The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------x
ZAIRE PAIGE-BEY,
Plaintiff,
MEMORANDUM AND ORDER
- against - 13-CV-7300 (RRM) (RER)
OFFICER RASHAN LACOSTE and
OFFICER DAVID LAWRENCE,
Defendants.
-------------------------------------------------------------------x
ROSLYNN R. MAUSKOPF, United States District Judge.
This is at least the third pro se civil rights action brought plaintiff Zaire Paige-Bey,
formerly known as Zaire Paige, (“Plaintiff” or “Paige-Bey”), against the City of New York, New
York City Police Department (“NYPD”), Officer Rashon LaCoste, other NYPD officers, and
others involved in the criminal justice system.1 This action – which arises from LaCoste’s
August 16, 2008, arrest of Plaintiff – originally named seven defendants and several causes of
action, but all claims except the malicious prosecution claims against LaCoste and his partner,
David Lawrence, (collectively, “Defendants”), have been dismissed. Defendants now move for
summary judgment with respect to the remaining claims, arguing that Plaintiff lacks evidence to
overcome the presumption of probable cause arising from Plaintiff’s indictment on the charges
for which LaCoste arrested him. For the reasons set forth below, that motion is granted in part
and denied in part.
BACKGROUND
The following facts are not in dispute. On August 16, 2008, LaCoste arrested Plaintiff
and three other men – Richard Reid, Steven Curtis, and a minor, A.R. – in a rear bedroom on the
1 Although some of Defendants’ submissions refer to defendant LaCoste as “Lacoste,” most refer to him as
“LaCoste.” Accordingly, this Court will assume that the latter is correct.
first floor of a two-family house located at 2052 Strauss Street in Brownsville, Brooklyn
(“2052”). A quantity of crack cocaine, $988 in cash, several pistols, and other gun-related items
were allegedly in plain view in the bedroom. The police did not see Plaintiff in physical
possession of any this contraband, aside from a gun which LaCoste alleges he saw Plaintiff drop.
However, under New York law, “[t]he presence of a narcotic drug … in open view in a room,
other than a public place, under circumstances evincing an intent to unlawfully mix, compound,
package or otherwise prepare for sale such controlled substance is presumptive evidence of
knowing possession thereof by each and every person in close proximity to such controlled
substance at the time such controlled substance was found ….” N.Y. Penal Law § 220.25(2). In
addition, constructive possession of contraband may be “established by showing that a defendant
exercised dominion and control over the place where contraband was seized.” People v. Manini,
79 N.Y.2d 561, 572–73 (1992).
Shortly after the arrest, LaCoste prepared an arrest report relating to Plaintiff. It alleged
that, at around 3:00 p.m. on August 16, 2008, LaCoste observed Plaintiff smoking marijuana.
(Arrest Report (Doc. No. 72-2) at 1.) When LaCoste approached him, Plaintiff ran into 2052.
(Id.) LaCoste pursued him and, while inside the building, observed unspecified “defendants” –
presumably, including Plaintiff – in possession of four firearms and crack cocaine. (Id.) The
arrest report described only one of those firearms – a silver Bauer .25 caliber semiautomatic
pistol, (id. at 2) – and did not state that LaCoste had observed Plaintiff in physical possession of
any firearms. According to the arrest report, Plaintiff did not live at 2052 but resided at 45
Riverdale Avenue, several blocks away. (Id.)
On August 17, 2008, a paralegal employed by the Kings County District Attorney
prepared a Criminal Court complaint relying on information obtained from LaCoste. (Criminal
Court Complaint (Doc. No. 72-1).) That complaint alleged that LaCoste saw Plaintiff drop a .25
caliber pistol containing five live rounds of ammunition on the floor of a bedroom located inside
2052. (Id.) It further alleged that the officer observed two other firearms – a 9-millimeter pistol
containing 14 live rounds of ammunition and another 9-millimeter pistol containing 11 live
rounds – lying on a bed and a quantity of crack cocaine sitting on a dresser in that room. (Id.)
According to the Criminal Court complaint, LaCoste observed A.R. in the bedroom with
Plaintiff. (Id.) Accordingly, the complaint accused Plaintiff of possessing the three guns and the
controlled substance in concert with A.R. (Id.) The complaint did not allege that any other men
were present in the bedroom, did not mention a fourth gun, and did not mention the $988.
Sometime in late 2008, Plaintiff and A.R. were jointly indicted for drug and gun
possession. (Indictment No. 10896/2008 (Doc. No. 72-5).) The 16-count indictment charged
both men with possessing four, not three, separate firearms on August 16, 2008. (Id.)
Specifically, the indictment charged both men with four counts of criminal possession of a
weapon in the second degree on the theory that they possessed the firearms with intent to use
them unlawfully against another in violation of New York Penal Law §265.03(1)(B), and four
counts of criminal possession of a weapon in the fourth degree on the theory that they knowingly
possessed the firearms in violation of New York Penal Law §265.01(1). The indictment also
charged A.R. alone with four counts of criminal possession of a weapon in the second degree on
the theory that he knowingly possessed a loaded firearm somewhere other than in his home or
place of business in violation of New York Penal Law §265.03(3).
Plaintiff alleges, and Defendants do not deny, that he was acquitted on all charges.
(Plaintiff’s Affidavit in Opposition to Motion to Dismiss (Doc. No. 26-1) at 1.) This action
ensued.
This Action
Plaintiff’s original complaint, filed in December 2013, and amended complaint, filed in
April 2014, both named the same seven defendants: LaCoste, Lawrence, the City of New York,
its mayor and police commissioner, the Kings County District Attorney, and the Assistant
District Attorney assigned to Plaintiff’s case. Both pleadings also listed six causes of action,
including a malicious prosecution claim. In May 2014, Corporation Counsel of the City of New
York appeared on behalf of all defendants except Lawrence. The following month, Corporation
Counsel moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Court granted that motion in large part, dismissing all claims except the malicious prosecution
claims against defendants LaCoste and Lawrence. (12/7/2016 Memorandum and Order (Doc.
No. 32) at 17.)
After Plaintiff filed a second amended complaint, (Doc. No. 34), and Defendants
answered that pleading, (Doc. No. 35), Defendants moved for summary judgment on the
malicious prosecution claims, arguing that Plaintiff had failed to adduce sufficient evidence to
support such claims. Defendants argued 1) that Defendants did not initiate a criminal proceeding
against Plaintiff, 2) that Plaintiff had not adduced sufficient evidence to overcome the
presumption of probable cause arising from the indictment, 3) that Plaintiff adduced no evidence
of malice, and 3) that Plaintiff could not establish a deprivation of liberty. (See Memorandum of
Law in Support of Defendants’ Motion for Summary Judgment (Doc. No. 61).)
In a Memorandum and Order dated March 29, 2019 (the “2019 M&O”), the Court denied
that motion with leave to renew. The Court held that due to Plaintiff’s “inartful pleadings” and
Defendants’ “meager and inadequate briefing on the motion,” the Court could not “conclusively
address two key issues underlying the … claim of malicious prosecution: the initiation
requirement, and whether Paige-Bey has overcome the presumption of probable cause created by
his indictment by the grand jury.” (2019 M&O (Doc. No. 66) at 8–9.) With respect to the latter
issue, the Court held that Defendants’ briefing was “inadequate with respect to whether Paige-
Bey has overcome, through the affidavits of his relatives and other evidence, the presumption of
probable cause created by his grand jury indictment.” (Id.) However, the 2019 M&O held that
Plaintiff had established a post-arraignment deprivation of liberty, holding that Plaintiff “was in
fact required to appear at [post-arraignment] court proceedings relating to the prosecution in
question.” (Id. at 12.)
The 2019 M&O acknowledged that Plaintiff was required to meet the “competing
testimony plus” standard established in Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir.
2003), in order to overcome the presumption of probable cause arising from Plaintiff’s
indictment. However, the Court noted that Plaintiff’s own affidavit alluded to “trial evidence”
that might provide the “plus factor.” (2019 M&O at 11.) That affidavit suggested that there was
evidence that “a gun that was supposed to have been loaded with a magazine could not possibly
have been loaded, [that] suspicious substances were found in the recovered narcotics [, that] …
neither Paige-Bey’s DNA nor his fingerprints were found on the gun Paige-Bey was purportedly
holding in his hand immediately before the gun was recovered [, and that although] … an
exclusionary DNA sample was requested from Officer LaCoste, … he refused to provide one.”
(Id. (internal citations omitted).) The Court noted that Defendants’ first motion for summary
judgment did “not even address this evidence, or discuss how it fit[ ] in to the ‘competing
testimony plus’ standard.” (Id.)
Although Defendants timely filed a second motion for summary judgment, the Rule 56.1
Statement included in that submission pertained to entirely different case. Accordingly, the
Court denied that motion on procedural grounds. (3/31/2020 Memorandum & Order (Doc. No.
77) at 3.) However, noting that the failure to provide a proper Rule 56.1 Statement appeared
“inadvertent,” the Court granted Defendants leave to renew the motion yet again. (Id. at 2.)
The Instant Motion
On May 28, 2020, Defendants served Plaintiff with the instant motion: their third motion
for summary judgment. According to Defendants’ counsel’s Declaration of Service, Plaintiff
was served with five documents: a Notice of Motion, a Rule 56. 1 Statement, a Notice Pursuant
to Local Civil Rule 56.2, a Declaration of Assistant Corporation Counsel Joseph Gutmann and
annexed exhibits, and a Memorandum of Law in Support of Defendants’ Motion for Summary
Judgment. (Declaration of Senior Counsel Omar J. Siddiqi (Doc. No. 81).) Since the Rule 56.1
Statement was the only one of the five documents subsequently filed on the Court’s Electronic
Case Filing System, the Court assumes that the other four documents were substantively
identical to those filed in support of the second motion for summary judgment: i.e., Docs. No. 69
and 71–73.
Defendants’ Memorandum of Law in Support of their Renewed Motion for Summary
Judgment (“Defendants’ Memo”) (Doc. No. 73), focuses entirely on the question of whether
Plaintiff’s evidence is sufficient to overcome the presumption of probable cause created by his
indictment. It specifically urges the Court to “disregard” the affidavits of Plaintiff’s mother,
Stephanie Ayeni, and sister, Zane Pauling – both of which contradicted LaCoste’s claim that
Plaintiff was found in the bedroom with the contraband – characterizing them as “lacking in
credibility” and “contradicting plaintiff’s own sworn testimony” at trial. (Id. at 7.) Defendants
also note that these relatives’ claim that officers forcibly brought Plaintiff from the second floor
to the first-floor bedroom is contradicted by a statement A.R. made to the police, in which he
stated that he and Plaintiff decided to go downstairs after hearing a commotion on the first floor.
(Id.) However, the only legal authorities Defendants cite for the proposition that the Court can
disregard this testimony are Hale v. Mann, 219 F.3d 61 (2d Cir. 2000), and Mack v. United
States, 814 F.2d 120 (2d Cir.1987), both of which stand for the proposition that “a party’s
affidavit which contradicts his own prior deposition testimony should be disregarded on a motion
for summary judgment.” Hale, 219 F.3d at 74 (quoting Mack, 814 F.2d at 124).
Defendants’ Memo points out that Plaintiff has not provided transcripts or other proof to
substantiate the existence of trial testimony showing that the magazine for the gun which
Plaintiff was allegedly holding did not fit. (Defendants’ Memo at 6–7.) It also argues that the
absence of DNA and fingerprint evidence and LaCoste’s refusal to supply a sample of his own
DNA do not affirmatively support Plaintiff’s version of events. (Id. at 8–9.) Defendants assert
that it is possible that no DNA evidence or fingerprints could be recovered, and “possible that
defendant LaCoste was mistaken in his belief that it was plaintiff who was in possession of the
gun in question, but that there remained probable cause to arrest plaintiff based upon the guns,
ammunition, and drugs in the room in which plaintiff was present.” (Id. at 9.) Defendants do not
argue that LaCoste was never asked for a DNA sample, only that he had “no duty” to do so. (Id.
at 9.)
Plaintiff’s Response
Plaintiff has responded to Defendants’ submissions with an unsworn affidavit, which
attaches 16 exhibits. This affidavit (hereafter, “Plaintiff’s Affidavit”) contains arguments and
exhibits responsive to points raised in Defendants’ Memo. But it also contains several exhibits
suggesting that LaCoste misled the Grand Jury.
First, Plaintiff’s Affidavit attaches statements of three persons who claim to be witnesses
to the events of August 16, 2008. Two of the statements are in the form of nearly identical
sworn affidavits signed by Plaintiff’s mother, Stephanie Ayeni, and sister, Zane Pauling.
(Plaintiff’s Aff. (Doc. No. 82), Ex. A.) The third is a signed statement made to LaCoste by
Plaintiff’s co-defendant, A.R.
Those statements are not entirely consistent. Plaintiff’s mother and sister both claim that
they saw LaCoste drag Plaintiff down a staircase and into a room where other men were already
handcuffed. In contrast, A.R. told LaCoste that he and Plaintiff ran downstairs when the heard a
commotion, and were told by police to come into a room where they were handcuffing two other
men, (id., Ex. B.) However, the three statements are consistent in that they all attest to the fact
that Plaintiff was in 2052 to get or visit his infant daughter and was upstairs at the time that
LaCoste entered the downstairs bedroom. Although Plaintiff himself urges the Court to
disregard A.R.’s statement since it is unsworn and might be a product of coercion, he argues that
the Court should not determine Ayeni’s and Pauling’s credibility but should leave that decision
to the jury. (Id. at 2.)
Second, Plaintiff’s Affidavit attaches an Evidence Collection Team Report completed by
a Police Officer Hector Deleon. (Id., Ex. E.) According to Deleon’s report, he went to the 73rd
Precinct on the evening of August 16, 2008, to process the two firearms LaCoste allegedly found
on the bed. (Id., Ex. E.) Both firearms were checked for fingerprints “with white powder
yielding negative results.” (Id.) However, three swabs of skin-cell DNA were recovered from
each firearm and sent to the Office of the Chief Medical Examiner for DNA analysis. (Id.)
According to Deleon, LaCoste refused to provide a “buccal elimination swab.” (Id.) Plaintiff
has not introduced evidence of the results of the DNA analysis, but persuasively argues that the
prosecution would have have introduced any DNA evidence that incriminated him. (Id. at 5.)
LaCoste’s Grand Jury Testimony and Other Evidence Submitted by Plaintiff
Among the exhibits attached to Plaintiff’s Affidavit is a transcript of testimony LaCoste
gave on October 29, 2008. (Id., Ex. M.) Although nothing in the transcript indicates that this
testimony was made before the Grand Jury, the Court notes that only prosecutors were present at
the time LaCoste testified and that Plaintiff alleges that his case was presented to the Grand Jury
on October 29, 2008. (Id. at 8.) The Court concludes that this is a transcript of LaCoste’s Grand
Jury testimony, which Plaintiff’s counsel would have received prior to LaCoste’s testimony at
trial. See People v. Rosario, 9 N.Y.2d 286 (1961).
That testimony gives an account of the incident that is inconsistent with the account set
forth in the arrest report. According to LaCoste’s Grand Jury testimony, he was walking down
Strauss Street in plain clothes at 3:00 p.m. on August 16, 2008, and saw a man sitting on the
steps of 2052. (Id., Ex. M., at 5.) When LaCoste said, “Police, don’t move,” the man ran in the
front door of the two-family home and straight into a back room. (Id., Ex. M., at 6.) The officer
then gave chase and tackled the man as he entered the room. (Id., Ex. M., at 7.) LaCoste never
told the Grand Jury the name the man he chased, but he later testified that the man was Richard
Reid, not Plaintiff. (Id., Ex. O, at 1033.)
LaCoste told the Grand Jury that, after tackling the man, he looked up to see two
individuals. (Id., Ex. M., at 7.) One, later identified as Plaintiff, had a firearm in his hand, but
dropped it on the floor “once he saw” the officer. (Id., Ex. M., at 7.) Immediately thereafter,
LaCoste saw a second man, later identified as A.R., who was sitting on a bed, throw a firearm
towards a shoe box located roughly two feet from LaCoste. (Id., Ex. M., at 7.)
According to LaCoste, the room contained a quantity of contraband – almost all of which
happened to be in plain view. There was a 9-millimeter Ruger loaded with 14 rounds, a silver
Taurus loaded with 11 rounds, a black magazine for an AK-47, and a gun cleaning kit on the
bed. (Id., Ex. M., at 9.) There was a “white-powdery-rocky substance” on the dresser. (Id., Ex.
M., at 9.) The $988 was on top of a television set. (Id., Ex. M., at 11.)
During his testimony, LaCoste was asked if any of the individuals he had placed under
arrest at the scene made statements. (Id., Ex. M., at 11.) LaCoste mentioned only two
statements. First, he claimed that Plaintiff told the man whom LaCoste had chased into the
house that “he was about to eat everything that was found there in his house” – a statement
which LaCoste interpreted as meaning that “[h]e was going to take the rap for everything in the
house.” (Id., Ex. M., at 11–12.) Second, LaCoste claimed that Plaintiff told him “the reason he
had the firearms was because he thought they were getting robbed.” (Id., Ex. M., at 12.)
Neither of these statements were included in the Notice pursuant to New York Criminal
Procedure Law §710.30(1)(a), which is included in Exhibit B to Plaintiff’s Affidavit. However,
that document discloses that both Richard Reid and Plaintiff made statements to LaCoste on
August 16, 2008, about which the Grand Jury was not informed. First, at approximately 3:25
p.m., while still at 2052, Richard Reid said, in sum and substance, “That’s my money. Can I get
my money?” (Id., Ex. B.) Two minutes later, Plaintiff told LaCoste, in sum and substance, that
he did not live at 2052. (Id., Ex. B.)
LaCoste not only did not mention these statements to the Grand Jury, but implied that
the room containing the contraband was Plaintiff’s bedroom. The prosecutor asked: “In the
bedroom, were there any photographs or any way of determining who resided there?” (Id., Ex.
M., at 12.) LaCoste testified that there were photographs of Plaintiff “with his family.” (Id., Ex.
M., at 12.)
Plaintiff does not deny that there were photographs of him on the bedroom walls. Rather,
Plaintiff’s Affidavit attaches a photograph which, he argues, shows there were “many, many,
many photos” on the walls. (Id. at 7, Ex. I.) Plaintiff’s Affidavit asserts that 2052 was owned by
the family of his child’s mother, who testified at his trial that her male cousins lived in the room.
(Id. at 5.) According to Plaintiff, the photos also depict his co-defendants – the three men who
were arrested with him. (Id. at 7.)
Plaintiff’s Affidavit attaches post-arrest paperwork suggesting that the police themselves
believed that Plaintiff lived three blocks away and that at least one of his co-defendants lived at
2052. In addition to LaCoste’s arrest report, discussed above, a Property Clerk’s Invoice
prepared the date of the arrest, (id., Ex. J.); a Complaint Follow-up form dated August 16, 2008,
(id., Ex. N); a Complaint Follow-up form dated August 22, 2008, (id., Ex. K); a Complaint
Follow-up form dated January 15, 2009, (id., Ex. K); and an arrest warrant issued January 13,
2009, (id., Ex. P), all listed Plaintiff’s address as 45 Riverdale Avenue, Brooklyn. The
Complaint Follow-up forms dated August 22, 2008, and January 15, 2009, both reported that
Steven Curtis, one of the four men arrested with Plaintiff, lived at 2052. (Id., Ex. K.) However,
the Complaint Follow-up form dated August 22, 2008, indicates that the prosecution declined to
prosecute Curtis for reasons which are not disclosed, and LaCoste’s Grand Jury testimony made
no mention of him or the existence of a fourth man in the room.
Plaintiff’s Affidavit claims that LaCoste’s Grand Jury testimony was false in stating that
Plaintiff 1) was in physical possession of a firearm, 2) was downstairs when the officers entered
the bedroom, and 3) was residing in the bedroom. (Id. at 9.) It further alleges that LaCoste
provided this false information to prosecutors with the intention of having Plaintiff charged,
indicted, and convicted on false charges. (Id. at 9.) Plaintiff asserts that the malice arises from
the fact that Plaintiff filed complaints about the 73rd Precinct, where LaCoste worked, prior to
August 16, 2008. (Id. at 7.) As proof of this malice, Plaintiff attaches a copy of a “mug shot” –
allegedly taken on August 16, 2008 – which shows Plaintiff in front of a poster disparaging the
Civil Complaint Review Board (“CCRB”). (Id. at 6 & Ex. G.)
Although almost all the evidence provided by Plaintiff relates solely to LaCoste,
Plaintiff’s Affidavit argues that Lawrence is also liable for malicious prosecution. (Id. at 10.) It
alleges that Lawrence participated in bringing Plaintiff downstairs and failed to inform his
supervisors of LaCoste’s wrongdoing, including a threat LaCoste alleged made to Plaintiff in
which he said that he would charge Plaintiff with possession of everything in the house unless
Plaintiff told LaCoste what he “want[ed] to know.” (Id. at 10–11.) Plaintiff’s Affidavit also
implies that Lawrence testified falsely at trial, (id. at 11), though it does not allege that Lawrence
ever testified before the Grand Jury, prepared any paperwork related to the incident, or knew
what actions LaCoste was taking in furtherance of the prosecution.
Defendants’ Reply
In their Reply Memorandum of Law (“Defendants’ Reply”) (Doc. No. 85), Defendants
principally argue that Plaintiff “has provided no evidence beyond conclusory allegations that the
defendant officers fabricated evidence.” However, the only evidence that Defendants’ Reply
specifically addresses are the Ayeni and Pauling affidavits. Defendants do not mention or
address the admissibility of the other documents attached to Plaintiff’s Affidavit.
Although Defendants’ Memo addressed only the probable cause element, Defendants’
Reply faults Plaintiff for failing to respond to issues raised in the April 6, 2018, memorandum of
law filed in support of Defendants’ original motion for summary judgment. Specifically,
Defendants’ Reply argues that Plaintiff failed to rebut 1) the argument that he has not adduced
evidence from which malice can be inferred and 2) the argument that Plaintiff suffered no
additional deprivation of liberty due to his arrest in this matter. In addition, Defendants argue
that although Plaintiff filed a Rule 56.1 Statement, that document fails to comply with the
requirements of Local Rule 56.1 and that all statements contained in Defendants’ Rule 56.1
statement should be accepted as true.2
STANDARD OF REVIEW
Summary judgment is warranted where the “pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
“The moving party bears the initial burden of showing that there is no genuine dispute as to a
material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018) (quoting CILP Assocs., L.P. v.
PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013)). “When the burden of proof
at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a
lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.”
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). If the initial burden is
met, “the nonmoving party must come forward with admissible evidence sufficient to raise a
genuine issue of fact for trial in order to avoid summary judgment.” Id. If the nonmovant cannot
“make a sufficient showing on an essential element of her case with respect to which she has the
burden of proof,” summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).
2 Although Plaintiff filed a handwritten sur-reply, (Doc. No. 86), that submission was not authorized by the Court
and will be disregarded.
An affidavit or declaration submitted to oppose a motion for summary judgment “must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
“A party opposing summary judgment normally does not show the existence of a genuine issue
of fact to be tried merely by making assertions that are based on speculation or are conclusory.”
S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2021) (citing cases). However,
since “it is ordinarily impossible to state all of the facts that show that an event never occurred,”
United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998), “a conclusory statement that an event
has not occurred, from a party having personal knowledge, may be sufficient to forestall
summary judgment.” S. Katzman Produce Inc., 999 F.3d at 878 (citing SCR Joint Venture L.P.
v. Warshawsky, 559 F.3d 133, 138–40 (2d Cir. 2009)).
In deciding a motion for summary judgment, the Court must “construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(internal quotation marks and citation omitted). “[I]n reviewing the evidence and considering
what inferences may reasonably be drawn, the court ‘may not make credibility determinations or
weigh the evidence.’” S. Katzman Produce Inc., 999 F.3d at 877 (quoting Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000)). “Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge.” Reeves, 530 U.S. at 150 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). Accordingly, “[t]he evidence of the non-movant is to be believed, … even
though contrary inferences might reasonably be drawn[.]” S. Katzman Produce Inc., 999 F.3d at
877 (internal quotation marks and citations omitted).
DISCUSSION
The only claims remaining in this civil right action allege malicious prosecution by
NYPD Officers LaCoste and Lawrence. “In order to prevail on a § 1983 claim against a state
actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth
Amendment … and must establish the elements of a malicious prosecution claim under state law
….” Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (internal citations
omitted). “To establish a malicious prosecution claim under New York law, a plaintiff must
prove ‘(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.’” Id. at 161 (quoting Murphy v.
Lynn, 118 F.3d 938, 944 (2d Cir. 1997)). In addition, a plaintiff “must show some post-
arraignment deprivation of liberty that rises to the level of a constitutional violation.” Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110, 117 (2d Cir. 1995) (citing Memphis Community Sch. Dist. v.
Stachura, 477 U.S. 299, 309 (1986)).
A. The Issues Raised in the Instant Motion
The only issue raised in the instant motion for summary judgment relates to the absence
of probable cause. The original motion for summary judgment in this case raised arguments
relating to other elements: 1) that Defendants did not initiate a criminal proceeding against
Plaintiff, 2) that Plaintiff adduced no evidence of malice, and 3) that Plaintiff could not establish
a deprivation of liberty. (See Memorandum of Law in Support of Defendants’ Motion for
Summary Judgment (Doc. No. 61).) However, the Court denied that motion with leave to renew,
holding that it could not grant summary judgment in light of Defendants’ “meager and
inadequate briefing.” (2019 M&O at 8.) Defendants subsequently filed a second motion for
summary judgment, but that motion addressed only the probable cause issue. (See Memorandum
of Law in Support of Defendants’ Renewed Motion for Summary Judgment (Doc. No. 73).)
Although Defendants were subsequently granted leave to file this, their third motion for
summary judgment, Defendants did not file a new memorandum of law in support of the instant
motion.
For reasons which are unclear, Plaintiff’s Affidavit addresses the issue of whether he
suffered a post-arraignment deprivation of liberty. (Plaintiff’s Affidavit at 12.) The Court’s
2019 M&O resolved that issue in Plaintiff’s favor, holding that because he “was in fact required
to appear at [post-arraignment] court proceedings relating to the prosecution in question,”
Plaintiff had suffered a Fourth Amendment deprivation of liberty. (2019 M&O at 12 (citing
Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013); Evans v. City of New York, No. 12-CV-
5341 (MKB), 2015 WL 1345374, at *6 (E.D.N.Y. Mar. 25, 2015)). Although Defendants’ Reply
addresses this argument, (Defendants’ Reply at 7–9), the Court will not revisit this issue.
The Court will also not address Defendants’ argument regarding Plaintiff’s failure to
prove malice, which is raised for the first time in Defendants’ Reply Memo. While the Court
“has discretion to consider arguments made and evidence submitted for the first time in a reply
brief,” Kingstown Cap. Mgmt., L.P. v. Vitek, No. 20-3406, 2022 WL 3970920, at *1 (2d Cir.
Sept. 1, 2022) (summary order) (citing Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d
Cir. 2005)), the Court declines to exercise that discretion in this case. The 2019 M&O implicitly
rejected this argument by failing to grant relief on Defendants’ original motion for summary
judgment – which expressly raised it – and Defendants did not renew the argument in their
subsequent memorandum of law in support of summary judgment.
The Court must address one other argument raised in Defendants’ Reply: the argument
that Plaintiff “has failed to fully oppose [D]efendants’ Rule 56.1 Statement,” and that “all facts
contained therein should be deemed admitted” pursuant to Rule 56.1(c). This argument is
without merit. Plaintiff’s Affidavit attaches a seven-paragraph 56.1 Statement, which
controverts each of the seven paragraphs contained in Defendants’ 56.1 Statement. Although it
may not respond to every allegation of material fact in Defendants’ 56.1 Statement and may not
cite to all the evidence in support of Plaintiff’s allegations, Plaintiff’s 56.1 Statement constitutes
an excellent effort to comply with the Local Rule. The Court declines to sanction the pro se
Plaintiff for a less-than-perfect compliance with Local Rule 56.1.
B. Probable Cause
As discussed above, the “absence of probable cause is an essential element of a claim for
malicious prosecution.” McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006) (citing Colon v.
City of New York, 60 N.Y.2d 78, 82 (N.Y. 1983). An indictment “gives rise to a presumption
that probable cause exists,” but “the presumption may be rebutted by evidence of various
wrongful acts on the part of police.” Id. However, the presumption “can only be overcome by
evidence that the indictment ‘was the product of fraud, perjury, the suppression of evidence by
the police, or other police conduct undertaken in bad faith.’” Bermudez v. City of New York, 790
F.3d 368, 377 (2d Cir. 2015) (quoting Green v. Montgomery, 219 F.3d 52, 60 (2d Cir. 2000)).
Since “it is the plaintiff who bears the burden of proof in rebutting the presumption of
probable cause that arises from the indictment,” Savino v. City of New York, 331 F.3d 63, 73 (2d
Cir. 2003), the plaintiff is required to “establish what occurred in the grand jury, and … that
those circumstances warrant a finding of misconduct sufficient to erode the ‘premise that the
Grand Jury acts judicially.’” Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (quoting
Colon, 60 N.Y.2d at 82). A plaintiff cannot satisfy the burden “with mere ‘conjecture’ and
‘surmise’ that his indictment was procured as a result of conduct undertaken by the defendants in
bad faith.” Savino, 331 F.3d at 73 (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991)). “Where the plaintiff’s only evidence to rebut the presumption of probable cause is her
own version of events, courts find such evidence ‘to be nothing more than mere conjecture and
surmise ….’” Merrill v. Copeland, No. 19-CV-1240 (BKS)(ML), 2022 WL 3212075, at *16
(N.D.N.Y. Aug. 9, 2022) (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 273
(S.D.N.Y. 2010)).
Conversely, where “the Court is presented with more than just the plaintiff’s version of
events, a question of fact may exist as to the propriety of the grand jury indictment.” Brandon,
705 F. Supp. 2d at 273. What additional evidence is sufficient to meet this so-called “competing
testimony plus” standard is difficult to quantify. However, “[w]here evidence shows that a
police officer, knowing that no crime has been committed, presses the prosecution of criminal
charges ‘solely in order to further [the officer’s] own personal goals,’ a claim of ‘bad faith’
survives summary judgment.” McClellan, 439 F.3d at 146 (quoting Marshall v. Sullivan, 105
F.3d 47, 55 (2d Cir. 1996)). Similarly, district courts have found the “competing testimony plus”
standard to have been satisfied when an arresting officer’s sworn statements give conflicting
accounts of the events leading to the plaintiff’s arrest. See Taylor v. City of New York, No. 19-
CV-6754 (KPF), 2022 WL 744037, at *15 (S.D.N.Y. Mar. 11, 2022) (denying summary
judgment on malicious prosecution claim because a jury could conclude from arresting officer’s
“flatly contradictory recollections of the circumstances” of a plaintiff’s arrest on narcotics
charges that the arresting officer “lied about observing [the] narcotics exchange” allegedly
involving the plaintiff); Minott v. Duffy, No. 11 Civ. 1217 (KPF), 2014 WL 1386583, at *17–19
(S.D.N.Y. Apr. 8, 2014) (denying summary judgment on malicious prosecution claim in light of
contradictions between a statement attributed to the arresting officer in the criminal complaint
and a search warrant affidavit.)
In this case, Plaintiff has not adduced evidence of fraud, perjury, suppression of evidence,
or bad faith conduct on the part of defendant Lawrence. Plaintiff’s Affidavit largely relates to
actions taken by his partner, defendant LaCoste – the officer who arrested Plaintiff and his co-
defendants. Plaintiff’s 13-page affidavit devotes only about one page to describing Lawrence’s
actions, all of which were in furtherance of LaCoste’s misconduct. (Plaintiff’s Affidavit at 10–
11.) The affidavit asserts that Lawrence aided LaCoste in bringing Plaintiff downstairs to the
first-floor bedroom and in detaining him; “co-signed a false story from Defendant LaCoste”
about Plaintiff being downstairs, knowing that it was false; heard LaCoste threaten to charge
Plaintiff with possession of all the contraband allegedly found in the bedroom unless Plaintiff
told LaCoste what he “want[ed] to know,” but failed to inform his supervisors of LaCoste’s
wrongdoing; and testified at Plaintiff’s trial. (Id.) However, none of the exhibits attached to
Plaintiff’s Affidavit substantiate these allegations. Moreover, none of the allegations concern
fraud, perjury, suppression of evidence, or bad faith conduct in connection with the indictment of
Plaintiff. Accordingly, the Court grants Defendants summary judgment with respect to the
malicious prosecution claim against defendant Lawrence.
In contrast, there is considerable admissible evidence which, taken in the light most
favorable to Plaintiff, could permit a jury to infer that Plaintiff’s indictment “was the product of
fraud, perjury, the suppression of evidence … or other … conduct undertaken in bad faith” by
defendant LaCoste. See Bermudez, 790 F.3d at 377. First, LaCoste’s own statements regarding
the incident were inconsistent. The Arrest Report stated that LaCoste observed Plaintiff smoking
marijuana outside 2052 and chased him into the house. (Arrest Report at 1.) There, he allegedly
observed “defendants” – presumably, including Plaintiff – in possession of four firearms and
crack cocaine. (Id.) Although the Arrest Report specifically mentioned a silver Bauer .25
caliber semiautomatic pistol, (id. at 2), it did not allege that Plaintiff physically possessed that
weapon or dropped it on the floor. The Arrest Report also stated that Plaintiff resided at 45
Riverdale Avenue, not 2052. (Id.)
LaCoste’s testimony before the Grand Jury set forth a materially different version of
events. LaCoste testified that it was someone other than Plaintiff whom he had chased into the
building. (Grand Jury Minutes at 6.) He claimed he tackled the man at the entrance to a first-
floor bedroom but nonetheless looked up in time to see Plaintiff drop the .25 caliber pistol. (Id.
at 7.) Another man who was in the room at the time – later identified as A.R. – then tossed
another gun towards a shoebox located two feet from LaCoste. (Id.) He then observed two other
firearms, a gun cleaning kit, a gun magazine, ammunition, a quantity of crack cocaine, and $988
– all in plain view. (Id. at 9–11.)
LaCoste also told the Grand Jury about inculpatory statements made by Plaintiff but
omitted any mention of exculpatory statements. The officer testified that Plaintiff tacitly
admitted owning the firearms, explaining that he had them because he thought they were getting
robbed. (Id. at 12.) But LaCoste never mentioned that Plaintiff denied living at 2052 and that
Richard Reid – the man LaCoste allegedly chased – claimed ownership of the $988. Rather,
LaCoste implied that Plaintiff lived in the bedroom by testifying that photographs of Plaintiff and
“his family” were on the walls. (Id. at 12.)
Plaintiff has adduced evidence that contradicts material portions of LaCoste’s Grand Jury
testimony or suggests that LaCoste made misrepresentations to the Grand Jury. First, Plaintiff
has provided two sworn affidavits from family members who claim that Plaintiff was not in the
downstairs bedroom when the police arrived, but was dragged downstairs by LaCoste.
(Plaintiff’s Affidavit, Ex. B.) Second, Plaintiff’s Affidavit attaches a statement Plaintiff’s co-
defendant, A.R., made to LaCoste in which A.R. stated that he and Plaintiff voluntarily went
downstairs after hearing a “commotion” and after the police had already arrived. (Id.) Although
A.R.’s account is inconsistent with Plaintiff’s relatives’ claim that Plaintiff was taken downstairs,
these three statements are consistent in that they contradict LaCoste’s claim that Plaintiff was in
the downstairs bedroom when the police arrived.
To be sure, there is a substantial basis for questioning the credibility of these three
accounts. Plaintiff’s family members are obviously interested witnesses and their affidavits also
allege that the police assaulted Plaintiff downstairs, an allegation which Plaintiff denied in his
sworn testimony at trial. In addition, A.R. is not only a co-defendant who, like Plaintiff, has an
interest in denying any connection to the downstairs bedroom but, according to his statement to
LaCoste, the godfather of Plaintiff’s daughter. However, the Court may not make credibility
determinations regarding this evidence. See Reeves, 530 U.S. at 150; S. Katzman Produce Inc.,
999 F.3d at 877. Rather, the Court must construe the evidence in the light most favorable to
Plaintiff and credit these accounts in deciding this motion. See S. Katzman Produce Inc., 999
F.3d at 877.
Second, the Court notes that LaCoste’s testimony is itself implausible. LaCoste testified
that he and his partner ran into a house in Brownsville at considerable personal risk for the sole
purpose of effecting a marijuana arrest. There, the plainclothes officers burst into a bedroom
occupied by two armed men who, through some miracle, not only did not shoot them but waited
for LaCoste, who must initially have been preoccupied gaining control of the man he tackled, to
look at them before they discarded their weapons. In addition, all sorts of contraband just
happened to be in plain view. As noted above, the Court cannot make credibility determinations.
However, a reasonable juror might conclude that LaCoste’s account was suspicious.
This is especially true since there was no forensic evidence to connect Plaintiff to the
pistols recovered from the bed and evidence that LaCoste refused to cooperate with the forensic
investigators. Plaintiff has adduced evidence that the Evidence Collection Team went to the 73rd
Precinct on the evening of August 16, 2008, and processed the two weapons allegedly recovered
from the bed. (Plaintiff’s Affidavit, Ex. E.) The forensics team could not recover any
fingerprints but recovered three swabs of skin-cell DNA, which were sent to the Office of the
Chief Medical Examiner for processing. (Id.) The team asked LaCoste for a “buccal
elimination swab,” but he refused to provide one. (Id.) Defendants have not introduced any
evidence that the DNA analysis linked Plaintiff to these firearms.
Third, Plaintiff has introduced the Notice Pursuant to CPL §710.30(1)(a) which the
prosecution provided to his defense counsel prior to trial. (Plaintiff’s Aff., Ex. B.) This
document, which provided notice of statements made by Plaintiff or his co-defendants to law
enforcement officers, did not mention Plaintiff’s admission that he had the guns because he
thought they were getting robbed. Although it is possible that this statement was disclosed in
other notices or on subsequent pages of the notice provided to defense counsel, Defendants
make no such claim. If the prosecution elected not to give notice of this highly inculpatory
statement – a tacit admission of Plaintiff’s possession of the weapons – a reasonable juror could
infer that the prosecution itself did not credit LaCoste’s claim that Plaintiff made this statement.
In addition, the §710.30 notice discloses two exculpatory statements that LaCoste failed
to mention to the Grand Jury when asked if the men he arrested on August 16, 2008, had made
any statements. The notice states that Richard Reid told LaCoste that he owned the $988 found
in the room and that Plaintiff told LaCoste that he did not live at 2052. (Plaintiff’s Aff., Ex. B.)
Yet, LaCoste not only failed to mention these statements but implied that, because Plaintiff was
depicted in photographs displayed on the walls of the bedroom, he lived in that room. (Id., Ex.
M, at 12.) The Grand Jury apparently believed that Plaintiff lived there, since they charged only
A.R. and not Plaintiff with possession of a weapon somewhere other than his home.
The police, however, apparently did not believe this. Plaintiff’s Affidavit attaches police
paperwork, including a Property Clerk’s Invoice prepared the date of the arrest, (id., Ex. J.); a
Complaint Follow-up form dated August 16, 2008, (id., Ex. N); and a Complaint Follow-up form
dated August 22, 2008, (id., Ex. K). These documents, which pre-date LaCoste’s appearance
before the Grand Jury, all list Plaintiff’s address as 45 Riverdale Avenue. The Complaint
Follow-up Report dated August 22, 2008, also lists the addresses of Plaintiff’s three co-
defendants and indicates that one of them – Steven Curtis – lived at 2052. However, the
prosecution declined to prosecute Curtis for reasons which Defendants have not explained.
Finally, Plaintiff’s Affidavit suggests an explanation for why LaCoste may have misled
the Grand Jury. That affidavit alludes to complaints Plaintiff lodged against the 73rd Precinct in
connection with an incident which occurred before August 16, 2008. (Id. at 6–7.) To be sure,
Plaintiff has not adduced any proof to support this allegation, aside from the fact that the police
chose to photograph him in front of a poster critical of the CCRB. However, the Court takes
judicial notice of the fact that Plaintiff brought an action against LaCoste and the 73rd Precinct in
2010 which alleged, among other things, that Plaintiff filed a complaint with the NYPD’s
Internal Affairs Bureau following a July 12, 2008, incident in which Plaintiff allegedly suffered a
hairline fracture to his wrist as a result of being handcuffed by LaCoste or other officers of the
73rd Precinct. (Complaint in Paige v. LaCoste, 10-CV-3356, at 3–4.) In addition, the fact that
LaCoste testified that the photographs in the bedroom depicted Plaintiff and “his family” suggest
that LaCoste had encountered Plaintiff and his family prior to August 16, 2008.
CONCLUSION
The Court concludes that Plaintiff has adduced sufficient evidence with respect to
defendant LaCoste to permit a jury to find that he had overcome the presumption of probable
cause stemming from his indictment. Accordingly, Defendants’ motion for summary judgment
with respect to the malicious prosecution claim against LaCoste is denied. Since Plaintiff has not
adduced any non-conclusory evidence of fraud, perjury, suppression of evidence, or bad faith
conduct on the part of defendant Lawrence, Defendants’ motion for summary judgment with
respect to the malicious prosecution claim against Lawrence is granted.
This action is recommitted to Magistrate Judge Cho for all remaining pre-trial matters,
including settlement discussions if appropriate. The Clerk of Court is respectfully directed to
mail a copy of this Memorandum and Order to Plaintiff at Shawangunk Correctional Facility,
P.O. Box 750, Wallkill, New York 12589-0750 – the prison in which he is currently incarcerated
– and to update the docket sheet to reflect this new address.
SO ORDERED.
Dated: Brooklyn, New York
September 30, 2022
Roslynn R. Mauskopf
________________________________
ROSLYNN R. MAUSKOPF
United States District Judge