Coggins v. County of Nassau et al

Filing 155

ORDER granting in part and denying in part 143 Motion to Dismiss. For the reasons stated herein, the Court grants in part and denies in part Cogginss motion to amend. The Court grants in part and denies in part Buonora's motion to dismiss. Sp ecifically, the Court dismisses Coggins's 42 U.S.C. § 1986 and New York State false arrest and imprisonment claims as time-barred. The dismissal is with prejudice. The Court also grants the motion to dismiss the federal claims on absolute i mmunity grounds to the extent those claims rely upon, in any way, any alleged perjury in the grand jury (or conspiracy to commit such perjury). However, the motion to dismiss the remainder of those federal claims (and related state claims) on absolut e immunity grounds is denied, and the remainder of the motion to dismiss is denied. The Court finds the motion for summary judgment premature and denies it without prejudice to its renewal after discovery concludes. Finally, the Court denies Coggins's request for sanctions against Buonora. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/2/2013. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 07-CV-3624 (JFB) (AKT)
_____________________

DARRYL T. COGGINS,
Plaintiff,
VERSUS

COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, POLICE OFFICER
JAMES VARA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER CRAIG
BUONORA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, SERGEANT PICKERING, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY, LIEUTENANT DELARGY, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY, AND JOHN DOES 1-10, IN THEIR INDIVIDUAL AND OFFICIAL
CAPACITIES,
Defendants.
___________________
MEMORANDUM AND ORDER
December 2, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Darryl T. Coggins (“Coggins”
or “Plaintiff”) brings this action against
Defendants County of Nassau (“Nassau
County” or “the County”); Nassau County
Police Department (“NCPD”); Police
Officers James Vara (“Vara”) and Craig
Buonora (“Buonora”), in their individual
and official capacities; Sergeant Pickering
(“Pickering”), in his individual and official
capacity; Lieutenant Delargy (“Delargy”), in
his individual and official capacity; and John
Does 1–10, in their individual and official
capacities (collectively, “Defendants”),
pursuant to 42 U.S.C. §§ 1981, 1983, 1985,
and 1985, and New York State tort law.

A grand jury empaneled by the Nassau
County District Attorney’s Office (the
“DA’s Office”) indicted Coggins on March
17, 2005, on charges of unlawful possession
of a weapon and resisting arrest. Coggins
contends
that
Defendants
actively
prosecuted him despite knowing he was
innocent. Specifically, he alleges that
Buonora and Vara conspired to and did,
inter alia, falsify police reports, affidavits,
and memorandum books; fabricate evidence;
and commit perjury during grand jury
proceedings. Indeed, after the DA’s Office
dismissed the criminal charges against
Coggins, it indicted Buonora for perjury.
Buonora pleaded guilty.

malicious prosecution. These allegations in
support of the Section 1983 and related
claims are completely independent of the
alleged perjury in the grand jury and are not
barred under the doctrine of absolute
immunity under Rehberg. It is clear that
Rehberg is not meant to be an absolute
immunity cloak that, once a police officer
testifies in the grand jury, suddenly shields
him
or
her
from
all
allegedly
unconstitutional acts even if they are outside
the scope of the grand jury appearance. To
the extent defendants suggest that plaintiff
will be unable to prove these other
allegations of unconstitutional wrongdoing,
such arguments are premature at the motion
to dismiss stage, and the Court, in its
discretion, declines to consider any
summary judgment motion at this time
because discovery is not complete.
Defendants may renew the absolute
immunity argument in a summary judgment
motion once discovery is complete. Thus,
the motion to dismiss all the federal claims,
and related state law claims, in their entirety
on absolute immunity grounds is denied, and
plaintiff’s motion to amend such claims in
the TAC is granted. The claim under 42
U.S.C. § 1986 and the false arrest and
imprisonment claims, however, are untimely
and must be dismissed.1

Presently before the Court are two
motions. First, Coggins moves to file a
Third Amended Complaint (“TAC”) in light
of the Supreme Court’s decision in Rehberg
v. Paulk, 132 S. Ct. 1497 (2012). The
County, NCPD, Vara, Pickering, and
Delargy
(collectively,
the
“County
Defendants”)
oppose,
arguing
that
amendment would be futile. Second,
Buonora moves to dismiss the TAC pursuant
to Federal Rule of Civil Procedure 12(b)(6)
or, in the alternative, for summary judgment
pursuant to Federal Rule of Civil Procedure
56. Buonora argues he is entitled to absolute
immunity from the only well-pleaded cause
of action—the one under § 1983.
For the following reasons, the Court
grants in part and denies in part Coggins’s
motion to amend, and grants in part and
denies in part Buonora’s motion to dismiss
the TAC. In particular, the Court holds, in
light of the Supreme Court decision in
Rehberg, that defendants Vara and Buonora
have absolute immunity with respect to any
alleged perjury in the grand jury, or any
alleged conspiracy to present false testimony
to the grand jury, and such alleged evidence
cannot be used to support any other Section
1983 claim concerning the initiation or
maintenance of a prosecution. Thus, to the
extent that the Section 1983 claims are
based upon such conduct, the motion to
dismiss is granted. However, as discussed
herein, the motion to dismiss the Section
1983 claims in the entirety is denied because
the TAC alleges unconstitutional conduct
against Vara and Buonora far beyond
perjury and/or conspiring to commit perjury
in the grand jury. For example, it is alleged
that defendant Vara improperly stopped,
detained, assaulted, and chased Coggins on
October 9, 2004. In addition, it is alleged
that Vera and Buonora conspired to alter the
version of what transpired that night, which
led to the falsification and omission of
evidence from police reports, resulting in a

I.
A.

BACKGROUND
FACTUAL BACKGROUND

The Court presumes the parties’
familiarity with the underlying lawsuit and
only details the allegations to the extent they
are relevant to resolving the motions, are
alleged for the first time in the TAC, or
1

As set forth infra, the Court again concludes that
Buonora’s request for summary judgment is
premature pursuant to Federal Rule of Civil
Procedure 56(f). The Court also denies Coggins’s
request for sanctions against Buonora.

2

both. The Court assumes the following
allegations to be true only for purposes of
deciding the motions and construes them in
the light most favorable to Coggins, the nonmovant.

fabricated evidence, made false reports,
failed to adhere to procedures and
regulations, and failed to properly
investigate the incident. (Id. ¶ 89.)
In particular, Coggins alleges that
Buonora and Vara conspired with each other
by, inter alia, agreeing to an altered version
of what transpired on October 9, and making
a conscious decision to omit and falsify
information in their reports, evidence, and
other paperwork. (Id. ¶¶ 32, 35, 66.) For
instance, even though he actively
participated in the pursuit, Buonora
allegedly failed to complete an incident
report or other paperwork related to
Coggins’s detention, chase, and arrest. (Id. ¶
33.) Buonora also allegedly knew that
documents regarding Coggins’s detention,
arrest, and prosecution contained false
information and omitted relevant facts. (Id. ¶
52.) He also allegedly had three meetings
with the DA’s Office during which he
falsely represented he had found a weapon.
(Id. ¶ 51.) Buonora falsely reported and
testified that he had heard a metal object hit
the ground, saw it was a gun, and stayed
with the gun until a Floral Park officer
relieved him. (Id. ¶¶ 59–60.) Coggins claims
Buonora never refuted such evidence in any
reports, statements to his supervisors, or the
grand jury. (Id. ¶ 52.) Vara, meanwhile, also
allegedly falsified official documents related
to the October 9 events. (Id. ¶ 34.) He
allegedly submitted a false report on
October 26, 2004, stating that he was in foot
pursuit, heard a metal noise, observed a
black object on the ground, safeguarded a
weapon, and broadcasted a radio description
of Coggins. (Id. ¶ 63.) He also allegedly
failed to record his three attempts to
breathalyze Coggins. (Id. ¶ 64.) According
to Coggins, NCPD officers routinely have
engaged in such improper practices,
“particularly in situations where blacks
and/or black males are involved.” (Id. ¶ 37;
see also id. ¶ 91 (“Defendants Nassau and

2

Coggins is a Black male. Early on
October 9, 2004, Vara stopped Coggins
because of his race and color, not because he
had committed any legal violation. (TAC ¶
24.) Vara never justified the stop to
Coggins. (Id. ¶¶ 25–26.) Instead, after
attempting to determine whether Coggins
was intoxicated, Vara called for backup,
physically assaulted Coggins when Coggins
asked what was going on, and placed his
hand on his gun. (Id. ¶ 27.) Coggins ran,
fearing for his life. (Id.) At the same time,
Buonora arrived on the scene, began chasing
after Coggins, and yelled, “Shoot him in the
back, shoot him in the back.” (Id. ¶ 28.)
Coggins escaped, but he surrendered that
afternoon and was arrested and charged with
two counts of Criminal Possession of a
Weapon in the Third Degree, in violation of
N.Y. Penal Law §§ 265.02(3) and (4). (Id.
¶¶ 28, 31.) Coggins remained in jail for two
days—until October 11, 2004. (Id. ¶ 31.)
According to Coggins, from this
encounter until the DA’s Office dropped the
charges in August 2005, defendants—
despite knowing that Coggins was
innocent—“conspired to deprive Plaintiff of
his due process rights; specifically by
attempting to prolong [his] unlawful
detainment
without
probable
cause,
investigation, and rule of law,” and
“attempting to cover up” their misconduct.
(Id. ¶¶ 88, 90.) Defendants allegedly
2

Coggins does not specifically allege his race.
Paragraph 37, which highlights incidents involving
black men, and the balance of the allegations support
this reasonable inference. Plaintiff’s counsel
confirmed this fact at oral argument. However,
plaintiff may re-plead the TAC to make this
allegation explicit.

3

Nassau Police permitted and tolerated the
egregious improper conduct by issuing
official claims that the harassment was
justified, failing to seriously discipline or
prosecute the Defendant Officers. As a
result of this conduct, Defendant Police
Officers were caused to and encouraged to
believe that individuals could be falsely
arrested, prosecuted and imprisoned under
circumstances requiring the use of falsified
evidence and testimony.”).)

(4) conspiracy under 42 U.S.C. § 1985; (5)
failure to intervene under 42 U.S.C. § 1986;
(6) fraudulent misrepresentation; (7) abuse
of process and malicious prosecution; (8)
false arrest and false imprisonment; (9)
negligence; and (10) intentional infliction of
emotional distress.
B. PROCEDURAL BACKGROUND
Coggins filed the Complaint on August
28, 2007. The County Defendants answered
on December 5, 2007, while Buonora moved
to dismiss or for summary judgment on
January 24, 2008. The Court dismissed
Coggins’s claims for malicious prosecution
and abuse of discretion under New York
State law in June 2008, reasoning that
Coggins failed to plead the requisite special
damages with specificity. The Court denied
Buonora’s request for summary judgment as
premature, without prejudice. The Court
granted leave to amend, and Coggins filed
an amended complaint on August 19, 2008.
Upon receiving the Court’s 2008
Memorandum and Order, Buonora filed his
Answer, including a cross-claim against
Nassau County, and a Notice of Appeal to
the United States Court of Appeals for the
Second Circuit. The Second Circuit affirmed
this Court’s June 2008 Memorandum and
Order on June 22, 2010.

On March 17, 2005, the DA’s Office
presented Coggins’s case to a grand jury.
(Id. ¶ 38.) The grand jury indicted Coggins
on the weapons charges and for resisting
arrest in violation of Penal Law § 205.30.
(Id. ¶ 38.) Coggins alleges that both officers
perjured themselves before the grand jury.
(Id. ¶ 53.) In July 2005, a Floral Park
Officer informed Coggins’s counsel that
“the story [Vara and Buonora] were telling
was inaccurate.” (Id. ¶ 40.) Specifically, the
Floral Park Officer “informed counsel that
he was the Officer who initially found the
gun approximately forty minutes after the
foot pursuit began. He further indicated that
radio transmission[s] of October 9, 2004
would substantiate his claim.” (Id.)
Coggins’s case eventually was referred to
the Special Investigations Division of the
DA’s Office (Id. ¶ 40), and the charges
against Coggins were dismissed on the DA’s
motion in August 2005.3 (Id. ¶ 42.) Buonora
was indicted for perjury and pleaded guilty.
(Id. ¶ 45.)

Coggins filed the Second Amended
Complaint (“SAC”) on June 3, 2011. He
filed the instant motion to amend on
November 7, 2012. The County Defendants
opposed on June 12, 2013, and Coggins
replied on July 26, 2013. Buonora filed the
instant motion to dismiss and motion for
summary judgment on June 7, 2013.
Coggins opposed on July 26, 2013, also
requesting sanctions against Buonora.
Buonora replied on August 16, 2013. The
Court held oral argument on both motions
on September 9, 2013.

Coggins brings causes of action for (1)
violations of 42 U.S.C. § 1981; (2)
violations of 42 U.S.C. § 1983; (3)
municipal liability under 42 U.S.C. § 1983;
3

According to Coggins, he “never wavered in
declaring his innocence,” “never signed any
statement that can be construed as an admission of
guilt,” and “maintained throughout these proceedings
that [Vara and Buonora] were lying and had
fabricated evidence against him.” (TAC ¶ 42.)

4

II.
A.

STANDARDS OF REVIEW

Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d
86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.

AMENDMENT OF PLEADINGS

Federal Rule of Civil Procedure 15
applies to motions to amend the pleadings.
A motion to amend “shall be freely granted
when justice so requires.” Fed. R. Civ. P.
15(a). Such a motion should be denied “only
for reasons such as undue delay, bad faith,
futility of the amendment or prejudice to the
other party.” Crippen v. Town of
Hempstead, No. 07-CV-3478(JFB)(ARL),
2013 WL 2322874, at *1 (E.D.N.Y. May 22,
2013); see also Burch v. Pioneer Credit
Recovery, Inc., 551 F.3d 122, 125 (2d Cir.
2008) (per curiam) (“[M]otions to amend
should generally be denied in instances of
futility, undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies
by amendments previously allowed, or
undue prejudice to the non-moving party.”).
“An amendment is considered futile if, for
example, it could not defeat a motion to
dismiss for failure to state a claim or for lack
of subject matter jurisdiction.” Crippen,
2013 WL 2322874, at *1 (citing Chan v.
Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y.
1996)); see also Absolute Activist Master
Value Fund Ltd. v. Ficeto, 677 F.3d 60, 71
(2d Cir. 2012).
B.

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Supreme Court
instructed district courts to first “identify[ ]
pleadings that, because they are no more
than conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining
that though “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,
if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to
relief.” Id. 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. The plausibility
standard is not akin to a ‘probability
requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting and citing
Twombly, 550 U.S. at 556–57 (internal
citation omitted)).

FAILURE TO STATE A CLAIM

In reviewing a motion to dismiss
pursuant to Federal Rule of Civil Procedure
12(b)(6), the Court must accept the factual
allegations set forth in the complaint as true
and draw all reasonable inferences in favor
of the plaintiff. See Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006);
Nechis v. Oxford Health Plans, Inc., 421
F.3d 96, 100 (2d Cir. 2005). “In order to
survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to
relief above the speculative level.’”

The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
5

perjury in the grand jury, those portions of
the federal claims cannot proceed because
they are barred by the doctrine of absolute
immunity.

knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356–57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and rev’d in part on other
grounds sub nom. Lentell v. Merrill Lynch
Co., 396 F.3d 161 (2d Cir. 2005).
III.
A.

B.
1.

MOTION TO DISMISS

Prematurity of Summary Judgment

As in 2008, Buonora styles his motion as
one to dismiss pursuant to Rule 12(b)(6)
and, in the alternative, for summary
judgment pursuant to Rule 56, appending
several exhibits he contends directly
contradict and undermine the allegations in
the TAC. The Court again finds Buonora’s
request for summary judgment premature.
(See 2008 Memorandum and Order, at 4–7.)
District courts should grant summary
judgment only “[i]f after discovery, the
nonmoving party ‘has failed to make a
sufficient showing on an essential element
of [its] case with respect to which [it] has
the burden of proof.” Berger v. United
States, 87 F.3d 60, 65 (2d Cir. 1996)
(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)) (alteration in original and
emphasis added). Discovery in this case
continues. For example, Buonora and Vara
have not yet been deposed, and such
depositions could impact Coggins’s case
significantly. Given this procedural posture,
in its discretion, the Court will not consider
Buonora’s request for summary judgment at
this juncture.

DISCUSSION
MOTION TO AMEND

Coggins moves to amend to plead
additional facts and clarify the causes of
action in light of Rehberg, which affected
the Second Circuit precedents the Court
relied upon in 2008 to reject Buonora’s
claim of absolute immunity for his perjury.
The County Defendants oppose the
amendments on futility grounds, arguing
that the modified federal causes of action
could not withstand a motion to dismiss. As
noted below, defendant Buonora simply
moves to dismiss the TAC. The Court
judges the adequacy of a proposed amended
complaint by the same standards as those
governing the adequacy of a filed pleading.
See Crippen, 2013 WL 2322874, at *1
(citation omitted). As set forth infra, the
Court finds that the TAC adequately pleads
claims under 42 U.S.C. §§ 1981, 1983, and
1985, but the § 1986 and state law false
arrest and imprisonment claims are
untimely. Accordingly, with the exception
of those causes of action, the Court grants
the motion to amend because, as discussed
below, the remaining claims survive a
motion to dismiss. As discussed in more
detail below, however, to the extent plaintiff
seeks to hold defendants Buonora and Vara
liable for perjury or conspiracy to commit

2.

Judicial Notice

Coggins did not append any documents
to the TAC, and neither he nor Buonora asks
the Court to take judicial notice of the
documents appended to their respective
filings. The Court has reviewed these
documents and will take judicial notice of
the following: (1) the transcripts of the
grand jury proceedings (Coggins Ex. B); (2)
the arrest report (Buonora Ex. G); (3) Vara’s
6

and Buonora’s Memorandum Book entries
for the times at issue (Buonora Exs. J, K);
and (4) Coggins’s Demand the District
Attorney Present Witnesses and Submit
Charges Against Police Officer Vara
(Buonora Ex. M). Courts routinely take
judicial notice at the motion to dismiss stage
of transcripts—including those of testimony
provided in related criminal proceedings—
when they are incorporated into the
complaint by reference. See, e.g., SEC v.
Siebel Sys., Inc., 384 F. Supp. 2d 694, 699
n.6 (S.D.N.Y. 2005) (taking judicial notice
of transcripts relied upon by complaint). The
other documents also are incorporated by
reference into the TAC. (See TAC ¶¶ 34
(arrest reports); 38 (request to DA’s Office);
55 (police reports).)

U.S.C. § 1983 does not itself create
substantive rights; it offers “a method for
vindicating federal rights elsewhere
conferred.” Patterson v. Cnty. of Oneida,
375 F.3d 206, 225 (2d Cir. 2004). To state a
claim under § 1983, a plaintiff must allege:
(1) the deprivation of any rights, privileges,
or immunities secured by the Constitution
and laws, (2) by a person acting under the
color of state law. 42 U.S.C. § 1983; see
also Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir. 1999).
The officers claim absolute immunity
pursuant to Rehberg. Buonora also argues
that the claim is inadequately pled. The
Court addresses each contention in turn.
i.

The Court takes judicial notice of these
exhibits not for the truth of the facts asserted
therein, but solely to determine what the
respective parties said.4
3.
a.

Absolute Immunity

According to Buonora, Rehberg
establishes that grand jury testimony cannot
serve as the basis for any civil rights claim,
and therefore the claims must be dismissed
because the evidence shows that his only
involvement in the prosecution of Coggins
was the grand jury proceeding. Vara claims
he is entitled to absolute immunity for his
testimony and any related conspiracy.

Analysis

Count 2: 42 U.S.C. § 1983

Coggins asserts that the officers violated
his constitutional rights under the Fourth,
Fifth, Sixth, and Fourteenth Amendments by
conspiring to and actually fabricating
evidence, falsifying documents and official
records, withholding evidence, failing to
follow proper policies and protocols, failing
to intervene, falsely testifying before the
grand jury; and conspiring as to the false
arrest and imprisonment, abuse of process,
and malicious prosecution. (TAC ¶ 106.) 42

As a threshold matter, the Court will not
“confirm whether a fact is documented or
whether it’s no more than a supposition
submitted solely in the hope of defeating a
motion to dismiss.”5 (Motion to Dismiss, at
7.) In analyzing the sufficiency of a
complaint, a court need not accept as true
“conflicting pleadings that make no sense,
or that would render a claim incoherent, or
that are contradicted either by statements in
the complaint itself or by documents upon
which its pleadings rely, or by facts of

4

The remaining exhibits do not fall within the
aforementioned exceptions and cannot be considered.
See, e.g., Lyn v. Inc. Vill. Of Hempstead, No. 03-CV5041, 2004 U.S. Dist. LEXIS 30545, at *5 (E.D.N.Y.
June 25, 2004) (refusing to consider police reports
appended to officers’ motion to dismiss case on
immunity grounds). Even if the Court did consider
such exhibits at this stage, it would not change the
Court’s determination at this juncture.

5

For example, Buonora asserts that discovery shows
it is “completely untrue” that he conspired with Vara.
(Motion to Dismiss, at 7.) The officers also deny
“that anything such as alleged occurred.” (Id.)

7

and prosecution. The parties may reassert
such immunity at the summary judgment
stage—after discovery concludes.6

which the court may take judicial notice.” In
re Livent, Inc. Noteholders Sec. Litig., 151
F. Supp. 2d 371, 405–06 (S.D.N.Y. 2001)
(citing Hirsch v. Arthur Anderson & Co., 72
F.3d 1085, 1095 (2d Cir. 1995); Trans
World Airlines, Inc. v. Hughes, 449 F.2d 51,
63 (2d Cir. 1971)). None of those situations
are present here. Thus, the Court cannot
entertain Buonora’s factual challenges at
this juncture because a substantial portion of
Coggins’s remaining allegations (in light of
Rehberg and plaintiff’s inability to proceed
as to the alleged perjury) is that the officers
tainted the reports, evidence, and statements
in a manner that violated his constitutional
rights to be free from a false arrest and a
malicious prosecution. Thus, discovery is
necessary to determine whether plaintiff can
prove that the information contained in these
exhibits and other evidence is false, and
whether Buonora and/or Vara had
involvement in the falsification of non-grand
jury evidence and participated in the
violation of plaintiff’s constitutional rights.
Accordingly, the Court accepts Coggins’s
allegations as true at this stage.

Trial witnesses, including police
officers, have absolute immunity with
respect to any 42 U.S.C. § 1983 claims
arising from that testimony, even if such
testimony was perjured. Briscoe v. LaHue,
460 U.S. 325, 335–36, 341–46 (1983)
(affirming dismissal of § 1983 claims arising
from officers’ perjured testimony during
criminal trial). In Rehberg, the Supreme
Court clarified that “a grand jury witness
[also] has absolute immunity from any §
1983 claim based on the witness’
testimony.” 132 S. Ct. at 1506 (emphasis
added); see Jovanovic v. City of New York,
486 F. App’x 149, 152 (2d Cir. June 20,
2012) (summary order) (noting that Rehberg
extends Briscoe’s absolute immunity from §
1983 claims to grand jury testimony).
“[T]his rule may not be circumvented by
claiming that a grand jury witness conspired
to present false testimony or by using
evidence of the witness’ testimony to
support any other § 1983 claim concerning
the initiation or maintenance of a
prosecution.” Rehberg, 132 S. Ct. at 1506.

After reviewing the TAC, accepting its
allegations as true, and drawing all
reasonable inferences in favor of Coggins,
the Court finds that the officers are not
entitled to absolute immunity as a matter of
law at this juncture. As set forth below, the
protections in Rehberg are not as expansive
as Buonora asserts. Pursuant to Rehberg,
Buonora and Vera are entitled to absolute
immunity with respect to any alleged
unconstitutional conduct relating to the
grand jury testimony, or any alleged
conspiracy relating thereto. However, the
TAC alleges more than an extra-judicial
conspiracy to commit perjury and perjury
before the grand jury. Instead, Coggins
alleges a broader conspiracy and series of
furthering acts, including the falsification
and/or withholding of documents, evidence,
and testimony related to Coggins’s arrest

Rehberg, however, does not justify
absolute immunity where liability is based
not “on the witness’ testimony,” but on other
6

The Court is aware that “district courts are
encouraged to determine the availability of an
absolute immunity defense at the earliest appropriate
stage, and preferably before discovery. . . . This is
because ‘[a]n absolute immunity defeats a suit at the
outset, so long as the official’s actions were within
the scope of the immunity.’” Deronette v. City of
New York, No. 05-CV-5275, 2007 WL 951925, at *4
(E.D.N.Y. Mar. 27, 2007) (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985), and quoting Imbler v.
Pachtman, 424 U.S. 409. 419 n.13 (1976)). As set
forth infra, however, the Court cannot determine
whether Buonora’s and Vara’s actions were “within
the scope of the immunity” at this juncture. Thus, it is
inappropriate to grant such immunity at this time.

8

omitted Buonora’s name from the police
reports. (TAC ¶ 34.) Plaintiff also alleges
Buonora repeatedly lied to the DA’s Office
when he claimed he found a weapon at the
scene. (TAC ¶¶ 51–52.)

conduct “laying the groundwork for an
indictment”—where the perjury “was but
one additional step” taken to push the case
forward. Sankar v. City of New York, No. 07
CV 4726(RJD)(SMG), 2012 WL 2923236,
at *3 (E.D.N.Y. July 18, 2012); see
Rehberg, 132 S. Ct. at 1507 n.1 (“[W]e do
not “suggest that absolute immunity extends
to all activity that a witness conducts outside
the grand jury room. For example, we have
accorded only qualified immunity to law
enforcement officials who falsify affidavits
and fabricate evidence concerning an
unsolved crime.” (emphasis in original)
(citations omitted)). This Court agrees with
others in this circuit that find defendants’
attempts to use Rehberg to “convert grand
jury testimony into an all-purpose shield
from malicious prosecution liability . . .
unpersuasive,” because “[t]he adoption of
such a broad interpretation of Rehberg
would allow any police officer—regardless
of the extent of their involvement in laying
the groundwork for an indictment—to
escape liability merely be securing an
appearance before a grand jury.” 2012 WL
2923236, at *3; see also Carr v. City of New
York, No. 11 Civ. 6982(SAS), 2013 WL
1732343, at *6 (S.D.N.Y. Apr. 19, 2013);
Del Col v. Rice, No. 11 CV 5138(MKB),
2012 WL 6589839, at *14 n.19 (E.D.N.Y.
Dec. 18, 2012).

In addition to alleging a conspiracy
between the two officers to falsify reports
and evidence in connection with Vara’s
alleged false arrest and the subsequent
prosecution of plaintiff, the TAC also
alleges that Buonora failed to intervene in
Vara’s unconstitutional actions. For
example, the TAC alleges the following:
“Upon information and belief, from the time
of the arrest of Plaintiff COGGINS through
the times that he met with the District
Attorney’s Office up until the time that the
testified before the Grand Jury, Defendant
Buonora was aware of the fact that the
documents that had been prepared related to
the detention, arrest, and prosecution of
Plaintiff contained false information,
omitted important and relevant information.
Despite this knowledge, Defendant Buonora
did not refute this evidence in any reports,
statements to his supervisors or before the
Grand Jury.” (TAC ¶ 52.)7 It further alleges
that “[d]efendant BUONORA knew that a
gun recovered by the Floral Park Officers
was submitted to the Forensic Evidence
Bureau under false pretenses but never
informed his supervisors about this
information.” (TAC ¶ 56.) Thus, it is
alleged that “[d]efendant BUONORA
assisted in and conspired with Defendant
VARA to arrest Plaintiff COGGINS, to
fabricate evidence and failed to intervene to
prevent the malicious prosecution of Mr.
Coggins.” (TAC ¶ 57 (emphasis added).) It
is well settled that “all law enforcement
officials have an affirmative duty to
intervene to protect the constitutional rights

As alleged in the TAC, Buonora and
Vara did more than conspire to and commit
perjury before the grand jury to further
Coggins’s prosecution. Their wrongful
conduct allegedly began from the moment
Vara
improperly
stopped,
detained,
assaulted, and chased Coggins on October 9,
2004. (E.g., TAC ¶¶ 24–37.) Coggins claims
the officers conspired and agreed to an
altered version of what transpired that night,
leading to the falsification and omission of
information and evidence, and malicious
prosecution. (TAC ¶ 35.) For instance,
plaintiff alleges that Vara intentionally

7

The Court is not considering the portion of this
allegation relating to the grand jury in light of
Rehberg.

9

law, we lack jurisdiction over this
interlocutory appeal and are obliged to
dismiss so that the matter may proceed in
the trial court.”).8

of citizens from infringement by other law
enforcement officers in their presence.”
Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994). Thus, “[a]n 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.”
Id.
(citations
omitted). Therefore, even if plaintiff cannot
ultimately establish that Buonora was
personally involved with Vara in falsifying
paperwork to justify and conceal a false
arrest and malicious prosecution, Buonora
could still be potentially liable under a
failure to intervene theory in Vara’s
unconstitutional arrest and in the malicious
prosecution. In other words, plaintiff has
articulated a plausible claim that, apart from
Buonora’s own conduct or any conspiracy
with Vara, Buonora was aware of a false
arrest and malicious prosecution by Vara
and failed to intervene after that arrest to
prevent the continuation of those
constitutional violations even though,
construing the allegations most favorable to
plaintiff, there was sufficient time to
intervene.

ii.

Adequacy of the Pleading

Buonora also argues that there is no
allegation that he acted in his individual
capacity. The Court disagrees. “Personalcapacity suits seek to impose personal
liability upon a government official for
actions he takes under color of state law,”
8

The Court also finds that the officers are not entitled
to qualified immunity at this juncture, either.
A defendant is entitled to qualified
immunity on a motion to dismiss if
the allegations of the complaint fail
to state a claim of violation of
clearly established law. Qualified
immunity shields officials from
liability for civil damages insofar
as their conduct does not violate
clearly established statutory or
constitutional rights of which a
reasonable person would have
known.
A right is clearly
established when the contours of
the right [are] sufficiently clear that
a reasonable official would
understand that what he is doing
violates that right. . . . The
unlawfulness must be apparent.
Even where a right is clearly
established, an official is entitled to
qualified immunity nevertheless if
it was objectively reasonable for
the public official to believe that
his acts did not violate that right[].

In short, Coggins adequately pleads facts
that, if true, could establish the officers’
liability under § 1983 separate and apart
from the perjury. Accordingly, given the
alleged non-grand jury conduct, Buonora
and Vara do not have absolute immunity
from suit at this juncture as a matter of law.
See White v. Frank, 855 F.2d 956, 961 (2d
Cir. 1988) (“Clearly, the plaintiff . . .
appears to have a factual basis that will
defeat a claim of immunity from liability for
[malicious prosecution]. Whether that turns
out to be the case cannot be determined at
this stage. Since the availability of immunity
cannot now be determined as a matter of

Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998)
(citations and quotation marks omitted).
It is beyond cavil that, inter alia, conspiring to
and actually falsifying police records, evidence, and
testimony violates clearly established rights of which
Buonora and Vara should have known, and that no
public official would think it was objectively
reasonable to violate those rights. Thus, at this stage,
the officers cannot sustain a claim of qualified
immunity under the circumstances of this case.

10

whereas official capacity suits “generally
represent only another way of pleading an
action against an entity of which an officer
is an agent.” Davis v. Cnty. of Nassau, 355
F. Supp. 2d 668, 675 (E.D.N.Y. 2005)
(quoting Kentucky v. Graham, 473 U.S. 159,
165 (1985)). To establish personal liability,
“it is enough to show that the official, acting
under color of state law, caused the
deprivation of a federal right.” Id. (quoting
Graham, 473 U.S. at 166). Thus, to properly
plead individual capacity, the plaintiff must
allege the “personal involvement” of the
defendant in the “alleged constitutional
deprivations.” Id. at 676 (quoting Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994)). As
detailed above, Coggins extensively alleges
Buonora’s direct participation in the alleged
constitutional violations while on duty,
rather than simply suing Buonora based on
his employment alone. Such allegations of
direct participation in an alleged violation
can constitute “personal involvement” and
therefore suffice to state a claim. See id.

704804, at *5 (E.D.N.Y. Mar. 16, 2009)
(citing Ciambriello v. Cnty. of Nassau, 292
F.3d 307, 324–25 (2d Cir. 2002); Carmody
v. City of New York, No. 05-CV-8084 (HB),
2006 WL 1283125, at *5 (S.D.N.Y. May 11,
2006)); see also Sclafani v. Spitzer, 734 F.
Supp. 2d 288, 297 (E.D.N.Y. 2010). The
TAC details the conspiracy between
Buonora and Vara, both of whom are state
actors acting under the authority of the
NCPD. See West v. Atkins, 487 US. 42, 50
(1988) (“[G]enerally, a public employee acts
under color of state law while acting in his
official capacity or while exercising his
responsibilities pursuant to state law.”).
Moreover, as discussed in more detail infra
with respect to the Section 1985 conspiracy
claim, there is an exception to the
intracorporate conspiracy doctrine where
defendants are alleged to have acted outside
the scope of their employment. At this
juncture, the Court cannot determine
whether the defendants acted within the
scope of their employment and, thus,
dismissal
under
the
intracorporate
conspiracy doctrine is unwarranted. See,
e.g., Randle v. Alexander, No. 10 Civ. 9235
(JPO), 2013 WL 2358601, at *11 (S.D.N.Y.
May 30, 2013) (denying motion to dismiss
because prison guards were alleged to have
acted outside scope of employment). In
short, Coggins adequately states a § 1983
conspiracy claim.

Relatedly, Buonora contends that the
Section 1983 conspiracy claim fails because
Coggins does not allege that the conspiracy
involved a private party. The Court again
disagrees. To survive a motion to dismiss a
§ 1983 conspiracy claim, the plaintiff must
allege (1) an agreement between two or
more state actors or an agreement between a
state actor and private party; (2) concerted
acts to inflict an unconstitutional injury; and
(3) an overt act done in furtherance of the
goal of causing damages.9 Nealy v. Berger,
No. 08-CV-1322 (JFB)(AKT), 2009 WL

Accordingly, the Court denies the
motion to dismiss the entire § 1983 claim.
b.

Count 1: 42 U.S.C. § 1981

Coggins’s first cause of action is under
42 U.S.C. § 1981. To establish a claim under
§ 1981, the plaintiff must allege (1) he is a
member of a racial minority; (2) the
defendant intended to discriminate against
the plaintiff on the basis of race; and (3) the
discrimination concerned one or more of the
activities enumerated in the statute (i.e.,

9

Ciambriello focuses on a § 1983 conspiracy against
a private actor acting under color of state law. See
292 F.3d at 323–25 (analyzing sufficiency of
conspiracy allegation against private actor). Nothing
in Ciambriello forecloses a §1983 conspiracy
involving two state actors. Accord Bodkin v.
Garfinkle, 412 F. Supp. 2d 205, 214 (E.D.N.Y. 2006)
(“Section 1985 applies to conspiracies of private
individuals as well as state actors.”).

11

Accepting these factual allegations as
true and drawing all reasonable inferences
from the officers’ alleged conduct in
Coggins’s favor, the Court concludes that
TAC sets forth a plausible § 1981 claim.
Accordingly, the Court denies the motion to
dismiss the § 1981 claim.

make and enforce contracts, sue and be
sued, give evidence, etc.). Allen v. Suozzi,
No. 09-CV-1520 (JFB)(ARL), 2011 WL
1059147, at *2 (E.D.N.Y. Mar. 21, 2011)
(quoting Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d
Cir. 1993)). To survive a motion to dismiss,
“the plaintiff must specifically allege the
events claimed to constitute intentional
discrimination as well as circumstances
giving rise to a plausible inference of
racially discriminatory intent.” Yusuf v.
Vassar College, 35 F.3d 709, 713 (2d Cir.
1994) (citations omitted).

c.

Count 4: 42 U.S.C. § 1985

Coggins’s fourth cause of action, under
42 U.S.C. § 1985(3), alleges that the officers
conspired to bring about his “seizure, arrest,
detention and false accusation, all without
lawful or proper basis or justification on
account of [his] race, color and gender.”
(TAC ¶ 144.)

Buonora argues that Coggins fails to
allege any specific events giving rise to a
plausible inference of discriminatory intent,
or instances in which non-minorities were
treated differently than him. The Court
disagrees. The TAC sets forth numerous
allegations of adverse conduct by Buonora
and Vara toward Coggins that allegedly
were based on his race. For example, the
TAC alleges the following: that Vara
stopped Coggins because of his race and not
for any legal violation (see TAC ¶ 24); that
Buonora, almost immediately upon arriving
at the scene, yelled “Shoot him in the back”
(TAC ¶ 28); and, as detailed supra, that the
officers conspired to maliciously prosecute
Coggins, fabricate and omit evidence, and
misrepresent the events of October 9. The
TAC also repeatedly alleges that these
actions were based on racial animus. (See
TAC ¶¶ 24 (alleging that Coggins was
stopped because of his race); 37 (alleging
that officers at the NCPD have engaged in
such improper practices for years
“particularly in situations where blacks
and/or black males are involved”); 99
(alleging that all actions by the defendants
“were motivated by race and color, and were
marked by the conduct of Defendants to
support the motivation”).

Section 1985 prohibits two or more
persons from conspiring for the purpose of
depriving any person of the equal protection
of the laws or of equal privileges and
immunities under the laws. 42 U.S.C. §
1985(3). To adequately plead a claim under
§ 1985(3), a plaintiff must allege (1) a
conspiracy; (2) for the purpose of depriving
a person or class of persons of the equal
protection of the laws, or the equal
privileges and immunities under the laws;
(3) an overt act in furtherance of the
conspiracy; and (4) an injury to the
plaintiff’s person or property, or a
deprivation of a right or privilege of a
citizen of the United States. Hollman v.
Cnty. of Suffolk, No. 06-CV-3589
(JFB)(ARL), 2011 WL 280927, at *11
(E.D.N.Y. Jan. 27, 2011) (quoting Mian, 7
F.3d at 1087); see Thomas v. Roach, 165
F.3d 137, 146 (2d Cir. 1999) (citing Traggis
v. St. Barbara’s Greek Orthodox Church,
851 F.2d 584, 586–87 (2d Cir. 1988)). A
conspiracy “can be established by showing
that the parties have a tacit understanding to
carry out of the prohibited conduct.” Roach,
165 F.3d at 146 (quoting LeBlanc–Sternberg
v. Fletcher, 67 F.3d 412, 427 (2d Cir. 1995)
(internal quotation marks omitted)). It must
12

proper basis or justification on account of
Mr. Coggins’ race, color and gender.”); 145
(same).) In sum, given the expansive nature
of the conspiracy and the allegations in the
TAC, the Court concludes that the
allegations plausibly assert a discriminatory
animus behind the officers’ actions. (Cf.
TAC ¶ 37 (“Officers at the [NCPD] have
been engaging in improper practices and
procedures for years, which includes but is
not limited to the practice of falsifying
documents, omitting information and failing
to properly document incidents, particularly
in situations where blacks and/or black
males are involved.”).)

also be motivated by “some racial or
perhaps otherwise class-based, invidious
discriminatory
animus
behind
the
conspirators’ action.’” Id. (quoting Mian, 7
F.3d at 1088). The plaintiff also must show
“with at least some degree of particularity,
overt acts which the defendants engaged in
which were reasonable related to the
promotion of the claimed conspiracy.”
Simpson ex rel. Simpson v. Uniondale Union
Free School Dist., 702 F. Supp. 2d 122, 133
(E.D.N.Y. 2010) (quoting Thomas, 165 F.3d
at 146).
The County Defendants first argue that
the TAC fails to plead a § 1985 conspiracy
with any specificity because Coggins “does
not allege exactly what the Defendant Police
Officers agreed to and does not identify the
overt act in furtherance of the conspiracy,”
“when the conspiracy occurred,” “who
started the conspiracy and when the other
defendants became part of the conspiracy.”
(Motion to Amend Opp., at 5.) Buonora
concurs. The County Defendants also argue
that Coggins did not plead a protected status
or identify any racial motivation or
discriminatory animus behind the alleged
conspiracy. The Court disagrees.

Defendants also argue that the
intracorporate conspiracy doctrine bars the
Section 1985(3) claim because the officers
are employed by the same institutional
defendant. Under this doctrine, a plaintiff
fails to state a § 1985 conspiracy claim “if
the conspiratorial conduct challenged is
essentially a single act by a single
corporation [or municipal entity] acting
exclusively through its own directors,
officers, and employees, each acting within
the scope of his employment.” Dilworth v.
Goldberg, 914 F. Supp. 2d 433, 465
(S.D.N.Y. 2012) (quoting Hermann v.
Moore, 576 F.2d 453, 459 (2d Cir. 1978);
see also Hartline v. Gallo, 546 F.3d 95, 99
n.3 (2d Cir. 2008) (affirming dismissal of §
1985 conspiracy claim where defendants
were all Southampton Police Department
employees). An exception to this doctrine
exists where a plaintiff alleges facts that
tend to show the defendants were “pursuing
personal interests wholly separate and apart
from the entity.” Hartline v. Gallo, No. 03
Civ. 1974, 2006 WL 2850609, at *9
(E.D.N.Y. Sept. 30, 2005), rev’d on other
grounds, 546 F.3d 95 (2d Cir. 2008); see
Chance v. Reed, 538 F. Supp. 2d 500, 509
(D. Conn. 2008) (explaining that it is
possible for a conspiracy to exist despite the
intracorporate doctrine “when the individual

Defendants ignore the factual allegations
in the TAC and the reasonable inferences
that can be drawn therefrom. As noted
above, it is reasonable to infer that Coggins
is Black. To the extent this may not be
explicit from the proposed TAC, Coggins
may re-plead this fact. Further, contrary to
the County Defendants’ position, there are
numerous allegations about the officers’
conspiracy and actions after Coggins’s
arrest. Coggins alleges that racial
motivations underlay this conduct. (E.g.,
TAC ¶¶ 144 (“Defendant VARA and
Defendant BUONORA expressly and
impliedly, agreed with each other to bring
about plaintiff’s seizure, arrest, detention
and false accusation, all without lawful or
13

Coggins adequately pleads an exception to
the intracorporate conspiracy doctrine.

defendants are alleged to have been
motivated by an independent personal stake
in achieving the [organization’s] objective”
(internal citations and quotation marks
omitted)). Personal racial bias, however,
“does not constitute personal interest and is
not sufficient to defeat the intracorporate
conspiracy doctrine.” Bond v. Bd. of Educ.,
No. 97 CV 1337, 1999 WL 151702, at *2
(E.D.N.Y. Mar. 17, 1999) (explaining that
although complaint alleged that defendant
wanted to “get rid of” plaintiff, this personal
bias would not stop the application of the
intracorporate doctrine).

Accordingly, the Court denies the
motion to dismiss the § 1985 claim.
d.

Count 5: 42 U.S.C. § 1986

The 42 U.S.C. § 1986 cause of action is
untimely. Section 1986 provides that “no
action under the provisions of this section
shall be sustained which is not commenced
within one year after the cause of action has
accrued.” The DA’s Office dismissed the
charges against Coggins on August 12,
2005. Therefore, even if the claim relates
back to the original 2007 complaint, this
action is untimely because the alleged §
1985(3) conspiracy and resulting injuries to
Coggins occurred on or before August 12,
2005. Accordingly, the Court grants the
motion to dismiss the § 1986 claim.

The officers are employees of a single
municipal entity, but the alleged conspiracy
consists of actions taken by the officers that
go beyond mere personal bias and the scope
of their employment. Coggins alleges that
the officers acted in concert to fabricate the
charges and evidence, omit relevant facts
from reports, and ensure his malicious
prosecution. These allegations, if assumed to
be true, plausibly suggest that the officers
acted in their own personal interest—such as
to avoid disciplinary action for their
allegedly improper conduct—and not in the
interest of the NCPD, in fabricating the
evidence and charges against Coggins. See
Hill v. City of New York, No. 03 Civ. 1283,
2005 WL 3591719, at *6 (E.D.N.Y. Dec. 30,
2005) (finding that plaintiff’s allegations
that defendants conspired to cover up one of
defendant’s alleged use of excessive force
was sufficient to apply “personal stake”
exception to intracorporate conspiracy
doctrine); Alvarez v. City of New York, 2012
WL 6212612, at *3 (S.D.N.Y. Dec. 12,
2012) (same); cf. K.D. ex rel. Duncan v.
White Plains Sch. Dist., 921 F. Supp. 2d
197, 210 (S.D.N.Y. 2013) (finding exception
inapplicable because complaint alleged that
defendants were “on duty” and acting
“within the scope of their employment” at
time of alleged conspiracies). Therefore,

e.

State Law Personal Injury Claims

Coggins brings state intentional tort
claims for fraudulent misrepresentation,
abuse of process and malicious prosecution,
and false arrest and imprisonment; a claim
for negligence; and a claim for intentional
infliction of emotional distress. Buonora
moves to dismiss these claims as
procedurally barred under N.Y. General
Municipal Law § 50-i (“Section 50-i” or “§
50-i”), as inadequately pled, or both.
i.

Absolute Immunity

As a threshold matter, Buonora contends
that he is entitled to absolute immunity from
the state law claims in their entirety. For the
same reasons the Court denies that motion
with respect to the federal claims, the Court
also denies the motion on that ground as to
the state claims.

14

ii.

Other Grounds

Campbell v. City of New York, 791 N.Y.S.2d
880, 882 (N.Y. 2005); see, e.g., Geslak v.
Suffolk Cnty., No. 06 Civ. 251, 2008 WL
620732, at *2 (E.D.N.Y. Mar. 5, 2008)
(applying § 50-i limitations period to state
claim in federal court). CPLR § 213-b
provides that “an action by a crime victim . .
. may be commenced to recover damages
from a defendant . . . convicted of a crime
which is the subject of such action, for any
injury or loss resulting therefrom within
seven years of the date of the crime.” New
York State courts liberally construe § 213-b
and apply it to a range of crimes. (See 2008
Memorandum and Order, at 15.) “[T]he
benefit of CPLR 213-b has been denied only
in those cases where there was no causal
connection between the crime for which
defendant was convicted and the damages
sought.” (Id. (quoting Cavanaugh v.
Watanabe, 806 N.Y.S.2d 848, 849 (N.Y.
Sup. Ct. Dec. 19, 2005).)

Buonora argues that the intentional tort
claims are untimely because the statute of
limitations in § 50-i applies, the claims
accrued no later than August 12, 2005, and
Coggins only filed suit in August 2007.
Buonora also contends that the Court should
not apply the statute of limitations in N.Y.
C.P.L.R. (“CPLR”) 213-b, because the
claims accrued when Coggins was arrested
then prosecuted, not when Buonora
committed perjury. Further, Buonora argues
that the state law claims must be dismissed
because Coggins never filed a Notice of
Claim. Coggins does not reply to these
contentions; instead, he argues that the
Court addressed the statute of limitations
issue in its 2008 Memorandum and Order
and deferred a ruling until after discovery.10
State claims brought under state law in
federal court are subject to state procedural
rules. See, e.g., Felder v. Casey, 487 U.S.
131, 141 (1988). Thus, New York County
Law § 52 applies in this case and
incorporates the statute of limitations and
notice of claim requirements in N.Y.
General Municipal Law §§ 50-e and 50-i.
Section § 50-i(1) provides that a plaintiff
must commence any action against a county
for “personal injury” within one year and
ninety days from the claim’s accrual.11 See

Section § 50-i(2) provides that “[t]his
section shall be applicable notwithstanding
any inconsistent provisions of law.” In
contrast, CPLR § 201 provides that an action
must be commenced within the time period
specified in Article 2 unless a different time
is prescribed by law. Thus, courts hold that §
50-i(c) applies with respect to an action
against a municipality or against a
municipality’s employee acting in the
performance of her duties and within the
scope of her employment when she
committed the alleged tort—in which case
the municipality must indemnify the
individual and therefore is the real party in
interest. Ruggiero v. Phillips, 739 N.Y.S.2d
797, 799–800 (N.Y. App. Div. 2002) (citing
Clark v. City of Ithaca, 542 N.Y.S.2d 819,
821 (N.Y. App. Div. 1997)). On the other
hand, if the individual was not acting within
the scope of her employment, then the

10

In that Order, the Court found that it could not
determine at this stage and without further discovery
whether the intentional tort claims are timely. The
Court reasoned that § 213-b could be applicable
because a causal connection could exist between
Buonora’s crime of perjury and the physical,
emotional, and financial damages Coggins allegedly
suffered. (See 2008 Memorandum and Order, at 15–
16.) The Court did not consider whether to apply the
one year and ninety day statute of limitations in
General Municipal Law § 50-i(1).

11

“Personal injury” includes malicious prosecution,
assault, battery, false imprisonment, or other

actionable injury to the person either of the plaintiff,
or of another. N.Y. Gen. Const. Law. § 37-a.

15

First, as the Court explained supra,
Coggins’s allegations that the officers acted
in concert to fabricate the charges and
evidence, omit relevant facts from reports,
and ensure his malicious prosecution
plausibly suggest that the officers acted in
their own personal interest—such as to
avoid disciplinary action for their allegedly
improper conduct—and not in the interest of
the NCPD, in fabricating the evidence and
charges. Thus, at this juncture and without
further discovery, the Court cannot find as a
matter of law that the officers were acting
within the scope of their employment—
making the County the real party in
interest—and not solely on their own behalf.
Therefore, at this stage, the Court cannot
find as a matter of law that § 50-i applies
and that Coggins’s claims must be dismissed
for failure to file a Notice of Claim and
bring suit within the one year and ninety
days of the claims’ accrual. See Coe v. Town
of Conklin, 942 N.Y.S.2d 255, 256–57 (N.Y.
App. Div. 2012) (finding that defendant
town was real party in interest and statutory
statute of limitations applied because
plaintiff did not allege that town board
member acted outside scope of his
employment); Kalpin v. Cunningham, 401
N.Y.S.2d 659, 659 (N.Y. App. Div. 1978)
(affirming order denying motion to dismiss
for failure to file notice of claim because
allegations could be construed against
defendant in her individual capacity).

statute of limitations in the CPLR applies.
Id. (citing Tumminello v. City of New York,
622 N.Y.S.2d 714, 715 (N.Y. App. Div.
1995).
Section 50-e requires that a notice of
claim be filed within ninety days of the
incident giving rise to the claim. Moreover,
pursuant to § 50-i, a plaintiff must plead
that: (1) a notice of claim was served; (2) at
least thirty days elapsed since the notice of
claim was filed and before the complaint
was filed; and (3) in that time, the defendant
neglected to or refused to adjust or satisfy
the claim. See Horvath v. Daniel, 423 F.
Supp. 2d 421, 423 (S.D.N.Y. 2006) (citing
N.Y. Gen. Mun. Law § 50-i(1)). “Notice of
claim requirements are construed strictly by
New York state courts. Failure to comply
with these requirements ordinarily requires a
dismissal for failure to state a cause of
action.” Hardy v. N.Y.C. Health & Hosp.
Corp., 164 F.3d 789, 793–94 (2d Cir. 1999)
(internal quotations and citations omitted);
see Horvath, 423 F. Supp. 2d at 423
(“Absent a showing of such a Notice of
Claim, the complaint may be dismissed for
failure to state a cause of action.” (internal
quotation omitted)). Accordingly, for the
asserted state law claims, “[t]he failure to
file a notice of claim is fatal unless the
action has been brought in the public
interest, such as a class action brought to
protect civil rights, or a court has granted
leave to serve late notice.” Pustilnik v.
Hynes, No. 99 Civ. 4087(JG), 2000 WL
914629, at *6 (E.D.N.Y. June 27, 2000)
(citation omitted).

Second, in light of that conclusion, the
Court cannot determine at this stage whether
the statute of limitations in CPLR § 213-b
applies to the abuse of process, malicious
prosecution, and intentional infliction of
emotional distress claims.12 The Court

Based on these principles, and taking the
allegations in the TAC as true and drawing
all reasonable inferences therefrom in favor
of Coggins, the Court finds that it is
premature to decide whether the majority of
the state law claims are procedurally barred.

12

The fraudulent misrepresentation claims are not
covered by N.Y. C.P.L.R. 215(3). Instead,
“[i]ntentional misrepresentation claims are governed
by the six-year statute of limitations for actual
frauds.” Old Republic Ins. Co. v. Hansa World Cargo
Serv., Inc., 51 F. Supp. 2d 457, 670 (S.D.N.Y. 1999).

16

agrees with Buonora that his liability for
these claims may be circumscribed because
they may have accrued before Buonora
committed and was convicted for perjury.
That fact, however, does not mean that
Coggins also was not injured under these
torts because of the perjury, given that the
DA’s Office dismissed the claims five
months after Buonora committed perjury.
Indeed, the TAC states that as a “direct
result” of the alleged misconduct, Coggins
“has suffered and continues to suffer loss of
income, loss of other employment benefits,
loss of career opportunities, and has suffered
and continues to suffer repeated, severe and
permanent psychological and physical
trauma.” (TAC ¶ 94.) Thus, in light of New
York State courts’ expansive interpretation
of CPLR § 213-b—and assuming all of the
allegations in the TAC are draw, and
drawing all reasonable inferences in favor of
Coggins—the Court declines to determine as
a matter of law that no causal connection
exists between Buonora’s crime of perjury
and the damage Coggins allegedly
suffered.13

issues that relate to the application of
Section 50-i and CPLR § 213-b.
iii.

Negligence

Buonora argues that the negligence
claim must be dismissed because it merely
restates the 42 U.S.C. §§ 1981 and 1983
claims, and he is absolutely immune from
civil liability. The Court has declined to hold
that Buonora that he is absolutely immune
from all the claims in this lawsuit at this
stage. Further, the Court’s 2008 reasoning
remains applicable: Coggins’s alternative
theories of liability comply with Federal
Rule of Civil Procedure 8. Thus, there is no
reason to dismiss the negligence claim on
the grounds that Coggins also brought
causes of action pursuant to §§ 1981 and
1983. (See 2008 Memorandum and Order, at
16.) Accordingly, the Court denies the
motion to dismiss the negligence claim.
f.

Request for Sanctions

Coggins requests that the Court levy
sanctions pursuant to Federal Rule of Civil
Procedure 11 because Buonora brought the
Motion to Dismiss to harass, cause
unnecessary delay, and increase the cost of
the litigation. For the following reasons, the
Court denies Coggins’s request.

Therefore, the Court denies the motion
to dismiss the fraudulent misrepresentation,
abuse of process and malicious prosecution,
intentional infliction of emotional distress,
and negligence claims as procedurally
barred. The dismissal is without prejudice to
Buonora’s renewing these defenses at the
summary judgment stage after the parties
have conducted discovery on the factual

Under Rule 11, to avoid the risk of
sanctions,
counsel
must
undertake
reasonable inquiry to “ensure that papers
filed are well-grounded in fact, legally
tenable, and not interposed for any improper
purpose.” Gal v. Viacom Int’l, Inc., 403 F.
Supp. 2d 294, 307 (S.D.N.Y. 2005) (internal
quotation marks omitted) (quoting Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 393
(1990)). In considering a motion for
sanctions under Rule 11, this Court applies
an objective standard of reasonableness. See
MacDraw, Inc. v. CIT Group Equip. Fin.,
Inc., 73 F.3d 1253, 1257–58 (2d Cir. 1996).

13

The false arrest and imprisonment, however,
occurred from October 9–11, 2004. Under New York
law, the false arrest claim ends at arraignment, and
subsequent damages are attributable to a malicious
prosecution. See Hygh v. Jacobs, 961 F.2d 359, 366
(2d Cir. 1992). Thus, this claim could not have
accrued because of Buonora’s perjury, and the one
year statute of limitations in CPLR 215(3) applies.
Accordingly, the Court dismisses this claim as
untimely.

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In sum, no grounds for sanctions exist.
Accordingly, the Court denies Coggins’s
request for sanctions under Rule 11.

Moreover, “Rule 11 is violated only when it
is patently clear that a claim has absolutely
no chance of success.” Oliveri v. Thompson,
803 F.2d 1265, 1275 (2d Cir. 1986) (internal
quotation marks and citation omitted).
Additionally, “when divining the point at
which an argument turns from merely losing
to losing and sanctionable, . . . courts [must]
resolve all doubts in favor of the signer” of
the pleading. Rodick v. City of Schenectady,
1 F.3d 1341, 1350 (2d Cir. 1993) (internal
quotation marks omitted).

IV.

CONCLUSION

For the foregoing reasons, the Court
grants in part and denies in part Coggins’s
motion to amend. The Court grants in part
and denies in part Buonora’s motion to
dismiss.
Specifically, the Court dismisses
Coggins’s 42 U.S.C. § 1986 and New York
State false arrest and imprisonment claims
as time-barred. The dismissal is with
prejudice. The Court also grants the motion
to dismiss the federal claims on absolute
immunity grounds to the extent those claims
rely upon, in any way, any alleged perjury in
the grand jury (or conspiracy to commit
such perjury). However, the motion to
dismiss the remainder of those federal
claims (and related state claims) on absolute
immunity grounds is denied, and the
remainder of the motion to dismiss is
denied. The Court finds the motion for
summary judgment premature and denies it
without prejudice to its renewal after
discovery concludes. Finally, the Court
denies Coggins’s request for sanctions
against Buonora.

Although Buonora reiterated several
contentions in his original motion although
the Court addressed them in 2008, there is
no basis to conclude that the instant motion
was brought in bad faith. Coggins filed an
expanded complaint, Buonora in good faith
believed (albeit incorrectly) that Rehberg
affected the entirety of the claims, and he
raised issues the Court never ruled upon
prior to Rehberg. That the Court denies the
majority of the motion does not warrant the
imposition of sanctions. See, e.g., Mareno v.
Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990)
(“The positions advanced by [plaintiff] and
his attorney, however faulty, were not so
untenable as a matter of law as to necessitate
sanction. Nor did they constitute the type of
abuse of the adversary system that Rule 11
was designed to guard against.”); Scientific
Components Corp. v. Sirenza Microdevices,
Inc., No. 03–CV–1851 NGG, 2007 WL
1026411, at *5 (E.D.N.Y. Mar. 30, 2007)
(“The court agrees that [the defendant] has
been imprudent in choosing to litigate this
claim. However, Rule 11 sanctions are not
appropriate where there is a viable claim
that is weak.”); Eisenberg v. Yes Clothing
Co., No. 90 CIV. 8280(JFK), 1992 WL
36129, at *4 (S.D.N.Y. Feb. 19, 1992)
(“Rule 11 sanctions are not to be imposed on
every litigant that files a motion that the
Court deems premature, or ill-advised, or
weak.”).

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: December 2, 2013
Central Islip, NY

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***
Plaintiff is represented by Frederick K.
Brewington and Valerie M. Cartright of the
Law Offices of Frederick K. Brewington,
556 Peninsula Boulevard, Hempstead, NY
11550. The County Defendants are
represented by Diane C. Petillo from the
Office of the Nassau County Attorney, One
West Street, Mineola, NY 11501. Defendant
Buonora is represented by Laurence Jeffrey
Weingard and Mitchell F. Senft of Hayt,
Hayt & Landau, 600 Northern Boulevard,
Great Neck, NY 11021.

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