Bennett v. City Of New York, et al.

Filing 53

MEMORANDUM OPINION AND ORDER re: 35 MOTION for Summary Judgment . filed by Joseph Harnett, Henry Vidal. 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. For the reasons explained above, the defendants' motion for summary judgment is granted. The Clerk is directed to enter judgment dismissing the complaint and closing this case. SO ORDERED. (Signed by Judge John G. Koeltl on 7/24/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
LAZARUS BENNETT,
Plaintiff,
- against -

15 Civ. 5116 (JGK)
MEMORANDUM OPINION AND
ORDER

P.O. HENRY VIDAL, TAX ID No. 931378,
Individually and in his Official
Capacity, SERGEANT JOSEPH HARNETT,
TAX ID No. 938641, Individually and
in his Official Capacity,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Lazarus Bennett, brought this action
pursuant to 42 U.S.C. §§ 1983 and 1988 against Police Officer
Henry Vidal (“Officer Vidal”) alleging false arrest, malicious
prosecution, and denial of the right to a fair trial. 1 Officer
Vidal moves for summary judgment pursuant to Federal Rule of
Civil Procedure 56 dismissing all of the claims against him.

1

The plaintiff also brought a failure to intervene claim against
another officer, Sergeant Joseph Harnett. In his opposition to
the motion for summary judgment, the plaintiff “agree[d] to
dismiss all claims against Sgt. Harnett.” (Pl.’s Mem. Opp’n at
21.) Therefore, the claim against Sgt. Harnett is dismissed.
Additionally, the plaintiff abandoned his malicious abuse of
process claim at oral argument of the current motion. Therefore,
the claim against Officer Vidal for malicious abuse of process
is dismissed. While the Second Amended Complaint alleges a claim
for the denial of federal civil rights, the only remaining
deprivations are the specific claims of false arrest, malicious
prosecution, and the denial of the right to a fair trial.

I.
The following facts are undisputed unless otherwise
indicated. On September 23, 2014, around 1:00 p.m., Officer
Vidal was at a fixed post at 113th Street and Second Avenue in
Manhattan when he observed four or five men chasing another
individual. (56.1 Stmts. ¶ 1.) 2 One member of the group was
waving a kitchen knife at the victim, while the others were
yelling, “Get him! Get him!” (56.1 Stmts. ¶¶ 2, 4.)
Officer Vidal began to chase the group, and they ran
through a housing project toward 3rd Avenue. (56.1 Stmts. ¶¶ 56.) One of the suspects then broke off and ran to the right
while the rest continued straight toward 3rd Avenue. (56.1
Stmts. ¶ 7.) Officer Vidal testified that he observed the
plaintiff to be the individual who ran to the right and that he
observed him run into a building near the corner of 113th Street
and 3rd Avenue, which was later identified as 2065 3rd Avenue.
(56.1 Stmts. ¶¶ 8-9; Bennett Decl. ¶ 2.) The plaintiff maintains
that he was never a member of the group and could not have
entered the building at 2065 3rd Avenue because he did not have
key access to that particular building. (Pl.’s 56. 1 Stmt. ¶¶ 110; Bennett Decl. ¶¶ 7-8.) Officer Vidal followed the rest of
the group toward 3rd Avenue, where he eventually apprehended

2

Citations to “56.1 Stmts. ¶ ____” reflect facts that are not
disputed.
2

“L.J.,” who was later identified as the knife wielder. (56.1
Stmts. ¶¶ 10, 13-14, 27.)
At some point during the chase, Officer Vidal called for
backup and put out a description over the radio. (56.1 Stmts.
¶ 11.) The description read “looking for 5MBS 1 has knife, all
wrng hoodie---n 4 wrng blu jeans 1 wrng green jeans.” (56.1
Stmts. ¶ 12.) On that day, the plaintiff, a black male, was
wearing a black hoodie and blue sweatpants. (56.1 Stmts. ¶ 17.)
When backup arrived, Officer Vidal turned L.J. over to another
police officer and continued searching for the other suspects.
(56.1 Stmts. ¶ 15.)
The plaintiff testified that he left his home, which was
located at the corner of 3rd Avenue and East 115th Street, at
1:08 p.m., only minutes after Officer Vidal witnessed the group
of men chasing the victim. (56.1 Stmts. ¶¶ 1, 16.) The plaintiff
further stated that after he left his apartment, he cut through
the housing projects located from 112th to 115th Streets on 3rd
Avenue. (56.1 Stmts. ¶18; Pl.’s Dep. 27:13-31:15 and Exs. A and
B.) Officer Vidal maintains that the plaintiff “cut through the
exact building [he] believed he had seen plaintiff run into
earlier,” (Defs.’ 56.1 Stmt. ¶ 19), but the plaintiff disputes
ever entering or leaving that building. (Pl.’s 56.1 Stmt. ¶ 19;
Bennett Decl. ¶¶ 6-10.)

3

After cutting through the projects, the plaintiff stopped
to speak with his aunt, who had come out of her apartment after
hearing the commotion of the chase. (56.1 Stmts. ¶ 29; Serrano
Dep. 13:4-11, 20:2-13, 23:5-7.) Officer Vidal saw the plaintiff
standing nearby and placed him under arrest at 1:29 p.m. (56.1
Stmts. ¶ 24.) According to Officer Vidal, he recognized the
plaintiff to be one of the individuals chasing the victim
earlier, and arrested the plaintiff after seeing him come from
the building at 2065 3rd Avenue. (Defs.’ 56.1 Stmt. ¶¶ 22-24.)
The plaintiff was charged with Attempted Gang Assault and
Criminal Possession of a Weapon. (56.1 Stmts. ¶ 38.) Shortly
after the plaintiff’s arrest, his mother, Shanen Dora James,
went to the police precinct where she inquired about her son.
(56.1 Stmts. ¶ 34.) The plaintiff’s mother did not tell any
police officer that she had been with the plaintiff moments
before Officer Vidal witnessed the knife chase. (56.1 Stmts.
¶ 36.) She eventually notified the plaintiff’s attorney of this
fact at the plaintiff’s arraignment, and the plaintiff’s
attorney then told the assistant district attorney. (56.1 Stmts.
¶ 37.) At his arraignment, the plaintiff’s bail was set at
$5,700, an amount beyond his means, and the plaintiff was
remanded to custody. (Meehan Decl. Ex. D.)
Two days later, the district attorney’s office moved to
dismiss all charges against the plaintiff, and he was released.

4

(Meehan Decl. Ex. E.) Overall, the plaintiff spent approximately
three days in jail.
II.
The standard for granting summary judgment is well
established. “The court shall grant summary judgment if the
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., L.P.,
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).

5

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) (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 McKay v. City of N.Y., 32 F. Supp. 3d 499,
502-03 (S.D.N.Y. 2014).
III.
Officer Vidal moves for summary judgment on the plaintiff’s
false arrest claim based on qualified immunity.
Section 1983 claims for false arrest are “substantially the
same” as false arrest claims under New York law. Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). In New York, false arrest
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.” Id. at 853 (citations omitted); see also Pelayo v.
Port Auth., 893 F. Supp. 2d 632, 639 (S.D.N.Y. 2012).

6

An arrest of a criminal suspect by a law enforcement
officer with probable cause is a “privileged” confinement even
if it is non-consensual. Decker v. Campus, 981 F. Supp. 851, 856
(S.D.N.Y. 1997). Thus, for arrests by law enforcement officers,
“[t]he existence of probable cause to arrest constitutes a
complete defense to an action for false arrest, whether that
action is brought under Section 1983 or state law.” Matthews v.
City of N.Y., 889 F. Supp. 2d 418, 433 (E.D.N.Y. 2012) (citation
and internal quotation marks omitted); see also Weyant, 101 F.3d
at 852; Biswas v. City of N.Y., 973 F. Supp. 2d 504, 515
(S.D.N.Y. 2013).
An officer has probable cause for an arrest when at the
time of the arrest “the facts and circumstances within [his]
knowledge and of which [he] had reasonably trustworthy
information were sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an
offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964) (citation
omitted); see also Garrett v. City of New York, No. 10-cv-2689
(JGK), 2011 WL 4444514, at *4 (S.D.N.Y. Sept. 26, 2011). Once
the fact of a warrantless arrest has been established, the
burden is on the arresting officer to prove probable cause for
the arrest by a preponderance of the evidence. Garrett, 2011 WL
444514, at *4.

7

Even if an officer did not have probable cause for an
arrest, the officer may still be shielded from liability for
false arrest under the doctrine of qualified immunity. Qualified
immunity protects government officials performing discretionary
functions, such as arrests, “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023
(2014); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Malley v.
Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity
defense has evolved, it provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.”).
“Requiring the alleged violation of law to be clearly
established balances the need to hold public officials
accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Wood v. Moss, 134 S.
Ct. 2056, 2067 (2014) (citation and internal quotation marks
omitted). As the Supreme Court has explained, “[t]he relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001) (citation omitted),

8

overruled on other grounds by Pearson v. Callahan, 555 U.S. 223
(2009).
In the case of an arrest, an officer is entitled to
qualified immunity if he had “arguable probable cause” to make
the arrest, which means that “either (a) it was objectively
reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree
on whether the probable cause test was met.” Amore v. Novarro,
624 F.3d 522, 536 (2d Cir. 2010) (citation omitted). Arguable
probable cause “focus[es] attention on the word ‘clearly’
established law” and shields an officer from liability “if
reasonable officers could disagree as to what the law is.” See
Torraco v. Port Auth., 539 F. Supp. 2d 632, 651 (E.D.N.Y. 2008),
aff’d, 615 F.3d 129 (2d Cir. 2010); see also McKay, 32 F. Supp.
3d at 505–06.
The plaintiff argues that there are genuine disputes of
material fact because –- contrary to Officer Vidal’s testimony
-- he was not involved in the knife chase and could not have
entered or exited from the building at 2065 3rd Avenue. But even
after viewing the facts in the light most favorable to the
plaintiff and assuming that the plaintiff was not among the
individuals involved in the knife chase, Officer Vidal still had
arguable probable cause to arrest. The evidence indicates that
Officer Vidal witnessed five black males in hoodies chasing the

9

victim, four of whom were wearing blue pants. And there is no
dispute that on the day in question, the plaintiff, a black
male, was wearing a black hoodie and blue pants. And while the
plaintiff disputes that he entered or exited the building on the
corner of 113th Street and 3rd Avenue, he did testify at his
deposition that he cut through the housing projects located in
the area of 112th to 115th Streets on 3rd Avenue just prior to
his arrest. Accordingly, the plaintiff was in close proximity to
the place where the knife wielder was arrested, appeared within
minutes after the knife chase, and was dressed in nearly
identical clothing and matched the description of the suspects
Officer Vidal witnessed participating in the knife chase. 3 See
Hargroves v. City of N.Y., 411 F. App’x 378, 385 (2d Cir. 2011)
3

The plaintiff’s counsel attempts to liken this case to Perez v.
Duran, 962 F. Supp. 2d 533, 545 (S.D.N.Y. 2013), and in so
doing, quotes Perez as stating that “the defendant arrested the
plaintiff based solely on [his clothing].” (Pl.’s Mem. Opp’n at
11.) This misapprehends Perez, which in actuality states that
“the defendant arrested the plaintiff based solely on a
suspicious handshake with his father who was subsequently found
to have drugs.” 962 F. Supp. 2d at 545. The actual facts in
Perez are readily distinguishable from this case. In this case,
the plaintiff matched the description of the knife-chase
suspects personally observed by Officer Vidal, was wearing
nearly identical clothing, and was apprehended in close
proximity to the incident soon after the arrest of the knifewielding suspect. In Perez, the defendant officer lacked
probable cause to arrest because what the defendant officer
observed was insufficient to establish probable cause to believe
that a drug transaction had occurred. In this case, it is
undisputed that Officer Vidal observed a crime, and the issue is
whether he had arguable probable cause based on all the
circumstances to believe that the plaintiff had participated in
that crime.
10

(summary order) (concluding that officer acted reasonably in
arresting the plaintiffs based on the “totality of the
circumstances,” including factors such as the plaintiffs’ race,
the plaintiffs’ “temporal and geographic proximity to the crime
scene,” and because the plaintiff’s jacket “matched the
description provided by [the victim], even if the description of
[the] jacket was not precisely accurate”).
Accordingly, Officer Vidal had arguable probable cause to
arrest the plaintiff because it was objectively reasonable for
Officer Vidal to believe that probable cause existed, or that
officers of reasonable competence could disagree on whether the
probable cause test was met. See Amore, 624 F.3d at 536; see
also Martinez v. City of N.Y., 340 F. App’x 700, 701 (2d Cir.
2009) (summary order) (“If officers arrest an individual based
on a mistaken identification, that arrest is still
constitutionally valid if the police have probable cause to
arrest the person sought and the arresting officer reasonably
believed that the arrestee was that person.” (citing Hill v.
California, 401 U.S. 797, 802-03 (1971))); Ortiz v. Village of
Monticello, No. 06-cv-2208(ER), 2012 WL 5395255, at *9 (S.D.N.Y.
Nov. 2, 2012) (finding that police had probable cause for
mistaken-identification arrest when arrest was based on
eyewitness description); Seitz v. DeQuarto, 777 F. Supp. 2d 492,
504 (S.D.N.Y. 2011) (similar); Hewitt v. City of N.Y., No. 09-cv-

11

214 (RJD) (MDG), 2012 WL 4503277, at *4 (E.D.N.Y. Sept. 28,
2012), aff’d, 544 F. App’x 24 (2d Cir. 2013) (“Mere
misidentifications do not undermine probable cause; police
officers are entitled to make reasonable mistakes when
identifying suspects.”)
The plaintiff argues in substance that the defendant must
have falsified the arguable probable cause because the plaintiff
was not in the group with the knife wielder; thus the
defendant’s testimony contradicted the testimony of the
plaintiff and his mother. But that argument does not follow, and
it would swallow up the cases that have found arguable probable
cause despite a misidentification. Simply because an officer is
mistaken in identifying the defendant as a person for whom there
is probable cause to arrest does not mean that the officer has
invented the basis for the arrest so long as the officer can
show the probable cause for the arrest. The arrestee’s
demonstration that the identification was mistaken does not
eliminate the showing of probable cause or arguable probable
cause.
The plaintiff’s reliance on Flores v. City of Mount Vernon,
41 F. Supp. 2d 439 (S.D.N.Y. 1999), is misplaced. In Flores, the
plaintiff -- who was never identified by anyone as a potential
suspect in a crime -- was searched and arrested primarily
because a number of patrons of the restaurant at which she

12

bartended were arrested with cocaine on their persons. Id. at
441-42. Here, by contrast, Officer Vidal allegedly mistakenly
believed that he saw the plaintiff among a group of people
chasing and encouraging a knife-wielding assailant to attack the
victim, thereby establishing arguable probable cause that the
plaintiff had committed a crime. See N.Y. Penal Law § 265.01 (“A
person is guilty of criminal possession of a weapon in the
fourth degree when . . . he . . . possesses any . . . dangerous
knife . . . with intent to use the same unlawfully against
another.”); N.Y. Penal Law § 20.00 (“[A]nother person is
criminally liable for [another’s criminal] conduct when, acting
with the mental culpability required . . . he . . . importunes,
or intentionally aids such person to engage in such conduct.”).
The plaintiff maintains that Officer Vidal’s radio
description of four black males wearing blue jeans and hoodies
was too generic to establish probable cause to arrest the
plaintiff, but this ignores the fact that Officer Vidal also
personally observed the knife chase occur. Rather than relying
on a generic radio description to arrest the plaintiff, Officer
Vidal was also relying on his own observation –- albeit
allegedly mistaken -- of seeing the plaintiff among the suspects
involved in the knife chase, seeing the plaintiff run into 2065
3rd Avenue when the knife-chase suspects split up, and then
seeing the plaintiff in close proximity to the knife wielder at

13

about the time that suspect was arrested. Officer Vidal’s
personal observation of the knife chase makes this case easily
distinguishable from the cases relied upon by the plaintiff.
See, e.g., Dancy v. McGinley, 843 F.3d 93, 101, 108-09 (2d Cir.
2016) (concluding that there was no reasonable suspicion to stop
an individual based only on a vague radio description of the
suspect); Jenkins v. City of N.Y., 478 F.3d 76, 91 (2d Cir.
2007) (determining that it was error to find probable cause
based on a general description of a suspect provided several
days before an arrest in an apartment that was not significant
for determining probable cause).
The plaintiff also contends that the subsequent dismissal
of the charges against him “in itself[] refutes probable cause.”
(Pl.’s Mem. Opp’n at 11.) However, “[w]hen determining whether
probable cause exists courts must consider those facts available
to the officer at the time of the arrest and immediately before
it.” Betts v. Shearman, 751 F.3d 78, 83 (2d Cir. 2014) (citation
omitted) (concluding that, even though charges were subsequently
dismissed with prejudice, arguable probable cause existed to
justify an arrest); see also Phillips v. Corbin, 132 F.3d 867,
869 (2d Cir. 1998) (per curiam) (concluding that a “grand jury’s
refusal to indict . . . does not, as a matter of law, establish
that the officers lacked probable cause to arrest”); Nadal v.
City of Yonkers, No. 96-2412, 1996 WL 721536, at *2 (2d Cir.

14

Dec. 16, 1996) (same); Camarano v. City of N.Y., 646 F. Supp.
246, 250 (S.D.N.Y. 1986) (court’s dismissal of a charge is not
relevant to the issue of probable cause and arrest).
The statements by the plaintiff’s mother in support of the
plaintiff’s statement that he was home during the chase do not
undercut arguable probable cause. It is undisputed that the
plaintiff’s mother did not notify Officer Vidal or any other
police officer that the plaintiff was with her in the moments
before the knife chase, because she did not notify anyone of
this fact until the plaintiff’s arraignment. Accordingly, the
fact that the charges against the plaintiff were ultimately
dismissed does not refute the existence of arguable probable
cause. See Betts, 751 F.3d at 83 (“Given the facts available to
the officers, it was objectively reasonable for the officers to
believe that probable cause existed.” (alteration
deleted)(citation omitted)).
In sum, Officer Vidal had arguable probable cause to arrest
the plaintiff and is therefore entitled to qualified immunity on
the plaintiff’s false arrest claim.
IV.
Officer Vidal moves for summary judgment dismissing the
plaintiff’s claim for malicious prosecution based on qualified
immunity.

15

To establish a claim for malicious prosecution under
§ 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, 160–61 (2d Cir.
2010). A claim for malicious prosecution under New York state
law requires “(1) the initiation or continuation of a criminal
proceeding against 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.” Id. at 161 (internal citation and
quotation marks omitted). A claim for malicious prosecution
under § 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. City
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); see also Perez,
962 F. Supp. 2d at 540.
The existence of probable cause is a complete defense to a
claim of malicious prosecution in New York. Manganiello, 612
F.3d at 161–62; Cooper v. City of New Rochelle, 925 F. Supp. 2d
588, 611 (S.D.N.Y. 2013). Indeed, “a malicious prosecution claim
will be defeated by a finding of probable cause to arrest,
unless the plaintiff can demonstrate mitigating facts to vitiate
probable cause which were first uncovered after the arrest.”

16

Carson v. Lewis, 35 F. Supp. 2d 250, 263 (E.D.N.Y. 1999)
(citation omitted); see also Cooper, 925 F. Supp. 2d at 611;
Dukes v. City of New York, 879 F. Supp. 335, 342 (S.D.N.Y.
1995).
Similarly, an officer is entitled to qualified immunity
against a claim of malicious prosecution if the officer had
arguable probable cause to arrest the plaintiff. See Betts, 751
F.3d 78 at 83. “[B]ecause the focus of the qualified immunity
inquiry is on the objective reasonableness of the defendant’s
actions, motivation does not come [into] play” when there is
arguable probable cause. Bonide Prods., Inc. v. Cahill, 223 F.3d
141, 146 (2d Cir. 2000) (per curiam) (citation omitted). Thus,
an officer who is objectively reasonable in believing he has
probable cause to arrest is entitled to qualified immunity on a
claim for malicious prosecution “regardless of [any] allegations
of malicious motivation,” id., as long as the officer does not
learn of facts after the arrest “that would negate his ...
earlier determination of probable cause,” Cooper, 925 F. Supp.
2d at 611; see also McKay, 32 F. Supp. 3d at 511.
As explained above, Officer Vidal had arguable probable
cause to arrest the plaintiff. And there was no evidence
presented to suggest that Officer Vidal subsequently learned of
facts after the arrest that would negate his belief that he had
arguable probable cause, because it was not until the

17

plaintiff’s arraignment that anyone was notified that the
plaintiff was allegedly with his mother at home during the time
of the knife chase.

Officer Vidal is therefore entitled to

qualified immunity against the plaintiff’s claim of malicious
prosecution. See McKay, 32 F. Supp. 3d at 511-12.
V.
Finally, the defendants move for summary judgment on the
plaintiff’s claim for the denial of a right to 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. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d
Cir. 1997); Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir.
2003); Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d
Cir. 2012) (summary order); see also O’Neal v. City of N.Y., 196
F. Supp. 3d 421, 428–29 (S.D.N.Y. 2016), aff’d sub nom. O’Neal
v. Morales, No. 16-2901-CV, 2017 WL 549024 (2d Cir. Feb. 10,
2017) (summary order). The Court of Appeals has held that a
§ 1983 plaintiff may sue an officer for denial of a right to
fair trial based on the fabrication of evidence when the
allegedly fabricated evidence “is the officer’s own account of
his or her observations of alleged criminal activity, which he .

18

. . then conveys to a prosecutor.” Garnett v. Undercover Officer
C0039, 838 F.3d 265, 274 (2d Cir. 2016). Probable cause to
arrest is not a defense to denial of a right to fair trial.
Ricciuti, 124 F.3d at 130.
“In order to succeed on a claim for a denial of the right
to a fair trial against a police officer based on an allegation
that the officer falsified information, 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.” Garnett, 838 F.3d at 279–80.
The plaintiff contends that, rather than being mistaken,
Officer Vidal intentionally lied to the assistant district
attorney regarding his recollection about seeing the plaintiff
participate in the knife chase. As evidence of fabrication, the
plaintiff points only to the differences in the deposition
testimony of Officer Vidal and his account of what he saw and
the deposition testimony of the plaintiff and his mother
regarding the plaintiff’s whereabouts around the time of the
incident.

But a mere difference in testimony between the

defendant, the plaintiff, and the plaintiff’s mother of what
occurred on the day of the arrest is not sufficient evidence to
create a genuine dispute of material fact as to whether Officer
Vidal intentionally falsified information or fabricated

19

evidence.

See Waddlington v. City of N.Y., 971 F. Supp. 2d 286,

297 (E.D.N.Y. 2013) (“Plaintiff’s mere recitation of
inconsistencies in certain officers’ testimonies, without more,
does not establish liability under section 1983 for providing
false information to prosecutors.”); Hewitt, 2012 WL 4503277 at
*6, *11 (granting summary judgment because the “[p]laintiff
points . . . to no evidence of ill will or malice on the part of
the [officer]” and “no arguable motivation to fabricate”); see
also Greene v. City of N.Y., No. 08-cv-243 (AMD) (CLP), 2017 WL
1030707, at *25 (E.D.N.Y. Mar. 15, 2017), appeal filed, No. 171920 (2d Cir. June 16, 2017) (granting summary judgment on a
denial of the right to a fair trial claim because the contention
that officers deliberately falsified evidence was based on
“sheer speculation, and [did] not create a material issue of
fact for trial”).
The plaintiff relies on Ricciuti, 124 F.3d at 126, but that
case is easily distinguishable. Ricciuti involved allegations of
a falsified confession, where the plaintiff denied ever
confessing and the co-plaintiff testified that he was with the
plaintiff through the entire incident and never saw the
plaintiff confess. Id. The confession was also memorialized in
an unsigned memorandum, and when the officer who allegedly
authored the memorandum was questioned at his deposition, he
admitted that “he might have written the memorandum, but could

20

not recall [the plaintiff] making the specific statement
attributed to him.” Id. Another officer co-defendant also
admitted in his deposition that “he would have made a notation
in his notebook had such a statement been made in his presence,
but there was no such notation.” Id. The defendant in Ricciuti
could not have mistakenly imagined the accused’s statement that
was allegedly fabricated. Accordingly, there was significantly
more evidence of falsified information in Ricciuti than here,
where there are simply inconsistencies between Officer Vidal’s
account of his observations and the plaintiff’s and his mother’s
testimony of the plaintiff’s whereabouts.
The plaintiff’s reliance on Garnett, 838 F.3d at 275, is
similarly unpersuasive. Garnett affirmed the denial of a posttrial motion for judgment as a matter of law after a jury found
that a police officer had fabricated an account of a drug sale
purportedly involving the plaintiff. Id. at 270, 273-74, 281.
And there, the plaintiff presented evidence that the defendant
officer had a somewhat unique motive to lie; the plaintiff and
the defendant officer had previous interactions years before the
plaintiff’s arrest, in which the plaintiff assaulted the officer
and held a gun to the officer’s head during the course of that
assault. Garnett v. Undercover Officer C0039, No. 13-cv-7083
(GHW), 2015 WL 1539044, at *2 (S.D.N.Y. Apr. 6, 2015), aff’d,
838 F.3d 265 (2d Cir. 2016). Here, there is no evidence

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suggesting that Officer Vidal had a motive to falsify
information in order to secure an indictment of the plaintiff.
In sum, this is not a case where the plaintiff has
presented evidence indicating that an officer falsified
information or fabricated evidence sufficient to defeat a motion
for summary judgment. Cf., e.g., Robinson v. City of N.Y., No.
15-cv-5850 (LGS), 2017 WL 2414811, at *2 (S.D.N.Y. June 2, 2017)
(denying summary judgment when witness signed two declarations
recanting statement that he had bought drugs from the plaintiff
and testified at his deposition that a police officer promised
to release the witness from custody if the witness stated that
he had purchased drugs from the plaintiff); Harris v. City of
N.Y., 222 F. Supp. 3d 341, 351–52 (S.D.N.Y. 2016) (denying
summary judgment after police officer told a prosecutor that the
plaintiff “possessed” a weapon, even though the plaintiff did
not have it on his person, and was not wearing and denied owning
the jacket in which it was found).
In this case, all that the plaintiff has adduced,
construing the evidence in the plaintiff’s favor, is that the
defendant officer was mistaken in identifying him as a
participant in the knife wielding group. There is no evidence
that the defendant deliberately misidentified the plaintiff and
thereby fabricated a false identification for the prosecutor.

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Accordingly, the defendants’ motion for summary judgment on
the plaintiff’s claim of denial of a right to a fair trial is
granted.
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. For the reasons explained
above, the defendants’ motion for summary judgment is granted.
The Clerk is directed to enter judgment dismissing the complaint
and closing this case.
SO ORDERED.
Dated:

New York, New York
July 24, 2017

_____________/s/______________
John G. Koeltl
United States District Judge

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