F. Supp. 3d 384 (E.D.N.Y. 2014); Thompson v.
City of New York, 603 F. Supp. 2d 650 (S.D.N.Y. 2009); Jackson v. City of New York, 29 F.
Supp. 3d 161 (E.D.N.Y. 2014). Citations to such cases are not persuasive.
57

prongs of the test for determining whether an unreasonably prolonged detention has occurred
expressly references conduct by a law enforcement officer. See id. There is nothing in Russo or
any case applying Russo that suggests that non-State individuals or entities can be held liable for
unreasonably prolonged detention. See, e.g., Jackson v. City of New York, 29 F. Supp. 3d 161,
178 (E.D.N.Y. 2014) (“Russo has been narrowly construed to involve situations where a law
enforcement official has mishandled or suppressed readily available exculpatory evidence . . .
.”); Harewood v. Braithwaite, 64 F. Supp. 3d 384, 401–03 (E.D.N.Y. 2014); Thompson v. City of
New York, 603 F. Supp. 2d 650, 656 (S.D.N.Y. 2009); Wilson v. City of New York, 480 F. App’x
592, 594-95 (2d Cir. 2012) (summary order); Nelson v. Hernandez, 524 F. Supp. 2d 212, 224-25
(E.D.N.Y. 2007). Nor does Plaintiff cite any such case law.
Accordingly, the Medical Center Defendants’ motion to dismiss Plaintiff’s unreasonably
prolonged detention claim as to them is granted in its entirety.
X.

DUE PROCESS
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any

person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1.
This prohibition applies to municipalities. See Horvath v. Westport Library Ass’n, 362 F.3d 147,
151 (2d Cir. 2004) (stating that the Fourteenth Amendment due process right applies only to
government entities whose action may be fairly attributed to the State).
The Due Process Clause was “intended to secure the individual from the arbitrary
exercise of the powers of government.” Daniels v. Williams, 474 U.S. 327, 331 (1986) (quoting
Hurtado v. California, 110 U.S. 516, 527 (1884)).

Procedural due process requires that

government action depriving an individual of substantial interest in life, liberty, or property “be
implemented in a fair manner.” United States v. Salerno, 481 U.S. 739, 746 (1987). Substantive
due process, as recognized by the Supreme Court, bars “certain government actions regardless of
58

the fairness of the procedures used to implement them,” in order to “prevent governmental power
from being used for purposes of oppression.” Daniels, 474 U.S. at 331 (citation and quotations
marks omitted); McClary v. O’Hare, 786 F.2d 83, 88 (2d Cir. 1986). “In other words, while a
procedural due process claim challenges the procedure by which [deprivation of liberty] is
effected, a substantive due process claim challenges the ‘fact of the [deprivation’] itself.” See
Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2011) (alteration in original
omitted) (differentiating a procedural due process claim from a substantive due process claim);
see also Kerry v. Din, 135 S. Ct. 2128 (2015) (“[T]here are two categories of implied rights
protected by the Due Process Clause: really fundamental rights, which cannot be taken away at
all absent a compelling state interest; and not-so-fundamental rights, which can be taken away so
long as procedural due process is observed.”).
The Court interprets Plaintiff’s due process claim, set forth in her seventh cause of action,
to be based on the alleged (1) concealment of exculpatory evidence, i.e., a Brady violation (Am.
Compl. ¶¶ 232–233), (2) fabrication of evidence (id.), (3) failure to investigate (Am. Compl. ¶
235), (4) violation of the right to a speedy trial (Am. Compl. ¶ 234), and (5) violation of the right
to be treated with dignity during her pretrial detention (¶ 236). While Plaintiff does not clearly
articulate which due process claims are procedural and which are substantive, the Court
interprets the first two claims, regarding the mishandling of evidence, to be procedural 45, and the
others to be substantive.

45

“The Supreme Court has never definitively held whether Brady is based on substantive
or procedural due process. Nevertheless, it seems clear that it is a procedural due process aspect
of the criminal defendant’s right to a fair trial.” Martin A. Schwartz, The Supreme Court’s
Unfortunate Narrowing of the Section 1983 Remedy for Brady Violations, Champion, May 2013
at 58, 59. As for Plaintiff’s fabrication of evidence claim, it is unclear whether Plaintiff
characterizes it as a procedural or substantive due process claim. (See Dkt. 66 at 20 (“Dr.
Kupferman’s actions [of fabricating evidence, inter alia,] deprived Plaintiff of the right to a fair
59

Procedural Due Process
A procedural due process violation occurs when the government deprives a person of a
protected life, liberty, or property interest without first providing notice and an opportunity to be
heard. See B.D. v. DeBuono, 130 F. Supp. 2d 401, 432–33 (S.D.N.Y. 2000). “To determine
whether a Section 1983 due process claim is plausibly alleged, the Court evaluates the
sufficiency of the allegations with respect to the liberty or property interest alleged and the
process due before deprivation of that interest.” Norton v. Town of Islip, 97 F. Supp. 3d 241, 266
(E.D.N.Y. 2015); see also Ciambriello, 292 F.3d at 313.
Here, Plaintiff has asserted Section 1983 due process claims that are often referred to as
fair trial claims. “A fair trial claim is a civil claim for violations of a criminal defendant’s
Fourteenth Amendment due process rights.” Fappiano v. City of New York, 640 F. App’x. 115,
118 (2d Cir. 2016) (citing Ramchair v. Conway, 601 F.3d 66, 73 (2d Cir. 2010)). A defendant’s
right to a fair trial is violated when exculpatory evidence is withheld, i.e., when a Brady violation
occurs (see Brady v. Maryland, 373 U.S. 83 (1963)), and also when an officer forwards

trial under the doctrine of procedural due process.” (emphasis added)); but see Dkt. 61 at 24–25
(first laying out the law of substantive due process and then immediately following it with a
discussion of Plaintiff’s claim of fabrication of evidence, among other claims).) Regardless,
courts in this Circuit have characterized the right to be protected against the deprivation of
liberty based on fabricated evidence as a procedural due process issue. See Coffey, 221 F.3d at
348–49 (the use of fabricated evidence amounts to a deprivation of liberty without due process);
see also Jean-Laurent v. Bowman, No. 12–cv–2954, 2014 WL 4662221, at *12 (E.D.N.Y. Jul. 7,
2014); Zachary v. City of Newburgh, 13–cv–5737, 2014 WL 1508705, at *4–5 (S.D.N.Y. Apr. 1,
2014) (dismissing plaintiff’s substantive due process claim but finding that plaintiff alleged a
procedural due process claim based on fabricated evidence); Maldonado v. City of New York,
No. 11–cv–3514, 2014 WL 787814, at * 12 (S.D.N.Y. Feb. 26, 2014) (dismissing plaintiff’s
substantive due process claim but noting that plaintiff’s fabrication of evidence claims may
proceed “via the Fourth Amendment and the procedural component of the Fourteenth
Amendment’s Due Process Clause”); Pinter v. City of New York, 976 F. Supp. 2d 539, 576
(S.D.N.Y. 2013) (recognizing a separate “fabrication-based due process claim”).

60

fabricated evidence to prosecutors, Ricciuti, 124 F.3d at 130. “A plaintiff need not have gone to
a full trial on the merits in order to have an actionable Section 1983 claim based on the denial of
a fair trial.” Marom v. City of New York, No. 15–CV–2017, 2016 WL 916424, at *9 (S.D.N.Y.
Mar. 7, 2016); see Ricciuti, 124 F.3d at 127 (plaintiffs who brought a Section 1983 claim for
right to a fair trial had their criminal charges dismissed pretrial).
The Court finds that Plaintiff has adequately alleged fair trial claims against Dets.
Degnan, Moser, Phelan, and Heffernan, Dr. Landi, and the Medical Center Defendants.
1.

Brady violation claim

The Supreme Court held that a prosecutor violates a criminal defendant’s due process
right when the prosecutor fails to disclose favorable material to the defendant, “irrespective of
the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87; see also Poventud v. City
of New York, 750 F.3d 121, 155 (2d Cir. 2014) (“[T]he constitutional right defined by Brady . . .
is the criminal defendant’s procedural due process right to the disclosure of ‘evidence that is
material to his guilt or punishment.’” (quoting Cone v. Bell, 556 U.S. 449, 469 (2009)). Police
officers also “can be held liable for Brady due process violations under § 1983 if they withhold
exculpatory evidence from prosecutors.” Bermudez v. City of New York, 790 F.3d 368, 376 n.4
(2d Cir. 2015). Once a police officer turns over exculpatory evidence to the prosecutor, that
officer satisfies his obligations under Brady. Walker v. City of New York, 974 F.2d 293, 299 (2d
Cir. 1992) (“It is appropriate that the prosecutors, who possess the requisite legal acumen, be
charged with the task of determining which evidence constitutes Brady material that must be
disclosed to the defense.”); see also Blake v. Race, 487 F. Supp. 2d 187, 215–16 (E.D.N.Y.
2007) (noting that the Second Circuit had extended the Brady obligations to police officers in
that they are required to turn exculpatory evidence over to the prosecutors).

61

“A classic Brady violation contains three elements: ‘The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.’” Fappiano v. City of New York, 640 F. App’x. 115, 118 (2d Cir. 2016)
(summary order) (quoting United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004)). “To
establish prejudice, a plaintiff must show the evidence was material; i.e., whether the
‘evidentiary suppression undermines confidence in the outcomes of the trial.’”

Id. at 118

(quoting Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir. 2001)).
Here, Plaintiff has sufficiently pled her Brady violation claim against Dets. Degnan,
Moser, Phelan, and Heffernan, Dr. Landi, and Dr. Kupferman. 46 The Amended Complaint states
that “the Officer Defendants failed to . . . disclose evidence inconsistent with plaintiff’s guilt, did
not document or inform the district attorney’s office of exculpatory evidence, [and] falsely
reported facts in reports and search warrant affidavits.” (Am. Compl. ¶ 178 (emphasis added).)
Plaintiff also alleges that Defendants “maliciously concealed material exculpatory evidence”
(Am. Compl. ¶ 233 (emphasis added)), and that prejudice ensued because it resulted in her arrest
(Am. Compl. ¶ 238). In addition, as previously discussed, the Amended Complaint describes the
nature of this exculpatory evidence as relating to the false conclusions of Dr. Landi and/or Dr.
Kupferman regarding the causes of Annie’s death, which implicated Plaintiff and her husband in
their daughter’s death. (Id. ¶¶ 150, 152, 164.)

46

Plaintiff’s due process claim under Brady is distinct from her malicious prosecution
claim. See Fappiano, 640 F. App’x at 120–21 (differentiating plaintiff’s malicious prosecution
claim from his “fair trial” claim stemming from defendants alleged Brady violation); Alexander
v. McKinney, 692 F.3d 553, 556–57 (7th Cir. 2012) (listing the elements of a malicious
prosecution claim and the elements of a due process claim under Brady, and identifying lack of
probable cause as a requirement only of the former).
62

2.

Fabrication of Evidence claim

Separate from her malicious prosecution claim, Plaintiff alleges a procedural due process
violation based on Defendants’ alleged fabrication of evidence. (See Am. Compl. ¶ 233.) 47 The
claim of denial of the right to a fair trial due to fabricated evidence stems from the Sixth
Amendment and the Due Process clauses of the Fifth, Sixth, Fourteenth Amendments of the U.S.
Constitution. See Holbrook v. Flynn, 475 U.S. 560 (1986); Zahrey v. City of New York, No. 98–
4546, 2009 WL 1024261, at *16 (S.D.N.Y. Apr. 15, 2009) (characterizing plaintiff’s right to a
fair trial claim as an action for violation of his right to procedural due process rooted in the Fifth,
Sixth, and Fourteenth Amendments). Fabrication of evidence constitutes a violation of this right
to a fair trial. Coffey, 221 F.3d at 344 (“[T]here is a constitutional right not to be deprived of
liberty as a result of the fabrication of evidence by a government officer acting in an
investigatory capacity, at least where the officer foresees that he himself will use the evidence
with a resulting deprivation of liberty.”); Brandon v. City of New York, 705 F. Supp. 2d 261, 276
(S.D.N.Y. 2010) (noting that the Second Circuit has permitted “claims for both malicious
prosecution and a denial of his right to trial based on the same alleged fabrication of evidence”
(citing Ricciuti, 124 F.3d at 130–31); see also Zahrey, 2009 WL 1024261, at *8 n.14 (S.D.N.Y.
Apr. 15, 2009) (“Because evidence fabrication serves to both improperly charge and/or arrest a
plaintiff as well as unfairly try him, the Coffey violation, in its essence, involves aspects of both
the Fourth Amendment and procedural due process.”); Myers v. Cnty. of Nassau, 825 F. Supp. 2d
359, 367 (E.D.N.Y. 2011) (noting that when a police officer turned over fabricated evidence to

47

Specifically, Plaintiff alleges that Defendants “created and fabricated evidence to
create the appearance of probable cause to believe that plaintiff had abused her daughter[,] . . .
[and] developed and cultivated witnesses to testify falsely . . . .” (Am. Compl. ¶ 233.)
63

the prosecutor, such conduct can be redressed, not as a Brady violation, but as a deprivation of
liberty on the basis of false and fabricated evidence).
To state a claim of fabrication of evidence, a plaintiff must allege that “an (1)
investigating official (2) fabricat[ed] information (3) that is likely to influence a jury’s verdict,
(4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life,
liberty, or property as a result.” Garnett v. Undercover Officer C0039, 838 F.3d 265, 280 (2d
Cir. 2016).
a) The City Defendants
The City Defendants assert that Plaintiff’s fabrication of evidence claims should be
dismissed for three reasons: (1) none of the City Defendants could have possibly fabricated the
SBS medical evidence, and the Complaint does not credibly allege that Dr. Landi “fabricated”
evidence of SBS; (2) ADA Bishop is absolutely immune from the claims; and (3) the claims are
time-barred, because Plaintiff was always aware of her theory that Annie died from a genetic
disorder and not from any action taken by Plaintiff or her husband. (Dkt. 59 at 27–28.) Plaintiff
provides a somewhat haphazard analysis in response and argues, “[Det.] Degnan states ‘that he
was informed by Dr. Landi that earlier medical attention for the complainant could have resulted
in the complainant’s survival, and that the lack of immediate medical attention contributed to the
complainant’s death’ . . . . Whether such a statement was fabricated is discoverable.” (Dkt. 61 at
25 (citing Plaintiff’s Exhibit B, Criminal Court Complaint in People v. Ying Li)).
Notwithstanding Plaintiff’s cursory response to the City Defendants’ arguments, the Court finds
that Plaintiff has adequately alleged a plausible claim of fabrication of evidence against Dets.
Degnan, Moser, Heffernan, and Phelan, and Dr. Landi.

64

Although Plaintiff fails to identify the relevant paragraphs of the Amended Complaint,
except for Paragraph 233, the Amended Complaint does contain allegations of fact that support
her fabrication of evidence claim with regard to these City Defendants. (See Am. Compl. ¶¶
145, 146, 150, 160, 178.) Specifically, Plaintiff alleges that Det. Degnan signed the criminal
court complaint in spite of his knowing that its content was not true (Am. Compl. ¶ 145), that
Plaintiff was arraigned based on the fabricated information Defendants forwarded to the District
Attorney’s Office (Am. Compl. ¶ 146), and that Defendants “falsely reported facts in reports and
search warrant affidavits, and fabricated oral statements of witnesses.” (Am. Compl. ¶ 178.) 48
Plaintiff also alleges that Dr. Landi swore under oath in the criminal complaint that had Annie
received medical care sooner, she could have survived—a fact that was, according to the
Complaint, “false, misleading, and perjurious, and entirely unsupported . . . by any medical
science . . . .” (Am. Compl. ¶ 150.) At this stage of the litigation, the Court takes these
allegations as true—i.e., that the content of the criminal complaint, reports, and search warrant
affidavits contained false information that certain City Defendants knowingly provided and/or
swore to—and finds that Plaintiff has adequately pled her fabrication of evidence claim against
Dets. Degnan, Moser, Heffernan, and Phelan, and Dr. Landi.
b) The Medical Center Defendants
As previously discussed (see supra Sections X.A.1), Plaintiff has alleged that Dr.
Kupferman ignored evidence suggesting that Annie’s death was not caused by SBS and provided
false information to Dr. Landi, who based her conclusions on that false information.

48

As previously discussed, because the Amended Complaint does not allege direct
involvement by all Defendants in the investigation of Plaintiff’s case, these group pleadings are
insufficient in themselves to state a fabrication of evidence claim as to those City Defendants as
to whom there are no specific allegations of involvement.
65

Although the Medical Center Defendants argue that “the [Amended] Complaint does not
contain an allegation regarding violation of plaintiff’s right to a fair trial” (see Dkt. 56 at 10), the
Court disagrees, given the numerous allegations of fabrication of evidence and Dr. Kupferman’s
alleged failure to consider Annie’s lab results that were consistent with metabolic bone disease.
(See Am. Compl. ¶¶ 122, 145, 146, 150, 178, 232, 233.) Even though, as the Medical Center
Defendants point out, the Amended Complaint does not specifically mention the Fifth
Amendment, the Court finds that the factual allegations in the complaint have given the Medical
Center Defendants sufficient notice of this claim. 49
3.

Statute of Limitations With Respect to Fair Trial Claims

Having found that Plaintiff adequately pled both her Brady violation and fabrication of
evidence claim against the City Defendants and the Medical Center Defendants, the Court turns
to those Defendants’ argument that these claims are time-barred (see Dkt. 59 at 28). The City
Defendants contend that Plaintiff’s fair trial claim accrued at the time of her arrest because “she
was always aware of her theory that her baby died from a genetic disorder and not any action
taken by plaintiff or her husband.” (Id.) In response to this argument, Plaintiff simply states,
without citing any legal authority, that her procedural due process claim is not time barred
because “Federal equitable tolling standards should apply.” (Dkt. 61 at 25.) Plaintiff makes no
other argument.

Notwithstanding Plaintiff’s inadequate response, the Court finds the City

Defendants’ argument unpersuasive.

49

The Medical Center Defendants also assert that even assuming that Dr. Kupferman
diagnosed Annie with SBS and that she failed to consider alternative causes for Annie’s death,
Dr. Kupferman cannot be liable for violating Plaintiff’s right to a fair trial because Plaintiff’s
indictment was based on her failure to seek timely medical attention and not based on Dr.
Kupferman’s opinions on the cause of Annie’s death. (Dkt. 56 at 10.) The Court this argument
unpersuasive as it is plausible that Dr. Kupferman’s conclusion that Annie died of SBS
proximately caused Plaintiff’s indictment for failure to seek medical attention sooner.
66

Fabrication of evidence claims accrue “when the plaintiff learns that evidence was
fabricated and an injury was caused by the fabrication.” Carr v. City of New York, No. 11–Civ–
6982, 2013 WL 1732343, at *6 (S.D.N.Y. Apr. 19, 2013) (“[P]laintiff arguably learned of the
alleged fabrication as soon as the criminal complaint was filed and certainly no later than when
[the defendant] took the stand at [ ] trial . . . .”); see also Garnett v. Undercover Officer C0039,
No. 13–cv–7083, 2015 WL 1539044, at *4 (S.D.N.Y. Apr. 6, 2015) (“[A fabrication of
evidence] claim accrues when the officer forwards the false information to the prosecutors.”).
Because the statute of limitations is an affirmative defense, “[t]he burden is on the defendant to
establish when a federal claim accrues.” Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011).
Here, the Court finds that the City Defendants have not established that Plaintiff knew all
along that she had Brady violation and fabrication of evidence claims simply because she
believed in her innocence; the City Defendants’ contrary assertion is too sweeping. At a January
2, 2013 status conference, Plaintiff learned that ADA Bishop moved to dismiss the criminal
charges against Plaintiff because Dr. Kupferman informed ADA Bishop that Annie’s brain
injuries were so severe that immediate medical intervention would likely not have saved her.
(See Dkt. 63 at Ex. F at ECF 6.) Therefore, it is plausible to infer that in January 2013 Plaintiff
specifically learned that she might have a fabrication of evidence claim against the City
Defendants based on Dr. Landi’s earlier contrary assessment of how Plaintiff was responsible for
Annie’s death, in part, because Plaintiff failed to get medical attention for her daughter quickly
enough. See Mitchell v. Home, 377 F. Supp. 2d 361, 373 (S.D.N.Y. 2005) (“[A] fair trial claim
premised on fabrication of evidence accrues when the plaintiff learns or should have learned that
the evidence was fabricated and such conduct causes the claimant some injury[.]” (citing Veal v.

67

Geraci, 23 F.3d 722, 724–25 (2d Cir. 1994)); see also Bailey v. City of New York, 79 F. Supp. 3d
424, 444 (E.D.N.Y. 2015) (same). 50
As for Plaintiff’s Brady violation claim, the Court cannot assess when it was that the
claim could have plausibly accrued because Plaintiff does not specifically allege what
exculpatory evidence the City Defendants concealed. However, because the City Defendants
have the burden of establishing that the statute of limitations has expired, and in light of the
cursory argument put forth by the City Defendants, the Court denies the City Defendants’ motion
to dismiss Plaintiff’s fair trials claims on statute of limitations grounds with respect to Dets.
Degnan, Moser, Phelan, Heffernan, and Dr. Landi. For the reasons previously discussed, the
Medical Center Defendants’ motion to dismiss Plaintiff’s fair trials claims against them is also
denied.
Substantive Due Process
“[D]ue process protection in the substantive sense limits what the government may do in
both its legislative, and its executive capacities . . . .” Cnty. of Sacramento v. Lewis, 523 U.S.
833, 845 (1998) (citing Griswold v. Connecticut, 381 U.S. 479 (1965) and Rochin v. California,
342 U.S. 165 (1952)). “The protections of substantive due process have for the most part been
accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.”
Albright v. Oliver, 510 U.S. 266, 273 (1994). “[C]riteria to identify what is fatally arbitrary
differ depending on whether it is legislation or a specific act of a governmental officer that is at

50

This conclusion is not inconsistent with the Court’s finding that the fact that Plaintiff
might not have known until long after her arrest that there was evidence that could have
supported her claim of innocence—such as Dr. Kupferman’s contrary conclusion about the
preventability of Annie’s death—did not warrant equitable tolling. See supra at Section IV.B.
In analyzing specifically the accrual of a fabrication of evidence claim, when Plaintiff learned of
the alleged fabricated evidence is the triggering date, but not so for a claim of false arrest or
malicious prosecution.
68

issue.” Cnty. of Sacramento, 523 U.S. at 845. “[F]or executive action to violate substantive due
process, it must be so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Bolmer v. Oliveira, 594 F.3d 134, 142 (2d Cir. 2010) (citation and
quotations marks omitted). “It is not enough that the government act [was] ‘incorrect or illadvised[.]’” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011) (quoting
Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995)). “Only the most egregious
official conduct can be said to be arbitrary in the constitutional sense and therefore
unconstitutional.” Id. (citation and quotation marks omitted).
1.

Failure to Investigate

Against the Medical Center Defendants and Dr. Landi, Plaintiff asserts a claim best
characterized as a claim of failure to investigate, in violation of Plaintiff’s substantive due
process rights. (See Am. Compl. ¶ 235; see also Dkt. 66 at 20.) 51 More specifically, this claim
is based on the argument that the Medical Center Defendants and Dr. Landi failed to “exhaust all
possibilities” before rendering an SBS diagnosis, and therefore violated Plaintiff’s liberty. (See
Dkt. 66 at 20–21; Am. Compl. ¶ 238 (“Defendants’ conduct precipitated and caused the
sequence of events that ultimately resulted in the deprivation of plaintiff’s liberty . . . .”).)

51

The City Defendants interpret Paragraph 235 of the Amended Complaint as stating a
claim of professional malpractice, and argues that “such a claim is not cognizable under § 1983.”
(Dkt. 59 at 28–29; id. at 26 (“For good measure, [Plaintiff] appears to include a professional
malpractice claim of sorts against defendants Landi, Kupferman and FHMC . . . .”).) This is a
misunderstanding of Plaintiff’s allegation. A more suitable reading of Plaintiff’s allegation in
Paragraph 235 would be that it is touching on the “professional judgment” standard that is
discussed in the context of substantive due process claims. The Supreme Court has articulated
this “professional judgment” standard in Youngberg v. Romeo, 457 U.S. 307 (1982). The
Supreme Court held in Youngberg that State officials are liable for treatment decisions
concerning involuntarily committed mental health patients only if the officials’ decisions were
“such a substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the decision on such a judgment.”
Id. at 323 (citation and quotation marks omitted).
69

Both groups of Defendants contend that all of Plaintiff’s substantive due process claims
are solely based on Plaintiff’s Fourth Amendment claims of false arrest, malicious abuse of
process, and conspiracy, and thus are duplicative of her Fourth Amendment claims and should be
dismissed. (See Dkt. 55 at 14; Dkt. 56 at 10; Dkt. 59 at 26.) Plaintiff responds that “the Fourth
Amendment does not ‘cover a cause of action for government abuse of process in the
investigation or pursuit of a suspect’, and that she therefore has a separate, standalone
substantive due process claim against certain Defendants for failing to investigate other
explanations for Annie’s death before concluding that she died from SBS. (Dkt. 66 at 20 (citing
Russo v. City of Hartford, 184 F. Supp. 2d 169, 184 (D. Conn. 2002)).)
“The right [to be free from arbitrary government action,] to the extent it exists, is the right
to be free of arbitrary government action that infringes a protected right.” Connor v. Pierson,
426 F.3d 187, 200 n. 6 (2d Cir. 2005). Here, Plaintiff does not provide adequate legal support
for her assertion of a substantive due process right to have investigating officials “exhaust all
possibilities” that could have explained the cause of Annie’s death before concluding that it was
SBS. (See Dkt. 66 at 20–21.) 52 Moreover, even though Plaintiff attempts to distinguish her

52

In her MOL, Plaintiff argues that, “Plaintiff properly pleads that [the Medical Center]
Defendants failed to exhaust all possibilities before rendering an SBS diagnosis and adopted an
improper burden shifting presumption that presumes subdural hemorrhaging is caused by abuse.
(FAC ¶¶ 122, 160, 208, 235, 257). . . . Kupferman’s actions shocked the conscious [sic] because
Plaintiff had the right to liberty protected under the Fifth Amendment and Kupferman and
FHMC acted ‘so outrageous [sic], that it may fairly be said to shock the contemporary
conscience.’” (Dkt. 66 at 20–21 (citation omitted).) Plaintiff cites to one Middle District of
Pennsylvania case, Isbell v. Bellino, 983 F. Supp. 2d 492 (M.D.P.A. 2012), but does not discuss
the case. Setting aside the fact that this case is not Second Circuit law, Isbell does not even
support a finding that the protection of substantive due process creates an obligation for a
government official to follow alternative investigatory paths. Indeed, the court in Isbell
concluded that where the plaintiff went “to the emergency room with an infant suffering from
subdural hematomas, retinal hemorrhaging, reinoschisis, and rib fractures . . . [and] the injuries
were later revealed to have been caused by a Vitamin D deficiency and congenital rickets,” the
defendant’s child abuse diagnosis did not shock the conscience. Id. at 500. The Isbell court also
70

substantive due process claim from her Fourth Amendment claims, Plaintiff’s failure to
investigate claim, at the end of the day, is based on her substantive due process right to be free of
prosecution and arrest without probable cause. 53

Cf. Campbell, 2000 WL 194815, at *3

(“allegations of an officer’s failure to investigate are considered under the rubric of false
imprisonment, false arrest, or malicious prosecution.”). This is evidenced by Plaintiff’s own
brief and the Amended Complaint, which both state that Defendants’ failure to investigate
“effectuated Plaintiff’s arrest.” 54 (Dkt. 66 at 22.)
“As a general matter, [the U.S. Supreme Court] has always been reluctant to expand the
concept of substantive due process because the guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Albright, 510 U.S. at 271–72 (citing Collins v.
explained that “mere negligence or deliberate indifference on the part of the Defendants [under
Third Circuit law was] insufficient to support a substantive due process claim.” Id. at 499–500.
53

The Court is not persuaded by Plaintiff’s reliance on Russo v. City of Hartford, 184 F.
Supp. 2d 169 (D. Conn. 2002) in attempting to distinguish her substantive due process failure-toinvestigate claim from her Fourth Amendment claims. In Russo, the court stated, “[W]hile
claims arising from a plaintiff’s arrest and prosecution would fall within the scope of the Fourth
Amendment, that Amendment would not cover a cause of action for government abuse of
process in the investigation or pursuit of a suspect.” Id. at 184. However, the plaintiff in Russo
specifically argued that “allegations of a conspiracy to discredit him, jeering after his arrest, and
continued harassment state a claim for substantive due process.” Id. It also appears that the
plaintiff in Russo alleged injury besides his arrest and prosecution that was caused by the
defendant’s violation of his substantive due process rights. Id. (“Supporting his substantive due
process cause of action, Russo claims that the [defendants] conspired to ruin Russo’s credibility .
. . .”). In contrast, the sole injury Plaintiff alleges here relating to her substantive due process
violation claim is deprivation of liberty, i.e., her arrest and incarceration. (See Am. Compl. ¶
238.)
54

The overlap between Plaintiff’s substantive due process failure to investigate and her
Fourth Amendment claims is further evidenced by the Due Process section of the Amended
Complaint, which begins with a paragraph stating, “By the conduct and actions described above,
defendants . . . violat[ed] rights secured to plaintiff by the Constitution of the United States . . .
including, but not limited to, Plaintiff’s Fourth and Fourteenth Amendment rights.” (Am.
Compl. ¶¶ 231, 238) and closes with, inter alia, a paragraph that states, “Defendants’ conduct
precipitated and caused the sequence of events that ultimately resulted in the deprivation of
plaintiff’s liberty . . . .” (Am. Compl. ¶ 238.)
71

Harker Heights, 503 U.S. 115 (1992)). The Supreme Court has instructed that “[w]here a
particular Amendment ‘provides an explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not the more generalized notion of
substantive due process,’ must be the guide for analyzing these claims.” Id. at 273 (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989) and holding that substantive due process cannot
afford plaintiff relief when the plaintiff “ask[ed] [the Supreme Court] to recognize a substantive
right under the Due Process Clause of the Fourteenth Amendment to be free from criminal
prosecution except upon probable cause”). In light of this guidance and given the plain overlap
between Plaintiff’s substantive due process claim alleging a failure to investigate and her Fourth
Amendment claims, the Court finds that, to the extent Plaintiff has a viable failure to investigate
claim 55, it falls under the Fourth Amendment rubric.

Here, Plaintiff’s claim of failure to

investigate, as a practical matter, will be subsumed by all of her other Section 1983 claims.
Accordingly, both the City Defendants’ and the Medical Center Defendants’ motions to
dismiss Plaintiff’s substantive due process claim based on a failure to investigate are granted.

55

Whether the alleged failure to investigate gives rise to a constitutional claim is far from
clear. Courts have explained that failure to pursue a particular investigative path does not give
rise to an independent due process claim apart from claims of false arrest, malicious prosecution,
or violation of right to a fair trial. See, e.g., Blake v. Race, 487 F. Supp. 2d 187, 212 n.18
(E.D.N.Y. 2007) (rejecting an independent due process claim of failure to investigate and finding
the allegations of failure to investigate should be regarded as part of plaintiff’s false arrest and
malicious prosecution claims); Stokes v. City of New York, No. 5–CV–0007, 2007 WL 1300983,
at *6 (E.D.N.Y. May 3, 2007) (“[I]t is well-settled that there is no independent claim for a police
officer’s purported failure to investigate; rather, such allegations are considered, to the extent
they are relevant, within the framework of claims for false arrest, false imprisonment, or
malicious prosecution.”); Newton v. City of New York, 566 F. Supp. 2d 256, 278 (S.D.N.Y. 2008)
(“[T]here is no constitutional right to an adequate investigation. Accepting [plaintiff’s]
allegations as true, his rights were violated as a result of the malicious prosecution, not the
failure to investigate.”); McCaffrey v. City of New York, No. 11–cv–1636, 2013 WL 494025, at
*5 (S.D.N.Y. Feb. 7, 2013) (“[A] ‘failure to investigate’ is not independently cognizable as a
stand-alone claim.”).
72

2.

Speedy Trial

Plaintiff also alleges that she was denied a speedy trial, in violation of her right under the
speedy trial clause of the Sixth Amendment. (See Am. Compl. ¶ 234.) The Sixth Amendment
guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. Const. amend. VI. Specifically, Plaintiff alleges that she was held for more
than four years in pretrial detention and that all Defendants encouraged this for the purpose of
using Plaintiff’s confinement as a bargaining chip to pressure her husband to plead guilty. (Am.
Compl. ¶ 234.)
The Medical Center Defendants argue that Plaintiff failed to allege, other than in
conclusory fashion, the causation element of this claim with respect to the Medical Center
Defendants. (See Dkt. 55 at 14.) The Court agrees.
A Section 1983 action, “like its state tort analogs, employs the principle of proximate
causation.” Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999); see also Higazy v.
Templeton, 505 F.3d 161, 181 (2d Cir. 2007) (Jacobs, C.J., concurring) (“Our cases affirm that
traditional tort law principles apply equally to a Section 1983 plaintiff and require him to show
the causal link from the original police misconduct up to the point of injury in order to proceed
on his claim.”). “It is well settled that the chain of causation between a police officer’s unlawful
arrest and a subsequent conviction and incarceration is broken by the intervening exercise of
independent judgment.” Townes, 176 F.3d at 147. Here, Plaintiff fails to allege any facts to
support a causal link between the Medical Center’s alleged conduct and the unreasonable delay
in Plaintiff criminal case being resolved.
The City Defendants do not discuss Plaintiff’s speedy trial claim in their briefing. In any
event, the Court finds that Plaintiff’s allegations that Defendants sought to use her as a
“bargaining chip” to obtain a guilty plea from her husband, coupled with the four-year delay in
73

her case being resolved and her case being dismissed shortly after her husband’s conviction, is
sufficient to state a speedy trial claim as to the City Defendants who were involved in her
prosecution.
Accordingly, the Court denies the City Defendants’ motion to dismiss Plaintiff’s speedy
trial claim as to Dets. Degnan, Moser, Phelan, Heffernan, and Dr. Landi, but grants the Medical
Center Defendants’ motion to dismiss this claim as to them.
3.

Unconstitutional Conditions of Confinement

Plaintiff also alleges that certain conditions of confinement violated her substantive and
procedural due process rights.

(Am. Compl. ¶ 236.) 56

“A pretrial detainee’s claim of

unconstitutional conditions of confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth
Amendment.” Darnell v. City of New York, No. 15–2870, slip op. at 26 (2d Cir. Feb. 21, 2017)
(citing, inter alia, Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003)).
Only the Medical Center Defendants discuss this claim; they assert that their conduct did
not proximately cause Plaintiff’s condition of detention. (See Dkt. 55 at 14.) Not only does
Plaintiff fail to respond to this argument, she does not discuss this claim at all, and therefore
abandons it. See deVere Grp . GmbH v. Op. Corp., 877 F. Supp. 2d 67, 70 n.3 (E.D.N.Y. 2012)
(“Because plaintiff did not address defendants’ motion to dismiss with regard to this claim, it is
56

Specifically, Plaintiff alleges that every Defendant violated her due process right
during her detention by (1) refusing to tell Plaintiff where her daughter’s body was buried, (2)
refusing the usual and customary medical services, including OB-GYN care, (3) forcing Plaintiff
to give birth to her second daughter while handcuffed and shackled, (4) refusing Plaintiff the
opportunity to breastfeed or bond with her infant daughter after childbirth, and (5) taking away
Plaintiff’s infant daughter two-and-a-half days after delivery. (Am. Compl. ¶ 236.) While
Plaintiff argues that these deprivations constitute both a substantive and procedural due process
violation (Am. Compl. ¶ 237), the Court need not decide whether these claims allege substantive
or procedural due process violations because they must be dismissed due to the lack of
connection to any Defendant in this case.
74

deemed abandoned and is hereby dismissed.” (quoting Hanig v. Yorktown Cent. Sch. Dist., 384
F. Supp. 2d 710, 723 (S.D.N.Y. 2005)); Harley v. City of New York, 14–CV–5452, 2016 WL
552477, at *7 (E.D.N.Y. Feb. 10, 2016) (finding plaintiff’s claims abandoned where plaintiff’s
response to motion to dismiss “did not dispute, and in fact wholly ignore[d], defendants’
argument” (citing Jackson v. Federal Exps., 766 F.3d 189 (2d Cir. 2014))); Moccio v. Cornell
Univ., No. 09–Civ–3601, 2009 WL 2176626, at *4 (S.D.N.Y. Jul. 21, 2009) (“Whatever the
merit of [the defendants’] argument [for dismissal], plaintiff has abandoned the . . . claim, as her
motion papers fail to contest or otherwise respond to defendants’ contention.”), aff’d, 526 F.
App’x 124 (2d Cir. 2013); see also Simon v. City of New York, No. 14–CV–8391, 2015 WL
4092389, at *2 (S.D.N.Y. Jul. 6, 2015) (collecting cases).
In any event, the Medical Center Defendants are correct.

Plaintiff’s claim of

unconstitutional conditions of confinement must be dismissed as to all Defendants because the
Amended Complaint does not allege any facts establishing the personal involvement of any
Defendant with respect to those conditions. See Spavone, 719 F.3d at 135; Johnson v. Barney,
360 F. App’x. 199, 201 (2d Cir. 2010) (summary order) (finding that plaintiff’s claim failed “as a
matter of law” where plaintiff failed to allege sufficient personal involvement on the part of the
prison superintendent); Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (dismissing claim
against Department of Correctional Services (“DOCS”), where plaintiff had argued that DOCS
violated her constitutional rights by arresting her for non-compliance with her post-release
supervision (“PRS”), since “the practice of re-incarcerating persons who violated their
administratively-imposed PRS was a practice of the Division of Parole, and not of [DOCS]”). 57

57

To the extent Plaintiff has a viable claim based on the conditions of her confinement in
a State correctional facility, that claim should have been brought against the State, the
correctional facility, or the prison officials, not the prosecutor or police officers who handled
75

Accordingly, the Court grants the Medical Center Defendants’ motion to dismiss
Plaintiff’s conditions of confinement claim as to them. The Court also dismisses that claim sua
sponte as to the City Defendants since there are no factual allegations in the Amended Complaint
that support such a claim as to these Defendants. See, e.g., Barreto v. Suffolk Cnty., No. 10–CV–
0028, 2010 WL 301949, at *2 (E.D.N.Y. Jan. 20, 2010) (“When a complaint fails to comply with
the requirements of Rule 8, district courts have the authority to dismiss the complaint sua
sponte.” (citing Salahuddin v. Cuomo, 861 F.2d 40, 41 (2d Cir. 1988))); LeBarron v. Warren
Cnty. Sheriff’s Office, No. 1:13–CV–1572, 2015 WL 2248749 (N.D.N.Y. May 13, 2015) (sua
sponte dismissing plaintiff’s claim where the claim failed to allege facts plausibly suggesting
personal involvement of individual defendants even though the defendants did not raise a lackof-personal-involvement challenge to the claim); Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district courts have power to sua
sponte dismiss complaints “in order to preserve scarce judicial resources”).
XI.

MONELL CLAIMS
Against the City
Plaintiff asserts a Monell claim against the City based on her Section 1983 claims for

false arrest, malicious prosecution, and violation of right to a fair trial, alleging a theory of
“deliberate indifference” to provide adequate training for its officers who work on SBS cases or
to properly instruct Defendants of “applicable provisions of [New York] State Penal Law . . .
Plaintiff’s criminal case. See, e.g., Women Prisoners of District of Columbia Dep’t of
Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), modified in part on other
grounds, 899 F. Supp. 659 (D.D.C. 1995), vacated in part and remanded on other grounds, 93
F.3d 910 (D.C. Cir. 1996); Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir.
2009) (en banc); Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D. Wash. 2010); Zaborowski
v. Dart, No. 08–cv–6946 (N.D. Ill. Dec. 20, 2011); Villegas v. Metropolitan Govt. of Nashville,
709 F.3d 563 (6th Cir. 2013).

76

federal and state constitutional limitations . . . .” (See Am. Compl. ¶ 243, 244, 248.) The Court
finds Plaintiff’s allegations of municipal liability adequate to state a Monell claim against the
City.
A municipality may be liable under Section 1983 if a municipal “policy or custom”
causes “deprivation of rights protected by the Constitution.” Monell v. Dep’t of Soc. Servs. of
N.Y., 436 U.S. 658, 690–91 (1978); see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.
2012). For a Monell claim to survive a motion to dismiss, a plaintiff must allege “sufficient
factual detail” and not mere “boilerplate allegations” that the violation of

the plaintiff’s

constitutional rights resulted from the municipality’s custom or official policy. Plair v. City of
New York, 789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (collecting cases). “A policy or custom
may be established by any of the following: (1) a formal policy officially endorsed by the
municipality; (2) actions or decisions made by municipal officials with decision-making
authority; (3) a practice so persistent and widespread that it constitutes a custom through which
constructive notice is imposed upon policymakers; or (4) a failure by policymakers to properly
train or supervise their subordinates, such that the policymakers exercised ‘deliberate
indifference’ to the rights of the plaintiff.” Moran v. Cnty. of Suffolk, No. 11 Civ.3704, 2015 WL
1321685 (E.D.N.Y. Mar. 24, 2015) (citing Parker v. City of Long Beach, 563 F. App’x 39 (2d
Cir. 2014), as amended, (Apr. 21, 2014) (failure to train); Matusick v. Erie Cnty. Water
Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Hines v. Albany
Police Dep't, 520 F. App’x 5, 7 (2d Cir. 2013) (actions of policymakers); Schnitter v. City of
Rochester, 556 F. App’x 5, 8 (2d Cir. 2014) (failure to train or supervise); Missel v. Cnty. of
Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (formal policy and act of a person with
policymaking authority for the municipality)).

77

Here, Plaintiff advances two theories of municipal liability. First, Plaintiff asserts that the
City has a custom of zealously promoting “debated science”, here, the diagnosis of SBS. (Dkt.
61 at 26–27.) Second, Plaintiff asserts that the City failed to train its employees, especially child
abuse detectives, regarding SBS cases. (Dkt. 61 at 29, 30). 58 The City contends that Plaintiff’s
Monell claim must be dismissed because the claims against individual City Defendants are
without merit (Dkt. 59 at 29) and because Plaintiff has not identified any municipal policy that
could serve as the basis of a Monell claim (id. at 31). 59 The Court disagrees.
Plaintiff has alleged that “the NYPD and their precinct(s) and/or the OCME [Office of
Chief Medical Examiner of the City of New York] . . . [r]outinely conclude[ed] that Shaken
Baby Syndrome is responsible for many infant fatalities despite the absence of evidence
necessary to make such a finding.” (Am. Compl. ¶ 243a.) Additionally, Plaintiff alleges, inter
alia, that the NYPD and the OCME routinely ignored the existence of debate and doubt in the
medical community concerning SBS diagnoses (id. ¶ 243b), and routinely failed to perform tests
to rule out SBS or consider evidence that contradicts an SBS diagnosis (id. ¶ 243c-d). 60 Plaintiff

58

It appears that Plaintiff is also arguing that the City’s failure to train its employees as to
SBS is consistent with the custom of zealously promoting a diagnosis of SBS. (See Dkt. 61 at 28
(“Instead of training its Detectives on diligently and cautiously investigating SBS cases to avoid
constitutional violations[,] . . . the District Attorney’s Office, in conjunction with the Office for
the Chief Medical Examiner puts on yearly conferences advocating for the continued finding of
SBS.”).)
59

The City also denies Plaintiff’s allegation that the police abdicated their investigatory
obligations to medical professionals when arresting Plaintiff, and her allegation that Defendants
were deliberately indifferent. (Id. at 31.)
60

The Amended Complaint includes many more allegations in support of Plaintiff’s
Monell claim that are generally conclusory, insufficient, or irrelevant. For example, she alleges
that, “[t]he foregoing customs, policies, practices . . . include, but are not limited to, making
arrests without probable cause, initiating and continuing prosecutions without probable cause,
and committing perjury.” (Am. Compl. ¶ 243). She also alleges that the City failed to properly
instruct Defendants on the “proper and prudent use of force” (id. ¶ 248).
78

also alleges that the City “with deliberate indifference failed to provide adequate training and
standards and policies and practices for its police officers in SBS related cases.” (id. ¶ 243.) The
Court finds these allegations sufficient to overcome a 12(b)(6) motion.
“Monell-type” claim against FHMC
Plaintiff brings a “Monell-type” claim 61 against FHMC based on multiple theories: (1)
FHMC has a policy pursuant to which its employees, such as Dr. Kupferman, conduct forensic
and factual investigation of SBS cases “for non-medical purposes, in order to reach non-medical
conclusions, and with knowledge that law enforcement will rely on these investigative
conclusions in directing the course of an arrest and prosecution” (Am. Compl. ¶ 257); (2) FHMC
“perpetuated this policy [of having its staff conduct investigations for ‘non-medical purposes’] in
order to see those accused of SBS arrested, prosecuted, and convicted, despite the lack of any
evidence connecting them with any crime whatsoever” (Am. Compl. ¶ 259); (3) FHMC failed to
train its staff on advances in the field of Child Abuse Diagnosis and Investigation, including SBS
(Am. Compl. ¶ 260); (4) FHMC was aware that its employees, including Dr. Kupferman, had a
tendency to jump to conclusions and to diagnose SBS without supporting evidence (Am. Compl.
¶ 264); (5) FHMC failed to supervise its employees (Am. Compl. ¶¶ 265–266); and (6) FHMC
failed to adequately screen and hire its employees “to respect the constitutional rights of those
individuals with whom FHMC comes in contact” (Am. Compl. ¶ 266).

61

In Rojas v. Alexander’s Dept. Store, Inc., 924 F.2d 406 (2d Cir. 1990), the Second
Circuit explicitly extended Monell to Section 1983 suits against private entities. Id. at 408–09
(“Private employers are not liable under § 1983 for the constitutional torts of their employees,
unless the plaintiff proves that ‘action pursuant to official . . . policy of some nature caused a
constitutional tort.’ Although Monell dealt with municipal employers, its rationale has been
extended to private businesses.” (quoting Monell)).
79

While Plaintiff’s pleading of a Monell-type claim against FHMC is largely based on
conclusory allegations, 62 Plaintiff does specifically allege that Dr. Kupferman had a history of
overzealously diagnosing SBS of which FHMC was aware, and that Dr. Kupferman was a “final
policymaker” 63 with respect to these diagnoses, which resulted in no confirmation being sought
with respect to her conclusion that “Annie’s death was due to SBS.” (Am. Compl. ¶ 164.)64
Taking Plaintiff’s allegations as true, the Court finds that she has nudged her Monell claim

62

FHMC argues that Plaintiff’s Monell claim is deficient because: (1) Plaintiff fails to
allege the existence of a policy or custom; (2) Plaintiff puts forth an implausible allegation that
“a private hospital dedicated to the well-being of its patients had a policy and procedure for its
staff ‘to reach non-medical conclusions’ ‘in order to see those accused of SBS [ ] arrested,
prosecuted, and convicted, despite the lack of any evidence connecting them with any crime
whatsoever’”; (3) Plaintiff fails to sufficiently allege a Monell claim based upon failure to train;
(4) co-Defendants’ actions were an intervening cause; (5) “by requesting discovery to determine
whether FHMC ‘even had a policy in place’ for diagnosing and investigating child abuse and
SBS cases,” Plaintiff has acknowledged that she has no basis to support a Monell claim against
the hospital; (6) Plaintiff has not alleged facts that Dr. Kupferman was a policymaker; and (7)
Plaintiff has not alleged well-settled “custom or usage” to imply the acquiescence of policymaking officials at FHMC because she has not alleged that anyone other than Dr. Kupferman at
FHMC engaged in allegedly unconstitutional actions. (See Dkt. 56 at 12–15.) The Court
explicitly addresses some of these arguments, but has considered FHMC’s other arguments and
deemed them meritless or irrelevant at this stage.
63

Although Plaintiff argues that Dr. Kupferman was a policymaker with final authority
because she was a Child Abuse Specialist and “was the Director of Continuity Clinics” at FHMC
with “responsibility to overview patient care and training of residents” (Dkt. 66 at 26), none of
this is alleged in the Complaint. It is thus improper for the Court to consider such factual
allegations in deciding the motion to dismiss. See Green v. City of Mount Vernon, 96 F. Supp.
3d 263 (S.D.N.Y. 2015) (collecting cases in which the court declines to consider additional facts
set forth in plaintiff’s opposition papers that are not in the complaint).

64

FHMC asserts that because Plaintiff only alleges facts as to Dr. Kupferman’s
unconstitutional actions pertaining to this particular case, there could be no policy or custom
inferred on the part of FHMC. (Dkt. 56 at 13.) However, at this stage, given Plaintiff’s
allegation that Dr. Kupferman, on multiple occasions, overzealously diagnosed SBS and ignored
contradictory evidence, the Court finds that the claim survives the Medical Center Defendants’
12(b)(6) motion.
80

against FHMC across the line from merely “conceivable to plausible.” See Iqbal, 556 U.S. at
680.
Accordingly, FHMC’s motion to dismiss Plaintiff’s Monell claim against it is denied.
Liability Based on Respondeat Superior
Plaintiff also argues that FHMC should be held liable under the doctrine of respondeat
superior and therefore Plaintiff need not show that a violation of Plaintiff’s constitutional rights
by FHMC’s employees was due to a policy or custom. (Dkt. 66 at 21–22.) However, the
doctrine of respondeat superior is not available to render a supervisor liable under Section 1983
for the unconstitutional conduct of his subordinates. Connick v. Thompson, 563 U.S. 51, 60
(2011) (“[U]nder § 1983, local governments are responsible only for ‘their own illegal acts.’ . . .
They are not vicariously liable under § 1983 for their employee’s actions.”). In Connick, the
Supreme Court unequivocally stated that respondeat superior cannot be applied either to
superiors or to local government entities. See id.; Monell, 436 U.S. 658 (holding that Section
1983’s language demands a causal relationship between the conduct of the defendant and the
plaintiff’s constitutional deprivation, and that this relationship is absent when liability is imposed
solely on the basis of respondeat superior). In Rojas, the Second Circuit extended Monell to
Section 1983 suits against private entities. 924 F.2d 406. And just as a municipal entity cannot
be held liable under respondeat superior, a private corporation cannot be held liable under
respondeat superior for the allegedly unconstitutional conduct of its employee. Green v. City of
New York, 465 F.3d 65 (2d Cir. 2006) (citing Rojas., 924 F.2d at 408); see also Feder v.
Sposato, No. 11–CV–193, 2014 WL 1801137, at *10 (E.D.N.Y. May 7, 2014) (noting that under

81

Rojas a plaintiff must prove an official policy that caused a constitutional tort rather than relying
on respondeat superior theory). 65
Accordingly, the Medical Center Defendants’ motion to dismiss Plaintiff’s claim against
FHMC based on the doctrine of respondeat superior is granted.
XII.

STATE CONSTITUTIONAL CLAIM
Plaintiff’s tenth claim against all Defendants alleges violation of Plaintiff’s rights under

the New York State Constitution to be free of unreasonable and unlawful searches and seizures
under Article I, Section 12 and to be free of deprivation of liberty and property without due
process of law under Article I, Section 6. (Am. Compl. ¶¶ 270–275.)
Plaintiff’s State constitution claims must be dismissed because “[d]istrict courts in this
circuit have consistently held that there is no private right of action under the New York State
Constitution where, as here, remedies are available under § 1983.” Campbell v. City of N.Y., No.
09–CV–3306, 2011 WL 6329456, at *5 (E.D.N.Y. Dec. 15, 2011) (citation and quotation marks
omitted); see also Biswas v. City of New York, 973 F. Supp. 2d 504, 522 (S.D.N.Y. 2013)
(dismissing plaintiff’s State constitutional tort claims of unlawful seizures and arrest because the
plaintiff had a remedy at common law for false arrest/false imprisonment and a § 1983 claim
based on the same grounds and stating that “the state constitutional tort is usually available only
in cases in which a plaintiff . . . has no alternative remedy.”); see also Wahad v. F.B.I., 994 F.
Supp. 237, 240 n.4 (S.D.N.Y. 1998) (“Section 1983 need not provide the exact same standard of
relief in order to provide an adequate remedy”).

65

Notably, Plaintiff does not even acknowledge Rojas and instead “respectfully requests
this Court to line with the 7th Circuit [ ] and find FHC liable under the theory of respondeat
superior.” (Dkt. 66 at 22.)
82

Here, Plaintiff has a remedy based on Section 1983. Furthermore, Plaintiff has asserted
the same due process claim under Section 1983, making Plaintiff’s State constitutional claim
duplicative. Accordingly, Defendants’ motion to dismiss Plaintiff’s State constitutional claim is
granted.
XIII. IMMUNITY
Absolute Immunity of ADA Bishop
District courts “are encouraged to determine the availability of an absolute immunity
defense at the earliest appropriate stage.” Norton v. Town of Brookhaven, 33 F. Supp. 3d 215,
229 (E.D.N.Y. 2014) (citation and quotation marks omitted), reconsidered on other grounds, 47
F. Supp. 3d 152 (E.D.N.Y. 2014). ADA Bishop claims absolute immunity from liability for her
prosecutorial actions (Dkt. 59 at 15). See Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012)
(defendant claiming absolute immunity bears burden of showing that immunity doctrine applies).
Prosecutors performing core prosecutorial functions are entitled to absolute immunity.
See Warney v. Monroe Cnty., 587 F.3d 113, 120 (2d Cir. 2009) (citing Imbler v. Pachtman, 424
U.S. 409, 430–31 (1976)). They are entitled to absolute immunity “because their prosecutorial
activities are ‘intimately associated with the judicial phase of the criminal process, and thus [are]
functions to which the reasons for absolute immunity apply with full force.’” Cornejo, 592 F.3d
at 127 (quoting Imbler, 424 U.S. at 430) (modification in the original). Prosecutorial functions
protected by absolute immunity include conduct “preliminary to the initiation of a prosecution,”
such as “whether to present a case to a grand jury . . . whether and when to prosecute, whether to
dismiss an indictment against particular defendants, which witnesses to call, and what other
evidence to present.” Giraldo, 694 F.3d at 165. The Supreme Court has “made clear that
absolute immunity may not apply when a prosecutor is not acting as ‘an officer of the court,’ but
is instead engaged in other tasks, say, investigative or administrative tasks.” Van de Kamp v.
83

Goldstein, 555 U.S. 335, 342 (2009) (citing Imbler, 424 U.S. at 431 n.33). A prosecutor who
engages in such activities is protected only by qualified immunity. Scalafani v. Spitzer, 734 F.
Supp. 2d 288, 296 (E.D.N.Y. 2010) (citing Van de Kamp, 555 U.S. 335).
Plaintiff argues that ADA Bishop’s conduct was administrative and investigatory in
nature. (See Dkt. 61 at 15–17.) In support of this argument, Plaintiff notes that ADA Bishop
“was an initial point of contact for the hospital, and had been in communications with its staff
[and] had investigators . . . from the DA’s Office involved . . . .” (Id. at 16.) However, none of
this is alleged in the Complaint, and Plaintiff does not direct the Court to any relevant portion of
the Complaint in support of these assertions. Moreover, because information from FHMC staff
was crucial to the prosecution of the Lis, ADA Bishop’s communications with them are
considered part of the prosecutorial process. See, e.g., Schnitter v. City of Rochester, 556 F.
App’x 5, (2d Cir. 2014) (summary order) (finding ADA’s interview of crucial witness to be a
core part of the prosecutorial process).
Plaintiff’s other allegations regarding ADA Bishop also relate to prosecutorial functions.
Plaintiff alleges that ADA Bishop “failed to examine the medical reports and ask relevant
questions as to [Annie’s medical] history” (Am. Compl. ¶ 169), and also “ignored evidence . . .
and [the] absence of witnesses” (Am. Compl. ¶ 174). However, these allegations “amount[] to
the claim that [ADA Bishop] sought an indictment based on insufficient or unpersuasive
evidence[,] . . . [thus challenging] an essential prosecutorial decision.” Schnitter, 556 F. App’x.
at 7. Moreover, a prosecutor is entitled to absolute immunity even in the face of allegations of
“deliberate withholding of exculpatory information” or “his knowing use of perjured testimony.”
Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005) (citing Imbler, 424 U.S. at 431
n.34); see also Warney v. Monroe Cnty., 587 F.3d 113, 125 (2d Cir. 2009) (“[I]f the prosecutors

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had tested all the evidence, and then sat on the exculpatory results for at least 72 days, they may
well have violated Brady v. Maryland, 373 U.S. 83 (1963); but they would be absolutely immune
from personal liability”). Thus, absolute immunity applies even though Plaintiff alleges that
ADA Bishop “concealed evidence” (Am. Compl. ¶ 175) and “misrepresented facts” (Am.
Compl. ¶ 208). 66
To the extent that Plaintiff’s claims are asserted against ADA Bishop in her official
capacity, they are barred because Bishop acted on behalf of New York State, which is immune
under the Eleventh Amendment. See Caldwell v. James, 14–CV–5384, 2015 WL 427980, at *3
(E.D.N.Y. Jan. 30, 2015) (“[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office. As such, it is no different
from a suit against the State itself.” (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989))); see, also Caldwell, 2015 WL 427980 at *3 (collecting cases where courts dismissed
claims against State officials on Eleventh Amendment grounds); Reid v. Schuman, 83 F. App’x
376, 377 (2d Cir. 2003) (summary order) (“We have held that when a District Attorney is
prosecuting a criminal matter, she represents the State, not the municipality.”) (citing Ying Jing
Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993)).
Accordingly, Plaintiff’s claims against ADA Bishop are dismissed with prejudice.

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Furthermore, the Court does not find that Plaintiff’s allegation that ADA Bishop
“encouraged and, in effect, deputized Drs. LANDI and KUPFERMAN to forensically and
factually investigate the case against the [Lis]” (Am. Compl. ¶ 170) creates a plausible inference
that ADA Bishop acted in an investigative or administrative capacity. Plaintiff provides no
factual or legal support for her “deputization” theory. This allegation is simply too conclusory to
pierce the grant of absolute immunity here.
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City Defendants
The City Defendants also contend that the Officer Defendants are entitled to qualified
immunity as to Plaintiff’s Fourth Amendment claims of false arrest and malicious prosecution. 67
However, for the reasons explained below, the Court cannot find qualified immunity at this stage
of the litigation.
“Qualified immunity shields law enforcement officers from § 1983 claims for money
damages provided that their conduct does not violate clearly established constitutional rights of
which a reasonable person would have been aware.” Barboza v. D’Agata, ---F. App’x---, 2017
WL 214563, at *2 (summary order) (2d Cir. 2017) (citing Ashcroft v. al–Kidd, 563 U.S. 731, 735
(2011); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Zalaski v. City of Hartford, 723 F.3d
382, 388 (2d Cir. 2013)). It is an affirmative defense as to which the defendant officers or
officials bear the burden of proof. Harlow, 457 U.S. at 815.
In analyzing the applicability of qualified immunity, courts conduct a two-step analysis:
“First, do the facts show that the officer’s conduct violated plaintiff’s constitutional rights?
Second, if there was a constitutional violation, was the right clearly established at the time of the
officer’s actions?” Barboza, 2017 WL 214563, at *2 (citation omitted); Pearson v. Callahan,
555 U.S. 223 (2009). In short, “[e]ven if the right at issue was clearly established in certain
respects, . . . an officer is still entitled to qualified immunity if ‘officers of reasonable
competence could disagree’ on the legality of the action at issue in its particular factual context.”
Barboza, 2017 WL 214563, at *2 (emphasis in original) (quoting Walczyk v. Rio, 496 F.3d 139,
154 (2d Cir. 2007)). Moreover, courts are “permitted to exercise their sound discretion in
67

Although the City Defendants do not specify which claims they direct their qualified
immunity defense against, to the extent they assert the defense based on the existence of
probable cause, the defense goes to Plaintiff’s claims of false arrest and malicious prosecution.
(See Dkt. 59 at 12–27.)
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deciding which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
At this juncture, the Court cannot find that the Officer Defendants are entitled to qualified
immunity, especially where Plaintiff’s theory of liability is based on the alleged fabrication of
evidence and suppression of exculpatory evidence. (See, e.g., Am. Compl. ¶ 145 (with respect to
malicious prosecution claim, stating that a criminal complaint containing false information was
signed with knowledge that there was no legal basis to prosecute Plaintiff); Am. Compl. ¶ 222
(with respect to Section 1983 conspiracy claim, noting that Defendants conspired to accuse
Plaintiff of a crime she did not commit); Am. Compl. ¶ 225 (with respect to unreasonably
prolonged detention claim, noting that Defendants mishandled exculpatory evidence); Am.
Compl. ¶ 234 (noting that Plaintiff was in pretrial detention because of Defendants’ collateral
motive).)
Based on these allegations, Plaintiff has sufficiently demonstrated potential violations of
her constitutional right to be free from prosecution based on fabricated or suppressed exculpatory
evidence. Those rights were clearly established at the time of her prosecution and pretrial
detention, such that no reasonable officer could believe that fabricating evidence or suppressing
exculpatory evidence is constitutional. See Coggins v. Cnty. of Nassau, 988 F. Supp. 2d 231,
245, n.8 (E.D.N.Y. 2013) (“It is beyond cavil that [ ] conspiring to and actually falsifying police
records, evidence, and testimony violates clearly established rights . . . . and [ ] no public official
would think it was objectively reasonable to violate those rights.”); see also Coggins, 776 F.3d
108 (affirming the district court’s conclusion that qualified immunity was inappropriate); Blake
v. Race, 487 F. Supp. 2d 187, 214 (E.D.N.Y. 2007) (“The [Second Circuit] found qualified
immunity unavailable because conspiring to fabricate and forward to prosecutors a known false

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confession ‘violates an accused’s clearly established constitutional right, and no reasonably
competent police officer could believe otherwise.’” (quoting Ricciuti, 124 F.3d at 130); Golino v.
City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (“The right not to be arrested or prosecuted
without probable cause has, of course, long been a clearly established constitutional right.”).
The City Defendants assert that the Officer Defendants are entitled to qualified immunity
because a police officer who signs a supporting deposition under penalty of perjury may be
entitled to qualified immunity from a malicious prosecution claim if he reasonably relied on the
statement of a witness. See, e.g., Jean-Laurent v. Bowman, 2014 WL 4664662221, at *4 (citing
Loria v. Gorman, 306 F.3d 1271, 1289-90 (2d Cir. 2002)). However, because Plaintiff contends
that Dr. Kupferman’s and Dr. Landi’s diagnoses of Annie’s condition and the cause of her death
were “entirely unsupported and unsupportable by any medical science or clinical or forensic
evidence” (see Am. Compl. ¶¶ 150, 160), the Court cannot determine at this point whether it was
reasonable for the officers—some of whom are members of the NYPD Child Abuse Squad—to
rely on the statements of witnesses, such as Dr. Kupferman or Dr. Landi. Moreover, Plaintiff
alleges that the Officer Defendants (and Dr. Kupferman) ignored her claims of innocence out of
“unconcealed and unrestrained racism” (Am. Compl. ¶ 114), and that this led to her arrest and
prosecution. No reasonable officer would believe seeking arrest and prosecution based on such
improper motives was constitutional.
Additionally, in support of their argument, the City Defendants cite to V.S. v.
Muhammad, 595 F.3d 426 (2d Cir. 2010). Although V.S. may seem similar to the instant case,
the two are distinguishable in that the “reasonably objective” decision made by the defendants in
V.S. was in a very different circumstance from the challenged conduct of the Officer Defendants
here. In V.S., the Second Circuit held that a caseworker at the New York City Administration of

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Child Services was entitled to qualified immunity because she sought a court order permitting
the removal of a child from the parent. Id. at 431. On summary judgment, the district court
found that qualified immunity could not be granted given the plaintiff’s allegation that the
caseworker had relied on a diagnosis by a doctor who was known to have repeatedly
misdiagnosed children’s injuries as evidence of child abuse. Id. at 431 (district court reasoned
that “reliability of [the doctor’s] diagnosis . . . is an issue of material fact that goes directly to the
objective reasonableness of the caseworker in seizing and removing the child from his mother”).
The Second Circuit reversed the district court’s decision on qualified immunity, holding that “to
impose on [a] caseworker the obligation in such circumstances of assessing the reliability of a
qualified doctor’s past and present diagnoses would impose a wholly unreasonable burden of the
very kind qualified immunity is designed to remove.” Id. However, in V.S., the caseworker was
making a time-sensitive decision to remove a child from a potentially dangerous and abusive
environment. See V.S. ex rel. T.S. v. Muhammad, 581 F. Supp. 2d 365, 388 (E.D.N.Y. 2008)
(noting defendants’ argument that “in light of [the doctor’s diagnosis of injury caused by child
abuse], the caseworker’s belief in the imminent danger to the child was reasonable and their
removal of [the child] into protective custody was justified”); see also Cornejo, 592 F.3d at 128–
29 (recognizing that the caseworker defendants were forced to “choose between difficult
alternatives” and were reasonable to believe that “immediate temporary removal” of the children
from a potentially abusive environment was justified).
Here, in determining whether the officers reasonably believed that there was probable
cause to prosecute Plaintiff, the Court notes that the decision to prosecute was not made under
the same threat of imminent harm or time-sensitivity; there was no child to be protected from a
potentially abusive parent, as the Lis’ only child had already died. Nor was the decision to

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prosecute a temporary one. Moreover, in V.S., the Second Circuit found that the caseworker’s
actions were reasonable because the doctor had diagnosed the child with SBS “in the absence of
any plausible alternative.” V.S., 595 F.3d at 431 (emphasis added). By contrast, Plaintiff alleges
that there were several plausible alternative explanations to SBS as the cause of death, including
a genetic disorder and the child’s prior medical history, that the Officer Defendants chose to
ignore. (Am. Compl. ¶ 173.) Plaintiff also alleges that at some point, the Officer Defendants
became aware of information that cast doubt on the medical opinions, including the SBS
diagnosis, upon which the investigation was premised, but the officers failed to disclose that
information to the prosecution or consider it before deciding to prosecute Plaintiff or continue
that prosecution. (See, e.g., Am. Compl. ¶ 178.) At this stage, the Court must accept these
allegations as true, and thus V.S. does not dictate that the Officers are entitled to qualified
immunity.
Accordingly, the Court does not find that the Officer Defendants are entitled to qualified
immunity as to Plaintiff’s false arrest and malicious prosecution claims.
Dr. Landi
The City Defendants contend that Dr. Landi is entitled to absolute and qualified
immunity. (Dkt. 59 at 17.) Again, at this stage of the litigation, the Court finds it inappropriate
to dismiss claims against Dr. Landi based on immunity.
1.

Absolute Immunity

In determining whether Dr. Landi’s acitivity was investigative or prosecutorial, the Court
applies a “functional approach” and looks to the function being performed rather than to the
office or identity of the defendant. See Cornejo, 592 F.3d at 127 (citing Briscoe v. LaHue, 460
U.S. 325, 342 (1983)); see also Warney v. Monroe Cnty., 587 F.3d 113, 121 (2d Cir. 2009)
(identifying prosecutorial immunity “not by the identity of the actor but by reference to the
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‘function’ performed”); Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993)
(noting that immunity attaches to the “function performed, not [ ] the office itself”).
In arguing that Dr. Landi is entitled to absolute immunity, the City Defendants rely
heavily on Newton v. City of New York, 738 F. Supp. 2d 397 (S.D.N.Y. 2010). However, the
Court does not find Newton to be applicable here. In Newton, the plaintiff, who had been
convicted of rape, brought a civil rights action against a forensic scientist, employed by the
Office of the Chief Medical Examiner of the City of New York, for allegedly failing to conduct
proper DNA testing that would have exonerated the plaintiff. Id. at 400–03. The forensic
scientist had conducted a DNA test three years after the plaintiff was convicted for a courtordered adversarial post-conviction proceeding. The district court held that the scientist was
entitled to absolute and qualified immunity. Id. at 411, 416. However, in granting absolute
immunity, the court stated that “the protection of absolute immunity may not be appropriate in a
pre-conviction context where the jury’s determination of guilt may result from a faulty scientific
process, and where the laboratory scientist’s role is primarily an investigative one.” Id. at 411.
That distinction is critical here, given that Dr. Landi, unlike the forensic scientist in Newton, was
involved in Plaintiff’s criminal case in a pre-conviction context and is alleged to have provided
false statements and analyses in support of the criminal complaint and the NYPD’s investigation.
Based on the allegations in the Complaint, the Court cannot find, as a matter of law, that
Dr. Landi was acting in a prosecutorial role rather than an investigatory one. See Hill v. City of
New York, 45 F.3d 653 (2d Cir. 1995) (“[W]hen it may not be gleaned from the complaint
whether the conduct objected to was performed . . . in an advocacy or an investigatory role, the
availability of absolute immunity from claims based on such conduct cannot be decided as a
matter of law on a motion to dismiss.”); see also Wilkins v. Herky, No. 11–cv–6104, 2013 WL

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2385065, at *7 (W.D.N.Y. May 29, 2013) (“[I]t is appropriate to address absolute immunity in a
12(b)(6) context if the complaint clearly indicates the nature of the function for which the
defendant is being sued . . . .” (emphasis added)); also compare Newton, 738 F. Supp. 2d at 408,
412 (noting that the defendant-scientist was entitled to absolute immunity because the scientists’
role in the plaintiff’s criminal case was in an advocacy capacity and not for the purpose of
identifying potential suspects) with Cornejo, 592 F.3d at 128 (finding that the district court was
incorrect to find that a caseworker was entitled to absolute immunity because the caseworker’s
initiation of the child’s removal from his mother’s custody was functionally equivalent to police
officers making arrests in criminal cases).
2.

Qualified Immunity

The City Defendants also argue that Dr. Landi is entitled to qualified immunity because
she did not violate Plaintiff’s Fourth Amendment rights. (Dkt. 59 at 19.) The City Defendants
contend that Dr. Landi could not have falsely arrested or maliciously prosecuted Plaintiff and
thus there was no violation of Plaintiff’s clearly established constitutional right. (Id.) However,
the Court has ruled that Plaintiff’s malicious prosecution claim will, in fact, proceed against Dr.
Landi and several Officer Defendants. Furthermore, Plaintiff’s claims against Dr. Landi are not
limited to false arrest and malicious prosecution. For example, as previously discussed, Plaintiff
also asserts fair trial claims, based on alleged fabrication of evidence and concealment of
exculpatory evidence, against Dr. Landi. Accordingly, the Court cannot find, at this time, that
Dr. Landi is entitled to qualified immunity
Dr. Kupferman Is Not Entitled to Statutory Immunity
The Medical Center Defendants assert that Dr. Kupferman is entitled to statutory
immunity under the New York Child Protective Services Act. (Dkt. 55 at 2–3.)

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Section 413 of the Child Protective Services Act requires physicians, such as Dr.
Kupferman and FHMC’s staff, to report suspected child abuse if they have “reasonable cause” to
believe that a child has been abused. See N.Y. Soc. Serv. Law § 413(1)(a) (McKinney). Failure
to report a case of suspected child abuse is a class A misdemeanor. N.Y. Soc. Serv. Law § 420
(McKinney). Section 419 of the Child Protective Services Act provides good faith immunity
from any liability to individuals who report suspected cases of child abuse. That section states in
pertinent part:
Any person, official or institution participating in good faith in . . . the making of
a report [of suspected child abuse] . . . pursuant to this title shall have immunity
from any liability, civil or criminal, that might otherwise result by reason of such
actions. For the purpose of any proceeding, civil or criminal, the good faith of
any such person, official or institution required to report cases of child abuse or
maltreatment . . . shall be presumed. . . .
Contrary to the Medical Center Defendants’ assertion, the Court does not find Thomas v.
Beth Israel Hospital Inc., 710 F. Supp. 935 (S.D.N.Y. 1989) to be particularly relevant. In
Thomas, the court held that the defendant-physician who examined an infant and reported
suspected child abuse had immunity under Section 419 of the Child Protective Services Act
because the physician had “reasonable cause” to suspect abuse when the examination revealed
multiple abrasions and black and blue marks. Id. at 941–42. In contrast to Thomas, however,
Plaintiff alleges that Dr. Kupferman’s role went beyond simply reporting suspected child abuse.
Plaintiff alleges that Dr. Kupferman took on an active role in investigating the Lis. (See Am.
Compl. ¶ 115 (Kupferman “repeatedly screamed at [the Lis] that they killed their daughter . . .
.”); Am. Compl. ¶ 120 (“Kupferman conducted a ‘forensic interview’ of plaintiff.”)).
Similarly, the Court is not convinced by the Medical Center Defendants’ reliance on
Storck v. Suffolk County Dep’t of Social Servs., 62 F. Supp. 2d 927, 946 (E.D.N.Y. 1999)
because, there, the court “clearly” found that the defendant doctors were acting “in the discharge
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of their duties and within the scope of their employment.” Here, Plaintiff’s allegations, accepted
as true, suggest that Dr. Kupferman’s conduct may have exceeded the scope of her employment
with FHMC. (See, e.g., Am. Compl. ¶ 157 (Kupferman “acted as a deputy of the NYPD and the
Queens County D.A.’s Office” (emphasis in original)); Am. Compl. ¶ 161 (Kupferman “played
an active role in the prosecution of Ying Li . . . that went well beyond her role, and into ancillary
and forensic aspects of determining motive, culpability, and the veracity of Ying Li.”).)
Moreover, Plaintiff alleges that Dr. Kupferman’s determination that Annie died of SBS was
“such a substantial departure from accepted professional judgment, practice, or standards” (Am.
Compl. ¶ 235), and that Dr. Kupferman failed to consider other pertinent information that might
have suggested alternative causes for Annie’s death (see, e.g., Am. Compl. ¶ 122). Taking these
allegations as true, such alleged acts “go beyond mere error and amount to willful misconduct,”
and thus Dr. Kupferman would not be entitled to statutory immunity based on the lack of “good
faith”. See Section 419 of the Child Protective Services Act; see also Estiverne v. EsernioJenssen, 581 F. Supp. 2d 335, 347 (E.D.N.Y. 2008) (allowing plaintiffs to proceed with
discovery to prove their allegations of bad faith on the part of the Medical Center Defendants and
denying statutory immunity, given that plaintiff alleged that the defendant-doctor’s “diagnosis of
child abuse was not supported by any medical evidence . . . [and] that she disregarded the
medical assessment of a colleague.”).
Accordingly, because the Court cannot determine at this time whether Dr. Kupferman
enjoys immunity under the Child Protective Services Act, the Court denies the Medical Center
Defendants’ motion to dismiss the claims against Dr. Kupferman on the ground that she is
statutorily immune.

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XIV. LEAVE TO AMEND
Plaintiff has requested leave to amend her complaint in the event any of her claims are
dismissed. For the reasons discussed below, the Court denies that request in its entirety.
Federal Rules of Civil Procedure 15(a) provides that a court “should freely give leave [to
amend] when justice so requires.” “Although ‘it is the usual practice upon granting a motion to
dismiss to allow leave to replead, such leave should be denied where the proposed amendment
would be futile.’” B. v. City of New York, No. 14–CV–1021, 2016 WL 4530455, at *18
(E.D.N.Y. Aug. 29, 2016) (citation and quotation marks omitted); see also Hill v. Curcione, 657
F.3d 116, 123 (2d Cir. 2011). An amendment to a pleading is considered futile if the claim is
time-barred due to the expiration of the applicable statute of limitations period. See, e.g., Kwon
v. Santander Consumer U.S.A., No. 15–CV–3352, 2016 WL 6518578, at *6 (E.D.N.Y. Oct. 6,
2016) (dismissing with prejudice claims that are time-barred while allowing the plaintiff to
replead his other claims); Johnson v. New York City Police Dept., 651 F. App’x. 58 (2d Cir.
2016) (summary order) (affirming district court’s dismissal of the plaintiff’s Section 1983 claims
“without granting him an opportunity to amend or discussing whether leave to amend would be
appropriate” because the three-year statute of limitations expired).
First, the Court denies, as futile, leave to amend any time-barred claims and all claims
against ADA Bishop, whom the Court has found is entitled to absolute immunity. See, e.g.,
Harrison v. Cnty. of Nassau, No. 15–cv–2712, 2016 WL 4083381, at *6 (E.D.N.Y. Aug. 1,
2016) (denying leave to replead claims against ADAs “because it is clear that all of plaintiff’s
allegations relate to their involvement in [plaintiff’s] prosecution and are therefore protected by
absolute immunity”); Johnson, 651 F. App’x at 61 (finding leave to amend would be futile where
the district court found the prosecutor was entitled to absolute immunity); Contreras v.
Perimenis, 562 F. App’x 50 (Summary Order) (2d Cir. 2014) (same).
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Second, the Court exercises its discretion to deny Plaintiff leave to amend as to the other
claims that the Court has dismissed. Avent v. Doe, No. 2008 WL 877176, at *14 (N.D.N.Y. Mar.
31, 2008) (“Plaintiff has already filed one amended complaint in this action, and this court has
found that the complaint does not state a claim[.]”). The Court already permitted Plaintiff the
opportunity to amend the complaint, and, in fact, at the pre-motion conference held in connection
with Defendants’ motions to dismiss, urged Plaintiff to correct the deficiencies identified in
Defendants’ pre-motion conference requests and at the conference, and to pare down her claims
to only viable ones. However, as noted throughout this decision, Plaintiff did not heed the
Court’s advice, nor make good use of that opportunity to prune her complaint of invalid claims
or to add useful or relevant factual allegations or particularity to her complaint, which is
currently 275 paragraphs. To allow Plaintiff to attempt to amend her complaint again would be
an act of futility and a waste of resources. The Court therefore denies Plaintiff leave to amend
her complaint a second time.
In summary, the following claims are dismissed:
•

Count 1 (False Arrest and Imprisonment) – as to all Defendants;

•

Count 2 (Malicious Prosecution) – as to all Defendants, except Defendants Degnan and
Landi, and the Medical Center Defendants;

•

Count 3 (Malicious Abuse of Process) – as to all Defendants, except Defendants Degnan and
Landi;

•

Count 4 (Failure to Intervene) – as to all Defendants;

•

Count 5 (Section 1983 Conspiracy) – as to all Defendants, except Defendants Degnan,
Moser, Phelan, Heffernan, and Landi, and the Medical Center Defendants;

96

•

Count 6 (Unreasonably Prolonged Detention) – as to all Defendants, except Defendants
Degnan, Moser, Phelan, Heffernan, and Landi;

•

Count 7 (Due Process) – as to all Defendants, except Defendants Degnan, Moser, Phelan,
Heffernan, Landi, and Medical Center Defendants. However, the speedy trial aspects of
Plaintiff’s due process claim is dismissed as to the Medical Center Defendants. Moreover,
Plaintiff’s due process claim of failure to investigate and conditions of confinement are
dismissed as to all Defendants.

•

Count 10 (State Constitution) – as to all Defendants.
CONCLUSION
For the reasons stated above, the City Defendants’ motion to dismiss is GRANTED in

part and DENIED in part. The Medical Center Defendants’ motion to dismiss is GRANTED in
part and DENIED in part. Plaintiff shall proceed on the following claims:
•

Malicious Prosecution against Defendants Degnan, Landi, and the Medical Center
Defendants;

•

Malicious Abuse of Process against Defendants Degnan and Landi;

•

Section 1983 Conspiracy against Defendants Degnan, Moser, Phelan, Heffernan,
Landi, and the Medical Center Defendants;

•

Unreasonably Prolonged Detention against Defendants Degnan, Moser, Phelan,
Heffernan, and Landi;

•

Due Process (Brady violation and fabrication of evidence) against Defendants
Degnan, Moser, Phelan, Heffernan, and Landi, and the Medical Center
Defendants;

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•

Due Process (speedy trial) against Defendants Degnan, Moser, Phelan, Heffernan,
and Landi;

•

Monell claims against the City and FHMC.

Given that several Defendants as to whom claims are proceeding are not yet represented
(see supra footnote 1), Plaintiff shall by April 14, 2017 advise the Court in writing how she
intends to proceed with respect to these Defendants.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 31, 2017
Brooklyn, New York

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