Morgan et al v. County of Nassau et al

Filing 64

MEMORANDUM & ORDER denying 37 Motion to Amend/Correct/Supplement; granting 40 Motion for Summary Judgment - For the above reasons, the Court denies plaintiffs discovery motions, grants defendants motion for summary judgment, denies plaintiffs cross-motion for summary judgment, and denies plaintiffs remaining motions. SEE ATTACHED DECISION for details. So Ordered by Judge Joan M. Azrack on 2/17/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMES G. MORGAN and
JEREMY P. SAPERSTEIN,

For Online Publication Only

Plaintiffs,
MEMORANDUM &
ORDER
13-CV-06524 (JMA) (GRB)

-againstCOUNTY OF NASSAU, MICHAEL J. LEONE,
“FRANK” FUSAR, “MICHAEL” McGAR, and
“JOHN DOE # 1–12 (being and intended to be all
the police officers involved in the arrest of plaintiffs),
FRANK A. RUVOLO, “JOE” JACOBSON, and
“RICHARD ROE # 1–12” (being and intended to be
all the police officers involved in the interrogation
and processing of the arrest), and KATHLEEN M. RICE,

FILED 
CLERK 

10:47 am, Feb 17, 2017

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Defendants.
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AZRACK, United States District Judge:
Plaintiffs have brought this action alleging false arrest, malicious prosecution, and other
federal claims. Before the Court are defendants’ motion for summary judgment on all claims and
plaintiffs’ cross-motion for summary judgment on their false arrest claim. Also before the Court
are plaintiffs’ motions seeking: (1) to reopen discovery; (2) to compel defendants to produce
certain discovery; (3) an adverse inference based on defendants’ alleged failure to produce that
discovery; (4) to strike defendants’ thirteen affirmative defenses; and (5) to amend the caption to
add new defendants and correct spelling errors.
For the following reasons, the Court denies plaintiffs’ discovery motions, grants
defendants’ motion for summary judgment, denies plaintiffs’ cross-motion for summary judgment,
and denies plaintiffs’ remaining motions.

1

I. BACKGROUND
On May 22, 2012, plaintiffs James Morgan and Jeremy Saperstein were arrested and
charged with robbery in the second degree and criminal possession of a weapon in the fourth
degree, in connection with the attempted armed robbery of Delroy Harris. (Pls.’ 56.1 Statement
¶¶ 1, 9, ECF No. 37–2; Defs.’ 56.1 Statement ¶¶ 4, 27, ECF No. 41.)1
A. Attempted Armed Robbery and Complainant’s 911 Call
At 1:24 a.m. on May 22, 2012, the Nassau Emergency Operator received a 911 call from a
man who was later identified as Delroy Harris. (911 Tr., Aff. of Harry Kutner (“Kutner Aff.”),
Ex. 1, ECF No. 37.) Harris told the Operator that “three kids [had] just pulled out a shotgun” on
him while he was sitting in his parked car on Locust and Front Street in Uniondale, New York.
(Id. at 1:3–4, 3:17–19.) Harris reported that he had parked his car to drop off his friend. Once his
friend exited, the “kids” came up to his car, hit his window with a gun, and demanded that he
“Give it up!” (Id. at 1:10–11, 1:17–19, 2:1–2, 3:17–19.) He then started his car and drove away.
(Id. at 1:20–2:2.) Harris reported that, while driving away, he saw his assailants take off on foot,
“probably” towards Front Street. (Id. at 1:13, 2:5–7.) Harris then called 911 while en route to
Compass Street and Leslie Lane—also in Uniondale. (Id. at 3:5–4:14, 5:4.)
During the call, Harris described all three assailants as “black.” (Id. at 2:12.) He reported
that all three were wearing black hoodies, while one was wearing khaki pants. (Id. at 2:12–20.)
He estimated their ages to be between seventeen and twenty years old. (Id. at 3:1–2.) Although
he initially described the weapon as a “shotgun,” when prompted later, he confirmed only that the

1

Defendants submitted a statement of material facts pursuant to Rule 56.1 in support of their motion for summary
judgment. (Defs.’ 56.1 Statement.) In response, plaintiffs submitted a counter statement of facts. (Pls.’ 56.1
Statement.) The Court cites to these statements only to the extent they state facts which are not in dispute. The Court
notes that neither party has objected to the admissibility of any of the evidence cited in the opposing party’s 56.1
Statement.

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three assailants had a “gun.” (Id. at 1:3, 2:8–9.)
B. Police Dispatcher’s Radio Communications
At 1:25 a.m., the Operator reported the attempted robbery over the police communications
system. (Nassau Cty. Police Dep’t Event Search, Decl. of Pablo Fernandez (“Fernandez Decl.”),
Ex. C, ECF No. 42.) The Operator reported “3 YOUTHS PULLED A GUN ON [Harris] TOLD
HIM TO GIVE IT UP.” (Id. at 1.) The Operator described the assailants as “3 MALES/BLACK,
ALL HAD BLACK HOODIES ONE WEARING KHAKI PANTS APPROX 17-20 YOA.” (Id.
at 2.) The Operator also reported that the assailants were “LAST SEEN HEADED TOWARD
FRONT STREET.” (Id.) It does not appear from the record that the Operator ever communicated
that the assailants had a shotgun or had fled the scene of the attempted robbery on foot. (Id. at 1–
3.) The Operator then helped a police unit locate Harris to get his statement and coordinate a
show-up identification. (Id. at 2.)
C. Officer Edward Jacobsen’s In-Person Interview With Complainant
According to the Crime Report, defendant Officer Edward Jacobsen located Harris in front
of 408 Leslie Lane in Uniondale at approximately 1:25 a.m. (Nassau Cty. Police Dep’t Crime
Report (“Crime Report”), Fernandez Decl., Ex. G at 3, ECF No. 42.) Harris reported the following
facts to Jacobsen:


While parked in his vehicle, Harris had been approached by two black males.



One of the assailants had a firearm and was wearing a “hoodie” and khaki
pants. That assailant had pointed the firearm at Harris and stated “Give it up!”



The second assailant was wearing a “hoodie” and grey sweatpants. That
assailant had approached the driver-side door and shouted “Get out of the car!
Get out of the car!”



Harris then put his car in drive and drove away.

(Id.)
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D. The Initial Detention
At 1:31 a.m., while one police unit was locating Harris, another unit observed the plaintiffs
sitting in a car, idling in front of 1066 Front Street in Uniondale. (Id.) The car was parked with
its lights on, windows open, and engine running. (Id.) As they approached, Officer Gregory
Holgerson and defendant Officer Michael Leone observed three passengers—one driver (later
identified as Saperstein), one front seat passenger (not a party in this action), and one rear seat
passenger (later identified as Morgan). (Id.) The officers further observed that the driver was
white and the two passengers were black. (Id.) As they got closer to the vehicle, the police saw
that the rear seat passenger (Morgan) was wearing a black ski mask covered by a blue hooded
sweatshirt. (Id.) That passenger was also wearing grey sweatpants. (Nassau Cty. Police Dep’t
Arrest Report of James Morgan (“Morgan Arrest Report”), Kutner Aff., Ex. 8 at NC 000194, ECF
No. 37.). They also saw that the driver (Saperstein) was wearing a black and white hooded
sweatshirt and black sweatpants,2 while the front seat passenger (who is not a plaintiff in this
action) was wearing a gray hooded sweatshirt and khaki colored pants. 3 (Crime Report at 4;
Nassau Cty. Police Dep’t Arrest Report of Jeremy Saperstein (“Saperstein Arrest Report”), Kutner
Aff., Ex. 8 at NC 000011, ECF No. 37.) The three passengers were eating food from McDonald’s
when the police approached the car. (Grand Jury Testimony of James Morgan (“Morgan Tr.”),
Fernandez Decl., Ex. D at 14:14–16, ECF No. 42.)

Although the Crime Report describes Saperstein’s hooded sweatshirt as “black,” other police records indicate that
Saperstein’s hooded sweatshirt was black and white-striped. In any event, defendants do not dispute that Saperstein’s
actual sweatshirt differed from the sweatshirt described by Harris in his initial 911 call. (Saperstein Arrest Report at
NC 000011.) Viewing the evidence in the light most favorable to plaintiff, the Court will assume that Saperstein’s
sweatshirt was black and white-striped.
2

In one of plaintiffs’ briefs, plaintiffs assert that none of the arrestees were wearing khaki pants. (Pls.’ Superceding
Mem. at 13, ECF No. 60.) This assertion, however, is not supported by any evidence in the record. Furthermore, in
a different submission, plaintiffs appear to concede their co-arrestee was wearing khakis. (Pls.’ Att’y Aff. in Opp’n
to Mot. and in Supp. of Cross-Mot. (“Att’y Aff.”) ¶ 6, ECF No. 37.)
3

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All three men were removed from the car and patted down. (Crime Report at 4.) According
to the Crime Report, the police then conducted a search of the vehicle, which revealed a black
firearm contained in the vehicle’s unlocked glove compartment. The police later determined that
this firearm was a BB gun. (Id.) According to the Crime Report, the police then handcuffed all
three men and brought Harris to the scene for a show-up identification, which is discussed below.
(Id.) During this time, multiple police officers had their weapons drawn. (Pls.’ 56.1 Statement ¶
4.)
E. The Show-Up Identification and Arrest
At 1:35 a.m., the police escorted Harris to the site where plaintiffs were being detained.
(Crime Report at 4.) First, Harris identified the front seat passenger (not a party here) as the
assailant who had approached him with a gun and stated “Give it Up!” (Id.) Then Harris identified
the driver (Saperstein) as being a “subject in the robbery committed against him” and “one of the
three men that walked past [his] car.” (Id.; Supporting Dep. of Delroy Harris (“Harris Dep.”),
Kutner Aff., Ex. 8 at NC 000045, ECF No. 37.) Lastly, Harris identified the rear seat passenger
(Morgan) as the assailant who had approached the driver-side door and shouted “Get out of the
car! Get out of the car!” (Crime Report at 4.) Harris later confirmed his identifications via a signed
supporting deposition. (Harris Dep.)
All three suspects were then placed under arrest and transported to the Nassau County
Police Department’s First Precinct for processing.4 (Crime Report at 4; Saperstein Arrest Report
at NC 00011, ECF No. 37; Morgan Arrest Report at NC 000194.) At the Precinct, plaintiffs were
Plaintiffs’ affidavits state, in conclusory fashion, that they were “arrested” before the search of the vehicle and the
show-up identification occurred. (Pls.’ 56.1 Statement ¶ 4; Aff. of James Morgan dated July 9, 2012 (“Morgan Aff.
7/9/12”) ¶ 4, Kutner Aff., Ex. 8 at NC 000109, ECF No. 37; Aff. of Harry Kutner dated July 9, 2012 ¶ 56, Kutner
Aff., Ex. 8 at NC 000132, ECF No. 37.) The question of when plaintiffs were placed under arrest is a legal one. As
discussed below, see infra II.C.2, the Court concludes, as a matter of law, that plaintiffs were arrested prior to the
search and identification.
4

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questioned by the police. (Morgan Tr. at 14:19–22; Grand Jury Testimony of Jeremy Saperstein
(“Saperstein Tr.”), Fernandez Decl., Ex. E at 12:22–13:6, ECF No. 42.) Although plaintiffs
participated in the interview, (Saperstein Tr. at 12:22–13:20), the police did not obtain any
admissions from them, (Crime Report at 3). At some point during the questioning, the officers
yelled at the plaintiffs and referred to Saperstein as a “retard.” (See Morgan Tr. at 19:17–19; Aff.
of James Morgan dated February 29, 2016 (“Morgan Aff. 2/29/16”) ¶ 6, ECF No. 37.) Plaintiffs
contend that Saperstein has a learning disability. (Pls.’ 56.1 Statement ¶ 8.)
F. Indictment and Dismissal
On June 18, 2012, a Nassau County Grand Jury indicted plaintiffs for robbery in the second
degree, New York Penal Law § 160.10, and criminal possession of a weapon in the fourth degree,
New York Penal Law § 265.01. (Grand Jury Indictment, Fernandez Decl., Ex. F, ECF No. 42.)
Morgan, Saperstein, and the other criminal defendant all testified before the grand jury.5 (Morgan
Tr.; Saperstein Tr.)
Plaintiffs’ indictment was dismissed on September 17, 2012. (Pls.’ 56.1 Statement ¶ 14.)
However, nothing in the record indicates why the indictment was dismissed.
G. The “Alibi Evidence”
In their moving papers, plaintiffs refer to several pieces of allegedly exculpatory evidence.
Specifically, plaintiffs mention: (1) a McDonald’s receipt bearing a time stamp of 1:17 a.m.; (2)
surveillance footage from the McDonald’s showing the plaintiffs and bearing a time stamp of
1:20–1:26 a.m.; and (3) surveillance footage along the route from plaintiff Morgan’s house to the
McDonald’s on Front Street showing the plaintiffs (collectively, the “alibi evidence”). If such

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The record includes only excerpts of the grand jury testimony from the criminal defendants. The record does not
include any grand jury testimony from other witnesses, such as police officers, who may have testified. Plaintiffs
have moved to compel production of the complete grand jury transcript. See supra II.A.

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evidence did, in fact, exist, it would support an alibi for plaintiffs. Plaintiffs could not have
conducted the attempted armed robbery at Locust and Front Street at 1:24 a.m. if they were at the
McDonald’s from 1:20 a.m. until 1:26 a.m. (See 911 Tr. at 1:3–4, 3:17–19.)
Neither the receipt nor any of the surveillance footage is in the record. Instead, plaintiffs
cite to various pieces of indirect evidence concerning the receipt and surveillance footage. For
example, Morgan testified, in the grand jury, that defendant Detective Frank Ruvolo told Morgan
that he had seen the McDonald’s surveillance video and that the plaintiffs were on the video. The
Court will address this evidence more fully below, in the discussion of plaintiff’s malicious
prosecution claim.6 See infra II.D.4.i.
H. Procedural History
Plaintiffs Morgan and Saperstein commenced this action on November 25, 2013. (Compl.,
ECF No. 1.) Plaintiffs bring claims against the County of Nassau, Michael J. Leone, Matthew
Fusaro (named as “Frank” Fusar in the complaint), “Michael” McGar, John Does 1–12, Frank A.
Ruvolo, Edward Jacobsen (named as “Joe” Jacobson in the complaint), Richard Roes 1–12, and
Kathleen Rice (collectively, the “County defendants”). Plaintiffs assert violations of the First,
Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution in violation of
42 U.S.C. § 1983.7 Specifically, plaintiffs contend: (1) that they were falsely arrested and
imprisoned, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments; (2) that they
were maliciously prosecuted in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments;

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There is no evidence in the record indicating that the police were aware of any of the alleged alibi evidence when
they arrested the plaintiffs, see infra II.C.5 and II.D.4.i, so this evidence has no bearing on plaintiffs’ false arrest and
imprisonment claims.
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In addition to their § 1983 claims, plaintiffs initially brought several state tort law claims against the County
defendants. Plaintiffs, however, have since withdrawn those claims. (Pls.’ Opp’n to Defs.’ Proposed Rule 56 Motion,
ECF No. 23.)

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(3) that their rights to freedom of speech and association were infringed in violation of the First
and Fourteenth Amendments; and (4) that they were subjected to unreasonable searches in
violation of the Fourth and Fourteenth Amendments.
This case was initially assigned to District Judge Joseph F. Bianco and Magistrate Judge
Gary R. Brown. On February 25, 2014, Judge Brown issued a Scheduling Order setting October
31, 2014 as the deadline for completion of all discovery. (ECF No. 13.) On May 15, 2014,
plaintiffs submitted a letter asking the Court to adjourn a settlement conference because certain
records related to the “underlying criminal prosecution” had not been provided. (ECF No. 15).
Plaintiffs, however, never filed a motion to compel before Judge Brown to obtain such records.
On September 19, 2014 defendants filed a letter motion to compel plaintiffs to furnish “complete
and satisfactory responses to County Defendants First Combined Demands.” (ECF No. 20.) This
letter motion was withdrawn on September 23, 2014 after the parties conferred and agreed to a
new deadline for production of those responses. (ECF No. 21.) Discovery then closed on October
31, 2014.

During discovery, plaintiffs never moved to compel defendants to produce any

discovery, including the “alibi evidence” or any evidence related to the post-arrest investigation of
plaintiffs. It also appears that plaintiffs never deposed the County defendants or Harris, the victim.
On November 21, 2014, defendants submitted a pre-motion conference letter to Judge
Bianco requesting leave to file a motion for summary judgment. (ECF No. 22.) Plaintiffs opposed
in a letter dated December 15, 2014. (ECF No. 23.) Plaintiffs’ opposition rested on the merits of
each of their claims and did not mention any outstanding discovery requests. (Id.) After a
conference held on December 16, 2014, Judge Bianco set a briefing schedule for defendants’
motion for summary judgment and scheduled oral argument on the motion. (ECF No. 24.) The
case was then reassigned to the undersigned on January 16, 2015.

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Defendants appear to have served their summary judgment motion on plaintiffs on January
20, 2015. (ECF No. 40.) Plaintiffs submitted a letter on April 17, 2015, requesting an adjournment
of the briefing schedule, citing plaintiffs’ counsel’s health. (ECF No. 27.) This request did not
mention any outstanding discovery issues. The Court granted plaintiffs’ request and adjourned
oral argument indefinitely, to be scheduled only if necessary. Plaintiffs then requested eight more
adjournments of the briefing schedule, extending the deadline for the fully briefed motion to March
15, 2016. (ECF No. 36). Plaintiffs cited various reasons for the requested extensions, but did not
once mention outstanding discovery issues.
On March 2, 2016, plaintiffs submitted a cross-motion for summary judgment. This crossmotion included, inter alia, several motions to compel the production of evidence from defendants.
Plaintiffs also moved to amend the complaint to name new defendants in the place of certain “John
Doe” and “Richard Roe” defendants.
On May 9, 2016, defendants filed additional briefing for the various motions filed by the
parties. (ECF Nos. 40–45.) Then, after requesting four more extensions, plaintiffs filed additional
briefing on September 22, 2016. (ECF No. 51–52.)
After reviewing the submissions in the pending motions, the Court noticed that defendants’
opening brief in support of their summary judgment motion was missing several pages. (ECF No.
43.) At a conference with all parties, the Court ordered defendants to submit the omitted pages
and permitted plaintiffs an opportunity to respond to the arguments contained therein. (ECF No.
55.) This additional briefing was completed on December 27, 2016.
II. DISCUSSION
A. Plaintiffs’ Motion to Reopen Discovery and Motions to Compel
Plaintiffs have asked the Court to reopen discovery and stay decision on the summary

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judgment motions. In particular, plaintiffs move to compel defendants to produce: (1) the alibi
evidence; and (2) materials related to the post-arrest investigation and decision to dismiss the
indictment against plaintiffs, including the complete grand jury testimony (collectively, the “postarrest investigation evidence”). Plaintiffs allege that defendants have “concealed” these materials.
(Pls.’ Att’y Aff. in Reply ¶ 1, ECF No. 51.) Plaintiffs also request an opportunity to depose the
defendants, who apparently were never deposed during discovery.
Plaintiffs also argue that, if the Court denies their request to reopen discovery, the Court
should draw an adverse inference against defendants because of their non-production of the alibi
and post-arrest investigation evidence. Plaintiffs also request that defendants’ affirmative defenses
be stricken because of defendants’ alleged discovery violations.
Defendants oppose plaintiffs’ discovery motions, arguing: (1) that plaintiffs have failed to
demonstrate good cause why discovery should be reopened and (2) that plaintiffs have not
established that defendants failed to comply with their discovery obligations.
The Court denies plaintiffs’ request to reopen discovery because plaintiffs have failed to
demonstrate good cause. Additionally, the Court declines to draw an adverse inference against
defendants or to strike defendants’ affirmative defenses.
1. Standard
Federal Rule of Civil Procedure 16(b)(4) permits a Court to modify an existing scheduling
order “only for good cause . . . .” Fed. R. Civ. P. 16(b)(4). “A finding of good cause depends on
the diligence of the moving party.” Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)
(citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)); see also Rent-ACenter Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (“In other words,
the movant must show that deadlines cannot be reasonably met despite its diligence.”). In the

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exercise of its discretion under 16(b), a court may also consider prejudice to the non-moving party.
Kassner v. 2d Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007). District courts regularly
deny proposed modifications of scheduling orders that would require the reopening of discovery.
See, e.g., Kenny v. Cty. of Suffolk, 05-CV-6112, 2008 WL 4936856, at *1–2 (E.D.N.Y. Nov. 17,
2008) (declining to reopen discovery where counsel had “ample opportunity to pursue discovery”
but made a motion to reopen discovery ten months after the discovery deadline); cf. Grochowski,
318 F.3d at 86 (affirming denial of leave to amend complaint under Rule 16 when movant had
delayed over a year, discovery was complete, and a summary judgment motion was pending);
Morritt v. Stryker Corp., 973 F. Supp. 2d 177, 194–96 (E.D.N.Y. 2013) (finding prejudice where
proposed amended complaint would require further discovery, discovery was already complete,
and summary judgment motion was pending).
2. Plaintiffs Have Not Demonstrated Good Cause to Reopen Discovery
Pursuant to Judge Brown’s February 24 Scheduling Order, discovery closed on October
31, 2014. (ECF No. 13.) Plaintiffs did not move to compel production of additional discovery
until March 2, 2016. (ECF No. 37.)
Plaintiffs have failed to demonstrate good cause because they were not diligent in their
pursuit of the requested discovery. Plaintiffs communicated with the Court numerous times during
the discovery period and after it closed, but waited over a year and half to raise the instant discovery
requests. (See ECF Nos. 15, 23, 26, 27, 28, 29, 30, 32, 33, 35, 36, 37.) Plaintiffs had “ample
opportunity to pursue discovery;” they were simply delinquent in doing so. See Kenny, 2008 WL
4936856, at *2. Furthermore, because the discovery deadline has already passed and defendants
have submitted a motion for summary judgment, the Court finds that reopening discovery at this
point would unduly prejudice defendants. See Morritt, 973 F. Supp. 2d 177.

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Accordingly, plaintiffs’ motions to reopen discovery and compel defendants to produce
additional evidence are denied.8
3. Plaintiffs’ Requests for an Adverse Inference and Motion to Strike Defendants’
Defenses are Denied
In the event their discovery motions are denied, plaintiffs request an adverse inference
against defendants based on their alleged failure to produce the alibi and post-arrest investigation
evidence. Plaintiffs also request that defendants’ affirmative defenses be stricken.
To the extent that plaintiffs contend that defendants engaged in spoliation, that argument
is meritless. Plaintiffs offer no evidence that defendants have destroyed relevant evidence that was
in their possession.9
Plaintiffs also assert that they are entitled to an adverse inference because defendants
allegedly breached their discovery obligations by not adequately responding to plaintiffs’
discovery demands. This argument is similarly meritless.
Once plaintiffs served their discovery requests on defendants, defendants had thirty days
to respond or object to those requests. Fed. R. Civ. P. 34(b)(2)(A) & (C). There is no dispute that
defendants’ objections to plaintiffs’ requests were timely. If plaintiffs wished to pursue the
requested discovery over defendants’ objections, plaintiffs should have moved to compel pursuant
to Rule 37 before the deadline to complete discovery. Plaintiffs failed to do so during the discovery
period. Instead, plaintiffs first moved to compel in their cross-motion for summary judgment, filed

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The Court also notes several procedural deficiencies in plaintiffs’ discovery motions that further support the Court’s
decision to deny the requested relief. Specifically, it is undisputed that plaintiffs: (1) did not attempt to meet and
confer with defendants prior to moving to compel as required by FRCP 37(a)(1) and Local Rule 37 and (2) failed to
request a pre-motion conference as required by the Court’s Individual Rules IV.B.
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At one point in their moving papers, plaintiffs claim that the McDonald’s receipt was taken from them the morning
of the arrest and “presumably destroyed [by defendants] since it was exculpatory.” (Pls.’ 56.1 Statement ¶ 5.)
However, there is no evidence in the record that the police destroyed the McDonald’s receipt or that such a receipt
was ever in the possession of the police. For further discussion of the McDonald’s receipt, see infra II.D.4.i.

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on March 2, 2016, more than one year and five months after discovery had closed. (ECF Nos. 13
& 37.) The notion that plaintiffs should receive an adverse inference, or that the Court should
strike defendants’ affirmative defenses, when plaintiffs failed to timely pursue a motion to compel
is absurd. The Court denies plaintiffs’ request for an adverse inference and motion to strike
defendants’ affirmative defenses.
In light of the Court’s decision to deny plaintiffs’ motion to reopen discovery, motions to
compel, and request for an adverse inference, the Court will decide the pending summary judgment
motions on the record currently before it.
B. Standard for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c));
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). The movant
bears the burden of demonstrating that “no genuine issue of material fact exists.” Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citations omitted). “An issue of fact
is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law,’”
while “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a
verdict for the non[-]moving party.’” Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d
Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
When determining whether any material facts are in dispute, the court “must examine the
evidence in the light most favorable to, and draw all inferences in favor of, the non-movant . . . .”10

As explained below, the Court is granting defendants’ motion for summary judgment. Accordingly, the Court has
analyzed all of the evidence in the light most favorable to plaintiffs.
10

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Marvel Characters, 310 F.3d at 286 (citing Matsushita, 475 U.S. at 587; Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000)). To defeat a properly supported motion for summary
judgment, “the non[-]moving party must come forward with ‘specific facts showing that there is a
genuine issue for trial.’” Matsushita, 475 U.S. at 587 (emphasis in original) (quoting Fed. R. Civ.
P. 56(e)). The non-moving party, however, “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Id. at 586 (citations omitted). Mere conclusory
allegations, speculation, or conjecture will not avail a party resisting summary judgment. See
Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003). Unless the non-moving party
produces “significant probative evidence” demonstrating that a factual dispute exists, summary
judgment is appropriate. Anderson, 477 U.S. at 249.
C. False Arrest and Imprisonment Claims
The police officer defendants assert that they are entitled to qualified immunity on
plaintiffs’ false arrest and imprisonment claims.11 Defendants argue that they had probable
cause—or in the alternative, arguable probable cause—to arrest the plaintiffs. Plaintiffs oppose
and cross-move for summary judgment on these claims. Plaintiffs argue that the differences
between Harris’s initial 911 description and plaintiffs’ appearance at the time of the show-up
identification and arrest, along with plaintiffs’ alibi, establish that arguable probable cause did not
exist at the time of the arrest.
The Court concludes that the individual officers are entitled to qualified immunity because
under the totality of the circumstances there was probable cause to arrest the plaintiffs. The Court

“False arrest and false imprisonment are largely synonymous because an imprisonment starts at the moment of
arrest.” Jenkins v. City of New York, 478 F.3d 76, 88 n.10 (2d Cir. 2007) (quoting 59 N.Y. Jur. 2d False Imprisonment
§ 1). Because the existence of probable cause is an also an absolute defense to a false imprisonment claim and arguable
probable cause establishes an individual officer’s qualified immunity to a false imprisonment claim, id. at 84, 88 n.10,
the Court’s analysis applies with equal force to plaintiffs’ false imprisonment claim.
11

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further finds that even if the plaintiffs lacked probable cause, the individual officers would still be
entitled to qualified immunity because, at the very least, there was arguable probable cause to
affect the arrest.
1. Standard
A plaintiff cannot prevail on a claim for false arrest if the defendant had probable cause to
arrest the plaintiff. Jaegly v. Couch, 439 F.3d 149, 151–52 (2d Cir. 2006). The Court assumes
arguendo that defendants bear the burden of proving that there was probable cause for plaintiffs’
arrests. Blau v. Suffolk Cty., No. 11-CV-4818, 2016 WL 426515, at *3 (E.D.N.Y. Feb. 3, 2016).
Probable cause exists where “the arresting officer [has] knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.” Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000) (quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)). A
court evaluates the existence of probable cause in light of the totality of the circumstances. Kent
v. Katz, 312 F.3d 568, 576 (2d Cir. 2002).
“Under federal law, a police officer is entitled to qualified immunity where ‘(1) his
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known, or (2) it was ‘objectively reasonable’ for him to believe that his actions
were lawful at the time of the challenged act.’” Jenkins, 478 F.3d at 87 (quoting Cerrone v. Brown,
246 F.3d 194, 199 (2d Cir. 2001)). The critical inquiry here is whether the arresting officers’
determination that they had probable cause to arrest was objectively reasonable. “An officer’s
determination is objectively reasonable if there was ‘arguable’ probable cause at the time of the
arrest—that is, if ‘officers of reasonable competence could disagree on whether the probable cause
test was met.’” Jenkins, 478 F.3d at 87 (quoting Lennon v. Miller, 66 F.3d 416, 423–24 (2d Cir.

15

1995)); see also Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (“[Q]ualified immunity protects
‘all but the plainly incompetent or those who knowingly violate the law.’” (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986))). To determine whether an officer’s conduct was objectively
reasonable, a court considers the information available to the officer and does not inquire into the
officer’s subjective intent. Conn. ex rel. Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir. 2003).
“[A] court considering a summary judgment motion in a false-arrest or maliciousprosecution case must construe in favor of the non-moving party any factual disputes regarding
what circumstances were known to the officer at the relevant time.” Benn v. Kissane, 510 F. App’x
34, 37 (2d Cir. 2013). “After that, however, the court must undertake a neutral, legal analysis of
whether those (assumed) circumstances satisfy the probable-cause standard.” Id. (citing Jenkins,
478 F.3d at 88. “In other words, the court should resolve in favor of the non-moving party any
disputes about what information the officer knew, but it should neutrally determine whether that
information gave rise to probable cause.” Id. (emphasis in original).
2. Plaintiffs Were Arrested After the Show-Up Identification
Before turning to the question of probable cause, the Court addresses the timing of the
arrest. As noted in the Background section, plaintiffs’ affidavits state, in conclusory fashion, that
they were “arrested” before the search of the vehicle and the show-up identification occurred.
Plaintiffs, however, do not argue that the timing of the arrest is material to the question of probable
cause. Specifically, plaintiffs fail to argue that the Court should not consider the show-up because
it occurred subsequent to the arrest.
In any event, the Court has reviewed the record and concludes, as a matter of law, that the
actions preceding and including the show-up identification were consistent with police conduct
during an investigatory stop, not an arrest. See Dempsey v. Town of Brighton, 749 F. Supp. 1215,

16

1221–22 (W.D.N.Y. 1990) (finding, at summary judgment, that “it [wa]s clear” that brief
handcuffing of suspect, pat down of suspect, and transportation of suspect to nearby crime scene
for show-up identification concerning alleged armed robbery was not “tantamount” to an arrest,
but rather was an investigatory stop), aff’d sub nom. Curenton v. Town of Brighton, 940 F.2d 648
(2d Cir. 1991); Gil v. Cty. of Suffolk, 590 F. Supp. 2d 360, 367–68 (E.D.N.Y. 2008) (finding that
detaining suspect in handcuffs for seventeen minutes did not elevate investigatory stop to an
arrest). Accordingly, it is appropriate for the Court to consider the show-up in determining whether
there was probable cause for the arrest.
3. The Individual Officers Had Probable Cause For The Arrest
Defendants argue that the individual officers had probable cause, or in the alternative,
arguable probable cause, to arrest plaintiffs. The Court agrees and finds that the officers had
probable cause to arrest plaintiffs based on Harris’s show-up identification. In any event, even if
there was not probable cause, there was certainly arguable probable cause to arrest plaintiffs. See
Hargroves v. City of New York, 411 F. App’x 378, 384 (2d Cir. 2011) (“[The Court cannot say
that the officers] acted incompetently or in knowing violation of the law in believing they had
probable cause to arrest the plaintiffs once they had been visually identified by the victim.”).
“Ordinarily, the identification, by an eyewitness, of a suspect will likely be sufficient to
establish probable cause for an arrest.” Id. at 383 (citing Russo v. City of Bridgeport, 479 F.3d
196, 199, 204 (2d Cir. 2007)). A number of courts have found probable cause and arguable
probable cause based on show-up identifications similar to the one conducted here. See id. 383–
84 (concluding that, in the absence of circumstances that “raise doubts as to the victim’s veracity,”
a show-up identification by a victim is sufficient to establish arguable probable cause (quoting
Singer, 63 F.3d at 119)); Sorrell v. Cty. of Nassau, 162 F. Supp. 3d 156, 166–67 (E.D.N.Y. 2016)

17

(finding show-up was not “so suggestive such that it could not provide probable cause for arrest”);
Gil, 590 F. Supp. 2d at 364, 368–69 (finding that the “evidence [did] not suggest that the show-up
identification was so flawed as to undermine probable cause”).
Plaintiffs argue that a show-up identification made under circumstances in which a
complainant’s initial description and a plaintiff’s actual appearance differ cannot establish
probable cause.12 However, the cases cited above illustrate that show-up identifications may
establish probable cause even where a complainant’s earlier description of his assailant differs
from a suspect’s actual appearance at the time of the identification. In Hargroves, the Second
Circuit affirmed a district court’s finding of probable cause based on a show-up identification,
despite the fact that the victim had initially described his assailants as a large group of black males,
one of whom was wearing an orange coat, when plaintiff was actually wearing a red and blue coat
and was observed amidst a large group of black males. 411 F. App’x at 383–84. In Gil, the court
found a show-up identification provided probable cause to arrest even though the actual
appearance of an arrestee differed significantly from the initial description provided to police by
the complainant. 590 F. Supp. 2d at 363–64, 368–69 (concluding show-up established probable
cause even where complainant had initially described the suspect as short (5’2”), wearing a mask
and a blue hooded sweatshirt, and the plaintiff was actually tall (5’9”) and wearing a black knit
earwarmer and black hooded sweatshirt). The differences between the complainant’s initial
description and the plaintiffs’ appearance at the time of arrest were even starker in Sorrell. 162 F.

12

The parties dispute which description provided by Harris—i.e., the 911 Transcript, the Police Radio
Communications, or the in-person description—should govern the Court’s analysis. The Court notes that the Second
Circuit has rejected the notion that exculpatory information known to one police officer can be imputed to other
officers. Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003) (“[The collective knowledge] doctrine cannot
be used to impute to an officer ‘facts known to some [other] members of the police force which exonerate an arrestee.’”
(emphasis in original) (quoting United States v. Valez, 796 F.2d 24, 28 (2d Cir. 1986))). In any event, the question of
which description should govern is ultimately immaterial because the Court finds that even the most divergent initial
description—the 911 Transcript—is not so different from plaintiffs’ appearance as to undermine probable cause.

18

Supp. 3d at 161–62, 166–67. In Sorrell, the victim of an armed robbery initially described her
assailants as three people—one man and two women—who were black, in their twenties, and in a
white four-door Honda sedan. The victim further described: (1) the man as tall, chubby, and
wearing all black and a black doo-rag; (2) one of the women as wearing a white shirt and jeans
with “nappy hair worn up”; and (3) the other woman as wearing a pink shirt, jeans, a lot of jewelry,
and also with “nappy hair worn up.” Id. at 161–62. When the victim arrived at the scene to
conduct a show-up identification, she was shown four black suspects who had been observed in a
white four-door Honda sedan. One of the men was wearing a black t-shirt with a design on the
front, one of the women was wearing a white shirt with pink lettering, and the other woman was
wearing a black t-shirt and a dark blue sweatshirt. Neither woman had on visible jewelry, nor did
they have their hair up.

Despite the differences between the initial description and plaintiffs’

actual appearance, the district court concluded that the show-up was sufficient to establish
probable cause. Id. at 166–67.
Plaintiffs also argue that the show-up identification conducted here was “unduly
suggestive,” and, thus, could not be a basis for probable cause. Specifically, plaintiffs contend the
show-up was suggestive because: (1) each plaintiff was presented to Harris one at a time; (2) the
plaintiffs were handcuffed; (3) and “no doubt [Harris had been told] ‘We have the guys’ in some
form . . . .” (Att’y Aff. ¶ 20.) These arguments are meritless. First, the isolated presentation of
each suspect is an inherent feature of most show-ups and is not enough to show that the show-up
was unduly suggestive. See Sorrell, 162 F. Supp. 3d at 166 (citing Brisco v. Ercole, 565 F.3d 80,
88 (2d Cir. 2009)).

Second, the mere presence of handcuffs does not render a show-up

impermissible. See Gil, 590 F. Supp. 2d at 364 (citing People v. Armstrong, 783 N.Y.2d 134, 136
(3d Dep’t 2004)). Finally, plaintiffs’ suggestion that the police told Harris that they “ha[d] the

19

guys” is not supported by any evidence in the record.
In light of the cases above, the Court concludes that defendants had either probable cause
or arguable probable cause to arrest the defendants based on the show-up identification. This
conclusion is supported by the other facts available to the police at the time of the arrest: police
observed the plaintiffs in close proximity to the crime scene, minutes after the crime occurred,
idling in a car, late at night, while one of the passengers was wearing a black ski mask.
4. Admissibility of the Show-Up Identification
The Court also notes that, at certain points in their moving papers, both parties seem to
suggest that the question of whether the show-up identification established probable cause turns
on whether the show-up identification would have been admissible in a criminal prosecution.13
The admissibility of show-up identifications in criminal proceedings is governed by the two-prong
test set out in Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). “[I]dentification evidence will
be admissible if (a) the procedures were not suggestive or (b) the identification has independent
reliability.” Id. (colleting cases).
“While a show[-]up procedure is inherently suggestive because it involves the presentation
of a single suspect to a witness by the police,” it is only inadmissible and violative of due process
where it is “unnecessarily suggestive.” Brisco, 565 F.3d at 88 (emphasis in original) (internal
quotation marks omitted). An identification may be unnecessarily suggestive if it is based on
procedures that “create ‘a very substantial likelihood of irreparable misidentification.’”

13

Id.

In the malicious prosecution context, the Second Circuit has wrestled with the question of how to evaluate probable
cause premised on evidence that would be inadmissible in a criminal proceeding. See Restivo v. Hessemann, -- F.3d
--, at *14 (2d Cir. Jan. 19, 2017) (“[We have not held] that inadmissible evidence cannot be used in evaluating probable
cause for a [malicious prosecution claim], but only that where the sole evidence of a defendant’s guilt is a single
statement that police would have understood at the time could not be used in a criminal case . . . such evidence is not
alone sufficient to defeat a malicious prosecution claim.”); Boyd v. City of New York, 336 F.3d 72 (2d Cir. 2003).
Here, the show-up was not the only basis for probable cause. Moreover, the unsettled nature of this legal question is
further reason to conclude that the officer defendants would be entitled to qualified immunity even if the show-up
would be inadmissible.

20

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). “Even if an identification
procedure is unduly suggestive, the out-of-court identification may nonetheless be admissible if
other factors indicate that the identification is independently reliable.” Id. at 89. Whether an
identification has independent reliability is determined by analyzing the five factors laid out by the
Supreme Court in Neil v. Biggers:


The opportunity of the witness to view the criminal at the time of the crime,



The witness’ degree of attention,



The accuracy of the witness’ prior description of the criminal,



The level of certainty demonstrated by the witness at the confrontation, and



The length of time between the crime and the confrontation.

409 U.S. 188, 199–200 (1972).
Ultimately, the Court does not have to resolve the question of whether the above test for
admissibility should also control the determination of probable cause because, even assuming that
it does, the show-up identification is admissible. First, the show-up identification here was not
unnecessarily suggestive. See Brisco, 565 F.3d at 90 (denying habeas petition where the New
York Court of Appeals concluded that a show-up that “took place at the scene of the crime, within
an hour of the commission of the crime, and in the context of a continuous, ongoing investigation”
was admissible). And, even assuming the show-up was unnecessarily suggestive, it would still be
admissible under Biggers because it was independently reliable. In particular, Harris’s opportunity
to view his assailants (who came right up to his car) and the close proximity in time between the
crime and identification weigh in favor of reliability.

See, e.g., id. at 92 (“[T]here is no

presumption that an eyewitness who gives a description had an inadequate opportunity to observe
the elements that make up that description.”); id. at 94 (concluding show-up identification was

21

independently reliable when, inter alia, it was conducted one hour and ten minutes after the crime
and collecting similar cases).
5. Plaintiffs Remaining Arguments Concerning Probable Cause Are Unpersuasive
Plaintiffs argue that Harris’s initial description was too general to support a finding of
probable cause. Plaintiffs cite several cases for the proposition that “when [a] description could
have applied to any number of persons and does not single out the person arrested, probable cause
does not exist.”

Jenkins, 478 F.3d at 90 (collecting cases). These cases, however, are

distinguishable from the case at bar because none of them involved a pre-arrest show-up
identification, which contributed to the officers’ finding of probable cause. Even if the Court were
to ignore the show-up, the facts of this case would still be distinguishable. Unlike those cases—
where police officers relied on general broadcast descriptions of suspects to establish probable
cause—here, the police officers relied on much more information specific to the plaintiffs. The
Court finds that the undisputed facts known to the police officers before the show-up
identification—i.e., that the arrestees were three passengers, whose clothing somewhat matched
Harris’s description, sitting in an idling car, at night, in close proximity to the site of the attempted
robbery, and one of whom was wearing a ski mask—amount to, at least, arguable probable cause.
Plaintiffs also argue that the individual officers could not have had probable cause to arrest
the plaintiffs because of the “irreconcilable difference[s]” between Harris’s initial description of
the plaintiffs and their actual appearance. (Pls.’ Att’y Aff. in Opp’n to Mot. and in Supp. of CrossMot. (“Att’y Aff.”) ¶ 7, ECF No. 37.) In particular, plaintiffs contend that the plaintiffs differed
in their race, mode of transportation, clothing, and choice of gun as compared to Harris’s
description. (Pls.’ Superceding Mem. at 12–13.) Plaintiffs rely on Jenkins, Weyant v. Okst, 101
F.3d 845 (2d Cir. 1996), and several other decisions in which courts found probable cause lacking

22

when descriptions of suspects differed from arrestees’ actual appearances. Again, these cases are
distinguishable because they do not involve a pre-arrest show-up.14
Additionally, plaintiffs argue that the “alibi evidence” and the undisputed fact that plaintiffs
were eating when they were initially detained leads to the conclusion that no reasonable officer
could have found probable cause to arrest the plaintiffs. The Court disagrees. First, there is no
evidence in the record to support the contention that the individual officers possessed (or even
knew about) the “alibi evidence” at the time of the arrest.15 Second, the fact that plaintiffs were
eating when they were detained does not undermine probable cause in light of the other facts
available to the officers at the time of the arrest—i.e., a positive show-up identification coupled
with police observation of the plaintiffs in close proximity to the crime scene, minutes after the
crime occurred, idling in a car, late at night, while one of the passengers was wearing a black ski
mask.
Plaintiffs also argue that no reasonable police officer would have conducted a show-up
identification under the circumstances. This argument is meritless. See, e.g., Hargroves, 411 F.
App’x at 383–84; Sorrell, 162 F. Supp. 3d at 166–67; Gil, 590 F. Supp. 2d at 368–69.
Additionally, plaintiffs argue: (1) that later dismissal of the indictment necessarily means
that there was no probable cause to arrest the plaintiffs and (2) that defendants’ failure to address
the alibi evidence in their briefing means it must necessarily undermine probable cause. These

14

Jenkins explicitly recognized a distinction between an arrest based solely on a victim’s description and an arrest
based on a victim identification during a line up. The court in Jenkins acknowledged that, although the police lacked
probable cause based on the victims’ description, which did not match the arrestee’s actual appearance, a later line-up
identification by victims did establish probable cause. 478 F.3d at 91–93.
It is unclear whether plaintiffs’ argument concerns the specific “alibi evidence” defined earlier—i.e., the
McDonald’s receipt and surveillance footage—or whether plaintiffs’ argument merely concerns the fact that plaintiffs
were eating food from McDonald’s at the time they were observed by police. In any event, as explained infra, II.D.4.i,
there is no evidence that the police possessed the “alibi evidence” prior to the arrest and so, the existence of the receipt
and surveillance footage have no bearing on the question of whether there was probable cause to arrest.
15

23

arguments are utterly meritless.
In light of the Court’s conclusions above, the Court grants defendants’ motion for summary
judgment and denies plaintiffs’ cross-motion for summary judgment on plaintiffs’ false arrest and
false imprisonment claims.
D. Malicious Prosecution Claim
1. Standard for Malicious Prosecution
To survive summary judgment on a malicious prosecution claim, a plaintiff must
demonstrate: “(1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack
of probable cause, and (4) malice.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)
(quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)). The existence of probable cause
is a complete defense to a claim of malicious prosecution. Id. (citing Colon, 60 N.Y.2d at 82).
Furthermore, “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.’” Id. (emphasis in original) (quoting
Colon, 60 N.Y.2d at 83).
2. The Parties’ Arguments
Defendants argue that summary judgment should be granted on plaintiffs’ malicious
prosecution claim because a grand jury indictment creates a presumption of probable cause.
Defendants maintain that plaintiffs have failed to adduce any evidence suggesting officer
misconduct here and, thus, cannot rebut the presumption.
Plaintiffs appear to raise two arguments in defense of their malicious prosecution claim.
First, plaintiffs appear to argue that the presumption of probable cause does not apply when an
indictment is dismissed pursuant to New York Criminal Procedure Law § 210.35(5). Second,

24

plaintiffs contend that the police officers engaged in misconduct and failed to conduct a proper
investigation, which, according to plaintiffs, rebuts the presumption of probable cause.
As explained below, plaintiff’s arguments are meritless. The Court agrees with defendants
that the presumption of probable cause applies here and that plaintiffs have failed to rebut that
presumption.
3. Dismissal of the Indictment Does Not Eliminate the Presumption of Probable
Cause
At one point, plaintiffs seem to suggest that the presumption of probable cause is
inapplicable any time that an indictment is dismissed. This argument is meritless. Soto v. City of
New York, 132 F. Supp. 3d 424, 454 (E.D.N.Y. 2015) (concluding “New York courts have
generally recognized that dismissal of an indictment does not negate the presumption of probable
cause” and collecting cases).
Plaintiffs also appear to argue that the presumption of probable cause does not apply when
an indictment is dismissed pursuant to § 210.35(5). As a threshold matter, this argument fails
because plaintiffs have not offered any evidence showing that the indictment at issue here was, in
fact, dismissed pursuant to § 210.35(5). Moreover, even if the indictment was dismissed under
that provision, the presumption of probable cause would still apply. Section 210.35(5) is a “catch
all” provision “permitting the ‘exceptional remedy’ of dismissal in ‘those instances where
prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision
reached by the Grand Jury.’” Soto, 132 F. Supp. 3d at 453–54 (quoting People v. Huston, 88
N.Y.2d 400, 409 (1996)). Plaintiffs do not cite any authority indicating that the presumption of
probable cause does not apply when an indictment is dismissed under § 210.35(5). In fact, one
court has explicitly ruled to the contrary. See id. at 455–56 (applying presumption of probable
cause where indictment was dismissed pursuant to § 210.35(5)).
25

The Court concludes that dismissal of the indictment does not eliminate the presumption
of probable cause.
4. Plaintiffs’ Allegations of Police Misconduct and Negligent Investigation are
Insufficient to Rebut the Presumption of Probable Cause
The presumption of probable cause 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.’” Savino, 331 F.3d at 72 (quoting Colon, 60 N.Y.2d at 82). To rebut the presumption,
a plaintiff must demonstrate that a police officer “misled” the prosecutor and trial judge.
Hargroves, 411 F. App’x at 386. “[A] mistake alone is not enough to suggest, much less show,
that defendants ‘lied’ to the prosecutors or the judge about what they saw.” Id. (finding that police
officer’s mistaken description of plaintiff’s jacket was not evidence of bad faith). Similarly,
negligence in an investigation or sloppy police work does not rise to the level of misconduct
sufficient to rebut the presumption. Gil, 590 F. Supp. 2d at 370 (“Any alleged failure to conduct
further investigation [into a defendant’s alibi] or apply all procedures that could have been
followed does not amount to fraud, bad faith, or the suppression of evidence and is insufficient to
overcome the presumption.” (citing Colon, 60 N.Y.2d at 83, Lee v. City of Mount Vernon, 49
N.Y.2d 1041 (1980), & Santiago v. City of Rochester, 796 N.Y.S.2d 811, 812 (4th Dep’t 2005)));
Richards v. City of New York, No. 97-CV-7990, 2003 WL 21036365, at *16 (S.D.N.Y. May 7,
2003) (“[T]he police are not obligated to pursue every lead that may yield evidence beneficial to
the accused, even though they had knowledge of the lead and the capacity to investigate it.” (citing
Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285 (1988))). Moreover, “where a plaintiff offers
merely his version of events to rebut the presumption, this is nothing more than ‘mere conjecture
and surmise that [the plaintiff’s] indictment was procured as a result of conduct undertaken by the
defendants in bad faith,’” which is insufficient to rebut the presumption.
26

Soto, 132 F. Supp. 3d

at 456 (quoting Savino, 331 F.3d at 73).
In their moving papers, plaintiffs repeatedly accuse defendants of secreting evidence, in
particular the alibi and post-arrest investigation evidence. Plaintiffs also argue that the police
investigation into the alibi evidence was sloppy and negligent.
i. The Alibi Evidence
Plaintiffs cite to the alleged “alibi evidence.” Again, the “alibi evidence” consists of: (1)
a McDonald’s receipt bearing a time stamp of 1:17 a.m.; (2) surveillance footage from the
McDonald’s showing the plaintiffs and bearing a time stamp of 1:20–1:26 a.m.; and (3)
surveillance footage along the route from plaintiff Morgan’s house to the McDonald’s on Front
Street showing the plaintiffs.
As noted earlier, neither the receipt nor any of the surveillance footage are part of the
record. Instead, plaintiffs cites various pieces of indirect evidence concerning the receipt and the
surveillance footage.
The critical questions surrounding the alleged alibi evidence are: (1) does this evidence
exist?; (2) if so, what exactly does this evidence show?; (3) did the police ever obtain this
evidence?; (4) if so, when was the evidence obtained by the police?; (5) to the extent the police
possessed such evidence, did they provide the evidence to the prosecutor?; and (6) did the police
commit any misconduct, such as perjury, before the grand jury concerning this evidence?
As explained below, at best, plaintiffs can show that the police became aware of some of
the alleged alibi evidence after they arrested plaintiffs. Plaintiffs, however, cannot establish that
the police committed any misconduct concerning the alleged alibi evidence. The three categories
of alibi evidence are each discussed fully below.
With respect to the McDonald’s receipt, there is insufficient evidence from which a juror

27

could conclude that this receipt ever existed. More importantly, even if a juror could conclude that
a McDonald’s receipt existed, there is no evidence in the record indicating: (1) the information
listed on the receipt; or (2) that the police ever had this receipt in their possession. Furthermore,
even assuming arguendo that the police possessed the receipt, there is no evidence that they failed
to provide it to the prosecutor or testified falsely about it in the grand jury.16
With respect to the McDonald’s surveillance footage, a jury could conclude that: (1) there
was McDonald’s surveillance footage of the plaintiffs; (2) this footage showed the plaintiffs
receiving food from 1:20 a.m. to 1:26 a.m.; and (3) the police obtained this footage after the
plaintiffs’ arrest, but before the plaintiffs were indicted. There is, however, no evidence indicating
that the police failed to turn this McDonald’s footage over to the prosecutor. Nor is there any

Plaintiffs’ 56.1 Statement asserts that “the McDonald’s receipt, showing the time of purchase to be 1:17 a.m., was
taken from plaintiffs that morning by defendants and has not been seen since, presumably destroyed because it was
exculpatory.” (Pls.’ 56.1 Statement ¶ 5.) In support, plaintiffs rely on a single exhibit—a June 5, 2012 letter sent to
District Attorney Kathleen Rice from Morgan and his mother. In that letter, Morgan and his mother briefly refer to a
McDonald’s receipt, writing only “[a]lso we would like the receipts from the food that was ordered . . . .” (Letter
from Jacquelyn and James Morgan to District Attorney Kathleen Rice (“June 5 Letter”), Kutner Aff., Ex. 8 at NC
000161, ECF No. 37.) Defendants did not object to this letter. In any event, this letter is insufficient to establish that
the police ever took a receipt from plaintiffs. Moreover, this letter says nothing about any information on the receipt,
such as the time stamp on it.
16

28

evidence that police testified falsely about this footage in the grand jury.17
With the respect to surveillance footage from other sources along the route between
Morgan’s house and McDonald’s, there is insufficient evidence in the record to establish that any
such footage was ever obtained by either the plaintiffs or the police. More importantly, even
assuming arguendo that such footage did exist and was in the possession of the police, there is no
evidence that the police withheld this footage from the prosecutor or committed any other

In support of their claims regarding the McDonald’s footage, plaintiffs rely on their own grand jury testimony.
Before the grand jury, Morgan testified:
17

[My mother and I] called Detective Ruvalo [sic] when I got bailed out. We asked him was I seen on
[the McDonald’s] video. He didn’t want to tell met at first. First he said, “Yes, we do have the
video.” I asked him did he see me on the video. He said, “Yes, we see the car in the video.” I said,
“I am not asking about the car. I am asking did you see me on the video.” He said, “Yes. You are
the one sitting in the backseat behind Jeremy.” Jeremy is driving the car mind you. So at that time
that is how I know they received the video.
(Morgan Tr. at 20:5–15.) When asked if he had ever seen the McDonald’s surveillance video himself, Morgan
responded, “No. I didn’t receive the video, myself, but I was told [by a legal aide that] I was receiving the food on
that camera from 1:20 to 1:26.” (Id. at 31:13–19.) Surprisingly, defendants have not objected to this testimony, which
appears to be clearly inadmissible hearsay.
In his grand jury testimony, Saperstein also mentioned the McDonald’s video. (Saperstein Tr. at 34:23–35:4 (“Q:
And your testimony, what time did you get to McDonald’s, do you remember that? A: Like we did in the video that
we saw.”).) When asked if he had seen the video, himself, Saperstein testified: “[Morgan’s attorney, Harry Kutner]
told me. We were on video from 1:20 to 1:26 at McDonald’s.” (Id. at 35:3–4.) Again, defendants do not object to
this testimony, which appears to be clearly inadmissible hearsay.
Plaintiffs also cite to the June 5 letter from the Morgans to District Attorney Rice. This letter states: “My son is
on the video, as he said and this was repeated by Det. Ruvolo from the 1st Precinct.” (June 5 Letter at NC 000161.)
Again, defendants did not object to this letter.

29

misconduct concerning this footage.18
As the discussion above makes clear, nothing in the record indicates that the police ever
withheld any alibi evidence from the prosecutor or committed any other type of misconduct
concerning the alibi evidence.
Plaintiffs also argue that the individual defendants are liable for malicious prosecution
because they failed to adequately investigate the alibi evidence. In their moving papers, plaintiffs
“educatedly speculate[]” that the plaintiffs’ indictment was ultimately dismissed once the
defendants “finally conducted competent investigative work.” (Pls.’ Superceding Mem. at 14.) In
his affidavit, Morgan states, in conclusory fashion, that the police investigation was “sloppy.”
Plaintiffs, however, have no evidence in support of these allegations. Moreover, plaintiffs fail to

18

With respect to this alleged surveillance footage, plaintiffs rely on their grand jury testimonies and an affidavit
submitted by Morgan in the underlying criminal proceeding. During his grand jury testimony, Morgan stated:
Yesterday, I went down to Uniondale Avenue looking for cameras. I have a list of cameras here that
actually shows that we was on our way going to McDonald’s. At that time it has to be around 1:16,
at least 1:17, because again we were receiving our food at 1:20, 1:26. Uniondale Public Library does
have a video that shows the strip of the street, so it can show that we were driving by. So does the
C Town, the C Town market that is also on Uniondale Avenue.
(Morgan Tr. at 21:8–17.) Morgan never explicitly states that he obtained or viewed any of this alleged footage.
Saperstein also mentioned a “red light” surveillance camera during his grand jury testimony, but, like Morgan, did
not testify that he ever obtained or viewed any surveillance footage from this camera. (Saperstein Tr. at 42:9–13 (“Q:
. . . So there’s a few minutes that are unaccounted for, right, because you say that you got to McDonald’s at 1:20,
right? A: If you could see the red light camera, it’s always recording.”).)
Plaintiffs also cite an affidavit that Morgan submitted in the underlying criminal proceeding. In this affidavit,
Morgan asserts: “Additional security videotapes obtained by Mr. Kutner fully corroborate our testimony that we left
my house, drove straight to McDonald’s on Front Street, ordered the food, paid for it, and were eating it in Jeremy’s
car in front of McDonald’s when the police cars first passed us . . . .” (Morgan Aff. 7/9/12 ¶ 4.) This conclusory
assertion does not identify the “videotapes” at issue, nor does it explain how these videotapes “fully corroborate”
plaintiffs’ story. The Court also notes that plaintiffs do not explain why they have not introduced these videotapes, if,
as Morgan attests, the tapes were obtained by “Mr. Kutner,” who represents plaintiffs in the instant suit.
Finally, plaintiffs once again rely on the June 5 letter from the Morgans to District Attorney Rice. This letter does
not identify the content of any footage. Rather, this letter merely requests video recordings and claims what the tapes
“would show.” (June 5 Letter at NC 000161) This letter does not indicate that the Morgans ever viewed or possessed
such recordings. (See id. (“Also we would like . . . the street camera recordings on Jerusalem and Uniondale Avenue,
which would show the route that they took in order to get to McDonalds on Front Street.”).)

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cite any authority in support of the proposition that a negligent or sloppy investigation rises to the
requisite level of bad faith to rebut the presumption of probable cause created by a grand jury
indictment. In fact, the law is to the contrary. See Gil, 590 F. Supp. 2d at 370 (citing Colon, 60
N.Y.2d at 83; Lee, 49 N.Y.2d 1041; Santiago, 796 N.Y.S.2d at 812).
ii. The Post-Arrest Investigation Evidence
Plaintiffs also raise the specter of misconduct concerning materials related to the post-arrest
investigation and the decision to dismiss the indictment against plaintiffs. The problem for
plaintiffs is that they have absolutely no evidence concerning these issues. As explained earlier,
discovery requests concerning these issues are the subject of one of plaintiffs’ motions to compel,
which the Court has already denied. Given the absence of any evidence concerning the post-arrest
investigation and the decision to dismiss the indictment, plaintiffs cannot possibly show police
committed misconduct, fraud or perjury concerning these materials.
Plaintiffs’ remaining argument is that the unexplained dismissal of the indictment, along
with the alleged concealment of post-arrest investigation evidence, leads to the “single conclusion”
that the information contained therein undermines defendants’ defense. (Pls.’ Superceding Mem.
at 18.) This argument is meritless. Plaintiffs bear the burden of rebutting the presumption of
probable cause. The fact that the record does not include a reason why the indictment was
dismissed is insufficient to rebut that presumption.
Ultimately, all of plaintiffs’ arguments are nothing more than “mere conjecture and
surmise,” which are insufficient to rebut the presumption of probable cause created by the grand
jury indictment. Accordingly, the Court grants defendants’ motion for summary judgment on
plaintiffs’ malicious prosecution claim.

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E. First Amendment Claims
Defendants argue that plaintiffs have failed to demonstrate a violation of their speech or
association rights. The Court agrees.
1. Standard for Free Speech Claims
To demonstrate a violation of their right to free speech, plaintiffs must show that “official
conduct actually deprived them of that right.” Williams v. Town of Greenbergh, 535 F.3d 71, 78
(2d Cir. 2008) (citing Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002)). A deprivation is
established where: “(1) defendants silence[d a plaintiff] or (2) defendant[s’] actions had some
actual, non-speculative chilling effect on [plaintiff’s] speech.” Id. at 78 (citing Colombo, 310 F.3d
at 117)).
2. Plaintiffs Have Not Demonstrated An Infringement of Their Free Speech Rights
Plaintiffs submit that their right to free speech was violated when the individual police
officers tried to deter plaintiffs’ “assertions of innocence” by threatening the plaintiffs and
insulting them. (Pls.’ Superceding Mem. at 20.) The record, however, is devoid of any evidence
suggesting that plaintiffs were silenced or that their speech was chilled by the officers’ conduct.
According to plaintiffs, “[their] affidavits establish defendants’ abusive actions which sought to
stop their repeated insistence that they did nothing wrong.” (Id. at 21.) However, neither Morgan
nor Saperstein mention any chilling effect of the post-arrest police interview in their affidavits.
(See Morgan Aff. 2/29/16; Aff. of Jeremy Saperstein dated February 29, 2016 (“Saperstein Aff.
2/29/16”), ECF No. 37) At most, Morgan’s affidavit asserts: “They later took us to a Precinct and
questioned us, nastily, screaming and calling Jeremy ‘a retard,’ for about two hours before they
finally told us we were arrested for an attempted robbery. We still had no idea what they were
talking about.” (Morgan Aff. 2/29/16 ¶ 6.) Saperstein’s affidavit fails to even mention any post-

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arrest police interview. (Saperstein Aff. 2/29/16.)
The Court has also reviewed each plaintiff’s grand jury testimony and finds that neither
plaintiff claims that the individual officers’ actions “had some actual, non-speculative chilling
effect” on his speech rights.

In fact, during his testimony, Saperstein admits that he and his co-

arrestees fully participated in the post-arrest interview and informed the officers that they were
innocent. (Saperstein Tr. at 12:19–13:20 (“Then I think I’m interviewed first and I tell the story .
. . Then after that he interviewed my other two friends . . . But as soon as [the detective] found out
all three of us told the same exact story about what happened, he was so pissed and he didn’t know
what to do.”).)
Because plaintiffs have failed to demonstrate any facts from which a reasonable juror could
find they were silenced or their speech rights were chilled, the Court grants defendants’ motion for
summary judgment on plaintiffs’ free speech claims.19
3. Standard for Association Claims
“The Supreme Court has recognized a right of association with two distinct components—
an individual’s right to associate with others in intimate relationships [i.e., intimate association]
and a right to associate with others for purposes of engaging in activities traditionally protected by
the First Amendment [i.e., expressive association] . . . .” Adler v. Pataki, 185 F.3d 35, 42 (2d Cir.
1999) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984)). In the context of a friendship,
the right to intimate association is not violated “unless the challenged action has the likely effect

19

Additionally, the Court notes that plaintiffs do not cite any legal authority adopting their apparently novel theory
that an interrogation in which criminal defendants are deterred from professing their innocence violates rights under
the First Amendment.

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of ending the relationship . . . .” 20 Id. at 43 (citing Lyng v. Int’l Union, UAW, 485 U.S. 360, 364–
66 (1988)). “Expressive association is considered a form of ‘speech,’” and “is protected by the
First Amendment on that basis.” Birmingham v. Ogden, 70 F. Supp. 2d 353, 368–69 (S.D.N.Y.
1999) (collecting cases).
4. Plaintiffs Have Not Demonstrated An Infringement of Their Association Rights
Plaintiffs assert only that defendants’ “retard” comments about Saperstein “constitute[] an
attack on their freedom of association . . . .” (Pls.’ Superceding Mem. at 21.) Plaintiffs, however,
do not identify which association right they are claiming—intimate or expressive. The Court’s
inability to discern which association right plaintiffs assert is fatal to their claim.
Moreover, to the extent that plaintiffs’ brief can be read as claiming a right to intimate
association, plaintiffs have not established any facts from which a reasonable juror could find that
right was infringed. Plaintiffs have introduced no facts suggesting that defendants’ remarks had a
likely effect of ending the plaintiffs’ friendship. To the extent plaintiffs argue a deprivation of the
right to expressive association, that claim is duplicative of their free speech claim and suffers the
same fate as described above. See supra II.E.2.
Accordingly, the Court grants defendants’ motion for summary judgment on plaintiffs’
association claim.
F. Unreasonable Search Claims
Plaintiffs’ complaint alleges that the police unreasonably searched the plaintiffs and
Saperstein’s car without a warrant.

(Compl. ¶¶ 21–22.).

In response to these conclusory

allegations, defendants move for summary judgment, arguing that even though these searches were

20

Other courts have found that the right is not violated “unless affecting the relationship was the purpose of the
challenged regulation.” Id. (citing Califano v. Jobst, 434 U.S. 47, 54 (1977)). This approach, however, has not been
adopted by the Second Circuit in Patel v. Searles. 305 F.3d 130, 137 (2d Cir. 2002).

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conducted without a warrant, they were still reasonable pursuant to the automobile exception to
the warrant requirement. (Defs.’ Supp. at 12–14, ECF No. 54 (citing United States v. Ross, 456
U.S. 798, 824 (1982); Chambers v. Maroney, 399 U.S. 42, 47 (1970); Carroll v. United States, 267
U.S. 132, 149 (1925)).)
Plaintiffs never explicitly defend the search claims in their briefs. Accordingly, the Court
concludes that plaintiffs have abandoned these claims. See Taylor v. City of New York, 269 F.
Supp. 2d 68, 75 (E.D.N.Y. 2003); see also Douglas v. Victor Capital Grp., 21 F. Supp. 2d 379,
393 (S.D.N.Y.1998) (collecting cases).
The Court notes that plaintiffs’ papers could be construed to assert the following
argument—there was no probable cause to search the plaintiffs and Saperstein’s car because there
was no probable cause to arrest the plaintiffs. (Pls.’ Superceding Mem. at 11–16.) To the extent
plaintiffs raise this argument, summary judgment is still appropriate because this argument fails
on its own terms. Because the Court finds there was probable cause to arrest, see supra II.C.3,
plaintiffs’ argument that the search was unreasonable because there was no probable cause to arrest
must fail.
Accordingly, the Court grants defendants’ motion for summary judgment on plaintiffs’
search claims.
G. District Attorney Rice’s Liability
“‘[A] state prosecuting attorney who acted within the scope of his [or her] duties in
initiating and pursuing a criminal prosecution,’ ‘is immune from a civil suit for damages under
§ 1983.’” Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (quoting Imbler v.
Pachtman, 424 U.S. 409, 410, 431 (1976)).
Plaintiffs concede that defendant Rice is absolutely immune to all claims because she was

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acting in a prosecutorial capacity during the events alleged. Accordingly, the Court grants
defendants’ motion for summary judgment as to Rice.
H. Municipal Liability
To defeat summary judgment on a claim for municipal liability, plaintiffs must show “(1)
an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129, 140 (2d Cir. 2010)
(citation omitted); see also Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658,
694–95 (1978). Municipal liability is “an extension of liability, not an independent cause of action
. . . .” Soto, 132 F. Supp. 3d at 459 (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006)). Therefore, in order to establish liability under Monell, plaintiffs must first establish an
underlying constitutional violation.
Because plaintiffs have failed to establish any underlying constitutional violation, there can
be no municipal liability.
Plaintiffs’ Monell theory also fails on other grounds. Plaintiffs’ theory can be summarized
as follows—Nassau County’s failure to supervise and discipline police officers for misconduct
amounts to a policy or custom in which police misconduct is tolerated. In support, plaintiffs
primarily rely on a Newsday article, which chronicles many episodes of police misconduct
spanning police shootings, driving under the influence, engaging in sexual activity while on duty,
political corruption, consuming alcohol while on duty, illicit steroid use, excessive force,
falsification of sworn statements in support of arrests, and police cover ups. The Court will not
consider the Newsday article and investigation, which is cited only in plaintiffs’ brief. Plaintiffs’
56.1 Statement does not cite this article or any underlying evidence concerning the incidents
discussed in the article.

Moreover, plaintiffs do not provide the article or any underlying

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documentation regarding the incidents to the Court.
The Court also notes that plaintiffs fail to show how a policy of failing to supervise and
discipline officers for the events described in the article is related to the case at bar. Without a
showing that a particular municipal policy or custom caused a deprivation of plaintiffs’ rights,
there can be no municipal liability. Hill v. City of New York, 03-CV-1283, 2005 WL 3591719, at
*8 (Dec. 30, 2005) (citing Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
Accordingly, the Court grants defendants’ motion for summary judgment as to Nassau
County.
I. Plaintiffs’ Motions to Amend
In addition to the motions discussed above, plaintiffs have also moved to amend the caption
to correct the spelling of certain defendants’ names and to add the names of eight police officer
defendants who were previously identified as John Does and Richard Roes. The Court denies
these motions as futile. As explained earlier, the Court denies plaintiffs’ request to reopen
discovery. Based on the current record, the police had probable cause to arrest plaintiffs, and
plaintiffs have not rebutted the presumption of probable cause for their malicious prosecution
claim. Plaintiffs, therefore, do not have viable causes of action against any police officers who
may have been involved in the arrest and prosecution. Accordingly, amending the complaint to
add the names of more police officers would be futile.

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III. CONCLUSION
For the above reasons, the Court denies plaintiffs’ discovery motions, grants defendants’
motion for summary judgment, denies plaintiffs’ cross-motion for summary judgment, and denies
plaintiffs’ remaining motions.
SO ORDERED.
Date: February 17, 2017
Central Islip, New York
_____/s/ (JMA)___________
Joan M. Azrack
United States District Judge

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