Turyants v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ELINA TURYANTS,

Plaintiff,

MEMORANDUM & ORDER

- against - 18-CV-841 (PKC) (PK)

CITY OF NEW YORK, NEW YORK CITY

POLICE DEPARTMENT, PO NICOLE

ATKINSON, PO KURT ANDERSON of the

112th Precinct, POLICE OFFICERS JOHN

DOES 1-4 persons employed by the New York

City Police Department,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Elina Turyants brings this action pursuant to 42 U.S.C. § 1983 against Defendants

City of New York, New York City Police Department (“NYPD”) Officers Nicole Atkinson and

Kurt Anderson, and other unidentified NYPD officers for false arrest, failure to intervene,

malicious prosecution, and various state law claims.1 Before the Court is Defendants’ motion for

summary judgment. For the reasons stated below, Defendants’ motion is granted in its entirety.

1 Plaintiff also names the NYPD as a defendant. (See Complaint, Dkt. 1, ¶ 6.) However,

since the NYPD is a non-suable entity, see Wims v. N.Y.C. Police Dep’t, No. 10-CV-6128 (PKC),

2011 WL 2946369, at *6 (S.D.N.Y. July 20, 2011) (citing Ximines v. George Wingate High Sch.,

516 F.3d 156, 160 (2d Cir. 2008)) (per curiam) (“Section 396 of the Charter has been construed to

mean that New York City departments, as distinct from the City itself, lack the capacity to be

sued.”), the Court dismisses it as a defendant in this action.

BACKGROUND

A. Relevant Facts2

On Sunday, January 29, 2017, Plaintiff was a passenger in a car driven by non-party

Michael Yusupov.3 (Defendants’ 56.1 Statement (“Defs.’ 56.1”), Dkt. 34, ¶ 1.) While Yusupov

was attempting to park his car, he got into an accident with an Uber driver, Shahid Mubasher. (Id.

¶¶ 3, 6.) Yusupov’s English was limited at the time of the accident, so Plaintiff translated for

Yusupov as he discussed the accident with Mubasher. (Id. ¶¶ 4, 5.) Mubasher then called the

police. (Id. ¶ 7.) Defendants NYPD Officers Nicole Atkinson and Kurt Anderson responded to

the scene of the car accident.4 (Id. ¶ 8.)

Defendants Atkinson and Anderson asked Plaintiff, Yusupov, and Mubasher what had

occurred and asked all three of them to provide their driver’s licenses, as well as documentation

related to Mubasher’s and Yusupov’s cars. (Id. ¶ 9.) Plaintiff asserts that she asked Officer

Atkinson why she needed to provide her driver’s license if she was not the driver of the car, and

that Officer Atkinson responded that she needed all of the passenger information to put in the

police report. (Plaintiff’s Counterstatement 56.1 (“Pl.’s 56.1”), Dkt. 40, ¶ 9a; see also Deposition

of Elina Turyants (“Pl.’s Dep.”), Dkt. 37-1, at 42:6–18.) The parties dispute who provided the

requested documents to Defendants; Defendants assert that, while Yusupov handed Defendant

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.

3 Yusupov was Plaintiff’s boyfriend at the time and is now her husband. (Defs.’ 56.1, Dkt.

34, ¶ 1.)

4 The parties dispute how long it took Defendants Atkinson and Anderson to respond to

the scene of the accident. (Defendants’ Reply 56.1 (“Defs.’ 56.1 Reply”), Dkt. 41, at 2 (disputing

Plaintiff’s assertion that Defendants took 30–40 minutes to arrive at the scene).)

Atkinson a fraudulent vehicle registration document, it was Plaintiff who handed Atkinson a

fraudulent insurance document. (Defs.’ 56.1, Dkt. 34, ¶¶ 15–16.) However, Plaintiff asserts that,

while she confirmed with Yusupov what documents Defendants were asking for, Yusupov gave

all of the requested documents to the officers and “took responsibility for the forged documents

that were handed” to them. (Pl.’s 56.1, Dkt. 40, ¶¶ 15a, 16a; see also Pl.’s Dep., Dkt. 35-1, at

43:23–25 (“[Yusupov] got the documents from the car and just asked me if this is what they

need . . . .”); Deposition of Michael Yusupov (“Yusupov Dep.”), Dkt. 37-2, at 23:25–24:3 (“But I

asked [Plaintiff] if those are the documents that the policemen [are] asking for.”).)

The registration and insurance provided to Defendants appeared to be fake. (Defs.’ 56.1,

Dkt. 34, ¶¶ 14, 17; Deposition of Nicole Atkinson (“Atkinson Dep.”), Dkt. 35-3, at 42:8–14 (noting

that she knew the registration was fake because “it was just a photocopy of a piece of paper”),

75:25 (noting that the insurance card was “fake”); Deposition of Kurt Anderson (“Anderson

Dep.”), Dkt. 35-4 at 43:11–15 (noting that “there was [sic] two fraudulent documents that were

provided during the accident investigation”).) The registration was a Florida Dealership

Registration for “Diamond Motors Association LLC,” located at 4873 Palm Coast PKWY, STE 4,

Palm Coast, FL 32137 (Defs.’ 56.1, Dkt. 34, ¶ 21), and the insurance was a Florida Commercial

Auto Insurance Identification Card for a business called Diamond Motors Association, LLC,

located at 101 Hibiscus Avenue., Bunnell, FL 32110 (id. ¶ 22). Furthermore, the license plate on

Yusupov’s car was a dealer plate, a type of license plate that is not issued to individuals. (Id. ¶ 20.)

Once Defendants had collected the requested documents, they went to their police vehicle to run

a computer check. (Id. ¶¶ 10, 11.) The computer check revealed that the Florida license plate on

Yusupov’s car had been reported stolen to the NYPD on December 24, 2016. (Id. ¶¶ 18, 19.)

Based on these observations and information, Defendants arrested Plaintiff and Yusupov.5

(Id. ¶¶ 13–15; see also Anderson Dep., Dkt. 35-4 at 43:11–15 (“They were placed under arrest for

the license plate on the vehicle that was reported stolen, and there was [sic] two fraudulent

documents that were provided during the accident investigation.”); Atkinson Dep., Dkt. 35-3, at

50:8–10 (noting that she arrested Plaintiff and Yusupov based on the documents they presented as

well as the stolen plate).) Plaintiff was charged with (1) possession of a forged instrument in the

first degree, pursuant to N.Y. Penal Law § 170.30; (2) possession of a forged instrument in the

second degree, pursuant to N.Y. Penal Law § 170.25; and (3) criminal possession of stolen

property in the fifth degree, pursuant to N.Y. Penal Law § 165.40. (Defs.’ 56.1, Dkt. 34, ¶ 26; see

also Arrest Report, Dkt. 35-8.) After Plaintiff and Yusupov were arrested, they were transported

back to the 112th Precinct. (Defs.’ 56.1, Dkt. 34, ¶ 28.) Plaintiff was arraigned on January 30,

2017. (Id. ¶ 32.) On May 5, 2017, Plaintiff accepted an adjournment in contemplation of dismissal

(“ACD”), which terminated the criminal proceeding against her.6 (Id. ¶ 39; see also Certificate of

Disposition, Dkt. 35-12.)

5 Though Plaintiff does not dispute this specific statement of fact (see Pl.’s 56.1, Dkt. 40,

¶ 12a), she later states that “[Officer] Anderson [was] not the arresting officer. [Officer] Anderson

signed a supporting deposition to Mr. Yusupov[’s] statement that ‘I paid someone to get that

plate’” (id. ¶ 38a).

6 The Court notes that two criminal complaints were filed in Plaintiff’s criminal proceeding

before the case was terminated in May 2017. (Defs.’ 56.1, Dkt. 34, ¶¶ 31, 33.) The parties agree

that the only change between the two complaints was that the second complaint did not contain a

paragraph reporting a statement from Mubasher, the Uber driver. (Pl.’s 56.1, Dkt. 40, ¶ 35a.)

Plaintiff appears to argue that, by removing this paragraph, Defendant Atkinson was trying to

obscure whether Plaintiff was the driver or merely a passenger in the vehicle, which Plaintiff

argues is relevant to whether Defendants had probable cause to arrest her. (See id; Plaintiff’s

Memorandum in Opposition, Dkt. 38, at 6–8 (noting several times that Plaintiff was neither the

driver nor the owner of Yusupov’s car).) However, as discussed infra, even assuming that Plaintiff

was only the passenger, Defendants still had probable cause, or, at a minimum, arguable probable

cause, to arrest Plaintiff for possession of fraudulent registration and vehicle insurance documents.

B. Procedural History

Plaintiff commenced this action on February 7, 2018. (Complaint, Dkt. 1.) After

discovery, Defendants sought leave to file a motion for summary judgment. (Defendants’ pre-

motion conference letter, Dkt. 28.) Leave was granted on February 20, 2019. Defendants’ motion

was fully briefed on June 21, 2019. (See Dkts. 33–42.)

LEGAL STANDARD

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) (noting that the 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) (internal quotation marks

and citation 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 and citation 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. See 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. False Arrest

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

2007) (citing Weyant, 101 F.3d at 852) (same). 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) (brackets in original) (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.

2006)).

A. Defendants Had Probable Cause to Arrest Plaintiff

In this case, the only potentially disputed issue with respect to Plaintiff’s false arrest claim

is whether there was probable cause for her arrest.

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

facts of each case, in general “[p]robable 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 in original) (quoting

Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)). The existence of probable cause “must

be determined by reference to the totality of the circumstances.” Id.

Defendants argue that they had probable cause to arrest Plaintiff because she constructively

possessed the fraudulent documents and stolen license plate/car that her arrest was based on.

(Defendants’ Memorandum in Support (“Defs.’ Br.”), Dkt. 36, at 8–9.) Under New York law, a

person “constructively possesses tangible property when he [or she] exercises ‘dominion and

control’ over the property with a sufficient level of control over the area in which the contraband

is found.” Davis v. City of New York, No. 04-CV-3299 (JFB) (RLM), 2007 WL 755190, at *5

(E.D.N.Y. Feb. 15, 2007) (internal quotation marks and citation omitted). A person’s “‘mere

presence’ in a location containing contraband is insufficient to establish constructive possession;

rather, the defendant’s ‘presence [must be] under a particular set of circumstances from which a

reasonable jury could conclude that the defendant constructively possessed contraband.’” Roberts

v. City of New York, No. 16-CV-5409 (BMC), 2017 WL 4357291, at *5 (E.D.N.Y. Sept. 29, 2017)

(brackets in original) (quoting United States v. Facen, 812 F.3d 280, 287 (2d Cir. 2016)). “The

standard for determining constructive possession is fact-specific, and as the Second Circuit has

stated, ‘it is not necessary for a defendant to touch or exercise exclusive control over contraband

to possess it,’ because ‘[w]hat is required is sufficient indicia of dominion and control.’” Id. at *8

(brackets in original) (quoting United States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988)).

Here, Defendants had sufficient information to support a reasonable belief that Plaintiff

constructively possessed the fraudulent vehicle-related documents. Viewed in the light most

favorable to Plaintiff: (1) she was a passenger in a car bearing a license plate that had been reported

stolen and for which fraudulent insurance documentation was produced (Defs.’ 56.1, Dkt. 34,

¶¶ 18–19; Pl.’s 56.1, Dkt. 40, ¶ 57); (2) the car contained only Yusupov, who was driving, and

Plaintiff, who was seated in the front passenger seat, in front of the glove compartment containing

the fraudulent documents; and (3) Plaintiff and Yusupov conferred about the fraudulent documents

before Yusupov gave them to Defendants (Pl.’s Dep., Dkt. 35-1, at 43:23–25; Yusupov Dep., Dkt.

37-2, at 23:25–24:3; Pl.’s 56.1, Dkt. 40, ¶¶ 15a, 16a). Even if Plaintiff was not driving the car and

did not hand the documents to the police, her involvement in these events was sufficient to support

Defendants’ belief that Plaintiff constructively possessed the documents at issue. See Ikezi v. City

of New York, No. 14-CV-5905 (MKB), 2017 WL 1233841, at *12 n.6 (E.D.N.Y. Mar. 31, 2017)

(“Plaintiffs argue that the officers lacked probable cause to detain [one of the plaintiffs] because

he was not driving the vehicle. Plaintiffs’ argument lacks merit because the doctrine of

constructive possession imputes possession of the license plate to [the non-driving plaintiff] and

the officers lacked knowledge as to who may have forged the license plate.”) (internal record

citations omitted); see also Edwards v. Castro, No. 16-CV-2383 (KMK), 2018 WL 4680996, at

*9 (S.D.N.Y. Sept. 28, 2018) (finding probable cause existed to arrest the plaintiff even though

“the backpack was between [the non-party’s] legs, not Plaintiff’s, Defendants observed only [the

non-party], not Plaintiff, touching the bag, and the backpack contained only men’s clothing [when

the plaintiff was a woman],” because “the backpack was within [the p]laintiff’s reach as the driver

of the vehicle”) (internal record citations omitted).

In particular, Defendants’ observation that Plaintiff was conferring with Yusupov before

he handed the documents to the officers supported their inferences that Plaintiff was involved with

the documents and knew that they were fraudulent, and that Plaintiff was not merely an unwitting

stranger.7 Likewise, the fact that the documents were taken from the glove compartment on the

passenger side of the car, where Plaintiff asserts she was sitting (see Pl.’s Dep., Dkt. 35-1, 44:21–

23 (noting that the requested documents were “closer to the passenger side”); see also Yusupov

Dep., Dkt. 35-5, at 23:20–21), further suggests Plaintiff’s awareness of and/or control over the

fraudulent documents. See Edwards, 2018 WL 4680996, at *9 (finding that probable cause existed

to arrest driver of a car where contraband was within her reach, even when she never touched the

contraband). “[A] car passenger . . . will often be engaged in a common enterprise with the driver,

and have the same interest in concealing the fruits or the evidence of their wrongdoing.” Maryland

v. Pringle, 540 U.S. 366, 373 (2003) (quoting Wyoming v. Houghton, 526 U.S. 295, 304–05

(1999)); United States v. Patrick, 899 F.2d 169, 171–72 (2d Cir. 1990) (finding that a criminal

defendant constructively possessed cocaine because the fact that “he entered the Immigration

Office with [the person physically possessing cocaine] at a time when no others were present and

that they both had accidentally crossed into Canada . . . provided an adequate basis for the officials

to reasonably believe that the criminal defendant was not just a mere innocent traveling companion

but was traveling and acting in concert with [the other person] in transporting the cocaine”)

(emphasis in original). Additionally, Plaintiff’s role in translating for Yusupov during the

7 Though discovery has revealed that Yusupov and Plaintiff, now married, were involved

in a romantic relationship at the time of the arrest, the officers did not know of the relationship

then.

interactions with Defendants reinforced the inference that Plaintiff was involved in the possession

of the fraudulent documents. Indeed, Yusupov himself concluded that Defendants likely “arrested

[Plaintiff] because they thought that she [was] my partner. And they got to that conclusion because

she was translating between me and them.” (Yusupov Dep., Dkt. 35-5, 22:14–17; see also id. at

63:10–64:17 (noting that Yusupov believed the police thought Plaintiff was “cooperating with

[him]” and that “she [knew] more [than] what I said to [the officers]”).)

The fact that Yusupov tried to take responsibility for the forged documents (see Pl.’s 56.1,

Dkt. 40, ¶ 15a) is insufficient to counter Defendants’ reasonable belief that Plaintiff also possessed

the documents. “First, constructive possession is not a single-possessor theory, and multiple

individuals may have constructive possession of contraband.” Roberts, 2017 WL 4357291, at *6.

“Second, and more importantly, ‘an officer’s failure to investigate an arrestee’s protestations of

innocence generally does not vitiate probable cause.’ This is true even where an ‘innocent

explanation may be consistent with the facts alleged.’” Id. (quoting Panetta v. Crowley, 460 F.3d

388, 395 (2d Cir. 2006)). Therefore, Defendants were not required to accept Yusupov’s assertion

that he was solely responsible for the stolen documents. See id.; Pickering v. DeFrance, No. 14-

CV-1207 (VLB), 2016 WL 5799293, at *10 (D. Conn. Sept. 30, 2016) (noting that probable cause

existed as to a “driver of car containing contraband professed to belong to another, because

circumstances led the police officer to believe the driver was not an ‘unwitting stranger’ to the

contraband owner”) (quoting United States v. Polanco, 506 F. App’x 55, 57 (2d Cir. 2012)

(summary order)); Waddlington v. City of New York, 971 F. Supp. 2d 286, 294 (E.D.N.Y. 2013)

(“Even assuming that [another individual] informed [the searching officer] that the illegal items

belonged to him . . . such facts in no way impact whether [the p]laintiff was in close proximity to

[the contraband] at the time [the contraband] was found.”) (internal quotation marks and citations

omitted); see also United States v. Clark, 638 F.3d 89, 95 (2d Cir. 2011) (“Control, after all, can

be manifested in various ways—e.g., ownership, occupancy, access, authority to exclude others—

and exercised to varying degrees.”); Coons v. Casabella, 284 F.3d 437, 441 (2d Cir. 2002)

(“[P]olice officers are not required to explore and eliminate every theoretically plausible claim of

innocence before making an arrest.”) (internal quotation marks and citations omitted).

The Court therefore finds that, even construing the facts in the light most favorable to

Plaintiff, Defendants nonetheless had probable cause to arrest her for possession of the fraudulent

vehicle-related documents. See Thomas v. City of New York, No. 11-CV-2219 (LAP) (GWG),

2013 WL 1325186, at *6 (S.D.N.Y. Apr. 2, 2013), aff’d, 562 F. App’x 58 (2d Cir. 2014) (summary

order) (granting summary judgment for Defendants where the disputed facts, interpreted in the

light most favorable to Plaintiff, nonetheless supported finding that probable cause existed to

support the plaintiff’s arrest). Accordingly, Plaintiff’s false arrest claim is dismissed.

B. Defendants Are, at a Minimum, Entitled to Qualified Immunity as to the False

Arrest Claim

Even assuming, arguendo, that Defendants did not have probable cause to arrest Plaintiff,

the Court finds that Defendants, at the very least, had arguable probable cause and are therefore

shielded from liability by qualified immunity. A defendant is entitled to qualified immunity 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 that his actions were lawful at the time of the challenged act.” Tooly v.

Schwaller, 919 F.3d 165, 172 (2d Cir. 2019) (internal quotation marks, brackets, and citation

omitted). “In the false arrest context, ‘[a]n arresting officer is entitled to qualified immunity . . .

even when probable cause to arrest does not exist, if he can establish that there was arguable

probable cause to arrest.’” Thomas, 2013 WL 1325186, at *7 (quoting Ackerson v. City of White

Plains, 702 F.3d 15, 19 (2d Cir. 2012)). “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) (internal quotation marks and

citation omitted). Here, the Court finds that reasonable officers could disagree as to whether there

was probable cause to arrest Plaintiff given that, by translating and conferring with Yusupov about

the fraudulent documents, she appeared to constructively possess the documents and was not just

in “mere” proximity to the contraband. See Roberts, 2017 WL 4357291, at *5 (noting that a

defendant’s “‘mere presence’ in a location containing contraband is insufficient to establish

constructive possession; rather, the defendant’s ‘presence [must be] under a particular set of

circumstances from which a reasonable jury could conclude that the defendant constructively

possessed contraband.’”) (quoting Facen, 812 F.3d at 287). Accordingly, even assuming that no

probable cause existed, Plaintiff’s false arrest claim still fails.

II. Malicious Prosecution

“In order to prevail on a § 1983 claim against a state actor 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, 612 F.3d at 160–61

(internal citations omitted). To state 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; (3) lack of probable cause for commencing the

proceeding; and (4) actual malice as a motivation for defendant’s actions.” Id. at 161 (internal

quotation marks and citation omitted). “A claim for malicious prosecution under section 1983

requires the additional element of ‘(5) a sufficient post-arraignment liberty restraint to implicate

the plaintiff’s Fourth Amendment rights.’” Perez v. Duran, 962 F. Supp. 2d 533, 540 (S.D.N.Y.

2013) (quoting Rohman v. N.Y.C. Transit Auth. (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000)).

Here, Defendants argue that Plaintiff’s malicious prosecution claim fails because

Plaintiff’s criminal proceeding was not terminated in her favor. (Defs.’ Br., Dkt. 36, at 6–7.) The

Court agrees. “[T]he ‘favorable termination’ element of a federal malicious prosecution claim

requires ‘affirmative indications of innocence’ . . . .” Blount v. City of New York, No. 15-CV-5599

(PKC) (JO), 2019 WL 1050994, at *2 (E.D.N.Y. Mar. 5, 2019) (quoting Lanning v. City of Glens

Falls, 908 F.3d 19, 25 (2d Cir. 2018)). “The answer to whether the termination is indicative of

innocence depends on the nature and circumstances of the termination; the dispositive inquiry is

whether the failure to proceed impl[ies] a lack of reasonable grounds for the prosecution.” Murphy

v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997) (brackets in original) (internal quotation marks and

citation omitted). “[I]t is settled law in the Second Circuit that an ACD under N.Y. Crim. Proc.

Law § 170.55 is not a favorable outcome for purposes of malicious prosecution claims.” Bynum

v. Doe, No. 16-CV-6332 (KAM) (ST), 2019 WL 1259568, at *4 (E.D.N.Y. Mar. 19, 2019) (citing

Green v. Mattingly, 585 F.3d 97, 103 (2d Cir. 2009); Singleton v. City of New York, 632 F.2d 185,

193 (2d Cir. 1980)). Plaintiff’s criminal proceeding terminated when she accepted an ACD on

May 5, 2017. (Defs.’ 56.1, Dkt. 40, ¶ 39.) Accordingly, Plaintiff fails to state a claim of malicious

prosecution, and this claim is dismissed.

III. Failure to Intervene

“It is widely recognized that all 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 that (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

[the officer] to believe that his fellow officers’ conduct did not violate those rights.” Ricciuti v.

N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (internal quotation marks and citation

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 (ARR) (RML), 2008 WL 4449634, at *11 (E.D.N.Y. Oct. 1, 2008) (internal quotation marks

and citation omitted).

“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. and N.J., 932 F. Supp.

2d 575, 599 (S.D.N.Y. 2013) (internal quotation marks and citation omitted). 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, for the reasons

stated supra, the Court has already dismissed Plaintiff’s false arrest and malicious prosecution

claims. “[T]he absence of any underlying constitutional violations requires dismissal of

[P]laintiff’s failure to intervene claims.” Sharpe v. City of New York, No. 11-CV-5494 (BMC),

2013 WL 2356063, at *9 (E.D.N.Y. May 29, 2013), aff’d, 560 F. App’x 78 (2d Cir. 2014)

(summary order); see also Wieder v. City of New York, 569 F. App’x 28, 30 (2d Cir. 2014)

(summary order) (“Because the underlying constitutional claims were properly dismissed, we also

affirm the district court’s dismissal of plaintiff’s failure to intervene claim.”). Accordingly,

Plaintiff’s failure to intervene claim is dismissed.

A. State Law Claims

Having disposed of Plaintiff’s federal claims, the Court declines to exercise supplemental

jurisdiction over Plaintiff’s claims arising under New York state law. See 28 U.S.C. § 1367(c)(3).

Where “all federal-law claims are eliminated before trial, the balance of factors to be considered

under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—

will point toward declining to exercise jurisdiction over the remaining state-law claims.” Valencia

ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (internal quotation marks and citation

omitted); see also Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the

federal claims are dismissed before trial, the state claims should be dismissed as well.”).

Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law

claims and dismisses them without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).

CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment is granted as to

Plaintiff’s federal claims against all Defendants, which are dismissed with prejudice, as well as

Plaintiff’s state law claims, which are dismissed without prejudice to be refiled in state court. The

Clerk of Court is respectfully requested to enter judgment and terminate this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: February 18, 2020

Brooklyn, New York