Jessamy v. Jackasal et al

Filing 151

ORDER granting 118 Motion for Summary Judgment; granting 130 Motion for Summary Judgment; denying 143 Motion in Limine. For the foregoing reasons, plaintiffs motion for summary judgment is DENIED and defendants' motions for summary judgment are GRANTED. The Clerk of the Court is respectfully directed to terminate the pending motions (Dkt. #118, #130, #143), to enter judgment in favor of all defendants and to close this case. SO ORDERED. (Signed by Magistrate Judge Paul E. Davison on 1/8/2021) (ks) Transmission to Orders and Judgments Clerk for processing. Modified on 1/8/2021 (ks).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-X

CARLOS JESSAMY,
Plaintiff,

ti^l^l
DECISION AND ORDER

-against-

17 Civ. 6786 (FED)
JASON FROATZ, TOWN OF GREENBURGII,
OFFICER JAKASAL, Shield No. 0067 and
TJX COMPANIES, INC.,
Defendants.
-X

PAUL E. DAVISON, U.S.M.J.

In this § 1983 action, pro se plaintiff Carlos Jessamy alleges that he was subjected to false
arrest and malicious prosecution by defendants Town of Greenburgh, Greenburgh police officer
Davey Jakasal, TJX Companies, Inc. ("TJX") and TJX employee Jason Froatz. This case is
before me for all purposes on the consent of the parties, pursuant to 28 U.S.C. §636(c) (Diet. #44,
#57). Familiarity with the record is presumed.
Presently before this Court are the parties' cross-motions for summary judgment pursuant

to Rule 56 of the Federal Rules of Civil Procedure (Dkt. #118 (TJX), Dkt. #130 (Jakasal), Dkt
#127 and #129 (plaintiff)). For the reasons set forth below, plaintiffs motion is DENIED and
defendants' motions are GRANTED.

I. BACKGROUND
The following facts are gathered from the parties' statements pursuant to Local Civil

Defendant TJX Companies, Inc. was incorrectly sued as 'TJ. Maxx Department
Store."

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Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New
York, from the pleadings and from affidavits, affirmations and exhibits submitted by the parties
in support of their contentions. Any disputes of material fact are noted.
Defendant TJX owns and operates a TJ Maxx store on North Central Avenue in White
Plains, New York ("the TJ Maxx store") and a Marshalls store on North Central Avenue in
Hartsdale, New York ("the Marshalls store"),
Foster Shaw has been employed as a police officer with the Town of Greenburgh since
1997. In 2015, he was promoted to Detective and currently holds that position. In 2013, he was
assigned to the Street Crime Unit, composed ofplainclothes officers who investigate ongoing
criminal activity, including many shoplifting larcenies at retail stores along Central Avenue.
Defendant Davey Jakasal has been employed as a Town of Greenburgh police officer

Certain factual allegations in the parties' 56.1 statements, whether disputed or
undisputed, have been omitted from the factual recitation because they are not germane to the
issues presently before the Court.
As defendants point out, plaintiffs Rule 56.1 statement and counterstatement largely
ignore the requirements of Local Rule 56.1. First, numerous purported facts are "supported

with citations to evidence which is something other than what plaintiff purports it to be, or with
citations to materials which do not support plaintiffs purported denials. Additionally, several of
plaintiffs purported denials "improperly interject arguments and/or immaterial facts in response
to facts asserted by Defendants, often speaking past Defendants' asserted facts without
specifically controvcrting those same facts." Baity v. Kralik, 51 F. Supp.3d 414, 418 (S.D.N.Y.
2014). Nevertheless, in light of the "special solicitude" afforded to pro se litigants "when
confronted with motions for summary judgment," Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir. 1988) (citations omitted), the Court will "in its discretion opt to conduct an assiduous review
of the record" when deciding the instant motions, Holtz v. Rockefeller & Co., 258 F.3d 62, 73

(2d Cir. 2001) (quotation marks and citation omitted). Accordingly, I have thoroughly reviewed
the entire record in order to determine whether evidentiary submissions either contradict
defendants' Rule 56.1 statements or support plaintiff s factual allegations.

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since 2007. In 2014, Jakasal was assigned to the Street Crime Unit.
On October 20, 2014, Shaw was conducting general surveillance in the parking lot of a
Best Buy store, not far from the Marshalls store. At about 3:00 p.nx, he observed a clean-shaven
black male, in his early 30's and wearing a blue Yankee hat, walk across the parking lot carrying
a large black plastic bag and a white plastic bag. Shaw was only a couple of car lengths away
and had a clear, ummpeded view of the man's face. The man looked at Shaw, hesitated and then

quickly walked to a nearby bus stop where he abandoned the bags and fled. Shaw looked inside
the black garbage bag and saw merchandise with security tags attached. Employees from the
Marshalls store later informed Shaw that the merchandise had been stolen, Shaw prepared an
Incident Report which detailed his observations.
On February 3, 2015, there was a petit larceny at the TJ Maxx store. A second incident
occurred at the same location on February 7, 2015.
On March 2, 2015, a grand larceny occurred at the Marshalls store. A few days later, the

manager of the Marshalls store (Jon Hirshldnd) reported the theft to the Greenburgh Police
Department. Officer Jakasal went to the Marshalls store, met with Hirshldnd and viewed the
store's surveillance video from March 2, 2015. The video showed a black male leaving the store
with men's suits he had not paid for (a "push out" larceny). Hirshkind told Jakasal that the
same man had been observed stealing merchandise from the store on prior occasions. Officer
Jakasal began investigating the larcenics at the Marshalls store.
On March 13, 2015 a grand larceny occurred at the Marshalls store. At approximately

In law enforcement, a "push out" larceny occurs when a person selects merchandise,

quickly passes all points of purchase and exits the store without attempting to conceal the theft.
This tactic is used because employees have little time to react.
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10:50 a.m., Jon Hirshlcind notified Greenburgh police officer Zenon that the incident involved a
tan Mini-Cooper or Caravan with partial license plate MA 566. Hirshkind subsequently called
Officer Jakasal and told him that, earlier that day, men's suits had been stolen by the same black
male who was responsible for the March 2d theft. Hirshkind informed Jakasal that a store
employee had recorded a Massachusetts license plate number from a vehicle (parked in the fire
lane) which the black male entered just after he left the store with the stolen merchandise.
During the afternoon of March 13, 2015, Hirshkind notified TJX Loss Prevention
Manager John Campbell via email that, earlier that morning, a black male In his 30's, wearing a
dark blue jacket with white sleeves and a "P" logo on the left side, had stolen men's suits from
the Marshalls store and got into a tan or gold minivan with Massachusetts license plate 566TT2.
Later that afternoon, Officer Jakasal went to the Marshalls store, met with Jon Hirshkind
and viewed the store surveillance video from earlier that day which had captured a black male
stealing merchandise. Officer Jakasal could not identify the black male but was able to ascertain
that it was the same black male whose image appeared on the March 2d store surveillance video.
Hirshkmd gave Jakasal a copy of the email to John Campbell. Officer Jakasal also obtained a
written statement from Hirshkind.
Detective Shaw was working with Officer Jakasal on the investigation of store thefts
along Central Avenue. Shaw reviewed the Marshalls store surveillance videos from March 2d
and March 13th, as well as a still photograph Jakasal had exported from the March 13 video.
Shaw told Jakasal that he recognized the black male as the same person he observed on October

Although the record is unclear as to the specific date or dates on which Officer Jakasal
obtained copies of the surveillance videos from the Marshalls store, the record indicates that
Detective Shaw reviewed the videos (and the exported photo) prior to March 16, 2015.
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20, 2014 in the Best Buy parking lot and, therefore, Shaw believed the same black male was

responsible for the October 20, 2014, March 2, 2015 and March 13, 2015 thefts from the
Marshalls store. Shaw also shared the following information with Jakasal: In the course of
investigating the store thefts along Central Avenue, Shaw was in contact with Edward Catale
from the TJX Multi-State Loss Prevention Department; Catale had developed information that a
"Carlos Jessamy" was responsible for a number of thefts at the TJX and Marshalls stores; Catale
believed that Carlos Jessamy used the name "Los Bro" on Faceboolc.
Officer Jakasal ran a search on Massachusetts license plate 566TT2, and teamed the
vehicle was registered to "Aaron Driscoll." Jakasal ran a Google search on the name "Carlos
Jessamy" and discovered a newspaper article from November 5, 2014, which reported that
"Erin" Driscoll and Carlos Jessamy had been arrested (following a traffic stop in Upper Saddle
River, New Jersey) for having a loaded gun and $4,500 worth of stolen clothing in their car.
On the morning of March 16, 2015, Officer Jakasal and Detective Shaw conducted
surveillance of the parking lot of the Marshalls store in separate, unmarked police cars. Around
1:00 p.m., plaintiff entered the parking lot driving a minivan and drove past Officer Jakasal.
Jakasal (who was about a car length away) observed the minivan had Massachusetts license plate

566TT2. The minivan left the parking lot; Jakasal and Shaw followed as the minivan turned
right onto Central Avenue. Officer Jakasal radioed a marked Greenburgh police car to stop the
minivan; the marked vehicle stopped the minivan on Central Avenue. Officer Jakasal
maneuvered his vehicle in front of the minivan. Jakasal opened the driver's door and removed
plaintiff from the minivan. Officer Jakasal recognized the driver as the same black male he
observed on the March 2d and March 13th Marshalls store surveillance videos. Plaintiff, who
identified himself as "Pierre Norris," was arrested and transported to the Greenburgh Police
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Department. Plaintiff was searched upon arrival; the officers recovered a photo ID belonging to
"Carlos Jessamy" and matching the person in custody. An inventory search of the minivan
yielded, inter alia, a jacket with long white sleeves and a "P" logo on the left front. Detective
Shaw notified plaintiff that a blender and suitcase recovered from the minivan were reported
stolen from a Macy's store on March 13, 2015.
Officer Jakasal and Detective Shaw asked Marshalls store manager Hirshkind to come to
headquarters and provide a second written statement regarding the March 2d and March 13
thefts from the Marshalls store. Hirshkind did so. He also told the officers that property had
been stolen from a TJ Maxx store in February 2015 and that the TJX Loss Prevention
Department believed that the thefts had been committed by the same black male that the officers
had in custody. The Marshalls store and the TJ Maxx store are on the same side of Central
Avenue, dbout one-half mile apart. Hirslikind told the officers that the February thefts had been
reported to the police department and that he would arrange for a TJX employee to contact the
officers.

In the meantime, Officer Jakasal performed a computer search to locate any Incident
Reports related to the February TJ Maxx theffcs. Jakasal found two Incident Reports prepared by
officer Susana CastUlo: one involved the thefE of merchandise on February 3d; the other
involved the theft of merchandise on February 7th. In one of the Incident Reports, Officer
Castillo stated, inter alia', on 2/7/15 she responded to the TJ Maxx store; Ann from Loss
Prevention reported that, about five hours earlier, a store employee (Dorcas Levi) had observed
an unknown black male (wearing a dark colored pea coat, dark jogging pants with white stripes

Pien'e Norris is the brother of Carlos Jessamy.
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on the side and black sneakers) enter the men's department and walk out the front entrance with

a rolling suitcase he had not paid for and get into a vehicle which drove off; Officer Castlllo was
unable to interview Mr. Levi because he was not on the scene; and Officer Castillo obtained a
copy of the surveillance video. In the other Incident Report, Officer Castillo stated inter alia:
on 2/7/15 she responded to the TJ Maxx store; Ann from Loss Prevention reported that, on
February 3, 2015, a store employee (Dan'iann) had observed an unknown black male (wearing a

dark sweatshirt, dark pants and a dark colored baseball cap) walk out of the store with two duffel
bags and a backpack he had not paid for and get into a vehicle which drove off; Officer Castillo
was unable to interview Darriann because he/she was not on the scene; and Officer Castillo
obtained a copy of the surveillance video.
Jason Froatz, a TJX Loss Prevention employee, came to Greenburgh Police headquarters
and was interviewed by Detective Shaw and Officer Jakasal. Mr. Froatz signed two written
statements regarding the February 3d and February 7 incidents:
On Tuesday February 3 , 2015 at approximately 4:31 pm I observed a black male
who is a known shop lifter wearing a dark colored hooded NIKE sweat shirt, and
a NY Yankee baseball cap enter the TJ MAXX store. The male walked into the
mens department and selected three mens messenger carry bags, at which point he
looked around to see if any TJ MAXX employees were watching him. I then
observed the male ext the mens department and walk to the front of the store.
The male then stopped and looked around again to see is [sic] he was being
followed and then finally passed all points of purchase, exiting the store through
the front doors. A TJ MAXX customer service employee then observed the male
enter a vehicle which was waiting in the fire lane. This male has stolen from our
store in the past and TJ MAXX wished to pursue the matter and press charges if
he is apprehended.
^ * *

Officer Jakasal typed NIKE in capital letters because Jason Froatz told him that the
logo "NIKE" was in capital letters on the fi'ont of the hooded sweat shirt.
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On Saturday February 7l, 2015 at approximately 1:44 pm I observed a black male
who Is a known shop liffcer wearing a dark colored pea coat, dark jogging pants
with white stripes and black sneakers enter the TJ MAXX store. The male
walked into the luggage department and selected one piece of Samsonite Carrier
luggage. I then observed the male exit the luggage department, wheeling said
piece at his side as he walked to the front of the store. The male then passed all
the points of purchase wheeling the luggage piece and exited the store through the
front doors. This is the second time this same male has stolen from out store
similar to the incident on February 3 , 2015. TJ MAXX wishes to pursue the
matter and press charges if he is apprehended.
Mr. Froatz's statements were based upon his review of the February 3d and February 7 TJ
Maxx store surveillance videos, via playback on the store's video system.
Later that night, Detective Shaw and Officer Jakasal reviewed the Facebook page of "Los
Bro" (suspected to be the social media name used by Carlos Jessamy). The Facebook page
contained numerous photos of plaintiff spanning several years. Officer Jakasal recognized

plaintiff as the black male he presently had in custody and who also appeared on the March 2d
and March 13th Marshalls store surveillance videos. Officer Jakasal noted several specific

photos: (1) a photo of plaintiff posted on February 4, 2015, in which he is wearing dark jogging
pants with white stripe down the side; (2) a photo of plaintiff posted on February 4, 2015, in
which he is wearing a dark NY Yankee baseball cap; (3) a photo of plaintiff posted 'on February
4, 2015, in which he is wearing a colored hooded NIKE sweat shirt; (4) a photo of plaintiff
posted on February 4, 2015, in which he is sporting a goatee; (5) two photos of plaintiff (one
posted March 9, 2015 and the other posted March 13, 2015), in which he is wearing a button
down jacket with long white sleeves and a large "P" logo on the left breast portion; and (6) a
photo of plaintiff posted March 13, 2015, in which he is clean shaven.
Officer Jakasal and Detective Shaw determined that plaintiff was a "serial shoplifter,
Officer Jakasal initiated accusatory instruments charging plaintiff in connection with all four

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thefts at the TJ Maxx and Marshalls stores (February 3, 2015 and February 7, 2015 (TJ Maxx);
March 2, 2015 and March 13, 2015 (Marshalls)). Detective Shaw prepared accusatory
instruments charging plaintiff with criminal possession of stolen property, false impersonation,
unlawful possession of marijuana and aggravated unlicensed operation of a motor vehicle arising

from the March 16 traffic stop. On March 17, 2015, plaintiff was arraigned on all of the
charges initiated by Defective Shaw and Officer Jakasal. On March 23, 2015, plaintiff was
released on bail. He failed to appear at his next scheduled court appearance (March 31, 2015);
he was notified by warrant letter that he was required to appear on April 10, 2015. Plaintiff
failed to appear on April 10 ; he was notified by warrant letter that he was required to appear on

April 17, 2015. Plaintiff appeared in Greenburgh Town Court on April 17, 2015, at which time
the Westchester County District Attorney's Office filed an accusatory instrument (signed by
Detective Shaw) alleging criminal possession of stolen property on October 20,2014. On June
12, 2015, plaintiff appeared in Greenburgh Town Court; the case was adjourned to July 14,

2015. Plaintiff failed to appear on July 14 and the case was adjourned to September 22, 2015.
A bench warrant issued on September 22, 2015 after plaintiff again failed to appear.
On October 30, 2015, plaintiff was arrested in the Town of Cortland for stealing over
$3,000,00 worth of merchandise from a ICohFs store. He was an'aigned a few days later; bail
was set at $50,000. Plaintiff could not make ball and was held at the Westchester County Jail.
On November 10,2015, plaintiff appeared in Greenburgh Town Court on an Order to
Produce. The case was adjourned to November 24, 2015. Plaintiff appeared on numerous
occasions in Greenburgh Town Court through April 17, 2017. Throughout that time, he was
incarcerated on other criminal charges.

On or about January 21, 2016, a Westchester County Grand Jury indicted plaintiff on
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charges arising out of his arrest on October 30, 2015 in the Town ofCortland. On or about
February 4, 2016, a Westchester County Grand Jury indicted plaintiff on charges arising from
various incidents, including the March 2d and March 13th thefts at the Marshalls store.
Accordingly, the only criminal charges remaining in the Town of Greenburgh against plaintiff
were those stemming from the February 3d and February 7 thefts at TJ Maxx.

In or about July 2016, ajury found plaintiff guilty on charges arising from his arrest in
the Town of Cortland. On September 28, 2016, following a bench trial on the charges set forth
in the remaining indictment, plaintiff was found guilty of, inter alia, the charges arising from the
thefts at the Marshalls store (March 2d grand larceny 4 and criminal possession of stolen
property 4th; March 131h petit larceny). On October 26, 2016, plaintiff was sentenced to a period
of incarceration (one and one-halfto three years) on the March 2d charges, and to time served on
the March 13 petit larceny. These sentences were imposed consecutively to sentences on other
charges in the indictment, resulting in an aggregate sentence of four and one-half to nine years in
prison.

On April 17, 2017, the charges pending in the Town ofGreenburgh (arising from the
February 3d and February 7 thefts at TJ Maxx) were dismissed in the interest of justice.

II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.

The aggregate sentence was concurrent with an identical aggregate period of
incarceration in conjunction with plaintiffs conviction on the charges arising from his arrest in
the Town of Cortland.
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P. 56(a). A fact is material within the meaning of Rule 56 where it "might affect the outcome of
the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is "genuine" when "the evidence is such that a reasonable jury
could return a verdict for the non-moving party." Id. at 248. In determining whether the moving
party has met its burden of proving that there arc no genuine disputes of material fact, the court
must resolve all ambiguities and draw all factual inferences in favor of the party opposing the
motion. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). "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 F3d 549, 554 (2d Cir.

2005).
Where "the nonmoving party bears the burden of proof at trial, summary judgment is
warranted if the nonmovant fails to make a showing sufficient to establish the existence of an
element essential to [its] case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in
original) (quotation and citation omitted). Thus, "[a] defendant moving for summary judgment
must prevail if the plaintiff fails to come forward with enough evidence to create a genuine
factual issue to be tried with respect to an element essential to its case. Alien v. Cuomo, 100

F.3d 253, 258 (2d Cir. 1996). On the other hand, summary judgment must be denied if the court
finds "there are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party." See Anderson, 477 U.S. at
250.
Finally, mindful that plaintiff is proceeding pro se, this Court construes his submissions
"liberally" and interprets them "to raise the strongest arguments that they suggest.

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal
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quotation marks omitted).

HI. DISCUSSION
A. False Arrest

Plaintiff alleges that Officer Jakasal falsely arrested him on March 16, 2015, in violation
of §1983 and New York law. "A section 1983 claim for false arrest is substantially the same as a
claim for false arrest under New York law." Simpson v. City of New York, 793 F.3d 259,265

(2d Cir. 2015) (quotation marks and citation omitted). To succeed on his claims, plaintiff must
establish: "(I) [Officer Jakasal] confined the plaintiff; (2) he was conscious of the confinement;
(3) he did not consent to the confinement; and (4) the confinement was not otherwise
privileged." Brooks v. Whiteford, 384 F.Supp. 3d 365,371 (W.D.N.Y. 2019).
"Probable cause is a complete defense to an action for false arrest brought under New

York law or § 1983." Ackerson v. City of White Plains, 702 F,3d 15, 19 (2d Clr. 2012), as
amended (Dec. 4, 2012) (quotation marks and citation omitted). Moreover, "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. Stated differently, when faced with
a claim for false arrest, we focus on the validity of the arrest, and not on the validity of each

charge." Jaeelv v. Couch, 439 F3d 149, 154 (2d Cir. 2006) (emphasis in original). Finally, "[a]
conviction on any charge for which plaintiff was arrested is conclusive evidence of probable
cause to arrest." Williams v. Goodfriend. 347 F. Supp. 3d 169, 175 (W.D.N.Y. 2018).
Here, because plaintiff was convicted of charges which arose from his arrest on March
16, 2015, his false arrest claims are barred as a matter of law. Accordingly, defendant Jakasal is
entitled to summary judgment on the false arrest claims.
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B. Malicious Prosecution: Officer Jakasal

Plaintiff argues that Officer Jakasal's initiation of criminal proceedings stemming from
the thefts at TJ Maxx (on February 3d and February 7 ) and the Marshalls store (on March 2d
and March 13 ) constitute malicious prosecution under § 1983 and New York law.
A claim for malicious prosecution under Section 1983 is substantially the same as a
claim for malicious prosecution under New York law." Almonte v. Rodriguez, No. 15 Civ.

9762,2017 WL 4011461, at *8 (S.D.N.Y. Sept 11, 2017) (internal quotation marks omitted).
To prevail on a state law malicious prosecution claim, a plaintiff must demonstrate "(I)
commencement of a criminal proceeding, (2) favorable termination of the proceeding, (3) lack of
probable cause, and (4) institution of the proceedings with actual malice." Swartz v. Insosna,

704 F.3d 105, 111-12 (2d Cir. 2013). To prevail on his § 1983 malicious prosecution claim,
Gathers must establish the elements of a malicious prosecution claim under state law and must
also demonstrate a post-arraignment deprivation of liberty sufficient to implicate his Fourth
Amendment rights. See id. at 112.
1. Thefts at the Marshalls store

On September 28, 2016, plaintiff was convicted of the thefts at the Marshalls store
(March 2d grand larceny 4Eh and criminal possession of stolen property 4Eh; March 13th petit
larccny). Obviously, this outcome does not constitute a favorable termination. Accordingly,
plaintiffs malicious prosecution claims against Officer Jakasal may not be grounded upon
charges arising from the thefts at the Marshalls store.

2. Thefts at TJ Maxx
Officer Jakasal argues that he had probable cause to initiate criminal proceedings against
plaintiff in conjunction with the TJ Maxx thefts. "The existence of probable cause is a complete
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defense to a claim of malicious prosecution in New York." Manpaniello v. City of New York,

612 F.3d 149, 161-62 (2d Cir. 2010) (quotation marks and citation omitted). Unlike false arrest
claims, however, "the defendant must have possessed probable cause as to each offense
charged." Berry v. Marchinkowski, 137 F. Supp.3d 495, 536 (S.D.N.Y. 2015) (internal
quotation marks and citations omitted). Further, "the probable cause standard in the malicious
prosecution context is slightly higher than the standard for false arrest cases." Stansbui'v v.
Wertman, 721 F.3d 84, 95 (2d Cir. 2013). "In other words, it is probable cause to believe that
the plaintiff^ ]'could be successfully prosecuted.'" Shabazz v. Kailer, 201 F. Supp.3d 386, 393

(S.D.N.Y. 2016) (quoting Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir.
1999)). "Probable cause, in the context of malicious prosecution, has also been described as
such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff

guilty." Stansbyry, 721 F.3d at 95 (citing Bovd v. City of New Yoij, 336 F.3d 72, 76 (2d Cir.

2003)),
Here, at the time Officer Jakasal initiated criminal proceedings against plaintiff accusing

him of the TJ Maxx thefts, Officer Jakasal knew the following: (1) TJX Multi-State Loss
Prevention Department employee Edward Catale had developed information that a Carlos
Jessamy" was responsible for a number of thefts at TJ Maxx and Marshalls stores; (2) Catale
believed Carlos Jessamy maintained a Facebook page under the name "Los Bro"; (3) following
plaintiffs arrest on March 16, 2015, Marshalls store manager Hirshkind told Jakasal and Shaw

(a) that items had been stolen from the TJ Maxx store in February 2015 and (b) that TJX Loss
Prevention believed the TJ Maxx thefts had been committed by the black male Jakasal had in
custody; (4) Jakasal reviewed Officer Castillo's incident reports documenting the TJ Maxx
thefts; (5) TJ Maxx loss prevention employee Jason Froatz gave two written statements based
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upon his review of the February 3d and February 7th TJ Maxx store surveillance videos, (6) the
"Los Bro" Facebook page contained numerous photos of plaintiff spanning several years; (7)
Jakasal recognized plaintiff from the Facebook photos as the black male in custody and who also
appeared m the IVtarch 2d and March 13th Marshalls store surveillance videos; (8) Facebook

photos posted around the time of the TJ Maxx thefts depicted plaintiff wearing clothing
described in Officer Castillo's incident reports and in Jason Froatz's statements; (9) the TJ Maxx
and Marshalls stores are in close proximity; and (10) the thefts at TJ Maxx and Marshalls were
perpetrated using the same "push-out" method. Based upon these facts and circumstances,

Officer Jakasal had probable cause to believe plaintiff was guilty of petit larceny at TJ Maxx on
February 3, 2015 and February 7, 2015. Accordingly, Officer Jakasal is entitled to summary
judgment on plaintiffs malicious prosecution claims grounded upon the charges arising from the
TJMaxx thefts.9
C. Malicious Prosecution: Jason Froatz
Plaintiff seeks to hold Jason Froatz and TJX liable for malicious prosecution under New
York law, on the ground that Jason Froatz fabricated statements which induced Officer Jakasal

to charge plaintiff with the TJ Maxx thefts. Under New York law:
"A civilian complainant, by merely seeking police assistance or furnishing

Defendant Jalcasal also asserts that plaintiff was depicted on the TJ Maxx surveillance
videos; plaintiff argues that the videos were blurry. Additionally, plaintiff moves to preclude the
TJ Maxx surveillance videos on the ground that he never received a copy of them in the format
in which they were reviewed by Jason Froatz (using the store playback system). Dkt. #143.
Given these disputes, I have not considered the TJ Maxx surveillance videos in determining the
instant motions.

Plaintiffs § 1983 malicious prosecution claim grounded upon the charges arising from
the TJ Maxx thefts also fails as a matter of law because plaintiff has not demonstrated any postarraignment deprivation of liberty resulting solely from the TJ Maxx charges.
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information to law enforcement authorities who are then free to exercise their
own judgment as to whether an arrest should be made and criminal charges filed,
will not be held liable for false arrest or malicious prosecution." Mesiti v.

Wegman, 307 A.D,2d 339, 763 N.Y.S.2d 67, 69 (App. Div. 2003) (internal
quotation marks and citations omitted). Thus, "even if a civilian complainant is
ultimately incorrect in his belief as to whether a person is committing a crime, he
need only have had a reasonable basis for this belief in order to have the probable
cause necessary to defeat a malicious prosecution or false arrest claim." TADCO
Const. Corp. v. Dormitory Auth. of State of New York, 700 F. Supp.2d 253, 275
(E.DXY.2010); see also Paciccav. Stead, 456 F. App'x 9, 12 (2d Cir. 2011).
Biswas v. City of New York, 973 F. Supped 504, 519 (S.D.N.Y. 2013). Similarly, "[wjhere a
party is responsible for providing false information or manufactured evidence that influences a
decision whether to prosecute, he may be held liable for malicious prosecution." Chimurenga v.
City of New York, 45 F. Supp.2d 337, 343 (S.D.N.Y. 1999).
Here, plaintiff asserts that Froatz signed statements in which he averred that he observed
the February 3d and February 7 thefts even though he did not personally witness either incident.
However, Froatz had a reasonable basis for his statements: they were based upon his review of
the February 3d and February 7th TJ Maxx store surveillance videos, via playback on the store's
video system. In other words, Froatz "observed" the thefts, even though he did not witness them
in person as they occurred. Defendants Froatz and TJX correctly argue that plaintiff proffers no
evidence from which a reasonable jury could infer that Froatz did anything other than furnish
information to Officer Jakasal, who was then free to exercise his own judgment as to whether to

charge plaintiff with the TJ Maxx thefts. Accordingly, defendants Froatz and TJX are entitled to
summary judgment on plaintiff's malicious prosecution claims.

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Case 7:17-cv-06786-PED Document 151 Filed 01/08/21 Page 17 of 17

IV. CONCLUSION
For the foregoing reasons, plaintiffs motion for summary judgment is DENIED and
defendants' motions for summary judgment are GRANTED.
The Clerk of the Court is respectfully directed to terminate the pending motions (Dkt.
#118, #130, #143), to enter judgment in favor of all defendants and to close this case.

Dated: January 8, 2021 SO ORDERED
White Plains, New York ^-""" ~"" ~"~ ">/^1/-^
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PAUL E. DAVISON, U.S.M.J.

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