Fleurimond v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RICARDO FLEURIMOND and SAVERIA

FECENTESE, as Administrator of the Estate of

SAVINO DIGIOSA,

MEMORANDUM & ORDER

Plaintiffs, 16-CV-750 (PKC) (ST)

- against -

RODNEY HOLDER, HONG LOW, JOHN

WRIGHT, CHRISTINE ABRIL, SHEILA

BENJAMIN, and the CITY OF NEW YORK,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiffs Ricardo Fleurimond and Savino Digiosa (“Plaintiffs”)1 bring this action against

Defendants Rodney Holder (“Holder”), Hong Low (“Low”), John Wright (“Wright”), Christine

Abril (“Abril”), Sheila Benjamin (“Benjamin”), and the City of New York (collectively,

“Defendants”), advancing claims under 42 U.S.C. § 1983 for malicious prosecution and municipal

liability. Defendants move for summary judgment on all of Plaintiffs’ claims. For the following

reasons, the Court grants Defendants’ motion for summary judgment in its entirety and dismisses

this action.

1 This action was filed on February 12, 2016. (See Complaint (“Compl.”), Dkt. 1.) On

October 26, 2016, Defense Counsel informed the Court that Plaintiff Digiosa had passed away.

(Dkt. 15.) Saveria Fecentese, the executor of Digiosa’s estate, was substituted for Digiosa in this

action pursuant to Federal Rule of Civil Procedure 25(a)(1). (Dkt. 20.) Notwithstanding this

substitution and for the sake of clarity, the Court refers to Digiosa as a Plaintiff in this

Memorandum & Order.

BACKGROUND

I. Facts

A. The Taking of the Air Conditioners

During the events at issue in this case, Plaintiffs Fleurimond and Digiosa were employed

as City Laborers within the New York City Department of Health and Mental Hygiene

(“DOHMH”). (Defendant’s 56.1 Statement2 (“Defs’ 56.1”), ¶¶ 3–4; Deposition of Ricardo

Fleurimond (“Fleurimond Dep.”), Dkt. 60-1, at ECF3 448.)4 As City Laborers, Plaintiffs regularly

worked together as partners and completed work assignments that required them to pick up and

deliver items between DOHMH locations. (Defs.’ 56.1, ¶¶ 15–16.) Plaintiffs were each assigned

a DOHMH work van, which they used both to travel to and from work, and to complete tasks

during their work shifts. (Id. ¶ 17.) In October of 2012, the Kingsland Warehouse—a storage

space for DOHMH supplies—flooded as a result of Hurricane Sandy, and the ground floor was

2 Unless otherwise noted, a standalone citation to a party’s 56.1 statement denotes that this

Court has deemed the underlying factual allegation undisputed. Any citation to a party’s 56.1

statement incorporates by reference the documents cited therein. Where relevant, however, the

Court may cite directly to the underlying document. The Court has deemed facts averred in a

party’s 56.1 statement to which the opposing party cites no admissible evidence in rebuttal as

undisputed. See Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881 (TCP), 2012 WL

4498827, at *2 n.2 (E.D.N.Y. Sept. 12, 2012) (“Eastern District Local Rule 56.1 requires . . . that

disputed facts be specifically controverted by admissible evidence. Mere denial of an opposing

party’s statement or denial by general reference to an exhibit or affidavit does not specifically

controvert anything.” (emphasis in original)). Additionally, to the extent a party’s 56.1 statement

“improperly interjects arguments and/or immaterial facts in response to facts asserted by [the

opposing party] without specifically controverting those facts,” the Court has disregarded the

statement. Risco v. McHugh, 868 F. Supp. 2d 75, 87 n.2 (S.D.N.Y. 2012).

3 “ECF” refers to the “Page ID” number generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

4 City Laborers “do all the moving jobs for the [C]ity of New York or for the [New York

City] Health Department,” such as delivering supplies and disposing of unneeded items.

(Fleurimond Dep., Dkt. 60-1, at ECF 448.)

considerably damaged. (Id. ¶¶ 6, 8; Fleurimond Dep., Dkt. 60-1, at ECF 483–84.) The Kingsland

Warehouse was subsequently closed for several months so that it could be repaired. (Deposition

of Rodney Holder (“Holder Dep.”), Dkt. 60-2 at ECF 655.)

On February 25, 2013, Plaintiffs were given a written invoice at the DOHMH garage

instructing them to pick up supplies at the Kingsland Warehouse. (Defs.’ 56.1, ¶ 18.) When

Plaintiffs arrived at the Kingsland Warehouse, they encountered Defendant Holder, whom they

referred to by his nickname, “Kenny.” (Id. ¶ 20; Plaintiffs’ 56.1 Statement (“Pls.’ 56.1”), Dkt. 59,

¶ 20; Fleurimond Dep., Dkt. 60-1, at ECF 482.)5 Holder called Defendant Abril, Director of

Materials Management at DOHMH (Defs.’ 56.1, ¶ 5), to tell her that Plaintiffs were at the

Kingsland Warehouse to pick up supplies (id. ¶ 23). Abril then directed Defendant Low, a

DOHMH stock worker at the Kingsland Warehouse (id. ¶ 12), to go to the Kingsland Warehouse

and instruct Plaintiffs on how to transport various items described on the invoice to a different

location (Deposition of Christine Abril (“Abril Dep.”), Dkt. 60-3, at ECF 683; Defs.’ 56.1, ¶ 24).

Holder told Plaintiffs to wait for Low on the loading dock at the Kingsland Warehouse. (Defs.’

56.1, ¶ 25.)

The details of the subsequent interaction that took place between Defendant Holder and

Plaintiffs are disputed. While waiting on the loading dock, Plaintiffs observed stacks of about 75

5 During the events at issue in this case, Defendant Holder worked as a Records Aide for

DOHMH and was responsible for receiving, storing, and locating documents and records. (Defs.’

56.1, ¶ 10.) Plaintiff Fleurimond was under the impression that Holder was “above” him in the

chain of command at DOHMH and that Holder had the authority to decide which items were to be

transported to and from the Kingsland Warehouse. (Fleurimond Dep., Dkt. 60-1, at ECF 495–96.)

According to Fleurimond, Plaintiffs believed Holder was a DOHMH supervisor because of

paperwork they had received, including an invoice, which identified him as such. (Id.)

to 100 air conditioners in boxes. (Id. ¶ 26.)6 At deposition, Plaintiff Fleurimond testified that he

asked Holder whether he could take a couple of air conditioners for himself and Holder replied

that the air conditioners were “going in the garbage” and that Fleurimond could “do whatever [he]

want[ed] to do.” (Fleurimond Dep., Dkt. 60-1 at ECF 486; see also id. at ECF 538 (“[Holder] said

[the air conditioners are] going to go in the garbage, that’s [what] you guys are coming here for

anyway, to throw them away, they’re salvage,7 so yes, you can take one or whatever you want.”).

According to Holder, Plaintiffs asked if the air conditioners were going to be “put in the garbage”

and the exact phrase Holder said in response was that “the only thing that I know about, are my

records.” (Holder Dep., Dkt. 55-4, at ECF 302.) Intending to take the air conditioners home for

their personal use (Defs.’ 56.1, ¶ 31), Plaintiffs loaded five of the air conditioners into Plaintiff

Fleurimond’s work van and two of the air conditioners into Plaintiff Digiosa’s work van (id. ¶ 30).

At deposition, Fleurimond testified that Holder helped Plaintiffs transport the air conditioners from

the loading dock into Fleurimond’s and Digiosa’s work vans. (Fleurimond Dep., Dkt. 60-1, at

ECF 490.) Completely denying this version of events, Holder testified at deposition that (1) he

never helped Plaintiffs load the air conditioners into their work vans, (2) he never saw Plaintiffs

loading the air conditioners into their work vans, and (3) he never saw the air conditioners in

Plaintiffs’ work vans at any point in time. (Holder Dep., Dkt. 60-2, at ECF 658.)

Shortly after Plaintiffs finished loading the seven air conditioners into their respective work

vans, Defendant Low arrived. (Defs.’ 56.1, ¶ 32.) Low identified the supplies Plaintiffs were

6 At deposition, Plaintiff Fleurimond testified that some of the boxes were “open because

of water damage” (Fleurimond Dep., Dkt. 60-1, at ECF 488–89), but conceded that the five air

conditioners he intended to take home for private use were in boxes that were unopened (id. at

ECF 490).

7 “Salvage” refers to items that are or will be “throw[n] [into] the garbage” or otherwise

disposed of with no anticipated future use. (Id. at ECF 470.)

assigned to transport and helped load those supplies into Plaintiffs’ work vans. (Id. ¶ 33.) In the

process, Low observed the air conditioners in the back of Plaintiffs’ work vans, but made no

mention of the air conditioners to Plaintiffs. (Id. ¶ 34; Pls.’ 56.1, ¶ 34.) After Plaintiffs left the

Kingsland Warehouse, Low contacted Defendant Wright—supervisor of stock workers at the

Kingsland Warehouse (Defs.’ 56.1, ¶ 13)—and told him about the air conditioners that he saw in

Plaintiffs’ work vans (id. ¶ 36). Wright then called Defendant Abril and told her that Low “said

that there was a problem when [Low] was loading one of the vans” and “that [Low] saw some of

the air conditioners.” (Abril Dep., Dkt. 60-3, at ECF 682–83.) Abril “first contacted the Bureau

of Labs,”8 which owned the air conditioners, “to see if they possibly sent someone for air

conditioners and forgot to notify” her. (Id. at ECF 683.) After the Bureau of Labs confirmed that

it had not sent anyone for the air conditioners, Abril “called Roy Meade9 to [ask] the same thing,

if he had sent some drivers for air conditioners that [she] was unaware of and he said no.” (Abril

Dep., Dkt. 60-3, at ECF 683.) Abril told Roy Meade to check to see if the air conditioners had

indeed been removed from the Kingsland Warehouse and, if so, to ensure that they were promptly

returned. (Id. at ECF 684.)

Defendant Wright then called Plaintiff Fleurimond and told him to return the air

conditioners to the Kingsland Warehouse. (Defs.’ 56.1, ¶ 39.) Fleurimond subsequently called

Plaintiff Digiosa and told him to return the two air conditioners Digiosa had taken. (Id.) At

deposition, Fleurimond summarized the events as follows:

[Wright] said they said you weren’t supposed to take the ACs, so bring them back.

I said yeah, but [Holder] gave them [to] me. I mean, I call [Holder] Kenny or

something. Whatever I call him. [Holder] said yeah, I can have it. [Wright] said

8 The record is unclear as to what the “Bureau of Labs” is.

9 During the events at issue in this case, Roy Meade was Plaintiffs’ direct supervisor.

(Fleurimond Dep., Dkt. 60-1, at ECF 466.)

all right, but they found out you guys weren’t supposed to take it, so bring them

back. I said all right. So that’s when I called Digiosa. I said I just received a phone

call from [Wright], he said for us to bring them back, you know. And you know,

Digiosa said what do you mean they said bring them back? I said, yeah, they said

they found out we weren’t supposed to take them, to bring them back. So I rela[y]ed

the message to Digiosa, so then I called [Wright]. I said I got like two more stops

left, can I bring them back the same day once I’m done[?] He said, well, to be

honest with you—they close early. They close at 3 and we punch out at 3:30. He

said the best thing for you to do is bring them back in the morning, because by the

time we get there they’re closed. So we took the ACs—well, I took the AC—the

AC was in my van and I drove home.

(Fleurimond Dep., Dkt. 60-1, at ECF 498–99.) After Plaintiffs finished work for the day, they

traveled to their respective homes in their DOHMH work vans, where the air conditioners

remained overnight. (Defs.’ 56.1, ¶¶ 41–42; Fleurimond Dep., Dkt. 60-1, at ECF 497.) Plaintiffs

returned the air conditioners to the Kingsland Warehouse the following morning. (Defs.’ 56.1,

¶ 43.)

B. The Prosecution

On the day of the incident, February 25, 2013, Defendant Abril contacted Defendant

Benjamin, DOHMH Deputy Assistant Commissioner and Abril’s direct supervisor (id. ¶ 14), and

informed her “about the missing air conditioners” (id. ¶ 40; Abril Dep., Dkt. 60-3, at ECF 684).

Benjamin told Abril to “file a report with health police.”10 (Id.) The next day, February 26, 2013—

after speaking with Benjamin but before initiating contact with the DOHMH police—Abril came

to learn that Plaintiffs had returned the air conditioners. (Id.) Abril nevertheless complied with

Benjamin’s instruction and reported Plaintiffs’ removal of the air conditioners to DOHMH police

later that day. (Defs.’ 56.1, ¶ 44.) At deposition, Abril suggested that she believed that Plaintiffs

only returned the air conditioners because of her direction to do so, communicated to Plaintiffs

10 At deposition, Abril clarified that the “health police” are police officers who work

specifically for DOHMH. (Id. at ECF 684.)

through their immediate supervisor, and that Plaintiffs’ return of the units did not therefore affect

Abril’s belief that Plaintiffs had initially taken the air conditioners without authorization and that

this conduct constituted theft of DOHMH property. (See Abril Dep., Dkt. 60-3, at ECF 684 (“I

had told [Roy Meade] if you could please call [Plaintiffs] to see [if they have the missing air

conditioners], and if they do, please return them.”).)

The DOHMH Complaint identified Abril as the reporter of the crime, the relevant offenses

as Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth

Degree, and the victim of the crime as DOHMH. (See DOHMH Complaint Report, Dkt. 55-6, at

ECF 306.) Additionally, the DOHMH Complaint identified Plaintiffs as the culprits and contained

the following “description of incident” prepared by DOHMH Investigator Lester Lloyd (“Lloyd”):

The reporter [Abril] informed NYC DOHMH Police that [from February 22, 2013

through February 26, 2013] the listed items [seven air conditioners] were removed

without permission or authority from the listed location [DOHMH loading dock].

[Plaintiffs] are the individuals that possessed the listed items without permission or

authority when returning to the listed location.

(Id.; Defs.’ 56.1, ¶ 45.) On February 26, 2013, after reporting the incident to DOHMH police,

Abril informed Benjamin that the air conditioners had been returned. (Abril. Dep., Dkt. 60-3, at

ECF 684.) Benjamin directed Abril to report the incident to the New York City Police Department

(“NYPD”). (Id.)

Three days later, on March 1, 2013,11 Defendant Abril—at the direction of Benjamin and

other individuals from DOHMH “upper management”—went to the NYPD’s 94th Precinct and

made a complaint about the removal of the air conditioners from the warehouse. (Defs.’ 56.1,

11 There were 28 days in February 2013. See 2013 Calendar, https://www.calendar-

365.com/2013-calendar.html (last visited on Aug. 21, 2019). The incident occurred on Monday,

February 25, 2013. Abril reported it to DOHMH police on Tuesday, February 26, 2013 and to the

NYPD that Friday, March 1, 2013. (Defs.’ 56.1, ¶¶ 22–30, 44, 46.)

¶ 46; Abril Dep., Dkt. 60-3, at ECF 684.) At deposition, Abril testified that she gave the NYPD

“the full story of what was told to me, what everyone else had said, the information regarding the

air conditioners, [and] the money value” of the air conditioners. (Id. at ECF 685.) NYPD officers

then spoke to Defendants Holder and Low as part of an investigation into the alleged crime. (Defs.’

56.1, ¶ 48.) A formal criminal complaint report, dated March 1, 2013, was then created. (Id.)

This complaint contained a narrative portion that provided as follows:

AT T/P/O C/V STATES THAT THE ABOVE SEVEN NEW AIR

CONDITIONERS WERE STOLEN FROM THE ABOVE LOCATION. THE

REPORTER STATES THAT THE ABOVE WITNESSES DID OBSERVE THE

ABOVE[-]MENTIONED PERPS AS THEY DROVE AWAY WITH THE

STOLEN PROPERTY. THE REPORTER STATES THAT THE ABOVE PERPS

ARE EMPLOYED BY THE NYC HEALTH DEPARTMENT AND ARE

KNOWN FOR TAKING THINGS IN THE PAST. THE REPORTER STATES

THAT PERPS BROUGHT BACK THE STOLEN MERCHANDISE, UPON BEING

CONFRONTED BY A SUPERVISOR AT ANOTHER LOCATION. REPORTER

STATES THAT THE PERPS TOOK ADVANTAGE OF THE FACT THAT

SURVEILLANCE CAMERAS WERE RECENTLY REMOVED FROM THE

LOCATION.

(NYPD Complaint Report, Dkt. 55-7, at ECF 307–08 (emphasis added).) The complaint identified

Holder as a witness to the alleged crime (id. at ECF 308), Low as a reporter of the alleged crime

(id. at ECF 309), and Plaintiffs Fleurimond and Digiosa as the perpetrators (id. at ECF 309–10).

The crime identified in the complaint was Grand Larceny. (Id. at ECF 307.)

On March 15, 2013, Plaintiffs were arrested for Grand Larceny in the Fourth Degree and

Criminal Possession of Stolen Property in the Fourth Degree. (Defs.’ 56.1, ¶ 50; NYPD Arrest

Reports, Dkt. 55-8, at ECF 313–18.) Before arraignment, Fleurimond was incarcerated for 16

hours and eight minutes and Digiosa was incarcerated for 12 hours and 44 minutes. (Defs.’ 56.1,

¶ 51.) On the day of Plaintiffs’ arrest, the Kings County District Attorney’s Office charged them

with Attempted Criminal Possession of Stolen Property in the Third, Fourth and Fifth degrees.

(Id. ¶ 52.) The charging instrument was signed by NYPD Detective John Gipson, on information

from non-defendant Lloyd (the DOHMH Investigator) and Defendants Low and Holder. (Id.)

The Kings County District Attorney’s Office then presented Plaintiffs’ criminal case to a

grand jury, before which Defendants Abril, Holder, and Low all testified. (Id. ¶ 53.) Although

the grand jury voted to indict Plaintiffs for Petit Larceny and Grand Larceny in the Fourth Degree

(id. ¶ 54), Plaintiffs’ criminal charges were ultimately dismissed on a motion of the District

Attorney’s Office (id. ¶ 55). The Certificates of Disposition issued by the Kings County Criminal

Court were sealed pursuant to New York Criminal Procedure Law § 160.50. (Criminal

Dispositions, Dkt. 55-11, at ECF 325–26.)

C. The Arbitration

On March 19, 2013, Plaintiffs Fleurimond and Digiosa were suspended from their jobs at

DOHMH for 30 days for removing department property without authorization. (Defs.’ 56.1, ¶ 56.)

After the 30 days elapsed, Plaintiffs were put on paid suspension until June 28, 2013, when their

employment was terminated. (Id. ¶ 57.) Plaintiffs subsequently challenged the termination of

their employment through arbitration pursuant to the terms of a collective bargaining agreement

entered into between Plaintiffs’ labor union and DOHMH. (Id. ¶ 58.) Defendants Abril, Holder,

and Low, and Plaintiffs all testified at the arbitration proceedings. (Id. ¶ 59.)

On September 8, 2014, Arbitrator James A. Brown (the “Arbitrator”) issued an opinion in

which he (1) found that Plaintiffs’ testimony that Defendant Holder gave Plaintiffs permission to

take the air conditioners was more credible than Holder’s denial that he ever gave such permission,

and that (2) Plaintiffs “sincerely believed that Holder was a supervisor because he opened the

[Kingsland] Warehouse gate for them that morning and had also signed off on their paperwork in

the past.” (Arbitration Opinion & Award, Dkt. 55-12, at ECF 338.) Nevertheless, the Arbitrator

reasoned:

Having established that [Plaintiffs] asked for—and received—Holder’s permission

to take the air conditioners, the analysis is only half complete. Even with Holder’s

permission, [Plaintiffs] should have known not to take the air conditioners. They

had firsthand knowledge that not all [Kingsland] Warehouse supplies were

“garbage” if only because they were picking up [Kingsland] Warehouse supplies

(bond paper) that day. Moreover, [Plaintiffs] clearly believed the boxed air

conditioners were fully operable or they would not have taken the seven units. In

addition, [Plaintiffs] knew [DOHMH’s] salvage process for officially discarding

unwanted property . . . . It is significant that neither [Plaintiff] claimed that the air

conditioners were being salvaged that day. Moreover, Fleurimond in 2012 had

been directed by [DOHMH] Police to write a statement in connection with

[DOHMH] property he took home and later had to return because he did not receive

proper authorization to take it.12

Thus, [Plaintiffs’] decision to take the boxed air conditioners reflected extremely

poor judgment given that the units were still functional and not, at any rate, being

salvaged. Simply stated, [Plaintiffs] should have known that Holder’s “permission”

did not equate to “authorization” to take Department property. Thus, I find that

[Plaintiffs] are guilty of violating Department Rule 3.2513 because “while on duty

and without authorization [they] removed air conditioner units from the Kingsland

Warehouse.”

(Id. at ECF 339.)

The Arbitrator went on to find that termination of Plaintiffs’ employment was not

warranted and determined that Plaintiffs should be reinstated in their prior positions at DOHMH

without any loss of seniority, but without backpay. (Id. at ECF 340.) DOHMH subsequently

reinstated Plaintiffs’ employment. (Defs.’ 56.1, ¶ 64.)

12 At deposition, Plaintiff Fleurimond explained that there was one incident that took place

about six or seven months prior to the events at issue in this case in which he was investigated for

removing a box of computer parts from the Kingsland Warehouse. (Fleurimond Dep., Dkt. 60-1,

at ECF 571–73.)

13 DOHMH Department Rule 3.25 covers “[c]onduct prejudicial to good order and

discipline.” (Arbitration Opinion & Award, Dkt. 55-12, at ECF 329.)

II. Procedural History

On February 12, 2016, Plaintiffs commenced this action, advancing claims of false arrest,

malicious prosecution, and municipal liability under 42 U.S.C. § 1983,14 as well as negligent

hiring, training, and supervision under state law. (See generally Compl.)15 The parties entered

into discovery and attempted to settle their case without success. (See Dkts. 20–46.) On June 15,

2018, Defendants sought leave to file a motion for summary judgment (Dkt. 44), after which

Plaintiffs voluntarily dismissed their false arrest and state law claims (Dkt. 46). On July 16, 2018,

the Court granted Defendants leave to file their motion for summary judgment. (See July 16, 2018

ECF Entry.) Defendants’ motion was fully briefed on November 19, 2018.

14 Plaintiffs’ complaint appears to additionally advance a claim of false imprisonment. (See

Compl., ¶ 1 & ECF 11.) The Court treats any such claim as inseparable from Plaintiffs’ false arrest

claim. See Boyd v. City of New York, 336 F.3d 72, 76 n.6 (2d Cir. 2003) (“As goes false arrest, so

goes [the plaintiff’s] false imprisonment claim.”). Moreover, Defendants’ June 15, 2018 letter to

the Court referenced a “failure to intervene” claim. (See Dkt. 44, at ECF 153.) After reviewing

the complaint, the Court is unable to discern any such claim, but notes that Plaintiffs label one of

their § 1983 claims as brought against Defendants for “FAILING TO PROTECT” Plaintiffs

“FROM UNCONSTITUTIONAL HARM.” (Compl., at ECF 8–9 & ¶¶ 41–44.)

To the extent Plaintiffs have not abandoned this claim (Dkt. 46), the Court dismisses it.

“[A] cognizable failure to protect claim under § 1983” sounds in the Eighth Amendment and

requires a plaintiff to “show that he is incarcerated under conditions posing a substantial risk of

serious harm” and that “prison officials acted with deliberate indifference to [his] safety.” Warren

v. Goord, 476 F. Supp. 2d 407, 410 (S.D.N.Y. 2007) (quotations omitted). Accordingly, “[t]he

Eighth Amendment bar to cruel and unusual punishment does not apply to Plaintiff[s] because

[they] were not []prisoner[s]” during the events at issue in this case, but were—at most—“simply

being held at the police station.” Sanaberia v. Detective Shawn Tezlof, No. 11-CV-6578 (NSR),

2016 WL 4371750, at *6 (S.D.N.Y. Aug. 12, 2016). Finally, even liberally construing this claim

as one for failure to intervene, it would still be dismissed because of the absence of any surviving

constitutional claim. See infra; Soto v. City of New York, 132 F. Supp. 3d 424, 459 (E.D.N.Y.

2015) (“Plaintiff’s failure to intervene claim fails as a matter of law, because there is no underlying

constitutional violation.”).

15 Although DOHMH, the Kings County District Attorney’s Office, the NYPD, and John

Doe Police Officers were initially named as defendants (Compl., at ECF 1 & ¶¶ 16–18), Plaintiffs

subsequently dismissed their claims against these parties (Dkt. 46).

STANDARD OF REVIEW

Summary judgment is appropriate where the submissions of the parties, taken together,

“show[] 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. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251–52 (1986) (summary judgment inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

The initial burden of “establishing the absence of any genuine issue of material fact” rests

with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

2010). Once this burden is met, however, the burden shifts to the non-moving party to put forward

some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli

v. City of New York, 579 F.3d 160, 166–67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986). A mere “scintilla of evidence” in support of the non-moving party is

insufficient; “there must be evidence on which the jury could reasonably find for the” non-movant.

Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted). In other words,

“[t]he non[-]moving party must come forward with specific facts showing that there is a genuine

issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quotation omitted).

When assessing whether a genuine issue of fact exists, the Court must resolve all

ambiguities and draw all reasonable inferences against the moving party. Major League Baseball

Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes any

disputed facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157–59 (1970). However, “the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment.” Anderson, 477 U.S. at 247–48.

DISCUSSION

I. Malicious Prosecution

Plaintiffs advance malicious prosecution claims against Defendants Holder, Low, Wright,

Abril, and Benjamin. “In order to prevail on a § 1983 claim against a state actor16 for malicious

prosecution, a plaintiff must show a violation of [his] rights under the Fourth Amendment, and

must establish the elements of a malicious prosecution claim under state law.” Manganiello v.

City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (citations omitted). To prevail on a

malicious prosecution claim under New York law, “a plaintiff must prove (1) the initiation or

continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in

plaintiff’s favor;17 (3) lack of probable cause for commencing the proceeding; and (4) actual

malice as a motivation for defendant’s actions.” Id. at 161 (quotations omitted).

16 To prove a violation of § 1983, a plaintiff must demonstrate that “defendants violated

[the] plaintiff’s federal rights while acting under color of state law.” McGugan v. Aldana-Bernier,

752 F.3d 224, 229 (2d Cir. 2014). Defendants do not dispute that, as employees and/or officials

of DOHMH—a state agency—they acted under color of state law for purposes of § 1983.

Nevertheless, the Court notes that “the purpose of § 1983 is to deter state actors from using their

badge of authority to deprive individuals of their federally guaranteed rights and to provide relief

to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992); see also Morton v.

City of Albany, No. 08-CV-1304 (TJM) (RFT), 2009 WL 2568595, at *5–6 (N.D.N.Y. Aug. 19,

2009) (concluding that a police officer did not act under color of law for purposes of § 1983 when

he pointed his gun at his subordinate civilian employee). Because Defendants do not argue that

they were not acting under color of state law with respect to the events at issue in this case, the

Court does not address this reasoning.

17 In their reply brief, Defendants argue that, in light of Lanning v. City Glens Falls, 908

F.3d 19 (2d Cir. 2018), which the Second Circuit decided on November 7, 2018, “[P]laintiffs

cannot establish the favorable termination prong of the malicious prosecution standard” because

“[t]he evidence of record indicates that [P]laintiffs’ prosecution was terminated on motion of the

DA’s Office” and “there is no evidence that the circumstances of the termination related to any

In addition to arguing that probable cause existed to initiate prosecution against Plaintiffs,

Defendants also assert a defense of qualified immunity based on the existence of “arguable

probable cause.” (Defendants’ Opening Brief, Dkt. 53, at ECF 195–96); Cortes v. City of New

York, 148 F. Supp. 3d 248, 254 (E.D.N.Y. 2015). A defendant is entitled to qualified immunity

under federal law if “(1) the defendant’s conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known, or (2) it was objectively

reasonable for the defendant to believe his actions were lawful at the time of the challenged act.”

Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir. 2019) (quotation and brackets omitted). As the

Supreme Court explained in Plumhoff v. Rickard, 572 U.S. 765 (2014):

An official sued under § 1983 is entitled to qualified immunity unless it is shown

that the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct. And a defendant cannot be said

to have violated a clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in the defendant’s shoes would

have understood that he was violating it. In other words, existing precedent must

have placed the statutory or constitutional question confronted by the official

beyond debate. In addition, we have repeatedly told courts not to define clearly

established law at a high level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the particular circumstances that

he or she faced.

Id. at 778–79 (quotations, citations, and alterations omitted); see also Drimal v. Tai, 786 F.3d 219,

224–25 (2d Cir. 2015) (“Qualified immunity . . . provides ample protection to all but the plainly

finding indicating actual innocence.” (Defendants’ Reply Brief, Dkt. 56, at ECF 356–57.)

Lanning—which was issued after Defendants served their opening brief but before they served

their reply (compare Dkt. 48 (service of opening brief on August 31, 2018), with November 9,

2018 ECF Entry & Dkt. 56 (service of reply brief on November 19, 2018))—clarified that “where

a dismissal in the interest of justice leaves the question of guilt or innocence unanswered, it cannot

provide the favorable termination required as the basis for [a malicious prosecution] claim.” 908

F.3d at 28–29 (quotations and alterations omitted). The Court declines to consider this argument,

“raised in a reply brief for the first time,” because Plaintiffs have not had “an adequate opportunity

to respond to it.” In re Various Grand Jury Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y. 2017)

(quotation omitted). In any event, the Court concludes, for the reasons discussed infra, that

summary judgment in favor of Defendants is appropriate on separate grounds.

incompetent or those who knowingly violate the law. To lose immunity, an official must violate

a right, the contours of which are sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” (quotation and citation omitted)).

“[T]o show a reasonable belief that probable cause existed, the officer need only show

arguable probable cause. To be immune from suit, then, a defendant need only show that there

was arguably a probability that the arrestee committed a crime.” Donovan v. Briggs, 250 F. Supp.

2d 242, 259 (W.D.N.Y. 2003) (quotation, citation, and italics omitted). “Arguable probable cause”

exists where state officials “of reasonable competence could disagree on the legality of the action

at issue in its particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)

(quotation omitted); see Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (“Arguable probable

cause exists if either (a) it was objectively reasonable for the [state official] to believe that probable

cause existed, or (b) officers of reasonable competence could disagree on whether the probable

cause test was met.” (quotation omitted)).

For the following reasons, the Court concludes that, even construing the evidence in the

light most favorable to Plaintiffs, (1) Defendants Wright, Abril, and Benjamin all had arguable

probable cause to believe that Plaintiffs had committed a crime; and (2) no reasonable jury could

find that Defendants Holder or Low initiated or continued the criminal proceedings brought against

Plaintiffs. Plaintiffs therefore cannot prevail on their claims against Wright, Abril, and Benjamin,

because they are entitled to qualified immunity, and cannot prevail on their claims against Holder

and Low due to their inability to prove the first element of malicious prosecution. The Court

therefore grants summary judgment to Holder, Low, Wright, Abril, and Benjamin on Plaintiffs’

malicious prosecution claims.18

A. Defendants Wright, Abril, and Benjamin Had Arguable Probable Cause to

Believe that Plaintiffs Committed Larceny

1. Relevant Facts

Viewed in the light most favorable to Plaintiffs, the circumstances under which Defendants

Wright, Abril, and Benjamin came to learn of Plaintiffs’ taking of the air conditioners were as

follows. On February 25, 2013, Plaintiffs arrived at the Kingsland Warehouse, where they

encountered Holder. (Defs.’ 56.1, ¶ 20; Pls.’ 56.1, ¶ 20; Fleurimond Dep., Dkt. 60-1, at ECF 482.)

Although Holder formally worked as a Records Aide for DOHMH (Defs.’ 56.1, ¶ 10), Plaintiffs

believed that Holder was a DOHMH supervisor who had authority to determine which items

should remain in or be removed from the Kingsland Warehouse, based on paperwork Plaintiffs

had received in the past identifying Holder as a supervisor (Fleurimond Dep., Dkt. 60-1, at

ECF 495–96). Holder called Abril to tell her that Plaintiffs were at the Kingsland Warehouse to

pick up supplies (Defs.’ 56.1, ¶ 5), and Abril directed Low to go to the Kingsland Warehouse to

help Plaintiffs transport items (Abril Dep., Dkt. 60-3, at ECF 683; Defs.’ 56.1, ¶ 24).

While Plaintiffs were waiting for Low on the loading dock at the Kingsland Warehouse

(id. ¶ 25), Plaintiffs noticed stacks of air conditioners (id. ¶ 26) and Fleurimond asked Holder if he

could take a few of them home for personal use (Fleurimond Dep., Dkt. 60-1 at ECF 486). Holder

replied that the air conditioners were going into the garbage anyway and that Plaintiffs could

18 Because these grounds provide a sufficient basis for granting Defendants summary

judgment on Plaintiffs’ malicious prosecution claims, the Court does not address Defendants’ other

arguments as to malicious prosecution. See Wang v. State Univ. of N.Y. Health Sci. Ctr. at Stony

Brook, 470 F. Supp. 2d 178, 189–90 (E.D.N.Y. 2006) (declining to address alternative reason to

dismiss claim where the court granted summary judgment to defendants on separate grounds).

therefore take as many of the air conditioners home as they wanted. (Id. at ECF 486, 538.)

Plaintiffs then loaded several air conditioners into each of their work vans with Holder’s help.

(Defs.’ 56.1, ¶¶ 30–31; Fleurimond Dep., Dkt. 60-1, at ECF 490.) Low then arrived at the

Kingsland Warehouse, where he observed the air conditioners in Plaintiffs’ work vans, but did not

raise any issue with Plaintiffs. (Defs.’ 56.1, ¶¶ 32–34; Pls.’ 56.1, ¶ 34.) After Plaintiffs left the

Kingsland Warehouse, Low contacted Wright and told him about the air conditioners that he had

seen in Plaintiffs’ work vans. (Defs.’ 56.1, ¶ 36.) Wright called Abril and told her that Low had

observed the air conditioners in Plaintiffs’ work vans. (Abril Dep., Dkt. 60-3, at ECF 682–83.)

Wright then called Fleurimond and told him to return the air conditioners to the Kingsland

Warehouse. (Defs.’ 56.1, ¶ 39.) During the call, Fleurimond informed Wright that Holder had

given Plaintiffs permission to take the air conditioners, to which Wright responded that

“they found out you guys weren’t supposed to take them, so bring them back.” (Fleurimond Dep.,

Dkt. 60-1, at ECF 498–99.) After calling Digiosa to tell him that the air conditioners needed to be

returned, Fleurimond called Wright back. (Id.) Wright advised Plaintiffs to bring the air

conditioners back to the Kingsland Warehouse the following morning instead of trying to bring

them back that same day. (Id.) After Plaintiffs finished work for the day, they traveled to their

respective homes in their DOHMH work vans, where the air conditioners remained overnight.

(Defs.’ 56.1, ¶¶ 41–42; Fleurimond Dep., Dkt. 60-1, at ECF 497.) Plaintiffs returned the air

conditioners to the Kingsland Warehouse the following morning, February 26, 2013. (Defs.’ 56.1,

¶ 43.)

On February 25, 2013, after confirming that the air conditioners were not supposed to be

removed but before the air conditioners were returned (Abril Dep., Dkt. 60-3, at ECF 683–84),

Abril contacted Benjamin and informed her “about the missing air conditioners” (Defs.’ 56.1,

¶ 40). Benjamin told Abril to file a report with DOHMH police. (Abril Dep., Dkt. 60-3, at ECF

684.) Although Abril learned the next day before contacting DOHMH police that Plaintiffs had

returned the air conditioners (id.), she went ahead and reported Plaintiffs’ removal of the air

conditioners (Defs.’ 56.1, ¶ 44). After reporting the incident to DOHMH police, Abril told

Benjamin that the air conditioners had been returned. (Abril. Dep., Dkt. 60-3, at ECF 684.)

Benjamin nonetheless instructed Abril to file a criminal complaint with the NYPD. (Defs.’ 56.1,

¶ 46; Abril Dep., Dkt. 60-3, at ECF 684.)

2. Analysis

While, from Plaintiffs’ perspective, the initiation of prosecution against them seems

unjustified, the Court finds that, even construing the facts in the light most favorable to Plaintiffs,

there existed arguable probable cause for Wright Abril, and Benjamin to believe that Plaintiffs had

committed a crime at the time Defendant Abril reported the incident to the NYPD. “Probable

cause—let alone arguable probable cause, which is all that [the Court] need determine—does not

require that the person act on accurate information, but simply that the information be ‘reasonably

trustworthy’ and ‘sufficient to warrant a person of reasonable caution in the belief that arrest . . .

is necessary.’” Vallen v. Connelly, 185 F. App’x 22, 24 (2d Cir. 2006) (summary order) (quoting

O’Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)).

Here, Defendants Wright, Abril, and Benjamin—to the extent they participated in the

prosecution of Plaintiffs—acted on reasonably trustworthy information in doing so and had at least

arguable probable cause to believe that Plaintiffs had committed larceny. “A person steals property

and commits larceny when, with intent to deprive another of property or to appropriate the same

to himself or to a third person, he wrongfully takes, obtains or withholds such property from an

owner thereof.” N.Y. Penal Law § 155.05(1). Plaintiffs do not dispute that they removed the air

conditioners from the Kingsland Warehouse with the intent to take them home for their personal

use (Defs.’ 56.1, ¶¶ 30–31), but instead argue that there was no probable cause or even arguable

probable cause to believe that Plaintiffs had committed larceny. (See Plaintiffs’ Opposition Brief

(“Pls.’ Opp.”), Dkt. 58, at ECF 403–08.) Specifically, Plaintiffs argue that Defendants could not

have reasonably believed that Plaintiffs committed this offense because Defendants knew, or

should have known, that (1) Plaintiffs subjectively believed that they were allowed to take the air

conditioners and thus had no intent to deprive DOHMH of its property; (2) the air conditioners

never left DOHMH work vans; and (3) Plaintiffs returned the air conditioners the following

morning as instructed by Wright to do so. (Id.) The Court disagrees.

First, even if Defendants Wright, Abril, and Benjamin were all aware that Plaintiffs

maintained that Defendant Holder had given them permission to take the air conditioners, these

Defendants could have nevertheless reasonably believed that Plaintiffs were lying, given that

Holder consistently denied telling Plaintiffs that they could take the air conditioners. Indeed, at

deposition, Defendant Abril explained that when she learned that Plaintiffs said that Defendant

Holder gave them permission to take the air conditioners, she “asked [Holder] if he gave them

permission and he said no.” (Abril Dep., Dkt. 60-3, at ECF 690.) Thus, Abril could have simply

credited Holder’s version of events over that of Plaintiffs. See Bonds v. City of New York, No. 12-

CV-1772 (ARR) (MDG), 2014 WL 2440542, at *7 (E.D.N.Y. May 30, 2014) (“In order to raise a

triable issue of fact on the probable cause element, [a] plaintiff cannot simply rely on his testimony

denying that he committed the criminal offense for which [he was] arrested and charged [].”);

Brown v. City of New York, No. 08-CV-5095 (FB) (MDG), 2013 WL 1338785, at *4 (E.D.N.Y.

Apr. 1, 2013) (“Courts have repeatedly determined that a plaintiff’s own testimony is insufficient

to rebut the presumption of probable cause.”).19

Second, even if Wright, Abril, and Benjamin were aware that the air conditioners never

left Plaintiffs’ work vans and that Plaintiffs returned them the following day at Wright’s request,

they still could have reasonably believed that Plaintiffs had committed larceny. For purposes of

New York’s larceny statute,

“[d]eprive” means (a) to withhold it or cause it to be withheld permanently or for

so extended a period or under such circumstances that the major portion of its

economic value or benefit is lost to [the owner], or (b) to dispose of the property in

such manner or under such circumstances as to render it unlikely that an owner will

recover such property.

To “appropriate” property of another to oneself or a third person means (a) to

exercise control over it, or to aid a third person to exercise control over it,

permanently or for so extended a period or under such circumstances as to acquire

the major portion of its economic value or benefit, or (b) to dispose of the property

for the benefit of oneself or a third person.

Dyal v. Adames, No. 16-CV-2133 (JBW), 2018 WL 2103202, at *3 (E.D.N.Y. May 7, 2018) (citing

N.Y. Penal Law § 155.00(3), (4)) (quotations and italics omitted). The New York Court of Appeals

has interpreted the taking element of New York Penal Law § 155.00 as follows:

19 Furthermore, even if these Defendants thought that Holder, in fact, had told Plaintiffs

they could take the air conditioners, Abril, Benjamin, and Wright still could have reasonably

concluded that Plaintiffs lied about believing that Holder had the authority to grant permission and

that Plaintiffs were using this toothless permission to conceal their intent to steal the air

conditioners. See People v. Zona, 928 N.E.2d 1041, 1045 (N.Y. 2010) (noting that a criminal

defendant asserting that he had permission to take an item would only be insulated from liability

for larceny if he had “a good faith belief that the property was appropriated under a claim of right”

(quotation omitted)). Although Plaintiff Fleurimond testified in his deposition that he believed

Holder had the authority based on letters that Fleurimond had seen identifying Holder as a

supervisor, the letters themselves are not in evidence, and Defendants dispute that Holder was

Plaintiffs’ supervisor or had the authority to give away DOHMH property. (See Defendants’ Reply

56.1 Statement, Dkt. 57, ¶ 21.) In determining whether Defendants Abril, Benjamin, and Wright

are entitled to qualified immunity, the Court is not required to accept Plaintiffs’ self-serving,

unsupported claim that they (Plaintiffs) believed that Holder had the authority to give them

permission to take the air conditioners. See Bonds, 2014 WL 2440542, at *7.

a shoplifter who exercises dominion and control over the goods wholly inconsistent

with the continued rights of the owner can be guilty of larceny even if apprehended

before leaving the store, a car thief who starts the car can commit larceny before he

actually drives the automobile away, and a pickpocket can be guilty of larceny even

though his removal of the victim’s possessions is interrupted before completion.

People v. Robinson, 459 N.E.2d 483, 484 (N.Y. 1983) (citations omitted); see People v. Hardy, 43

N.E.3d 734, 739 (N.Y. 2015) (“The taking element of larceny is satisfied by a showing that the

thief exercised dominion and control over the property for a period of time, however temporary,

in a manner wholly inconsistent with the owner’s continued rights.” (quotations omitted)). Thus,

even knowing that Plaintiffs had only taken the air conditioners for a short period of time,

Defendants Wright, Abril, and Benjamin still could have reasonably believed that this conduct

constituted larceny. Walczyk, 496 F.3d at 154 (explaining that arguable probable cause exists

where state officials “of reasonable competence could disagree on the legality of the action at issue

in its particular factual context” (quotation omitted)).

Similarly, even assuming arguendo that these Defendants knew that the air conditioners

never left Plaintiffs’ DOHMH vans, this fact would not render their belief that Plaintiffs had stolen

the air conditioners and intended to keep them any less reasonable. As New York Penal Law §

155.00 indicates, a person commits larceny by exercising control over the stolen property “under

such circumstances as to acquire the major portion of its economic value or benefit”; there is no

requirement that the person exercise that control in or on the person’s own property. Furthermore,

although the air conditioners remaining in the vans could be evidence of Plaintiffs’ lack of intent

to steal the units and their intent to return them, it was nonetheless reasonable for Defendants to

conclude otherwise, e.g., that the units only remained in the vans because Plaintiffs were caught

before they could transport or otherwise dispose of them and that the presence of the units in the

vans simply corroborated Plaintiffs’ original intent to steal them. For the same reason, Defendants

Wright, Abril, and Benjamin’s knowledge that Plaintiffs returned the air conditioners at Wright’s

direction does not undermine the reasonableness of their belief that Plaintiffs’ original intent was

to steal them and that Plaintiffs only returned the units because the theft was discovered and Wright

confronted them about it. Walczyk, 496 F.3d at 154.

Accordingly, the Court determines that Wright, Abril, and Benjamin all had at least

arguable probable cause to believe that Plaintiffs committed larceny.20 The Court therefore grants

summary judgment to Defendants Wright, Abril, and Benjamin on Plaintiffs’ malicious

prosecution claims against them.

20 Where, as here, a grand jury has returned an indictment corroborating the criminal

charges, the following standard applies:

A grand jury indictment gives rise to a presumption that probable cause exists and

a claim for malicious prosecution is thereby defeated. The presumption may be

rebutted by wrongful acts on the part of [a state official], including fraud, perjury,

or the suppression of the evidence. For example, when [a state official] provides

false information to a prosecutor, what prosecutors do subsequently has no effect

whatsoever on the [state official’s] initial, potentially tortious behavior. But if the

prosecution relied on independent, untainted information to establish probable

cause, a complaining official will not be responsible for the prosecution that

follows.

Rentas v. Ruffin, 816 F.3d 214, 220–21 (2d Cir. 2016) (quotations, alterations, and citations

omitted).

The Court notes that, of Defendants Wright, Abril, and Benjamin, Plaintiffs only allege

that Abril testified before the grand jury (Pls.’ 56.1, ¶ 53), and Plaintiffs point to no evidence

suggesting that she did so in a perjurious or fraudulent manner. Indeed, in her complaint to the

NYPD on March 1, 2013, Abril disclosed that the air conditioners had already been returned.

(NYPD Complaint Report, Dkt. 55-7, at ECF 307–08.) Thus, even beyond the existence of

arguable probable cause, the presumption of actual probable cause also applies in this case and

has not been rebutted. See Stukes v. City of New York, No. 13-CV-6166 (NGG) (VVP), 2015 WL

1246542, at *5 (E.D.N.Y. Mar. 17, 2015) (dismissing malicious prosecution claim where the

plaintiffs adduced no evidence that defendants “fail[ed] to disclose evidence” to law enforcement

and/or the prosecutor “that would [have] conclusively establish[ed] [plaintiffs’] innocence” or

“negate the possibility that [the plaintiffs] had committed the crime” (quotations omitted)).

B. Defendants Holder and Low Did Not Initiate or Continue Criminal

Proceedings Against Plaintiffs

1. Relevant Facts

Viewed in the light most favorable to Plaintiffs, Defendants Holder’s and Low’s

involvement in Plaintiffs’ prosecution was as follows. On March 1, 2013, Defendant Abril went

to the NYPD’s 94th Precinct and made a complaint about the removal of the air conditioners from

the Kingsland Warehouse. (Id. ¶ 46; Abril Dep., Dkt. 60-3, at ECF 684.) NYPD officers then

spoke to Holder and Low as part of an investigation into the alleged crime. (Defs.’ 56.1, ¶ 48.)

As part of the investigation, Low told law enforcement that Holder observed Plaintiffs drive away

with the stolen air conditioners. (NYPD Complaint Report, Dkt. 55-7, at ECF 308.) Low also told

law enforcement that Plaintiffs were employed by DOHMH and were known for taking things in

the past (id.), even though neither Fleurimond nor Digiosa had ever stolen anything from DOHMH

(Pls.’ 56.1, ¶¶ 49, 69). Additionally, Low told law enforcement that Plaintiffs returned the stolen

air conditioners after being confronted by a supervisor. (NYPD Complaint Report, Dkt. 55-7, at

ECF 308.) Finally, Low stated that Plaintiffs took advantage of the fact that surveillance cameras

were recently removed from the Kingsland Warehouse (id.), even though there was no credible

basis on which Low could think that Plaintiffs knew that the surveillance cameras at issue were

destroyed during Hurricane Sandy (Pls.’ 56.1, ¶ 80). Holder testified at deposition that he went

over to DOHMH’s main office to meet with police and that they asked him what happened on the

day the air conditioners were taken and that he answered their questions. (Holder Dep., Dkt. 60-

2, at ECF 661.)

Plaintiffs were arrested on March 15, 2013. (Defs.’ 56.1, ¶ 50; NYPD Arrest Reports,

Dkt. 55-8, at ECF 313–18.) That same day, the Kings County District Attorney’s Office charged

Plaintiffs with Attempted Criminal Possession of Stolen Property in the Third, Fourth and Fifth

degrees. (Id. ¶ 52.) The charging instrument was signed by NYPD Detective John Gipson, on

information from DOHMH Investigator Lloyd and Defendants Low and Holder. (Id.) The Kings

County District Attorney’s Office then presented Plaintiffs’ criminal case to a grand jury, before

which Holder and Low both testified. (Id. ¶ 53.)

2. Analysis

Under these facts, the Court concludes that no reasonable jury could conclude that either

Defendant Holder or Defendant Low initiated or continued the criminal proceedings against

Plaintiffs—the first element of a malicious prosecution claim. With respect to the initiation

requirement of a malicious prosecution claim, the Second Circuit has held that “in order for an

individual to ‘initiate’ a prosecution for these purposes, the mere reporting of a crime to police and

giving testimony are insufficient; 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. N.Y.C. Transit Auth. (NYCTA), 215 F.3d 208, 217 (2d Cir. 2000) (quotations and

brackets omitted); see also Rothstein v. Carriere, 373 F.3d 275, 293 (2d Cir. 2004) (“A plaintiff

in a malicious prosecution case must prove that the defendant initiated the criminal proceeding.

As we have stated before, reporting a crime to law enforcement and giving testimony does not

constitute the ‘initiation’ of a criminal prosecution.”).

At the outset, the Court notes that neither Holder’s nor Low’s testimony in front of the

grand jury can provide a factual basis on which a reasonable jury could find that they initiated any

criminal proceedings against Plaintiffs. See Rehberg v. Paulk, 566 U.S. 356, 369 (2012) (“[W]e

conclude that grand jury witnesses should enjoy the same immunity as witnesses at trial. This

means that a grand jury witness has absolute immunity from any § 1983 claim based on the

witness’ testimony.”); Coggins v. Buonara, 776 F.3d 108, 113 (2d Cir. 2015) (“When a [state

official] claims absolute immunity for his grand jury testimony under Rehberg, the court should

determine whether the plaintiff can make out the elements of his § 1983 claim without resorting

to the grand jury testimony.”). Without the grand jury testimony, all Plaintiffs can point to in

support of their contention that Holder and Low initiated criminal proceedings against Plaintiffs

are the statements that Holder and Low made to authorities as part of the investigation into the

alleged crime. (Defs.’ 56.1, ¶¶ 48, 52.)

Even if a reasonable jury concluded that Holder and Low knowingly provided false

information during the course of the NYPD’s investigation, it still could not find that Holder and

Low had initiated the prosecution of Plaintiffs. A prosecutor is presumed to “exercise independent

judgment in deciding whether to initiate and continue a criminal proceeding, . . . [unless it is]

demonstrate[d] that the defendant played an active role in the prosecution, such as giving advice

and encouragement or importuning the authorities to act.” Espada v. Schneider, 522 F. Supp. 2d

544, 553 (S.D.N.Y. 2007) (quotations and citation omitted). Recent authority in this Circuit

suggests that knowingly providing false information to law enforcement and/or prosecutors does

not necessarily suffice to meet this standard. Specifically, in Watkins v. Sims, 648 F. App’x 49,

52 (2d Cir. 2016) (summary order),21 the plaintiff argued that the defendants had initiated or

continued the criminal proceedings against him by knowingly providing false information to

prosecutors. Watkins, 648 F. App’x at 51–52. Rejecting this argument, the Second Circuit panel

reasoned:

Assuming, arguendo, that [the defendants] provided false or misleading

information to the prosecution during its investigation, we find no evidence,

viewing the record in the light most favorable to [the plaintiff], from which a

reasonable jury could conclude that either [defendant] took an active role in [the

21 See Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011) (noting that “denying summary

orders precedential effect does not mean that the court considers itself free to rule differently in

similar cases” (quotation and brackets omitted)).

plaintiff’s] criminal prosecution. [The plaintiff] claim[ed] that [one defendant], in

response to document requests from the District Attorney’s (“DA”) office,

‘deluged’ the DA with unsolicited information, but he points to only two documents

that [the defendant] provided that fell outside the scope of the request. No

reasonable jury could conclude on the basis of that evidence that [the defendant]’s

conduct went beyond the mere provision of information to the point where [the

defendant] encouraged or importuned the DA’s office to prosecute [the plaintiff].

There is similarly no evidence supporting the inference that [the other defendant]

encouraged or importuned the DA’s office to act when he met with its employees

in December 2005.

Id. at 52.

So too here. Assuming, arguendo, that Defendants Holder and Low knowingly provided

false information to law enforcement and/or prosecutors, Plaintiffs adduce no evidence on which

a reasonable jury could conclude that Holder or Low initiated the filing of the criminal complaint,22

provided more inculpatory information to the authorities than was requested of them, or

“encouraged or importuned” the District Attorney’s office to prosecute Plaintiffs. Watkins, 648 F.

App’x at 52; see Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000) (“[I]f [the plaintiff] had

claimed only that [the defendant] fabricated evidence and did nothing to precipitate the sequence

of events that resulted in a deprivation of [the plaintiff’s] liberty, no constitutional violation would

have been alleged.”); Carter v. Port Auth. of N.Y. & N.J., No. 03-CV-8751 (DLC), 2004 WL

2978282, at *8 (S.D.N.Y. Dec. 20, 2004) (granting summary judgment on a malicious prosecution

claim against an officer who filled out a witness statement that “was not one of the required

documents to initiate criminal process”).

The Court recognizes that there is a conflicting line of cases that have held that “[g]iving

information to the police that is known to be false qualifies as the commencement of the

22 Cf. Cunninham v. New York City, No. 04-CV-10232 (LBS), 2007 WL 2743580, at *5

(S.D.N.Y. Sept. 18, 2007) (“In the present action, Officer Rollins initiated the robbery prosecution

by filing the charges of second-degree attempted robbery against the plaintiffs.”).

prosecution” for purposes of a malicious prosecution claim, Rivers v. Towers, Perrin, Forster &

Crosby Inc., No. 07-CV-5441 (DGT) (RML), 2009 WL 817852, at *3 (E.D.N.Y. Mar. 27, 2009),

or, at least, can qualify as commencement of the prosecution, see, e.g., Estiverne v. Esernio-

Jenssen, 581 F. Supp. 2d 335, 348 (E.D.N.Y. 2008) (“Merely giving false information to the

authorities does not constitute initiation of the proceeding without an additional allegation or

showing that, at the time the information was provided, the defendant knew it to be false, yet still

gave it to the police or District Attorney.” (quotation omitted)); see also Stampf v. Long Island

R.R. Co., 761 F.3d 192, 199–200 (2d Cir. 2014) (approvingly citing district court case with the

following quoted text in a parenthetical: “Giving information to the police that is known to be false

qualifies as the commencement of a prosecution.”). The Court is nevertheless persuaded by

Watkins—the facts of which more closely resemble those presented here than those in Rivers,

Estiverne, and Stampf—and holds that that Holder’s and Low’s alleged provision of false

information to the NPYD does not qualify as the commencement of prosecution for purposes of

Plaintiffs’ malicious prosecution claims.23

Accordingly, the Court concludes that Plaintiffs cannot prove that Holder or Low initiated

or continued the criminal proceedings against them, which is the first element of a malicious

prosecution claim. See TADCO Constr. Corp. v. Dormitory Auth. of State of N.Y., 700 F. Supp.

2d 253, 270 (E.D.N.Y. 2010) (dismissing malicious prosecution claim where plaintiff could not

show that defendants “actively engaged in [plaintiff’s] prosecution”); cf. Shattuck v. Town of

Stratford, 233 F. Supp. 2d 301, 314 (D. Conn. 2002) (“[A defendant can] be liable [] for § 1983

23 Notably, in Stampf, the defendant (who provided false information) was the first

individual to initiate contact with the police to report the crime, see 761 F.3d at 196–97, which

neither Holder nor Low did in this case. (See Defs.’ 56.1, ¶ 46; Abril Dep., Dkt. 60-3, at ECF 684

(noting that Abril made the initial complaint to the NYPD about the missing air conditioners at

Benjamin’s request).)

malicious prosecution . . . even though she did not apply for the arrest warrants, if the plaintiffs

[can] show that she had initiated or instigated the proceedings against them by contacting the police

and then encouraging their prosecution.”). The Court therefore grants summary judgment to

Defendants Holder and Low on Plaintiffs’ malicious prosecution claims against them.

II. Municipal Liability

“A municipality may be liable under § 1983 only if the governmental body itself subjects

a person to a deprivation of rights or causes a person to be subjected to such deprivation.” Cash

v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quotations omitted). “[T]he elements of a Monell

claim include: 1) an official policy or custom that, 2) causes the plaintiff to be subjected to, 3) a

deprivation of a constitutional right.” Musso v. City of New York, No. 05-CV-2511 (RRM) (JO),

2008 WL 3200208, at *4 (E.D.N.Y. July 24, 2008) (citing Batista v. Rodriguez, 702 F.2d 393, 397

(2d Cir. 1987)). To demonstrate an official policy or custom, a plaintiff must show “the existence

of a formal policy which is officially endorsed by the municipality,” or a practice that is “so

persistent and widespread that it constitutes a custom or usage of which supervisory authorities

must have been aware, or that a municipal custom, policy, or usage can be inferred from the

evidence of deliberate indifference of supervisory officials as to such abuses.” Iacovangelo v.

Corr. Med. Care, Inc., 624 F. App’x 10, 13 (2d Cir. 2015) (summary order) (citing Jones v. Town

of East Haven, 691 F.3d 72, 80–81 (2d Cir. 2012)).

In support of their municipal liability claim against Defendant City of New York, Plaintiffs

argue that “[t]he City of New York’s failure to adequately train their DOHMH laborers in the

proper procedure for handling and removing salvage directly cause[d] the violation of [P]laintiffs’

constitutional rights under § 1983.” (Pls.’ Opp., Dkt. 58, at ECF 410–11.) “When a Monell claim

relies on the theory that the municipality failed to train certain employees about their legal duty to

avoid violating individuals’ rights,” the plaintiff is required to demonstrate “that the municipality’s

failure to train its employees in a relevant respect amounted to deliberate indifference to the rights

of the persons with whom the untrained employees came into contact.” Alwan v. City of New York,

311 F. Supp. 3d 570, 578 (E.D.N.Y. 2018) (quotations and alterations omitted). The Second

Circuit has established three requirements for such claims:

First, the plaintiff must show that a policymaker knows to a moral certainty that her

employees will confront a given situation. Thus, a policymaker does not exhibit

deliberate indifference by failing to train employees for rare or unforeseen events.

Second, the plaintiff must show that the situation either presents the employee with

a difficult choice of the sort that training or supervision will make less difficult or

that there is a history of employees mishandling the situation. . . . A choice might

[] be difficult where, although the proper course is clear, the employee has powerful

incentives to make the wrong choice.

Finally, the plaintiff must show that the wrong choice by the city employee will

frequently cause the deprivation of a citizen’s constitutional rights.

Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992) (citations omitted).

Applying this standard, the Court concludes that Plaintiffs have failed to adduce sufficient

evidence to permit a reasonable jury to find Defendant City of New York liable under § 1983.

Even assuming, arguendo, that Plaintiffs could sufficiently demonstrate that their constitutional

rights were violated, they have not sufficiently connected that constitutional violation to Defendant

City of New York. As for the first and second requirements of the test established in Walker,

Plaintiffs adduce no evidence demonstrating that DOHMH employees routinely confront

situations in which they are unsure as to whether DOHMH property can be taken by employees

for personal use, and evidence from the record suggests that most DOHMH employees would

reasonably determine that doing so would be inappropriate. (See generally Arbitration Opinion &

Award, Dkt. 55-12 (determining that, by removing the air conditioners from the Kingsland

Warehouse, Plaintiffs’ violated DOHMH Department Rule 3.25, which covers “[c]onduct

prejudicial to good order and discipline”).)

Indeed, it seems obvious, regardless of the work setting, that employees would know that

they should not be taking their employers’ property to use or dispose of for their own benefit, at

least without clear and proper authorization. That Plaintiffs argue that there was uncertainty about

whether Defendant Holder, in particular, had such authority does not suggest or create the kind of

uncertainty or moral dilemma for employees that might give rise to a failure to train claim. As for

the third requirement of the Walker test, Plaintiffs present no evidence suggesting that, in the

absence of appropriate training, constitutional violations of the sort that they allege would occur

frequently. Therefore, no reasonable jury could find that any policymaker acting on behalf of

Defendant City of New York “should have known that inadequate training or supervision was ‘so

likely to result in the violation of constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the need.’” Walker, 974 F.2d at 298

(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

Accordingly, the Court grants summary judgment in favor of Defendant City of New York

on Plaintiffs’ municipal liability claim against it.

CONCLUSION

For the reasons stated above, the Court grants Defendants’ motion for summary judgment

in its entirety and dismisses this action. The Clerk of Court is respectfully directed to enter

judgment and close this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: August 21, 2019

Brooklyn, New York