# Jackson v. Nassau County

> District Court, E.D. New York · July 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10306556

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306556

## How later opinions describe it (automated extraction)

- finding insufficient allegation of conspiracy despite plaintiff’s specific claims of conspiracy to alter tapes and create illegal search warrants, where there was no basis for the assertion that defendants actually conspired together to bring about these actions

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JOSEPH JACKSON,

Plaintiff,
MEMORANDUM & ORDER
-against- 18-CV-3007(JS)(AKT)

NASSAU COUNTY; THE INCORPORATED
VILLAGE OF FREEPORT; DETECTIVE
ROBERT DEMPSEY; DETECTIVE GARY
ABBONDANDELO; DETECTIVE JOHN M.
HOLLAND; DETECTIVE MICHAEL HERTS;
DETECTIVE MARTIN ALGER; POLICE
OFFICER ROBERT MELENDEZ; DETECTIVE
WALTER SWENSON; DETECTIVE ANTHONY
KOSIER; DETECTIVE SERGEANT DAN
SEVERIN; DORA MULLEN, AS
ADMINISTRATOR OF THE ESTATE OF JERL
MULLEN; JANE DOE, AS ADMINISTRATOR
OF THE ESTATE OF ARTHUR ZIMMER; and
JOHN and JANE DOE 1 through 20,

Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff: Gabriel Paul Harvis, Esq.
Baree N. Fett, Esq.
Elefterakis Elefterakis & Panek
80 Pine Street, 38th floor
New York, New York 10005

For Nassau
County Defendants: Peter A. Meisels, Esq.
Janine A. Mastellone, Esq.
John Martin Flannery, Esq.
Lalit Kumar Loomba, Esq.
Allison Michelle Holubis, Esq.
Wilson Elser Moskowitz Edelman & Dicker
1133 Westchester Avenue
White Plains, New York 10604

For Village Keith Michael Corbett, Esq.
of Freeport Stephanie L. Tanzi, Esq.
Defendants: Harris Beach PLLC
100 Wall Street, 23rd Floor
New York, New York 10005
Plaintiff Joseph Jackson (“Plaintiff”) seeks damages
from the County of Nassau (the “County”), nine County detectives,
the Incorporated Village of Freeport (the “Village”), one Village

police officer, and one Village detective (collectively,
“Defendants”) for his alleged wrongful conviction and imprisonment
for murder. In 2018, after more than twenty years in prison, the
Nassau County Conviction Integrity Unit (“CIU”) filed a motion to
vacate Plaintiff’s sentence, which motion the Nassau County
Supreme Court granted. Plaintiff subsequently filed this action,
alleging (1) nine federal causes of action, under 42 U.S.C. § 1983
(“Section 1983”), for malicious prosecution, denial of a fair
trial, Brady violations, coercion, supervisory liability, Monell
liability, conspiracy, failure to intervene, and prolonged pre-
trial detention against various individual Defendants; and
(2) three state law causes of action for malicious prosecution,

false imprisonment, and intentional and/or negligent infliction of
emotional distress against the County and Village.
Before this Court are the County Defendants’ partial
motion to dismiss (County Defs. Mot., ECF No. 288; County Defs.
Br., ECF No. 290; County Defs. Reply, ECF No. 308), and the Village
Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint
(Village Defs. Mot., ECF No. 291; Village Defs. Br., ECF No. 293;
Village Defs. Reply, ECF No. 306). Plaintiff filed an opposition
to both motions. (Pl. Opp. to Village Defs., ECF No. 300; Pl.
Opp. to County Defs., ECF No. 301.) For the reasons that follow,
the County Defendants’ motion is GRANTED in part and DENIED in
part; and the Villages Defendants’ motion is GRANTED.

BACKGROUND
I. Factual History1
A. The Parties
At all relevant times, Plaintiff has been a resident of
Nassau County, New York. (Second Amended Complaint (“SAC”), ECF
No. 278, ¶ 12.) In addition to the County, Plaintiff names as
defendants the following individuals who served as detectives at
the County during the relevant period: Robert Dempsey (“Dempsey”);
Gary Abbondandelo (“Abbondandelo”); John M. Holland (“Holland”);
Michael Herts (“Herts”); Martin Alger (“Alger”); Walter Swenson
(“Swenson”); Anthony Kosier (“Kosier”); Dan Severin (“Severin”),
and Jerl Mullen (“Mullen”). (Id. ¶ 16.) Defendants Dempsey,

Abbondandelo, Holland, Herts, Alger, Swenson, Kosier, and Severin
are sued in their individual capacity, while Mullen, who is
deceased, is being sued through the administrator of his estate,
Dora Mullen (the “Mullen Estate”). (Id.) The Court collectively
refers to these individuals as the “Individual County Defendants,”
and together with the County, the “County Defendants.”

1 For purposes of this Memorandum and Order, all facts are drawn
In addition to the Village, Plaintiff names as
defendants Robert Melendez (“Melendez”), a Village police officer
during the relevant period, and Arthur Zimmer (“Zimmer”), a Village

detective during the relevant period. (Id. ¶ 15.) Defendant
Melendez is being sued in his individual capacity, while Zimmer,
who is deceased, is being sued through the unidentified
administrator of his estate (the “Zimmer Estate”). (Id.) The
Court collectively refers to these individuals as the “Individual
Village Defendants,” and together with the Village, the “Village
Defendants.”2
B. The Murder of Steven Jason
This case arises from the murder of Steven Jason on March
20, 1994. The following allegations are taken from Plaintiff’s
SAC:
In the early hours of March 20, 1994, Glenn Montes

(“Montes”) was driving his friend Maurice Larrea (“Larrea”), then
an off-duty New York Police Department (“NYPD”) officer, home from
a bachelor party they had attended that evening. (SAC ¶¶ 21, 23.)
At approximately 2:00 a.m., while heading east on Sunrise Highway,
Montes observed two black men chasing Steven Jason in a parking
lot adjacent to a Blimpie’s restaurant on the corner of Sunrise
Highway and Guy Lombardo Avenue in Freeport, New York. (Id. ¶
21.) As Montes would later tell Individual County Defendant
Holland, Jason reached the curb of Sunrise Highway and dove to the
ground, at which point Montes saw one of the men shoot him (the
“Montes Statement”). (Id. ¶¶ 22, 42.)

Montes drove to a nearby payphone and Larrea stepped out
to call 911. (Id. ¶ 25.) After the call, Larrea encountered an
individual whom he believed to be the shooter running toward him
on the sidewalk of Sunrise Highway. (Id. ¶ 27.) Larrea drew his
firearm and ordered the suspected shooter to stop, calling out to
Montes, “that’s him, that’s the guy.” (Id. ¶¶ 28-29.) Montes
later stated that he is “100% sure” that the man Larrea stopped
was the shooter, whom he described as having a “dark brown face”
with “close cut dark short hair” and standing approximately 5’9”
to 5’10”. (Id. ¶¶ 30, 32.)
The shooter dashed across Sunrise Highway and headed
north, with Larrea and Montes, still in his car, in pursuit. (Id.

¶ 33.) As they pursued the shooter, Larrea encountered Individual
Village Defendant Melendez, whom Larrea knew from growing up in
Freeport. (Id. ¶ 34.) The trio canvassed the area but could not
locate the shooter. (Id. ¶ 35.) Montes and Larrea returned to
the crime scene before proceeding to the Village Police Station,
where they remained until after 5:00 a.m. (Id. ¶ 36.)
At least four other individuals were in the vicinity of
the shooting: Skwanitra Witherspoon (“Witherspoon”), Elisa Valdez
(“Valdez”) and her boyfriend, and Peddie Baldwin (“Baldwin”).
First, Witherspoon was “in the vicinity of the shooting” and
provided an account of the incident to Individual County Defendants
Abbondandelo, Dempsey, and Mullen. (Id. ¶¶ 45-47.) She also

identified Plaintiff as the shooter. (See id. ¶¶ 102, 134.)
Plaintiff alleges that Abbondandelo, Dempsey, and Mullen
“corrupted” the Witherspoon account “to suggest that Witherspoon
had been the sole eyewitness” of the shooting. (Id. ¶¶ 45-47.)
Second, Valdez reported to Individual County Defendant Swenson
that “she and her boyfriend had heard shots fired and seen an
automobile in pursuit of a male suspect heading Northbound” the
night of the shooting (the “Valdez Statement”). (Id. ¶ 48.) Last,
Baldwin provided a recorded statement to Village Defendant Zimmer
(the “Zimmer-Baldwin Interview”). (Id. ¶ 50.) Plaintiff alleges
Baldwin was a “potential eyewitness to the homicide” who provided
“several leads that support [P]laintiff’s innocence” and described

the perpetrator as a 5’8” Puerto Rican. (Id. ¶ 51.)
C. The Investigation
As noted, Larrea “was acquainted with more than a half
dozen of the Village officers who responded to the Steven Jason
homicide.” (Id. ¶ 37.) While at the station, Larrea apparently
informed “multiple officers,” including Individual Village
Defendant Melendez and Individual County Defendants Severin and
Herts, who took Larrea’s statement that night (the “Larrea
Statement”), that he was intoxicated that evening; in a call to
his NYPD supervisors, however, Larrea stated that he was sober
when he drew his weapon. (Id. ¶¶ 38, 40.) The effort to cover up
Larrea’s intoxication and subsequent misrepresentation to his NYPD

supervisors is the driving force behind the SAC’s allegations of
wide-ranging police misconduct. Because “it would have been
catastrophic for the budding law enforcement career of their
friend, off-duty Officer Larrea, if the NYPD was [sic] to learn
that Larrea had drawn his firearm while intoxicated and then lied
about it to commanding officers” (id. ¶ 41), Plaintiff claims that
Defendants (1) concealed evidence that might have revealed
Larrea’s intoxication and (2) corrupted the statements of
Witherspoon and Peddie Jenkins (“Jenkins”), Plaintiff’s cousin, to
facilitate the development of a theory of the crime that was at
odds with the accounts provided by Montes, Larrea and Valdez.
Plaintiff alleges four categories of concealed evidence.

First, Plaintiff alleges Individual County Defendants Herts and
Severin “altered the official narrative of the crime to omit any
reference to Montes, Larrea or the 911 call.” (Id. ¶ 43.) In
support of this allegation, Plaintiff points to the official
“Morning Report,” prepared by Severin, Herts, and other
unidentified individuals the morning of the shooting, which made
no mention of the Montes and Larrea Statements. (Id. ¶ 44.)
Second, Plaintiff alleges Individual County Defendants
Abbondandelo, Dempsey, and Mullen corrupted the account of
Witherspoon “to suggest that Witherspoon had been the sole
eyewitness and had identified plaintiff as the perpetrator.” (Id.
¶ 45.) Third, Plaintiff alleges Individual County Defendant

Swenson “concealed the existence of Ms. Valdez” and her boyfriend,
whose account was consistent with the accounts provided by Montes
and Larrea. (Id. ¶ 48-49.) Last, Plaintiff alleges the Zimmer-
Baldwin Interview recording, dated June 6, 1994, was suppressed
and concealed. (Id. ¶ 50.) According to Plaintiff, Baldwin
described the perpetrator as a 5’8” Puerto Rican, but at the time
of the shooting, Plaintiff was a six-foot tall, light-skinned
African American with dreadlocks. (Id. ¶ 53.)
Relatedly, Plaintiff alleges that Alger, Abbondandelo,
Mullen, Herts, Dempsey, and Swenson attempted to persuade Richard
“Woody” Miller, “a barber,” and brothers Tyrone and Roy Isaac to
falsely implicate Plaintiff as the murderer but, realizing their

testimony exonerated Plaintiff, suppressed it. (Id. ¶¶ 64-65.)
The SAC does not provide any background on these individuals, such
as their connection to the shooting, let alone describe their
allegedly exculpatory statements.
Plaintiff further alleges Individual County Defendants
Mullen, Abbondandelo, Dempsey, and Alger “corruptly coordinated
the accounts of Peddie Jenkins and Skwanitra Witherspoon to
manufacture the identification of [Plaintiff] as the alleged
perpetrator.” (Id. ¶ 60.) He claims that, in or about October
1994, Peddie Jenkins, who is approximately 5’8” with darker skin,
was reported to police after he was overheard bragging that he had
been involved in the murder of Steven Jason. (Id. ¶ 56.) Jenkins

was arrested and provided a statement to Dempsey, Mullen, and
Abbondandelo on November 15, 1994. (Id. ¶ 57.) In his first
statement, Jenkins admitted that he “personally facilitated” the
murder and fled northbound on foot after the shooting, consistent
with the shooter’s direction reported by Montes, Larrea, and
Valdez. (Id. ¶¶ 58-59.) Rather than consult Montes and Larrea,
however, Plaintiff alleges that on November 18, 1994, Dempsey,
Mullen, Abbondandelo, and Alger “caused Peddie Jenkins to prepare
a second” statement that provided a wholly different account. (Id.
¶¶ 60-62.) In his second statement, Jenkins included the
allegation that he observed Plaintiff commit the murder; in
exchange for including this allegation, Jenkins received a

favorable sentence in a pending criminal case. (Id. ¶ 63.)
D. Plaintiff’s Interrogation and Conviction
On December 17, 1994, Plaintiff was arrested and brought
to the Nassau County Homicide squad for interrogation by Dempsey,
Abbondandelo, Kosier, and Mullen. (Id. ¶ 66.) Plaintiff alleges
that “those defendants knew that [P]laintiff was represented by
counsel,” but nevertheless acted to deny Plaintiff his right to
counsel. (Id. ¶ 67.) Moreover, Plaintiff claims Individual County
Defendant Severin “provided false information to [Plaintiff’s]
relatives while he was in custody to prevent them from learning
his whereabouts and obtaining counsel for him.” (Id. ¶ 68.)
During his interrogation, which Plaintiff avers lasted

“thirty-nine hours,” Plaintiff alleges Dempsey, Mullen, and
Abbondandelo beat, threatened, and lied3 to Plaintiff to coerce
him to sign a false confession written by Dempsey. (Id. ¶ 69.)
He was forced to spend “several hours in a frigid interrogation
room while stripped to his underwear.” (Id. ¶ 70.) According to
Plaintiff, the allegedly false confession was contradicted by the
information provided by Larrea, Montes, Valdez, and “the polygraph
results of Takita Dorsey who, according to the false confession,
was a key player in the murder conspiracy.” (Id. ¶¶ 71-74.)
Plaintiff provides no further information regarding Dorsey’s
involvement in the shooting or the polygraph results.
Following a jury trial in Nassau County, on December 9,

1996, Plaintiff was convicted of second-degree murder;
intimidating a victim or witness in the first degree; and hindering
prosecution in the second degree. (Id. ¶ 105.) Plaintiff was
sentenced to twenty-five years to life on the murder count and to
lesser sentences on the other charges. (Id. ¶ 106.) In connection
with his trial, Plaintiff alleges that Defendants failed to
disclose to him or prosecutors: the Montes and Larrea Statements;

3 The SAC alleges Kosier lied to Plaintiff but does not allege he
evidence of Larrea’s 911 call; the Valdez Statement; the recorded
Baldwin-Zimmer Interview; and that Defendants had coerced
Plaintiff’s statement, caused his misidentification by

Witherspoon, and fabricated inculpatory evidence from Jenkins.
(Id. ¶ 102.)
E. Plaintiff is Exonerated
In 2017, at Plaintiff’s request, the Nassau County CIU
investigated Plaintiff’s case and confirmed that the Montes and
Larrea Statements had been suppressed but had been maintained in
the files of both the Village and County police departments. (Id.
¶ 107.) As a result, the CIU moved to vacate Plaintiff’s
conviction, and on February 16, 2018, the Nassau County Supreme
Court vacated the conviction pursuant to New York Penal Code
§ 441.10(1)(h) and dismissed the indictment. (Id. ¶ 109-11; Mot.
Vacate Hr’g, Loomba Decl., Ex. F, ECF No. 289-6.) At the time of

his release, Plaintiff had served twenty-three years and two months
in custody. (SAC ¶ 112.)
F. Broader Allegations of Defendants’ Misconduct
The SAC includes allegations of prior similar misconduct
by certain Individual County Defendants. First, Plaintiff alleges
the County failed to investigate or discipline Individual County
Defendant Dempsey for past instances of coercive interrogation
tactics and evidence fabrication. (Id. ¶¶ 76-88.) Plaintiff also
claims the County and Village Defendants were aware of, but
ignored, unconstitutional customs, policies and practices,
including “failing to conduct reasonable criminal investigations,
conducting unconstitutional interrogations, fabricating evidence

including confessions and evidence supporting probable cause,
committing perjury, failing to investigate alibi evidence,
coercing confessions, failing to disclose exculpatory evidence and
covering up this unconstitutional misconduct.” (Id. ¶ 116.)
Plaintiff further alleges Defendants and the individual
supervisors in this case failed to adequately screen, train, or
supervise subordinates. (Id. ¶¶ 117-18.)
II. Procedural History
Plaintiff initiated this action on May 22, 2018, against
the County, Village, and forty-two individual defendants.
(Compl., ECF No. 1.) At a January 16, 2019 pre-motion conference,
this Court directed the parties to meet and confer regarding

limiting the number of claims and defendants in the action. (See
Min. Entry, ECF No. 159.) Consistent with the Court’s instruction,
Plaintiff filed an amended complaint on March 8, 2019 (see ECF No.
162), and the parties fully briefed Defendants’ respective motions
to dismiss.
On November 21, 2019, and again on February 25, 2020,
Plaintiff filed a motion seeking leave to file a second amended
complaint, which Defendants opposed. The Court granted
Plaintiff’s motion and directed the parties to discuss a briefing
schedule on any renewed motions to dismiss the SAC at a March 6,
2020 status conference before Magistrate Judge Tomlinson. (Feb.
26, 2020 Elec. Order.) Following the status conference, which

stayed all party depositions pending resolution of Defendants’
anticipated motions to dismiss, Plaintiff filed his SAC. (See
SAC, ECF No. 278.)
The SAC alleges twelve causes of action: (1) malicious
prosecution as against Abbondandelo, Dempsey, Mullen, and Severin
(Claim 1); (2) fabrication of evidence / denial of a fair trial as
against Abbondandelo, Dempsey, Mullen and Severin, Alger, and
Kosier (Claim 2); (3) coercion as against Abbondandelo, Dempsey,
Mullen, Kosier (Claim 3); (4) supervisory liability as against
Severin and Doe Defendants #1-20 (Claim 4); (5) Monell liability
as against the County and Village (Claim 5); (6) malicious
prosecution in violation of New York law as against the County and

Village (Claim 6); (7) false imprisonment in violation of New York
law as against the County and Village (Claim 7); (8) intentional
or negligent infliction of emotional distress as against the County
and Village (Claim 8); (9) conspiracy as against the Individual
County and Individual Village Defendants (Claim 9); (10) evidence
suppression, Brady violations, spoliation and denial of access to
courts as against the Individual County and Individual Village
Defendants (Claim 10); (11) unlawful pre-trial detention as
against the Individual County and Individual Village Defendants
(Claim 11); and (12) failure to intervene as against the Individual
County and Individual Village Defendants (Claim 12).
The County Defendants filed a partial motion to dismiss

the SAC, specifically moving to dismiss: (1) the malicious
prosecution claims arising under Section 1983 and New York law;
(2) the fabrication of evidence claim as against Severin and Alger;
(3) the coercion claim as against Kosier; (4) the supervisory
liability claim; (5) the Monell liability claim; (6) the false
imprisonment claim; (7) the intentional or negligent infliction of
emotional distress claims; (8) the evidence suppression claim;
(9) the unlawful pre-trial detention claim; (10) the failure to
intervene claim; and (11) all claims against the Mullen Estate.
Plaintiff opposes that motion. The Village Defendants filed a
motion to dismiss all claims asserted against them, which Plaintiff
opposes.

DISCUSSION
I. Legal Standard
To withstand a motion to dismiss, a complaint must
contain factual allegations that “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible on its face “when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). This plausibility standard
is not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id. (internal

quotation marks and citation omitted). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (cleaned up).
Moreover, the Court is “not required to credit conclusory
allegations or legal conclusions couched as factual allegations.”
Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019)
(quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)). At
this stage, the Court’s role is “not to weigh the evidence that
might be presented at trial but merely to determine whether the

complaint itself is legally sufficient.” Bertuglia v. City of New
York, 839 F. Supp. 2d 703, 713 (S.D.N.Y. 2012) (quoting Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985)).
II. Analysis
A. Consideration of Plaintiff’s and County Defendant’s
Exhibits

The County Defendants ask the Court to dismiss
Plaintiff’s SAC under Rule 8(a) or, in the alternative and pursuant
to Rule 10(c) and/or Rule 12(f), strike certain exhibits Plaintiff
appended to his SAC. The ground for the County Defendant’s request
is paragraph 20 of the SAC, which lists fifty-six exhibits
Plaintiff appended to his SAC. According to Plaintiff, these
exhibits were filed in connection with his pending claim for unjust

conviction in the New York State Court of Claims. (Pl. Opp. to
County Defs. at 8.) Included in the exhibits are dozens of sworn
statements and records made in connection with the underlying
investigation into the death of Steven Jason, depositions of Montes
and Larrea from February 2020, as well as “news articles” and
filings in unrelated actions, among other documents.
Relatedly, in an apparent effort to counter Plaintiff’s
factual allegations, the County Defendants filed a declaration in
support of their motion that attaches eighteen exhibits, -i.-e-.-,
(1) a certificate of conviction of Plaintiff’s narcotics charge
related to his sale of cocaine on or about August 9, 1993 (“Ex.
A”); (2) the Village Incident Report (“Ex. B”); (3) Plaintiff’s

FOIL request to the Nassau County District Attorney’s Office, dated
June 25 2007 (“Ex. C”); (4) a notice of motion and affirmation
filed by Plaintiff’s attorney in support of his motion to vacate
his conviction (“Ex. D”); (5) a notice of motion filed by the
Nassau County District Attorney’s Office to vacate Plaintiff’s
conviction (“Ex. E”); (6) the transcript of proceedings before the
Nassau County Supreme Court on February 16, 2018 (“Ex. F”);
(7) Plaintiff’s SAC (“Ex. G”); (8) the Montes Statement (“Ex. H”);
(9) the four statements Witherspoon provided investigators (“Ex.
I”); (10) the March 20, 1994, statement of Martha Campbell provided
to investigators, which was referenced in Plaintiff’s amended
complaint but omitted from the SAC (“Ex. J”); (11) the “relevant”

pages from Larrea’s February 6, 2020 deposition (“Ex. K”); (12) the
Larrea Statement (“Ex. L”); (13) the “relevant” pages from Montes’
February 6, 2020 deposition (“Ex. M”); (14) a note reflecting a
conversation between Swenson and Valdez (“Ex. N”); (15) the
“relevant” pages from Witherspoon’s testimony provided in
Plaintiff’s underlying criminal trial (“Ex. O”); (16) the final
account of the Mullen Estate received from the Estates Division of
the Wake County Superior Court in North Carolina (“Ex. P.”);
(17) the Affidavit of Publisher and Notice to Creditors for the
Mullen Estate, published in The Wake Weekly (“Ex. Q”); and (18) the
“relevant” pages from the testimony Abbondandelo provided at the
suppression hearing held in Plaintiff’s underlying criminal case
(“Ex. R”). (See generally, Loomba Decl., ECF No. 289.4) The

County Defendants ask the Court to take judicial notice of these
documents or, for certain documents, contend that they are
referenced in and integral to the Amended Complaint or SAC.
Accordingly, the Court first addresses the scope of
materials it is permitted to consider in connection with
Defendants’ motions to dismiss.

4 The attached exhibits are found at ECF Nos. 289-1 through 289-
24, respectively. Hereafter, the Court will simply cite to the
1. Applicable Law
The Court begins with the Federal Rules of Civil
Procedure (the “Rules”). Rule 8(a) requires “a short and plain

statement of the claim showing that the pleader is entitled to
relief.” Rule 10(c) elaborates that any “written instrument”
attached as an exhibit to a complaint is also part of the
complaint. Last, Rule 12(f) empowers the Court to strike from a
complaint “any redundant, immaterial, impertinent, or scandalous
matter.”
The Second Circuit has provided district courts with
guidance as to the universe of documents they should consider when
resolving a motion to dismiss. At this stage, a court’s task “is
to assess the legal feasibility of the complaint; it is not to
assess the weight of the evidence that might be offered on either
side.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020).

“The purpose of Rule 12(b)(6) is to test, in a streamlined fashion,
the formal sufficiency of the plaintiff’s statement of a claim for
relief without resolving a contest regarding its substantive
merits. The Rule thus assesses the legal feasibility of the
complaint, but does not weigh the evidence that might be offered
to support it.” Global Network Commc’ns, Inc. v. City of New York,
458 F.3d 150, 155 (2d Cir. 2006) (emphasis in original). As Global
Network explained, a motion for summary judgment, rather than a
motion to dismiss, “is the proper procedural device to consider
matters outside the pleadings, such as facts unearthed in
discovery, depositions, affidavits, statements, and any other
relevant form of evidence.” Id. To the extent matters outside

the pleadings are considered by the court, the proper course is to
convert the motion to one for summary judgment under Rule 12(d).
FED. R. CIV. P. 12(d).
Thus, on a motion to dismiss, the court limits its
inquiry to the legal feasibility of the pleadings. “[A] pleading
is deemed to include any ‘written instrument’ that is attached to
it as ‘an exhibit,’ or is incorporated in it by reference.” Lynch,
952 F.3d at 79 (internal citations omitted). As the Second Circuit
explained in Lynch, “The term ‘written instrument’ generally
refers to a ‘legal document that defines rights, duties,
entitlements, or liabilities, such as a statute, contract, will,
promissory note, or share certificate.’” Id. (citing Smith v.

Hogan, 794 F.3d 249, 254 (2d Cir. 2015) (quoting BLACK'S LAW DICTIONARY
(10th ed. 2014))). Nevertheless, even when a plaintiff chooses
not to attach a written instrument as an exhibit or incorporate it
by reference, “if it is one ‘upon which’ the plaintiff ‘solely
relies and which is integral to the complaint,’ the court may take
the document into consideration in deciding the defendant’s motion
to dismiss.” Doe v. New York Univ., No. 20-CV-01343, 2021 WL
1226384, at *11 (S.D.N.Y. Mar. 31, 2021) (quoting Lynch, 952 F.3d
at 79); see also Global Network, 458 F.3d at 156; DiFolco v. MSNBC
Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010). Moreover, “[a] court
may take judicial notice of a document filed in another court not
for the truth of the matters asserted in the other litigation, but

rather to establish the fact of such litigation and related
filings.” Global Network, 458 F.3d at 157 (quoting Int’l Star
Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d
66, 70 (2d Cir. 1998)).
Typically, this type of dispute arises when a defendant
asks the court to consider exhibits attached to its motion to
dismiss. See, e.g., Doe, 2021 WL 1226384, at *9-15. But the
dispute can also arise when a plaintiff attaches materials to his
complaint. For example, in Smith v. Hogan, the Second Circuit
affirmed a district court’s decision to not consider an affidavit
contained in 170 pages of exhibits attached to the plaintiff’s
complaint, finding the affidavit was not a written instrument

within the meaning of Rule 10(c), “or otherwise properly considered
to be part of the complaint,” and reasoning that deeming the
affidavit part of the complaint “would do considerable damage to
Rule 8(a)’s notice requirement” and render the ability of
defendants and the courts to determine what the complaint plausibly
alleges “a needlessly complicated adventure.” 794 F.3d at 254-
55.
It is true that the Smith panel acknowledged that it
“has permitted the consideration of other documents, apart from
written instruments under Rule 10(c), at the motion to dismiss
stage,” and appeared particularly troubled that the plaintiff
“never even mentioned” the affidavit in his complaint. Id. at

254-55. However, more recently, another panel of the Second
Circuit held that a document cannot be considered “integral” to
the complaint unless it is a written instrument. See Lynch, 952
F.3d at 78. In Lynch, the Second Circuit had to decide whether a
memo book maintained by one of the defendants could be considered
“integral” to the complaint in that case. Id. There, the
plaintiff argued that one of the allegations in the plaintiff’s
amended complaint was based on an entry in the memo book. Id.
The Lynch Court acknowledged that the plaintiff had relied on the
memo book entry in drafting his amended complaint, but nevertheless
concluded that it was not “integral” to the pleading because it
was not a “written instrument.” Id. at 79; see also Madej v. Yale

Univ., No. 20-CV-0133, 2021 WL 148888, at *5 (D. Conn. Jan. 15,
2021) (recognizing Lynch further constrained the universe of
documents district courts may consider on a motion to dismiss);
Doe, 2021 WL 1226384, at *10-12 (discussing Lynch).5

5 While it is true that the Lynch panel did not explicitly disavow
other Circuit Court panel decisions using broader language to
describe the universe of documents that can be considered integral
to a complaint, as District Judge Woods noted in his opinion
recognizing Lynch’s impact, neither has the Second Circuit
published an opinion in which it “embraced as ‘integral’ a document
that cannot reasonably be characterized as a written instrument.”
In sum, and as Lynch instructs, at the pleading stage
the Court considers the SAC and any written instrument attached to
it as an exhibit, incorporated to it by reference, or integral to

Plaintiff’s allegations. Doing so will enable the Court to assess
the feasibility of the SAC without weighing the evidence that may
support or undermine it.
2. Application to SAC
Turning to the fifty-six exhibits Plaintiff has attached
to his SAC, the Court finds that they are not written instruments
properly attached or incorporated to the pleading, as they do not
define rights, duties, entitlements, or liabilities. Rather, as
summarized supra, the exhibits consist of materials related to the
investigation into the death of Steven Jason and Plaintiff’s
underlying conviction, as well as news articles and documents filed
in separate court proceedings. Plaintiff agrees, stating that he

will “gladly remove[] the exhibit list and references” from the
SAC. (Pl. Opp. to County Defs. at 8 (further contending that the
exhibit materials are “uniformly relevant” at the summary judgment
stage).) While Plaintiff is entitled to rely on these materials
in drafting his pleading, permitting Plaintiff to attach them as
exhibits would render Rule 10(c)’s “written instrument”
requirement meaningless and raise the concerns identified by the
Second Circuit in Smith.
3. Application to the County Defendants’ Exhibits
As to the eighteen exhibits attached to the County
Defendants’ motion to dismiss, the Court finds that the majority

of them are not written instruments and, therefore, cannot be
considered at this stage, even acknowledging that Plaintiff has
relied on many of the documents in drafting his SAC. See Madej,
2021 WL 148888, at *5 (“[T]he incorporation-by-reference exception
is not a mechanism for responding to all situations where a
plaintiff withholds damaging information from a complaint.
Rather, the exception prevents plaintiffs from generating
complaints invulnerable to Rule 12(b)(6) only in certain
situations, e.g., when plaintiffs have selectively quoted from
certain types of written instruments. In many circumstances, the
proper recourse for a complaint that withholds other types of
information is to move for summary judgment, following

discovery.”) The County Defendants’ purpose in presenting this
volume of evidence in this context is clear: they ask the Court to
consider the evidence that was before the County when investigating
Steven Jason’s murder, to weigh that evidence, and to conclude
that the evidence contradicts Plaintiff’s allegations that, for
example, the County lacked probable cause to prosecute him. Cf.
Doe, 2021 WL 1226384, at *12. This is an invitation to error.
See Global Network, 458 F.3d at 156; cf. Shakespeare v. Compu-Link
Corp., 848 F. App’x 474, 475-76 (2d Cir. 2021) (vacating district
court dismissal order for erroneously relying on materials outside
the pleadings “to draw inferences against [plaintiff] and resolve
factual disputes”); Lively v. WAFRA Investment Advisory Group,

Inc., 2021 WL 3118943, at *6-7 (2d Cir. July 23, 2021)
(disapproving of the district court’s consideration of materials
outside the pleadings).
Even if the Court were to consider any “document” --
rather than “written instrument” -- integral to the SAC under
caselaw predating Lynch, many of the County Defendants’ attached
exhibits still fail to meet that standard. For example, the County
Defendants reference Larrea’s deposition testimony that he did not
recall whether he called 911 or some other number after witnessing
the shooting (Ex. L) to cast doubt on Plaintiff’s allegation that
the County Defendants concealed the evidence of any such call.
(See County Defs. Br. at 7, 29; SAC ¶ 47.) But “the argument that

a court can rely on previous testimony on a motion to dismiss for
the purpose of contradicting facts asserted in the complaint was
explicitly rejected by the Second Circuit in [Global Network].”
Johnson v. Levy, 812 F. Supp. 2d 167, 176 (E.D.N.Y. 2011). In
Global Network, the district court dismissed the plaintiff’s
complaint, relying, in part, on the testimony of the plaintiff’s
sole shareholder and president in an unrelated criminal matter.
Global Network, 458 F.3d at 153-54. The Second Circuit reversed,
because “not only did the district court consider external material
in its ruling, it relied on those materials to make a finding of
fact that controverted the plaintiff’s own factual assertions set
out in its complaint.” Id. at 156 (emphasis in original).

Similarly, here, the County Defendants ask this Court to rely on
Larrea’s deposition testimony, which is by no means unambiguous,
to controvert Plaintiff’s allegation that Larrea called 911 the
night of the shooting. In the same vein, the County Defendants
rely on Witherspoon’s statements and testimony at Plaintiff’s
underlying criminal trial to bolster their claim that they had
probable cause to prosecute Plaintiff. (See County Defs. Br. at
19-20; Loomba Decl., Exs. I, O.) At this stage, however, the Court
declines to consider these external materials to controvert the
factual assertions set forth in Plaintiff’s SAC. The external
materials are not written instruments, see Lynch, 952 F.3d at 78-
79; they are not integral to the SAC under pre-Lynch case law, see

Joyner v. County of Cayuga, No. 20-CV-0060, 2020 WL 1904088, at *3
(N.D.N.Y. Apr. 17, 2020) (declining to consider police reports at
motion to dismiss stage and adopting the “better view . . . adopted
by a majority of courts in our Circuit, . . . that these kinds of
police records are not ‘integral’ to a false arrest complaint,”
because “[t]o accept the truth of the documents offered by
Defendants at this stage would amount to a premature determination
that the arresting officers and the alleged victim are more
credible than Plaintiff”); and, to the extent argued, the Court
cannot take judicial notice of their content for the truth of the
matters asserted therein, see Global Network, 458 F.3d at 157.
Indeed, in moving to strike the exhibits attached to Plaintiff’s

SAC, the County Defendants undermine their request for the Court
to consider external materials. Therefore, the Court declines to
consider the exhibits contained in the Loomba Declaration unless
otherwise noted.
4.
C onsideration of Rule 12(d)
Last, the Court declines to convert Defendants’ motions
to dismiss into summary judgment motions. See Madej, 2021 WL
148888, at *6 (declining, in its discretion, to convert Rule
12(b)(6) motion into one seeking summary judgment). Under Rule
12(d), converting Defendants’ motions requires giving “[a]ll
parties . . . a reasonable opportunity to present all material
that is pertinent to the motion.” FED. R. CIV. P. 12(d). However,
discovery in this case has been contentious (see, e.g., ECF Nos.
324, 325, 333 (most recent orders regarding various discovery
disputes)); thus, converting the motions would invite arguments
that Plaintiff has not yet obtained “all the material that is
pertinent to the motion,” thereby risking further delay. Madej,
2021 WL 148888, at *6 (“conclude[ing] that the better course of
action is to give the parties the benefit of” ruling on the
dismissal motion “without consideration of materials beyond the
Second Amended Complaint, instead of risking delay”). Indeed,
this is the second time the parties have briefed their motions to
dismiss. Therefore, the Court declines to convert Defendants’
motions.

B. Claims against the Mullen Estate
Next, the Court considers another preliminary issue:
Whether Plaintiff can maintain his claims against the Mullen
Estate.
Jerl Mullen, a former County homicide detective, passed
away on January 4, 2015, more than three years before Plaintiff
initiated this action. Therefore, Plaintiff alleges his claims
against the Mullen Estate, purportedly by way of substitution under
Rule 25. (See Sept. 23, 2019 Elec. Order (the “Substitution
Order”) (granting Plaintiff’s motion to substitute the Mullen
Estate as a defendant).) Rule 25 states that “[i]f a party dies
and the claim is not extinguished, the court may order substitution

of the proper party,” i.e., the decedent’s “successor or
representative.” FED. R. CIV. P. 25(a) (emphasis added). However,
the plain meaning of Rule 25 “presupposes that substitution is for
someone who was a party to a pending action”; thus, “[s]ubstitution
is not possible if one who was named as a party in fact died before
the commencement of the action.” 7C Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1951 (3d ed., Apr.
2021 update). This interpretation of Rule 25(a) is well
established, including in this Circuit. See Automated Info.
Processing, Inc. v. Genesys Sols. Grp., Inc., 164 F.R.D. 1, 3
(E.D.N.Y. 1995); Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir.
1969); Flick v. Vadlamudi, No. 09-CV-0647, 2010 WL 3061096, at *1

(W.D. Mich. July 16, 2010), report and recommendation adopted, No.
09-CV-0647, 2010 WL 3061021 (W.D. Mich. Aug. 3, 2010).
Accordingly, the Substitution Order is VACATED, see
Bruccoleri v. Gangemi, No. 17-CV-7443, 2019 WL 499769, at *6
(E.D.N.Y. Feb. 8, 2019) (ruling that where substitution order was
improperly entered it would be vacated), and the County Defendants’
motion to dismiss all claims against the Mullen Estate is GRANTED.
C. Section 1983 Claims
Section 1983 provides a civil claim for damages against
any person who, acting under color of state law, deprives another
of any rights, privileges, or immunities secured by the
Constitution or the laws of the United States. See 42 U.S.C. §

1983; Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). “The
purpose of § 1983 is to deter state actors from using the badge of
their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such
deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
Further, it is well settled that to establish liability under
Section 1983, a plaintiff must “plead and prove ‘that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution,’” that is,
personally participated in the alleged constitutional deprivation.
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)) (rejecting “special

rule for supervisory liability” and holding constitutional
violations “must be established against the supervisory official
directly”).
The Court turns to examining each of Plaintiff’s Section
1983 Claims.
1. Malicious Prosecution (Claim 1)6
The County Defendants and Plaintiff devote the lion’s
share of their briefs to arguing Plaintiff’s malicious prosecution
claim. (County Defs. Br. at 19-21; Pl. Opp. to County Defs. at
12-23; County Defs. Reply at 2-6.) The County Defendants argue
that the evidence provided by Witherspoon “establish[ed] an
independent basis of probable cause to initiate and continue the

criminal prosecution against Plaintiff,” and because probable
cause is a defense to a claim for malicious prosecution,
Plaintiff’s claim fails. Relatedly, they assert that each of the
Individual County Defendants is entitled to qualified immunity
from the malicious prosecution claim, because a reasonable officer
could have concluded there was probable cause to prosecute

6 Plaintiff does not bring his Section 1983 malicious prosecution
claim against the Individual Village Defendants, but he does bring
a state law claim for malicious prosecution against the Village,
Plaintiff based on Witherspoon’s evidence. In response, Plaintiff
assails the reliability of the evidence Witherspoon provided and
asks the Court to view it “holistically and in light of

[P]laintiff’s uncontested coercion, conspiracy and evidence
fabrication claims.” (Pl. Opp. to County Defs. at 13; see also
id. at 12-13, 15-19.) Because the parties dispute the extent to
which probable cause can serve as a defense to a malicious
prosecution claim under caselaw in this Circuit, the Court first
clarifies the standard before turning to merits of the parties’
arguments.
i. Applicable Law
“In order to prevail on a Section 1983 claim against a
state actor for malicious prosecution, a plaintiff must show a
violation of his rights under the Fourth Amendment . . . and must
establish the elements of a malicious prosecution claim under state

law.” Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d
Cir. 2010) (internal citations omitted). Under New York law, a
claim for malicious prosecution requires: “(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 defendant’s actions.” Id. at 161
(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)); see
also Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003).
In addition, under Section 1983, the plaintiff must further
demonstrate “a post-arraignment deprivation of liberty that rises
to the level of a constitutional violation.” Bailey v. City of

New York, 79 F. Supp. 3d 424, 448 (E.D.N.Y. 2015) (citing Boley v.
Durets, No. 12–CV–4090, 2013 WL 6562445, at *5 (E.D.N.Y. Dec. 10,
2013)).
“[T]he existence of probable cause is a complete defense
to a claim of malicious prosecution in New York.” Savino, 331
F.3d at 72; see also McClellan v. Smith, 439 F.3d 137, 145 (2d
Cir. 2006) (“The absence of probable cause is an essential element
to a claim for malicious prosecution.”) This is the case because
“a malicious prosecution claim is rooted in the Fourth Amendment
right to be free from a baseless criminal prosecution.” Hoyos v.
City of New York, 999 F. Supp. 2d 375, 390 (E.D.N.Y. 2013) (citing
Morse v. Spitzer, No. 07-CV-4793, 2012 WL 3202963, at *2 (E.D.N.Y.

Aug. 3, 2012) (interpreting Albright v. Oliver, 510 U.S. 266, 271
(1994), and Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d
Cir. 1995))). But importantly, the relevant probable cause
determination depends on the stage of the criminal proceeding.
At the arrest stage, the Second Circuit has described
probable cause to arrest as “knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the
person to be arrested has committed . . . a crime.” Stansbury v.
Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (quoting Jaegly v. Couch,
439 F.3d 149, 152 (2d Cir. 2006)); Ashley v. City of New York, 992
F.3d 128, 136 (2d Cir. 2021). At the prosecution stage, however,

the probable cause standard is “slightly higher.” Stansbury, 721
F.3d at 95; Hoyos v. City of New York, 650 F. App’x 801, 802 (2d
Cir. 2016) (summary order). “Probable cause, in the context of
malicious prosecution, has also been described as such facts and
circumstances as would lead a reasonably prudent person to believe
the plaintiff guilty.” Stansbury, 721 F.3d at 95 (quoting Boyd v.
City of New York, 336 F.3d 72, 76 (2d Cir. 2003)); Hoyos, 999 F.
Supp. 2d at 390 (“[T]he relevant probable cause determination is
whether there was probable cause to believe the criminal proceeding
could succeed and, hence, should be commenced.”). As a result,
timing is key, with probable cause in the context of malicious
prosecution being measured “as of the time the judicial proceeding

is commenced (e.g., the time of the arraignment),” not the time of
the arrest. Hoyos, 999 F. Supp. 2d at 390 (quoting Davis v. City
of New York, 373 F. Supp. 2d 322, 333 (S.D.N.Y. 2005)); id.
(“Information obtained ‘after the arrest, but before the
commencement of proceedings, is relevant to the determination of
probable cause’ for a malicious prosecution claim.” (quoting
Jackson v. City of New York, 939 F. Supp. 2d 235, 251 (E.D.N.Y.
2013)); Stone v. Port Authority, No. 11-CV-3932, 2014 WL 3110002,
at *9 (E.D.N.Y. July 8, 2014) (“[E]ven when probable cause is
present at the time of arrest, evidence could later surface which
would eliminate that probable cause.”); Jean v. County of Nassau,
No. 14-CV-1322, 2020 WL 1244786, at *9 (E.D.N.Y. Mar. 16, 2020)

(citing McDermott v. City of New York, No. 94-CV-2145, 1995 WL
347041, at *5 (E.D.N.Y. May 30, 1995) (“In the absence of some
indication that the authorities became aware of exculpatory
evidence between the time of the arrest and the subsequent
prosecution that would undermine the probable cause which
supported the arrest, no claim for malicious prosecution may
lie.”)). And even where the arrest and prosecution are supported
by probable cause, thus defeating any claim for false arrest or
malicious prosecution, “a plaintiff can still prevail on a fair
trial claim if fabricated evidence causes some ‘further
deprivation’” of the plaintiff’s liberty. Ross v. City of New
York, No. 17-CV-3505, 2019 WL 4805147, at *9 (E.D.N.Y. Sept. 30,

2019) (quoting Rowell v. City of New York, No. 16-CV-6598, 2019 WL
280469, at *2 (S.D.N.Y. Jan. 22, 2019) (citing Ganek v. Leibowitz,
874 F.3d 73, 91 (2d Cir. 2017)); see also Frost v. New York City
Police Dep’t, 980 F.3d 231, 244 (2d Cir. 2020); Garnett v.
Undercover Officer C0039, 838 F.3d 265, 278 (2d Cir. 2016);
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).
Put simply, the existence of probable cause to arrest and prosecute
a plaintiff is not a defense to his claim for deprivation of a
fair trial. Morse, 2012 WL 3202963, at *5 (reconciling Ricciuti
and Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)).
ii. Application

The Court first addresses the County Defendants’ claim
to qualified immunity. Pearson v. Callahan, 555 U.S. 223 (2009);
Francis v. Fiacco, 942 F.3d 126, 139-40 (2d Cir. 2019). Qualified
immunity shields government officials from civil liability
resulting from the performance of their discretionary functions
only where their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Wallace v. Suffolk County Police Dep’t, 396 F.
Supp. 2d 251, 265 (E.D.N.Y. 2005) (Seybert, J.) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether
qualified immunity applies, courts consider “whether the facts
shown make out a violation of a constitutional right and whether

the right at issue was clearly established at the time of the
defendant’s alleged misconduct.” Tankleff v. County of Suffolk,
No. 09-CV-1207, 2017 WL 2729084, at *17 (E.D.N.Y. June 23, 2017)
(quoting Estate of Devine v. Fusaro, 676 F. App’x 61, 62 (2d Cir.
2017) (cleaned up)). Whether a right was clearly established
should be analyzed from the perspective of a reasonable law
enforcement officer, and the relevant inquiry is whether “it would
be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Id. Although “a qualified immunity
defense may be advanced on a 12(b)(6) motion, it faces a
‘formidable hurdle’ when advanced at such an early stage in the
proceedings.” Wallace, 396 F. Supp. 2d at 265 (quoting Cathedral

Church of the Intercessor v. Incorporated Village of Malverne, 353
F. Supp. 2d 375, 391 (E.D.N.Y. 2005)).
In support of their argument that qualified immunity
should apply, the County Defendants argue that, “based on Ms.
Witherspoon’s evidence, a reasonable officer could conclude that
there was at least arguable probable cause to prosecute plaintiff.”
(County Defs. Br. at 20.) But “[a]rguable probable cause should
not be misunderstood to mean almost probable cause.” Walsh v.
City of New York, 742 F. App’x 557, 562 (2d Cir. 2018) (summary
order) (quoting Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir.
2016)). Moreover, qualified immunity does not apply “when alleged
fabrication of evidence is key to the case,” as it is here. Bailey,

79 F. Supp. 3d at 458. In light of Plaintiff’s allegations that
the Witherspoon evidence was itself corrupted by certain
Individual County Defendants, and the “formidable hurdle” the
County Defendants face at this stage, the Court concludes that
qualified immunity is inappropriate at this juncture.
Turning to the parties’ arguments, the County Defendants
dispute only the lack of probable cause requirement. However, at
this stage in the proceedings, the Court cannot find the County
Defendants had independent probable cause to believe the criminal
proceeding against Plaintiff could succeed, as required to defeat
a malicious prosecution claim. Instead, where, as here, facts are
contested and the court is without a record fully developed through

discovery, it cannot make a probable cause finding without
discrediting the SAC’s well-pleaded allegations of fabricated and
concealed evidence, which it is precluded from doing at the
dismissal stage. Shabazz v. Kailer, 201 F. Supp. 3d 386, 397
(S.D.N.Y. 2016) (in context of evidence fabrication claim,
distinguishing Hoyos “because it was decided on a motion for
summary judgment” and declining to conclude on motion to dismiss
“that the allegedly fabricated evidence did not cause the
prosecutor to initiate the prosecution against the plaintiffs when
she otherwise would not have proceeded with the prosecution”).
Indeed, Plaintiff alleges facts that undermine the
County Defendants’ probable cause determination. Specifically,

Plaintiff alleges certain Individual County Defendants, namely,
Abbondandelo, Dempsey, Mullen, and Severin, became aware of key
statements from Larrea and Montes, which were omitted from the
Morning Report, that were at odds with the information provided by
Witherspoon, on whose statements and testimony the County
Defendants attempt to base their entire probable cause
determination. Moreover, Plaintiff alleges that Individual County
Defendant Swenson received information from two other witnesses
who were in the vicinity of the shooting, Valdez and her unnamed
boyfriend, that further contradicted Witherspoon’s information and
the story later developed by investigators and prosecutors. Then,
when confronted with information from Jenkins that corroborated

Montes and Larrea’s account, Plaintiff alleges Dempsey, Mullen,
Abbondandelo, and Alger caused Jenkins to change his story and
implicate Plaintiff. Thus, unlike the defendants in Jean,
according to the allegations, here, the County Defendants
discovered “intervening fact[s]” that dissipated any probable
cause determination supported by evidence furnished by
Witherspoon. 2020 WL 1244786, at *9.
The Court declines the County Defendants’ invitation to
turn a blind eye to these allegations and rely entirely on
Witherspoon to find probable cause existed to prosecute. As
Plaintiff aptly points out, each of the cases cited by the County
Defendants was decided at the summary judgment stage. (See Pl.

Opp. to County Defs. at 20-22.) The County Defendants fail to
identify a single case decided on motion to dismiss where the
district court, confronted with well-pleaded allegations of
evidence fabrication, dismissed a malicious prosecution claim
based on a finding that the defendants had probable cause to
prosecute independent of that allegedly fabricated evidence. See,
e.g., Hoyos, 999 F. Supp. 2d at 390 (dismissing malicious
prosecution claim based on independent probable cause on summary
judgment); Morse, 2012 WL 3202963 (same); Torres v. City of New
York, No. 16-CV-6719, 2017 WL 4325822, at *5 (Sept. 27, 2017)
(same).
Last, the County Defendants rely on Morse and its progeny

for the proposition that “even where plaintiff alleges, as here,
that the malicious prosecution is based on fabricated evidence,
‘the existence of probable cause independent of the fabricated
evidence is a defense to that claim.’” Hoyos, 999 F. Supp. 2d at
390 (quoting Morse, 2012 WL 3202963, at *5); (County Defs. Br. at
20-21; County Defs. Reply at 2-4). The Court agrees with the legal
proposition, which “tethers” the malicious prosecution claim to
its Fourth Amendments roots and ensures it remains legally distinct
from the fair trial claim, but declines to apply it here on a
motion to dismiss, because according to the SAC’s allegations, the
evidence the County Defendants claim supported their probable
cause judgment was not “independent” of the alleged fabrication.

“[I]nherent to the exception of independent probable cause is that
the probable cause must be independent from the alleged
fabrication.” Ross, 2019 WL 4805147, at *8. While the County
Defendants point to the evidence provided by Witherspoon as
independent probable cause supporting Plaintiff’s prosecution
(County Defs. Br. at 19-20), Plaintiff alleges that certain
Individual County Defendants corrupted the account of Witherspoon
to pin the murder on him (SAC ¶ 60). As a result, at this stage,
the evidence Witherspoon provided cannot be considered separate or
independent from the allegedly fabricated or concealed evidence.
2. Fabrication of Evidence / Deprivation of Fair
Trial (Claim 2)

Plaintiff asserts his claim for fabrication of evidence
against Individual County Defendants Abbondandelo, Dempsey, Mullen
and Severin, Alger, and Kosier. The County Defendants move to
dismiss this claim as against Severin and Alger, arguing the SAC
fails to adequately allege they personally participated in the
alleged fabrication of evidence. (County Defs. Br. at 21-22.)
“The Due Process Clause guarantees a criminal
defendant’s ‘right to a fair trial.’” Frost, 980 F.3d at 244
(quoting Ramchair v. Conway, 601 F.3d 66, 73 (2d Cir. 2010)). A
defendant’s violation of this right is “redressable in action for
damages under 42 U.S.C. § 1983.” Id. (quoting Ricciuti, 124 F.3d
at 130). The elements of a denial of the right to a fair trial
claim are: “an (1) investigating official (2) fabricates
information (3) that is likely to influence a jury’s verdict,
(4) forwards that information to prosecutors, and (5) the
plaintiff suffers a deprivation of life, liberty, or property as
a result.” Garnett, 838 F.3d at 279.

First, as to Severin, whom Plaintiff describes as a
“high-ranking” supervisor (SAC ¶ 38), the Court finds the SAC
adequately pleads his direct participation in the alleged
fabrication of evidence, because Plaintiff alleges that Severin
“altered the official narrative of the crime” by excluding from
the Morning Report any reference to the Montes and Larrea
Statements and mischaracterizing Witherspoon’s statements to

police. The Second Circuit has clarified that fraudulent
omissions, like the one alleged here, can serve as fabricated
evidence for the purposes of a claim for denial of a fair trial.
Morse v. Fusto, 804 F.3d 538, 550 (2d Cir. 2015); see also Hutchins
v. Solomon, No. 16-CV-10029, 2018 WL 4757970, at *17 (S.D.N.Y.
Sept. 29, 2018) (“[I]n the context of a fabrication of evidence
claim, the Second Circuit equates ‘the fraudulent omission of
factual information . . . with the affirmative perpetration of a
falsehood,’ and expressly disclaims any ‘plausible legal
distinction between misstatements and omissions’” (quoting Fusto,
804 F.3d at 550)). In short, Plaintiff has “identif[ied] the
actual fabrication” Severin is alleged to have perpetrated, i.e.,

omitting key statements from the Morning Report. Hutchins, 2018
WL 4757970, at *16. At this juncture, that is enough to plausibly
plead direct participation.
Second, as to Alger, the Court similarly finds that the
SAC adequately pleads his direct participation in the alleged
fabrication of evidence. Plaintiff alleges Alger and other
Individual County Defendants “corruptly coordinated the accounts
of Peddie Jenkins and Skwanitra Witherspoon to manufacture the
identification of [Plaintiff] as the alleged perpetrator,”
notwithstanding evidence to the contrary. (SAC ¶¶ 60-63.)7 Thus,
unlike those cases in which courts have dismissed denial of fair
trial claims for lack of personal participation, Plaintiff has

“state[d] with requisite specificity the evidence that was
purportedly fabricated” and Alger’s direct involvement in the
fabrication. See Longo v. Ortiz, No. 15-CV-7716, 2016 WL 5376212,
at *6 (S.D.N.Y. Sept. 26, 2016) (dismissing denial of fair trial
claim where plaintiff’s allegations that “the defendants
fabricated evidence, gave false testimony, and made false
extrajudicial statements to the Manhattan District Attorney’s
Office to be used against Mr. Longo at trial as well as to a
Supreme Court judge in an effort to secure a search warrant,
indictment and conviction against [the plaintiff]” lacked
specificity); Lewis v. City of New York, 591 F. App’x 21, 22 (2d
Cir. 2015) (summary order) (“[A]gree[ing] with the district court

that because Lewis has provided no detail regarding the evidence
purportedly fabricated by the defendant officers, he has not stated
a plausible claim for denial of the right to a fair trial.”).

7 Plaintiff further alleges that Alger and other County Defendants
attempted to persuade Richard “Woody” Miller, “a barber,” and
brothers Tyrone and Roy Isaac to falsely implicate Plaintiff as
the murderer but, realizing their testimony exonerated Plaintiff,
suppressed it. (SAC ¶¶ 64-65.) These conclusory allegations “are
not entitled to the assumption of truth,” Hayden v. Patterson, 594
F.3d 150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)), since Plaintiff does not provide any background
on these individuals’ involvement in the shooting, let alone
describe their allegedly exculpatory statements. For that reason,
Accordingly, the County Defendants’ motion to dismiss
Plaintiff’s fabrication of evidence claim as against Severin and
Alger is DENIED.

3. Brady Violations (Claim 10)
Plaintiff asserts that the Individual County and Village
Defendants violated Brady by suppressing the following pieces of
evidence: (1) the Montes and Larrea Statements; (2) the 911 call
recording; (3) the notes from Swenson’s interview with Valdez; and
(4) the Zimmer-Baldwin Interview. The County Defendants argue
that Plaintiff did receive the Montes and Larrea Statements at his
suppression hearing in the underlying criminal case; that the 911
call may not have occurred; and that the Valdez interview notes
and the Zimmer-Baldwin Interview are not Brady materials. (County
Defs. Br. at 28-29.) The Village Defendants argue that they did
not prosecute Plaintiff in his underlying criminal case, and that

Plaintiff does not allege they failed to turn over any evidence.
(Village Defs. Br. at 17.)
“A Brady violation has three components: ‘(1) The
evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; (2) that evidence
must have been suppressed by the State, either willfully or
inadvertently; and (3) prejudice must have ensued.’” Paulin v.
City of Beacon, No. 17-CV-5105, 2019 WL 4274211, at *5 (S.D.N.Y.
Sept. 10, 2019) (quoting United States v. Jackson, 345 F.3d 59, 71
(2d Cir. 2003)).
First, as alleged, Plaintiff can proceed with his Brady

claims against the Individual County Defendants, based upon their
involvement in the investigation and prosecution of Plaintiff.
Rosario v. City of New York, No. 18-CV-4023, 2019 WL 4450685, at
*5 (S.D.N.Y. Sept. 16, 2019) (“Although the Complaint does not
specify which Defendants interviewed Ms. Torres, it pleads that
all individual Defendants, except Defendant Monks, questioned
witnesses or documented their interviews.”) While the County
Defendants argue that Plaintiff did receive the Larrea and Montes
Statements in one of the state court pre-trial submissions (see
Ex. B) and that the 911 call may not have occurred as alleged, “no
materials that may be properly considered on this [dismissal]
motion undermine the allegations that Defendants failed to

disclose [the Larrea and Montes S]tatements or [their] identity as
the source of the statements in a timely manner.” Id. The County
Defendants’ remaining arguments are without merit.8
As for Individual Village Defendants, Plaintiff admits
he received the audio file of the Zimmer-Baldwin Interview from
the County Defendants. (ECF No. 242 at 2.). Tellingly, in his

8 Because the Court finds it unnecessary to address Plaintiff’s
estoppel argument, the Court declines to consider the arguments
relating to this issue raised in supplemental briefing submitted
SAC, Plaintiff does not explicitly attribute the suppression to
the Village. (E.g., SAC ¶ 54 (“Defendants’ suppression of the
Zimmer-Baldwin Interview . . . .” (emphasis added”).) In light of

Plaintiff’s concession and his general allegation regarding the
suppression of the Zimmer-Baldwin Interview, Plaintiff has not
plausibly alleged a Brady claim against the Individual Village
Defendants.
Accordingly, the Individual County Defendants’ motion to
dismiss the Brady violation claim is DENIED, and the Individual
Village County Defendants’ motion to dismiss the Brady violation
claim is GRANTED.
4. Coercion (Claim 3)
Plaintiff asserts his coercion claim against Individual
County Defendants Abbondandelo, Dempsey, Mullen, and Kosier,
alleging that, while in custody, they extracted a false confession

from him by lying to his family in order to “circumvent” his right
to representation, and beating, threatening and lying to him during
the course of a thirty-nine hour interrogation that was partly
conducted in a “frigid interrogation room.” (SAC ¶¶ 67-71.) The
County Defendants move to dismiss this claim as against Kosier,
arguing the SAC fails to adequately allege he personally
participated in the alleged coercion. (County Defs. Br. at 21-
22.)
A Section 1983 coercion claim may arise “if coercion was
applied to obtain a waiver of the plaintiff’s rights against self-
incrimination and/or to obtain inculpatory statements, and the

statements thereby obtained were used against the plaintiff in a
criminal proceeding.” Hincapie v. City of New York, 434 F. Supp.
3d 61, 76 (2020) (quoting Deshawn E. by Charlotte E. v. Safir, 156
F.3d 340, 346 (2d Cir. 1998)); see also Sedunova v. City of New
York, 652 F. App’x 29, 31 (2d Cir. 2016) (summary order), as
corrected (June 29, 2016).
The Court finds Plaintiff adequately pleads Kosier’s
direct involvement in the alleged coercion that extracted
Plaintiff’s false confession. It is true, as the County Defendants
point out, that the SAC does not allege that Kosier, unlike
Abbondandelo, Dempsey, and Mullen, threatened and beat Plaintiff
during his interrogation. Rather, Plaintiff limits his allegation

against Kosier, alleging only that he lied during Plaintiff’s
interrogation. However, the County Defendants fail to explain why
that distinction warrants dismissing these claims against Kosier,
especially where the SAC explicitly alleges Kosier was part of the
team of Individual County Defendants that coerced Plaintiff
through “inhumane treatment” into signing a false confession that
was used at trial to secure his conviction. See Hincapie, 434 F.
Supp. 3d at 71 (finding complaint adequately alleged personal
involvement in conduct giving rise to the plaintiff’s Section 1983
claim for coercion). Moreover, to the extent the County
Defendants’ attempt to controvert the timeline of events as alleged
by relying on external materials, as discussed supra, that reliance
is improper at this stage of the proceedings.9

Accordingly, the County Defendants’ motion to dismiss
Plaintiff’s coercion claim as against Kosier is DENIED.
5. Supervisory Liability (Claim 4)
Plaintiff asserts a claim for supervisory liability
under Section 1983 as against Individual County Defendant Severin
and John Doe supervisory defendants. However, as the Second
Circuit recently made clear, “there is no special rule for
supervisory liability” and, in order “[t]o hold a state official
liable under § 1983, a plaintiff must plead and prove the elements
of the underlying constitutional violation directly against the
official without relying on a special test for supervisory

liability.” Tangreti, 983 F.3d at 620. As a result, Plaintiff
cannot proceed against Severin under Section 1983 based purely on
his supervisory role at the County. Nevertheless, because

9 In connection with his coercion claim, Plaintiff references the
polygraph results of Takita Dorsey who, according to the allegedly
false confession, was a key player in the murder conspiracy. (SAC
¶ 74.) Plaintiff claims, without alleging any facts regarding
Dorsey’s involvement in the shooting or the results of Dorsey’s
polygraph test, that the polygraph test result contradicted
Plaintiff’s allegedly false confession. These conclusory
allegations “are not entitled to the assumption of truth,” and the
Court declines to consider them. Hayden v. Patterson, 594 F.3d
150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
Plaintiff has adequately pleaded Severin’s direct participation in
certain constitutional violations, see supra, Plaintiff’s claims
may proceed under that theory.

Accordingly, the County Defendants’ motion to dismiss
Plaintiff’s Section 1983 supervisory claim as against Severin and
John Doe supervisory defendants is GRANTED.
6. Monell (Claim 5)
Next, Plaintiff brings a Section 1983 claim against the
County and Village under Monell. Plaintiff asserts three distinct
theories of Monell liability: (1) a de facto policy or custom
through a widespread practice; (2) failure to train; and
(3) failure to supervise and discipline. (See SAC ¶¶ 76-88, 113-
18, 150-55.) In connection with his Monell claim, Plaintiff first
alleges that the County and Village maintained unofficial policies
of conducting constitutionally inadequate investigations,

fabricating inculpatory evidence, committing perjury, failing to
obtain probable cause to ensure that suspects would not be falsely
arrested and maliciously prosecuted, suppressing from prosecutors
material information favorable to criminal defendants, failing to
comply with Brady obligations, and employing unconstitutional
interrogation tactics. (See id. ¶ 150.) Plaintiff next alleges
that the County and Village demonstrated deliberate indifference
in failing to train, supervise, and discipline employees with
respect to these alleged unconstitutional practices. (See id. ¶¶
151-53.) In support of these allegations, Plaintiff relies on
allegations of misconduct, including fabrication of evidence and
coercive interrogation tactics, by County investigators, including

Dempsey, cited in this Court’s August 27, 2012 decision in Kogut
v. County of Nassau, No. 06-CV-6695, 2012 WL 3704710, a case that
ended without imposing Monell liability. (Id. ¶¶ 76-88.)
It is well established that a municipality such as the
County and the Village cannot be held liable under Section 1983 on
a respondeat superior theory. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978); Roe v. City of Waterbury, 542 F.3d 31,
36 (2d Cir. 2008). “Rather, municipalities may be liable only
where ‘execution of a government’s policy or custom’ causes
constitutional violations.” Buari v. City of New York, No. 18-
CV-12299, 2021 WL 1198371, at *21 (S.D.N.Y. Mar. 30, 2021) (quoting
Monell, 436 U.S. at 694).

“To prevail against a municipality in a Section 1983
action, a plaintiff must plead and prove three elements: (1) an
official policy or custom that (2) caused the plaintiff to be
subjected to (3) a denial of a constitutional right.” Kogut v.
County of Nassau, No. 06-CV-6695, 2009 WL 5033937 (E.D.N.Y. Dec.
11, 2009) (citing Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir.
2008)). “For a Monell claim to survive a motion to dismiss, a
plaintiff must allege ‘sufficient factual detail’ and not mere
‘boilerplate allegations’ that the violation of the plaintiff’s
constitutional rights resulted from the municipality’s custom or
official policy.” Ying Li v. City of New York, 246 F. Supp. 3d
578, 636 (E.D.N.Y. 2017) (quoting Plair v. City of New York, 789

F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (collecting cases)); see also
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (“The
mere assertion . . . that a municipality has such a custom or
policy is insufficient in the absence of allegations of fact
tending to support, at least circumstantially, such an
inference.”), overruled on other grounds by Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163
(1993). The plaintiff can satisfy the municipal policy requirement
by alleging:
(1) a formal policy officially endorsed by the
municipality; (2) actions or decisions made by
municipal officials with decision-making
authority; (3) a practice so persistent and
widespread that it constitutes a custom
through which constructive notice is imposed
upon policymakers; or (4) a failure by
policymakers to properly train or supervise
their subordinates, such that the policymakers
exercised ‘deliberate indifference’ to the
rights of the plaintiff.

Ying Li, 246 F. Supp. 3d at 636 (citing Second Circuit decisions).
“To demonstrate a de facto policy or custom through a
widespread practice, a plaintiff must ‘show that the policymaker
was aware of a subordinate’s unconstitutional actions, and
consciously chose to ignore them, effectively ratifying the
actions.’” Buari, 2021 WL 1198371, at *22 (quoting Amnesty America
v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004)). To
do so, the plaintiff can “cit[e] to complaints in other cases that
contain similar allegations,” provided those complaints “involve

factually similar misconduct, [are] contemporaneous to the
misconduct at issue in the plaintiff’s case, and result in an
adjudication of liability.” Id. (first quoting Gaston v. Ruiz,
No. 17-CV-1252, 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018);
then quoting Isaac v. City of New York, No. 16-CV-4729, 2018 WL
5020173, at *17 (E.D.N.Y. Aug. 6, 2018), and Calderon v. City of
New York, 138 F. Supp. 3d 593, 613 (S.D.N.Y. 2015)).
The plaintiff can also base his Monell claim on a showing
of “deliberate indifference” to a risk that a recurring situation
will likely result in a constitutional violation. Davis v. City
of New York, 75 F. App’x 827, 829 (2d Cir. 2003). To support a
claim that a municipality’s failure to train amounts to deliberate

indifference, the plaintiff must show:
(1) that a policymaker of the municipality
knows to a moral certainty that its employees
will confront a given situation; (2) that the
situation either presents the employee with a
difficult choice of the sort that training or
supervision will make less difficult or that
there is a history of employees mishandling
the situation; and (3) that the wrong choice
by the employee will frequently cause the
deprivation of a citizen’s constitutional
rights.
Young v. County of Fulton, 160 F.3d 899, 903–04 (2d Cir. 1998)
(citing Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir.
1992) (internal quotations and alterations omitted)). Liability
for deliberate indifference can be based on two distinct theories:
failure to train or failure to supervise/discipline. Amnesty

America, 361 F.3d at 127.
Under the failure-to-train theory, the plaintiff must
“allege facts that support an inference that the municipality
failed to train its police officers, that it did so with deliberate
indifference, and that the failure to train caused his
constitutional injuries.” Tieman v. City of Newburgh, No. 13-CV-
4178, 2015 WL 1379652, at *20 (S.D.N.Y. Mar. 26, 2015). While
“[r]ecurring civil rights complaints can put a municipality on
notice of deficiencies in its training program . . . [t]here is no
bright-line rule for how many civil rights complaints there must
be, or how recent the complaints must be, to put a municipality on
notice.” Buari, 2021 WL 1198371, at *23 (first citing Breton v.

City of New York, 404 F. Supp. 3d 799, 818 (S.D.N.Y. 2019); then
citing Tieman, 2015 WL 1379652, at *20).
Under the failure-to-supervise theory, a plaintiff must
plead “(1) there was a pattern of allegations of or complaints
about, or a pattern of actual, similar unconstitutional activity,
and (2) the municipality consistently failed to investigate those
allegations.” Treadwell v. County of Putnam, No. 14-CV-10137,
2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (citing Tieman,
2015 WL 1379652, at *21-22). While an obvious need for greater
supervision to protect against unconstitutional conduct “may be
demonstrated through proof of repeated complaints of civil rights
violations” that are not followed by a “meaningful attempt . . .

to investigate or to forestall further incidents,” Vann v. City of
New York, 72 F.3d 1040, 1049 (2d Cir. 1995), “there is no
requirement that complaints result in a formal finding of
misconduct for such complaints to support findings of failure to
supervise.” Felix v. City of New York, 344 F. Supp. 3d 644, 662
(S.D.N.Y. 2018).
i. The County Defendants
(a) Widespread Practice Theory
First, Plaintiff fails to plausibly allege that there is
a County practice of conducting constitutionally inadequate
investigations, fabricating inculpatory evidence, committing
perjury, failing to obtain probable cause to ensure that suspects

would not be falsely arrested and maliciously prosecuted,
suppressing from prosecutors material information favorable to
criminal defendants, failing to comply with Brady obligations, and
employing unconstitutional interrogation tactics “so widespread as
to have the force of law.” Board of County Comm’rs v. Brown, 520
U.S. 397, 404 (1997); see also City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988) (“[T]he Court has long recognized that a
plaintiff may be able to prove the existence of a widespread
practice that, although not authorized by written law or express
municipal policy, is ‘so permanent and well settled as to
constitute a “custom or usage” with the force of law.’” (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–168 (1970)). As

noted, in support of these allegations, Plaintiff relies upon this
Court’s August 27, 2012 decision in Kogut, discussing allegations
of misconduct by County investigators, including Dempsey, for
fabrication of evidence and coercive interrogation tactics. (SAC
¶ 76 (block quoting Kogut, 2012 WL 3704710, at *2-3).) He further
alleges other similar claims of Dempsey’s misconduct which, upon
further review, are allegations copied and pasted from certain
plaintiffs’ Local Rule 56.1 Statements in Kogut. (Compare SAC ¶¶
78-88), with Kogut v. County of Nassau, No. 06-CV-6695, Pls. 56.1
Stmt., ECF No. 243, ¶¶ 77-87. However, the lawsuits cited in Kogut
and the other complaints alleged are insufficient to plausibly
support an inference of a widespread custom in this instance. See

Tieman, 2015 WL 1379652, at *17 (concluding allegations of nine
lawsuits in five years, plus “public forum comments” and a third-
party report on the defendant-city’s misconduct, were insufficient
to plausibly allege a Monell claim for widespread custom).
To begin, even if the lawsuits and complaints involved
similar conduct to that alleged here, only two ended in
adjudication of liability -- one for malicious prosecution and the
other for malicious prosecution and fabrication of evidence -- and
none resulted in adjudication of Monell liability. As a result,
these lawsuits cannot support Plaintiff’s allegation of a
widespread de facto custom of conducting constitutionally
inadequate investigations, committing perjury, suppressing from

prosecutors material information favorable to criminal defendants,
failing to comply with Brady obligations, and employing
unconstitutional interrogation tactics, because they do not
involve factually similar misconduct. Nor can they support an
inference of a widespread custom of fabricating inculpatory
evidence or failing to obtain probable cause to ensure that
suspects would not be falsely arrested and maliciously prosecuted.
The fact that on two occasions two of the County’s investigators,
only one of whom is an Individual Defendant here, were found liable
for unconstitutional conduct over a ten year period “during which
hundreds, if not thousands, of arrests were made” does not
plausibly demonstrate that fabricating evidence and maliciously

prosecuting individuals “was so frequent and pervasive to
constitute a custom.” Id. (citing Walker v. City of New York, No.
12–CV–5902, 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014)).
“Even drawing reasonable inferences in [Plaintiff’s] favor, such
a relatively small number of cases over the course of [one]
decade[] in such a large municipality does not plausibly suggest
that the alleged practice is ‘so widespread as to have the force
of law’ . . . or ‘so manifest as to imply the constructive
acquiescence of senior policy-making officials.’” Buari, 2021 WL
1198371, at *26 (first quoting Brown, 520 U.S. at 404; then quoting
Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 871 (2d Cir. 1992)).
(b) Failure-to-Train and Failure-to-
Supervise Theories

However, Plaintiff can proceed with his Monell claim
under the failure-to-train and failure-to-supervise theories. In
this context, the lawsuits pleaded by Plaintiff and discussed supra
were sufficient to put the County on notice of the need for more
supervision and deficiencies in its training program. See Tieman,
2015 WL 1379652, at *20; see also McCants v. City of Newburgh, No.
14–CV–556, 2014 WL 6645987, at *4 (S.D.N.Y. Nov. 21, 2014),
clarified on denial of reconsideration, 2014 WL 7398910 (S.D.N.Y.
Dec. 9, 2014) (denying motion to dismiss Monell claim on deliberate
indifference grounds where the plaintiff’s pleadings referred to
seventeen other excessive force claims in the seven-year period
preceding the at-issue conduct, thus placing the municipality “on
notice to the possible use of excessive force by its police
officers”); Farrow v. City of Syracuse, No. 12–CV–1401, 2014 WL
1311903, at *8, n.7 (N.D.N.Y. Mar. 31, 2014) (observing, obiter
dictum, that plaintiff’s Monell claim would have survived motion
to dismiss based on fifteen excessive force claims filed against

the municipality in the five-year period preceding the at-issue
conduct). As the Second Circuit stated in Amnesty America, to
state a claim for a municipality’s failure to train its employees,
the plaintiff “need only plead that the city’s failure to train
caused the constitutional violation,” because “[i]t is unlikely
that a plaintiff would have information about the city’s training
programs or about the cause of the misconduct at the pleading
stage.” 361 F.3d at 130, n.10.10 Moreover, Plaintiff has alleged,

and this Court concluded in Kogut based on uncontroverted
statements of fact filed in connection with summary judgment
motions, that the County failed to investigate and discipline
officers for their conduct. Kogut, 2012 WL 3704710, at *2-3.
Stated differently, Plaintiff has plausibly pleaded deliberate
indifference by alleging enough facts to support an inference that
the County persistently failed to investigate complaints or
discipline officers whose conducted prompted the complaints.
ii. The Village
Conversely, Plaintiff has not alleged enough facts to
establish Monell liability as to the Village. Unlike the multiple

constitutional violations alleged against the County, the

10 The Court recognizes that other district courts in this Circuit
interpret Twombly and Iqbal, which post-date Amnesty America, as
requiring plaintiffs to “provide more than a simple recitation of
their theory of liability, even if that theory is based on a
failure to train.” Simms v. City of New York, No. 10-CV-3420,
2011 WL 4543051, at *2 n.3 (collecting cases), aff’d Simms v. City
of New York, 480 F. App’x 627 (2d Cir. 2012). But as this Court
has explained, the Twombly/Iqbal standard is “context specific,”
and a plaintiff has “no realistic way to learn about a
municipality’s training programs without discovery.” Michael v.
County of Nassau, No. 09-CV-5200, 2010 WL 3237143, at *4 (E.D.N.Y.
Aug. 11, 2010) (Seybert, J.); see also Ferrari v. County of
Suffolk, 790 F. Supp. 2d 34, 46 (E.D.N.Y. 2011) (Seybert, J.)
allegations against the Village are boilerplate. In one
representative example, Plaintiff alleges, without specificity,
that the Village “failed to train or supervise investigators to

ensure they complied with constitutional requirements in eliciting
confessions . . . .” (SAC ¶ 117.) But by the SAC’s own
allegations, the Individual Village Defendants were not involved
in Plaintiff’s interrogation. Moreover, Plaintiff offers no
evidence of similar lawsuits, grievances or complaints against the
Village; “[t]he absence of such detail dooms Plaintiff’s [cause of
action].” Rivera v. Westchester County, No. 18-CV-8354, 2019 WL
3958425, at *5 (S.D.N.Y. Aug. 22, 2019). “Although Plaintiff
alleges that policymakers ‘tolerated’ a policy or custom of Brady
violations, he provides no examples beyond what occurred in his
own case, which is insufficient.” Paulin, 2019 WL 4274211, at *7
(collecting cases where plaintiffs made boilerplate Monell

allegations); Tieman, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26,
2015) (“[M]ere allegations of a municipal custom, a practice of
tolerating official misconduct, or inadequate training and/or
supervision are insufficient to demonstrate the existence of such
a custom unless supported by factual details.”).
Accordingly, the County’s motion to dismiss Plaintiff’s
claim for Monell liability is GRANTED IN PART as to Plaintiff’s
widespread practice theory, and DENIED IN PART as to Plaintiff’s
failure-to-train and failure-to-supervise theories; and the
Village’s motion to dismiss Plaintiff’s claim for Monell liability
is GRANTED.
7. Conspiracy (Claim 9)11

Plaintiff alleges that the Individual County and Village
Defendants conspired to violate Plaintiff’s constitutional rights
and cause his wrongful conviction. (SAC ¶ 172.) In support of
that claim Plaintiff highlights: (1) the suppression of the
Zimmer-Baldwin Interview, recorded by Individual Village Defendant
Zimmer, and (2) Individual Village Defendant Melendez’s
interactions with Montes and Larrea the night of the incident.
(SAC ¶¶ 41-42, 174). Because the conspiracy allegations against
the Individual Village Defendants are conclusory, Plaintiff’s
conspiracy claim asserted against them cannot survive the Village
Defendants’ motion to dismiss.
To establish a conspiracy claim under Section 1983,

Plaintiff must allege “(1) an agreement between two or more state
actors, or between a state actor and a private party; (2) to act
in concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.” Tankleff
v. County of Suffolk, No. 09-CV-1207, 2010 WL 5341929, at *11
(E.D.N.Y. Dec. 21, 2010) (quoting Pangburn v. Culbertson, 200 F.3d
65, 72 (2d. Cir. 1999)); see also Ciambrello v. County of Nassau,

11 The Individual County Defendants do not move to dismiss the
292 F.3d 307, 324–25 (2d Cir. 2002). Additionally, to survive a
motion to dismiss, the complaint must allege facts that plausibly
suggest a “meeting of the minds, such that defendants entered into

an agreement, express or tacit, to achieve the unlawful end.”
Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)
(quoting Warren v. Fischl, 33 F. Supp. 2d 171, 177 (E.D.N.Y.
1999)); see also Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003).
While “conspiracies are by their very nature secretive operations,
and may have to be proven by circumstantial, rather than direct,
evidence,” Pangburn, 200 F.3d at 72, the plaintiff must still
allege facts beyond “conclusory, vague, or general allegations” to
assert the existence of an agreement to inflict constitutional
injury, Ciambriello, 292 F.3d at 324-25. Thus, dismissal is proper
if the complaint “contain[s] only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to

deprive the plaintiff of his constitutional rights.” Ciambriello,
292 F.3d at 325 (citation omitted).
The SAC fails to allege an agreement among the Individual
County and Village Defendants to act in concert to violate
Plaintiff’s rights. Indeed, taking a step back, more than three
years into this litigation, and after amending his complaint twice,
Plaintiff’s allegations against the Village remain sparse. As to
Melendez, Plaintiff alleges that Melendez was aware that Larrea,
an acquaintance, lied to his NYPD supervisors about the fact he
was intoxicated the night of the incident, thus providing Melendez
a motive to cover up Larrea’s intoxication and blame Plaintiff for
the murder. But speculation that Melendez was motivated to

conspire is not enough. See Rosario, 2019 WL 4450685, at *7
(finding allegations that an eyewitness was motivated to conspire
with law enforcement to incriminate plaintiff in shooting
insufficient to make out conspiracy claim at pleading stage).
Rather, Plaintiff must “allege with at least some degree of
particularity overt acts which [Defendant Melendez] engaged in
which were reasonably related to the promotion of the alleged
conspiracy.” Myers v. County of Nassau, 825 F. Supp. 2d 359, 368
(E.D.N.Y. 2011). Plaintiff does not allege Melendez took any acts
to further the supposed conspiracy, and his additional conspiracy-
related allegations, with the exception of the Zimmer-Baldwin
interview, all relate to investigative actions undertaken by

Individual County Defendants.
Nor can the alleged suppression of the Zimmer-Baldwin
Interview establish a conspiracy. Plaintiff alleges “[t]he
Zimmer-Baldwin Interview proves the existence of a conspiracy
between Freeport and Nassau that extended from immediately after
the homicide for many months through [P]laintiff’s conviction.”
(SAC ¶ 174.) This is the type of vague and conclusory assertion
that cannot survive a motion to dismiss. See Sharp v. Town of
Greece, No. 09-CV-6452, 2010 WL 1816639, at *7 (W.D.N.Y. May 3,
2010) (finding allegation that defendant “took action pursuant to
an agreement” insufficient to make out a conspiracy claim).
Plaintiff does not allege any facts to tie Zimmer to the alleged

conspiracy to deprive Plaintiff of a fair trial, such as contact
or coordination between Zimmer and other Individual County
Defendants subject to the conspiracy claim. See Buari, 2021 WL
1198371, at 19 (“The Court cannot infer that these individuals,
without having spoken to one another, all acted in concert with
the goal of depriving [the plaintiff] of his constitutional
rights.”) There are no facts in the SAC supporting Plaintiff’s
allegation that there was a meeting of the minds, rendering his
conspiracy claim against the Individual Village Defendants
untenable. Even when confronted with plausibly alleged
constitutional violations, courts routinely dismiss conspiracy
claims where the plaintiff fails to allege facts from which a

meeting of the minds can be inferred. See, e.g., Hickey-McAllister
v. Brit. Airways, 978 F. Supp. 133, 139 (E.D.N.Y. 1997) (“Because
plaintiff has alleged no facts at all from which a meeting of the
minds between Anton and Smith on a course of action intended to
deprive plaintiff of her constitutional rights can be inferred,
her allegations are insufficient to survive a motion for
dismissal.”); Warren, 33 F. Supp. 2d at 177 (finding insufficient
allegation of conspiracy despite plaintiff’s specific claims of
conspiracy to alter tapes and create illegal search warrants, where
there was no basis for the assertion that defendants actually
conspired together to bring about these actions); Romer, 119 F.
Supp. 2d at 364.

Accordingly, the Village’s motion to dismiss
Plaintiff’s conspiracy claim is GRANTED.
8. Failure to Intervene (Claim 12)
“It is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Anderson v. Branen, 17
F.3d 552, 557 (2d Cir. 1994). To plead a failure to intervene
claim, a plaintiff must allege “(1) the officer had a realistic
opportunity to intervene and prevent the harm; (2) a reasonable
person in the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer

does not take reasonable steps to intervene.” Guerrero v. City of
New York, No. 16-CV-0516, 2017 WL 2271467, at *3 (S.D.N.Y. May 23,
2017) (quoting Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512
(S.D.N.Y. 2008), aff’d sub nom. Jean-Laurent v. Wilkerson, 61 F.
App’x 18 (2d Cir. 2012)). Further, the Court recognizes that “a
failure to intervene theory of liability is inapplicable where a
defendant is a direct participant in the alleged primary
violation,” but aligns itself with other courts that have permitted
plaintiffs to plead failure to intervene claims in the alternative,
as Plaintiff does here. Guerrero, 2017 WL 2271467, *4 (collecting
cases).
The Court finds Plaintiff has plausibly alleged that

the Individual County Defendants had a reasonable opportunity to
intervene to prevent various constitutional harms, including, for
example, undue coercion in connection with Plaintiff’s
interrogation, but failed to take reasonable steps to intervene.
However, because Plaintiff fails to allege any facts showing either
of the Individual Village Defendants, given their limited
involvement in the investigation according to the SAC, had a
“realistic opportunity to intervene and prevent” the alleged
constitutional harm, Plaintiff’s claim against the Village is
dismissed.
Accordingly, the County’s motion to dismiss Plaintiff’s
failure to intervene claim is DENIED, and the Village’s motion to

dismiss Plaintiff’s failure to intervene claim is GRANTED.
9. Unlawful Pre-Trial Detention under Russo (Claim 11)
Although false arrest and unlawful detention
claims generally may be considered together,
see, e.g., Little v. City of New York, 487 F.
Supp. 2d 426, 437 (S.D.N.Y. 2007) (“False
arrest is simply an unlawful detention or
confinement brought about by means of an
arrest rather than in some other way and is in
all other respects synonymous with false
imprisonment,”), the two claims have grown to
be distinct in the Second Circuit, under
certain circumstances. See Russo v. City of
Bridgeport, 479 F.3d 196 (2d Cir. 2007).
Jackson v. City of New York, 29 F. Supp. 3d 161, 178 (E.D.N.Y.
2014). To prevail on an unlawful pre-trial detention claim, a
plaintiff must show “(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.” Delamota v. City of New
York, 683 F. App’x 65, 67 (2d Cir. 2017) (summary order) (quoting
Russo, 479 F.3d at 205 (internal quotation marks omitted)).
In Russo, the police arrested the plaintiff for first-
degree robbery based on a cashier’s identification of the plaintiff
in a photo line-up. Russo, 479 F.3d at 199. The crime was also
recorded on videotape by a security camera, in which the robber’s
left arm and parts of his forearms, all free of tattoos, were
depicted. Id. However, the plaintiff had prominent tattoos on

his forearms, hands, neck, and legs. Id. at 199-200.
Nevertheless, during the subsequent seven months that the
plaintiff was incarcerated, the officers did not provide the
plaintiff with a copy of the videotape, despite numerous requests,
and misrepresented that the videotape showed the perpetrator had
body tattoos in an effort to secure the plaintiff’s confession.
Id. at 200. When an attorney for the city finally went to retrieve
the videotape, he found it locked in one of the officer’s desk
drawers. Id. at 201. After viewing it, the city dropped the
charges. Id. at 202. Based on these facts, the Second Circuit
held the defendants violated the plaintiff’s Fourth Amendment
right to be free from “sustained detention stemming directly from

the law enforcement officials’ refusal to investigate available
evidence.” Id. at 208.
This case does not fit within the Russo framework, as
there was no “definitive evidence” in the Village’s or County’s
possession that could have proven that Plaintiff was not the
shooter. Husbands ex rel. Forde v. City of New York, 335 F. App’x
124, 129 (2d Cir. 2009); see also Harewood v. Braithwaite, 64 F.
Supp. 3d 384, 403 (E.D.N.Y. 2014) (“A failure to investigate
evidence that is only arguably exculpatory does not shock the
conscience.”). Rather, “most of the evidence was testimonial, and
while the evidence was conflicting, some of it specifically
identified [Plaintiff]” as the shooter. Wilson v. City of New

York, 480 F. App’x 592, 595 (2d Cir. 2012). Because “Russo has
been narrowly construed to involve situations where a law
enforcement official has mishandled or suppressed readily
available exculpatory evidence,” like the videotape that
definitively exonerated the plaintiff in Russo, the Court finds
Plaintiff has not plausibly alleged a claim for unlawful pre-trial
detention. Jackson, 29 F. Supp. 3d at 179 (emphasis added).
Accordingly, Defendants’ motion to dismiss Plaintiff’s
claim for unlawful pre-trial detention is GRANTED.
D. New York State Law Claims
1. Malicious Prosecution (Claim 6)
In arguing for dismissal of the New York state law

malicious prosecution claim, the County reiterates the same
arguments it made in connection with Plaintiff’s Section 1983
malicious prosecution claim. Because those arguments failed, and
because the County does not explain why the outcome should be
different under New York state law, the County’s motion to dismiss
this claim is DENIED.
The Village Defendants move for dismissal of Plaintiff’s
malicious prosecution claim on different grounds, arguing that the
County, not the Village initiated the prosecution against
Plaintiff. (Village Defs. Br. at 23-24.) Plaintiff argues in
response that dismissal “would be premature.” (Pl. Opp. to Village
Defs. at 19.) However, the Court finds that it is well established

under New York law that a village is not liable for malicious
prosecution where it does not prosecute the plaintiff. See Roche
v. Village of Tarrytown, 309 A.D.2d 842, 843, 766 N.Y.S.2d 46, 47
(N.Y. App. Div. 2d Dep’t 2003) (“[S]ince the Village did not
prosecute Roche, the Village cannot be charged with malicious
prosecution.”); O’Dell v. County of Livingston, 174 A.D.3d 1307,
1308, 103 N.Y.S.3d 730, 732 (N.Y. App. Div. 4th Dep’t 2019)
(“Inasmuch as the Village did not prosecute plaintiff, the Village
cannot be sued for malicious prosecution.”). Accordingly, the
Village’s motion to dismiss this claim is GRANTED.
2. False Imprisonment (Claim 7)

Arguing for dismissal of Plaintiff’s common law false
imprisonment claim,12 the County reiterates the arguments that it
made in connection with Plaintiff’s claim for malicious
prosecution, i.e., the County had probable cause to arrest
Plaintiff based on the Witherspoon statements. Having found that
Plaintiff has plausibly alleged the County did not have probable
cause to defeat Plaintiff’s malicious prosecution claim, the Court
concludes the same outcome is warranted as to Plaintiff’s common
law false imprisonment claim, even though the probable cause
showing necessary to defeat a false arrest claim is less than that
necessary to defeat a malicious prosecution claim. Accordingly,
the County’s motion to dismiss the false imprisonment claim is

DENIED.
Because the Village did not arrest or detain Plaintiff,
however, the Village’s motion to dismiss Plaintiff’s false
imprisonment claim is GRANTED.

12 The Court clarifies that Plaintiff’s false imprisonment claim
relates to the time he spent incarcerated for the murder of Steven
3. Intentional and/or Negligent Infliction of Emotion
Distress (Claim 8)
Plaintiff asserts a claim for intentional and/or
negligent infliction of emotional distress against the County and
Village. Under New York state law, the tort of intentional
infliction of emotional distress has four elements: “(1) extreme
and outrageous conduct, (2) intent to cause severe emotional
distress, (3) a causal connection between the conduct and the
injury, and (4) severe emotional distress.” Grice v. McMurdy, 498
F. Supp. 3d 400, 414 (W.D.N.Y. 2020) (quoting A.M. ex rel. J.M. v.

N.Y.C. Dep’t of Educ., 840 F. Supp. 2d 660, 690 (E.D.N.Y. 2012)).
As this Court has recognized in earlier wrongful conviction suits,
it is well settled under New York law that the “circumstances under
which recovery may be had for purely emotional harm are extremely
limited . . . .” Tankleff v. County of Suffolk, No. 09-CV-1207,
2010 WL 5341929, at *14 (E.D.N.Y. Dec. 21, 2010) (quoting Jason v.
Krey, 60 A.D.3d 735, 875 N.Y.S.2d 194, (N.Y. App. Div. 2d Dep’t
2009)); see also Kogut v. County of Nassau, Nos. 06-CV-6695, 06-
CV-6720, 2009 WL 5033937, at *12-13 (E.D.N.Y. Dec. 11, 2009)
(Seybert, J.). Moreover, the New York Court of Appeals has
“questioned whether the doctrine of liability for intentional
infliction of extreme emotional distress should be applicable

where the conduct complained of falls well within the ambit of
other traditional tort liability,” such as claims for false arrest
or malicious prosecution, a proposition that has been consistently
applied by lower state courts and federal courts applying New York
law. Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375, 404
(S.D.N.Y. 2009) (quoting Fischer v. Maloney, 43 N.Y.2d 553, 557,

402 N.Y.S.2d 991, 992–93, 373 N.E.2d 1215 (N.Y. 1978)); see also
Moore v. City of New York, 219 F. Supp. 2d 335, 339 (E.D.N.Y.
2002).
Here, Plaintiff alleges conduct that fits well within
traditional tort theories of false arrest and malicious
prosecution. Thus, his claim for intentional infliction of emotion
distress “will not fly.” Yang Feng Zhao, 656 F. Supp. 2d at 405;
Moore, 219 F. Supp. 2d at 340 (dismissing intentional infliction
of emotional distress claims where they “overlap[ped]” with
traditional tort claims for false arrest and malicious
prosecution). The Court finds unpersuasive the cases cited by
Plaintiff because they fail to address the New York Court of

Appeals’ concern that intentional infliction of emotional distress
claims are not the appropriate vehicle when a plaintiff’s
allegations fit within the mold of traditional tort theories. (Pl.
Opp. to County Defs. at 29-30.)13
Plaintiff’s claim for negligent infliction of emotional
distress is an even greater stretch. In general, New York courts
have exhibited a “longstanding reluctance to recognize causes of

13 See Newton v. City of New York, 566 F. Supp. 2d 256, 281 (S.D.N.Y.
2008); Hincapie, 2020 WL 362705 at *10; see also Grega v.
action for negligent infliction of emotional distress, especially
in cases where the plaintiff suffered no independent physical or
economic injury . . . . [because] tort liability is not a panacea

capable of redressing every substantial wrong.” Broadnax v.
Gonzalez, 2 N.Y.3d 148, 153, 809 N.E.2d 645, 648, 777 N.Y.S.2d
416, 419 (N.Y. 2004) (carving out an exception to the general rule,
and allowing expectant mothers to recover damages for emotional
distress in cases involving medical malpractice resulting in
miscarriage or stillbirth); see also Mobley v. King, 4 N.Y.3d 627,
637, 830 N.E.2d 301, 304, 797 N.Y.S.2d 403, 406 (N.Y. 2005)
(recognizing the holding in Broadnax as “a narrow one, intended to
permit a cause of action where otherwise none would be available
to redress the wrongdoing that resulted in a miscarriage or
stillbirth”). Here, Plaintiff alleges intentional, not negligent,
police misconduct. (See SAC ¶ 168 (alleging “deliberate conduct

of defendants” caused Plaintiff emotional distress).) As such,
the conduct alleged here does not fit within the narrow band of
negligent emotional distress cases recognized under New York law.
Accordingly, Defendants’ motions to dismiss Plaintiff’s
intentional and/or negligent infliction of emotional distress
claims are GRANTED.
* * *
The Court has considered the parties’ remaining
arguments and finds them to be without merit or mooted by this
Memorandum and Order.

CONCLUSION
Thus, for the foregoing reasons, IT IS ORDERED that the
Court:
(1) GRANTS the Village Defendants’ motion to dismiss in
its entirety; and
(2) GRANTS IN PART and DENIES IN PART the County
Defendants’ motion to dismiss, with the motion:
(a) GRANTED with respect to all claims asserted
against the Mullen Estate;
(b) GRANTED with respect to Claims 4, 8, and 11;
(c) GRANTED IN PART with respect to Claim 6, such
that the Plaintiff’s claim based on the widespread

practice theory is dismissed, but that Plaintiff’s
claim based on the failure-to-train and failure-
to-supervise theories remains; and
(d) DENIED with respect to Claims 1, 2, 3, 5, 6, 7,
10, and 12.
IT IS FURTHER ORDERED that WITHIN FIFTEEN (15) DAYS FROM
THE DATE OF THIS ORDER, Plaintiff is directed to file a third
amended complaint that omits the stricken exhibits and any
reference to them in the body of the complaint, along with a
redline version (filed as an attachment) reflecting the changes.
Plaintiff is not permitted to amend his pleadings to remedy the
deficiencies identified herein; rather, the third amended

complaint is to reflect the Court’s rulings, consistent with this
Memorandum and Order.

SO ORDERED.
/s/ JOANNA SEYBERT _____
Joanna Seybert, U.S.D.J.

Dated: July 28 , 2021
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306556. Public record. Not legal advice.