# Isaac v. City of New York

> District Court, E.D. New York · April 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10304032

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
NATHANIEL ISAAC,

Plaintiff, MEMORANDUM & ORDER

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

THE CITY OF NEW YORK, et al.,

Defendants.
--------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304032. Public record. Not legal advice.