Anilao et al v. Spota et al
Filing
146
ORDER granting 115 Motion for Summary Judgment; granting in part and denying in part 116 Motion for Summary Judgment; granting 117 Motion for Summary Judgment. For the reasons set forth herein, the Court grants the County defendants' m otion for summary judgment. With respect to the Sentosa defendants' summary judgment motion, to the extent that plaintiffs have asserted a Section 1983 conspiracy claim against the Sentosa defendants for conspiring to fabricate evidence in the investigative stage with the County defendants, the motion for summary judgment is granted. However, the Court denies the Sentosa defendants' motion for summary judgment on the malicious prosecution and false arrest claims under federal and state law. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/28/2018. (Clarke, Molly)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-00032 (JFB) (AKT)
_____________________
JULIET ANILAO, ET AL.,
Plaintiffs,
VERSUS
THOMAS J. SPOTA, III, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
November 28, 2018
___________________
JOSEPH F. BIANCO, District Judge:
Juliet Anilao, Harriet Avila, Mark Dela
Cruz, Claudine Gamaio, Elmer Jacinto,
Jennifer Lampa, Rizza Maulion, James
Millena, Theresa Ramos, Ranier Sichon (the
“nurse plaintiffs”), and Felix Q. Vinluan
(“Vinluan”)
(collectively
“plaintiffs”)
brought this action against Thomas J. Spota,
III, individually and as District Attorney of
Suffolk County (“District Attorney Spota” or
“Spota”); the Office of the District Attorney
of Suffolk County (“the DA’s Office”),
Leonard Lato, individually and as an
Assistant District Attorney of Suffolk County
(“Lato”), and the County of Suffolk
(collectively the “County defendants”);
Sentosa Care, LLC (“Sentosa”), Avalon
Gardens Rehabilitation and Health Care
Center (“Avalon”), Prompt Nursing
Employment Agency, LLC (“Prompt”),
Francris Luyun (“Luyun”), Bent Philipson
(“Philipson”),
Berish
Rubinstein
(“Rubinstein”),
Susan
O’Connor
(“O’Connor”), and Nancy Fitzgerald
(“Fitzgerald”) (collectively the “Sentosa
defendants”),1 alleging that the County
defendants and the Sentosa defendants
violated plaintiffs’ constitutional rights
1
and Fitzgerald.
Thus, for purposes of this
Memorandum and Order, the “Sentosa defendants”
does not include these three defendants who have been
dismissed from the case.
Plaintiffs request that Rubinstein be dismissed from
this action. (See Pls.’ Aff. Opp’n Mot. Summ. J., ECF
No. 121 ¶ 2.) Accordingly, the Court dismisses
Rubinstein from the action. Moreover, as noted infra,
the Court previously dismissed defendants O’Connor
1
pursuant to 42 U.S.C. § 1983 (“Section
1983”).2
to Nancy Fitzgerald, Director of Nursing at
Avalon. At the time of their resignation, only
one of the plaintiff nurses, Theresa Ramos,
was completing a shift at the facility. Ramos
finished her shift. None of the nurse
plaintiffs returned to work at Avalon after
tendering their resignation.
As set forth in more detail below, the
claims in this case stem from what was
originally an employment dispute between
the nurse plaintiffs and the Sentosa
defendants. Based upon the undisputed facts,
the record demonstrates that Sentosa
recruited the nurse plaintiffs to work in the
United States, and they were placed at the
Avalon facility. Many of the nurse plaintiffs
were specifically assigned to work in
Avalon’s pediatric ventilator unit, a unit
whose patients required intensive medical
care. The nurse plaintiffs had a number of
complaints
about
their
employment
conditions. They voiced these complaints
several times, beginning at the latest on
February 16, 2006. By letter dated March 3,
2006 and addressed to Bent Philipson, an
owner of Avalon and Sentosa who was also
involved in the management of the facility
during the relevant time period, and Susan
O’Connor, the Administrator of Avalon, the
nurse plaintiffs outlined their complaints.
They further stated that, if they did not “have
positive results” by March 6, 2006, they
would not work until they were “treated with
fairness and respect.” The nurse plaintiffs
also consulted Felix Vinluan, an immigration
and employment attorney, about their
complaints. Vinluan advised the nurse
plaintiffs that, in his opinion, Sentosa
breached its employment contract with them
and that the nurse plaintiffs were legally free
to resign.
There is a factual dispute as to how
difficult (if at all) it was to secure coverage
for the post-resignation shifts the nurse
plaintiffs had been assigned to before they
resigned, as well as whether any of the nurse
plaintiffs’ patients were ever in danger
because of the need to secure coverage.
However, it is undisputed that the Sentosa
defendants did ultimately secure coverage for
these shifts, and no patient was harmed as a
result of the resignation.
In response to the resignation, O’Connor
filed a complaint with the New York
Department of Education and a police report
with the Suffolk County Police Department
(“SCPD”). The police report states that
Avalon “wishe[d] to document that 11
workers . . . walked out of work and never
returned without notice.” The police did not
take any action against plaintiffs in response
to O’Connor’s police report, and the
Department of Education declined to revoke
the nurses’ licenses.
Sentosa’s counsel, Howard Fensterman,
secured a personal meeting with the District
Attorney of Suffolk County, Thomas Spota.
According to Leonard Lato, an assistant
district attorney whom Spota later assigned to
work on the case, Spota had given
Fensterman “an audience” because they
On the afternoon of April 7, 2006, the
nurse plaintiffs submitted resignation letters
One of plaintiffs’ claims is that Lato violated their
due process rights by allegedly informing them that
they were not targets of the Grand Jury (when they in
fact were targets), and that this resulted in the
plaintiffs’ decision not to testify before the Grand Jury.
Defendants make a number of arguments as to why
this claim should fail. However, by its Memorandum
2
and Order on the motion to dismiss, the Court already
ruled that Lato and Spota were entitled to absolute
immunity for the conduct underlying this claim, which
is related to the Grand Jury. (See Memorandum and
Order, ECF No. 31 at 22-23.) Thus, this Court has
already dismissed this particular claim.
2
knew each other. At the meeting, the Sentosa
defendants presented information concerning
the resignation to Spota and some of his staff,
including that the nurse plaintiffs had
resigned without notice and that there had
been concern on the part of the Sentosa
defendants that something horrific could
have happened to the patients because of the
resignation. At some point, Spota became
aware of O’Connor’s contact with the SCPD.
Spota agreed to investigate the case, and
subsequently assigned it to Lato.
“threatened with prosecution for crimes for
which they cannot constitutionally be tried.”
Matter of Vinluan v. Doyle, 873 N.Y.S.2d 72,
83 (2d Dep’t 2009).
Specifically, the
Appellate Division found that the prosecution
sought to punish the nurse plaintiffs for
resigning from their employment at will, and
to punish Vinluan for providing legal advice
to the nurses in connection with their
resignation. As such, the court found that the
prosecution violated plaintiffs’ First and
Thirteenth Amendment rights.
In the course of his investigation, Lato
visited the Avalon facility twice, and he and
investigators from the DA’s Office
interviewed several of the plaintiffs.
Ultimately, Lato decided to present the case
to the Grand Jury. According to plaintiffs, in
the course of the Grand Jury presentation,
several of the Sentosa defendants made false
statements.
Moreover, plaintiffs assert,
among other things, that the Grand Jury was
misled to believe that the nurse plaintiffs may
have resigned during their shifts (as opposed
to at the end of their shifts). On March 6,
2007, the Grand Jury returned an indictment
against plaintiffs, charging them with
endangering the welfare of a child,
endangering the welfare of a physically
disabled person, conspiring to do the same,
and solicitation.
After the prosecution of plaintiffs was
accordingly prohibited, on January 6, 2010,
plaintiffs commenced this action in federal
court, alleging that defendants violated their
constitutional rights in a variety of respects
and seeking to vindicate those rights under
Section 1983 and state law.
On March 23, 2010, the County
defendants and the Sentosa defendants
moved to dismiss the Amended Complaint.
(ECF Nos. 14-15, respectively.) On March
31, 2011, the Court granted in part and denied
in part the motions. (ECF No. 31.)3 As to the
County defendants, the Court concluded that
(1) the individual County defendants were
entitled to absolute immunity for conduct in
their role as advocates in connection with the
presentation of the case to the Grand Jury; (2)
the individual County defendants were not
entitled to absolute immunity for alleged
misconduct during the investigation of
plaintiffs4; (3) plaintiffs sufficiently pled
Section 1983 claims against the individual
County defendants for alleged Due Process
The prosecution of plaintiffs was halted,
however, when the New York State
Appellate Division granted plaintiffs’ Article
78 petition for a writ of prohibition based
upon the fact that plaintiffs were being
3
The Court also dismissed all claims brought against
defendants Spota and Lato in their official capacities.
(See ECF No. 31 at 2 n.4.)
undertaken in preparation for a Grand Jury
presentation or in the prosecutor’s role as an advocate.
(ECF No. 31 at 4.) The Court also concluded that, at
that time, it was unable to determine whether the
individual County defendants are entitled to qualified
immunity for any actions they took in an investigative
capacity.
4
The Court reached this conclusion because a
prosecutor is not entitled to absolute immunity for any
alleged violations of due process (including any
alleged fabrication of evidence) arising from conduct
he performs in an investigative capacity, not
3
violations in the investigative stage; and
(4) plaintiffs sufficiently pled a claim for
municipal liability against the County of
Suffolk. As to defendants Philipson, Luyun,
Rubinstein, Sentosa, Prompt, and Avalon, the
Court concluded that (1) plaintiffs
sufficiently alleged that they were acting
under
color
of
state
law;
and
(2) plaintiffs sufficiently pled claims for
malicious prosecution and false arrest under
both Section 1983 and state law, as well as a
Section 1983 conspiracy claim.5 The Court
dismissed the claims against defendants
O’Connor and Fitzgerald.
are entitled to summary judgment for their
other conduct. The Court reaches this
conclusion because there is simply no
evidence in the record that they engaged in
any constitutional wrongdoing in the
investigative phase of the case. In particular,
plaintiffs’ only allegation that pertains to
conduct outside the scope of the Grand Jury
(and the charging decision itself) is that Lato
fabricated evidence.
However, this
allegation is not supported by any evidence in
the record (including any reasonable
inferences from the record), and thus it
constitutes mere speculation.
Because
speculation cannot create an issue of fact,
Spota and Lato are entitled to summary
judgment for their conduct in the
investigative phase and, thus, the Court
grants the County defendants’ motion for
summary judgment as to them.
The County defendants, the Sentosa
defendants, and defendant Spota now move
for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. (ECF
Nos. 115-117.) For the reasons set forth
below, the Court grants the County
defendants’ motion for summary judgment in
its entirety. With respect to the Sentosa
defendants’ summary judgment motion, to
the extent that plaintiffs have asserted a
Section 1983 conspiracy claim against the
Sentosa defendants for conspiring to
fabricate evidence in the investigative stage
with the County defendants, the motion for
summary judgment is granted as to that
claim. However, the Court denies the
Sentosa defendants’ motion for summary
judgment on the malicious prosecution and
false arrest claims under federal and state
law.
The Sentosa defendants who testified
before the Grand Jury are also entitled to
absolute immunity insofar as that testimony
is concerned. However, as private actors,
they do not have the benefit of absolute or
qualified immunity with respect to their other
conduct in connection with the alleged
malicious prosecution and false arrest. They
have moved for summary judgment on a
number of other grounds. However,
construing the facts (and all reasonable
inferences from those facts) in the light most
favorable to plaintiffs, the Court concludes
that there are genuine disputes as to material
facts such that summary judgment is not
warranted as to the malicious prosecution and
false arrest claims against the Sentosa
defendants.
The County defendants are granted
summary judgment because, as noted above,
Spota and Lato are absolutely immune for
conduct relating to the Grand Jury
proceeding (including the initiation of the
charges), and the Court concludes that they
As a threshold matter, the Court
concludes that plaintiffs have created a
5
The Court reached this conclusion, despite the
Sentosa defendants’ arguments to the contrary,
because the Amended Complaint sufficiently alleged
that, as private actors, they engaged in a conspiracy
with the state actors to jointly deprive plaintiffs of their
constitutional rights. (ECF No. 31 at 5.)
4
material issue of disputed fact as to whether
the Sentosa defendants were willful
participants in joint activity with the Suffolk
County District Attorney’s Office, such that
they may be considered state actors for
purposes of Section 1983. Construing the
evidence in the light most favorable to
plaintiffs, a rational jury could find that the
Sentosa defendants exerted influence over
the DA’s Office through Spota, that the
Sentosa defendants encouraged the bringing
of charges against the plaintiffs, and that the
judgment of the Sentosa defendants as to the
evidence and as to whether charges should be
brought was substituted for the judgment of
the DA’s Office.
Third, the Court concludes that there are
material issues of fact that preclude summary
judgment as to whether there was probable
cause to prosecute plaintiffs. The Court
reaches this conclusion first by examining
whether there is any material issue of
disputed fact as to whether the Grand Jury
indictment creates a presumption of probable
cause. Having reviewed the Grand Jury
transcript, the Court concludes that plaintiffs
have raised a material issue of disputed fact
as to whether there was false testimony in the
Grand Jury, whether critical evidence was
suppressed in the Grand Jury proceeding, and
whether there were other irregularities such
that the indictment was the result of bad faith.
Upon such a determination, there would be
no presumption that there was probable cause
to prosecute plaintiffs, and the jury would
need to resolve whether probable cause
existed independently of the indictment. The
Court also concludes that there are material
issues of disputed fact on this point because,
in light of the evidence in the record that
plaintiffs gave notice of their intention to
resign, that the Sentosa defendants were able
to secure coverage for their shifts, and that
the nurse plaintiffs did not “walk off” during
a shift, a reasonable jury could determine that
there was no probable cause to believe
plaintiffs were guilty of endangering the
welfare of a child, endangering the welfare of
a physically disabled person, conspiring to do
the same, or solicitation. Moreover, there are
issues of disputed fact that preclude summary
judgment on the issue of whether the Sentosa
defendants were motivated by malice.
With respect to the malicious
prosecution claim, there are disputed issues
of fact that preclude summary judgment on
each of the elements. First, it is undisputed
for purposes of this motion that the
prosecution was terminated in plaintiffs’
favor. Second, with respect to the “initiation”
element, there is evidence that the Sentosa
defendants did more than simply supply
information and cooperate with the
investigation of the DA’s Office. Instead,
construing the evidence in the light most
favorable to plaintiffs (including drawing all
reasonable inferences in their favor), the
Court concludes that a reasonable jury could
find that the Sentosa defendants, through
their meetings with Spota and Lato,
instigated and actively urged the alleged
unlawful prosecution of the plaintiffs. The
Court likewise concludes that the evidence
could lead a reasonable jury to find that
Lato’s investigation and decision to bring the
case before the Grand Jury was influenced by
the Sentosa defendants’ conduct, and that the
resulting Grand Jury indictment did not sever
any chain of causation between the conduct
by the Sentosa defendants and plaintiffs’
prosecution because it was a continuation of
the effects of their conduct.
In short, given these factual disputes, the
Court denies the Sentosa defendants’ motion
for summary judgment as to the malicious
prosecution claim against them under federal
and state law.
Finally, the Court concludes that these
same factual disputes also preclude summary
judgment on the false arrest claim against the
5
Sentosa defendants. Construing the evidence
in the light most favorable to plaintiffs, a
rational jury could conclude that the Sentosa
defendants
affirmatively
instigated,
encouraged, and caused plaintiffs’ arrest.
Accordingly, the Court also denies the
Sentosa defendants’ motion for summary
judgment as to the false arrest claim against
them under federal and state law. Thus, the
case will proceed to trial against the Sentosa
defendants as to the malicious prosecution
and false arrest claims under federal and state
law.
the facts are uncontroverted. Upon
consideration of the motion for summary
judgment, the Court shall construe the facts
in the light most favorable to plaintiffs as the
nonmoving party, and will resolve all factual
ambiguities in their favor. See Capobianco
v. New York, 422 F.3d 47, 50 n.1 (2d Cir.
2001).
1. The Parties and the Avalon Facility
Defendant Avalon operates a private
nursing home located in Smithtown, New
York, which has multiple nursing units,
including a long-term pediatric care center.
(Sentosa’s 56.1 ¶ 1.) Avalon opened its
pediatric unit in or around February 2004,
and thereafter opened a pediatric ventilator
unit to serve disabled children who required
ventilator care. (Sentosa’s 56.1 ¶ 2; Dep. Tr.
Susan O’Connor (“O’Connor Dep.”), ECF
Nos. 115-9, 116-4, 123-6.)8 Defendant
I. BACKGROUND
A. Factual Background6
The following facts are taken from the
parties’ depositions, affidavits, and exhibits,
and the parties’ respective Rule 56.1
statements of fact.7 Unless otherwise noted,
Statement (“Pls.’ Resp. Spota’s 56.1”), ECF No. 1264; Pls.’ Resp. Sentosa’s 56.1 Statement (“Pls.’ Resp.
Sentosa’s 56.1”), ECF No. 126-3; and Sentosa’s Resp.
Pls.’ 56.1 Statement (“Sentosa’s Resp. Pls.’ 56.1”),
ECF No. 133-1.
6
The Sentosa defendants devote a significant portion
of their 56.1 statement and briefs to the argument that
plaintiffs do not have direct knowledge of a conspiracy
or joint action between the DA’s Office and the
Sentosa defendants. (See, e.g., Sentosa’s 56.1 ¶¶ 6276; Sentosa’s Repl. Br. 1.) The Court does not repeat
that portion of the 56.1 statement here because it is not
necessary that plaintiffs possess direct knowledge of a
conspiracy or joint action for a Section 1983 claim to
proceed against private defendants, as discussed infra.
Moreover, plaintiffs set forth evidence in their 56.1
statement regarding the details of the background of
their employment issues with the Sentosa defendants,
as well as the circumstances surrounding the 2006
suspension of Sentosa’s license to recruit in the
Philippines and its subsequent reinstatement.
However, the Court has not summarized those facts
because they are not material to the Court’s disposition
of the summary judgment motion that is the subject of
this Memorandum and Order.
In addition to O’Connor’s deposition transcript, the
following deposition transcripts are referenced herein:
Dep. Tr. Philipson (“Philipson Dep.”), ECF Nos. 11521, 116-5, 116-6, 123-15; Felix Vinluan (“Vinluan
Dep.”), ECF Nos. 115-14, 116-7, 123-2; Dep. Tr.
Thomas J. Spota (“Spota Dep.”), ECF Nos. 116-10,
124-6; Dep. Tr. Elmer Jacinto (“Jacinto Dep.”), ECF
Nos. 115-7, 116-17, 121-9; Dep. Tr. Harriet Avila
(“Avila Dep.”), ECF Nos. 115-16, 116-18, 121-6;
Dep. Tr. Rizza Maulion (“Maulion Dep.”), ECF Nos.
115-18, 116-19, 122-1; Dep. Tr. Theresa Ramos
(“Ramos Dep.”), ECF Nos. 115-6, 116-20, 122-3;
Dep. Tr. James Millena (“Millena Dep.”), ECF Nos.
115-19, 116-21, 122-2; Dep. Tr. Mark Dela Cruz
(“Dela Cruz Dep.”), ECF Nos. 115-8, 116-22, 121-7;
Dep. Tr. Claudine Gamaio (“Gamaio Dep.”), ECF
Nos. 115-20, 116-23, 121-8; Dep. Tr. Juliet Anilao
(“Anilao Dep.”), ECF Nos. 115-17, 116-24, 121-5;
Dep. Tr. Jennifer Lampa (“Lampa Dep.”), ECF Nos.
115-15, 116-25, 121-10; Dep. Tr. Ranier Sichon
(“Sichon Dep.”), ECF Nos. 116-26, 122-4; Dep. Tr.
Howard Fensterman (“Fensterman Dep.”), ECF Nos.
116-11, 124-1; Dep. Tr. Nancy Fitzgerald (“Fitzgerald
8
Those documents are: Cnty. Defs.’ Rule 56.1
Statement (“Cnty.’s 56.1”), ECF No. 115-3; Sentosa
Defs.’ Rule 56.1 Statement (“Sentosa’s 56.1”), ECF
No. 116-1; defendant Spota’s Rule 56.1 Statement
(“Spota’s 56.1”), ECF No. 117-2; Pls.’ Rule 56.1
Statement (“Pls.’ 56.1”), ECF No. 126-1; Pls.’ Resp.
Cnty. Defs.’ Rule 56.1 Statement (“Pls.’ Resp. Cnty.’s
56.1”), ECF No. 126-2; Pls.’ Resp. Spota’s Rule 56.1
7
6
Sentosa is a company formed to provide
shared services among various nursing
homes located in the New York metropolitan
area, including shared consultants and
financial services. (Sentosa’s 56.1 ¶ 3;
Philipson Dep. 12.) Defendant Philipson has
an ownership interest in both Avalon and
Sentosa. (Sentosa’s 56.1 ¶ 4; Philipson Dep.
9-12.) Philipson was also the chief operating
officer of Sentosa and Avalon, and was
involved in the management of Avalon
during 2005 and 2006, the relevant time
period for the instant case. (Sentosa’s 56.1 ¶
5; Philipson Dep. 16.) Defendant Prompt is
an agency that provided payroll services to
Avalon for nurses it employed, as well as
other services to nurses recruited from other
countries who worked for Avalon.
(Sentosa’s 56.1 ¶ 6; Philipson Dep. 63-65.)
Defendant Luyun was involved in the
recruitment of nurses in the Philippines for
employment in nursing homes in the United
States, including Avalon. (Sentosa’s 56.1 ¶
7; O’Connor Dep. 28-29.)
Defendant
O’Connor was the Administrator of Avalon,
and oversaw the entire operation of the
facility during the relevant time period.
(Sentosa’s 56.1 ¶ 8; O’Connor Dep. 17.)
Philippines to work in the United States by
Sentosa. (Sentosa’s 56.1 ¶ 10; O’Connor
Dep. 20-21; Pls.’ 56.1 ¶¶ 1, 3-4.)
2. The Nurse Plaintiffs’ Employment
and Resignation
As noted, Sentosa recruited the nurse
plaintiffs from the Philippines to work in the
United States. In the course of recruiting
them, Sentosa made various representations
to the nurse plaintiffs as to the conditions of
employment in the United States. (See Pls.’
56.1 ¶¶ 4-16.)9 Plaintiffs allege that many of
those conditions were not fulfilled during
their subsequent employment, and they
voiced their complaints about this failure on
several occasions. (Id. ¶¶ 21-22; 28-33.)
This included submitting a letter dated
February 16, 2006 to Philipson outlining their
complaints (Ex. X); a letter dated March 3,
2006 to Philipson and O’Connor that stated
that, if they did not “have positive results by
Monday, March 6, 2006,” the nurse plaintiffs
would “have to opt not to work until [they
were] treated with fairness and respect” (Pls.’
56.1 ¶ 33; Ex. Y; Ex. Z.)
The nurses also voiced their concerns to
the Philippine Consulate in New York, which
recommended that the nurse plaintiffs consult
with Vinluan, an attorney with experience in
corporate and immigration issues. (Id. ¶¶ 3843.)
The nurse plaintiffs subsequently
consulted Vinluan, and he advised them that,
in his opinion, their contract had been
Plaintiff Vinluan acted as an attorney
and provided legal advice to the nurse
plaintiffs in March and April 2006.
(Sentosa’s 56.1 ¶ 11; Dep. Tr. Vinluan Dep.
24, 27, 43-44, 49-52.) The nurse plaintiffs
are nurses who were recruited from the
Dep.”), ECF No. 122-11; Dep. Tr. Leonard Lato
(“Lato Dep.”), ECF Nos. 116-12, 116-13, 116-14,
124-8.
plaintiffs’ contentions regarding the representations
made by this brochure. (See id. ¶¶ 5-9.)
In addition, plaintiffs note that the brochure provided
to the nurse plaintiffs stated that Sentosa was a “direct
hire” agency. (Pls.’ 56.1 ¶ 6.) Plaintiffs state that this
meant that the nurses would be working directly for
Sentosa and not for an agency (id.), but the Sentosa
defendants dispute the legal impact of this statement
(Sentosa’s Resp. Pls.’ 56.1 ¶ 6). These factual disputes
are not material to the Court’s analysis for purposes of
the summary judgment motion.
Unless otherwise noted, an exhibit is attached to the
56.1 statement cited before it.
9
Plaintiffs characterize these representations as
commitments, while the Sentosa defendants dispute
that the brochure submitted as evidence contained any
commitments. (Sentosa’s Resp. Pls.’ 56.1 ¶ 5.) The
Sentosa defendants take issue with several of
7
breached. (Id.) Vinluan did not advise them
to resign, but he did advise that, if they
elected to resign, they would not be liable for
the penalties set forth in their contract. (Id.
¶¶ 43-44; Ex. BB 28-29, 39-40; O’Connor
Dep. 74-75; Ex. H 48-49.) Vinluan further
advised that, although the nurse plaintiffs
were legally free to resign, they should not
immediately do so because he intended to file
legal proceedings on their behalf that he
hoped might lead to a less drastic resolution
of the issues. (Pls.’ 56.1 ¶ 45; Ex. BB 46-47.)
In addition, Vinluan specifically informed
the nurse plaintiffs that, if they chose to
resign, they must complete their shifts before
leaving their employment. (Pls.’ 56.1 ¶ 46;
Pls.’ Ex. BB 45, 183-84, 202, 235.)10
ventilator unit. According to the County
defendants, all nurse plaintiffs worked in the
pediatric ventilator unit. (Cnty.’s 56.1 ¶ 2.)
According to plaintiffs, plaintiffs Maulion,
Ramos, Anilao, Sichon, Gamaio, and Lampa
(as well as two non-plaintiff nurses) worked
with ventilator patients, while plaintiffs
Avila, Jacinto, and Millena (as well as seven
other non-plaintiff nurses) worked with nonventilator pediatric patients, and plaintiff
Dela Cruz was assigned to the geriatric units.
(Pls.’ 56.1 ¶ 24.)11
On April 6, 2006, Vinluan filed
complaints with the Office of the Chief
Administrative Hearing Officer concerning
the conditions of the nurse plaintiffs’
employment. (Pls.’ 56.1 ¶¶ 47-48; Ex. BB
48-49.)
The following day, the nurse
plaintiffs resigned en masse at some point
between 3:00 p.m. and 6:00 p.m. (the
“resignation”).12 (Sentosa’s 56.1 ¶¶ 12, 14;
O’Connor Dep. 92; Ex. E, ECF No. 116-8;
Cnty.’s 56.1 ¶ 7; Ex. A, ECF No. 115-5; Pls.’
Resp. Cnty.’s 56.1 at 3.) They effectuated
their resignation by submitting identical
resignation letters directly to defendant
Fitzgerald, the Director of Nursing Services
at Avalon (Sentosa’s 56.1 ¶ 9; Philipson Dep.
19), at the Avalon facility.13 (Sentosa’s 56.1
¶¶ 12, 14; O’Connor Dep. 92; Ex. E, ECF No.
According to plaintiffs and the County
defendants, during the relevant time, the
nurse plaintiffs were employed by Prompt
and assigned to the Avalon facility. (Cnty.’s
56.1 ¶¶ 1-2; Pls.’ 56.1 ¶ 23; Pls.’ Resp.
Cnty.’s 56.1 ¶ 1; Cnty.’s 56.1 ¶¶ 1-2; Pls.’
56.1 ¶ 23; Pls.’ Resp. Sentosa’s 56.1 ¶ 6.)
However, the Sentosa defendants have
described the nurse plaintiffs as being
employed by Avalon. (Sentosa’s 56.1 ¶ 6;
Philipson Dep. 63-65.) There is also a factual
dispute as to whether all of the nurse
plaintiffs were assigned to the pediatric
10
The Sentosa defendants dispute this statement,
arguing that there is testimony that Vinluan advised
the nurses that they could resign immediately.
(Sentosa’s Resp. Pls.’ 56.1 ¶ 45; Sentosa’s 56.1 Ex. N
60-61.) However, a review of the deposition pages
cited by the Sentosa defendants and the surrounding
testimony reveal that the cited materials do not support
the Sentosa defendants’ assertion.
submitted that is inadmissible (and does not contain
evidence that will presented in admissible form at
trial) will be disregarded. In any event, these factual
disputes are not dispositive to the Court’s analysis for
purposes of the summary judgment motion.
12
Defendants assert that the nurse plaintiffs resigned
between 5:00 p m. and 6:00 p.m. (Sentosa’s 56.1 ¶¶
12, 14.) Plaintiffs, however, assert that they resigned
between 3:00 p.m. and 5:00 p.m. (Pls.’ Resp. Cnty.’s
56.1 at 2) (asserting the resignation took place between
3:00 p.m. and 4:00 p.m.); Pls.’ 56.1 ¶ 55 (asserting the
resignation took place between 3:00 p m. and 5:00
p.m.).
11
The Sentosa defendants dispute that Dela Cruz was
assigned to the geriatric unit because the cited
evidence is not admissible for its purpose. (Sentosa’s
Resp. Pls.’ 56.1 ¶ 24.) “Materials submitted in support
of or in opposition to a motion for summary judgment
must be admissible themselves or must contain
evidence that will be presented in admissible form at
trial.” Delaney v. Bank of America Corp., 766 F.3d
163, 169-70 (2d Cir. 2014). Therefore, any evidence
13
Other nurses, in addition to the nurse plaintiffs,
working in other facilities affiliated with Sentosa and
employed by Prompt, resigned their employment at or
8
116-8; Cnty.’s 56.1 ¶ 7; Ex. A, ECF No. 1155.) The resignation letters stated: “In view
of the substantial breach of your company of
our contract, I hereby tender my resignation
effective immediately.” (Sentosa’s 56.1 ¶
14.) April 7, 2006 was six days before
Passover began, and one week before Easter
weekend. (Sentosa’s 56.1 ¶ 13; O’Connor
Dep. 108-109; Pls.’ Resp. Sentosa’s 56.1 ¶
13.)
Jacinto Dep. 136; Ramos Dep. 118; Pls.’
Resp. Cnty.’s 56.1 at 2.) In particular, skilled
nurses were necessary because the duties and
responsibilities associated with taking care of
the children were so great. (Cnty.’s 56.1 ¶ 6;
Jacinto Dep. 136; Pls.’ Resp. Cnty.’s 56.1 at
3.)
There was a minimum staffing
requirement of four nurses total for the two
pediatric units. (Pls.’ 56.1 ¶ 26.) According
to plaintiffs, they believed there were staffing
options that would enable the Sentosa
defendants to avoid any lapses in the patients’
care.15
Before their resignation, the nurse
plaintiffs had discussed whether their
simultaneous resignation would impair the
ability of Avalon to provide adequate care for
its patients. (Cnty.’s 56.1 ¶ 9; Dela Cruz Dep.
148; Pls.’ Resp. Cnty.’s 56.1 at 4.)14 They
were aware that it was absolutely necessary
to have someone cover shifts after their
resignation. (Cnty.’s 56.1 ¶ 23; Jacinto Dep.
136-37.) The children in that unit required
24-hour care and supervision to ensure their
health and safety. (Cnty.’s 56.1 ¶ 3; Pls.’
Resp. Cnty.’s 56.1 at 2.) A shortage of nurses
available to care for the children would be
unsafe for the children. (Cnty.’s 56.1 ¶¶ 4-6;
None of the nurse plaintiffs walked off
during a shift. (Pls.’ 56.1 ¶ 57.)16 None of
the nurse plaintiffs covered any of their
scheduled shifts after their resignation.
(Sentosa’s 56.1 ¶ 19; O’Connor Dep. 109.)
The Sentosa defendants assert that there was
some difficulty in covering their shifts
following the resignation, which created a
sense of urgency because there was a
possibility that patients would be harmed if
the shifts were not covered. (Sentosa’s 56.1
¶ 18; Cnty.’s 56.1 ¶ 13; O’Connor Dep. 186-
about the same time as the nurse plaintiffs. (Cnty.’s
56.1 ¶ 8; Pls.’ Resp. Cnty.’s 56.1 at 3; Pls.’ 56.1 ¶ 49.)
The County defendants characterize the number of
other nurses as “many” (Cnty.’s 56.1 ¶ 8); the nurse
plaintiffs dispute this characterization and admit only
that other nurses resigned (Pls.’ Resp. Cnty.’s 56.1 at
3.)
15
14
16
The nurse plaintiffs also assert that the staffing
calendar issued by Avalon had gaps in the schedule for
both pediatric units. (Pls.’ 56.1 ¶¶ 34-37.) The
Sentosa defendants dispute this, arguing that the cited
evidence is not admissible. (Sentosa’s Resp. Pls.’ 56.1
¶ 35.) This dispute is immaterial for purposes of the
Court’s decision on the summary judgment motion.
Defendants assert that, during these discussions, the
nurse plaintiffs were concerned as to whether Avalon
would be able to obtain adequate coverage for their
shifts. (Cnty.’s 56.1 ¶ 10; Dela Cruz Dep. 148.) The
nurse plaintiffs, however, deny this and assert that they
had been repeatedly told by Luyun that many
replacement nurses were available to the facility, all of
whom were waiting for positions to open. (Pls.’ 56.1
¶ 59; Pls.’ Resp. Cnty.’s 56.1 at 4; Ex. H.) Further,
plaintiffs state that Avalon had access to nursing
agencies that supplied nurses to facilities that needed
shifts covered. (Pls.’ 56.1 ¶ 58; Pls.’ Resp. Cnty.’s
56.1 at 4; Ex. I.) Thus, plaintiffs state, they knew the
shifts could be covered after their resignations. (Pls.’
Resp. Cnty.’s 56.1 at 4.)
Plaintiff Ramos submitted her resignation letter
while on duty and before her shift was scheduled to
end, and stayed four hours after the scheduled end of
her shift while Avalon secured coverage. (Sentosa’s
56.1 ¶¶ 15-16; O’Connor Dep. 92-94; Cnty.’s 56.1 ¶
36; Pls.’ 56.1 ¶ 56.) Plaintiff Maulion was scheduled
to work at 7:00 p.m. that evening until 7:00 a.m. the
next morning, but did not work that shift. (Sentosa’s
56.1 ¶ 17; O’Connor Dep. 99-100.) Maulion had not
initially been scheduled to work that shift, but had
been told at 7:00 a.m. on April 7, 2006 that she was
assigned to cover the shift. (Pls.’ 56.1 ¶¶ 50-51.)
9
89, 197.) Plaintiffs, however, deny that there
was real potential that their resignation would
impair the delivery of adequate care to the
patients, citing Sentosa’s ability to cover the
shifts. (Pls.’ Resp. Cnty.’s 56.1 ¶ 13; Pls.’
Resp. Sentosa’s 56.1 ¶ 18; Gamaio Dep. 7073; Ramos Dep. 24; Sichon Dep. 191-93.)
Ultimately, the shifts in the pediatric unit
were all covered, and no patient was harmed
by the resignation. (Pls.’ 56.1 ¶¶ 60-61.)
Avalon was able to staff the pediatric unit
through various means, including by securing
nurses from other units, calling staff back
from vacation, and obtaining staff from other
facilities who they trained on Avalon-specific
policies and procedures, including those
regarding the pediatric issues and ventilators.
(Sentosa’s 56.1 ¶ 19; O’Connor Dep. 109.)
already know who misled [the nurse
plaintiffs]. We are fully aware. And we are
going to go after that person as well.” (Id.)
He went on to say that “we will be contacting
the District Attorney tomorrow because what
they did is actually a criminal offense,
abandoning the patients the way they did. It’s
irresponsible of them to just walk off.” (Id.)
Philipson allegedly added, “But I feel we can
extend an amnesty until tomorrow, as I’ve
said, because after, after that time, I cannot
do anything to pull it back. Once we pull the
trigger, it’s done.” (Id.)19
On April 26, 2006, O’Connor filed a
police report with the SCPD regarding the
resignation. (Sentosa’s 56.1 ¶ 20; Ex. F
(“Field Report”), ECF No. 116-9; Cnty.’s
56.1 ¶ 14.; Pls.’ Resp. Cnty.’s 56.1 ¶ 14; Pls.’
56.1 ¶ 78.) The report stated that Avalon
“wishe[d] to document that 11 workers . . .
walked out of work and never returned
without notice.” (Pls.’ Resp. Sentosa’s 56.1
¶ 20.) At her deposition, O’Connor explained
that she went to the police department
because she “felt what transpired was not
right,” and she wanted to explore avenues by
which the nurse plaintiffs could be held
accountable for “creating what was really a
very risky situation.” (Sentosa’s 56.1 ¶ 21;
O’Connor Dep. 112-13.) She said that she
understood that one of those avenues was to
file a police report so that their conduct could
3. Post-Resignation Events Preceding
District Attorney’s Involvement
By letter dated April 10, 2006, O’Connor
complained to the New York Department of
Education about the resignation and
requested that the nurse plaintiffs’ licenses
and/or limited permits be revoked. (Pls.’
56.1 ¶ 69; Ex. W.)17
Shortly after the resignation, Philipson
held meetings with Filipino nurses in various
facilities. (Pls.’ 56.1 ¶ 72; Ex. NN.)18 At one
of those meetings, Philipson stated that “we
17
Months later, the Department of Education
completed an investigation of the resignation and
determined that the nurse plaintiffs had not committed
any professional misconduct. (Pls.’ Ex. MM.)
transcript to preclude summary judgment for the
Sentosa defendants.
19
Plaintiffs assert that, at about the same time,
Philipson unsuccessfully attempted to persuade the
American Consul General to deport the nurses. (Id. ¶
77; Ex. T 2/1 at 38-39.) As the Sentosa defendants
correctly point out, the Grand Jury testimony plaintiffs
cite in making this assertion does not directly support
this statement, so the Court does not accept this fact.
(See Sentosa’s Resp. 56.1 at 18.)
18
The Sentosa defendants dispute the assertions
concerning this meeting, arguing that the evidence
supporting them is inadmissible because it is a typed
transcript of a purported conversation. (Sentosa’s
Resp. 56.1 ¶ 72.) Although plaintiffs assert that the
transcript is supported by a recording, they have not
articulated how that recording will be authenticated or
admitted into evidence. Therefore, the Court has not
considered this piece of evidence for purposes of the
summary judgment motion. However, as discussed
infra, there is sufficient evidence apart from this
Citations to “Ex. T” reference the Grand Jury
transcript, which was filed under seal by plaintiffs at
ECF Nos. 128-1 through 128-7.
10
be investigated. (Sentosa’s 56.1 ¶ 21;
O’Connor Dep. 112-13.) Other than the
Avalon facility’s counsel, O’Connor never
discussed filing a police report with anyone.
(Sentosa’s 56.1 ¶ 22; O’Connor Dep. 11314.)
unexpected resignation on April 7, 2006, and
that the individuals charged with running the
Avalon facility were concerned at that time
about patient safety given that they needed to
cover multiple shifts on the pediatric
ventilator unit.
(Sentosa’s 56.1 ¶ 25;
O’Connor Dep. 121-22; Philipson Dep. 17172; Spota Dep. 50-52.)21 In particular,
according to the defendants, the fact that the
nurses resigned without notice and walked
out en masse was discussed (Philipson Dep.
172), as was the difficulty Sentosa had with
staffing due to the holidays and the fact that
nurses from multiple facilities resigned
immediately (Spota Dep. 51-54). O’Connor
was very emotional during the meeting and
stated that she had been very concerned that
something horrible or horrific could have
happened to the patients because of the
resignation. (Id. at 51-58.) According to the
defendants, the attendees did not agree on a
specific course of action at the conclusion of
the meeting. (Sentosa’s 56.1 ¶ 29; O’Connor
Dep. 124.) More specifically, Spota, while
having some idea as to how the case would
progess, did not discuss or communicate how
the it would at the meeting (Sentosa’s 56.1 ¶
30; Spota Decl. 60.) No further meetings
The police assigned the complaint to the
Crime Control Unit, which took no action
against the nurses. (Pls.’ 56.1 ¶¶ 79-80; Ex.
VV 55-57, 63; Ex. XX 74-75.)20
4. The District Attorney’s Office’s
Involvement
Howard Fensterman, counsel for Avalon
and Sentosa, subsequently scheduled a
meeting with Spota. (Pls.’ 56.1 ¶ 81; Ex. VV
48.) On May 31, 2006, Spota, investigators
from the DA’s Office, Philipson, O’Connor,
and Fensterman met at the DA’s Office for
approximately forty-five minutes. (Sentosa’s
56.1 ¶ 23; Philipson Dep. 169-70; Spota Dep.
47-53; O’Connor Dep. 120-24; Fensterman
Dep. 76-82; Pls.’ 56.1 ¶ 83; Ex. FF 120; Ex.
WW; Ex. VV 49.) Plaintiffs also allege that
Luyun was present. (Pls.’ Resp. Sentosa’s
56.1 ¶ 23; Ex. FF.)
the
At the meeting, the attendees discussed
nurse
plaintiffs’
simultaneous,
20
The County defendants assert that the SCPD did not
expressly decline to investigate O’Connor’s
complaint, and it did not make a determination that no
crimes had been committed by the nurse plaintiffs.
(Cnty.’s 56.1 ¶¶ 15-16.) Plaintiffs dispute that
argument, contending that the police department took
no action in response to the complaint. (Pls.’ Resp.
Cnty.’s 56.1 ¶.) As a threshold matter, the facts
asserted in the parties’ respective 56.1 statements do
not contradict each other. Plaintiffs assert that the
police took no action against them; defendants assert
they did not expressly decline to investigate the
complaint. As such, the Court’s analysis remains the
same regardless of which description is used.
Juno Healthcare Staffing Systems, Inc., a former client
of Vinluan’s that is in the nurse recruitment business.
(Pls.’ 56.1 ¶ 65; Ex. GG.)
21
According to the Sentosa defendants, they did not
present false information, such as whether any of the
nurses walked off during their shifts or whether any of
the patients at the facility were ultimately harmed, at
that meeting. (Sentosa’s 56.1 ¶¶ 26-28; Philipson Dep.
174-75; O’Connor Dep. 198-99; Spota Dep. 58.)
Plaintiffs dispute this, asserting that “at least some
false statements were made at the meeting,” including
that one of the participants falsely informed Spota that
Vinluan was in the parking lot of the Avalon facility
on the day the nurses resigned. (Pls.’ Resp. Sentosa’s
56.1 ¶ 26.)
Also of note is that, at some point in 2006, the Sentosa
defendants filed a lawsuit in the New York State
Supreme Court, Nassau County, against plaintiffs and
11
were contemplated. (Sentosa’s 56.1 ¶ 30;
Spota Decl. 60.)22
May 31, 2006 meeting took place, he
independently decided that defendant Lato
would be appointed to investigate24 the
resignation and determine whether any crime
had been committed. (Sentosa’s 56.1 ¶ 31;
Spota Dep. 60-66.) According to defendants,
Spota never contacted any of the Sentosa
defendants or their counsel in advance of
making this decision to appoint Lato, nor did
he seek any input in the decision. (Sentosa’s
56.1 ¶ 32; Spota Decl. 67.)
O’Connor later described the meeting as
“a follow-up to the police report . . . .”
(O’Connor Dep. 123.) At his deposition,
Spota stated that he had learned about the
complaint to the police department, but he
did not remember who had informed him of
it.
(Spota Dep. 55.)
Spota directed
investigators from the DA’s Office to inquire
about the police report, and he learned that
the case had been assigned to the Crime
Control Unit of the 4th Precinct. (Id. at 56.)
Spota then called Fensterman to report
on his office’s progress and plans regarding
the prosecution. (Pls.’ 56.1 ¶ 84; Ex. QQ 6768; Ex. XX 57, 64-65.) Spota also arranged
a meeting to introduce Lato to Fensterman.
(Sentosa’s 56.1 ¶ 33; Spota Decl. 60.) The
meeting was attended by Lato, Fensterman,
and the investigators who were assisting
Lato. (Sentosa’s 56.1 ¶ 34; Spota Decl. 6869; Decl. Leonard Lato (“Lato Decl.”), Ex. I,
ECF No. 116-12 at 56-57, 59.)25 At the
meeting, the nature of the case and the fact
that Lato would conduct an investigation
were discussed. (Sentosa’s 56.1 ¶ 34; Spota
Dep. 68-69; Lato Dep. 56-57, 59.) However,
according to Lato, he “paid little attention” to
what Fensterman had to say. (Sentosa’s 56.1
¶ 35; Lato Dep. 58-59.)26 Fensterman never
represented to Lato that any of the patients at
At Lato’s deposition, he stated that his
understanding was that Fensterman knew
Spota and that Spota “gave Mr. Fensterman
an audience” in light of their acquaintance,
but that he was not aware of any other special
consideration given to the case. (Sentosa’s
56.1 ¶ 39; Lato Dep. 69.)23
Spota oversaw some initial investigative
work performed by the DA’s Office
following the meeting, including requesting
that an investigator from the DA’s Office
speak to the police and an investigator from
Department of Education. (Spota Dep. 67.)
In his deposition, Spota testified that,
approximately a couple of months after the
Plaintiffs dispute that this “meeting was as simple or
straightforward as the Sentosa defendants portray it.”
(Pls.’ Resp. Sentosa’s 56.1 ¶ 25.) They also dispute,
inter alia, the Sentosa defendants’ assertions that no
one ever represented that any patient was harmed and
that no specific course of action was agreed to at the
meeting. (Pls.’ Resp. Sentosa’s 56.1 ¶¶ 25-30.)
Plaintiffs offer no factual evidence that directly
contradicts these statements, instead relying (as is
permitted) on circumstantial evidence in the record
(including statements and conduct by various
defendants before, and after, the meeting) to rebut this
assertion.
22
64, 103, 164-65, 184, 373-74), and that Lato had been
told that Fensterman was “connected” politically (id.
at 58; Pls.’ Resp. Sentosa’s 56.1 ¶ 39).
24
Plaintiffs take issue with the use of the word
“investigate,” instead alleging that he was appointed
to “indict” the plaintiffs. (Pls.’ Resp. Sentosa’s 56.1 ¶
31.)
25
In his Rule 56.1 statement, Spota states that he did
not meet or speak with any of the Sentosa defendants
following the May 31, 2006 meeting. (Spota’s 56.1 ¶
4.) However, in his deposition, Spota stated that he
met with Fensterman again two or three months after
the initial May 31, 2006 meeting. (Spota Dep. 60.)
23
Plaintiffs argue that this testimony contradicts other
statements made by Lato, including that Spota
personally edited the indictment (Ex. XX 47, 53, 63-
Plaintiffs dispute the truthfulness of Lato’s
testimony that he “paid little attention” to what
26
12
continue with the action. (Cnty.’s 56.1 ¶ 30;
O’Connor Dep. 125-26; Cnty.’s 56.1 ¶ 31.)27
The second visit was a follow-up visit to
discuss documents that he requested from the
facility and to take a tour of the pediatric unit.
(Sentosa’s 56.1 ¶ 42; O’Connor Dep. 124-26;
see Pls.’ Resp. Cnty.’s 56.1 ¶ 31.) On another
occasion, counsel for Avalon and Sentosa
faxed Lato an advertisement that purportedly
showed an interest that Vinluan had in a
competitor of Sentosa in the Philippines.
(Sentosa’s 56.1 ¶ 43; Ex. L, ECF No. 11615.)
Avalon had been injured due to the
resignation.
(Sentosa’s 56.1 ¶ 36.)
According to defendants, no agreement was
made between the parties as to how the
investigation should proceed, and no
representations were made as to what the
ultimate outcome would be. (Sentosa’s 56.1
¶ 37; Spota Dep. 69.) At a later date, Lato
paid a shiva call after Fensterman’s father
died, but that was the only other time that
they met. (Sentosa’s 56.1 ¶ 40; Lato Dep. 8283.)
Lato subsequently conducted an
investigation into plaintiffs’ conduct.
(Sentosa’s 56.1 ¶ 41; Lato Dep. 62-63.)
According to the Sentosa defendants, during
that time, the investigation was entirely up to
Lato. (Sentosa’s 56.1 ¶ 46.) Plaintiffs
dispute this, stating that, although Spota
testified as such, Lato undermined this claim.
(Pls.’ Resp. Sentosa’s 56.1 ¶ 46.)
Lato’s investigation also included
multiple meetings, conducted by himself or
detectives from the DA’s Office, with a
number of the nurse plaintiffs and with
Vinluan to discuss the circumstances of the
nurse plaintiffs’ resignation. (Sentosa’s 56.1
¶ 45; Lato Dep. 369-71; Pls.’ 56.1 ¶ 85;
Lampa Dep. 84-87; Lato Dep. 81.)
According to plaintiffs, Lato told the
interviewees that the interviews were routine
and were needed to close the investigations.
(Pls.’ 56.1 ¶ 85; Ex. K 79-80; Ex. XX 81.)
During that time, Lato controlled the
investigation. (Sentosa’s 56.1 ¶ 46; Spota
Dep. 129-30.) He also kept Spota informed,
in both formal and informal meetings, of all
of the facts of the case, including the later
Grand Jury presentation and indictment.
(Pls.’ 56.1 ¶ 89; Ex. XX 47, 53, 63-64, 103,
164-65, 184-85, 373-74.)
The investigation lasted six months.
(Sentosa’s 56.1 ¶ 41; Lato Dep. 62-63; Pls.’
Resp. Cnty.’s 56.1 ¶ 17.) During this time,
Lato’s only contacts with any individuals
associated with Avalon were the two visits to
the Avalon facility and a fax he received from
counsel for Avalon and Sentosa. (Sentosa’s
56.1 ¶¶ 42-43; O’Connor Dep. 124-26; Lato
Dep. 384; Email, Ex. L (ECF No. 116-15.))
During the first visit to Avalon, Lato met
with O’Connor to discuss the facility and the
circumstances surrounding the nurse
plaintiffs’ resignation on April 7, 2006.
(Sentosa’s 56.1 ¶ 42; O’Connor Dep. 12426.) At that meeting, Lato told O’Connor that
he did not know whether they were going to
the County’s characterization plaintiffs take issue. In
any event, this factual issue is not dispositive for
purposes of the Court’s analysis of the summary
judgment motion.
Fensterman said, arguing it is undermined by Lato’s
statement that Fensterman “threw Felix Vinluan’s
name around.” (Pls.’ Resp. Sentosa’s 56.1 ¶ 35; see
Ex. QQ 67-68; Ex. XX 57, 64-65.)
Plaintiffs contest this characterization. (Pls.’ Resp.
Cnty.’s 56.1 ¶ 30.) It is not clear with which aspect of
27
13
5. Grand Jury
Subsequent Events
Proceeding28
and
irregularities in the presentation of evidence.
(Pls.’ Opp. Br. 35-49.)
For example,
plaintiffs point out that Lato and Grand Jury
witnesses repeatedly used terms such as
“walked out” or similar phrases when
referring to the nurses’ conduct, thereby
creating the false impression to the Grand
Jury that the nurses walked out during a shift.
(See, e.g., Ex. T 1/30 at 7-9; 2/1 at 59-62; 2/8
at 3.) To demonstrate the confusion caused
by the phrasing, plaintiffs further note that, at
the beginning of the Grand Jury presentation,
a grand juror asked a question about the use
of that phrase:
“He [Investigator
Warkenthein] uses the term ‘walked out’
According to Lato, without any input
from the Sentosa defendants, he ultimately
decided to present the case to the Grand Jury
at the end of January 2007.29 (Sentosa’s 56.1
¶ 47; Lato Dep. 546-50.)
Plaintiffs have submitted evidence from
which they argue that, in the course of the
Grand Jury proceeding, individuals affiliated
with Sentosa made false statements.30 In
addition to alleging perjurious testimony,
plaintiffs assert that there were a number of
28
30
As discussed infra, the Court concludes that the
County defendants and the Sentosa defendants are
entitled to absolute immunity for their conduct in
connection with the Grand Jury proceeding itself. In
light of this absolute immunity determination, and
because there is no evidence of wrongdoing by Lato or
Spota in the investigative stage prior to the Grand Jury
proceeding, the Court grants summary judgment in
their favor on the claims against them. There is,
however, evidence from which a rational jury could
find that the Sentosa defendants solicited and
encouraged the arrest and prosecution of plaintiffs and
provided false and/or misleading testimony in the
Grand Jury proceeding in order to achieve that result.
The Court, therefore, includes here the relevant facts
asserted by plaintiffs from the Grand Jury proceeding
as pertains to Sentosa defendants, insofar as they are
relevant to certain elements of malicious prosecution
and false arrest claims (such as the presumption of
probable cause from an indictment), even though the
testimony itself is protected by absolute immunity.
According to plaintiffs, these included: (1)
Philipson’s testimony that the nurses earned more
money after February 2006 (Ex. T 2/1 at 11); (2)
Philipson’s and O’Connor’s testimony that there were
more shifts available to the nurses than were actually
available (T. 2/1 at 48, 72); (3) O’Connor’s testimony
that Dela Cruz was trained for the vent unit and that
there were no other nurses in the facility who ever
worked on the vent unit, and that upcoming vacations
prevented alternative staffing (id. 2/1 at 78); (4)
O’Connor’s testimony that some of the nurses
functioned as supervisors (id. 2/1 at 102); (5)
O’Connor’s claim that the nurses had not requested a
meeting with her to air out their complaints (id. 2/1 at
67); (6) Luyun’s testimony that he dialed at least ten
numbers to cover the nurses’ shifts after their
resignation (id. 2/13 at 22); and (7) Luyun’s testimony
about the significance of “direct hire” (id. 2/13 at 16).
The Sentosa defendants dispute those assertions, and
counter that, in the course of the events giving rise to
this litigation, (1) no one associated with the Sentosa
defendants claimed that any patient was injured or that
any nurse had walked off during their shift (Sentosa’s
56.1 ¶ 44; Lato Dep. 77-78); (2) Fensterman never
represented to Lato that any of the patients at Avalon
were injured, and it “was clear that they were not”
(Sentosa’s 56.1 ¶ 36; Lato Dep. 60); (3) at no point
between the time she learned she was going to testify
before the Grand Jury and the date of her testimony
did O’Connor speak to anyone regarding her potential
testimony (Cnty.’s 56.1 ¶ 32; O’Connor Dep. 127);
and (4) there is no evidence that Lato ever discussed
potential Grand Jury testimony with any of the
individuals who testified at the Grand Jury during the
investigative phase of the case (Cnty.’s 56.1 ¶ 34).
29
Plaintiffs note that Lato provided Spota with a copy
of the indictment in draft form, which Spota personally
edited, and that personally editing draft indictments
was an uncommon practice for Spota. (Pls.’ 56.1 ¶ 89;
Ex. XX 47, 53, 63-64, 103, 164-65, 184-85, 373-74.)
However, as discussed infra, Spota is entitled to
absolute immunity for his conduct in relation to the
Grand Jury proceeding, and, thus, personally editing
the draft indictment does not render him liable for any
of plaintiffs’ claims. Similarly, Lato is absolutely
immune for any alleged misconduct concerning
whether the Grand Jury was properly instructed on the
law regarding the charges that were presented.
14
several times which seems to indicate they
walked out in the middle of their shifts. I
would like to know if they did in fact walk off
the job during their shift.” (Ex. T 1/30 at 61.)
Lato responded that such evidence would
have to come from other witnesses. (Id.)
Plaintiffs also argue that Lato presented
excessive and inflammatory evidence
regarding the medical conditions of residents
in the ventilator and non-ventilator units,
including details of the children’s conditions
along with enlarged color photographs of the
children. (Pls.’ Opp. Br. 42.) Moreover,
plaintiffs assert that Lato incorrectly
instructed the jurors that, under New York
law, co-conspirators are liable for acts in
furtherance of a conspiracy. (Id. at 43.)
Plaintiffs further argue that Lato gave the
Grand Jury misleading instructions regarding
the Department of Education laws that
defined unprofessional conduct, and did not
advise the Grand Jury that the Department of
Education had issued a decision exonerating
the nurses of any misconduct. (Id. at 43-46.)
violated their constitutional rights and that
the evidence before the Grand Jury was
insufficient. (Pls.’ 56.1 ¶ 92.) The motions
were denied. (Id.; Ex. BBB.) Plaintiffs then
requested that the New York State Governor
appoint a special prosecutor. The request
was ignored. (Pls.’ 56.1 ¶ 92; Ex. CCC.)
Plaintiffs then applied to the Appellate
Division, Second Department (“Appellate
Division”) for a writ of prohibition pursuant
to New York C.P.L.R. Article 78. On
January 13, 2009, the Appellate Division
issued a writ of prohibition enjoining further
prosecution of plaintiffs on the ground that
the indictment violated their constitutional
rights. (Pls.’ 56.1 ¶ 93.)
B. Procedural Background
On May 9, 2016, the County defendants,
the Sentosa defendants, and defendant Spota
moved for summary judgment and filed their
respective memoranda of law (“Cnty.’s Br.,”
“Sentosa’s Br.,” and “Spota’s Br.”). (ECF
Nos. 115-4; 116-2; and 117, respectively.)
Plaintiffs filed their response in opposition
and accompanying memorandum of law
(“Pls.’ Br.”) on September 29, 2016. (ECF
No. 128.) The defendants filed their reply
briefs on November 21, 2016 (“Cnty. Repl.
Br.,” “Sentosa Repl. Br.,” and “Spota Repl.
Br.”). (ECF Nos. 132-134, respectively.)
Oral argument was held on November 30,
2016. (ECF No. 136.) That day, plaintiffs
filed supplemental exhibits with the Court.
(ECF No. 135.) The County defendants then
filed a supplemental letter with the Court on
December 2, 2016, enclosing an opinion
issued by the Honorable Sandra Feuerstein in
Kanciper v. Lato, CV-13-0871. (ECF No.
137.) On May 16, 2017, plaintiffs filed a
On March 6, 2007, the Grand Jury
returned an indictment against all of the
plaintiffs.31 (Sentosa’s 56.1 ¶ 61; Vinluan
Dep. 114-17; Jacinto Dep. 94-95; Avila Dep.
97-98; Maulion Dep. 81-82; Ramos Dep. 90;
Millena Dep. 96-97; Dela Cruz Dep. 66-67;
Gamaio Dep. 91-92; Anilao Dep. 111-12;
Lampa Dep. 103-104; Sichon Dep. 139-40;
Cnty.’s 56.1 ¶ 37; Pls.’ Resp. Cnty.’s 56.1 ¶¶
37-38.)
On April 22, 2007, plaintiffs surrendered
at the Suffolk County Courthouse, where
they
were
arrested,
sequestered,
fingerprinted, and processed. (Pls.’ 56.1 ¶
91; Ex. BB 117.) They subsequently moved
to dismiss on the grounds that the prosecution
N.Y. Pen. L. § 105.00. (Cnty.’s 56.1 ¶ 37.) The Grand
Jury also returned a true bill of indictment against
plaintiff Vinluan for Criminal Solicitation in the Fifth
Degree, N.Y. Pen L. § 100.00. (Id. ¶ 38.)
31
Specifically, the Grand Jury returned a true bill of
indictment against all of the plaintiffs for Endangering
the Welfare of a Child, N.Y. Pen. L. § 260.10(1);
Endangering the Welfare of a Disabled Person, N.Y.
Pen. L. § 260.25, and Conspiracy in the Sixth Degree,
15
supplemental letter containing two Newsday
articles (ECF No. 138), and the County
defendants responded on May 17, 2017 (ECF
No. 139). On October 30, 2017, plaintiffs
filed a supplemental letter regarding the
indictment of Thomas Spota (ECF No. 140),
and the County defendants responded on
October 31, 2017 (ECF No. 141). On
December 6, 2017, the County defendants
filed a supplemental letter, advising the Court
that the Second Circuit had affirmed Judge
Feuerstein’s decision in Kanciper (ECF No.
142), and plaintiffs responded on December
7, 2017 (ECF NO. 143). On March 6, 2018,
the County defendants filed a supplemental
letter regarding the Supreme Court’s decision
in District of Columbia v. Wesby, 138 S. Ct.
577 (2018) (ECF No. 144), and plaintiffs
responded on March 9, 2018 (ECF No. 145).
The Court has fully considered the parties’
submissions.
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 party
cannot produce admissible evidence
to support the fact.
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”).
II. 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 he is entitled to
summary judgment. See Huminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
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
Rule 56(c)(1) provides that:
[A] 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
16
(emphasis in original). 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 “‘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 33).
and (3) the Monell claims against the County
fail because there were no underlying
constitutional violations, Lato is a state actor,
not a county actor, and the conduct at issue
was not caused by a municipal policy,
custom, or usage. Finally, defendant Spota
argues that plaintiffs have failed to show that
Spota was personally involved in any
constitutional violations.
A. The County Defendants
As noted above, in its Memorandum and
Order on defendants’ motions to dismiss, the
Court reached two conclusions concerning
whether Lato and Spota were entitled to
immunity for their actions. First, the Court
concluded that they were absolutely immune
from liability on claims based upon their
initiation of the prosecution against plaintiffs
and their conduct in front of the Grand Jury.
(Memorandum and Order, ECF No. 31 at
18.)32 Second, the Court held that, based
upon the allegations in the amended
complaint, it was unable to determine at that
time whether Lato and Spota were entitled to
absolute or qualified immunity for their
conduct during the investigative phase. (Id.
at 22.) In reaching this conclusion, the Court
reasoned that plaintiffs sufficiently alleged
that wrongdoing occurred during the
investigation that caused a deprivation of
their constitutional rights. (Id. at 21-22.)
III. DISCUSSION
The County defendants, the Sentosa
defendants, and defendant Spota each move
for summary judgment. Specifically, the
Sentosa defendants argue that: (1) the Section
1983 claims fail because the Sentosa
defendants were not acting under the color of
state law; (2) the Section 1983 and state law
malicious prosecution claims fail because the
Sentosa defendants did not initiate the
criminal proceeding and, in any event, there
was probable cause that a crime occurred;
and (3) the Section 1983 and state law false
arrest claims fail because the Sentosa
defendants did not confine plaintiffs. The
County defendants argue that: (1) there was
no evidence of any wrongdoing by Lato; (2)
Spota and Lato are entitled to qualified
immunity regarding the investigative stage;
The County defendants now move for
summary judgment in part on the ground that
32
The Court notes that, although it determined that
Lato and Spota are entitled to absolute immunity for
their conduct in connection with the Grand Jury
proceeding, it has nonetheless reviewed the available
evidence concerning that conduct to evaluate whether
it supports any of plaintiffs’ other claims against them
for investigative conduct outside the Grand Jury
context. For example, the Court has reviewed the
transcript of the Grand Jury testimony to determine
whether Lato’s conduct creates an issue of material
fact as to whether he entered a conspiracy with the
Sentosa defendants in the investigative phase, prior to
the Grand Jury proceeding, concerning matters outside
the scope of the Grand Jury proceeding. However, the
Court has concluded that, even when considering the
Grand Jury proceedings, no rational jury could
conclude that Spota or Lato violated the plaintiffs’
constitutional rights in the investigative stage by
conspiring to fabricate evidence, or in some other
manner unrelated to the Grand Jury proceeding and
initiation of charges (for which they are entitled to
absolute immunity).
17
there is no evidence of any wrongdoing by
Lato, particularly with respect to the
investigation of plaintiffs. Defendant Spota
separately filed a motion for summary
judgment on the ground that there is no
evidence that Spota was personally involved
in any constitutional deprivation, even
assuming one had taken place. Moreover,
both defendants argue that they are entitled to
absolute and/or qualified immunity. For the
following reasons, the Court concludes that
Spota and Lato are entitled to summary
judgment because there is no evidence that
they violated the constitutional rights of
plaintiffs in the investigative stage of the case
(and, as previously discussed, they are
entitled to absolute immunity with respect to
their conduct in connection with the Grand
Jury presentation and initiation of charges).
judicial proceedings or for trial, and which
occur in the course of his role as advocate for
the State.’” Smith v. Garretto, 147 F.3d 91,
94 (2d Cir. 1998) (quoting Buckley, 509 U.S.
at 273). On the other hand, “[w]hen a district
attorney functions outside his or her role as
an advocate for the People, the shield of
immunity is absent. Immunity does not
protect those acts a prosecutor performs in
administration
or
investigation
not
undertaken in preparation for judicial
proceedings.” Hill, 45 F.3d at 661; see also
Carbajal v. Cty. of Nassau, 271 F. Supp. 2d
415, 421 (E.D.N.Y. 2003) (“[W]hen a
prosecutor supervises, conducts, or assists in
the investigation of a crime, or gives advice
as to the existence of probable cause to make
a warrantless arrest—that is, when he
performs functions normally associated with
a police investigation—he loses his absolute
protection from liability.” (citation omitted)).
1. Legal Standard
“It is by now well established that ‘a
state prosecuting attorney who acted within
the scope of his duties in initiating and
pursuing a criminal prosecution’ ‘is immune
from a civil suit for damages under § 1983.’”
Shmueli v. City of New York, 424 F.3d 231,
236 (2d Cir. 2005) (quoting Imbler v.
Pachtman, 424 U.S. 409, 410, 431 (1976)).
“In determining whether absolute immunity
obtains, we apply a ‘functional approach,’
looking to the function being performed
rather than to the office or identity of the
defendant.” Hill v. City of New York, 45 F.3d
653, 660 (2d Cir. 1995) (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 269 (1993)). In
applying this functional approach, the
Second Circuit has held that prosecutors are
entitled to absolute immunity for conduct
“‘intimately associated with the judicial
phase of the criminal process.’” Fielding v.
Tollaksen, 257 F. App’x 400, 401 (2d Cir.
2007) (quoting Imbler, 424 U.S. at 430); Hill,
45 F.3d at 661 (same). In particular, “[s]uch
immunity . . . extends to ‘acts undertaken by
a prosecutor in preparing for the initiation of
The Second Circuit has noted that “[t]he
line between a prosecutor’s advocacy and
investigating roles might sometimes be
difficult to draw.” Zahrey v. Coffey, 221 F.3d
342, 347 (2d Cir. 2000). Courts, however,
may rely on certain established distinctions
between these roles. For example, the
Supreme Court has explained that “[t]here is
a difference between the advocate’s role in
evaluating evidence and interviewing
witnesses as he prepares for trial, on the one
hand, and the detective’s role in searching for
the clues and corroboration that might give
him probable cause to recommend that a
suspect be arrested, on the other hand.”
Buckley, 509 U.S. at 273. In addition, the
Second Circuit has identified the juncture in
the criminal process before which absolute
immunity may not apply. Specifically, “[t]he
majority opinion in [Buckley] suggests that a
prosecutor’s conduct
prior to the
establishment of probable cause should be
considered investigative: ‘A prosecutor
neither is, nor should consider himself to be,
an advocate before he has probable cause to
18
have anyone arrested.’” Zahrey, 221 F.3d at
347 n.2 (quoting Buckley, 509 U.S. at 274);
see also Hill, 45 F.3d at 661 (“Before any
formal legal proceeding has begun and before
there is probable cause to arrest, it follows
that a prosecutor receives only qualified
immunity for his acts.”).
Thus, in
interpreting Buckley, the Second Circuit has
distinguished between “preparing for the
presentation of an existing case,” on the one
hand, and attempting to “furnish evidence on
which a prosecution could be based,” on the
other hand. Smith, 147 F.3d at 94. Only the
former entitles a prosecutor to absolute
immunity. Id.
Id. at 274 n.5; see Zahrey, 221 F.3d at 347 n.2
(“All members of the Court [in Buckley]
recognized . . . that a prosecutor’s conduct
even after probable cause exists might be
investigative.”).
If absolute immunity does not apply,
government actors may be shielded from
liability for civil damages by qualified
immunity, i.e., if their “conduct did not
violate plaintiff’s clearly established rights,
or if it would have been objectively
reasonable for the official to believe that his
conduct did not violate plaintiff’s rights.”
Mandell v. Cty. of Suffolk, 316 F.3d 368, 385
(2d Cir. 2003); see also Fielding, 257
F. App’x at 401 (“The police officers, in turn,
are protected by qualified immunity if their
actions do not violate clearly established law,
or it was objectively reasonable for them to
believe that their actions did not violate the
law.”). As the Second Circuit has also noted,
“[t]his doctrine is said to be justified in part
by the risk that the ‘fear of personal monetary
liability and harassing litigation will unduly
inhibit officials in the discharge of their
duties.’” McClellan v. Smith, 439 F.3d 137,
147 (2d Cir. 2006) (quoting Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999)).
Notably, the mere fact that a prosecutor
might later convene a grand jury and obtain
an indictment does not automatically serve to
cloak his prior investigatory actions with the
protection of absolute immunity. As the
Supreme Court stated in Buckley:
That the prosecutors later
called a grand jury to consider
the evidence this work
produced
does
not
retroactively transform that
work from the administrative
into the prosecutorial.
A
prosecutor may not shield his
investigative work with the
aegis of absolute immunity
merely because, after a
suspect is eventually arrested,
indicted, and tried, that work
may
be
retrospectively
described as ‘preparation’ for
a possible trial . . . .
In considering a defense of qualified
immunity to a Section 1983 claim, courts
generally “must first determine whether the
plaintiff has alleged the deprivation of an
actual constitutional right at all, and if so,
proceed to determine whether that right was
clearly established at the time of the alleged
violation.” Wilson v. Layne, 526 U.S. 603,
609 (1999) (quoting Conn v. Gabbert, 526
U.S. 286, 290 (1999)); Zahrey, 221 F.3d at
346-48 (extending analysis to prosecutors).
The right not to be deprived of liberty as a
result of the fabrication of evidence by a
government officer acting in an investigative
capacity has been established by the Second
Circuit. Zahrey, 221 F.3d at 349.
Buckley, 509 U.S. at 275-76. Furthermore, “a
determination of probable cause does not
guarantee a prosecutor absolute immunity
from liability for all actions taken afterwards.
Even after that determination . . . a prosecutor
may engage in ‘police investigative work’
that is entitled to only qualified immunity.”
19
2. Analysis
most favorable to plaintiff, no rational jury
could find that they knowingly fabricated
evidence during the investigation, or
otherwise violated plaintiffs’ constitutional
rights in the investigative phase of the case.
Plaintiffs argue that Lato violated their
constitutional rights because he fabricated
evidence while acting in an investigative
capacity, especially “in his zeal to assure that
Mr. Vinluan, was indicted along with his
clients.” (Pls.’ Br. 78.) In particular,
plaintiffs state that “[i]t is clear that Lato
assisted in suborning [] wholly false, and
legally inadmissible, testimony.” (Id. at 80.)
Plaintiffs further argue that, at the very least,
Lato’s conduct raises an issue of fact as to
whether the investigative phase included the
creation of evidence in an effort to aid
Sentosa’s prosecutorial goals. (Id.)
As a threshold matter, the Court
concludes that Lato and Spota are not entitled
to absolute immunity for the investigative
stage. Applying the functional approach, it is
clear that Spota’s and Lato’s conduct during
this phase was not “‘intimately associated
with the judicial phase of the criminal
process.’” See Fielding, 257 F. App’x at 401
(quoting Imbler, 424 U.S. at 430); Hill, 45
F.3d at 661. Indeed, these acts, including
listening to the complaints of the Sentosa
defendants, visiting the facility, interviewing
the Sentosa defendants, and interviewing the
nurse plaintiffs, fall squarely into the
category of acts “perform[e]d in . . .
investigation not undertaken in preparation
for judicial proceedings.” See Hill, 45 F.3d
at 661; see also Carbajal, 271 F. Supp. 2d at
421 (E.D.N.Y. 2003) (“[W]hen a prosecutor
supervises, conducts, or assists in the
investigation of a crime, or gives advice as to
the existence of probable cause to make a
warrantless arrest—that is, when he performs
functions normally associated with a police
investigation—he loses his absolute
protection from liability.” (citation omitted)).
Lato’s investigation is particularly the type of
“searching for the clues and corroboration
that might give him probable cause to
recommend that a suspect be arrested” that
the Supreme Court and the Second Circuit
have explained do not entitle a prosecutor to
absolute immunity. See Buckley, 509 U.S. at
273; see also Smith, 147 F.3d at 94
(interpreting Buckley to distinguish between
“preparing for the presentation of an existing
case” and attempting to “furnish evidence on
which a prosecution could be based”). Thus,
Lato and Spota are not entitled to absolute
immunity for their conduct during the
investigative phase.
The County defendants argue that these
allegations are wholly unsupported and
conclusory, and are exactly the type of
evidence that is insufficient to overcome a
motion for summary judgment. (Cnty.’s
Repl. Br. 7.) They assert that testimony and
documentary evidence establish that there
was no wrongdoing by Spota or Lato during
the investigative phase, and that there is no
evidence that Lato presented any false
evidence during the presentation to the Grand
Jury, nor that he learned of any false evidence
(or conspired to create it) during the
investigative stage of the case. (Id. at 5-13.)
As such, they argue, it cannot be said that
Lato and Spota violated plaintiffs’
constitutional rights. See Mandell, 316 F.3d
at 385.
Having carefully analyzed the record, the
Court concludes that there is no evidence in
the record from which a rational jury could
find that Spota or Lato violated plaintiffs’
constitutional rights during the investigative
The Court concludes, however, that Lato
and Spota are entitled to summary judgment
because, even construing the facts in the light
20
phase.33 Although plaintiffs assert that the
evidence shows that Lato participated in
manufacturing evidence and fabricated a case
(Pls.’ Br. 78-79), plaintiffs point to no
evidence in the record that would support
such assertions. Indeed, the only evidence
plaintiffs cite concerns Grand Jury testimony
provided by the Sentosa defendants, and an
inference cannot be drawn from that
testimony alone that Lato or Spota had any
involvement in the knowing fabrication of
evidence prior to the Grand Jury proceedings,
despite plaintiffs’ conclusory assertions to
the contrary. Plaintiffs appear to draw this
conclusion based on the mere fact that the
witnesses who allegedly gave this false
testimony met with Lato before they
testified.34 (Id. at 80.) Plaintiffs argue that,
“[a]t the very least, [Lato’s] conduct raises an
issue of fact as to whether the investigative
phase included the creation of evidence in an
effort to assure that Sentosa’s especial target
was included in the indictment.” (Pls.’ Br.
80.) However, plaintiffs are incorrect. An
issue of fact cannot be created by mere
speculation, and plaintiffs’ allegations are
just that. Plaintiffs have failed to set forth
“concrete particulars” showing that a trial is
needed, as they are required to do. See
Anderson, 477 U.S. 247-50. Although the
Court recognizes that plaintiffs may rely on
circumstantial evidence (and reasonable
inferences drawn from such evidence), there
is simply insufficient evidence in the record
for a rational jury to reasonably infer that
Lato and/or Spota conspired with the Sentosa
defendants to fabricate evidence during the
investigative phase. Thus, their argument
fails, and Lato and Spota are entitled to
summary judgment for their conduct during
the investigative phase because no rational
jury could find that their conduct during that
phase violated plaintiffs’ rights.35 Moreover,
given the absence of any underlying
constitutional violation in the investigative
stage, no municipal liability can exist against
Suffolk County as a matter of law.36 See
Further, as discussed infra, plaintiffs’ allegations
that there was a conspiracy to fabricate testimony
between Lato and the Sentosa defendants in the
investigative phase are not supported by evidence in
the record. The evidence they point to is that false
testimony was given at the Grand Jury by the Sentosa
defendants, and that special consideration was
potentially given to the Sentosa defendants by the
DA’s Office, but this is insufficient to create a material
issue of fact as to whether Spota and/or Lato agreed to
fabricate evidence in the investigative stage because
such a conclusion would be completely speculative in
the absence of any other evidence in the record to
support such a conclusion. The other wrongdoing
alleged by plaintiffs is that Lato falsely told some of
the nurse plaintiffs and Vinluan his interviews of them
were routine and necessary to close the investigations.
(Pls.’ 56.1 ¶ 85; Lampa Dep. 84-87; Ex. XX 81.)
However, plaintiffs have not established that such a
statement (by itself) could rise to a violation of
plaintiffs’ constitutional rights.
evidence during those meetings. (Cnty.’s 56.1 ¶¶ 3033; O’Connor Dep. 125-28.)
33
35
The County defendants make the separate argument
that Lato and Spota are entitled to qualified immunity
for their conduct during the investigative phase on the
grounds that officers of reasonable competence could
disagree on whether the test for probable cause was
met in the instant case and that their actions did not
violate clearly established law. (Cnty.’s Br. 22-24.)
Having concluded that there is no evidence that Lato
or Spota violated plaintiffs’ rights, the Court need not
address these arguments, or any other grounds raised
by the County defendants.
36
The Court also agrees with the County defendants
that Spota and Lato acted as State actors, not County
actors, in connection with the decision to present the
case to the Grand Jury and initiate charges and, thus,
cannot create liability for Suffolk County in
connection with that conduct. See Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988). To the extent plaintiffs
seek to establish municipal liability based upon
Walker v. City of New York, 974 F.2d 293, 296-97 (2d
Cir. 1992), there is insufficient evidence in the record
for a rational jury to find municipal liability in this case
34
In addition, Lato made two visits to the Avalon
facility, during which he spoke with O’Connor.
However, plaintiffs have not provided any evidence
indicating that Lato (or O’Connor) agreed to fabricate
21
Segal v. City of New York, 459 F.3d 207, 219
(2d Cir. 2006).
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.’” Black v. Race, 487 F. Supp. 2d
187, 211 (E.D.N.Y. 2007) (quoting Jocks,
316 F.3d at 136 (2d Cir. 2003)).
B. The Sentosa Defendants37
1. Malicious Prosecution
As set forth below, a malicious
prosecution claim involves, inter alia, the
following elements: (1) the initiation or
continuation of a criminal proceeding against
plaintiff, and (2) lack of probable cause for
commencing the proceeding. Further, to find
a private defendant liable for malicious
prosecution, plaintiff must show that the
defendant was acting under color of state law.
The Sentosa defendants argue that plaintiffs’
Section 1983 and state law malicious
prosecution claims cannot survive summary
judgment because there is insufficient
evidence in the record to allow plaintiffs to
meet these requirements at trial. (Sentosa’s
Br. 4-22.) For the following reasons, the
Court disagrees.
i. Under Color of State Law
The central question in examining the
“under color of state law” requirement is
whether the alleged infringement of federal
rights is “fairly attributable to the State.”
Lugar v. Edmonson Oil Co., 457 U.S. 922,
937 (1982); see also Wyatt v. Cole, 504 U.S.
158, 161 (1992) (“The purpose of § 1983 is
to deter state actors from using the badge of
their authority to deprive individuals of their
federally guaranteed rights and to provide
relief to victims if such deterrence fails.”);
Tancredi v. Metro. Life Ins. Co., 316 F.3d
308, 312 (2d Cir. 2003) (“A plaintiff pressing
a claim of violation of his constitutional
rights under § 1983 is thus required to show
state action.”).
a. Legal Standard
Claims for malicious prosecution brought
under Section 1983 are substantially the same
as claims for malicious prosecution under
state law. Lanning v. City of Glens Falls, No.
17-970-cv, 2018 WL 5810258 (2d Cir. Nov.
17, 2018); Jocks v. Tavernier, 316 F.3d 128,
134 (2d Cir. 2003). “A malicious prosecution
claim under New York law requires the
plaintiff prove: ‘(1) the initiation or
It is axiomatic that private citizens and
entities are not generally subject to Section
1983 liability. See Ciambriello v. Cty. of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002);
Reaves v. Dep’t of Veterans Affairs, No. 08CV-1624 (RJD), 2009 WL 35074, at *3
(E.D.N.Y. Jan. 6, 2009) (“Purely private
conduct is not actionable under § 1983, ‘no
37
based upon a pattern of deficiencies in the
management of the Suffolk County District Attorney’s
Office in terms of matters such as training and/or
discipline. Allegations of such misconduct from
newspapers and other judicial proceedings are not a
substitute for evidence and, in any event, plaintiffs
have failed to articulate how any such alleged
misconduct in other cases pertained to the alleged
constitutional violations in this case, which clearly
hinge upon the decision to prosecute itself (rather than
deficiencies in management of the DA’s Office).
To the extent that plaintiffs assert a Section 1983
conspiracy claim against the Sentosa defendants for
fabricating evidence in the investigative stage with the
County defendants, that claim fails to survive
summary judgment for the same reasons as the claim
against the County defendants fails, as discussed
supra. However, the Court proceeds to analyze the
malicious prosecution and false arrest claims against
the Sentosa defendants arising from the initiation of
charges against the plaintiffs and their subsequent
arrest for which Spota and Lato have absolute
immunity, but the Sentosa defendants do not.
22
matter how discriminatory or wrongful.’”
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999))). However, as the
Second Circuit has explained:
action” doctrine, a private actor can be found
“to act ‘under color of’ state law for § 1983
purposes . . . [if the private party] is a willful
participant in joint action with the State or its
agents.” Dennis v. Sparks, 449 U.S. 24, 27
(1980). “The touchstone of joint action is
often a ‘plan, prearrangement, conspiracy,
custom, or policy’ shared by the private actor
and the police.” Forbes v. City of New York,
No. 05 Civ. 7331(NRB), 2008 WL 3539936,
at *5 (S.D.N.Y. Aug. 12, 2008) (citing
Ginsberg v. Healey Car & Truck Leasing,
Inc., 189 F.3d 268, 272 (2d Cir. 1999)). The
provision of information to, or the
summoning of, police officers is not
sufficient to constitute joint action with state
actors for purposes of Section 1983, even if
the information provided is false or results in
the officers taking affirmative action. See
Ginsberg, 189 F.3d at 272 (“Healey’s
provision of background information to a
police officer does not by itself make Healey
a joint participant in state action under
Section 1983 . . . [and] Officer Fitzgerald’s
active role in attempting to resolve the
dispute after Healey requested police
assistance in preventing further disturbance
also does not, without more, establish that
Healey acted under color of law.” (internal
citations omitted)). Similarly, if a police
officer’s actions are due to the officer’s own
initiative, rather than the directive of a private
party, the private party will not be deemed a
state actor. See Shapiro v. City of Glen Cove,
236 F. App’x 645, 647 (2d Cir. 2007) (“[N]o
evidence supports Shapiro’s contention that
Weiss-Horvath acted jointly with the Glen
Cove defendants to deprive her of her
constitutional rights, and ample evidence
shows that the Glen Cove officials who
searched her house exercised independent
judgment rather than acting at WeissHorvath’s direction.”); Serbalik v. Gray, 27
F. Supp. 2d 127, 131 (N.D.N.Y. 1998) (“[A]
private party does not act under color of state
law when she merely elicits but does not join
[T]he actions of a nominally
private entity are attributable
to the state when: (1) the
entity acts pursuant to the
‘coercive power’ of the state
or is ‘controlled’ by the state
(‘the
compulsion
test’);
(2) when the state provides
‘significant encouragement’
to the entity, the entity is a
‘willful participant in joint
activity with the [s]tate,’ or
the entity’s functions are
‘entwined’ with state policies
(‘the joint action test’ or
‘close nexus test’); or
(3) when the entity ‘has been
delegated a public function by
the [s]tate,’ (‘the public
function test’).
Sybalski v. Indep. Grp. Home Living
Program, Inc., 546 F.3d 255, 257 (2d Cir.
2008) (citing Brentwood Acad. v. Tenn.
Secondary Sch. Ath. Ass’n, 531 U.S. 288, 296
(2001)). In addition, liability under Section
1983 may also apply to a private party who
“conspire[s] with a state official to violate an
individual’s federal rights.”
Fisk v.
Letterman, 401 F. Supp. 2d 362, 376
(S.D.N.Y.
2005)
(report
and
recommendation), adopted in relevant part
by Fisk v. Letterman, 401 F. Supp. 2d 362
(S.D.N.Y. 2005). A plaintiff “bears the
burden of proof on the state action issue.”
Hadges v. Yonkers Racing Corp., 918 F.2d
1079, 1083 n.3 (2d Cir. 1990).
In this case, plaintiffs have only put forth
allegations related to either joint action or a
conspiracy between the Sentosa defendants
and the County defendants. Under the “joint
23
in an exercise of official state authority.”
(quoting Auster Oil & Gas, Inc. v. Stream,
764 F.2d 381, 388 (5th Cir. 1985))).
Moreover, “a private party’s motivation is
irrelevant to the determination of whether
that private party acted under color of state
law.” Young v. Suffolk Cty., 922 F. Supp. 2d
368, 386 (E.D.N.Y. 2013) (citation omitted).
Finally, if a plaintiff’s only evidence in
support of a Section 1983 claim is that the
private defendants and a district attorney met
and otherwise communicated on several
occasions, it is insufficient because there is
“‘nothing suspicious or improper in such
meetings, which are routine and necessary in
the preparation of evidence,’” and the “‘mere
allegation of their occurrence is [not]
sufficient to create a material issue of fact as
to whether something improper took place
during them.’” Scotto v. Almenas, 143 F.3d
105, 115 (2d Cir. 1998) (quoting San Filippo
v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir.
1984)).
(finding plaintiffs sufficiently pled existence
of joint action where private defendants
manipulated evidence presented to a grand
jury, thereby willfully causing an assistant
district attorney to violate plaintiffs’ rights).
This could include providing authorities with
evidence they know to be false or which
unduly influenced authorities, particularly
when the state actor does not subsequently
exercise independent judgment. See, e.g.,
Palmer v. Monroe Cty. Deputy Sheriff, No.
00-CV-6370, 2004 WL 941784 at *8
(W.D.N.Y. Apr. 29, 2004); Ginsberg, 189
F.3d at 272 (“Where, as here, a police officer
exercises independent judgment in how to
respond to a private party’s legitimate request
for assistance, the private party is not jointly
engaged . . . .”); Manbeck v. Micka, 640 F.
Supp. 2d 351 (S.D.N.Y. 2009) (recognizing
an exception to the general rule concerning
providing information to police where private
actor provides false statements to state actors
to intentionally violate constitutional rights);
Merkle v. Upper Dublin School Dist., 211
F.3d 782 (3d Cir. 2000) (holding school
district may be liable under Section 1983
where police department would not have
pressed charges and pursued criminal
prosecution without the district’s request to
do so).
When the private actor takes a more
active role, however, and jointly engages in
action with state actors, he will be found to
be a state actor. See, e.g., Lugar, 457 U.S. at
942 (finding that, when a supplier sought
prejudgment attachment of a debtor’s
property, supplier was a state actor because it
“invok[ed] the aid of state officials to take
advantage of state-created attachment
procedures”); Dennis, 449 U.S. at 27-28
(holding that defendants who conspired with
and participated in bribery with federal judge
acted under color of state law).
Thus, courts have determined the “under
color of state law” requirement can be met as
to private defendants where they had a clear
objective of influencing the action of the state
and fabricated evidence to achieve that
objective, Young v. Suffolk Cty., 705 F. Supp.
2d 183 (E.D.N.Y. 2010), where police have
arrested individuals based solely on the
private defendants’ request, without making
an independent investigation of the matter,
Fletcher v. Walmart Stores, Inc., No. 05 Civ.
1859(WHP), 2006 WL 2521187, at *3
(S.D.N.Y. Aug. 28, 2006), and where they
made false statements to the police to invoke
the state’s power to intentionally violate
another’s rights, Weintraub v. Board of
Indeed, “a defendant who causes an
unlawful arrest or prosecution may be held
responsible civilly if he does so by
maliciously providing false information.”
Friedman v. New York City Admin. for
Children’s Services, et al., No. 04-CV3077(ERK), 2005 WL 2436219, at *8
(E.D.N.Y. Sept. 30, 2005); see also Coakley
v. Jaffe, 49 F. Supp. 2d 615 (S.D.N.Y. 1999)
24
1983 conspiracy are insufficient, they “may
have to be proven by circumstantial, rather
than direct, evidence.”
Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
Educ., 423 F. Supp. 2d 38, 58 (E.D.N.Y.
2006).
Alternatively, to demonstrate that a
private party defendant was a state actor
engaged in a conspiracy with other state
actors under Section 1983, a plaintiff must
allege: (1) an agreement between the private
party and state actors, (2) concerted acts to
inflict an unconstitutional injury, and (3) an
overt act in furtherance of the goal. See
Carmody v. City of New York, No. 05 Civ.
8084(HB), 2006 WL 1283125, at *5
(S.D.N.Y. May 11, 2006) (citing
Ciambriello, 292 F.3d at 324-25). Vague and
conclusory allegations that defendants have
engaged in a conspiracy must be dismissed.
See Ciambriello, 292 F.3d at 325 (dismissing
conspiracy allegations where they were
found “strictly conclusory”); see also
Robbins v. Cloutier, 121 F. App’x 423, 425
(2d Cir. 2005) (dismissing a Section 1983
conspiracy claim as insufficient where
plaintiff merely alleged that defendants
“acted in a concerted effort” to agree not to
hire plaintiff and to inform others not to hire
plaintiff). “A plaintiff is not required to list
the place and date of defendants[’] meetings
and the summary of their conversations when
he pleads conspiracy, but the pleadings must
present facts tending to show agreement and
concerted action.” Fisk, 401 F. Supp. 2d at
376
(internal
citations
omitted).
“Unsubstantiated allegations of purported
collaboration between a state actor and a
private party are insufficient to defeat a
motion for summary judgment.” Young, 922
F. Supp. 2d at 386 (citing Scotto, 143 F.3d at
115; Leon v. Murphy, 988 F.2d 303, 311 (2d
Cir. 1993) (affirming grant of summary
judgment because plaintiff’s allegations of
conspiracy were “unsupported by any
specifics, and many of them [were] flatly
contradicted by the evidence proffered by
defendants”). Indeed, because “conspiracies
are by their very nature secretive operations,”
while conclusory allegations of a Section
Private actors may be liable for malicious
prosecution even if the state official with
whom they have participated in joint action is
himself immune from personal liability.
Dennis, 449 U.S. at 28-29 (“[T]he private
parties conspiring with the judge were acting
under color of state law; and it is of no
consequence in this respect that the judge
himself is immune from damages liability.
Immunity does not change the character of
the judge’s actions or that of his coconspirators.”); Coakley, 49 F. Supp. 2d at
624.
ii. Initiating a Proceeding
The initiation or continuation of a
criminal proceeding can be satisfied by, inter
alia, showing that the defendant filed formal
charges and caused the plaintiff to be
arraigned. Phillips v. DeAngelis, 571 F.
Supp. 2d 347, 353-54 (N.D.N.Y. 2008). It is
well settled that “[i]n order for a civilian
complainant to be considered to have
initiated a criminal proceeding, ‘it must be
shown that [the complainant] played an
active role in the prosecution, such as giving
advice and encouragement or importuning
the authorities to act.’” Barrett v. Watkins,
919 N.Y.S.2d 569, 572 (3d Dep't 2011)
(quoting Viza v. Town of Greece, , 463
N.Y.S.2d 970, 971 (4th Dep't 1983)).
Importantly,
“[m]erely
furnishing
information to law enforcement authorities,
who are then free to exercise their own
judgment as to whether criminal charges
should be filed, and giving testimony at a
subsequent trial are insufficient to establish
liability.” Barrett, 919 N.Y.S.2d at 572.
25
iii. Probable Cause
McClellan, 439 F.3d at 146; Boyd v. City of
New York, 336 F.3d 72, 77 (2d Cir. 2003).
A grand jury indictment gives rise to a
presumption of probable cause for purposes
of a malicious prosecution claim. See
Bernard v. United States, 25 F.3d 98, 104 (2d
Cir. 1994). However, a showing of “fraud,
perjury, the suppression of evidence or other
police conduct undertaken in bad faith” can
overcome this presumption. Id. (citation
omitted); see also McClellan, 439 F.3d at 145
(holding 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,” and
that, “[i]f 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”) (citing
Colon v. City of New York, 60 N.Y.2d 78,
(N.Y. 1983)); Brogdon v. City of New
Rochelle, 200 F. Supp. 2d 411, 421 (S.D.N.Y.
2002) (“An indictment by a grand jury
creates a presumption of probable cause that
can only be overcome by establishing that the
indictment itself was procured by ‘fraud,
perjury, the suppression of evidence or other
police conduct undertaken in bad faith.’”
(quoting Bernard, 25 F.3d at 104)); Colon, 60
N.Y.2d at 82-83 (“The presumption may be
overcome only by evidence establishing that
the police witnesses have not made a
complete and full statement of facts either to
the Grand Jury or to the District Attorney,
that they have misrepresented or falsified
evidence, that they have withheld evidence or
otherwise acted in bad faith.” (citations
omitted)). If, after construing all inferences
in the light most favorable to plaintiff, a jury
could reasonably find that the indictment was
secured through bad faith or perjury, the issue
of probable cause cannot be resolved by
summary judgment, and it will be left to the
jury to determine whether the indictment was
secured through bad faith or perjury. See
In McClellan, for example, the following
evidence offered by an arrestee against the
prosecuting officer, Smith, was found
sufficient to allow the case to proceed to a
jury on the issue of probable cause, despite a
grand jury indictment, because it could be
concluded that the officer’s “prosecution of
the case was impelled solely by a personal
animus”:
[Smith] was the instigator of
the altercation; may have been
intoxicated; lied to the
arresting
officer
about
McClellan's responsibility for
the altercation; admittedly
was displeased with the
original grand jury result;
supervised the investigation
despite his obvious conflict of
interest; reassigned the case
because the officer originally
assigned ‘wasn't handling the
investigation properly’; urged
the District Attorney's office
that had employed him (and
was to employ him again) to
apply for the second grand
jury; pressured a prosecutor to
make a deal with a putative
witness to give testimony in
the case against McClellan;
eventually procured the sole
witness whose testimony
enabled the case to be
presented to the second grand
jury; and altered his testimony
before the second grand jury
with regard to the placement
of the vehicles after speaking
with an officer who had been
at the scene.
26
439 F.3d at 146. In addition, the Court noted
inconsistences in the officer’s and the
arrestee’s version of events. Id. In Boyd, the
Second Circuit noted the difference between
“a simple conflict of stories or mistaken
memories” and “the possibility that the police
. . . lied in order to secure an indictment.” 336
F.3d at 77.
joint activity or conspiracy between the
Sentosa and County defendants, and that no
documents produced by any party in
discovery support conspiracy or joint
activity. (Sentosa’s Br. 8-11.) For example,
defendants assert that none of the nurse
plaintiffs were able to identify facts that
support claims of joint activity or conspiracy.
(Sentosa’s Br. 10.) The Sentosa defendants
argue that, in the absence of direct,
admissible evidence supporting their claims,
they fail as a matter of law.
b. Analysis
For the following reasons, the Court
concludes that the Sentosa defendants’
arguments as to why plaintiffs’ malicious
prosecution claims against them cannot
survive summary judgment are unpersuasive.
Plaintiffs argue that summary judgment is
not warranted because the evidence on which
the Sentosa defendants rely in their argument
is comprised of “self-serving denials of
wrongdoing.” (Pls.’ Br. 54.) Moreover,
plaintiffs assert that there is strong
circumstantial evidence supporting their
claim, and that is all that is required to
prevail. (Id. at 54-55.) In particular,
plaintiffs argue that the Sentosa defendants
are politically powerful and that they used
this influence to ensure that the plaintiffs
would be prosecuted, even though no patients
were harmed, with the goal of deterring other
nurses from pursuing their legal rights
against Sentosa. (Id. at 58, 61.) In support of
this argument, plaintiffs point to, among
other things, the following pieces of
evidence: (1) the Sentosa defendants decided
to press the DA’s Office to prosecute the
nurses at a meeting they were able to secure
“with a simple telephone call,” (id. at 63); (2)
after the meeting, Spota separately
telephoned Fensterman and invited him to
come to the office for another meeting and a
lunch (id. at 63); (3) the lack of involvement
of the SCPD in the investigation; and (4) the
manner of the investigation by the DA’s
Office prior to seeking an indictment from
the Grand Jury, and the manner in which the
investigation was conducted.38 Moreover,
i. Under Color of State Law
First, the Sentosa defendants argue that
plaintiffs’ Section 1983 claims against them
fail because they were not acting under color
of state law.
(Sentosa’s Br. 4-18.)
Specifically, they argue that discovery has
proven that plaintiffs’ allegations that the
Sentosa defendants pressured the County
defendants to act and then agreed to present
false testimony to the Grand Jury were
wholly conclusory and unsubstantiated, and
therefore their Section 1983 claims should be
dismissed. (Sentosa’s Br. 8.) Plaintiffs
contend that, although they lack direct,
personal knowledge of the joint activity or
conspiracy they allege, there is abundant
circumstantial evidence supporting their
claim. (Pls.’ Br. 54-55.) For the following
reasons, the Court denies the Sentosa
defendants’ motion on this ground.
As noted above, the Sentosa defendants
devote a significant portion of their legal
argument on this issue and their 56.1
statement to developing the point that
plaintiffs have no personal knowledge of any
38
Plaintiffs also point to a transcript of an alleged
recording of statements by Philipson in a meeting with
Filipino nurses in various facilities as further evidence
that he and the other Sentosa defendants were not
27
plaintiffs point to the “egregious perjury”
committed by the Sentosa witnesses. (Id. at
65.)39 Plaintiffs argue that, taking all these
facts into account, and combining them with
the subsequent actions of the County
defendants described above after the meeting
with the Sentosa defendants, they have
created a material issue of fact as to whether
the Sentosa defendants acted under color of
state law under this theory.
by the Sentosa defendants in the Grand Jury
forms the basis of a malicious prosecution
claim. The Supreme Court has expressly
held that a grand jury witness “has absolute
immunity from any § 1983 claim based on the
witness’ testimony,” even if that testimony is
perjurious. Rehberg v. Paulk, 566 U.S. 356,
369 (2012). Such absolute immunity applies
to witnesses in the grand jury, whether
private parties or government officials. San
Filippo, 737 F.2d at 256. As the Second
Circuit has further explained, for a malicious
prosecution claim to survive, it must be based
on misconduct by defendants outside their
perjurious grand jury testimony. Coggins v.
Buonora, 776 F.3d 108, 113 (2d Cir. 2015).
As a threshold matter, the Sentosa
defendants’ reliance on the lack of personal
knowledge by plaintiffs of evidence of a joint
activity and/or conspiracy between the
Sentosa defendants and the County
defendants, and their insistence that direct
evidence is required to sustain their malicious
prosecution claim, are misguided as a matter
of law. First, the Second Circuit has clearly
held that circumstantial evidence alone is not
only sufficient to sustain a Section 1983
claim, but may be the only evidence available
due to the reality that “such conspiracies are
by their very nature secretive operations . . .
.” Pangburn, 200 F.3d at 72. Similarly, no
case law requires that plaintiffs have direct
knowledge of joint activity or a conspiracy to
sustain a Section 1983 claim. Therefore, the
Court rejects the Sentosa defendants’
arguments on this ground.
Turning to the sufficiency of the
circumstantial evidence plaintiffs have set
forth of state action by the Sentosa
defendants (excluding the alleged perjury by
the Sentosa defendants in the Grand Jury
proceeding), the Court does agree that
plaintiffs have not set forth evidence of a
conspiracy to fabricate evidence between the
Sentosa defendants and the County
defendants prior to the Grand Jury
proceeding (and, for this reason, has
determined that the claims against the County
defendants cannot survive summary
judgment). However, construing the facts
and all inferences in the light most favorable
to plaintiffs, a rational jury could find, based
upon the entire record, that the Sentosa
Further, the Court must not and does not
review whether the alleged false testimony
merely supplying information to the DA’s Office, but
were insisting that the plaintiffs be charged and
arrested. In particular, at that meeting with other
nurses, Philipson purportedly stated, inter alia, the
following: “[W]e will be contacting the District
Attorney tomorrow because what they did is actually
a criminal offense, abandoning the patients the way
they did. It’s irresponsible of them to just walk off….
But I feel we can extend an amnesty until tomorrow,
as I’ve said, because after, after that time, I cannot do
anything to pull it back. Once we pull the trigger, it’s
done.” (Pls.’ 56.1 ¶ 72; Ex. NN.) However, because
plaintiffs have not articulated how this recording will
be authenticated and admitted, the Court does not
consider it for purposes of this decision. However,
plaintiffs may still seek to authenticate and introduce
that recording for purposes of trial.
39
Plaintiffs also request that the Court take judicial
notice of instances of corruption allegations involving
Spota.
As a threshold matter, any unproven
allegations of misconduct in other cases by Spota do
not constitute admissible evidence in this case, and are
not facts of which the Court can take judicial notice.
In any event, plaintiffs have provided no link between
those allegations and the circumstances surrounding
this case.
28
defendants exerted influence over the DA’s
Office through Spota, that the Sentosa
defendants were actively encouraging the
criminal prosecution of the plaintiffs, and that
the judgment of the Sentosa defendants as to
whether charges should be brought was
substituted for the judgment of the DA’s
Office. Thus, the Court concludes that there
is evidence that raises a question of material
fact as to whether the Sentosa defendants
were willful participants in the joint activity
with the DA’s Office in the decision to
initiate charges against the plaintiffs and to
arrest and prosecute them, such that they are
state actors for purposes of Section 1983.
dismiss stage or later stage of the proceeding,
where such allegations or evidence are
present. In fact, courts have emphasized that
a conspiracy is not required for there to be
joint action. See, e.g., Powell v. Miller, 104
F. Supp. 3d 1298, 1310 (W.D. Okla. 2015)
(“Although one way to prove willful joint
action is to demonstrate that the public and
private actors engaged in a conspiracy, a
requirement of which is that both public and
private
actors
share
a
common,
unconstitutional goal, evidence that private
persons exerted influence over a state entity,
substituted their judgment for the state entity,
or participated in the decision leading to the
deprivation of rights, is also sufficient to
establish joint action in satisfaction of the
‘color of law’ element of § 1983.”) (citations
omitted); see also Harris v. Sec. Co. of 1370
Sixth Ave., B.D., No. 94 Civ. 2599 (JGK),
1996 WL 556927, at *3 (S.D.N.Y. Oct. 1,
1996) (“[S]ecurity guards, like all private
persons, are considered to act under color of
state law if they are willful participant[s] with
the State or its agents. When a security guard
detains suspects for subsequent arrest by the
police, joint activity with the state occurs
when the police arrest the suspect solely
based on the security guard’s request, without
making any independent investigation of the
matter. To constitute state action there must
be more than a general understanding that the
security guards can call the police for
assistance. The police must allow the
security guard’s judgment about whether
probable cause exists to be substituted for
their own.”) (quotations and citations
omitted).
Based upon the record in this case, the
Court finds inapposite the Sentosa
defendants’ reliance on case law that holds
that, if a plaintiff’s only evidence in support
of a Section 1983 claim is that the private
defendants met with a district attorney, the
claim fails because the “mere allegation of
[such meetings] is [not] sufficient to create a
material issue of fact as to whether something
improper took place during them.” Scotto,
143 F.3d at 115. Although this is correct as a
matter of law, plaintiffs have not “merely”
made such allegations, as explained above.
Thus, the case authority cited by the Sentosa
defendants is not at odds with this Court’s
ruling. Instead, based upon the totality of the
evidence in this case, a reasonable jury could
determine that the Sentosa defendants had a
clear objective of influencing the decisionmaking of the DA’s Office and took a number
of affirmative steps, through that influence,
to set in motion an unlawful arrest and
prosecution of plaintiffs.40
For example, in M & D Sportswear, Inc.
v. PRL U.S.A. Holdings, Inc., No. 02 Civ.
Other courts have similarly allowed such
claims to proceed, either at the motion to
the private defendant made a “telephone call to his
friend, the Chief of Police,” in which he did not
disclose pertinent information and made clear that he
desired an investigation and prosecution of plaintiff).
40
In making such a determination, the jury would be
able to consider the Sentosa defendants’ decisions to
pursue various avenues of action against plaintiffs,
including by securing a personal meeting with Spota.
See, e.g., Merkle, 211 F.3d at 793 (finding relevant that
29
1562(GEL), 2002 WL 31548495, at *3-4
(S.D.N.Y. Nov. 14, 2002), the court allowed
a Section 1983 claim to survive a motion to
dismiss where there were allegations that
manufacturers engaged in “joint action” with
the district attorney’s office and police
department in seizing and destroying a
retailer’s merchandise. The court, citing the
Second Circuit’s decision in Ciambriello,
noted that a private actor could be a willful
participant in state action, without
necessarily satisfying the elements of a
Section 1983 conspiracy claim. Id. at *3
(citing Ciambriello, 292 F.3d at 324). The
court then explained:
complainant, but exercised influence over the
police, such that, the police “felt constrained
to jail the plaintiff notwithstanding the
absence of any legal basis to do so”)
(emphasis in original); Estiverne v. EsernioJenssen, 833 F. Supp. 2d 356, 369 (E.D.N.Y.
2011) (“Here, plaintiffs have presented
evidence that defendants went well beyond
cooperation with ACS. Although defendants
have presented countervailing evidence that
ACS made their decision independently,
plaintiffs’ evidence, viewed in the light most
favorable to them, creates a genuine issue of
material fact as to whether defendants
conspired with ACS in determining to file a
removal petition against Adult Plaintiffs.”).
M&D has clearly alleged that the
designer defendants were not mere
complainants, but were active and
indeed controlling participants in the
investigation.
The Complaint
describes in detail the City
defendants’ reliance on the designer
defendants, and the designers’
consequent
influence
on
the
investigation . . . Indeed, if credited,
the allegations in the Complaint could
lead a reasonable factfinder to
conclude that the designer defendants
effectively
controlled
the
investigation, the decision to
prosecute, and the failure to retrieve
the seized apparel before it was
destroyed . . . These detailed
allegations, if established, would be
more than sufficient to establish joint
participation on the parts of the
designer defendants and the City
defendants in the sequence of events
that led to the destruction of the
seized apparel.
In short, the Court concludes that there is
a material question of fact as to whether the
Sentosa defendants acted under color of state
law, and, therefore, the Sentosa defendants
are not entitled to summary judgment on this
issue.
ii. Initiation
Second, with respect to the Sentosa
defendants’ argument as to the initiation of
the criminal proceeding, they assert that:
(1) the Sentosa defendants did not prosecute
plaintiffs; (2) the Grand Jury indictment
severed any chain of causation between any
actions by the Sentosa defendants and the
resulting criminal proceeding; and (3) the
exercise of independent judgment by Lato
severed the chain of causation.
(See
Sentosa’s Br. 19-21.)
The Sentosa
defendants acknowledge this Court’s prior
ruling that “the Sentosa defendants cannot
hide behind the decision of the DA to
prosecute and the subsequent indictment . . .
when it was the Sentosa defendants who
allegedly spurred the County defendants to
act and fed them with false testimony in
pursuit of that endeavor.” (Memorandum &
Order, ECF No. 31 at 43; see Sentosa’s Br.
21.) However, they state that there is no
Id. at 4 (citations omitted); see also
Wagenmann v. Adams, 829 F.2d 196, 211
(1st Cir. 1987) (affirming a jury verdict
against a private citizen where jury could
rationally find that the citizen was not a mere
30
evidence that they “spurred” the County
defendants to act or that any false testimony
was presented either to Lato or to the Grand
Jury, and that all evidence is to the contrary.
(Sentosa’s Br. 21.) The Sentosa defendants
point to the depositions that indicate that,
other than the initial meeting on May 31,
2006, the only substantive contact that the
Sentosa defendants had with Lato’s
subsequent investigation related to O’Connor
allowing Lato to tour the Avalon facility and
providing him with documents. (Id.)41
The Court agrees with plaintiffs that there
is sufficient evidence of initiation by the
Sentosa defendants to survive summary
judgment on this issue. First, the Sentosa
defendants’ argument that they should not be
liable for malicious prosecution because they
did not prosecute plaintiffs ignores the basic
and well-established rule that private
actors—although they do not themselves
arrest or prosecute individuals—may be held
liable for a false arrest or malicious
prosecution. This is especially true where, as
here, there is evidence that the prosecuting
office was influenced to take certain actions
due to conduct of the private defendants. See,
e.g., Merkle, 211 F.3d at 791 (holding that,
“[a]lthough the charges against [plaintiff]
were filed and the actual prosecution
conducted by Detective Han,” there was
evidence that the police department would
not have pursued the criminal prosecution in
the absence of the private defendants’
conduct). As discussed supra, construing the
evidence of the meetings and contacts with
the DA’s Office most favorably to plaintiffs
in light of the entire record, there is sufficient
evidence that the Sentosa defendants went
well beyond supplying information and,
instead, were actively encouraging that the
plaintiffs be charged and arrested.
Plaintiffs argue that the conduct of the
Sentosa defendants in this case can be
characterized as initiation of a prosecution
because they did not merely report
allegations of a crime to the police, but
instead importuned the District Attorney to
prosecute plaintiffs, even after the police
refused to act.42 (Pls.’ Br. 71.) Plaintiffs
allege that this was done “to make an
example of the nurses and their counsel, to
assure that none of the other Filipino nurses
attempted to follow in the footsteps of the
plaintiffs.” (Id. at 72.) With respect to the
Sentosa defendants’ argument that any chain
of causation between their actions and the
resulting criminal proceeding was severed,
plaintiffs argue that a chain of causation is not
broken where the wrongdoer can reasonably
foresee that the actions undertaken would
lead to a decision resulting in prosecution of
the defendant.
(Id.)
Because Lato’s
investigation was influenced by pressure
exerted by the Sentosa defendants and by the
false information they provided, plaintiffs
argue, the chain of causation was not broken
by that investigation. (Id. at 72-73.)
Turning to the Sentosa defendants’ other
arguments, the Court disagrees that the Grand
Jury indictment severs any chain of causation
between the Sentosa defendants’ actions and
the resulting indictment as a matter of law.
Construing the facts and all inferences in the
light most favorable to plaintiffs, a jury could
find that the Grand Jury indictment was based
on misrepresentations made by the Sentosa
defendants themselves, and, therefore, that it
41
The Sentosa defendants do not include here that
defense counsel Sarah C. Lichtenstein sent a fax to
Lato, although it is not disputed that she did.
discussed supra), plaintiffs point to an alleged
recording in which they assert Philipson publicly
threatened all the plaintiffs with arrest and
prosecution, specifically stating that they were going
to “pull the trigger” with the District Attorney. (Pls.’
Br. at 71-72).
42
Moreover, although not considered in connection
with this summary judgment motion (for reasons
31
was a continuation of the effects of the
Sentosa defendants’ alleged wrongdoing.
See Kerman v. City of New York, 374 F.3d 93,
127 (2d Cir. 2004) (“The fact that [an]
intervening third party may exercise
independent judgment in determining
whether to follow a course of action
recommended by the defendant does not
make acceptance of the recommendation
unforeseeable or relieve the defendant of
responsibility.”).
Further, the Court
concludes that plaintiffs have set forth
sufficient evidence to create an issue of
material fact as to whether Spota and Lato
exercised independent judgment that severs
any chain of causation between the Sentosa
defendants’ actions and the resulting
indictment. Despite the fact that Lato stated
that his investigation of plaintiffs was
conducted independently, he testified that he
was aware that the Sentosa defendants’
received an audience with Spota due to
Spota’s relationship with Fensterman, and,
when taken into consideration alongside the
alleged misrepresentations made by the
Sentosa defendants in the Grand Jury,
whether Lato’s investigation was conducted
independently for purposes of establishing a
break in the chain of causation is a question
for the jury.
evidence that any of the defendants agreed to
provide false testimony, that the Sentosa
defendants pressured the County defendants
to prosecute plaintiffs, or that Lato
committed any wrongdoing, there is no basis
to rebut this presumption. (See Sentosa’s Br.
22; Cnty.’s Br. 11-13.) Plaintiffs contend
that the presumption should be rebutted,
pointing to, among other things, the
following: (1) the blatant perjury by the
Sentosa witnesses;43 (2) the admission of
prejudicial evidence; (3) the withholding of
exculpatory evidence; (4) the fact that highly
pertinent questions by the grand jurors were
ignored; (5) the fact that the jurors were led
to believe that the nurse plaintiffs walked out
during a shift; (6) improper charges on the
law; (7) the use of hearsay to indict Vinluan;
and (8) Lato’s refusal to present the
Education
Department
findings,
as
irregularities warranting rebuttal. (Pls.’ Br. at
73-74.)
With respect to false and/or misleading
statements to the Grand Jury, plaintiffs point
to, among other things, O’Connor’s
testimony that gave the impression that the
nurse plaintiffs did not communicate their
grievances before resigning en masse, and
Luyun’s false statements.
In addition,
plaintiffs note that the multiple references to
the nurses “walking out” may have confused
the jurors as to whether the nurses left during
their shifts. Moreover, plaintiffs assert that
the Sentosa defendants’ decision to contact
the Department of Education, the SCPD, and
the DA’s Office about the resignation, and
their desire that they be criminally prosecuted
as expressed by Phillipson at the meeting(s)
he held with other nurses, demonstrates that
the Sentosa defendants’ misstatements or
iii. Probable Cause
The Court now addresses defendants’
argument that there was probable cause for
the prosecution of plaintiffs. First, the Court
acknowledges that defendants are correct that
the Grand Jury indictment creates a
rebuttable presumption of probable cause.
(Sentosa’s Br. 21-22; Cnty.’s Br. 10-11.) The
defendants add that, because there is no
43
As discussed in greater detail infra, the Court agrees
that the Sentosa defendants are entitled to absolute
immunity for their testimony before the Grand Jury.
See Rehberg, 566 U.S. 356. However, grand jury
testimony can be used at summary judgment or at trial
for a purpose other than for its truth, Marshall v.
Randall, 719 F.3d 113 (2d Cir. 2013), and, obviously,
the Court must examine such testimony in the instant
case to determine whether the presumption of probable
cause could be rebutted. Thus, the Court examines the
alleged false testimony here.
32
misleading testimony in the Grand Jury were
made in bad faith.
acted out of a concern that valuable supplies
were being stolen or whether he criminally
prosecuted [plaintiff] . . . is a disputed
question of fact for a jury and not a question
of law for the trial court.”). Therefore, the
Court rejects the Sentosa defendants’
argument that summary judgment on
plaintiffs’ malicious prosecution claim is
warranted because there was probable cause
to indict plaintiffs, and defendants’ motion
for summary judgment on this ground is
denied.
Construing these facts and all inferences
in the light most favorable to plaintiffs as the
non-moving party, the Court concludes that a
reasonable juror could infer from these facts,
when taken together, that the indictment was
procured through bad faith and/or perjury
based upon the testimony in the Grand Jury,
as well as other alleged prosecutorial errors
and/or irregularities in the Grand Jury
presentation.
***
Further, plaintiffs have created a material
issue of fact as to whether probable cause
existed independent of the Grand Jury
indictment. There is evidence that the nurse
plaintiffs did not walk out on their shifts; that
the nurse plaintiffs had provided notice of
their intent to resign if issues with their
employment were not resolved; and that there
were adequate staffing options such that their
resignation would not create any safety issues
for their patients. Construing these facts and
all inferences in the light most favorable to
plaintiffs as the non-moving party, a
reasonable jury could determine there was
not probable cause to prosecute plaintiffs.
For these reasons, the Court rejects the
Sentosa defendants’ argument that they
should be granted summary judgment on
plaintiffs’ malicious prosecution claims
under federal or state law.44
2. False Arrest
The Sentosa defendants also argue that
plaintiffs’ false arrest claims fail as to them
because they did not confine plaintiffs, and
because they did not cause the arrest.
(Sentosa’s Br. 23-24.)
a. Legal Standard
In sum, like the question of whether the
presumption of probable cause generally
applicable to grand jury indictments has been
rebutted here, the question of whether there
was independent probable cause, is a factintensive question which, under the particular
circumstances of this case, needs to be
resolved by a jury. See Merkle, 211 F.3d at
794 (“[W]hether [the private defendant]
Claims for false arrest brought under
Section 1983 are “substantially the same as
claims for false arrest . . . under state law.”
Jocks, 316 F.3d at 134 (quoting Weyant, 101
F.3d at 852). To prevail under New York
law, 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 contest
44
The Court notes that, for purposes of the summary
judgment motion, the Sentosa defendants do not argue
that there is insufficient evidence with respect to the
“favorable termination” or “malice” elements. In any
event, the Court concludes that there is uncontroverted
evidence of a favorable termination, such that this
element is met for purposes of summary judgment. In
addition, with respect to malice, it is well settled that a
jury may infer actual malice from the absence of
probable cause. See, e.g., Maxwell v. City of New
York, 554 N.Y.S.2d 502, 505 (1st Dep’t 1990). Thus,
given the factual disputes about probable cause (as
well as the other evidence in the record discussed
supra), summary judgment on the malice requirement
is unwarranted.
33
the confinement; and (4) confinement was
not otherwise privileged.” Conte v. Cty. of
Nassau, No. 06-CV-4746 (JFB)(ETB), 2008
WL 905879, at *8 (E.D.N.Y. Mar. 31, 2008)
(citations omitted).
Carrington v. City of New York, 607
N.Y.S.2d 721, 722 (2d Dep’t 1994))).
b. Analysis
The Sentosa defendants’ first argument as
to why plaintiffs’ false arrest claim fails is
that they did not confine plaintiffs.
(Sentosa’s Br. 23.) However, as the Second
Circuit has held, individuals can be held
liable for false arrest if they affirmatively
instigate or procure an arrest. King, 111 F.3d
at 257.
The Second Circuit has explained that
“[t]o hold a defendant liable as one who
affirmatively instigated or procured an arrest,
a plaintiff must show that the defendant or its
employees did more than merely provide
information to the police.” King v. Crossland
Sav. Bank, 111 F.3d 251, 257 (2d Cir. 1997).
Merely identifying a potential culprit or
erroneously reporting a suspected crime,
without any other action to instigate the
arrest, is not enough to warrant liability for
false arrest. Id. Instead, “a successful false
arrest claim requires allegations that the
private defendant ‘affirmatively induced or
importuned the officer to arrest . . . .’”
Delince v. City of New York, No. 10 Civ.
4323(PKC), 2011 WL 666347, at *4
(S.D.N.Y. Feb. 7, 2011) (quoting LoFaso v.
City of New York, 886 N.Y.S.2d 385, 387 (1st
Dep’t 2009)). Thus, where an individual
instigates an arrest and does so based on
knowingly false information, that individual
may be held liable for false arrest.
Weintraub, 423 F. Supp. 2d at 56 (“Contrary
to defendants’ argument, even where there is
no claim that a defendant actually restrained
or confined a plaintiff, a claim of false arrest
or false imprisonment may lie where a
plaintiff can ‘show that . . . defendants
instigated his arrest, thereby making the
police . . . agents in accomplishing their intent
to confine the plaintiff.’” (quoting
Here, as discussed in detail supra,
plaintiffs have created a material issue of fact
as to whether the Sentosa defendants
affirmatively instigated or procured the
arrest. First, as background, they have
provided evidence that the Sentosa
defendants pursued a number of avenues for
redress for the resignation, including by filing
lawsuit in the New York State Supreme
Court, requesting that the Department of
Education revoke the nurse plaintiffs’
licenses and/or limited permits, filing a police
report with the SCPD, and meeting with
Spota when the SCPD declined to take
action.45
Second, based upon the
circumstances surrounding the meeting with
Spota, as well as the subsequent actions of the
Sentosa defendants following the meeting, a
rational jury could reasonably infer the
Sentosa defendants instigated or procured the
nurse plaintiffs’ arrest. Therefore, there is no
basis to grant summary judgment on this
ground.
45
The Court is not suggesting that pursuing redress for
perceived wrongdoing is inherently problematic, or
that, by itself, it would create a material issue of fact
as to whether the Sentosa defendants had instigated
plaintiffs’ arrest. Indeed, such a conclusion would be
contrary to well-established law that merely reporting
information to authorities does not constitute
actionable conduct for purposes of false arrest claims.
However, a jury could infer from the fact that the
Sentosa defendants pursued many avenues of redress,
including by contacting the DA’s Office after the
SCPD declined to take action against plaintiffs, when
considered alongside other evidence supporting
plaintiffs’ other assertions, that the Sentosa defendants
in fact instigated plaintiffs’ confinement and intended
such a result.
34
Hauppauge, NY 11788 and Garrett W.
Swenson, Jr., Esq., 76 Bay Road,
Brookhaven, NY 11719.
Defendants
Leonard Lato and the County of Suffolk are
also represented by Brian C. Mitchell.
Defendants Sentosa Care, LLC, Avalon
Gardens Rehabilitation and Health Care
Center, Prompt Nursing Employment
Agency, LLC, Francris Luyun, Bent
Philipson, and Berish Rubinstein are
represented by Matthew Didora, Sarah C.
Lichtenstein, and John Scanlan Cahalan,
Abrams Fensterman, 1111 Marcus Avenue,
Suite 107, Lake Success, NY 11042. Sarah
C. Lichtenstein also represents defendants
Susan O’Connor and Nancy Fitzgerald.
36
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