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

Filing 78

ORDER re 72 - 74 : The defendants' motion for summary judgment is granted in part and denied in part -- see attached Memorandum and Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 3/28/2016. (Lanin, Debbie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SEEMONA SUMASAR and CHIARA
McDONALD,
Plaintiffs,
-against-

MEMORANDUM
AND ORDER
CV 11-5867 (ARL)

NASSAU COUNTY, NASSAU COUNTY
POLICE DETECTIVE LISA CHARLES,
NASSAU COUNTY POLICE DETECTIVE
DEBORAH CARTER BERSHAD, NASSAU
COUNTY POLICE DETECTIVE JOSEPH BRADY,
NASSAU COUNTY POLICE DETECTIVE
ROBERT NILL, NASSAU COUNTY POLICE
OFFICER MICHAEL KNATZ, and JOHN AND
JANE DOES 1-10,
Defendants.
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LINDSAY, Magistrate Judge:
Plaintiff Seemona Sumasar (“Sumasar”) spent over six months in prison for crimes which
it is undisputed never occurred. She now brings this lawsuit, along with her daughter Chiara
McDonald (“Chiara”) (collectively, “Plaintiffs”), pursuant to 42 U.S.C. § 1983 (“Section 1983”)
against the Nassau County police officer and detectives who investigated the purported crimes
which led to her indictment. Before the Court is the motion by defendants Nassau County,
Nassau County Police Detective Lisa Charles (“Detective Charles”), Nassau County Police
Detective Deborah Carter Bershad (“Detective Bershad”), Nassau County Police Detective Joseph
Brady (“Detective Brady”), Nassau County Police Detective Robert Nill (“Detective Nill”), and
Nassau County Police Officer Michael Knatz (“Police Officer Knatz”) (collectively, the “Nassau
County Defendants”) for summary judgment pursuant to Federal Rule of Civil Procedure

(“Rule”) 56. For the reasons set forth below, the Nassau County Defendants’ motion is granted in
part and denied in part.
BACKGROUND
The following facts are drawn from the pleadings, the parties’ Local Rule 56.1 Statements,
and the parties’ papers submitted in support of or in opposition to the instant summary judgment
motion. The facts cited are undisputed unless otherwise noted. Upon consideration of a motion
for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). Here, the facts
are construed in the light most favorable to the Plaintiffs.
I.

Sumasar’s Background and Relationship with Jerry Ramrattan
The relevant facts regarding Sumasar’s relationship with Jerry Ramrattan (“Ramrattan”)

are largely undisputed. Sumasar is a forty-one year old woman who moved with her parents to
the United States from Guyana in 1987. Chiara is Sumasar’s daughter and was born on January
16, 1998. Chiara is the daughter of Sumasar and Devon McDonald (“Devon”). In 2010, Chiara
was living with Sumasar, who had primary custody of Chiara, in Far Rockaway, New York.
After graduating from high school and attending college for two semesters, Sumasar spent
the next fifteen years working at various investment firms, including Morgan Stanley, in New
York City. Between March and May of 2005, Sumasar entered into a franchise agreement with
Golden Krust Franchising, Inc. to own and operate a Golden Krust restaurant in Richmond Hill,
New York. Between 2006 and 2008, Sumasar managed the restaurant on a part-time basis while
still working at Morgan Stanley. In 2008, Sumasar left Morgan Stanley and worked full-time
managing the Golden Krust restaurant.

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In mid-2006, after she opened her restaurant, Sumasar met Ramrattan, and they began
dating. While Sumasar was in her relationship with Ramrattan, he lived with her at her house in
Far Rockaway. When Sumasar met Ramrattan, he told her that he owned a security company and
that he worked as an investigator for the Brooklyn District Attorney’s Office. He also told
Sumasar that he was divorced and had one child. After she began her relationship with
Ramrattan, Sumasar learned that Ramrattan had been lying to her. For example, Sumasar
discovered that Ramrattan was married to another woman and had three children. As a result, in
2008, Sumasar broke off her relationship with Ramrattan. After the break-up, Ramrattan asked
Sumasar if he could live in the basement of her house for two weeks; Ramrattan ended up staying
in the basement for months. While he lived at Sumasar’s house, Sumasar saw Ramrattan carry a
gun. She also saw a bulletproof vest in the trunk of his vehicle and a police department shield and
badge in his wallet.
It is undisputed that on March 8, 2009, Ramrattan raped Sumasar. According to Sumasar,
Ramrattan ambushed Sumasar on the back stairs outside her apartment and dragged her into his
basement apartment. Using duct tape, Ramrattan bound Sumasar’s hands and legs and gagged
her. Over the course of eight or nine hours, Ramrattan held Sumasar prisoner while he threatened
to commit suicide with his gun, menaced her with the same gun, and raped her. After pleading
with Sumasar not to tell anyone what he had done, Ramrattan eventually freed her.
Ramrattan was arrested, charged with rape, and eventually indicted by a Queens grand
jury. In addition to investigating and prosecuting Ramrattan for sexual assault, the New York
City Police Department (the “NYPD”) also investigated him for impersonating a police officer

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after Sumasar told them that Ramrattan posed as a police officer and provided them with a picture
of him wearing a NYPD uniform, including a police shield.
According to Sumasar, after Ramrattan made bail, he began a campaign of harassment
designed to coerce her to cease cooperating with the rape prosecution. Despite a restraining order
mandating that he not contact her, he telephoned her to demand that she not go through with the
case. He also sent a parade of friends and relatives to her restaurant to lobby on his behalf. They
told her that if she went through with the case, they and/or Ramrattan would make her life
miserable. According to Sumasar, when she reported these visits to the police, she was told that
nothing could be done unless Ramrattan tried again to contact her directly.
II.

Ramrattan’s Elaborate Scheme to Frame Sumasar for Crimes she did not Commit
In an escalated effort to attack Sumasar’s credibility, Ramrattan then orchestrated a bold

scheme to frame Sumasar for committing armed robbery while posing as a police officer. The
facts surrounding these false allegations are largely undisputed.
A.

The Reported Robberies to the NYPD
1.

The First Reported NYPD Robbery: Rajive Mohanlal

Ramrattan began by inducing an illegal immigrant named Rajive Mohanlal (“Mohanlal”)
to call a Queens precinct of the New York City Police Department on September 15, 2009, and
falsely report that he had been accosted and robbed by two people posing as police officers, aided
by a third individual. Additionally, Ramrattan gave Mohanlal handcuffs and a bullet casing to
plant at the scene. Mohanlal told the police that as he was walking, a gray Jeep Cherokee with
compound on the driver’s side front door and with New York plates pulled up next to him. He
reported that an Indian woman wearing a black bullet-resistant armor with a shield on it holding a

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black semi-automatic and a white male wearing a shield around his neck approached him,
handcuffed him, and robbed him. Mohanlal also told the police that a second vehicle approached,
a black Maxima with Pennsylvania plates and asked if they were okay, and the female waved
them on. Mohanlal’s description of his female assailant was consistent with Sumasar, and the
description of the two vehicles involved in the alleged incident were consistent with Sumasar’s
friends’ vehicles, which Sumasar sometimes drove.
2.

The Second Reported NYPD Robbery: Christopher Conde

Ramrattan next induced long-time friend, Queens resident Christopher Conde (“Conde”),
to call the NYPD two days later, on September 17, 2009, and falsely report that as he walked in
Queens in the middle of the night, he was robbed by a female and two males posing as police
officers and that the female displayed a firearm. Conde reported that the alleged robbers fled the
scene in a black Nissan Maxima with Pennsylvania plates and a Jeep Cherokee described as
metallic blue or gold. Conde’s description of his female assailant was consistent with Sumasar’s
height and weight, and Conde’s description of a black man driving a black Nissan Maxima with
Pennsylvania places was consistent with Devon, the father of Sumasar’s daughter, Chiara.
Both complaints were investigated by NYPD James Conlon (“Detective Conlon”).
According to Detective Conlon’s deposition testimony, after the NYPD exhausted all possible
investigative avenues for the alleged robberies and found nothing, they closed the cases.
B.

The Reported Robberies to the NCPD
1.

The First Reported Nassau County Robbery: Terrell Lovell

Approximately six months after his unsuccessful attempts to frame Sumasar for crimes
she did not commit in Queens, Ramrattan decided to try his hand in Nassau County. Ramrattan

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began by recruiting Terrell Lovell (“Lovell”), a common friend of Ramrattan and Mohanlal, to
report an armed robbery, telling Lovell that he would pay Lovell $20,000 to frame Sumasar for
armed robbery. On March 2, 2010, Lovell contacted the Nassau County Police Department (the
“NCPD”) via 911 at about 1:25 a.m. and reported that he had just been the victim of a robbery.
After the call, Detective Charles and Detective Bershad responded to the scene and interviewed
Lovell.
In Lovell’s sworn statement, he stated that he was pulled over by a black male and an
Indian female driving a charcoal-grey Cherokee with partial gold rims and tints as well as a partial
plate “NY AJD.” Lovell averred that both individuals were wearing bullet-proof vests and had
shields hanging from chains around their necks. He also stated that the female had a gun in her
hand. According to Lovell, the female told him to get out of his car and robbed him.
On March 2, 2010, Detective Charles contacted the NYPD’s 101 Precinct and the NYPD
Robbery Squad for similar cases within New York City. Detective Charles was referred to the
Internal Affairs Unit, where she spoke with Detective Conlon. Detective Conlon stated that New
York City had two similar cases in September 2009 around the same time of 1:00 a.m. In
addition, on March 3, 2010, Detective Bershad telephoned Lovell and asked him to describe the
Jeep Cherokee further and, if possible, to search the internet to locate a picture that most
resembled the Jeep Cherokee used in the reported robbery. Lovell responded via email with a
picture of a Jeep Cherokee which, according to her, was very similar to the one used in the alleged
robbery.

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2.

The Second Reported Nassau County Robbery: Anonymous Caller

On May 2, 2010, an anonymous male, possibly Ramrattan himself, called the Fourth
Precinct at 3:50 a.m. to report that he had just been stopped by two individuals posing as
undercover police officers in a Jeep Cherokee in the Five Towns Shopping Center in North
Woodmere, Nassau County. He described the female as Indian with a ponytail dressed all in
black with a vest, holster, gun and a detective badge displayed around her neck. He also reported
that there was a black male dressed somewhat the same. The anonymous caller stated that he was
patted down at gunpoint, but nothing was taken. He identified the Jeep Cherokee as gold and
bearing Florida license plate number “839NEK.” The caller refused to identify himself or give
his location.
Detective Charles investigated the Florida license plate “839NEK” and found it was
registered to Lalanee Sumasar, Sumasar’s sister living in Orlando, Florida, and that Seemona
Sumasar’s Far Rockaway address was linked to it. In May 2010, Sumasar was driving a Nissan
Maxima owned by Devon McDonald.
3.

The Third Reported Nassau County Robbery: Luz Johnson

The last person enlisted by Ramrattan was Luz Johnson (“Johnson”), who first met
Ramrattan in 1980 when she dated Ramrattan’s brother. In May 2010, Ramrattan, who knew the
manager of a GVS store in Brooklyn, New York, helped Johnson get a job at the store.
Ramrattan told Johnson he was having problems with Sumasar, that Sumasar had charged
him with rape, and that the case was going to trial. He promised to pay her a few thousand dollars
if she would report to the Nassau County Police that while she was driving, she was pulled over
by a female and two men who were impersonating police and who were wearing vests, badges

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and guns. Ramrattan coached her on the plan. For example, in Johnson’s presence, Ramrattan
wrote some terms on a matchbook cover, including “Sunshine state,” “839-NEK,” “FLA,” “Jeep
four-door,” and “CHR.” Ramrattan told Johnson that “839-NEK” was the Florida license plate of
the Jeep Cherokee that Sumasar was driving.
On May 19, 2010, Johnson called the NCPD via 911. Johnson reported that she had been
the victim of a robbery at about 1:25 a.m. while driving in Inwood, Nassau County. Detective
Nill responded to the location. At the scene, Johnson gave the matchbook to Detective Nill and
told him that she wrote the license plate number and names on the matchbook. In a sworn
statement, she stated that she was pulled over by a two-toned brown Grand Cherokee with a red
flashing light and Florida plate number “839NEK.” She reported that a female, possibly Spanish
or Indian, wearing a bullet-proof vest with a shield around her neck, asked Johnson for her
registration and insurance card and told her to get out of the car. When she got out of her car, she
saw a black male wearing the same style bullet-proof vest and a shield around his neck with a
black handgun in a holster around his waist. According to Johnson, she was told to open her
trunk, and the female stole $1400.00 in cash and miscellaneous items. She reported that there was
also a third person – a black male – wearing a vest and shield. The three individuals then
allegedly fled the scene.
C.

The Investigation into the Reported Crimes

Johnson’s description of a Jeep Cherokee bearing Florida license plate “839NEK”
matched exactly with the vehicle and license plate provided by the anonymous male caller on
May 2, 2010. On May 19, 2010, Detective Charles filed a Request for a DMV Photo Image of
Lalanee Sumasar, the registered owner of the Jeep.

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A May 19, 2010 ClaimSearch for insurance claims submitted by Lalanee Sumasar
identified one passenger involved in one incident as Chiara McDonald, whose address was listed
as Sumasar’s address in Far Rockaway. Detective Charles then filed a Request for a DMV Photo
Image of Seemona Sumasar and received a photograph of her face. Detective Nill obtained DMV
photographs of five similar-looking females and placed them in a six-pack photo array for
possible identification by Lovell and Johnson.
That same day, Detective Nill went to Lovell’s home to show him an array of six headshot photographs of females similar in appearance to Sumasar. Lovell knew what Sumasar
looked like because Ramrattan had previously shown him multiple photographs of Sumasar taken
in the past couple of years. Ramrattan also coached Lovell about what to say when he would be
shown the photo array. Based on his prior knowledge of what Sumasar looked like, Lovell
positively identified Sumasar as the woman who robbed him and swore to this in writing.
The next day, on May 20, 2010, Detectives Nill and Charles drove to the GVS Store in
Brooklyn where Johnson worked and showed her the same photo array. Johnson recognized
Sumasar from a photograph that Ramrattan had previously shown her and from having seen
Sumasar briefly at the Golden Krust. In her second sworn statement, Johnson positively
identified Sumasar as the woman who robbed her on May 19, 2010.
According to Defendants, on May 20, 2010, Detective Nill also showed Johnson a
Mugshot Profile of Jerry Ramrattan, and a six-photo array of male head shots including
Ramrattan, whose name came up from Nill’s computer search as living at Sumasar’s Far
Rockaway address. Detective Nill claims that Johnson denied recognizing him or anyone else in
the photo array. Plaintiffs dispute this statement, noting that in her deposition testimony, Johnson

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could not recall if the police officers ever showed her a photograph of Ramrattan or any male
suspects.
On May 21, 2010, Detective Nill ran a computer National Comprehensive Report Search
for Seemona Sumasar. The report revealed that she was owner of a residence in Far Rockaway;
that she had a recent address there; and that her sister, Lalanee, was the registered owner of a
1999 Jeep Grand Cherokee, the same make and model as the vehicle used in the three reported
armed robberies.
D.

Johnson’s False Report of a Car Break-In

In the late evening of May 20, 2010, or the early morning of May 21, 2010, Ramrattan
told Johnson he wanted her to call police a second time, this time from where Johnson lived in
Engelwood, New Jersey, and report that her car was broken into. Ramrattan stated it was because
he wanted to make sure the police actually arrested Sumasar.
At 4:03 a.m. on May 21, 2010, Johnson placed a telephone call to the Engelwood Police
Department to report that her car was broken into and that her cousin, “Chris Johnson,” who was
in fact Ramrattan himself, was a witness to the break-in. When the Engelwood Police arrived,
Johnson told them that she was woken up by her alarm on her vehicle going off. When she went
outside to check her vehicle, she saw a man open the door to her vehicle. As soon as the man saw
her, he got into the passenger side of a black Nissan Maxima with Pennsylvania plates “RR7031”
and took off with another party. Johnson stated to the Officer that nothing was taken from the
vehicle, and there was no damage to the vehicle. Apparently, Johnson told the police that when
she was robbed on May 19th, some mail with her sister’s address on it and a spare key had also

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been stolen, which supposedly explained how the robbers had been able to trace Johnson to New
Jersey on May 20th.
Later that day, Detective Nill ran the Pennsylvania license plate “RR70K1” in a New York
City ticketing and accident report database that showed it belonging to a black Nissan Maxima
and that the plate had been ticketed twice at an address in Richmond Hill, Queens. In addition,
the report showed Seemona Sumasar was involved in an accident on September 6, 2005, using
this black Nissan Maxima with this license plate.
E.

Sumasar is Taken to the Police Station

On May 21, 2010, Police Officer Knatz arrived at the Golden Krust restaurant in
Richmond Hill, Queens, and was told by Detectives Nill and Charles that they had found a car
parked near the Golden Krust restaurant, a black Nissan Maxima, which they believed was used
in multiple robberies by people impersonating police officers. The detectives told Knatz that they
were looking to arrest the person who was driving that car, if the person did, in fact, get in the car.
Hours later, Sumasar exited the restaurant and got into the black Nissan Maxima. At Detective
Charles and Nill’s instruction, Police Officer Knatz pulled Sumasar over, and Detectives Charles
and Nill drove Sumasar to the police station.
F.

Sumasar’s Interrogation by Detective Charles

At this point, the parties’ stories begin to diverge. Upon arrival at the police station,
Detective Charles read Sumasar her Miranda rights and interrogated her until 3:00 a.m. on May
22, 2014. According to Sumasar, the interrogation lasted for eight hours. Pls.’ Rule 56.1
Counterstatement ¶ 25. Detective Brady took notes of the interrogation.

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It is undisputed that during the course of the interrogation, Sumasar discussed the
following items: (1) that she owned a residential building in Far Rockaway, a two-level house in
which she lived and rented out some rooms; (2) that she was owner of the Golden Krust restaurant
on Liberty Avenue; (3) that she did at one point own and drive a tan Jeep Grand Cherokee, which
was connected to the May 2, 2010 and May 19, 2010 robberies in which the victims identified the
license plate as Florida number “839-NEK,”; (4) that this Jeep Grand Cherokee was at one point
registered to her sister, Lalanee, in Florida but was presently being driven in New York by one of
her ex-boyfriends; (5) that she had a current boyfriend named Devon McDonald, the father of her
twelve year-old daughter, Chiara McDonald, and that Devon lived separately from her nearby in
Far Rockaway; (6) that Devon owned the black Nissan Maxima with the Pennsylvania license
plate “RR70K1” she was driving that day and that Devon loaned her the car for the past two or
three weeks; (7) that she had an ex-boyfriend name Jerry Ramrattan (“Ramrattan”) who used to
live in the basement of her house; (8) that Ramrattan pretended to be a New York City police
officer or detective; (9) that Ramrattan had more than one gun, a bulletproof vest and a police
badge, which he kept in the basement and in the trunk of his car. After finishing taking notes
when the interrogation was concluded, Detective Brady gave his notes to Detective Charles. Both
detectives testified at their depositions that the notes were complete. Charles Dep., dated Oct. 24,
2013 (“Charles Dep.”) at 169-71; Brady Dep., dated Dec. 16, 2013, at 51-52.
According to Sumasar, Detective Charles did not tell her anything about the charges
against her, leaving her to guess why she had been arrested. Pls.’ Rule 56.1 Counterstatement ¶ 3.
After several hours, Detective Charles finally indicated that Sumasar was suspected of
participating in a robbery. Id. Sumasar claims that from the moment she learned that she was

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suspected of impersonating a police officer to commit armed robberies, she made it clear that she
believed Ramrattan was behind the incidents. Id. ¶ 65. Sumasar told Detective Charles about
Ramrattan and the pending rape trial; about Ramrattan’s tendency to impersonate police officers;
that she had seen a bulletproof vest in the trunk of Ramrattan’s car; and that she had seen
Ramrattan with a police shield and gun on many occasions. Id. In fact, it is undisputed that
Ramrattan operated a security company and portrayed himself as former NYPD law enforcement
on his company’s webpages. Id. ¶ 77. In addition, Detective Charles’s notes indicate that she
learned from the Queens DA’s Office that “Jerry the Cop” portrayed himself as a detective, id. ¶
79, though she later testified that she could not recall learning this information, id. ¶ 85.
Detective Charles testified that she was familiar with Ramrattan before the interrogation
as she had run his rap sheet the morning before. Charles Dep. at 320. The rap sheet revealed that
Ramrattan had four felony charges, including two violent and one firearms charge. Id. at 323. It
also indicated that he had three convictions, including one felony and two misdemeanors. Id.
According to Sumasar, she saw that Detective Charles had a picture of Ramrattan clipped to the
file she brought into the interrogation. Pls.’ Rule 56.1 Counterstatement ¶ 4. Although she
repeatedly told Detective Charles that the only possible explanation for these charges was that
Ramrattan had set her up, Detective Charles allegedly told Sumasar that the charges had nothing
to do with Ramrattan. Id. ¶¶ 3-4.
G.

Sumasar’s Arrest

Following the interrogation, Sumasar was placed under arrest and charged with eight
felonies, including two counts of Robbery in the First Degree, New York Penal Law § 160.15(4);
two counts of Criminal Use of a Firearm, Penal Law § 265.09, two counts of Criminal

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Impersonation in the First Degree, Penal Law § 190.26; and two counts of Unlawful Wearing of a
Body Vest, Penal Law § 270.20. Sumasar was placed in custody, arraigned in Hempstead District
Court on $1 million bail and then brought to Nassau County Correctional Center in East Meadow,
New York.
H.

The Investigation by the Nassau County DA’s Office

Nassau County Assistant District Attorney Jessica Cepriano (“ADA Cepriano”)
prosecuted the case against Sumasar. At her deposition, ADA Cepriano testified that she never
spoke to Sumasar outside of the grand jury or the hearing process, and she never interviewed her.
ADA Cepriano Dep., dated Dec. 18, 2013 (“ADA Cepriano Dep.”) at 24, 29. In this regard, she
relied “heavily” on Detectives Charles and Nill. Id. at 30. Detective Nill was her primary source
for information about the case, although she also relied on Detective Charles, whom she spoke to
about the case at least fifteen times. Id. at 24-25. In particular, she relied “exclusively” on
Detective Charles to provide her with information about the substance of her interrogation of
Sumasar, as Detective Nill did not participate in that process. Id. at 24-25, 33. In that regard,
ADA Cepriano reviewed Detective Brady’s notes of Detective Charles’s interview of Sumasar
and spoke with Charles about it. Id. at 97-98. Although ADA Cepriano did not interview
Sumasar, she did interview Johnson and Lovell and found them to be very credible. Id. at 29-30.
1.

Sumasar’s Financial Problems

Before ADA Cepriano presented the case to the grand jury, Detective Charles told her that
Sumasar had begun the interview by expressing that she had financial problems and that her
business was not doing well. Charles Dep. at 183-85; Cepriano Dep. at 81-82, 97-99. ADA
Cepriano thereafter received information about Sumasar’s financial problems from the detectives.

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Cepriano Dep. at 101-02. ADA Cepriano testified that the fact that Sumasar was having financial
problems was “important because it was a potential motive for the crimes,” id. at 103, but she
later acknowledged that this was not going to be the centerpiece of her case against Sumasar;
rather, it was just “another building block.” Id. at 107.
According to Sumasar, she never disclosed that she had any financial problems to
Detective Charles during her interrogation. Pls.’ Rule 56.1 Counterstatement ¶ 62. Sumasar’s
claim is supported by Detective Brady’s original notes and Charles’s additions, neither of which
contain any reference to Sumasar’s alleged statements regarding financial problems. Id. ¶ 63.
2.

Sumasar’s Alibi

Within one week of Sumasar’s arraignment, ADA Cepriano became aware that Sumasar
had an alibi defense that she was at the Mohegan Sun Casino in Connecticut on May 19, 2010, the
night Johnson claimed she was robbed by Sumasar and two men, and ADA Cepriano began
investigating Sumasar’s alibi. Cepriano Dep. at 34-35. According to ADA Cepriano’s testimony,
she found it “strange” that Sumasar had not mentioned her alibi while being interrogated by
Detective Charles; instead, Sumasar had mentioned another trip she took to the casino on a date
not relevant to the crimes for which she was being investigated. Id. at 174-75. “[I]f she had
mentioned one casino visit, why not others,” ADA Cepriano wondered. Id. at 176.
Detective Charles testified that during the May 21-22 interrogation, she discussed the
dates of the reported crimes and asked Sumasar where she was two nights ago, the date of the
purported last robbery. Id. at 169-71. ADA Cepriano could not specifically recall if Detective
Charles told her that she discussed specific dates with Sumasar. Id. at 168-69. Nonetheless,
when confronted with Detective Charles’s testimony, ADA Cepriano conceded that Detective

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Charles must have relayed such information to her. Id. at 170-72, 177. As ADA Cepriano
testified, “[I]f it’s in the hearing, I’m sure [Detective Charles] told me [about asking Sumasar
about her whereabouts on May 19th]. Id. at 171. ADA Cepriano agreed that if Sumasar was
asked about her whereabouts on May 19th and did not mention her alibi at that time, that was a
“big problem.” Id. at 176; see also id. at 177.
Sumasar contends, however, that Detective Charles never told her the dates of the alleged
robberies and never mentioned May 19th at all. Pls.’ Rule 56.1 Counterstatement ¶¶ 35, 49.
Instead, Sumasar claims she did not learn the dates of the alleged crimes until her arraignment the
next day. Id. ¶ 35. Sumasar’s claim is supported by Detective Brady’s contemporaneous 21-page
notes of the interrogations, which Detective Charles subsequently reviewed and found to be
complete, as they make no mention of the May 19th date. Id. ¶ 49.
Because the modus operandi of these reported crimes was distinctive – a young Indian
woman committing armed robberies – the NCPD detectives were investigating them as a linked
pattern. Id. ¶¶ 37, 47. Thus, an alibi for one of the crimes would have been important evidence of
innocence for all of the crimes. Id.
ADA Cepriano’s investigation of Sumasar’s alibi defense included reviewing timestamped photographs taken at the Mohegan Sun Casino in Connecticut that night, as well as
reviewing Sumasar’s cell phone records. Cepriano Dep. at 35-40. Photographs taken at the
casino that night revealed a woman whom ADA Cepriano thought looked like Sumasar, but the
photos were not dispositive evidence. Id. at 35, 122-23. Cell phone records showed that
Sumasar’s cell was used in Connecticut about an hour and a half to two hours after the time of the
robbery. Id. at 38. While ADA Cepriano thought this evidence was also relevant, she did not

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think it was dispositive; it was conceivable that Sumasar committed the crime and drove to
Connecticut within that time frame or, more likely, another individual had used her cell phone.
Id. at 38-40. ADA Cepriano had conversations with Detectives Charles and Nill about this
evidence; both believed that Sumasar had committed the crimes. Id. at 40-41. Lastly, ADA
Cepriano contacted security personnel at the Mohegan Sun to see if there were any relevant
videos or other photographs but was told that everything had been deleted. Id. at 36.
3.

Investigation into Ramrattan

ADA Cepriano also conducted an investigation into Ramrattan, including running his
phone records for two numbers she had for him; running Johnson and Lovell’s phone records;
searching Ramrattan’s Facebook page; and examining potential connections between Ramrattan
and Johnson and Lovell. Id. at 43-45. She also asked Johnson and Lovell whether they knew
Ramrattan, and they replied they did not. Id. at 44-45. ADA Cepriano was aware that Ramrattan
held himself out as a police officer on his website where there were pictures of him in police gear.
Id. at 44-47, 53-54.
ADA Cepriano asked Detectives Charles and Nill to conduct an investigation to determine
whether Ramrattan participated in the crimes. Id. at 59-60. She also asked Detectives Charles
and Nill whether they had any prior interaction with Ramrattan, and they both replied that they
had not. Id. at 47-48. ADA Cepriano further testified that had either of the detectives had any
such interaction, such knowledge would “[a]bsolutely” be of interest to her and very important.
Id. at 48, 55. During ADA Cepriano’s investigation, however, she discovered that Detective
Charles had in fact previously interacted with Ramrattan when Detective Charles was assigned a
hit-and-run case where he was the complainant. Id. at 63-71; Charles Dep. at 29-30, 35-36. ADA

17

Cepriano’s sense from looking at reports of this case was that Ramrattan was involved in some
sort of scam, either for insurance money or to get the other person involved to pay him off.
Cepriano Dep at 65-66. When ADA Cepriano spoke with Detective Charles about the prior car
accident case and Charles’s prior interaction with Ramrattan, Detective Charles claimed that she
had forgotten her past interaction with. Cepriano Dep. at 67-68. At her deposition, however,
Detective Charles admitted that she remembered Ramrattan’s “unique” name and that when his
name came up at the beginning of Sumasar’s investigation, she had recalled that she had a prior
case with him and pulled the file. Charles’ Dep. at 35-36.
It was ADA Cepriano’s understanding, based on Detectives Charles and Nill’s reports of
their investigation into Ramrattan, that they both believed that Sumasar committed the crimes.
Pls.’ Rule 56.1 Counterstatement ¶ 86. Although Detective Charles denies it, the other
investigating officers all testified that Detective Charles was the lead detective on the case. Id. ¶¶
20-22. At her deposition, Detective Charles stated that she did not recall whether she investigated
Ramrattan after her interrogation. Charles Dep. at 297-98.
4.

Sumasar’s Demeanor

Before ADA Cepriano presented the case to the grand jury, Detective Charles told her that
Sumasar had an odd demeanor during the interrogation. Cepriano Dep. at 177-89. Detective
Charles described Sumasar as “extremely calm and unconcerned.” Id. at 185-86. ADA Cepriano
believed Detective Charles’s characterization and had no reason to doubt her. Id. at 184.
Sumasar’s alleged unconcerned attitude was “very peculiar” to ADA Cepriano, and she believed
it was “indicative of someone who [wa]s capable of lying.” Id. at 183.

18

Although ADA Cepriano did not specifically recall Detective Charles relaying to her that
Sumasar was unconcerned about her daughter during the interrogation, id. at 185, 188, at the
grand jury hearing, ADA Cepriano questioned Detective Charles about Sumasar’s demeanor
during the interrogation; Detective Charles responded that Sumasar was unconcerned, stern, and
“she never seemed to be concerned about where her child was.” Id. at 178. At the time of the
interrogation, Sumasar was a single mother living with her twelve-year-old daughter, Chiara.
Pls.’ Rule 56.1 Counterstatement ¶ 52.
According to Sumasar, Detective Charles’s representations about her demeanor during the
interrogation were untrue. For example, Sumasar claims that during the interrogation, she asked
Detective Charles many times to speak to her daughter, but Detective Charles refused. Id. ¶ 54.
In addition, the morning after Detective Charles’s interrogation, NYPD Detective Valle
interviewed Sumasar and described her as a “mess” because she was crying so much. Pls.’ Ex. 24
at 111, 114, 123-25
I.

Sumasar’s Indictment in both Queens and Nassau County

In June 2010, ADA Cepriano presented Sumasar’s case to a grand jury, at which time
Lovell testified that Sumasar and others robbed him on March 2, 2010. Johnson also testified at
the same grand jury that Sumasar and others had robbed her on May 19, 2010. Sumasar also
testified at the grand jury.
On June 21, 2010, a Nassau County grand jury indicted Sumasar for the crimes of
Robbery in the First Degree, two counts; Robbery in the Second Degree, two counts; Robbery in
the Third Degree, two counts; Grand Larceny in the Fourth Degree, two counts; Petit Larceny,
two counts; Criminal Use of a Firearm in the First Degree, two counts; Criminal Impersonation in

19

the First Degree, two counts; and Unlawful Wearing of a Body Vest, two counts. In addition,
after being arrested on May 21, 2010 by the NCPD, Sumasar was also indicted in Queens County
based on Mohanlal’s allegations and charged with Robbery in the First Degree. Sumasar’s bail
was set at $1,000,000, which she could not post, and she remained incarcerated.
J.

Lovell and Johnson Identify Sumasar at a Lineup

On September 9, 2010, having already identified Sumasar from the photo array, Lovell
and Johnson reinforced their identifications of Sumasar after viewing a live, in-person lineup of
six females at the Nassau County Robbery Squad. Johnson signed a sworn statement under
penalty of perjury confirming her identification.
K.

Sumasar’s Exoneration and Ramrattan’s Imprisonment

After Sumasar had been in jail for over six months, the Nassau County District Attorney’s
Office received a tip from an informant that Ramrattan was framing Sumasar for the policeimpersonation robberies. Lovell and Johnson were asked to come into the District Attorney’s
Office to discuss the case. In separate interviews, they both confessed to lying about the
robberies, the photo-array and lineup identifications of Sumasar, and admitted that the robberies
they reported were part of a conspiracy engineered by Ramrattan in order to frame Sumasar.
Lovell and Johnson were arrested, pled guilty to perjury, and was sentenced to six months in jail
plus probation for four years. In addition, Rajive Mohanlal was arrested by the NYPD and
charged with perjury, conspiracy, tampering with a witness, and falsely reporting an incident
based on his allegations that Sumasar robbed him on September 15, 2009. Sumasar was released
from Nassau County Correctional Center on December 2, 2010, and her indictment was dismissed
on January 11, 2011. Ramrattan was subsequently tried in state court and convicted of Rape in

20

the First Degree, Perjury in the First Degree, and Tampering with a Witness in the Third Degree.
He was sentenced to a term of 32 years in prison.
III.

Procedural Background
Plaintiffs commenced this action on December 1, 2011, against the Nassau County

Defendants, as well as against the City of New York and New York City Detectives John Conlon
and Marisa Valle (collectively, the “City Defendants”). The complaint asserts eight causes of
action: (1) false arrest and malicious prosecution in violation of the Fourth Amendment;
(2) a deprivation of due process in violation of the Fourteenth Amendment; (3) interference with
Plaintiffs’ family relationships in violation of the First and Fourteenth Amendment; (4) a civil
rights conspiracy in violation of Section 1983; (5) false arrest and malicious prosecution in
violation of New York law; (6) intentional, reckless, and negligent infliction of emotional
distress; (7) negligence; and (8) a respondent superior claim against the City of New York and
Nassau County. Both sets of Defendants filed motions to dismiss the Complaint pursuant to Rule
12(b)(6). By Order dated January 18, 2013, District Judge Wexler denied both motions. That
same day, the parties consented to conduct this case before a Magistrate Judge for all purposes,
and the case was reassigned to Magistrate Judge Boyle. DE 40.
Plaintiffs thereafter settled their claims with the City Defendants. On April 5, 2013,
Plaintiffs filed two stipulations dismissing all claims against the City Defendants. DE 43, 44.
The stipulations were so ordered by the Court on April 8, 2013.
On July 19, 2013, the case was reassigned to the undersigned. On August 3, 2015, the
Nassau County Defendants filed the instant motion for summary judgment. In their
Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, Plaintiffs

21

voluntarily dismiss all claims against Detective Bershad, Detective Brady, Detective Nill and
Police Officer Michael Knatz. In addition, Plaintiffs voluntarily dismiss Count IV of the
complaint, which asserts a claim for conspiracy under Section 1983. Accordingly, these claims
are hereby dismissed. The only remaining claims are Counts I-III and V-VIII against defendants
Nassau County and Detective Charles.
DISCUSSION
I.

Standard of Review
Federal Rule of Civil Procedure 56(a) provides that a “court shall grant summary judgment

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). The moving party bears the initial
burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).
To determine whether the moving party has satisfied this burden, the Court is required to view the
evidence and all factual inferences arising from that evidence in the light most favorable to the
non-moving party. Doro v. Sheet Metal Workers’ Int’l Ass’n, 498 F.3d 152, 155 (2d Cir. 2007);
Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).
Where the movant shows a prima facie entitlement to summary judgment, “the burden
shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.”
Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “[T]he nonmovant cannot rest on
allegations in the pleadings and must point to specific evidence in the record to carry its burden
on summary judgment.” Id.; see McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 215 n.4 (2d
Cir. 2006) (“[S]peculation alone is insufficient to defeat a motion for summary judgment.”);

22

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (“Even where facts
are disputed, in order to defeat summary judgment, the non-moving party must offer enough
evidence to enable a reasonable jury to return a verdict in its favor.”). Summary judgment is
mandated if the non-moving party fails to make a showing sufficient to establish the existence of
an element essential to that party’s case and on which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Dobbs v. Dobbs, No. 06-CV-6104,
2008 WL 3843528, at *5 (S.D.N.Y. Aug. 14, 2008) (“The Court’s goal should be to isolate and
dispose of factually unsupported claims.”) (internal quotation marks omitted).
With the foregoing principles in mind, the Court now turns to an analysis of Plaintiffs’
claims.
II.

Analysis
As noted above, seven causes of action remain against defendants Nassau County and

Detective Charles only. The Court will address the parties’ arguments in the order in which they
are raised in the briefs.
A.

Sumasar’s Due Process Claims

Count II asserts that Defendants deliberately fabricated inculpatory evidence against
Sumasar, thereby depriving her of her due process rights under the Fourteenth Amendment.
The constitutional right to due process is violated when police officers provide false or misleading
information to a court or prosecutor for use in criminal proceedings. See Bermudez v. City of New
York, 790 F.3d 368, 376 (2d Cir. 2015) (finding that fact issues precluded summary judgment on
plaintiff’s due process claim against detectives for providing misleading information to prosecutor
regarding identification procedures used to implicate plaintiff in state criminal proceedings);

23

Zahrey v. Coffey, 221 F.3d 342, 344 (2d Cir. 2000) (“It is firmly established that a constitutional
right exists not to be deprived of liberty on the basis of false evidence fabricated by a government
officer.”); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (“When a police
officer creates false information likely to influence a jury’s decision and forwards that
information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the
harm occasioned by such an unconscionable action is redressable in an action for damages under
42 U.S.C. § 1983.”). 1
In addition, a due process violation “may also arise where the police or prosecutors
withhold material exculpatory or impeaching evidence from a defendant. The latter theory of
liability is essentially a civil claim seeking damages for a Brady violation.” Fappiano v. City of
New York, No. 15-260-cv, 2016 WL 860255, --- F. App’x ---, at *1 (2d Cir. Mar. 7, 2016) (citing
Bermudez, 790 F.3d at 376 n.4) (“Police officers can be held liable for Brady due process
violations under § 1983 if they withhold exculpatory evidence from prosecutors.”)).
In Bermudez, the plaintiff asserted several due process claims against the investigating
police officers under Section 1983, alleging that they used unconstitutionally suggestive
identification procedures and that they coerced witnesses. 790 F.3d at 374. The district court
granted summary judgment for the officers, finding that the “prosecutor’s independent decision to
bring charges was an intervening cause that cut off liability.” Id. The district court determined
that the prosecutor could not have been misled by the officers because he participated in the
investigation and had interviewed all of the witnesses who had viewed the lineup. Id. at 375.
1

A plaintiff may bring a due process claim even if he or she was not actually tried. See Ricciuti,
124 F.3d at 127 (finding questions of fact on plaintiff’s due process claim where charges were
dismissed before trial); Douglas v. City of New York, 595 F. Supp. 2d 333, 346 (S.D.N.Y. 2009)
(“The Second Circuit has permitted a claim under § 1983 for violation of the right to a fair trial to
proceed even where no trial took place.”) (citing Ricciuti).
24

The Second Circuit reversed, finding that even though the prosecutor had performed his
own investigation, a reasonable jury could still find that that his decision to prosecute was
proximately caused by the officers’ conduct. Id. Specifically, “a jury could find that [the
officers’] alleged failure to inform [the prosecutor] about problems in the initial questioning of
these witnesses could have prevented [the prosecutor] from making an informed decision about
the reliability of that evidence.” Id. at 376. For example, because he was misinformed, the
prosecutor “might have been led to conclude, incorrectly, that any defects in the witnesses'
identifications were minor matters and for that reason could be ignored.” Id. at 375.
Alternatively, once the witnesses adopted a false story based on the suggestive identification
procedure or the officers’ coercion, “they might very well have decided to stick with that story (or
become convinced that it was true), and for that reason have misinformed the ADA when he
subsequently questioned them.” Id. at 375-76. Thus, the Second Circuit held that “a jury could
find that [the officers] remained a proximate cause of the deprivation of [the plaintiff’s] due
process rights.” Id. at 376.
Here, Plaintiff asserts that there are genuine issues of material fact as to whether Detective
Charles fabricated four specific types of evidence: (1) false evidence undermining Sumasar’s true
alibi; (2) false evidence indicating that Sumasar had a criminal personality; (3) false evidence that
Sumasar had admitted to a financial motive for the crime; and (4) false evidence that Detective
Charles had investigated Sumasar’s true explanation that Ramrattan was framing her and had
discovered it to be baseless. The Court agrees and finds that there is sufficient evidence for a jury
to find that ADA Cepriano’s decision-making process was tainted by misleading or false
information provided by Detective Charles.

25

For example, ADA Cepriano testified that she never spoke to Sumasar outside of the
grand jury or the hearing process, and she never interviewed her. Thus, she relied exclusively on
Detective Charles to provide her with information about the substance of Detective Charles’s
interrogation of Sumasar. Detective Charles testified that during her interrogation, she had
specifically asked Sumasar where she had been two nights earlier – the night of the last purported
robbery. ADA Cepriano testified that she thought it was suspicious that Sumasar had been
specifically asked about this date, yet Sumasar never mentioned going to the Mohegan Sun
Casino on that date. Instead, Sumasar had mentioned an earlier trip to the casino. Detective
Charles’s testimony, however, is contradicted by both Sumasar’s testimony (that she was never
asked about that date) and Detective Brady’s notes of the interrogation (which make no reference
to that specific date). If Sumasar’s testimony is credited, a jury could find that ADA Cepriano
discounted Sumasar’s alibi based on false information provided by Detective Charles and that this
misinformation tainted her decision to bring charges.
In addition, Detective Charles told ADA Cepriano that Sumasar had a very odd demeanor
during the interrogation in that Sumasar was extremely calm and unconcerned. ADA Cepriano
testified that she had no reason to question Detective Charles’s characterization, which she found
to be very peculiar and indicative of someone who was capable of lying. There is evidence in the
record, however, including the testimony of Sumasar and NYPD Detective Valle, which
contradicts Detective Charles’s assessment of Sumasar’s demeanor.
Similarly, Detective Charles told ADA Cepriano that during her interrogation, Sumasar
expressed that she had financial problems, and her business was not doing well. ADA Cepriano
testified that she believed that Sumasar’s financial problems were important because they

26

supplied a potential motive for the crimes. Sumasar denies making these statements, and
Detective Brady’s notes include no reference to this alleged admission.
Lastly, there is evidence in the record supporting the fact that Detective Charles falsely
reported to ADA Cepriano that she had investigated Ramrattan’s role in the alleged crimes and
had ruled out his participation. ADA Cepriano testified that she asked Detectives Charles to
conduct an investigation to determine whether Ramrattan participated in the crimes, and Detective
Charles reported back that she believed that Sumasar was guilty. At her deposition, however, and
despite the testimony from her colleagues that she was the lead investigator, Detective Charles
stated that she had no recollection as to whether she investigated Ramrattan at all. ADA Cepriano
also asked Detective Charles whether she had any prior interaction with Ramrattan, and Detective
Charles falsely replied that she had not, despite the fact that she had previously been assigned a
suspicious hit-and-run case where Ramrattan was the complainant. At her deposition, however,
Detective Charles admitted that she remembered Ramrattan’s “unique” name and that when his
name came up at the beginning of Sumasar’s investigation, she had recalled that she had a prior
case with him and pulled the file. Indeed, when she walked into the interrogation room, she had
Ramrattan’s file with her.
Although these discrepancies may not constitute overwhelming evidence of fabrication,
when viewing the record as a whole, they are enough to raise genuine issues of material fact.
Based on this record, a reasonable jury could find that Detective Charles provided ADA Cepriano
with false or misleading information, resulting in the tainting of ADA Cepriano’s investigation.
In support of their motion, Defendants urge the Court to consider the overwhelming
undisputed evidence which supported Sumasar’s arrest and indictment, including the sworn

27

statements by Lovell and Johnson; their photo pack identification of Sumasar; their sworn
identification of Sumasar at a live line-up; and their sworn testimony before the grand jury that
Sumasar had robbed them at gunpoint. 2 Defendants also argue that Sumasar’s due process claims
must fail because based on this evidence, there was probable cause to indict her. The Second
Circuit has squarely rejected this argument:
Each of the defendants insists that so long as there was probable cause for
Alfred Ricciuti's arrest -- independent of the allegedly fabricated evidence -the fabrication of evidence is legally irrelevant. In essence, they argue that
as long as the arrest complied with the Fourth Amendment, the Ricciutis can
have no claim for post-arrest fabrication of evidence against them.
This argument -- an ill-conceived attempt to erect a legal barricade to shield
police officials from liability -- is built on the most fragile of foundations; it
is based on an incorrect analysis of the law and at the same time betrays a
grave misunderstanding of those responsibilities which the police must have
toward the citizenry in an open and free society. No arrest, no matter how
lawful or objectively reasonable, gives an arresting officer or his fellow
officers license to deliberately manufacture false evidence against an
arrestee.. . . [A] police officer’s fabrication and forwarding to prosecutors of
known false evidence works an unacceptable “corruption of the truth-seeking
function of the trial process.”
Ricciuti, 124 F.3d at 129-30; see also Bermudez, 790 F.3d at 376 n.5 (“[T]he absence of probable
cause is not an element of a due process claim.”).
Accordingly, Defendants’ motion for summary judgment on Count II of the complaint,
viz. Sumasar’s due process claims, is denied.

2

Sumasar, on the other hand, urges the Court to recognize all of the red flags Detective Charles
ignored, including that Ramrattan had been impersonating a police officer; that Ramrattan had
easily verifiable connections with the fake victims; and that Lowell had a prior conviction for
making a false report of a crime. See People v. Ramrattan, No. 882/09, Sentencing Hearing (Jan.
4, 2012), Pls.’ Ex. 17 (“[T]he Nassau County police officers who were charged with investigating
the allegations against Miss Sumasar turned a blind eye and a deaf ear to her protests that it was
the defendant, Jerry Ramrattan, who was in fact behind these false allegations.”).
28

B.

Sumasar’s Claims of Malicious Prosecution and False Arrest

Count I asserts a claim for malicious prosecution and false arrest in violation of the Fourth
Amendment. Count V asserts these claims under New York law. The Court will address each
claim in turn.
1.

Malicious Prosecution

Under Section 1983, in order to prevail on a malicious prosecution claim, “a plaintiff must
show a violation of his rights under the Fourth Amendment and must establish the elements of a
malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149,
160-61 (2d Cir. 2010) (internal citations omitted). Sumasar’s six-month detention undoubtedly
qualifies as a post-arraignment seizure under the Fourth Amendment. See Jocks v. Tavernier, 316
F.3d 128, 136 (2d Cir. 2003). Under New York law, however, Sumasar 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.” Manganiello, 612 F.3d at 161
(citations and internal quotation marks omitted). The first two elements are not in dispute here.
“‘[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution in New York,” id. at 161-62 (quoting Savino v. City of New York, 331 F.3d 63, 72 (2d
Cir. 2003)), and ‘indictment by a grand jury creates a presumption of probable cause,’” id.
(quoting Savino, 331 F.3d at 72). “That presumption may be rebutted only ‘by evidence that the
indictment was procured by “fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.”’” Id. (quoting Savino, 331 F.3d at 72 (quoting Colon v. City of New
York, 60 N.Y.2d 78, 83 (1983)). “Where there is some indication in the police records that, as to

29

a fact crucial to the existence of probable cause, the arresting officers may have ‘lied in order to
secure an indictment,’ and ‘a jury could reasonably find that the indictment was secured through
bad faith or perjury,’ the presumption of probable cause created by the indictment may be
overcome.” Id. (quoting Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003)). “‘Like a
prosecutor’s knowing use of false evidence to obtain a tainted conviction, a police officer’s
fabrication and forwarding to prosecutors of known false evidence works an unacceptable
“corruption of the truth-seeking function of the trial process.”’” Id. (quoting Ricciuti, 124 F.3d at
130 (quoting United States v. Agurs, 427 U.S. 97, 104 (1976))).
As set forth in Point I above, a jury could find that Detective Charles engaged in such
misconduct. For example, a reasonable jury could find that Detective Charles failed to make a
complete and full statement of facts to ADA Cepriano, misrepresented or falsified evidence, or
otherwise acted in bad faith. A jury could also find that Detective Charles failed to investigate
Ramrattan’s role in the incidents, including his connections to the fake victims. See Lowth v.
Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (“The New York Court of Appeals has
noted that ‘the failure to make a further inquiry when a reasonable person would have done so
may be evidence of lack of probable cause.’”) (quoting Colon, 60 N.Y.2d at 82).
In addition, the Court finds that there is sufficient evidence in the record to permit an
inference that Detective Charles proceeded against Sumasar with malice. First, “‘[a] lack of
probable cause generally creates an inference of malice.’” Manganiello, 612 F.3d at 163 (quoting
Boyd, 336 F.3d at 78). Second, “‘malice may be shown by proving that the prosecution
complained of was undertaken from improper or wrongful motives, or in reckless disregard of the
rights of the plaintiff.’” Id. (quoting Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996)). Here,

30

malice can be inferred in light of the evidence that Detective Charles (1) told ADA Cepriano that
she did not have any prior interaction with Ramrattan despite the fact that she had; (2) claimed
she asked Sumasar crucial questions regarding her whereabouts on the night of the last reported
robbery, questions which Sumasar denies being asked and are not reflected in Detective Brady’s
notes; (3) claims Sumasar told her she had financial problems, which Sumasar denies and is not
reflected in Detective Brady’s notes; (4) was unable to recall whether she had even investigated
Ramrattan despite evidence that she had done so and was the lead investigator on the case; and
(5) failed to adequately investigate Ramrattan and his connections to the fake victims.
Accordingly, Defendants’ motion for summary judgment is denied with regard to Sumasar’s
malicious prosecution claim.
2.

False Arrest

The elements of a false arrest claim under Section 1983 are substantially the same as the
elements under New York State law: Plaintiff must show that “the defendant intentionally
confined him without his consent and without justification.” Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996). Under both Section 1983 and New York State law, “the existence of probable
cause is an absolute defense to a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 151-52 (2d
Cir. 2006); see also Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015). In
determining whether probable cause existed to support an arrest, the court “considers those facts
available to the officer at the time of arrest and immediately before it,” and renders its decision
based on the “totality of the circumstances.” Simpson, 793 F.3d at 265 (citation and internal
quotation marks omitted).

31

Defendants maintain that Sumasar’s false arrest claim should be dismissed because
Detective Charles had probable cause to arrest Sumasar. Plaintiffs summarily respond by
asserting that “[f]or the same reasons that Defendants lacked probable cause to prosecute,
Defendants lacked probable cause to arrest Ms. Sumasar for the series of brazen robberies that
never took place.” Pls.’ Mem. of Law at 28 n.13. The Court disagrees. Prior to Sumasar’s arrest,
both Johnson and Lovell provided sworn victim statements about the alleged robberies, and each
independently identified Sumasar from a photo array and signed sworn statements that she was
the woman who robbed them. See Stansbury v. Wertman, 721 F.3d 84, 91 (2d Cir. 2013)
(“‘[A]bsent circumstances that raise doubts as to the victim’s veracity,’ a victim’s identification is
typically sufficient to provide probable cause.”) (quoting Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 119 (2d Cir. 1995)). At this point in the investigation, there was no evidence that Ramrattan
may have framed Sumasar, and Detective Chares had no reason to question the truthfulness of the
witnesses. Although Plaintiffs argue that Detective Charles ignored red flags -- such as the fact
that the second reported Nassau County crime was reported by an anonymous caller who chose
not to call 911 and refused to give his identity or that the security guard on duty that night stated
that he had observed nothing suspicious and the security videos showed no crime – “[o]nce a
police officer has a reasonable basis for believing there is probable cause, he is not required to
explore and eliminate every theoretically plausible claim of innocence before making an arrest.”
Ricciuti, 124 F.3d at 128. It is true that Lowell had a prior conviction for making a false report of
a crime. Nonetheless, because “probable cause does not require an officer to be certain that
subsequent prosecution of the arrestee will be successful[, i]t is . . . of no consequence that a
more thorough or more probing investigation might have cast doubt upon the situation.”

32

Fabrikant v. French, 691 F.3d 193, 214-215 (2d Cir. 2012) (citation and internal quotation marks
omitted). Looking at the totality of the circumstances, the Court finds that Sumasar has failed to
produce evidence from which a reasonable juror could infer that Detective Charles lacked a
reasonable basis for believing that there was probable cause to arrest Sumasar. To the extent the
First and Fifth Counts assert a claim for false arrest under Section 1983 and New York law,
respectively, these claims are dismissed.
C.

Absolute Immunity

Defendants argue that they are entitled to absolute immunity under Rehberg v. Paulk, 132
S. Ct. 1497 (2012). In Rehberg, the Supreme Court “announced the bright line rule that a grand
jury witness, including a law enforcement officer, ‘has absolute immunity from any § 1983 claim
based on the witness’ testimony,’ even if that testimony is perjurious.” Coggins v. Buonora, 776
F.3d 108, 112 (2d Cir. 2015) (quoting Rehberg, 132 S. Ct. at 1506). Rehberg, however, did not
foreclose liability when a Section 1983 plaintiff alleges that an officer engaged in out-of-court
misconduct in addition to committing perjury before the grand jury. In Coggins, the Second
Circuit addressed that issue as follows:
When a police officer claims absolute immunity for his grand jury testimony
under Rehberg, the court should determine whether the plaintiff can make
out the elements of his § 1983 claim without resorting to the grand jury
testimony. If the claim exists independently of the grand jury testimony, it is
not “based on” that testimony, as that term is used in Rehberg. Id. at 1506.
Conversely, if the claim requires the grand jury testimony, the defendant
enjoys absolute immunity under Rehberg.
Id. at 113.
Here, Plaintiffs have submitted evidence from which a juror could infer that Detective
Charles engaged in out-of-court misconduct sufficient to support Sumasar’s Section 1983 claims

33

independent of Detective Charles’s grand jury testimony. Accordingly, the Court finds that
Defendants are not entitled to absolute immunity.
D.

Qualified Immunity

“A government official sued in his individual capacity is entitled to qualified immunity
(1) if the conduct attributed to him was not prohibited by federal law, or (2) where that conduct
was so prohibited, if the plaintiff’s right not to be subjected to such conduct by the defendant was
not clearly established at the time it occurred, or (3) if the defendant’s action was objective[ly]
legal[ly] reasonable[ ] . . . in light of the legal rules that were clearly established at the time it was
taken.” Manganiello, 612 F.3d at 164 (internal citations and quotation marks omitted). “Whether
a defendant officer’s conduct was objectively reasonable is a mixed question of law and fact. The
factfinder must determine any disputed material facts, and on the basis of the facts permissibly
found, the court must decide whether it was objectively reasonable for the officer to believe that
his conduct did not violate a clearly established right, i.e., whether officers of reasonable
competence could disagree as to the lawfulness of such conduct.” Id. (citations and internal
quotation marks omitted).
For the reasons discussed above, there are genuine issues of material fact as to whether
Detective Charles engaged in the misconduct alleged. Should a jury find that Detective Charles
did misrepresent the evidence to the prosecutor, or knowingly failed to pass on material
information, such conduct would constitute a violation of clearly established law, and no
objectively reasonable public official could have thought otherwise. Accordingly, Defendants’
motion for summary judgment on the grounds of qualified immunity is denied at this time.

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E.

Right to Intimate Association

Count III asserts a claim for interference with family relationships, i.e., that Sumasar’s sixmonth imprisonment unconstitutionally interfered with her relationship with her daughter Chiara.
Plaintiffs maintain that Detective Charles’s conduct was directed specifically at the protected
relationship because she falsely told the grand jury that Sumasar appeared not to care about her
daughter, despite hearing Sumasar’s repeated pleas for an opportunity to call her daughter during
the interrogation. In addition, Plaintiffs urge that the extent of the interference was significant:
Chiara lost her primary caregiver for over six months.
“Family members have, in general terms, a substantive right under the Due Process Clause
to remain together without the coercive interference of the awesome power of the state.” Anthony
v. City of New York, 339 F.3d 129, 142 (2d Cir. 2003) (citations and internal quotation marks
omitted). 3 In order to prevail on their claim, Plaintiffs must demonstrate that their separation was
“so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even
were it accompanied by full procedural protection.” Id. (citation and internal quotation marks
omitted). “It is not enough that the government act be ‘incorrect or ill-advised’; it must be
‘conscience-shocking.’” Cox v. Warwock Valley Cent. Sch. Dist., 654 F.3d 267, 275 (quoting
Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995)). “‘Only the most egregious
official conduct can be said to be arbitrary in the constitutional sense and therefore
unconstitutional.’” Id. (quoting Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999)).
Defendants argue that their conduct in “simply pursuing a criminal investigation based on
highly credible, corroborative, sworn evidence by the alleged victims themselves . . . was not so
3

In the complaint, Plaintiffs base this claim in both the First and Fourteenth Amendments. The
parties’ briefs, however, only address the Fourteenth Amendment. Accordingly, this claim will
be analyzed solely under the legal framework of the substantive due process right found in the
Fourteenth Amendment.
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shocking, arbitrary and egregious so as to violate the Due Process Clause.” Defs.’ Mem. of Law
in Supp. at 33. The Court acknowledges that this is a high standard to meet. Nonetheless, given
the questions of fact surrounding Detective Charles’s conduct, Defendants’ motion for summary
judgment on this claim is denied. The Court is not prepared to rule as a matter of law that no
reasonable juror could find for Plaintiffs on this claim.
F.

Plaintiffs’ State Law Claims

Defendants argue that the Court should decline to exercise supplemental jurisdiction over
the state law claims if it dismisses the federal claims. Because the Court denies Defendants’
motion for summary judgment with regard to some of the federal claims, Defendants’ request is
denied.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is granted in part
and denied in part. The Court grants summary judgment with regard to Sumasar’s claims for
false arrest; Defendants’ motion is denied in all other respects. In addition, Plaintiffs voluntarily
dismiss all claims against Detective Bershad, Detective Brady, Detective Nill and Police Officer
Michael Knatz as well as Count IV of the complaint. Accordingly, these claims are hereby
dismissed. The only remaining claims are Counts I-III and V-VII against defendants Nassau
County and Detective Charles. However, to the extent Counts I and V assert claims for false
arrest, they are dismissed.
OBJECTIONS
A copy of this Report and Recommendation is being served by the Court on all parties.
Any objections to this R eport and Recommendation must be filed with the Clerk of the Court

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within 14 days. Failure to file objections within this period waives the right to appeal the District
Court’s Order. See 28 U.S.C. § 636 (b) (1); Fed. R. Civ. P. 72; Wagner & Wagner, LLP v.
Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010);
Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60
(2d Cir. 1996).
Dated: Central Islip, New York
March 28, 2016
______/s/_______________
Arlene R. Lindsay
United States Magistrate Judge

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