Corbett v. City Of New York et al

Filing 98

MEMORANDUM OPINION AND ORDER re: 90 MOTION for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure filed by Bryan Gillis, Roberto More, Michael Ahearne. For the reasons described above, Defendants' moti on for summary judgment is DENIED. The Clerk of Court is directed to terminate the motion pending at ECF No. 90. The Clerk of Court is further directed to amend the caption of this case to correct the spelling of Defendant Michael Ahearne. SO ORDERED. (Signed by Judge Gregory H. Woods on 7/27/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JONATHAN CORBETT,
:
:
Plaintiff,
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:
-v :
:
THE CITY OF NEW YORK, ROBERTO MORE, :
MICHAEL AHEARNE, and BRYAN GILLIS,
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Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 7/27/17
1:15-cv-09214-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
Early in the morning of February 7, 2015, Plaintiff Jonathan Corbett was on the phone with
his girlfriend when she jumped out the window of her thirty-first-floor midtown Manhattan
apartment, taking her own life. He rushed to her apartment, found her lying on an adjacent roof
approximately twenty-three stories below, and called 911. After speaking voluntarily with officers
who arrived on the scene, Corbett ended up going to the police precinct in an NYPD vehicle, waited
there for approximately 90 minutes, and then answered officers’ questions for 20-30 minutes.
Defendants contend that Corbett went to the precinct and remained there to answer questions
voluntarily. Corbett, on the other hand, asserts that it was an unlawful detention.
Corbett filed this action, asserting claims against three NYPD officers and the City of New
York (“Defendants,” and as to the officer-defendants, the “Individual Defendants”) pursuant to 42
U.S.C. § 1983 for false arrest or imprisonment in violation of the Fourth Amendment and for
municipal liability pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), as well as
various state-law claims. In a previous opinion and order, the Court dismissed Corbett’s Monell
claims. Defendants now ask the Court to grant summary judgment in their favor on Plaintiff’s false
arrest claim, as well as his claim under the New York Freedom of Information Law, and to decline
to exercise supplemental jurisdiction over the remainder of his state-law claims. Because triable

issues of material of fact exist, Defendants’ motion for summary judgment is DENIED.
I.

BACKGROUND1
1. Facts
On the morning of February 7, 2015, Plaintiff Jonathan Corbett was on the phone with his

girlfriend of three years, Andrea Brannon. Decl. of Jonathan Corbett in Opp’n to Mot. for Summ. J.
(ECF No. 95-1) (“Corbett Decl.”) ¶ 1. Brannon had a history of depression and was regularly
treated by a psychiatrist. Id. ¶ 5. She had once intentionally overdosed on prescription medication
during her relationship with Corbett, and on at least two other occasions, Corbett had been
concerned she might attempt suicide by jumping out her large apartment windows. Id. During the
call that morning, Brannon made several statements implying that she would take her own life. Id. ¶
6. Corbett did not think she would act on those statements, but, at some point during the call, he
heard her scream, followed by a loud noise and “nothing further on the phone line.” Id. ¶¶ 7, 9.
After attempting unsuccessfully to call her back, he took a taxi to Brannon’s apartment, arriving
approximately fifteen minutes later. Id. ¶¶ 9-10. He looked out her bedroom window, which was

The following facts are drawn from the parties’ Local Civil Rule 56.1 Statements and other submissions in connection
with the instant motion, and are undisputed or taken in the light most favorable to Plaintiff, unless otherwise noted. To
the extent that Corbett responds to Defendants’ supported and other sufficient Local Rule 56.1 factual assertions with a
statement that he lacks the knowledge necessary to verify those assertions, the Court deems the assertions admitted. See
AFL Fresh & Frozen Fruits & Vegetables, Inc. v. De-Mar Food Servs. Inc., No. 06-cv-2142, 2007 WL 4302514, at *4
(S.D.N.Y. Dec. 7, 2007) (Lynch, J.) (“A nonmovant cannot raise a material issue of fact by denying statements which the
moving party contends are undisputed for lack of ‘knowledge and information’ in part because discovery allows the
party opposing summary judgment to obtain the facts necessary to determine whether it must admit or deny them.”).
The Court rejects Defendants’ request that it disregard the statements in Corbett’s declaration on the ground that they
are “self-serving.” A declaration is not rendered insufficient merely because it is self-serving. In fact, to disregard a
declaration on that basis alone would amount to a credibility determination that is reserved for the trier of fact, not the
Court on summary judgment. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998) (“To hold, as defendants ask
us to do, that the nonmovant’s allegations of fact are (because ‘self-serving’) insufficient to fend off summary judgment
would be to thrust the courts―at an inappropriate stage―into an adjudication of the merits.”); Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994) (“It is not the province of the summary judgment court itself to decide what
inferences should be drawn.”). “Even a self-serving affidavit can establish a genuine dispute of fact so long as the
affidavit does not contradict the witness’s prior testimony.” Dye v. Kopiec, No. 16-cv-2952 (LGS), 2016 WL 7351810, at
*3 (S.D.N.Y. Dec. 16, 2016). The Second Circuit has recognized that, in “rare circumstance[s],” a district court may
properly disregard self-serving testimony at the summary judgment stage where “it is so replete with inconsistencies and
improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit” it. Jeffreys v. City
of New York, 426 F.3d 549, 555 (2d Cir. 2005). No such circumstances are present here. Notably, it is difficult to
imagine what evidence other than self-serving declarations or testimony Corbett could present here, given that most of
the relevant events took place between only he and the Individual Defendants, with no witnesses present and without,
for example, a video camera rolling.

1

2

wide open, and saw a body lying motionless on an adjacent roof approximately 250 feet below. Id.
¶¶ 11-12.
Immediately thereafter, at approximately 4:19 a.m., Corbett called 911 and reported what
had occurred. Defs.’ Local Rule 56.1 Statement (ECF No 92) and Pl.’s Local Rule 56.1 Response
and Counterstatement (ECF No. 95-5) (collectively, “56.1”) ¶ 1.2 The first to arrive at the scene
were two non-party officers from the New York City Police Department’s Midtown South Precinct.3
56.1 ¶ 3. Shortly thereafter, Defendant Sergeant Roberto More and at least one additional NYPD
officer, as well as members of Emergency Medical Services and the New York City Fire Department
arrived on the scene. 56.1 ¶¶ 3-4; Decl. of Eviana Englert in Supp. of Mot. for Summ. J. (ECF No.
93) (“Englert Decl.”), Ex. B; Englert Decl., Ex. K, Dep. of Roberto More (“More Dep.”) 12:7-11,
(Oct. 3, 2016). Brannon was taken to Bellevue Hospital, where she was pronounced dead at 4:57
a.m. 56.1 ¶¶ 8, 18. Defendants Detective Michael Ahearne4 and Sergeant Bryan Gillis, as well as a
non-party detective also responded to the scene and conducted preliminary interviews and a search
of the apartment. Id. ¶¶ 17, 19.
Immediately after calling 911, Corbett took the elevator to the lobby of Brannon’s building
to meet the responders. Corbett Decl. ¶ 18. He approached the two first-responding NYPD
officers and voluntarily provided them with information about what had happened and where to
find Brannon’s body. 56.1 ¶¶ 5-6. One of the officers then asked Corbett for his identification and
requested that he step into the building’s mailroom to further discuss what had occurred. Corbett
Decl. ¶¶ 21. He gave the officer his Florida driver’s license, stepped into the mailroom, and told the
The Court cites to both parties’ Local Rule 56.1 statements collectively throughout this opinion, because Corbett’s
statement contains only his responses, and does not include Defendants’ assertions.

2

These two officers may have arrived in response to an earlier call from Brannon’s neighbor immediately after hearing
Brannon scream, rather than to Corbett’s call. Englert Decl., Ex. D, at 1. That distinction is not material here, however.

3

4 Defendant Ahearne’s name is spelled incorrectly in the second amended complaint as “Aherne.” The Court uses the
correct spelling, as reflected in the City’s response to the Court’s Valentin order, all other correspondence from
Defendants in this action, and various evidence in the record, and directs the Clerk of Court to amend the caption of
this case to reflect the correct spelling.

3

officer about his call with Brannon and about her mental health history. Id. ¶¶ 22-23. The officer
did not return Corbett’s license to him at that time. Id. ¶¶ 22, 45.
At some point thereafter, Sergeant More approached and, within Corbett’s earshot, told
another officer to take Corbett to the precinct.5 Id. ¶ 24. Either More or another nearby officer
then told Corbett: “[H]old tight, you’re in for a long night.” Id. ¶ 25. More proceeded to walk away
before Corbett could respond in any way to the instruction to take him to the precinct. Id. ¶ 26.
Neither More nor any other officer asked Corbett whether he was willing to go to the precinct for
further questioning, see id. ¶¶ 26, 40, and Corbett neither verbally consented nor verbally objected,
56.1 ¶ 10. In light of More’s instruction to transport him to the precinct, the “in for a long night”
comment, the officers’ tone and body language, the continued retention of his driver’s license, and
the general context of being questioned about his girlfriend’s death, Corbett subjectively believed at
this time that he was not free to leave. Corbett Decl. ¶ 27. He chose not to verbally argue with the
officers because he was emotionally distraught and was afraid that protesting would result in his
being handcuffed. Id. ¶ 28.
Not feeling at liberty to refuse, Corbett was directed outside by an officer to a marked police
car.6 Id. ¶ 33; Dep. of Bryan Gillis, Ex. C to Pl.’s Opp’n to Mot. for Summ. J. (ECF No. 95-3)

To the extent this statement is offered for the truth of the matter asserted, rather than for its effect on Corbett, it is an
opposing party’s statement that is not hearsay under Fed. R. Evid. 801(d)(2), and is therefore admissible. In addition,
More testified in a deposition that he did not recall whether he instructed an officer to take Corbett to the precinct.
More Dep. 11:25-12:10. That testimony is insufficient to create a genuine factual dispute. See, e.g., Faruki v. City of New
York, No. 10-cv-9614 (LAP), 2012 WL 1085533, at *5 (S.D.N.Y. Mar. 30, 2012) (“Plaintiff’s statement that she did not
recall whether Defendants asked her to leave the store is insufficient to create a genuine dispute on that material issue.”).
While Defendants will have the opportunity to challenge the credibility of Corbett’s statement at trial, the Court assumes
the statement to be true and undisputed for purposes of this motion.

5

The identity of the officer who transported Corbett to the precinct is unknown. Hereinafter, that officer is referred to
as “Officer Doe.” On November 30, 2015, the Court issued an order pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d
Cir. 1997), directing the City to ascertain the identities of the four “John Doe” officers named in Plaintiff’s initial
complaint. ECF No. 3. Although the City was able to identify three of the named officers as Sergeant More, Sergeant
Gillis, and Detective Ahearne, the City was unable to identify the officer who allegedly transported Corbett to the
Precinct and allegedly remained with him while he waited at the Precinct. ECF No. 19. As a result, when Corbett
amended his complaint on March 29, 2016, he named only the three identified officers as defendants. ECF No. 22.
6

4

(“Gillis Dep.”) 15:5-10 (Oct. 3, 2016).7 As stated in the NYPD’s Unusual Occurrence Report, which
was prepared by More, Corbett was “transported to the Midtown South Precinct for further
questioning by Nightwatch.” Englert Decl., Ex. B; see also 56.1 ¶ 9.
Upon arrival, Officer Doe led Corbett to the Juvenile Room at the back of the precinct.
Corbett Decl. ¶ 34; 56.1 ¶ 16. Corbett was not checked in at the front desk, he did not speak to a
desk sergeant, and his name was not entered into the precinct’s command log. 56.1 ¶¶ 13-15. He
waited inside the Juvenile Room from the time he arrived at the precinct slightly before 5:00 a.m.
until 6:25 a.m., when Ahearne and Sergeant Gillis arrived to speak with him. 56.1 ¶¶ 16, 20; Corbett
Dep: 63:16-17, 73:18-20; Englert Decl., Ex. D. Officer Doe stayed with him the entire time.
Corbett Decl. ¶ 35. Corbett took one bathroom break, during which Officer Doe accompanied him
to the bathroom, waited at the door for him to finish, and accompanied him back to the Juvenile
Room. 8 Id. ¶ 37. Based largely on that fact, Corbett believed that Officer Doe was there to prevent
him from leaving. Id. ¶ 36. However, Corbett was not handcuffed at any point. 56.1 ¶ 11.
At approximately 6:25 a.m., Ahearne and Gillis returned to the precinct to speak with
Corbett. 56.1 ¶ 20. Once they arrived, Officer Doe left the Juvenile Room, not to be seen by
Corbett again. Corbett Decl. ¶ 39. Ahearne and Gillis did not ask at that time whether Corbett had
been transported to, and had waited at, the precinct voluntarily; however, they testified in
Corbett did not introduce his exhibits into the record by way of declaration, but rather attached them directly to his
opposition brief. The Court will overlook that deficiency in light of Corbett’s pro se status. See, e.g., Burke v. Royal Ins. Co.,
39 F. Supp. 2d 251, 257 (E.D.N.Y. 1999) (addressing merits of defendant’s motion for summary judgment against pro se
plaintiff “in light of the entire record before the Court,” despite plaintiff’s failure to submit 56.1 statement “or to present
factual material in evidentiary form”). Moreover, the Court cites the exhibits attached to Corbett’s opposition only as
additional evidence of propositions otherwise supported by properly authenticated evidence in the record. Therefore,
the Court’s choice to consider these exhibits is not material to the outcome of Defendants’ motion.
7

When asked at his deposition about Officer Doe’s response to his request to use the restroom, Corbett testified: “I
don’t remember if [Officer Doe] immediately took me or went to check if it was allowed. Within a short period of time
[Officer Doe] escorted me to the bathroom. Whether or not [Officer Doe] checked with someone else first, I think he
may have.” Corbett Dep. 76:3-8. In his later declaration, Plaintiff states: “[W]hen I asked to use the bathroom, [Officer
Doe] first had to check if it was ok, and then escorted me to the bathroom.” Corbett Decl. ¶ 37. Because Plaintiff’s
declaration statement contradicts his earlier deposition testimony, the Court disregards the assertion that Officer Doe
checked to see if Corbett was allowed to use the restroom for purposes of resolving this motion. See Hayes, 84 F.3d at
619 (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion
that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). In any event, in light of the
balance of the evidence in the record, that fact would not change the outcome of Defendants’ motion.
8

5

depositions that they subjectively believed he was there of his own freewill. Id. ¶ 40; Gillis Dep.
16:6-14; Dep. of Michael Ahearne, Ex. L to Englert Decl. (“Ahearne Dep.”) 19:19-25 (Oct. 3, 2016).
According to their own deposition testimony, neither More, nor Ahearne, nor Gillis made a
determination that there was probable cause or reasonable suspicion to support detaining Corbett
involuntarily. Ahearne Dep. 17:16-18:12; Gillis Dep. 9:20-10:4; More Dep. 18:24-19:4.
Ahearne and Gillis asked Corbett to recount what had happened that morning, from the
phone call with Brannon to his arrival at her apartment. 56.1 ¶¶ 20-21; Corbett Dep. 77:22-78:12.
They also asked about his relationship with Brannon, her mental health history, and how they could
contact her mother. 56.1 ¶¶ 21-22. Ahearne and Gillis questioned Corbett inside the Juvenile
Room for 20-30 minutes, while physically blocking the only exit to the room. 56.1 ¶ 20; Corbett
Decl. ¶ 41.9 Corbett continued to believe he was free to leave the room during that time. Corbett
Decl. ¶ 42.
When it appeared to Corbett that the officers had finished their questions, he asked them if
he was free to leave, and the officers said he was. 56.1 ¶ 23. His driver’s license, which had been
taken earlier that morning, was then returned to him. Corbett Decl. ¶ 45. That was the first time
since being directed into the police car outside Brannon’s apartment that Corbett felt free to go. Id.
¶ 46.
Ahearne then interviewed Brannon’s roommate and her roommate’s boyfriend about the
incident in another part of the precinct. 56.1 ¶¶ 24-25. At approximately 9:20 a.m., a non-party
detective completed a report indicating that no signs of criminality had been found surrounding
Brannon’s death and that video surveillance footage had corroborated witnesses’ statements. Id. ¶¶
26-27.

Defendants ask the Court to disregard Corbett’s declaration that the officers physically blocked the exit on the ground
that it is “self-serving.” Reply Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.’ Reply”) (ECF No. 97), at 4-5. For
the reasons already explained, that is not a proper basis to refuse to consider otherwise competent and admissible
evidence on summary judgment. See supra note 1. Defendants may attack Corbett’s credibility at trial, but not here.

9

6

2. Procedural History
Corbett initiated this lawsuit pro se on November 23, 2015 against the City and four “John
Doe” officers. ECF No. 1. On March 29, 2016, after a Valentin order from the Court and a
response from the City, he amended his complaint to name Defendants More, Gillis, and Ahearne,
as well as to remove the “John Doe” officer whom the City was unable to identify. ECF No. 22.
Corbett amended his complaint once again with leave of the Court on October 19, 2016. ECF No.
65. In his second amended complaint, he brought claims under Section 1983 for false arrest in
violation of the Fourth Amendment, Monell claims against the City, and various state-law claims. Id.
On November 2, 2016, the City moved to dismiss the Monell claims pleaded in the second
amended complaint. ECF Nos. 69-72. The Court granted that motion on December 22, 2016.
ECF No. 85. On January 10, 2017, Corbett moved pursuant to Federal Rule of Civil Procedure
41(a)(2) to voluntarily dismiss his New York Freedom of Information Law (“FOIL”) claim. ECF
No. 87. Corbett stated that, because “almost all of the records” he had sought through his FOIL
request had been produced through discovery, his claim under FOIL had “largely been mooted,”
but that he wished to reserve the right to recover costs and/or fees at the conclusion of the case.
Id. He moved pursuant to Rule 41(a)(2) rather than submitting a stipulation of dismissal because,
while Defendants consented to the dismissal of the FOIL claim, they “[took] no position” on his
reservation of rights. Id. After a telephone conference on the motion, the Court denied it on
January 17, 2017. ECF Nos. 88-89.
Defendants filed the instant motion for summary judgment on January 23, 2017. ECF Nos.
90-94. Corbett filed an opposition on February 8, 2017, ECF No. 95, and Defendants filed a reply
on February 14, 2017, ECF No. 97.10

10 In their moving brief, Defendants erroneously asserted that all claims against the City had been dismissed in the
Court’s December 22, 2016 order, and that only claims against the Individual Defendants remained. As a result,
Defendants failed to include the City as a party to the motion. In their reply brief, Defendants acknowledged that error
and asked the Court to deem the City to be included in the motion ab initio. The Court grants that request.

7

II.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “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) (“[S]ummary judgment is proper ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))). A
genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Id.
The movant bears the initial burden of demonstrating “the absence of a genuine issue of
material fact,” and, if satisfied, the burden then shifts to the non-movant to present “evidence
sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.
2008) (citing Celotex, 477 U.S. at 323-24). To defeat a motion for summary judgment, the nonmovant “must come forward with ‘specific facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ.
P. 56(e)). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252. Moreover, the non-movant “must do more than simply show
that there is some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, and he
“may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks and citation omitted).
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
8

against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(internal quotation marks and citation omitted). The Court’s job is not to “weigh the evidence or
resolve issues of fact.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002).
“Assessments of credibility and choices between conflicting versions of the events are matters for
the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553-54
(2d Cir. 2005) (citation omitted). “[T]he judge must ask . . . not whether . . . the evidence
unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for
the plaintiff on the evidence presented.” Id. at 553 (quoting Anderson, 477 U.S. at 252).
Where, as here, a plaintiff is proceeding pro se, the Court “must extend extra consideration, as
pro se parties are to be given special latitude on summary judgment motions.” Smith v. City of New
York, No. 14-cv-5927 (RWS), 2017 WL 2172318, at *3 (S.D.N.Y. May 16, 2017) (internal quotation
marks and citation omitted); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is
to be liberally construed.” (internal quotation marks and citation omitted)). Accordingly, the Court
will construe Corbett’s submissions “to raise the strongest arguments that they suggest.” See Fulton
v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (citation omitted). “Nevertheless, proceeding pro se does
not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se
party’s ‘bald assertion,’ unsupported by evidence, is not sufficient to overcome a motion for
summary judgment.” Smith, 2017 WL 2172318, at *3 (citation omitted).
III.

DISCUSSION
Defendants move for summary judgment as to each of Corbett’s remaining claims. First,

they argue that Corbett has failed to produce evidence satisfying every element of his false arrest
claim against the Individual Defendants and that, in any event, they are entitled to qualified
immunity. Second, they contend that Corbett has conceded the mootness of his FOIL claim and
that, regardless of mootness, the Court should decline to exercise supplemental jurisdiction over that
claim. Finally, they argue that the Court should decline to exercise supplemental jurisdiction over
9

Corbett’s remaining state-law claims. The motion is denied in its entirety.
1. False Arrest Claim
As noted, Defendants argue that they are entitled to summary judgment on Plaintiff’s false
arrest claim on two grounds. First, they contend that Plaintiff has failed to come forward with
sufficient evidence from which a fair-minded jury could find that all the elements of false arrest have
been satisfied. Second, they argue that, even if the elements of false arrest are satisfied, the record is
such that the Individual Defendants are entitled to qualified immunity. The Court concludes,
however, that genuine disputes of material fact exist that preclude summary judgment on both
grounds.
A. Sufficiency of the Evidence
Corbett has presented evidence sufficient to withstand summary judgment on his claim for
false arrest. A false arrest claim under Section 1983 resting on an individual’s Fourth Amendment
right to be free from unreasonable seizures, including arrest without probable cause, “is substantially
the same as a claim for false arrest under New York law.” Ackerson v. City of White Plains, 702 F.3d
15, 19 (2d Cir. 2012) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Under New York
law, a plaintiff seeking to establish a cause of action for false arrest must show 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, such as by probable cause or a warrant. Willey v. Kirkpatrick, 801 F.3d 51, 70-71 (2d Cir.
2015) (quoting Broughton v. State of New York, 335 N.E.2d 310, 314 (N.Y. 1975)). “False arrest is
simply an unlawful detention or confinement brought about by means of an arrest rather than in
some other way and is in all respects synonymous with false imprisonment.” Covington v. City of New
York, 171 F.3d 117, 125 (2d Cir. 1999) (Glasser, J., dissenting); see also Weyant, 101 F.3d at 853
(describing false arrest as “a species of false imprisonment”). In the absence of a formal arrest, a
seizure under the Fourth Amendment occurs where a “reasonable person would have believed that
10

he was not free to leave.” INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)).
Defendants do not argue that Corbett has failed to present evidence to satisfy the second or
fourth elements, namely, that Corbett was conscious of the alleged confinement and that the alleged
confinement was not “otherwise privileged.” Although Defendants have conceded those elements,
the Court also finds that there is sufficient evidence in the record to permit a jury to find that each
of those elements is satisfied. Defendants focus their argument on the remaining two elements.
They contend that the officer-defendants “did not intend to confine [Corbett], nor did [Corbett]
indicate a lack of consent to waiting at the precinct until the detectives could speak with him.”
Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”) (ECF No. 94) at 4.
The first element requires some explication. Though the conventional wording of this
element—“the defendant intended to confine the plaintiff”—may suggest that the subjective intent
of the officers is key, it is not that simple. “To prove intent, a plaintiff must show that the
defendant either: (a) confined or intended to confine plaintiff or (b) affirmatively procured or
instigated the plaintiff[’s] arrest.” King v. Crossland Sav. Bank, 111 F.3d 251, 256 (2d Cir. 1997) (citing
Carrington v. City of New York, 607 N.Y.S.2d 721, 722 (2d Dep’t 1994) and Williams v. State of New
York, 456 N.Y.S.2d 491, 493 (3d Dep’t 1982)). That somewhat peculiar articulation derives from the
fact that the intent element encompasses situations in which a third party directs another to confine
a plaintiff or takes some action to cause a plaintiff’s confinement. See Carrington, 201 N.Y.S.2d at
526-27 (“Because there is no claim that the deliverypersons, who the plaintiff alleges were employees
of the defendant WFO, in any way restricted his ability to move, or confined him in any way, the
plaintiffs must show that these defendants instigated his arrest, thereby making the police WFO’s
agents in accomplishing their intent to confine the plaintiff.”); see also King, 111 F.3d at 257 (finding
no evidence that American Express provided information to the police or intended that the police
confine plaintiffs). Where, as here, a plaintiff alleges that the defendants themselves confined him,
11

the intent element simply asks whether the officers “intended to commit acts that constituted a
seizure in the first instance.” Dancy v. McGinley, 843 F.3d 93, 116 (2d Cir. 2016); id. (“[A]s long as an
officer deliberately performed acts that constitute a seizure, the Fourth Amendment has been
triggered . . . .”). In addition, a plaintiff need not prove that the officer intended to violate his rights.
Id. at 117 (citing Hudson v. New York City, 271 F.3d 62, 68-69 (2d Cir. 2001)); see also Hudson, 271 F.3d
at 68 (“[I]t is well established that specific intent is not a prerequisite to liability under § 1983”
(quoting Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992))).
There is no contention here that the Individual Defendants’ acts were unintentional. The
first element of Corbett’s false arrest claim under Section 1983 will be satisfied, then, if their
volitional acts constituted a seizure within the meaning of the Fourth Amendment. That standard is
an objective one. Corbett was “seized”—and the first element satisfied—if, under the
circumstances, “a reasonable person would have believed that he was not free to leave.” Delgado,
466 U.S. at 215; see Gilles v. Repicky, 511 F.3d 239, 245 (2d Cir. 2007) (“This is an objective inquiry
that pointedly eschews consideration of intent and involves an essentially legal assessment of
whether the particular circumstances would warrant the belief that a person has been detained.”
(internal quotation marks, alteration, and citation omitted)).
Relevant factors suggesting a police seizure include:
the threatening presence of several officers; the display of a weapon; physical
touching of the person by the officer; language or tone indicating that compliance
with the officer was compulsory; prolonged retention of a person’s personal
effects, such as airplane tickets or identification; and a request by the officer to
accompany him to the police station or a police room.
Gilles, 511 F.3d at 245 (quoting Brown v. City of Oneonta, 221 F.3d 329, 340 (2d Cir. 2000)). Physical
blocking of exits has also been considered highly material in determining whether a seizure has
occurred. See, e.g., United States v. Drayton, 536 U.S. 194, 195 (2002) (finding encounter was not a
“seizure” in part because “[t]here was . . . no blocking of exits”); United States v. Simmons, 560 F.3d
98, 106 (2d Cir. 2009) (holding that plaintiff was seized in part because officers stood between him
12

and the doorway to the building); Dotson v. Farrugia, No. 11-cv-1126 (PAE), 2012 WL 996997, at *12
(S.D.N.Y. Mar. 26, 2012) (“Plaintiff does not allege that defendants blocked the exit to the
courthouse or prevented plaintiff from leaving the line.”). Corbett has presented several pieces of
evidence that could support the conclusion that he was seized. Those include: the several (at least
four) officers at the scene; More’s instruction to take Corbett to the precinct; the statement that
Corbett was “in for a long night”; the fact that an officer directed him to a marked police car and
transported him to the precinct in it; the fact that an officer stayed with him while he waited to be
questioned, and even accompanied him to and from the restroom; the retention of his driver’s
license; and the fact that Ahearne and Gillis physically blocked the exit from the Juvenile Room.
Those facts, which are supported by cognizable evidence, are more than enough to create a triable
issue of fact as to whether a reasonable person would have felt free to leave under the
circumstances.
For their part, Defendants argue that the following circumstances suggest Corbett was not
confined: he was not handcuffed; he was not checked in at the front desk or entered into the
command log; he did not speak to a desk sergeant, he waited inside the Juvenile Room; Ahearne and
Gillis spoke with him only briefly; and, when Corbett asked if he could leave, he was told he could.
Defs.’ Mem. at 4. To the extent that Defendants argue that Corbett’s false arrest claim must be
dismissed because the circumstances show that he was not formally arrested, that argument has been
rejected by the Second Circuit. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991) (holding that false
arrest, for purposes of a § 1983 claim, “may be complete without either a formal arrest or a
detention until the subject is arraigned”). In addition, “once the intrusion of an arrest has occurred,
its definition does not depend upon what follows, such as station house booking.” Id. at 98-99.
Furthermore, although the duration of the alleged seizure may be relevant to the quantum of
suspicion or evidence needed to justify it (an issue that is not at play in this case), it is not relevant to
whether a seizure has occurred within the meaning of the Fourth Amendment. See, e.g., Seifert v.
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Rivera, 933 F. Supp. 2d 307, 321 (D. Conn. 2013) (“The Fourth Amendment’s protection against
unreasonable searches and seizures applies to all seizures of the person, including those that involve
only a brief detention short of traditional arrest.” (quoting United States v. Brignoni-Ponce, 422 U.S. 873,
878 (1975))). Finally, to the extent that Defendants argue that the circumstances they cite show that
the Individual Defendants did not intend to effect Corbett’s arrest, the Court has already explained
that the pertinent test is an objective, not a subjective, one. That said, at least some of the evidence
that Defendants cite—particularly the fact that Corbett was never handcuffed and that he was told
he could leave when he asked—could be relevant to a jury’s determination of whether Corbett was
seized.
As the above shows, Corbett has brought forward sufficient evidence from which a
reasonable jury could conclude that the first element of the false-arrest test is satisfied. And the
evidence cited by Defendants simply serves to further illustrate that a triable issue of fact exists with
respect to that element.
Corbett also has created a triable issue of fact with respect to whether he consented to the
alleged confinement. As with the question whether a plaintiff was seized, “[w]hether an individual’s
consent to accompany law enforcement officers was voluntary or coerced is to be determined by the
totality of all the circumstances.” Tarhaqa Allen v. N.Y.C. Police Dep’t, No. 07-cv-8682 (RPP), 2010
WL 1790429, at *5 (S.D.N.Y. May 5, 2010) (citing Mendenhall, 446 U.S. at 557). For that reason, the
determination of whether a plaintiff “consented” to an alleged confinement elides at least somewhat
with the determination of whether a confinement occurred at all. See, e.g., Mendenhall, 446 U.S. at
557-58 (finding voluntary consent and no seizure where agents stopped and questioned a suspect
and then asked her to accompany them to DEA office without any threats or show of force).
As noted earlier, Corbett admits that his contact with NYPD officers was initially voluntary.
See 56.1 ¶¶ 5-6. He contends, however, that the encounter evolved into a non-consensual one when
his driver’s license was taken and retained; More told another officer to take him to the precinct; and
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he was subsequently transported to the precinct in a police vehicle, watched over by Officer Doe,
and questioned by Ahearne and Gillis with the exit blocked. “[A]n initially consensual encounter
between a police officer and a citizen can be transformed into a seizure or detention within the
meaning of the Fourth Amendment, ‘if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.’” Delgado, 466 U.S. at 215
(quoting Mendenhall, 446 U.S. at 554). Here, it is undisputed that none of the Individual Defendants
ever asked if Corbett was willing to go to, or stay at, the precinct. It is similarly undisputed that
Corbett neither verbally consented nor verbally objected. Thus, resolution of the issue comes down
to how the parties’ silence on the issue should be interpreted in light of the surrounding
circumstances.
To the extent that Defendants assert they are entitled to summary judgment on Corbett’s
false arrest claim simply because he did not “indicate a lack of consent,” see Defs.’ Mem. at 4, that
assertion is rejected. First, it simply begs the relevant question. Whether a reasonable person would
feel secure in declining an officer’s request and refusing consent is relevant to whether that person is
“seized,” Drayton, 536 U.S. at 202-04, and “‘[c]onsent’ that is the product of official intimidation or
harassment is not consent at all,” Florida v. Bostick, 501 U.S. 429, 438 (1991). See also United States v.
O’Brien, 498 F. Supp. 2d 520, 536 (N.D.N.Y. 2007) (“[N]on-resistance is not synonymous with
cooperation and is not a factor demonstrating consent.”).11 Second, the Court does not accept as a
matter of first principles that a person must affirmatively state, or act out, their objection to a
seizure—or ask not to be seized—in order to render that seizure unreasonable without regard to the
attendant circumstances. Where, as here, there were several circumstances that could reasonably be
viewed as coercive or intimidating, such a per se rule would be both unfair and nonsensical, forcing

11 The Court observes that, in the context of consent to a police search, the Supreme Court has explained: “In
examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be
taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”
Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).

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arrestees to affirmatively resist or protest arrest in order to preserve their constitutional rights.
With Defendants’ proposed shortcut out of the way, the Court looks to the totality of the
evidence in the record. For substantially the same reasons described above with respect to whether
Corbett was confined, the Court concludes that Corbett has created a genuine dispute of material
fact sufficient to preclude summary judgment as to whether he consented to the entirety of the
February 7, 2015 encounter. See Mendenhall, 446 U.S. at 557-58 (finding voluntary consent based on
lack of threat or show of force towards plaintiff, the brief duration of questioning, the return of
plaintiff’s identification before she was asked to accompany the officers, and because “[plaintiff] was
not told that she had to go to the office, but was simply asked if she would accompany the
officers”). In addition, a reasonable jury could find the wording of More’s Unusual Occurrence
Report, which states that Corbett “was transported to the Midtown South Precinct for further
questioning by Nightwatch,” Englert Decl., Ex. B, relevant to the determination of whether he was
brought there consensually.
Because Corbett has presented evidence creating genuine disputes of material fact regarding
each element of his false arrest claim, summary judgment is not appropriate.
B. Qualified Immunity
The Individual Defendants argue that, even if Corbett’s false arrest claim survives summary
judgment, they are entitled to qualified immunity. “Qualified immunity shields government officials
from liability for civil damages as a result of their performance of discretionary functions, and serves
to protect government officials from the burdens of costly, but insubstantial, lawsuits.” Lennon v.
Miller, 66 F.3d 416, 420 (2d Cir. 1995). Law enforcement officers are entitled to qualified immunity
on a Section 1983 claim if “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). “Even where the plaintiff’s federal rights and the scope of the official’s permissible
conduct are clearly established, the qualified immunity defense protects a government actor if it was
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‘objectively reasonable’ for him to believe that his actions were lawful at the time of the challenged
act.”12 Lennon, 66 F.3d at 420 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)); see also Weyant,
101 F.3d at 857 (“[P]ublic officials are entitled to qualified immunity if (1) their conduct does not
violate clearly established constitutional rights, or (2) it was objectively reasonable for them to
believe their acts did not violate those rights.”). “The objective reasonableness test is met—and the
defendant is entitled to immunity—if ‘officers of reasonable competence could disagree’ on the
legality of the defendant’s actions.” Lennon, 66 F.3d at 420 (quoting Malley v. Briggs, 475 U.S. 335,
340-41 (1986)).
When “the factual record is not in serious dispute . . . [,] [t]he ultimate legal determination
whether . . . a reasonable police officer should have known he acted unlawfully is a question of law
better left for the court to decide.” Lennon, 66 F.3d at 421 (quoting Warren v. Dwyer, 906 F.2d 70, 76
(2d Cir. 1990)); accord Harris v. O’Hare, 770 F.3d 224, 239 (2d Cir. 2014) (same); Estate of Jaquez v. City
of New York, 104 F. Supp. 3d 414, 434 (S.D.N.Y. 2015) (question of whether a “reasonable police
officer should have known he acted unlawfully” is a question of law for the court “[e]ven though a
reasonableness inquiry traditionally is a question of fact for the jury”). However, “summary
judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are
material to a determination of reasonableness.” Husain v. Springer, 494 F.3d 108, 133 (2d Cir. 2007)
(quoting Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)). In other words,
[s]ummary judgment should not be granted on the basis of a qualified immunity
defense premised on an assertion of objective reasonableness unless the
defendant shows that no reasonable jury, viewing the evidence in the light most
favorable to the Plaintiff, could conclude that the defendant’s actions were
objectively unreasonable in light of clearly established law.

12 As a particular species of the objective reasonableness inquiry, an officer “is entitled to qualified immunity from a
federal false arrest and imprisonment claim if he had arguable probable cause to arrest the plaintiff.” Kass v. City of New
York, -- F.3d -- , 2017 WL 3122289, at *3 (2d Cir. July 24, 2017). Defendants do not assert that basis for qualified
immunity here.

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O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) (internal quotation marks omitted); see also Lennon, 66
F.3d at 420.
The Court cannot conclude that the Individual Defendants are entitled to qualified immunity
at this stage of the litigation because facts material to that determination are in dispute. Defendants
do not contend that Corbett’s right to be free from an unreasonable seizure was not clearly
established. And, as already explained, they do not argue that they had arguable probable cause or
any other justification to detain him against his will. Instead, Defendants argue only that they are
entitled to qualified immunity from Corbett’s false arrest claim because competent officers could
reasonably have believed he had come to the precinct and stayed there voluntarily. The record on
summary judgment, when viewed in the light most favorable to Corbett, does not permit such a
conclusion as a matter of law at this stage. Put differently, a reasonable jury could conclude on this
record that the Individual Defendants’ conduct was objectively unreasonable in light of clearly
established law.
While Defendants point to a number of undisputed facts in support of their contention that
their conduct was objectively reasonable—including the fact that Corbett called 911, that he
approached officers when they arrived on the scene and spoke to them voluntarily, that he
instructed officers on where to located Brannon’s body, and that he did not verbally object to going
to the precinct, Defs.’ Mem. at 6—they entirely fail to address many other material facts in the
record. And those facts, as presented to the Court, require credibility determinations. While
Corbett’s “self-serving” statements that he felt compelled to remain, that More told another officer
to “take him to the precinct,” that another officer said he was “in for a long night,” that he was
instructed to get into a marked police vehicle, that Officer Doe escorted him to and from the
restroom, that his driver’s license was retained throughout the encounter, and that Ahearne and
Gillis blocked the only exit from the Juvenile Room are not to be disregarded on summary
judgment, the self-serving nature of those statements, uncorroborated by any other evidence in the
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record, does give rise to a credibility question that falls squarely in the province of the jury. The
same is true of Defendants’ own “self-serving” testimony that they believed Corbett went and
remained voluntarily. In addition, the wording in More’s Unusual Occurrence Report that Corbett
“was transported to the Midtown South Precinct for further questioning” places the credibility of
Defendants’ testimony (as well their argument that they simply made a mistake about his consent) at
least somewhat in question.
That evidence is highly material to determining whether the Individual Defendants’ conduct
was objectively reasonable “as measured by reference to clearly established law.” See Davis v. Scherer,
468 U.S. 183, 191 (1984). For example, if a jury were to discount Corbett’s declaration statements,
all of the allegedly coercive or intimidating conduct would drop away, significantly changing the
calculus with respect to whether the Individual Defendants’ conduct was objectively reasonable. If,
on the other hand, his testimony is fully credited, it may be difficult to conclude that officers of
reasonable competence could believe their conduct was lawful.
Because, at the very least, credibility determinations are needed as to this material evidence,
the Court concludes that genuine disputes of material fact preclude summary judgment for the
Individual Defendants on the basis of qualified immunity. See, e.g., Berg v. Sorbo, 604 F. App’x 8, 10
(2d Cir. 2015) (affirming district court’s determination that factual dispute precluded qualified
immunity from being decided on summary judgment, due in large part to “a credibility issue that
cannot be determined as a matter of law”); Cooper v. City of New Rochelle, 925 F. Supp. 2d 588, 609
(S.D.N.Y. 2013) (“Thus, because there are genuine issues of material fact regarding what transpired
upon Smith’s exit from Cooper’s vehicle, Defendants are not entitled to summary judgment on this
claim on the ground of qualified immunity.”); see also Menlo v. Friends of Tzeiri Chabad in Israel, Inc., No.
11-cv-1978 (JPO), 2012 WL 137504, at *3 (S.D.N.Y. Jan. 17, 2012) (finding factual dispute
precluding summary judgment where “[a] fact-finder at trial would need to weigh the credibility of
Plaintiff’s and [Defendant’s president’s] statements to decide the instant dispute of fact”); Moore
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v. Casselberry, 584 F. Supp. 2d 580, 585 (W.D.N.Y. 2008) (“Although the evidence in the record
cast[s] doubt on plaintiff’s credibility, resolution of this claim remains dependent on an assessment
of his and defendants’ credibility, which is for the factfinder to make.”); Indelicato v. Provident Life &
Accident Ins. Co., No. 89-cv-8436 (RJW), 1990 WL 145149, at *4 (S.D.N.Y. Sept. 28, 1990) (“In order
for the disputes raised in this litigation to be resolved, extensive determinations regarding credibility
. . . are required, which can only be made at trial.”).
2. FOIL Claim
Defendants also ask the Court to dismiss Corbett’s FOIL claim because (1) he has conceded
that the claim “has largely been mooted” and (2) even if the claim is not moot, the Court should
decline to exercise supplemental jurisdiction over it. Defs.’ Mem. at 8. The Court cannot dismiss
Corbett’s FOIL claim on either of those grounds. First, Corbett has only conceded that the claim
has “largely” been mooted by discovery in this matter, not that it has been mooted altogether.
Because Defendants present no other evidence or argument in support of mootness here, the Court
does not have an adequate evidentiary basis to conclude that Corbett’s FOIL claim is moot. Second,
because the Court has denied summary judgment on Corbett’s federal claim, there is no basis to
decline to exercise supplemental jurisdiction over his FOIL claim at this time.
Because Defendants have not moved for summary judgment on the FOIL claim on any
other basis, the Court declines to address any other possible basis for its dismissal. The Court notes,
however, that at least some courts have held that FOIL claims are not properly brought in federal
court. See, e.g., Posr v. City of New York, No. 10-cv-2551 (RPP), 2013 WL 2419142, at *14 (S.D.N.Y.
June 4, 2013) (“This Court is without jurisdiction to consider Plaintiff’s FOIL-related claims and
thus Defendants request to dismiss these claims will be granted. Under New York State law, if an
agency or government official fails to comply with the provisions of FOIL, the person submitting
the FOIL request must pursue an administrative appeal or seek remedies in state court pursuant to
N.Y. C.P.L.R. Article 78.”); Schuloff v. Fields, 950 F. Supp. 66, 67-68 (E.D.N.Y. 1997) (“The
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appropriate vehicle for challenging denials of access guaranteed by [FOIL] is a state court
proceeding pursuant to N.Y.C.P.L.R. Article 78 upon exhaustion of administrative remedies.”). This
is not, however, an argument that Defendants have presented here.
3. The Remaining State-Law Claims
As to the remainder of Corbett’s state-law claims, Defendants simply argue that the Court
should decline to exercise supplemental jurisdiction “because [Corbett’s] federal claims fail as a
matter of law.” Defs.’ Mem. at 9. Because the Court has not dismissed the federal claims at this
time, there is no basis to decline supplemental jurisdiction over any of the state-law claims.
IV.

CONCLUSION
For the reasons described above, Defendants’ motion for summary judgment is DENIED.

The Clerk of Court is directed to terminate the motion pending at ECF No. 90. The Clerk of Court
is further directed to amend the caption of this case to correct the spelling of Defendant Michael
Ahearne.
SO ORDERED.
Dated: July 27, 2017
New York, New York

__________________________________
_____________________
__________________
_ ___
___
GREGORY
GREGORY H. WOODS
GOR
United States District Judge
Judg

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