Ross v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANELLE ROSS,

Plaintiff,

MEMORANDUM & ORDER

- against - 17-CV-3505 (PKC) (SMG)

CITY OF NEW YORK, ERIC LORIA,

individually, and JEFFREY MARESCA,

individually,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Janelle Ross brings this action against Defendants Eric Loria and Jeffrey Maresca,

both in their individual capacity1 (collectively, the “Individual Defendants”), as well as the City of

New York, advancing (1) claims under 42 U.S.C. § 1983 for false arrest/unlawful imprisonment,

violation of the right to a fair trial, failure to intervene, and supervisory liability; and (2) state law

and state constitutional claims for false arrest and battery. Currently pending before the Court is

Defendants’ motion for summary judgment. For the reasons stated below, Defendants’ motion is

granted in part and denied in part.

1 While state officials or employees generally cannot be sued for monetary damages in their

official capacity for conduct engaged in as part of their duties, they can be sued in their individual

capacity for such damages. State Emp. Bargaining Agent Coal. v. Rowland, 718 F.3d 126, 137

(2d Cir. 2013) (“[C]laims for monetary damages against the defendants in their individual

capacities are not barred by the Eleventh Amendment.”)

BACKGROUND

I. Relevant Facts2

On March 12, 2016, at approximately 5:30 p.m., Plaintiff was working at a Burger King

restaurant located in Staten Island, New York. (Defendants’ 56.1 Statement (“Defs.’ 56.1”),

Dkt. 37, ¶ 1.) Plaintiff’s brother, Harrison Ross, arrived at the restaurant to give Plaintiff a debit

card. (Plaintiff’s 56.1 Counterstatement (“Pl.’s 56.1”), Dkt. 43, at 2 ¶ 3.) Defendant New York

City Police Department (“NYPD”) Officer Eric Loria,3 wearing his uniform, walked in and asked

to speak to Harrison Ross. (Id. at 2 ¶ 5; Defs.’ 56.1, Dkt. 37, ¶ 3.) Mr. Ross refused, left the

restaurant, and went into his car, which was parked outside. (Pl.’s 56.1, Dkt. 43, at 3 ¶ 8.) Officer

Loria followed Mr. Ross to his car. (Id. at 3 ¶ 9.) From inside the restaurant, Plaintiff saw Mr.

Ross inside a car that was parked in a handicap parking spot. (Defs.’ 56.1, Dkt. 37, ¶ 2.) Officer

Loria asked to see Mr. Ross’s driver’s license and registration. (Id. ¶ 4.) Upon seeing Officer

Loria open Mr. Ross’s car door and attempt to remove Mr. Ross from the vehicle, Plaintiff ran

2 Unless otherwise noted, a standalone citation to Defendants’ 56.1 Statement or Plaintiff’s

56.1 Counterstatement denotes that this Court has deemed the underlying factual allegation

undisputed. Any citations to Defendants’ 56.1 Statement or Plaintiff’s 56.1 Counterstatement

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 Officer Loria was Plaintiff’s neighbor, and prior to the March 12, 2016 incident, Mr. Ross

had had four “interactions” with Officer Loria. (Pl.’s 56.1, Dkt. 43, at 2 ¶¶ 4, 6.)

outside “to see what was going on.” (Id. ¶¶ 3, 5.) Plaintiff “grabbed and tugged [Officer Loria’s]

shirt” by the collar. (Id. ¶ 6.)4 Officer Loria told Plaintiff to get off of him. (Defs.’ 56.1, Dkt. 37,

¶ 7.) Plaintiff held on to Officer Loria’s shirt for a few seconds.5 (Tr. of Pl.’s CCRB Interview,

Dkt. 36-2, at 22:14−16.)

Mr. Ross was arrested by Officer Loria. (Pl.’s 56.1, Dkt. 43, at 4 ¶ 17.) After Defendant

NYPD Sergeant Jeffrey Maresca, Officer Loria’s supervisor, arrived, Officer Loria informed

Sergeant Maresca that Plaintiff had “jumped on” Officer Loria’s back. (Id. at 4 ¶ 18.) Sergeant

Maresca then directed another officer to arrest Plaintiff. (Id. at 4 ¶ 22.) Afterwards, Sergeant

Maresca watched the surveillance video6 at the restaurant that partially showed the incident. (Id.

at 4 ¶ 23.)

Mr. Ross was charged with, inter alia, Aggravated Unlicensed Operation of a Motor

Vehicle in the Third Degree, Resisting Arrest, and Obstructing Governmental Administration

4 (See also Transcript (“Tr.”) of Pl.’s Civilian Complaint Review Board (“CCRB”)

Interview, Dkt. 36-2, at 2:20−22 (“I didn’t like tug, I just like grabbed his shirt, it wasn’t really

significant . . . .”); id. at 11:14−15 (“Inv[estigator] Ellman: Okay. And at what point in that did

you tug on his shirt? Ms. Ross: Like, it was like when I first got over there.”); Tr. of Pl.’s N.Y.

Gen. Mun. Law § 50-h Hearing, Dkt. 36-1, at 19:5−13 (“A. I placed my hand on [Officer Loria’s]

shirt. Q. Where on his shirt did you— A. His collar. Q. On the back? A. Uh-huh. Yes.”); Tr. of

Pl.’s CCRB Telephone Interview, Dkt. 36-4, at 2:11−13 (“So I run out, and I grabbed his shirt,

like not like grab like, choking, just like, just to get him off, just like, tugging just to get him off.”).)

5 There is a dispute as to how long Plaintiff held on to Officer Loria or his shirt. Plaintiff

claims that it was three seconds whereas Defendants claim that it was at least 35 seconds. (See

Pl.’s 56.1, Dkt. 43, ¶ 15; Defendants’ 56.1 Response, Dkt. 40, ¶ 15.) The surveillance video

supplied by Plaintiff as her Exhibit 3 to her summary judgment opposition does not provide a clear

answer as to the extent and length of Plaintiff’s contact with Officer Loria.

6 The surveillance video viewed by Sergeant Maresca is the same as the one submitted by

Plaintiff as Exhibit 3 to her summary judgment opposition, except that Plaintiff’s Exhibit 3 is a

recording of the surveillance video being played on a computer and being viewed, it seems, by a

female, based on a voice overheard on Exhibit 3 commenting on, and a finger pointing to, the

surveillance video as it was being played. (See Video, Dkt. 44-3.)

(“OGA”) in the Second Degree. (Defs.’ 56.1, Dkt. 37, ¶ 9.) He pled guilty to Driving Without a

License. (Id.) Plaintiff was arrested at the scene for OGA in the Second Degree7 and, at her

arraignment two days later, on March 14, 2016, accepted an Adjournment in Contemplation of

Dismissal (“ACD”). (Id. ¶¶ 10−11; Pl.’s 56.1, Dkt. 43, at 5 ¶ 28.) Plaintiff did not make another

court appearance in connection with the arrest. (Id. ¶ 12.)

II. Procedural History

Plaintiff filed her initial complaint in this action on June 10, 2017.8 (See Complaint,

Dkt. 1.) Plaintiff twice amended her complaint, first on January 12, 2018 and again on August 7,

2018. (See Amended Complaint, Dkt. 12; Second Amended Complaint (“SAC”), Dkt. 29.)

Defendants’ motion for summary judgment was fully briefed on February 19, 2019. (See Notice

of Motion for Summary Judgment, Dkt. 35.)

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

7 It is unclear how long Plaintiff was detained from the record. Plaintiff claims that she

was “detained from approximately 5:30 p.m. on March 12, 2016 through her release from custody

on March 14, 2016, when [P]laintiff was finally arraigned and accepted an ACD.” (Pl.’s Brief,

Dkt. 42, at 8), but the cited evidence does not substantiate this factual averment. The Court

therefore does not deem this fact admitted. See Gallimore-Wright v. Long Island R. Co., 354 F.

Supp. 2d 478, 488 (S.D.N.Y. 2005) (“Judges are not like pigs, hunting for truffles buried in the

record” (internal quotation marks and citation omitted)).

8 Harrison Ross was originally a plaintiff in this action. However, he was dismissed from

this case upon a Stipulation of Dismissal on March 12, 2018. (See 3/12/18 Docket Order.)

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 nonmoving 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 nonmoving 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) (internal quotation marks

omitted) (alteration in original). In other words, “[t]he nonmoving 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) (internal quotation marks omitted).

In determining 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 nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144,

158–60 (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

In her SAC, Plaintiff asserts the following claims: (1) false arrest against both the

Individual Defendants (SAC, Dkt. 29, ¶¶ 41–44); (2) denial of the right to fair trial against

Defendant Loria (id. ¶¶ 45–49); (3) failure to intervene against Defendant Maresca (id. ¶¶ 50–54);

(4) supervisory liability against Defendant Maresca (id. ¶¶ 55–57); (5) false arrest under New York

law against all Defendants (id. ¶¶ 64–70); (6) battery under New York law against all Defendants

(id. ¶¶ 71–75); and (7) violations of the New York State Constitution against Defendant City of

New York (id. ¶¶ 76–78). In their motion for summary judgment, Defendants ask this Court to

dismiss all of Plaintiff’s claims. (See generally Defendants’ Brief, Dkt. 38.) The Court addresses

each claim in turn.

I. False Arrest Claims Against the Individual Defendants

“A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual

to be free from unreasonable seizures, including arrest without probable cause, is substantially the

same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.

1996) (citations omitted); see also Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (“A

section 1983 claim for false arrest is substantially the same as a claim for false arrest under New

York law.”). To prevail on a claim of false arrest or unlawful imprisonment, a plaintiff must prove

that “(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not

otherwise privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (internal

quotation marks and citation omitted). “‘[T]he existence of probable cause’ for an arrest ‘is an

absolute defense to a false arrest claim.’” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016)

(quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006)). As the Second Circuit has explained:

Although the existence of probable cause must be determined with reference to the

facts of each case, in general “probable cause to arrest exists when the officers have

knowledge of, or reasonably trustworthy information as to, facts and circumstances

that are sufficient to warrant a person of reasonable caution in the belief that an

offense has been or is being committed by the person to be arrested.”

Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (brackets omitted) (quoting

Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)).

To prevail on summary judgment, however, Defendants need not prove that there was

actual probable cause. A law enforcement officer is entitled to qualified immunity “if ‘arguable

probable cause’ existed—that is, if ‘a reasonable police officer in the same circumstances and

possessing the same knowledge as the officer in question could have reasonably believed that

probable cause existed in the light of well[-]established law.’” Antic v. City of New York, 273 F.

Supp. 3d 445, 452 (S.D.N.Y. 2017) (quoting Cerrone v. Brown, 246 F.3d 194, 202–03 (2d Cir.

2001)), reconsideration denied, No. 16-CV-2425 (JMF), 2017 WL 3491967 (S.D.N.Y. Aug. 14,

2017), and aff’d, 740 F. App’x 203 (2d Cir. 2018). “Specifically, the doctrine of qualified

immunity provides a complete defense where ‘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.’” Antic, 273 F. Supp. 3d at 452 (citing Golino

v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)). Summary judgment is inappropriate

when “on the undisputed facts the officer would be unreasonable in concluding probable cause

existed, or if the officer’s reasonableness depends on material issues of fact.” Jenkins, 478 F.3d

at 88.

A. False Arrest Claim Against Defendant Loria

The Court concludes that, at a minimum, Defendant Loria had arguable probable cause to

arrest Plaintiff for OGA.9 Under New York law, a person is guilty of OGA “when [she]

9 Although Officer Loria did not make the decision to arrest Plaintiff—Sergeant Maresca

did—the Court does not dismiss the false arrest claim against Officer Loria on that basis, since he

was the one who provided the information that prompted Sergeant Maresca, in large part, to order

Plaintiff’s arrest. Thus, Officer Loria was a direct participant in Plaintiff’s arrest, even if he did

not make that decision.

intentionally . . . prevents or attempts to prevent a public servant from performing an official

function, by means of intimidation, physical force or interference . . . .” N.Y. Penal Law § 195.05.

“‘Physical force or physical interference’ includes ‘inappropriate and disruptive conduct at the

scene of the performance of an official function.’” Husbands ex rel. Forde v. City of New York,

No. 05-CV-9252 (NRB), 2007 WL 2454106, at *13 (S.D.N.Y. Aug. 16, 2007), aff’d, 335 F. App’x

124 (2d Cir. 2009) (quoting People v. Dolan, 576 N.Y.S.2d 901, 905 (N.Y. App. Div. 1991)).

Courts have interpreted the statute broadly, holding that “merely approaching the police, or

speaking during the course of a police action, or disregarding police instructions, will support a

conviction.” Rasmussen v. City of New York, 766 F. Supp. 2d 399, 403 (E.D.N.Y. 2011). The

facts in Antic are instructive: there, an officer was a few feet away from an ongoing arrest, when

the plaintiff “tapped” the officer from behind to get his attention. Antic, 273 F. Supp. 3d 445,

453−54. The court there found that the officer’s attention was diverted “from whatever he was

doing in connection with his duties at the crime scene” and a reasonably competent officer could

have acted as the officer did in arresting the plaintiff. Id. at 454.

Plaintiff’s argument that there is a genuine dispute of a material fact because Plaintiff

disputes Officer Loria’s version of events—i.e., that Plaintiff jumped on Officer Loria’s back while

the Officer was trying to arrest Plaintiff’s brother—is without merit. Plaintiff need not agree with

Officer Loria’s account because the undisputed facts are enough to establish that a reasonable

officer could have believed that probable cause existed. Here, Plaintiff admitted to NYPD

investigators that she made contact with Officer Loria by “tugg[ing]” or “grabb[ing]” the Officer’s

shirt to “get him off of her brother.” (Defs.’ 56.1, Dkt. 37, ¶ 6; Tr. of Pl.’s CCRB Interview,

Dkt. 36-2, at 2:20−22, 11:14−15; Tr. of Pl.’s N.Y. Gen. Mun. Law § 50-h Hearing, Dkt. 36-1, at

19:5−12; Tr. of Pl.’s CCRB Telephone Interview, Dkt. 36-4, at 2:11−13 (“So I run out, and I

grabbed his shirt, like not like grab like, choking, just like, just to get him off, just like, tugging

just to get him off.”).) Whether Plaintiff grabbed Officer Loria’s shirt or jumped on him is

immaterial given that Plaintiff’s acknowledged physical contact with Officer Loria establishes at

least arguable probable cause.

In the only case Plaintiff relies on, the plaintiff only admitted to unintentional contact, and

the court—obligated at the summary judgment stage to construe the facts in the light most

favorable to the plaintiff—found that “a reasonable jury could find that no ‘person of reasonable

caution’ would jump to the conclusion that [the plaintiff] intended to impede [the officer].”

Barksdale v. Colavita, 506 F. App’x 82, 85 (2d Cir. 2012) (summary order); see id. (finding

summary judgment inappropriate because the plaintiff disputed that he intended to obstruct the

officer and the dispute was “material to a determination of reasonableness” under arguable

probable cause). In contrast, Plaintiff here admitted that she intentionally made contact with

Officer Loria for the purpose of interfering with the Officer with respect to her brother’s arrest.

Based on Plaintiff’s admission, no reasonable jury could find that a reasonable officer would not

conclude that Plaintiff “intended to impede” Officer Loria.

Because there is no dispute that Officer Loria was attempting to arrest Mr. Ross and

Plaintiff’s actions diverted Officer Loria’s attention (see Defs.’ 56.1, Dkt. 37, ¶ 7 (“Officer Loria

asked plaintiff to get off of him.”)), a reasonable officer could have believed that such action

constituted sufficient interference to establish that Plaintiff had committed OGA. Therefore,

Defendant Loria had arguable probable cause to arrest Plaintiff for OGA, and is entitled to

qualified immunity with respect to Plaintiff’s false arrest claim.

B. False Arrest Claim Against Defendant Maresca

Defendant Sergeant Maresca is entitled to the same qualified immunity as Defendant Loria.

Sergeant Maresca was not present during Officer Loria’s arrest of Mr. Ross and did not see any of

the interaction between Plaintiff and Officer Loria. However, when Sergeant Maresca arrived on

the scene, Officer Loria reported to Sergeant Maresca that Plaintiff had jumped on Officer Loria’s

back while he was attempting to arrest Plaintiff’s brother, and Sergeant Maresca also reviewed the

surveillance video afterward, which partially corroborated Officer Loria’s report.10 (See Pl.’s 56.1,

Dkt. 43, ¶ 18 (stating that Officer Loria told Sergeant Maresca that Plaintiff had jumped on his

back); id. ¶ 23 (stating that Sergeant Maresca viewed the video surveillance of Plaintiff’s

interaction with Officer Loria); Video, Dkt. 44-3.)

A police officer is entitled to rely on a fellow officer’s reporting of events. See Panetta v.

Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“When making a probable cause determination, police

officers are entitled to rely on the allegations of fellow police officers.”). Here, Sergeant Maresca

was entitled to rely on Officer Loria’s report that Plaintiff had jumped on Officer Loria’s back in

deciding whether to arrest her. Based on Officer Loria’s report and the surveillance video, which

partially corroborated the Officer’s account, Sergeant Maresca, at a minimum, had arguable

probable cause to arrest Plaintiff for OGA. See Selinger v. City of New York, No. 08-CV-2096

(RMB), 2010 WL 4616138, at *5 (S.D.N.Y. Nov. 5, 2010) (granting summary judgment on

qualified immunity because the arresting officer “had the right to rely on the information given to

him by [a fellow officer]”), aff’d, 453 F. App’x 93 (2d Cir. 2011); see also Bennett v. Vidal, 267

F. Supp. 3d 487, 495 (S.D.N.Y. 2017) (granting summary judgment when “officers of reasonable

10 The video shows, inter alia, Plaintiff running out to her brother’s car and being close

enough to Officer Loria to have physical contact with the Officer for about 20 seconds, but the

video does not show the extent of such contact. (See Video, Dkt. 44-3, at 4:20−4:50.)

competence could disagree on whether the probable cause test was met” and finding that the

officer’s mistaken belief does not obviate arguable probable cause). Therefore, Sergeant Maresca

is entitled to qualified immunity with respect to Plaintiff’s arrest.

* * *

Accordingly, the Court grants summary judgment to the Individual Defendants on

Plaintiff’s false arrest claim.

II. Denial of a Fair Trial Claim Against Defendant Loria

“When a police officer creates false information likely to influence a jury’s decision and

forwards that information to prosecutors, he violates the accused’s constitutional right to a fair

trial, and the harm occasioned by such an unconscionable action is redressable in an action for

damages under 42 U.S.C. § 1983.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.

1997). To succeed on a § 1983 claim alleging a violation of the fair trial right, a plaintiff must

prove that “an (1) investigating official (2) fabricated information (3) that is likely to influence a

jury’s verdict, (4) forwarded that information to prosecutors, and (5) the plaintiff suffered a

deprivation of life, liberty, or property as a result.” Aguirre v. City of New York, No. 15-CV-6043

(PKC), 2017 WL 4236552, at *10 (E.D.N.Y. Sept. 22, 2017) (brackets omitted) (quoting Garnett

v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016)).

Defendants argue that Plaintiff’s fair trial claim against Officer Loria fails because

(1) Plaintiff’s prosecution was not terminated in her favor;11 and (2) Officer Loria’s alleged

11 Defendants submitted a letter motion to supplement their motion for summary judgment,

supplying an additional argument for dismissal of the fair trial claims based on the Supreme

Court’s recent decision in McDonough v. Smith, 139 S. Ct. 2149 (2019). (Defendants’

Supplemental Letter (“Defs.’ Supp. Letter”), Dkt. 46.) The Court granted the motion and also

granted Plaintiff leave to respond. (See Sept. 21, 2019 Order; Plaintiff’s Supplemental Letter

(“Pl.’s Supp. Letter”), Dkt. 49.)

fabrication did not cause Plaintiff’s deprivation of liberty.12 (Defs.’ Br., Dkt. 38, at 12–13.) The

Court addresses each argument in turn.

A. Plaintiff’s ACD Does Not Bar Her Fair Trial Claim

Defendants argue that the recent Supreme Court decision in McDonough v. Smith requires

the Court to dismiss Plaintiff’s fair trial claim, because she did not obtain a favorable termination

of her criminal case. (See generally Defs.’ Supp. Letter, Dkt. 46, at 2 (quoting McDonough, 139

S. Ct. 2156–57, 2159 (holding that the plaintiff “could not bring his fabricated evidence claim

under § 1983 prior to the favorable termination of his prosecution” and that the plaintiff had “a

complete and present cause of action for the loss of liberty only once the criminal proceedings

against him terminated in his favor”)).) The Court disagrees with Defendants’ interpretation of

McDonough.

The Supreme Court in McDonough sought to address the time of accrual for fair trial claims

and held that the statute of limitations for a fair trial claim does not being to run until “the criminal

12 Defendants waited until serving their reply brief to make the precise argument that

Plaintiff was not deprived of her liberty at all because Plaintiff only went to court once.

(Defendants’ Reply Brief (“Defs.’ Reply Br.”), Dkt. 41, at 5.) The Court “does not consider issues

raised in a reply brief for the first time because if a party raises a new argument in a reply brief the

opposing party may not have an adequate opportunity to respond to it.” In re Various Grand Jury

Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y. 2017). However, the Court notes that some

language in Defendant’s Opening Brief could be interpreted as advancing a less fulsome version

of this argument. (See Defendants’ Opening Brief (“Defs.’ Br.”), Dkt. 38, at 13 (“[P]laintiff

accepted an ACD at her arraignment and made no additional court appearances thereafter.”

(emphasis added)).) To the extent the Court considers this argument, it is rejected on the merits.

In their reply, Defendants cite to Randolph v. Metro. Transp. Auth., No. 17-CV-1433 (DLC), 2018

WL 2943744, at *7 (S.D.N.Y. June 12, 2018), to support their argument that a single court

appearance does not constitute a sufficient deprivation of liberty for a fair trial claim. (Defs.’

Reply Br., Dkt. 41, at 5.) But the plaintiff in Randolph was never detained, see 2018 WL 2943744,

at *7 (noting that the plaintiff “was not detained in a jail or precinct”), whereas, here, Plaintiff was

arrested (Defs.’ 56.1, Dkt. 37, ¶ 10) and therefore deprived of her liberty. See Baksh v. City of

New York, No. 15CV7065 (NGG) (ST), 2018 WL 1701940, at *10 (E.D.N.Y. Mar. 31, 2018)

(“Plaintiff’s initial detention, combined with his subsequent court appearances and community

service, clearly constitutes a deprivation of liberty supporting a fair-trial claim.”).

proceeding has ended in the [plaintiff’s] favor, or a resulting conviction has been invalidated within

the meaning of Heck[ v. Humphrey, 512 U.S. 477, 486–87 (1994)].” McDonough, 139 S. Ct. at

2158. Relying heavily on Heck, the Supreme Court emphasized that its decision was driven by

“concerns with parallel litigation and conflicting judgments,” and focused on the fact that allowing

the statute of limitations on a fair trial claim to start running before the criminal case was favorably

terminated could result in a plaintiff bringing civil fair trial claims in the midst of his criminal

proceedings. Id. at 2157. The Court reasoned that, absent a rule that started the statute of

limitations running once a favorable termination is reached, criminal defendants who believed that

evidence had been fabricated in their prosecutions would face the Hobson’s choice of either

pursuing a civil case while their criminal case was ongoing, or waiting to bring the civil action

after their criminal matter is resolved with the risk that their fair trial claim will be time-barred.

Id. at 2158. In holding that the statute of limitations does not begin to run until a plaintiff has

obtained a favorable termination, the Supreme Court expressly declined to expand on the existing

jurisprudence as to what constitutes a favorable termination for purposes of a fair trial claim:

Because [the plaintiff’s] acquittal was unquestionably a favorable termination, we

have no occasion to address the broader range of ways a criminal prosecution (as

opposed to a conviction) might end favorably to the accused. To the extent [the

defendant] argues that the law in this area should take account of prosecutors’ broad

discretion over such matters as the terms on which pleas will be offered or whether

charges will be dropped, those arguments more properly bear on the question

whether a given resolution should be understood as favorable or not. Such

considerations might call for a context-specific and more capacious understanding

of what constitutes “favorable” termination for purposes of a § 1983 false-evidence

claim, but that is not the question before us.

Id. at 2160 n.10 (citation omitted).

Defendants argue that in McDonough, the Supreme Court established that a favorable

termination is an element of a fair trial claim. (Defendants’ Supp. Letter, Dkt. 46, at 2

(“Specifically, in McDonough, the Supreme Court held, inter alia, that, in order to bring a federal

fair trial (i.e., fabrication of evidence) claim like the one plaintiff asserts in this case, the plaintiff

must prove that the underlying criminal prosecution terminated in her favor.”).) In support of their

argument, Defendants rely on the Court’s statements that a plaintiff “[cannot] bring his fabricated

evidence claim under § 1983 prior to [the] favorable termination of his prosecution” and a plaintiff

has “a complete and present cause of action for the loss of [his] liberty only once the criminal

proceedings against him terminated in his favor.” (Id. (citing McDonough, 139 S. Ct. at 2156−57,

2159).) Defendants then state that “[i]t is well-settled that an ACD does not constitute a favorable

termination.” (Id.)

Plaintiff counters that the holding in McDonough was “expressly limited to determining

the accrual of the statute of limitations for a right to fair trial claim like McDonough’s, and not a

broader ruling on the substantive elements of all right to fair trial claims.” (Pl.’s Supp. Letter,

Dkt. 49, at 1.) Plaintiff also argues that, “even if, arguendo, a favorable termination were now to

be considered a required element to a right to fair trial claim, neither the Supreme Court nor the

Second Circuit has ruled on what a favorable termination means in the context of a due process

right to fair trial claim.” (Id. at 1−2.)

Here, the Court assumes, without deciding,13 that a favorable termination of Plaintiff’s

13 Given the recency of McDonough, courts in this Circuit have not extensively explored

this issue. Although two courts in this Circuit have reached seemingly different results, compare

Goldring v. Donawa, No. 16-CV-5651 (KAM) (LB), 2019 WL 4535507, at *4 (E.D.N.Y. Sept. 19,

2019) (holding that where the plaintiff had pleaded guilty to one of the charged crimes, he had

“not received a favorable termination under Second Circuit case law and, therefore, cannot

maintain a § 1983 action for an unfair trial”), with Wellner v. City of New York, No. 16-CV-7032

(JGK), 2019 WL 3729806, at *6−7 (S.D.N.Y. Aug. 8, 2019) (holding that the plaintiff could pursue

a fair trial claim despite having pleaded guilty to one of the four charged misdemeanors), these

decisions can be reconciled based on their different facts. In Goldring, the plaintiff’s fair trial

claim was based on the facts underlying the charge to which he had pled guilty, see 2019 WL

4535507, at *4, whereas in Wellner, the plaintiff’s claim was based on facts relating to charges on

which he was never convicted because they were dropped after he pled guilty to a misdemeanor

underlying criminal prosecution is necessary to permit her to bring a fair trial claim, but finds that

Plaintiff can establish that her prosecution was terminated in her favor.

Plaintiff’s underlying criminal prosecution was resolved with an ACD. (Defs.’ 56.1,

Dkt. 37, ¶ 11.) Prior to McDonough, courts in the Second Circuit have repeatedly held that “an

ACD does not preclude a fair trial claim.” Apostol v. City of New York, No. 11-CV-3851 (RRM)

(CLP), 2014 WL 1271201, at *5 (E.D.N.Y. Mar. 26, 2014), aff’d, 607 F. App’x 105 (2d Cir. 2015);

see id. (collecting cases); Bryant v. Serebrenik, No. 15-CV-3762 (ARR) (CLP), 2016 WL

6426372, at *7 (E.D.N.Y. Oct. 28, 2016) (collecting cases). “The granting of an [ACD] shall not

be deemed to be a conviction or an admission of guilt.” Smith v. Bank of Am. Corp., 865 F. Supp.

2d 298, 302 (E.D.N.Y. 2012) (quotation marks omitted) (citing N.Y. Crim. Proc. Law § 170.55(8)).

While “[a] fair trial claim that would impugn the validity of a conviction must be dismissed,”

Bailey v. City of New York, 79 F. Supp. 3d 424, 445 (E.D.N.Y. 2015), when the criminal

proceeding concluded with an ACD, a fair trial claim does not challenge the validity of a finding

of guilt, see Case v. City of New York, 233 F. Supp. 3d 372, 383 (S.D.N.Y. 2017) (“Unlike a

conviction, an ACD leaves open the question of guilt.”).

While the Court recognizes that these pre-McDonough decisions were based, in part, on

the principle that favorable termination is not an element of a fair trial claim—a debatable premise

post-McDonough—it finds that because fair trial jurisprudence, starting with Heck and continuing

through McDonough, is primarily concerned with the potential for invalidating criminal

that was unrelated to the other charges, see 2019 WL 3729806, at *3. Based on these decisions,

the Court concludes that while McDonough may have established a favorable termination

requirement for a fair trial claim, the definition of favorable termination, as discussed infra, does

not preclude a fair trial claim where the allegedly fabricated evidence relates solely to a charge

that was dropped in exchange for a plaintiff’s guilty plea to another charge, because such a fair

trial claim does not impugn the validity of the plaintiff’s conviction.

convictions, the favorable termination requirement for fair trial claims (assuming there is one) is

necessarily different and more expansive than the one for malicious prosecution claims.14

Thus, although this Court, like many, has found in the context of malicious prosecution

claims that “an ACD is not a favorable termination,” Brooks v. Panas, No. 14-CV-4835 (PKC),

2016 WL 614684, at *3 (E.D.N.Y. Feb. 16, 2016),15 it does not find that this ruling applies to a

fair trial claim. Nor does the Court find that the Second Circuit’s recent clarification of the

favorable termination standard in Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018),

applies to Plaintiff’s fair trial claim. See Blount v. City of New York, No. 15-CV-5599 (PKC) (JO),

2019 WL 1050994, at *2 (E.D.N.Y. Mar. 5, 2019) (applying Lanning to malicious prosecution

claim). Rather, because the Heck bar only considers “whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence,” Heck, 512 U.S. at 487,16 the

Court finds, consistent the well-established rule in this Circuit, that an ACD does not preclude

14 A plaintiff asserting a malicious prosecution claim “invokes the protection of the Fourth

Amendment,” whereas “a claim that a government official denied [the plaintiff] his right to a fair

trial finds its roots in the Sixth Amendment, as well as the due process clauses of the Fifth and

Fourteenth Amendments.” Morse v. Spitzer, No. 07-CV-4793 (CBA) (RML), 2012 WL 3202963,

at *2–3 (E.D.N.Y. Aug. 3, 2012). But see Goldring, 2019 WL 4535507, at *3−4 (applying same

analysis of favorable termination for malicious prosecution and fair trial claims).

15 The Court notes that, in their reply, Defendants cited this Court’s Brooks decision for

the proposition that “[a]n ACD is not a favorable termination.” (Defs.’ Supp. Letter, Dkt. 46, at

2.) However, the Court finds this citation misleading to the extent that it does not acknowledge

that the ruling was made in the context of a malicious prosecution claim.

16 Interpreting Heck, the Second Circuit noted that Heck “does not automatically bar a

§ 1983 claim” and only bars challenges, when there is “a conviction that could not be reconciled

with the claims of his civil action.” Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir.

2014). Therefore, the question is “whether a judgment in favor of the plaintiff [in a civil fair trial

case] would necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487;

see Poventud, 750 F.3d at 132 (“Unlike malicious prosecutions, many violations of constitutional

rights, even during the criminal process, may be remedied without impugning the validity of a

conviction.”).

Plaintiff’s fair trial claim.

B. The Alleged Fabrication Could Have Caused the Deprivation of Liberty

Defendants argue that because of independent probable cause, any alleged fabrication did

not cause the deprivation of Plaintiff’s liberty. (Defs.’ Br., Dkt. 38, at 12–13.) The Court

disagrees.

Although “[t]he existence of probable cause to arrest and prosecute is not a complete

defense to a fair trial claim,” Hoyos v. City of New York, 999 F. Supp. 2d 375, 392 (E.D.N.Y.

2013), “where independent probable cause exists for the prosecution, plaintiff must show that the

misconduct caused some deprivation above and beyond the fact of the prosecution itself,” id. at

394. However, inherent to the exception of independent probable cause is that the probable cause

must be independent from the alleged fabrication and that the independent probable cause caused

the deprivation of liberty. In Hoyos, the plaintiff was arrested and charged for operating a motor

vehicle while under the influence of alcohol or drugs. 999 F. Supp. 2d at 383. The plaintiff

disputed that “his breath and car smelled of alcohol, his speech was slurred, . . . he was unsteady

on his feet when he exited his vehicle, and he admitted to having had a few drinks,” but did not

dispute that “[his] erratic driving, his state of slumber when first approached by the investigating

officers, his grogginess, his bloodshot eyes, and his refusal to take a breathalyzer exam at the

precinct.” Id. at 393–94. The court found that the undisputed facts were independent of the alleged

fabrication by the defendant-officers, and provided ample probable cause for the plaintiff’s

prosecution. Likewise, in Polanco v. City of New York, No. 14-CV-7986 (NRB), 2018 WL

1804702 (S.D.N.Y. Mar. 28, 2018), the plaintiff alleged that the defendants lied about her jumping

on an officer’s back and elbowing an officer in the face, but there was also independent evidence

that the plaintiff refused to obey orders from officers to “get back” and interfered with the arrest

of another, thus supplying probable cause for the plaintiff’s arrest for OGA. Id. at *5, *11.

Here, by Defendants’ own admission, the allegation that Plaintiff jumped on Officer

Loria’s back was the entire basis for the arrest and the subsequent proceeding. (See Loria’s

Deposition, Dkt. 44-4, at 193:7−11 (“Q. And when you met with that prosecutor, you reiterated

those allegations to the prosecutor that she jumped on your back; correct? A. I believe so, sir,

yes.”); Maresca’s Deposition, Dkt. 44-5, at 53:24−54:2 (“He said that as he was trying to place

Mr. Ross under arrest, he said his sister jumped on his back.”); Plaintiff’s Criminal Court File,

Dkt. 44-7, at ECF17 3 (“perp Female . . . did jump on a/o’s [“arresting officer”] back preventing

a/o from arresting male perp”).) The alleged fabrication is not separate or independent evidence

establishing probable cause for Plaintiff’s arrest. Rather, the alleged fabrication is the only

evidence supporting Plaintiff’s OGA prosecution. That Plaintiff disputes Officer Loria’s account

does not make it “separate or independent” evidence. While it is true that probable cause exists

for OGA if one “merely approach[es] the police,” Rasmussen, 766 F. Supp. 2d at 403, or “tapped”

the officer, Antic, 273 F. Supp. 3d at 450, 453−54, there is no indication that Defendants or the

prosecution relied on this fact alone, or on Plaintiff’s admission that she pulled Officer Loria’s

collar, in deciding to prosecute Plaintiff.

Defendants also argue that Plaintiff’s action, although allegedly misinterpreted by Officer

Loria, constituted probable cause to arrest and prosecute Plaintiff, and therefore the fair trial claim

should be dismissed. However, the existence of probable cause to arrest and prosecute a plaintiff

is not a defense to a fair trial claim. See Morse, 2012 WL 3202963, at *5 (“[P]robable cause to

arrest (or prosecute) is not a defense to [a fair trial claim].”).

17 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

Additionally, there is a genuine issue of material fact as to whether the allegedly fabricated

evidence caused the prosecution to pursue charges against Plaintiff. “In a situation in which an

arrest or prosecution were supported by probable cause, a plaintiff can still prevail on a fair trial

claim if fabricated evidence causes some ‘further deprivation.’” Rowell v. City of New York,

No. 16-CV-6598 (AJN), 2019 WL 280469, at *2 (S.D.N.Y. Jan. 22, 2019) (citing Ganek v.

Leibowitz, 874 F.3d 73, 91 (2d Cir. 2017)). Further deprivations included “the setting of bail, . . .

the prosecutor’s decision to pursue charges rather than to dismiss the complaint without further

action,” Garnett, 838 F.3d at 277, “the number of court appearances a plaintiff made post-

arraignment, [and] constraints such as bail requirements, a period of incarceration[,] or travel

restrictions,” Hanson v. New York City, No. 15-CV-1447 (MKB), 2018 WL 1513632, at *17

(E.D.N.Y. Mar. 27, 2018). These decisions “may depend on the prosecutor’s and magistrate’s

assessments of the strength of the case, which in turn may be critically influenced by fabricated

evidence. Thus, a further deprivation of liberty can result from the fabrication of evidence even if

the initial arrest is lawful.” Garnett, 838 F.3d at 277.

Rowell is analogous here. In initiating prosecution against the plaintiff, the defendants in

Rowell had relied solely on “allegations that drugs and plastic baggies were recovered from [the

p]laintiff’s apartment.” Rowell v. City of New York, No. 16-CV-6598 (AJN), 2018 WL 4682219,

at *5 (S.D.N.Y. Sept. 28, 2018), reconsideration denied, No. 16-CV-6598 (AJN), 2019 WL

280469 (S.D.N.Y. Jan. 22, 2019). Despite finding that there was probable cause to arrest the

plaintiff based on information that had been provided by a confidential informant, the court denied

the defendants summary judgment as to the plaintiff’s fair trial claim, because there was “a genuine

issue of fact as to whether the allegedly fabricated evidence in this case[, i.e., the drugs and plastic

baggies,] caused the prosecution to pursue charges against [the p]laintiff.” Rowell, 2019 WL

280469, at *2.

Here, the materiality of the factual dispute between the parties is bolstered by Officer

Loria’s statement that “I wouldn’t arrest that person” if that person had tapped on his shoulder,

wasn’t impeding, and was just trying to find out what was going on. (Loria’s Deposition, Dkt. 44-

4, at 160:17−22.) A reasonable jury could infer from this statement that Plaintiff could have been

released from custody sooner or could have been released without agreeing to an ACD, had Officer

Loria not claimed or sworn that Plaintiff jumped on his back. Cf. Hanson, 2018 WL 1513632, at

*18 (“At most, this allegation formed the basis for only one of the three counts of disorderly

conduct contained in the Criminal Complaint. There is nothing to suggest that [the p]laintiff, who

was released on recognizance after arraignment, would have been released from custody sooner if

the Criminal Complaint had contained one less violation.”). Therefore, the jury could find that the

decision to hold Plaintiff until her arraignment two days later was influenced by Officer Loria’s

allegations. See Loftin v. City of New York, No. 15-CV-5656 (MKB), 2017 WL 3614437, at *9

(E.D.N.Y. Aug. 21, 2017) (“[B]ecause the information provided by the officers was the basis for

the charges against [the p]laintiff, the officers’ statements influenced the decision of the District

Attorney’s Office to charge [the p]laintiff in the Criminal Complaint.”)

* * *

Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s fair trial claim is

denied.

III. Failure to Intervene Claim Against Defendant Maresca

“It is widely recognized that law enforcement officials have an affirmative duty to

intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014)

(quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).

An officer who fails to intercede is liable for the preventable harm caused by the

actions of the other officers where that officer observes or has reason to know:

(1) that excessive force is being used; (2) that a citizen has been unjustifiably

arrested; or (3) that any constitutional violation has been committed by a law

enforcement official.

Anderson, 17 F.3d at 557 (citations omitted). To establish a claim for failure to intervene, a

plaintiff must show (1) the officer’s failure “permitted fellow officers to violate [a plaintiff’s]

clearly established statutory or constitutional rights,” and (2) it was “objectively unreasonable for

him to believe that his fellow officers’ conduct did not violate those rights.” Ricciuti, 124 F.3d at

129 (citation and internal quotation marks omitted). Additionally, Plaintiff must show that the

officer had “a realistic opportunity to intervene to prevent the harm from occurring” but failed to

do so. Cerbelli v. City of New York, No. 99-CV-6846, 2008 WL 4449634, at *11 (E.D.N.Y. Oct. 1,

2008) (citation and internal quotation marks omitted).

Plaintiff acknowledges that “[t]o the extent a jury were to find that [the Individual

Defendants] were directly involved in violating [P]laintiff’s constitutional right to be free from

false arrest, [P]laintiff would agree that no failure to intervene claim would exist as to either

[D]efendant.” (Pl.’s Br., Dkt. 43, at 9.) However, Plaintiff argues that she should be allowed to

present an alternative theory at trial, i.e., that Maresca “fail[ed] to intervene in the continued arrest

of [P]laintiff insofar as Maresca admits that he viewed the video” showing Plaintiff’s interaction

with Officer Loria. (Id. at 10.)

The Court rejects Plaintiff’s argument because no reasonable jury could conclude that

Sergeant Maresca was not directly involved in Plaintiff’s arrest. As Plaintiff acknowledges,

Plaintiff was not arrested until after Sergeant Maresca arrived. (Pl.’s 56.1, Dkt. 43, at 4 ¶ 17.)

Once Sergeant Maresca arrived and spoke to Officer Loria, Sergeant Maresca “directed a

subordinate officer to handcuff [P]laintiff.” (Id. at 4 ¶ 22.) Sergeant Maresca, therefore, was the

one who made the decision to arrest Plaintiff and cannot be held liable under a failure to intervene

theory. See Jackson v. City of New York, 939 F. Supp. 2d 219, 232 (E.D.N.Y. 2013) (holding that

since “both [defendants] may be held liable under a theory of direct participation, [] neither would

be held liable for failure to intervene”); cf. Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016)

(noting that “[l]iability attaches on the theory that the officer, by failing to intervene, becomes a

‘tacit collaborator’ in the illegality” (emphasis added)).

Moreover, even assuming arguendo, that there is a material dispute as to whether Sergeant

Maresca was directly involved in the arrest, Plaintiff has still failed to establish a failure to

intervene claim. “Failure to intervene claims are contingent upon the disposition of the primary

claims underlying the failure to intervene claim.” Usavage v. Port Auth. of N.Y. & N. J., 932 F.

Supp. 2d 575, 599 (S.D.N.Y. 2013). In general, “if the Court determines that the officer’s conduct

did not violate a constitutional right[,] the analysis ends.” Williams v. City of New York, No. 14-

CV-7158 (JPO), 2016 WL 3194369, at *6 (S.D.N.Y. June 7, 2016) (internal quotation marks,

alterations, and citations omitted). Here, the Court has found, supra, that Officer Loria had, at

minimum, arguable probable cause to arrest Plaintiff and therefore is entitled to qualified

immunity. “Having determined that there was at least arguable probable cause to arrest [the

plaintiff] . . . it cannot be said that Defendant [Maresca’s] failure to intervene was objectively

unreasonable.” Id. at *7; see also Levy v. City of New York, 935 F. Supp. 2d 575, 594 (E.D.N.Y.

2013) (“The Court has already concluded that the predicate claim for false arrest cannot survive

due to qualified immunity. Therefore, the claim for failure to intervene based on the false arrest

claim likewise fails.”).18

18 The Court notes that “this principle generally has been applied to preclude failure to

intervene liability when no constitutional violation was found, as opposed to when a constitutional

Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s failure to

intervene claim against Sergeant Maresca is granted.

IV. Supervisory Liability Claim Against Defendant Maresca

“It is well settled in this Circuit that personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v.

Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citation and quotation marks omitted). In other words,

“supervisor liability in a § 1983 action depends on a showing of some personal responsibility, and

cannot rest on respondeat superior.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).

Supervisory liability can be shown in one or more of the following ways:

(1) actual direct participation in the constitutional violation, (2) failure to remedy a

wrong after being informed through a report or appeal, (3) creation of a policy or

custom that sanctioned conduct amounting to a constitutional violation, or allowing

such a policy or custom to continue, (4) grossly negligent supervision of

subordinates who committed a violation, or (5) failure to act on information

indicating that unconstitutional acts were occurring.

Id. at 145 (citation omitted).

“The analysis of the supervisory liability claims in this case turns on the underlying

constitutional claims against the individual officer defendants.” Carpenter v. City of New York,

violation is found, but qualified immunity is granted to those who personally committed the

violation.” Jackson v. Tellado, 236 F. Supp. 3d 636, 657 n.17 (E.D.N.Y. 2017). “As a result, an

arresting officer could violate a suspect’s rights (i.e. arrest him without probable cause) while

objectively having arguable probable cause, while a non-intervening officer with additional

information available to him could or should have known there was no arguable probable cause.”

Id. at 657. The Court does not find this to be the case here, given that both Officer Loria and

Sergeant Maresca were acting on the same information. (See Pl.’s 56.1, Dkt. 43, at 4 ¶ 18 (stating

that Officer Loria told Sergeant Maresca that Plaintiff had jumped on his back); id. at 4 ¶ 23 (stating

that Sergeant Maresca viewed the video surveillance of Plaintiff’s interaction with Officer Loria));

see also Jackson, 236 F. Supp. 3d at 657–58 (resolving a seemingly inconsistent trial verdict by

noting that a jury found that the arresting officers believed, though mistakenly, that the plaintiff

had committed a crime by assaulting someone and therefore were not liable for false arrest, but

that the jury had also found that at least some of the non-intervening defendants did not believe

that the plaintiff had committed a crime and therefore could not have believed that the arrest was

lawful, yet failed to intervene anyway).

984 F. Supp. 2d 255, 269 (S.D.N.Y. 2013). Because summary judgment is granted to the

Individual Defendants on the false arrest claims, it is also granted to Sergeant Maresca on the

supervisory liability claim as to the false arrest. As to the fair trial claim, however, Plaintiff has

raised a genuine issue of material fact. Therefore, the question is whether Plaintiff has also raised

a genuine issue of material fact as to the existence of supervisory liability.

Plaintiff has not set forth evidence demonstrating a genuine dispute of material fact that

Defendant Maresca was personally involved in the alleged evidence fabrication by Defendant

Loria. Although Sergeant Maresca ordered the arrest of Plaintiff, he was entitled to rely on Officer

Loria’s representation that Plaintiff jumped on his back. See Panetta, 460 F.3d at 395 (“When

making a probable cause determination, police officers are entitled to rely on the allegations of

fellow police officers.”). Plaintiff states, in substance, that Sergeant Maresca should have become

privy to Officer Loria’s alleged fabrication upon viewing the surveillance video from the

restaurant. (Pl.’s 56.1, Dkt. 43, at 4 ¶¶ 24−25.) However, the video neither proves nor disproves

Officer Loria’s allegations, because Plaintiff’s contact with Officer Loria was almost entirely

obscured by Mr. Ross’s car in the video. (See Video, Dkt. 44-3.) Based on the evidence in the

record, no reasonable jury could conclude that Sergeant Maresca should have known or

discovered, upon reviewing the surveillance video, that Officer Loria’s report that Plaintiff had

jumped on his back was false or fabricated. Plaintiff does not set forth any other evidence showing

that Sergeant Maresca was aware of the alleged fabrication or Officer Loria’s transmission of this

allegedly false information to the prosecutor, or that Sergeant Maresca himself participated in the

transmission of the allegedly false statement. Neither does Plaintiff point to any evidence showing

that Sergeant Maresca was grossly negligent in his supervision or training of Officer Loria.

Therefore, Defendants’ motion for summary judgment as to Plaintiff’s supervisory liability

claim is granted. See Grega v. Pettengill, 123 F. Supp. 3d 517, 554 (D. Vt. 2015) (dismissing a

supervisory liability claim because Plaintiff did not allege that the defendant “knew of the . . .

manipulation of the evidence”).

V. State False Arrest Claims Against the Individual Defendants

The qualified immunity doctrine applies to state false arrest claims. See, e.g., Kass v. City

of New York, 864 F.3d 200, 213 (2d Cir. 2017) (dismissing the state law false arrest claim because

qualified immunity existed for the federal law false arrest claim), cert. denied sub nom. Kass v.

City of New York, N.Y., 138 S. Ct. 487 (2017); Mesa v. City of New York, No. 09-CV-10464 (JPO),

2013 WL 31002, at *12 (S.D.N.Y. Jan. 3, 2013) (collecting cases). Therefore, for the reasons

stated supra, Plaintiff’s state false arrest claims are dismissed. See Jenkins, 478 F.3d at 87 (“If the

detective defendants were entitled to quality immunity under federal law, summary judgment

would be similarly appropriate on [the plaintiff’s] state law false arrest claim.”).

VI. State Battery Claims Against the Individual Defendants

“[W]here there has been a lawful arrest, intentional contact with the arrested person does

not constitute assault and battery, provided such force is reasonable.” Cunningham v. United

States, 472 F. Supp. 2d 366, 381 (E.D.N.Y. 2007), opinion corrected (Feb. 2, 2007). “The

existence of arguable probable cause entitles [the defendant] to qualified immunity on [the

plaintiff’s] claims for . . . assault and battery . . . .” Pinto v. City of New York, 728 F. App’x 26,

31 (2d Cir. 2018) (summary order). Plaintiff does not allege excessive force or any physical

contact beyond what was used to effectuate her arrest. Thus, because Defendants are entitled to

qualified immunity with regard to Plaintiff’s false arrest claims, as discussed supra, and because

she does not allege excessive force in connection with her arrest, her battery claims are dismissed.

Leibovitz v. City of New York, No. 14-CV-7106 (KAM) (LB), 2018 WL 1157872, at *23 n.21

(E.D.N.Y. Mar. 2, 2018) (“[T]he individual defendants are entitled to qualified immunity, and

[the] plaintiff’s assault and battery claim must be dismissed as against them on qualified immunity

grounds.”).

VII. State Constitutional Claim Against Defendant City of New York

Plaintiff asserts violations of the New York State Constitution against Defendant City of

New York, specifically “false arrest and fabrication of evidence.”19 (SAC, Dkt. 29, ¶ 77.)

If “there are no viable tort claims against the individual Defendants, there is no basis for

City liability under a respondeat superior theory.” Hatcher v. City of New York, No. 15-CV-7500

(VSB), 2018 WL 1583036, at *10 (S.D.N.Y. Mar. 27, 2018). Therefore, the claims for false arrest

and battery are dismissed against the City as well. See id. at 11 (dismissing claims against the city,

because “the [defendants] had arguable probable cause to defeat [the plaintiff’s] false arrest, false

imprisonment, and malicious prosecution claims under both state and federal law”).

Plaintiff does not appear to assert a denial of a fair trial claim under the New York

Constitution. Plaintiff only cites to Article 1, § 12 of the New York Constitution, which provides

“security against unreasonable searches, seizures and interceptions.” (SAC, Dkt. 29, at 11

(“Violation of NYS Constitution against Defendant City of New York Article 1 § 12 Against

Defendant City”); Pl.’s Br., Dkt. 42, at 12 n.1 (“Plaintiff’s claims . . . for violation of her rights

under New York State Constitution Article I, § 12 should also be permitted to proceed against

defendant City of New York”) (citing cases addressing false arrest claims under New York

Constitution and state law).) See N.Y. Const. art. I, § 12. In any event, “[t]o the extent that

19 To the extent that Plaintiff asserts her New York constitutional claims against the

Individual Defendants, they are dismissed because “[t]here is no individual liability under the New

York State Constitution when § 1983 provides a remedy.” Hollins v. City of New York, No. 10-

CV-1650 (LGS), 2014 WL 836950, at *14 (S.D.N.Y. Mar. 3, 2014).

[Plaintiff] also wish[es] to hold the City liable for the denial of a fair trial claim, it does not seem

that New York’s Constitution recognizes this claim [based on the alleged fabrication of evidence].”

Azurdia v. City of New York, No. 18-CV-04189 (ARR) (PK), 2019 WL 1406647, at *15 n.13

(E.D.N.Y. Mar. 28, 2019) (citing Baez v. Jetblue Airways Corp., No. 09-CV-596 (CPS) (SMG),

2009 WL 2447990, at *8 n.19 (E.D.N.Y. Aug. 3, 2009)).20 Accordingly, Defendants’ motion for

summary judgment as to the New York state constitutional claims against the City is granted.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is granted in part

and denied in part. Only Plaintiff’s fair trial claim against Defendant Loria will proceed to trial.

Because there is no claim surviving against Defendants City of New York and Maresca, they are

terminated as parties to this action. The parties shall file a joint pre-trial order that complies with

the Court’s Individual Rules within thirty (30) days of the date of this Memorandum & Order.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 30, 2019

Brooklyn, New York

20 “A review of caselaw indicates that New York courts recognize claims pertaining to the

violation of a defendant’s ‘right to fair trial’ in a narrower set of cases than those recognized by

federal courts,” including “jury bias stemming from excessive pretrial publicity, denial of a

defendant’s access to counsel, and improper procedures used at trial.” Baez, 2009 WL 2447990,

at *8 n.19 (citations omitted).