Stinson et al v. The City of New York

Filing 45

OPINION denying re: 36 MOTION for Reconsideration re; 34 Memorandum & Opinion filed by The City of New York, Raymond W. Kelly. (Signed by Judge Robert W. Sweet on 7/13/2012) (cd)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-- X
SHARIF STINSON, et

.,
Plaintiffs,
10 Civ. 4228

against
OPINION
CITY OF NEW YORK, et al.,
Defendants.
X

A P PEA RAN C E S:

At

Plaintiff

COHEN & FITCH LLP

225 Broadway, Suite 2700

New York, NY 10007

Joshua P. Fitch, Esq.
Gerald M. Cohen, Esq.
THE LAW OFFICES OF JON L. NORINSBERG,
225 Broadway, Suite 2700
New York, NY 10007
Jon L. Norinsberg,

Att

for the Defendants

MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By: Qiana C. Smith-Williams, Esq.

Sweet, D.J.

Defendants have moved, pursuant to Local Civil Rule 6.3,
"April 23

reconsideration of the April 23, 2012 opinion (t
ed Plaintiffs' motion

Opinion) in which the Court
certification.

Because Defendants have fail

to identi

class
any

controlling law or facts the April 23 Opinion overlooked,
motion for reconsideration is denied.

Prior Proceedings

A

of

led recitation of the

ior

ngs and facts

s case is provided in the April 23 Opinion granting

Plaintiffs' motion for
N.Y., No. 10 C
Apr. 23, 2012)

ass certification.

See Stinson v. Ci

of

. 4228 (RWS) , 2012 WL 1450553, at *2 5 (S.D.N.Y.
Famili

ty with t

se prior proceedings and facts

is assumed.

Defendants' motion for reconsideration highlights two
aspects of the April 23

nion:

(1) the Court's determination that

the proposed class was ascertainable,
determination that Plainti==s had
policy promulgated

(2) the Court's
t ly al eged a specific

De=endants, namely that Defendants have

established a practice by which NYPD of
1

cers

ssue summonses

order to meet a summons quota.

probable cause

Wl
~t

provides a bac

round to Defendants' motion, t
on will be re

il 23 Op

of

Because

se two aspects

ewed.

A. The April 23 Opinion's Holding Regarding Ascertainability

The llpril

nion addressed the implied requirement

3

that Fed. R. Civ. P. 23(a)

See St;nson, 2012 WL

ascertainab e.
rea

requ res that a proposed c_ass be
4505 3, at w12- 8.

n

Summons

ng this conclus on, the Court noted that the Cityw

Operation

lves a two-st

Receiving Unit conducts a
that

process: first,

rev~ew

fec+- review,

ude a serious defect such as a

srnissi~g

the Centra
those summonses

ssing signature or

narrative or improper return date; second, the Assoc;ate Court
Clerk and Supervising Judge
where the suwmonses are re

n each county coo

ewed for facial sufficiency.

precise~y

describe what is meant

the

23 Opi

on delved

es a process
To

the term "facial sufficiency,"

o the soecific sections of the New

York Criminal Procedure Law applicable to the NYP;J's sumInons
issuance

ration.

The

il 23

i

"summonses" are better described as "

n described how these
rance tickets" under the

C.P.L., see id. at *13-14, and that a po ice off cer issuing an
appearance

icket subse

the Criminal Court of

ly files an "accusatory
he

nstrument" in

Y of New York, id. at *15.
2

The C.P.L.

facia ly suff cient, as

requires the "accusatory instrument" to

N.Y. C.P.L. §§ "00.40 and :00.15.

mandated

Applying these statutes, the April 23 Opinion held that
the facial sufficiency review conducted as part of the Citywide
Summons Operation - the second step of the two part review process
described above - involved a judicial determination as to whether
the summons issued lacked probable cause.

As an initial st

Court noted that the term "reasonable cause," used
100.40(1) (b)

I

I

the

N.Y. C.P.L.

§

has been held to be synonymous with "probable cause./I

See Stinson, 2012 WL 1450553, at *16.

The April 23 Opinion then

noted that, although other reasons for dismissal at the faci
sufficiency review stage are possible, it is unlike

that these

alternative rationales apply to the summonses at issue in this
litigation:

As noted above, N.Y. C.P.L. § 100.15 requires
smissal of a
summons that
Is to state the court in which it is filed,
the title of the action, the name of the subscribing
complainant, the offense charged or a sufficiently descriptive
factual statement, and § 100.40(1) (c) requires non-hearsay
allegations to est
ish each element of the
fense.
Under
the summons review process described above, the technical
errors enumerated in N.Y. C.P.L. § 100.15 are addressed in the
fect review conducted prior to
judicial determination of
facial sufficiency. With re
to N.Y. C.P.L. §
100.40(1) (c), the offenses for which the summonses in this
case are being issued establish lack of non-hearsay
allegations to be an improbable reason for
smissal.
According to the [Office of Court Administration] statistics,
the offenses for which the most summonses were issued include
3

consumption of
coholon [t
street,] disorderly conduct,
violations of motor vehicle safety rules, bicycle on the
sidewalk, trespass, of
matter in the street/public
place, failure to comply with signs/parking of
s, reckless
driving, littering, unlawful
being
the park after hours,
unlawful possession of marijuana, unreasonable noise,
unlicensed operation of a vehicle, unlicensed vending and
operation of a motor vehicle with a suspended registration.
Given the nature of these offenses, and Plaintiffs' deposition
testimony describing how summonses were issued on the basis of
NYPD officers' personal observations, an overwhelming number
of the summonses found to be faci ly sufficient would not be
smissed on hearsay grounds pursuant to N.Y. C.P.L. §
100.40(1) (c).
Thus, the Citywide Summon Operation's two-step
review process and the nature of the offenses involved
establi
the vast majority of those summonses failing to
survive judicial review for
l
sufficiency to have been
smissed for want of probable cause.

Stinson, 2012 WL 1450553, at *16.
Opinion

Accordingly, the April 23

Id that Plaintiffs had established the implied Rule 23(a)

requirement of ascertainability.

B. The April 23 Opinion's Holding Regarding Commonality

In addition to

ing on the April 23 Opinion's

scussion of ascertainability, Defendants' motion for
reconsideration
PI

so addresses the April 23 Opinion's holding that

iffs met the commonality prong of Fed. R. Civ. P. 23(a).

In

considering Rule 23(a) 's commonality requirement, the April 23
Opinion addressed the Supreme Court's decision in Wal-Mart Stores,
Inc. v. Dukes, 131 S.Ct. 2541, 180 L.Ed.2d 374

4

(2011), in which the

Supreme Court addressed Rule 23(a)'s commonality requirement in the
context

Wal Mart employees'

tIe VII claims alleging unlawful

sexual discrimination in pay and promotion.
In

1450553, at *8-9.

~~kes,

See Stinson, 2012 WL
Wal-

the Supreme Court held that

Mart employees had failed to allege commonality, which requires a
"common connection
131 S.Ct. at 2551.

fl

among putative pIa
~he

See Dukes,

iffs' claims.

Supreme Court held that such a "common

connection" was lacking in Dukes because the basis for liability
was not

y

sfavor in pay and promotion[ but the reason why

each class member was disfavored:

y corporate policy that pI ntiffs' evidence
convincingly establishes is Wal Mart's \
icy' of allowing
discretion by local supe
sors over employment matters. On
its face, of course, that is just the opposite of a uniform
employment practice
would provide the commonality needed
for a class action; it is a
icy against having
form
employment practices.
~he

Id. at 2554.
a corporate

Because the wal-Mart employees had failed to i

ify

icy that led to the local managers' discretion being

exercised in a uniformly
commonality to be lacking.

scriminatory way, the Supreme Court he
See

. at 2556 57.

April 23

Opinion distinguished Dukes from this case, noting

t,

"[ u] nl i

in Dukes where the plaintiffs alleged a corporate policy of
discretion to local managers and a corporate
advancement of women, Plaintiffs here have all
5

ture hostile to the
a specific

policy promulgated by Defendants, namely, that Defendants have
established a practice by which NYPD officers issue summonses
without probable cause in order to meet a summons quota."
2012 WL 1450553, at *9.

Stinson,

As such, the April 23 Opinion held that

Plaintiffs had established the express Rule 23(a) requirement of
commonali

The Applicable Standard

Defendants request reconsideration of the April 23
Opinion pursuant to Local C

1 Rule 6.3.

motions under Local Civil Rule 6.3 is

The standard governing
same as that governing

motions made pursuant to Fed. R. Civ. P. 59, see
Metro. Bank

&TrysL_Co~,

He~derson

v.

502 F. Supp. 2d 372, 375 (S.D.N.Y. 2007),

and a court may grant reconsideration where "the moving party can
point to controlling decisions or data that the court overlookedmatters,

other words, that might reasonably be expected to alter

the conclusion reached by the court.H
BDC 56 LLC, 330 F.3d 111, 123

Id. at 376 (quoting In re

Cir. 2003)).

Additionally, the

party moving for reconsideration can obtain relief by demonstrating
an "intervening change in controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest
injustice.
v.

II

Sol~e(::it'2'

Id.

(quotation marks and citations omitted)

253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003)
6

Parrish

granted to correct clear error

("Reconsideration

availabi ity of new evidence.")

Ltd.

Atl. Ai

(cit

956 F.2d 1245, 1255

'I

prevent

court's decision in light of the

fest injustice or review

v. Nat'l Mediation

l

(2d Cir. 1992));

---------~~~--------------~

Catskill Dev.

L.L.C. __ Park Place Entm't
v.
.._________ __________

~~~~~~~~~_~~~c~

696, 701-02

~.~~~

(S.D.N.Y. 2001)

~

154 F. Supp. 2d

~

(granting reconsideration due to

court's erroneous application of a statute).

The moving party must
fore the court

1 matters put

demonstrate controlling law or
on the underlying motion

... .,

~

the movant believes the court

overlooked and that might reasonably be expected to alter the
court's decision.
Fed. Appx. 337,

See Linden v. Dist. Council 1707-AFSCME, 415

338-39 (2d Cir. 2011)

(affi

ng dismis

reconsideration motion as movant did not identi
facts or cont

ling authority that t

v. Besi

. Inc.,

2002)

"

any relevant

lower court overlooked)

28 Fed. Appx.

------------~------~-- ....~~--~-------

of

73,

75

i

(2d Cir.

(affirming dismissal of reconsideration motion where movant

led to demonstrate that the

[lower]

court overlooked any fact

of consequence or controlling legal authority at the time the court
decided [the case]").

The reason for the rule confining recons

ion to

matters that were "overlooked" is to "ensure the finality of
decisions and to prevent the practice of a losing party examining a
decision and then plugging the gaps of a lost motion with

7

additional matters.

U

v. St. Mart's Press

Pol

Inc., No. 97

Civ. 690 (MBM) , 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)
(citation and quotation marks omitted).

ly Local Civil Rule 6.3, so as to avoid

construe and strictly

considered issues, and to prevent

ings on previous

duplicative

A court must narrowly

as a substitute for appealing a f

the rule from being

nco Sec.

Derivative

judgment.

See In re Bear Stearns Cos .

ERISA Lit

. , 08 M.D.L. No. 1963, 2009 WL 2168767, at *1

----~~ ......="----

Jul. 16, 2009)

reconsideration is not a motion to

("A motion

reargue those issues already consi
the way

red when a party does not like

original motion was resolved.

U

)

(quoting

Polan, 496 F. Supp. 2d 387, 389 (S.D.N.Y. 2007))

v.

Re

i

.com v.

-~~----------

Lansa, Inc., No. 01 Civ. 3578, 2008 WL 4376367, at *2
Sept. 25, 2008)

("

standard

(S.D.N.Y.

ing such a motion is

strict, and reconsideration will generally
moving party can

deni

unless t

nt to controlling decisions or

court overlooked-matters, in other words, that
expected to alter the conclusion
and quotation marks omitted)

(S.D.N.Y.

i

ght reasonably be

by the court.

Ball

a that

v. Parkstone

u)

(citations
LLC, No.

06 Civ. 13099, 2008 WL 4298572, at *1 (S.D.N.Y. Sept. 19, 2008)
("Local Rule 6.3 is to be narrowly construed and strictly applied
in order to avoid repetitive
fully considered.")

s on issues that the court has

(quoting Abrahamson v. Bd. of Educ. of the

8

. Sch. Dist., 237 F. Supp. 2d 507, 510
..

~~~-=~-----~---~~~ --~~---

(S.D.N.Y.

2002) .

Motions for reconsideration "are not vehicles for taking
a second bite at the apple,
consi

facts not in

overlooked."
2008)

(citat

. and [the court]

record to

d] not

facts that the court

Rafter v. Liddle, 288 Fed. Appx. 768, 769 (2d Cir.
and quotation marks omitted) .

Defendants' Motion For Reconsideration Is Denied

Defendants request reconsideration of the April 23
Opinion on grounds that the proposed class fails to meet
requirements of Fed. R. Civ. P. 23(a).
that the proposed class does not meet t
requirement of ascertainabili

First, Defendants contend
implied Rule 23(a)

because the April 23 Opinion

misinterpreted the applicable provisions of the New York Criminal
Procedure Law and overlooked case law interpreting those
provisions.
incorrectly

Second, Defendants contend that the April 23 Opinion
sed the issue of commonality, as the proposed

class did not meet Rule 23(a) 's commonality requirement because
Plaintiffs have fa led to demonstrate a municipa1 policy or
practice.

Because Defendants have failed to demonstrate that the

Court overlooked any fact of consequence or controlling legal
9

authority in the April 23 Opinion, Defendants motion for
reconsideration is

ed.

A. Defendants Raise No Controlling Law Or Facts The April 23

Opinion Overlooked To Warrant Reconsideration Of The

Ascertainability Issue

Defendants raise three main arguments against the April
23 Opinion's determination that the proposed class is ascertainable
under ?ed. R. Civ. P. 23{a).

?irst, Defendants contend that a

"reasonable cause" determination under N.Y. C.P.L.
is not a merits bas

finding of a 1

Defendants contend that,

§

100.40(1) (c)

100.40(1) (b)

of probable cause.

Second,

April 23 Opinion ignored the
ring non-hearsay

that, in addition to

§

legations, N.Y. C.P.L.

res an accusatory instrument to set forth a

prima facie case, thereby presenting grounds upon which a summons
may have been dismissed independent of
Finally, Defendants suggest that the
rebuttable presumption in def

lack

probable cause.

1 23 Opinion's use of a

the class is inappropriate.

1. efendants Fail To Raise Controlling Law Or Facts That
D
The April 23 Opinion Overlooked Concerning N.Y. C.P.L.
§

100.40 (1) (b)

According to Defendants,

proposed class is not

ascertainable because a "reasonable cause" determination under N.Y.
10

C.P.L.

§

100.40(1) (b)

probable cause.

ing of a lack of

is not a merits based f

Defendants contend

on

April 23 Op

t

overlooked applicable New York case law concerning the
interpretation of the sections of the Cri
above and that

S

case law does not support t

dismissal on the basis of faci

Law cited

nal

finding that a

insufficiency neces

ly

implicates a judicial determination of probable cause.

Citing the New York Court of Appeals case

e v.

15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526
that, under N.Y. C.P.L.

Defendants cont

determination of faci
determination

§

100.40(1) (b), a

sufficiency is not a merits-ba

ther there was probable cause to summons an

individual, rat

it is a j

sdictional determinat

be made prior to arraignment to ensure t
juri

(2010),

ction to hear a

nal matter.

t

must

court has
In

----"'~-

, the Court of

Appeals held that a "valid and sufficient accusatory instrument is
a nonwaivable jurisdictional prerequisite to a criminal
prosecution," --

...~'-----

, 15 N.Y.3d at 103, and that an arresting

officer's allegation fail

to provide

criminal conduct, thereby violating
requirement of N.Y. C.P.L.
Court
faci

Appeals case est

100.40.

§

i

ficient detail of the
re

e cause

Defendants contend that this

s that dismissal on the basis of

insufficiency is not a merits-based determination of whether
11

an officer had probable cause.

According to Defendants, the fact
guil

pl

that the defendant in

removes any doubt that

probable cause existed and undercuts the idea that a dismissal on
the basis of facial insufficiency is merits-based rather than
j

sdicti

Additional

, Defendants contend that the fact

York courts allow prosecutors to re-file a facial

New

deficient

accusatory instrument in order to cure deficiencies belies the
notion that the judiciary engages in a meritsanalysis in

smissing a summons

basis

ed probable cause
facial insufficiency.

As such, Defendants state that a proposed class of the entire pool
summonses dismissed for facial insufficiency is inappropriate,
as those dismissals do not neces
based determination of a I
class is not ascertai

e

ly implicate a judicial merits

of probable cause, and the proposed
thout engaging in tens of thousands,

if not hundreds of thousands, of mini-tri
particular pIa

s to assess whether a

iff \'Jas issued a summons without probable cause.

In further support of this argument, Defendants cite Haus
v. Ci

of New York, No. 03 Civ. 4915(RWS) (MHD)

2011) where

aintiffs

(S.D.N.Y. Aug. 31,

that the summonses issued to them

1

were devoid of probable cause due to defects on the face of
summons.

Court

ect

pI

ntiffs' argument, noting that
12

"[t]he existence or non-

stence of probable cause is measured by

the events occurring at the t

of arrest, and whi

a defect in

the charging document may lead to the dismissal of the charge, that
does not demonstrate that the arrest was invalid.

Defendants' contentions fail to est
recons

ration of the April 23 Opinion.

u

rd. at 245.

ish grounds for

None of the briefing

related to Plaintiffs' class certification motion cited the

e

decision, nor was the case raised at oral argument.
With respect to Haus v. Ci

of New York,

~-- .. ~~.~~-~~--~-- .. --~---

the April 23 Opinion

squarely addressed the issue Defendants' identify, recognizing
that, while there are alternative reasons for dismissal of a
summons other than a lack of probable cause, an analysis of the
applicable statutes and the Citywide Summons Operation's two-stage
review
majori

s leads to the conclusion that the overwhelming
of summonses dismissed at the faci

stage were dismissed for want of probable cause.

ficiency review
See Stinson, 2012

WL 1450553, at *16.

Defendants' citations to the

decisions f

se a point of law or controlling authority the

1 to

and Haus

April 23 Opinion overlooked.

Furthermore, Defendants' contention that the Citywide
Summons Operation's facial sufficiency review does not involve a
judici

determination of whether the summons issued lacked
13

ded.

probable cause is mi

the April 23 Opinion,

As was noted

"[t]he term 'reasonable cause' is synonymous
cause.'ff

th 'probable
v. Port

Stinson, 2012 WL 1450553, at *16 (cit

Auth., 768 F.2d 34, 40
4, 58

820 F. Supp.

r. 1985); Hahn v.
..

(2d

~C ~~~_,~_

..~.C....__.C~_ _~_ _~~

(N.D.N.Y. 1993)); see also Williams v. Ward,

845 F.2d 374, 387 n.16 (2d Cir. 1988)

("'Reasonable cause' under

Criminal Procedure Law 'is substantially the same as 'probable
Fourth Amendment. I")

of

cause' within the

(quoting

Greene v. Brown, 535 F. Supp. 1096, 1100 (B.D.N.Y. 1982)).
expla

in the April 23 Opinion, PIa

As was

iffs need only establish

the Rule 23(a) factors by a preponderance of the evidence, see In
re FI

Telecom Holdi

Ltd. Sec. Lit

.3d 29, 35 (2d

Cir. 2009), and "[a]lthough other reasons for dismissal at the
facial
these

ficiency
ternat

this litigat

ew stage are poss

rationales apply to the summonses at issue in
"

Stinson, 2012 WL 1450553, at *16.

Defendants are correct that di
100.40(1) (b)

e, it is unlikely t

While

ssal pursuant to N.Y. C.P.L.

§

is not, to the exclusion of all other rationales, a

determination that a summons was issued without probable cause, the
April 23 Opinion held that

\\t~e

Citywide Summon Operation's two-

step review process and the nature of
establi

the vast majori

offenses involved

of those summonses fail

to survive

judicial review for facial sufficiency to have been d smissed for
want of probable cause."

Stinson, 2012 WL 1450553, at *16.
--~~~-

14

Because Defendants have f

I

LO raise controlling law
ng N.Y. C.P.L.

that Lhe April 23 Opinion overlooked
100.40(1) (b)'s reasonable cause requirement,

§

Defendants' motion for

reconsideration based on this issue is denied.

2. efendants Fail To Raise Controlling Law Or Facts That
D
The April 23 Opinion Overlooked Concerning N.Y. C.P.L.
100.40 (1) (c)

§

In addition to the argument that a determination that a
summons lacked reasonable cause under N.Y. C.P.L.

§

100.40(1) (b)

does not establish a merits-based determination that a summons was
wi

i

probable cause, Defendants attack

Opinion's reasoning concerning N.Y. C.P.L.
that this section of

c

noting

in addition to

ions, also requires that

summons set

ement of

100.40(1) (c),

Criminal Procedure Law,

requiring non hearsay all
issuing

§

April 23

officer

allegations supporting every

charged.

Defendants note that criminal

informations are frequently dismissed for failing to satisfy this
prima facie requirement.

According to Defendants, a summons may be

dismissed as facially insufficient as a result of an officer1s
failure to

mee~

100.40(1) (c),

the prima facie requirement of N.Y. C.P.L.

§

a standard that has no bearing on the question of

probable cause.
15

April 23

Notwithstanding Defendants' contentions,
Opinion considered t
and

100.40 (1) (c)

§

nature of the offenses involved in

ld that

litigation est

ished N.Y. C.P.L.

improbable reason for
*16.

requirements of N.Y. C.P.L.

smissal.

§

100.40(1) (c)

s

to

an

See Stinson, 2012 WL 1450553, at

None of the cases Defendants cite in support of their

argument that reconsideration is warrant

on the basis of the

April 23 Opinion's misinterpretation of N.Y. C.P.L.
were cited in the initial class certificat
have thus failed to identi

100.40(1) (c)

§

brief

Defendants

an issue the April 23 Opinion

overlooked and reconsideration is unwarrant

Even if Defendants had identifi

controlling law the

April 23 Opinion overlooked, applicable precedent from the New York
Court of Appeals defining the requirements of N.Y. C.P.L.
100.40(1) (b)

and 100.40(1) (c) reveals Defendants' inte

these statutes to be incorrect.
Appeals addressed the faci

§§

ation of

In

sufficiency of a misdemeanor complaint

leging possession of a gravity knife, hoI

that

instrument lacked reasonable cause under N.Y. C.P.L.
100.40 (4) (b) :

16

accusatory
§

"The f
part of a misdemeanor complaint must allege
'facts
an evidentiary
ter' [citing N.Y. C.P.L. §
100.15(3)] demonstrat
'reasonable cause' to
ieve the
de
committed the
charged [citing N.Y. C.P.L. §
100.40(4) (b)] "
e v. Dumas, 68 N.Y.2d 729, 731 (1986).

cribed the
Here, the misdemeanor complaint, insofar as it
officer's conclusion that defendant had a gravi
arrest
1
to
any support or
anation whatsoever
knife,
ficer's
lief. That violation of the "reasonable
1 defect.
cause" requirement amounted to a jurisdict
Not every knife is a weapon for purposes of Penal Law §
265.01(1), which specifically outlaws possession
a gravity
knife, among other weapons.
. A conclusory statement that
an object recovered from a
fendant is a gravity kni
does
not alone meet t
Ie cause
rement.

---"-­

, 15 N.Y.3d at 102-04.

that the
N.Y.

trument at issue in

C.P.L.

§

d

ran afoul of

100.40(4) (b) 's reasonable cause

misdemeanor complaints
facts

As such, the Court of Appeals

rement for

it failed to provide sufficient

leging that the object recovered was a gravity knife.

order to satisfy

statutory

rement that an accusatory

instrument allege facts of an evi
reasonable cause to

In

nature demonstrating

lieve that the

fendant committed t

crime

charged, an accusatory instrument must estab_ish the requisite
elements of that offense.
provision of N.Y. C.P.L.

Put differently, the reasonable cause
§

100.40(4) (b) requires that the

accusatory instrument provide a

ma facie case.

17

Although N.Y. C.P.L. § 100.40(4) (b) pertains to
misdemeanor complaints and not the summonses at issue in this
litigation, the Court of Appeal's

erpretation of this statute is

relevant because the language of N.Y. C.P.L.
N.Y. C.P.L.

§

N.Y. C.P.L.

§

§

Accordingly, the

that the reasonable cause

100.40(4) (b) requires a prima

ie case

applicable to the reasonable cause provision of N.Y.

is equal
C.P.L.

100.40(4) (b) and

100.40(1) (b) is nearly verbatim.

Court of Appeals' holding in
provision

§

100.40 (1) (b).

A basic premise of statutory interpretation "disfavor[s]
interpretations of statutes that render language superfluous."
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117
L.Ed.2d 391 (1992)
~~nti2rio:r::,

N.Y. C.P.L.

i

see also

228 F.3d 82, 88 (2d Cir. 2000).
§

However,

erpreting

100.40(1) (b) 's reasonable cause requirement to

require that the information

lude facts sufficient to allege the

elements of the offense charged does not render N.Y. C.P.L.
100.40(1) (b) duplicative of N.Y. C.P.L.
C.P.L.

§

100.40(1)

(c)

§

100.40(1)

(c).

§

N.Y.

mandates that "[n]on hearsay allegations of

the factual part of the information and/or of any supporting
depositions establish, if true, every element of the offense
charged and the defendant's commission thereof."
100.40(1) (c).

N.Y. C.P.L.

As such, the focus of this provision
18

§

the Criminal

Procedure Law is not that the information provide a prima
casei instead, the focus is that an

ormation provi

legations to support each element of the offense.
andro,

Court of Appeals, in the case of

ie

non-hearsay
The New York
irms this

interpretation of the statute:

The reason for requiring the additi
showing of a prima
facie case for an information lies in the unique function that
an information serves under the statutory scheme established
by the
minal Procedure Law. An information is often
instrument upon which the de~endant is prosecuted for a
misdemeanor or a pet
offense. Unl
a felony compla
, it
is not f lowed by a preliminary hearing and a Grand Jury
proceeding. Thus,
Ie need not, at any time pr
to
t
1, present actual evidence
rating a prima fac
case, as with an indictment following a felony complaint.
Because an information must, for jurisdictional purposes,
contain nonhearsay fac
allegations sufficient to establish
a prima facie case, a prosecutor's
statements, set
forth in a bill of particulars, cannot supply necessary
fac
allegations to cure a deficient information.
contrast, an indictment, which presupposes that the Grand
Jury, before issuance of the indictment, has found t
a
prima facie case exists may, as a pleading, be corrected by a
bill of particulars.
That it was this distinguishing characteristic of an
information - its use as the sole instrument upon
ch the
defendant could be prosecuted - which prompted
Legislature
to write in the special restrictions applicable to
informations found in C.P.L. § 100.40(1) (c) and 1CO.15 (3) is
confirmed by the legislative history leading to the enactment
of these sections as part of the Criminal Procedure Law.

e v. Al

andro, 7C N.Y.2d 133, 138, 517 N.Y.S.2d 927, 511

N.E.2d 71 (1987)

(citations omitted)
19

Thus, the Court of Appeals

confirms that purpose of N.Y. C.P.L. § 100.40(1) (cl
that an information provi

non

IS to ensure

allegations detailing the

offense charged.

Defendants'
100.40(1) (c)
§

t

ir contention chat N.Y. C.P.L.

§

imposes a prima facie case requirement independent of

100.40(l)(b)'s reasonable cause

rement wi

citations to

e v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016
(2007), and People v. Alejandro,

70 N.Y.2d

33.

s, in both cases, the

De

truments at issue

satisfied the reasonable cause

rement

N.Y. C.P.L. §

0

100.40 (1) (b) but were ul timately dismis

il

facie requirement of N. Y. C. P. L.
that a finding of a lack of a

t

According to

§

100.40 (1) (c), thereby
ma facie case is

apart from a determination of rea

te

to establish

e cause.

in, Defendants fail to offer case law the
Opinion

, as neither of these cases was rai

initial class certification briefing.
cons

, De

s' argument fails.

the Court

In

in the

se cases are
Ie v. Jones, while

rule the accusatory instrument

icient

that it failed to allege a prima facie case, the Court

on
of

s

Even if t

1 23

ma facie case requirement as one imposed by

Is

both N.Y. C.P.L.

§§

100.40(1) (b) and 100.40(1) (c).

20

See Jones, 9

N.Y.3d at 261

(c) of C.P.L. § 100.40(1), read

("Paragraphs (b)

ace the burden on the People to make out the

in conjunct
prima fac

case for the offense

informat

Court of Appeals in Jones, citing

Further, t

• 1/) •

v. Ale andro,

rged in the text of t

ized the rat

ring non

le for

hearsay al:egations described above, noting that the purpose of
N.Y. C.P.L.

100.40 (1) (c)

§

safeguards comparable to

is to provide a defendant with

~he

presence of a Grand Jury for felony

complaints and a supporting deposition for misdemeanor complaints.
See id. at 262.

Finally, there is no indication in Jones that the

Court of Appeals found t
C.P.L.

§

100.40(1) (b)

In
\\ [t]

reasonable cause

requiremen~

sa::isfied.

le v. Ale andro,

'prima facie case' reauirement

Court of Appeals states that
that the

establish every element of the offense charged
C.P.L.

§

100.40 (1) (cl]

of N.Y.

-

factua~

[cita~ion

part
to N.Y.

ies, however, to informations alone.

However, as described above, the Ale andro Court's desc
the reason for

ma facie

~he

requiremen~

that, because of the 1
all

ions in an

informa~ion

100.40(1) (c)

mus:: be non hearsay.

a prosecutor's
Furthermore,

ing N.Y. C.P.L.

suggests the enumerating of elements

the concept of reasonable cause, see
21

ion of

is focused on the idea

1 safeguards,

recen:: Court of Appeals jurisprudence

1I

~o

§

be linked with

le v. Jackson, 18 N.Y.3d

738,741,944 N.Y.S.2d 715,967 N.E.2d 1160
is valid
factual

(2012)

("An information

sdictional purposes if it contains nonconclusory

j

legations that, if assumed to be true, address each
the crime charged, thereby afr

element

believe that der

ng reasonable cause to

committed that offense U

further

),

support to the idea that the purpose behind N.Y. C.P.

§

100.40(1) (cl is to ensure that an information includes non-hearsay
all

ions.

Because the April 23
N.Y. C.P.L.

§

inion addressed the requirements

100.40(1) (c), Defendants have

iled to

demonstrate that the April 23 Opinion overlooked any fact of
consequence or controlling I

authority, and reconsideration on

the basis of this statutory

sion is not warranted.

3. Defendants Fail To Raise Controlling Law Or Facts That
The April 23 Opinion Overlooked Concerning The Use Of A
Rebuttable Presumption To Define The Class

Defendants object to the April 23 Op

ion's holding that

"[i]ndividuals who were issued summonses that survived the New York
City Citywi

Summons Operations' de

t review but were dismissed

during the second-round review process upon a judicial finding of
fac

insufficiency are presumptive members of the class, but

Defendants can challenge any presumptive class membey on grounds
22

lack of probable cause.

U

reasons other than a

smis

that the summons at issue was

Stinson, 2012 WL 1450553, at *17.
satisfies the

sumption artifici

Defendants contend that this

ascertainability requirement for class certification, and, since
the presumption is rebuttable, class membership cannot be
until t

ascerta

is of probable cause for each

factual ana

summons is undertaken.

ck v. Alford, 543 U.S. 146, 125

Defendants, cit

S.Ct. 588, 160 L.Ed.2d 537 (2004), a case which held that an arrest
is valid if

valid basis

sted even if probable cause did not

exist with respect to the stat
each summons at issue must
probable cause existed

basis for the arrest, contend that
analyzed to

her

that the April 23 Opinion

inappropriately shifted t

burden by presuming that every summons

was issued without probable cause.
is similar to Morton v.

termine

Defendants state that

sease

of Detroit, No. 11-cv 12925, 2012 WL

------------~~------------

1166984

(E.D. Mich.

. 9, 2012), a case where plaintiff brought a

class action seeking to declare a loitering ordinance
unconstitutional.

In that case, the Eastern District of Michigan

denied class certification of all individuals ticketed under t
ordinance who appeared in court and had their tickets dismissed
because the "reason each ticket was dismissed may
insufficient probable cause, but other reasons

that there was
have resulted in

a dismis

of the ticket, such as when an officer fails to appear
ing to

in court or the individual entered a plea agreement
plead guilty to cert

n charges in exchange for the city attorney

smissing other charges.

u

Morton, 2012 WL 1166984, at *3.
~

....

--~.-

s or controlling

Again, Defendants fail to raise any
law the April 23 Opinion overlooked.
addressed

------~- ....

The April 23 Opinion

v. - -Alford, see Stinson, 2012 WL 1450053, at
--

--

... ~~----

*18, and the Morton v. Ci

sented in

of Detroit case was not

------.--------~~-------------

the initial class certification briefi

Furthermore, Defendants

ignore that that the April 23 Opinion did not blindly impose a
presumption that individuals who rece
those summonses without probable cause.
detailed the two-stage review process of
Operation, evaluat

all possible

~eans

summonses were issued
The April 23 Opinion
Citywi

Summons

which a summons could be

dismissed at the facial sufficiency review stage and concluded
under

l

t

e preponderance of the evidence standard, that

it was more likely than not that summonses dismissed at che facial
review s

were

smissed for lack of

Defendants' citation to

Ie cause.

Eastern District of Michigan's decision

in Morton is unavailing, as the Court in that case

d not confront

the two-stage Cicywide Summons Operacion review process or the
provisions of che New York Criminal Procedure Law chat make class
certification appropriace in t

present accion.
24

Defendants, in the briefing supporting the
ation of

offered an incorrect int
holdi

Although Defendants'

motion, have

April 23 Opinion's

sinterpretation does not

constitute grounds for reconsideration, some clarification is
appropriate.

Defendants state that "the Court's

defendants can

truction that

lenge any of the presumptive class members only

on grounds other than a lack of probable cause is troubling."
Def.'s Mem. at 4 n.2.

Defendants appear to construe this language

to mean that they are only permitted to mount a challenge to a
putative plaintiff's membership in the class bas
except whether that putat
probable cause.
opposite, namely

on anything

plaintiff's summons was issued with

The April 23 Opinion, however, held the exact
Defendants can mount a challenge based

precisely on probable cause as to those summonses Defendants
believe were issued with probable cause notwithstanding the
presumption that these summonses were wrong

ly issued:

Defendants,
their opposition brief, highlight various
aspects
Plaintiffs' deposition testimony suggesting that at
least some of the summonses Plaintiffs received were issued
with probable cause and object to the Court "rubber stamping a
proposed class to include anyone who has had a summons
dismissed." For this reason, the boundaries of the class have
been narrowed to include only those putative plaintiffs whose
summonses were dismissed during
second-step,
ial
sufficiency review process, where the applicable statutes
suggest the reason for dismis
to be a lack of probable
cause. Additionally, affording Defendants the abili
to
25

challenge any
at
plaintiff's membership in
will ensure that the class is not overly inc
ive.

class

Stinson. 2012 WL 1450553, at *17 n.6.

B. Defendants Raise No Controlling Law Or Facts The April 23
Opinion Overlooked To Warrant Reconsideration Of The
Commonality Issue

In addition to att

t

April 23

rement of ascertainability,

regarding the implied Rule 23 (a)

Defendants' attack the April 23 Opinion's hoI
express Rule 23(a) requirement of commonali
Defendants' object
that t
controll

concerning
However,

concerning commonality fail to demonstrate

April 23 Opinion overlooked
1

inion's holding

fact of conseauence or

authority so as to require reconsideration of the

decision to grant class certification.

1. The April 23 Opinion Addresses The Existence Of A
Policy And The Causal Link Between That Policy And The
NYPD Issuing Summonses Without Probable Cause

According to Defendants, Plaintiffs in this action suffer
from t

same commonality pitfalls as Plaintiffs in the Dukes case,

as the April 23

nion overlooked Defendants' contention that

Plaintiffs must present sufficient evide:1Ce of a Inunic

26

1 policy

the alleged constitutional deprivation applicable

that has caus

to the entire proposed class.

Defendants contend that, even if a
the "s

ntiffs have not

quota exists,

s
required under - - - of a munic

ficant" proof

policy directing officers to

issue summonses without probable cause or forcing officers to issue
summonses without probable cause in order to meet a quota.
Defendants contend

t~at

upon in the April 23

the evidence reli

Opinion, including the Office of Court Administration statistics,
tape recordings of roll calls at two police precincts and an
employment arbitration decision, fail to satis
23 burden.

According to Defendants,

t~e

insufficiency do not constitute a fi

Plaintiffs' Rule

dismissals for facial

ng of no probable cause,

Plaintiffs have made no showing that the two speakers on the roll
call tapes are

McmE?l~

policymakers or that the content of these

tapes represents an NYPD policy sufficient to hold the

n'

of New

Ll

York and NYPD liable under Monell, and the arbitration decision
finding traffic summons

in the 7

Precinct in 2005 does not

support an NYPD policy of issuing summonses

wit~out

probable cause.

Defendants note that Plaintiffs have offered no proof

t~at

officers

are issuing similar numbers of summonses, tnereby suggesting the
existence of a quota, and that the summons issuance process instead
appears to be discretionary, much like the discriminatory policy at
issue in Dukes.
assumed

t~at

Defendants also contend that, even if it is

a quota policy exists, Plaintiffs have not presented
27

the auota po:icy prompted them to

testimony from KYPD officers

other

issue invalid summonses, nor have Plaintiffs presented

evidence suggesting that summonses issued pursuant to this quota
lacked probable cause.

Notwi

anding Defendants' contentions, the April 23

Opinion held that Plaintiffs had established the existence of a
common policy or custom - the quota

as well as the causal link

between that common policy and the harm inflicted on Plaintiffs
the issuance of summonses without probable cause.
Opinion detailed the s

ficant proof establishing the existence

of that policy, including

from roll call meetings and

the January 14, 2006 arbitrator's ruling t
Prec

tempI

The April 23

a quota with

held that the 75 th

to traffic summonses.

Stinson, 2012 WL 1450553, at *4 5.

Additionally, the

I

Opinion noted that 620,149 summonses were dismissed at
round facial sufficiency
York's Cri

See
23

second-

ew stage, and an analysis of New

nal Procedure Law suggested that the overwhel

number of these 620,149 summonses were dismissed because
lacked probable cause.

See Stinson, 2012 WL 1450553, at

The April 23 Opinion express

defines the theory

*16.

Defendants

have an unconstitutional quota policy and that this quota

icy

has caused Defendants to issue Plaintiffs summonses that lacked
probable cause.

See Stinson, 2012 WL 1450553, at *9 ("Plaintiffs
28

-'-

by Defendants,

ific policy promulgat

a

1

here have

namely, that Defendants have est

lished a practice by which NYPD
r to meet a

officers issues summonses without probable cause
summons quota. ") .

As was noted in the April 23 Opi

Defendants' citation to Dukes is
discretion afforded to local
cent

unavail~ng,

on,
decentralized

as

-Mart managers is unlike the
leged

ized, citywide quota policy

See id.

Defendants fail to raise any controlling law or facts
that the

I 23 Opinion overlooked and,

ng

,have

provided no basis upon which the Court's holding can be
reconsidered.

2. The April 23 Opinion's Use Of A Presumption Does Not
Inappropriately Establish Commonality

Si

lar to

ir

concerning ascertainability,

Defendants contend that

il 23 Opinion's imposition of a

sumption that a summons was invali
establi

s the element of

cases of Casale v. Kel
v. Kell , 244 F.R.D. 222

ity.

De

257 F.R.D. 396
(S.D.N.Y. 2007)

certification of a class of
summonses

y issued artificially
s highlight the

(S.D.N.Y. 2009), and Brown
I

which both involved the

aintiffs who had been issued

violating statutes that had been

19

ously declared

unconstitutional.

According to Defendants, In those two cases, the

Court acknowledged that some of the summonses involved may
articulate a charge ba
been

prev~ously

on a statute other than the one that had

held unconstitutional, see

ding that an arrest is valid

f any valid basis existed even if

probable cause did not exist with respect to the stated basis for
the arrest), and that sub-classes could be employed to address
these concerns.

According to Defendants, this case, unlike Casale

or Brown, involves summonses that address a wide range of criminal
violations that are not held together by the glue of having been
issued pursuant to a specific unconstitutional statute.
the certified class in this case does not have
commonali

s

Because

ue of

,Defendants contend that it is, in fact, more like the

subclasses for which

icularized determinat on of probable cause

are necessary.

The April 23
and applied the holdings of those cases to the present
action.

Although the present action, unlike Casale or Brown, does

not revolve around a single unconstitutional statute, it does
revolve around a single

1

quota policy.

Based on the

presented, the April 23 Opinion concluded that a
preponderance of the evidence suggested the existence of a specific
quota policy promulgated

Defendants that was common to each
30

Plaintiffs' cl

for relief.

Defendants have failed to raise new
's holding regarding the

ts or law to rebut the April 23 Op
existence of this quota poli

and are there

to

not entitl

reconsideration.

3. The April 23 Opinion Establishes Rule 23(b) (2) and Rule
23(b) (3) Requirements To Be Met

Finally, Defendants state that, because PI
not identified a municipal policy, PIa

iffs cannot

iffs have
~eet

the

requireTents of Rule 23(b) (2) or the more stringent predominance
requirement of Rule 23 (b) (3)

See

lar v.

Customs Enforcement Div. of

ion and

't of Homeland Sec., No. 07

Civ. 8225 (KBF) , 2012 vJL '344417, at *9 (S.D.N.Y. Apr. 16, 20:2)
("[F]or the same reasons that
commonali

aintiffs are unable to satisfy the

rement of Rule 23 (a), they are unable to satisfy

the requirement of 23 (b) (2) that the party opposing the class has
act

or re

class, thereby

to act on grounds

ng appropriate final injunct

corresponding declaratory
whole.

H

);

ly applicable to the

relie~

with respect to the class as a

see also Moore v. Paine Webber

(2d Cir. 2002).

relief or

As noted

~nc.,

April 23

evidence supporting the existence of a munici

306 F.3d 12 7, 1252
inion det
I policy.

led the
Because

Defendants' motion for reconsideration has failed to present
31

overlooked law or facts that undermine the April 23 Opinion
regarding this issue, Defendants' arguments concerning Plaintiffs'
failure to meet the requirements of Rule 23 (b) (2) or Rule 23 (b) (3)
are rejected.

Conclusion

Based on the conclusions set forth above,
motion for reconsideration is denied.

It is so ordered.

New York, NY
July

/3 '

2012

ROBERT W. SWEET
U.S.D.J.

32

Defendants'