# Marsh v. The City of New York

> District Court, E.D. New York · August 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10308370

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

STEVEN MARSH,
MEMORANDUM & ORDER
Plaintiff, 18-CV-01883 (HG) (RER)

v.

THE CITY OF NEW YORK, et al.,

Defendants.

HECTOR GONZALEZ, United States District Judge:

Plaintiff, Steven Marsh (“Plaintiff” or “Marsh”), brings a civil rights action under 42
U.S.C. § 1983 against the City of New York, Sergeant Alan Chau (“Chau”), and Police Officer
Saul Delacruz (“Delacruz”) (collectively, “Defendants”). Plaintiff asserted claims of false arrest,
malicious prosecution, and municipal liability. ECF No. 4. Plaintiff’s claims arise from his
arrest on January 1, 2017, for the offenses of reckless endangerment, possession of a forged
instrument, operating an unlicensed bottle club, storing alcohol without a permit, and criminal
nuisance, as well as his subsequent prosecution. Id. ¶¶ 9–20. The parties filed supplemental
summary judgment briefing on Plaintiff’s false arrest and malicious prosecution claims. See
ECF Nos. 65, 66, 68. For the reasons set forth below, the Court grants summary judgment for
Defendants as to both the false arrest and the malicious prosecution claim.
BACKGROUND1
Plaintiff alleges that Defendants falsely arrested him on January 1, 2017, at Gladyet
Banquet Hall (the “hall”) located at 9524 Ditmas Avenue. The hall was rented out for a New

1 A more detailed background of the case can be found in the initial summary judgment
order. See ECF No. 47 at 2–4.
Year’s Eve party from the evening of December 31, 2016, to the morning of January 1, 2017.
Defendants conducted a business inspection of the hall. According to Defendants, Plaintiff and
others subsequently identified Plaintiff as the party promoter to Defendants, which Plaintiff
disputes. Observing what they believed to be violations of the law, Defendants arrested Plaintiff

for allegedly committing the offenses noted above. See ECF No. 66 at 5.
PROCEDURAL HISTORY
On March 28, 2018, Plaintiff filed a complaint alleging: (i) abuse of authority in
violation of 42 U.S.C. § 1983 against Defendants City of New York, Chau and Delacruz; (ii)
false arrest in violation 42 U.S.C. § 1983 against Defendants Chau and Delacruz; (iii) malicious
prosecution in violation of 42 U.S.C. § 1983 and the Fourth Amendment against Defendants
Chau and Delacruz; and (iv) Monell v. Department of Social Services, 436 U.S. 658 (1978),
claims for violations of 42 U.S.C. § 1983 against the City of New York (“Complaint”).2 See
ECF No. 4 at 4–8. Defendants filed their motion for summary judgment on September 9, 2019.
See ECF No. 31. Plaintiff filed his opposition to Defendants’ motion on October 21, 2019,

explaining that it also constituted his cross-motion for summary judgment. See ECF No. 40.
Although Plaintiff’s motion did not include the required 56.1 Statement of Material Facts (“Pl.’s
56.1” or “Plaintiff’s 56.1 Statement”) or a response to Defendants’ 56.1 Statement of Material
Facts (“Defs.’ 56.1” or “Defendants’ 56.1 Statement”), the Court exercised its discretion and
afforded Plaintiff another opportunity to file a 56.1 Statement. See Op. & Order, Nov. 19, 2019.
Plaintiff filed his 56.1 Statement on November 26, 2019. See ECF No. 43. Plaintiff did not,
however, file a counterstatement controverting the facts in Defendants’ 56.1 Statement. As a

2 Plaintiff appears to have made identical allegations for failure to supervise in Counts VI
and VII of his Complaint. See ECF No. 4 at 7–8.
result, Defendants urged the Court to deem their entire 56.1 Statement admitted. See ECF No.
42 at 2–4. The Court, once again exercising its discretion, denied Defendants’ request and
assessed the motion for summary judgment on the merits. See ECF No. 47 at 5–6. On May 21,
2020, the Court granted in part and denied in part Defendants’ motion for summary judgment

and denied Plaintiff’s cross-motion for summary judgment. See ECF No. 47. The Court denied
summary judgment to both parties on the false arrest claim and granted summary judgment to
Defendants on the malicious prosecution claim and to the City of New York on all of Plaintiff’s
municipality liability claims.3 Id.
On May 16, 2022, Plaintiff filed a letter-motion seeking reconsideration of the Court’s
decision to grant summary judgment on the malicious prosecution claim in light of the Supreme
Court’s decision in Thompson v. Clark, 142 S. Ct. 1332 (2022) (holding that a plaintiff need not
show an affirmative indication of innocence but only that the criminal prosecution ended without
a conviction). See ECF No. 62. On May 19, 2022, the Court instructed the parties to submit
supplemental summary judgment briefing with respect to Plaintiff’s malicious prosecution and

false arrest claims. See ECF No. 63. On June 24, 2022, Defendants filed their supplemental
briefing. See ECF No. 65. On July 14, 2022, Plaintiff filed his opposition. See ECF No. 66. On
August 5, 2022, Defendants filed their reply. See ECF No. 68.
STANDARD OF REVIEW
“A district court . . . possesses the inherent authority to sua sponte reconsider its own
interlocutory orders before they become final.” Chartis Seguros Mexico, S.A. de C.V. v. HLI
Rail Rigging, LLC, No. 11-cv-3238, 2015 WL 545565, at *2 (S.D.N.Y. Feb. 9, 2015). Thus,

3 The Court considered Count One of the Complaint alleging “abuse of authority” to be
abandoned. See ECF No. 47 at 1 n.1.
“[b]ecause 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.” See
Grimaldi v. Promuto, No. 13-cv-1692, 2014 WL 12657039, at *1 (S.D.N.Y. Oct. 17, 2014)

(citing Nabisco v. Warner-Lambert Co., 32 F. Supp. 2d 690, 694 (S.D.N.Y. 1999)). “Whether
such revision is appropriate in any given case is within the sound discretion of the trial judge.”
Acha v. Beame, 570 F.2d 57, 63 (2d Cir. 1978); accord Esposito v. Suffolk Cnty. Cmty. Coll., 517
F. Supp. 3d 126, 134 (E.D.N.Y. 2021).
“The court shall grant summary judgment if the movant shows 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). Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party

has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). “Where the moving party demonstrates the absence of a
genuine issue of material fact, the opposing party must come forward with specific evidence
demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654
F.3d 347, 358 (2d Cir. 2011) (internal quotation marks and citations omitted).
In deciding a summary judgment motion, any ambiguities and inferences drawn from the
facts must be viewed in the light most favorable to the nonmoving party. LaFond v. Gen.
Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). In reviewing the evidence and inferences
that may reasonably be drawn, the court “may not make credibility determinations or weigh the
evidence . . . . Credibility determinations . . . [are a] jury function[ ], not [that] of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and internal
quotation marks omitted). Nevertheless, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
DISCUSSION
I. False Arrest
In Count Two of the Complaint, Plaintiff alleges that Defendants falsely arrested him in
violation of 42 U.S.C. § 1983. See ECF No. 4 ¶¶ 29-34. The Court previously denied summary
judgment for both Defendants and Plaintiff on the basis that “genuine issues of material fact
remain as to the officers’ knowledge of Plaintiff’s status as a promoter, the degree of control that
he exercised over the party, and his financial interest in the party.” See ECF No. 47 at 10. The
Court found that “although the weight of evidence . . . is indisputably in defendants’ favor, it
cannot grant summary judgment for defendants” on the basis that genuine issues of material fact

remain. Id. at 13-14. However, upon reconsideration, this Court finds that Defendants had
arguable probable cause to arrest Plaintiff based on the subset of facts which no reasonable jury
could resolve in Plaintiff’s favor. Defendants are therefore entitled to qualified immunity on
Plaintiff’s false arrest claim.
A. Applicable Law
A Section 1983 claim for false arrest is substantially the same as a false arrest claim
under New York law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). To state a claim
for false arrest under New York law, “a plaintiff must show that: (1) the defendant intentionally
confined 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 justified.” Douglas v.
City of New York, 595 Supp. 2d 333, 340 (S.D.N.Y. 2009). The existence of probable cause is “a
complete defense to an action for false arrest, whether that action is brought under state law or
under § 1983.” Weyant, 101 F.3d at 852 (internal quotation marks and citation omitted).

“[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed or is committing a crime.” Id.
“[W]hether or not probable cause existed may be determinable as a matter of law if there is no
dispute as to the pertinent events and the knowledge of the [arresting] officers.” Id.
Nevertheless, a police officer is entitled to qualified immunity on a false arrest claim “if
there was at least arguable probable cause at the time the officer arrested the plaintiff.” Mitchell
v. City of New York, 749 F. App’x 75, 77 (2d Cir. 2019). “The doctrine of qualified immunity
shields public officials performing discretionary functions from civil liability insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known, or insofar as it was objectively reasonable for them to
believe that their acts did not violate those rights.” Rolkiewicz v. City of New York, 442 F. Supp.
3d 627, 643 (S.D.N.Y. 2020) (quoting Bradway v. Gonzales, 26 F.3d 313, 317–18 (2d Cir.
1994)). “In resolving questions of qualified immunity at summary judgment, courts engage in a
two-pronged inquiry. The first asks whether the facts, [t]aken in the light most favorable to the
party asserting the injury, . . . show the officer’s conduct violated a [federal] right[.] . . . The
second prong of the qualified-immunity analysis asks whether the right in question was clearly
established at the time of the violation . . . . Said differently, if the officer’s conduct violated a
right, we analyze the objective reasonableness of the officer’s belief in the lawfulness of his
actions. If the officer reasonably believed that his actions did not violate plaintiff’s rights, he is
entitled to qualified immunity even if that belief was mistaken.” Id. at 643–44 (internal
quotation marks and citations omitted).
Defendants Had Arguable Probable Cause to Arrest Plaintiff
Plaintiff argues that Defendants did not have probable cause or arguable probable cause
to arrest because Defendant Delacruz admitted that Plaintiff was “not the ‘owner’ nor [had] an
‘ownership interest’” in the hall. ECF No. 40 at 7. “[P]robable cause to arrest exists when the
officers have knowledge of, or reasonably trustworthy information as to, facts and circumstances
that are sufficient to warrant a person of reasonable caution in the belief that an offense has been
or is being committed by the person to be arrested.” Manganiello v. City of New York, 612 F.3d

149, 161 (2d Cir. 2010) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)). “[A]
police officer is entitled to qualified immunity in the context of a false arrest claim if there was at
least ‘arguable probable cause’ at the time the officer arrested the plaintiff.” Mitchell v. City of
New York, 749 F. App’x 75, 77 (2d Cir. 2019). Arguable probable cause exists if “any
reasonable officer, out of the wide range of reasonable people who enforce the laws in this
country, could have determined that the challenged action was lawful.” Figueroa v. Mazza, 825
F.3d 89, 100 (2d Cir. 2016). Defendants move for summary judgment as to the false arrest
claim, asserting that they had probable cause, or arguable probable cause, to arrest Plaintiff for
operating an unlicensed bottle club because he and others identified Plaintiff as the promoter.

The proper interpretation of § 64-b of New York’s Alcohol Beverage Control Law
(“Alcohol Beverage Control Law”) was not clearly established at the time of Plaintiff’s arrest.
That law provides that “[i]t shall be unlawful for any person . . . operating a place for profit or
pecuniary gain, with a capacity for the assemblage of twenty or more persons to permit . . .
[persons to] . . . consum[e] alcoholic beverages . . . unless an appropriate license has first been
obtained.” As the Court previously explained, the case law on whether a “promoter” is
considered an “operator” within the meaning of the law is “limited and inconclusive.” ECF No.
47 at 10–13. This Court, however, finds that the officers’ knowledge of Plaintiff’s status as a
promoter is sufficient for purposes of establishing arguable probable cause to arrest him for
operating an unlicensed bottle club.4 The officers’ knowledge of Plaintiff’s status as a promoter

establishes sufficient control over the venue and financial interest in the premises, such that a
“reasonable officer . . . could have determined that” he was violating the Alcohol Beverage
Control Law. Figueroa, 825 F.3d at 100. This determination is independent of whether Plaintiff
had in fact violated the law—arguable probable cause requires the Court to consider what a
reasonable officer could have determined, even if the officer was mistaken.
While the parties have given different accounts of whether anyone at the party, including
Plaintiff, identified Plaintiff as the promoter, the Court does not find this factual dispute to be a
“genuine dispute of material fact,” given Plaintiff’s inconsistent statements in his interview with
the New York Police Department’s Internal Affairs Bureau (“IAB Interview”) and deposition

testimony. “Though ‘it is not the role of the Court at summary judgment to resolve [a] factual
clash[,] . . . in the rare circumstances where the plaintiff relies almost exclusively on his own
testimony, much of which is contradictory and incomplete, it will be impossible for a district
court to determine whether ‘the jury could reasonably find for the plaintiff,’ . . . without making
some assessment of the plaintiff’s account.” Dash v. Montas, No. 17-cv-515, 2020 WL
1550708, at *11 (E.D.N.Y. Mar. 31, 2020) (citing Rojas v. Roman Cath. Diocese of Rochester,

4 The parties do not dispute that Defendant Delacruz alleged that: (i) multiple alcoholic
beverages containing hard liquor were recovered from behind the bar, and that (ii) Plaintiff
provided two fraudulent NYS Liquor Authority Temporary, Beer, Wine and Cider permits. See
Pl.’s 56.1, ECF No. 66 at 5. Indeed, Plaintiff does not deny these assertions.
660 F.3d 98, 105 (2d Cir. 2011)). “Where the factual dispute is based on each side telling a
different story, those stories must be ‘at least plausible’ to create a ‘genuine’ dispute of material
fact.” Id. 5
Plaintiff disputes that anyone identified him as the party promoter to Defendants. See

ECF No. 39-3 at 40:25–41:6. This assertion, however, is inconsistent with statements that
Plaintiff made during his IAB Interview on January 4, 2017. See ECF Nos. 40, 66. Plaintiff
filed a complaint with the New York City Civilian Complaint Review Board, which was referred
to IAB soon after his arrest, alleging that he “was falsely arrested by the officers.” ECF No. 39-3
at 56:22–57:19. He also alleged during the IAB Interview that he was “[m]issing money” that
Defendants had “confiscated.” ECF No. 36 at 13:1–5, 58:22–25.
At the IAB Interview, Plaintiff unequivocally stated, “[the officers] asked, ‘Who’s the
promoter.’ Two girls pointed me out. ‘Hey . . . he’s the promoter.’ I’m like, ‘Yes I am. I’m the
promoter. How can I help you?’” ECF No. 36 at 8:24–9:7.6 In his deposition testimony,
Defendant Delacruz stated, “I walked over and approached. ‘How’s it going, sir? I’m here to do

a business inspection[’] . . . . He told me his name was Steven Marsh, promoter of the party . . .
.” ECF No. 39-9 at 133:14–19. This is corroborated by Defendant Chau’s deposition testimony:
“Mr. Marsh walked out on his own and he said, [‘]how can I help you or how can I help you,

5 The Second Circuit recently clarified that assessing a plaintiff’s inconsistent or
contradicting statements in deciding whether to grant summary judgment does not amount to
“assess[ing] [the plaintiff’s] credibility, or to weigh[ing] his testimony against the evidence
offered by Defendants-Appellees.” Saeli v. Chautauqua Cnty., 36 F.4th 445, 456 (2d Cir. 2022).
In light of Saeli, this Court reconsidered whether Defendants were entitled to qualified immunity
on Plaintiff’s false arrest claim.

6 Plaintiff reaffirmed during his deposition on May 7, 2019, that his statements during the
IAB Interview were “truthful and accurate.” ECF No. 39-3 at 58:2–21.
Officer[’] . . . . [Mr. Marsh] told me he was in charge of the place.” ECF No. 39-6 at 95:8–9,
156:16.
Even though Plaintiff testified at his deposition that all of his answers during the IAB
Interview were truthful, he nevertheless denied during the deposition that he had identified

himself as the promoter. See ECF No. 39-3 at 40:22–25 (“Q: Did you identify yourself as a
promoter on the night of the incident? A. No.”). This new account is implausible, however, in
light of his previous unequivocal, recorded statement during the IAB Interview, which is
consistent with the testimony of the officers. A party cannot create a genuine issue of material
fact by contradicting his previous affirmed statement without explaining or resolving the
contradiction. See Connolly v. City of New York, No. 16-cv-465, 2020 WL 5553843, at * 8
(E.D.N.Y. Aug. 18, 2020), aff’d in relevant part, No. 20-3125-cv, 2022 WL 843497 (2d Cir.
Mar. 22, 2022). Accordingly, Plaintiff cannot create a genuine issue of fact by retracting his
earlier statements during the IAB Interview, for which he offers no explanation. See ECF Nos.
40, 66.

Furthermore, “it is well-established that a law enforcement official has probable cause to
arrest if he received his information from some person, normally the putative victim or
eyewitness.” Wieder v. City of New York, 569 F. App’x 28, 29 (2d Cir. 2014) (summary order)
(quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)); see also Panetta, 460 F.3d at
395 (“[I]nformation gleaned from informants can be sufficient to justify the existence of
probable cause.”). In his deposition testimony, Defendant Delacruz stated that a security guard
pointed Plaintiff out as the promoter, after which Plaintiff identified himself as a promoter. See
ECF No. 39-9 at 101:22–25, 102:19–25, 133:12–20; see Defs’ 56.1, ECF No. 32 ¶ 32. Plaintiff
claims that no one at the event identified him as the promoter. See ECF No. 39-3 at 40:25–41:6.
Such a conclusory statement, however, cannot create a genuine dispute of material fact. “The
non-moving party may not rely on its pleadings, mere allegations, simple denials, conclusory
statements, or conjecture to create a genuine issue for trial.” Butler v. Gonzalez, No. 09-cv-1916,
2010 WL 3398156, at * 5 (S.D.N.Y. May 18, 2010). The Court therefore concludes that, even

construing the facts in the light most favorable to Plaintiff, Defendants had arguable probable
cause to arrest Plaintiff for violating the Alcohol Beverage Control Law. Accordingly,
Plaintiff’s claim for false arrest is dismissed.7
II. Malicious Prosecution
Count Three of the Complaint alleges that Defendants maliciously prosecuted Plaintiff in
violation of the Fourth Amendment and 42 U.S.C. § 1983. See ECF No. 4 ¶¶ 35–40. The Court
previously granted summary judgment in favor of Defendants on the basis that Plaintiff’s
underlying criminal action did not terminate in a manner that was indicative of his innocence.
See ECF No. 47 at 16–17. Plaintiff requested that the Court reconsider its decision in light of the
Supreme Court’s decision in Thompson, which held that a plaintiff need not show an affirmative

indication of innocence, but only that the criminal prosecution ended without a conviction. See
142 S. Ct. at 1333; ECF No. 66 at 11. The Court reconsiders its prior summary judgment
decision in light of Thompson. For the reasons set forth below, which do not turn on the issue

7 It is worth noting that Plaintiff spends a significant amount of his brief discussing the
subsequent IAB investigation and information uncovered as a result of that investigation, but
such information is not pertinent to his false arrest claim. See ECF No. 66 at 5–8. “Once
officers possess facts sufficient to establish probable cause, they are neither required nor allowed
to sit as prosecutor, judge or jury,” as “[t]heir function is to apprehend those suspected of
wrongdoing, and not to finally determine guilt through a weighing of the evidence . . . . It is
therefore of no consequence that a more thorough or more probing investigation might have cast
doubt upon the situation.” Diop v. City of New York, 50 F. Supp. 3d 411, 419 (S.D.N.Y. 2014)
(quoting Krause v. Bennett, 887 F.2d 362, 371–72 (2d Cir. 1989) (internal quotation marks
omitted)).
addressed in Thompson, the Court grants Defendants’ motion for summary judgment on the
claim of malicious prosecution.
A. Applicable Law
To establish a Section 1983 claim of malicious prosecution, four elements must be

shown: “(1) the initiation or continuation of a criminal proceeding against plaintiff; (2)
termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for defendant’s actions.” Manganiello, 612
F.3d at 161. A plaintiff asserting a Fourth Amendment malicious prosecution claim under §
1983 must also show “some deprivation of liberty consistent with the concept of ‘seizure.’” Levy
v. City of New York, 935 F. Supp. 2d 575, 588 (E.D.N.Y. 2013) (quoting Singer v. Fulton Cnty.
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995)). With respect to the first prong, “[o]nce a criminal
defendant has been formally charged, the chain of causation between the officer’s conduct and
the claim of malicious prosecution is broken by the intervening actions of the prosecutor, thereby
abolishing the officer’s responsibility for the prosecution.” Levy, 935 F. Supp. 2d at 588

(citation omitted). For purposes of establishing the third prong, “probable cause for . . .
malicious prosecution is different from probable cause for arrest. Probable cause to prosecute
exists where there are such facts and circumstances as would lead a reasonably prudent person to
believe the plaintiff guilty.” Benny v. City of Long Beach, No. 20-cv-1908, 2022 WL 2967810,
at *17 (E.D.N.Y. July 27, 2022) (internal quotation marks and citation omitted). However,
probable cause is “an absolute defense” to a malicious prosecution claim. Maron v. Cnty. of
Albany, 166 F. App’x 540, 541 (2d Cir. 2011). With respect to the fourth prong, “[u]nder New
York law, malice does not have to be actual spite or hatred, but means only that the defendant
must have commenced the criminal proceeding due to a wrong or improper motive, something
other than a desire to see the ends of justice served.” Lowth v. Town of Cheektowaga, 82 F.3d
563, 573 (2d Cir. 1996) (internal quotation marks and citation omitted).
B. Plaintiff Failed to Raise Triable Issues of Fact as to Whether Defendants
Maliciously Prosecuted Plaintiff

As an initial matter, the Court finds that Plaintiff has not established the first prong of his
malicious prosecution claim. As explained above, the chain of causation between the officer’s
conduct and the claim of malicious prosecution is generally broken by the intervening actions of
the prosecutor. Levy, 935 F. Supp. 2d at 588 (citation omitted). Accordingly, “a plaintiff usually
cannot show arresting officers initiated a criminal proceeding against him solely based on an
arrest . . . . [W]here a police officer is accused of providing false information to a prosecutor that
influences a decision whether to prosecute, he may be held liable for malicious prosecution.” Id.
at 588–89. Plaintiff, however, does not suggest that Defendants provided false information to
the prosecutor, but argues instead, that the case against him was insufficient because he was not
the owner of the hall and violated no laws. See ECF No. 66 at 8–9.
Defendants did not arrest Plaintiff and subsequently sign the criminal complaint because
they believed he was the “owner” of the hall. Rather, they believed he was the “promoter”
responsible for the party and therefore responsible for violations of the law related to the event at
the hall. See Defs.’ 56.1, ECF No. 32 ¶¶ 24, 27–53. Plaintiff offers no evidence to suggest that
Defendants provided prosecutors with false information, forwarded statements that were suspect,

or withheld exculpatory evidence from the prosecutor to Plaintiff’s detriment. Therefore,
Plaintiff fails to meet the first prong of his malicious prosecution claim.
Plaintiff also cannot satisfy the malice prong of his malicious prosecution claim. “The
Second Circuit denies malicious prosecution claims against police officers unless the plaintiff
can establish that the indictment ‘was produced by fraud, perjury, the suppression of evidence or
other police conduct undertaken in bad faith.’” Wilson v. McMullen, No. 07-cv-948, 2010 WL
1268055, at *6 (E.D.N.Y. Mar. 30, 2010) (quoting Dawson v. Snow, 356 F. App’x 526, 529 (2d
Cir. 2009)). Plaintiff provides no evidence that either Defendant’s involvement in the
subsequent prosecution was motivated by malice.

Plaintiff states that Defendant Delacruz “admitted plaintiff was not the ‘owner’ nor [held]
an ‘ownership interest’ in 9524 Ditmas Avenue.” ECF No. 66 at 8. Defendant Delacruz’s
admission does not amount to malice. As discussed previously, Defendants Chau and Delacruz
entered the hall to conduct a business inspection. See Defs.’ 56.1, ECF No. 32 ¶¶ 25–26; Pl.’s
56.1, ECF No. 43 ¶ 29. Defendant Delacruz knew the maximum occupancy for the hall was 15
people and had previously made arrests at the hall for operating an unlicensed bottle club. Defs.’
56.1, ECF No. 32 ¶¶ 23–24. Defendant Delacruz saw approximately 70 people outside and
observed approximately 170 individuals inside the location. Id. ¶¶ 22, 27. Defendant Delacruz
further testified that he had received training in forged instruments as well as seizing and making
arrests for forged liquor licenses. Id. ¶¶ 42–45, 50. Upon initial review of the purported liquor

licenses, and subsequent review of New York City Department of Buildings and New York State
Liquor License Authority websites, Defendant Delacruz concluded that both permits were
forged, and only permitted the sale of beer, wine and cider. Id. ¶¶ 45–57. Defendant Delacruz
observed hard liquor and smelled hard liquor in the hall. Id. ¶¶ 48–54, 59-60. Observing what
they believed to be violations of several laws, Defendants initiated a criminal proceeding against
an individual—Plaintiff—whom they believed was in charge and responsible for promoting the
party. See id. ¶¶ 48–58. Defendants did not need to believe Plaintiff was the owner to believe
that he was violating the law because, as explained above, the interpretation of the Alcohol
Beverage Control Law was not clearly established at that time. Accordingly, no reasonable jury
would find that Defendants commenced a criminal proceeding against Plaintiff with malice.
“Malice means that the defendant must have commenced the criminal proceeding due to a wrong
or improper motive, something other than the desire to see the ends of justice served . . . . Only
where probable cause to initiate a proceeding is so totally lacking may malice be inferred.”

Wilson, 2010 WL 1268055, at *6 (emphasis added) (internal quotation marks and citations
omitted). Here, the Court finds that there is no genuine dispute of material fact that Defendants
initiated the criminal proceeding against Plaintiff without malice.
Finally, although the Court does not need to reach the issue of qualified immunity, even
if Plaintiff had established the necessary elements of his malicious prosecution claim—which he
does not—the Court would nevertheless conclude that Defendants are entitled to qualified
immunity. “If the officer reasonably believed that his actions did not violate plaintiff’s rights, he
is entitled to qualified immunity even if that belief was mistaken.” Rolkiewicz, 442 F. Supp. 3d
at 643 (internal quotation marks and citation omitted). This standard also applies to an officer’s
reasonable beliefs about the applicable law that the plaintiff allegedly violated. An officer may

initiate a prosecution against a plaintiff pursuant to an incorrect interpretation of law, so long as
the officer’s legal error “was not ‘clearly established’ at the time [the officer] initiated the
prosecution against [the plaintiff].” Cornelio v. Connecticut, 32 F.4th 160, 179 (2d Cir. 2022)
(applying qualified immunity to dismiss malicious prosecution claim against detective even
though plaintiff “ha[d] stated a plausible claim” that the law under which he was prosecuted
violated the First Amendment).
Because the Court finds that arguable probable cause existed at the time of Plaintiff’s
arrest, see Section I.B supra, the only way Plaintiff can establish the absence of arguable
probable cause to prosecute is by showing that the Defendants discovered some exculpatory
evidence between the time of arrest and prosecution. See Johnson v. Constantellis, 221 F. App’x
48, 50 (2d Cir. 2007) (“If probable cause existed at the time of arrest, . . . [then], it continues to
exist at the time of the prosecution unless undermined by the discovery of some intervening
fact.”). Plaintiff points to two facts discovered between arrest and prosecution: (i) the alleged

fraudulent alcohol permits were in the names of Glad Yet Banquet Hall and Oluwafunmilayo
Hassan, and (ii) that there was a discrepancy in the amount of money vouchered and recovered
from the scene. See ECF Nos. 40 at 5–7, 66 at 5–7. The fact that the permits were in someone
else’s name and that there was a discrepancy in the amount vouchered does not alter the
determination that arguable probable cause existed for arresting Plaintiff for violating the
Alcohol Beverage Control Law because Defendants reasonably believed Plaintiff was the
promoter of the event at the hall. The Court therefore finds that a reasonably competent police
officer in either Defendant’s position could have reasonably believed that there was probable
cause to prosecute Plaintiff and the malicious prosecution claim should also be dismissed for this
additional reason.

CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted in its
entirety, and all claims are dismissed. The Clerk of Court is respectfully directed to enter
judgment and close this case.
SO ORDERED.

_/s/ Hector Gonzalez_________
HECTOR GONZALEZ
United States District Judge

Dated: Brooklyn, New York
August 19, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308370. Public record. Not legal advice.