Thomas v. Ortiz

7UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TEVON THOMAS, et al., :

:

Plaintiffs, :

: SHORT-FORM

-against- : MEMORANDUM & ORDER

: 14-cv-7513 (ENV) (VMS)

JOEBIAN ORTIZ, et al., :

:

Defendants. :

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HAROLD BROWNE, et al., : 16-cv-4224 (ENV) (VMS)

:

Plaintiffs, :

:

-against- :

:

JOEBIAN ORTIZ, et al., :

:

Defendants. :

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VITALIANO, D.J.

Jury selection in this matter was scheduled for March 30, 2020. In anticipation of trial,

the parties submitted various motions in limine. Due to the disturbance caused by the COVID-19

pandemic, the trial was adjourned without date. The motions are resolved in the manner and for

the reasons set forth below.

I. Plaintiffs’ Motions in Limine

Request Ruling

(A) Plaintiffs seek to preclude defendants (A) As defendants do not intend to introduce

from introducing evidence concerning evidence of plaintiffs’ financial status or job

plaintiffs’ financial status and employment history, unless plaintiffs open that door by

testifying about economic damages, plaintiffs’

history. Dkt. 146, Pls.’ Mem., at 9–10.1 motion is denied as moot. However,

defendants alert the Court to evidence relating

to certain plaintiffs’ employment that is

proffered as relevant to establish a

relationship between them and their activities

leading up to their arrest. Dkt. 151, Defs.’

Opp’n at 3. To the extent defendants intend

to offer such evidence, defendants will, not

later than two weeks prior to trial, specify the

evidence they intend to adduce for this

purpose and make a showing as to its

probative value.

(B) Plaintiffs concede that plaintiff Ravin (B) Defendants intend only to introduce

Cox’s 2011 conviction for Aggravated evidence of the nature of Cox’s and Thomas’s

Unlicensed Operation of a Motor Vehicle in convictions, Defs.’ Opp’n at 5–6, and,

the First Degree was a felony conviction that therefore, plaintiffs’ motion as to other felony

passes the standard of admissibility under or misdemeanor convictions is denied as

Rule 609(a)(1)(A), but they move to preclude moot.

defendants from impeaching Cox with it on A felony conviction of a witness in a

staleness grounds and in light of its civil case, it is widely understood, is

prejudicial effect. Pls.’ Mem. at 12. admissible, but subject, of course, to the

1 All citations to pages refer to the Electronic Case Filing System (“ECF”) pagination.

Similarly, although they acknowledge the balancing strictures of Rule 403. Fed. R.

2018 homicide conviction of Tevon Evid. 609(a)(1)(A). Admissibility under Rule

Thomas—whom they do not anticipate calling 403 depends on “(1) the impeachment value

as a witness—is admissible under Rule 609, of the prior crime, (2) the remoteness of the

they seek to bar defendants from calling him prior conviction, (3) the similarity between

as a witness, and impeaching him with his the past crime and the conduct at issue, and

conviction, under Rule 403. Id. at 12–13; 22– (4) the importance of the credibility of the

23. Finally, they move to preclude defendants witness.” Stephen v. Hanley, No. 03-cv-6226

from introducing plaintiffs’ misdemeanor (KAM) (LB), 2009 WL 1471180, at *4

convictions, and the felony convictions of (E.D.N.Y. May 21, 2009).

plaintiffs Gary Jeanty, David Alcindor, and Put plainly, plaintiffs have not shown,

Milton Sears, which are over ten years old and it is their burden to do so, that these

and which did not involve crimes of factors weigh in favor of granting their

dishonesty. Id. at 13–17. motion. As to Cox, his conviction, as a

felony, has at least some probative value for

veracity, see Jean-Laurent v. Hennessy, 840

F. Supp. 2d 529, 544 (E.D.N.Y. 2011), but the

crime was not one of dishonesty—a fact that

cuts against admission. Cf. United States v.

Brown, 606 F. Supp. 2d 306, 313 (E.D.N.Y.

2009) (illegal firearm possession involves

neither untruthfulness nor deception, which

counsels against admission). On the other

edge of the sword, though, because the

conduct at issue and Cox’s conviction have

little in common, the jury is less likely to be

confused or unduly prejudiced by its

introduction. Jean-Laurent, 840 F. Supp. 2d

at 544. Furthermore, as Cox is attempting to

convince the jury of his version of events on

the night of his arrest, the jury’s assessment

of his credibility is critical to its reaching a

verdict as to his claim. In other words, that

sort of impact on a jury is not unduly

prejudicial. Finally, applicable case precedent

strongly suggests that a conviction that is

close to, but not quite ten years in age, such as

Cox’s nine-year-old felony, is not

prejudicially stale. See Jones v. City of New

York, No. 98-cv-6493 (LBS), 2002 WL

207008 (S.D.N.Y. Feb. 11, 2002); see also

Hartman v. Snelders, No. 04-cv-1784, 2010

WL 11626508, at *10–11 (E.D.N.Y. Jan. 28,

2010) (analyzing convictions for which less

than ten years had elapsed as “recent”).

Because the evidentiary arguments advanced

by plaintiffs, at best, show that only two of

the factors weigh against admission, and, at

that, only somewhat, and counterpointed by

factors weighing strongly in favor of

admission, the Court cannot conclude the

probative value of the conviction is

“substantially outweighed” by any prejudicial

effect. Fed. R. Evid. 403 (emphasis added).

Even more compelling are defendants’

grounds to admit Thomas’s homicide

conviction. Concededly, a homicide

conviction is more prejudicial than Cox’s

motor vehicle conviction, and it does not

involve dishonesty. However, the recency of

Thomas’s conviction, only two-years-old, and

the fact that he is a plaintiff who will seek to

persuade the jury to credit his version of

events, weigh heavily in favor of admission.

See Jean-Laurent, 840 F. Supp. 2d at 544. In

light of these realities, to find his homicide

conviction is inadmissible in this case because

of its prejudicial effect would, for all intents

and purposes, be to hold that a homicide

conviction is never admissible under Rule

609. The Rule could have quite easily and

quite precisely been written to say exactly

that, but it was not. The Court declines to re-

write the Rule in this fashion. Since truly, the

only factor plaintiffs advance is the

prejudicial aspect of the jury’s assessment of

the testimony of a witness impeached by his

homicide conviction, the motion to bar such

impeachment is denied.

But, there is a caution flag. To

mitigate the prejudicial impact of such

evidence, defendants are cautioned not to

engage in any examination of Thomas that

might elicit testimony as to the underlying

facts of the conviction.

Lastly, that plaintiffs do not intend to

call Thomas as a witness has no bearing on

the impeachment value of his conviction

should he be called to testify by defendants.

Bluntly, whether plaintiffs want to shield

Thomas from the jury, he is a highly relevant

witness regarding his claims against

defendants, and defendants are well-within

their rights to call him in this case. See Fed.

R. Civ. P. 45(c)(1)(B)(i); see also Fed. R.

Evid. 607 & advisory committee’s note to

1972 Proposed Rules (abandoning rule

against impeaching one’s own witness).

Whether they decide to do so is merely a

matter of trial strategy, since the impeachment

of Thomas with his homicide conviction is

permissible regardless of who calls him. The

motion to bar defendants from calling

Thomas to testify and, if called as a witness,

to bar his impeachment with his 2018

homicide conviction, is denied.

(C) Plaintiffs seek to preclude defendants (C) In their motion, plaintiffs grasp, correctly,

from introducing plaintiffs’ criminal histories, that evidence that a plaintiff has been arrested

including Exhibits K–R, which are copies of and incarcerated, even for misdemeanors, and

plaintiffs’ “rap sheets,” arguing their even in the absence of conviction, is relevant

prejudicial effect is disproportionate to any on the question of claimed emotional

probative value as to damages. Pls.’ Mem. at damages in a lawsuit for wrongful

17–18. In the alternative, they argue that the incarceration.2 See Cicero v. City of New

2 As held in II(A), infra, plaintiffs’ fair trial and malicious prosecution claims cannot proceed, as

the prosecutions against them did not terminate favorably, and they seek to impugn the very

Court should bifurcate the liability and York, No. 11-cv-0360 (NGG), 2011 WL

damages phases of the trial. Id. at 19. 3099898, at *4 (E.D.N.Y. July 25, 2011).

Such claims may be challenged here since

defendants draw attention to portions of

certain plaintiffs’ deposition testimony in

which they contend their arrests and

subsequent detentions led them to fear small

spaces and police officers, or that they suffer

from flashbacks. Defs.’ Opp’n at 3.

Clearly, evidence that these plaintiffs

have been previously arrested or incarcerated

may inform the jury’s assessment of the

extent of emotional harm. See Wisdom v.

Undercover Police Officer #C0127, 879 F.

Supp. 2d 339, 342 (E.D.N.Y. 2012)

(admitting evidence of prior arrests, but not

the underlying facts, to aid the jury in its

damages finding); Phillips v. City of New

York, 871 F. Supp. 2d 200, 207 (E.D.N.Y.

2012) (evidence of prior arrests and

incarceration relevant to emotional damages).

Yet, the reasoning of such decisions

grounds supporting the charges against them.

must be parsed. The fact that a plaintiff

previously arrested or incarcerated is claiming

emotional damages on account of a wrongful

arrest is extremely relevant, while the reasons

for the previous arrest can be quite

prejudicial. See Ramos v. Cty. of Suffolk, 707

F. Supp. 2d 421, 424 (E.D.N.Y. 2010).

Accordingly, in light of the inherently

prejudicial nature of a previous conviction,

defendants shall be permitted, for these

purposes, to introduce evidence regarding

only the number of times each plaintiff was

arrested and the length of each period of

detention or incarceration in a jail cell. To

facilitate such evidence, a plaintiff’s rap sheet

may be used to refresh a witness’s

recollection but shall not be admitted. (Any

failures of recollection will be handled during

trial.) Furthermore, by mitigating any

prejudicial effect in this manner, bifurcation

will not be necessary.

Of course, should plaintiffs withdraw

their claim for emotional injuries, as they

have signaled, see Pls.’ Mem. at 19–21,

defendants may not introduce any evidence of

plaintiffs’ prior arrests or the period

incarceration for the purpose of controverting

damages.

(D) Plaintiffs seek to preclude defendants (D) As discussed in I(B), supra, defendants

from calling Tevon Thomas as a witness to may call Tevon Thomas as a witness, even if

elicit testimony as to his recent conviction for their primary motivation is to impeach the

homicide, arguing such a tactic would lead to credibility of the claim he makes in his

a distortion of Rule 609. Pls.’ Mem. at 22– complaint. See Patrick v. City of Detroit, 906

23. F.2d 1108, 1113, 30 Fed. R. Evid. Serv. 1252

(6th Cir. 1990) (affirming the right, under

Federal Rule of Evidence 607, to impeach an

adverse party after calling him as a witness).

Indeed, as further explained in I(B), supra,

defendants would be well within their right to

impeach Thomas with his homicide

conviction under Federal Rule of Evidence

609, which clearly permits such

impeachment, should he take the stand of his

own volition. That plaintiffs seek to insulate

Thomas from exposure to his homicide

conviction is uncompelling, and plaintiffs

offer no case law supporting their position.

The motion, therefore, is denied.

(E) Plaintiffs seek to preclude defendants (E) Since defendants concede they do not

from introducing plaintiffs’ prior lawsuits. seek to introduce evidence of plaintiffs’ prior

Pls.’ Mem. at 24–25. lawsuits, Defs.’ Opp’n at 2, the motion is

denied as moot.

(F) Plaintiffs seek to preclude defendants, on (F) The Court will not disturb the preclusion

the basis of a prior ruling, from introducing order entered as a sanction against defendants

defendants’ Exhibit JJ, which contains audio relating to apparent misconduct in the course

recordings of certain plaintiffs’ telephone of discovery. The motion, therefore, is

calls from Rikers Island during their granted. If, however, defendants represent at

incarceration, noting that Magistrate Judge trial that testimony offered by a witness

Vera M. Scanlon has already ordered that conflicts with the recordings in Exhibit JJ,

defendants are precluded from using the defendants will be permitted at that time to

recordings in their case-in-chief and for make an offer of proof to that effect. The

impeachment purposes. Pls.’ Mem. at 25–27. Court will then consider whether any

plausibly false statement, made under oath in

open court, merits reference to the United

States Attorney and/or disciplinary action. In

any event, at trial, all other tools of

impeachment will remain available with

respect to such testimony.

(G) Plaintiffs move to preclude defendants (G) Inescapably, the presence of marijuana at

from inquiring into plaintiffs’ use or the scene—both fresh and burned—plays a

familiarity with marijuana. Pls.’ Mem. at 27– central role in the events on the night of the

28. arrest. That no marijuana was recovered from

any plaintiff’s person, nor was any plaintiff

charged with actual marijuana possession,

does nothing to alter the reality of the

presence of marijuana at the scene. This is

not to say, however, that plaintiffs’ subjective

familiarity with marijuana could have

informed the arresting officers’ probable

cause determination at the time of arrest.

In this light, defendants are free, on

cross-examination, to question a testifying

plaintiff as to any such familiarity if, as

defendants predict, he denies, on direct

examination, smelling or observing any

marijuana on the premises. Such elicited

testimony, while possibly prejudicial, does

not rise to a level inadmissible under Rule

403.

To that extent, plaintiffs’ motion is

denied. Otherwise, defendants may not

inquire about any plaintiff’s familiarity with

marijuana.3

(H) Plaintiffs move to preclude defendants (H) Given that defendants do not intend to

from introducing any evidence suggesting offer such proof, see Defs.’ Opp’n at 10,

plaintiffs have any gang affiliation. Pls.’ plaintiffs’ motion is denied as moot.

Mem. at 28–30. Defendants do, however, intend to

introduce evidence that the house in question

was being used as a gang house to give

context to the reason for the raid and certain

precautions the officers took. See id.

Importantly, in the course of offering such

proof, defendants may not attempt to tie any

plaintiff to a gang or argue that the evidence

establishes their gang membership. Mere

presence at a gang location does not make the

person present a gang member.

(I) Plaintiffs move to preclude defendants (I) As defendants do not intend to introduce

from eliciting testimony about the defendants’ evidence or elicit testimony about defendants’

military service, community service, civic military service, community service, civic

service or commendations. Pls.’ Mem. at 30– service or commendations, Defs.’ Opp’n at 2,

31. plaintiffs’ motion is denied as moot.

3 However, if such testimony is elicited, plaintiffs may, at trial, propose, for the Court’s

consideration, a limiting instruction to mitigate any perceived risk that the jury could conflate

plaintiffs’ familiarity with marijuana with an objective, ex ante assessment of probable cause.

II. Defendants’ Pretrial Motion and Motion in Limine

Request Ruling

(A) Although included in their motions in (A) The dismissal of plaintiffs’ fair trial and

limine, defendants first move to dismiss malicious prosecution claims is mandated by

plaintiffs’ claims for malicious prosecution McDonough. As this Court recently held in

and denial of a right to fair trial in light of the the context of an adjournment in

Second Circuit’s holding in Lanning v. City of contemplation of dismissal (“ACD”):

Glens Falls, 908 F.3d 19 (2d Cir. 2018) and In light of McDonough . . . the

nature of a fair trial claim must

the Supreme Court’s holding in McDonough be scrutinized at its outset.

Undoubtedly, as the Supreme

v. Smith, 139 S. Ct. 2149, 204 L. Ed. 2d 506 Court recognized, certain

categories of fair trial claims

(2019).4 Dkt. 148, Defs.’ Mem., at 10–15. do not challenge probable

cause in a manner threatening

the validity of any conviction

or sentence. But criminal

defendants may no longer aim

their axes, by civil lawsuit, at

the trunk of ongoing criminal

proceedings, for such actions

risk collaterally felling them.

With this in mind, and with

recognition that, in the absence

of an ongoing prosecution, the

traditional reach of the Heck

[v. Humphrey] rule

[prohibiting collateral attack of

an outstanding criminal

judgment] does not squarely

implicate ACDs, McDonough,

still, by the force of its

reasoning, compels revisiting

the effect of an acceptance of

an ACD on one’s later ability

4 The Court, in its discretion, will consider defendants’ motion, which, ordinarily, would be

untimely.

to bring certain fabricated-

evidence fair trial claims.

Miller v. Terrillion, — F. Supp. 3d —, No.

16-cv-52 (ENV) (RLM), 2020 WL 549356, at

*6 (E.D.N.Y. Jan. 30, 2020) (internal citation

omitted). As a result, the Court held that a

plaintiff is barred from bringing a fair trial

claim “[that] targets the very evidence that

would have otherwise been shielded from

collateral attack,” and “the success of which

would necessarily undermine the validity of a

prosecution.” Id. at *6 (citing Lanning, 908

F.3d at 26). Here, plaintiffs’ criminal

prosecutions were dismissed on the Assistant

District Attorney’s motions, rather than upon

the acceptance of ACDs. Nevertheless,

plaintiffs attack the very foundation of the

prosecutions against them by alleging “it is

undisputed that the plaintiffs—other than

Nelson, Hippolyte, and Jeanty—were seized,

jailed, and prosecuted as a result of the

charges that flowed from [the allegedly

misleading information forwarded to

prosecutors].” Pls.’ Opp’n at 13. Because, as

discussed above, the prosecutions against

them were not terminated favorably, they

cannot now bring a fair trial claim based upon

allegedly fabricated evidence. Defendants’

motion, consequently, is granted.5

(B) Defendants move to preclude plaintiffs (B) Defendants’ motion is granted to the

from referring to defendants’ attorneys as city extent that plaintiffs may not refer to defense

attorneys. Defs.’ Mem. at 15–16. counsel as “City Attorneys.” However, to

maintain a level playing field, the jury will be

instructed once, at the beginning of trial, that

“Defendants are represented by attorneys

from the Office of the New York City

Corporation Counsel because they are

members of the New York City Police

Department, which is an agency of the City of

New York.” See Jean-Laurent, 840 F. Supp.

5 In Gondola v. City of New York, No. 16-cv-369 (AMD) (SJB), 2020 WL 1433874, at *3 n.5, *4

(E.D.N.Y. Mar. 24, 2020), the district court cited favorably to the reasoning in Miller to discuss

fair trial claims in the identical posture as here. See also Daniels v. Taylor, No. 18-cv-3717

(RA), 2020 WL 1165836, at *5–6 (S.D.N.Y. Mar. 11, 2020) (holding that, in light of

McDonough, an ACD bars fair trial claims based on fabrication of evidence). The Miller

reasoning, however, was rejected in Simon v. City of New York, No. 16-cv-1017 (NGG) (RML),

2020 WL 1323114, at *5 (E.D.N.Y. Mar. 19, 2020), with the district court criticizing the

reasoning as eliminating the distinction between fair trial and malicious prosecution claims.

Respectfully, the issue is not whether Miller’s reasoning erodes or even eliminates the distinction

between such claims, it is whether McDonough compels a plaintiff pleading a fair trial claim to

show that the prosecution ended in his favor on the question of guilt or innocence. McDonough

does compel such pleading, and plaintiffs here fail to do so.

2d at 550; Nnodimele v. Derienzo, No. 13-cv-

3461 (ARR) (RLM), 2016 WL 3561708, at

*3 (E.D.N.Y. June 27, 2016).

(C) Defendants move to preclude plaintiffs (C) Defendants’ motion is granted to the

from offering into evidence or suggesting to extent plaintiffs will not be permitted to refer

the jury that the city may indemnify to or suggest the possibility that the City will

defendants. Defs.’ Mem. at 16–18. indemnify defendants. If, however, any

defendant opens the door by offering

argument or evidence of his limited financial

capacity, plaintiffs may move for

reconsideration of this ruling. See Anderson

v. Aparicio, 25 F. Supp. 3d 303, 314

(E.D.N.Y. 2014), aff’d and remanded sub

nom. Anderson v. Cty. of Suffolk, 621 F.

App’x 54 (2d Cir. 2015); cf. Provost v. City of

Newburgh, 262 F.3d 146, 163–64 (2d Cir.

2001).

(D) Defendants move to preclude plaintiffs (D) The motion is denied, but plaintiffs will

from requesting a specific dollar amount from be allowed, and at that, solely in the context

the jury. Defs.’ Mem. at 18–19. of closing argument, to make a statement as to

what liability the evidence has established,

what damages it has caused and to submit a

specific dollar amount they contend is

reasonable compensation for their loss. The

Court will instruct the jury that statements by

lawyers in closing are nothing more than

argument. See Edwards v. City of New York,

No. 08-cv-2199 (TLM), 2011 WL 2748665,

at *2 (E.D.N.Y. July 13, 2011); see also

Lightfoot v. Union Carbide Corp., 110 F.3d

898, 912 (2d Cir. 1997).

(E) Defendants move to preclude plaintiffs (E) Defendants are correct that the NYPD

from mentioning or offering into evidence the rules and procedures set forth in the patrol

NYPD police student guide, NYPD patrol guide do not establish constitutional

guide, or other police department guidelines, standards, and violations of them cannot form

trainings, and procedures, arguing any alleged the basis for a finding of liability. See Brown

violations of such guidelines are either v. City of New York, 798 F.3d 94, 106 (2d Cir.

irrelevant or inadmissible under Rule 403. 2015); Cerbelli v. City of New York, No. 99-

Defs.’ Mem. at 19–20. cv-6846 (ARR) (RML), 2008 WL 4449634,

at *10 (E.D.N.Y. Oct. 1, 2008). Plaintiffs

acknowledge this reality, but they argue that

any such guidelines are helpful to understand

the course of conduct of a reasonable officer

under the circumstances. Pls.’ Opp’n at 15–

17. They also argue they intend to use such

evidence to impeach a testifying defendant as

to whether his conduct “would comport or

conflict with NYPD rules and regulations.”

Id. at 17.

The Court agrees with plaintiffs that

evidence of “sound professional standards

governing a defendant’s actions can be

relevant and helpful.” Nnodimele v.

Derienzo, No. 13-cv-3461 (ARR) (RLM),

2016 WL 3561708, at *14 (E.D.N.Y. June 27,

2016) (quoting Jimenez v. City of Chicago,

732 F.3d 710, 721 (7th Cir. 2013)). As a

result, plaintiffs may use the NYPD procedure

or patrol guidelines to impeach defendants,

should they testify, but only to the extent that

any act or omission that is the subject of a

testifying defendant’s account is contrary to

NYPD rules, practices or procedures. The

motion is otherwise granted.

(F) Defendants move to preclude plaintiffs (F) Plaintiffs advise that they do not intend to

from inquiring into the disciplinary history of introduce evidence that any of the defendants

defendants or any non-party officer, or any engaged in other, similar misconduct other

lawsuits against them. Defs.’ Mem. at 21–24. than conduct that speaks directly to veracity.

See Pls.’ Opp’n at 17–18. Defendants’

motion, therefore, is denied as moot, but may

be renewed at trial should plaintiffs seek to

proffer any prior conduct of a defendant-

witness, even should plaintiffs claim the

conduct speaks only to veracity and

defendants have a good-faith basis to support

an argument to the contrary.

(G) Defendants seek to preclude plaintiffs (G) Plaintiffs do not intend to introduce

from referencing allegations of misconduct evidence about unrelated events concerning

against other police officials or events in the other police departments or officers. See Pls.’

news, or using inflammatory terms to describe Opp’n at 18–19. Accordingly, to that extent,

police activity. They further seek to bar the motion is denied as moot. With respect to

plaintiffs from using terminology such as defense concerns about the use of largely

“testilying” and “blue wall of silence” as inflammatory statements by counsel,

highly prejudicial and inflammatory. Defs.’ including the terms referenced in the motion,

Mem. at 25–26. such inflammatory language will not be used

by either side. Obviously, any argument

about credibility that is not inflammatory and

is supported by the record is fair game. To

that extent, the motion is granted.

(H) Defendants seek to preclude plaintiffs (H) Based on representations by plaintiffs that

from introducing evidence about dismissed they do not intend to offer evidence as to prior

claims or settlement, plaintiffs’ Proposed settled claims, see Pls.’ Opp’n at 19–20, to

Exhibit 22 (an intake form related to all that extent the motion is denied as moot. As

arrestees, including those who have settled), for the exhibits, because plaintiffs intend to

and plaintiffs’ Proposed Exhibit 38 (a form in redact both proposed exhibits to cure any

which the District Attorney declined to issues relating to non-parties, see Pls’. Opp’n

prosecute proposed witness and former at 19–20, decision on their admissibility as

plaintiff Dwayne Jones). Defs.’ Mem. at 26– redacted is reserved until their proffer.

27.

(I) Defendants move to reserve their rights to (I)Denied. The time to file in limine motions

file supplemental motions in limine. Defs.’ has long come and gone. To the extent that

Mem. at 27. any party believes that a matter requires

urgent consideration, they may file a pre-

motion letter seeking the Court’s permission

to file such a motion.

So Ordered.

Dated: Brooklyn, New York

May 1, 2020

/s/ Eric N. Vitaliano

ERIC N. VITALIANO

United States District Judge