Cunningham v. City Of New York et al
Filing
43
OPINION AND ORDER....The defendants January 26, 2018 motion to dismiss the second amended complaint is granted. The Clerk of Court is directed to enter judgment for the defendants and to close this case. (Signed by Judge Denise L. Cote on 8/30/2018) (gr) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KENNETH CUNNINGHAM,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, NEW YORK CITY
:
POLICE OFFICERS STEVEN BAIO, ALFONSO
:
MENDEZ, SERGEANT PERRY QUINCOSES, and :
JOHN DOES 1-3, in their individual and :
official capacities,
:
:
Defendants.
:
:
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17cv5124(DLC)
OPINION AND ORDER
APPEARANCES:
For the plaintiff:
Cyrus Joubin
43 W. 43rd Street, Suite 119
New York, New York 10036
For the defendants:
Elizabeth Colette Connelly
New York City Law Department
100 Church Street, Room 3-212
New York, New York 10007
DENISE COTE, District Judge:
This civil rights action arises out of the plaintiff’s
arrest on April 29, 2016 on charges that he unlawfully evicted
his brother from the apartment they shared.
Plaintiff asserts
that the officers arrested him even though they knew his brother
was a violent drug addict.
The defendants, the City of New York
and the police officers responsible for the arrest, have moved
to dismiss this action.
For the following reasons, the motion
to dismiss is granted.
BACKGROUND
The following facts are drawn from the second amended
complaint (“Complaint”).
Plaintiff and his brother, Larnell
Cunningham, shared an apartment in Harlem, New York City.
In
early April 2016, Larnell lost his keys to the apartment.
Because Larnell was a drug-addict and had been violent towards
plaintiff in the past, plaintiff did not give him access to the
apartment.
On April 13, Larnell deliberately broke the windows
of the apartment while plaintiff was inside.
Larnell again broke a window to the apartment.
On April 25,
The plaintiff
reported both incidents to the police.
After Larnell broke a window for the second time, defendant
Sgt. Perry Quincoses had an arrest warrant issued for Larnell.
Sgt. Quincoses also instructed plaintiff to inform the apartment
building’s management company about Larnell’s actions.
After
plaintiff so informed the management company, the management
company changed the locks on the apartment and instructed
plaintiff not to give Larnell access to the apartment.
On the morning of April 29, Larnell complained to defendant
police officers Steven Baio and Alfonso Mendez that plaintiff
was not letting him into the apartment.
The officers and
Larnell then went to the apartment to speak with the plaintiff.
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Plaintiff, after being informed of Larnell’s eviction complaint,
told the officers about Larnell’s history of violence towards
him and the apartment.
During this conversation, Larnell
stated, in sum and substance, “I smashed his windows cuz he
wouldn’t let me in.”
Plaintiff also told the officers that
Larnell had a warrant pending for his arrest, and that they
should contact Sgt. Quincoses for the details.
The officers
called Sgt. Quincoses, who confirmed that Larnell was wanted for
arrest.
Sgt. Quincoses arrived at the apartment shortly thereafter.
Plaintiff reiterated Larnell’s violent history to Sgt.
Quincoses, and various threats Larnell had made against him with
respect to the apartment.
During this encounter, Larnell
appeared deranged and under the influence of illegal drugs.
Sgt. Quincoses instructed officers Baio and Mendez to arrest
Larnell.
Larnell was handcuffed, and illegal drugs were
discovered on his person.
Throughout his interactions with the
police, Larnell repeatedly stated that he had a right to live in
the apartment.
Sgt. Quincoses then asked plaintiff if he would
let Larnell into the apartment.
Plaintiff refused, stating that
he should not have to permit a person into his apartment if by
doing so he would be placed in immediate danger.
Plaintiff also
stated that it was the management company that had the locks
changed and had instructed him not to give the keys to Larnell.
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Nonetheless, a short time thereafter, Sgt. Quincoses arrested
plaintiff.
Plaintiff was arraigned in New York Country Criminal Court
on a charge of violating New York City Administrative Code § 26521(a)(3) -- Unlawful Eviction, which is an unclassified
misdemeanor.
The criminal complaint was signed by Officer Baio.
The complaint alleged that “[o]n or about April 29, 2016 at
about 11:45 A.M., inside 2588 7th Avenue, the defendant [Kenneth
Cunningham] evicted . . . the occupant of a dwelling unit who
has lawfully occupied the dwelling unit by engaging . . . in
conduct which prevented . . . the occupant from the lawful
occupancy of such dwelling unit.”
The complaint further alleged
that “I [Officer Baio] am informed by Leonel [Larnell]
Cunningham . . . that [Larnell] has lived in [the apartment] for
. . . a period of time greater than 30 days . . . . I am further
informed that when [Larnell] came home, he found that his locks
were changed and he could not enter the apartment . . . . I
observed the [defendant] open the door to [the apartment.]
The
defendant then stated in substance that he would not let
[Larnell] into the apartment and that [Larnell] could not get a
key to the apartment.”
Plaintiff was incarcerated for a day and a half before he
made bail.
Larnell was prosecuted for criminal mischief and
possession of controlled substances, and an order of protection
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issued in that case required him to stay away from plaintiff and
the apartment.
The unlawful eviction prosecution of plaintiff
was dismissed approximately one week later, on May 5, 2016, on
motion of the District Attorney.
This action was commenced on July 7, 2017.
On December 6,
2017, defendants moved to dismiss plaintiff’s first amended
complaint.
Plaintiff amended his complaint for the second time
on December 13, 2017.
The defendants renewed their motion to
dismiss on January 26, 2018.
DISCUSSION
In order to survive a motion to dismiss, “a complaint must
plead specific facts sufficient to support a plausible inference
that the defendant is liable for the misconduct alleged.”
v. Columbia University, 831 F.3d 46, 54 (2d Cir. 2016).
Doe
In
deciding the motion, a court must accept as true all allegations
in the complaint and draw all reasonable inferences in the
plaintiff’s favor.
Loginovskaya v. Batratchenko, 764 F.3d 266,
269-70 (2d Cir. 2014).
The Complaint asserts claims against the individual
defendants for false arrest, malicious prosecution, denial of
the right to a fair trial, and failure to intervene, and a
Monell claim against the City of New York.
is addressed in turn.
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Each of these claims
I.
False Arrest
Plaintiff first alleges that the actions of the police
officers constituted the tort of false arrest.
To state a claim
for false arrest, a plaintiff must plausibly plead 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.”
Liranzo v. United States, 690 F.3d 78,
95 (2d Cir. 2012) (emphasis in original) (citation omitted); see
also Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir.
2015).
“To avoid liability for a claim of false arrest, an
arresting officer may demonstrate that either (1) he had
probable cause for the arrest, or (2) he is protected from
liability because he has qualified immunity.”
Simpson, 793 F.3d
at 265.
“Probable cause is determined on the basis of facts known
to the arresting officer at the time of the arrest.”
Shamir v.
City of New York, 804 F.3d 553, 557 (2d Cir. 2015) (citation
omitted).
“Probable cause to arrest exists when the officers
have knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.”
Jenkins v. City of New
York, 478 F.3d 76, 84 (2d Cir. 2007) (citation omitted).
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“[I]nformation gleaned from informants can be sufficient to
justify the existence of probable cause.
It is well-established
that a law enforcement official has probable cause to arrest if
he received the information from some person, normally the
putative victim or eyewitness, unless the circumstances raise
doubt as to the person’s veracity.”
Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006) (citation omitted).
“[T]he fact
that an innocent explanation may be consistent with the facts
alleged does not negate probable cause, and an officer’s failure
to investigate an arrestee’s protestations of innocence
generally does not vitiate probable cause.”
(citation omitted).
Id. at 395-96
“Once officers possess facts sufficient to
establish probable cause, they are neither required nor allowed
to sit as prosecutor, judge or jury.
Their function is to
apprehend those suspected of wrongdoing, and not to finally
determine guilt through a weighing of the evidence.”
Id. at 396
(citation omitted).
Police officers have no obligation to investigate
affirmative defenses.
Ricciuti v. N.Y. City. Transit. Auth.,
124 F.3d 123, 128 (2d Cir. 1997).
In some circumstances,
however, “a police officer’s awareness of facts supporting a
defense can eliminate probable cause.”
F.3d 128, 135 (2d Cir. 2003).
Jocks v. Tavernier, 316
An officer may not “deliberately
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disregard facts known to him which establish [an affirmative
defense.]”
Id. at 136.
New York City’s unlawful eviction law provides that:
It shall be unlawful for any person to evict or
attempt to evict an occupant of a dwelling unit
who has lawfully occupied the dwelling unit for
thirty consecutive days or longer or who has
entered into a lease with respect to such
dwelling unit or has made a request for a lease
for such dwelling unit pursuant to the hotel
stabilization provisions of the rent
stabilization law except to the extent permitted
by law pursuant to a warrant of eviction or other
order of a court of competent jurisdiction or a
governmental vacate order by:
(1) using or threatening the use of force to
induce the occupant to vacate the dwelling unit;
or
(2) engaging in a course of conduct which
interferes with or is intended to interfere with
or disturb the comfort, repose, peace or quiet of
such occupant in the use or occupancy of the
dwelling unit, to induce the occupant to vacate
the dwelling unit including, but not limited to,
the interruption or discontinuance of essential
services; or
(3) engaging or threatening to engage in any
other conduct which prevents or is intended to
prevent such occupant from the lawful occupancy
of such dwelling unit or to induce the occupant
to vacate the dwelling unit including, but not
limited to, removing the occupant's possessions
from the dwelling unit, removing the door at the
entrance to the dwelling unit; removing, plugging
or otherwise rendering the lock on such entrance
door inoperable; or changing the lock on such
entrance door without supplying the occupant with
a key.
N.Y. Unconsol. Law § 26-521 (McKinney) (emphasis supplied).
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The law further provides that “[a]ny person who
intentionally violates or assists in the violation of [the
statute] shall be guilty of a Class A misdemeanor.”
Unconsol. Law. § 26-523 (McKinney).
N.Y.
For there to be probable
cause to arrest an individual under the unlawful eviction
statute, the police officer must reasonably believe that the
individual has intentionally taken action, without authorization
by a court or governmental vacate order, to prevent a qualifying
resident from occupying a dwelling.
New York law also provides a defense of justification to
any criminal offense.
The justification statute provides that:
[C]onduct which would otherwise constitute an offense
is justifiable and not criminal when . . . such
conduct is necessary as an emergency measure to avoid
an imminent public or private injury which is about to
occur by reason of a situation occasioned or developed
through no fault of the actor, and which is of such
gravity that, according to ordinary standards of
intelligence and morality, the desirability and
urgency of avoiding such injury clearly outweighs the
desirability of avoiding the injury sought to be
prevented by the statute defining the offense in
issue.
N.Y. Penal Law § 35.05 (emphasis supplied).
On the facts as pled in the Complaint, the officers had
probable cause to believe that plaintiff had unlawfully evicted
Larnell.
Plaintiff does not seriously dispute that the elements
of the unlawful eviction statute were met.
The facts known to
the officers, as alleged, plainly were sufficient to supply
probable cause.
Larnell complained that he was unlawfully
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evicted, and when the officers interviewed plaintiff, plaintiff
refused to let Larnell into the apartment and refused to provide
him a set of keys.
That conduct met the elements of the
unlawful eviction statute.
Plaintiff presents two arguments to suggest his false
arrest claim survives.
impossibility.
First, he asserts the defense of
He contends that one who is under arrest, and
has no present right to be free, has no “lawful occupancy” of a
dwelling and therefore cannot be unlawfully evicted.
That
argument fails to engage with the words of the statute.
The
right to live in an apartment is not extinguished by an arrest.
If plaintiff had obtained a warrant of eviction or other
pertinent court order then Larnell would no longer be a “lawful”
occupant.
The plaintiff does not suggest he had obtained such
an order.
Second, plaintiff contends that failing to let Larnell back
in the apartment was justified as an emergency measure.
Not so.
Based on the allegations in the Complaint, it was not so plainly
an emergency.
The defense of justification is available only in
“rare and highly unusual circumstances.”
N.Y.2d 616, 622 (1991) (citation omitted).
People v. Craig, 78
incident, Larnell was under arrest.
At the time of the
Refusing to agree to grant
him access to the apartment in the past or in the future or to
give him keys for him to return to the apartment was not clearly
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“necessary as an emergency measure” to prevent an “imminent”
injury.
See id. at 623 (citation omitted).
In particular, the
officers could reasonably have believed that plaintiff had a
“reasonable, legal alternative course of action”: obtain an
order of protection or obtain an order of eviction from the
housing court.
Id.
Moreover, because the plaintiff had not obtained an order
evicting his brother from the dwelling in which his brother was
otherwise entitled to reside, it was not necessarily clear to
the officers -- on the facts alleged in the Complaint -- that
the plaintiff was without fault in this domestic dispute.
The
officers were not required to sift through the facts of the
brothers’ relationship, and not permitted to sit as judge and
jury.
Accordingly, there was probable cause to believe that
plaintiff violated the unlawful eviction statute, and the
Complaint fails to plead that probable cause was extinguished by
a plainly apparent defense of justification that the officers
improperly ignored.
II.
The claim for false arrest fails.
Malicious Prosecution
To state a claim for malicious prosecution, a plaintiff
must plead “(1) the commencement or continuation of a criminal
proceeding by the defendant against the plaintiff, (2) the
termination of the proceeding in favor of the accused, (3) the
absence of probable cause for the criminal proceeding and (4)
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actual malice.”
Dufort v. City of New York, 874 F.3d 338, 350
(2d Cir. 2017) (citation omitted).
“The ‘existence of probable
cause is a complete defense to a claim of malicious prosecution
in New York.’”
Id. at 351 (quoting Savino v. City of New York,
331 F.3d 63, 72 (2d Cir. 2003)).
For the reasons just discussed
in connection with the false arrest claim, there was probable
cause for a charge of unlawful eviction based on the Complaint’s
own allegations.
Accordingly, the claim for malicious
prosecution fails.
III.
Denial of the Right to a Fair Trial
Plaintiff further alleges that the actions of the officers
served to deny plaintiff of the right to a fair trial.
His
claim rests on the officers’ failure to mention his defenses of
impossibility and justification in the arrest complaint.
The right to a fair trial has been described as follows:
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, 124 F.3d at 130.
Fair trial claims based on
fabrication of evidence are restricted to those cases in which
an:
(1) investigating official
(2) fabricates information
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(3) that is likely to influence a jury’s verdict,
(4) forwards that information to prosecutors, and
(5) the plaintiff suffers a deprivation of life,
liberty, or property as a result.
Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir.
2016).
Unlike a malicious prosecution claim, “[t]he existence
of probable cause to arrest is not a defense to a fair trial
right claim.”
Soomro v. City of New York, No. 13cv0187(DLC),
2017 WL 1957034, at *4, aff’d, No. 17-1733, 2018 WL 3342322 (2d
Cir. July 9, 2018) (summary order).
Although probable cause is
not a defense to a denial of right to a fair trial claim,
“significant policy reasons restrict a fair trial claim to
instances in which the false information ‘was likely to
influence a jury’s decision.’”
F.3d at 280).
Id. at *5 (quoting Garnett, 838
This requires that the allegedly fabricated
evidence, at the very least, be material to a viable claim or
defense in the criminal case.
Plaintiff’s fair trial claim fails for several reasons.
First and foremost, the Complaint does not assert that the
arrest complaint contained a fabrication.
Moreover, even if a fair trial claim includes the failure
to disclose material information where that omission renders “an
otherwise true statement false,” Morse v. Fusto, 804 F.3d 538,
548 (2d Cir. 2015), there is absolutely no support in the law to
apply that principle to arrest complaints, and an officer’s
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omission from those complaints of an arrestee’s potential
affirmative defenses to the criminal charge.
An arrest
complaint is not a vehicle for reciting all potential defenses
to the charge.
Finally, the claim for denial of right to a fair trial must
also be dismissed because the allegedly withheld information was
not reasonably likely to influence a jury’s decision.
The facts
underlying the two defenses of impossibility and justification
were known to the plaintiff and would be available to present as
defenses at trial to the extent they were viable defenses.
The
failure to include these defenses in an arrest complaint had no
impact whatsoever on the plaintiff’s ability to rely
successfully on those defenses at trial.
In opposition to the motion to dismiss, the plaintiff adds
an alternative theory of liability to support his fair trial
claim.
He speculates that the Assistant District Attorney
(“ADA”) responsible for prosecuting plaintiff’s criminal case
must have asked for bail to be set because the individual
defendants failed to advise the ADA of the plaintiff’s
affirmative defenses.
This theory fails as well.
First, it is
not pleaded in the Complaint, which was the plaintiff’s third
effort to plead his causes of action.
on speculation.
Second, it relies solely
Third, as already described, an officer’s
failure to describe or list in conversations with prosecutors
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affirmative defenses which an arrestee may assert does not
constitute a fabrication of evidence in violation the right to a
fair trial.
The failure to volunteer facts, to a prosecutor
before a bail hearing is held, that might underlie a potential
affirmative defense is not a fabrication that will be material
to a jury at trial.
The plaintiff does not suggest that the
ADA, in reliance on conversations with the defendant officers
and during the course of bail arguments, fabricated any evidence
or even wrongfully contradicted a factual description of
pertinent facts presented by the plaintiff’s attorney.
Accordingly, the revised theory of liability presented in the
plaintiff’s opposition to this motion fails as well.
IV.
Failure to Intervene and Municipal Liability
Plaintiff further alleges that the defendant officers
failed to intervene to prevent the false arrest, malicious
prosecution, and denial of the right to a fair trial.
“[A]ll
law enforcement officials have an affirmative duty to intervene
to protect the constitutional rights of citizens from
infringement by other law enforcement officers in their
presence.”
Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir.
2014) (citation omitted).
As described above, the Complaint
fails to plausibly allege a violation of plaintiff’s rights by
any officer.
Accordingly, there is no claim available for
failure to intervene against any other officer.
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To state a claim against a municipality for the
unconstitutional actions of its employees, a plaintiff is
required to plead three elements:
“(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.”
Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007) (citation omitted).
For the
reasons set forth above, there was no denial of a constitutional
right.
Moreover, the plaintiff has failed to adequately allege
any policy or custom that caused his allegedly unlawful arrest.
Accordingly, the municipal liability claim must also be
dismissed.
CONCLUSION
The defendants’ January 26, 2018 motion to dismiss the
second amended complaint is granted.
The Clerk of Court is
directed to enter judgment for the defendants and to close this
case.
SO ORDERED:
Dated:
New York, New York
August 30, 2018
____________________________
DENISE COTE
United States District Judge
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