Battisti v. Rice et al

Filing 61

MEMORANDUM & ORDER granting 52 Motion for Summary Judgment; The County Defendants motion for summary judgment (Docket Entry 52) is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE. To the extent the County Defendants' cross -claims against Gersbeck relate to the claims dismissed herein, their cross-claims are also DISMISSED WITH PREJUDICE. Additionally, Plaintiff's claim against Gersbeck is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/9/2017. C/ECF; C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
ANTHONY BATTISTI,
Plaintiff,

MEMORANDUM & ORDER
10-CV-4139(JS)(AYS)

-against–
KATHLEEN RICE, ADA MICHAEL CANTY,
ADA CAROLYN KELLY, ADAs JOHN DOE 1-5,
DETECTIVE JASON GAERTNER, SERGEANT
ROBERT GALGANO, OFFICERS JOHN DOE 1-5,
THE COUNTY OF NASSAU, and TIMOTHY
GERSBECK,
Defendants.1
-------------------------------------X
APPEARANCES
For Plaintiff:
Neil S. Torczyner, Esq.
Steven J. Harfenist, Esq.
Harfenist Kraut & Perlstein, LLP
3000 Marcus Avenue, 2d Floor East
Lake Success, New York 11042
For the County
Defendants:

Donna A. Napolitano, Esq.
Daniel James Evers, Esq.
Berkman, Henoch, Peterson,
Peddy & Fenchel, P.C.
100 Garden City Plaza
Garden City, New York 11530
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

The Clerk of the Court is directed to TERMINATE Kathleen Rice
and the County of Nassau as parties to this action. On
November 16, 2016, the claims against these Defendants were
voluntarily dismissed. (Stip. & Order, Docket Entry 58.)
1

For Timothy
Gersbeck:

Timothy Gersbeck, pro se2
54 Balsam Lane
Levittown, NY 11756

SEYBERT, District Judge:
This case involves claims for false arrest and malicious
prosecution by Plaintiff Anthony Battisti (“Plaintiff”) against
Defendants

Assistant

District

Attorney

Michael

Canty

(“ADA

Canty”), Assistant District Attorney Carolyn Kelly (“ADA Kelly”),
Detective Jason Gaertner (“Detective Gaertner”), Sergeant Robert
Galgano

(“Sergeant

Defendants”),

and

Galgano”)

Timothy

(collectively

Gersbeck

the

(“Gersbeck”).

“County
Currently

pending before the Court is the County Defendants’ motion for
summary judgment.

(Defs.’ Mot., Docket Entry 52.)

For the

following reasons, the County Defendants’ motion is GRANTED.
BACKGROUND
I.

Factual Background3
A.

The Assault and Preliminary Investigation
On

January

23,

2009,

Plaintiff’s

ex-wife,

Patricia

Battisti, was assaulted outside her home in Franklin Square, New

The County Defendants notified the Court that Mr. Gersbeck’s
address has changed. The Clerk of the Court is directed to
update his address as indicated above.
2

The following material facts are drawn from the County
Defendants’ Local Civil Rule 56.1 Statement and Plaintiff’s
Local Civil Rule 56.1 Counterstatement. Any relevant factual
disputes are noted. All internal quotation marks and citations
have been omitted.
3

2

York.

(Defs.’ 56.1 Stmt., Docket Entry 52-2, ¶¶ 35, 38, 51.)

After the attack, Detective Gaertner, a detective with the Nassau
County Police Department, arrived at the scene. (Defs.’ 56.1 Stmt.
¶ 35.) He learned that the suspected assailant, Gersbeck, had been
apprehended by two men after he fled the scene of the assault.
(Defs.’ 56.1 Stmt. ¶ 36.)
Dashner

and

Sergeant

At least two people at the scene, Brian

Joseph

Pizzimenti,

heard

Gersbeck

say

something to the effect of “You should go back to the house before
someone finishes the job” and “I was hired by Tony.”

(Defs.’ 56.1

Stmt. ¶ 37; Supporting Dep., Defs.’ Ex. C, Docket Entry 52-6, at 2;
Pizzimenti Crim. Tr., Defs.’ Ex. PPP, Docket Entry 52-71, 1226:1020.)4
After Gersbeck was arrested, Detective Gaertner searched
the area and directed officers to call the Crime Scene Unit to
gather evidence. (Defs.’ 56.1 Stmt. ¶¶ 40-42.) Detective Gaertner
discovered two blue latex gloves on the path Gersbeck took to flee
the scene.

(Defs.’ 56.1 Stmt. ¶ 43.)

Detective Gaertner also

instructed that a black Jeep belonging to Gersbeck be impounded to
preserve any evidence inside.

(Defs.’ 56.1 Stmt. ¶ 45.)

At some

point during the preliminary stages of the investigation, Sergeant

With the exception of transcripts, the Court will use the
pagination assigned by the Electronic Case Filing System when
referring to the exhibits. The Court will refer to deposition
transcripts (“Dep. Tr.”), trial testimony (“Crim. Tr.”) and
testimony at administrative proceedings (“Admin. Tr.”) by the
transcript page and line number.
4

3

Galgano arrived, although the parties dispute whether he provided
any direction to Detective Gaertner or others regarding the conduct
of

the

investigation.

(Defs.’

56.1

Stmt.

¶

44;

Pl.’s

56.1

Counterstmt., Docket Entry 54-1, ¶ 44.)
Next, Detective Gaertner, Sergeant Galgano, and another
officer went to Winthrop Hospital to speak to Ms. Battisti and
photograph a wound she suffered to her neck.
¶ 46.)

(Defs.’ 56.1 Stmt.

Ms. Battisti stated that she was opening the front door of

her home after a shopping trip when “an unknown male put his hand
around her mouth, stabbed her in the back of her neck with a sharp
instrument, told her that ‘if you tell anyone, I’ll kill your son
and daughter,’ pushed her to the ground and ran away.”
56.1 Stmt. ¶ 47.)
Timothy Gersbeck.

(Defs.’

Afterward, she identified the individual as
(Defs.’ 56.1 Stmt. ¶ 47.)

When they returned

to the scene, “a sharpened screwdriver was found inside a pair of
white latex gloves” near where Gersbeck was apprehended, which was
later determined to be the weapon used in the attack.

(Defs.’

56.1 Stmt. ¶¶ 48-49.)
B.

Gersbeck’s Initial Statements
Gersbeck

was

taken

to

the

police

precinct

for

questioning and gave a statement to Detective Ronald Rispoli
(“Detective Rispoli”).

(Defs.’ 56.1 Stmt. ¶¶ 51-52.)

Gersbeck

admitted that he “put stuff out of order,” and the statement went
through between six and eight drafts.
4

(Pl.’s 56.1 Counterstmt.

¶ 52; Gersbeck Dep. Tr., Defs.’ Ex. CCC, Docket Entry 52-58, 19:2020:3.)

The County Defendants allege that several drafts were

prepared because “Gersbeck kept talking, told Rispoli things out
of order/context, left some information out, and kept remembering
other details.”

(Defs.’ 56.1 Stmt. ¶ 53.)

The parties dispute

whether Gersbeck read the final statement before signing it.
(Defs.’ 56.1 Stmt. ¶ 52; Pl.’s 56.1 Counterstmt. ¶ 52.) Afterward,
Detective Gaertner reviewed the statement and spoke with Gersbeck
as part of the investigation, including to obtain Gersbeck’s
consent to search his impounded Jeep and cell phone.
Stmt. ¶¶ 54, 56.)

(Defs.’ 56.1

During this time, Plaintiff’s attorney called

Sergeant Galgano and asked if Plaintiff should report to the
precinct, and he responded that it was not necessary for several
reasons,

including

because

“the

investigation

was

in

the

preliminary stages . . . and there was not enough at that point to
look at Plaintiff as a suspect or take him into custody.”

(Defs.’

56.1 Stmt. ¶ 58.)
On

January

24,

2009

at

approximately

4:00

a.m.,

Detective Rispoli and Detective Gaertner took Gersbeck to the
Nassau

County

District

Attorney’s

Office

(“NCDAO”)

for

a

videotaped statement. (Defs.’ 56.1 Stmt. ¶ 59.) The parties agree
that at this point, Gersbeck had “been up for about twenty-four
hours with no sleep and was confused and nervous.”
Stmt. ¶ 60; Pl.’s 56.1 Counterstmt. ¶ 60.)
5

(Defs.’ 56.1

Gersbeck said that he

met Plaintiff in 2002 or 2003 when they worked together at a
container company and they “became friends because they both were
interested in racing stock cars.”5

(Defs.’ 56.1 Stmt. ¶ 63.)

He

said that Plaintiff was an officer with the New York City Police
Department (“NYPD”) and began talking about killing his ex-wife
because he did not want to continue to make child support payments
of approximately $3,000 a month.
67.)

(Defs.’ 56.1 Stmt. ¶¶ 64, 65,

Gersbeck said Plaintiff specifically asked him in 2008 if he

would kill Ms. Battisti if Plaintiff paid him.
¶ 68.)

(Defs.’ 56.1 Stmt.

He also stated that when he was incarcerated in Nassau

County Correctional Center in 2007, Plaintiff visited him and told
him that if Gersbeck did not formulate a plan to kill Ms. Battisti,
Plaintiff would make sure he remained in jail.
¶¶ 66, 119.)

(Defs.’ 56.1 Stmt.

He said that Plaintiff “got rid” of several traffic

tickets for him, which Plaintiff later used as leverage to try to
get him to kill Ms. Battisti.

(Defs.’ 56.1 Stmt. ¶¶ 69-70.)

Plaintiff objects to the Court’s consideration of Gersbeck’s
statements to the NCDAO on hearsay grounds. (See Pl.’s
Counterstmt. ¶¶ 63-110.) However, they are not being offered to
“prove the truth of the matter asserted.” FED. R. EVID.
801(c)(2). As set forth more fully infra, the statements are
being offered to show the information ascertained by the County
Defendants during the investigation which formed the basis for
the determination of probable cause. See, e.g., Sandor v. Safe
Horizon, Inc., No. 08-CV-4636, 2011 WL 115295, at *7 (E.D.N.Y.
Jan. 13, 2011) (holding that statements offered to show the
information available to managers when they decided not to
promote plaintiff which demonstrated their state of mind were
not hearsay in employment discrimination case). Accordingly,
Plaintiff’s objections are disregarded.
5

6

During 2008 and 2009, he said that Plaintiff mentioned
killing Ms. Battisti approximately fifty times, and on a few
occasions, discussed methods of killing Ms. Battisti at either
Plaintiff’s mother’s house or the Franklin Square Fire Department
firehouse.

(Defs.’ 56.1 Stmt. ¶¶ 72, 74, 75.)

Gersbeck stated

that, on one occasion, Plaintiff told him he had a shotgun Gersbeck
could use to kill Ms. Battisti. (Defs.’ 56.1 Stmt. ¶ 76.) Gersbeck
said that Plaintiff offered him $5,000 to kill Ms. Battisti, and
that in March 2008, Plaintiff made several payments to him in cash
totaling $2,500 as partial payment for killing her.
Stmt. ¶¶ 79-80.)

(Defs.’ 56.1

Gersbeck said that Plaintiff received the money

from his cousin, the owner of Royal Carting Company. (Defs.’ Stmt.
¶ 80.) After he received the money, Gersbeck stated that Plaintiff
began harassing him to kill Ms. Battisti, but Plaintiff was
“stalling and just wanted to give the money back.”
Stmt. ¶ 82.)

(Defs.’ 56.1

When he tried to give it back, he said that Plaintiff

would not let him, and told him that he would get Gersbeck’s
warrants and tickets reinstated.

(Defs.’ 56.1 Stmt. ¶¶ 83-84.)

Later, in September 2008, Gersbeck said Plaintiff “got
really serious about killing [her]” after Ms. Battisti sought
reimbursement for $4,000 to $5,000 in medical expenses for the
couple’s

children.

(Defs.’

56.1

Stmt.

¶¶

85-86.)

Around

Christmas, Gersbeck saw Ms. Battisti at a gas station in her
neighborhood, and he followed her home with the intention of
7

killing her.

(Defs.’ 56.1 Stmt. ¶ 90.)

However, he saw an

ambulance in the neighborhood and noticed that the volunteer fire
department

(including

Plaintiff)

was

arriving

on

the

scene.

(Defs.’ 56.1 Stmt. ¶¶ 90-91.) Gersbeck said that he told Plaintiff
he was going to kill Ms. Battisti, but Plaintiff told him to leave
and asked him to meet at the firehouse later; when they met,
Plaintiff allegedly made an additional $300 payment for the murder.
(Defs.’ 56.1 Stmt. ¶ 91.)
Gersbeck said that about a week and a half before the
attack, he met Plaintiff at the fire house to discuss killing Ms.
Battisti, and Plaintiff indicated that he wanted to “get it done.”
(Defs.’ 56.1 Stmt. ¶¶ 92-93; Gersbeck Video Stmt., Defs.’ Ex. H,
Docket Entry 52-11, at 7.)

Gersbeck also mentioned that he saw a

“blonde female police officer” at the firehouse during the meeting
with Plaintiff.

(Defs.’ 56.1 Stmt. ¶ 113.)

On January 23, 2009, Gersbeck said that Plaintiff called
him and asked if they were “on” for that day.
¶ 95.)

(Defs.’ 56.1 Stmt.

When Gersbeck asked what he meant, he said that Plaintiff

stated that he was going upstate with his children and Ms. Battisti
would be home alone.

(Defs.’ 56.1 Stmt. ¶ 95.)

Later that

afternoon, Gersbeck said that Plaintiff called him to tell him to
wait until after 7:00 p.m. to go to Ms. Battisti’s home because he
was leaving later than expected to travel upstate.
Stmt. ¶ 96.)

(Defs.’ 56.1

Gersbeck told Plaintiff he needed money for gas, and
8

Plaintiff told him he would leave $20 outside his mother’s house,
which according to Gersbeck, he never retrieved.

(Defs.’ 56.1

Stmt. ¶ 97.)
Gersbeck stated that he arrived at Ms. Battisti’s home
around 5:45 p.m. and waited for her to come home. (Defs.’ 56.1
Stmt. ¶¶ 98-99.)

When she arrived, Gersbeck put on a pair of blue

surgical gloves and approached her while she was walking to the
front door.

(Defs.’ 56.1 Stmt. ¶¶ 101-02.)

After he came up

behind her, he “accidentally stepped on her leg and caused her to
fall into the front door” and after the front door opened, she
fell onto the floor.6

(Defs.’ 56.1 Stmt. ¶ 102.)

At this point,

Gersbeck said he became scared and started to run away, and as he
was running, he took off the blue gloves and dropped them. (Defs.’
56.1 Stmt. ¶¶ 103-04.)

Gersbeck also explained that at that time,

he was carrying a small screwdriver in a pair of white surgical
gloves in his pocket that were given to him by Plaintiff.
56.1 Stmt. ¶ 105.)

(Defs.’

Gersbeck maintained that he had left the

screwdriver inside the gloves in the console of his car since

The transcript of the 911 call indicates that Ms. Battisti told
the dispatcher that “someone stabbed [her] in the back of the
neck,” and that he said “he was going to kill [her] son and
daughter.” (Defs.’ 56.1 Stmt. ¶ 130; Pl.’s 56.1 Counterstmt.
¶ 130; Defs.’ Ex. T, Docket Entry 52-23, at 1-4.) When the
dispatcher asked if she knew the attacker, she said “I don’t
know my ex-husband probably could of sent someone here.”
(Defs.’ 56.1 Stmt. ¶ 130; Pl.’s 56.1 Counterstmt. ¶ 130; 911
Transcript, Defs.’ Ex. T, Docket Entry 52-23, at 1-4.)
6

9

receiving it from Plaintiff approximately four months earlier.
(Defs.’ 56.1 Stmt. ¶ 105.) He also stated that Plaintiff sharpened
the screwdriver and placed it inside the gloves, and he never
removed the screwdriver from the gloves during the months it was
in his car.

(Defs.’ 56.1 Stmt. ¶¶ 106-07.)

He claimed that when

he approached Ms. Battisti he “never took the screwdriver out of
his pocket, did not have any weapon in his hand, never put the
screwdriver to her neck, and was just going to scare her.” (Defs.’
56.1 Stmt. ¶ 108.)

Gersbeck subsequently testified that he told

the truth when gave the statement to Detective Rispoli and during
the videotaped confession.

(Defs.’ 56.1 Stmt. ¶ 62; Gersbeck Dep.

Tr. 113:18-23.)
Gersbeck was charged and arraigned for Attempted Murder
in the Second Degree, Criminal Possession of a Weapon in the Third
Degree, and Petit Larceny.
C.

(Defs.’ 56.1 Stmt. ¶ 114.)

The Investigation and Indictments
Detective Gaertner attempted to verify the information

provided by Gersbeck.

Along with Detective Galgano and Detective

Gregory Celantano (“Detective Celantano”), he went to Plaintiff’s
mother’s home and discovered “a $20 bill under a Belgium block at
the top of the driveway,” which was photographed and taken into
evidence. (Defs.’ 56.1 Stmt. ¶ 116.) Detective Gaertner confirmed
that the owners of Royal Carting Company, from whom Plaintiff
allegedly obtained Gersbeck’s fee, were Plaintiff’s relatives.
10

(Defs.’ 56.1 Stmt. ¶ 117.)

He learned that Plaintiff visited

Gersbeck while he was incarcerated at NCCC in 2007.
Stmt. ¶ 119.)

(Defs.’ 56.1

Further, video footage corroborated that Plaintiff

and Gersbeck met on January 16, 2009 at the fire house and a female
police officer was there as well.

(Defs.’ 56.1 Stmt. ¶ 120.)

Records also showed that an EZ Pass registered to Plaintiff crossed
the Throgs Neck Bridge into the Bronx at approximately 7:04 p.m.
the day of the attack and that Plaintiff had withdrawn $7,000 from
his bank account in February 2008, a month before Gersbeck claimed
to have received $2,500 from Plaintiff to kill Ms. Battisti.
(Defs.’ 56.1 Stmt. ¶¶ 80, 126, 128; Pl.’s 56.1 Counterstmt. ¶ 126.)
The parties dispute whether either the NCDAO or Detective Gaertner
confirmed that Gersbeck had previous traffic tickets which he
alleged Plaintiff threatened to reinstate if he did not kill Ms.
Battisti.

(Defs.’ 56.1 Stmt. ¶¶ 69, 143; Pl.’s Counterstmt.

¶ 143.)
Detective

Gaertner

became

aware

that

Family

Court

proceedings between Plaintiff and Ms. Battisti were initiated
during the fall of 2008, which was consistent with Gersbeck’s
earlier statement that in September 2008, Plaintiff “got really
serious about killing [her].” (Defs.’ 56.1 Stmt. ¶¶ 85, 147; Pl.’s
56.1 Counterstmt. ¶ 147; Gaertner Dep. Tr., Defs.’ Ex. DDD, Docket
Entry 52-59, 135:16-136:2.)

The NCDAO obtained cell phone records

and cell site data which confirmed that Gersbeck and Plaintiff had
11

communicated on the day of the attack around the times Gersbeck
indicated.

(Defs.’ 56.1 Stmt. ¶¶ 150-51.)

Statements were

obtained from Franklin Square volunteer firefighters regarding
conversations with Plaintiff the night of the attack, including a
statement indicating that Plaintiff told one individual that he
was upstate, when according to cell site data, he was in Queens,
and another statement indicating that after that call, he said “I
am home with the kids what do you mean” even though he already
knew about the incident at his ex-wife’s home.
¶¶ 206-07.)

(Defs.’ 56.1 Stmt.

Records from the Franklin Square Fire House also

confirmed that the Fire Department (and Plaintiff) responded to a
call on Ms. Battisti’s street on December 15, 2008, consistent
with Gersbeck’s statement that he followed Ms. Battisti home with
the intention of killing her before Christmas, but left after
speaking to Plaintiff.

(Defs.’ 56.1 Stmt. ¶¶ 90-91, 162.)

Detective Gaertner also learned additional information
about the nature of Ms. Battisti and Plaintiff’s relationship after
he accompanied Ms. Battisti to Family Court to file a family
offense petition.

(Defs.’ 56.1 Stmt. ¶ 121.)

The petition stated

that Plaintiff allegedly stalked Ms. Battisti and contacted her
regularly after she requested that he stop.

(Defs.’ 56.1 Stmt.

¶ 121; Family Offense Pet., Defs.’ Ex. N, Docket Entry 52-17,
at 1.)

It also stated that Plaintiff had threatened to kill her

in 2003 and told her he would be able to get away with it.
12

(Family

Offense Pet. at 3-4.)
of Protection.

Thereafter, Ms. Battisti filed for an Order

(Family Offense Pet. at 3-4.)

Detective Gaertner

and NCDAO subsequently received a copy of Plaintiff’s Internal
Affairs Bureau (“IAB”) file which also contained information about
allegations of domestic violence.

(Defs.’ 56.1 Stmt. ¶ 127.)

In February 2009, the NCDAO entered into a debriefing
agreement with Gersbeck and conducted several debriefing sessions
with him.

(Defs.’ 56.1 Stmt. ¶ 133.)

Detective Gaertner was

notified that the NCDAO was taking over the investigation and,
afterward, periodically assisted NCDAO with its investigation.
(Defs.’ 56.1 Stmt. ¶¶ 135-36; Gaertner Dep. Tr. 61:2-10.)

At one

of the debriefing sessions, Gersbeck learned that Ms. Battisti had
sustained an injury to the back of her neck during the attack. At
that point, Gersbeck contradicted his earlier statements and said
that he had the screwdriver in his hand when he approached her and
that he tried to stab her.

(Defs.’ 56.1 Stmt. ¶ 138; Gaertner

Dep. Tr. 82:5-88:12; Gersbeck Admin. Tr., Defs.’ Ex. WWW, Docket
Entry 52-78, 228:8-16.) At another session, Gersbeck for the first
time mentioned a video of his family which Plaintiff used to
threaten him and intimidate him.
Gersbeck Dep. Tr. 104:20-106:9.)

(Defs.’ 56.1 Stmt. ¶ 139;
Gersbeck stated that Plaintiff

showed him the video, and he was scared that Plaintiff would harm

13

his family if he did not kill Ms. Battisti.7

(Defs.’ 56.1 Stmt.

¶ 139; Gersbeck Dep. Tr. 104:20-106:9.)
The

NCDAO

obtained

DNA

samples

from

Plaintiff

and

Gersbeck, and the medical examiner detected Gersbeck’s DNA and
DNA from an unknown individual on the white gloves that held the
screwdriver used in the attack.8

(Defs.’ 56.1 Stmt. ¶ 152; Defs.’

Ex. EE, Docket Entry 52-34, at 4-5.) Subsequent testing determined
that Plaintiff’s DNA did not match the unknown DNA, and he was
excluded as the source of that DNA.

(Defs.’ 56.1 Stmt. ¶ 154;

Pl.’s 56.1 Counterstmt. ¶ 154; Feb. 16, 2009 Police Dep’t Rep. at
5.)
On February 24, 2009, Gersbeck wrote a letter to his
girlfriend, Deanna Kani (the “Belle Letter”).
¶ 156.)

(Defs.’ 56.1 Stmt.

In the letter, Gersbeck discussed several interactions

with Plaintiff, and stated: (1) “But back to the Anthony stuff I

During his deposition, Gersbeck admitted that he did not
mention the video during the videotaped statement because he was
“confused and nervous.” (Defs.’ 56.1 Stmt. ¶ 111; Gersbeck Dep.
Tr. 18:8-19:8.) He also said he thought he told Detective
Rispoli about the video when he gave his written statement but
could not remember for sure. (Defs.’ 56.1 Stmt. ¶ 112; Gersbeck
Dep. Tr. 19:9-20:3.)
7

Plaintiff alleges that the County Defendants’ Exhibit EE “does
not identify which gloves were tested.” (Pl.’s 56.1
Counterstmt. ¶ 152.) However, a report from the Forensic
Evidence Bureau indicates that a “white glove has been accepted
. . . for immediate analysis,” and a “pair of blue gloves” w[as]
rejected.” (Feb. 16, 2009 Police Dep’t Rep., Defs.’ Ex. EE,
Docket Entry 52-34, at 4 (emphasis in original).)
8

14

will start with the money[.]

I sold [h]im one of my race motors

and [h]e still owes me $5200.00 bucks[.]

So now that Im [sic]

working with the system they said that money is money for hire the
way it went down but [h]e actually owes me more then [sic] that
and I’m still out of the money and the motor.”; (2) “He showed me
two different tapes of [h]im following Melissa and the girls when
she was going back and forth from school and [h]er job[.] Followed
[h]er to Miller Ale House a few times and which not like I cared
about [h]er but still didn’t want anything to [h]appen to [h]er
[b]ecause of me.”; and (3) “[I]t sounds like it was nothing but
the two times [h]e pulled his gun on me definetly [sic] made it
very serious . . . so I really didn’t know what to do anymore and
[h]ad no where to turn . . . .”

(Belle Ltr., Defs.’ Ex. GG, Docket

Entry 52-36, at 1.)
The parties dispute when the police department and the
NCDAO became aware of the content of the Belle Letter.

Ms. Kani

testified at Gersbeck’s trial that she sent a copy of the letter
to Detective Gaertner or his partner in April 2009.

(Defs.’ 56.1

Stmt. ¶ 156; Pl.’s 56.1 Counterstmt. ¶ 156; Kani Crim. Tr., Defs.’
Ex. KKK, Docket Entry 52-66, 1571:8-16, 1575:12-20.)
deposition,

Detective

Gaertner

testified

that

he

At his

learned

in

February or March 2009 that Gersbeck was writing to his girlfriend
from ADA St. Bernard, but he did not read the letter at that time.
(Defs.’ 56.1 Stmt. ¶ 158; Gaertner Dep. Tr. 93:18-94:24.)
15

ADA

Canty, who took over the investigation from ADA St. Bernard in
June 2009, testified that he did not read the letter until December
2009 when he was preparing the case for trial.9
¶¶ 165, 183, 210.)

(Defs.’ 56.1 Stmt.

However, Detective Gaertner testified that he

read the letter before Gersbeck was indicted in August 2009 and he
received the letter from ADA Canty.

(Defs.’ 56.1 Stmt. ¶ 183;

Pl.’s 56.1 Counterstmt. ¶ 183.)
The Nassau County Police Department’s Forensic Evidence
Bureau analyzed the screwdriver used by Gersbeck and “determined
that it was a Craftsman #2 screwdriver, had toolmarks on the base
consistent with a gripping tool with opposing jaws, [and] had marks
on the tip consistent with a grinding or abrasive tool . . . .”
(Defs.’ 56.1 Stmt. ¶ 161.)

Afterward, Detective Gaertner and

Sergeant Galgano executed a search warrant on Plaintiff’s garage
and collected, among other items, “26 screwdrivers, 24 gripping
devices, 1 pair of pliers, 2 files, a bench vice, [and] a free
standing grinder.” (Defs.’ 56.1 Stmt. ¶ 170.) Subsequent analysis
revealed that the marks on the screwdriver could not be matched to
any tools seized from Plaintiff’s garage.
¶ 174.)

(Defs.’ 56.1 Stmt.

Specifically, the Bureau of Alcohol, Tobacco, Firearms

and Explosives (“ATF”) concluded that “the sharpened tip of the

Plaintiff alleges by implication that ADA Canty did not present
the Belle Letter to the grand jury, since he testified he did
not read it until December 2009, several months after the grand
jury. (Pl.’s 56.1 Counterstmt. ¶ 277.)
9

16

screwdriver was made with an abrading type tool . . . such as a
grinding wheel, disc or belt that left no toolmarks of value for
comparison,” however “the impressions on the screwdriver handle
were not made by the tools seized at Plaintiff’s garage.”
56.1 Stmt. ¶ 212.)
that

Plaintiff

(Defs.’

The NCDAO later received records indicating

purchased

a

set

of

Craftsman

screwdrivers

approximately ten months before Ms. Battisti was attacked. (Defs.’
56.1 Stmt. ¶ 208.)
On August 3, 2009, Gersbeck was indicted for Attempted
Murder in the First Degree, Conspiracy in the Second Degree,
Assault in the Second Degree, and Criminal Possession of a Weapon
in the Third Degree.

(Defs.’ 56.1 Stmt. ¶ 176.)

After the

indictment, ADA Canty met with Gersbeck and asked him about the
inconsistencies between his statements; Gersbeck responded that he
was “confused” and “made some mistakes” but during his deposition,
he said “the testimony that [he] gave later to ADA Canty was more
accurate.” (Defs.’ 56.1 Stmt. ¶¶ 178-79; Gersbeck Dep. Tr. 130:18132:7.)

During these sessions (and contrary to some of his

previous statements), Gersbeck said that he did use the sharpened
screwdriver

to

stab

Ms.

Battisti

threatening video of his family.
Thereafter,

Gersbeck

signed

a

and

again

mentioned

the

(Defs.’ 56.1 Stmt. ¶¶ 180-81.)
cooperation

agreement

for

his

testimony against Plaintiff, and in exchange, the NCDAO agreed to

17

ask the judge to sentence Gersbeck to eight years.

(Defs.’ 56.1

Stmt. ¶ 182.)
On September 3, 2009, Plaintiff was indicted on charges
of Attempted Murder in the First Degree, Conspiracy in the Second
Degree, Assault in the Second Degree, and Criminal Possession of
a Weapon in the Fourth Degree.

(Defs.’ 56.1 Stmt. ¶ 190.)

A

warrant was issued for his arrest, and Detective Gaertner and
Sergeant

Galgano

participated

in

the

arrest.

(Defs.’

56.1

Stmt. ¶ 191.) While in the squad car, the County Defendants allege
that Plaintiff stated “I threw away my life.

I threw away 17 and

a half years,” and Detective Gaertner wrote the statement down
immediately.

(Defs.’ 56.1 Stmt. ¶¶ 195-96; Gaertner Dep. Tr. at

113:13-15; Defs.’ Ex. SS, Docket Entry 52-48, at 1.)

Sergeant

Galgano recalled that he said “I wasted 17 and a half years of my
life.”

(Pl.’s 56.1 Counterstmt. ¶ 195; Galgano Dep. Tr., Defs.’

Ex. EEE, Docket Entry 52-60, 13:15-21.)

Plaintiff alleges that he

actually said “I can’t believe this is the way they treat me after
seventeen and a half years on this job.”

(Pl.’s 56.1 Counterstmt.

¶ 195; Battisti Dep. Tr., Ex. VVV, Docket Entry 52-77, 235:5-8.)
Plaintiff denied making this statement in subsequent proceedings,
and it was later confirmed that Plaintiff had been a NYPD officer
for approximately seventeen and a half years at that time.
56.1 Counterstmt. ¶¶ 195, 197.)

18

(Pl.’s

D.

Trial Preparation and Trial
At some point between Plaintiff’s indictment and trial

and after a request from Plaintiff’s criminal counsel, Gersbeck’s
vehicle was searched and a grinder was located in the trunk of the
vehicle.

(Defs.’ 56.1 Stmt. ¶ 214.)

Detective Gaertner testified

that the grinder was never sent to ATF for comparison testing
because “it was explained to [him] by a district attorney that it
would not be possible.”

(Defs.’ 56.1 Stmt. ¶¶ 215; Pl.’s 56.1

Stmt. ¶ 215; Gaertner Dep. Tr. 75:22-76:2.)

Plaintiff alleges

that none of the detectives or ADAs “ever attempted to compare the
sharpened screwdriver . . . with the grinding tools that were in
the very vehicle Gersbeck drove to [Ms. Battisti’s] house.” (Pl.’s
56.1 Counterstmt. ¶ 271.)

The County Defendants allege that “the

ATF’s report . . . concluded that the screwdriver had no toolmarks
for

comparison

Gersbeck’s).”

to

any

(Defs.’

grinder

56.1

(whether

Counterstmt.,

Plaintiff’s

Docket

Entry

or

56-1,

¶ 271.)
Immediately prior to trial, ADA Kelly took over the case
against Plaintiff and prepared the case for trial.
Stmt. ¶¶ 217, 234.)

(Defs.’ 56.1

During her meetings with Gersbeck, he told

that when he approached Ms. Battisti, he tried to stab her but
then “the door opened and she fell into the house.”

(Pl.’s 56.1

Counterstmt. ¶ 222; Kelly Dep. Tr., Ex. GGG, Docket Entry 52-62,
26:19-27:5.)

He also mentioned the threatening video of his
19

family.

(Defs.’ 56.1 Stmt. ¶ 220.)

When ADA Kelly asked Gersbeck

about his statements in the Belle Letter, he explained that “he
didn’t want his girlfriend to know that he had done this . . .
[t]hat he accepted money in exchange for trying to kill someone.”
(Kelly Dep. Tr. 34:18-24; Defs.’ 56.1 Stmt. ¶ 224.)

ADA Kelly

also spoke with Joe Massone, Gersbeck’s boss, who conveyed to her
that Gersbeck told him about the plan to kill Ms. Battisti. (Defs.’
56.1 Stmt. ¶ 228; Kelly Dep. Tr. 15:17-16:11.)
From May 17, 2010 to June 2, 2010, ADA Kelly conducted
Plaintiff’s trial, and the jury acquitted Plaintiff on all charges.
(Defs.’ 56.1 Stmt. ¶¶ 234, 237.)

In November 2011, a NYPD

administrative proceeding was held, after which the Assistant
Deputy

Commissioner

found

it

was

more

likely

than

not

that

Plaintiff: (1) “with the intent to cause of the death of another
person . . . attempted to cause the death of Patricia Battisti by
entering into an agreement with Timothy Gersbeck whereby Timothy
Gersbeck would cause the death of Patricia Battisti in exchange
for a sum of United States currency”; (2) “while acting in concert
with and or aiding and abetting and being aided and abetted by
Timothy Gersbeck . . . with the intent to cause physical injury to
another person, caused such injury to Patricia Battisti by stabbing
her in the neck with a sharp metal object”; (3) while acting in
concert with and or aiding and abetting and being aided and abetted
by Timothy Gersbeck . . . possessed a sharp metal object with the
20

intent to use it unlawfully against Patricia Battisti”; and (4)
being “wrongfully in possession of a Department radio previously
reported missing.”

(Defs.’ Ex. BBB, Docket Entry 52-57, at 2-3.)

He pleaded guilty to two other charges and was found not guilty on
one charge.

(Defs.’ Ex. BBB, at 3.)

terminated from the NYPD.
II.

Plaintiff was subsequently

(Defs.’ 56.1 Stmt. ¶ 243.)

Procedural History
Plaintiff commenced this lawsuit on September 10, 2010

against

ADA

Canty,

ADA

Kelly,

Detective

Gaertner,

Sergeant

Galgano, Gersbeck, Kathleen Rice (“Rice”), unidentified ADAs,
unidentified officers, and the County of Nassau (“the County”).
(Compl., Docket Entry 1, at 1.) The Complaint asserted five causes
of action: (1) false arrest against Detective Gaertner, Sergeant
Galgano, ADA Canty, ADA Kelly, Gersbeck, unknown officers and
unknown

ADAs;

(2)

malicious

prosecution

against

Detective

Gaertner, Sergeant Galgano, ADA Canty, ADA Kelly, and Gersbeck;
(3)

violation

of

unconstitutional

his
“perp

fourteenth
walk”

amendment

policy

rights

against

the

due

to

County;

a

(4)

defamation against Rice; and (5) interference with his parental
rights against ADA Kelly, ADA Canty and unknown ADAs.
¶¶ 107-163.)
Galgano,

Specifically,

Detective

Gaertner,

Plaintiff
and

alleged

Gersbeck

that

“testified

(Compl.
Sergeant
falsely

before the grand jury,” (Compl. ¶ 112); ADA Canty and ADAs John
Doe 1-5 “knowingly offered perjured testimony before the grand
21

jury,” (Compl. ¶ 113); “[t]he criminal prosecution was commenced
despite . . . [the County Defendants’] knowledge that [Plaintiff]
was not involved in Gersbeck’s attack on Patricia and that probable
cause for the initiation and continuation of the prosecution did
not exist,” (Compl. ¶ 123); and the County Defendants “continued
to participate in the criminal prosecution, even after they learned
that there was no evidence linking [Plaintiff] to Gersbeck’s
actions

against

Patricia

and

that

Gersbeck

was

lying

about

[Plaintiff’s] involvement in order to obtain a more favorable plea
bargain.”

(Compl. ¶ 124.)

compensatory

damages,

as

well

damages, and attorneys’ fees.

Plaintiff sought $32,000,000 in
as

exemplary

damages,

(Compl. at 27.)

punitive

On December 6,

2010, the County Defendants answered and asserted cross-claims
against Gersbeck.
After

(Answer, Docket Entry 7.)
engaging

in

discovery,

Plaintiff

agreed

to

discontinue the third, fourth, and fifth causes of action, and the
County and Rice were terminated as defendants.
Docket Entry 44; See Stip. & Order.)

(See Pl.’s Ltr.,

On January 7, 2016, the

County Defendants moved for summary judgment on the remaining
claims for false arrest and malicious prosecution.

(Defs.’ Mot.,

Docket Entry 52.) Plaintiff filed his opposition brief on February
19, 2016, and the County Defendants filed their reply brief on
March 18, 2016. (Pl.’s Opp., Docket Entry 54; Defs.’ Reply, Docket
Entry 56.)
22

DISCUSSION
I.

Legal Standard
Summary

judgment

will

be

granted

where

the

movant

demonstrates 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).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).

In

determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and
23

draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”

Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
II.

False Arrest
The

County

Defendants

argue

that

Plaintiff’s

false

arrest claim must be dismissed because Plaintiff “was arrested
pursuant to a Superior Court arrest warrant issued after a grand
jury indictment.”
Court agrees.

(Defs.’ Br., Docket Entry 52-1, at 15.)

The

A false arrest claim must be dismissed when the

“arrest is made pursuant to a warrant issued after a grand jury
indictment.”

Stukes v. City of N.Y., No. 13-CV-6166, 2015 WL

1246542, at *11 (E.D.N.Y. Mar. 17, 2015) (quoting Sargent v. Cty.
of Nassau, No. 04-CV-4274, 2007 WL 778437, at *7 (E.D.N.Y. Mar. 13,
2007)).

The proper claim is one for malicious prosecution.

Stukes, 2015 WL 1246542, at *11.

See

The parties agree that Plaintiff

was arrested pursuant to a “Superior Court Warrant of Arrest” after
he was indicted on September 3, 2009.
Pl.’s 56.1 Counterstmt. ¶ 190.)
Plaintiff’s

concession

that

the

(Defs.’ 56.1 Stmt. ¶ 190;

In light of the foregoing, and
false

arrest

claim

is

“mis-

styled,” Plaintiff’s false arrest claim is DISMISSED.10

Plaintiff requests that the Court consider the “allegations of
having presented false evidence to the Grand Jury and/or
10

24

III. Malicious Prosecution11
The County Defendants argue that they are entitled to
summary

judgment

on

the

malicious

prosecution

claim

for

the

following reasons: (1) Plaintiff has not demonstrated that ADA
Kelly or Sergeant Galgano were personally involved; (2) Detective
Gaertner and Sergeant Galgano did not initiate or continue a
criminal proceeding against Plaintiff; (3) there was probable
cause to indict, arrest, and prosecute Plaintiff; and (4) Plaintiff
has failed to show that any Defendant acted with malice.

(Defs.’

Br. at 15.)

withholding exculpatory evidence from the Grand Jury under a
theory of [m]alicious [p]rosecution as pleaded in the second
cause of action.” (Pl.’s Opp. at 19.) The Court will address
these allegations in its discussion of the malicious prosecution
claim.
With respect to Plaintiff’s malicious prosecution claim
against Gersbeck, Plaintiff has failed to demonstrate that he
was acting under color of state law, which is required to
maintain an action under § 1983. See Lee v. Law Office of Kim &
Bae, P.C., 530 F. App’x 9, 9-10 (2d Cir. 2013) (quoting
Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)
(internal citations omitted) (“A conclusory allegation that a
private entity acted in concert with a state actor does not
suffice to state a § 1983 claim against the private entity. To
support a claim against a private party on a § 1983 conspiracy
theory, a plaintiff must show (1) an agreement between a state
actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in
furtherance of that goal causing damages.”). Thus, the
malicious prosecution claim against Gersbeck is DISMISSED. The
Court will only address the allegations against ADA Canty, ADA
Kelly, Detective Gaertner, and Sergeant Galgano.
11

25

Plaintiff

advances

two

theories.

First,

Plaintiff

alleges that the presentation of the case to the grand jury was
improper.
that

two

(Pl.’s Opp. at 19.)
acts

by

ADA

Specifically, Plaintiff argues

Canty—-the

presentation

of

Gersbeck’s

testimony and his failure to present the Belle Letter to the grand
jury--are sufficient to rebut the presumption of probable cause
arising from the indictment.

(Pl.’s Opp. at 21.)

He maintains

that “multiple versions of Gersbeck’s testimony put the Defendants
on notice that Gersbeck was not telling the truth” and that “he
had materially changed his story.”

(Pl.’s Opp. at 22.)

He also

argues that ADA Canty’s “failure to present exculpatory evidence
to a grand jury eviscerates the presumption of probable cause which
attaches to a grand jury indictment.” (Pl.’s Opp. at 21.) Second,
Plaintiff alleges that any probable cause that may have been
established by the time of the grand jury dissipated before trial.
(Pl.’s Opp. at 19-20.)

Plaintiff argues that “many of the lies

told by Gersbeck were dispelled after he began ‘working with the
system’ while other evidence which could have served to corroborate
Gersbeck’s story or exonerate the Plaintiff were never pursued.”
(Pl.’s Opp. at 26; Belle Ltr. at 1.)

Plaintiff points to several

facts which he claims destroyed probable cause before trial,
including Gersbeck’s admission that he did have the screwdriver in
his

hand

when

he

approached

Ms.

Battisti,

the

DNA

results

demonstrating that Plaintiff was “excluded as a DNA match” for the
26

gloves,

and

the

testing

which

showed

that

the

marks

screwdriver were not a match to any of Plaintiff’s tools.
Opp. at 26.)

on

the

(Pl.’s

Plaintiff also focuses on the discovery of grinding

tools in Gersbeck’s car and the failure to forward the tools for
testing,

as

well

as

the

failure

to

follow-up

regarding

the

threatening video of Gersbeck’s family and Gersbeck’s statements
in the Belle Letter.

(Pl.’s Opp. at 26-27.)

Plaintiff contends

that, although these facts may not be enough to show a dissipation
of probable cause on their own, these facts taken together raise
an issue of fact sufficient to defeat summary judgment.

(Pl.’s

Opp. at 27.)
To sustain a section 1983 malicious prosecution claim,
plaintiff must show “a violation of his rights under the Fourth
Amendment” and establish “the elements of a malicious prosecution
claim under state law.”

Manganiello v. City of N.Y., 612 F.3d

149, 161 (2d Cir. 2010) (internal citations omitted).

“[U]nder

New York law, a plaintiff must prove: (1) the initiation or
continuation

of

a

criminal

proceeding

against

plaintiff;

(2)

termination of the proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice
as a motivation for defendant’s actions.”

27

Id. (internal quotation

marks and citations omitted); see also Colon v. City of N.Y.,
60 N.Y.2d 78, 82, 455 N.E.2d 1248, 1250, 468 N.Y.S.2d 453 (1983).
“Although

the

existence

of

probable

cause

must

be

determined with reference to the facts of each case,” Manganiello,
612 F.3d at 161, generally, there is probable cause when “knowledge
of facts, actual or apparent, [is] strong enough to justify a
reasonable man in the belief that he has lawful grounds for
prosecuting the defendant in the manner complained of.”

Riccio v.

New York, 859 F. Supp. 2d 480, 486 (E.D.N.Y. 2012) (quoting Genia
v. N.Y. State Troopers, No. 03-CV-0870, 2007 WL 869594, at *12
(E.D.N.Y. Mar. 20, 2007)). In New York, “the existence of probable
cause is a complete defense to a claim of malicious prosecution .
. . . ”

Savino v. City of N.Y., 331 F.3d 63, 72 (2d Cir. 2003).

Moreover, “indictment by a grand jury creates a presumption of
probable cause that may only be rebutted by evidence that the
indictment was procured by ‘fraud, perjury, the suppression of
evidence

or

other

police

conduct

undertaken

in

bad

faith.’”

Savino, 331 F.3d at 72 (quoting Colon, 60 N.Y.2d at 83, 455 N.E.2d
at 1251) (emphasis in original)).

See also Bernard v. United

States, 25 F.3d 98, 104 (2d Cir. 1994).

Plaintiff “bears the

burden of proof in rebutting the presumption, and he must do so
with more than mere conjecture and surmise that his indictment was
procured as a result of conduct undertaken by the defendants in
bad faith.”

Reid v. City of N.Y., 00-CV-5164, 2004 WL 626228, at
28

*7 (S.D.N.Y. Mar. 29, 2004), R&R adopted by, 2004 WL 1488194
(S.D.N.Y. July 1, 2004)) (quoting Savino, 331 F.3d at 73) (internal
quotation marks omitted).
investigative

steps

is

suppression of evidence.”

Further, the failure to take certain

“not

the

equivalent

of

fraud

or

the

Colon, 60 N.Y. 2d at 78, 468 N.Y.S.2d

at 456, 455 N.E.2d 1248.
The Second Circuit has held that “even when probable
cause is present at the time of the arrest, evidence could later
surface which would eliminate that probable cause.”

Lowth v. Town

of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (quoting Cox v.
Cty. of Suffolk, 780 F. Supp. 103, 108 (E.D.N.Y. 1991)).

However,

“‘[i]n order for probable cause to dissipate, the groundless nature
of the charges must be made apparent by the discovery of some
intervening fact.’”

Fappiano v. City of N.Y., No. 01-CV-2476,

2015 WL 94190, at *13 (E.D.N.Y. Jan. 7, 2015), aff’d 640 F. App’x
115 (2d Cir. 2016) (quoting Lowth, 82 F.3d at 571).
A.

Initiation or Continuation of a Criminal Proceeding
As a preliminary matter, the County Defendants argue

that Plaintiff cannot establish that Sergeant Galgano or Detective
Gaertner initiated or continued a criminal proceeding against
Plaintiff.12

(Defs.’ Br. at 17-18.)

The Court agrees.

“[T]here

Plaintiff does not respond to this argument, instead
contending that the County Defendants (collectively) “commenced
a criminal proceeding (in this case the Grand Jury presentation)
against Plaintiff.” (Pl.’s Opp. at 20.)
12

29

is a presumption that a prosecutor exercises independent judgment
in

bringing

a

criminal

case,

thereby

breaking

any

chain

of

causation between a police officer’s conduct and the initiation of
the proceeding.”

Stukes, 2015 WL 1246542, at *9.

To demonstrate

initiation, “‘a defendant must do more than report the crime or
give testimony[, h]e must play an active role in the prosecution,
such

as

giving

advice

authorities to act.’”

and

encouragement

or

importuning

the

Id. (quoting Manganiello, 612 F.3d at 163).

In addition, initiation can be demonstrated with evidence showing
that the defendant “fil[ed] the charges[,] . . . prepar[ed an]
alleged

false

Manganiello,

confession
612

F.3d

at

and

forward[ed]

163,

(internal

it

to

prosecutors,”

quotation

marks

and

citation omitted) “with[held] material exculpatory evidence from
the

prosecutor

or

knowingly

created

false

information

that

creat[ed] the basis for the prosecution.” Stukes, 2015 WL 1246542,
at *9.
Sergeant Galgano’s role in the investigation was limited
to

executing

arrest.

search

warrants

(Defs.’ Br. at 12.)

and

assisting

with

Plaintiff’s

Detective Gaertner was the primary

detective investigating this incident; however, after the NCDAO
took over the investigation, he assisted the NCDAO with questions
and corroborated certain information in advance of the grand jury.
(Defs.’ Br. at 12-13.)

There is no evidence that either officer

importuned ADA Canty to prosecute Plaintiff or that either officer
30

fabricated or withheld evidence from ADA Canty. See, e.g., Stukes,
2015 WL 1246542, at *9 (“No facts are alleged that would permit an
inference that Miller pressured or importuned A.D.A. Marshall to
bring charges against Plaintiff . . . Additionally, . . . Plaintiff
has failed to plead sufficient facts to allege that the Defendants
knowingly forwarded false evidence to the D.A.’s Office, or that
they

improperly

withheld

material

exculpatory

evidence.”);

Sargent, 2007 WL 778437, at *8 (“Here there is no evidence that
Heimbauer or the other two individual police officer defendants
failed

to

evidence.”).

disclose

facts

or

misrepresented

or

falsified

Therefore, the malicious prosecution claims against

Sergeant Galgano and Detective Gaertner are DISMISSED.
B.

Lack of Probable Cause
As to the remaining claims against ADA Canty and ADA

Kelly, to defeat summary judgment, Plaintiff must either (1)
demonstrate a genuine issue of material fact that the indictment
was procured by bad faith or fraudulent conduct, or (2) demonstrate
a genuine issue of material fact that probable cause dissipated
between the indictment and trial.
1.

Rebutting the Presumption of Probable Cause

The Court finds that Plaintiff is unable to rebut the
presumption of probable cause because he has failed to show
evidence of “fraud, perjury, the suppression of evidence or other
police conduct undertaken in bad faith.”
31

See Savino, 331 F.3d at

72 (internal quotation marks and citation omitted).

Plaintiff

relies on unsupported allegations that: (1) “multiple versions of
Gersbeck’s testimony put Defendants on notice that Gersbeck was
not telling the truth,” (2) “Canty knew that [Gersbeck] had
materially changed his story” and (3) “the Belle Letter . . .
constitutes exculpatory evidence which should have been disclosed
. . . to the Grand Jury.”
conclusory

allegations
probable

(Pl.’s Opp. at 22-23.)
are

not

cause

sufficient
resulting

to

from

However, these
overcome
a

grand

the

presumption

of

jury

indictment.

See, e.g., Stukes, 2015 WL 1246542, at *6 (“Although

Plaintiff attempts to rebut the presumption of probable cause by
alleging that the A.D.A. presented ‘false-facts’ to the grand jury,
and that Defendants failed to turn over exculpatory evidence . .
. for presentation to the grand jury, these conclusory statements
fail to overcome the presumption of probable cause.”) (internal
quotation marks and citations omitted); Montes v. King, No. 00CV-4707, 2002 WL 1808209, at *3 n. 5 (S.D.N.Y. Aug. 6, 2002)
(holding that “unsubstantiated speculation” that an officer acted
in bad faith was not sufficient to defeat summary judgment); cf.
Reid, 2004 WL 626228, at *7-8 (holding that plaintiff had raised
disputed issues of fact to rebut the presumption of probable cause
because witness testified at trial that he lied at grand jury after
detective encouraged him to identify plaintiff).

There is no

evidence that fraud, perjury, or bad faith conduct occurred or
32

that ADA Canty was aware of or engaged in any such conduct.
Further, there is no evidence that ADA Canty knew that any evidence
presented to the grand jury (including Gersbeck’s testimony) was
false.13

Although there were differences in Gersbeck’s accounts,

this fact on its own is not enough to demonstrate that the
indictment was obtained as a result of fraud, perjury, suppression
of evidence, or other bad faith conduct.

As the County Defendants

point out, many facts in Gersbeck’s accounts were independently
corroborated.

(Defs.’ Br. at 20-21.)

Plaintiff argues that ADA Canty’s failure to present the
Belle Letter to the grand jury constitutes sufficient evidence to
overcome the presumption of probable cause.

(Pl.’s Opp. at 21.)

The Court recognizes that the parties dispute when ADA Canty
learned about the content of Belle Letter.

Nevertheless, even

assuming arguendo that ADA Canty knew about the Belle Letter prior
to the grand jury, he was not obligated to present it and his
decision not to present the letter is not sufficient to overcome
the presumption of probable cause.

See, e.g., Savino, 331 F.3d

at 75 (“ADA Sullivan—-who had the discretion and authority to

Plaintiff argues that “District Courts have denied motions for
summary judgment on Malicious Prosecution claims when there is
evidence that the prosecution proffered testimony from a witness
who the prosecutor and/or police knew had been lying.” (Pl.’s
Opp. at 21.) Although this may be true as a general
proposition, Plaintiff has failed to show any evidence that ADA
Canty, ADA Kelly, or the two detectives knew that Gersbeck was
lying.
13

33

decide what evidence to present to the grand jury—-was under no
duty to present every item of arguably exculpatory evidence in
seeking an indictment.

Accordingly, even if we assume . . . that

ADA Sullivan was made aware of [the officer’s] observations, his
decision not to present this information to the grand jury would
not

amount

to

conduct

undertaken

in

bad

faith.”)

(citations

omitted); Stukes, 2015 WL 1246542, at *5 (“‘[T]he simple act of
not

disclosing

to

the

grand

jury

all

evidence

that

could

potentially benefit the accused at a grand jury hearing does not
necessarily rise to the level of bad faith.’”) (quoting Parisi v.
Suffolk Cty., No. 04-CV-2187, 2009 WL 4405488, at *10 (E.D.N.Y.
Nov. 30, 2009).
2.

Dissipation of Probable Cause

The Court also finds that Plaintiff has not raised a
material issue of fact related to the dissipation of probable
cause.

The grand jury voted to indict Plaintiff on September 3,

2009, and the trial was conducted from May 17, 2010 to June 7,
2010.

(Defs.’ 56.1 Stmt. ¶¶ 190, 234.)

The appropriate inquiry

is whether facts arose between September 2009 and May 2010 that
clearly

demonstrated

“the

groundless

nature

of

the

charges.”

Fappiano, 2015 WL 94190, at *13.
Plaintiff relies on two facts that came to light prior
to the indictment: (1) Gersbeck’s admission in February 2009 that
he had the screwdriver in his hand during the attack, (Defs.’ 56.1
34

Stmt. ¶¶ 133, 138) and (2) DNA testing completed in March 2009
that excluded Plaintiff as a source of the DNA on the gloves.
(Defs.’ 56.1 Stmt. ¶ 154; Pl.’s 56.1 Counterstmt. ¶ 154; Feb. 16,
2009 Police Dep’t Rep. at 5.)
considered
probable

because

cause

they

arose.

Neither of these facts can be

occurred
See

before

Sargent,

the

2007

presumption

WL

of

778437,

*9

at

(analyzing only the “information that came to light subsequent to
the

grand

jury

indictment”

to

determine

if

that

information

vitiated probable cause).
Plaintiff argues that ATF testing completed in March
2010--which showed that the marks on the handle of the screwdriver
were not a match to any of Plaintiff’s tools--destroyed probable
cause.

(Pl.’s Opp. at 26; Defs.’ 56.1 Stmt. ¶ 174.)

Although the

impressions on the handle did not match any of Plaintiff’s tools,
ATF was unable to determine if any of Plaintiff’s tools sharpened
the

screwdriver.

Counterstmt.
tool

that

(Defs.’

¶ 271.)

sharpened

56.1

Stmt.

¶

212;

Defs.’

56.1

As the County Defendants point out, the
the

screwdriver

left

“no

toolmarks

for

comparison” and as a result, those marks could not be matched to
any tool—-not just Plaintiff’s.
56.1 Counterstmt. ¶ 271.)

(Defs.’ 56.1 Stmt. ¶ 212; Defs.’

The results of ATF’s testing merely

illustrate that the authorities would never be able to determine
the particular tool that was used to alter the screwdriver; they

35

do

not

demonstrate

that

the

charges

against

Plaintiff

were

groundless.
Plaintiff further argues that the failure to follow-up
on the video of Gersbeck’s family and his contradictory statements
in the Belle Letter support the dissipation theory and that “other
evidence which could have served to corroborate Gersbeck’s story
or exonerate the Plaintiff w[as] never pursued.”
26.)

(Pl.’s Opp. at

However, “the police are not obligated to pursue every lead

that may yield evidence beneficial to the accused.”

Parisi, 2009

WL 4405488, at *11 (quoting Gisondi v. Town of Harrison, 72 N.Y.2d
280, 285, 528 N.E.2d 157, 160, 532 N.Y.S.2d 234 (1988)). Moreover,
Plaintiff’s criticisms of the investigation do not amount to an
intervening fact that rendered the charges groundless.
Finally, Plaintiff contends that the discovery of the
grinder in Gersbeck’s vehicle destroyed probable cause and faults
the County Defendants for failing to submit the grinder for
comparison testing.
¶ 271.)

(Pl.’s Opp. at 27-28; Pl.’s 56.1 Counterstmt.

However, the discovery of the grinder in Gersbeck’s car,

standing alone, is not sufficient to establish that probable cause
dissipated before Plaintiff’s trial.

See, e.g., Parisi, 2009 WL

4405488, at *11 (holding that defendant’s demeanor on surveillance
video

and

“establish

inconsistencies
the

existence

in
of

victim’s

material

statements

disputed

fact

failed
that

to
the

prosecution was groundless”); Sargent, 2007 WL 778437, at *9
36

(holding that statement by victim’s ex-boyfriend that he caused
injuries to victim after plaintiffs were arrested for assault did
not vitiate probable cause).

Because of the lack of tool marks,

it was impossible to determine if the grinder in Gersbeck’s car
was used to sharpen the screwdriver.
¶ 271.)

(Defs.’ 56.1 Counterstmt.

Without that determination, the presence of the grinder

in Gersbeck’s car is not inconsistent with his statements or the
prosecution’s theory that Plaintiff hired Gersbeck to kill his
wife, especially in light of all of the other corroborating
evidence.

See, e.g., Fappiano, 2015 WL 94190, at *14 (holding

that probable cause did not dissipate after prosecutors received
negative

serology

results

including

because

the

results

“entirely consistent with the prosecution’s theory”).

were

Moreover,

this Court declines to find that probable cause dissipated based
on “arguably exculpatory evidence.”

See Parisi, 2009 WL 4405488,

at 11 (“[I]t is difficult to imagine how any criminal defendant
could ever be constitutionally prosecuted if mere knowledge of
arguably exculpatory evidence alone were sufficient to dissipate
probable cause.”).
Because Plaintiff cannot demonstrate a genuine issue of
fact that the prosecution lacked probable cause, the remaining
claims against ADA Canty and ADA Kelly are DISMISSED.14

14

Because Plaintiff’s underlying claims are without merit, it
37

CONCLUSION
The

County

Defendants’

motion

for

summary

judgment

(Docket Entry 52) is GRANTED and Plaintiff’s claims are DISMISSED
WITH PREJUDICE.

To the extent the County Defendants’ cross-claims

against Gersbeck relate to the claims dismissed herein, their
cross-claims are also DISMISSED WITH PREJUDICE.

Additionally,

Plaintiff’s claim against Gersbeck is DISMISSED WITH PREJUDICE.
The Clerk of the Court is directed to enter judgment accordingly
and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
9 , 2017
Central Islip, New York

is unnecessary for the Court to determine whether the County
Defendants are entitled to absolute or qualified immunity.
38