J. & W. Trading and Leasing Inc. et al v. State of New York et al

Filing 215

MEMORANDUM-DECISION and ORDER - That Mhina's 201 motion for summary judgment is DENIED. That defendants' 202 cross motion for summary judgment is GRANTED and Mhina's 24 second amended complaint is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 1/15/2020. (Copy served via regular and certified mail to plaintiff)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JAMES P. MHINA,
5:15-cv-327
(GLS/ML)

Plaintiff,
v.
ANTHONY COLAVITA et al.,

Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
James P. Mhina
Pro se
P.O. Box 133
Syracuse, NY 13201
FOR THE DEFENDANTS:
City of Syracuse Corporation Counsel
233 East Washington Street
Room 300 City Hall
Syracuse, NY 13202

CHRISTINA F. DeJOSEPH,
ESQ.

Gary L. Sharpe
Senior District Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se James P. Mhina brings claims under 42 U.S.C.
§§ 1981, 1983, and New York State common law against defendants

Anthony Colavita and David Buske, City of Syracuse Police Officers.
(2d Am. Compl., Dkt. No. 24.) Before the court are Mhina’s motion for
summary judgment, (Dkt. No. 201), and defendants’ cross motion for
summary judgment, (Dkt. No. 202). For the reasons that follow, Mhina’s
motion is denied and defendants’ motion is granted.
II. Background1
A.

Facts2
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Unless otherwise stated, the facts are undisputed.

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Mhina fails to comply with Local Rule 7.1 by failing to provide a
separate statement of material facts and a memorandum of law. Instead,
he has combined arguments and facts in his motion for summary
judgment. (Dkt. Nos. 201, 205, 207.) Pursuant to the Local Rules of
Practice, “all motions and opposition to motions require a memorandum of
law, supporting affidavit, and proof of service on all the parties.” N.D.N.Y.
L.R. 7.1(a). “Any motion for summary judgment shall contain a Statement
of Material Facts. The Statement of Material Facts shall set forth, in
numbered paragraphs, each material fact about which the moving party
contends there exists no genuine issue. Each fact listed shall set forth a
specific citation to the record where the fact is established. . . . Failure of
the moving party to submit an accurate and complete Statement of
Material Facts shall result in a denial of the motion.” N.D.N.Y. L.R.
7.1(a)(3). The court notes that on April 18, 2019, the court issued a Text
Order ordering Mhina to respond to defendants’ Statement of Material
Facts in accordance with L.R. 7.1(a)(3), (Dkt. No. 206), and attached a
notification of the consequences of failing to respond, (id., Attach. 1).
Although Mhina filed a response, (Dkt. No. 207), it failed to comply with
the April 18, 2019 order, (Dkt. No. 206). As such, pursuant to N.D.N.Y.
L.R. 7.1(a)(3), the court deems admitted defendants’ statement of material
facts, which are properly supported and unopposed.
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During 2007-2008, Officer Buske was assigned to the financial
crimes section within the Criminal Investigations Division of the Syracuse
Police Department (SPD). (Defs.’ Statement of Material Facts (SMF) ¶ 2,
Dkt. No. 202, Attach. 2.) During this time, Officer Buske filed two separate
felony criminal complaints against Mhina. (Id. ¶ 3.)
Officer Buske filed the first felony criminal complaint in December
2007, because Mhina attempted to cash a fraudulent check at a Citizens
Bank in Syracuse, New York. (Id. ¶ 4.) This complaint was based on the
affidavit of John Cruise, a corporate security employee at Citizens Bank.
(Id. ¶ 5.) Specifically, Mhina deposited a check for $494,620.00, which
was returned to Citizens Bank several days later. (Id. ¶¶ 11, 13.) Mhina
then went to a different Citizens Bank branch and deposited a check in the
amount of $494,620.00, which was drawn from a J.P. Morgan Chase Bank.
(Id. ¶ 14.) Thereafter, J.P. Morgan Chase informed Cruise that the check
was never issued by the Bank and should be considered counterfeit. (Id.
¶ 15.) Cruise’s documentation of Mhina’s attempts to cash these
fraudulent checks was received by the SPD, which led to Officer Buske’s
filing of the December 2007 complaint against Mhina. (Id. ¶¶ 10, 17.)
Officer Buske filed the second felony criminal complaint in February
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2008 because Mhina attempted to cash a fraudulent check for $113,260.50
at a Bank of America in Syracuse, New York. (Id. ¶ 6.) This complaint was
based on the affidavit of Henry Heisey, Director of Special Investigations
Unit at Life of the South Insurance Corporation (LOTS), and the affidavit of
Amy Bidwell, a manager at the Bank of America in Syracuse. (Id. ¶¶ 7-8.)
According to Heisey, Bidwell had provided information to LOTS regarding
Mhina’s production and deposit of a LOTS check for $113,260.50, noting
that the check was counterfeit and that the account from which the check
was to be drawn from was closed. (Id. ¶¶ 19, 20.) The Financial Crimes
Unit received this information from Heisey, which, along with Bidwell’s
affidavit, led to Officer Buske’s filing of the February 2008 complaint
against Mhina. (Id. ¶¶ 18, 22.)
On December 14, 2007, Officer Buske went to Mhina’s workplace
and asked Mhina to answer questions about the allegations relating to the
counterfeit checks. (Id. ¶ 23.) Mhina signed a “Statement Cover Sheet”
that informed Mhina of his Miranda rights and he voluntarily answered
questions. (Id. ¶¶ 24, 25.) In doing so, Mhina admitted to depositing the
counterfeit checks because he thought “it was an easy way to get some
money.” (Id. ¶ 25.) Mhina also admitted that he was giving “[]his
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statement knowing that [he was] going to be criminally charged.”
(Id. ¶ 26.)
Officers Colavita and Buske arrested Mhina on February 4, 2008,
during which time Mhina alleges that Officers Colavita and Buske used a
racial slur. (Id. ¶¶ 27, 35.) A grand jury indicted Mhina on nine counts
relating to the forged checks. (Id. ¶ 28.) Following a jury trial in Onondaga
County Criminal Court in Syracuse, Mhina was found guilty of six counts
charged, including falsifying business records in the first degree and
criminal possession of a forged instrument in the second degree.
(Id. ¶ 29.) On appeal, the Fourth Department, Appellate Division reversed
Mhina’s conviction and granted a new trial based on a violation of
Molinuex. (Id. ¶ 31); People v. Mhina, 110 A.D.3d 1445, 1446-47 (4th
Dep’t 2017).
B.

Procedural History
Mhina filed this action on March 20, 2015. (Compl., Dkt. No. 1.)

After various dismissals, (Dkt. Nos. 11, 22, 115, 175), the only defendants
remaining are Officers Colavita and Buske, and Mhina’s only remaining
claims are a false arrest claim under New York State law, malicious
prosecution claims under Section 1983 and New York State law, and a
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Section 1981 claim, (Dkt. No. 175).
Pending are Mhina’s motion for summary judgment, (Dkt. No. 201),
and defendants’ cross motion for summary judgment, (Dkt. No. 202).
III. Standard of Review
The standard of review pursuant to Federal Rule of Civil Procedure
56 is well established and will not be repeated here. For a full discussion
of the standard, the court refers the parties to its decision in Wagner v.
Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Defendants’ Cross Motion for Summary Judgment
1.

False Arrest

The elements of a false arrest claim are: “that the defendant intended
to confine the plaintiff, that the plaintiff was conscious of the confinement,
that the plaintiff did not consent to the confinement and that the
confinement was not privileged.” De Lourdes Torres v. Jones, 26 N.Y.3d
742, 759 (2016) (citations omitted).
Probable cause is a complete defense to a false arrest claim. See
Mahoney v. New York, 147 A.D.3d 1289, 1291 (3d Dep’t 2017); Nasca v.
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Sgro, 130 A.D.3d 588, 589 (2d Dep’t 2015). “Probable cause consists of
such facts and circumstances as would lead a reasonably prudent person
in like circumstances to believe plaintiff guilty.” Colon v. City of New York,
60 N.Y.2d 78, 82 (1983). “Probable cause does not require proof sufficient
to warrant a conviction beyond a reasonable doubt but merely information
sufficient to support a reasonable belief that an offense has been or is
being committed by the suspected individual.” Mahoney, 147 A.D.3d at
1291 (citation and alteration omitted). “The question of whether or not
probable cause existed may be determinable as a matter of law if there is
no dispute as to the pertinent events and the knowledge of the officers, or
may require a trial if the facts are in dispute.” Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996) (citations omitted).
The court agrees with defendants that probable cause to arrest
Mhina existed because they had received three affidavits detailing Mhina’s
illegal acts: Cruise described Mhina’s attempt to cash fraudulent checks at
two separate Citizen Bank locations in Syracuse, (SMF ¶ 10), and both
Heisey and Bidwell described Mhina’s attempt to deposit a fraudulent
check for $113,260.50, (Id. ¶ 18-21). These affidavits, alone, are sufficient
to establish probable cause. See Mahoney, 147 A.D.3d at 1293-94 (“It is
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well settled that, generally, information provided by an identified citizen
accusing another individual of a specific crime is legally sufficient to
provide the police with probable cause to arrest.”) (internal quotation
marks, alteration, and citations omitted). Further, prior to Mhina’s arrest,
there were two felony criminal complaints filed against him based on these
three affidavits. (SMF ¶¶ 5, 22.) And, prior to his arrest, Mhina signed a
statement acknowledging that he had cashed the checks because he
thought “it was an easy way to get some money.” (SMF ¶ 25.)
Accordingly, defendants are entitled to summary judgment on this claim.
2.

Malicious Prosecution

The elements of a malicious prosecution claim under both Section
1983 and New York State law are: “(1) the defendant initiated a
prosecution against plaintiff, (2) without probable cause to believe the
proceeding can succeed, (3) the proceeding was begun with malice[,]
and[ ] (4) the matter terminated in plaintiff’s favor.” Rentas v. Ruffin, 816
F.3d 214, 220 (2d Cir. 2016) (citation omitted); see Mitchell v. City of New
York, 841 F.3d 72, 79 (2d Cir. 2016). “When raising a malicious
prosecution claim under Section 1983, a plaintiff must also show a seizure
or other perversion of proper legal procedures implicating the claimant’s
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personal liberty and privacy interests under the Fourth Amendment.”
Mitchell, 841 F.3d at 79 (internal quotation marks and citation omitted).
With regard to the second element of a malicious prosecution claim,
“probable cause to prosecute consists of ‘facts and circumstances [that]
would lead a reasonably prudent person to believe the plaintiff guilty.’”
Ying Li v. City of New York, 246 F. Supp. 3d 578, 611 (E.D.N.Y. 2017)
(quoting Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). “A
grand jury indictment ‘gives rise to a presumption that probable cause
exists’ and thereby defeats a claim for malicious prosecution.” Ying Li, 246
F. Supp. 3d at 611 (quoting Rentas, 816 F.3d at 220); see Manganiello v.
City of New York, 612 F.3d 149, 161-62 (2d Cir. 2010) (“The existence of
probable cause is a complete defense to a claim of malicious prosecution
in New York, and indictment by a grand jury creates a presumption of
probable cause.” (internal quotation marks, alteration, and citation
omitted)). “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.” Manganiello, 612 F.3d at
162 (citations and internal quotation marks omitted). The court recognizes
that “[t]he probable cause determination relevant to a malicious
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prosecution claim differs from that relevant to a false arrest claim, and the
two determinations play different roles in the two causes of action.” Mejia
v. City of New York, 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000); see Boyd,
336 F.3d at 75-77. However, because Mhina “does not allege that there
was any difference in the facts known to [defendants] between arrest and
arraignment,” the court need “analyze only the existence of probable cause
at the time of [Mhina’s] arrest[ ].” Kanderskaya v. City of New York, 11 F.
Supp. 3d 431, 436 n.1 (S.D.N.Y. 2014); see Lanning v. City of Glens Falls,
No. 1:16-CV-00132, 2017 WL 922058, at *4 (N.D.N.Y. Mar. 8, 2017).
Here, as a preliminary matter, the grand jury’s indictment of Mhina on
nine counts relating to the forged checks creates a presumption of
probable cause. See Manganiello, 612 F.3d at 162. Mhina has offered no
evidence to rebut this presumption. In any event, probable cause existed
because, as noted above, defendants had a reasonable belief that Mhina
had committed a crime based on the three affidavits detailing Mhina’s
illegal acts, two felony criminal complaints filed against Mhina, and Mhina’s
signed statement acknowledging that he had cashed the checks because
he thought “it was an easy way to get some money.” (SMF ¶¶ 5, 10, 1822, 25.)
10

With regard to the fourth element of a malicious prosecution claim,
“[a] criminal defendant has not obtained a favorable termination of a
criminal proceeding where the outcome is inconsistent with the innocence
of the accused.” Martinez v. City of Schenectady, 97 N.Y.2d 78, 84 (2001).
Here, Mhina’s conviction was reversed and remanded for a new trial
because the prosecutor improperly introduced Mhina’s prior bad acts at
trial. (Dkt. No. 202, Attach. 3 at 5); Mhina, 110 A.D.3d at 1446. Contrary
to Mhina’s assertions, (Dkt. No. 205 at 5), this result is not a “favorable
termination” for purposes of finding defendants liable for malicious
prosecution. See Thomas v. City of Troy, 293 F. Supp. 3d 282, 294
(N.D.N.Y. 2018) (“Proceedings are terminated in favor of the accused only
when their final disposition is such as to indicate the accused is not guilty.
A reversal of a criminal conviction and remand for a new trial does not
constitute such a termination.” (internal quotation marks, alterations, and
citations omitted)); Martinez, 97 N.Y.2d at 84-85 (finding no favorable
termination where the plaintiff’s conviction was reversed “not because of
[the plaintiff’s] lack of culpability” but because the “conviction was obtained
pursuant to a faulty search warrant”). Accordingly, defendants are entitled

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to summary judgment on this claim.3
3.

Section 1981

The elements of a Section 19814 claim are: “(1) plaintiff[] [is] [a]
member[] of a racial minority; (2) defendants’ intent to discriminate on the
basis of race; and (3) discrimination concerning one of the statute’s
enumerated activities.” Brown v. City of Oneonta, 221 F.3d 329, 339
(2d Cir. 2000).
The statute of limitations for a Section 1981 claim is three years.
See Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
Mhina was arrested on February 4, 2008, during which time he alleges that
defendants used a racial slur. (SMF ¶¶ 27, 35.) However, Mhina did not
file his original complaint until March 20, 2015, more than three years after
the alleged racial slur was made. (Compl.) As such, Mhina’s claim is
barred by the statute of limitations, and defendants are entitled to summary
3

Although Mhina’s malicious prosecution claims must be dismissed
because he fails to satisfy both the second and fourth elements, and thus
the remaining two elements need not be reached, the court acknowledges
and agrees with defendants that “probable cause for the prosecution was
not so lacking as to reasonably permit an inference that the proceeding
was maliciously instituted.” Espada v. Schneider, 522 F. Supp. 2d 544,
554-55 (S.D.N.Y. 2007); (Dkt. No. 202, Attach. 3 at 5-6.)
4

See 42 U.S.C. § 1981.
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judgment as to this claim as well.
A.

Mhina’s Motion for Summary Judgment
For the foregoing reasons, Mhina’s motion for summary judgment is

denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Mhina’s motion for summary judgment (Dkt. No. 201)
is DENIED; and it is further
ORDERED that defendants’ cross motion for summary judgment
(Dkt. No. 202) is GRANTED and Mhina’s second amended complaint (Dkt.
No. 24) is DISMISSED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 15, 2020
Albany, New York

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