Vassel v. Palisades Funding Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PAUL VASSEL,

Plaintiff,

MEMORANDUM & ORDER

-against- 19-CV-3241(EK)(RER)

PALISADES FUNDING CORP., MICHAEL

JORDON, VICTORIA VANDERGRIFT, et

al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Paul Vassel, pro se, filed an Amended

Complaint in this action on October 15, 2019.1 He alleges

various consumer protection and civil rights violations arising

out of the allegedly unlawful repossession of his vehicle on

May 17, 2019 and his arrest during that event. See id. at 28.

Plaintiff seeks $210 million in total damages2 from a number of

defendants: Palisades Funding Corp. (“Palisades”); Palisades

1 By Memorandum and Order dated September 10, 2019, Judge Matsumoto granted

his request to proceed in forma pauperis, and dismissed the complaint with

leave to replead, among other rulings. Dkt. No. 5. The case was

subsequently reassigned to the undersigned judge.

2 Plaintiff also seeks attorney’s fees and costs of the action under 42 U.S.C.

§ 1988. Am. Compl. at 28. However, “a pro se litigant who is not a lawyer

is not entitled to attorney’s fees” under Section 1988. Kay v. Ehrler, 499

U.S. 432, 435 (1991).

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employees Willfredo Toro,3 Michael Jordon, Victoria Vandergrift

and Ashlee Chavez; Queens National Auto Group, Corp. (“Queens

National Auto”) and its employee Offer Ben Moshe; the New York

City Police Department; the 105th Police Precinct; Sergeant

Nathaniel, Sergeant Reimbave, and Officer Gregory Nuzzi of the

105th Police Precinct; former Commissioner James Patrick O’Neill

and his successor, and Deputy Inspector Neteis Gilbert of the

NYPD; the City of New York; the County of Queens; “John Does 1

to 10”; and “Police Does 1 to 10.” Dkt. No. 6, Am. Compl. at 1.

For the reasons set forth below, the Amended Complaint

is dismissed in part.

BACKGROUND

Plaintiff alleges, and the court assumes, the

following facts: on May 17, 2019, Willfredo Toro and a tow-truck

driver whose name remains unknown (“John Doe 1”) – both of whom

he says are employees of Palisades – attempted to repossess his

2018 Ford Transit T-350 Van (the “vehicle”). Am. Compl. at 5-6,

10. Plaintiff claims this was a “mistake” because “all proper

3 Where the spelling of an individual’s name differs between the case caption

and the text of the Amended Complaint, the Court adopts the spelling in the

case caption.

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payments were tendered” on the vehicle.4 Id. at 6. Plaintiff

alleges that defendants Toro and Doe 1 had no court order to

repossess the vehicle, id. at 7, 10, and that he repeatedly

stated he did not consent to the repossession, id. at 6. The

complaint describes how defendants Toro and Doe 1 “were

proceeding to pull” him out of his vehicle as he was

“screaming.” Id. When the effort to remove him was

unsuccessful, he alleges, they called the police. Id.

Sergeant Nathaniel and Officer Nuzzi of the 105th

Precinct arrived at the scene, and Sergeant Nathanial “order[ed]

[him] to come out of the [vehicle] and stated that it will be

repossessed.” Id. at 7. Vassel was then arrested for

obstructing governmental administration in the second

degree. Id. In the course of the arrest, Officer Nuzzi “pushed

[him] against the van, [roughed him] up,” and placed him in

handcuffs that were “very tight” and that “cut[] into [his]

skin.” Id. at 7-8. Officer Nuzzi then allegedly searched his

4 Given this allegation, it bears note that Plaintiff attached to the Amended

Complaint a letter that Palisades sent him on May 10, 2019. Dkt. No. 6 at

47. This letter states: “After several attempts to contact you in regards to

your account with Palisades Funding Corp., you seem unwilling to work with us

to bring your account up to date or make necessary arrangements to do so. It

is imperative you take the first step in contacting our office in regards to

your delinquent account as soon as possible.” Id. The letter lists the

“amount past due” as $920.64. Id. Still, at this preliminary stage of the

proceedings, the Court assumes the veracity of the allegations set out in the

text without qualification.

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pockets, seized the keys to his vehicle, and gave those keys to

Doe 1. Id. at 9-10. Once he was arrested, Plaintiff states,

Doe 1 towed his vehicle, id at 8, and certain property inside

the vehicle has not since been returned to him, including a

bible, prayer shawl, and other personal items, id. at 10.

Plaintiff claims he was taken to the 105th Precinct,

where he was held for over seventeen hours. Id. at 13. While

at the precinct, Sergeant Reimbave, Officer Nuzzi, Sergeant

Nathaniel, and an unnamed officer (“Police Doe 1”) “grabbed

[him] out of the cell and held [him] down without [his] consent

to take fingerprints and [a] mug shot.” Id. at 12; see also

Dkt. No. 6, Notice of Claim at 3 (stating that the officers

“grabbed me out of the cell and held me down and took my private

[] property”). The next day, May 18, 2019, Plaintiff was

released, and the obstruction charge was later adjourned in

contemplation of dismissal. Am. Compl. at 13.

In this action, Plaintiff brings consumer-protection

claims under the Fair Debt Collection Practices Act, id. at 25-

26, Truth in Lending Act, id., and Fair Credit Reporting Act,

id. at 25; what he styles as a state-law claim for “breach of

the peace” under the New York Uniform Commercial Code, id. at

23-25; and a common-law conversion claim, id. at 23-24.

Plaintiff also sues under 42 U.S.C. § 1983, alleging due process

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violations, id. at 19, false arrest, id. at 16, use of excessive

force, id. at 18, malicious prosecution, id. at 17, failure to

train, id. at 20-23, and municipal liability, id.; as well as

claims under 18 U.S.C. §§ 241 and 242, id. at 16-18.

STANDARD OF REVIEW

A complaint must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when

the Plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). At this stage, a court must accept a complaint’s

factual allegations as true; however, this tenet is inapplicable

to conclusory statements. Id. Although a court must construe a

pro se plaintiff’s pleadings liberally, a pro se complaint must

still state a claim to relief that is plausible on its face.

Mancuso v. Hynes, 379 F. App’x 60, 61 (2d Cir. 2010).

Where (as here) a Plaintiff is proceeding in forma

pauperis, the district court must screen the complaint and

dismiss any action that “(i) is frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune

from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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DISCUSSION

I. Fair Debt Collection Practices Act, Fair Credit Reporting

Act, and Truth in Lending Act

The Amended Complaint alleges violations of the Fair

Debt Collection Practices Act (“FDCPA”) and Truth in Lending Act

(“TILA”) against Palisades, Vandergrift, Jordon, Chaves, Queens

National Auto, and Ben Moshe. Plaintiff also alleges a

violation of the Fair Credit Reporting Act (“FCRA”) against

Palisades, Vandergrift, Jordon, and Chaves.

Pursuant to the FDCPA, a “debt collector” may

repossess property through “nonjudicial action” – i.e., without

a court order – only if the creditor has a “present right to

possession of the property claimed as collateral through an

enforceable security interest.” 15 U.S.C. § 1692f-(6)(A).

Whether there is a “present right to possession” turns on the

New York Uniform Commercial Code (“UCC”). See Gerbasi v. NU Era

Towing & Serv., Inc., No. 17-CV-553, 2020 WL 1131218, at *2

(W.D.N.Y. Mar. 9, 2020). Under the UCC, a debt collector may

repossess property “without judicial process, if it proceeds

without breach of the peace.” N.Y. U.C.C. § 9-609; see also

Barrett v. Harwood, 189 F.3d 297, 300 (2d Cir. 1999) (“Hence,

where repossession cannot be accomplished without a breach of

the peace, a retaking must be effected by legal process.”). The

gravamen of Plaintiff’s consumer protection complaint, when

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construed liberally, appears to be that a “breach of the peace”

occurred when he was forced out of his vehicle and it was

repossessed without a court order.

The UCC does not define “breach of the peace.” In the

criminal context, New York State courts have described breach of

the peace to be “a disturbance of public order by an act of

violence, or by any act likely to produce violence, or which, by

causing consternation and alarm, disturbs the peace and quiet of

the community.” People v. Smith, 19 N.Y.2d 212, 216 (1967).

Courts have found that “the taking of a vehicle on default from

a public location over the oral objection of the owner, however

strenuous, is not a breach of the peace unless accompanied by

factors indicating that the activities of the repossession agent

are of a kind likely to cause violence, or public distress

and/or consternation.” Gill v. Bd. of Nat'l Credit Union Admin.

for Sikh Fed. Credit Union, No. CV 93-1597, 2018 WL 5045755, at

*10 (E.D.N.Y. Oct. 16, 2018) (citing cases). Plaintiff claims

that Palisades and its agents resorted to force to effectuate

the repossession – that they were “pulling [him] out of his

car.” Therefore, Plaintiff’s FDCPA claim against Palisades

survives the in forma pauperis (“IFP”) review required by

28 U.S.C. § 1915(e).

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Plaintiff does not allege that Queens National Auto is

a “debt collector” (as he must under the FDCPA) or, indeed,

allege any specific facts at all about how Queens National Auto

participated in the events in question. Queens National Auto is

therefore dismissed from this action without prejudice.

The FCRA and TILA claims do not survive IFP review.

The FCRA claim is predicated on the allegation that Palisades

reported “derogatory credit information” that it knew to be

incorrect to three credit bureaus. Am. Compl. at 14. The FCRA

requires those who furnish information to credit reporting

agencies to refrain from knowingly reporting inaccurate

information. See Longman v. Wachovia Bank, N.A., 702 F.3d 148,

151 (2d Cir. 2012) (discussing 15 U.S.C. § 1681s-2(a)). The

Second Circuit, however, has held that there is no private right

of action for a violation of this provision. Id. Therefore,

the claim under Section 1681s-2(a) is dismissed with prejudice.

Plaintiff alleges that Palisades, Queens National

Auto, and certain of their employees violated TILA by failing to

notify him of his right to rescind the loan contract under that

statute. TILA, however, provides a right of rescission only in

connection with credit transactions that are secured by

“property which is used as the principal dwelling of the person

to whom credit is extended.” 15 U.S.C. § 1635(a). Plaintiff

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does not allege that the loan in question was secured by his

principal dwelling. Therefore, this claim is dismissed without

prejudice to replead, should Plaintiff be able to allege such a

security interest.

II. New York UCC and Conversion

Plaintiff brings two state-law claims against

Palisades, Toro, John Doe 1, Vandergrift, Jordon and Chaves.

The first appears to be a claim for injunctive relief pursuant

to Section 9-609 of the New York Uniform Commercial Code. Cf.

Barrett, 189 F.3d at 304 (noting that a plaintiff may seek an

order in state court requiring return of a vehicle repossessed

in violation of the UCC). This claim turns on the same

consideration discussed above about whether a breach of the

peace occurred. Therefore, per the discussion above, the

Section 9-609 claim may proceed. The second is a state common-

law claim for conversion arising out of the same repossession of

the car and alleged taking of his personal property. Clark v.

Auto Recovery Bureau Conn., Inc., 889 F. Supp. 543, 548

(D. Conn. 1994) (explaining that “conversion may occur when a

valid repossession of collateral results in an incidental taking

of other property, unless the loan agreement includes the

debtor's consent to the incidental taking”). This claim, too,

may proceed beyond this preliminary stage.

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III. 42 U.S.C. § 1983

Plaintiff brings 42 U.S.C. § 1983 claims against

certain of the public and private defendants for alleged due

process violations, false arrest, use of excessive force,

malicious prosecution, failure to train, and municipal

liability.

1. Due Process

Plaintiff brings a due process claim for unlawful

seizure of property against Sergeant Nathanial, Officer Nuzzi,

Palisades, Victoria Vandergrift, Ashlee Chavez, Willfredo Toro,

and John Doe 1. A debtor may have a due-process claim when

property “in which [he] enjoyed a lawful possessory interest [is

repossessed] by state action in violation of the constitution.”

Barrett, 189 F.3d at 301. Police officers may, of course, keep

the peace in connection with repossessions and respond

appropriately to reports of disturbance. But if a debt

collector wants their affirmative assistance in a repossession

effort, it needs to obtain a court order. See id. (“The

Constitution requires notice and a prior hearing before a state

can assist a secured creditor in the repossession of a debtor's

property.”) (emphasis added).

Given Plaintiff’s contention that he was up to date on

his car payments, the Court draws (at this stage) the favorable

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inference that Plaintiff had “a lawful possessory interest” in

the vehicle at the time of repossession. Still, there can be no

Section 1983 claim unless the alleged participation by police

officers rendered the dispossession a state action. In Barrett,

“the crucial question [was] whether the police officer was (1)

present simply to stand by in case there was a breach of the

peace, or (2) taking an active role that either affirmatively

assisted in the repossession over the debtor's objection or

intentionally intimidated the debtor so as to prevent him from

exercising his legal right to object to the repossession.” Id.

Based on Plaintiff’s allegations that the officers affirmatively

ordered him out of the vehicle as he was objecting to the

repossession, arrested him, and gave the keys to the vehicle to

Doe 1, this claim, too, survives the sua sponte review required

at this stage.

The Court recognizes that whether the officers have

qualified immunity should be resolved at the “earliest possible

stage in litigation.” Saucier v. Katz, 533 U.S. 194, 201

(2001). And the IFP statute does require a court to screen a

pro se complaint for claims seeking “monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B). However, the Court will await the public

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defendants’ answer or response to the complaint before

considering this issue.

2. False Arrest

Plaintiff’s false arrest claim against Officer Nuzzi

and Sergeant Nathaniel may proceed from this preliminary stage.

To plead a claim for false arrest, a plaintiff must show 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.” Jackson v. City of New York, 939 F.

Supp. 2d 235, 248 (E.D.N.Y. 2013). Confinement is privileged if

there was probable cause at the time of the arrest. See Jenkins

v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). Here,

Plaintiff alleges he was arrested for obstructing government

administration in the second degree. N.Y. Penal Law § 195.05

(“A person is guilty of obstructing governmental administration

when he intentionally obstructs, impairs or perverts the

administration of law . . . or prevents or attempts to prevent a

public servant from performing an official function, by means of

intimidation, physical force or interference, or by means of any

independently unlawful act.”). Plaintiff pleads that after he

refused to allow Palisades to repossess his vehicle without a

court order, police officers were called to the scene, ordered

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him out of his car, arrested him, and held him at the station

overnight. While many questions obviously remain outstanding on

this claim, it, too, may proceed past IFP review.

3. Excessive Force

Plaintiff’s excessive force claims against Sergeant

Reimbave, Sergeant Nathaniel, Officer Nuzzi, and Police Doe 1

may also proceed from this preliminary stage. For this cause of

action, a defendant is liable if “the force used exceeded the

force needed for the factual circumstances.” Graham v. City of

New York, 928 F. Supp. 2d 610, 618 (E.D.N.Y. 2013). Plaintiff

alleges that Officer Nuzzi “pushed [him] against the van,

[roughed him] up” and placed him in handcuffs that were “very

tight” and “cut[] into [his] skin.” Am. Compl. at 7-8.

Plaintiff also alleges that at the 105th Precinct, Sergeant

Reimbave, Officer Nuzzi, Sergeant Nathaniel, and Police Doe 1

“grabbed [him] out of the cell and held [him] down without his

consent.” Id. at 12. The excessive force claim may proceed

past IFP review.

4. Malicious Prosecution

Plaintiff’s malicious prosecution claim against

Sergeant Nathaniel and Officer Nuzzi, however, must be

dismissed. To plead malicious prosecution, a plaintiff must

allege: “(1) the initiation or continuation of a criminal

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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.” Manganiello v. City of New York, 612 F.3d

149, 161 (2d Cir. 2010). Plaintiff received an adjournment in

contemplation of dismissal, which is not a favorable termination

for purposes of a malicious prosecution claim. Green v.

Mattingly, 585 F.3d 97, 103 (2d Cir. 2009). Therefore,

Plaintiff’s malicious prosecution claim is dismissed with

prejudice.

5. Failure to Train and Municipal Liability

Plaintiff asserts failure to train and municipal

liability claims against Commissioner James Patrick O’Neill;

Deputy Inspector Neteis Gilbert; the 105th Precinct; the New

York City Police Department; the City of New York; and the

County of Queens. These claims are dismissed for the following

reasons.

First, the claims against Commissioner O’Neill and

Deputy Inspector Gilbert fail because, under Section 1983, a

plaintiff must plead the defendant’s personal involvement in the

alleged constitutional deprivation. Farid v. Ellen, 593 F.3d

233, 249 (2d Cir. 2010). Personal involvement can be

established through:

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(1) actual direct participation in the

constitutional violation, (2) failure to

remedy a wrong after being informed through a

report or appeal, (3) creation of a policy or

custom that sanctioned conduct amounting to a

constitutional violation, or allowing such a

policy or custom to continue, (4) grossly

negligent supervision of subordinates who

committed a violation, or (5) failure to act

on information indicating that

unconstitutional acts were occurring.

Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003).

Here, Plaintiff alleges no such acts or omissions by

Commissioner O’Neill or Deputy Inspector Gilbert personally. To

the extent Plaintiff names these defendants based simply on

their roles as supervisors, this fails because vicarious

liability is “inapplicable” to Section 1983 suits. Iqbal, 556

U.S. at 676 (“[A] plaintiff must plead that each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.”). Commissioner O’Neill

and Deputy Inspector Gilbert are dismissed without prejudice.

Second, Plaintiff cannot sue the 105th Precinct or the

New York City Police Department. Under Rule 17(b)(3) of the

Federal Rules of Civil Procedure, a municipal entity’s

“capacity” to be sued in federal court is generally determined

by the law of the state in which the district court is located.

Here, the relevant authority is the New York City Charter, which

provides that actions and proceedings to recover penalties for

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legal violations shall be brought against the City of New York

and not any agency thereof, except where otherwise provided by

law. See N.Y.C. Charter Ch. 17, § 396. It is well recognized

in this Circuit that agencies of New York City are not “suable”

entities, including in 1983 actions. See Jenkins v. City of New

York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Baily v. New

York City Police Dept., 910 F. Supp. 116, 117 (E.D.N.Y 1996).

The New York City Police Department is an agency of New York

City, and therefore it cannot be sued. The New York City Police

Department and the 105th Precinct are dismissed with prejudice.

Finally, Plaintiff’s claims against Queens County and

the City of New York must be dismissed. In order to sustain a

Section 1983 claim against a municipal defendant, a plaintiff

must show the existence of an officially adopted policy or

custom that caused injury and a direct causal connection between

that policy or custom and the deprivation of a constitutional

right. Monell v. Dep’t of Soc. Servs. of the City of New York,

436 U.S. 658, 692 (1978). The complaint must contain more than

conclusory allegations related to the existence of such policy

or custom. Plair v. City of New York, 789 F. Supp. 2d 459, 466

(S.D.N.Y. 2011). Therefore, Plaintiff’s unsupported statement

that the City of New York failed to train its employees is

insufficient to allege a violation pursuant to Monell. Neither

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is an allegation of a single incident sufficient, as Plaintiff

alleges here. “[I]solated acts of excessive force by non-

policymaking municipal employees are generally not sufficient to

demonstrate a municipal custom, policy, or usage that would

justify municipal liability.” Jones v. Town of East Haven, 691

F.3d 72, 80 (2d Cir. 2012). Queens County and the City of New

York are dismissed without prejudice.

IV. 18 U.S.C. §§ 241, 242

Plaintiff also seeks relief pursuant to criminal

statutes 18 U.S.C. §§ 241 and 242. Section 241 prohibits a

conspiracy to infringe on a person’s civil rights and Section

242 prohibits the deprivation of civil rights under color of

law. As stated in Judge Matsumoto’s prior Order, Dkt. No. 5 at

6, there is no private right of action under these criminal

statutes. Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009)

(“[C]laims based on the violation of federal criminal statutes,

such as 18 U.S.C. §§ 241-242, . . . are not cognizable, as

federal criminal statutes do not provide private causes of

action.”). Therefore, Plaintiff’s claims under 18 U.S.C. §§ 241

and 242 are dismissed with prejudice.

CONCLUSION

Accordingly, this action is dismissed in part for

failure to state a claim, pursuant to 28 U.S.C.

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§ 1915(e)(2)(B). The following claims are dismissed: TILA;

FCRA; Section 1983 claims for malicious prosecution, failure to

train, and municipal liability; and claims under 18 U.S.C.

§§ 241 and 242. The Court grants Plaintiff leave to file a

second amended complaint within 30 days from the date of this

Order should he be able to allege plausible claims under TILA.

The FDCPA, N.Y. U.C.C. § 9-609, and tortious

conversion claims shall proceed, as shall the due process, false

arrest, and excessive force claims under Section 1983. These

claims are asserted against some or all of the following

defendants: Palisades, Willfredo Toro, John Doe 1, Sergeant

Nathanial, Sergeant Reimbave, Officer Nuzzi, and Police Doe 1.

Plaintiff alleges no plausible facts whatsoever

regarding the liability of Michael Jordon, Victoria Vandergrift,

Ashlee Chavez, Queens National Auto, Offer Ben Moshe, John Does

2 to 10, or Police Does 2 to 10; therefore, these defendants are

dismissed without prejudice. The following defendants are also

dismissed without prejudice: former Commissioner James Patrick

O’Neill and his successor; Deputy Inspector Neteis Gilbert; the

City of New York; and the County of Queens. The 105th Precinct

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and the New York City Police Department are dismissed with

prejudice.

Plaintiff must identify “John Doe 1” – the tow-truck

driver – and provide the full name of this defendant and the

address at which this defendant can be served. Plaintiff is

directed to submit this information in writing to the Clerk of

Court within thirty days from entry of this Order.

Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir.

1997) (per curiam), the Court requests that the Corporation

Counsel of the City of New York ascertain the identity of the

“Police Doe 1” defendant of the 105th Precinct, against whom the

excessive force claim is alleged. Within forty-five days from

entry of this Order, Corporation Counsel shall provide the full

name of this defendant and the address at which this defendant

can be served.

Once the names of these defendants are provided,

Plaintiff’s complaint shall be deemed amended and the Court will

direct service of summonses on these defendants.

The Clerk of Court is directed to issue summonses to

the Palisades Funding Corp. and its employee Willfredo Toro, as

well as Sergeant Nathaniel, Sergeant Reimbave, and Officer

Gregory Nuzzi of the 105th Precinct of the New York City Police

Department. The United States Marshals Service is directed to

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serve the summonses and complaint upon these defendants without

prepayment of fees.5 The Clerk of Court is directed to serve a

courtesy copy of this Order upon the Corporation Counsel of the

City of New York, Special Federal Litigation Division, and upon

the pro se plaintiff and to note service on the docket.

The court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal from this order would not be taken in good faith

and therefore in forma pauperis status is denied for the purpose

of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45

(1962).

SO ORDERED.

/s/ Eric Komitee ________

Eric Komitee

United States District Judge

Dated: May 28, 2020

Brooklyn, New York

5 Administrative Order No. 2020-19 suspends service of process by the United

States Marshals Service during the current national coronavirus emergency.

Once service of process is reinstated, the summons, Amended Complaint, and

this Order shall be served.

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