# Lazare v. City of New York

> District Court, E.D. New York · December 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10307246

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 21, 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/10307246

## How later opinions describe it (automated extraction)

- noting “the New York rule that ‘[a]n arrest, lawful in its inception, may nevertheless be rendered void ab initio for purposes of a false imprisonment action if there is an unnecessary delay in arraignment”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------- x
TRAVIS LAZARE, :
:
Plaintiff, :
:
-against- : MEMORANDUM AND ORDER
:
THE CITY OF NEW YORK, et al, : No. 19-cv-2274 (KAM)(PK)
:
Defendants. :
---------------------------------- x
MATSUMOTO, United States District Judge:
Plaintiff Travis Lazare (“Plaintiff”) commenced this
section 1983 action against Defendant Jason Estrada (“Defendant”)1
in connection with Plaintiff’s arrest on March 14, 2018, alleging,
inter alia, federal and state law claims for false arrest.2
Presently before the Court is Defendant’s motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil

1 Pursuant to a stipulation of dismissal, dated December 4, 2019, which was
ordered by this Court on December 5, 2019, Plaintiff withdrew all claims against
Defendants the City of New York, New York City Police Department, and Ali
Cheikhali. (See ECF No. 38, Stipulation of Dismissal; ECF No. 39, Order re
Stipulation of Dismissal.)
2 By letter filed on September 20, 2019, Plaintiff had clarified for the Court
that he was seeking recovery for (1) false arrest, under federal and state law;
(2) “negligent hiring, training, supervision, and retention,” under state law;
and (3) “for being held without a probable cause hearing for a time greater
than 24 hours.” (See ECF No. 29.) Plaintiff then withdrew his official-
capacity and negligence claims against Defendant. (See ECF No. 45, Plaintiff’s
Opposition to Defendant’s Motion to Dismiss, at 11; ECF No. 78, Plaintiff’s
Opposition to Defendant’s Motion for Summary Judgment (“Pl. Opp.”), at 10.)
What remain are Plaintiff’s individual-capacity claims against Defendant for
false arrest, under federal and state law. The Court does not consider
Plaintiff’s claims related to his allegedly excessive detention pre-arraignment
and pre-probable cause hearing for the reasons discussed infra.
Procedure (“Rule 56”).3 For the reasons set forth below,
Defendant’s motion for summary judgment is GRANTED.
BACKGROUND

As an initial matter, the Court notes that Plaintiff
failed to cite to any admissible evidence in his opposing 56.1
Statement and thus has not disputed Defendant’s 56.1 Statement.
Instead, Plaintiff merely noted he “cannot admit or deny” eight of
the eleven paragraphs and admitted to the other three paragraphs.
(See ECF No. 77, Plaintiff’s Rule 56.1 Statement (“Pl. 56.1
Stmt.”).) Local Civil Rule 56.1 provides that “[e]ach numbered
paragraph in the statement of material facts set forth in the
statement required to be served by the moving party will be deemed
to be admitted for purposes of the motion unless specifically
controverted by a correspondingly numbered paragraph in the
statement required to be served on the opposing party” and that

“each statement controverting any statement of material fact[ ]
must be followed by citation to evidence which would be admissible
. . . .” Local Civ. R. 56.1(c)‒(d). Therefore, the following

3 In support of his motion for summary judgment, Defendant submitted the
following: ECF No. 74, Defendant’s Rule 56.1 Statement, ECF No. 73, the
Declaration of Jason Estrada, dated June 10, 2020, and Exhibit A attached
thereto, the arrest report prepared by Defendant in connection with Plaintiff’s
March 14, 2018 arrest. In opposition to Defendant’s motion for summary
judgment, Plaintiff submitted the following: ECF No. 77, Plaintiff’s Rule 56.1
Statement, ECF No. 76, the Declaration of Andrew C. Laufer, and exhibits
attached thereto, including Plaintiff’s November 30, 2018 50-h examination
transcript.
facts, taken from Defendant’s Rule 56.1 Statement, are deemed
admitted.
On March 14, 2018, Defendant received a License Plate

Reader (“LPR”) notification that the vehicle registered to New
York State License Plate Number HSW4854 (“the Vehicle”) was
reported stolen.4 (ECF No. 74, Defendant’s Rule 56.1 Statement
(“Def. 56.1 Stmt.”) ¶ 2; ECF No. 73, Declaration of Jason Estrada
(“Def. Decl.”) ¶ 2; Def. Decl. Exhibit A.) At approximately 7:33
p.m., Defendant observed the Vehicle operating on the Belt Parkway
near Exit 9, in Brooklyn, New York. (Def. 56.1 Stmt. ¶ 3; Def.
Decl. Exhibit A.) Defendant activated his emergency lights and
initiated a stop of the Vehicle. (Def. 56.1 Stmt. ¶ 4; Def. Decl.
Exhibit A.) Plaintiff was a passenger in the Vehicle. (Def. 56.1
Stmt. ¶ 5; ECF No. 23, Amended Complaint (“Amended Compl.”) ¶ 17.)
Defendant approached the Vehicle and asked the driver to produce

4 Plaintiff did not demonstrate that the statements in paragraphs 1 to 8 of
Defendant’s 56.1 Statement are genuinely disputed by stating that he could
neither admit nor deny due to his lack of knowledge or information. (See Pl.
56.1 Stmt. ¶¶ 1‒8.) See Scarpinato v. 1770 Inn, LLC, No. 13-cv-0955(JS), 2015
WL 4751656, at *2 n.3 (E.D.N.Y. Aug. 11, 2015) (“Rather than respond
appropriately to many of the factual statements in Defendants’ Rule 56.1
Statement, Plaintiff’s 56.1 statement instead ‘denies possessing knowledge or
information sufficient to form a belief as to the truth or the veracity’ of
Defendants’ statements. . . . While the Court appreciates that such a response
may be appropriate before discovery is concluded, such a response is flatly
inappropriate at this stage of the case. Indeed, in the context of a local
56.1 statement, an answer that ‘Plaintiff can neither admit nor deny this
statement based upon the factual record’ is not a sufficient response to
establish a disputed fact. . . . Local Rule 56.1 is clear: ‘Each numbered
paragraph in the statement of material facts set forth in the statement required
to be served by the moving party will be deemed to be admitted for purposes of
the motion unless specifically controverted.’ LOCAL CIV. R. 56.1(c).
Accordingly, any of the Defendants’ Rule 56.1 statements that are not
specifically controverted are deemed admitted.”) (internal citations and
quotation marks omitted).
his driver’s license. (Def. 56.1 Stmt. ¶ 6; Def. Decl. Exhibit
A.) Defendant ran a search of the driver’s license in the New
York State Police Information Network (“NYSPIN”) database, which

revealed that it was suspended. (Def. 56.1 Stmt. ¶ 7; Def. Decl.
Exhibit A.) Defendant also confirmed using the NYSPIN database
that the Vehicle was still actively reported stolen. (Def. 56.1
Stmt. ¶ 8; Def. Decl. Exhibit A.) Defendant placed all three
occupants of the Vehicle, including Plaintiff, under arrest.5
(Def. 56.1 Stmt. ¶ 9; Def. Decl. Exhibit A; Pl. 56.1 Stmt. ¶ 9.)
Plaintiff was charged with Unauthorized Use of a Motor Vehicle in
violation of New York State Penal Law § 165.05(1).6 (Def. 56.1
Stmt. ¶ 10; Def. Decl. Exhibit A; Pl. 56.1 Stmt. ¶ 10.) Plaintiff
was held in custody for approximately 26 hours before being
released.7 (Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Stmt. ¶ 11; ECF No. 76,
Declaration of Andrew C. Laufer (“Laufer Decl.”) Exhibit C.)

5 Plaintiff admits that he was placed under arrest. (Pl. 56.1 Stmt. ¶ 9.)
6 Plaintiff admits that he was charged with Unauthorized Use of a Motor Vehicle
in violation of New York State Penal Law § 165.05(1). (Pl. 56.1 Stmt. ¶ 10.)
Although Plaintiff “den[ies] that he was operating the motor vehicle” and states
that he “was a rear seated passenger within said vehicle,” his status as the
passenger, not the operator, of the Vehicle is not in dispute. (See Def. 56.1
Stmt. ¶ 5 (“Plaintiff was a passenger inside of the Vehicle.”).) In addition,
the Court finds that whether he was a front seat passenger or a rear seat
passenger is not an issue of material fact.
7 There is no genuine dispute as to the length of time for which Plaintiff was
held in custody post arrest. The Court finds that “26 hours and 22 minutes”
and “approximately 26 hours” are synonymous. (Def. 56.1 Stmt. ¶ 11; Pl. 56.1
Stmt. ¶ 11.) In addition, whether Plaintiff was released “as all charges
against him were dismissed,” (Pl. 56.1 Stmt. ¶ 11), is not an issue of material
fact, as the eventual dismissal of the charges has no bearing on whether there
was probable cause to arrest Plaintiff. Defendant has a complete defense to
Plaintiff’s federal and state law false arrest claims if there was probable
cause to arrest Plaintiff. See Paulin v. Figlia, 916 F. Supp. 2d 524, 531
LEGAL STANDARD
Summary judgment shall be granted to a movant who
demonstrates “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A fact is ‘material’ for these purposes
when it ‘might affect the outcome of the suit under the governing
law.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)), cert denied, 565 U.S. 1260 (2012). No
genuine issue of material fact exists “unless there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. . . . If the evidence is merely colorable,
. . . or is not significantly probative, . . . summary judgment
may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted).

When bringing a motion for summary judgment, the movant
carries the burden of demonstrating the absence of any disputed
issues of material fact. Rojas, 660 F.3d at 104. In deciding a
summary judgment motion, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. Flanigan
v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

(S.D.N.Y. 2013) (“Eventual dismissal of the charges does not affect whether
there was probable cause at the time of the arrest.”).
587 (1986)), cert. denied, 534 U.S. 1065 (2001). A moving party
may indicate the absence of a factual dispute by, inter alia,
“showing . . . that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B).
Once the moving party has met its burden, the non-movant
must identify probative, admissible evidence on the record from
which a reasonable factfinder could find in his or her favor.
Anderson, 477 U.S. at 256–57. The non-movant must present more
than a “scintilla of evidence,” Del. & Hudson Ry. Co. v. Consol.
Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson,
477 U.S. at 252), or “some metaphysical doubt as to the material
facts,” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.
1993) (internal quotation marks omitted) (quoting Matsushita Elec.
Indus. Co., 475 U.S. at 586-87), and cannot rely on the allegations
in his or her pleadings, conclusory statements, or on “mere

assertions that affidavits supporting the motion are not
credible,” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.
1996) (internal citations omitted). Summary judgment “therefore
requires the nonmoving party to go beyond the pleadings and by
[his or] her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks
omitted).
DISCUSSION
I. Section 1983
Section 1983 provides that:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured . . . .
42 U.S.C. § 1983. Section 1983 “is not itself a source of
substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979). See also Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999). To maintain a Section 1983
claim, a plaintiff must allege two elements. First, “the conduct
complained of must have been committed by a person acting under
color of state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir. 1994) (citation omitted). Second, “the conduct complained of
must have deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Id.
See also McCugan v. Aldana-Brnier, 752 F.3d 224, 229 (2d Cir.
2014).
II. False Arrest8
With respect to Plaintiff’s false arrest claims,
Defendant argues that there are no disputed issues of material

fact and that he is entitled to judgment as a matter of law.
Specifically, Defendant contends that there was probable cause for
Plaintiff’s arrest, or, in the alternative, Defendant is entitled
to qualified immunity because there was, at a minimum, arguable
probable cause for the arrest. (See ECF No. 75, Memorandum in
Support of Defendant’s Motion for Summary Judgment (“Def. Mem.”),
at 1.) Plaintiff argues that Defendant lacked probable cause and
that even if there was probable cause for Plaintiff’s arrest, the
arrest was rendered void ab initio because Plaintiff’s arraignment
was unreasonably delayed. (See Pl. Opp. at 5‒8.)
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from unreasonable

seizures, including arrest without probable cause, . . . is
substantially the same as a claim for false arrest under New York
law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal
citation omitted); see also Jenkins, 478 F.3d at 88. Under New
York law, the elements of a false arrest claim are: (1) defendant

8 Plaintiff alleges false arrest and imprisonment in his Amended Complaint.
(See Amended Compl. ¶¶ 25‒37.) “False arrest is simply false imprisonment
accomplished by means of an unlawful arrest. . . . False arrest and false
imprisonment are largely synonymous because an imprisonment starts at the moment
of arrest.” Jenkins v. City of New York, 478 F.3d 76, 88 n.10 (2d Cir. 2007)
(citing 59 N.Y. Jur.2d False Imprisonment § 1).
intended to confine plaintiff; (2) plaintiff was conscious of the
confinement; (3) plaintiff did not consent to the confinement; and
(4) the confinement was not otherwise privileged. Singer v. Fulton
Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).

The existence of probable cause constitutes a “complete
defense” to a false arrest claim under Section 1983 and New York
state law. Alvarado v. City of New York, 453 F. App’x 56, 58 (2d
Cir. 2011) (citing Weyant, 101 F.3d at 852). “Probable cause to
arrest exists when the authorities have knowledge or reasonably
trustworthy information sufficient to warrant a person of
reasonable caution in the belief that an offense has been committed
by the person to be arrested.” McGuire v. City of New York, 142
F. App’x 1, 1 (2d Cir. 2005) (citations and internal quotation
marks omitted). When assessing whether probable cause existed,
the reviewing court “must consider [only] those facts available to

the officer at the time of the arrest and immediately before it.”
Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (alteration
in original) (internal quotation marks omitted) (quoting Panetta
v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)); see also Jaegly v.
Couch, 439 F.3d 149, 153 (2d Cir. 2006) (“[T]he probable cause
inquiry is based upon whether the facts known by the arresting
officer at the time of the arrest objectively provided probable
cause to arrest.”). Courts look to the “totality of the
circumstances” in assessing whether a defendant had probable
cause, and note that “probable cause is a fluid concept—turning on
the assessment of probabilities in particular factual contexts—
not readily, or even usefully, reduced to a neat set of legal
rules.” Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
(citing Illinois v. Gates, 462 U.S. 213, 232 (1983)); see also
Stansbury, 721 F.3d at 89 (“A court examines each piece of evidence

and considers its probative value, and then look[s] to the totality
of the circumstances to evaluate whether there was probable cause
to arrest and prosecute the plaintiff.”) (citations and internal
quotation marks omitted).
Based on the undisputed facts in the record, the Court
finds that there were sufficient facts to establish probable cause
at the time of Plaintiff’s arrest. Plaintiff was a passenger in
the Vehicle, (Def. 56.1 Stmt. ¶ 5; Amended Compl. ¶ 17), Defendant
received a LPR notification that the Vehicle was reported stolen,

(Def. 56.1 Stmt. ¶ 2; Def. Decl. ¶ 2; Def. Decl. Exhibit A), and
Defendant used the NYSPIN database to confirm that the Vehicle was
still actively reported stolen. (Def. 56.1 Stmt. ¶ 8; Def. Decl.
Exhibit A.) Defendant was reasonable in relying on the information
provided by the LPR and NYSPIN databases to conclude that Plaintiff
was riding in a stolen vehicle. See Apostol v. City of New York,
No. 11-cv-3841(RRM), 2014 WL 1271201, at *4 (“NYSPIN provides
reasonably trustworthy information” to support probable cause for
arrest), aff’d, 607 F. App’x. 105 (2d Cir. 2015).
Additionally, under New York Penal Law § 165.05(1),9 a
person who rides in a vehicle without the consent of the owner is
presumed to know that he does so without the owner’s consent.10

Therefore, given the confirmation from the NYSPIN database that
the Vehicle was still actively reported stolen, and the statutory
presumption allowing the knowledge of lack of consent to be imputed
to a person who rides in a stolen vehicle, it was reasonable for
Defendant to believe that Plaintiff was engaging in unauthorized
use of the Vehicle in the third degree, in violation of New York
Penal Law § 165.05(1).
Other than a bare recitation of the law on probable
cause, Plaintiff’s only argument for lack of probable cause is
that he was not aware that the Vehicle was stolen. (See Pl. Opp.

9 New York Penal Law § 160.05(1) states, “A person is guilty of unauthorized
use of a vehicle in the third degree when . . . [k]nowing that he does not have
the consent of the owner, he takes, operates, exercises control over, rides in
or otherwise uses a vehicle. A person who engages in any such conduct without
the consent of the owner is presumed to know that he does not have such consent
. . . .” N.Y. Penal Law § 160.05(1) (emphasis added).
10 See People v. McCaleb, 25 N.Y.2d 394, 400‒01 (1969) (holding that section
165.01(1)’s presumption satisfies due process, reasoning: “[t]here is a ‘fair’,
‘natural’ and ‘rational’ connection between the fact that a car is being used
without permission of its owner, and the presumption that those in the car,
driver and passengers alike, are aware they do not have permission. The
likelihood of innocent use or occupation of a ‘stolen’ vehicle is minimal, and
in the rare instance could be easily explained, presenting no more than a light
burden of going forward to make such explanation. . . . In that event a heavy
burden will have been placed on the prosecution to negative this rebuttal of
the presumption, in order to sustain conviction based on proof beyond a
reasonable doubt . . . . But the unexplained use or presence in a stolen vehicle
has a ‘sinister significance’ sufficient to justify the presumption that the
unauthorized use is with knowledge.”); People v. Muriell, 128 A.D.2d 554, 555
(1st Dep’t 1987) (“The defendant's further claim that his mere presence in the
stolen vehicle did not provide a basis for his arrest is similarly without
merit, since Penal Law § 165.05(1) provides that such conduct constitutes the
offense of unauthorized use of a vehicle in the third degree.”).
at 5.) In support of his argument, Plaintiff cites to the
transcript of Plaintiff’s 50-h examination. (See Pl. Opp. at 5;
Laufer Decl. Exhibit B.) Whether Plaintiff had actual knowledge

that the Vehicle was stolen is relevant for determining the
sufficiency of the evidence to support a conviction of unauthorized
use of a vehicle in the third degree, but it has no bearing on
whether “the facts known by [Defendant] at the time of the arrest
objectively provided probable cause to arrest.”11 Jaegly, 439 F.3d
at 153. Because probable cause existed to arrest Plaintiff for
unauthorized use of a vehicle in the third degree, Plaintiff was
not falsely arrested.
Plaintiff also contends that even if there was probable
cause to arrest him, the arrest was void ab initio because his
arraignment was unnecessarily delayed. (See Pl. Opp. at 5‒8.)
See Watson v. City of New York, 92 F.3d 31, 35‒36 (2d Cir. 1996)

(noting “the New York rule that ‘[a]n arrest, lawful in its
inception, may nevertheless be rendered void ab initio for purposes
of a false imprisonment action if there is an unnecessary delay in
arraignment”) (citations omitted). See also id. at 37 (“[T]he
common law tort of false imprisonment includes a right to recover
for undue delay in arraignment.”). As to his § 1983 claim for

11 Because Plaintiff does not argue, nor is there admissible evidence to support,
that Plaintiff told Defendant, at the time of the arrest, that he did not know
that the Vehicle was stolen, the Court does not consider whether such denial
would have affected probable cause.
false arrest, because Plaintiff has failed to prove Defendant’s
personal involvement in his allegedly excessive pre-arraignment
detention, the claim fails as a matter of law. “It is well settled

in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006))
(internal quotation marks omitted). See Tortora v. City of New
York, 15-cv-3717(MKB), 2019 WL 9100369, at *15 (E.D.N.Y. Mar. 30,
2019) (holding, with regards to the plaintiff’s § 1983 false arrest
claims, that plaintiff “has failed to prove the personal
involvement of Defendants in his excessive pre-arraignment
detention claim, thus his arrest cannot be deemed void ab
initio.”), aff’d, 804 F. App’x. 35 (2d Cir. 2020).
Plaintiff’s state law claim for false arrest fails for

the same reason. Though “New York has set a more stringent limit”
than the federal constitutional standard requiring that an
arrestee be arraigned within forty-eight hours, “providing that a
time period over twenty-four hours is both unreasonable and
violative of N.Y. C.P.L. Section 140.20(1),” Sorensen v. City of
New York, No. 98-cv-3356(HR), 2003 WL 169775, at *3 (S.D.N.Y. Jan.
23, 2003), aff’d in part, appeal dismissed in part, 413 F.3d 292
(2d Cir. 2005), plaintiff has adduced no evidence whatsoever that
Defendant had any involvement in the delay in Plaintiff’s
arraignment. See Sorensen v. City of New York, Nos. 98-cv-
3356(HB), 98-cv-6725(HB), 2000 WL 1528282, *12‒*13 (S.D.N.Y. Oct.
16, 2000) (dismissing the plaintiff’s state law false imprisonment

claims against individual officers, reasoning that the officers,
whose involvement was over when their shifts ended, were, “as a
matter of law, not liable for the delay in arraignment.”).
Because there was probable cause for Plaintiff’s arrest,
and Plaintiff has failed to show Defendant’s personal involvement
in the alleged delay in his arraignment, Plaintiff’s federal and
state law claims for false arrest fail as a matter of law.12

12 To the extent Plaintiff is attempting to assert claims for excessive delay
in holding his arraignment or probable cause hearing that are separate and apart
from his false arrest claims, the Court need not consider them, as they were
not pleaded in the Amended Complaint. (See Amended Compl.) See DeFilippo v.
N.Y.S. Unified Court Sys., 223 F. App’x 45, 46 (2d Cir. 2007) (“[T]he District
Court did not abuse its discretion in prohibiting [plaintiff] from raising a
due process claim for the first time in his opposition to defendants' summary
judgment motion.”). In any event, such claims would fail as a matter of law.
As an initial matter, the Second Circuit has made clear that New York Criminal
Procedure Law § 140.20 does not provide a private right of action under which
a plaintiff may bring a claim for excessive pre-arraignment detention. Watson,
92 F.3d at 36‒37 (2d. Cir. 1996). Additionally, the Supreme Court has held a
jurisdiction that provides judicial determinations of probable cause “within 48
hours of arrest will, as a general matter, comply with the promptness
requirement” of the Constitution. Cnty. of Riverside v. McLaughlin, 500 U.S.
44, 56 (1991); see also Bryant v. City of New York, 404 F.3d 128, 138 (2d Cir.
2005) (“What is constitutionally required is that, except in extraordinary
circumstances, the arrestee be given a hearing into probable cause for the
arrest within 48 hours.”). Although a delay of less than forty-eight hours can
violate federal law “if the arrested individual can prove that his or her
probable cause determination was delayed unreasonably,” Cnty. of Riverside, 500
U.S. at 56, the “burden of showing that the delay was unreasonable” is squarely
on the plaintiff, Mazza v. City of New York, 98-cv-2343(ILG), 1999 WL 1289623,
at *10 (E.D.N.Y. July 13, 1999). Plaintiff was detained for approximately 26
hours, within the forty-eight-hour period, and thus presumptively reasonable.
And Plaintiff has failed to present any admissible evidence to support a finding
that the delay was unreasonable or that Defendant caused the delay.
III. Qualified Immunity
Defendant further asserts that even if the Court were to
find there was no probable cause, summary judgment is still
warranted because he is entitled to qualified immunity. (See Def.

Mem. at 9‒10.) Although the Court finds that Defendant is entitled
to summary judgment on the merits with respect to Plaintiff’s false
arrest claims, the Court also finds that, in the alternative,
Defendant is entitled to qualified immunity as a matter of law.
An officer is entitled to qualified immunity with
respect to a false arrest claim if he had arguable probable cause
for the arrest. Zalaski v. City of Hartford, 723 F.3d 382, 390
(2d Cir. 2013). “Arguable probable cause exists if either (a) it
was objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.” Id.

(citation and internal quotation marks omitted). As with the
probable cause inquiry, the court’s inquiry regarding arguable
probable cause is confined to the facts known to the arresting
officer at the time of the arrest. Betts v. Shearman, 751 F.3d
78, 82-83 (2d Cir. 2014); Picott v. Chatmon, No. 12-cv-7202, 2017
WL 4155375(ER), at *5 (S.D.N.Y. Sept. 18, 2017). The Second
Circuit has affirmed that “‘[a]rguable’ probable cause should not
be misunderstood to mean ‘almost’ probable cause. . . . If
officers of reasonable competence would have to agree that the
information possessed by the officer at the time of arrest did not
add up to probable cause, the fact that it came close does not
immunize the officer.” Jenkins, 478 F.3d at 87. Accordingly, an

officer is entitled to qualified immunity, as a matter of law,
only “if the undisputed facts and all permissible inferences
favorable to the plaintiff show . . . that officers of reasonable
competence could disagree on whether the probable cause test was
met.” McClellan v. Smith, 439 F.3d 137, 147-48 (2d Cir. 2006)
(alteration and emphasis in original) (citations and internal
quotation marks omitted).
The Court finds that Defendant is entitled to qualified
immunity. It was objectively reasonable for Defendant, once he
confirmed that the Vehicle was still actively reported stolen, to
presume, as the statute allows, that Plaintiff, who was riding in
the Vehicle, did so without the owner’s consent. The Court

therefore finds that it was objectively reasonable for Defendant
to believe that he had probable cause to arrest plaintiff and that
there was no deprivation of a constitutional right.
CONCLUSION
For the foregoing reasons, Defendant’ motion for summary
judgment is GRANTED. The Clerk of the Court is respectfully

requested to enter judgment in favor of Defendant and close this
case.
SO ORDERED.

Dated: Brooklyn, New York
December 21, 2021

________ /s/______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307246. Public record. Not legal advice.