Perez v. The City of New York et al

Filing 38

OPINION AND ORDER: The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The defendant's Motion for Summary Judgment is denied. The Clerk is directed to close Docket No. 26. re: 26 (Signed by Judge John G. Koeltl on 7/2/2013) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
JUTHER PEREZ,
Plaintiff,

11 Civ. 5399 (JGK)

- against -

OPINION AND ORDER

P.O. ELVIS DURAN,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The defendant, Police Officer Elvis Duran, has moved for
summary judgment pursuant to Federal Rule of Civil Procedure 56
seeking to dismiss the claims alleged against him by the
plaintiff, Juther Perez.

The plaintiff alleges claims for false

arrest, malicious prosecution, and denial of the right to a fair
trial in violation of 42 U.S.C. § 1983.
The circumstances surrounding the plaintiff’s arrest and
prosecution are vigorously disputed by the parties particularly
whether Officer Duran had probable cause to arrest the plaintiff
and whether Officer Duran truthfully reported the circumstances
of the arrest to the prosecutor.

Therefore, the motion for

summary judgment must be denied.

I.
The standard for granting summary judgment is well
established.

“The court shall grant summary judgment if the
1

movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).

“[T]he trial court's task at the summary

judgment motion stage of the litigation is carefully limited to
discerning whether there are any genuine issues of material fact
to be tried, not to deciding them.

Its duty, in short, is

confined at this point to issue-finding; it does not extend to
issue-resolution.”

Gallo v. Prudential Residential Servs. Ltd.

P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

The moving party

bears the initial burden of “informing the district court of the
basis for its motion” and identifying the matter that “it
believes demonstrate[s] the absence of a genuine issue of
material fact.”

Celotex, 477 U.S. at 323.

The substantive law

governing the case will identify the material facts and “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.”

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

242, 248 (1986); see also Chepilko v. Cigna Group Ins., No. 08
Civ. 4033, 2012 WL 2421536, at *1 (S.D.N.Y. June 27, 2012).
In determining whether summary judgment is appropriate, the
Court must resolve all ambiguities and draw all reasonable
inferences against the moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
2

(citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)); see also Gallo, 22 F.3d at 1223.

Summary judgment is

improper if there is any evidence in the record from any source
from which a reasonable inference could be drawn in favor of the
non-moving party.

See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d

29, 37 (2d Cir. 1994); see also Pelayo v. Port Auth., 893 F.
Supp. 2d 632, 634-35 (S.D.N.Y. 2012).

II.
The plaintiff, Juther Perez, was arrested on February 12,
2011 at approximately 2:45pm in front of 340 Alexander Avenue in
the Bronx and charged with criminal sale of a controlled
substance in violation of New York Penal Law § 220.39, a Class B
felony.

(Pl.’s Resp. to Defs.’ Local Rule 56.1 Stmt. (“56.1

Resp.”) ¶ 1; Silverberg Decl., Ex. A.)
On the day of his arrest, the plaintiff was in the vicinity
of 340 Alexander Avenue to visit a friend.

(Fitch Decl., Ex. A

(“Pl. Dep.”) at 38; Def.’s Statement of Undisputed Facts
Pursuant to Local Civil Rule 56.1 (“56.1 Stmt.”) ¶¶ 1, 3; 56.1
Resp. ¶¶ 1, 3.)

The plaintiff parked his car and saw his

father, Juther A. Perez, Sr., walking down the street.

(Pl.

Dep. at 38; Fitch Decl., Ex. B (“Perez Sr. Dep.”) at 8.)

The

parties have very different versions of the events that ensued.

3

A.
The plaintiff’s version of the events is as follows.
plaintiff stopped to speak with his father, Perez Sr.

The

(Pl. Dep.

at 38.)

The plaintiff and his father shook hands.

38-40.)

According to Perez Sr., he gave the plaintiff a high-

five.

(Perez Sr. Dep. at 71.)

(Pl. Dep. at

The plaintiff testified at his

deposition that the handshake with his father could be described
as grabbing hands together by “kind of lock[ing] your fingers in
each other[’s] hands” and “shak[ing] your hands a little bit,”
and the handshake did not last longer than two seconds.

(Pl.

Dep. at 39; see 56.1 Stmt. ¶ 4 (“[the] plaintiff and his father
made hand to hand contact, which lasted approximately two
seconds”).)
The plaintiff testified that when he shook hands with his
father, his father did not pass anything to him, the plaintiff
did not pass anything to his father, and the plaintiff did not
sell anything to his father.

(Pl. Dep. at 104.)

Perez Sr.

testified that the only physical contact he had with the
plaintiff was a high-five and that the plaintiff did not give
him anything during this interaction.

(Silverberg Decl., Ex. C

at 71, 74.)
After he saw his father, the plaintiff went into 340
Alexander Avenue, and police officers stopped Perez Sr. at 143rd
Street.

(Perez Sr. Dep. at 74.)

Perez Sr. testified that he
4

told the officers that he had drugs on him.

(Perez Sr. Dep. at

79; 56.1 Stmt. ¶¶ 11, 12; 56.1 Resp. ¶¶ 11, 12.)
The plaintiff received a phone call from a friend informing
him that his father was being arrested.

(Pl. Dep. at 41, 48.)

The plaintiff then took the elevator downstairs to “ask what
happened, and hopefully get his [father’s] property.”
at 41, 48.)

(Pl. Dep.

Once the plaintiff left the building, two officers

“came and grabbed” him.

(Pl. Dep. at 48.)

The officers

searched the plaintiff and seized his phone, keys, and $444 in
cash.

(Pl. Dep. at 63-64.)

The plaintiff testified that the

defendant, Officer Duran, arrived after other officers had
already placed the plaintiff in handcuffs.
57; 56.1 Resp. ¶ 1.)

(Pl. Dep. at 53, 56-

The plaintiff testified that he recognized

Officer Duran “from around the neighborhood.”

(Pl. Dep. at 53.)

B.
Officer Duran’s version of the events is very different.
Officer Duran submitted a sworn report of the incident in which
he claimed to have observed the plaintiff’s father hand the
plaintiff “a sum of United States currency, and in exchange,
[the plaintiff] handed [his father] a small object,” which
Officer Duran identified, based on his training and experience,
as crack cocaine.

(Fitch Decl., Ex. C.)

At his deposition,

Officer Duran testified that on the day of the plaintiff’s
5

arrest, Officer Duran saw the plaintiff hand a “clear plastic
bag containing [] powder,” to Perez Sr.
(“Duran Dep.”) at 53.)

(Fitch Decl., Ex. G

Officer Duran also testified that he saw

the plaintiff’s father hand the plaintiff cash.
52-53.)

(Duran Dep. at

Officer Cruz, who was also on the scene at the time of

the plaintiff’s arrest, testified that he witnessed an “exchange
of green paper with a plastic bag containing a whi[t]e
substance.”

(Fitch Decl., Ex. I at 25.)

Officer Duran testified that while he was witnessing what
he believed to be a drug transaction between the plaintiff and
Perez Sr., Officer Duran called other officers near the site of
the exchange and alerted them to the criminal activity.
Dep. at 93.)

(Duran

Officer Duran testified that he jumped out of his

vehicle and that Perez Sr. “proceeded to run toward the corner
. . . of 143rd Street and Alexander Avenue.”
54.)

(Duran Dep. at

Officer Duran testified that other officers in a nearby

vehicle saw Perez Sr. running, stopped him, and told Officer
Duran over the radio, “[h]e has crack cocaine on him.”

(Duran

Dep. at 56, 96.)
Officer Duran testified that when the plaintiff saw Officer
Duran the plaintiff ran toward 340 Alexander Avenue and then
“[p]retty much . . . walk[ed] right out to greet” the officers.
(Duran Dep. at 56.)

Officer Duran contends that he arrested the

plaintiff and recovered $444 in cash from the plaintiff although
6

he mistakenly wrote in the arrest report that Officer Torres had
recovered the cash.

(56.1 Stmt. ¶ 1; Duran Dep. at 118.)

Officer Duran forwarded the arrest report and other paperwork he
prepared in connection with the plaintiff’s arrest to the
District Attorney’s Office.

(Silverberg Decl., Ex. P ¶ 7; see

Silverberg Decl., Ex. F.)

C.
It is clear based on the parties’ different versions of the
events surrounding the plaintiff’s arrest that the parties
dispute several key facts including: (i) whether Officer Duran
observed any interaction between the plaintiff and his father at
all; and (ii) whether the plaintiff and Perez Sr. simply shook
hands or gave a high-five, or whether they exchanged money for
drugs.

(56.1 Stmt. ¶¶ 4, 5; 56.1 Resp. ¶¶ 4, 5.)

However, the

parties generally agree on the events that followed the
plaintiff’s arrest.
After his arrest, the plaintiff spent two days in Central
Booking.

(Pl. Dep. at 77.)

On February 14, 2011, the plaintiff

was arraigned in Supreme Court, Bronx County on a criminal
complaint signed by Officer Duran that charged the plaintiff
with the Class B Felony of Criminal Sale of a Controlled
Substance in violation of New York Penal Law § 220.39(1).
(Silverberg Decl., Exs. F & K.)

The court released the
7

plaintiff on his own recognizance and ordered him to return on
March 16, 2011, which, as the court noted, was the date on which
the plaintiff was also required to return on another matter.
(Silverberg Decl., Ex. K at 2.)

The plaintiff complied with the

court’s order, and appeared in court on March 16, 2011 for
proceedings in this matter and in two unrelated matters.

(Fitch

Decl., Ex. D at NYC 11, 16; Silverberg Decl., Ex. B at 85-86;
56.1 Stmt. ¶ 22; 56.1 Resp. ¶ 22.)

The plaintiff was ordered to

appear in court again on May 18, 2011, and, on that date, the
court dismissed the charges in response to the prosecution’s
offer to dismiss them.

(Fitch Decl., Ex. E at NYC 18-19; see

Fitch Decl., Ex. F; 56.1 Stmt. ¶ 23; 56.1 Resp. ¶ 23.)
On August 3, 2011, the plaintiff brought this action
against the City of New York, Officer Duran, and several “John
Doe” police officer defendants.
¶ 24.)

(56.1 Stmt ¶ 24; 56.1 Resp.

The plaintiff has withdrawn his claims against all of

the defendants named in the Complaint except for his claims for
false arrest, malicious prosecution, and denial of the right to
a fair trial in violation of 42 U.S.C. § 1983 against Officer
Duran.

Officer Duran now moves for summary judgment dismissing

those claims.

8

III.
A.
The defendant argues that he is entitled to summary
judgment on the claim for false arrest in violation of 42 U.S.C.
§ 1983 because he had probable cause to arrest the plaintiff for
criminal sale of a controlled substance.

In support of this

argument, the defendant relies on his observations of the
plaintiff’s interaction with Perez Sr. as well as the recovery
of cash from the plaintiff and drugs from Perez Sr.
Section 1983 claims for false arrest are “substantially the
same” as false arrest claims under New York law.
Okst, 101 F.3d 845, 852 (2d Cir. 1996).

Weyant v.

Both claims require a

showing that “(1) the defendant intended to confine [the
plaintiff], (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement[,] and (4)
the confinement was not otherwise privileged.”

See id. at 853

(quoting Broughton v. State, 335 N.E.2d 310, 314 (N.Y. 1975))
(first alteration in original and internal quotation marks
omitted); see also Pelayo, 893 F. Supp. 2d at 639.
Probable cause to arrest “is a complete defense to an
action for false arrest,” under section 1983 and New York law.
Weyant, 101 F.3d at 852 (quoting Bernard v. United States, 25
F.3d 98, 102 (2d Cir. 1994)).

The Court examines “the events

leading up to the arrest, and then decide[s] whether these
9

historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to probable cause.”

Smith v.

City of N.Y., No. 04 Civ. 3286, 2010 WL 3397683, at *6 (S.D.N.Y.
Aug. 27, 2010) (quoting Maryland v. Pringle, 540 U.S. 366, 371
(2003)).

Physical proximity to criminal behavior without more

is insufficient to establish probable cause.

See Flores v. City

of Mount Vernon, 41 F. Supp. 2d 439, 443 (S.D.N.Y. 1999); see
also United States v. Moreno, 897 F.2d 26, 32 (2d Cir. 1990)
(abrogated on other grounds by Ruggiero v. Krzeminski, 928 F.2d
558, 561-62 (2d Cir. 1991)).
The defendant argues that he had probable cause to arrest
the plaintiff based on the following: (i) his alleged
observation of the exchange of money and a small object between
the plaintiff and Perez Sr.; (ii) Perez Sr.’s possession of
crack cocaine; and (iii) the plaintiff’s possession of $444 in
cash.

However, in his deposition, the plaintiff denied that

Officer Duran observed the plaintiff interact with his father at
all, and the plaintiff denied that he exchanged anything with
his father during their interaction.

At this stage of the

proceedings, the Court must resolve all factual discrepancies in
the plaintiff’s favor.

Accordingly, based on the plaintiff’s

version of the events, the only evidence that Officer Duran
could have had was that the plaintiff had shaken his father’s

10

hand and that his father was later found to possess crack
cocaine.
The facts at this stage of the proceedings do not support a
finding of probable cause to arrest.

The defendant relies on

Smith v. City of New York, No. 04 Civ.3286, 2010 WL 3397683
(S.D.N.Y. Aug. 27, 2010), for the proposition that probable
cause exists for the arrest when an officer believes, based on
the officer’s observations and experience, that a drug
transaction has occurred and the suspected buyer is later found
to be in possession of illegal drugs.

However, in Smith, it was

undisputed that the plaintiff and another party had exchanged
money, and the suspected buyer was later found to possess drugs.
Id. at *1, 7.

In this case, the parties dispute whether an

exchange—other than a handshake—occurred at all.
The defendant claims that Hartzog v. Rabideau, No. 05 Civ.
0554, 2010 WL 2010948 (W.D.N.Y. May 18, 2010), stands for the
proposition that an exchange without more can provide probable
cause.

However, in Hartzog the prosecution offered evidence at

trial that “[o]ne officer witnessed . . . a furtive exchange of
something for money.”

Id. at *1.

The defendant cites no case

that suggests that probable cause to arrest a suspected drug
seller exists based on the recovery of drugs from a suspected
buyer without evidence of any exchange between a suspected
seller and a suspected buyer found to possess drugs.
11

Compare

United States v. Roland, No. 11 Cr. 372, 2012 WL 74989, at *5
(S.D.N.Y. Jan. 10, 2012) (finding probable cause on a motion to
suppress when officers observed the defendant “exchange U.S.
currency for ‘small objects from what appeared to be a small
plastic bag’” and the defendant was found to be in possession of
crack cocaine); United States v. Washington, No. 02 Cr. 1574,
2003 WL 21250681, at *1, 3 (S.D.N.Y. May 29, 2003) (finding in
connection with a motion to suppress that there was probable
cause to arrest when officers observed the defendant and another
person exchange an item for money and drugs were recovered from
the defendant); Sam v. Brown, No. 00 Civ. 4170, 2002 WL
31102644, at *1, *4 (E.D.N.Y. Sept. 10, 2002) (denying a claim
for unlawful arrest raised in a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 because there was probable
cause to arrest when officers observed the defendant retrieve
two plastic Ziploc bags after receiving money from another
person); People v. Martin, 931 N.Y.S.2d 7, at *8-10 (App. Div.
2011), aff’d, 973 N.E.2d 179 (N.Y. 2012) (affirming conviction
and finding probable cause to arrest when “the officer saw [the]
defendant’s left hand and the other man's right hand ‘touching
one another’ for between ten and thirty seconds [and] . . . the
officer observed a plastic bag containing a white substance
‘peeking out’ from defendant's closed right fist”).

That the

plaintiff’s father was found to be in possession of crack
12

cocaine after shaking hands with the plaintiff is insufficient
to establish probable cause to arrest.

See Flores, 41 F. Supp.

2d at 443.
Accordingly, there is insufficient evidence at this stage
of the proceedings to establish that the defendant had probable
cause to arrest the plaintiff, and the defendant’s motion for
summary judgment on the claim of false arrest in violation of
section 1983 is denied.

B.
The defendant moves for summary judgment on the plaintiff’s
claim for malicious prosecution in violation of 42 U.S.C.
§ 1983.

The defendant argues that the record does not establish

lack of probable cause, actual malice, or a deprivation of
liberty that amounts to a violation of the plaintiff’s Fourth
Amendment rights, which are elements necessary to a claim for
malicious prosecution.
To establish a claim for malicious prosecution under
section 1983, a plaintiff must establish the elements of a
malicious prosecution claim under New York state law, as well as
a violation of the plaintiff’s rights under the Fourth
Amendment.

Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d

Cir. 2010).

A claim for malicious prosecution under New York

state law requires “(1) the initiation or continuation of a
13

criminal proceeding against the plaintiff; (2) termination of
the proceeding in plaintiff's favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a
motivation for defendant’s actions.”

Manganiello, 612 at 161

(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997))
(internal quotation marks and citation omitted); see Alcantara
v. City of N.Y., 646 F. Supp. 2d 449, 457 (S.D.N.Y. 2009).

A

claim for malicious prosecution under section 1983 requires the
additional element of “(5) a sufficient post-arraignment liberty
restraint to implicate the plaintiff’s Fourth Amendment rights.”
Rohman v. N.Y.C. Transit Auth. (NYCTA), 215 F.3d 208, 215 (2d
Cir. 2000); see Alcantara, 646 F. Supp. 2d at 457.
It is undisputed that the plaintiff has satisfied the first
two elements of his malicious prosecution claim.

The parties

agree that the defendant commenced a criminal proceeding against
the plaintiff and that the criminal proceeding was terminated in
the plaintiff’s favor.

As to the third element of the

plaintiff’s claim for malicious prosecution, there are issues of
fact as to whether there was probable cause to arrest the
plaintiff, and therefore, there are issues of fact as to whether
there was probable cause to commence the criminal proceedings
against the plaintiff.

Accordingly, the issues are (i) whether

the defendant acted with actual malice in initiating the
prosecution of the plaintiff, and (ii) whether the plaintiff
14

suffered a sufficient post-arraignment deprivation of liberty to
implicate his Fourth Amendment rights.

i.
The defendant argues that the plaintiff’s malicious
prosecution claim fails because the evidence does not support
the inference that the defendant acted with actual malice in
initiating the prosecution of the plaintiff.

Malice does not

have to be actual spite or hatred, but means only “that the
defendant must have commenced the criminal proceeding due to a
wrong or improper motive, something other than a desire to see
the ends of justice served.”

Lowth v. Town of Cheektowaga, 82

F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 377
N.E.2d 975, 976 (N.Y. 1978)).

It is well established that “[a]

lack of probable cause generally creates an inference of
malice.”

Boyd v. City of N.Y., 336 F.3d 72, 78 (2d Cir. 2003).

The defendant argues that because he had probable cause to
believe that the plaintiff had committed the felony of criminal
sale of a controlled substance there can be no showing of
malice.

However, there are issues of fact which if resolved in

the plaintiff’s favor, as required at this stage of the
proceedings, indicate that there was no probable cause to
conclude that the plaintiff had committed that offense.
Moreover, construed in the light most favorable to the
15

plaintiff, there would be evidence that the defendant provided
false testimony to the District Attorney’s office, including his
sworn statement that he witnessed the plaintiff and his father
exchange money and a small object that was crack cocaine, and
that the defendant’s statement was the basis for the plaintiff’s
prosecution.

Resolving the factual issues in the light most

favorable to the plaintiff, there would be sufficient evidence
to satisfy the malice prong of the plaintiff’s malicious
prosecution claim.

ii.
The defendant also argues that the plaintiff’s claim for
malicious prosecution fails because the plaintiff did not suffer
a sufficient restraint on his liberty to satisfy the seizure
element of a section 1983 malicious prosecution claim.

The

Second Circuit Court of Appeals has noted that the seizure
element can be satisfied by “any post-arraignment deprivations
of liberty (such as being bound-over for trial).”

Singer v.

Fulton Cnty. Sheriff, 63 F.3d 110, 117 (2d Cir. 1995); see
Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013) (reversing
dismissal of a claim for malicious prosecution on a motion for
summary judgment when the plaintiff had to make three postarrest court appearances in connection with an arrest for
disorderly conduct).
16

In support of its argument that the plaintiff has not
satisfied the seizure element of a malicious prosecution claim,
the defendant relies on cases finding that “a single court
appearance . . . is insufficient to support a Section 1983
malicious prosecution claim.”

See, e.g., Porat v. Lincoln

Towers Cmty. Ass’n, No. 04 Civ. 3199, 2005 WL 646093, at *1, 3
(S.D.N.Y. Mar. 21, 2005) aff’d, 464 F.3d 274 (2d Cir. 2006)
(finding seizure element not satisfied when the plaintiff had to
make one court appearance in connection with “an appearance
ticket for trespassing”).

In Murphy v. Lynn, the Court of

Appeals determined that a defendant who faced travel
restrictions and was compelled to appear in court multiple times
in connection with charges of disorderly conduct, resisting
arrest, and two counts of felony assault satisfied the seizure
element.

118 F.3d 938, 942, 946 (2d Cir. 1997).

Some courts in

this circuit have read Murphy as finding the seizure element
satisfied by either restrictions on travel or a compulsion to
attend court proceedings.

See, e.g., Genia v. N.Y. State

Troopers, No. 03 Civ. 0870, 2007 WL 869594, at *15 (E.D.N.Y.
Mar. 20, 2007) (“[D]eclin[ing] to read Murphy to require an
affirmative order restricting travel,” and finding the seizure
element satisfied by five court appearances and the general
requirement under New York law that a defendant released on the
defendant’s own recognizance ordinarily remain in the State of
17

New York); Sassower v. White Plains, 992 F. Supp. 652, 656
(S.D.N.Y. 1998) (“Defendants misconstrue the Murphy decision as
requiring both an infringement on a plaintiff's right to travel
and required court appearances . . . .

[T]he Murphy court never

suggests that it required a combination of the two conditions to
constitute a ‘seizure.’

Instead, the Second Circuit made clear

that each condition, independent of the other, constitutes a
‘seizure.’”).

Other courts in this Circuit have found that

travel restrictions and court appearances are both necessary to
satisfy the seizure element.

See Dellutri v. Vill. of Elmsford,

895 F. Supp. 2d 555, 570-71 (S.D.N.Y. 2012) (collecting cases);
see also Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010).
It is not necessary to determine whether Murphy requires
both travel restrictions and court appearances to satisfy the
seizure element because it is uncontested that the plaintiff was
compelled to appear in court in connection with the criminal
proceedings underlying his felony prosecution, and the evidence
supports an inference that travel restrictions were imposed when
the plaintiff was released on his own recognizance.

New York

law provides that “[u]pon ordering that a principal be released
on his own recognizance, the court must direct him to appear in
the criminal action or proceeding involved whenever his
attendance may be required and to render himself at all times

18

amenable to the orders and processes of the court.”

N.Y. Crim.

Proc. Law § 510.40 (McKinney).
It is undisputed that after his arraignment the plaintiff
was ordered released on his own recognizance.

The plaintiff

represents that travel restrictions necessarily accompany
release on one’s own recognizance pursuant to New York Criminal
Procedure Law § 510.40.

Accordingly, it appears that at this

stage of the proceedings the plaintiff’s release on his own
recognizance necessarily required the plaintiff to comply with
travel restrictions.

See Rohman, 215 F.3d at 216 (finding that

under section 510.40 of the New York Criminal Procedure Law a
defendant released on his own recognizance “must ordinarily
remain in the state.”).
The defendant also argues that the plaintiff was only
required to appear in court on a single occasion—when the charge
against him was dismissed on May 18, 2011—and that this single
court appearance is an insufficient restraint on the defendant’s
liberty to satisfy the elements of a malicious prosecution
claim.

However, the plaintiff was also required to appear in

court on March 16, 2011.

The defendant argues that this Court

should not rely on the appearance the plaintiff made on March
16, 2011 because he was required to appear in court that day not
only on the charge of selling a controlled substance to his
father, but on other charges as well.
19

However, as the defendant

admitted at argument on this motion, there is no case that
supports the proposition that simply because the plaintiff was
also required to appear in court on an unrelated matter the
appearance that was required for the felony charge relevant to
this case is not a seizure within the meaning of the Fourth
Amendment.

(See Tr. of Oral Arg. at 17.)

If the plaintiff had

failed to appear on March 16, 2011, he would have violated the
court’s order to appear in connection with the felony charge of
selling narcotics to his father.
The defendant also relies on Burg v. Gosselin, 591 F.3d 95,
98 (2d Cir. 2010), to support the proposition that the postarraignment restraints on the plaintiff in this case were
insufficient to constitute a seizure for the purposes of the
Fourth Amendment.
argument.

Burg does not support the defendant’s

In Burg, the Court of Appeals held that “a pre-

arraignment, non-felony summons requiring no more than a later
court appearance does not constitute a Fourth Amendment
seizure.”

Id. at 101.

The Court of Appeals distinguished the

burdens imposed on a defendant facing serious criminal charges,
such as the felony assault charges that the plaintiff in Murphy
faced, from those imposed on a defendant appearing on a nonfelony summons.

Id. at 98.

Moreover, as the Court of Appeals

subsequently explained in Swartz, the plaintiff in Burg only

20

sought damages for the summons, and there was no claim of
malicious prosecution.

Swartz, 704 F.3d at 112.

The defendant also relies on Faruki v. City of N.Y., No.
10 Civ. 9614, 2012 WL 1085533 (S.D.N.Y. Mar. 30, 2012), aff’d
2013 WL 452536 (2d Cir. Feb. 7, 2013).

However, Faruki, was

also a case that involved only two court appearances in response
to a summons in a non-felony proceeding for trespass.
*1-2.

Id. at

The Court of Appeals noted, citing Burg, that a “pre-

arraignment, non-felony summons requiring no more than a later
court appearance,” did not constitute a violation of the Fourth
Amendment.

Id. at *1.

In this case, the plaintiff had been arraigned on a felony
complaint and was required to appear in court on two subsequent
occasions.

The plaintiff was also required to comply with

travel restrictions incident to his release on his own
recognizance.

The defendant points to no comparable case where

similar conditions were insufficient restraints on a person’s
liberty for purposes of the Fourth Amendment.
Accordingly, the defendant’s motion for summary judgment on
the malicious prosecution claim is denied.

C.
The defendant has moved for summary judgment on the
plaintiff’s claim for denial of the right to a fair trial.
21

Initially, the defendant argues that the plaintiff cannot
simultaneously maintain a claim for a denial of the right to a
fair trial and a claim for malicious prosecution because the
claims are duplicative.

However, the Court of Appeals has

permitted those claims to be asserted simultaneously.

See

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129-31 (2d Cir.
1997); see also Brandon v. City of N.Y., 705 F. Supp. 2d 261,
275-76 (S.D.N.Y. 2010).1
The defendant also argues that the plaintiff has failed to
satisfy the requirements for his claim of denial of the right to
a fair trial.

A person suffers the denial of the right to a

fair trial if: “(1) [an] investigating official (2) fabricate[d]
evidence (3) that is likely to influence a jury’s decision, (4)
forward[ed] that information to prosecutors, and (5) the
plaintiff suffer[ed] a deprivation of liberty as a result.”
Jovanovic v. City of N.Y., 486 F. App’x 149, 152 (2d Cir. 2012)
(summary order).

The Court of Appeals has explained that

“[w]hen a police officer creates false information likely to
influence a jury’s decision and forwards that information to
prosecutors, he violates the accused’s constitutional right to a

1

In Jovanovic v. City of N.Y., 486 F. App’x 149, 152 (2d Cir.
2012) (summary order), the Court of Appeals affirmed the grant
of summary judgment for the defendants on a claim of malicious
prosecution and a claim for denial of the right to a fair trial,
but did not suggest that the claims should be dismissed as
duplicative.
22

fair trial, and the harm occasioned by such an unconscionable
action is redressable in an action for damages under 42 U.S.C.
§ 1983.”

Ricciuti, 124 F.3d at 130.

There are genuine issues of material fact as to whether the
defendant, who is an investigating officer, provided to the
prosecution false information that served as the basis for the
plaintiff’s prosecution.

These issues cannot be resolved on a

motion for summary judgment.

See, e.g., Brandon, 705 F. Supp.

2d at 276; Douglas v. City of N.Y., 595 F. Supp. 2d 333, 347
(S.D.N.Y. 2009) (“[A] reasonable jury could find defendants
. . . forwarded false information to the Bronx district
attorney, thereby violating plaintiff’s constitutional right to
a fair trial.”); Stewart v. City of N.Y., No. 06 Civ. 15490,
2008 WL 1699797, at *10 (S.D.N.Y. Apr. 9, 2008) (“[T]here is, at
a minimum, a question of fact as to whether [the officer]
falsely told an assistant district attorney and the grand jury
that [the plaintiff] had acted as a lookout on the day of the
drug sale.”); see also Schiller v. City of N.Y., No. 04 Civ.
7922, 2008 WL 200021, at *9-10 (S.D.N.Y. Jan. 23, 2008).
The defendant argues that the evidence in the record is
insufficient to support the inference that any false information
provided to the prosecution by the defendant would be likely to
influence a jury.

However, there is evidence in the record to

support the plaintiff’s allegations that Officer Duran included
23

false information in his police report, which he provided to the
District Attorney.

Construing the evidence in the light most

favorable to the plaintiff for purposes of this motion, the
evidence indicates that the defendant could not have observed
the plaintiff exchange crack cocaine for money with his father
because no such exchange occurred, and therefore, the defendant
must have provided false information to the prosecutor when the
defendant provided his arrest report and sworn complaint.
Accordingly, a question of fact remains regarding whether
Officer Duran provided false information to the District
Attorney’s Office that caused the plaintiff’s deprivation of
liberty.
The defendant also argues that the plaintiff did not suffer
a sufficient deprivation of liberty to maintain his claim for a
denial of the right to a fair trial.

The defendant offers the

same arguments he made in connection with the malicious
prosecution claim and the arguments fail for the same reasons
discussed above.
Therefore, the defendant’s motion for summary judgment on
the plaintiff’s claim for a denial to the right to a fair trial
is denied.

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IV.
The defendant argues that he is entitled to qualified
immunity.

Qualified immunity shields government officials from

liability for civil damages “insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”
Fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

If a right is clearly

established, qualified immunity will nonetheless function
effectively as a shield from liability when “officers of
reasonable competence could disagree on whether the conduct at
issue was legal.”

Munoz v. City of N.Y., No. 04 Civ. 1105, 2008

WL 464236, at *6 (S.D.N.Y. Feb. 20, 2008); see Malley v. Briggs,
475 U.S. 335, 341 (1986); Lennon v. Miller, 66 F.3d 416, 420-21
(2d Cir. 1995); Golino v. City of New Haven, 950 F.2d 864, 870
(2d Cir. 1991); see also Pelayo, 893 F. Supp. 2d at 641.
There is no question that the rights to be free from false
arrest and malicious prosecution were clearly established at the
time of the incident.
Cir. 1995).

Lennon v. Miller, 66 F.3d 416, 423 (2d

The right to a fair trial was also clearly

established at the time of the incident.
at 130.

See Ricciuti, 124 F.3d

The defendant argues that these rights were not clearly

established at the time of the incident because the factors that
provide probable cause to arrest were not clearly established at
the time of the plaintiff’s arrest.
25

However, to find a right

clearly established for purposes of qualified immunity “do[es]
not require a case directly on point, but existing precedent
must have placed the . . . constitutional question beyond
debate.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).

As

discussed in connection with those claims, Second Circuit
precedent has placed the right to be free from false arrest and
malicious prosecution and the right to a fair trial “beyond
debate.”

See id.

If a right is clearly established, an officer will still be
entitled to qualified immunity if the officer’s “actions were
not objectively unreasonable at the time they were taken.”

Lee

v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997); see Pelayo, 893 F.
Supp. 2d at 641.

The defendant argues that, on this record, it

was not objectively unreasonable for Officer Duran to believe he
had probable cause to arrest the plaintiff.

If reasonable

officers could disagree as to whether probable cause existed for
the plaintiff’s arrest, the defendant is entitled to qualified
immunity.

Lennon, 66 F.3d at 423-24.

At this stage of the proceedings the Court is required to
draw all reasonable inferences in favor of the plaintiff.

In

the light most favorable to the plaintiff, the evidence suggests
that the defendant and other officers observed only a handshake
and high-five between the plaintiff and his father and that the
plaintiff’s father was later found to possess crack cocaine.
26

The defendant’s qualified immunity arguments rely on the
proposition that the defendant witnessed at least an exchange of
some object for money, but that proposition is disputed.

Based

on the testimony of the plaintiff and his father, it would have
been impossible for the defendant to have observed what he swore
he did because it never happened.

The defendant essentially

asks the Court to accept his testimony about what he saw, which
cannot be done on a motion for summary judgment.
It is objectively unreasonable for an officer to believe
that there was probable cause to arrest an alleged drug seller
on the basis of a handshake and later recovery of drugs from an
alleged drug buyer.

The defendant has offered no case that

suggests that similar circumstances would provide probable cause
to arrest.

This is not a case where the defendant claims he had

particularized reasonable suspicion to stop a suspect to inquire
about the suspicious circumstances.

See Curry v. City of

Syracuse, 316 F.3d 324, 335-36 (2d Cir. 2003).

Rather, the

defendant claims that he had qualified immunity to arrest the
plaintiff based on what amounts to simply suspicious
circumstances.
In this case, accepting the plaintiff’s testimony, the
defendant arrested the plaintiff based solely on a suspicious
handshake with his father who was subsequently found to have
drugs.

Although a question of fact may change the calculation
27

with regard to whether the defendant had arguable probable cause
to arrest, at this stage of the proceedings, accepting the
plaintiff’s version of events, the Court cannot conclude that
the defendant had arguable probable cause to arrest such that he
would be entitled to qualified immunity.
Accordingly, the defendant’s motion for summary judgment on
the basis of qualified immunity is denied.

CONCLUSION
The Court has considered all of the arguments raised by the
parties.

To the extent not specifically addressed, the

arguments are either moot or without merit.
Motion for Summary Judgment is denied.

The defendant’s

The Clerk is directed to

close Docket No. 26.
SO ORDERED.
Dated:

New York, New York
July 2, 2013

____________/s/_______________
John G. Koeltl
United States District Judge

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