Yusuf v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------x

ISSIAH YUSUF, LASANDRA YARBROUGH,

YULIANA YARBROUGH, and B.T.

YARBROUGH, MEMORANDUM & ORDER

15-CV-5545(EK)(ST)

Plaintiffs,

-against-

CITY OF NEW YORK, Officers ERIC

CABRERA, KEITH DIPRESSO, and NICHOLAS

RIPA, et al.

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:

This case arises out of a sequence of actions by the

New York City Police Department that, according to the

Plaintiffs, occurred during an “ongoing campaign of harassment”

by the NYPD against Issiah Yusuf and his family. Second Amended

Complaint (“SAC”) ¶ 21, ECF No. 57. Three events are

principally at issue: Yusuf’s March 2015 arrest for public

consumption of alcohol and trespassing; the NYPD’s April 2015

search of the home of Yusuf’s mother, Lasandra Yarbrough; and

Yusuf’s July 2015 arrest on robbery charges.

Plaintiffs bring claims under 42 U.S.C. § 1983 and

New York law.! Yusuf contends that during the March 2015

incident he was subject to an illegal stop and search, excessive

force, and falsely arrested. lLasandra Yarbrough (Yusuf’s

mother), Yuliana Yarbrough (her daughter), and B.T. Yarbrough

(her minor son) contend that during the April 2015 search of

Lasandra’s home, they were falsely arrested and subject to abuse

of process; Yuliana and Lasandra also bring excessive force

claims. Lastly, Yusuf sues for malicious prosecution and the

denial of the right to a fair trial in connection with his July

2015 arrest for robbery. The remaining defendants are Officers

Eric Cabrera, Keith DiPresso, and Nicholas Ripa of the New York

City Police Department, several unnamed officers, and the City

of New York.?

Defendants now move for summary judgment on all

claims. For the reasons below, Defendants’ motion is denied as

' The operative complaint — the Second Amended Complaint, or SAC — named

several causes of action but did not specify which Plaintiffs asserted which

claims against which Defendants. At the Court’s request, Plaintiffs filed

(and then revised) a chart setting out that information. See ECF No. 151

(revised chart).

2 At the time Plaintiffs filed their Second Amended Complaint, the named

individual defendants were Police Officers Nicholas Testani, Anthony Byrd,

Andy Mitchell, Jonathan Ringel, Richard Demartino, Keith Dipresso, William

Glynn, Eric Cabrera, and Neil Casey. As of the date of this order, the

remaining named individual defendants are Officers Cabrera, Ripa, and

DiPresso.

to Yusuf’s claims for unreasonable search, but granted as to the

rest of Plaintiffs’ claims.

I. Background?

As noted, the events in question transpired on three

different dates. Viewed in the light most favorable to

Plaintiffs — the non-moving parties — the facts are as follows.

A. Event One: Yusuf’s March 13 Arrest For Trespassing

On the evening of March 13, 2015, Yusuf entered the

lobby of a building in the Hammel Houses, a public housing

project in the Rockaways. Pl. 56.1 9494 1, 5. Yusuf lived in the

Hammel Houses, but not in that building. Id. □ 10; 50-h Tr.

3:13-14, ECF No. 136-2. He recognized some men who were

drinking in the lobby and stopped to talk to them. Pl. 56.1

4. The men had cups in their hands, and there was a brown

bottle on the floor. fId. 7 3.

Officer Cabrera and a partner were on patrol in the

housing project; when they drove by the building in question,

Cabrera noticed three individuals standing outside the lobby.

> 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. 140-2)), and Plaintiffs’ opposition

to this statement (“Pl. 56.1” (ECF No. 127)). The facts are viewed in the

light most favorable to Plaintiffs; factual assertions from Defendants’ 56.1

statement are not disputed unless otherwise noted. Citations to a party’s

Rule 56.1 Statement should be read to incorporate the documents cited

therein. For convenience, Defendants’ supporting memorandum of law will be

referred to as “Def. Br.” (ECF No. 134) and Plaintiffs’ opposition submission

as “Pl. Opp.” (ECF No. 126).

Td. 7 5. Cabrera made a U-turn and drove back to the building,

where the individuals were now inside the lobby. Id. FI 6-7.

One of them was holding the building door open. Id. 7 12.

There were “no trespassing” and “no loitering” signs posted in

the lobby. Id. 7 11.

Yusuf and Cabrera both acknowledge some familiarity

with the other. Yusuf knew who Cabrera was from “seeing [him]

around the neighborhood,” see Dep. of Issiah Yusuf (“Yusuf

Dep.”) 65:19-23, ECF No. 136-3; Cabrera also recognized Yusuf,

and knew he did not live in that building. Def. 56.1 9 10.

The parties agree that some individuals in the lobby

were drinking, but disagree about whether Yusuf was. Officer

Cabrera testified that as he circled back in the patrol car, he

saw Yusuf “holding” and “chugging” a bottle. Id. 441 7, 9; Dep.

of Eric Cabrera (“Cabrera Dep.”) 51:6-7, 57:19-22, ECF No. 136-

6. According to Yusuf, the other men were drinking but he was

not. Pl. 56.1 992 2, 7. He says the brown bottle was on the

floor, and that he did not know its contents. Id. @ 3; 50-h Tr.

12:7-15, ECF No. 136-2.4

4 The Court can consider 50-h hearing testimony on a motion for summary

judgment. E.g., Fontanez v. Skepple, No. 12-CV-1582, 2013 WL 842600, at *3

(S.D.N.Y. Mar. 6, 2013), aff’d, 563 F. App’x 847 (2d Cir. 2014). Under

Section 50-h, “[w]lherever a notice of claim is filed against a city, ...

the city . . . shall have the right to demand an examination of the claimant

relative to the occurrence and extent of the injuries or damages for which

claim is made.” N.Y. Gen. Mun. Law § 50-h.

Officer Cabrera and his partner got out of their car

and approached the building. Pl. 56.1 ¶ 13. Cabrera had his

shield out, id. ¶ 14, but neither he nor his partner was in

uniform. Yusuf Dep. 62:7-8. As they approached, the individual

standing in the doorway of the building saw Cabrera and “took

off up the stairs.” Id. 51:24-25. Yusuf followed, Pl. 56.1

¶ 18; Cabrera gave chase. Id. ¶ 19. In his deposition

testimony, Cabrera acknowledged some uncertainty over whether

Yusuf saw him approach: Yusuf “wasn’t facing outside towards

[Cabrera], he was facing inside . . . towards the elevator and

staircase.” Cabrera Dep. 51:19-23. Cabrera was “looking at his

[Yusuf’s] side.” Id. 52:4.

Viewed in the light most favorable to Yusuf, the

record thus leaves open the possibility that Yusuf did not know

it was the police approaching when he fled. Yusuf’s own

testimony on this question, however, has varied. At a 2015

hearing pursuant to New York General Municipal Law § 50-h (“50-h

Hearing”), Yusuf testified that he “didn’t know it was the

police, but they ran – somebody said that they were about to

start shooting, so I ran upstairs in the building.” Pl. ¶ 16

(emphasis added). At his deposition in this case, he testified

that he “heard voices of someone telling me to come here” and

“ran because I didn’t know the voice” and because “of some of

the activities that goes on in that neighborhood.” Yusuf Dep.

50:17-51:20 (emphasis added). Cabrera, for his part, testified

that he did not say anything to Yusuf or the other individuals

at this time. Cabrera Dep. 63:1-8.

Regardless, Cabrera gave chase. As he entered the

lobby, he heard glass shattering in the stairwell, and when he

opened the stairwell door, he saw broken glass with a Hennessy

label. Pl. 56.1 ¶¶ 20-21. Cabrera ran up the stairs to the

third floor, where he saw Yusuf exit the stairwell and turn into

the first apartment on the right. Id. ¶¶ 23-24; Cabrera Dep.

62:9–11. Yusuf tried to close the apartment door, but Cabrera

put his foot in the door and pushed himself inside. Pl. 56.1

¶ 25.

Inside the apartment, Officer Cabrera handcuffed Yusuf

and another individual “for safety reasons” and took them out

into the hallway. Cabrera Dep. 65:20-22, 66:16-19. Cabrera

then searched Yusuf to “ma[k]e sure he didn’t have anything on

him.” Id. 68:3-12. Cabrera searched from the “ankles up” –

“[e]verything from head to toe” – including inside Yusuf’s

waistband, his pant and coat pockets, and underneath his shirt

and sweater. Id. 69:14-70:24. He testified that when he

searched Yusuf, he smelled alcohol on his breath. Def.

56.1 9 29; Cabrera Dep. 66:5-11.° At that point, however,

Cabrera did not intend to arrest Yusuf for a crime: he testified

that “at the time, it was just going to be a summons” for

alcohol. Cabrera Dep. 57:13-16. The search yielded no weapons

or contraband.

Cabrera then spoke with the “owner / resident” of the

apartment, Emma Baker, while on the third floor. Pl. 56.1 4 31.

According to Defendants, Ms. Baker informed Officer Cabrera that

Yusuf was friends with her son, but that she had not given him

permission to come into her apartment. Def. 56.1 933 (first

citing Cabrera Dep. 67:3-6 (Cabrera testifies that “the lady”

living in the apartment said “she knew them, but she never gave

them permission to come inside the apartment”); and then citing

id. 71:7-10 (“She stated to me that she does know them. They’re

friends with her son. But like I said, she said she never gave

them permission to come in the apartment.”)).

Yusuf testified that he was indeed invited to the

building in question to play video games with Ms. Baker’s son,

Hareem Dempster. Pl. 56.1 at 21, @ 2; Yusuf Dep. 57:24-58:5.

Yusuf also testified, at his 50-h hearing, that he heard Ms.

° Plaintiffs’ 56.1 Counterstatement indicates that Cabrera’s assertion

is “[nJot disputed.” Pl. 56.1 9 29. At oral argument, counsel explained

that Plaintiffs do not dispute that Cabrera testified that he smelled alcohol

on Yusuf, but they do dispute that Yusuf drank. See Oral Argument Tr. 68:24-

69:4, ECF No. 148.

Baker tell the officers: “if they’re coming here with my son,

they’re not doing anything wrong.” Pl. 56.1 ¶ 32. At his

deposition, however, Yusuf conceded that an officer — he could

not recall which — spoke with Ms. Baker out of his earshot for a

period. Yusuf Dep. 68:22-25 (Yusuf testifies that saw Ms. Baker

“talking to an officer. I don’t remember which officer she was

talking to.”); id. at 69:15-70:2 (Yusuf acknowledges again that

he saw an officer speaking with Ms. Baker, but doesn’t recall

which officer); see also id. at 69:22–24 (Q: were you able to

hear what they were talking about? A: No.). Yusuf did not

recall how long the officer’s conversation with Ms. Baker

lasted. Id. at 69:25-70:2.

Officer Cabrera and Sergeant Casey arrested Yusuf for

Criminal Trespass in the Third Degree (a misdemeanor) and Public

Consumption of Alcohol (an administrative code violation). Pl.

56.1 ¶ 34. After Yusuf was handcuffed, he “told one of the

officers, I don’t remember which one, that they [the cuffs] were

too tight,” but the officer said nothing in response. Yusuf

Dep. 68:16–19. Yusuf sustained no physical injuries. Pl. 56.1

¶ 38. Later, Officer Cabrera attempted on multiple occasions to

obtain a sworn statement from Ms. Baker, but no one answered the

door. Id. ¶ 36. The District Attorney’s Office declined to

prosecute, and Yusuf was released from Central Booking. Id.

¶ 37.

B. Event Two: April 17 Execution of Search Warrant

Nearly a month later, a Queens County criminal court

issued a “no knock” warrant authorizing entry into Yusuf’s

mother’s apartment on Rockaway Beach Boulevard to search for

marijuana. Pl. 56.1 ¶ 39; Search Warrant, ECF No. 136-12; Dep.

of Lasandra Yarbrough (“Lasandra Dep.”) 65:1-66:6, ECF No. 128-

4. On the morning of April 17, the NYPD’s Emergency Services

Unit executed the search. Pl. 56.1 ¶ 44. Lasandra was home

with her children, including Yuliana (then age fifteen), and her

four-year-old boy, B.T. Id. at 21, ¶¶ 5, 7. Yusuf was not

present, and Officer Cabrera played no role in this incident.

According to Plaintiffs, officers pointed guns at

Lasandra and the children. Id. One of “the first officers who

entered” placed Lasandra in handcuffs in the living room. Def.

56.1 ¶ 45. An unidentified officer stood on Yuliana’s bed,

tightly handcuffed her, and pulled her from the bed. Pl. 56.1

at 22, ¶¶ 8-10. Yuliana complained that the handcuffs were too

tight. Id. ¶ 9. Yuliana testified: “[the officer] told me to

give him a minute, and will have someone loosen them, or he will

do it.” Dep. of Yuliana Yarbrough (“Yuliana Dep.”) 27:7-20, ECF

No. 128-5. The officer loosened Yuliana’s handcuffs when he

brought her into the living room. Id. Another officer brought

B.T. into the living room but did not handcuff him. Pl. 56.1

¶ 47.

Officer Keith DiPresso participated in the search,

though he had no role in the investigation leading to the

warrant’s issuance. When DiPresso entered the apartment, he

proceeded directly to the back bedroom, where non-party Brian

Thomas was already handcuffed. Id. ¶¶ 48–50. DiPresso found

marijuana on the nightstand. Id. ¶ 49. Thomas was the only

civilian in that room. Id. ¶ 50. DiPresso and the other

officers then proceeded to the bedroom of non-party Aziz

Yarbrough, where DiPresso found more marijuana. Id. ¶¶ 52-53.

The officers placed Thomas and Aziz Yarbrough under arrest. Id.

¶ 54. DiPresso did not interact with any of the Plaintiffs

during the search. Id. ¶ 56.

C. Event Three: Yusuf’s July 19 Arrest on Robbery Charges

On the evening of July 18, a man named Jose Nieves was

operating a “dollar van” in Queens when several individuals

stopped the van and robbed him of a gold chain and money. Pl.

56.1 ¶¶ 57-58. Defendant Ripa and non-party Sergeant Knight

interviewed Nieves the next day. Id. ¶ 59. Nieves identified

the four individuals he believed had robbed him, including

Yusuf, and showed Officer Ripa social-media photos of them on

his phone. Id. ¶¶ 63–64. Ripa prepared a “complaint report”

listing Yusuf as a suspect, and Yusuf was arrested on July 19 by

a non-party officer. Id. ¶¶ 66-67. After his arrest, Yusuf

told Ripa that he did not commit the robbery. Id. ¶ 69.

In his claims against Ripa, Yusuf points to some

discrepancies between the reports prepared in connection with

the arrest. In the complaint report, Ripa wrote that “known

apprehended perp Unique Wooden” struck Nieves in the face and

took his gold chain. Omniform Complaint Report 2, ECF No. 136-

13. The arrest report, also prepared by Ripa the day of Yusuf’s

arrest, states that Yusuf, “acting in concert with three

others,” punched Nieves repeatedly in the face and took his

jewelry and money. Omniform Arrest Report 2, ECF No. 128-15.

Assistant District Attorney Gregory Lasak subsequently

interviewed Nieves by phone. Pl. 56.1 ¶ 75; Intake Bureau Crime

Report 6, ECF No. 136-15. Lasak completed an Intake Bureau

Crime Report based on the information Nieves provided; the

report stated that Yusuf attempted to gain entry to Nieves’s van

through the passenger door and motioned to his waistband area

while threatening Nieves, and that other individuals, including

Unique Wooden, “repeatedly punch[ed]” Nieves. Intake Bureau

Crime Report 3. A criminal complaint, drafted by ADA Lasak and

signed by Officer Ripa, issued on July 19. Pl. 56.1 ¶ 78. The

complaint repeated the allegations that Yusuf tried to enter

Nieves’s van through the passenger door and motioned to his

waistband while threatening Nieves. Id.

The day after Yusuf’s arrest, Nieves came to the

precinct and informed Ripa that he wanted to withdraw his

complaint and specifically stated that Yusuf was not present

during the robbery. Id. ¶ 70; Letter from Nieves, ECF No. 128-

16. In private, Nieves told Ripa he had been threatened and was

afraid. Pl. 56.1 ¶ 72. Ripa informed the District Attorney’s

office that Nieves came into the precinct appearing visibly

shaken and wanted to withdraw his complaint. Id. ¶ 74.

In an effort to shore up the case, Officer Ripa

obtained two surveillance videos taken near the scene. Id.

¶ 90. The first was from a convenience store across the street

from Nieves’s van; it showed Yusuf getting into a car and

leaving the scene at 7:44 p.m. Id. ¶ 99. The second was an

NYPD surveillance video from a nearby bus stop, which captured

the robbery from a distance at 7:54 p.m. Id. ¶ 100. Neither

video clearly showed Yusuf’s participation in the robbery or

where he went between 7:44 and 7:54.

Ripa sent both videos to ADA Tara DiGregorio, a

prosecutor assigned to the case. Id. ¶ 90. As discussed below,

the record does not reveal the exact dates on which Ripa

received the videos and sent them to DiGregorio. On July 28,

however, after DiGregorio had viewed the videos, she decided to

drop the charges while the case was still pending before the

grand jury. Id. ¶¶ 102–03. DiGregorio testified that she

concluded the state had insufficient evidence to convict. Dep.

of Tara DiGregorio (“DiGregorio Dep.”) 24:6-10, ECF No. 136-9.

II. Procedural History

Plaintiffs initiated this action in 2015 against the

City, various named officers, and ten John and Jane Doe

defendants. They subsequently amended the complaint twice. The

second amended complaint - the one that is currently operative -

alleged thirteen claims arising from three separate events:

(1) Yusuf’s arrest on March 13; (2) the search of Lasandra

Yabrough’s home on April 17; and (3) Yusuf’s arrest on July 19

in connection with the Nieves robbery. SAC FIT 63-119.

Plaintiffs have since abandoned several claims.® At

oral argument on the summary judgment motion, the Court called

for greater specificity regarding which of the remaining claims

were asserted against which defendants, in light of the

operative complaint’s lack of specificity. Plaintiffs responded

with a chart indicating the following:

6 At the parties’ request, the Court entered a stipulation of dismissal

as to Count Nine (negligent hiring, training, and retention against the

City), Count Ten (intentional infliction of emotional distress), Count Eleven

(negligent infliction of emotional distress), and Count Twelve (failure to

intervene). Stipulation & Order of Partial Dismissal, ECF No. 119.

Later, during briefing and oral argument on Defendants’ summary-

judgment motion, Plaintiffs moved to dismiss more claims. See Pl. Opp. 27;

Oral Argument Tr. 148:11-13, 47:11-48:1, ECF No. 148. These claims may be

“dismissed at the plaintiff's request only by court order.” Fed. R. Civ. P.

41(a) (2). I hereby dismiss all claims that Plaintiffs did not include in

their chart of remaining claims.

13

e In connection with the March 13 arrest, Yusuf alleges

Section 1983 and state-law false arrest,’ unreasonable stop

and search, and excessive force claims against Officer

Cabrera, and the same state-law claims against the City.

e In connection with the April 17 search of their home, the

three Yarbroughs allege Section 1983 false arrest and abuse

of process against Officer DiPresso; Yuliana alleges

Section 1983 excessive force against DiPresso; and Lasandra

alleges state-law false arrest and abuse of process claims

against DiPresso and the City, as well as an assault and

battery against just the City.

e In connection with the July 19 arrest, Yusuf alleges

Section 1983 malicious prosecution and denial of the right

to a fair trial against Officer Ripa.?

7 In each place that Plaintiffs’ chart includes a false arrest claim,

Plaintiffs write “false arrest/unreasonable detention.” ECF No. 151. To the

extent Plaintiffs are attempting to pursue unreasonable detention claims,

those claims are dismissed because Plaintiffs never asserted such claims in

their complaint.

8 The chart states that Lasandra Yarbrough brings a state-law claim for

“excessive force,” but the SAC refers to it as “state law assault and

battery.” Compare ECF No. 151, with SAC 83-86. I will refer to this

claim as an assault and battery claim.

° ECF No. 151 (revised chart). The chart includes no allegations

against the remaining Doe defendants. For that reason, and because the

remaining Jane or John Doe defendants have not been identified even after the

close of discovery, any claims previously levied against them are now

dismissed. See Keesh v. Artuz, No. 97-CV-8417, 2008 WL 3166654, at *2

(S.D.N.Y. Aug. 6, 2008) (“Even after discovery, plaintiff has failed to

identify the ‘John Doe’ and ‘Jane Doe’ defendants. Accordingly, the complaint

against them must be dismissed.”); cf. Warren v. Goord, 476 F. Supp.2d 407,

14

III. Summary Judgment 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 movant carries its

burden, “the nonmoving party must come forward with admissible

evidence sufficient to raise a genuine issue of fact for trial

in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser

Co., 536 F.3d 140, 145 (2d Cir. 2008). If the non-moving party

fails to do so, summary judgment will be granted. Entry of

summary judgment is appropriate “against a party who fails to

make a showing sufficient to establish the existence of an

413-14 (S.D.N.Y.2007) (“[T]he Court will not dismiss the claim against John

Doe until plaintiff has had sufficient discovery to name the defendant.”).

1° Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

15

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).

Discussion

A. Event One: Yusuf’s Arrest on March 13

Yusuf makes four sets of claims (each under federal

and state law) against Officer Cabrera in relation to his

March 13 arrest: (1) unreasonable stop; (2) unreasonable search;

(3) false arrest; and (4) excessive force. Yusuf also alleges

that the City is vicariously liable for the state-law claims.

1. Unreasonable Stop

Yusuf argues, first, that Cabrera lacked reasonable

suspicion when he stopped, handcuffed, and searched him on the

third floor. Yusuf alleges “unreasonable stop and search” as

one cause of action. See SAC ¶¶ 63-64. But the type of

suspicion required to justify the stop differs from that

required to justify the search, as discussed below. For that

reason, I discuss the stop in this section and the search in the

next.

Cabrera had the reasonable suspicion required to

justify the stop of Yusuf on the third floor. “[A]n officer

may, consistent with the Fourth Amendment, conduct a brief,

investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot.”

Tilinois v. Wardlow, 528 U.S. 119, 123 (2000).1! “While

‘reasonable suspicion’ is a less demanding standard than

probable cause and requires a showing considerably less than

preponderance of the evidence, the Fourth Amendment requires at

least a minimal level of objective justification for making the

stop.” Id. ™“‘Reasonable suspicion’ is a rather lenient test,”

and a court “must consider the totality of the circumstances” in

making its assessment. United States v. Sanders, 208 F.3d 204,

at *1 (2d Cir. 2000) (unpublished summary order).

Here, several factors contributed to Officer Cabrera’s

reasonable suspicion that criminal activity — specifically

trespassing — was afoot. Cabrera knew that Yusuf did not live

in the building. Pl. 56.1 9 10. He saw someone in the doorway,

“propping the door” open. Id. 7 12; Cabrera Dep. 50:1-4. There

were “no trespassing” and “no loitering” signs posted in the

lobby. Id. @ 11. And Yusuf and the other individuals ran up

the stairs as the officers approached. Id. 7 18. Unprovoked

flight from the police “is certainly suggestive of wrongdoing

and can be treated as suspicious behavior that factors into the

11 Because “[s]Jearch and seizure rights under the New York State and

United States constitutions are .. . largely coextensive,” the Court

analyzes Yusuf’s federal and state-law claims together. See Febres v. City

of New York, 238 F.R.D. 377, 392 (S.D.N.Y. 2006); see also Peopie v. Johnson,

488 N.E.2d 439, 406 (1985) (”[T]he proscription against unlawful searches and

seizures contained in N.Y. Constitution, article I, §$ 12 conforms with that

found in the 4th Amendment, and. . . this identity of language supports a

policy of uniformity between State and Federal courts.”).

17

totality of the circumstances.” District of Columbia v. Wesby,

138 S. Ct. 577, 587 (2018); see also United States v. Davenport,

303 F. App’x 42, 44 (2d Cir. 2008) (suspect’s flight after

officer approached him contributed to reasonable suspicion).

Finally, Cabrera saw Yusuf run hurriedly into an apartment that

he knew was not Yusuf’s. He did not know whose apartment it was

or what Yusuf and his friend were doing there. Thus, once

Cabrera caught up to Yusuf, it was reasonable for him to conduct

a brief investigatory stop.

Because Officer Cabrera had a reasonable basis to

conclude that Yusuf was committing or had committed a criminal

offense — trespass — Cabrera was justified in making the Terry

stop that Yusuf challenges.

2. Unreasonable Search

Yusuf testified that outside Ms. Baker’s apartment,

Cabrera “pushed [him] against the wall and started searching”

him. Yusuf Dep. 22:16-17. As described by Cabrera, he searched

Yusuf “from head to toe,” including inside his waistband, pant

and coat pockets, and underneath his shirt and sweater. Cabrera

Dep. 69:14-70:24.

To conduct a pat-down during a Terry stop, the officer

must have more than a reasonable basis to believe that a crime

has been committed: he must also have a reasonable basis to

believe the person stopped is armed and dangerous. See United

States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (citing

Arizona v. Johnson, 555 U.S. 323, 326-27 (2009)). “The Supreme

Court has emphasized that the goal of the frisk is not to

discover evidence of crime, but to help law enforcement

ascertain whether a suspect has a weapon which might be used to

harm the officer or others nearby.” United States v. Weaver, 9

F.4th 129, 140 (2d Cir. 2021).

The Defendants have not established — or even argued,

really — that Cabrera had a reasonable basis to think Yusuf was

armed and dangerous. Cabrera says that when he conducted the

Terry stop, he suspected Yusuf of trespassing and public

consumption; neither is the kind of conduct that would logically

be expected to involve the use or possession of a firearm. More

generally, Cabrera simply has not, at this point, proffered the

“specific and articulable facts” that the Supreme Court says are

necessary to satisfy Johnson’s “reasonable basis” test. Cabrera

testified that, “for safety reasons,” he handcuffed Yusuf and

“made sure he didn’t have anything on him.” Cabrera Dep. 68:8-

12.12 But the only “safety reasons” Cabrera identified were that

12 The testimony suggests that Cabrera handcuffed Yusuf prior to the

search that Yusuf argues was conducted without reasonable suspicion. Yusuf

does not contend that the handcuffing transformed the stop into a full-blown

arrest. Cf. Grice v. McVeigh, 873 F.3d 162, 167 (2d Cir. 2017) (“In general,

to determine whether a Terry stop is so intrusive as to become an arrest, we

look to: the amount of force used by police, the need for such force, and the

extent to which the individual’s freedom of movement was restrained, and in

particular such factors as the number of agents involved, whether the target

19

he knew Yusuf did not live in that apartment, he did not know

whose apartment it was, and “[t]here could possibly be a gun at

the apartment.” See id. at 65:4-22,. It is settled law that “a

police officer, faced with the possibility of danger, has a

right to take reasonable steps to protect himself and an

obligation to ensure the safety of innocent bystanders,

regardless of whether probable cause to arrest exists.” Grice

v. McVeigh, 873 F.3d 162, 167 (2d Cir. 2017). But he must have

a reasonable belief that some danger exists, as noted above.

See United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990)

(“The officer need not be absolutely certain that the individual

is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety

or that of others was in danger.” (quoting Terry v. Ohio, 392

U.S. 1, 27 (1968)). Cabrera’s statement that there “could

possibly” have been a gun in the apartment does not meet that

standard. Cabrera Dep. 65:20-21.35

of the stop was suspected of being armed, the duration of the stop, and the

physical treatment of the suspect, including whether or not handcuffs were

used.”).

13 Though not dispositive here, it bears mentioning that Cabrera

testified he was searching Yusuf not only for guns, but also for

“contraband . . . [lJike drugs.” Id. at 72:17-21; see also id. at 72:22-23

(“Q: And why were you searching for drugs? A: These kids like smoke weed . .

. .”). The Supreme Court, however, has been clear that the “purpose of this

limited [Terry] search is not to discover evidence of crime . .. . Rather,

a protective search — permitted without a warrant and on the basis of

reasonable suspicion less than probable cause — must be strictly ‘limited to

that which is necessary for the discovery of weapons which might be used to

20

And the search was not justified as a search incident

to arrest. A search incident to arrest may occur prior to the

formal arrest, so long as the officer has probable cause. See

@.g., United States v. Wilson, 94 F. App’x 14, 17 (2d Cir. 2004)

(“Once probable cause was established, it is irrelevant whether

the officers’ searches of Wilson occurred prior or subsequent to

his arrest.”). But Cabrera has not established that he had

probable cause to arrest at this point for trespass. The cases

assessing probable cause for trespass arrests typically require

the officer to do something to establish that the suspect is on

the premises without a resident’s invitation. See, e.g.,

Mitchell v. City of New York, 841 F.3d 72, 78 (2d Cir. 2016)

(“[O]fficers must have probable cause to believe that a person

does not have permission to be where she is before they arrest

her for trespass.”). And Cabrera had not done so when he

searched Yusuf.!* Cabrera cannot assert probable cause to arrest

Yusuf for public consumption at this stage because there is a

dispute of fact, as noted above, regarding whether Yusuf was

drinking at all. Yusuf’s unreasonable search claims — federal

and state — will proceed.

harm the officer or others nearby.’” Minnesota v. Dickerson, 508 U.S. 366,

373 (1993) (quoting Terry, 392 U.S. at 26)).

14 The probable-cause determination is objective, not subjective, and

thus Cabrera’s personal view is not at issue. Still, Cabrera testified that

he did not believe he had probable cause to arrest Yusuf for trespass at this

point. Cabrera Dep. 67:19-24.

21

It is worth noting that even if Yusuf succeeds on

these claims at trial, he is alleging only a momentary

violation: As I conclude below, Cabrera established probable

cause to arrest Yusuf (and search him incident to arrest)

moments later, when he obtained evidence that Yusuf did not have

permission to be in the building. But there is no de minimis

exception to an officer’s liability for an unreasonable Terry

stop or search. E.g., Rodriguez v. United States, 575 U.S. 348,

356 (2015). Accordingly, Defendants’ motion for summary

judgment is denied on Yusuf’s unreasonable search claims.

3. False Arrest

Yusuf next argues that the officers lacked probable

cause to arrest him for either trespass or public consumption.

To prevail on a false arrest claim under New York law, a

plaintiff must prove 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 Cnty. Sheriff, 63 F.3d 110, 119

(2d Cir. 1995). The elements of a false arrest claim under

Section 1983 are “substantially the same.” Ackerson v. City of

White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (per curiam). It

is the fourth element that is disputed here, as the existence of

probable cause is a “complete defense” to claims of false

arrest. Covington v. City of New York, 171 F.3d 117, 122 (2d

Cir. 1999).

Even without probable cause, “an arresting officer

will . . . be 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). “A police officer has arguable probable cause 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.” Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016). The

question is “not whether the officer should have acted as he

did,” but rather “whether any reasonable officer, out of the

wide range of reasonable people who enforce the laws in this

country, could have determined that” probable cause existed.

Id. As the Supreme Court has repeatedly recognized, “qualified

immunity protects all but the plainly incompetent or those who

knowingly violate the law.” Ziglar v. Abbasi, 137 S. Ct. 1843,

1867 (2017). Still, the burden of proving the affirmative

defense of qualified immunity rests with the defendant. Gomez

v. Toledo, 446 U.S. 635, 640-41 (1980).

Even viewing the facts in the light most favorable to

Yusuf, the false-arrest claims must be dismissed because Cabrera

had probable cause — and certainly “arguable” probable cause —

to believe that Yusuf was trespassing, once he spoke to the

“owner / resident” of the apartment and she denied knowledge

that Yusuf was invited. New York Penal Law Section 140.10

provides that a person “is guilty of criminal trespass in the

third degree when he knowingly enters or remains unlawfully in a

building or upon real property . . . (e) where the building is

used as a public housing project in violation of conspicuously

posted rules or regulations governing entry and use thereof.”

N.Y. Penal Law § 140.10(e). And “probable cause requires only a

probability or substantial chance of criminal activity, not an

actual showing of such activity.” United States v. Bakhtiari,

913 F.2d 1053, 1062 (2d Cir. 1990) (quoting Tlilinois v. Gates,

462 U.S. 213, 244 n.13 (1983)).

Cabrera had probable cause to arrest Yusuf for

trespass after speaking to Ms. Baker. As noted above, Cabrera

knew the following before his communication with Ms. Baker: he

had observed Yusuf in the lobby of a building that he knew was

not Yusuf’s. Pl. 56.1 4 10. There were “no trespassing” signs

posted in the lobby. Id. @ 11. When Cabrera approached, Yusuf

and his cohort fled, id. ¢ 18; this flight is significant, even

if it is not dispositive.!

1S “Headlong flight — wherever it occurs — is the consummate act of

evasion: It is not necessarily indicative of wrongdoing, but it is certainly

suggestive of such.” Wardlow, 528 U.S. at 124. And it is irrelevant that

24

Even after witnessing this sequence, however, Cabrera

engaged in further inguiry before making the full arrest. He

testified that Ms. Baker told him that she “didn’t give Yusuf

permission to be in her apartment,” even if she knew him as her

son’s friend. Cabrera Dep. 76:20-77:4. Critically, Yusuf does

not deny that this conversation occurred; nor could he, given

both parties’ acknowledgment that Cabrera spoke with Ms. Baker

for some period of time — Yusuf does not recall how long — out

of Yusuf’s earshot. Pl. 56.1 9 30 (not disputing that while

Yusuf was still in the hallway, “Officer Cabrera went back into

the apartment to speak with” Ms. Baker); Yusuf Dep. 69:22-24 (Q:

Were you able to hear what they were talking about? A: No.).

These facts protect Cabrera from suit. See Jackson v.

City of White Plains, No. 05-CV-0491, 2015 WL 4739762, at *5

(S.D.N.Y. Aug. 7, 2015) (“Courts in this District and in the

State of New York have found probable cause to arrest an

individual for trespassing in a public housing project when

police confirm with a resident of the building that the

suspected trespasser does not live there.”); cf. Davis v. City

of New York, 902 F. Supp. 2d 405, 413-14 (S.D.N.Y. 2012)

(officer had probable cause to arrest where he was “aware of the

Yusuf claims not to have known it was the police he was fleeing from: for

qualified-immunity purposes, the analysis is limited to the facts known by

the arresting officer at the time of the arrest. Jaegly v. Couch, 439 F.3d

149, 153 (2d Cir. 2006).

25

following facts: (1) Osorio had been in the lobby of the

building, (2) Osorio was not a resident of the building, (3)

Osorio said he had been in apartment 5C, and (4) the current

occupant of 5C said that Osorio had not been there”).

Yusuf did testify at his 50-h hearing that he heard

the officers ask Ms. Baker, “do you want them here,” and that

she replied, “if they’re coming here with my son, they’re not

doing anything wrong.” 50-h Tr. 28:17-25, ECF No. 128-9,

Taking this assertion as true (as we must), it is still not

incompatible with Cabrera’s testimony. A layman’s observation

that someone is “not doing anything wrong” is not the same thing

as a statement that the person was invited onto a given

premises. More importantly, the statement that Yusuf attributes

to Ms. Baker’s was conditional — “if they’re coming here with my

son” — and the record gives no indication that the condition was

satisfied (let alone that Cabrera knew it was). Specifically,

there is no indication that Ms. Baker’s son, Hareem Dempster,

was anywhere among the cohort gathered in the lobby.!® Under the

circumstances, it would have been a reach for Cabrera to believe

16 Tf anything, the record suggests otherwise. See 50-h Hearing Tr.

11:22-13:24 (Yusuf “recognized” the men in the lobby but did not know if they

lived in the building; Yusuf told them he was there visiting his friend, Mr.

Dempster, who they “[p]robably” knew); Yusuf Dep. 52:20-53:6 (testifying that

Yusuf and Mr. Ponder ran up the stairs to Mr. Dempster’s apartment); Cabrera

Dep. 59:8-9, 64:13-21 (Cabrera chased Yusuf and another individual up the

stairs; “as soon as [he] pushed [him]self in,” he saw Yusuf and Ponder with

“their hands up” and “sweating”).

26

that Yusuf had been invited to stand in the lobby by a non-party

to that gathering who happened to be three floors up. See,

@.g., Jackson, 2015 WL 4739762, at *6 (finding no constitutional

violation — and declining even to reach the question of

qualified immunity — where defendant officers “verified that

Plaintiff was neither a resident nor a visitor of the building

before [they] placed Plaintiff under arrest for criminal

trespass”) .1?

One might question the wisdom of a law that

criminalizes mere presence in the lobby of a public-housing

tenant’s neighboring apartment building.!® But for purposes of

the instant constitutional (and qualified-immunity) analysis,

the Court must of course take the criminal code as it actually

existed. On this law and the undisputed facts of this case,

Cabrera had probable cause (and, therefore, arguable probable

cause) to believe that Yusuf was trespassing.

7 In Jackson, the court granted summary judgment to the defendants

despite the “Plaintiff essentially contend[ing] that everyone is lying.” fd.

The court held that the plaintiff’s “self-serving statements, absent any

supporting direct or circumstantial evidence,” were insufficient to defeat

the motion. fd.

18 As courts have recognized, however, there are important interests on

both sides of this question. “Prohibiting trespass and loitering on NYCHA

property by uninvited strangers is understandably important to many

residents: the buildings are their homes. The Legislature has reasonably

determined that, for the safety and well-being of NYCHA residents, access to

the buildings should be restricted to residents and their invited guests.”

Davis, 902 F. Supp. 2d at 421.

27

Given that conclusion, I need not reach the question

of probable cause for the public-consumption arrest. “[W]jhen

faced with a claim for false arrest, we focus on the validity of

the arrest, and not on the validity of each charge.” Jaeglyv.

Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“Because the arresting

officer in this case had probable cause to arrest Jaegly for the

charged crime of second degree harassment, however, we need not

consider whether probable cause existed for an uncharged

crime.”); see also Tompkins v. City of New York, 50 F. Supp. 3d

426, 433 (S.D.N.Y. 2014) (“As long as there was probable cause

to arrest the plaintiff for any offense .. .a false arrest

claim will fail.”).

4. Excessive Force Against Yusuf

Police use of force is “excessive, in violation of the

Fourth Amendment, if it is objectively unreasonable in light of

the facts and circumstances confronting them, without regard to

their underlying intent or motivation.” Maxwell v. City of New

York, 380 F.3d 106, 108 (2d Cir. 2004).19 Yusuf claims that the

officers used excessive force when they handcuffed him too

tightly, but he cannot identify the officer who handcuffed him.

1? The state-law equivalent of a federal excessive force claim is for

assault and battery. “Except for § 1983’s requirement that the tort be

committed under color of state law, the essential elements of excessive force

and state law assault and battery claims are substantially identical.” E.g.,

Humphrey v. Landers, 344 F. App’x 686, 688 (2d Cir. 2009). The Court thus

analyzes Yusuf’s excessive force and assault and battery claims as one.

28

See Yusuf Dep. 68:18-19, 69:7-21. He thus alleges that Officer

Cabrera – the only defendant named this claim – is liable, at

the least, for failing to intervene. Oral Arg. Tr. 73:17-22,

ECF No. 148. A police officer may be held liable for his

failure to intervene if he observes a fellow officer using

excessive force and has sufficient time to act to prevent it.

Figueroa, 825 F.3d at 106. “Liability attaches on the theory

that the officer, by failing to intervene, becomes a tacit

collaborator in the illegality.” Id.

In evaluating an excessive force claim arising out of

the use of handcuffs, “a court must consider (1) whether the

handcuffs were unreasonably tight, (2) whether the defendants

ignored the plaintiff’s pleas that the handcuffs were too tight;

and (3) the degree of injury to the wrists.” Higginbotham v.

City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).

“The injury requirement is particularly important.” Rolkiewicz

v. City of New York, 442 F. Supp. 3d 627, 638 (S.D.N.Y. 2020).

“In fact, there is a consensus among courts in this circuit that

tight handcuffing does not constitute excessive force unless it

causes some injury beyond temporary discomfort.” Id. (citing

Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d

459, 468 (S.D.N.Y. 2008)). “These injuries need not be severe

or permanent, but must be more than merely de minimis.” Id.;

cf. Saheed v. City of New York, No. 17-CV-1813, 2020 WL 1644006,

at *15 (S.D.N.Y. Apr. 2, 2020) (plaintiff’s wrist injuries were

more than de minimis where ambulance and emergency room records

showed that he complained of pain, he continued to complain of

pain at least seventeen days later, and his doctor ordered an x-

ray and prescribed ibuprofen for continued pain) .2°

Yusuf alleges no injury from the handcuffs and has

adduced no evidence of injury. Pl. 56.1 9 38. His excessive

force claim thus fails as a matter of law, as does his argument

that Cabrera failed to intervene. Accordingly, summary judgment

is granted as to Yusuf’s excessive force claims.

5. Respondeat Superior Claims

Yusuf also alleges state-law respondeat superior

claims against the City for unlawful stop and search, false

arrest, and excessive force. “Unlike cases brought under

§ 1983, municipalities may be liable for the common law torts,

29 Plaintiffs argues that under Cugini v. City of New York, 941 F.3d 604

(2d Cir. 2019), a plaintiff is no longer required to show an injury to claim

excessive force based on handcuffing. Id. at 613; see Pl.’s Opp. 24; see

also Oral Argument Tr. 49:13-50:6, ECF No. 148. This Court does not read

Cugini as providing an alternative to the injury requirement. In Cugini, the

Second Circuit held that a plaintiff “need not always establish that she

alerted an officer to the fact that her handcuffs were too tight or causing

pain.” 941 F.3d at 613. (emphasis added). Rather, “the question is more

broadly whether an officer reasonably should have known during handcuffing

that his use of force was excessive,” which a plaintiff can show “if either

the unreasonableness of the force used was apparent under the circumstances,

or the plaintiff signaled her distress, verbally or otherwise, such that a

reasonable officer would have been aware of her pain, or both.” Id. The

Second Circuit did not address the injury requirement at all. Moreover,

Defendants have highlighted ample post-Cugini case law continuing to require

an injury that is more than de minimis.

30

like false arrest . . . , committed by their employees under the

doctrine of respondeat superior.” Biswas v. City of New York,

973 F. Supp. 2d 504, 539 (S.D.N.Y. 2013). “If the plaintiff is

able to establish any of his pendent state law claims, he can

recover against the City of New York under the common law

doctrine of respondeat superior.” Anderson v. City of New York,

817 F. Supp. 2d 77, 99 (E.D.N.Y. 2011).

Because Yusuf fails as a matter of law to establish

individual liability against Officer Cabrera for unreasonable

stop, false arrest, and assault and battery, he cannot establish

respondeat superior liability for those claims. E.g., Velez v.

City of New York, 730 F.3d 128, 137 (2d. Cir. 2013) (noting that

if an employee was not liable, “there is no basis for imposing

[respondeat superior] liability on the employer”); Morales v.

City of New York, 59 F. Supp. 3d 573, 583 (S.D.N.Y. 2014)

(“[B]ecause Plaintiff has not demonstrated any basis for

liability on the part of any of the City’s agents or employees,

her respondeat superior claim also fails.”). Those claims

against the City are dismissed.

The City can be held liable for Yusuf’s surviving

unreasonable search claim, however. E.g., Triolo v. Nassau

County., — F.4d —, No. 19- 4107-cv, 2022 WL 186567, at *8 (2d

Cir. Jan. 21, 2022) (quoting Jones v. State of New York, 307

N.E.2d 236, 237 (1973) (“A long line of cases has held the State

or municipalities liable for the actions of their police

officers in the line of duty.”)); Hawthorne ex rel. Hawthorne v.

County of Putnam, 492 F. Supp. 3d 281, 305 (S.D.N.Y. 2020)

(dismissing all but “Plaintiff's respondeat superior claim

against Putnam County based on [individual defendant officers’]

alleged unreasonable . . . search”); see also Ackerson, 702 F.3d

at 22 (defendant officer’s liability for false-arrest claim

under New York law created liability for the city defendant

“under a theory of respondeat superior”). Summary judgment is

therefore denied as to Yusuf’s state-law unreasonable search

claim against the City.

B. Event Two: April 17 Execution of Search Warrant

The Yarbroughs make several claims arising from the

April 17 search of their home: all three allege federal abuse

of process and false arrest against Officer DiPresso; Yuliana

also asserts a federal excessive-force claim against DiPresso;

and Lasandra brings state-law claims for false arrest and abuse

of process against DiPresso and the City, plus state-law assault

and battery against just the City.

1. Abuse of Process

The Yarbroughs allege that defendant DiPresso engaged

in malicious abuse of process, in violation of Section 1983 and

state law, when he searched their home because the “warrant

issued for the search . . . was a pretextual search warrant

issued in order to harass, arrest, or otherwise harm Mr. Yusuf.”

Pl. Opp. 21.

Courts look to state law for the elements of a Section

1983 claim alleging malicious abuse of process. Cook v.

Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Under New York law, a

plaintiff must show that the defendant: “(1) employ[ed]

regularly issued legal process to compel performance or

forbearance of some act (2) with intent to do harm without

excuse or justification, and (3) in order to obtain a collateral

objective that is outside the legitimate ends of the process.”

Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003).

Under the third element, “[a] malicious motive alone does not

give rise to a cause of action for abuse of process.” Hernandez

v. United States, 939 F.3d 191, 204 (2d Cir. 2019) (quoting

Savino, 331 F.3d at 76). Rather, a plaintiff must prove that

the defendant acted with “an improper purpose - that is, ‘he

must claim that the defendant aimed to achieve a collateral

purpose beyond or in addition to his criminal prosecution.’”

Douglas v. City of New York, 595 F. Supp. 2d 333, 344 (S.D.N.Y.

2009) (quoting Savino, 331 F.3d at 76); see also Hoyos v. City of

New York, 999 F. Supp. 2d 375, 391 (E.D.N.Y. 2013) (“A malicious

abuse of process claim thus requires an ulterior purpose such as

the infliction of economic harm, extortion, blackmail, or

retribution.”).

Here, Plaintiffs have produced no evidence that

DiPresso sought or executed the search warrant in pursuit of a

“collateral purpose.” In fact, it is undisputed DiPresso played

no role in seeking the “legal process” about which Plaintiffs

complain. He was instructed to assist with the search, but

played no role in the investigation leading to the issuance of

the search warrant. Pl. 56.1 at 21, ¶ 4 (citing DiPresso Dep.

45:7-16); see, e.g., Bender v. City of New York, No. 09-CV-3286,

2011 WL 4344203, at *8 (S.D.N.Y. Sept. 14, 2011) (dismissing

abuse of process claim against defendant who “only alleged to

have participated in the search of Plaintiff's apartment”

because there was no allegation that he “played any role in

obtaining any ‘legal process’ to use against her”).

The Yarbroughs contend that the officers’ interest in

Yusuf’s whereabouts during the search – asking Lasandra,

“where’s your son” – demonstrates collateral purpose because the

officers were executing a search warrant, not an arrest warrant.

Oral Arg. Tr. 51:19-23; Lasandra Dep. 79:1-19. But the interest

in Yusuf’s whereabouts is not the kind of “collateral purpose”

that an abuse-of-process claim requires — namely, a “collateral

advantage or corresponding detriment to the plaintiff which is

outside the legitimate ends of the process.” TADCO Const. Corp.

v. Dormitory Auth. of New York, 700 F. Supp. 2d 253, 271 (2010)

(emphasis added). On the contrary, inquiring about the target

of an investigation is very much within the legitimate ends of

the investigative process that leads law enforcement to obtain a

search warrant. And here, DiPresso testified that prior to

executing the warrant, he was informed that Yusuf was the

subject of the investigation. DiPresso Dep. 44:2-45:16.7! This

justified DiPresso’s interest in Yusuf’s whereabouts; indeed, it

would be surprising, under the circumstances, for the officers

not to have asked if Yusuf was on the premises.

In the end, Plaintiffs cite no case supporting the

contention that officers evidence an improper or “collateral”

objective simply by inguiring into the whereabouts of a suspect

during the execution of a search warrant. Plaintiffs allege no

more than that the officers “employed legal process .. . for

the purpose,” that is, searching the home, “for which the law

created it.” Hoyos, 999 F. Supp. 2d at 391.

Decisions identifying improper or “collateral”

objectives are readily distinguishable. For example, in

Hernandez v. Wells, No. 01-CV-4376, 2003 WL 22771982 (S.D.N.Y.

Nov. 24, 2003), the plaintiff alleged that the defendant, a

corrections officer, fabricated assault charges to save his own

job. Id. at *9. The defendant had been previously disciplined

21 No party produced the supporting affidavit upon which the warrant was

issued.

35

for misconduct and warned that he would be fired if he violated

rules or regulations in the future. Id. Explaining that this

“purpose would be an improper collateral objective because

safeguarding one’s own employment lies outside the legitimate

goal of criminal process,” the court allowed the plaintiff’s

malicious abuse of process claim to proceed. Id.; see also

VanZandt v. Fish & Wildlife Serv., 524 F. Supp. 2d 239, 246

(W.D.N.Y. 2007) (plaintiffs stated a claim for malicious abuse

of process by alleging that defendants’ “collateral objective”

in obtaining a search warrant was to steal plaintiffs’

property); TADCO Constr., 700 F. Supp. 2d at 272 (on a motion to

dismiss, plaintiffs adequately alleged that defendants acted for

the “improper purpose” of obtaining advantage over plaintiffs in

contract disputes).

Because Plaintiffs cannot meet the third element for

abuse of process against DiPresso, summary judgment is granted

on this claim.

2. False Arrest

The Yarbroughs’ false arrest claims fail because —

among other reasons — the officers were justified in briefly

detaining Plaintiffs while they searched the home. “An

officer’s authority to detain incident to a search is

categorical; it does not depend on the ‘quantum of proof

justifying detention or the extent of the intrusion to be

imposed by the seizure.’” Meuhler v. Mena, 544 U.S. 93, 98

(2005); see also Summers, 452 U.S. at 703 (police have the

authority to detain occupants of a premises while an authorized

search is being conducted). This defeats the fourth element of

a false-arrest claim under both federal and state law. See

Ackerson, 702 F.3d at 19 (for false arrest claim under Section

1983 and New York law, a plaintiff must prove that “the

confinement was not otherwise privileged”).

In addition, Plaintiffs present no evidence that

DiPresso, the only Defendant present at the scene, personally

confined, or intended to confine, any Plaintiff. On the

contrary, the record reveals no dispute that DiPresso walked

directly to the back bedroom of the apartment upon entry, where

Brian Thomas was already handcuffed, and then to Aziz

Yarbrough’s room. Pl. 56.1 ¶¶ 48–53. In the meantime, other

(unidentified) officers handcuffed Lasandra and Yuliana. Def.

56.1 ¶ 45; Pl. 56.1 at 22, ¶¶ 8-10. Plaintiffs thus fail to

meet the first requirement for false-arrest – “inten[t] to

confine [the plaintiff].” Ackerson, 702 F.3d at 19. They also

fail to establish the “personal involvement” of any defendant,

as required for a Section 1983 claim. Wright v. Smith, 21 F.3d

496, 501 (2d Cir. 1994). Summary judgment is therefore granted

as to Plaintiffs’ false arrest claims against DiPresso.

3. Section 1983 Excessive Force

Plaintiffs likewise fail to show DiPresso’s personal

involvement in Yuliana’s excessive force claim. “A police

officer is personally involved in the use of excessive force if

he either (1) directly participates in an assault; or (2) was

present during the assault, but did not intervene on behalf of

the victim even though he had a reasonable opportunity to do

so.” Corley v. Shahid, 89 F. Supp. 3d 518, 523 (E.D.N.Y. 2015)

(emphasis omitted). Mere presence at the scene is insufficient;

the plaintiff must proffer evidence that the officer “had either

awareness of excessive force being used or an opportunity to

prevent it.” Id. DiPresso did not place the handcuffs on

Yuliana or interact with her at all in the apartment, and there

is no evidence that he ever stepped into her bedroom. An

unidentified officer handcuffed Yuliana in her room, and it was

to that officer that she “complained immediately” that the

handcuffs were too tight. Pl. 56.1, at 22, ¶ 8-10. The officer

who handcuffed Yuliana told her to “give him a minute,” and that

he or another officer would loosen them. Yuliana Dep. 27:7-20.

That officer then loosened Yuliana’s handcuffs in the living

room. Id. Because there is no evidence that DiPresso was

present while Yuliana was handcuffed, or heard this exchange,

Plaintiffs cannot establish that he failed to intervene.

Moreover, Yuliana fails to show any injury arising

from the incident. As with Yusuf’s excessive force claim

against Cabrera, she alleges no injury beyond temporary

discomfort. See Lynch, 567 F. Supp. 2d at 468. Thus, even if

DiPresso had been involved, Yuliana’s momentary wait for an

adjustment of her handcuffs would not serve as the basis of

liability. Summary judgment is granted as to Plaintiffs’

federal excessive force claim against DiPresso.

4. Respondeat Superior Claims

Finally, Lasandra brings state-law claims for false

arrest, abuse of process, and assault and battery against the

City based on respondeat superior liability. Because the

Yarbroughs fail to establish liability against any agent or

employee of the City, however, the City cannot be held liable.

See Velez, 730 F.3d at 137. As discussed, they have no claim

against DiPresso. And while “there is no requirement that

respondeat superior liability be predicated on the conduct of an

individual who is named as a defendant in the suit,” Tardif v.

City of New York, 344 F. Supp. 3d 579, 592 (S.D.N.Y. 2018),

Plaintiffs fail to satisfy the requirements for overcoming

summary judgment against any other officer present during the

incident. Lasandra’s claims against the City are therefore

dismissed.

C. Event Three: Yusuf’s Arrest on July 19

In relation to his July 19 arrest arising from the

robbery of Nieves’s dollar van, Yusuf brings Section 1983 claims

for malicious prosecution and the denial of a fair trial against

Officer Ripa.

1. Malicious Prosecution

To prevail on a claim for malicious prosecution under

Section 1983, a plaintiff must show “that (1) the defendant

either commenced or continued a criminal proceeding against the

plaintiff; (2) the proceeding terminated in plaintiff’s favor;

(3) that there was no probable cause for the criminal

proceeding; and (4) that the criminal proceeding was initiated

out of actual malice.” Bonide Prods., Inc. v. Cahill, 223 F.3d

141, 145 (2d Cir. 2000). “A successful claim against a police

officer also requires some showing that the defendant distorted

the process by which [the] plaintiff was brought to trial.”

Breeden v. City of New York, No. 09-CV-4995, 2014 WL 173249, at

*10 (E.D.N.Y. Jan. 13, 2014).

Yusuf’s claim fails, first and foremost, because he

presents no evidence of actual malice. He relies primarily on

(1) Officer Ripa’s alleged delay in sending the bus stop video

to ADA DiGregorio, and (2) the fact that the case was not

dismissed until several days after Nieves’s retraction. Pl.

Opp. 27-28. The exact length of the alleged delay, though

unknown, was not long. Ripa testified that he requested the

NYPD bus stop video “a couple of days after the incident.” Ripa

Dep. 142:19-23. Though he could not recall how many days

exactly, it was “between two and 10 days after the incident.”

Id. at 143:8-9. The incident occurred on July 18. Pl. 56.1

¶ 57. ADA DiGregorio recalled that she received the bus stop

video from Ripa on July 22 or 23. DiGregorio Dep. 133:8-11.

Thus, the most the record reveals is that two or three days

elapsed between Ripa’s obtaining the video and DiGregorio’s

receipt. And no more than one week elapsed between Ripa’s

review of the video and DiGregorio’s decision to dismiss the

case on July 28. See Pl. 56.1 ¶ 103.

This short delay, coupled with the lack of any

indication that Ripa intentionally withheld the video from

DiGregorio, cannot serve as the basis of a malice determination.

Nor can the decision to dismiss the case several days after

Nieves’s retraction (on July 20), as this decision belonged to

the prosecutor – not Officer Ripa. See, e.g., Gilman v. Marsh &

McLennan Cos., 868 F. Supp. 2d 118, 128 (S.D.N.Y. 2012) (“New

York law imposes a presumption that a prosecutor exercises his

own independent judgment in deciding to prosecute a criminal

defendant.”).

Likewise, there is no evidence that Officer Ripa

“distorted” the process of Yusuf’s criminal proceeding. The

evidence shows only that Ripa consistently disclosed to

DiGregorio and other prosecutors the information he obtained

with regards to the investigation. “[A]n officer who does no

more than disclose to a prosecutor all material information

within his knowledge is not deemed to be the initiator of the

proceeding.” See Breeden, 2014 WL 173249, at *10. As

discussed, nothing in the record indicates that Ripa

intentionally withheld the bus stop video from DiGregorio or

interfered in any way with DiGregorio’s own decision-making

process. See Alcantara v. City of New York, 646 F. Supp. 2d

449, 457 (S.D.N.Y. 2009) (“[A] malicious-prosecution claim

cannot stand if the decision made by the prosecutor to bring

criminal charges was independent of any pressure exerted by the

police.” (collecting cases)). Summary judgment is therefore

granted as to Yusuf’s malicious prosecution claim.

2. Denial of the Right to a Fair Trial

Claims for the denial of the right to a fair trial

based on fabricated information are restricted to those cases in

which “an (1) investigating official (2) fabricate[d] evidence

(3) that [was] likely to influence a jury’s decision,

(4) forward[ed] that information to prosecutors, and (5) the

plaintiff suffer[ed] a deprivation of liberty as a result.”

Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d Cir.

2016) .22 Unlike a claim for false arrest or malicious

prosecution, “probable cause is no defense to a denial of the

right to a fair trial claim.” Id. at 278 (explaining that

“probable cause, which is a Fourth Amendment concept, should not

be used to immunize a police officer who violates an arrestee's

non-Fourth Amendment constitutional rights,” such as the right

to due process). The requirement that the false information be

“likely to influence a jury’s decision” means “that the

allegedly fabricated evidence [must], at the very least, he

material to a viable claim or defense in the criminal case.”

Cunningham v. City of New York, No. 17-CV-5124, 2018 WL 4168964,

at *5 (S.D.N.Y. Aug. 30, 2018).

Yusuf contends that he was deprived of his liberty

when he was strip-searched and then detained for over twenty-

four hours, see SAC FI 54-57, based, at least in part, on the

statement in Ripa’s arrest report that Yusuf “did while acting

in concert with three others punch [Nieves] repeatedly in the

22 “A plaintiff need not have been tried or convicted to assert a fair

trial claim, as the constitutional violation occurs when the false

information is transmitted to prosecutors.” Nnodimele v. Derienzo, No. 13-

CV-3461, 2016 WL 337751, at *11 (E.D.N.Y. Jan. 27, 2016). Examples of

further deprivations include “the number of court appearances a plaintiff

made postarraignment, constraints such as bail requirements, a period of

incarceration or travel restrictions.” Hanson v. New York City, No. 15-CV-

1447, 2018 WL 1513632, at *17 (BE.D.N.Y. Mar. 27, 2018). Here, Yusuf contends

that the deprivation of liberty consisted of being taken to Rikers Island,

where he was strip-searched and held for over twenty-four hours before he was

able to make bail. SAC @@ 54-57.

43

face and remove jewelry and USC from [Nieves].” Pl. Opp. 29-30

(citing Omniform Arrest Report, ECF No. 128-15). In his

deposition, Ripa conceded that this statement was erroneous

because Nieves reported that Yusuf was acting in concert with

others while somebody — not necessarily Yusuf — punched him in

the face. Ripa Dep. 212:16-18.

Yusuf’s claim fails for several reasons. First, that

this statement in the arrest report lacked evidentiary support

does not, on its own, amount to fabrication. Yusuf must show

that Ripa knowingly fabricated and forwarded false evidence.

See Ashley v. City of New York, 992 F.3d 128, 143 (2d Cir. 2021)

(the “fabrication element” requires “that the defendant

knowingly make a false statement or omission”); Ricciuti v.

N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (“Like a

prosecutor’s knowing use of false evidence to obtain a tainted

conviction, a police officer’s fabrication and forwarding to

prosecutors of known false evidence works an unacceptable

corruption of the truth-seeking function of the trial

process.”); see also Fabrication, Black’s Law Dictionary (11th

ed. 2019) (“False information invented to deceive others.”).

Here, the other documents prepared by or with the help

of Ripa – none of which state that Yusuf punched Nieves –

suggest that the erroneous statement was due to negligent

phrasing, at most. Cf. Earle v. City of New York, No. 16-CV-

171, 2020 WL 1166706, at *5 (E.D.N.Y. Mar. 10, 2020) (genuine

dispute existed as to whether officer “truly ‘fabricated’ the

information in the criminal complaint,” or “whether the

statement was an unintentional error”). The complaint report,

written by Ripa and entered several hours prior to the arrest

report, states that an individual named Unique Wooden struck

Nieves in the face. Omniform Complaint Report 2, ECF No. 136-

13. The DA Intake Bureau Crime Report, written by ADA Lasak

with the help of Ripa, also states that other individuals,

including Wooden, “repeatedly punch[ed]” Nieves, but not that

Yusuf punched him. DA Intake Bureau Crime Report 3, ECF No.

136-15. Finally, the criminal complaint contains Ripa’s sworn

testimony that other individuals punched Nieves. Queens County

Criminal Complaint 3, ECF No. 136-17. There is simply no

evidence that Ripa fabricated evidence when he wrote the

statement at issue.

Second, even if it were fabricated, Yusuf fails to

show that the statement would have been reasonably likely to

influence a jury’s decision. As discussed, the statement did

not appear in the complaint or other documents relating to

Yusuf’s prosecution. And there is no evidence that any

prosecutor relied on the statement, particularly because the

ADAs conducted their own interviews of Nieves and initiated

criminal proceedings against Yusuf based on that information.

See Pl. 56.1 ¶¶ 76 (ADA Lasak interviewed Nieves before drafting

the DA Intake Bureau Crime Report), ¶¶ 92-93 (ADA DiGregorio

interviewed Nieves and then reviewed videos with Nieves three

days in a row). Without evidence that the prosecutors relied on

the statement or that it otherwise affected the investigation,

the Court cannot conclude that the statement was material and

likely to influence a jury’s decision.

Finally, for similar reasons, Yusuf cannot meet the

causation element – that is, that he suffered a deprivation of

liberty as a result of this statement in the arrest report. The

statement did not appear in the complaint or other documents

relating to Yusuf’s prosecution, and there is no evidence

suggesting that he was charged and detained as the result of the

arrest report – as opposed to those other documents. See e.g.,

Walker v. City of New York, No. 11-CV-0314, 2014 WL 12652345, at

*9 (E.D.N.Y. Sept. 3, 2014), aff’d, 638 F. App’x 29 (2d Cir.

2016) (“Even if the prosecutor received the false reports and

Hennin never corrected the misstatements, there is a complete

absence of evidence that the prosecutor relied on the falsities

when charging Walker. Indeed, the evidence is to the

contrary.”). Summary judgment is granted as to Yusuf’s claim

that he was denied the right to a fair trial.

Vv. Conclusion

For the foregoing reasons, Defendants’ motion for

summary judgment is DENIED as to Yusuf’s federal and state-law

claims for unreasonable search against Officer Cabrera, as well

as his related respondeat superior claim against the City for

unreasonable search. Defendants’ motion is GRANTED as to

Plaintiffs’ remaining federal and state-law claims.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: February 9, 2022

Brooklyn, New York

47]