Cruz et al v. The City of New York et al

Filing 54

MEMORANDUM OPINION AND ORDER: re: 34 MOTION for Summary Judgment filed by P.O. Milton Valerio, City of New York. For the foregoing reasons, Defendant's motion for summary judgment is granted, and the Complaint is dismissed. This Memorandum Opinion and Order resolves docket entry no. 34. The Clerk of Court is respectfully requested to enter judgment accordingly and close this case. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/01/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
BLANCA CRUZ,
Plaintiff,
-v-

No. 15 CV 7731-LTS-AJP

THE CITY OF NEW YORK, et al.,
Defendants.
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MEMORANDUM OPINION AND ORDER
Plaintiff Blanca Cruz brings this action pursuant to 42 U.S.C. § 1983, asserting a
false arrest claim against New York Police Department (“NYPD”) Detective Milton Valerio
(“Valerio”).1 Valerio now moves, pursuant to Federal Rule of Civil Procedure 56, for summary
judgment dismissing Cruz’s claim. The Court has jurisdiction of this action pursuant to 28
U.S.C. § 1331. The Court has carefully considered the parties’ submissions in connection with
the instant motion practice and, for the following reasons, Valerio’s motion for summary
judgment is granted and the Complaint is dismissed.

BACKGROUND
Cruz was the tenant of record of 70 East 115th Street (the “Building”), Apartment
9A (the “Apartment”) in April 2015. (Docket entry no. 35, Def.’s Stmt. of Undisputed Facts

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Plaintiff initially brought this action against the City of New York as well, but has
withdrawn that claim, leaving Valerio as the only named Defendant. (See docket entry no. 36, at
p. 1 n.1.)
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(“Def. 56.1 Stmt.”), ¶ 6.2) On April 15, 2015, members of the NYPD, including Valerio,
executed a search warrant at the Apartment. (Id. ¶ 5.) Valerio knew when executing the search
warrant that Cruz was the tenant of record of the Apartment. (Id. ¶ 6.)
On April 15, 2015, Cruz was sleeping in the apartment of an acquaintance in the
Building. (Id. ¶ 8.) Upon hearing a noise, she left the acquaintance’s apartment to go to the
Apartment. (Id. ¶ 9.) Cruz approached the door of the Apartment and identified herself to a
police officer at the front door as the “head of the house” and the “owner” of the Apartment. (Id.
¶ 10.) Cruz told the officer, “I’m the one that lives here,” and told Valerio that Apartment 9A
was “her apartment.” (Id.)
During the course of the execution of the search warrant, NYPD officers
discovered several containers they believed contain phencyclidine, an illegal narcotic commonly
referred to as “PCP”. (Id. ¶ 11.) These containers were found in the kitchen cabinet, the
refrigerator, and the freezer of the Apartment, according to the NYPD Property Clerk Invoice.
(Id. ¶¶ 11-12.) Plaintiff kept her personal prescription medication in the kitchen, including in the
kitchen cabinet. (Id. ¶ 13.) NYPD officers additionally recovered a scale and grinder, which
were later determined to contain marijuana residue, in the kitchen. (Id. ¶¶ 13-14.)
During discovery in this case, Cruz’s son, Richard Cruz, who also lived in the
Apartment, testified that any drugs in the Apartment were kept in his bedroom, not in the
kitchen, freezer, or refrigerator. (Docket entry no. 44, Ex. 1, Pl.’s Response to Def.’s Stmt. of
Undisputed Facts, ¶ 11(b).)

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Citations to Defendant’s Statement of Undisputed Facts incorporate by reference the
source of those factual assertions identified in the Statement.
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Cruz was arrested at the Apartment and taken to the police precinct by van. (Id.
¶¶ 70-72.) The District Attorney of the County of New York declined the prosecution of Cruz.
(Id. ¶ 74.)

DISCUSSION
Summary judgment is to be granted “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). “[S]ummary judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
performs the “threshold inquiry” as to whether “there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor of
either party.” Anderson, 477 U.S. at 250. “[A]ll ambiguities must be resolved and all inferences
drawn in favor of the party against whom summary judgment is sought.” Gallo v. Prudential
Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
Valerio asserts that undisputed facts establish that he had probable cause to arrest
Plaintiff. “Probable cause to arrest exists when the officers have knowledge of, or reasonably
trustworthy information as to, facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being committed by the person to
be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). “[S]ummary judgment
dismissing a plaintiff’s false arrest claim is appropriate if the undisputed facts indicate that the
arresting officer’s probable cause determination was objectively reasonable.” Jenkins v. City of
New York, 478 F.3d 76, 88 (2d Cir. 2007). “If, however, on the undisputed facts the officer

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would be unreasonable in concluding probable cause existed, or if the officer’s reasonableness
depends on material issues of fact, then summary judgment is inappropriate for both New York
and federal false arrest claims.” Id.
Valerio also asserts a qualified immunity defense on the ground that he had
arguable probable cause to arrest Plaintiff. “Under federal law, a police officer is entitled to
qualified immunity where (1) his conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known, or (2) it was objectively
reasonable for him to believe that his actions were lawful at the time of the challenged act.”
Jenkins, 478 F.3d at 87 (internal citations and quotation marks omitted). “An officer’s
determination is objectively reasonable if there was ‘arguable’ probable cause at the time of the
arrest – that is, if ‘officers of reasonable competence could disagree on whether the probable
cause test was met.’” Id. (citation omitted). Thus, even if the undisputed material facts do not
demonstrate that Valerio had probable cause to arrest Cruz, the Court may nonetheless find that
Valerio is entitled to qualified immunity if he can establish that the undisputed material facts
demonstrate that he had “arguable probable cause” to make the arrest. See Escalera v. Lunn, 361
F.3d 737, 743 (2d Cir. 2004).
The Court concludes that the undisputed material facts establish that at least
arguable probable cause existed to arrest Cruz, and Valerio is therefore entitled to qualified
immunity in this case. The NYPD Property Clerk Invoice notes three items alleged to contain
PCP that were taken from the kitchen cabinet, refrigerator, and freezer of the Apartment. This
invoice is appropriately considered on summary judgment because it is a public record, and

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therefore would be admissible at trial pursuant to Federal Rule of Evidence 803(8)(A)(ii).3 The
items were found in the kitchen area of the Apartment, where Cruz kept her personal belongings,
which a reasonable officer could therefore conclude was a common area over which Cruz had
dominion and control sufficient to imply constructive possession that would provide at least
arguable probable cause for an arrest. See Caraballo v. City of New York, 526 F. App’x 129,
131 (2013). Plaintiff’s proffer of the testimony of Richard Cruz does not have any bearing on
the relevant inquiry here, which is the knowledge that Valerio had at the time of the arrest. See
Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007); Takacs v. City of New York, 2011 WL
8771384, at * (S.D.N.Y. Jan. 24, 2011) (“[I]n the case of a probable cause determination . . . the
scenario must be considered from the perspective of what the arresting officers knew or saw.”).
Defendants have established sufficient undisputed material facts to demonstrate that a reasonable
officer would have believed that probable cause existed to arrest Cruz for possession of
contraband, and Plaintiff has not submitted any evidence that would indicate that no officer of
reasonable competence would have made the same choice in similar circumstances. See Lennon
v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). Valerio has accordingly demonstrated entitlement
to qualified immunity as a matter of law, and the Complaint must therefore be dismissed.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted,
and the Complaint is dismissed. This Memorandum Opinion and Order resolves docket entry no.

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These materials need not be presented in fully admissible form at summary judgment, but
merely capable of presentation in admissible form at the time of trial. See Fed. R. Civ. P.
56(c)(1)(B).
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34. The Clerk of Court is respectfully requested to enter judgment accordingly and close this
case.
SO ORDERED.
Dated: New York, New York
September 1, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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