Suren v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------X

ISMAEL JOEL SUREN, LUCIA SANTIAGO,

EDGAR JOEL SUREN AND NELSON SANTIAGO,

PLAINTIFFS,

MEMORANDUM AND ORDER

-against-

19-cv-2659 (KAM)(RER)

CITY OF NEW YORK, DETECTIVE ALLAN

WARD, [Shield #520], DETECTIVE

ALEJANDRO VILLALONA [Shield #

101], SERGEANT PETER WONG [Shield

#1824], CAPTAIN BENJAMIN LEE [Tax

# 932887], DETECTIVE DANIEL

MIZVESKY [Shield # 1465],

DETECTIVE SAMUEL PEREZ [Shield #

232], P.O. NICHOLAS KOWATCH

[Shield # 9969], SERGEANT BRIAN

GRIBBIN [Shield # 27248] DETECTIVE

PAUL ORTIZ [Shield # 607], P.O.

KRISTA OWENS [Shield # 16661],

DETECTIVE JOHN SLAVINSKY [Shield #

29093], and JOHN DOE and JANE DOE,

DEFENDANTS.

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MATSUMOTO, United States District Judge:

On February 6, 2013, Plaintiffs Ismael Joel Suren

(“Ismael Joel”)1, Lucia Santiago (“Lucia”), Edgar Joel Suren

1 In order to distinguish Plaintiff Ismael Joel Suren from his father, non-

party Ismael Suren, Jr. (whose name appears as “Ismael Suren” in the February

19, 2018 search warrant giving rise to this action), the Court refers to the

Plaintiff as “Ismael Joel”, but makes no finding that he regularly used his

middle name “Joel”.

1

(“Edgar”), and Nelson Santiago (“Nelson”) (collectively,

“Plaintiffs”) filed an action against Detective Allan Ward,

Detective Alejandro Villalona, Sergeant Peter Wong, Captain

Benjamin Lee, Detective Daniel Mizvesky, Detective Samuel Perez,

P.O. Nicholas Kowatch, Sergeant Brian Gribbin, Detective Paul

Ortiz, P.O. Krista Owens, Detective John Slavinsky, and John and

Jane Doe, who are officers of the New York City Police Department

(“NYPD”) (collectively, the “Officer Defendants”) in their

official and individual capacities, and the City of New York (with

the Officer Defendants, the “Defendants”). (ECF Nos. 1 (“Compl.”);

15 (“Am. Compl.”).) Plaintiffs bring suit under 42 U.S.C. § 1983,

asserting constitutional claims based on unreasonable search and

seizure, false arrest and imprisonment, malicious prosecution, and

fabrication of evidence and denial of the right to a fair trial

with respect to their arrests (Am. Compl. ¶¶ 70–108, 132–136), and

asserting a cause of action for property damage and denial of due

process with respect to the property seized in the course of the

search (Am. Compl. ¶¶ 124–127.) Plaintiffs also assert state law

claims of false arrest and imprisonment, malicious prosecution,

assault and battery, and intentional and negligent infliction of

emotional distress. (Am. Compl. ¶¶ 109–123, 128–131.)

2

Defendants have moved, unopposed, for summary judgment

on all of Plaintiffs’ claims. (ECF Nos. 46 (“Defs. Mot.”); 50

(“Defs. Mem.”)). The Plaintiffs were served electronically and by

mail with Defendants’ moving papers (ECF Nos. 46 Defs. Mot; 50

Defs. Mem; 51, Defs. Letter) but did not file any opposition to

the Defendants’ motion. Presently before the Court is the Report

and Recommendation issued August 8, 2022 (“R&R”) by Magistrate

Judge Ramon Reyes, recommending that this Court grant Defendants’

motion for summary judgment on all of Plaintiffs’ claims except as

to three: (1) Plaintiff Ismael Joel’s false arrest and imprisonment

claim; (2) Plaintiff Ismael Joel’s malicious prosecution claim;

and (3) Plaintiffs’ unreasonable search and seizure claim for the

destruction of property. Now before the Court are Defendants’

timely objections to the R&R. (ECF No. 56, Defendants’ Objections

(“Defs. Obj.”).) Reviewing the R&R de novo and the record before

the Court,2 the Court adopts in part and modifies in part the R&R

2 (See ECF Nos. 48, Declaration of Inna Shapovalova (“Shapovalova Decl.”); 48-

1, Exh. A, Search Warrant No. 130/2018 (“Search Warrant”); 48-2, Exh. B.,

Deposition Excerpts of Plaintiff Ismael Joel Suren (“Ismael Joel Dep.”); 48-3

Deposition Excerpts of Nelson Santiago (“Nelson Dep.”); 48-4, Deposition

Excerpts of Edgar Joel Suren (“Edgar Dep.”); 48-5, Exh. E, NYPD Arrest Report

for Ismael Joel Suren (“Ismael Joel Arrest Report)”; 48-9, Exh. I, NYPD Property

Clerk Invoice for Heroin Recovered (“NYPD Heroin Invoice”); 48-10, Exh. J, NYPD

Property Clerk Invoice for Ammunition Recovered; 48-11, Exh. K, Deposition of

Lucia Santiago (“Lucia Dep.”); 48-12, Exh. L, NYPD Property Clerk Invoice for

Mail Recovered (“NYPD Mail Invoice”); 48-13, Exh. M, NYPD Lab Analysis for

Heroin (“NYPD Heroin Analysis”); 48-14, Exh. N, NYPD Firearms Analysis; 48-15,

3

for the reasons below, and accordingly, grants summary judgment to

Defendants on all claims.

FACTUAL BACKGROUND

The Court assumes the parties’ familiarity with the

extensive facts thoroughly recounted in the R&R. (ECF No. 52, R&R

at 2-8.) For present purposes, the Court reiterates only the facts

relevant to the Defendants’ objections3, as set forth in the

Defendants’ unopposed 56.1 Statement, and with reference to the

Amended Complaint for purposes of context.4

Exh. O, Online Prisoner Arraignment Form (“Arraignment Form”); 48-16, Exh. P.,

Criminal Complaint for Ismael Joel and Nelson (“Criminal Complaint”); 48-17,

Exh. Q, Ismael Joel Suren’s Certificate of Disposition (“Ismael Joel

Certificate”); 56-1; Supplemental Declaration of Inna Shapovalova (“Shapovalova

Supp. Decl.”); 56-2, Supplemental Deposition Excerpts of Plaintiff Ismael Joel

Suren (“Ismael Joel Dep.”); 56-3, Exh. B, Photograph 1; 56-4, Exh. C, Photograph

2.))

3 Because two of the Defendants’ three objections focus exclusively on alleged

deprivations of Plaintiff Ismael Joel’s constitutional rights, the facts

below highlight Ismael Joel’s circumstances around the time of the search and

arrest. The Court notes that Plaintiff Ismael Joel’s father, non-party

Ismael (Ismael Suren Jr.), is not a plaintiff in the case.

4 The Court notes that Plaintiffs may not rely on allegations in their

Complaint to raise an issue of fact in opposition to a motion for summary

judgment. Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (per curiam)

(“Fed. R. Civ. P. 56(e) expressly provides that a plaintiff opposing summary

judgment may not rely on his complaint to defeat the motion.”). Here,

Plaintiffs did not oppose Defendants’ summary judgment motion. Nonetheless,

because the Court must “liberally construe pleadings and briefs submitted by

pro se litigants, reading such submissions to raise the strongest arguments

they suggest,” the Court recounts certain allegations in the Plaintiffs’

Amended Complaint for purposes of considering as comprehensive a record as

possible for the non-moving Plaintiffs. Pierre v. Air Serv Sec., No. 14-cv-

5915 (MKB)(ST), 2016 WL 11396816, at *4–5 (E.D.N.Y. July 28, 2016) (quoting

Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)).

4

A. The Family and the Apartment

On or about February 19, 2018, Officer Defendants

executed a search warrant for 32 Starr Street, Apartment 3R,

Brooklyn, New York (the “Apartment”) and on the person of “Ismael

Suren” (non-party Ismael). The search warrant issued by the

Honorable Joseph E. Gubbay, of Kings County Criminal Court,

determined there was probable cause to search the Apartment for “a

firearm, ammunition, narcotics, narcotics paraphernalia, and

documents relating to the illegal possession of a firearm,

ammunition and narcotics.” (ECF No. 48-1, Exh. A, Search Warrant.)

The Apartment is a railroad-style unit. (ECF No. 48-2, Exh. B,

Ismael Joel Dep. at 19.) Upon entry to the Apartment, there is

the kitchen on one side and on the other side, the living room

with a one-seater sofa, a full sofa along the wall, and a TV stand.

(ECF No. 48, Exh. B, Joel Dep. at 19:18-19:19.) From the living

room, a door leads to the first bedroom (“Bedroom 1”). (ECF No.

48-3, Edgar Dep. at 17:22-18:19.) From Bedroom 1, there is a

doorless archway that leads to the second bedroom at the end of

the Apartment (“Bedroom 2”). (Id.) To access Bedroom 1, one must

walk through the living room, and to access Bedroom 2, one must

walk through the living room and Bedroom 1. (ECF No. 48-2, Exh.

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B, Ismael Joel Suren Dep., 46:12- 46:17.) The Plaintiffs keep the

door between the living room and Bedroom 1 open. (ECF No. 48-4,

Exh. D, Edgar Dep. at 17:15-17:17.) When the living room door is

open, all of the rooms are accessible and visible to each another.

(ECF Nos. 48-2, Exh. B, Joel Dep. (“So it’s like a big, open, like,

open view, that you can just walk right through to the next room

. . . everything is visible.”); 48-3, Exh. D, Edgar Dep. at 17:22-

18:19) (“It’s just open, and the living room is right on the other

side of my room.”).)

Plaintiff Lucia owns the Apartment and is the matriarch

of the family that includes the other Plaintiffs. Plaintiff Lucia

is the mother of non-party Edgardo, non-party Ismael, and Plaintiff

Nelson; in turn, non-party Ismael is the father of Plaintiff Ismael

Joel, and non-party Edgardo is the father of Plaintiff Edgar. (See

ECF No. 48-2, Exh B., Joel Dep. at 11:15-11:20; 48-3, Exh. C, Edgar

Dep. at 13:23-4:1; 48-4, Exh. D, Nelson Dep. at 12:11-12:16.) At

various times, each of the aforementioned family members,

including the Plaintiffs, would stay for varying lengths of time

with Lucia in the Apartment, including on the night of Officer

Defendants’ search. (ECF No. 48-11, Exh. K, Lucia Dep. at 20:02-

20:08.)

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B. The Apartment’s Occupants in February 2018

In February 2018, Lucia’s sons, non-party Ismael and

Nelson, and her grandchild Edgar, were living with her. (ECF No.

48-3, Exh. C, Nelson Dep. 19:08-19:11.) Ismael Joel, Lucia’s other

grandson and non-party Ismael’s son, was also staying on and off

with Lucia during this period. (ECF Nos. 48-2, Exh. B, Joel Dep.

at 24:14-24:18; 48-4, Exh. D, Edgar Dep. at 47:03-47:09.) Edgar

stayed in Bedroom 1 (ECF No. 48-4, Exh. D, Edgar Dep. 17:16-18:21)

or in Bedroom 2 with Lucia and slept on Lucia’s late husband’s

bed, which was next to her bed (ECF No. 48-11, Exh. K, Lucia Dep.

at 18:06-:18:16).5 Non-party Ismael slept in Bedroom 1, between

the living room and Bedroom 2. (ECF No. 48-11, Exh. K, Lucia Dep.

at 18:19-19:20.) Nelson also stayed in Bedroom 1 at the time.

(ECF No. 48-3, Exh. C, Nelson Dep. at 18:21-18:23.) As for their

belongings, Edgar shared a closet and dresser with Lucia in Bedroom

2. (ECF No. 48-4, Exh. D, Edgar Dep. at 19:4-19:15.) Nelson kept

his possessions in dressers and closets in both Bedroom 1 and

Bedroom 2. (ECF No. 48-3, Exh. C, Nelson Dep. 19:10-20:09.) It

5 Edgar and Lucia’s depositions conflict as to whether Edgar was staying in

Bedroom 1 or Bedroom 2, but this fact is not material to the summary judgment

determination and the objections.

7

is not clear from the record where non-party Ismael kept his

belongings.

On the night before the search and arrest, February 18,

2018, Ismael Joel slept at the Apartment. (ECF No. 48-2, Exh. B,

Ismael Joel Dep. at 24:14-24:18.) In February 2018, Ismael Joel

had been in New York for about six months. (ECF No. 48-2, Exh. B,

Joel Dep. 21:18-21:19.) While he was in New York, Ismael Joel

would stay half the week at his girlfriend’s home and three days

each week at Lucia’s home in the Apartment. (Id. at 21:24-22:23.)

When he did stay at the Apartment, Ismael Joel slept on the sofa

in the living room. (Id. at 20:14.) There was a “little space

right by the wall” where he would “leave his stuff” near the living

room sofa on which he slept. (Id. at 19:02-19:07.)

Ismael Joel’s girlfriend had a family home that was

roughly ten minutes by car and thirty minutes walking from the

Apartment. (Id. at 22:04-22:08.) He split his time between his

girlfriend’s and his grandmother Lucia’s apartments in order to

give his girlfriend’s family space. (Id. at 22:14-22:19.) At the

Apartment, he helped take care of errands for Lucia. (Id. at

22:19-22:23.) Ismael Joel noted that the proximity between his

girlfriend’s and grandmother’s apartments made it easy for him to

8

help his grandmother, Lucia, with tasks like taking out the garbage

or fixing something. (Id. at 22:01-22:21.) Ismael Joel and his

uncle Edgardo, who lived nearby, were always ready to assist Lucia.

Ismael Joel stated, “whatever that lady needs, we do it.” (Id. at

22:22-22:24.)

Ismael Joel was receiving mail at Lucia’s apartment in

February 2018. (ECF Nos. 48-11, Exh. K, Lucia Dep. at 20:9-20-

22:01 (“[Ismael Joel] used to get all his little nonsense mail

here” prior to the search); 48-3, Exh. C, Nelson Dep. 49:6-49:15

(in response to whether Ismael Joel received mail at the Apartment,

in February 2018, Nelson testified, “[a]s far as I know yes.”);

48-4, Exh. D, Edgar Dep. 90:17-90:22 (in response to whether Ismael

Joel received mail at the Apartment, in February 2018, Edgar

testified, “[m]ost likely, yes.”).) Lucia stated that all of her

children (non-party Edgardo, non-party Ismael, Nelson) were also

receiving mail at the Apartment because “they all rent rooms [at

the Apartment] and they needed a secure address.” (Id. at 20:02-

20:08.)

C. Ismael Joel’s Arrest

The search warrant provided the Officer Defendants with

authority to search for contraband at the Apartment and “on the

9

person of” a man identified as “Ismael Suren . . . if found on the

premises, and/or any person found there in.” (ECF No. 48-1, Exh.

A, Search Warrant.) The signature of the warrant by Judge Gubbay

established the existence of probable cause to believe that

ammunition and narcotics would be found at the Apartment or “on

the person” of Ismael Suren. (Id.) That evening, Officer

Defendants entered the Apartment pursuant to the search warrant

and after searching and finding contraband, including ammunition

and what appeared to be heroin, arrested Plaintiffs. (ECF No. 46,

Defs. 56.1 ¶¶ 9-10.)

On the day of the search, Ismael Joel was with his uncle

Edgardo when they received a call to go to the Apartment because

“something [had] happened in the house.” (ECF No. 48-2, Exh. B,

Ismael Joel Dep. at 24:03-24:11, 28:09-28:17.) Upon arrival, they

saw police activity and Ismael Joel was asked by the Officer

Defendants whether he lived at the Apartment and he responded,

“No, but I stay here, it’s my grandmother’s house.” (Id. at 28:12-

28:17.)6 The Officer Defendants asked Ismael Joel for his name

and he responded, “Ismael Suren,” and the police arrested him.

6 There is nothing in the record before the Court that demonstrates whether

the Defendants inquired or Ismael Joel told the Defendants, at the time of

the search and arrest, where in the Apartment he slept when he stayed there.

10

During the search, the Officer Defendants recovered

contraband present at the Apartment: six glassines of what appeared

to be (and was subsequently tested to be) heroin; six .380 caliber

cartridges; one 12-gauge caliber cartridge; one .41 caliber

cartridge; nine .25 caliber cartridge; four .38 caliber

cartridges; and seventeen .22 caliber cartridges (which

subsequently were tested and found to be operable). (ECF No. 49,

Defs. 56.1 ¶¶ 9-10; see also ECF Nos. 48-13, Exh. M, NYPD Heroin

Analysis; 48-14, Exh. N, NYPD Firearms Analysis.) The Officer

Defendants found heroin from “a closed dresser drawer” and heroin

and ammunition “on top of a second dresser in a bedroom where

[Plaintiffs] sleep.” (ECF No. 48-16, Exh. P, Criminal Complaint.)

When Lucia was informed that heroin was found among her grandson

Edgar’s clothes in her bedroom closet, she told the Officer

Defendants that she knew her son non-party Ismael used drugs. (ECF

Nos. 48-11, Exh. K, Lucia Dep. at 34:10-25, 36:20-37:7; 49, Defs.

56.1 ¶ 37.) As for the ammunition, the Officer Defendants

recovered bullet casings under a sofa in the living room. (ECF

No. 48-4, Exh. D, Edgar Dep. at 45:01-45:25.)7 Ismael Joel

7 At Edgar’s deposition the following exchange occurred: Q. To your

understanding, where were those bullets found? A. They found them under a sofa

-- it was under a sofa, in a metal casing . . . Q. And they were under a sofa

11

testified at his deposition that he did not know about the bullet

casings, but there is no evidence that he conveyed this information

to Officer Defendants prior to his arrest. (ECF No. 48-2, Exh. B,

Ismael Joel Dep. at 47:24-48:19.)8

In addition to the contraband recovered on February 19,

2018, Officer Defendants found and recovered a piece of mail

addressed to “Ismael Suren” and another piece of mail addressed to

“Ismael Suren Jr.” (ECF Nos. 49, Defs. 56.1 ¶ 11; 48-12, Exh. L,

NYPD Mail Invoice.)

D. The Apartment During the Search9

Plaintiffs sat on the living room couch while Officer

Defendants conducted a search of Bedroom 1 and 2 behind closed

doors. (ECF Nos. 48-4, Exh. D, Nelson Dep. at 33:20-34:8, 34:23-

36:2; 48-3, Exh. C, Edgar Dep. at 30:14-30:25.) Ismael Joel

in the living room? A. Yes. It was a metal plate like one you make cake in. Q.

Did you see the officers find the bullets? A. Yes. In the living room, yes, I

did. (ECF No. 48-4, Exh. D, Edgar Dep. at 45:01-45:25.)

8 Ismael Joel testified at his deposition as follows: Q. Okay. And do you know

if the officers found anything during the search? A: No. There was nothing like,

you know -- well, they -- supposedly, they found -- they found some bullets,

but I definitely know that that was my grandfather’s stuff, you know . . . Q.

So your understanding is that the officers found some bullets that belonged to

your grandfather; is that correct? A. Yes. Q. Okay. Do you know where those

bullets were kept inside of the apartment? A. No. Honest to God, no. Q. Do you

know where it was found? A. No. (ECF No. 48-2, Exh. B, Ismael Joel Dep. at

47:24-48:19.)

9 Some of the facts about the state of the Apartment during and after Officer

Defendants’ search are submitted by the Defendants in their objections, which

the Court accepts and considers for reasons further explained below.

12

testified that the Officer Defendants took his grandfather’s

ashes, but he did not personally see any of them take it. (ECF

No. 48-2, Exh. B, Ismael Joel Dep. at 69:07-69:25.) Plaintiffs

also allege they have requested that the police return the ashes,

but that the NYPD has not done so. (ECF No. 15, Am. Compl. ¶ 50.)

Plaintiffs’ Amended Complaint also alleges that Lucia lost her

rent money in the amount of $1,600, which she had in the Apartment

at the time of the search. (Id. ¶ 62.)

Ismael Joel further testified that the Officer

Defendants “destroy[ed] [the] place” in conducting the search.

(ECF No. 48-2, Exh. B, Joel Dep. at 47:01-47:05.) He described

that “everything [was] on top of [Lucia’s] bed, whatever was from

the room” including things that “don’t belong on a bed” like an

iron that was “probably leaking water.” (ECF No. 56-2, Exh. A,

Ismael Joel Dep. at 71:02-71:22.) He further testified that

“everything was gone” from the drawers, including medicine

scattered on the floor, and all of the kitchen cabinet contents

were on the table. (Id. at 72:13-73:25.) Ismael Joel also

described the Apartment’s front doorknob being broken. (Id. at

74:03-74:06.) The only two photographs produced by Plaintiffs and

submitted to the Court by Defendants in their objections show a

13

large pile of various items on Lucia’s bed and a small closet with

items falling out. (ECF Nos. 56, Defs. Obj. at 14-15; 56-3, Exh.

B, Photograph 1; 56-4, Exh. C, Photograph 2.)10

E. After the Arrest

Ismael Joel and Nelson were detained for a total of two

days after their arrests. (Am. Compl. ¶¶ 54.56.) They were then

brought before a judge and released on their own recognizance.

(ECF No. 48-15, Exh. O, Arraignment Form.) Ismael Joel was charged

with possession of ammunition and a controlled substance. (ECF

Nos. 48-2, Exh. B, Ismael Joel Dep. at 21:05-21:07; 48-5, Exh. E,

Ismael Joel Arrest Report.) He had several court appearances, and

his charges were ultimately dismissed on November 26, 2018. (ECF

No. 48-17, Exh. Q, Ismael Joel Certificate.)

PROCEDURAL BACKGROUND

Plaintiffs commenced this action represented by counsel.

(ECF Nos. 1, Compl.; 13, Am. Compl.) In September 2020,

Plaintiffs’ attorney reported that Plaintiffs had terminated his

representation and indicated Plaintiffs’ intention to retain

10 The two photos were not submitted with Defendants’ initial moving papers,

due to Defendants’ misunderstanding about Plaintiffs’ destruction of property

allegations in their unreasonable search and seizure claims. (ECF No. 56,

Def. Objs. at 13-14.)

14

substitute counsel. (ECF No. 34, Request to Withdraw Attorney.)

On October 6, 2020, Magistrate Judge Reyes granted the attorney’s

application to withdraw as Plaintiffs’ counsel. (Minute Entry

dated 10/6/2020.) Plaintiffs thereafter failed to appear by

substitute counsel, and by order dated November 30, 2020,

Magistrate Judge Reyes directed the Plaintiffs to proceed pro se

and to comply with a discovery schedule. (Nov. 30, 2020 Order.)

According to the docket, Plaintiffs then failed to appear at

subsequent conferences on February 17, 2021 and August 11, 2021

before Magistrate Judge Reyes. (Minute Entry dated 2/17/2020;

Minute Entry dated 8/11/2021.) Magistrate Judge Reyes noted in

the R&R that Plaintiffs did not submit any requests for discovery

and conducted no depositions after dismissing their attorney. (ECF

No. 52, R&R at 9.) Plaintiffs attended a settlement conference on

August 31, 2021 before the Magistrate Judge, but settlement

discussions proved unfruitful. (Minute Entry dated 08/31/2021.)

On January 10, 2022, Defendants filed their motion for

summary judgment pursuant to Federal Rule of Civil Procedure 56.

(ECF No. 46, Defs. Mot.) Defendants timely served pro se

Plaintiffs with notice of the motion, a memorandum of law,

supporting exhibits, and a 56.1 Statement of undisputed material

15

facts pursuant to Local Civil Rules 56.1 and 56.2. (ECF Nos. 45–

50.) Despite Magistrate Judge Reyes ordering a briefing schedule

for the motion (Oct. 21, 2021 Order), Plaintiffs did not file an

opposition or otherwise respond to Defendants’ motion, or request

additional time to do so. On April 19, 2022, the Court referred

Defendants’ motion to Magistrate Judge Reyes for a report and

recommendation. (Apr. 19, 2021 Order.)

In the R&R, the Magistrate Judge recommended that the

Court grant summary judgment on all of Plaintiffs’ claims against

Defendants except for three. (ECF No. 52, R&R at 3.) The three

claims for which the R&R recommended denial of summary judgment

were: (1) Ismael Joel’s false arrest and imprisonment claim; (2)

Ismael Joel’s malicious prosecution claim; and (3) all Plaintiffs’

unreasonable search and seizure claim based on the alleged

destruction of property. (Id. at 4.) On August 18, 2022, the

Court granted Defendants an extension of time to file objections.

(ECF No. 54, Motion for Extension of Time; Aug. 19, 2022 Order.)

The Court also provided Plaintiffs an extension of time to file

objections to the R&R and a response to Defendants’ anticipated

objections and submission of supplemental evidence. (Id.)

16

Plaintiffs did not file any objections. Defendants have

now filed objections to the R&R’s recommended denial of the three

claims described above. (ECF No. 56, Defs. Obj.) Plaintiffs have

not responded to the Defendants’ objections.

LEGAL STANDARD

When a party objects to an R&R, the Court must review de

novo those recommendations in the R&R to which the party objects.

See Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121

F.3d 34, 38 (2d Cir. 1997). Where a party does not object to a

portion of the R&R, the Court “‘need only satisfy itself that there

is no clear error on the face of the record.’” Galvez v. Aspen

Corp., 967 F. Supp. 2d 615, 617 (E.D.N.Y. 2013) (quoting Reyes v.

Mantello, No. 00-cv-8936, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9,

2003)). The Court may “accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the

Magistrate Judge with instructions.” Fed. R. Civ. P. 72(b)(3);

see also 28 U.S.C. § 636(b)(1).

Here, where the R&R considered a motion for summary

judgment, this Court determines whether the movant has

demonstrated “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

17

Fed. R. Civ. P. 56(a). “A fact is ‘material’ for these purposes

when it ‘might affect the outcome of the suit under the governing

law.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,

104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party.” Anderson, 477

U.S. at 249. “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at

249‒50 (internal citations omitted).

On summary judgment, the movant carries the burden of

demonstrating the absence of any disputed issues of material fact

and an entitlement to judgment as a matter of law. Rojas, 660

F.3d at 104. In reviewing the record submitted by the parties,

the Court must resolve all ambiguities and draw all reasonable

inferences against the moving party. Flanigan v. Gen. Elec. Co.,

242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The

Court must “liberally construe pleadings and briefs submitted by

pro se litigants reading such submissions to raise the strongest

arguments they suggest” but a “pro se plaintiff cannot simply rely

18

on the allegations in his complaint to withstand summary judgment.”

Bertin, 478 F.3d 491 (2d Cir. 2007); Jeffers v. City of New York,

No. 14-cv-6173, 2018 WL 904230, at *27 (E.D.N.Y. Feb. 13, 2018);

see also Champion, 76 F.3d 485 (2d Cir. 1996) (per curiam) (“Fed.

R. Civ. P. 56(e) expressly provides that a plaintiff opposing

summary judgment may not rely on his complaint to defeat the

motion.”).

DISCUSSION

Defendants object to the R&R recommending that the Court

deny summary judgment as to three of Plaintiffs’ claims brought

under 42 U.S.C. § 1983: (1) Ismael Joel’s false arrest and

imprisonment claim; (2) Ismael Joel’s malicious prosecution claim;

and (3) all Plaintiffs’ unreasonable search and seizure premised

on an unduly destructive search theory. For those section 1983

claims, this Court analyzes de novo Plaintiffs’ claims, including

the doctrine of qualified immunity—the individual Officer

Defendants’ “entitlement not to stand trial under certain

circumstances.” Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).

For any claimed constitutional violation, the qualified immunity

analysis proceeds in two parts. First, “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged

19

show the officer’s conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Garcia v. Does,

779 F.3d 84, 92 (2d Cir. 2015). The second part of the qualified

immunity analysis requires the Court to consider “whether [the]

right is clearly established”—i.e., “whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202; Zieper v. Metzinger,

474 F.3d 60, 71 (2d Cir. 2007) (“[T]he qualified immunity standard

gives ample room for mistaken judgments by protecting all but the

plainly incompetent or those who knowingly violate the law.”).

This Court may address the two qualified immunity parts

in either order. Pearson v. Callahan, 555 U.S. 223, 231 (2009)

([B]ecause qualified immunity is an immunity from suit rather than

a mere defense to liability . . . the Court has repeatedly . . .

stressed the importance of resolving immunity questions at the

earliest possible stage in the litigation. (quotation omitted)).

“Only Supreme Court and Second Circuit precedent existing at the

time of the alleged violation is relevant in deciding whether a

right is clearly established.” Torcivia v. Suffolk Cnty., New

York, 17 F.4th 342, 367 (2d Cir. 2021) (citing Moore v. Vega, 371

F.3d 110, 114 (2d Cir. 2004)).

20

The Court has reviewed Magistrate Judge Reyes’s thorough

and well-reasoned recommendation on Plaintiffs’ claims.

Magistrate Judge Reyes acknowledged that there is no clear Supreme

Court or Second Circuit law under the circumstances Officer

Defendants confronted during the search (ECF No. 52, R&R at 28-

30), and found certain aspects of the record sufficiently unclear

as to preclude summary judgment in its entirety. This Court in

its de novo review of the record as a whole, most respectfully

reaches a different conclusion from Magistrate Judge Reyes on the

claims detailed below and determines that to the extent the facts

or law before the Officer Defendants were unclear, those

circumstances require the application of qualified immunity.

A. Ismael Joel’s False Arrest and Imprisonment Claim

First, as to Plaintiff Ismael Joel’s false arrest and

imprisonment claim, Defendants contend that they had probable

cause for his arrest and if the Court finds otherwise, Officer

Defendants are entitled qualified immunity. “Probable cause is a

complete defense to an action for false arrest [and false

imprisonment].” Ackerson v. City of White Plains, 702 F.3d 15, 19

(2d Cir. 2012); see Hargroves v. City of New York, 411 Fed. App’x

378, 382 n.3 (2d Cir. 2011) (“False arrest is a species of false

21

imprisonment, so both claims are subject to the same legal

analysis.”). An officer has probable cause when he or she has

“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 . . . committed by

the person to be arrested.” Id. at 19. Moreover, through the

lens of qualified immunity, a showing that the officer had

“arguable probable cause,” or that it was “objectively reasonable

for the officer to believe that probable cause existed,” is

sufficient to defeat a false arrest and imprisonment claim. Garcia

v. Doe, 779 F.3d 84, 92 (2d Cir. 2015). The existence of probable

cause must be determined by reference to the totality of the

circumstances known to the Officer Defendants at the time of

arrest. See Illinois v. Gates, 462 U.S. 213, 238 (1983).

Defendants argue that there was probable cause to arrest

Ismael Joel because Officer Defendants reasonably believed that he

had constructive possession of the heroin and ammunition found in

the Apartment. (ECF No. 50, Defs. Mem. at 5.) Defendants proffer

the NYPD Mail Invoice as evidence that Ismael Joel was receiving

mail at the Apartment at the time of his arrest. (Id. at 6.)

Defendants also assert that Officer Defendants observed and seized

22

mail during the search with the name “Ismael Suren,” taken in the

context of Ismael Joel (whose full name is Ismael Joel Suren)

confirming to the Officer Defendants at the time of the search

that he “stayed” at the Apartment, and the accessible nature of

all rooms of the Apartment, reasonably led them to believe that

Ismael Joel exercised the requisite dominion and control over the

entire Apartment, where contraband was recovered, to establish

constructive possession of the narcotics and ammunition. (Id. at

7.) Officer Defendants argue, at minimum, that it was objectively

reasonable for the Officer Defendants to believe that Ismael Joel

had constructive possession of the contraband, and thus, they had

“arguable probable cause” to arrest him. (Id. at 8.)

In particular, under the constructive-possession

doctrine, an individual who exercises “dominion and control” over

contraband is considered to be in possession of that contraband.

United States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988) (per

curiam). Pursuant to the doctrine, probable cause to arrest exists

when the facts available to a police officer at the time of arrest

support a “reasonable inference” that an individual “exercised

dominion and control over” illegal contraband. Maryland v.

Pringle, 540 U.S. 366, 372 (2003). It is not “necessary for a

23

defendant to touch or exercise exclusive control over contraband

to possess it.” Rios, 856 F.2d 496. “What is required is

sufficient indicia of dominion and control.” Id.

The Court finds that in light of “the facts available to

the officer at the time of the arrest,” Officer Defendants had

probable cause to believe Plaintiff Ismael Joel exercised dominion

and control over the contraband found in the Apartment. Moreover,

the undisputed facts show, at a minimum, arguable probable cause

existed to arrest Ismael Joel, based on evidence (detailed further

below) from which a reasonable, competent officer could believe

that he was in constructive possession of the heroin and ammunition

found in the Apartment. See Ricciuti, 124 F.3d at 128 (stating

that the probable cause inquiry is based on the officer’s knowledge

at the time rather than on the complainant’s subjective

intentions); see Walcyzk v. Rio, 496 F.3d 139, 156–57 (2d Cir.

2007) (stating generally that probable cause is a somewhat fluid

concept that does not require a prima facie showing of

criminality).

The record reveals that, at the time of arrest, Officer

Defendants reasonably could have believed Ismael Joel had a

substantial, long-term connection to the Apartment, where his

24

father, grandmother, and other relatives stayed or resided. Ismael

Joel confirmed to the police officers that he was staying there

when the search warrant was being executed. (ECF No. 48-2, Exh.

B, Ismael Joel Dep. 21:18-21:19.) Although Ismael Joel apparently

slept on the living room couch and kept his belongings near the

sofa under which ammunition was found, a reasonable officer could

have understood that Ismael Joel’s presence at the Apartment was

not so clearly limited to the living room or that he did not have

dominion or control over the rest of the Apartment, including the

openly accessible Bedrooms 1 and 2, where heroin was found in a

drawer and heroin and ammunition were found on top of a dresser.

(ECF No. 48-16, Exh. P, Criminal Complaint (Officer Defendants

“recovered a quantity of heroin from a closed dresser drawer” and

“recovered a quantity of heroin and said ammunition on top of a

second dresser in a bedroom where Officer Defendants sleep”); 48-

11, Exh. K, Lucia Dep. at 33:2–34:25 (testimony indicating that

ammunition was kept and found in a drawer in the second bedroom

closet and heroin was found in a separate closet “between some

folded clothing”); 48-4, Exh. D, Edgar Dep. at 45:13–24 (testimony

indicating that ammunition was found in the living room “under a

sofa”).)

25

Even if contraband ammunition had not been recovered

from the living room, and even if Officer Defendants had realized

that Ismael Joel slept in the living room away from the contraband

in the bedrooms, there were further indicia of Ismael Joel’s

dominion and control over the entire Apartment. Ismael Joel was

present at the home on the day of the arrest and told the Officer

Defendants that he stayed there, the Apartment had an open layout

with an open door between the living room and Bedroom 1 and no

door between the two bedrooms, and Officer Defendants recovered

mail addressed to “Ismael Suren,” which a reasonable officer could

believe indicated Ismael Joel or his father lived at the Apartment.

In particular, as to the mail, the Court finds it “objectively

reasonable” that Officer Defendants could have believed the mail

was Ismael Joel’s rather than his father’s mail. Moreover, had

Officer Defendants understood Ismael Joel to be sleeping in the

living room, Officer Defendants found bullet casings under the

living room sofa, and thus could have reasonably believed that

Ismael Joel had a close connection to the contraband in the home.

(ECF No. 48-4, Exh. D, Edgar Dep. at 45:13–24 (testimony indicating

that ammunition was found in the living room “under a sofa”).)

26

Although “[m]ere proximity or presence is . . .

insufficient to support a finding of constructive possession,” in

this case, as described above, there was an objectively reasonable

connection between Ismael Joel and the contraband. United States

v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004). A reasonable

officer could have believed that Ismael Joel had access to the

areas in which the contraband was found and even knowledge that

the contraband existed. The Apartment had a railroad-style layout

and a living room with an open door that connected to Bedroom 1,

and had no door between Bedrooms 1 and 2, seemingly providing any

individual who stayed at the home easy access to all of the rooms.

Ismael Joel, moreover, was not a simple visitor. The Apartment

was his “grandmother’s,” Ismael Suren was named in the warrant,

and a reasonable officer could have understood that Ismael Joel’s

familial relation with his grandmother and father, who resided in

the Apartment, established his access to and within the home.

Moreover, because numerous family members resided or stayed in the

home and had belongings throughout the Apartment, these

observations objectively could have led an officer to form a

reasonable belief that some of the contraband belonged to Ismael

Joel.

27

Ismael Joel’s situation is similar to cases in the Second

Circuit where probable or arguable probable cause has been found,

such that qualified immunity is warranted. Courts have found

relevant to establishing constructive possession: “the presence of

documents pertaining to the [individual] in the same location as

the [contraband]” (as there was here), Haskins v. City of New York,

No. 15-CV-2016 , 2017 WL 3669612, at *5 (E.D.N.Y. Aug. 24, 2017)

(citation omitted); the discovery of contraband in the

individual’s bedroom (as there was here, in the living room where

Ismael Joel stayed), see Davis v. City of New York, No. 04-CV-

3299, 2007 WL 755190, at *5 (E.D.N.Y. Feb. 15, 2007); the presence

of the individual’s clothing or belongings in close proximity to

the contraband (as there was with Ismael Joel’s belongings in the

living room), see United States v. Gaviria, 740 F.2d 174, 185 (2d

Cir. 1984); Cruz, 2017 WL 3841870, at *2; the individual stayed at

the dwelling (as Ismael Joel did here); a small apartment where

the contraband was found in a common area, Caraballo v. City of

New York, 526 Fed. App’x 129, 131 (2d Cir. 2013); and the frequency

of time that the individual slept at a residence (in Facen, twice

a week, and here Ismael Joel slept at the Apartment three days per

week), United States v. Facen, 812 F.3d 280, 284 (2d Cir. 2016).

28

Essentially, the question is whether “everything together

suggest[ed] that [an individual] was more than just a casual

visitor” rather than a “temporary visitor” and could have

reasonably been connected to the contraband. Facen, 812 F.3d 284

(2d Cir. 2016). And where the case law here is so variable, this

Court cannot properly conclude that a reasonable officer would

have understood that he lacked probable cause to arrest Ismael

Joel. See Saucier, 533 U.S. at 202 (requiring qualified immunity

unless it is “clear” to a reasonable officer that conduct would be

unconstitutional).

In short, it would be unclear to a reasonable officer

that he should not arrest Ismael Joel based on a “totality of the

circumstances” confronting the Officer Defendants on February 19,

2018. See Illinois, 462 U.S. 238 (1983). Reviewing the undisputed

facts, officers of reasonable competence could at least disagree

on whether probable cause existed to arrest Ismael Joel on a theory

of constructive possession. Thus, even assuming that Officer

Defendants lacked probable cause, this Court cannot say that the

unlawfulness of their conduct was apparent in these circumstances.

See Anderson, 483 U.S. at 640. Accordingly, the Court grants

29

summary judgment to Defendants on Ismael Joel’s false arrest and

imprisonment claims.

B. Ismael Joel’s Malicious Prosecution Claim

The Court also grants Defendants’ motion for summary

judgment on Ismael Joel’s claim for malicious prosecution. To

succeed on a malicious prosecution claim under section 1983 in New

York, a plaintiff must show that (1) the defendant commenced or

continued a criminal proceeding against him; (2) the proceeding

was terminated in the plaintiff's favor; (3) there was no probable

cause for the proceeding; and (4) the proceeding was instituted

with malice. Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009);

Drummond v. Castro, 522 F.Supp.2d 667, 677–78 (S.D.N.Y. 2007).

Defendants object to the R&R’s recommended denial of

summary judgment on Ismael Joel’s malicious prosecution claim

arguing that Officer Defendants had at least “arguable probable

cause” to bring prosecution against Ismael Joel. (Id. at 8.)

Defendants contend that because the Officer Defendants could

reasonably believe Ismael Joel had constructive possession of the

contraband, there was also probable cause to prosecute him for the

related offenses. (Id.) Officer Defendants also assert the

recovery of the contraband at the Apartment later proved to be

30

heroin and operable ammunition, and there was no exculpatory

evidence discovered between the arrest and the prosecution. (Id.

at 10-11.) Lastly, Defendants argue there was no evidence of the

requisite malice that is needed to demonstrate that Officer

Defendants “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) (quotation and citation omitted). (Id. at 11.)

Because there is no dispute as to the first two elements of Ismael

Joel’s malicious prosecution claim, the questions the Court

addresses are whether Officer Defendants had sufficient probable

cause to prosecute Ismael Joel for unlawful possession of

ammunition and heroin, and whether their prosecution was motivated

by malice, specifically, a wrong or improper motive.

It is well established that “[t]he existence of probable

cause is a complete defense to a claim of malicious prosecution in

New York . . .” Manganiello v. City of New York, 612 F.3d 149,

161–62 (2d Cir. 2010) (alterations, citations, and quotation marks

omitted). Probable cause to prosecute exists where there are “such

facts and circumstances as would lead a reasonably prudent person

to believe the plaintiff guilty” of the specific crime charged in

31

the criminal proceeding. Boyd v. City of New York, 336 F.3d 72,

76 (2d Cir.2003; D’Angelo v. Kirschner, 288 Fed. App’x. 724, 726

(2d Cir. 2008); Posr v. Court Officer Shield # 207, 180 F.3d 409,

417 (2d Cir. 1999). As discussed above, the Court finds that

Officer Defendants had sufficient probable cause to arrest and

also prosecute Ismael Joel. Lowth, 82 F.3d 571 (2d Cir. 1996).

At minimum, Officer Defendants could have reasonably believed that

Ismael Joel had constructive possession and thus they had “arguable

probable cause” to charge him for possession of the contraband

found.

Moreover, Plaintiff Ismael Joel has not come forward

with any evidence of malice by Officer Defendants, or other wrong

or improper motives for commencing criminal proceedings. Fulton

v. Robinson, 289 F.3d 188, 198 (2d Cir. 2002) (quoting Lowth, 82

F.3d at 572.) (Malice in the context of malicious prosecution “does

not connote 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.’”). “A lack of probable cause generally

creates an inference of malice.” Boyd, 336 F.3d at 78 (citation

omitted). Moreover, for probable cause to dissipate between arrest

32

and prosecution, “the groundless nature of the charges must be

made apparent by the discovery of some intervening fact.” Pierre

v. City of New York, 531 F. Supp. 3d 620, 626 (E.D.N.Y. 2021)

(“Where probable cause to arrest existed, a plaintiff must show

that the defendants learned of some intervening facts undermining

probable cause between arrest and initiation of the prosecution,

or the claim of malicious prosecution cannot survive.”) Here,

there is no evidence that probable cause as to Ismael Joel

dissipated.

Although malice may be inferred from a lack of probable

cause, Lowth, 82 F.3d at 573, as already discussed, there is no

question as to whether the Officer Defendants had probable cause,

or at minimum, arguable probable cause, to arrest and prosecute

Ismael Joel for constructive possession, and so malice may not be

inferred on that basis. There is also no evidence that the Officer

Defendants learned of any intervening facts between Ismael Joel’s

arrest and initiation of prosecution to undermine that probable

cause. In fact, only more evidence (confirming the narcotics and

operable ammunition found) came to light. Actual malice is lacking

when a police officer reasonably chooses between conflicting

evidence. See Mazza v. City of New York, 1999 WL 1289623, *5–6

33

(E.D.N.Y. Jul 13, 1999). Plaintiffs have not proffered evidence

and the Court has not found any in the record that the Officer

Defendants had any personal animus toward Plaintiff or that they

were motivated by “improper motive” or “something other than a

desire to see the ends of justice served.” Lowth, 82 F.3d at 573.

Accordingly, the Court grants summary judgment on Ismael Joel’s

federal malicious prosecution claim.

C. Plaintiffs’ Destruction of Property Claim

Third and last, the Court grants summary judgment on

Plaintiffs’ unreasonable search and seizure claim, premised on an

unduly destructive search theory. In their objections, Officer

Defendants acknowledge that they did not submit evidence on summary

judgment as to the destruction of the property, because they

misconstrued Plaintiffs’ Amended Complaint to assert a claim for

unreasonable search and seizure only with regards to the validity

of Officer Defendants’ search warrant and the seizure of the

Plaintiffs’ relative’s ashes. (ECF No. 56, Defs. Obj. at 12-13.)

As a result, Defendants now submit to the Court the “only two

photographs produced by [P]laintiffs of the inside of the Apartment

after the execution of the search” and a deposition excerpt of

Ismael Joel describing the photographs and state of the home after

34

the search. (Id. at 14; ECF No. 56-1-4, Shapovalova Supp. Decl.,

Exh. A-C.) Defendants represent that Plaintiffs produced no other

photographs of the alleged property damage during the discovery

period. (Id. at 15.)

As an initial matter, the Court questions whether

Defendants reasonably did not construe the Amended Complaint to

allege that the search was conducted in a manner that destroyed

Plaintiffs’ property. Plaintiffs’ Amended Complaint expressly

alleges that Defendants “[tore] down the apartment, [broke]

furniture, kitchen cabinets, bed springs, among other things” and

“[destroyed] many properties at the subject premises.” (ECF No.

15, Am. Compl. ¶¶ 39, 50.)11 On de novo review, the Court, however,

will accept and consider Defendants’ supplemental evidence in

reviewing Defendants’ objections. See United States v. Raddatz,

447 U.S. 667675 (de novo review of a magistrate judge’s Report &

Recommendation means that a district court “‘give[s] fresh

11 Defendants also addressed the destruction of property issue by raising

common law defenses in their initial memorandum of law, in a section

entitled, “STATE LAW CLAIMS FOR PROPERTY DAMAGE AND DENIAL OF DUE PROCESS

FAIL.” (ECF No. 50, Def. Mem. at 22-24.) Moreover, as Magistrate Judge

Reyes notes in his R&R, Defendants “provide[d] in support of their motion

[for summary judgment] . . . some evidence beyond the allegations of the

Amended Complaint that property was destroyed in the course of the search,”

but he ultimately found the evidence insufficient to establish there were no

genuine issues of fact regarding Plaintiffs’ claim that the search was

conducted in an unduly destructive manner. (ECF Nos. 52, R&R at 22; 48-2,

Exh. B, Joel Dep. at 46:23–47:05, 70:21–70:25.)

35

consideration to those issues to which specific objection has been

made’”, quoting H.R. Rep. No. 94-1609, at 3); Hynes v. Squillace,

143 F.3d 653, 656 (2d Cir. 1998)(finding the district court had

discretion to accept Defendants’ explanation and supplemental

evidence when Defendants had not adequately construed Plaintiffs’

causes of action because “both [28 U.S.C.] § 636(b)(1) ([the

Federal Magistrates Act]) and Fed. R. Civ. P. 72(b) explicitly

permit the district court to receive additional evidence as part

of its review.”)

Officer Defendants assert in their objections that

Plaintiffs’ various depositions and the only two photographs

produced by Plaintiffs now conclusively establish that there is no

evidence or a genuine dispute of material facts as to whether

Officer Defendants conducted an unduly destructive search where

“officers wantonly damaged or destroyed property or conducted the

search in a manner inconsistent with its professed purpose of

finding illicit drugs[.]” Lewis v. City of Mount Vernon, 984 F.

Supp. 748, 756 (S.D.N.Y. 1997); Cody v. Mello, 59 F.3d 13, 16 (2d

Cir. 1995). (Id. at 15-16.) The Court agrees and acknowledges

that Magistrate Judge Reyes was not provided with the supplemental

evidence.

36

As an initial matter, the search warrant that was

executed by the Officer Defendants provided probable cause to

search within for contraband within the Apartment including but

not limited to closets, drawers, cabinets, and under furniture.

(ECF No. 48-1, Exh. A, Search Warrant.) “A search is presumptively

reasonable when executed pursuant to a warrant. A search warrant

issued by a neutral magistrate, upon a finding of probable cause,

must be afforded great deference and creates a presumption that

the officers executing the warrant acted in an objectively

reasonable fashion.” Merriweather v. City of New York, No. 12-

cv-5258, 2015 WL 57399, at *6 (S.D.N.Y. Jan. 5, 2015) (citations

omitted); see also United States v. Murtaugh, 382 Fed. App’x. 83,

85 (2d Cir. 2010) (citation omitted)). “The scope of a search

pursuant to a valid warrant is defined by the warrant’s description

of the premises and the objects of the search, and by the places

in which the officers have probable cause to believe those objects

may be found.” United States v. Kyles, 40 F.3d 519, 523 (2d Cir.

1994) (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987)). The

warrant provided a description of the building in which the

Apartment was situated but did not circumscribe the areas to be

searched within the Apartment or limit Officer Defendants’ search

37

to any of the rooms, confined spaces, drawers, cabinets, or

closets. (ECF No. 48-1, Exh. A, Search Warrant.) Accordingly,

Officer Defendants had authority to search the entire Apartment.

While “[e]xcessive or unnecessary destruction of

property” in the course of an otherwise valid search “may violate

the Fourth Amendment,” United States v. Ramirez, 523 U.S. 65, 71

(1998), “it is well recognized that ‘officers executing search

warrants on occasion must damage property in order to perform their

duty.’” Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995)(quotation

omitted)). Indeed, “it is settled that some disarray in conducting

a search, including the tangential destruction of items that could

not contain the object of the search, does not state a claim of

constitutional magnitude.” Dockery v. Tucker, No. 97–cv–3584,

2008 WL 2673307, at *10 (E.D.N.Y. June 26, 2008) (collecting

cases). To prevail, Plaintiffs must establish that Officer

Defendants acted “unreasonably or maliciously in bringing about

the damage.” Cody, 59 F.3d at 16 (“Mere negligence is not

enough.”) (citing Daniels v. Williams, 474 U.S. 327, 333–34

(1986)); see also Green v. City of Mount Vernon, 96 F. Supp. 3d

263, 290 (S.D.N.Y. 2015) (requiring “more than ordinary disarray

38

and damage incident to the execution of the warrant”) (citation

omitted)).

On the record before Magistrate Judge Reyes, he found

that “Plaintiffs have not presented any evidence regarding the

destruction of property beyond those allegations described in the

Amended Complaint.” (ECF No. 52, R&R at 22.) Where a “plaintiff

has not produced any documentary evidence to support his

allegations,” such as photos of broken property, receipts

documenting repairs, or sworn testimony attesting to specific

damages, he fails to meet his burden to “set out specific facts

showing a genuine issue for trial” and thus cannot survive a

summary judgment motion. Smith v. City of New York, 04-cv-3286,

2010 WL 3397683, at *13 (S.D.N.Y. Aug. 27, 2010) (quoting Fed. R.

Civ. P. 56(e)), aff’d sub nom. Smith v. Tobon, 529 Fed. App’x. 36

(2d Cir. 2013); see also Lewis, 984 F. Supp. 756 (S.D.N.Y. 1997)

(“[P]laintiffs have presented no evidence that the officers

wantonly damaged or destroyed property or conducted the search in

a manner inconsistent with its professed purpose . . . Rather, the

only inference that can be drawn is that the officers conducted a

thorough search, as they are permitted to do in executing a

warrant.”).

39

Reviewing the only two photographs produced to

Defendants by Plaintiffs and the deposition excerpts of Ismael

Joel describing the alleged destruction, the Court finds that

Plaintiffs have not presented sufficient evidence that Officer

Defendants acted in a malicious or unreasonable manner in

conducting their search. In the supplemental deposition

transcript of Ismael Joel provided by Defendants, Ismael Joel

describes “everything on top of the bed, whatever was from the

room” including “stuff that don’t belong on a bed” on Lucia’s bed

in Bedroom 1. (ECF No. 56-2, Exh. B, Joel Dep. at 71:03-71:71:23.)

Ismael Joel also testified that his family’s medicine was thrown

everywhere on the floor (id. at 72:21-:71:22) and that the front

door of the Apartment was broken (id. at 74:03-74:06). The

Plaintiffs, however, have not produced photographs of these

damages. The photographs Plaintiffs produced show belongings

(clothing, books, hats) piled and extending out of a drawer (ECF

No. 56-3, Exh. B, Photograph 1), and other belongings (shoes,

baseball mitt, exercise equipment, clothing, something resembling

a computer), all presumably removed from drawers and closets, piled

on top of Lucia’s bed (ECF No. 56-3, Exh. B, Photograph 2). The

photos taken by Plaintiffs do not depict damaged property.

40

Plaintiff’s assertion that it was unreasonable for the

Officer Defendants to break the front door and remove items from

the drawers and closets in carrying out the search fails, because

it is an accepted (if regrettable) fact that at times, “officers

executing search warrants on occasion must damage property in order

to perform their duty.” Dalia v. United States, 441 U.S. 238, 258

(1979). Plaintiffs cannot rest solely on their allegations to

establish a genuine issue of material fact. See Rogers v.

Cartagena, No. 10-cv-9285, 2013 WL 1285169, at *6 (S.D.N.Y. Mar.

28, 2013) (granting summary judgment because there was “no record

evidence to support” claims of property damage during search);

Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459,

469 n. 5 (S.D.N.Y. 2008) (“As for the fact that the officers

emptied dresser drawers during the search, we do not doubt that

this resulted in inconvenience to plaintiffs, but the argument

that it was a constitutional violation is baseless.”); Pina v.

City of Hartford, No. 07–CV–0657, 2009 WL 1231986, at *8 (D. Conn.

Apr. 29, 2009) (“Plaintiffs have put forth no evidence of the

destruction of property. [The executing officer] admits that

personal property was thrown around during the search . . . but

there is no indication that the detectives damaged the plaintiff's

41

property beyond what was necessary to effectuate a complete search

of the apartment.”) (internal citation and quotation marks

omitted).

Plaintiffs also alleged in their Amended Complaint that

in searching the Apartment, Officer Defendants “tore down the

apartment, breaking furniture, kitchen cabinets, bed springs,

among other things” and “destroy[ed] many properties at the subject

premises.” (ECF No. 15, Am. Compl. ¶¶ 39, 50.) Most troubling,

Plaintiffs allege that the urn containing the ashes of Lucia’s

husband, Miguel Santiago, was taken but not returned, and that

Officer Defendants are responsible for Lucia’s missing $1,600.

(Id. ¶ 62.) None of the Plaintiffs observed officers seizing the

ashes seized and there is no mention of Lucia’s money in the

Plaintiffs’ depositions before the Court. (ECF No. 48-2, Exh. B,

Joel Dep. 69:22;69:25.) (“They must have took [the urn]. They

must have took it. Because nobody in the house is going to get

rid of my grandfather.”) The Court notes that even if Officer

Defendants seized the late Miguel Santiago’s urn, believing they

needed to test it for heroin, it would be within the authority of

their search warrant. (ECF No. 48-1, Exh. A, Search Warrant.)

There is no evidence presented by Plaintiffs regarding damages or

42

loss from the alleged seizures. Plaintiffs cannot “overcome

summary judgment by relying on ‘mere speculation or conjecture as

to the true nature of the facts’ because ‘conclusory allegations

or denials’ are insufficient to create a genuine dispute of

material fact.” Jones v. Int’l Union of Operating Eng’rs, 671

Fed. App’x 10, 11 (2d Cir. 2016).

Having concluded there is no genuine dispute of material

fact that an unduly destructive search was conducted by the Officer

Defendants, the Court need not address whether Defendants would

nonetheless be protected by qualified immunity with respect to

this claim, as a reasonable officer would not know whether the

manner in which the search was conducted at the Apartment on

February 19, 2018, given the circumstances and established

constitutional law, was clearly unlawful. Zieper, 474 F.3d 71.

Accordingly, the Court grants summary judgment on Plaintiffs’

claim for an unreasonable search and seizure.

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CONCLUSION

Based on the foregoing reasons, Defendants’ objections

are sustained, and the R&R is adopted in part and modified in part.

The Court adopts Magistrate Judge Reyes’s thorough and well-

reasoned recommendation that summary judgment be GRANTED on the

false arrest and imprisonment claims of Plaintiffs Nelson

Santiago, Lucia Santiago, and Edgar Joel Suren and that the

following claims be DISMISSED: fabrication of evidence and fair

trial claims, property damage and denial of due process claims,

municipal liability claims, assault and battery claims, and

intentional and negligent infliction of emotional distress claims.

The Court also further dismisses all claims against the John and

Jane Doe Officer Defendants.

The Court most respectfully modifies Magistrate Judge

Reyes’s R&R to GRANT summary judgment with respect to (1) Plaintiff

Ismael Joel Suren’s false arrest and imprisonment claim; (2)

Plaintiff Ismael Joel Suren’s malicious prosecution claim; and (3)

all Plaintiffs’ unreasonable search and seizure claim for undue

destruction of property. Accordingly, summary judgment is GRANTED

as to the entirety of Plaintiffs’ claims against Defendants and

all claims are hereby dismissed. The Clerk of Court is

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respectfully ordered to enter judgment and close the case.

Defendants are ordered to serve each Plaintiff with a copy of this

Memorandum and Order and the Judgment.

SO ORDERED.

DATED: September 26, 2022

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge

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