Soomro v. The City of New York et al

Filing 116

OPINION & ORDER.....The defendants February 3, 2017 motion for summary judgment is granted. The Clerk of Court is directed to enter judgment for the defendants. (Signed by Judge Denise L. Cote on 5/10/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
ASHIQUE SOOMRO,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, TIMOTHY KRAUS and :
JAMES LAMUR,
:
:
Defendants.
:
:
----------------------------------------X

13cv0187 (DLC)
OPINION & ORDER

APPEARANCES:
For the plaintiff:
Michael Lumer
Lumer & Neville
225 Broadway, Suite 2700
New York, New York 10007
For the defendants:
Lucienne Pierre
New York City Law Department
100 Church Street
New York, New York 10007
DENISE COTE, District Judge:
Defendants Timothy Kraus (“Kraus”) and James Lamur
(“Lamur”) move for summary judgment with respect to the
plaintiff’s § 1983 and state law claims for malicious
prosecution and denial of a fair trial.

For the following

reasons, the defendants’ motion is granted.

BACKGROUND
The facts and procedural history of this litigation are set
out in a March 30, 2016 Opinion of the Honorable Laura Taylor
Swain, with which familiarity is assumed.

Soomro v. City of New

York, 174 F. Supp. 3d 806 (S.D.N.Y. 2016) (“2016 Opinion”).

The

following facts are undisputed unless otherwise noted.
Plaintiff Ashique Soomro (“Soomro”) was a yellow taxi cab
driver working in the City of New York.

The defendants Lamur

and Kraus are New York Police Department (“NYPD”) police
officers.

On October 10, 2011, they were assigned to the city-

wide Traffic Task Force (“TTF”) and working in the vicinity of
the intersection of 57th Street and Fifth Avenue in New York
County.
At or about 11:40 a.m., Soomro drove west on 57th Street
and arrived at the intersection of 57th Street and Fifth Avenue.
He had a passenger in the backseat of his cab.

As Soomro

finished driving through the intersection, he stopped to
discharge his passenger.

Kraus was standing 50 to 60 feet

further west along 57th Street, between Fifth and Sixth Avenues,
and waved to Soomro, indicating that Soomro should keep moving
and not stop his taxi in that location.

Soomro understood that

Kraus wanted him to move his vehicle.
Soomro drove about eight feet past Kraus towards Sixth
Avenue before he stopped his vehicle.
2

The passenger threw down

a ten dollar bill, opened the door and exited the passenger side
of the taxi.

Soomro discharged his passenger more than a foot

away from the curb, in an active traffic lane.

Kraus approached

Soomro’s vehicle from the passenger side of the vehicle just as
the passenger was exiting and banged on the roof of Soomro’s
vehicle.

As Soomro then drove away, Kraus’ left arm was caught

inside the vehicle.1

As confirmed by two surveillance camera

videos, the taxi dragged Kraus approximately 80-100 feet down
the street.

Kraus remained on his feet as he was pulled along

by the taxi, before he tumbled to the road.

He was treated at

Bellevue Hospital.
The parties disagree as to whether Soomro was aware that
Kraus was caught in and being dragged by his taxi.

Soomro

continued driving westbound on 57th Street after Kraus fell, and
did not stop until he reached the red light at 57th Street and
6th Avenue.
Lamur was stationed roughly across the street from Kraus.
Lamur observed Kraus approach Soomro and motion for Soomro to
keep going.

As Lamur saw Kraus being pulled along by the taxi,

he ran after the taxi.

Lamur caught up with Soomro at the

intersection of 57th Street and Sixth Avenue and arrested him.

Although it is undisputed that Kraus’ left arm, at least up to
the elbow, was stuck inside Soomro’s taxi, the accounts differ
as to whether Kraus was stuck in the front or the rear passenger
window.

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3

Lamur prepared the arrest paperwork, spoke with prosecutors
at the New York County District Attorney’s Office (“DA”), and
signed a criminal complaint on October 10 at 11:05 p.m.

The

criminal complaint charges Soomro with assault in the second
degree, pursuant to New York Penal Law (“NYPL”) § 120.05(3) and
includes the following statement:
Deponent [Lamur] states that deponent is informed by
Police Officer Timothy Kraus, Shield 20901 of
Manhattan Traffic Task Force, that when informant told
the [Plaintiff] to move his taxi, the defendant (i)
drove off, (ii) half of informant’s body was still in
said taxi as the defendant drove off, (iii) informant
was hanging out of the taxi and was unable to get out
of the taxi as the defendant drove off, (iv) informant
fell out of the window and rolled on the ground
causing informant to [suffer pain and injuries].
(Emphasis supplied.)

Lamur also told the DA that Kraus could

not put his feet down because the taxi was traveling too fast.
Kraus is not sure whether he told Lamur that “half his body
was inside” the taxi, and admits that “half his body” was not
caught in the cab.

The videos of the incident confirm that no

more than Kraus’ arm was caught in the taxi and that Kraus’ head
was not inside the taxi.
The DA never presented the case to a grand jury and Soomro
was never indicted.

Soomro was arraigned on the complaint on

October 11, and kept in custody for a period of days until he
posted bail.

Soomro appeared in court on several occasions

during the course of his prosecution.

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The charges against

Soomro were dismissed on November 29, 2012, on speedy trial
grounds.2
On January 8, 2013, Soomro filed the instant action against
the City of New York, Kraus and Lamur pursuant to 42 U.S.C. §
1983, asserting false arrest, malicious prosecution, denial of a
fair trial and related state law claims.

Judge Swain’s 2016

Opinion granted summary judgment in favor of the defendants on
Soomro’s federal and state false arrest claims.

The 2016

Opinion held, inter alia, that Lamur’s undisputed observations
“support a reasonable officer in the belief that the driver
dragged Kraus with the intention of interfering with Kraus’
lawful duties.”

The Opinion permitted his claims for malicious

prosecution and denial of a fair trial to proceed.3
The case was reassigned to this Court on October 5, and a
conference was held on November 22.

At the conference, the

Court permitted renewed summary judgment practice to address the
remaining claims.

It is undisputed that NYPL § 120.05(3) does

not require proof of the defendant’s intent to injure the

While the criminal charges against Soomro were pending, Kraus
and his wife filed a civil lawsuit for negligence and loss of
consortium against Soomro. The suit was later settled for
$94,000.
2

Soomro has withdrawn his claims asserted against the City of
New York pursuant to Monell v. New York City Dep’t of Social
Servs., 436 U.S. 658 (1978).
3

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officer, but only proof of an intent to prevent an officer from
performing a lawful duty.
The defendants filed a renewed motion for summary judgment
on the malicious prosecution and fair trial claims on February
3, 2017.

The parties principally dispute the significance to

those claims of Lamur’s exaggerated description to the DA of how
much of Kraus’s body was caught in the cab.

The motion became

fully submitted on April 14.
DISCUSSION
Summary judgment may not be granted unless all of the
submissions taken together “show[] 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).

“Summary

judgment is appropriate when the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cnty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

demonstrating the absence of a material factual question, and in
making this determination, the court must view all facts in the
light most favorable to the non-moving party.

See Eastman Kodak

Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992);
Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015).
“[W]here the evidentiary matter in support of the motion does
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not establish the absence of a genuine issue, summary judgment
must be denied even if no opposing evidentiary matter is
presented.”

Sec. Ins. Co. of Hartford v. Old Dominion Freight

Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) (citation omitted)
(emphasis omitted).
Once the moving party has asserted facts showing that the
non-movant’s claims or affirmative defenses cannot be sustained,
“the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading; rather his response, by
affidavits or otherwise as provided in the Rule, must set forth
specific facts demonstrating that there is a genuine issue for
trial.”

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts will properly preclude the
entry of summary judgment.
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

“An issue of fact is genuine and material

if the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party.”

Cross Commerce Media, Inc. v.

Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016).
I. Malicious Prosecution
To prevail on a claim for malicious prosecution under both
§ 1983 and New York law, a plaintiff must demonstrate “(i) the
commencement or continuation of a criminal proceeding against
her; (ii) the termination of the proceeding in her favor; (iii)
that there was no probable cause for the proceeding; and (iv)
that the proceeding was instituted with malice.”

Mitchell v.

City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (citation
omitted).

“[T]o be actionable under section 1983 there must be

a post-arraignment seizure, the claim being grounded ultimately
on the Fourth Amendment’s prohibition of unreasonable seizures.”
Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013).
The existence of probable cause is a complete defense to a
claim of malicious prosecution.

Stansbury v. Wertman, 721 F.3d

84, 94–95 (2d Cir. 2013) (citation omitted).

The probable cause

standard in the malicious prosecution context, however, is
“slightly higher” than the probable cause standard in false
arrest cases.

Id. at 95.

Probable cause in the context of a

malicious prosecution claim has been described as “such facts
and circumstances as would lead a reasonably prudent person to
believe the plaintiff guilty.”

Id. (citation omitted).

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Once

probable cause to arrest has been established, claims of
malicious prosecution survive only if, between the time of the
arrest and the initiation of the prosecution, “the groundless
nature of the charges” is made apparent by the discovery of some
intervening fact.

Lowth v. Town of Cheektowaga, 82 F.3d 563,

571 (2d Cir. 1996) (New York law).
Soomro was charged with assault in the second degree under
NYPL § 120.05(3).

A person is guilty of second degree assault

when, “[w]ith intent to prevent . . . a traffic enforcement
officer . . . from performing a lawful duty . . . he or she
causes physical injury to such . . . traffic enforcement officer
. . . .”

The elements of a § 120.05(3)

N.Y.P.L. § 120.05(3).

claim are: (1) the defendant acted with intent to prevent the
officer from performing a lawful duty; and in doing so (2) the
defendant caused physical injury to the officer.

“Under Penal

Law § 120.05(3), the only intent required to be proved is that
the defendant acted with the intent to prevent a police officer
from performing a lawful duty; proof of intent to cause physical
injury is not required.”
(4th Dep’t 1985).
(2011).

People v. Johnson, 495 N.Y.S.2d 847

See also People v. Bueno, 18 N.Y.3d 160, 169

NYPL § 10.00(9) defines “physical injury” as an

“impairment of physical condition or substantial pain.”
§ 10.00(9).

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N.Y.P.L

Probable cause existed to charge Soomro in a complaint, and
continue proceedings against him, for a violation of NYPL §
120.05(3).

For the reasons explained in the 2016 Opinion, there

was probable cause to believe that Soomro acted with intent to
interfere with Kraus’s lawful duties.

It is also undisputed

that as a result of Soomro’s actions, Kraus approached Soomro’s
cab, got his arm trapped in it, was dragged approximately 80-100
feet and injured.
Soomro argues that the evidence that Lamur “embellished”
his description of the incident and falsely asserted that “half
of [Kraus’s] body” was still in the taxi as Soomro drove off
prevents summary judgment and requires a trial.

Because the

defendants do not need to show that Soomro was aware that his
cab was dragging Kraus along the street, no trial is necessary
to resolve how much of Kraus’s body was in the cab, whether
Soomro realized he was dragging Kraus along the street, whether
Lamur intended to exaggerate his description of the position of
Kraus’s body, or his motive in doing so.
Soomro argues that the defendants exaggerated how much of
Kraus’s body was trapped in the cab in order to persuade the DA
that Soomro must have known that Kraus was trapped inside his
cab and must have intended to injure him.

Because the

prosecution is not required to show Soomro’s knowledge and

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intent to injure Kraus, this exaggeration is irrelevant to a
determination of probable cause.
II.

Denial of a Fair Trial

“When a police officer creates false information likely to
influence a jury’s decision and forwards that information to
prosecutors, he violates the accused’s constitutional right to a
fair trial, and the harm occasioned by such an unconscionable
action is redressable in an action for damages under 42 U.S.C. §
1983.”

Ricciuti v. New York City Transit Auth., 124 F.3d 123,

130 (2d Cir. 1997).

Fair trial claims based on fabrication of

evidence is restricted to those cases “in which an (1)
investigating official (2) fabricates information (3) that is
likely to influence a jury’s verdict, (4) forwards that
information to prosecutors, and (5) the plaintiff suffers a
deprivation of life, liberty, or property as a result.”

Garnett

v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016).
In order to succeed on a fair trial claim, an arrestee “must
prove by a preponderance of the evidence that the officer
created false information, the officer forwarded the false
information to prosecutors, and the false information was likely
to influence a jury’s decision.”

Id. at 280.

A plaintiff may

bring a fair trial claim even if the plaintiff’s criminal case
is dismissed before trial.

Ricciuti, 124 F.3d at 127, 130.

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The

existence of probable cause to arrest is not a defense to a fair
trial right claim.

Garnett, 838 F.3d at 277-78.

The defendants are also entitled to summary judgment on the
fair trial claim.4

Soomro’s fair trial claim is premised on his

assertion that the defendants exaggerated, or even lied, about
the degree to which Kraus’s body was inside the cab in order to
show Soomro’s malicious intent and thereby convince the DA to
prosecute Soomro.

Since the prosecution had no burden to show

at trial that Soomro intended to injure Kraus, however, the
exaggeration could not influence the jury’s verdict.
At trial, the jury would have been advised of the elements
of a § 120.05(3) violation and admonished against returning a
judgment based on sympathy or prejudice.

Since there is no

dispute that the DA had sufficient evidence to charge and
convict Soomro without any showing either that more than Kraus’s
arm was caught in the cab or that Soomro intended to injure
Kraus, Lamur’s exaggeration, or even lie, about how much of
Kraus’s body was in the cab was irrelevant.

While Soomro

contends that the exaggeration would have been “material” to a
jury, he does not explain why.

It is unnecessary to address whether a parallel state law
claim exists or whether the plaintiff preserved his right to
bring such a claim by filing a timely § 50-e claim.
4

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Finally, Soomro argues that Lamur’s exaggeration may have
affected the prosecution’s charging decision.

That is not the

standard of materiality and causation set out in Garnett, 838
F.3d at 279.

As explained by the Second Circuit in Garnett,

significant policy reasons restrict a fair trial claim to
instances in which the false information “was likely to
influence a jury’s decision.”

Id. at 280.

CONCLUSION
The defendants’ February 3, 2017 motion for summary
judgment is granted.

The Clerk of Court is directed to enter

judgment for the defendants.
Dated:

New York, New York
May 10, 2017
__________________________________
DENISE COTE
United States District Judge

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