Nix v. The City of Rochester, et al

Filing 26

ORDER denying 22 Motion for Reconsideration. Signed by Hon. Michael A. Telesca on 4/12/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CORRY G. NIX,
Plaintiff,
DECISION and ORDER
No. 6:14-cv-06395(MAT)

-vsTHE CITY OF ROCHESTER, ROCHESTER
CITY POLICE DEPARTMENT, ROCHESTER
CITY POLICE OFFICER MICHAEL
JOHNSON, MICHELLE BROWN, EBONY
ARTCHETCKO, FRYE, RIVERA, WALDO and
JOHN DOE(s), intended to be another
Rochester City Police Officer(s)
whose name(s) is/are not Known to
the Plaintiff, and NELSON
JUSTIANO-DEJESUS,
Defendants.

I.

Introduction
Represented by counsel, Corry G. Nix (“Nix” or “Plaintiff”),

instituted this action against the City of Rochester (“the City”),
the Rochester Police Department (“RPD”), various named RPD officers
(Ebony Archetko, Michelle Brown, Thomas Frye, Michael Johnson,
Rafael Rivera, and Richard Waldo), and one or more unnamed RPD
officers

(collectively,

Justiano-DeJesus

“the

(“Justiano”),

City
a

Defendants”),
private

and

citizen,

Nelson
alleging

violations of his constitutional rights under 42 U.S.C. § 1983, as
well as state law causes of action sounding in tort.

II.

Factual Background and Procedural Status
At issue in the Complaint is constitutionality of two arrests

of Nix on the mornings of July 16, 2013, and July 18, 2013. Both
arrests concern Nix’s actions in regard to co-defendant Justiano,
the neighbor of Nix’s daughter, Shana Nix (“Shana”). Shana resided
with her infant child in one side of a duplex house located at
127-129 Anthony Street in the City of Rochester. Shana lived at
#129; Justiano and members of his family lived at #127.1 Plaintiff
asserted claims of excessive force, false arrest, and malicious
prosecution against the named RPD officers who participated in
these arrests.
The City Defendants moved for summary judgment dismissing the
Complaint in its entirety. The Court granted the summary motion in
full and dismissed the Complaint with prejudice (Dkt #20).
Nix subsequently filed a Motion for Reconsideration (Dkt #22).
The City Defendants filed a Declaration (Dkt #23) and Memorandum of
Law in Opposition (Dkt #23-1), and Nix filed a Reply (Dkt #24). For
the reasons discussed below, the Motion for Reconsideration is
denied.

1

Additional factual background will be provided as necessary in the Court’s
discussion of Plaintiff’s arguments for reconsideration.

-2-

III. Plaintiff’s Motion for Reconsideration
A.

Applicable Legal Principles

The Second Circuit has explained that “[t]he standard for
granting

a

[motion

for

reconsideration]

is

strict,

and

reconsideration will generally be denied unless the moving party
can

point

to

controlling

overlooked—matters,

in

decisions

other

words,

or

data

that

that

might

the

court

reasonably

be

expected to alter the conclusion reached by the court.” Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations
omitted). “The major grounds justifying reconsideration are an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest
injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (internal quotations and citations
omitted).
B.

Overview of the Parties’ Arguments

Nix does not assert that there has been an intervening change
in controlling law, or that new evidence is available. Instead, he
contends

that

reconsideration

is

warranted

because

the

Court

committed clear error in basing its probable cause determination on
certain material facts he asserts are disputed, and on findings he
contends were based on inadmissible evidence. Nix asserts that the
Court’s Decision and Order is based what he characterizes as
erroneous “findings”. These “findings” are as follows:
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1. [t]hat Plaintiff confronted Justiano-DeJesus and his
family;
2. [t]hat Plaintiff’s argument with Justiano-DeJesus and
his family escalated;
3. [t]hat a bystander called 911 and reported that things
were getting heated;
4. [t]hat Justiano-DeJesus called 911 to report that he
received threats by Plaintiff against him and his family;
5. [t]hat “according to officers, Plaintiff got into and
out of his wife’s vehicle several times; each time he was
directed to get back into the vehicle and to avoid having
any contact with Justiano-DeJesus or his family”;
6. [t]hat Plaintiff got out of his vehicle and was
recording Justiano-DeJesus, who was on the porch of the
Anthony Street duplex, with his cell phone camera”;
7. [t]hat “Justiano-DeJesus later swore out a complaint
charging the Plaintiff with a violation of Harassment in
the Second Degree under New York Penal Law (“P.L.”) §
240.26(1). The complaint alleged that Plaintiff said to
Justiano-DeJesus, “I’m gonna shoot you up” and “I’m gonna
get you[,]” which cause[d] [him] to feel threatened and
alarmed”; and
8. [t]hat Plaintiff’s “admission to Officer Archetcko
supported his arrest and the charge of second degree
harassment. . . .”
(Plaintiff’s Memorandum of Law (“Pl’s Mem.”) (Dkt #22-2) at 1-2).
Of the so-called “findings” identified above, numbers 1, 2, 3, 4,
7, and 8 pertain to the arrest on July 16, 2013; numbers 5 and 6
pertain to the arrest on July 18, 2013.
The RPD Defendants counter that Nix’s interpretation of the
basis for this Court’s Decision and Order granting summary judgment
is inaccurate, and that his claims regarding supposedly disputed
fact issues are contrary to his own deposition testimony. (RPD
-4-

Defendants’ Memorandum of Law in Opposition (“Defs’ Opp.”) (Dkt
#23-2) at 2-3).
C.

Discussion
1.

Nix

The Hearsay Argument

claims

inadmissible

that

hearsay,

“findings”
namely,

3,

the

4,

911

mornings of July 16th and July 18th.

and
call

5

are

records

based
from

on
the

Notably, in his original

opposition papers, Nix did not raise any challenges to the exhibits
submitted by the RPD Defendants, which included the 911 call
records. This argument is not properly made on reconsideration, as
“[i]t

is

well-settled

that

Rule

59

is

not

a

vehicle

for

relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a “second
bite at the apple[.]” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144
(2d Cir. 1998) (citations omitted).
In any event, Plaintiff is mistaken that 911 calls are,
categorically,

inadmissable

hearsay,

“with

no

apparent

exception[.]” (Pl’s Mem. (Dkt #24-1) at 2). While 911 calls may not
qualify under the business record exception to the rule against
hearsay, e.g., People v. Smith, 557 N.Y.S.2d 424 (2d Dep’t 1990)
(citation omitted), they have been held admissible under other
exceptions to the hearsay rule such as the present sense impression
and excited utterance exception. See, e.g., People v. Conyers, 777
N.Y.S.2d 274, 277 (Sup. Ct. 2004) (holding that 911 calls by

-5-

[witness of crime] “fall within the perimeters of the ‘excited
utterance’ exception to the hearsay rule inasmuch as there was no
opportunity for [her] to reflect and falsify her account”).
2.

“Findings” 1, 2, 3, 4 & 8 (Regarding the July 16,
2013 Arrest)

With regard to “finding” 1, Nix’s own deposition testimony
established that he did have a confrontation with Justiano and his
family on July 16, 2013. For instance, Nix testified that when he
responded to his daughter’s requests for help on July 16th, he
“knocked on the door next door and where—the guy who—who was
introduced as Nelson Justiano, where he lives, we knocked on the
door and some—it was this older relative that was living with him
[i.e., Justiano]. He came out and we were asking him did you guys
break in.” (Deposition of Corry Nix (“Nix Dep.”) at 34:17-2 (Dkt
#13-2), Exhibit (“Ex.”) B to Declaration of Christopher Noone, Esq.
(“Noone Decl.”) (Dkt #13-1) (emphasis supplied)); see also Nix Dep.
at 36:8-11 (“The older guy [who was living with Justiano], he came
out. And I was asking him did you guys break in to my daughter’s
house

and

whatnot.”)

(emphasis

supplied).

It

is

clear

that

Plaintiff was accusing Justiano and his family members of stealing
from his daughter.
As to “finding” 2, the Court’s statement that the interaction
between

Plaintiff

and

Justiano

escalated

in

intensity

was

background information, and was not a material factor in the
Court’s decision. In any event, Plaintiff’s deposition testimony
-6-

supports the Court’s characterization of the confrontation as
becoming heated. For instance, during his deposition, Plaintiff
responded

affirmatively

when

asked

if

his

conversation

with

Justiano’s family member became loud, stating, “[s]omewhat loud.
Somewhat loud. My daughter, she was upset, so she was screaming. .
. .” (Nix Dep. at 36:3-6).
As to “findings” 3 and 4, there can be no material dispute
that multiple 911 calls were made on July 16, 2013, with regard to
the confrontation between Plaintiff and his neighbors. With regard
to “finding” 3 in particular, the Court’s reference to the 911 call
made by a bystander was incidental to this Court’s probable cause
determination and was merely offered as information to complete the
narrative.

Moreover,

the

bystander’s

description

of

the

confrontation as “becoming heated” was corroborated by Plaintiff’s
admission, discussed above, that his confrontation with Justiano
was “somewhat loud” and that his daughter was “screaming.”
With regard to “finding” 4, there likewise can be no material
dispute that the putative victim, Justiano, called 911 to report
that he received threats by Plaintiff against him and his family,
and that in that call, he accurately described Plaintiff, what he
was

wearing,

his

vehicle

and

license

plate

number,

and

the

direction he was last seen heading. (See Transcripts of 911 Calls,
attached as Ex. D (Dkt #13-2) to Noone Decl. (Dkt #13-1), p. 55 of
64 (Justiano reported to the 911 operator that an “unknown black

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male in a long-sleeved white t-shirt” was “outside threatening him
w/a gun” and that the “susp[ect] came in a red truck”)).
3.

“Finding” 7 and the Falsified Evidence Argument
(Regarding the July 16, 2013 Arrest)

Plaintiff contends that the criminal complaint signed by
Justiano was falsified by the RPD, and therefore was not properly
relied on by the Court in its determination that probable cause
existed on July 16, 2013, to arrest Plaintiff for Harassment in the
Second Degree (P.L. § 240.46(1)). Although Plaintiff has identified
a potential irregularity in Officer Thomas Frye’s completion of the
Information/Complaint (Ex. G to Second Declaration of Christopher
Noone (“2nd Noone Decl.”) (Dkt #23), insofar as Frye testified that
he signed his name as a witness to the signature of the complainant
even though he did not personally witness Justiano signing the
Information/Complaint,

Plaintiff

allegations

Information/Complaint

in

the

has

not

established
were

that the

“falsified.”

Moreover, as discussed further below, the propriety of the Court’s
probable cause determination does not stand or fall based on this
potential procedural irregularity.
“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) (citations omitted). However, a signed information
-8-

or complaint is not a prerequisite to a valid arrest, for “it is
well-established that a law enforcement official has probable cause
to arrest if he received his information from some person, normally
the putative victim or eyewitness.” Martinez v. Simonetti, 202 F.3d
625, 634 (2d Cir. 2000) (citation and internal quotations omitted);
see also, e.g., Donovan v. Briggs, 250 F. Supp.2d 242, 251-52
(W.D.N.Y. 2003) (“Both New York State and federal courts have held
that a purported crime victim’s identification of the alleged
culprit

will

arrest.”)

generally

(collecting

suffice

to

cases).

create

“The

probable

veracity

cause

of

to

citizen

complain[an]ts who are the victims of the very crime they report to
the police is assumed.” Miloslavsky v. AES Eng’g Soc., Inc., 808 F.
Supp. 351, 355 (S.D.N.Y. 1992) (citing Adams v. Williams, 407 U.S.
143,

146-47

(1972)),

aff’d,

993

F.2d

1534

(2d

Cir.

1993).

Furthermore, the probable cause assessment “is to be made on the
basis of the collective knowledge of the police rather than on that
of the arresting officer alone.” United States v. Lavallee, 517
F.2d 750, 753 (2d Cir. 1975).
Here, RPD Officer Michelle Brown testified that on the morning
of July 16, 2013, she was “responding to a call for a male with a
gun on Anthony Street[.]” (Deposition of Michelle Brown (“Brown
Dep.”) (Dkt #16-8) at 6:8-21). Brown recalled that there were
“multiple calls that came in [regarding this incident] that were
all duped together.” (Id. at 7:9-10).

-9-

Brown’s “job card” from the

police dispatcher, which contained the words used in the radio
transmission to her, stated as follows: “Unknown male black last
seen wearing a white shirt outside threatening him with a gun.
Suspect came in a red truck[,]” “a red Chevy, license plate
FAM3482.” (Id. at 21:9-24). Brown testified that, according to the
job card, the 911 caller who reported being threatened by a black
male in a white shirt “was a Nelson Justiano.” (Id. at 21:25–22:28). Brown intercepted a vehicle matching the description in the 911
dispatch on Post Avenue, a few blocks away from Anthony Street, and
ordered the driver (later identified as Nix) to get out of his
vehicle. Officers Frye and Ebony Archetcko arrived at the scene
moments later in response to the man-with-a-gun dispatch, and
assisted Officer Brown in handcuffing Plaintiff.

(Deposition of

Thomas Frye (“Frye Dep.”) (Dkt #16-10) at 12-17; Deposition of
Ebony Archetcko (“Archetcko Dep.”) (Dkt #16-7) at 6-11).
Archetcko then went over to 127-129 Anthony Street, and spoke
to the victim (Justiano). Archetcko did not recall the name of the
victim

at

the

time

of

her

deposition,

but

she

stated

that

determined who the victim was based on the Anthony Street address
to which she originally had been dispatched. (Archetcko Dep. at 1718). Archetcko knew that the victim would be located on the lefthand side of the duplex at 127-129 Anthony Street. (Id. at 18).
Archetcko said that the victim related to her that Plaintiff told
him that he had a gun; the victim did not actually see Plaintiff

-10-

with a gun. (Id. at 18-19). Archetcko then went back to the Post
Avenue scene, where Plaintiff was being detained, to relay to Frye
the information she had gathered from the victim. (Id. at 21-22).
Using the information provided by Archetcko, Frye then completed
the narrative portion of the criminal complaint. Frye testified
that he asked Archetcko what were Justiano’s “exact words” so he
could complete the form. (Frye Dep. at 32-35). Archetcko told him
that Justiano said that Plaintiff told him, “‘I’m going to shoot
you up’” and “‘I’m going to get you.’” (Id. at 35:4-8).
Archetcko recalled that Plaintiff was brought from the Post
Avenue scene to the Anthony Street scene for a show-up with
Justiano. Brown testified she also spoke to Justiano at the Anthony
Street scene. (Brown Dep. at 22,2 24-26). Brown commented that
since

they

did

not

locate

a

gun

in

the

course

of

their

investigation, Plaintiff was “arrested for harassment and not
menacing, which would have been a gun charge.” (Id. at 27:3-6).
Probable

cause

exists

“when

the

arresting

officer

has

‘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.’” Escalera v. Lunn, 361 F.3d 737, 743
(2d Cir. 2004). Here, Officers Brown, Archetcko, and Frye had

2

Page 23 of Brown’s deposition transcript is missing from the copy supplied
by the City Defendants to the Court.

-11-

probable cause to believe that Plaintiff committed the crime of
second-degree harassment3 based on the dispatch calls, the victim’s
statements to Archetcko which she relayed to Frye, and Brown’s
investigation at the scene. See Smith v. City of New York, 388 F.
Supp.2d

179,

185

(S.D.N.Y.

2005)

(finding

that

officer

“had

probable cause to arrest Smith at the Hospital on August 4, 2001
based on [the victim]’s in-person identification of Smith and her
description of the alleged rape” and, apart from the victim’s
identification of Smith and her description of the alleged assault,
the officer relied on information from other police personnel
concerning the events on the dates at issue, which constituted
further probable cause under the collective knowledge doctrine).
“[E]ven if probable cause to arrest is ultimately found not to
have existed, an arresting officer will still be entitled to
qualified immunity from a suit for damages if he or she can
establish an ‘arguable probable cause’ to arrest.” Escalera, 361
F.3d at 743. “Arguable probable cause exists ‘if either (a) it was
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.’” Id. Although
the Court did not reach the issue of qualified immunity in its

3

“A person is guilty of harassment in the second degree when, with intent
to harass, annoy or alarm another person: 1. [h]e or she 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 (1).

-12-

prior Decision and Order, the Court finds that at the very least,
on the present record, it was objectively reasonable for the RPD
officers to believe that probable cause existed, and that officers
of reasonable competence could disagree on whether the probable
cause test was met. See Smith, 388 F. Supp.2d at 186.
4.

“Findings” 5 and 6 (Regarding the July 18, 2013
Arrest)

“Findings” 5 and 6 concern Plaintiff’s arrest on July 18,
2013, for violating the order of protection obtained by Justiano
against him. Plaintiff admits that Justiano obtained an order of
protection against him which, inter alia, directed Plaintiff to
“stay away from” Justiano, his home, his business, etc., and to
have “no contact whatsoever” with Justiano. (Order of Protection,
Ex. P (Dkt #13-4) to Noone Decl. (Dkt #13-1)). The order of
protection indicates that it was served on Plaintiff in court, and
his signature appears at the bottom of it. (Id.).
On July 18, 2013, RPD Officers Michael Johnson and Rafael
Rivera responded to 127-129 Anthony Street for reports of “neighbor
trouble.” When the arrived at the scene, Nix’s vehicle was parked
in the middle of Anthony Street, “verging on the south curb,” which
is where the residents of the duplex at 127-129 Anthony Street were
located. (Deposition of Michael Johnson (“Johnson Dep.”) at 8-9,
Ex. C (Dkt #13-2) to Noone Decl. (Dkt #13-1). Officer Brown, who
had been present on July 16th, also responded to the scene. Officer
Johnson testified that he was aware that Plaintiff was the subject
-13-

of a “stay away” order of protection regarding the residents at 127
Anthony Street (Justiano and his family). Officer Johnson observed
Plaintiff get into and out of his car several times. Officer
Johnson asked him to get back into his vehicle as well as to leave
the area, but Plaintiff did not comply. (Id. at 8, 11-12). Then
Plaintiff “began walking towards the sidewalk and holding up a -his phone videotaping the people that were on the porch.” (Id.). At
that point, Officer Johnson arrested him for Criminal Contempt in
the Second Degree (P.L. § 215.50(3)) for violating the order of
protection.
“[C]riminal contempt is established when there is a clear and
definite order of the court, the contemnor knows of the order, and
he willfully disobeys it.”

Holtzman v. Beatty, 468 N.Y.S.2d 905,

907 (2d Dep’t 1983) (citations omitted). The existence and clarity
of the order are not in dispute; nor is there a dispute as to
Plaintiff’s awareness of order’s contents. See People v. Williams,
696 N.Y.S.2d 369, 370 (Crim. Ct. 1999) (“A defendant has knowledge
of an order when he has been duly served with the order or was
present in court and heard it issued.”) (citation omitted). When
asked at the PSS hearing if he knew the terms of the order of
protection, he testified, “Yeah. I’m not supposed to go to like his
house, his job, say anything, like menace. I’m not supposed to
threaten him, or do anything. Send anything by a third party.” (PSS
Hearing Testimony of Corry G. Nix (“Nix Hrg. Test.”) at 27, Ex. J

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(Dkt #13-3) to Noone Decl. (Dkt #13-1). Nix also testified that as
soon as he “got out the car, [Officer] Brown was saying that [he]
could be arrested for even just being there[.]” (Id.).
Plaintiff

attempts

to

create

material

issues

of

fact

concerning the probable cause finding on the basis that there are
alleged disputes about the number of times he got into and out of
his vehicle, and the identity of the police officer who gave him
instructions to get back into the car or wait down the street.
These alleged issues of fact are not material and do not detract
from the finding that the officers had probable cause, or at a
minimum, arguable probable cause to arrest Plaintiff for seconddegree criminal contempt. See, e.g., Williams v. Suffolk Cty., 284
F. Supp.3d 275, 286 (E.D.N.Y. 2018) (victim informed arresting
officer that the plaintiff had violated the order of protection by
approaching her twice, coming within one foot of her the second
time, and taking photographs of her; finding that “this alone gave
Officer Jeheber probable cause to arrest the [p]laintiff”).
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiff’s

Motion

Reconsideration (Dkt #22) is denied.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 12, 2018
Rochester, New York
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for