# Turyants v. City of New York

> District Court, E.D. New York · February 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10303765

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303765

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
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.
-------------------------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303765. Public record. Not legal advice.