Creese et al v. The City of New York et al

Filing 45

ORDER granting 35 Motion for Summary Judgment: For the reasons stated in the attached opinion, defendants' motion for summary judgment is granted in its entirety and all claims against the defendants are hereby dismissed. The Clerk of Court is directed to enter judgment accordingly and close the case. Ordered by Judge Allyne R. Ross on 7/23/2019. (Zimmer, Allison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JANEKA CREESE and DEBRA CREESE,

17-cv-3659 (ARR) (ST)

Plaintiffs,
v.

Not for electronic or print
publication

THE CITY OF NEW YORK et al.,
Defendants.

Opinion & Order
ROSS, United States District Judge:
Plaintiffs, Janeka Creese and Debra Creese, bring this civil-rights action under 42 U.S.C.
§ 1983 and New York state common law against the City of New York, Police Officer Jelinson
Martinez, and several unnamed employees of the New York City Police Department (“NYPD”)
(collectively, “defendants”). Plaintiffs allege that they were falsely arrested, maliciously
prosecuted, and deprived of their right to a fair trial as a result of defendants’ actions in the earlymorning hours of March 19, 2016. Defendants have moved for summary judgment on all of
plaintiffs’ claims. For the reasons explained below, defendants’ motion is granted in full, and
plaintiffs’ claims are hereby dismissed.
BACKGROUND
At 10:00 P.M. on March 18, 2016, Janeka Creese began her shift as a bartender at Café
Omar, a bar and restaurant located in Brooklyn.1 See Rameau Decl. Ex. 1, at 17:9–18:7, 19:11–12,
ECF No. 40-1 (“J. Creese Dep.”); Defs.’ 56.1 ¶ 11, ECF No. 37. Café Omar has a large open space
that can accommodate more than 200 people. J. Creese Dep. 20:2–8. Inside, there is one bar, which
is located in the back-right corner of the establishment. Id. at 20:9–13. On March 18, 2016, there

1

Unless otherwise noted, the facts set forth herein are undisputed.
1

were two security guards standing outside the front door of Café Omar. Id. at 21:2–9. Among other
things, the security guards were responsible for checking identification cards and providing gold
and black wristbands to all patrons who were at least 21-years-old. Id. at 23:5–24:10.
After arriving at the bar, Janeka2 began serving drinks, including alcoholic beverages, to
patrons of Café Omar. Id. at 24:19–25:1, 26:18–27:13; see also Defs.’ 56.1 ¶ 11. Shortly before
midnight, Janeka called her mother, Debra, and asked if Debra could come to the bar to bring her
dinner. J. Creese Dep. 27:14–25; see also Rameau Decl. Ex. 2, at 18:4–19:18, ECF No. 40-2 (“D.
Creese Dep.”); Pls.’ 56.1 ¶ 29, ECF No. 39. Debra arrived with the food and then decided to stay
at Café Omar to keep her daughter company while she worked. Pls.’ 56.1 ¶ 30. Debra sat just
outside of the bar, near where Janeka was working. See J. Creese Dep. 28:13–30:8. Janeka
remained inside the bar, and she continued to serve customers alcohol and other drinks after her
mother arrived. Id. at 30:3–8; D. Creese Dep. 26:5–7. According to both Janeka and Debra, Janeka
was the only bartender working at Café Omar at the time. See J. Creese Dep. at 25:8–12; D. Creese
Dep. 20:14–21:11, 22:6–15. Debra maintains that she did not help her daughter with her bartending
responsibilities at any point that night, and she testified that she has never worked for Café Omar
in any capacity. D. Creese Dep. 20:23–21:11.
Soon after Debra arrived, a group of police officers entered Café Omar and walked towards
the bar. J. Creese Dep. 30:25–31:17. Officer Jelinson Martinez, who testified that he arrived at
Café Omar to conduct a business inspection, was one of the officers in the group. Defs.’ 56.1 ¶¶
1–2; see also Rameau Decl. Ex. 3, at 50:14–51:24, 81:25–82:24, ECF No. 40-3 (“Martinez Dep.”).
Martinez asked the DJ to turn off the music and turn on the lights, and he walked over to the bar.
Martinez Dep. 68:5-69:3. He entered the bar area, where Janeka was standing, and asked to see

2

For simplicity, I refer to both plaintiffs by their first name throughout this opinion and order.
2

Café Omar’s liquor license. See J. Creese Dep. 38:9–25; see also Defs.’ 56.1 ¶ 12. Martinez
testified that he saw two women behind the bar, and he told them both to stop serving drinks until
he completed his inspection. Martinez Dep. 65:20–66:2, 69:2–8, 94:18–95:9; see also Defs.’ 56.1
¶ 10. During this exchange, however, Debra maintains that she remained seated outside of the bar,
and she insists that she did not step foot inside the bar at any point. See D. Creese Dep. at 25:19–
26:15; see also J. Creese Dep. 39:13–17; Pls.’ 56.1 Resp. ¶ 17, ECF No. 39. Janeka also testified
that none of the officers spoke directly with her mother at this time. J. Creese Dep. 39:18–19.
Despite these disputes, the parties appear to agree that there were no other patrons in the immediate
vicinity of the bar at the time that Martinez spoke with Janeka. See Defs.’ 56.1 ¶ 17; see also D.
Creese Dep. 32:24–33:15.
Martinez completed his review of the liquor license and exited the bar. J. Creese Dep. 39:6–
12. He began asking patrons to leave the area surrounding the bar so that he could get a proper
count of the number of people inside Café Omar. Martinez Dep. 70:3–14, 73:4–75:19, 79:23–80:9.
Around this time, the bar area was relatively empty, and many of the patrons who were near the
bar began to disperse when Martinez told them to leave. See D. Creese Dep. 33:9–34:8; Martinez
Dep. 79:20–80:9. As Martinez walked around the establishment, he noticed that there was a
“young crowd” at Café Omar that night. Martinez Dep. 80:4–13; see also Defs.’ 56.1 ¶ 3. In
particular, he noticed two young men near the bar who were holding drinks and “looked way too
young to have those drinks.” Martinez Dep. 86:3–9; Defs.’ 56.1 ¶ 4. The two young men, N.D.
and his cousin B.A., were standing approximately 15 feet away from the bar. Martinez Dep. 86:18–
87:6; Rameau Decl. Ex. 4, at 8:11–13, 10:25–11:9, ECF No. 40-4 (“N.D. Dep.”); Defs.’ 56.1 ¶¶
4–5. It is undisputed that both N.D. and B.A. were under 21-years-old at the time, and that both

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young men were holding cups of alcohol. See Defs.’ 56.1 ¶¶ 4–7; see also Jaffe Decl. Ex. C, ECF
No. 36-3 (“N.D. Aff. of Sale”); Jaffe Decl., Ex. D, ECF No. 36-4 (“B.A. Aff. of Sale”).
N.D., who sat for a deposition in conjunction with this lawsuit on July 5, 2018, testified
that he did not receive a wristband from the security guards before he entered Café Omar. N.D.
Dep. 8:20–9:15. It is undisputed, however, that he came into possession of an alcoholic beverage
at some point that night, though at the time of his deposition he did not recall how he got the liquor.
Id. at 9:19–10:8.3 After Martinez noticed N.D. and B.A., he asked them their age. Martinez Dep.
90:20–91:9. Both young men admitted that they were under 21. Id. at 90:25–91:9, 94:7–17.
According to Martinez, he also asked N.D. and B.A. how they got their drinks. Id. 91:11–12,
94:19–20. Martinez testified that N.D. responded by “point[ing] to the bar and the person behind
the bar,” indicating that the bartender served him the alcohol. Id. at 91:12–23. When he was
deposed, Martinez was unable to recall any of the characteristics of the person to whom N.D.
pointed, but he remembers that N.D. was clearly referring to someone behind the bar. Id. at 91:11–
92:3. Martinez testified that he also asked B.A. who sold him the liquor, and B.A. “pointed at the
other bartender in the bar.” Id. at 94:18–95:9. Martinez does not recall recording this information
in his notes from that night, and there are no contemporaneous records that demonstrate that N.D.
and B.A. made these alleged identifications. Id. at 92:4–12, 95:11–14.
N.D. disputes Martinez’s account. Though he acknowledges that he told Martinez his age,
he claims that he did not point to the person who sold him the drink or otherwise identify that
person to Martinez. N.D. Dep. 12:21–13:11. N.D. testified that Martinez handcuffed him and
detained him “right on the spot,” immediately after he admitted that he was underage and in

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Though N.D. initially testified that he does not recall whether he got the drink from the bar, N.D. Dep.
10:6–8, he later testified that he “never attempted to get a drink at the bar” because he was not in possession
of a wristband, id. at 26:11–20.
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possession of alcohol. Id. at 12:3–8. N.D. also testified that he was standing with B.A., his cousin,
the entire time that both young men were being questioned by Martinez. Id. at 12:12–17. However,
when he was asked whether he “notice[d] [B.A.] identifying anybody [to Officer Martinez],
pointing to people around the bar,” N.D. did not answer directly, responding instead that “[y]ou
would have to ask [B.A.]” that question. Id. at 13:18–20. According to N.D., B.A. was also
handcuffed and detained “right away.” Id. at 14:3–7. B.A. was not deposed for this lawsuit and he
has not submitted a declaration or affidavit at any point during the course of discovery. See Pls.’
Opp’n 5 & n.2, ECF No. 41.
After speaking with N.D. and B.A., Martinez returned to the bar and told Debra and Janeka
that they were under arrest for selling alcohol to underage customers. Martinez Dep. 98:8–18; D.
Creese Dep. 30:21–31:19; see also J. Creese Dep. 40:11–24. Both women denied serving alcohol
to minors. Defs.’ 56.1 ¶ 21. Specifically, Janeka testified that she told Martinez that “no one sold
minors any liquor,” and she explained that no alcohol had been sold at all “from the time [Martinez]
walked over to the bar” until the time that he returned to arrest the two women. J. Creese Dep.
40:17–24. Debra testified that she also told Martinez that neither of the women sold alcohol to
minors, and that the bar had been closed since Martinez first arrived at Café Omar. D. Creese Dep.
31:12–19. Despite their protestations, Martinez handcuffed Debra and Janeka and both women
were transported to the 67th police precinct for processing. Martinez Dep. 102:2–103:4; D. Creese
Dep. 39:23–41:17; J. Creese 45:13–22. They were kept in a cell for several hours, before they were
transported to central booking the following day. D. Creese Dep. 41:18–42:2; J. Creese Dep.
47:15–48:1.
Meanwhile, N.D. and B.A. were also taken to the police precinct. N.D. Dep. 16:8–10.
Martinez testified that he does not know how N.D. and B.A. ended up at the precinct, and he does

5

not recall having any further conversations with the two young men that night. Martinez Dep.
174:19–175:24.4 At some point, however, someone at the precinct asked N.D. to complete an
affidavit. N.D. Dep. 20:14–17; see also N.D. Aff. of Sale.5 N.D.’s affidavit states that he is 19years-old. See N.D. Aff. of Sale. On the form, N.D. states that he purchased “a cup [of] Hennessy,
an alcoholic beverage, and paid $10 to a bartender, who is described as female, 5’6, black[,] at
Café Omar.” Id. The affidavit is signed and dated. Id. At the bottom of the affidavit, there is a
warning in bolded capitalized letters, cautioning affiants that “FALSE STATEMENTS MADE
HEREIN ARE PUNISHABLE AS A CLASS A MISDEMEANOR PURSUANT TO SECTION
210.45 OF THE NEW YORK STATE PENAL LAW.” Id.
When he was questioned about the affidavit during his deposition, N.D. testified that he
completed the affidavit because he thought that it would “expedite” his release process. N.D. Dep.
22:12–23, 27:22–24. He stated that an officer told him that he would be released in 20 minutes if
he complied. Id. at 23:2–12. However, he affirmed that no one told him that anything would happen
to him if he did not complete the form. Id. at 41:2–11. As he completed the affidavit, the officer
gave him certain instructions, directing him to write down the cost of the drink and the location of
the bar on the affidavit. Id. at 28:14–21, 37:9–22. N.D. clarified, however, that he does not recall
the officer telling him to write down any specific information on the form, see, e.g., id. at 24:14–

4

Martinez testified that he does not remember whether he handcuffed N.D. and B.A. before they were taken
to the precinct, and he does not recall how they were transported to the precinct. He does recall, however,
that both young men were issued summonses once they made it to the precinct. Martinez Dep. 96:12–97:25.
5
The record does not clearly indicate when N.D. and B.A. completed the affidavit-of-sale forms. Taking
the evidence in the light most favorable to plaintiffs, I assume that these forms were not completed until
after plaintiffs were arrested. Therefore, I do not consider them in my analysis of whether defendants had
probable cause to arrest the plaintiffs. However, though plaintiffs object to the circumstances in which the
forms were completed, it is undisputed that the forms were signed and completed before plaintiffs were
charged, and I therefore consider them in evaluating the malicious prosecution claims. See, e.g., Pls.’ Opp’n
11–14 (arguing that, despite the existence of the affidavits, defendants did not have probable cause to initiate
plaintiffs’ prosecution).
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23, 28:14–21, 29:13–22, and he testified that the officer told him to complete the document “with
the information [N.D.] had at the time,” id. at 31:20–23. N.D. further testified that he does not
recall the officer directing him to write that he purchased the drink from a bartender, id. at 24:14–
23, and he does not believe that he lied anywhere on the form, id. at 27:22–28:1; see also id. at
32:4–15 (“Q: Is that information the officer gave you, this information about the bartender being
female and 5’6? . . . A: The officer didn’t give me that information.”).
Upon further questioning, N.D. testified that he was “instructed on putting something
down on this paper,” but he could not recall the nature or content of those instructions. Id. at 37:13–
22 (“I can’t tell you, specifically, which—like whether it was the bartender part, the female, 5’6
part, but I know that I had to follow certain instructions like under the premise that I would be
getting out.”). He testified that he recalled seeing a black female bartender at Café Omar that night,
but he does not remember noticing her height at the time. Id. at 34:14–35:2; see also Defs.’ 56.1 ¶
9. Finally, when asked whether it would be “fair to say that someone gave [him] [the bartender’s]
height,” he responded, “Is it fair, yeah, it would be fair, I guess.” N.D. Dep. 40:16–20.
B.A. also completed a sworn affidavit while at the precinct. See Defs.’ 56.1 ¶ 18; B.A. Aff.
of Sale. B.A’s affidavit states that he was 18-years-old on March 19, 2016. B.A. Aff. of Sale. It
further states that B.A. purchased “Hennessy, an alcoholic beverage, and paid $10.00 to a
bartender, who is described as female, 5’5, old lady[,] at Café Omar.” B.A. Aff. of Sale. Like
N.D.’s affidavit, B.A.’s affidavit is signed, and it contains a warning at the bottom cautioning
affiants that any false statements “are punishable as a class A misdemeanor.” Id. Janeka is a 5’8”
black woman. See Defs.’ 56.1 ¶ 15; Jaffe Decl. Ex. G, ECF No. 36-7. At the time of her arrest, she
was 30-years-old. See Jaffe Decl. Ex. G. Her mother, Debra, was 64-years-old at the time of her
arrest, and she is a 5’6” black woman. See Defs.’ 56.1 ¶ 19; Jaffe Decl. Ex. H, ECF No. 36-8.

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Janeka was charged with selling alcohol to an underage person in violation of section 65
of New York’s Alcohol and Beverage Control Law, which forbids the sale of alcoholic beverages
to “[a]ny person, actually or apparently, under the age of twenty-one years.” See Jaffe Decl. Ex. J,
ECF No. 36-10 (“Janeka Creese Certificate of Disposition”). She accepted an adjournment in
contemplation of dismissal, and the charge against her was dismissed thereafter on September 16,
2016. See Janeka Creese Certificate of Disposition; Defs.’ 56.1 ¶ 26. Debra was also charged with
selling alcohol to an underage person. See Rameau Decl., Ex. 5, ECF No. 40-5. The charge against
Debra was dismissed outright, by motion of the district attorney, on March 19, 2016. Id.
Plaintiffs filed this lawsuit on June 16, 2017, originally asserting ten claims against the
defendants. See Compl. ¶¶ 41–92, ECF No. 1. Today, the following claims remain in this lawsuit:
federal claims for false arrest, malicious prosecution, denial of the right to a fair trial, malicious
abuse of process, and failure to intervene, and a state-law claim for malicious prosecution.6
STANDARD OF REVIEW
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact.” Fed. R. Civ. P. 56(a). A material fact is one that “can affect the outcome
under the applicable substantive law.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A
genuine dispute is one that can “reasonably be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In performing this analysis, I must resolve all
ambiguities and draw all inferences in favor of the non-moving party. Gallo v. Prudential

6

In their opposition, plaintiffs withdraw the four other claims originally asserted: state-law false arrest,
municipal liability under Monell, state-law assault and battery, and negligent hiring, retention, and
supervision. Pls.’ Opp’n 1. Further, as I explain below, plaintiffs fail to address the defendants’ arguments
for dismissal of two of the claims that they have not explicitly withdrawn: malicious abuse of process and
failure to intervene. Because I conclude that plaintiffs’ failure to address these claims constitutes
abandonment, and I am persuaded by defendants’ other arguments for dismissal, I grant defendants’ motion
for summary judgment on these claims.
8

Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). “If, in this generous light, a material issue
is found to exist, summary judgment is improper, and the case must proceed to trial.” Nationwide
Life Ins. Co v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999) (quoting Eastway Constr.
Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985)).
The moving party may demonstrate that there is no genuine dispute “by showing that little
or no evidence may be found in support of the nonmoving party’s case.” Gallo, 22 F.3d at 1223–
24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If this burden is met, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for
trial.” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). “Speculation, conclusory allegations
and mere denials are not enough to raise genuine issues of fact.” Bacchus Assocs. v. Hartford Fire
Ins. Co., 766 F. Supp. 104, 108 (S.D.N.Y. 1991). “The nonmoving party cannot defeat summary
judgment by ‘simply show[ing] that there is some metaphysical doubt as to the material facts,’ or
by a factual argument based on ‘conjecture or surmise.’” McClellan v. Smith, 439 F.3d 137, 144
(2d Cir. 2006) (alteration in original) (first quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); then quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991)). If “no rational finder of fact ‘could find in favor of the nonmoving party because the
evidence to support its case is so slight,’ summary judgment must be granted.” Brown v. Eli Lilly
& Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288,
292 (2d Cir. 2010)).
DISCUSSION
Defendants moved for summary judgment on all of plaintiffs’ claims. Because I conclude
that there are no genuine disputes of material fact, I grant defendants’ motion in its entirety.
I.

False Arrest

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Both plaintiffs allege that they were falsely arrested by Officer Martinez on March 19,
2016, in violation of 42 U.S.C. § 1983. See Compl. ¶¶ 41–43. “The elements necessary to state a
claim for false arrest under § 1983 are the same as those necessary to state a claim for false arrest
under New York law.” Douglas v. City of New York, 595 F. Supp. 2d 333, 339–40 (S.D.N.Y.
2009). Specifically, “a plaintiff must show that (1) the defendant intentionally confined the
plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the
confinement; and (4) the confinement was not otherwise justified.” Id. at 340. An arrest is justified
if there was probable cause to believe that the person being arrested committed a crime. See Weiner
v. McKeefery, 90 F. Supp. 3d 17, 28–29 (E.D.N.Y. 2015); Bryant v. Rudman, 933 F. Supp. 270,
274 (S.D.N.Y. 1996) (“There is no liability under § 1983 for false arrest . . . if the arresting officer
had probable cause to arrest the plaintiff.”).
Probable cause exists when a police officer has “knowledge of, or reasonably trustworthy
information as to, facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that an offense has been or is being committed by the person to be arrested.”
Finigan v. Marshall, 574 F.3d 57, 62 (2d Cir. 2009) (quoting Zellner v. Summerlin, 494 F.3d 344,
368 (2d Cir. 2007)). The inquiry is based on the “totality of the circumstances.” Weiner, 90 F.
Supp. 3d at 29 (quoting Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)). In
determining whether the officer had probable cause, the court may consider only those “facts
available to the officer at the time of the arrest and immediately before it.” Panetta v. Crowley,
460 F.3d 388, 395 (2d Cir. 2006) (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir.
2002)). “The fact that an innocent explanation may be consistent with the facts alleged . . . does
not negate probable cause.” Id. (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985));
see also Castro v. County of Nassau, 739 F. Supp. 2d 153, 168 (E.D.N.Y. 2010) (“[A] suspect’s

10

denials are insufficient to obviate probable cause.” (citation omitted)). In establishing probable
cause, a police officer is entitled to rely upon information obtained from an informant as long as
there are no “circumstances [that] raise doubts as to the [informant’s] veracity.” Singer v. Fulton
Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995).
Defendants argue that Officer Martinez had either probable cause or arguable probable
cause to arrest both plaintiffs. See Defs.’ Br. 5–12, ECF No. 38. “Under federal law, a police officer
is entitled to qualified immunity where ‘(1) his conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known, or (2) it was
“objectively reasonable” for him to believe that his actions were lawful at the time of the
challenged act.’” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (quoting Cerrone v.
Brown, 246 F.3d 194, 199 (2d Cir. 2001)). In the context of a false arrest claim, a defendant has
qualified immunity if there was “‘arguable’ probable cause at the time of arrest.” Id. Arguable
probable cause is not equivalent to “‘almost’ probable cause.” Id. Instead, “[a]rguable probable
cause exists when ‘a reasonable police officer in the same circumstances and possessing the same
knowledge as the officer in question could have reasonably believed that probable cause existed
in the light of well established law.” Cerrone, 246 F.3d at 202–03 (quoting Lee v. Sandberg, 136
F.3d 94, 102 (2d Cir. 1997)). The denial of qualified immunity is appropriate only where an
officer’s judgment was “so flawed that no reasonable officer would have made a similar choice.”
Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 2001) (quoting Lennon v. Miller, 66 F.3d
416, 425 (2d Cir. 1995)).
A. Officer Martinez is entitled to qualified immunity on Janeka Creese’s false arrest
claim.
In determining whether there was either probable cause or arguable probable cause for an
arrest, “the court looks only to the information the arresting officer had at the time of the arrest.”
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Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998)). Both parties agree that
Officer Martinez was aware of the following information when he arrested Janeka: (1) Janeka was
working as a bartender at Café Omar during the early-morning hours of March 19, 2016; (2) Janeka
was standing behind the bar when Officer Martinez approached the bar area; and (3) a young man,
N.D., who was standing approximately 15 feet away from the bar with a cup of alcohol, admitted
to Martinez that he was under the age of 21. See Defs.’ 56.1 ¶¶ 4–6, 11–12. According to Martinez,
N.D. identified Janeka as the person who sold him alcohol before Officer Martinez arrested Janeka.
See Martinez Dep. 91:16–23. Plaintiffs vehemently contest that this identification ever took place.
See Pls.’ 56.1 Resp. ¶ 8; N.D. Dep. 12:21–13:11, 24:24–25:3. Construing the evidence in the light
most favorable to plaintiffs and assuming that N.D.’s in-person identification did not occur, I
conclude that Janeka’s arrest was supported by arguable probable cause.
When Officer Martinez learned that an underage customer at Café Omar was in possession
of alcohol, he was “entitled to draw reasonable inferences from the facts [he] possess[ed] at the
time of [the] seizure.” Cerrone, 246 F.3d at 203. Here, it was entirely reasonable for Officer
Martinez to believe that Janeka—who was working as a bartender on March 19, 2016, and who
Officer Martinez observed behind the bar—had provided N.D. with the liquor he was holding that
night. See, e.g., Minott v. Duffy, No. 11 Civ. 1217(KPF), 2014 WL 1386583, at *10 (S.D.N.Y.
Apr. 8, 2014) (“[P]robable cause is a fluid concept—turning on the assessment of probabilities in
particular factual contexts . . . .” (quoting Gaston v. City of New York, 851 F. Supp. 2d 780, 788
(2012)); Levy v. City of New York, 935 F. Supp. 2d 575, 590–91 (E.D.N.Y. 2013) (“In establishing
whether arguable probable cause existed, officers are entitled to draw reasonable inferences from
the facts they possess[ed] . . . based upon their own experiences.” (quotation marks and citation
omitted)). N.D. was standing relatively close to the bar, in the open space surrounding the bar.

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Martinez Dep. 86:18–87:6. Though N.D. could have acquired the alcohol through many other
sources, “the fact that an innocent explanation may be consistent with the facts alleged . . . does
not negate probable cause.” Panetta, 460 F.3d at 395. The question, then, is not whether Janeka is
the only person who could have been responsible for selling N.D. alcohol; the question is whether
an officer in Officer Martinez’s position could have reasonably believed that Janeka was the
responsible party. See, e.g., Cerrone, 246 F.3d at 202–03. Based on the undisputed circumstances,
I cannot conclude that it was objectively unreasonable for Officer Martinez to have believed that
probable cause existed.7
Plaintiffs argue that Janeka’s mere presence in the bar on March 19, 2016 was insufficient
to establish probable cause or arguable probable cause for her arrest. See Pls.’ Opp’n 7–10. They
cite several cases in which courts held that bystanders were falsely arrested because there was an
absence of evidence to establish that the arrested party was responsible for a crime. See id.; see
also Minott v. Duffy, No. 11 Civ. 1217(KPF), 2014 WL 1386583, at *13 (S.D.N.Y. Apr. 8, 2014)
(“[M]ere presence . . . at a scene of criminal activity . . . [does not] establish[] probable
cause.” (alterations in original) (quoting People v. Flores, 276 A.D.2d 710, 710 (N.Y. App. Div.
2000)); Perez v. Duran, 962 F. Supp. 2d 533, 539 (S.D.N.Y. 2013) (holding that “the recovery of
drugs from a suspected buyer without evidence of any exchange between a suspected seller and a
suspected buyer found to possess drugs” was insufficient to establish probable cause). Unlike
Perez and Minott, this case involves an additional undisputed fact linking Janeka to the sale of
liquor: Janeka was working as a bartender at Café Omar that night, where she was responsible for
serving alcohol to patrons. Moreover, Janeka asserts that she was the only bartender that night, and

7

Because the existence of arguable probable cause entitles defendants to dismissal on the false arrest claims,
I need not decide whether there was actual probable cause to arrest Janeka. Cf. Dewitt v. City of Troy, No.
1:09-cv-16, 2010 WL 3312634, at *4–5 (N.D.N.Y. Aug. 19, 2010) (holding that there was either “probable
cause, or arguable probable cause” to arrest plaintiff, without deciding which).
13

it is undisputed that Café Omar had only one bar within the establishment. The combination of
Janeka’s job and N.D.’s admission regarding his age gave rise to a reasonable inference that Janeka
sold N.D. alcohol that night. Cf. Ornelas v. United States, 517 U.S. 690, 699–700 (1996) (“[A]
police officer views the facts through the lens of his police experience and expertise . . . . [and]
may draw inferences based on his own experience in deciding whether probable cause exists.”).
Likewise, the fact that Janeka denied selling alcohol to minors does not defeat probable
cause or arguable probable cause for her arrest. See Castro, 739 F. Supp. 2d at 168; see also Krause
v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) (“Once officers possess facts sufficient to establish
probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury.”). And
while N.D. testified in his deposition that he “never attempted to get a drink at the bar” because he
was not in possession of a wristband, N.D. Dep. 26:11–20, this too is immaterial. N.D.’s disputed
recollection and denials years after his arrest do not determine whether it was reasonable for
Officer Martinez to believe that Janeka had committed a crime at the time of the arrest. Cf.
Peterson, 995 F. Supp. at 313 (“The validity of an arrest does not depend upon an ultimate finding
of guilt or innocence.”). Because I conclude that Martinez’s conclusions were reasonable in the
moment based on the undisputed facts in the record, I grant defendants’ motion on Janeka’s false
arrest claim.
B. There was at least arguable probable cause for Officer Martinez to arrest Debra
Creese.
Taking the facts in the light most favorable to plaintiffs, I also conclude that there was at
least arguable probable cause for Officer Martinez to arrest Debra. Before Debra was arrested,
B.A. admitted that he was under the age of 21, and he was holding a cup of liquor near the bar.
Martinez Dep. 94:7–17. Moreover, Martinez testified that B.A. identified Debra as the person who
sold him the alcohol when he “pointed at the other bartender in the bar.” Id. at 94:18–95:9. There
14

is no real dispute that this identification occurred prior to Debra’s arrest. Though plaintiffs insist
that B.A. could not have identified Debra as the person who sold him liquor, they cite no admissible
evidence to dispute Martinez’s version of the facts.8 The fact that N.D. testified that he and B.A.
were both handcuffed “right away,” N.D. Dep. 14:3–7, does not mean that B.A. could not have
identified Debra. Furthermore, N.D. explicitly testified that he did not have personal knowledge
regarding whether B.A. identified the person who sold him liquor, stating instead that B.A. would
have to answer that question. Id. at 13:18–20. This testimony falls far short of establishing a
genuine dispute of fact regarding B.A.’s identification of Debra. See, e.g., Wilde v. CSX Transp.,
Inc., No. 14-CV-50S, 2016 WL 7438839, at *3 n.4 (W.D.N.Y. Dec. 27, 2016) (“[I]n opposing a
motion for summary judgment, the non-moving party must do more than show that there is ‘some
metaphysical doubt as to the material facts.’” (quoting McClellan, 439 F.3d at 144)); Bacchus
Assocs., 766 F. Supp. at 108 (“Speculation, conclusory allegations and mere denials are not enough
to raise genuine issues of fact.”).
It is true that the parties dispute exactly where Debra was positioned when Martinez first
approached the bar. Debra insists that she was sitting on the outside of the bar at all times, and that
she never assisted her daughter with her bartending duties. See D. Creese Dep. 20:23–21:11,
25:19–26:15; see also J. Creese Dep. 39:13–17; Pls.’ 56.1 Resp. ¶ 17. Martinez, on the other hand,
testified that he saw “two females at the bar,” and suggested that both women were “behind” the

8

Plaintiffs admit that B.A. was not deposed and did not submit an affidavit in connection with this lawsuit.
See Pls.’ Opp’n 5 & n.2. However, plaintiffs allege that B.A. told plaintiffs’ counsel during a “video
conference” that “he never identified Debra Creese as having sold him alcohol.” Id. at 5. This is plainly
insufficient to defeat a motion for summary judgment, as it is inadmissible hearsay that is unsupported by
any evidence in the record. See Nyack v. S. Conn. State Univ., 424 F. Supp. 2d 370, 374 (“A party ‘cannot
rely on inadmissible hearsay in opposing a motion for summary judgment . . . absent a showing that
admissible evidence will be available at trial.’” (quoting Burlington Coat Factory Warehouse Corp. v.
Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985))). Therefore, I do not consider this assertion in ruling on
defendants’ motion. Id.
15

bar when he approached them. Martinez Dep. 65:20–66:2, 69:6–8; 85:20–23, 104:6–12. He also
testified that when B.A. identified Debra, he “pointed at the other bartender in the bar.” Id. at
94:19–21 (emphasis added); see also 95:3–9. All parties agree, however, that at the time of the
arrest, the bar area was relatively empty, and Debra and Janeka were among the only people near
the bar. See Defs.’ 56.1 ¶ 17; see also D. Creese Dep. 32:24–33:15; Pls.’ 56.1 Resp. ¶ 17 (disputing
defendants’ contention that Janke and Debra “were the only non-police officers at the bar,” but
only because plaintiffs insist that Debra “was sitt[ing] outside the bar” and not in the bar).
Even assuming that Debra remained seated outside the bar at all times, it was objectively
reasonable for Officer Martinez to believe that he had probable cause to arrest her. Given Debra’s
close proximity to the bar and to Janeka—who was indisputably standing behind the bar—it was
reasonable for Officer Martinez to believe that Debra was affiliated with Café Omar that night.
Further, though Martinez’s recollection of B.A.’s identification during his deposition is hazy and
vague, see id. at 89:13–90:6, 94:19–21, 125:20–126:8 (testifying that B.A. “pointed at the other
bartender,” but that he could not remember B.A.’s appearance or any details about Debra or
Janeka), qualified immunity does not hinge on the officer’s recollection of an event during a
deposition held years after the arrest. It is also immaterial that Martinez failed to document B.A.’s
identification of Debra at the time of the arrest, because plaintiffs cite no admissible evidence that
would dispute the fact that this identification occurred. See Defs.’ Reply 9–10, ECF No. 44.
Instead, Martinez is entitled to qualified immunity as long as the undisputed facts made it
objectively reasonable for him to believe that there was probable cause to arrest Debra. See
Jenkins, 478 F.3d at 87. Here, B.A.’s identification, paired with Debra’s proximity to the bar,
supported a reasonable inference that Debra was responsible for selling alcohol to an underage

16

customer. See Cerrone, 246 F.3d at 203. As a result, I conclude that Martinez is entitled to qualified
immunity on Debra’s false arrest claim.
II.

Malicious Prosecution
Plaintiffs seek to assert a federal and state-law malicious prosecution claim on behalf of

Debra. “The elements of a malicious prosecution claim brought under § 1983 are substantially the
same as [a] malicious prosecution claim[] brought under New York law.” Riccio v. New York, 859
F. Supp. 2d 480, 486 (E.D.N.Y. 2012) (citing Conway v. Vill. of Mount Kisco, 750 F.2d 205, 214
(2d Cir. 1984)). To state a claim under New York law, “four elements must be shown: (1) the
defendant initiated a prosecution against plaintiff, (2) without probable cause to believe the
proceeding can succeed, (3) the proceeding was begun with malice and, (4) the matter terminated
in plaintiff’s favor.” Ricciuti v. N.Y.C. Trans. Auth., 124 F.3d 123, 130 (2d Cir. 1997).
Plaintiff’s complaint—which was never amended—asserts malicious prosecution claims
on behalf of Janeka but not on behalf of Debra. See Compl. ¶¶ 71–81. However, as both parties
acknowledge, a malicious prosecution claim cannot be maintained on behalf of Janeka because
she accepted an adjournment in contemplation of dismissal, or an ACD. See Defs.’ Br. 13–14; Pls.’
Opp’n 11–12 n.3; see also Riccio, 859 F. Supp. 2d at 487 (“An adjournment in contemplation of
dismissal (‘ACD’) does not qualify as a favorable termination.” (citing Murphy v. Lynn, 118 F.3d
938, 948 (2d Cir. 1997))). Plaintiffs argue that they should be able to amend their complaint to
assert this claim, while defendants argue that the claim is now time-barred and the amendment
should not be deemed to “relate back” to the initial filing of the complaint. See Pls.’ Opp’n 11–12
n.3; Defs.’ Reply 2–6.
Because there was probable cause for Debra’s prosecution, I need not resolve the parties’
dispute regarding the relation-back doctrine. “[I]f probable cause existed at the time of the arrest
and the plaintiff offers no additional facts to show that it dissipated post-arrest, then the claim for
17

malicious prosecution cannot be maintained.” Jimenez v. City of New York, No. 15 Civ. 3257
(BMC), 2016 WL 1092617, at *4 (E.D.N.Y. Mar. 21, 2016). I have already concluded that
defendants are entitled to qualified immunity on Debra’s false arrest claim. At the time that Debra’s
prosecution was initiated, defendants had even more information supporting probable cause—or,
in the alternative, arguable probable cause—for Debra’s prosecution. See, e.g., Costello v. Milano,
20 F. Supp. 3d 406, 416 (S.D.N.Y. 2014) (“[A]n officer is entitled to qualified immunity from suit
on a claim of malicious prosecution if there was ‘arguable probable cause’ to charge the
plaintiff.”). Before Debra was charged, it is undisputed that B.A. completed a sworn affidavit in
which he stated that he paid $10 for an alcoholic drink to a black woman described as an “old
lady” who was 5’5”. See Defs.’ 56.1 ¶ 18; Pls.’ 56.1 Resp. ¶ 18. It is also undisputed that Debra’s
actual height is 5’6” (shorter than her daughter, Janeka, who is 5’8”) and that she was 64-yearsold at the time of her arrest. See Pls.’ 56.1 Resp. ¶¶ 15, 19. B.A.’s sworn statement contains an
“additional indicia of reliability” because it acknowledges “that any false statement made to police
would subject the author to criminal penalties.” Weiner, 90 F. Supp. 3d at 30. Though plaintiffs
insist that B.A.’s affidavit was fraudulently obtained or fabricated, see Pls.’ Opp’n 12-14, they cite
no admissible evidence to support their assertion or to dispute defendants’ version of the events.
Therefore, plaintiffs’ malicious prosecution claims are dismissed.
III.

Denial of the Right to a Fair Trial
Plaintiffs argue that defendants fabricated evidence by coercing N.D. and B.A. to falsely

identify plaintiffs as the people who sold them alcohol, thus depriving them of their right to a fair
trial. See Pls.’ Opp’n 11–16. “The Second Circuit has held that a person has ‘the right not to be
deprived of liberty as a result of the fabrication of evidence by a government officer acting in an
investigating capacity.’” Sanders v. City of New York, No. 12 CV 113(PKC)(LB), 2015 WL
1469514, at *17 (E.D.N.Y. Jan. 7, 2015) (quoting Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir.
18

2000), adopted by 2015 WL 1469506 (E.D.N.Y. Mar. 30, 2015). “A person suffers a constitutional
violation if an (1) investigating official (2) fabricates evidence (3) that is likely to influence a jury’s
decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of
liberty as a result.” Hoyos v. City of New York, 999 F. Supp. 2d 375, 392 (E.D.N.Y. 2013) (quoting
Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012)). “[A]ll of the elements [of
the claim] can be satisfied regardless of whether or not the plaintiff was ultimately tried.”
Manigault v. City of New York, No. 11 Civ. 4307 (AJN), 2012 WL 13049173, at *6 (S.D.N.Y.
Apr. 19, 2012). Furthermore, “[t]he existence of probable cause to arrest and prosecute is not a
complete defense to a fair trial claim.” Hoyos, 999 F. Supp. 2d at 392. To sustain such a claim,
however, the plaintiff must “identify how the[] alleged fabrications resulted in a deprivation of . .
. liberty.” Id. at 394 (emphasis added). It is not sufficient to demonstrate that a deprivation of
liberty “resulted generally from [the] prosecution”; instead, the plaintiff must demonstrate that the
alleged fabrications caused a violation of her constitutional rights. Id.
For the same reason that plaintiffs cannot sustain a malicious prosecution claim on behalf
of Debra, they have also failed to identify any genuine dispute that would give rise to Debra’s
claim for denial of the right to a fair trial. Plaintiffs cite no admissible evidence to suggest that any
aspect of the evidence implicating Debra was fabricated; on the contrary, the record reveals that
B.A. signed a sworn affidavit in which he attested that an older woman matching Debra’s physical
characteristics sold him alcohol. See B.A. Aff. of Sale; Defs.’ 56.1 ¶ 18. Beyond plaintiffs’ general
and conclusory denials, there are no facts in the record that would support the conclusion that
B.A.’s identification or affidavit were fabricated by the defendants.
With respect to Janeka’s claim, plaintiffs argue that N.D.’s deposition testimony reveals
that N.D. was coerced into implicating Janeka on his affidavit. See Pls.’ Opp’n 11–16. They argue

19

that N.D. completed the affidavit because he was “motivated by the defendant’s promise to
expedite his release from custody,” and that he was “instructed” on how to complete the affidavit
by Officer Martinez. Id. at 4. Plaintiffs also argue that N.D.’s assertion that he never identified
Janeka in the bar demonstrates that Martinez fabricated the alleged in-person identification. I am
unpersuaded by plaintiffs’ arguments that Martinez fabricated evidence against Janeka.
Furthermore, even if plaintiffs did raise a genuine dispute of material fact regarding this claim,
they have failed to demonstrate that any alleged fabrications caused Janeka to suffer a deprivation
of liberty. As a result, I grant defendants’ motion for summary judgment as to this claim.
As an initial matter, there is no evidence in the record to indicate which officer allegedly
instructed N.D. to complete the affidavit, and N.D. did not identify Officer Martinez at any point
in his deposition. See N.D. Dep. 23:2–12 (testifying that “the officer” asked him to complete the
affidavit). Even assuming that N.D. was referring to Officer Martinez, N.D.’s deposition does not
demonstrate that his affidavit was coerced or otherwise fraudulent. Indeed, N.D. himself clearly
testified that he is “not saying that [he] lied anywhere” on the form. Id. at 27:22–28:2.9 N.D.’s
general assertion that he was given “instructions” to complete the affidavit so that he could be
released earlier does not indicate that the officers told him what to write. See id. at 29:17–22
(testifying that he “do[esn’t] recall” being told what to write on the form). This testimony does not

N.D.’s deposition testimony is inconsistent and unclear, and he often changed his answers in response to
additional questioning by plaintiffs’ counsel. Compare N.D. Dep. 32:4–15 (“Q: Is that information the
officer gave you, this information about the bartender being female and 5’6? . . . A: The officer didn’t give
me this information.”), with id. at 40:16–20 (“Q: Is it fair to say that someone gave you [the bartender’s]
height . . .? A: Is it fair, yeah, it would be fair, I guess.”). However, for the purposes of a motion for summary
judgment, the court must credit the portions of testimony that support the non-movant’s arguments. See
DeAndrade v. K.J. Mountain Corp., No. 11 Civ. 00011(ER), 2013 WL 6500233, at *7 (S.D.N.Y. Dec. 11,
2013); Waddlington v. City of New York, 971 F. Supp. 2d 286, 293–94 (E.D.N.Y. 2013) (“[I]nconsistencies
. . . do not automatically preclude summary judgment.”). As I explain below, even construing the facts in
the light most favorable to plaintiffs, N.D.’s deposition does not support the assertion that his affidavit was
fabricated or that this alleged fabrication caused plaintiffs to suffer a deprivation of liberty.
9

20

create a genuine dispute regarding whether N.D. was forced to include fabricated statements on
the form. See, e.g., Wilde, 2016 WL 7438839, at *3 n.4 (denouncing the plaintiffs’ “attempt to
create a factual dispute by taking deposition testimony out of context and misconstruing it to
support their position”); Faruki v. City of New York, No. 10 Civ. 9614 LAP, 2012 WL 1085533,
at *5 (S.D.N.Y. Mar. 30, 2012) (“Plaintiff’s statement that she did not recall . . . is insufficient to
create a genuine dispute on that material issue.”).
Construing N.D.’s testimony in the light most favorable to plaintiffs, an officer at the
precinct provided N.D. with Janeka’s height, thus assisting N.D. in completing his affidavit. See
N.D. Dep. 40:16–20 (testifying that it would be “fair” to say that “someone gave [him] [Janeka’s]
height”).10 Even if this amounted to a “fabrication,” but see id. at 27:22–28:2 (testifying that he is
“not saying that [he] lied anywhere” on the form), it does not support Janeka’s claim that she was
denied her right to a fair trial. Plaintiffs fail to demonstrate how the provision of Janeka’s height
to N.D. “proximately cause[d] [Janeka] to suffer a deprivation of liberty.” Ashley v. City of New
York, No. 14-CV-5559 (NGG), 2017 WL 9487192, at *7 (E.D.N.Y. Apr. 17, 2017), adopted by
2017 WL 2972145 (E.D.N.Y. July 12, 2017). Plaintiffs cannot sustain their claim because they fail
to identify any “further deprivation” that was caused by the alleged fabrication. Ganek v.
Leibowitz, 874 F.3d 73, 91 (2d Cir. 2017). As I’ve already held, there was at least arguable
probable cause to arrest Janeka based on her role as a bartender and N.D.’s admission that he was
under 21 and in possession of alcohol. Thus, the deprivation of liberty caused by her arrest was
supported by probable cause, and plaintiffs fail to identify a “separate harm” that was caused by

10

N.D. testified earlier in his deposition that he could not recall whether the officer instructed him to put
any other information in his affidavit, such as “the bartender part [or] the female, 5’6 part.” N.D. Dep.
37:13-22. However, he also testified that he remembers seeing Janeka that night, and he noted that she was
a black woman who was working at the bar that night. Id. at 34:14–35:2. Thus, plaintiffs’ suggestion that
this information was fabricated or otherwise provided by the defendants is nothing more than “conjecture
or surmise,” McClellan, 439 F.3d at 144, unsupported by any facts in the record.
21

the alleged fabrication of N.D.’s identification. Id. Likewise, Janeka’s prosecution was supported
by probable cause because N.D. completed a sworn affidavit under penalty of perjury in which he
identified Janeka as the person who sold him alcohol. See Weiner, 90 F. Supp. 3d at 30. There is
no evidence in the record to support plaintiffs’ assertion that the officer’s provision of Janeka’s
height was material in causing a further deprivation or a constitutional injury sufficient to give rise
to a claim for the denial of the right to a fair trial. See Polanco v. City of New York, No. 14 Civ.
7986 (NRB), 2018 WL 1804702, at *11–12 (citing Ganek, 874 F.3d at 90). Thus, I grant
defendants’ motion for summary judgment as to this claim.
IV.

Malicious Abuse of Process and Failure to Intervene
Finally, plaintiffs assert claims for malicious abuse of process and failure to intervene, but

they fail to address defendants’ arguments for dismissal of these claims in their opposition to
defendants’ summary judgment motion. See Defs.’ Reply 2–3. I agree with defendants that
plaintiffs’ silence on these claims “signals . . . abandonment.” Id. (quoting Avola v. LouisianaPacific Corp., 991 F. Supp. 2d 381, 390 (E.D.N.Y. 2013)). Moreover, both claims are meritless.
Plaintiffs fail to identify any material dispute that would establish that defendants had a “collateral
objective” in prosecuting plaintiffs, thus defeating plaintiffs’ malicious abuse of process claim.
See Folk v. City of New York, 243 F. Supp. 3d 363, 375 (E.D.N.Y. 2017).
Likewise, plaintiffs cannot sustain their failure to intervene claim because such a claim can
proceed only in connection with a valid underlying constitutional claim. See Matthews v. City of
New York, 889 F. Supp. 2d 418, 443–44 (E.D.N.Y. 2012) (“[A] failure to intervene claim is
contingent upon the disposition of the primary claims underlying the failure to intervene claim.”).

22

In this case, I have already held that plaintiffs’ underlying claims all fail; therefore, defendants’
motion for summary judgment on the failure to intervene claim is granted.11
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted in full,
and all claims against the defendants are dismissed. The Clerk of Court is directed to enter
judgment accordingly and close the case.

SO ORDERED.
Date: July 23, 2019
Brooklyn, New York

______/s/________________
Allyne R. Ross

Moreover, “a defendant cannot be liable for both the underlying constitutional deprivation and a failure
to intervene to stop himself from committing that violation.” Case v. City of New York, 233 F. Supp. 3d
372, 402 (S.D.N.Y. 2017) (internal quotation marks and citation omitted). Plaintiffs do not identify any
other defendants who could be liable for failing to intervene in Officer Martinez’s alleged constitutional
violations.
11

23