Abusikin v. City of New York et al
Filing
91
ORDER granting in part and denying in part 75 Motion for Summary Judgment. For the reasons stated above, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Specifically, the motion is GRANTED as to Plaintiff' ;s state false arrest claim, § 1983 malicious prosecution and excessive force claims, and claims against the Doe Defendants. Plaintiff's § 1983 false arrest claim and state malicious prosecution claim remain for trial. The Clerk of Court is directed to terminate the motion at ECF No. 75. SO ORDERED. (Signed by Judge Analisa Torres on 3/11/2021) (kv)
83:11–15, 98:3–7, 19–20, ECF No. 77-2.2 After he had parked but before he exited his vehicle,
an older white woman approached his car window and informed him that he could not park
there, because her husband, who was circling the block in his car, planned to take that spot. Id.
at 98:12–22, 101:6–8. Plaintiff refused, then exited the cab, ignored the woman’s continued
insistence that he move his car, and entered a restaurant. Id. at 102:6–11. The woman’s
husband—and their vehicle—were not present during that exchange. Id. at 103:19–21.
After approximately five minutes, Defendant Officer Mirjan Lolja and non-party Officer
Anthony Ippolito entered the restaurant, and asked Plaintiff to come outside. Id. at 105:2–8.
Plaintiff did so. At that point, the tableau consisted of Plaintiff, with his cab parked legally, the
woman and a white man Plaintiff believed to be her husband (together, the “Complainants”),
with their car parked illegally in the street impeding traffic, and the police officers and their
vehicle. Id. at 106:21–107:10. Lolja twice asked Plaintiff to move his car. Id. at 112:1–9.
Plaintiff refused, instead inquiring what crime he had committed that required moving his car,
and asking to speak to the officers’ supervisor. Id. at 112:15–17, 115:6–8. Lolja then arrested
Plaintiff for obstructing governmental administration, disruptive conduct, and harassment in the
second degree, pushed Plaintiff against a car, and handcuffed him. Id. at 115:17–19; Arrest
Report, ECF No. 77-6. Plaintiff did not resist the handcuffing. Abusikin Dep. at 118:20–21.
Defendants disagree with Plaintiff’s version of the events. According to Defendants,
Lolja and Ippolito were patrolling in a police vehicle on the evening of December 11, 2016. 56.1
Stmt. ¶¶ 1–2, ECF No. 76. As they drove down East 116th Street, they observed a yellow taxi
cab occupying two lanes of traffic and blocking westbound traffic. Id. ¶¶ 8–9. A man and
Plaintiff’s deposition is filed as two documents with continuing pagination, at ECF Nos. 77-2 (pages 1–100) and
77-3 (pages 101–267). For ease of reference, the Court will refer to both documents as the Abusikin Deposition.
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woman waved down the patrol car. Id. ¶ 11. The officers observed Plaintiff yelling at the
Complainants. Id. ¶ 14. Plaintiff’s cab was positioned so as to prevent the Complainants from
parking their car. Lolja Dep. at 97:14–18, ECF No. 77-4. The Complainants informed the
officers that Plaintiff was using his car to block theirs. 56.1 Stmt. ¶ 15. They told the officers
Plaintiff was threatening them and they felt afraid. Id. ¶ 16.
Lolja asked Plaintiff to move his car multiple times, and Plaintiff refused. Id. ¶¶ 18–21.
Plaintiff began “yelling and screaming,” causing a crowd to form. Id. ¶¶ 22–23. Lolja then
arrested Plaintiff for harassment, obstructing governmental administration, and disorderly
conduct. Id. ¶ 24. Plaintiff physically attempted to avoid being handcuffed, so Lolja placed him
against the car to handcuff him, with Ippolito assisting in the handcuffing. Id. ¶ 26–28.
The parties agree that after Plaintiff’s arrest he was taken back to the 25th police precinct
for processing. Id. ¶ 29; Pl. 56.1 Counterstmt. ¶ 29, ECF No. 83. Ultimately, Lolja signed a
criminal complaint charging Plaintiff with disorderly conduct in violation of N.Y. Penal Law
§ 250.20(5), and he was arraigned on that charge. 56.1 Stmt. ¶ 36; Pl. 56.1 Counterstmt. ¶ 36.
Plaintiff was later released on his own recognizance. 56.1 Stmt. ¶ 37; Pl. 56.1 Counterstmt. ¶ 37.
During the course of the prosecution of his case, Plaintiff made multiple court appearances. Pl.
56.1 Counterstmt. ¶ 38. The parties disagree over whether Lolja testified. 56.1 Stmt. ¶ 39; Pl.
56.1 Counterstmt. ¶ 39; Abusikin Dep. at 161:22–24. On March 6, 2017, the matter was
dismissed. 56.1 Stmt. ¶ 40; Certificate of Disposition, ECF No. 77-10.
On March 9, 2017, Plaintiff filed a notice of claim against the City. 56.1 Stmt. ¶ 41.
Plaintiff first filed a complaint in this matter on May 23, 2018, but it was marked as deficient by
the Clerk of Court. 5/23/2018 Docket Entry. Plaintiff re-filed his complaint on June 8, 2018,
alleging claims against Defendants under 42 U.S.C. § 1983 for false arrest and imprisonment,
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malicious prosecution, and excessive force, and under state law for false arrest and malicious
prosecution. Compl.
DISCUSSION
Defendants move for summary judgment on all claims. For the reasons stated below, this
motion is GRANTED in part and DENIED in part.
I.
Legal Standard
Summary judgment is appropriate when the record shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–26 (1986). A genuine dispute exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The moving party initially bears the burden of informing the Court of the absence of a
genuine dispute of material fact by citing particular evidence in the record. Fed. R. Civ. P.
56(c)(1); Celotex, 477 U.S. at 323–24; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir.
2002). If the nonmoving party has the ultimate burden of proof on specific issues at trial, the
movant may also satisfy its own summary judgment burden by demonstrating that the adverse
party cannot produce admissible evidence to support an issue of fact. Celotex, 477 U.S. at
322–23; PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). If the
moving party meets its initial burden, the burden then shifts to the opposing party to establish a
genuine dispute of material fact. Beard v. Banks, 548 U.S. 521, 529 (2006); PepsiCo, 315 F.3d
at 105. In deciding the motion, the Court views the record in the light most favorable to the
nonmoving party. Koch, 287 F.3d at 165.
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II.
Statute of Limitations
Plaintiff’s state law false arrest claim is untimely. Under the relevant statute of
limitations, a plaintiff asserting state tort law claims against a municipal entity or its employees
acting in the scope of employment must (1) file a notice of claim within ninety days after the
incident giving rise to the claim, and (2) commence the action within a year and ninety days from
the date on which the cause of action accrues. N.Y. Gen. Mun. Law §§ 50-e; 50-i (2001). An
action is commenced by filing the complaint with the court. Sanchez v. Ehrlich, No. 16 Civ.
8677, 2018 WL 2084147, at *4 (S.D.N.Y. Mar. 29, 2018). The parties agree that Plaintiff’s state
false arrest claim must have been filed by March 11, 2018, and the state malicious prosecution
claim by June 4, 2018. Def. Mem. at 21, ECF No. 78; Pl. Opp’n at 13–14, ECF No. 82.
Plaintiff first filed his complaint on May 23, 2018. 5/23/2018 Docket Entry. That filing
was deemed deficient by the Clerk of Court for lack of a proper signature. 5/24/2018 Docket
Entry. Plaintiff filed a corrected complaint on June 8, 2018. ECF No. 8. Defendants argue that
because Plaintiff did not file a properly signed complaint until June 8, 2018, the complaint was
untimely as to both state law claims. Def. Mem. at 21–22.
“A complaint is deemed filed when the Clerk of Court receives it.” Kalican v. Dzurenda,
583 F. App’x 21, 23 (2d Cir. 2014). However, “‘[t]he clerk must not refuse to file a paper solely
because it is not in the form prescribed by [the Federal Rules of Civil Procedure] or by a local
rule or practice.’” Id. (quoting Fed. R. Civ. P. 5(d)(4)). Accordingly, courts regularly deem
timely complaints filed before the statute of limitations expires but rejected by the Clerk of Court
due to a lack of proper signature, and then promptly refiled correctly. See, e.g., Catozella v. PLS
Rest. Inc., No. 18 Civ. 6660, 2019 WL 1897617, at *1 n.1 (S.D.N.Y. Apr. 26, 2019); Johnson v.
Colvin, No. 15 Civ. 3853, 2015 WL 7078648, at *1 (S.D.N.Y. Nov. 13, 2015). Plaintiff refiled
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the complaint approximately two weeks after being notified of its deficiency, which other courts
have considered prompt correction. Rodriguez v. City of New York, No. 10 Civ. 1849, 2011 WL
4344057, at *2–3 (S.D.N.Y. Sept. 7, 2011) (concluding a complaint was promptly corrected that
was originally filed on February 16, 2010, and corrected on March 9, 2010). Therefore, despite
the infirmity in the original complaint, for purposes of the statute of limitations, the Court
considers the complaint to have been filed on May 23, 2018, before the June 4, 2018 deadline for
the filing of the malicious prosecution claim.
May 23, 2018, is, however, after the March 11, 2018 deadline for the statute of limitations
for the state false arrest claim. Plaintiff implicitly concedes this point by asserting only that his
state law claim for malicious prosecution was timely. Pl. Opp’n at 13. Therefore, the state false
arrest claim is time-barred.
Accordingly, Defendants’ motion for summary judgement is GRANTED as to the state
false arrest claim.
III.
False Arrest
Plaintiff has alleged that he was falsely arrested in violation of his constitutional rights
under § 1983. “To establish the requisite elements of a false arrest, a plaintiff must show that:
(1) the defendants intended to confine [him]; (2) [he] was conscious of [his] confinement; (3)
[he] did not consent to be confined; and (4) the confinement was not otherwise privileged.”
Pace v. Town of Southampton, 678 F. Supp. 2d 79, 84 (E.D.N.Y. 2010) (citations omitted). The
fourth element cannot be established where the arrest is based on probable cause. Id.; see also
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The existence of probable cause . . . is a
complete defense to an action for false arrest” (citation and internal quotation marks omitted)).
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The only element presently in dispute is the fourth. Thus, “[t]he Court’s task, at this
stage, is to determine if there are triable issues of fact concerning whether [Lolja] lacked
probable cause to arrest [Plaintiff].” Pace, 678 F. Supp. 2d at 85; Murphy v. Lynn, 118 F.3d 938,
947 (2d Cir. 1997) (“[W]here the question of whether an arresting officer had probable cause is
predominantly factual in nature, as where there is a dispute as to the pertinent events, the
existence vel non of probable cause is to be decided by the jury.”).
“[P]robable 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.” Weyant, 101 F.3d at 852. Defendants argue that Lolja had probable cause to arrest
Plaintiff under N.Y. Penal Law §§ 240.20, 195.05, 240.15, and 120.26. Def. Mem. at 7.
Probable cause need only exist under one of the statutes to create a defense to the false arrest
claim. Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“[A] claim for false arrest turns only
on whether probable cause existed to arrest a defendant, and . . . it is not relevant whether
probable cause existed with respect to each individual charge, or, indeed, any charge actually
invoked by the arresting officer at the time of arrest.”).
A.
Disorderly Conduct
Defendants contend that Lolja had probable cause to arrest Plaintiff under N.Y. Penal
Law § 240.20(1), for “engag[ing] in fighting or in violent, tumultuous or threatening behavior,”
§ 240.20(2), for “mak[ing] unreasonable noise,” or § 240.20(5), for “obstruct[ing] vehicular or
pedestrian traffic.” N.Y. Penal Law § 240.20; Def. Mem. at 7. Defendants base this claim on
their assertion that Plaintiff’s cab was blocking traffic, and Plaintiff refused to move the vehicle
after being instructed to do so multiple times. 56.1 Stmt. ¶¶ 20–23.
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The facts underlying probable cause based on those statutes are, however, in stark
dispute. To establish probable cause under § 240.20(5), the Second Circuit has required “a
showing that the putative offender was ‘actually and immediately blocking’ the pedestrian or
vehicular traffic in question.” Holmes v. City of New York, No. 14 Civ. 5253, 2016 WL 915332,
at *3 (S.D.N.Y. Mar. 4, 2016) (quoting Zellner v. Summerlin, 494 F.3d 344, 372 (2d Cir. 2007)).
Defendants claim that Plaintiff’s taxi was impeding westbound traffic on 116th Street, 56.1 Stmt.
¶¶ 9–10, and Plaintiff claims that he was legally parked, Pl. 56.1 Counterstmt. ¶¶ 9–10; Abusikin
Dep. at 98:3–7. If a jury were to credit Plaintiff, traffic would not have been blocked, and,
therefore, there would be no probable cause for Plaintiff’s arrest under § 240.20(5).
Moreover, Plaintiff contests Defendants’ claim that Plaintiff “began yelling and
screaming” in response to Lolja’s instructions to move his car. Pl. 56.1 Counterstmt. ¶ 22,
Abusikin Dep. at 115:3–19. Again, if a jury were to credit Plaintiff’s account, there would be no
behavior or noise to underlie an arrest under §§ 240.20(1) or (2). Because these material facts
are in dispute, the Court cannot as a matter of law find probable cause for an arrest for disorderly
conduct.
B.
Obstructing Governmental Administration
Defendants also argue that there was probable cause to arrest Plaintiff for obstructing
governmental administration in violation of N.Y. Penal Law § 195.05. Def. Mem. at 7. The
elements of this crime are that: “(1) a public servant is performing an official function; (2) the
individual prevents or attempts to prevent the performance of the official function by interfering
with it; and (3) the individual does so intentionally.” Kass v. City of New York, 864 F.3d 200,
207 (2d Cir. 2017). The interference must be through one of three methods: “(1) intimidation,
(2) physical force or interference, or (3) any independently unlawful act.” Uzoukwu v. City of
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New York, 805 F.3d 409, 414 (2d Cir. 2015) (quoting People v. Case, 365 N.E.2d 872 (N.Y.
1977)). If the second method is invoked, the interference must have a “physical” aspect and
cannot “consist solely of verbal statements,” though “an officer may consider both words and
deeds in determining whether the individual’s conduct is sufficiently obstructive to justify an
arrest.” Kass, 864 F.3d at 209. The “insufficiency of verbal interference to give rise to probable
cause to arrest for obstruction of governmental administration is particularly apparent where . . .
the individual has not become aggressive or disorderly.” McKnight v. Vasile, No. 11 Civ. 6328P,
2017 WL 1176051, at *18 (W.D.N.Y. Mar. 30, 2017).
For instance, merely refusing to respond to an officer’s questions does not satisfy this
requirement. Uzoukwu, 805 F.3d at 415; see also Holmes v. City of New York, No. 14 Civ. 5253,
2016 WL 915332, at *1, 4 (S.D.N.Y. Mar. 4, 2016) (finding no obstruction where the plaintiff
did not comply with police instructions to move from a roadway and continued filming an
arrest). Moreover, “[f]ailing to obey a police order, in and of itself, does not constitute a
circumstance that gives rise to probable cause for an arrest for obstructing government
administration.” Dowling v. City of New York, No. 11 Civ. 4954, 2013 WL 5502867, at *4
(E.D.N.Y. Sept. 30, 2013). Failure to obey an order in a way that “creates some other hazard or
interference,” however, can create probable cause. Id.
Defendants argue that there was probable cause for Plaintiff’s arrest because he refused
to move his vehicle multiple times, disobeying Lolja’s orders. Def. Mem. at 8. That refusal only
rises to obstruction of governmental administration if it was more than mere verbal interference,
or created additional hazards. Dowling, 2013 WL 5502867, at *4. Both of these issues are in
dispute. Defendants claim that Plaintiff yelled and argued, caused a crowd to gather around him,
and refused to move his car, preventing Lolja and Ippolito from doing their jobs and creating an
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ongoing hazard. 56.1 Stmt. ¶¶ 22–23; Def. Mem. at 8. Plaintiff states that he merely verbally
asked Lolja what crime he had committed, and to speak to a supervisor. Pl. 56.1 Counterstmt.
¶¶ 21–22; Abusikin Dep. at 115:3–19. Plaintiff further states that his car was not blocking
traffic. Pl. 56.1 Countersmt. ¶ 18; Abusikin Dep. at 98:6–7. Moreover, although Plaintiff
admitted that some individuals began to film the encounter, and others were remarking on it,
there is no indication that these individuals impeded the police officers from conducting the
arrest. Abusikin Dep. at 127:15–22, 131:18–132:12. Because there are triable issues of fact, the
Court cannot determine whether there was probable cause for arrest under § 195.05.
C.
Menacing
Third, Defendants argue that Lolja had probable cause to arrest Plaintiff for menacing in
the third degree under N.Y. Penal Law § 120.15. Def. Mem. at 7. Menacing has two elements:
(i) physical menace and (ii) fear of imminent harm. Ackerson v. City of White Plains, 702 F.3d
15, 20 (2d Cir. 2012), as amended (Dec. 4, 2012). Therefore, “[o]ral statements alone do not
constitute a physical menace and must be accompanied by a physical action beyond approaching
someone to talk with them.” Id. (holding there was no probable cause for menacing where an
individual approached a woman, came within a few feet of her, and asked her questions, where
“the accusatory instrument did not contain any accusations amounting to a physical menace”
(emphasis omitted)).
The menacing charge is not based on Defendants’ observations. Rather, it is grounded in
the statements of the Complainants, who told Lolja and Ippolito that “[P]laintiff was threatening
them and that she was afraid.” 56.1 Stmt. ¶ 16. Ippolito observed that the woman stated that
“[Plaintiff] was very aggressive. In the way he approached them he was throwing his hands in
the air and yelling.” Ippolito Dep. at 36:24–37:3, ECF No. 77-5. Plaintiff admits he did not hear
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what the Complainants said to the officers, and that he cannot, therefore, challenge the content of
their statements. Pl. 56.1 Counterstmt. ¶ 12.3
“An arresting officer advised of a crime by a person who claims to be the victim, and
who has signed a complaint or information charging someone with the crime, has probable cause
to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.” Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). In Singer, the Second Circuit articulated
two important caveats: this reliance is particularly appropriate where the complainant has signed
a complaint or information, and there must be no circumstances that raise doubts as to the
victim’s veracity.
The signature caveat is important because a signature on an accusatory instrument means
that the facts, “if fabricated[,] would subject [the complainant] to criminal liability” and therefore
“rigorous scrutiny of the basis of [the complainant’s] knowledge [is] unnecessary.” Caldarola v.
Calabrese, 298 F.3d 156, 163 (2d Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 234
(1983)); see also Stansbury v. Wertman, 721 F.3d 84, 90–91 (2d Cir. 2013); Lee v. Sandberg,
136 F.3d 94, 103 (2d Cir. 1997).
The second caveat—the existence of circumstances that raise doubts as to a
complainant’s veracity—is important because “[s]ome people have axes to grind,” and so are not
strictly truthful. Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998). Courts,
therefore, have found reliance on a victim’s statements made in the heat of the moment
reasonable where outside evidence supported the truth of the victim’s accusation; for instance,
Contrary to Plaintiff’s contentions, Pl. Opp’n at 12–13, the Complainants’ statements are not inadmissible hearsay.
The Court is not relying on them for the truth of the Complainants’ assertions—whether Plaintiff actually yelled and
threatened the Complainants—but rather for the effect the words had on the officers in determining whether they
were entitled to rely on the Complainants’ report of the events to establish probable cause. Williams v. City of New
York, No. 10 Civ. 2676, 2012 WL 511533, at *3 n.2 (E.D.N.Y. Feb. 15, 2012).
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where an individual was accused of assault, the victim was visibly injured, and the individual did
not deny injuring the victim, but argued that it was in self-defense. Ziming Shen v. City of New
York, 725 F. App’x 7, 13 (2d Cir. 2018), cert. denied sub nom. Ziming Shen v. City of New York,
139 S. Ct. 78 (2018). Where there are circumstances that raise doubts as to the victim’s veracity,
however, the officer is not entitled to rely on the statements. Weaver v. City of New York, No. 13
Civ. 20, 2014 WL 950041, at *5 (E.D.N.Y. Mar. 11, 2014).
There is a question of fact as to whether the Complainants’ statements, if true, gave rise
to probable cause for menacing. Merely yelling at an individual, without an overt physical
threatening act, does not support a charge of menacing, even if it creates a sense of fear. People
v. Sylla, 792 N.Y.S.2d 764, 765 (N.Y. App. Div. 2005) (finding no menacing where “defendant
stood outside of complainant’s home, confronted her and yelled, cursed and threatened
complainant.”). Even under Defendants’ account, at no point did the Complainants state that
there was a physical threatening act outside of Plaintiff waving his hands, even if they felt
threatened by Plaintiff’s words. Cf. Santagata v. Diaz, No. 17 Civ. 3053, 2020 WL 1536347, at
*5 (E.D.N.Y. Mar. 30, 2020) (finding menacing where an individual advanced on the
complainant with a knife and threatened to stab him). A reasonable jury could find that the
Complainants’ statements to the officers were insufficient to justify a finding of probable cause.
Moreover, there are facts in dispute which, if resolved in Plaintiff’s favor, would pose the
question of whether there were circumstances that would raise doubts as to the Complainants’
veracity and Lolja’s reasonableness in relying on the Complainant’s statements. For instance,
the Complainants did not sign an accusatory instrument that would have subjected them to
criminal liability for perjury; in fact, Lolja was told they cannot be located. 56.1 Stmt. ¶ 35;
Lolja Dep. at 120:2–6.
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And there are factual disputes regarding the circumstances around the Complainants’
statements. If Plaintiff’s account is accepted, the officers would have encountered the
Complainants on the street, with Plaintiff’s car legally parked, Plaintiff not present, and the
Complainants’ car impeding traffic, and been faced with the Complainants’ statements that they
had been in the process of parking when Plaintiff blocked them with his car, emerged from his
car, started yelling that they could not park there, and then left the scene. Abusikin Dep. at
106:22–107:10; Lolja Dep. at 58:9–17. In those circumstances—the Complainants claiming that
Plaintiff had blocked them from finishing parking and had threatened them to prevent their
parking in what was then an empty spot, despite Plaintiff’s car being legally parked in the spot at
issue and the Complainants’ car blocking traffic—without other indicia of the truth of the
Complainants’ veracity, the Court cannot say reliance on the Complainants’ statements would
have been reasonable as a matter of law.
Given the factual questions surrounding both whether the Complainants’ statements
would give rise to probable cause for menacing, and if it was reasonable for Lolja to rely on
them, the Court cannot conclude that there was probable cause to arrest Plaintiff for menacing.
D.
Harassment
Finally, Defendants argue that there was probable cause to arrest Plaintiff for harassment
in the second degree under N.Y. Penal Law § 240.26. Def. Mem. at 7. An individual commits
harassment in the second degree when, “with intent to harass, annoy or alarm another person . . .
[he] strikes, shoves, kicks or otherwise subjects such other person to physical contact, or
attempts or threatens to do the same . . .” N.Y. Penal Law § 240.26. Like with menacing, there
is a “physical contact element” to harassment. People v. Canjura, 2 N.Y.S.3d 724, 727 (N.Y.
App. Div. 2014). For harassment to be charged, there must be “genuine threats.” Rafael F. v.
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Pedro Pablo N., 965 N.Y.S.2d 718, 719 (N.Y. App. Div. 2013) (holding there was no
harassment based on only isolated incidents of threats in the course of an ongoing dispute); see
also Teanna P. v. David M., 21 N.Y.S.3d 622 (N.Y. App. Div. 2015) (finding insufficient
allegations for harassment where an individual “stared at [a woman] in a way that made her feel
scared and intimidated . . . [and] came to a store where she was, walked up to within two feet of
her and called her a derogatory name.”). These threats must be more than a “crude outburst” or
bravado. People v. Dietze, 549 N.E.2d 1166, 1169–70 (N.Y. 1989) (reversing a harassment
charge where “[t]here is nothing in the record demonstrating that defendant’s statement that she
would ‘beat the crap out of [complainant] some day or night in the street’ was either serious,
should reasonably have been taken to be serious, or was confirmed by other words or acts
showing that it was anything more than a crude outburst”); People v. Marom, 114 N.Y.S.3d 812
(N.Y. App. Div. 2019).
Defendants claim that Lolja had probable cause to arrest Plaintiff for harassment based
on the Complainants’ statements that Plaintiff had threatened them and they were afraid. Def.
Mem. at 8. As with menacing, there is an initial question of whether the Complainants’
statements, without more, would be sufficient proof for a charge of harassment. Though the
Complainants said that they felt threatened and feared for their safety, if those emotions were
triggered solely by Plaintiff’s verbal outburst, without any evidence of an actual threat of
physical violence, Plaintiff’s statements are insufficient to support probable cause for a
harassment charge. Cf. Marom, 114 N.Y.S.3d at 812 (holding defendant’s statement of “I will
kill you,” without more evidence of a “clear and present danger,” insufficient to justify a charge
of harassment); Canjura, 2 N.Y.S.3d at 727 (holding a verbal threat of “in substance F . . . you,
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I’ll f . . . you up . . . , standing alone, was not sufficient to show the physical contact element of
harassment in the second degree”).
Like the menacing charge, there is the question of whether it was reasonable for Lolja to
rely on the Complainants’ statements: material facts in dispute underly that reliance. Should
Plaintiff prove his version of the facts at trial, a jury may conclude that a reasonable officer
would not have relied on the Complainants’ statements. The Court, therefore, cannot find that,
as a matter of law, there was probable cause to arrest Plaintiff for harassment.
Accordingly, Defendants’ motion for summary judgment on the false arrest claim is
DENIED.
IV.
Malicious Prosecution
Plaintiff brings claims of malicious prosecution under state and federal law, and
Defendants move for summary judgment on both. The elements of state and federal claims of
malicious prosecution are: “(1) the initiation of a proceeding, (2) its termination favorably to
plaintiff, (3) lack of probable cause, and (4) malice.” Savino v. City of New York, 331 F.3d 63,
72 (2d Cir. 2003) (citation and internal quotation marks omitted). Defendants argue that Plaintiff
has failed to establish the first, second, and third elements. Def. Mem. at 9–14. The Court
concludes that Plaintiff’s federal claim fails due to his failure to establish favorable termination,
but Plaintiff may proceed on his state claim.
A.
Initiation
The Second Circuit has held that “[i]nitiation in [the context of malicious prosecution] is
a term of art,” involving more than merely reporting a crime and giving testimony; “it must be
shown that defendant played an active role in the prosecution, such as giving advice and
encouragement or importuning the authorities to act.” Rohman v. New York City Transit Auth.,
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215 F.3d 208, 217 (2d Cir. 2000) (quotation marks and citation omitted). Defendants argue that
Lolja did not initiate the charges against Plaintiff, because it was the District Attorney, and not
Lolja, who ultimately decided on the charges. Def. Mem. at 11–12.
“[T]here is a presumption that a prosecutor exercises independent judgment in deciding
whether to initiate and continue a criminal proceeding.” Espada v. Schneider, 522 F. Supp. 2d
544, 553 (S.D.N.Y. 2007) (internal quotation marks and citation omitted). In the case of police
officers, however, that presumption is overcome “where the defendant-officer brought formal
charges and had the person arraigned, filled out complaining and corroborating affidavits, swore
to and signed a felony complaint, or created false information and forwarded it to prosecutors.”
Cambisaca v. Ruhe, No. 17 Civ. 87, 2019 WL 2866072, at *6 (S.D.N.Y. July 3, 2019) (quoting
Alcantara v. City of New York, 646 F. Supp. 2d 449, 457–58 (S.D.N.Y. 2009); Cameron v. City
of New York, 598 F.3d 50, 63 (2d Cir. 2010) (“[P]olice officers can ‘initiate’ prosecution by
filing charges or other accusatory instruments.”).
Here, Lolja signed the criminal complaint against Plaintiff, using information Lolja
allegedly observed. ECF No. 77-8. Courts have found signing a criminal complaint based on
the officer’s own knowledge sufficient to conclude that a police officer defendant initiated the
proceedings. Cameron, 598 F.3d at 63 (“As a matter of law, [the police officers] filing of the
Criminal Court Complaint “initiated” the prosecution against [the plaintiff].”); McKenzie v. City
of New York, No. 17 Civ. 4899, 2019 WL 3288267, at *14 (S.D.N.Y. July 22, 2019); cf. Brown
v. City of New York, No. 12 Civ. 3146, 2014 WL 5089748, at *7 (S.D.N.Y. Sept. 30, 2014)
(concluding the officer did not initiate a prosecution where he signed a criminal information but
“the information regarding Plaintiff’s alleged activities was obtained from the two complaining
16
victims”). Lolja also had Plaintiff arraigned on the charges in the criminal complaint. 56.1 Stmt.
¶ 36.
Moreover, the criminal complaint signed by Lolja alleges that he “observed [Plaintiff’s]
car was partially blocking vehicular traffic and blocking another vehicle from accessing a
parking space.” ECF No. 77-8. If Plaintiff’s story is credited, this constitutes false information,
which was “created . . . and forwarded . . . to the prosecutor[].” Cambisaca, 2019 WL 2866072,
at *6.
Accordingly, a reasonable jury could find that Lolja initiated the charges against Plaintiff.
See Marshall v. Port Auth. of New York & New Jersey, No. 19 Civ. 2168, 2020 WL 5633155, at
*6 (S.D.N.Y. Sept. 21, 2020).
B.
Favorable Termination
Federal and state standards differ on what a plaintiff must show to prove a favorable
termination. For a federal malicious prosecution claim to have terminated favorably to the
plaintiff, the plaintiff must show that “the underlying criminal proceeding ended in a manner that
affirmatively indicates his innocence.” Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir.
2018). It cannot “le[ave] the question of question of guilt or innocence unanswered.” Id. at 28.
However, “neither an acquittal nor a finding of actual innocence by clear and convincing
evidence is necessary.” Hincapie v. City of New York, 434 F. Supp. 3d 61, 71–72 (S.D.N.Y.
2020). Rather, “termination must be measured in objective terms by examining the totality of
the circumstances.” Id. (internal quotation marks and citation omitted).
Here, Plaintiff’s case was terminated on March 6, 2017, when it was “dismissed and
sealed,” with the sealing done “pursuant to Section 160.50 of the CPL.” Rule 56.1 Stmt. ¶ 40;
Certificate of Disposition. No further admissible evidence explains the reason for the dismissal.
17
Though a dismissal does not foreclose a finding of favorable termination under federal
law, it does not per se demonstrate favorable termination. For instance, the Second Circuit
differentiated between a dismissal where the prosecutor determined that he could not prove the
charges beyond a reasonable doubt, which is sufficient for a malicious prosecution claim, and a
dismissal where the prosecutor dismissed “in the interest of judicial economy,” which is not.
Olaizola v. Foley, 797 F. App’x 623, 625 (2d Cir. 2020). A plaintiff must give a specific reason
for the dismissal that affirmatively demonstrates his innocence. Thompson v. Clark, 794 F.
App’x 140, 141–42 (2d Cir. 2020) (holding a termination was insufficient where neither the
court nor the prosecutor offered reasons for the dismissal and the district court had found
“substantial” evidence the case had been dismissed for reasons other than the merits); see also
Foy v. City of New York, No. 7 Civ. 406, 2019 WL 3717317, at *7 (E.D.N.Y. Aug. 7, 2019)
(finding insufficient a termination where the plaintiff did not know why her charges were
dismissed).
Section 160.50 mandates a criminal case be terminated and sealed when it is dismissed
for certain enumerated reasons. N.Y. Crim. Proc. Law § 160.50. Federal courts have rejected
the contention that sealing under § 160.50 affirmatively indicates a plaintiff’s innocence. See
Falls v. Rivera, No. 19 Civ. 3525, 2019 WL 5260720, at *2 (S.D.N.Y. Oct. 15, 2019).
Moreover, § 160.50 allows for termination and sealing based on dismissal on grounds that do not
affirmatively indicate innocence, such as jurisdiction. N.Y. Crim. Proc. Law § 160.50(3)(b).
Without other evidence explaining why Plaintiff’s case was dismissed, therefore, the totality of
the circumstances does not indicate that the termination under § 160.50 affirmatively indicates
Plaintiff’s innocence; accordingly, Plaintiff’s federal malicious prosecution claim fails.
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Under New York state law, however, the standard for favorable termination is lower:
“any termination of a criminal prosecution, such that the criminal charges may not be brought
again, qualifies as a favorable termination, so long as the circumstances surrounding the
termination are not inconsistent with the innocence of the accused.” Cantalino v. Danner, 754
N.E.2d 164, 167 (N.Y. 2001). A voluntary dismissal without prejudice qualifies as a favorable
termination where it indicates “formal abandonment of the proceedings.” Smith-Hunter v.
Harvey, 734 N.E.2d 750, 754 (N.Y. 2000).
Plaintiff’s criminal case was dismissed on March 6, 2017. It concerned acts Plaintiff
allegedly committed on December 11, 2016. There is a one-year statute of limitations for
disorderly conduct—the charge on which he was arraigned. N.Y. Crim. Proc. Law
§ 30.10(2)(d). By the time Plaintiff’s filed his complaint in this action on May 23, 2018, it was
clear that the March 6, 2017 dismissal of the criminal case constituted a formal abandonment of
the charges and they could not be reinstated.
Courts have split, however, on whether a showing of termination and sealing under
§ 160.50 is sufficient for a plaintiff to carry his burden of demonstrating favorable termination
under New York state law. Compare Stevens v. City of New York, No. 10 Civ. 2172, 2012 WL
3000677, at *5 (S.D.N.Y. July 17, 2012), on reconsideration in part, No. 10 Civ. 2172, 2012
WL 5862659 (S.D.N.Y. Nov. 14, 2012) (“[T]here is also no dispute that the criminal proceeding
. . . terminated in plaintiff’s favor: the Bronx County District Attorney dismissed all criminal
charges against plaintiff on June 30, 2010, and the trial court sealed plaintiff’s case pursuant to
Section 160.50 of the CPL” (internal quotation marks and citations omitted)), and Rohrs v.
Rohrs, 793 N.Y.S.2d 532, 534 (N.Y. App. Div. 2005) (“The dismissal of the pending charges
against the plaintiff in this case pursuant to CPL 160.50 constituted a favorable termination as a
19
matter of law.”), with Nicaj v. City of New York, 282 F. Supp. 3d 708, 715 (S.D.N.Y. 2017)
(“Proof that the case was dismissed [based on a certificate of disposition indicating sealing under
§ 160.50], without establishing the basis on which it was dismissed, is insufficient to establish
that the case was terminated in favor of the accused”), and Dubrovsky v. Zaicher, 906 N.Y.S.2d
779 (N.Y. App. Div. 2009) (“[T]he fact that a CPL 160.50 order was issued does not
conclusively establish that the termination was in plaintiff’s favor as such an order can issue for
reasons that are not inherently consistent with the innocence of the accused”); cf. Fate v.
Charles, 24 F. Supp. 3d 337, 342–43 (S.D.N.Y. 2014) (holding there was no favorable
termination where the certificate of disposition did not indicate termination and sealing pursuant
to § 160.50).
This Court chooses to follow Stevens and holds that a termination and sealing pursuant to
§ 160.50, with no evidence indicating a dismissal inconsistent with innocence, constitutes
favorable termination under state law.
Initially, both Nicaj and Fate apply a since-overruled higher standard for favorable
termination. The courts in both cases, as well as Defendants, cite Russo v. State of N.Y., 672
F.2d 1014 (2d Cir. 1982), decision modified on reh’g sub nom. Russo v. State of New York, 721
F.2d 410 (2d Cir. 1983), for the proposition that Plaintiff must affirmatively demonstrate
evidence of the circumstances under which the criminal proceeding was terminated. Fate, 24 F.
Supp. 3d at 342; Nicaj, 282 F. Supp. 3d at 715 (citing Fate, 24 F. Supp. 3d at 342–3); Def. Mem.
at 14; Def. Reply at 7, ECF No. 84. The Second Circuit in Russo, however, was discussing the
requirements of the older state rule requiring the plaintiff to demonstrate that a dismissal
“impl(ies) a lack of reasonable grounds for the prosecution.” Russo, 672 F.2d at 1019 (quoting
Loeb v. Teitelbaum, 432 N.Y.S.2d 487, 494 (N.Y. App. Div. 1980) (alteration in original)). As
20
Judge Rosenblatt made clear in his concurrence, the New York Court of Appeals overruled that
test in favor of the lower “not inconsistent with innocence” standard in Smith-Hunter. SmithHunter, 734 N.E.2d at 756–57 (Rosenblatt, J., concurring); see Rothstein v. Carriere, 373 F.3d
275, 286 (2d Cir. 2004) (“New York law does not require a malicious prosecution plaintiff to
prove her innocence, or even that the termination of the criminal proceeding was indicative of
innocence. Rather, the plaintiff’s burden is to demonstrate a final termination that is not
inconsistent with innocence.”). The Second Circuit has not spoken to the evidentiary
requirements of the current standard.
The Court thus turns to the language of the statute. Section 160.50’s title indicates it is
an “[o]rder upon termination of criminal action in favor of the accused.” N.Y. Crim. Proc. Law
§ 160.50. Although it allows for dismissal for reasons other than innocence, it also allows for
termination due to dismissal for many reasons that either indicate innocence or do not indicate a
lack of innocence, and thus a termination and sealing under § 160.50 is not inherently
inconsistent with innocence. Id.; Cantalino, 754 N.E.2d at 167 (requiring the termination be
“not inconsistent” with innocence, rather than consistent with innocence).
Moreover, the New York Court of Appeals in Smith-Hunter indicated that, as a matter of
course, any final termination of a criminal proceeding “end[ing] in failure” constitutes favorable
termination for a malicious prosecution claim. Smith-Hunter, 734 N.E.2d at 753. A termination
inconsistent with innocence is the exception to that general rule. Id. Therefore, evidence of a
dismissal inconsistent with innocence gives rise to the exception to the final termination rule; a
lack of evidence of the reason for termination does not disturb the general rule.
The Court of Appeals also expressed concern that raising the standard for favorable
termination would require criminal defendants to continue a case, thus “incurring additional
21
financial and emotional costs[,] as a prerequisite to recovery for malicious prosecution.” Id. at
755. Following the Court of Appeals’ reasoning, requiring plaintiffs to demonstrate more than
termination and sealing under § 160.50 could foreclose a claim to too many potential litigants.
Plaintiff’s situation is not uncommon: the sole admissible evidence available regarding the
dismissal of his case is the certificate of disposition, which does not offer an explanation of the
dismissal. Certificate of Disposition; see, e.g., Fate, 24 F. Supp. 3d at 342–43; Stevens, 10 Civ.
2172, ECF No. 34 ¶ 66. If the dismissal of a plaintiff’s case was not on the record or the district
attorney who prosecuted the case is unable to testify, then a malicious prosecution plaintiff may
not have access to any other evidence. For instance, a plaintiff may only know of the reason for
dismissal because they were informed of it by a lawyer or the district attorney, statements which
amount to inadmissible hearsay. Requiring more than a notice of termination and sealing under
§ 160.50 would allow a defendant who is maliciously prosecuting an individual to bring
wrongful charges, creating both emotional and financial costs for the individual, and then
dismiss the case in favor of the plaintiff and fully complete the certificate of disposition, but still
be protected from a malicious prosecution suit due to a lack of evidence regarding why the case
was dismissed.
Although a plaintiff seeking to prove a malicious prosecution claim has a “heavy
burden,” Smith-Harvey, 734 N.E.2d at 752, it cannot be foreclosed merely because the state
certificate of disposition form does not offer a reason for the dismissal of the criminal action.
The Court concludes, therefore, that evidence of a dismissal, termination, and sealing pursuant to
§ 160.50, without evidence indicating a dismissal for a reason inconsistent with innocence,
constitutes a favorable termination under state law. Thus, the Court holds that Plaintiff’s
22
criminal case was favorably terminated and Plaintiff may pursue his state malicious prosecution
claim.
C.
Lack of Probable Cause and Malice
The final two elements of a malicious prosecution claim are a lack of probable cause and
malice. Where there is an issue of material fact as to probable cause, “the element of malice also
becomes an issue of material fact as well,” because “[a] lack of probable cause generally creates
an inference of malice.” Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003). The Court
has concluded that there is an issue of material fact regarding probable cause, see supra § III.A.,
and thus there is similarly an issue of material fact regarding malice.
Accordingly, Defendants’ motion for summary judgment is GRANTED as to Plaintiff’s
federal malicious prosecution claim, and DENIED as to Plaintiff’s state malicious prosecution
claim.
V.
Immunity
Defendants raise two issues of immunity: qualified immunity regarding the federal claims
against Lolja, and governmental immunity regarding the state claims against Defendants Lolja
and the City. Def. Mem. at 17–20, 22–23. Qualified immunity shields public officials
performing discretionary functions from federal civil liability to the extent that their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known or insofar as it was objectively reasonable for them to believe that their acts
did not violate those rights. Bradway v. Gonzales, 26 F.3d 313, 317–18 (2d Cir. 1994). A police
officer is entitled to qualified immunity from a claim for arrest without probable cause if: (1) it
was objectively reasonable for the officer to believe that probable cause existed; or (2) officers of
reasonable competence could disagree on whether there was probable cause. Zellner v.
23
Summerlin, 494 F.3d 344, 369–370 (2d Cir. 2007). The Second Circuit has defined this standard,
referred to as “arguable probable cause,” as follows:
Arguable probable cause exists when a reasonable police officer in the same
circumstances and possessing the same knowledge as the officer in question could have
reasonably believed that probable cause existed in light of well established law . . . [I]t is
inevitable that law enforcement officials will in some cases reasonably but mistakenly
conclude that probable cause is present, and we have indicated that in such cases those
officials—like other officials who act in ways they reasonably believe to be lawful—
should not be held personally liable.
Cerrone v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001) (internal quotation marks, alteration,
and citations omitted). Thus, “[t]he qualified immunity standard gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those who knowingly violate the law.”
Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotation marks and citation omitted).
“[T]he ultimate legal determination of whether qualified immunity attaches to a law enforcement
agent’s actions is a question of law better left for the court to decide.” Stephenson v. Doe, 332
F.3d 68, 81 (2d Cir. 2003) (internal quotation marks omitted).
Defendants claim arguable probable cause based on the same facts they use to argue
probable cause for Plaintiff’s arrest for his false arrest and malicious prosecution claims. But as
discussed supra § III, there are factual disputes regarding the underlying events, including what
the circumstances confronting Lolja were, whether it was reasonable for Lolja to rely on the
Complainants’ statements, and whether the Complainants’ statements and other circumstances
were sufficient to give rise to probable cause for Plaintiff’s arrest. The Second Circuit has
cautioned that on summary judgment, courts should evaluate the objective reasonableness of the
officers’ behavior only when the factual record of the circumstances confronting the officers is
not in serious dispute. See Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). Here, the facts
that confronted Lolja are contested by the parties, and the Court cannot determine that “the only
24
conclusion a rational jury could reach is that reasonably competent police officers could under
the circumstances disagree about the legality of the arrest.” Ricciuti, 124 F.3d at 128 (quoting
Lennon, 66 F.3d at 421) (emphasis added). Summary judgment is, therefore, inappropriate at
this stage.
Summary judgment based on governmental immunity is similarly inappropriate.4 Under
state law, governmental, or good-faith, immunity provides the city or governmental official
“with immunity from suit for those government actions requiring expert judgment or the exercise
of discretion . . . when the action involves the conscious exercise of a judicial or quasi-judicial
nature.” Tsesarskaya v. City of New York, 843 F. Supp. 2d 446, 460 n.12 (S.D.N.Y. 2012)
(internal quotation marks and citation omitted). With respect to police officers, however, that
immunity “is a qualified immunity because they are not protected for unreasonable actions or
those made in bad faith.” Id. For actions taken by police officers, therefore, the test for qualified
immunity under federal law and governmental immunity under state law is the same: whether the
police officer acted reasonably in determining there was probable cause for an arrest. Cabrera v.
City of New York, No. 16 Civ. 1098, 2017 WL 6040011, at *6 (S.D.N.Y. Dec. 4, 2017). Because
there are sufficient facts in dispute to prevent the Court from determining if Lolja is entitled to
qualified immunity as a matter of law, the Court cannot determine if the Defendants are entitled
to governmental immunity. See Jenkins v. City of New York, 478 F.3d 76, 86–87 (2d Cir. 2007)
(“If the [] defendants were entitled to qualified immunity under federal law, summary judgment
would be similarly appropriate on Jenkins’ state law false arrest claim.”).
Defendants contend that Plaintiff failed to dispute Defendants’ arguments on governmental immunity, and thus
have conceded the argument. Def. Reply at 9. Though not labelling the section as disputing governmental
immunity, however, Plaintiff does address the claim for governmental immunity by contesting whether the arrest
was discretionary or ministerial. Pl. Opp’n at 14. Though the Court decides the governmental immunity issue on
other grounds, this argument is sufficient to determine that Plaintiff does not concede the point.
4
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VI.
Abandoned Claims
Defendants also move for summary judgment on Plaintiff’s § 1983 claim of excessive
force, and all claims against the Doe Defendants. In their opening brief, Defendants argue that
the excessive force claim should be dismissed because the force used was de minimis, Def. Mem.
at 15–17, and for the dismissal of the claims against the Doe Defendants because Plaintiff has
failed to name or serve them, id. at 4. Plaintiff has not responded to these arguments, or even
mentioned either claim in his opposition. See generally Pl. Opp’n.
“Federal courts may deem a claim abandoned when a party moves for summary judgment
on one ground and the party opposing summary judgment fails to address the argument in any
way.” Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003); see also Jackson v.
Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (affirming the district court’s finding of
abandonment where plaintiff fully responded to defendant’s proposed undisputed facts and the
opposition brief argued against grant of summary judgment only as to one claim). Because
Plaintiff has not addressed the excessive force claim or claims against the Doe Defendants in his
response brief, but did oppose summary judgment on the other claims, Defendants’ motion for
summary judgment on Plaintiff’s claims of excessive force and against the Doe Defendants is
GRANTED.
26
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is GRANTED
in part and DENIED in part. Specifically, the motion is GRANTED as to Plaintiff’s state false
arrest claim, § 1983 malicious prosecution and excessive force claims, and claims against the
Doe Defendants. Plaintiff’s § 1983 false arrest claim and state malicious prosecution claim
remain for trial.
The Clerk of Court is directed to terminate the motion at ECF No. 75.
SO ORDERED.
Dated: March 11, 2021
New York, New York
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