Coggins v. County of Nassau et al
ORDER granting in part and denying in part 232 Motion for Summary Judgment; denying 241 Motion to Amend/Correct/Supplement For the reasons set forth herein, the Court denies plaintiff's motion to amend and grants in part and denies in part defendants' motion for summary judgment. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/26/2017. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No 07-CV-3624 (JFB) (AKT)
DARRYL T. COGGINS,
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, AND JOHN DOES 1-10, IN
THEIR INDIVIDUAL AND OFFICIAL CAPACITIES,
MEMORANDUM AND ORDER
May 26, 2017
JOSEPH F. BIANCO, District Judge:
Plaintiff Darryl T. Coggins (“Coggins” or
“plaintiff”) brought 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; and John Does 1–10, in their individual and official capacities (collectively,
“defendants”), pursuant to 42 U.S.C.
§§ 1981, 1983, and 1985, and New York
State tort law.
A grand jury empaneled by the Nassau
County District Attorney’s Office ( “DA’s
Office”) indicted Coggins on March 17,
2005, on charges of unlawful possession of a
weapon and resisting arrest. After the DA’s
Office dismissed the criminal charges against
Coggins, it indicted Buonora for perjury.
Buonora pled guilty. In this action, 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.
Presently before the Court are two motions. First, Coggins moves to file a Fourth
Amended Complaint (“FAC”) to add a 28
U.S.C. § 1983 (“Section 1983”) excessive
force claim (and related state law claims) in
light of newly discovered evidence. Defendants oppose, arguing, inter alia, that plaintiff
has inexcusably delayed in asserting the
claims he now seeks to add to the complaint.
Second, defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56.
plaintiff was driving with two other African
American individuals, Jovan Miles and Aaron Simmons, when Vara effectuated a stop
on plaintiff’s car. (Defs.’ 56.1 ¶¶ 1–2, 4; Pl.’s
56.1 Resp. ¶¶ 1–2, 4; Pl.’s 56.1 ¶¶ 9, 11, 18.)
When plaintiff asked why he was being
pulled over, Vara gave no reason but instructed plaintiff to step out of the vehicle.
(Pl.’s 56.1 ¶¶ 19–20.) Vara then administered a breathalyzer. (Id. ¶ 22; Defs.’ 56.1
¶ 5.) Plaintiff denies that any of the occupants of the vehicle had been drinking before
the stop. (Pl.’s 56.1 ¶¶ 11–15.) Vara does
not recall—and did not record—the results of
the field sobriety tests. (Id. ¶ 120.)
As set forth below, the Court denies
plaintiff’s motion to amend and grants in part
and denies in part defendants’ motion for
summary judgment. Specifically, the Court
concludes that defendants are entitled to summary judgment on plaintiff’s 42 U.S.C.
§ 1981 (“Section 1981”) claim, federal and
state abuse of process claims, 42 U.S.C.
§ 1985 (“Section 1985”) claim, and state law
negligence claims, but not on his remaining
After administering the breathalyzer,
Vara allegedly became aggressive, verbally
threatening plaintiff and grabbing him. (Id.
¶¶ 23, 25; Pl.’s 56.1 Resp. ¶ 5.) Plaintiff
claims he asked Vara to stop grabbing him
and Vara responded by stating “he would do
more than that.” (Pl.’s 56.1 ¶ 26.) At some
point, Vara placed his hand on his firearm.
(Id. ¶ 27.) Nervous, plaintiff fled on foot just
as Buonora was pulling up in his patrol car.
(Id. ¶¶ 28–31; Defs.’ 56.1 ¶¶ 5–6.) As he was
fleeing, plaintiff heard Buonora yell, “shoot
him in the back.” (Pl.’s 56.1 ¶ 31.) Buonara
and Vara chased plaintiff, who ran through
some nearby yards, but they could not catch
him. (Defs.’ 56.1 ¶ 7; Pl.’s 56.1 Resp. ¶ 7;
Pl.’s 56.1 ¶ 30.) Vara then searched the yards
through which plaintiff had ran, but he found
no evidence. (Pl.’s 56.1 ¶¶ 40–41.)
The following facts are taken from the
parties’ depositions, affidavits, and exhibits,
and the parties’ respective Rule 56.1 statements of fact. 1 (See Defs.’ Rule 56.1 Statement (“Defs.’ 56.1”), ECF No. 232-2; Pl.’s
Resp. to Defs.’ Rule 56.1 Statement (“Pl.’s
56.1 Resp.”), ECF No. 236-1, 1–8; Pl.’s Rule
56.1 Statement (“Pl.’s 56.1”), ECF No. 2361, 9–31.) Unless otherwise noted, the facts
are undisputed. Upon consideration of the
motion for summary judgment, the Court
shall construe the facts in the light most favorable to plaintiff as the nonmoving party,
and will resolve all factual ambiguities in his
favor. See Capobianco v. New York, 422
F.3d 47, 50 n.1 (2d Cir. 2001).
Meanwhile, Floral Park Police Officer
John Wilson (“Wilson”) discovered an empty
magazine 2 next to plaintiff’s vehicle. (Defs.’
Coggins is an African-American male.
(Pl.’s 56.1 ¶ 18.) Early on October 9, 2004,
Although the Court generally only cites to the Rule
56.1 statements, it has confirmed that the record supports any assertions upon which it has relied.
empty (Decl. of Andre K. Preston Supp. Defs.’ Mot.
Sum. J. (“Preston Decl.”), Ex. AB, ECF No. 232-31,
at 16). For the purposes of this motion, the Court assumes the magazine was unloaded. See Capobianco,
422 F.3d 47, 50 n.1.
Defendants assert that the magazine was loaded
(Defs.’ 56.1 ¶ 9), but they provide no record citation
to support this assertion, and Wilson’s deposition testimony indicates that the magazine he found was
he, not Wilson, found the magazine next to
plaintiff’s vehicle. (Id. ¶ 103.)
56.1 ¶ 9; Defs.’ Resp. 56.1 ¶ 9.) Wilson
asked passengers Miles and Simmons where
the gun was, and they told him there was no
gun. (Preston Decl., Ex. AB, at 19–20.) Wilson ordered them to show their hands, the
passengers complied, and more officers subsequently arrived on the scene. (Id. at 20–
21.) Later, Wilson found a loaded, 9 millimeter pistol next to a fence near the scene.
(Id. at 30; Defs.’ 56.1 ¶ 10; Pl.’s 56.1 ¶ 10.)
Officers then ordered Miles and Simmons to
exit the vehicle, told them a gun had been
found, handcuffed them, patted them down,
and placed them in separate squad cars. (Pl.’s
56.1 ¶¶ 35–37, 39.)
In addition, the arrest report completed by
Detective Barnych indicated that Vara had
reported hearing the sound of a gun hit the
ground when plaintiff jumped over a chain
link fence and that Vara had secured the gun.
(Id. ¶ 83.) His Standard Requisition Request
Form also indicates that he “safeguarded the
wepon [sic].” (Id. ¶ 86.) At his deposition,
however, Vara testified that he never told Detective Barnych that he had heard the sound
of a gun hitting the ground or secured the gun.
(Id. ¶ 84.) Vara later admitted to investigators that he falsified the Requisition Form.
(Id. ¶ 88.)
Later that day, plaintiff appeared at the
police station with his attorney to surrender
himself. (Defs.’ 56.1 ¶ 12; Pl.’s 56.1 Resp.
¶ 12; Pl.’s 56.1 ¶ 48.) While plaintiff was
handcuffed to a bench at the precinct, Vara
entered and made a comment about plaintiff’s escape. (Pl.’s 56.1 ¶ 50.) Plaintiff alleges that Vara then punched him in the face
twice and other officers had to pull Vara
away. (Id.; see also FAC ¶ 34.)
The criminal case against plaintiff was
dismissed when Buronora’s false testimony
came to light. (Defs.’ 56.1 ¶ 18; Pl.’s 56.1
Resp. ¶ 18.) On October 29, 2005, NCPD’s
Forensic Evidence Bureau discovered that
the handgun Wilson recovered at the scene
had been reported missing from the Orangeburg Department of Public Safety in South
Carolina. (Pl.’s 56.1 ¶ 108.)
Detective Alexander Barnych and Sergeant Mitchell Tepperman subsequently filed
two felony complaints against plaintiff,
charging him with two counts of criminal
possession of a weapon in the third degree.
(Defs.’ 56.1 ¶ 13; Pl.’s 56.1 Resp. ¶ 13.) After arraignment, Buonora falsely testified before the grand jury that he “heard a noise
when [plaintiff] jumped the fence which
sounded like metal hitting the ground . . . .
And [he] looked down to see what it was and
found the gun there.” (Pl.’s 56.1 ¶ 99; see
also Defs.’ 56.1 ¶ 17; Pl.’s 56.1 Resp. ¶ 17.)
Buonora had spoken with the Assistant District Attorney (“ADA”) who handled the case
prior to his grand jury testimony, and Buronora only testified about the gun. (Pl.’s
56.1 ¶¶ 100, 102.) Buonora’s sworn handwritten statement to the NCPD Internal Affairs Unit (“Internal Affairs”) also states that
Internal Affairs charged Vara with perjury, making a false sworn statement, making
a false written statement, and harassment for
his false statements made in connection with
the arrest and prosecution of plaintiff. (Pl.’s
56.1 ¶ 90.) Vara accepted immunity in exchange for his testimony against Buonora.
(Id. ¶ 92.) Internal Affairs ultimately found
Vara guilty of issuing a false communication,
but the perjury charge was left “undetermined” based on his immunity. (Id. ¶¶ 94–
95.) Ten vacation days were revoked as punishment on the false communication charge.
(Id. ¶ 96.) He was not suspended or demoted,
his salary was not reduced, and the County
has indemnified him in the current action for
the counts in the Third Amended Complaint
(“TAC”). (Id. ¶¶ 97–98.)
Internal Affairs charged Buonara with
submitting false official communications.
(Id. ¶ 110.) He was also arrested, criminally
charged with first-degree perjury (a felony),
and suspended without pay for one month in
September 2005. (Id. ¶¶ 109, 113.) Buonora
did not challenge the Internal Affairs charges
and entered into a Disciplinary Stipulation
and Agreement on August 15, 2006. (Id.
¶ 111.) As punishment, he lost 100 vacation
days, was put on desk duty, and was put on
probation for one year. (Id. ¶¶ 111–12.) In
the criminal case, he pled guilty to third-degree perjury (a misdemeanor) and was sentenced to three years’ probation. (Id. ¶¶ 114;
see also Defs.’ 56.1 ¶ 19; Pl.’s 56.1 Resp.
The parties completed discovery on September 1, 2016 (see ECF No. 226), and defendants moved for summary judgment on
the claims in the TAC on December 5, 2016
(ECF No. 232). Plaintiff filed his opposition
on February 13, 2017 (ECF No. 236), and defendants replied on March 13, 2017 (ECF No.
238). The Court heard oral argument on
March 24, 2017 and set a briefing schedule
for plaintiff’s motion to amend. (ECF No.
239.) Plaintiff filed the motion, along with
the FAC, on April 3, 2017 (ECF No. 241),
and defendants opposed on April 17, 2017
(ECF No. 243). The Court has fully considered the parties’ submissions.
B. Procedural History
A. Standard of Review
Coggins filed the Complaint on August
28, 2007. (ECF No. 1.) The case has undergone extensive motion practice since that
time, including two motions to dismiss and
multiple appeals to the Second Circuit. (See,
e.g., ECF Nos. 28, 70, 170.) The Court dismissed several of plaintiff’s claims on defendants’ motion to dismiss the TAC, see
Coggins v. Cnty. of Nassau, 988 F. Supp. 2d
231 (E.D.N.Y. 2013), and the following
causes of action remain: (1) violations of Section 1981; (2) violations of Section 1983;
(3) municipal liability; (4) violations Section
1985; (5) violations of 42 U.S.C. § 1986; (6)
state law fraudulent misrepresentation; (7)
state law abuse of process and malicious
prosecution; (8) state law false arrest and
false imprisonment; (9) negligence; and (10)
state law intentional infliction of emotional
distress (“IIED”) (see ECF No. 178). The
FAC seeks to add a Section 1983 claim for
excessive force and a state law assault and
battery claim based on Vara’s alleged assault
of plaintiff at the police station when plaintiff
surrendered himself. (ECF No. 241-1 at
¶¶ 137–41, 179–84.)
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.”).
Motion to Amend
In the Second Circuit, “[m]ere delay . . .
absent a showing of bad faith or undue prejudice, does not provide a basis for a district
court to deny the right to amend.” Block v.
First Blood Assocs., 988 F.2d 344, 350 (2d
Cir. 1993) (quoting State Teachers Ret. Bd. v.
Fluor Corp., 654 F.2d 843, 856 (2d Cir.
1981)). Nevertheless, “leave to amend may
WL 2179254, at *7 (W.D.N.Y. July 22,
2009) (“The Court also finds that the proposed amendment would prejudice Defendant, since the Court would need to reopen discovery, which would further delay the resolution of the case.”); Travelers Ins. Co. v.
Buffalo Reinsurance Co., No. 86 CIV. 3369
(JMC), 1990 WL 116741, at *2 (S.D.N.Y.
Aug. 7, 1990) (“The burden of additional discovery is adequate justification for denial of
leave to amend . . . where the amendment
would reopen discovery concerning an event
that happened many years ago.” (citations
omitted)). Similarly, courts have found prejudice resulting from a delay when that delay
has either rendered witnesses unavailable or
caused their memories of the relevant events
to fade. See, e.g., Zubulake v. UBS Warburg
LLC, 231 F.R.D. 159, 162 (S.D.N.Y. 2005)
(denying motion to amend in part because
“[w]itnesses to these events may not [have
been] available” and, “[e]ven if the knowledgeable witnesses [were] available, their
recollection of events [would] undoubtedly
be diminished compared to two years earlier”). Prejudice can also exist where a proposed amendment could raise a conflict of interest that would require the nonmoving party
to retain separate counsel. See, e.g., Media
Sport & Arts s.r.l. v. Kinney Shoe Corp., No.
95 CIV. 3901 (PKL), 1999 WL 946354, at *5
(S.D.N.Y. Oct. 19, 1999) (denying motion to
amend where the amendment “would create
a conflict of interest with the potential to require [the nonmoving parties] to retain separate counsel”).
be denied where the moving party knows or
should have known of the facts upon which
the proposed amendment is based, but failed
to include them in the original pleading.”
Priestley v. Am. Airlines, Inc., No. 89 CIV.
8265 (JMC), 1991 WL 64459, at *1
(S.D.N.Y. Apr. 12, 1991). In addition, “the
longer the period of an unexplained delay, the
less will be required of the nonmoving party
in terms of a showing of prejudice.” Block,
988 F.2d at 350 (quoting Evans v. Syracuse
City Sch. Dist., 704 F.2d 44, 47 (2d Cir.
In determining whether the party opposing the amendment has been prejudiced,
courts consider “whether the assertion of the
new claim would: (i) require the opponent to
expend significant additional resources to
conduct discovery and prepare for trial;
(ii) significantly delay the resolution of the
dispute; or (iii) prevent the plaintiff from
bringing a timely action in another jurisdiction.” Id. Furthermore, “[a] court may also
consider whether the motion comes on the
eve of trial after many months or years of pretrial activity, or witnesses have become unavailable for examination and the memories of
others may have dimmed.” Gem Glob. Yield
Fund, Ltd. v. Surgilight, Inc., No. 04-CV4451 (KMK), 2006 WL 2389345, at *10
(S.D.N.Y. Aug. 17, 2006) (brackets and citations omitted).
Courts in this Circuit have repeatedly
found that a proposed amendment will prejudice the nonmoving party where it would require the court to reopen discovery. See, e.g.,
Instinet Inc. v. Ariel (UK) Ltd., No. 08 CIV.
7141 JFK RLE, 2011 WL 4444086, at *3
(S.D.N.Y. Sept. 26, 2011) (“Permitting Ariel
to amend at this late juncture would result in
substantial prejudice to Instinet, as it would
require the reopening of discovery and further delay the resolution of this lawsuit.” (citations omitted)); Re-Source Am., Inc. v.
Corning Inc., No. 07-CV-6048 CJS, 2009
Here, the FAC seeks to add claims based
on Vara’s alleged assault on plaintiff in the
police station, which occurred when plaintiff
surrendered himself on October 9, 2004.
Thus, plaintiff clearly knew of “the facts
upon which the proposed amendment is
based” at the time the original complaint was
filed “but failed to include them in the original pleading.” Priestley, 1991 WL 64459, at
*1. Instead, plaintiff waited to file the present
motion to amend for almost thirteen years after the alleged assault took place, almost ten
years after the original complaint was filed,
and over eight months after counsel learned
of the assault at plaintiff’s deposition. Plaintiff provides no explanation for this delay,
and, given its length, “less [is] required of the
nonmoving party in terms of a showing of
prejudice.” Block, 988 F.2d at 350.
better position to provide all relevant information on this issue.
Third, the County has only agreed to indemnify Vara on the counts in the TAC, and,
therefore, if the Court permitted plaintiff to
amend, Vara would need to seek indemnification on the newly added claims from the Indemnification Board, resulting in further delay. Relatedly, given the nature of the allegations, there is a distinct possibility that the Indemnification Board would decline to indemnify Vara on the excessive force and assault
and battery claims. Because defense counsel
only represents Vara by virtue of his indemnification from the County, a conflict of interest could arise in the event indemnification
is denied, in which case Vara would need to
seek new counsel. See Media Sport, 1999
WL 946354, at *5.
Under this standard, defendants have
made an adequate showing of prejudice.
First, permitting the amendment would require the court to reopen discovery, and defendants would have to expend substantial resources in conducting such discovery. In addition to re-deposing both plaintiff and Vara,
defendants would also need to investigate
and question additional witnesses, given
plaintiff’s allegation that other officers had to
intervene to stop Vara’s alleged assault. See
Ariel, 2011 WL 4444086, at *3; Re-Source
Am., 2009 WL 2179254, at *7.
Second, based on how much time has
passed since the alleged assault, these same
witnesses may not be available or even ascertainable, and, to the extent they are, they may
not adequately remember the events in question. See Zubulake, 231 F.R.D. at 162. Had
plaintiff included these allegations in the
original complaint, defendants could have
identified and questioned the officers who allegedly intervened to stop the assault. Permitting plaintiff to add these substantial
claims at this juncture would thus greatly
prejudice defendants because, if these witnesses had been identified and questioned in
a timely manner, they would have been in a
In short, defendants have established
prejudice because (1) granting leave to
amend would require costly additional discovery on the newly added claims; (2) witnesses to the alleged assault may not be ascertainable or available at this late stage, and,
in any event, would need to recall an incident
that took place almost thirteen years ago;
(3) Vara would need to seek additional indemnification based on the FAC; and (4) a
conflict of interest could arise requiring Vara
to obtain new counsel if the Court permits the
FAC to go forward. Furthermore, plaintiff
has offered no explanation for the substantial
delay in filing these claims even though he
knew the factual basis for them when the
original complaint was filed. See Priestley,
1991 WL 64459, at *1. Accordingly, in its
discretion the Court denies plaintiff’s motion
for leave to amend. 3 See, e.g., Brown v.
Fisher, 486 F. App’x 959, 960 (2d Cir. 2012)
Plaintiff also argues that the claims in the FAC relate
back to the original filing because the new allegations
were “part of what transpired during the series of actions taken by Defendants regarding Plaintiff’s wrongful arrest, malicious prosecution etc.” (ECF No. 241
at 2.) The Court disagrees. As the Second Circuit has
explained, “the touchstone for relation back pursuant
to Rule 15(c)(2) is notice, i.e., whether the original
pleading gave a party adequate notice of the conduct,
transaction, or occurrence that forms the basis of the
(affirming denial of leave to amend where
plaintiff “failed to move for leave to amend
his complaint before the close of discovery or
after receiving [defendant’s] summary judgment motion . . . [and] requested leave to
amend his complaint and reopen discovery
. . . more than eight months after the summary judgment motion had been filed, a year
after discovery had closed, and almost two
years after the initial complaint had been
filed”); McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 202 (2d Cir. 2007) (affirming denial of leave to amend where the
motion was filed after “discovery had closed,
defendants had filed for summary judgment,
and nearly two years had passed since the filing of the original complaint”); Duggins v.
Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th
Cir. 1999) (“The plaintiff was obviously
aware of the basis of the claim for many
months, especially since some underlying
facts were made a part of the complaint.
Plaintiff delayed pursuing this claim until after discovery had passed, the dispositive motion deadline had passed, and a motion for
summary judgment had been filed. There appears to be no justification for the delay, and
the plaintiff proposes none.
amendment at this late stage in the litigation
would create significant prejudice to the defendants in having to reopen discovery and
prepare a defense for a claim quite different
from the . . . claim that was before the court.
The district court did not abuse its discretion
in denying leave to amend. . . .”).
A. Standard of Review
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that it is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). Rule 56(c)(1) provides
party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers,
or other materials; or (B)
showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse
claim or defense.” United States v. Baylor Univ. Med.
Ctr., 469 F.3d 263, 270 (2d Cir. 2006). The original
complaint—and the TAC, for that matter—are based
on the conduct of Vara and Buonora during the traffic
stop and the various false statements they made during
the investigation. Nothing in the original complaint
suggested that an assault and battery occurred while
plaintiff was at the police station, and none of the alleged physical force that was used against plaintiff
during the traffic stop comes close to the level plaintiff
alleges in the new claims. Therefore, the Court concludes that the original complaint does not provide notice adequate enough for the new claims to relate back.
party cannot produce admissible evidence to support the
“‘merely to assert a conclusion without supplying supporting arguments or facts.’” BellSouth Telecomms., Inc. v. W.R. Grace & Co.Conn., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at
Fed. R. Civ. P. 56(c)(1). The court “‘is not to
weigh the evidence but is instead required to
view the evidence in the light most favorable
to the party opposing summary judgment, to
draw all reasonable inferences in favor of that
party, and to eschew credibility assessments.’” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d
Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).
Defendants move for summary judgment
on various causes of action in the TAC. As
set forth below, the Court concludes that defendants are entitled to summary judgment
on plaintiff’s Section 1981 claim, federal and
state abuse of process claims, Section 1985
claim, and state law negligence claims, but
not on his remaining claims.
Once the moving party has met its burden, the opposing party “‘must do more than
simply show that there is some metaphysical
doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v. Calabrese, 298
F.3d 156, 160 (2d Cir. 2002) (alteration and
emphasis in original) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986)). As the Supreme
Court stated in Anderson, “[i]f the evidence
is merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties
alone will not defeat an otherwise properly
supported motion for summary judgment.”
Id. at 247–48. Thus, the nonmoving party
may not rest upon mere conclusory allegations or denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment
Plaintiff has brought a racial discrimination claim pursuant to Section 1981. Under
[a]ll persons within the jurisdiction of the United States
shall have the same right in
every State and Territory to
. . . the full and equal benefit
of all laws and proceedings
for the security of persons and
property as is enjoyed by
white citizens, and shall be
subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C. § 1981(a). A claim under Section
1981 requires a plaintiff to establish that
“(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute. . . .” Mian
v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2d Cir. 1993). As this
Court has recognized, “Section 1981 claims
are analyzed under the same standards as Title VII claims.” Allen v. Suozzi, No. 09-CV1520 JFB ARL, 2011 WL 1059147, at *2
(E.D.N.Y. Mar. 21, 2011) (citing Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d
62, 69 (2d Cir. 2000)); see also Patterson v.
Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d
Cir. 2004) (“Most of the core substantive
standards that apply to claims of discriminatory conduct in violation of Title VII are also
applicable to claims of discrimination in employment in violation of § 1981.”).
that it was not uncommon for white parents
to shout out similar comments in similar situations without incident.” Id. at 304 (analyzing discriminatory intent on Section 1983
Equal Protection claim); see also id. at 306
(applying holding on Section 1983 claim to
Section 1981 claim); Antoine ex rel. Antoine
v. Rucker, No. 03-3738 (DRD), 2006 WL
1966649, at *9 (D.N.J. July 12, 2006) (denying summary judgment where Haitian plaintiff identified testimony in the record indicating that, when defendant, a police officer, assaulted him, defendant said, “I’ll teach you
Unlike a Title VII claim, however, “a
plaintiff pursuing a claimed violation of
§ 1981 . . . must show that the discrimination
was intentional.” Patterson, 375 F.3d at 226.
The discrimination must be “a substantial or
motivating factor for the defendant’s actions.” Tolbert v. Queens Coll., 242 F.3d 58,
69 (2d Cir. 2001). Furthermore, “[n]aked assertions of racial discrimination are insufficient to state a cause of action.” Johnson v.
City of N.Y., No. CV-01-1860(SJF)(VVP),
2004 WL 502929, at *3 (E.D.N.Y. Jan. 12,
2004). In general, “[a] finding of discriminatory intent is a finding of fact” for the jury.
Id. at 70.
By contrast, in Green v. Missouri, 734 F.
Supp. 2d 814, 842 (E.D. Mo. 2010), the court
granted summary judgment on a plaintiff’s
Section 1981 claim where the plaintiff “failed
to produce any evidence that Defendant Police Officers’ decision to arrest him was
based on his race.” In that case, the AfricanAmerican plaintiff, a well-known civil rights
activist, was arrested at a crowded school
board meeting for being disruptive and refusing to comply with the officers’ orders to
leave. Id. at 827. The court concluded that
he failed to establish a Section 1981 claim,
In Coward v. Town & Village of Harrison, 665 F. Supp. 2d 281, 306 (S.D.N.Y.
2009), for example, a plaintiff survived summary judgment on a Section 1981 claim
against two police officers who arrested him
at a park for exercising near a baseball field
and shouting at the players during a little
league game. The court concluded that a genuine dispute of material fact existed because
the plaintiff and another witness had testified
that the plaintiff’s exercises were not alarming anyone, his comments “were neither harassing nor different from the comments frequently called out by certain parents,” he
“was the only African-American in the Park
at the time of his arrest,” and there was “testimony in the record supporting the inference
[a]lthough [the plaintiff] testified that he believed police officers in the City of St. Louis
have a general attitude of
dominance and often abuse
their authority, [he] submitted
no evidence that Defendant
Police Officers held any racial
animus towards AfricanAmericans, that they said any
remarks where one could infer
racial animus, or that they
treated Green differently than
similarly situated people of
Id. at 841 (analyzing Section 1983 Equal Protection claim); see also id. at 842 (granting
summary judgment on Section 1981 claim
for the same reasons as Equal Protection
claim); see also Gonzalez v. Pierce Cnty., No.
C04-5303RJB, 2005 WL 2088367, at *11
(W.D. Wash. Aug. 29, 2005) (granting summary judgment on Section 1981 claim where
the only evidence of racial discrimination
was plaintiff’s deposition testimony “that she
believed that if the same contact with officers
happened with her Caucasian neighbor, her
neighbor would not have been arrested” and
officer’s admission that he initially spoke to
plaintiff in Spanish).
any testimony that defendants made racially
suggestive comments at any time during his
arrest or prosecution, see Rucker, 2006 WL
1966649, at *9. Instead, like the plaintiffs in
Green and Gonzalez, the only evidence of racial animus is plaintiff’s belief that the arrest
was racially motivated. 5 This, however, is insufficient as a matter of law to establish a
Section 1981 claim.
Accordingly, plaintiff has failed to present evidence to suggest that any of defendants’ actions were racially motivated. As
such, no genuine issue of material fact exists
on plaintiff’s Section 1981 claim, and the
Court grants defendant’s motion for summary judgment on that claim.
Here, like in Green, plaintiff has failed to
adduce any evidence that the conduct of the
officers was racially motivated. He has not
identified anything in the record to suggest
that similarly situated suspects of another
race were treated differently, 4 see Coward,
665 F. Supp. 2d at 306, nor has he highlighted
Plaintiff argues that racial animus can be implied because there is no evidence that defendants have ever
behaved similarly toward white suspects. (Pl.’s Opp’n
Defs.’ Mot. Sum. J. (“Pl.’s Br.”), ECF No. 236 at 4–
5.) There is also, however, no evidence to suggest that
defendants have treated other African-American suspects in the same way they treated plaintiff. In fact, as
noted below, there are a number of other alleged incidents of Vara allegedly stopping motorists without
probable cause, yet plaintiff puts forth no evidence or
argument that these other incidents also included African-American motorists. (See, e.g., Pl.’s 56.1 ¶¶ 70,
76, 78 (no mention of complainant’s race).) On the
contrary, although the “Type of Complaint” section on
the civilian complaints cited by plaintiff contains an
option for “Racial/Ethnic Bias,” this option was not
marked on any of the complaints against Buonora or
Vara. (See Decl. of Frederick K. Brewington Supp.
Pl.’s Opp’n Defs.’ Mot. Sum. J., Exs. Y, Z, AA, BB,
CC, ECF No. 236-3.) Thus, given the evidence of
multiple stops by Vara with no corresponding evidence of any link to race, no inference of racial motivation can be drawn for defendants’ behavior toward
plaintiff when compared to other motorists.
who are white, stopped plaintiff and his AfricanAmerican passengers in a predominantly white neighborhood without articulating a reason for the stop; and
(2) the officers arrested the passengers for no apparent
reason. (Pl.’s Br. at 4–5.) The Court disagrees. First,
plaintiff’s record citations do not support the assertion
that the neighborhood in which he was driving was
predominantly white, and the Court could find no basis
in the record for this claim. Even if there were record
support for this proposition, the location of the stop,
without more, does give rise to an inference of racial
discrimination. See Ford v. City of Rockford, 48 F.3d
1221 (7th Cir. 1995) (“Ford claims that the officers’
decision to stop him was based on race because he, a
black [man], was in a predominately white neighborhood. Even if that is true, it still does not amount to
an equal protection violation.”); see also Poole v.
Flanery, 162 F. App’x 661, 662 (8th Cir. 2006); Caldwell v. City of Selma, No. 1:13-CV-00465-SAB, 2015
WL 1897806, at *9 (E.D. Cal. Apr. 16, 2015). Second,
nothing in the record suggests that the arrests of plaintiff’s passengers were racially motivated. Instead, the
record indicates that the officers arrested them after
the officers found an empty magazine right next to the
car and the passengers denied knowledge of a gun.
Plaintiff also argues that racial animus can be inferred from the following facts: (1) Vara and Buonora,
2. False Arrest, False Imprisonment, Malicious Prosecution, and Abuse of Process
1995). Thus, in this section, the Court considers the false arrest, false imprisonment, malicious prosecution, and abuse of process
claims under Section 1983 collectively with
their parallel claims under state law.
To prevail on a claim under Section 1983,
a plaintiff must show: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and its laws; (2) by a person acting under the color of state law. 42
U.S.C. § 1983. “Section 1983 itself creates
no substantive rights; it provides only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993). Here,
plaintiff brings Section 1983 claims for
(1) false arrest and imprisonment; (2) malicious prosecution; and (3) abuse of process,
in addition to parallel state law claims. 6
a. False Arrest/Imprisonment
To prevail on a false arrest claim, a plaintiff must prove four elements: “(1) the defendant intended to confine him, (2) the
plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement and (4) the confinement was not
otherwise privileged.” Broughton v. New
York, 37 N.Y.2d 451, 456 (N.Y. 1975). Because there is no dispute that Detective
Barnych arrested plaintiff at the precinct on
October 9, 2004 (see Defs.’ 56.1 ¶ 12; Pl.’s
56.1 Resp. ¶ 12), the first three elements are
plainly satisfied, see, e.g., Adonis v. Coleman, No. 08 CIV.1726 (MGC), 2009 WL
3030197, at *7 (S.D.N.Y. Sept. 23, 2009).
Defendants argue, however, that they were
not the officers who physically arrested
plaintiff and that, even if they were, they had
probable cause to do so, which, if true, would
render the confinement privileged under the
fourth element. (See Defs.’ Reply Mem.
Supp. Mot. Sum. J. (“Defs.’ Reply”), ECF
No. 238, at 1–2.)
As the Second Circuit has noted,
“[c]laims for false arrest or malicious prosecution, brought under § 1983 to vindicate the
Fourth and Fourteenth Amendment right to
be free from unreasonable seizures, are ‘substantially the same’ as claims for false arrest
or malicious prosecution under state law.”
Jocks v. Tavernier, 316 F.3d 128, 134 (2d
Cir. 2003) (quoting Weyant, 101 F.3d at 852
(false arrest) and citing Conway v. Vill. of
Mount Kisco, 750 F.2d 205, 214 (2d Cir.
1984) (malicious prosecution)). The same is
true for abuse of process claims. See Cook v.
Sheldon, 41 F.3d 73, 79–80 (2d Cir. 1994)
(“As with malicious prosecution, we turn to
state law to find the elements of the malicious
abuse of process claim.”). Furthermore, under New York law, “the tort of false arrest is
synonymous with that of false imprisonment,” and courts use that tort to analyze an
alleged Fourth Amendment violation in the
Section 1983 context. Posr v. Doherty, 944
F.2d 91, 96 (2d Cir. 1991); see Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.
The Court concludes that factual issues
preclude summary judgment on the false arrest claims. First, it is well settled that “[a]n
officer need not necessarily have directly
seized and handcuffed an individual to be liable for false arrest.” Bryant v. Serebrenik,
No. 15CV3762ARRCLP, 2016 WL
6426372, at *3 (E.D.N.Y. Oct. 28, 2016); see
also Malley v. Briggs, 475 U.S. 335, 345 n.7
(1986) (“[Section] 1983 ‘should be read
against the background of tort liability that
Plaintiff’s Section 1983 municipal liability claim is
makes a man responsible for the natural consequences of his actions.’ Since the common
law recognized the causal link between the
submission of a complaint and an ensuing arrest, we read § 1983 as recognizing the same
causal link.” (quoting Monroe v. Pape, 365
U.S. 167, 187 (1961))); Goode v. Newton,
No. 3:12CV754 JBA, 2013 WL 1087549, at
*5 (D. Conn. Mar. 14, 2013) (“[A]s long as
the causal link is strong enough, ‘as a general
rule, a government official’s liability for
causing an arrest is the same as for carrying
it out.’” (quoting Berg v. Cnty. of Allegheny,
219 F.3d 261, 272 (3d Cir. 2000)). Instead,
an officer may be held liable for false arrest
where he caused the arrest, see Goode, 2013
WL 1087549, at *5, or was “involved in the
decision to arrest [the] plaintiff,” Wong v.
Yoo, 649 F. Supp. 2d 34, 61 (E.D.N.Y. 2009)
(rejecting argument that defendants “cannot
be held liable for false arrest because they
were not personally involved in plaintiff’s arrest”). Here, a factual dispute exists over
whether Vara and Buonora caused the arrest
because plaintiff has presented evidence that
Detective Barnych arrested him based on the
false information provided by these officers. 7
(See Pl.’s 56.1 Resp. ¶ 15; Pl.’s 56.1 ¶¶ 56–
57, 83, 86, 99, 103).
be determinable as a matter of law if there is
no dispute as to the pertinent events and the
knowledge of the officers, or may require a
trial if the facts are in dispute.” Weyant, 101
F.3d at 852 (citations omitted).
Moreover, the Second Circuit has indicated that, “[i]n general, probable cause to arrest exists when the officers have knowledge
or reasonably trustworthy information of
facts and circumstances that are sufficient to
warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is committing a crime.” Id. at 852.
The “validity of an arrest does not depend
upon an ultimate finding of guilt or innocence.” Peterson v. Cnty. of Nassau, 995 F.
Supp. 305, 313 (E.D.N.Y. 1998) (citing
Pierson v. Ray, 386 U.S. 547, 555 (1967),
overruled on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982)). “Rather,
the court looks only to the information the arresting officer had at the time of the arrest.”
Id. (citing Anderson v. Creighton, 483 U.S.
635, 641 (1987)). Where probable cause
does not otherwise exist, however, it cannot
be manufactured by an officer’s knowingly
false statements. See Golino v. City of New
Haven, 950 F.2d 864, 870 (2d Cir. 1991)
(holding that a magistrate judge’s finding of
probable cause will not immunize an arresting officer if the plaintiff shows that the officer “knowingly and intentionally, or with
reckless disregard for the truth, made a false
statement in his affidavit and that the allegedly false statement was necessary to the
finding of probable cause”); Weinstock v.
Wilk, 296 F. Supp. 2d 241, 247 (D. Conn.
2003) (“[P]laintiff can overcome this heavy,
Second, a factual dispute exists over
whether probable cause justified plaintiff’s
arrest. The Second Circuit has made clear
that “[t]he existence of probable cause to arrest . . . is a complete defense to an action for
false arrest.” Jenkins v. City of New York,
478 F.3d 76, 84 (2d Cir. 2007) (quoting Weyant, 101 F.3d at 852) (citations omitted)). At
the summary judgment stage, “[t]he question
of whether or not probable cause existed may
Detective Barnych is not a party to this action, and
plaintiff’s counsel indicated he would not be substituted for a John Doe defendant at oral argument. In
any event, Detective Barnych would be entitled to
qualified immunity for his role in plaintiff’s arrest, as
he was “permitted to rely on information conveyed by
the other police officers at the precinct in determining
that there was probable cause to arrest [plaintiff].”
Hart v. City of N.Y., No. 11 CIV. 4678 RA, 2013 WL
6139648, at *4 (S.D.N.Y. Nov. 18, 2013) (citing Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)).
did not give rise to probable cause justifying
arrest.”) (collecting cases); see also Dancy v.
McGinley, 843 F.3d 93, 112 (2d Cir. 2016)
(“In New York, unless he is otherwise lawfully detained, an individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain
silent or walk or run away. His refusal to answer is not a crime. The failure to stop or cooperate by identifying oneself or answering
questions cannot be the predicate for an arrest
absent other circumstances constituting probable cause.” (citations and brackets omitted)).
Under the circumstances as alleged by plaintiff, moreover, a jury could find that his flight
was not indicative of criminal activity but of
fear for his safety, given the evidence that
Vara was aggressive toward and threatened
plaintiff. (See Pl.’s 56.1 ¶¶ 23, 25.)
but not insurmountable burden by demonstrating that his right not to be arrested without probable cause was violated when the officer submitting the probable cause affidavit
knowingly or intentionally, or with reckless
disregard for the truth, made a false statement
in his affidavit, or omitted material information, and that such false information was
necessary to the finding of probable cause.”);
Hibbard v. Gallivan, No. 99-CV-0145E(F),
1999 WL 782174, at *1 (W.D.N.Y. Sept. 15,
1999) (“[A]n officer may not insulate himself
from liability by procuring an arrest warrant
based on false statements.”).
Here, plaintiff has presented evidence
that Detective Barnych arrested him on the
basis of the false statements made by Vara
and Buonora, i.e., that they heard the sound
of a gun hitting the pavement when plaintiff
climbed over the fence and that they recovered the gun themselves. (See Pl.’s 56.1
Resp. ¶ 15; Pl.’s 56.1 ¶¶ 56–57, 83, 86, 99,
103.) Indeed, the charges were dropped
when the DA’s Office learned that these
statements were false. (Defs.’ 56.1 ¶ 18.)
Given that Vara and Buonora have admitted
that they made these statements knowing of
their falsity, they cannot serve as the basis for
a finding of probable cause with respect to
Vara and Buonora. See Golino, 950 F.2d at
870; Weinstock, 296 F. Supp. 2d at 247; Hibbard, 1999 WL 782174, at *1. Thus, the
question is whether the undisputed facts establish probable cause absent the false statements. See, e.g., Colon v. Ludemann, 283 F.
Supp. 2d 747, 757 (D. Conn. 2003).
Defendants further argue that, because
Vara witnessed plaintiff speeding, probable
cause existed to justify the stop, which in turn
would justify the arrest. See Atwater v. City
of Lago Vista, 532 U.S. 318, 354 (2001) (“If
an officer has probable cause to believe that
an individual has committed even a very minor criminal offense in his presence, he may,
without violating the Fourth Amendment, arrest the offender.”) A factual dispute exists,
however, as to whether Vara had probable
cause to stop plaintiff for speeding. Although
Vara testified—and his arrest report indicates—that he stopped plaintiff for this reason, he admitted that he did not use a speed
gun and that the stop was based solely on his
observation of the vehicle. (Preston Decl.,
Ex. W, at 20–23.) Furthermore, Miles, a passenger in plaintiff’s vehicle, testified at her
deposition that Vara indicated he had pulled
the car over for suspected drunk driving (id.,
Defendants argue that probable cause existed because plaintiff fled the scene on foot
after Vara administered the sobriety tests.
(Defs.’ Reply at 2.) Without more, however,
a suspect’s attempt to flee the scene is not
sufficient to establish probable cause. See
People v. Bennett, 170 A.D.2d 516, 516
(N.Y. App. Div. 1991) (“[T]he defendant’s
flight upon being approached by the officers
Ex. X, at 18), 8 and there is no dispute Vara
subsequently performed field sobriety tests
on plaintiff (Defs.’ 56.1 ¶ 5; Pl.’s 56.1 ¶ 22).
Plaintiff and both passengers maintain that
they had not been drinking on the night in
question. (See Pl.’s 56.1 ¶¶ 12–15.) Thus,
there is a factual dispute over whether Vara
had probable cause for the stop. It follows
that summary judgment is not warranted on
the false arrest claims. 9
128, 136 (2d Cir. 2003)). Here, plaintiff has
produced evidence to create a factual dispute
as to each element.
First, it is well-settled that a police officer
initiates a prosecution under the first element
when he provides false information to a prosecutor who subsequently initiates a proceeding against the plaintiff based on that information. See Costello v. Milano, 20 F. Supp.
3d 406, 415 (S.D.N.Y. 2014) (“A police officer can also initiate a prosecution by creating material, false information and forwarding that information to a prosecutor or by
withholding material information from a
prosecutor.”) (collecting cases). Thus, because plaintiff has introduced evidence that
the DA’s Office relied on the false statements
made by Buonora and Vara when they
brought charges against plaintiff (see Pl.’s
56.1 ¶¶ 56–57, 100–102), a factual dispute
plainly exists on the first element. 10
b. Malicious Prosecution
“Because there are no federal rules of decision for adjudicating § 1983 actions that are
based upon claims of malicious prosecution,
[courts] are required by 42 U.S.C. § 1988 to
turn to state law—in this case, New York
state law—for such rules.” Conway, 750 F.2d
at 214. “A malicious prosecution claim under
New York law requires the plaintiff to prove
‘(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3)
lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for defendant’s actions.’” Blake v.
Race, 487 F. Supp. 2d 187, 211 (E.D.N.Y.
2007) (quoting Jocks v. Tavernier, 316 F.3d
Second, New York law does not require a
malicious prosecution plaintiff to prove his
innocence, or even that the termination of the
criminal proceeding was indicative of innocence. Instead, the plaintiff's burden is to
Plaintiff, meanwhile, claims that Vara gave no reason
for pulling him over at the time. (See Pl.’s 56.1 ¶ 20.)
244. It is these claims that survived defendants’ motion to dismiss and which now survive their motion for
Defendants also argue that plaintiff is collaterally estopped from bringing his false arrest and false imprisonment claims because, according to defendants, this
Court dismissed those claims in its earlier decision on
defendants’ motion to dismiss. (See Defs.’ Mem.
Supp. Mot. Sum. J., ECF No. 232-1 (“Defs.’ Br.”), at
1.) Defendants misread the earlier order. In that decision, this Court held that the officers were only entitled
to absolute immunity under Rehberg v. Paulk, 132 S.
Ct. 1497 (2012) for their alleged conduct in committing perjury before the grand jury and conspiring to
present false testimony to the grand jury. See Coggins,
988 F. Supp. 2d at 243. The Court permitted the
claims to move forward, however, to the extent they
alleged false arrest and false imprisonment based on
defendants’ falsification of reports and fabrication of
evidence in the course of the investigation. See id. at
Defendants argue that plaintiff cannot prevail on his
malicious prosecution claim because “there is no evidence in the record to support the contention that prosecution was continued by the Office of the District Attorney after Police Officer Buonora admitted to lying
to [the ADA].” (Defs.’ Reply at 2.) The ADA’s refusal to continue with the prosecution after learning of
the false statements, however, does not absolve Vara,
Buonora, or the County of liability for malicious prosecution, as this cause of action only requires a defendant to initiate the prosecution. See Blake, 487 F. Supp.
2d at 211 (first element only requires “initiation or
continuation” of the prosecution) (emphasis added).
demonstrate a final termination that is not inconsistent with innocence. See, e.g., Cantalino v. Danner, 754 N.E.2d 164, 168 (N.Y.
2001) (“[T]he question is whether, under the
circumstances of each case, the disposition
was inconsistent with the innocence of the accused.”). As a general matter, “[d]ismissals
that have been found to be inconsistent with
innocence . . . fall into three categories:
(1) misconduct on the part of the accused in
preventing the trial from going forward,
(2) charges dismissed or withdrawn pursuant
to a compromise with the accused, and
(3) charges dismissed or withdrawn out of
mercy requested or accepted by the accused.” Armatas v. Maroulleti, No. 08–CV–
310 (SJF)(RER), 2010 WL 4340437, at *13
(E.D.N.Y. Oct. 19, 2010) (citations omitted).
Here, there is no evidence that the the dismissal falls into any of these categories. Instead,
there is evidence that the case was dismissed
when the false statements serving as the basis
for the indictment came to light. Under these
circumstances, a factual issue exists on
whether the proceedings terminated in plaintiff’s favor.
Blake, 487 F. Supp. 2d at 211 (quoting
McClellan v. Smith, 439 F.3d 137, 145 (2d
Cir. 2006)). In this case, plaintiff has plainly
created a disputed issue of material fact on
this element because, as noted above, he has
produced evidence that the prosecution was
based on false statements made to the ADA
by Vara and Buonora. Moreover, defendants’ argument that probable cause existed
even without these statements based on the
gun Wilson found next to the fence is undermined by the fact that the charges were dismissed when the ADA learned of the false
statements. In short, as with the false arrest
claims, an issue of fact exists over whether
the DA’s Office had probable cause to initiate
the prosecution in the absence of the officers’
Finally, in New York, “a jury may, but is
not required to, infer the existence of actual
malice from the fact that there was no probable cause to initiate the proceeding.”
Cardoza v. City of N.Y., 139 A.D.3d 151, 164
(N.Y. App. Div. 2016) (quoting Martin v.
City of Albany, 364 N.E.2d 1304, 1307 (N.Y.
1977)). It follows that, because there is a factual dispute over whether the DA’s Office
had probable cause to initiate the prosecution
absent the false information, there is also a
factual dispute as to malice. Accordingly,
summary judgment on the malicious prosecution claims is denied.
[a]s to probable cause, the
Second Circuit has noted that
the presumption of probable
cause created from a grand
jury indictment “may be rebutted by evidence of various
wrongful acts on the part of
the police: If plaintiff is to
succeed in his malicious prosecution action after he has
been indicted, he must establish that the indictment was
produced by fraud, perjury,
the suppression of evidence or
other police conduct undertaken in bad faith.”
c. Abuse of Process
In order to establish liability for malicious abuse of process under Section 1983, a
plaintiff must establish the claim’s elements
under state law as well as the deprivation of a
constitutional right. See Cook, 41 F.3d at 79–
80. A plaintiff may assert a malicious abuse
of process claim where a defendant: “‘(1) employs regularly issued legal process to compel performance or forbearance of some act
(2) with intent to do harm without excuse [or]
justification, and (3) in order to obtain a collateral objective that is outside the legitimate
ends of the process.’” Savino, 331 F.3d at 76
(quoting Cook, 41 F.3d at 80); see also Sullivan v. LaPlante, 1:03 CV 359 (OGS), 2005
WL 1972555, at *3 (N.D.N.Y. Aug. 16,
2005) (“[A]buse of criminal process is actionable under § 1983 as a denial of procedural due process.” (citing Cook, 41 F.3d at
80)); Dickerson v. Monroe Cnty. Sheriff’s
Dep’t, 114 F. Supp. 2d 187, 192 (W.D.N.Y.
2000) (“‘In the criminal context, malicious
abuse of process is by definition a denial of
procedural due process.’” (quoting Cook, 41
F.3d at 80)).
77 (“In order to state a claim for abuse of process, a plaintiff must establish that the defendants had an improper purpose in instigating the action. Improper motive is not
enough.” (brackets and ellipsis omitted))).
As such, “it is not sufficient for a plaintiff to
allege that the defendants were seeking to retaliate against him by pursuing his arrest and
prosecution. Instead, he must claim that they
aimed to achieve a collateral purpose beyond
or in addition to his criminal prosecution.”
Savino, 331 F.3d at 77; see also Coleman v.
City of N.Y., 585 F. App’x 787, 788 (2d Cir.
2014) (“[R]etaliation for some offense will
not suffice as a collateral motive for the purposes of an abuse of process claim.”). In
Savino, for example, the Second Circuit held
that a plaintiff had not adduced evidence of a
collateral objective where his evidence only
showed that, “in instigating the criminal investigation that led to his indictment, defendants were retaliating against him for the embarrassment caused by the media reports of
his allegedly exorbitant overtime pay.”
Savino, 331 F.3d at 77.
Here, for purposes of this motion, the parties only contest the third element. Plaintiff
argues that Vara and Buonora had a “collateral motive” in that they desired revenge because he managed to escape from them on
foot, citing evidence that Buonora shouted
“Just shoot him in the back” as plaintiff fled
and Vara made a comment about plaintiff’s
escape when Vara assaulted him at the precinct. 11 (Pl.’s Br. at 16.) Defendants respond
that, because the precinct assault was not pled
in the original complaint, the Court should
disregard the evidence of it, and, in the absence of such evidence, the undisputed evidence shows that the officers took no offense
at plaintiff’s successful flight. (Defs.’ Reply
For similar reasons, in this case, plaintiff
has only alleged a “malicious motive,” not a
“collateral objective.” See Hoffman, 893 F.
Supp. 2d at 448. Specifically, plaintiff’s evidence, at best, shows that the officers “were
retaliating against him for the embarrassment” he caused them by outrunning them
earlier that day. Savino, 331 F.3d at 77. Under Savino, this plainly is insufficient to sustain a claim for abuse of process under New
York law or Section 1983. Therefore, defendants’ motion for summary judgment on
the abuse of process claims is granted.
The Second Circuit has distinguished between “a ‘malicious motive’ and an ‘improper purpose’; only the latter suffices to
meet the ‘collateral objective’ prong of the
abuse of process standard.” Hoffman v. Town
of Southampton, 893 F. Supp. 2d 438, 448
(E.D.N.Y. 2012) (citing Savino, 331 F.3d at
Plaintiff also argues that his race played a role in
defendants’ actions (Defs.’ Br. at 16–17), but, as discussed above, there is no evidence of racial discrimination on the part of the officers here.
plained, “[t]o prove such deliberate indifference, the plaintiff must show that the need for
more or better supervision to protect against
constitutional violations was obvious.” Vann
v. City of New York, 72 F.3d 1040, 1049 (2d
Cir. 1995). Furthermore, “[a]n obvious need
may be demonstrated through proof of repeated complaints of civil rights violations;
deliberate indifference may be inferred if the
complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.” Id.;
see also Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 238 (2d Cir. 2004).
3. Municipal Liability
Plaintiff alleges that the County is liable
under Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 691 (1978), for the constitutional violations discussed above. Defendants move for
summary judgment on plaintiff’s Monell
claim, arguing that he has not satisfied the requirements for municipal liability to apply.
The Supreme Court has explained that a
municipal entity may be held liable under
Section 1983 where a plaintiff demonstrates
that the constitutional violation complained
of was caused by a municipal “policy or custom.” Monell, 436 U.S. at 694. “The policy
or custom need not be memorialized in a specific rule or regulation.” Kern v. City of
Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d
864, 870 (2d Cir. 1992)). Instead, constitutional violations by government officials that
are “persistent and widespread” can be “so
permanent and well settled as to constitute a
custom or usage with the force of law, and
thereby generate municipal liability.” Sorlucco, 971 F.2d at 870–71 (citing Monell, 436
U.S. at 691). However, a municipal entity
may be held liable only where the entity itself
commits a wrong; “a municipality cannot be
held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691.
Plaintiff argues that his evidence establishes a policy or custom of indifference toward suspects’ constitutional rights based on
the County’s failure to supervise its officers.
Specifically, he highlights numerous civilian
complaints in the record filed against Vara,
several of which alleged that Vara stopped
the driver without probable cause. (See Pl.’s
56.1 ¶¶ 64–82.) In one particular instance,
Vara allegedly pulled a driver over and
claimed he smelled alcohol on her breath,
but, after the field sobriety test proved she
was not intoxicated, he issued her a speeding
ticket. (Id. ¶ 78.) Furthermore, plaintiff has
submitted evidence that only one of these
complaints resulted in an Internal Affairs investigation. (See id. ¶ 65.) In the other cases,
a commanding officer merely reviewed each
complaint and found that they warranted no
further action. (See, e.g., id. ¶¶ 66–68, 72–
74, 76–77, 80–81.)
A municipality’s failure to supervise its
officers “can rise to the level of an actionable
policy or custom where it amounts to ‘deliberate indifference’ to the constitutional rights
of its citizens.” Hall v. Marshall, 479 F.
Supp. 2d 304, 315–16 (E.D.N.Y. 2007) (citing City of Canton v. Harris, 489 U.S. 378,
388 (1989) and Thomas v. Roach, 165 F.3d
137, 145 (2d Cir. 1999) (“A municipality
may be liable under § 1983 . . . where the
City’s failure to supervise or discipline its officers amounts to a policy of deliberate indifference.”)). As the Second Circuit has ex-
The Court concludes that this evidence is
sufficient for plaintiff’s Monell claim to survive summary judgment. Courts in the Second Circuit routinely hold that multiple civilian complaints against an officer regarding
conduct similar to that exhibited toward a
plaintiff is enough for a jury to find the requisite degree of indifference to support failure to supervise liability under Monell. See,
e.g., Fiacco v. City of Rensselaer, N.Y., 783
F.2d 319, 331 (2d Cir. 1986) (holding that evidence supported jury verdict on Monell
claim where it “showed that within the 22month period preceding [plaintiff’s] arrest,
five complaints were made that City police
officers had used excessive force, either in
making arrests or in transporting or detaining
those whom they had already arrested; four
of the complaints came within the ten months
preceding [plaintiff’s] arrest”); Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 479
(E.D.N.Y. 2002) (“[D]rawing all reasonable
inferences in favor of Davis, a jury could rationally conclude that the six remaining letters of complaints and criticisms demonstrate
an obvious need for more or better supervision to protect against constitutional violations.”). This is especially true where the
County takes inadequate action to investigate
the complaints. See Fiacco, 783 F.2d at 331
(evidence sufficient to support Monell liability where “[a]ny investigation of these
charges was done by [the police chief] himself, for he never assigned anyone else to
make an investigation”); Davis, 224 F. Supp.
2d at 479 (finding evidence sufficient on Monell claim where “the Village failed to conduct a meaningful investigation into any of
the claims regarding Curtis’ conduct”).
fairs, and no disciplinary action is taken in response to most complaints. (See id. ¶¶ 66-–
67, 68, 72, 77, 79–80.) Indeed, plaintiff’s evidence indicates that Internal Affairs opened
its investigation into the false statements at
issue in this case only in response to prompting by the DA’s Office. (Id. ¶ 91.) Furthermore, plaintiff has also produced evidence
that NCPD does not adequately discipline its
officers for the type of conduct at issue here,
based on the lack of repercussions from the
complaints that commanding officers
deemed “undetermined” and the relatively lenient penalties Vara and Buonora suffered for
their false statements in this case. (See id.
¶¶ 96–97 (Vara only penalized with reduction of ten vacation days); id. ¶¶ 109, 111
(Buonora suspended for one month without
pay, lost 100 vacation days, and put on desk
duty). Given this evidence, the Court concludes that plaintiff’s municipal liability
claim survives summary judgment. See Fiacco, 783 F.2d at 331; Davis, 224 F. Supp. 2d
To sustain a claim under Section 1985 for
conspiracy to deprive an individual of his
federal civil rights, a plaintiff must show, inter alia, that the conspiracy was “motivated
by ‘some racial or perhaps otherwise classbased, invidious discriminatory animus behind the conspirators’ action.’” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
1085, 1088 (2d Cir. 1993) (quoting United
Bhd. of Carpenters, Local 610 v. Scott, 463
U.S. 825, 829 (1983)). Here, as discussed
above, plaintiff’s evidence does not provide a
rational basis for a jury to find the existence
of a racial motive on the part of Vara and
Buonora, and, therefore, defendants are entitled to summary judgment on this claim as
Here, plaintiff’s evidence creates a disputed factual issue over the County’s failure
to supervise officer Vara and to investigate
complaints against its police officers. First,
like in Fiacco and Davis, plaintiff has proffered evidence of multiple complaints against
Vara. Specifically, civilians have complained on no less than five occasions that
Vara was overly aggressive with them,
wrongfully stopped them, or issued unfounded traffic tickets. (See Pl.’s 56.1 ¶¶ 65–
67, 70–71, 76–78.) In addition, plaintiff’s evidence suggests that NCPD’s procedures do
not allow for adequate investigations, as most
complaints are simply reviewed at the command level rather than through Internal Af18
5. Remaining State Law Claims
Div. 2002) (citing Clark v. City of Ithaca, 652
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 seven-year statute of limitations in
the N.Y. C.P.L.R. § 213-b applies. Id. (citing
Tumminello v. City of New York, 622
N.Y.S.2d 714, 715 (N.Y. App. Div. 1995)).
Defendants also move for summary judgment on some of plaintiff’s other state law
claims. Specifically, they argue that all the
state law claims are procedurally barred by
New York General Municipal Law (“GML”)
§§ 50-e and 50-i. In addition, they contest
plaintiff’s negligence and IIED claims on
substantive grounds. As set forth below, the
Court concludes that GML §§ 50-e and 50-i
do not bar the state claims and that summary
judgment is only warranted on the negligence
claim, not the IIED claim.
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) (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.”). 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).
a. State Procedural Requirements
Defendants argue that GML §§ 50-e and
50-i bar plaintiff’s state law claims. 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 GML §§ 50-e and 50-i. Section 50-i(1)(c) 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. See 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). Section 50-i(2) provides that “[t]his
section shall be applicable notwithstanding
any inconsistent provisions of 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.
Defendants argue that the action must be
dismissed because plaintiff failed to file a notice of claim as required under GML § 50-e
and to sue within one year and ninety days
from the claims’ accrual. As this Court held
in denying Buornora’s motion to dismiss,
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.
that it is not cognizable under New York law.
See Bernard, 25 F.3d at 102 (holding that district court properly denied negligence claim,
which sought “damages for the breach of the
alleged duty to protect [the plaintiff] against
the unreasonable risk of being summarily arrested, detained, and denied his freedom of
liberty when the agents collectively and
wrongfully failed to accurately and properly
verify and confirm plaintiff's identity”
(brackets and ellipsis omitted)). Accordingly, defendants are entitled to summary
judgment on this claim.
c. Intentional Infliction of Emotional
Coggins, 988 F. Supp. 2d at 251. As discussed at length above, moreover, plaintiff
has produced evidence to support these allegations. Correspondingly, a factual issue—
namely whether the officers were acting
within the scope of their employment—precludes summary judgment on the grounds of
plaintiff’s failure to comply with GML
§§ 50-e and 50-i.
In order to assert a valid claim for IIED
under New York law, a plaintiff must demonstrate “(1) extreme and outrageous conduct,
(2) intent to cause severe emotional distress,
(3) a causal connection between the conduct
and the injury, and (4) severe emotional distress.” Bender v. City of New York, 78 F.3d
787, 790 (2d Cir. 1996) (citing Howell v. N.Y.
Post Co., 612 N.E.2d 699, 702 (N.Y. 1993)).
Further, New York sets a high threshold for
conduct that is “extreme and outrageous”
enough to constitute IIED. See id. The conduct alleged must be “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized society.’” Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985)
(quoting Fischer v. Maloney, N.E.2d 1215,
1217 (N.Y. 1978)). In Mejia v. City of N.Y.,
119 F. Supp. 2d 232, 285 (E.D.N.Y. 2000),
for example, the court denied summary judgment where the plaintiff’s evidence indicated
that an officer “falsely arrested, used excessive force against, and maliciously prosecuted” the plaintiffs. Specifically, the officer
in that case “conspired to manufacture the evidence on which . . . a conviction would be
based,” used ethnic slurs against them, and
ordered one of them strip searched. Id. at
Plaintiff brings various claims sounding
in negligence based on his arrest and prosecution. (See TAC, ECF No. 178, at ¶¶ 179–
83.) The Second Circuit has held, however,
that, “[u]nder New York law, a plaintiff may
not recover under general negligence principles for a claim that law enforcement officers
failed to exercise the appropriate degree of
care in effecting an arrest or initiating a prosecution.” Bernard v. United States, 25 F.3d
98, 102 (2d Cir. 1994) (citing Boose v. City
of Rochester, 421 N.Y.S.2d 740, 743 (N.Y.
App. Div. 1979)). Indeed, plaintiff does not
even contest defendant’s argument that the
negligence claim is barred for this reason.
(See generally Pl.’s Br. (no argument on the
negligence claim).) As such, because plaintiff’s negligence claim is based on the officer’s conduct “in effecting an arrest or initiating a prosecution,” the Court concludes
285–86; see also Gonzalez v. Bratton, 147 F.
Supp. 2d 180, 194 (S.D.N.Y. 2001) (collecting cases where police officers’ conduct was
deemed sufficient to support an IIED claim).
For the reasons set forth above, the Court
denies plaintiff’s motion to amend and grants
in part and denies in part defendant’s motion
for summary judgment.
Here, for purposes of this motion, defendants only contest the first element, arguing
that the officers’ conduct was not extreme or
outrageous enough to sustain a claim for
IIED. If all of plaintiff’s evidence is credited,
the Court concludes that the evidence is sufficient for a rational jury to conclude that the
officers “falsely arrested, used excessive
force against, and maliciously prosecuted”
plaintiff in a manner so outrageous that it
could support IIED liability. Mejia, 119 F.
Supp. 2d at 285. In particular, plaintiff has
produced evidence that Vara and Buonora
lied repeatedly in the course of the investigation and prosecution of plaintiff, that Vara
grabbed plaintiff roughly during the traffic
stop and threatened him physically, and that
Buonora shouted to “Just shoot him in the
back” as plaintiff fled. Under these circumstances, like in Mejia, plaintiff has adduced
sufficient evidence of outrageous conduct to
support his IIED claim. As such, defendants’
motion for summary judgment is denied on
JOSEPH F. BIANCO
United States District Judge
Dated: May 26, 2017
Central Islip, NY
Plaintiff is represented by Frederick K.
Brewington and Cathryn A. Harris of the
Law Offices of Frederick K. Brewington, 556
Peninsula Boulevard, Hempstead, NY 11550.
Defendants are represented by Andrew K.
Preston of Bee Ready Fishbein Hatter & Donovan LLP, 170 Old Country Road, Mineola,
NY 11501, and Diane C. Petillo from the Office of the Nassau County Attorney, One
West Street, Mineola, NY 11501.
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