Gerasimou v. Brenes

UNITED STATES DISTRICT COURT

BASTERN DISTRICT OF NEW YORK

ee

EVANGELOS GHRASIMOU,

Plaintiff, MEMORANDUM & ORDER

15-CV-6892 (EK) (VMS)

-against-

MICHAEL CILLIS, in his individual and

official capacities, and SCOTT

BRENES, in his individual and

official capacities,!

Defendants.

ee

ERIC KOMITEE, United States District Judge:

Plaintiff Evangelos Gerasimou brought this action

against the City of New York and two NYPD officers. He alleged

various civil-rights violations arising out of a traffic stop on

June 16, 2015, during which he was arrested on charges of

possessing a forged temporary license plate and operating a

vehicle without a license plate. The judge previously assigned

to the case ruled on Defendants’ summary judgment motion in

December 2019, following which only two counts remained: Count

Three, alleging false arrest in violation of 42 U.S.C. § 1983,

+ In the parties’ proposed joint pretrial order, Plaintiff agreed that

the “caption should be amended to include only defendants Brenes and Cillis,

as all other defendants were dismissed by the Court on December 17, 2019.”

ECF No. 34 at 1. The parties also stipulated that Sergeant Brenes’s first

name is “Scott,” not “John.” Id. Accordingly, the Clerk of Court is

directed to amend the caption of this action by removing the City of New York

as a defendant and replacing “John Brenes” with “Scott Brenes.”

and Count Four, alleging failure to intervene in violation of

42 U.S.C. §§ 1983 and 1986 — in both cases against the

individual officers.? ECF No. 28. No claims remain pending

against the City.?

The two officers now seek reconsideration of the

denial of summary judgment on the two remaining counts. They

argue that both claims are untenable because they had probable

cause to arrest and, in any event, their actions are shielded by

the doctrine of qualified immunity. See ECF No. 37. For the

following reasons, I grant their motion and dismiss the

remaining claims.

I. Background?’

On the night of June 16, 2015, Officer Cillis and

Sergeant Brenes were on patrol in Queens when they observed

2 These two remaining claims are both asserted against both officers;

they refer to “the Defendants” or “the Defendant Officers” together. See ECF

No. 1 42-55 (Count Three), 56-65 (Count Four).

> Plaintiff initially brought additional Section 1983 claims for

excessive force, abuse of process, malicious prosecution, seizure, and

municipal liability, as well as conspiracy claims under 42 U.S.C. § 1985. In

December 2019, Judge William F. Kuntz II granted summary judgment on all but

the false-arrest and failure to intervene claims. See ECF No. 28. This case

was transferred to the undersigned in January 2020.

4 The facts in this order are drawn from the parties’ submissions in

connection with the motion for summary judgment, including Defendants’ Local

Rule 56.1 Statement (“Def. 56.1” (ECF No. 21)), and Plaintiff's opposition

thereto (“Pl. 56.1” (ECF No. 25)). I construe the facts in the light most

favorable to Plaintiff. Citations to a party’s Rule 56.1 Statement

incorporate by reference the documents cited therein. For convenience,

Defendants’ supporting memorandum of law will be referred to as “Def. Br.”

(ECF No. 22) and Plaintiff’s opposition submission as “Pl. Opp.” (ECF No.

24).

Gerasimou’s vehicle. Gerasimou was driving a Mercedes-Benz that

did not have a “license plate displayed where a license plate

should be displayed on the vehicle.” Def. 56.1 ¶ 8; Pl.

56.1 ¶ 4. The officers stopped Gerasimou’s vehicle. Def. 56.1

¶ 10. As Officer Cillis approached the car, he saw a temporary

paper license plate taped to the interior of the rear window.

Id. ¶¶ 11-12; Pl. 56.1 ¶ 5. After obtaining Gerasimou’s

registration and insurance documents, the officers retrieved the

temporary plate from inside the rear window. Def. 56.1 ¶ 13.

Officer Cillis reviewed the temporary license plate

and noticed that certain words were faded or missing, and parts

of the first letter of the license plate’s alphanumeric sequence

were cut off. Id. ¶ 14; see also photograph below. Based on

this, Cillis believed that the document was forged. See

Criminal Complaint dated June 22, 2015, ECF No. 20-7. Cillis

testified that he had received NYPD training on how to recognize

forged documents, and that he had made previous arrests for

forgeries. Cillis Dep. 93:4-96:5, ECF No. 23-2. Sergeant

Brenes agreed with Cillis’s determination. Def. 56.1 ¶ 15.

Brenes testified that in his experience, officers assessing a

government document for forgery generally consider whether the

document appears to be a photocopy, whether any misspellings

appear, or, in the case of a paper tag, whether any information

is cut off. Id. ¶ 16; Brenes Dep. 58:16-59:1, 59:20-25, ECF No.

23-6. “If it’s cut off,” he explained, “then it’s been tampered

with.” Brenes Dep. 59:14-15.

The officers informed Gerasimou that the paper

license plate was a “fraudulent instrument” and a “fake plate.”

Def. 56.1 ¶ 18. Gerasimou responded that the license plate had

been issued by a Mercedes-Benz dealership in Delaware, and he

urged the officers to call the dealership to verify its

validity. Pl. 56.1 ¶¶ 14-15. The officers called the

dealership, but no one answered. Def. 56.1 ¶ 23. Officer

Cillis arrested Gerasimou for Possession of a Forged Instrument

in the Third Degree, in violation of N.Y.P.L. § 170.20, and for

operating a vehicle without a license place, in violation of

V.T.L. § 402-1. Id. ¶ 24. Gerasimou was arraigned on June 26,

2015, but the charges were ultimately dismissed. Id. ¶ 28-29.

Plaintiff testified at his deposition that the

Mercedes was, in fact, leased from the Delaware car dealership

and the temporary license plate was valid, and Defendants do not

dispute that contention at this stage. Gerasimou Dep. 26:12-

28:21, ECF No. 23-3.

Legal Standard

Summary judgment is appropriate if the record

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 if it might affect the outcome of the suit under the

governing law. An issue of fact is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263

F.3d 208, 212 (2d Cir. 2001).°

The movant has the burden of demonstrating the absence

of a question of material fact. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986). “If the moving party meets this

burden, the non-moving party must come forward with specific

facts showing that there is a genuine issue for trial.”

LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). If the

non-moving party fails to do so, the claim must be

dismissed. Entry of summary judgment is appropriate “against a

party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A motion for reconsideration “is generally not favored

and is properly granted only upon a showing of exceptional

circumstances.” Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55

(2d Cir. 2004). Typical grounds for reconsideration include “an

intervening change of controlling law, the availability of new

° Unless otherwise noted, when quoting judicial decisions this order

omits all alterations, citations, footnotes, and internal quotation marks.

evidence, or the need to correct a clear error or prevent

manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov,

Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013).

These limitations are less restrictive, however, when the

challenged decision is an interlocutory order such as the denial

of summary judgment. See Vornado Realty Tr. v. Marubeni

Sustainable Energy, Inc., 987 F. Supp. 2d 267, 276 (E.D.N.Y.

2013) (“Because the denial of a motion for summary judgment is

an interlocutory order, the trial court is free to reconsider

and reverse its decision for any reason it deems sufficient,

even in the absence of new evidence or an intervening change in

or clarification of the substantive law.”).

Discussion

The police officers contend that they are entitled to

qualified immunity on Plaintiff’s false-arrest and failure-to-

intervene claims. Under Supreme Court and Second Circuit

precedent, “[t]he doctrine of qualified immunity protects

government officials from suit if their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Gonzalez v. City of

Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). To determine

whether the doctrine applies, a court must assess: “(1) whether

[a] plaintiff has shown facts making out [a] violation of a

constitutional right; (2) if so, whether that right was ‘clearly

established’; and (3) even if the right was ‘clearly

established,’ whether it was ‘objectively reasonable’ for the

officer to believe the conduct at issue was lawful.” Id. “The

objective reasonableness test is met — and the defendant is

entitled to immunity — if officers of reasonable competence

could disagree on the legality of the defendant’s actions.”

Rohman v. N.Y.C. Transit Auth., 215 F.3d208, 216 (2d Cir. 2000).

This standard protects “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341 (1986). Because Defendants have invoked the doctrine of

qualified immunity, I review the merits of Plaintiff’s false-

arrest and failure to intervene claims through this lens.

A. Count Three: Section 1983 Claim for False Arrest

“Section 1983 provides a cause of action for the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws of the United States.” Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990). “A Section 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). Under New York law, a plaintiff

alleging false arrest must show that “(1) the defendant intended

to confine the plaintiff, (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the

confinement and (4) the confinement was not otherwise

privileged.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118

(2d Cir. 1995). Only the fourth element is at issue on the

current motions.

The existence of probable cause precludes a finding

for the plaintiff on that element; it is therefore a “complete

defense” to a false-arrest claim. See Covington v. City of New

York, 171 F.3d 117, 122 (2d Cir. 1999). Probable cause can

exist “even where it is based on mistaken information, so long

as the arresting officer acted reasonably and in good faith in

relying on that information.” Bernard v. United States, 25 F.3d

98, 102 (2d Cir. 1994). Once a police officer has a reasonable

basis to believe that he has probable cause to arrest, the

officer “is not required to explore and eliminate every

theoretically plausible claim of innocence before making an

arrest.” Garcia v. Does, 779 F.3d 84, 93 (2d Cir. 2015). An

arresting officer is “entitled to qualified immunity from a suit

for damages if he can establish that there was arguable probable

cause to arrest.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.

2004) (emphasis added).

Here, Officer Cillis and Sergeant Brenes had at least

arguable probable cause to arrest Gerasimou for possession of a

forged instrument. A person is guilty of criminal possession of

a forged instrument in the third degree when, “with knowledge

that it is forged and with intent to defraud, deceive or injure

another, [s]he utters or possesses a forged instrument.” N.Y.

Pen. L. § 170.20. A “forged instrument” is defined as “a

written instrument which has been falsely made, completed or

altered.” N.Y. Pen. L. § 170.00(7). “Under Section 170.20, an

officer has probable cause if the physical characteristics of

the allegedly forged document lead the officer to believe that

an individual is knowingly in possession of a forged or

fictitious document.” Ikezi v. City of New York, No. 14-CV-

5905, 2017 WL 1233841, at *12 (E.D.N.Y. Mar. 31, 2017); see also

Xifei Xu v. City of New York, No. 18-CV-1222, 2020 WL 2088301,

at *6 (S.D.N.Y. Apr. 30, 2020) (“[B]lased on [the officer’s]

observation and training, the appearance of Plaintiff's

Pennsylvania learner’s permit,” which bore text that had been

whited out and stamped over, “was sufficient to establish

probable cause for his arrest in violation of § 170.20.”).

The physical characteristics of Gerasimou’s tag at

least arguably met that standard. It is undisputed that

portions of the temporary paper license plate were cut off and

faded. A photograph of the document shows that half of the word

“The” in “The First State” (see notation “A” below), the letter

“T” in “Issue Date” (see “B” below), and the left edges of the

letter “xX” (see “C” below) are missing:

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Def. Exhibit J, ECF No. 20-10. Officer Cillis testified that,

based on his NYPD training and prior experience with forgery

arrests, the fact that words were cut off led him to believe

that the document was forged. Cillis Dep. 93:4-96:5; see also

Criminal Complaint, ECF No. 20-7 (stating that Gerasimou

“provided a forged Delaware temporary license plate and said

license plate is forged in that the words ‘Issue’ and ‘The First

State’ are cut off and not visible”). And Sergeant Brenes

testified that where “certain information [is] cut off on...

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a paper plate,” this may indicate that the document is forged.

Brenes Dep. 58:16-59:2.°

The physical appearance of the document thus gave the

officers a reasonable basis to conclude the document was forged.

See Thompson v. City of New York, 70 N.Y.S.3d 830 (1st Dep’t

2018) (“[T]he police officer’s observations, based on his

training and experience with similar license plates[] provided a

reasonable basis for him to conclude that plaintiff’s temporary

plate was forged, granting him probable cause to arrest

plaintiff.”).

This Court has not found - nor has Plaintiff pointed

to - any case indicating that the officers violated clearly

established law by arresting Plaintiff based on the appearance

of his license plate. Indeed, several New York cases

demonstrate that similar physical discrepancies can serve as the

basis for a Section 170.20 violation. E.g., People v.

Doudoulgou, 126 N.Y.S.3d 839 (list Dep’t 2020) (complaint was

facially sufficient because it set forth “the bases for the

officer’s knowledge, in addition to his training and experience,

that [several] items [were] forged,” including that “the font on

6 That Sergeant Brenes was present and agreed with Cillis’s

determination further supports Cillis’s defense. E.g., Hart v. City of New

York, No. 11-CV-4678, 2013 WL 6139648, at *4-5 (S.D.N.Y. Nov. 18, 2013)

(concluding that the defendant had probable cause in part because the

information was relayed to and approved by NYPD sergeants).

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the licence plate was larger than the font on a genuine plate,

and the plate lacked a hologram and issue date”); People v.

Xirum, 993 N.Y.S.2d 627, 628 (Sup. Ct. 2014) (defendant was

charged with Section 170.20 violation after officer observed him

“driving a vehicle with what is alleged to be a photocopied,

forged Pennsylvania 30-day temporary in-transit license plate”);

People v. Mansilla, No. 2006-NY042684, 2006 WL 2728657, at *1

(N.Y. Crim. Ct. 2006) (officer had reasonable cause to believe

defendants gave him forged resident alien cards because they

“appear[ed] to be laminated photocopies, and authentic cards are

of superior paper quality,” the printing was “of an inferior

quality to authentic cards,” and “none of the cards ... hada

seal”). At the very least, these cases demonstrate that the law

was not clearly established to the contrary. Or, said

differently, “officers of reasonable competence could disagree

on the legality” of Gerasimou’s arrest. Rohman, 215 F.3d.

216.

Gerasimou primarily argues that the officers lacked

probable cause because they possessed no evidence of his intent.

This argument contravenes settled law. An officer can have

probable cause to arrest “even without specific evidence on the

elements of knowledge and intent that will have to be proved to

secure a conviction at trial,” so long as the officer has

evidence that a defendant has engaged in conduct proscribed by

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law. McGuire v. City of New York, 142 F. App’x 1, 3 (2d Cir.

2005). In the context of a Section 170.20 violation, courts

have held that it is not necessary for an officer to believe the

suspect knew he possessed a forged instrument. E.g., Thompson,

N.Y.S.3d at 830 (noting that “it was not necessary for the

police to show that plaintiff had the intent necessary to secure

a conviction of third-degree criminal possession of a forged

instrument”); Medina v. City of New York, No. 20-CV-0797, 2021

WL 1700323, at *3 (S.D.N.Y. Apr. 29, 2021) (same); Xifei Xu,

2020 WL 2088301, at *6 (same). Because it was objectively

reasonable for the officers to believe they had probable cause

to arrest Gerasimou, they are entitled to qualified immunity.

Summary judgment is thus granted as to Gerasimou’s false-arrest

claims.’

7 Gerasimou’s complaint references state-law violations at times. At

one point, the complaint mentions “the false arrest . . . and violation of

the laws of the State of New York and federal law.” ECF No. 1 @ 90. I do

not read the complaint to assert independent state-law claims for false

arrest or failure to intervene. Even if it had, Plaintiff conceded in the

parties’ proposed joint pretrial order that only federal claims remain: “This

is an action under federal law pursuant to 42 U.S.C. § 1983 and § 1988.” ECF

No. 34 at 2. And in any event, a state-law false-arrest claim would fail for

the same reason as Gerasimou’s federal claim, given New York State’s own

qualified immunity doctrine. New York law “grant[s] government officials

qualified immunity on state-law claims except where the officials’ actions

are undertaken in bad faith or without a reasonable basis.” Jones v.

Parmley, 465 F.3d 46, 63 (2d Cir. 2006). Given my conclusion that it was

reasonable for the officers to believe they had probable cause to arrest,

this doctrine would apply to a state-law claim as well.

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B. Count Four: Section 1983 and 1986 Failure-to-Intervene

Claim

Gerasimou’s failure-to-intervene claim also fails. A

police officer may be liable for failure to intervene under

Section 1983 where “(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.” Jean-Laurent v.

Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008), aff'd, 461

F. App’x 18 (2d Cir. 2012). Given the second element, probable

cause again defeats liability, and an officer’s awareness of

“arguable” probable cause will entitle him or her to qualified

immunity. “A police officer cannot be held liable in damages

for failure to intercede unless such failure permitted fellow

officers to violate a suspect’s clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d

Cir. 1997); see also Grice v. McVeigh, 873 F.3d 162, 169 (2d

Cir. 2017); Corso v. City of New York, No. 17-CV-6096, 2018 WL

4538899, at *11 (S.D.N.Y. Sept. 20, 2018); cf. Jackson v.

Tellado, 236 F. Supp. 3d 636, 656 (E.D.N.Y. 2017) (despite

granting qualified immunity to arresting officers based on

arguable probable cause, the court denied qualified immunity to

observing officer who, unlike the arresting officers, was not

aware of the facts reasonably indicating its lawfulness).

Because both Cillis and Brenes had arguable probable cause,

Gerasimou “cannot establish that a reasonable person in the

officers’ position would know of any constitutional violation

such that they would have a duty to intervene.” Anderson v.

City of New York, No. 15-CV-6246, 2017 WL 4712790, at *7

(S.D.N.Y. Sept. 25, 2017). Accordingly, this claim, too, must

be dismissed.

Likewise, the existence of arguable probable cause is

fatal to Gerasimou’s attempt to hold the officers liable for

“neglect to prevent” under Section 1986. Given that no

violation of clearly established law transpired, there could be

no clearly established obligation to prevent one. Moreover,

Section 1986 explicitly requires an underlying conspiracy under

42 U.S.C. § 1985. See 42 U.S.C. § 1986; see also Brito v.

Arthur, 403 F. App'x 620, 621 (2d Cir. 2010) (identifying “the

existence of a conspiracy” as an essential element of a Section

1986 claim). Because the judge previously assigned to this case

already dismissed Gerasimou’s Section 1985 claim, no underlying

conspiracy claim remains. See ECF No. 28. Summary judgment is

therefore granted as to Gerasimou’s cause of action for failure

to intervene.

IV. Conclusion

For the foregoing reasons, the Court grants

Defendants’ motion to reconsider and dismisses Plaintiff’s

remaining claims. Because no claims remain, the Clerk of Court

is respectfully directed to enter judgment and close the case.

The Clerk of Court is also directed to amend the caption of this

action to remove the City of New York as a defendant and replace

“John Brenes” with “Scott Brenes.”

SO ORDERED.

/s/ Eric Komitee

EBRIC KOMITEE

United States District Judge

Dated: January 12, 2022

Brooklyn, New York

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