Al-Mohammedi -V- The City of Buffalo et al
DECISION AND ORDER granting 25 Motion for Summary Judgment; adopting Report and Recommendations in full re 35 Report and Recommendations; and dismissing the Complaint 1 . (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/17/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsCITY OF BUFFALO, P.O. ANN VANYO,
P.O. HIBA KHALIL, P.O. JAY REUTHER,
P.O. “KEATON SWAGGARD”, P.O. “JOHN”
KEATON, P.O. “JOHN STEPHANY”,
Recommendation (“R&R”) filed by Magistrate Judge Michael J. Roemer
Judgment filed by the City of Buffalo (“the City”), Buffalo Police
Department (“BPD”) Officer Ann Vanyo (“Officer Vanyo”),1 and BPD
Officer Hiba Khalil (“Officer Khalil”) (collectively, “Defendants”)
be granted in its entirety. On April 12, 2016, Jassim Al-Mohammedi
(“Plaintiff”), through his attorney, filed Rule 72(b) Objections to
the Magistrate’s March 23, 2012 [sic] Summary Judgment Report and
Recommendation (“Obj.”) (Dkt #36).
On April 29, 2016, Defendants
filed a Response to Plaintiff’s Rule 72(b) Objections (“Defs’
During the pendency of this action, Officer Vanyo left the employ of
For the reasons discussed below, the Court denies Plaintiff’s
Objections except to the limited extent as discussed in Section
III.C, below. Nonetheless, as discussed further below, the Court
agrees with R&R in all other respects and adopts the Magistrate
Judge’s recommendation to dismiss Plaintiff’s Complaint in its
Standard of Review
“In reviewing the R & R of a dispositive matter from a
magistrate judge, the district court ‘may adopt those portions of
the Report to which no objections have been made and which are not
facially erroneous.’” Nansaram v. City of N.Y., No. 12-CV-5038 NGG
RLM, 2015 WL 5518270, at *2 (E.D.N.Y. Sept. 17, 2015) (quotation
and citation omitted); see also FED. R. CIV. P. 72(b), Advisory
Comm. Notes (when a party makes no objection, or only general
objections to a portion of an R&R, the district judge reviews it
erroneous” when the court is, “upon review of the entire record,
left with the definite and firm conviction that a mistake has been
committed.” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006).
To preserve a claim for review by the district court, the
party must make sufficiently specific objections to the R&R. E.g.,
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002).
When, however, a party makes specific objections, the district
judge must undertake a “de novo determination of those portions of
the report or specified proposed findings or recommendations to
which objection is made[,]” 28 U.S.C. § 636(b)(1)(C), and “may . .
. receive further evidence[.]” Id.; see also Grassia v. Scully, 892
F.2d 16, 19 (2d Cir. 1989) (discussing § 636(b)(1)(B)).
Plaintiff’s Objections Based on His Previous Arguments are
Insufficient (Obj. ¶ 1)
Plaintiff states that he “repeats and maintains each and every
argument and point of law as set forth in [his] underlying papers
opposing [D]efendants’ summary judgment motion, incorporated here
by reference[.]” (Obj. ¶ 1). As the Second Circuit has explained,
arguments does not constitute an adequate objection under either
FED. R. CIV. P. 72(b),” Mario, 313 F.3d at 766 (footnote omitted),
Plaintiff’s to request re-examine the arguments he previously made
to the Magistrate Judge in considering the summary judgment motion.
See Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co.,
840 F.2d 985, 990–91 (1st Cir. 1988) (“We hold categorically that
an unsuccessful party is not entitled as of right to de novo review
by the judge of an argument never seasonably raised before the
magistrate.”) (citation omitted).
The R&R’s Allegedly Erroneous Characterization of the Incident
as a “Domestic Dispute” (Obj. ¶ 62)
characterized the incident at issue in his Complaint as a “domestic
dispute.” (R&R at 1; Obj. ¶ 6). This objection, while specific, is
baseless. Plaintiff asserts that on July 14, 2012, he was “arrested
outside a building he owned by . . . [Officer] Vanyo and others,
including off duty . . . [Officer] Khalil,” who had “arrived at the
home along with Plaintiff’s wife, Eness Noairy,3 who had just spent
the night in jail after trashing the couple’s apartment, and with
Vanyo’s assistance seized the couple’s two children with no legal
authority to do so.” (Obj. ¶¶ 2, 6). Plaintiff admits that “Noary
informed [Officer] Vanyo that she had gone to the house ‘to get
Counterstatement in Opposition to Defendants’ Motion for Summary
Judgment (“Pl’s Counterstmt”), Resp. to #4).
These and other
facts, as recited by Plaintiff in his Objections, show that the
incident in question accurately was characterized as a “domestic
dispute.”4. Finally, Plaintiff’s objection to the term “domestic
Paragraphs 2 through 5 of Plaintiff’s Objections merely contain background
information and do not assert actual objections.
The surname of Plaintiff’s common-law wife is variously spelled in the
record as “Noary”, “Noairy,” and “Noariy.” When quoting directly from Plaintiff’s
pleadings, the Court will use the spelling utilized by Plaintiff. Otherwise, the
Court will use the spelling utilized by the Magistrate Judge in the R&R, “Noary.”
See, e.g., https://definitions.uslegal.com/d/domestic-dispute/
(“A domestic dispute is generally any quarrel, which may or may not include
violence, within a family or between members of the same household.
dispute” is disingenuous given that Plaintiff’s attorney used that
deposition. (E.g., Deposition Transcript of Ann Vanyo (“Vanyo Tr.”)
Failure to Construe the Facts in the Light Most Favorable to
Plaintiff (Obj’ns ¶¶ 6-7)
Plaintiff next objects that the Magistrate Judge “state[d] as
a fact that Noary ‘reported to the [BPD] that [Plaintiff] had been
violent and had threatened her.’” (Obj. ¶ 7 (quoting R&R at 2)).
According to Plaintiff, the Magistrate Judge’s mention of the
Noary’s complaint to the BPD was a “misleading construction of the
facts, and a failure to construe the admissible evidence in the
light most favorable to [him][,]” (id.), because the police report
filed by Noary only was completed after Plaintiff’s arrest, and
Noary “was not even present at the scene until she arrived with
police officers[.]” (Id.). The Court has reviewed the record as it
stood at the time the R&R was issued, in conjunction with the
deposition transcript of Officer Vanyo,5 which was not before the
Magistrate Judge. The Court is compelled to conclude that the
record does not establish that Officer Vanyo “undisputedly” was
Definitions are governed by local laws, which vary, and may also cover
including any child or an adult or fully emancipated minor who is a spouse,
former spouse, cohabitant, former cohabitant or person with whom a suspect has
had a child or has or has had a dating or engagement relationship. It may or
may not include criminal behavior.”).
For reasons that are unclear to this Court, following the issuance of the
R&R, Defendants filed—without objection from Plaintiff—the complete transcript
of Officer Vanyo’s deposition.
given information by Noary, prior to the arrest, about Plaintiff’s
alleged threats toward Noary. However, the record does indicate
that Officer Vanyo was provided information, prior to the incident,
that Plaintiff had been violent. Thus, while additional discussion
of the record evidence is required, the Court ultimately agrees
with the R&R’s qualified immunity analysis regarding the false
arrest claims, as discussed further infra.
The Court first turns to an examination of the record to
assess the facts available to Officer Vanyo at the time of the
arrest and immediately before it, see Caldarola, 298 F.3d at 162.
produced the Buffalo Police Complaint Summary Report (Dkt #25-2)
regarding the “family dispute” at 179 Military Road to which
Officer Vanyo and Officer Jay A. Reuther were dispatched on July
14, 2012. The dispatcher’s notes regarding the originating call
from the complainant read as follows:
C/C IN BANK OF AMERICA LOT @ AUSTIN/MILITARY IN RED SUV
. . . REQ[UESTED] ESCORT TO GET CHILDREN/PROPERTY FROM
HOUSE, HUSBAND HAS BEEN VIOLENT.
(Dkt #25-2, p. 1 of 1) (capitals and ellipsis in original). Officer
Vanyo was dispatched as the “Primary” officer at 8:20 p.m., and
(Dkt #25-3, p. 1 of 6)). The record evidence thus supports the
R&R’s finding that it had been reported to Officer Vanyo that
Plaintiff had been violent.
However, the only documentary evidence submitted by Defendants
regarding the alleged threats by Plaintiff to Noary is Noary’s
connection with Officer Vanyo’s completion of the “NYS Domestic
Investigation,” Officer Vanyo stated,
while resp[onding] to family dispute while attempting to
speak w/ [Noary] [Plaintiff] ordered [Officer Vanyo] to
speak to his attorney then started to put a black object
in face of [Officer Vanyo]. [Plaintiff] did also push
[Noary] almost knocking over daughter trying to get
carseat away from mother.
(DIR (Dkt #25-8, p. 1 of 2)). In Noary’s attached “Statement of
Allegations/Supporting Deposition,” she stated that Plaintiff “also
. . . threatened [her] earlier today by phone saying he will get
someone to throw gasoline in my face or pay someone $10,000 to kill
[her] if [she] got near [their] house.” (Dkt #25-8, p. 2 of 2). The
space for indicating at what time the statement was made was left
blank on the form Noary completed. On the DIR, under “Report”,
Officer Vanyo put the time at 8:10 p.m., and under “Occurred,” she
put the time at 8:20 p.m., which is while Officer Vanyo’s car was
still at the scene of the incident. (Dkt #25-2, p. 1 of 1).
According to Officer Vanyo’s deposition testimony, however, she
took Noary’s statement after the arrest, at either the BPD Delta
District stationhouse or City Hall. (Vanyo Tr. at 32-33).
The Court has reviewed Officer Vanyo’s deposition testimony to
ascertain whether she had been provided information, prior to the
testified that while she was driving her patrol car, she was
(Khalil’s) mother and Noary. (Vanyo Tr. at 10, 16-18). Because
Noary, “the woman who wanted to make the complaint or get the car
seat didn’t speak English,” Officer Khalil was translating for her.
(Id. at 17). Asked if Officer Khalil explained why they had called
911, Officer Vanyo testified, “I believe [Noary] was trying to get
the car seat for the child and some other personal belongings.”
(Id. at 20). There is no further questioning or testimony about
what else Officer Khalil may have related to her. Officer Khalil
asked Officer Vanyo if she had been dispatched; Officer Vanyo said
she had not, and then “let radio know [she] was there [at the scene
of the incident]. Radio let [her] know there was a pending call.”
(Id.). As noted above, the dispatcher’s notes regarding the call
state that “husband [i.e., Plaintiff] has been violent.” (Dkt #252, p. 1 of 1). Thus, while Officer Vanyo’s testimony does not
reflect that she was told about Plaintiff’s alleged threats toward
Noary prior to the incident, it does support a finding that she had
received information, from the dispatcher when she called in, that
Plaintiff had been violent. The Court accepts in part, and rejects
in part, the Objection in Paragraphs 6 and 7, regarding the
construction of the facts available to Officer Vanyo at the time of
the incident and immediately before. The effect of this ruling on
Failure to Draw Inference that Either Plaintiff is Lying or
Officer Vanyo is Lying (Obj. ¶¶ 8-10)
Plaintiff states that the R&R correctly identified a series of
related factual disputes raised by the parties regarding the way
events unfolded once Officers Vanyo and Khalil arrived at the
scene, but then mistakenly explained them away as different people
witnessing the same events but seeing them differently or recalling
Plaintiff states, he was standing several paces away from Officer
Vanyo, recording her with his cell phone; at first she did not see
him, but when she did, she walked over, grabbed him, and demanded
his phone. Plaintiff tossed his phone to his friend, whom Vanyo
approached and threatened to arrest if the friend did not hand over
the phone. The friend did so, and Officer Vanyo immediately placed
Plaintiff under arrest. According to Plaintiff, if his version is
correct, then Officer Vanyo would have remembered it; however,
Plaintiff states, she “claims it did not happen.”6
argues that “to the extent Officer Vanyo lied about the way events
The Court notes that Plaintiff’s characterization of Officer Vanyo’s
position is somewhat misleading. At her deposition, Officer Vanyo was asked by
Plaintiff’s counsel if there “c[a]me a time when the plaintiff threw his phone
to one of his friends who caught it[.]” (Vanyo Tr. at 36:10-2). Officer Vanyo did
not categorically state this did not happen. Rather, she testified, “I don’t
know. Now, that you’re saying it I kind of remember him throwing something, but
I can’t be certain. It was too long ago.” (Id. at 36:13-15).
unfolded, she cannot enjoy qualified immunity.” However, that is
not a legally correct statement. Although this conflict in the
parties’ respective narratives regarding Plaintiff’s arrest might
prevent summary judgment on the merits of the false arrest claim,
still would be
qualified immunity if their actions were objectively reasonable.
See, e.g., Mesa v. City of N.Y., No. 09 Civ. 10464(JPO), 2013 WL
31002, at *19 (S.D.N.Y. Jan. 3, 2013) (“While the conflict in
narratives regarding Mesa’s arrest makes summary judgment on the
merits of the excessive force claim inappropriate, both Dolan and
Delvalle are entitled to qualified immunity, as their actions were
Failure to Recognize Significance of Factual Dispute Regarding
the Alleged Shoving and the Phone (Obj. ¶¶ 11-12)
Plaintiff asserts that the R&R minimizes the factual dispute
between Officer Vanyo’s statement that she saw Plaintiff shove
Noary, and his deposition testimony that Noary shoved him. (Obj.
¶ 11). Plaintiff argues
that this is “for a jury to decide.”
Likewise, Plaintiff complains that the R&R is erroneous insofar as
it suggests that regardless of who shoved whom, Plaintiff “was not
complying with Officer Vanyo’s directives[,]” because it “makes a
difference” what those directives were, an issue which the R&R
failed to resolve. (Obj. ¶ 12 (citing R&R at 13) (“While a number
noncompliance are in dispute, it is undisputed that [P]laintiff was
not complying with Officer Vanyo’s directives on July 14, 2012.”)).
According to Officer Vanyo, when she informed Plaintiff they
were there to get the children’s car seat and Noary’s personal
belongings, he became “enraged”, was “yelling and screaming”, and
telling her to “talk to [his] lawyer,” and was “shoving his phone
in [her] face[.]” (Vanyo Tr. at 22-23). Noary, who was then trying
to remove the car seat from the car, was holding the “baby in her
hands,” when Plaintiff ran over and “pushed her” by pushing his
“hands into her shoulder,” and the “baby almost fell out of her
hands.” (Vanyo Tr. at 23, 24-25). Plaintiff does not dispute
Defendants’ statement in their submitted “Statement of Material
Facts,” that “Plaintiff acknowledges that physical contact was made
between himself and Ms. Noary while she was holding Shadi, but
claims that Ms. Noary pushed him.” (Pl’s Counterstmt, Resp. to
However, for purposes of the probable cause and qualified
immunity analyses, Plaintiff’s arguments regarding the significance
of these factual disputes fall wide of the mark. As the Second
probabilities, not an ascertainment of truths.” Loria v. Gorman,
306 F.3d 1271, 1288-89 (2d Cir. 2002) (holding that district court
erred in relying on factual dispute as to whether arrestee was
present in house such that police officer investigating noise
material for purposes of officer’s summary judgment motion based on
maliciously filed warrant application that falsely indicated he had
personal knowledge that arrestee was present at house when music
audible beyond property line was being played there, since officer
had relied on statements of neighbors and other officers to support
his belief that arrestee was violating city anti-noise ordinance)
(citations omitted); see also, e.g., Mesa, 2013 WL 31002, at *3-4,
F. Plaintiff’s Claim that Defendants Did Not Move for Summary
Judgment on the State Law Assault and Battery Claim (Obj. ¶ 13).
Plaintiff asserts that Defendants did not move for summary
judgment as to his New York State law claim for assault and
battery. (Pl’s Obj. ¶ 13). Defendants counter by pointing to their
Notice of Motion and supporting Declaration which sought “an Order
of the Court granting Summary Judgment and/or dismissing all of
Plaintiff’s claims. . . .” (Defs’ Resp. ¶ 20).
Plaintiffs further argue that the R&R erroneously recommended
Plaintiff suffered no injuries, and that some degree of force was
Plaintiff contends that this was erroneous, since he denies having
resisted arrest, and since the reasonableness of the degree of
force utilized by Officer Vanyo is a jury question. (Pl’s Obj.
¶ 13). The Court disagrees, as discussed further below.
With regard to a claim under Section 1983 for excessive force,
and a claim under New York State law for assault and battery, the
Second Circuit has held that “except for [42 U.S.C.] § 1983’s
requirement that the tort be committed under color of state law,
the essential elements of the two claims . . . [are] substantially
identical.” Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)
(citing Raysor v. Port Auth. of N.Y. and N.J., 768 F.2d 34, 39
(2d Cir. 1985), cert. denied, 475 U.S. 1027 (1986)). The R&R
discussed the excessive force claims and the assault and battery
claims under the same heading (see R&R at 8-14), and specifically
Plaintiff’s Rule 56 Statement of Facts and deposition, Officer
Vanyo pushed him into a wall, forcibly handcuffed him, and “bumped”
the back of his knee with her knee when placing him into the patrol
car. Plaintiff testified that he hit his forehead on the door of
the patrol car when Officer Vanyo “bumped” his knee, but he
sustained no bleeding, sprains, or broken bones. He testified to
lingering pain in his hand from the handcuffing procedure, though
no doctor has found objective medical evidence of any injury.
Plaintiff continues to work in the construction business.
The R&R first found that the force used by Officer Vanyo was
“de minimis at best” and that the use of force was objectively
reasonable under the circumstances, namely, that Plaintiff was
using his free hand to record her with his phone and then to toss
the phone to another individual present at the scene. (R&R at 11).
According to the R&R, such conduct justified “some use of force” in
unreasonable in light of the minor and undisputed amount of force
used.” (Id.). The R&R then found that Oficer Vanyo was entitled to
qualified immunity as to the excessive force claim, because it was
not objectively unreasonable for Officer Vanyo to believe that the
amount of force she employed did not violate Fourth Amendment
standards. (Id. at 12-13) (citing MacLeod v. Town of Brattleboro,
No. 5:10-CV-286, 2012 WL 1928656, at *7 & n. 5 (D. Vt. May 25,
2012) (arrestee’s “noncompliance with police orders alone was
sufficient to justify a show and use of some level of force”;
there, officer’s “use of the Taser constituted a de-escalation of
force after both verbal commands and the threat of deadly force
failed to produce the desired results”). The R&R proceeded to note
that because the essential elements of excessive force under
Section 1983 and assault and battery under New York State law are
essentially the same. (R&R at 13). The R&R concluded, “for the
reasons just stated . . . Officer Vanyo did not commit assault and
battery in violation of New York state law.” (Id.).
The Court finds no error in the R&R’s thorough analysis of the
merits of the excessive force claim, and the qualified immunity
issue regarding this claim. Plaintiff’s failure to challenge the
R&R’s finding regarding the Section 1983 excessive force claim
fatally undermines his Objection to the R&R’s finding regarding the
state law assault and battery claim since, as the R&R correctly
observed, the same standard is used to evaluate both claims.
understood to protect officials from claims based on state law,” a
comparable state law doctrine
“grant[s] government officials
qualified immunity on state-law claims except where the officials’
actions are undertaken in bad faith or without reasonable basis.”
Mangino v. Inc. Vill. of Patchogue, 814 F. Supp.2d 242, 250 n. 5
(E.D.N.Y. 2011) (quoting Jones v. Parmley, 465 F.3d 46, 63 (2d Cir.
2006); citation omitted). Since the Court agrees that Officer Vanyo
is entitled to qualified immunity regarding the excessive force
claim, summary judgment is similarly appropriate as to Plaintiff’s
state law assault and battery claim. See Jenkins v. City of N.Y.,
478 F.3d 76, 87 (2d Cir. 2007) (“If the detective defendants were
entitled to qualified immunity under federal law [as to the false
arrest claim], summary judgment would be similarly appropriate on
Jenkins’ state law false arrest claim.”).
Officer Vanyo Had Arguable Probable Cause to Arrest Plaintiff
As the R&R noted, a claim for false arrest “turns only on
whether probable cause [or arguable probable cause] existed to
arrest a defendant, meaning that “it is not relevant whether
probable cause existed with respect to each individual charge, or,
indeed, any charge actually involved by the arresting officer at
the time of arrest.” Jaegly v. Crouch, 439 F.3d 149, 154 (2d Cir.
2006). Stated another way, the relevant inquiry turns on “the
validity of the arrest,” not the validity of each individual
criminal charge. Id. As the R&R observed, “[w]hen determining
whether probable cause exists courts must consider those facts
available to the officer at the time of the arrest and immediately
before it,’” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)
(quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
(emphasis in original)), “as [p]robable cause does not require
absolute certainty.’” Id. (quoting Boyd v. City of N.Y., 336 F.3d
72, 76 (2d Cir. 2003) (brackets in original)).
Obstructing Governmental Administration in the Second Degree (New
§ 205.30); Harassment in the Second Degree (Physical Contact) (P.L.
§ 240.26(1); and Acting in a Manner Injurious to a Child (P.L.
circumstances surrounding the arrest as follows:
It is undisputed that two minor children were present
and, most importantly, it is undisputed that there was
physical contact between [P]laintiff and Noary while
Noary was holding an infant child. Officer Vanyo
maintains that she witnessed [P]laintiff push Noary, and
there is no evidence in the record that this statement
was false or fabricated.7 Given the prior report that
Rule 56 does not require or permit a court to determine whether a party or
a witness is telling the truth. See, e.g., Taylor v. City of N.Y., No. 03 CV
6477(RLC), 2006 WL 1699606, at *7 (S.D.N.Y. June 21, 2006) (“While court may be
inclined to trust the statements of one party and not the other, it is not the
court’s role to make such credibility assessments when determining a motion for
summary judgment.”). That said, a court may look at the presence of factors
suggesting that a witness’s statements are “not incredible[,]” Lee v. Sandberg,
136 F.3d 94, 104 (2d Cir. 1997).
[P]laintiff had been violent, the volatile nature of the
situation, the potential for escalating violence, and the
presence of young children, it was objectively reasonable
for Officer Vanyo to make a quick decision to arrest
[P]laintiff after observing the confrontation and
concluding that [P]laintiff pushed Noary.
(R&R at 15-16).
The situation into which Officers Vanyo and Khalil were drawn
on the evening of July 14, 2012, unquestionably was a “domestic
dispute” between Plaintiff and Noary. Recent decisions in § 1983
cases from this Circuit “reflect the recognition that domestic
disputes are extremely combustible, and call upon police officers
situations.” Mistretta v. Prokesch, 5 F. Supp.2d 128, 136 (E.D.N.Y.
1998). The “volatile nature of the situation” (R&R at 15-16) was
apparent to the Court based upon its review of both Officer Vanyo’s
recollections differ on certain points.
Plaintiff agrees that, as the R&R noted, his and Noary’s two
young children were present at the time of his arrest. (E.g., Obj.
And, as discussed above, prior to arriving on the scene,
Officer Vanyo had received information that Plaintiff had been
violent toward Noary.
With regard to the issue of who shoved whom, Officer Vanyo’s
arrest report states in pertinent part that Plaintiff
refused to comply with Officer [Vanyo’s] order to step
away, so [the officers] could talk with [Noary].
[Plaintiff] did push [Noary] while son in her arms and
daughter holding her hand. Daughter was almost knocked
over. [Plaintiff] was attempting to take car seat away
from [Noary]. [Plaintiff] then refused to comply with
officers to put his hands behind his back and had to be
(Police Report/Resist Arrest (Dkt #25-5, p. 1 of 1)). Plaintiff
counters that it was Noary who pushed him, but he concedes that
“physical contact was made between himself and Ms. Noary while she
was holding Shadi,” the younger child. (Pl’s Counterstmt, Resp. to
#24). Plaintiff further “acknowledge[d] that he put his hand on the
car seat while Ms. Noary was attempting to retrieve it, stating
that ‘she pulled and [he] let go.’” (Pl’s Counterstmt, Resp. to
#25; see also Deposition Transcript of Jassim Al-Mohammedi (“Pl’s
possession of the child’s car seat was an issue between him and
Noary that night.
In Mesa, 2013 WL 31002, a § 1983 case asserting claims of,
inter alia, false arrest, the district court was presented with a
similar “who pushed whom” dispute—the parties disagreed about the
nature and cause of certain physical contact between Mesa, a
plaintiff-arrestee, and Dolan, one of the defendants-officers.
While struggling with Dolan over a camera, Mesa claimed she was
pushed into Dolan by an unknown bystander. Both Mesa and Dolan
“agree[d] that Mesa made contact with Dolan, but there [was] a
dispute as to whether Mesa was pushed into Dolan, or hit Dolan
purposefully.” Id. (citations to record omitted). Mesa was issued
a summons and charged with resisting arrest, harassment, and
disorderly conduct. Id. at *4. The district court found that even
assuming Mesa only “inadvertently stumbled into” the officer while
“peacefully” leaving the scene as requested, under the other
circumstances present, a reasonable officer would have believed she
misdemeanor charges. See id. at *12. The district court explained,
body—inadvertent or not—together with the altercation over the
camera and the exchange of words between the two, it is beyond
genuine dispute that a reasonable officer could have believed that
probable cause existed to arrest Mesa for at least one of the
disorderly conduct]. . . .” Mesa, 2013 WL 31002, at *12 (emphasis
objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.’” Garcia v.
Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Escalera v. Lunn, 361
“[c]onstruing the facts in a light most favorable to [P]laintiff,
Officers Vanyo and Khalil are entitled to qualified immunity as to
the false arrest claim because there existed arguable probable
cause to arrest [P]laintiff for, at a minimum, harassment in the
second degree.” (R&R at 15 & n. 4). Harassment in the second degree
otherwise subject[ing] . . . [an]other person to physical contact,
or attempt[ing] or threaten[ing] to do the same. . . .” N.Y. PENAL
LAW § 240.26(1). Even under Plaintiff’s version of the facts, his
arrest occurred subsequent to the time he made some kind of
“physical contact”—inadvertent or deliberate—with Noary. These
events occurred in the evening, in the context of a emotionally
common-law wife over the custody of their children. Moreover,
Officer Vanyo had received information via Noary that Plaintiff had
been violent. “[L]ook[ing] to the information at the officers’
disposal at the time of the incident,” Mesa, 2013 WL 31002, at *12,
the Court finds that it was objectively reasonable, under the
circumstances, for Officer Vanyo to believe that probable cause,
and, in the alternative, that officers of reasonable competence
could disagree on whether the probable cause test was met as to the
charge of second degree harassment.8 Because the Court finds that
there was arguable probable cause to arrest Plaintiff, Officer
Vanyo, and by extension, Officer Khalil, are both entitled to
qualified immunity concerning the Plaintiff’s false arrest claim.
Although the R&R did not reach this issue, the Court finds that, on these
facts, arguable probable cause existed for the charge based on P.L. § 260.10(1),
which provides that a person endangers the welfare of a child when “[h]e
knowingly acts in a manner likely to be injurious to the physical, mental or
moral welfare of a child less than seventeen years old.” Id. “The statute does
not require proof . . . that a defendant directed the relevant conduct at the
child.” People v. Hitchcock, 98 N.Y.2d 586, 591 (2002) (citation omitted).
Objections except to the limited extent as discussed in Section
However, as also discussed above, this does not alter the
Court’s conclusion that the R&R’s recommendations are correct.
Accordingly, the Court adopts the R&R’s recommendations in full.
Specifically, Defendants’ Motion for Summary Judgment is granted,
and Plaintiff’s Complaint is dismissed in its entirety.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
January 17, 2017
Rochester, New York.
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