Isaac v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NATHANIEL ISAAC,

Plaintiff, MEMORANDUM & ORDER

-against- 16-cv-4729 (KAM)(RLM)

THE CITY OF NEW YORK, et al.,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Presently before the court are cross-motions for summary

judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56.

Plaintiff’s motion, which defendants oppose, seeks partial summary

judgment for his: (1) claims of malicious prosecution as to

defendant detectives Robert Assencao and John Hachadoorian, and (2)

claims of unreasonably prolonged detention as to defendant

Hachadoorian. See ECF No. 74 Plaintiff’s Memorandum of Law in

Support of Motion for Summary Judgment (“Pl. Mem.”).1 Defendants’

motion, which plaintiff opposes, seeks summary judgment on: (1)

plaintiff’s claim for malicious prosecution against Detectives

Assencao and Hachadoorian; (2) defendants claim that they are

entitled to qualified immunity on plaintiff’s claim of malicious

prosecution; (3) plaintiff’s excessive detention claim; and (4)

plaintiff’s failure to intervene claim against defendant Lieutenant

Brian Kenny. ECF No. 71 Defendants’ Memorandum of Law in Support

1 The court cites to the page numbers assigned by the Electronic Case Filing

(“ECF”) system.

of Motion for Summary Judgment (“Def. Mem.”). For the reasons set

forth below, the court GRANTS defendants’ summary judgment

motion on all claims and DENIES plaintiff’s motion for summary

judgment on his: (i) malicious prosecution claim pursuant to 42

U.S.C. § 1983 because plaintiff cannot rebut the implied and

actual probable cause that existed for his prosecution; (ii) his

claim for unreasonably prolonged detention because plaintiff

raises no triable issue of material fact to show that police

officers mishandled or withheld exculpatory evidence; and (iii)

his claim against Lt. Kenny for failure to intervene because

there is no underlying violation of his constitutional rights.

BACKGROUND

Based on the record before the court, the following facts

are not in dispute unless otherwise noted.

I.Plaintiff’s First Arrest - May 27, 2008

On May 27, 2008, at approximately 7:45 p.m., Defendant

Police Officer, now Detective, Assencao and his partner, Police

Officer (P.O.) Lisaura Skladel, were driving southbound on 22nd

Street, and approached the corner of 22nd Street and 39th Avenue

in Long Island City, New York. Plaintiff’s Statement Pursuant

to Local Civil Rule 56.1 (“Pl. 56.1 Stm’t”) at 1-3. The

officers were flagged by witnesses Mr. Stefas and Mr. Kharbanda,

who said they saw a man throw two boxes off the roof of a

warehouse located at 39-40 22nd Street across the street. Id. at

3. They pointed out plaintiff, who was the only person walking

along the sidewalk on 22nd Street, as the man who threw the

boxes. Id. at 4; see also Defendants’ Statement Pursuant to

Local Civil Rule 56.1 (“Def. 56.1 Stm’t”) at 4. Mr. Stefas

relayed the same information on a 911 call, and the dispatcher

conveyed that information over radio. Def. 56.1 Stm’t at 5.

Defendant Assencao stopped plaintiff on the corner of 22nd Street

and 39th Avenue. Id. at 6; see also Pl. 56.1 Stm’t at 5. While

Assencao had plaintiff stopped, Defendant Lieutenant Brian Kenny

(“Lt. Kenny” or “Kenny”) arrived at the scene, along with the

fire department, to provide a ladder for roof access. Defendant

Assencao went up to the roof of the building adjoining Ms.

Hsia’s warehouse. Id. at 6. On the roof, Assencao saw an

adjoining building (later determined to be Ms. Paoling Hsia’s

warehouse at 39-35 21st Street, from which property was reported

stolen) with a damaged window, and a fence separating the

adjoining building from 39-40 22nd Street. Plaintiff’s Reply to

Defendants’ Statement Pursuant to Local Civil Rule 56.1 (“Pl.

Reply 56.1 Stm’t”) at 14. Assencao could not determine if the

damage was recent or old. Id. at 16. Assencao’s observations

of the damaged window were supported by pictures of the damaged

window taken by Ms. Paoling Hsia, the owner of the warehouse

located at that adjoining building, 39-35 21st Street. Id. at

15; Def.’s 56.1 Stm’t at 11. Plaintiff disputes Assencao’s

observation of the window on the grounds that Assencao did not

mention the condition of the window during his testimony to the

grand jury. See Grand Jury Minutes for Def. Assencao at 23:12-

24:4. However, the prosecutor never asked Assencao at the grand

jury about the adjoining building or the window. Assencao

consistently testified about his observation of the window

during trial testimony. Pl.’s Reply 56.1 Stm’t at 14. As

plaintiff’s objection is unsupported by evidence contradicting

Assencao’s observations on the roof and Ms. Hsia’s photographs,

the court finds that Assencao’s observations are undisputed.

Plaintiff and defendants disagree over whether plaintiff

was pushing a shopping cart at the time he was stopped, Pl.’s

Reply 56.1 Stm’t at 7, however, this fact is not material to

plaintiff’s arrest as it does not raise a genuine dispute of

material fact over the eyewitness’ identification of plaintiff.

The parties agree that on the sidewalk, two very large boxes

each containing twelve pairs of women’s footwear were recovered.

Pl.’s 56.1 Stm’t at 8. The parties disagree whether defendant

Assencao inspected the boxes at the scene, but agree that his

partner, P.O. Skladel, did inspect the boxes. P’s Reply 56.1

Stm’t at 9. Assencao’s personal inspection is immaterial to the

instant dispute, as his partner’s inspection is an independently

adequate base for Assencao’s knowledge. The officers

transported plaintiff to the 114th precinct to process

plaintiff’s arrest on charges of criminal trespass. Pl.’s 56.1

Stm’t at 7. Defendant Kenny verified the arrest. Id. at 18.

The boxes containing the footwear were vouchered at the

precinct.

At 8:45 a.m. the following day, May 28, 2008, defendant

Assencao visited the roof where witnesses spotted the plaintiff

to speak to the building’s owner, but Ms. Hsia, who was the

owner, was not present. Pl.’s Reply 56.1 Stm’t at 21. Without

citing to any evidence, plaintiff disputes the testimony of

witnesses Kharbanda and Stefas to the extent that they saw him

on the roof of Ms. Hsia’s warehouse. When taking witness

statements from Kharbanda and Stefas, Assencao noted the address

of the building they referenced in his arrest report. Id. As

plaintiff has no admissible evidence relevant to the witness

testimony and the officer’s report, the court finds undisputed

the accounts of the witnesses and Assencao. Defendant Assencao

spoke with a member of the District Attorney’s office that same

day and described the general events of the previous day to the

prosecutor at intake. Id. at 21-22. Assencao reviewed and

signed the criminal court complaint prepared by the prosecutor,

which asserted that “deponent further states that he recovered

from [plaintiff] two boxes containing twelve pairs of women’s

shoes.” Id. at 23-25. Assencao’s account that plaintiff

possessed the boxes was based on statements by witnesses Stefas

and Kharbanda to the officer. Id. at 26.

Although plaintiff disputes Detective Assencao’s account of

plaintiff’s possession, plaintiff offers no contrary evidence.

An officer is permitted to make an arrest based on eye-witness

testimony. “‘[I]t is well-established that a law enforcement

official has probable cause to arrest if he received his

information from some person, normally the putative victim

or eyewitness,’ unless the circumstances raise doubt as to the

person's veracity.” Panetta v. Crowley, 460 F.3d 388, 395 (2d

Cir. 2006) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d

Cir. 2000)). Plaintiff cites to no admissible facts in

opposition, and offers no evidence to cast doubt on the accounts

of the eyewitnesses. Instead, plaintiff simply argues that he

was not pushing a shopping cart when stopped. While this is a

fact in dispute, it is not material to the circumstances of

officer Assencao’s identification of the plaintiff. As Officer

Assencao’s statement in the criminal complaint was based on

information from eyewitnesses whose observations have not been

challenged with material evidence, the criminal court complaint

was sufficient to support commencement of plaintiff’s

prosecution by the District Attorney.

Plaintiff was arraigned on criminal trespass charges and

released on his own recognizance on May 28, 2008. On June 19,

2008, Ms. Hsia reported that the warehouse she owned at 39-35

21st Street was burglarized and missing four boxes of women’s

footwear, one circular saw, one 5000-watt diesel generator, and

one compressor. Pl.’s 56.1 Stm’t at 11. Ms. Hsia stated that

she was away from her warehouse between May 23, 2008 and May 29,

2008. Def.’s 56.1 Stm’t at 31. On June 21, 2008, defendant

Detective Hachadoorian issued an investigation card (“I-card”)

for plaintiff based on: (i) a complaint report he compiled from

Ms. Hsia’s statements, (ii) a conversation he had with defendant

Assencao after learning that Assencao made an arrest near Ms.

Hsia’s warehouse and recovered boxes of women’s shoes, (iii) and

an interview of Mr. Gagan Kharbanda, who identified plaintiff as

the person he witnessed throw boxes from Ms. Hsia’s roof.2 Id.

at 31-36. The boxes of shoes that defendant Assencao vouchered

matched the brand name of the footwear Ms. Hsia described as

stolen. Accordingly, defendant Hachadoorian filed a DD-5

documenting that the vouchered property and the property

reported as stolen were one in the same. Id. at 38-40.

2 Though plaintiff objects to this characterization of the incidents leading

up to Det. Hachadoorian issuing the investigation card, plaintiff again does

so without citing to any admissible evidence. Therefore, the court deems the

statements as presented by the defendants uncontroverted.

II.Plaintiff’s Second Arrest - June 25, 2008

Defendant Hachadoorian arrested plaintiff for burglary on

June 25, 2008. Id. at 42. Hachadoorian presented information

to a prosecutor in the District Attorney’s office to craft a

criminal court complaint, wherein he attested that certain

crimes were committed between May 23 at 10:30 a.m. and May 27,

2008 at 7:59 p.m.3 Id. at 42-47. The prosecutor decided to

proceed with the prosecution of plaintiff for burglary, criminal

mischief, possession of stolen property and trespass. Id. at

46. Defendant Lt. Kenny did not speak with the prosecutor about

plaintiff’s criminal case, and did not testify before the grand

jury, the pre-trial hearing, nor the criminal trial. Id. at 48,

53, 60. Defendant Hachadoorian also did not testify before the

grand jury or the criminal court. Id. at 52, 59. Defendant

Assencao, Ms. Hsia, and Mr. Stefas testified before the grand

jury, which indicted plaintiff. Id. at 54. Assencao, Hsia and

Kharabanda also testified at the criminal bench trial. Id. at

49-51, 54-58.

3 Plaintiff’s objections do not cite to any admissible evidence.

III.Plaintiff’s Bench Trial and Appeal - July 20, 2010 & October 8,

2014

The prosecution and plaintiff proceeded to a bench trial

before Judge Stephen Knopf on charges of burglary in the third

degree, criminal mischief in the fourth degree, criminal

possession of stolen property in the fifth degree, and criminal

trespass. Pl.’s 56.1 Stm’t at 19-20. Plaintiff’s criminal

trespass charge was dismissed at trial because the prosecution

did not prove ownership of the building. Def.’s 56.1 Stm’t at

61. Judge Knopf found that the legal standard of “recent and

exclusive” was a matter of degree, and determined that the

evidence was sufficient to find plaintiff guilty of burglary in

the third degree, criminal possession of stolen property in the

fifth degree and criminal mischief in the fourth degree. Id. at

61-63.

On October 8, 2014, the Appellate Division vacated

plaintiff’s conviction for burglary and criminal mischief due to

the prosecution’s failure to establish the date of the burglary

beyond a four day window, and found that the prosecution

therefore failed to show that the burglary was “recent and

exclusive.” Id. at 63. The Appellate Division found that

plaintiff was entitled to a new trial on the charge of criminal

possession of stolen property, “based on a denial of counsel,

but because plaintiff had already served the maximum sentence

for the charge, the appellate division dismissed that charge.”

Id. at 64. On November 7, 2014, the criminal action against

plaintiff was dismissed. Id. ¶ 65.

IV. Procedural History

On August 24, 2016, defendants removed this action from the

Supreme Court of the State of New York. ECF No. 1, Notice of

Removal. On January 3, 2017, plaintiff filed the First Amended

Complaint (the “FAC”). ECF No. 13, First Amended Complaint

(“FAC”). In the FAC, plaintiff asserted nine claims: (1)

malicious prosecution under 42 U.S.C. § 1983 (“Section 1983”)

against all individual defendants (ECF No. 13, FAC at 157-58);

(2) malicious abuse of process under Section 1983 against all

individual defendants (id. at 159-64); (3) failure to intervene

under Section 1983 against all individual defendants (id. at

165-66); (4) unreasonably prolonged detention under Section 1983

against all defendants (id. at 167-71); (5) denial of fair

trial, procedural and substantive due process under Section 1983

against all individual defendants (id. at 172-80); (6) Brady

violations under Section 1983 against all individual defendants

(id. at 181-83); (7) municipal liability under Section 1983

against defendant City of New York (id. at 184-210); (8)

supervisory liability for failure to train/supervise under

Section 1983 against defendants Kenny and Buell (id. at 211-15);

and (9) violations of the New York State Constitution against

all defendants (id. at 216-23).

This court granted defendants’ motion for judgment on the

pleadings and dismissed: (1) plaintiff’s malicious prosecution,

prolonged detention and fair trial/Brady claims against

defendants Messa, Kenny, and Buell; (2) plaintiff’s claims

against all defendants for abuse of process and supervisory

liability; (3) plaintiff’s failure to intervene claim against

Buell; (4) plaintiff’s claims against John Does 1-10; (5)

plaintiff’s municipal liability claim against defendant City of

New York; and (6) plaintiff’s claims under the New York State

Constitution. This court denied defendant’s motion to dismiss

with respect to plaintiff’s claims for malicious prosecution,

unreasonably prolonged detention, denial of fair trial, and

Brady claims against defendants Assencao and Hachadoorian; and

failure to intervene against defendants Kenny and Messa. ECF

No. 50 September 24, 2018 Order Adopting R&R.

LEGAL STANDARD

I. Motion for Summary Judgment

Summary judgment shall be granted to a movant who

demonstrates “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). “A fact is ‘material’ for

these purposes when it ‘might affect the outcome of the suit

under the governing law.’” Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), cert denied, 565

U.S. 1260 (2012). No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party. If the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(internal citations omitted). Summary judgment allows the court

to dispose of meritless claims before becoming entrenched in a

frivolous and costly trial. Knight v. U.S. Fire Ins. Co., 804

F.2d 9, 12 (2d Cir. 1986).

When bringing a motion for summary judgment, the movant

carries the burden of demonstrating the absence of any disputed

issues of material fact. Rojas, 660 F.3d at 104. In deciding a

summary judgment motion, the court must resolve all ambiguities

and draw all reasonable inferences against the moving party.

Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)), cert. denied, 534 U.S. 1065 (2001).

Where parties have filed “cross-motions” for summary judgment,

“the court must evaluate each party’s motion on its own merits,

taking care in each instance to draw all reasonable inferences

against the party whose motion is under consideration.” Coutard

v. Mun. Credit Union, 848 F.3d 102, 114 (2d Cir. 2017) (quoting

Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir.

1981)).

A moving party may indicate the absence of a factual

dispute by, inter alia, “showing . . . that an adverse party

cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1)(B). Put another way, “[w]here the record

taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no ‘genuine issue for

trial.’” Matsushita Elec. Ind. Co., 475 U.S. at 587. Once the

moving party has met its burden, the non-moving party may not rely

on “ultimate or conclusory facts and conclusions of law.”

BellSouth Telecommunications, Inc. v. W.R. Grace & Co.-Conn., 77

F.3d 603, 615 (2d Cir. 1996) (citation omitted). “[C]onclusory

statements are insufficient to raise a triable issue of material

fact.” Id. Instead, because it is “not sufficient merely to

assert a conclusion without supplying supporting facts or

argument,” a party opposing summary judgment must set forth

“concrete particulars.” Id. (internal quotation marks and citations

omitted). Put differently, “the nonmoving party must come

forward with admissible evidence sufficient to raise a genuine

issue of fact for trial in order to avoid summary judgment.”

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

“The nonmoving party must go beyond the pleadings, and by his

or her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Davis v. New

York, 316 F.3d 93, 100 (2d Cir. 2002) (internal quotation marks and

citations omitted); accord Celotex, 477 U.S. at 324; Fed. R. Civ.

P. 56(e). Further, Local Rule 56.1 provides that each statement of

material fact on which a party relies in supporting or opposing a

motion for summary judgment, “including each statement

controverting any statement of material fact, must be followed by

citation to evidence which would be admissible, . . . as required

by [Rule 56(c)].” Local Rule 56.1(d); see also Fed. R. Civ. P.

56(e)(2) (authorizing the court to consider a fact undisputed where

a party fails to properly address that fact as required by Rule

56(c)); Pensionsversicherungsanstalt v. Greenblatt, 556 F. App’x

23, 25 (2d Cir. 2014), as amended (Mar. 5, 2014) (noting

requirements of Local Rule 56.1(d)).

In deciding a motion for summary judgment, the court is

dutybound not to weigh evidence or assess the credibility of

witnesses. United States v. Rem, 38 F.3d 634, 644 (2d Cir.

1994).

II. Section 1983 Claims

Plaintiff brings claims pursuant to 42 U.S.C. § 1983 for

the alleged deprivation of his rights under the Fourth and

Fourteenth Amendments to the Constitution. Section 1983

provides that “[e]very person who, under color of any statute,

ordinance, regulation, custom or usage, of any State . . . ,

subjects, or causes to be subjected, any citizen of the United

States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured . . . .” 42 U.S.C. § 1983. “Section 1983

provides a cause of action against any person who deprives an

individual of federally guaranteed rights ‘under color’ of state

law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). Section

1983 does not itself create substantive rights; rather, it

“provides a method for vindicating federal rights elsewhere

conferred[.]” Patterson v. County of Oneida, 375 F.3d 206, 225

(2d Cir. 2004) (internal quotation marks omitted). To state a

claim under Section 1983, a plaintiff must allege that “(1) the

challenged conduct was attributable at least in part to a person

who was acting under color of state law and (2) the conduct

deprived the plaintiff of a right guaranteed under the

Constitution of the United States.” Snider v. Dylag, 188 F.3d

51, 53 (2d Cir. 1999).

DISCUSSION

I. Malicious Prosecution

Plaintiff asserts a claim for malicious prosecution against

all defendants. To state a section 1983 claim for malicious

prosecution, plaintiff must allege an unreasonable seizure or

other violation of his Fourth Amendment rights, as well as the

four elements of a malicious prosecution claim under New York

law: (1) the initiation or continuation of a criminal proceeding

against the 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 the

defendant’s action. Manganiello v. City of New York, 612 F.3d

149, 160-61 (2d Cir. 2010); Jocks v. Tavernier, 316 F.3d 128,

136 (2d Cir. 2003); see also Boyd v. City of New York, 336 F.3d

72, 76 (2d Cir. 2003) (“To succeed on a claim for malicious

prosecution, the plaintiff must show that a prosecution was

initiated against him, that it was brought with malice but without

probable cause to believe that it could succeed and that the

prosecution terminated in favor of the accused plaintiff.”

(citations omitted)). As plaintiff has failed to show a genuine

issue of material fact regarding whether there was a lack of

probable cause for commencing the proceeding, and any of the

other elements of malicious prosecution, the defendants are

granted summary judgment on his malicious prosecution claim for

the reasons detailed below.

1. Probable Cause

Plaintiff has failed to offer sufficient evidence to defeat

the presumption of probable cause that was established by

plaintiff’s grand jury indictment for burglary in the third

degree, criminal possession of stolen property in the fifth

degree, criminal mischief in the fourth degree, and criminal

trespass in the third degree.4 “[T]he existence of probable cause

is a complete defense to a claim of malicious prosecution in New

York.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)

(citing Colon v. City of New York, 455 N.E.2d 1248, 1250 (N.Y.

1983)). Probable cause to prosecute exists where there are “such

facts and circumstances as would lead a reasonably prudent person

to believe the plaintiff guilty.” Boyd, 336 F.3d at 76 (citing

Colon, 455 N.E.2d at 1250). Further, “under New York law,

indictment by a grand jury creates a presumption of probable cause

that may only be rebutted by evidence that the indictment was

4 The criminal trespass charge was dismissed “because the prosecution did not

call Ms. Chen to testify at trial,” and thus did not establish ownership of

the building. Def. Reply Memo at 5.

procured by ‘fraud, perjury, the suppression of evidence or other

police conduct undertaken in bad faith.’” Savino, 331 F.3d at 72

(quoting Colon, 455 N.E.2d at 1251) (emphasis in original).

As this court has previously noted5, Rothstein v. Carriere,

373 F.3d 275, 284(2nd Cir. 2004) instructs that “[t]he grand

jury’s . . . indictment presumptively establishe[s] . . . probable

cause. [Plaintiff] [is] required to rebut that presumption by

proving fraud, perjury, suppression of evidence or other misconduct

in the grand jury.” As a result, “[t]he burden of rebutting the

presumption of probable cause requires the plaintiff to establish

what occurred in the grand jury, and to further establish that

those circumstances warrant a finding of misconduct sufficient to

erode the ‘premise that the Grand Jury acts judicially.’” Id.

(quoting Colon, 455 N.E.2d at 1250). “[T]o survive a motion for

summary judgment . . . [the plaintiff] must have submitted evidence

sufficient for a reasonable jury to find that his indictment was

procured as a result of police conduct undertaken in bad faith.”

Savino, 331 F.3d at 73. “[M]ere ‘conjecture’ and ‘surmise’ that

his indictment was procured as a result of conduct undertaken by

the defendants in bad faith” will not suffice to meet the burden.

Id. (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)).

Here, plaintiff has failed to offer any evidence of

misconduct, fraud, or bad faith in the grand jury. Nor did

5 See McClennon v. New York City, No. 13-CV-128(KAM)(SMG), 2018 WL 2943565, at

*14 (E.D.N.Y. June 11, 2018).

plaintiff offer any “exculpatory evidence that, if taken into

account, would void probable cause,” Weiner v. McKeefery, 90 F.

Supp. 3d 17, 34-35 (E.D.N.Y. 2015) (internal citations omitted),

much less any evidence rebutting the presumption raised by the

grand jury indictment. Instead, plaintiff makes a conclusory

claim that “[n]othing was presented to link [p]laintiff’s May

27, 2008 arrest to the burglary, damage to the warehouse, or the

whereabouts of the remaining missing property.” (Pl. Mem. at

19.) Plaintiff fails to offer any material evidence to address

the grand jury testimony of the three witnesses—defendant

Assencao, Ms. Hsia, and Mr. Stefas—whose testimony supported

plaintiff’s subsequent indictment for the crimes for which he

was prosecuted.

Plaintiff offers only his own assertion to allege that

defendant Assencao fabricated grand jury testimony when Assencao

testified that: “(i) ‘a complainant had indicated to him that

plaintiff had tossed those boxes of women’s shoes off the roof

of the building’, (ii) plaintiff was pushing a shopping cart at

the time he was stopped, and (iii) he saw that one of the fences

separating the rooves of 39-35 21st Street and 39-40 22nd Street

was peeled back and open.” Def. Memo at 11. Plaintiff has no

personal knowledge regarding (i) and (iii) and cannot

demonstrate Assencao’s testimony regarding what a witness told

him and what he saw as fabricated by Assencao. Assencao’s

testimony to the grand jury was supported by witness Stefas as

to the first two statements, and witness Hsia as to the third.

No reasonable jury could find that plaintiff’s contrary

testimony alone, without other evidence, creates a genuine issue

of material fact under these circumstances, particularly because

plaintiff lacks personal knowledge of what the witnesses saw.

Moreover, whether plaintiff was pushing a shopping cart at the

time he was stopped by Assencao is immaterial. Thus, plaintiff

has not overcome the presumption of probable cause created by a

grand jury indictment.6

Plaintiff’s failure to present evidence to raise a material

factual dispute regarding the probable cause element of his

claim is fatal to the claim itself.7 As the plaintiff's claim

6 While unimportant for the instant determination of summary judgment, the

court notes that beyond the presumption of probable cause raised by the grand

jury indictment, there is likely actual probable cause in this case, based on

the witnesses’ testimony. Plaintiff has again also failed here to offer any

actual evidence to rebut the witnesses’ testimony beyond simply stating that

the testimony was fabricated.

7 It is appropriate that plaintiff’s claims survived the motion to dismiss

stage. At the motion-to-dismiss stage, Twombly requires the court to accept

the factual allegations in the pleading as true, regardless of their probable

veracity, or the plaintiff’s ability to prove the allegations. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)(a court must rule “on the

assumption that all the allegations in the complaint are true (even if

doubtful in fact)”); id., at 556, 127 S.Ct. 1955 (“[A] well-pleaded complaint

may proceed even if it strikes a savvy judge that actual proof of the facts

alleged is improbable”); see also Neitzke v. Williams, 490 U.S. 319, 327

(1989) (“Rule 12(b)(6) does not countenance ... dismissals based on a judge's

disbelief of a complaint's factual allegations”); see also Scheuer v.

Rhodes, 416 U.S. 232, 236(1974) (a well-pleaded complaint may proceed even if

it appears “that a recovery is very remote and unlikely”). As a result, it

was proper for specific well-pleaded claims of the complaint to survive.

However, at the motion for summary judgment stage, plaintiff must present

admissible evidence that gives rise to a genuine issue of material fact to be

presented to a fact-finder. 536 F.3d at 130.

fails on this initial prong, the court is not required to reach

the elements of initiation, malice, or favorable termination.

The court notes, however, that plaintiff also fails to raise a

genuine issue of material fact on the remaining elements of

malicious prosecution for the following reasons.

First, plaintiff does not present evidence to establish a

triable issue of material fact regarding whether the officers

initiated the prosecution. The officers relied on eyewitness

statements—not on their own impressions—that identified the

plaintiff as the perpetrator. Defendant Hachadoorian relied on

witness statements proffered to both himself and to defendant

Assencao to issue the investigation card. As a result, neither

officer could have “initiated” the prosecution by any type of

fabrication forwarded to the prosecution. Even assuming,

arguendo, that defendants had forwarded a false narrative to the

prosecution initiating the claim, the prosecutor’s independent

judgment would still be an intervening element between the

officers’ initial reporting of eyewitness accounts to the

district attorney and the grand jury indictment. For the

reasons stated, defendants could not reasonably be proven to

have initiated the prosecution here.

Plaintiff also fails on the element of favorable

termination. The Appellate Division vacated plaintiff’s

convictions on burglary and criminal mischief for legal

insufficiency and found that plaintiff was entitled to a new

trial for criminal possession of stolen property based on a

denial of counsel. A new trial was never granted, and the

criminal possession charge dismissed, because plaintiff had

already served the maximum sentence for that charge. This

dismissal was not a dismissal that “affirmatively indicated

[plaintiff’s] innocence.” Lanning v. City of Glenn Falls, 908

F.3d 19, 22 (2d Cir. 2018). The dismissal of plaintiff’s claim

resulted from legal insufficiencies and does not constitute an

affirmative indication of the plaintiff’s innocence on the

merits. Consequently, plaintiff also fails to fulfill the

element of favorable dismissal.

Finally, plaintiff’s argument that the prosecution

proceeded with malice relies on his contention that there was

not probable cause for the prosecution. As stated above,

plaintiff’s arrest was based on the statements of two

eyewitnesses who hailed the police over and called 911. As

probable cause to prosecute has been established both from the

grand jury indictment and actual probable cause given the

testimony of the eyewitnesses, plaintiff will be unable to

establish that the officers acted with malice.

For the foregoing reasons, defendants’ motion for summary

judgment on the claim of malicious prosecution is granted, and

plaintiff’s motion is denied.

II. Qualified Immunity

Qualified immunity protects officers “from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or his constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan, 129

S. Ct. 808, 815 (2009) (citation omitted). Defendants are

entitled to qualified immunity if (a) their actions did not

violate clearly established law, or (b) it was objectively

reasonable for them to believe that their actions did not

violate such law. See Anderson v. Recore, 317 F.3d 194, 197 (2d

Cir. 2003) (citation omitted). The legal grounds upon which

plaintiff’s convictions for burglary and criminal mischief were

vacated concerned the Appellate Division’s analysis of what

constituted “recent” possession. “The crime of burglary may be

established by way of the presumption of guilt that flows from

recent, exclusive, and unexplained or falsely explained

possession of the fruits of a crime.” People v. Serrano, 55

A.D.3d 450, 451 (1st Dep’t 2008). The Appellate Division

determined that “the People adduced no proof as to, inter alia,

the time of the burglary that formed the basis of” plaintiff’s

conviction for burglary and criminal mischief. People of New

York v. Nathaniel Isaac, 2014 N.Y. Slip Op 06844, ¶ 6 (October

8, 2014)(internal citations and quotation marks omitted). And

though “[t]he evidence showed that the defendant was found in

possession of some of the alleged proceeds of the burglary on

the date of his apprehension,” since “there was no other evidence

connecting him to the burglary or the damage to the warehouse...his

possession of the alleged burglary proceeds was not shown to be

recent and exclusive.” Id.

Here, the officers, prosecutor, grand jury, and Queens

County Criminal Court Judge Knopf all determined that the

evidence was sufficient to sustain a charge of burglary and

criminal mischief. The officers were not expected to know that

a four-day window was an insufficient period of time to

establish recency. As officers are expected to enforce the

clearly established law as it existed at the time of the arrest,

the court finds that qualified immunity clearly applies here and

further shields defendants from plaintiff’s claim of malicious

prosecution.

III. Unreasonably Prolonged Detention

In connection with his claim for excessive detention,

“plaintiff must demonstrate ‘(1) that he has a right to be free

from continued detention stemming from law enforcement

officials’ mishandling or suppression of exculpatory evidence,

(2) that the actions of the officers violated that right, and

(3) that the officers’ conduct shocks the conscience.’” Nzegwu

v. Friedman, 605 F.App’x 27, 32 (2d Cir. 2015) (quoting Russo v.

City of Bridgeport, 479 F.3d 196, 205 (2d Cir. 2007)). In Russo,

the Second Circuit reversed the lower court’s grant of summary

judgment in defendants’ favor on the plaintiff’s prolonged

detention claim, citing evidence that officers suppressed

available exculpatory evidence in the form of a video

surveillance tape showing that the robber did not have any

tattoos, whereas the plaintiff had prominent tattoos on his

arms. See 479 F.3d at 206. After concluding that the plaintiff’s

arrest was supported by probable cause based on eyewitness

identification, id. at 204, the Court of Appeals nevertheless

held that the plaintiff’s prolonged detention may have been

caused by the officers’ deliberate withholding of the video from

the prosecutor and defense counsel, in violation of the

plaintiff’s constitutional rights. See 479 F.3d at 209.

Without citing to evidence, plaintiff states that had

defendant Hachadoorian conducted a more extensive investigation,

including an attempt to recover fingerprints, he would have

discovered alternative perpetrators of the burglary. Pl. Memo

at 23. Conclusory and speculative assertions that a more

complete investigation would have yielded a different outcome do

not raise a genuine issue of material fact. Nelson v.

Hernandez, 524 F. Supp. 2d 212, 222 (E.D.N.Y. 2007).

Plaintiff’s statements are conclusory and unsupported by

evidence. As such unsubstantiated contentions fail to establish

the existence of any exculpatory evidence that defendant

Hachadoorian may have mishandled, plaintiff’s claim for

unreasonably prolonged detention cannot, and does not, survive

summary judgment. The court does not reach the remaining two

prongs of the analysis, as plaintiff must succeed on all three

and has failed on the first.

IV. Claims for Denial of Fair Trial and Brady Violations

Defendants move for summary judgment on plaintiff’s claims

alleging a denial of his right to a fair trial and Brady

violations. The court addresses these closely related claims

together, and draws all inferences in favor of the plaintiff,

who is the nonmoving party. See Def. Mem. at 18 n.8.

“A police officer denies a defendant a fair trial when she

creates ‘false information likely to influence a jury’s decision

and forwards that information to prosecutors.’” Fappiano v.

City of New York, 640 F.App’x 115, 118 (2d Cir. 2016) (quoting

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.

1997)). A fair trial violation may also be based on an

officer’s intentional withholding of exculpatory evidence, which

is essentially a fair trial claim sounding in a Brady violation.

See id.; see also Ying Li v. City of New York, 15-CV-1599 (PKC),

246 F.Supp.3d 578, 626-28 (E.D.N.Y. 2017). In a criminal matter,

the prosecution has the obligation to disclose exculpatory

evidence to the defendant. Brady v. Maryland, 373 U.S. 83

(1967); Giglio v. United States,405 U.S. 150, 154 (1972). A

Brady violation consists of three factors: (1) “[t]he evidence

at issue must be favorable to the accused, either because it is

exculpatory or impeaching;”(2) “that evidence must have been

suppressed by the State, either willfully or inadvertently;" and

(3) "prejudice must have ensued." Strickler v. Greene, 527 U.S.

263, 281-82 (1999).

As with plaintiff’s unreasonably prolonged detention claim,

plaintiff’s claims for denial of fair trial and Brady violations

also fail to establish any specific exculpatory material that

defendants withheld. Multiple eyewitness statements formed the

basis of the criminal complaint. Plaintiff states that he was

not pushing a shopping cart at the time he was stopped, and that

he was never on the roof of the burgled building. Plaintiff’s

own statements regarding the shopping cart are not material or

exculpatory, and his denial that he was on the roof did not

create reasonable doubt as to his guilt, given that Judge Knopf

appears to have credited the eyewitnesses in finding plaintiff

guilty. None of plaintiff’s statements establish that the

defendants withheld exculpatory evidence and thus fail to raise

a genuine issue of material fact when evaluated in context.8

Plaintiff claims that the testimony of four witnesses and

defendant Assencao was false, but offers no evidence in support,

other than his own testimony. Nor does he offer evidence that

defendants withheld exculpatory material. “Statements that are

devoid of any specifics, but replete with conclusions, are

insufficient to defeat a properly supported motion for summary

judgment.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).

Here, plaintiff’s reliance upon summary statements and paucity of

evidence show that no reasonable jury could find in his favor on

this claim. As a result, defendants’ motion for summary judgment

on plaintiff’s denial of fair trial and Brady violation claimsis

granted.

8 Plaintiff’s deposition testimony that he was not in possession of the boxes

at the time of his arrest does not establish that defendants falsified

evidence or withheld exculpatory evidence. Further, these are summary

statements, unsupported by other evidence, that do not point to specific

exculpatory material held by defendants. (See, e.g., Deposition Tr. of Isaac

at 40:7-8, 42:10-15 (“Plaintiff testified that he was coming from the

opposite direction”); see also Lee Decl., Exhibit 4, (“Conversely, the SPRINT

Printout states that the 911 caller reported that the person that was seen on

the route ran toward 40th Avenue and made a right onto 40th Avenue toward

21st Street.”)

IV. Failure to Intervene

Defendants move for summary judgment on plaintiff’s failure

to intervene claim against Lt. Kenny. “‘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)). To support a claim for failure to intervene, and to

“overcome the hurdle of qualified immunity[,]” a plaintiff must

show that (1) the officer’s failure “permitted fellow officers

to violate [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. In addition,

a plaintiff must show that the officer had “‘a realistic

opportunity to intervene to prevent the harm from occurring’ but

failed to do so.” Ying Li, 246 F.Supp.3d at 619 (quoting Cerbelli

v. City of New York, No. 99-CV-6846, 2008 WL 4449634, at *11

(E.D.N.Y. Oct. 1, 2008)). “The essential inquiry is whether,

under the circumstances actually presented, an officer's failure

to intervene permits a reasonable conclusion that he became a

‘tacit collaborator’ in the unlawful conduct of another.”

Figueroa v. Mazza, 825 F.3d 89, 107–08 (2d Cir. 2016).

Again, here, plaintiff has offered no evidence that would

create a genuine dispute of material fact regarding plaintiff’s

failure to intervene claim – nor is there evidence from which a

jury could find for plaintiff on this claim. Instead, plaintiff

makes summary statements that a reasonable jury could find that

Lt. Kenny should have known that “an adequate investigation was

not conducted,” that “there was fabricated information,” and

that based on a finding of Lieutenant Kenny’s knowledge of an

incomplete investigation, a reasonable jury could further find

that “Kenny did not take steps to intervene” in plaintiff’s

arrest and prosecution. Pl. Memo at 21. None of these

statements are supported by citations to plaintiff’s statement

pursuant to Local Rule 56.1, or to any admissible evidence.

There cannot be a genuine dispute of material fact when no

evidence is presented in support of plaintiff’s argument. As

summary judgement cannot be defended simply on conclusory

statements, and as there is no genuine dispute of material fact,

defendants are granted summary judgment on the failure to

intervene claim against defendant Ryan.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary

judgment is granted in its entirety, and plaintiff’s motion for

summary judgment is denied. The Clerk of Court is respectfully

directed to enter judgment and close the case.

SO ORDERED.

DATED: Brooklyn, New York

April 5, 2020

__/s/_ ________

Kiyo A. Matsumoto

United States District Judge