Greco v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SALVATORE J. GRECO,

MEMORANDUM AND ORDER

Plaintiff,

Case No. 22-CV-5109 (FB) (VMS)

-against-

THE CITY OF NEW YORK; KEECHANT L.

SEWELL, as Police Commissioner, Police

Department City of New York; ERNEST F.

HART, as Deputy Commissioner Legal Matters,

Police Department City of New York; DANIEL S.

CUTTER, as Commanding Officer, Internal

Affairs Bureau Group No.: 25 and JEREMY D.

ORENSTEIN, as Sergeant, Internal Affairs

Bureau Group No.: 25, each sued individually and

in their official capacities as employees of The

City of New York,

Defendants.

Appearances:

For the Plaintiff: For Defendant:

ERIC SANDERS SYLVIA O. HINDS-RADIX

The Sanders Firm, P.C. Corporation Counsel for the

30 Wall Street, 8th Floor City of New York

New York, NY 10005 By: ANDREA O’CONNOR

100 Church Street, Room 2-140

New York, NY 10007

BLOCK, Senior District Judge:

Plaintiff Salvatore J. Greco (“Greco”), a former police officer for the New

York City Police Department (“NYPD”), brought this action against the City of

New York, the NYPD, and NYPD officials Keechant L. Sewell, Ernest F. Hart,

Daniel Cutter, and Jeremy Orenstein (collectively, “Defendants”) under 42 U.S.C.

§ 1983 and New York Labor Law § 201-d. He claims Defendants violated his First

Amendment rights by investigating and firing him “due to his personal ‘familial

and ‘political’ relationships with Roger Jason Stone, Jr. [“Stone”], Kristin M.

Davis [“Davis”], members of the OATH Keepers, Proud Boys and others” who

support former president Donald Trump. Second Amended Complaint (“SAC”) 1.

Defendants now move to dismiss the Second Amended Complaint under Federal

Rule of Civil Procedure 12(b)(6). For the reasons discussed below, Defendants’

motion is granted in part and denied in part.

I. SUMMARY OF THE ALLEGATIONS

In January 2021, the NYPD’s Internal Affairs Bureau Command Center

received anonymous tips that Greco had attended riots at the United States Capitol

in Washington, D.C. on January 6, 2021. After an investigation, the NYPD

charged Greco with the following disciplinary infractions on April 27, 2021:

1. [Greco], on or about and between January 1, 2018 and March 22,

2021, wrongfully and knowingly associated with a person, Roger

Stone, reasonably believed to be engaged in, likely to engage in or to

have engaged in criminal activities.

. . .

2. [Greco], on or about and between January 5, 2021 and January 6,

2021, wrongfully engaged in conduct prejudicial to good order,

efficiency, or discipline of the Department by, while armed, acting as

security for a person or persons convicted of a crime.

. . .

3. [Greco], on or about January 25, 2021, and/or March 22, 2021,

wrongfully failed to fully cooperate with Internal Affairs Bureau

investigators by providing incomplete or inaccurate answers or by

being evasive or uncooperative during a Department interview.

. . .

4. [Greco], on or about and between July 1, 2019, and March 22, 2021,

wrongfully and knowingly associated with any person or organization

advocating hatred, oppression, or prejudice based on race, religion,

gender, gender identity/expression, sexual orientation, or disability.

. . .

5. [Greco], on or about and between January 1, 2018 and March 22,

2021, wrongfully and knowingly associated with a person, Kristin

Davis, reasonably believed to be engaged in, likely to engage in or to

have engaged in criminal activities.

Dkt. No. 30, Aff. in Support at Ex. B, Report and Recommendation at 2-3

(“R&R”).1

At his ensuing NYPD disciplinary trial, Greco testified that he had

befriended Stone in 2018 after commenting on his Instagram posts, eventually

meeting Stone and Davis in person that same year. Greco described himself and

Stone as “very close friends.” R&R at 14. He continued his friendship with Stone

after Stone was convicted of multiple federal criminal offenses in November 2019.

Greco attended Stone’s sentencing hearing for those crimes and continued contact

1 Greco references the R&R, which summarized his charges and the NYPD’s

disciplinary findings, in his Second Amended Complaint. He is also presumed to

have knowledge and possession of it as its recipient and relies on it in bringing the

present action. SAC ¶ 71, 74-75, 78. It is therefore properly considered on

Defendants’ motion to dismiss. Chambers v. Time Warner, Inc., 282 F.3d 147,

152-53 (2d Cir. 2002) (courts may consider on a motion to dismiss documents

plaintiff referred to in the complaint, possessed, and relied on “in drafting the

complaint”).

with Stone and Davis afterward, testifying that he was aware that both had criminal

records.

Greco testified that he accompanied Stone and Davis in Washington, D.C.

on January 5 and 6 of 2021. He drove Stone and Davis to their hotel on January 5,

2021, along with Joshua James, “a co-founder of the OATH Keepers, which is an

alleged American far-right anti-government militia.” SAC ¶ 52. Defendant Jeremy

Orenstein, an NYPD internal affairs bureau sergeant who investigated Greco,

testified that James described himself as “the head of Roger Stone’s security

detail” on January 5 and 6. Ex. B at 6. James added that Greco had come to

Washington to assist the security detail. Greco denied being a part of Stone’s

security detail in his trial testimony.

Greco also testified that he accompanied Stone to a barbershop while

carrying his concealed NYPD-issued off-duty firearm. Greco and James then

attempted to obtain for Stone tickets to a speech by President Trump. Greco

presented his NYPD identification to Secret Service Agents as a part of this

attempt. Stone ended up not attending the event, and Greco drove Stone back to the

airport to leave Washington.

On June 10, 2022, NYPD Assistant Deputy Commissioner Paul M. Gamble

issued a Report and Recommendation finding Greco guilty of specifications 1, 2, 3,

and 5, and not guilty of specification 4. He found Greco guilty of Specifications 1

and 5 because Greco admitted to keeping up contact with Stone and Davis despite

knowing of their criminal history. Regarding Specification 2, Gamble found that

Greco had in fact aided Stone’s security detail, including while armed, despite his

testimony to the contrary. He noted that “providing armed security for a person

convicted of a crime was prejudicial to [the NYPD’s] good order, efficiency, and

discipline,” as it “raises serious questions about that officer’s ability to maintain

the public’s trust.” R&R at 25. Gamble found Greco guilty of Specification 3

because he failed to cooperate with the NYPD’s investigation into him. Finally, in

dismissing Specification 4, Gamble found insufficient evidence that Greco knew

he was associating with members of organizations advocating hatred or prejudice.

Gamble concluded that Greco will likely “forever be compromised in the

eyes of the public and his fellow police officers,” and that he was “guided by his

own moral compass rather than the provisions of the Patrol Guide.” R&R at 25, 32.

Gamble found that Greco’s continued service with the NYPD “would be corrosive

to the mission and values of [the] Department” and recommended his termination.

R&R at 32. Gamble’s recommendation was adopted by then-Commissioner Sewell

and Greco was terminated on August 4, 2022.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “[A] court may consider the complaint as

well as any written instrument attached to [the complaint] as an exhibit” in making

this determination. Kalyanaram v. Am. Ass’n of Univ. Professors at New York Inst.

of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (internal quotation omitted).

A claim is facially plausible when “the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft, 556 U.S. at 678. “While a complaint attacked by a

Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp., 550 U.S. at 555. “[T]he proper

question is whether there is a permissible relevant inference from all of the facts

alleged, taken collectively, not whether an inference is permissible based on any

individual allegation, scrutinized in isolation.” Kaplan v. Lebanese Canadian

Bank, SAL, 999 F.3d 842, 854 (2d Cir. 2021) (internal quotation omitted).

Defendants challenge each of Greco’s claims.

III. DISCUSSION

a. Greco’s First Amendment Claims

The First Amendment protects two forms of association. The right to private

or intimate association preserves the freedom to “enter into and maintain certain

intimate human relationships [without] undue intrusion by the State,” while the

right to expressive or political association protects the “right to associate for the

purpose of engaging in those activities protected by the First Amendment—speech,

assembly, petition for the redress of grievances, and the exercise of religion.”

Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). Greco alleges that

Defendants infringed his rights to both intimate and expressive association by

investigating and firing him.

1. Intimate Association

Defendants argue that Greco fails to allege a protected intimate relationship

with Stone, Davis, or others. The right to intimate association protects “highly

personal relationships” and “personal bonds” that “foster diversity and act as

critical buffers between the individual and the power of the State.” Roberts, 468

U.S. at 618-19. Accordingly, a relationship, evaluated as described in the

pleadings, must be “sufficiently personal or private to warrant constitutional

protection.” Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537,

546 (1987); Stalter v. Cnty. of Orange, No. 15-CV-5274 (NSR), 2016 WL

8711397, at *8 (S.D.N.Y. Aug. 5, 2016). Though there is no “bright-line test” for

which relationships qualify, Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 58

(2d Cir. 2014), protected relationships generally include “those that attend the

creation and sustenance of a family—marriage, childbirth, the raising and

education of children, and cohabitation with one’s relatives,” Roberts, 468 U.S. at

618-19. Relevant factors include “cohabitation and the precise degree of kinship,”

Berrios v. State Univ. of New York at Stony Brook, 518 F. Supp. 2d 409, 418

(E.D.N.Y. 2007), and whether the relationship “share[s] the characteristics that set

family relationships apart—small, select, and secluded from others,” Sanitation &

Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 996 (2d Cir. 1997).

Although the Second Circuit has not explicitly ruled out protection for

friendships, see Patel v. Searles, 305 F.3d 130, 136 (2d Cir. 2002) (leaving open

“whether the right to intimate association extends to friendships”), district courts

have declined to recognize them as qualifying intimate associations, see

Silverstein v. Lawrence Union Free Sch. Dist. No. 15, No. CV-10-993-SJF-WDW,

2011 WL 1261122, at *6 (E.D.N.Y. Feb. 15, 2011) (collecting cases); Berrios, 518

F. Supp. 2d at 418 (“Where, as here, the relationship sought to be protected falls

outside the familial arena, it has been held to be not . . . protected.”); Gross v. City

of Albany, No. 14-CV-736, 2015 WL 5708445, at *10 (N.D.N.Y. Sept. 29, 2015)

(“friendships, however close, are insufficient to state a claim under the First

Amendment”); Maselli v. Tuckahoe Union Free Sch. Dist., No. 17-CV-1913

(KMK), 2019 WL 3456581, at *4-5 (S.D.N.Y. July 31, 2019) (denying protection

for siblings-in-law “who are not married, romantically involved, or biologically

related”); Dupont v. New Jersey State Police, No. 08CIV10220(DLC), 2009 WL

2486052, at *9 (S.D.N.Y. Aug. 14, 2009) (granting qualified immunity for alleged

infringement of right to intimate association where “[t]here was no clearly

established law in 2006 and 2007 protecting friendship . . . as a form of intimate

association”).

Here, Greco pleads only conclusory allegations that he enjoys a “personal

‘familial’ and ‘political’ relationship” with Davis, providing no other details. SAC

¶ 72, 77. Regarding Stone, Greco claims to have been “very close friends” and

“friends and family since 2018.” SAC ¶ 89; R&R at 14. They communicated over

Instagram and text message and met several times, including at the Capitol on

January 5 and 6, 2021. He does not claim to have cohabitated with Stone or Davis

or undertaken any other activities together “that attend the creation and sustenance

of a family.” Roberts, 468 U.S. at 618-19. As such, Greco’s relationships with

Stone and Davis fall squarely “outside of the familial arena” and are not protected

by the right to intimate association. Berrios, 518 F. Supp. 2d at 418; see

Silverstein, 2011 WL 1261122, at *7 (E.D.N.Y. Feb. 15, 2011) (denying protection

for “platonic friendship, even a long standing one of great intimacy.”);

Gallagher v. Bd. of Educ. of E. Hampton Union Free Sch. Dist., No.

16CV473SJFSIL, 2017 WL 8813134, at *8 (E.D.N.Y. Dec. 21, 2017) (denying

protection for workplace friendship where plaintiff failed to plead “additional facts

that would support a familial level of closeness”). Finally, Greco does not claim to

have had any relationships, let alone intimate ones, with particular members of the

groups he associated with, including “OATH Keepers, Proud Boys and others.”

SAC ¶ 73. Because Greco does not allege that he had sufficiently intimate

relationships with Stone, Davis, or these groups, his intimate association claim

must be dismissed.

2. Expressive Association

The right to expressive association protects the “freedom to speak, to

worship, and to petition the government for the redress of grievances.” Roberts,

468 U.S. at 622. Under this right, public employees retain “their First Amendment

rights to comment on matters of public interest.” Cobb v. Pozzi, 363 F.3d 89, 101

(2d Cir. 2004) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). The

right to “associate for expressive purposes is not, however, absolute.” Roberts, 468

U.S. at 623. “[T]he threshold question for a public employee’s claim of freedom of

expressive association” is borrowed from that of free speech retaliation claims:

“whether the employee’s expressive conduct is as a citizen on a matter of public

concern.” McDonald v. Hempstead Union Free Sch. Dist., No.

18CV5658DRHSIL, 2019 WL 2716179, at *8 (E.D.N.Y. June 28, 2019) (citing

Piscottano v. Murphy, 511 F.3d 247, 268, 271 (2d Cir. 2007)).

A plaintiff must therefore plead that he engaged in associational conduct that

touched on a matter of public concern to survive a motion to dismiss, Montero v.

City of Yonkers, New York, 890 F.3d 386, 395 (2d Cir. 2018) (citing Garcetti, 547

U.S. 410, 418 (1951)). This is a question of law. Connick v. Myers, 461 U.S. 138,

150 n.10 (1983). “[P]ublic concern is something that is a subject of legitimate news

interest; that is, a subject of general interest and of value and concern to the public

at the time of publication,” including “certain private remarks, such as negative

comments about the President of the United States.” City of San Diego, Cal. v.

Roe, 543 U.S. 77, 83-84 (2004); see Connick, 461 U.S. at 146 (speech must relate

to “any matter of political, social, or other concern to the community”).

Taking all reasonable inferences in favor of Greco, the Second Amended

Complaint sufficiently alleges that he engaged in expressive conduct that touched

on a matter of public concern—namely, the 2020 Presidential election. Greco

claims that his associations with Stone, Davis, OATH Keepers, and Proud Boys

centered on a political movement supporting President Donald Trump. Greco

accompanied Stone and Davis and interacted with the OATH Keepers and Proud

Boys leading up to and during the riots in Washington on January 6, 2023, which

were explicitly political in nature. Greco alleges expressive conduct including

making comments on Stone’s Instagram page, posting Instagram photos with

himself, Stone, and Davis, and discussing Stone’s plans to attend a speech by

President Trump. The NYPD’s Report and Recommendation indicates that Greco

was in Washington “assisting” Stone’s security detail. R&R at 6. Greco’s

associations with Stone and Davis surrounding their trip to Washington were

plainly in furtherance of aiding their participation in politically motivated

gatherings on January 6.

Indeed, Greco was subpoenaed by and provided deposition testimony to a

committee convened by the House of Representatives to investigate the riots that

culminated from these rallies. Greco was deposed on May 16, 2022, by the Select

Committee to Investigate the January 6th Attack on the United States Capitol,

testifying about messages he exchanged with Stone and Davis, as well as “their

associations with each other and connections to Infowars [sic] Alex Jones and

other related political connections.” SAC § 87. Greco incorporates via reference in

his Second Amended Complaint the Select Committee’s final report, which

highlights the role of Proud Boys, Oath Keepers, and Stone in the politically

charged demonstrations and riots. SAC § 93; see Final Report, Select Committee

to Investigate the January 6th Attack on the United States Capitol,

https://www.congress.gov/117/crpt/hrpt663/CRPT-117hrpt663.pdf (accessed

July 25, 2023), 1, 5, 55-58, 60-63, 112, 133, 499-505, 507-19, 535, 638, 640-60,

666-69. Greco therefore sufficiently pleads that his associations addressed a matter

of public concern.

Defendants next argue that Greco’s allegations fail the Pickering balancing

test, which balances employees’ interest in free expression with their employers’

interest in “promoting the efficiency of the public services.” Cobb, 363 F.3d at

101. But the “[t]he Pickering test is ‘a fact-sensitive inquiry’” which is not suited

for resolution on a motion to dismiss. Squicciarini v. Village of Amityville, No. 17-

CV-6768, 2019 WL 1232093, at *9 (E.D.N.Y. Mar. 15, 2019) (quoting Kelly v.

Huntington Union Free Sch. Dist., 675 F. Supp. 2d 283, 298 (E.D.N.Y. 2009)); see

Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir. 1994) (“the motive behind

[plaintiff’s] firing in his retaliation claim is clearly a question of fact. Because this

question is in dispute, it was improper for the district court to answer it on a motion

for dismissal on the pleadings”). “Here, on this undeveloped record, the Court

cannot readily discern every interest at play in this case, or how those interests

weigh against one another.” Sugar v. Greenburgh Eleven Union Free Sch. Dist.,

No. 18 CV 67 (VB), 2018 WL 6830865, at *7 (S.D.N.Y. Dec. 28, 2018). Nor are

Defendants likely to satisfy their burden under the test at a stage where the Court is

limited to considering the pleadings. Id. (citing Sassone v. Quartararo, 598 F.

Supp. 2d 459, 468 (S.D.N.Y. 2009)). This inquiry is better suited for summary

judgment or trial.

3. Municipal Liability

A § 1983 plaintiff suing a municipality or individual officers in their official

capacity must allege that their injury was caused by an official policy or custom.

Montero v. City of Yonkers, New York, 890 F.3d 386, 403-04 (2d Cir. 2018) (citing

Monell v. Dep't of Social Serv. of the City of N.Y., 436 U.S. 658, 690-91 (1978)).

Specifically, they must plead “(1) an official policy or custom that (2) cause[d] the

plaintiff to be subjected to (3) a denial of a constitutional right.” Simms v. City of

New York, 480 F. App’x 627, 629 (2d Cir. 2012) (cleaned up). A policy or custom

“may be shown through ‘the decisions of a government's lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically

have the force of law.’” Buchanan v. City of New York, 556 F. Supp. 3d 346, 362

(S.D.N.Y. 2021) (quoting Connick, 563 U.S. at 61). “[T]he mere assertion that a

municipality has such a custom or policy” without “allegations of fact tending to

support, at least circumstantially, such an inference” is insufficient. Montero, 890

F.3d at 403-04 (cleaned up). So is a single incident of a constitutional violation.

Mitchell v. City of New York, 841 F.3d 72 (2d Cir. 2016). Plaintiffs must allege “a

direct causal link between a municipal policy or custom and the alleged

constitutional deprivation.” Anilao v. Spota, 27 F.4th 855, 874 (2d Cir. 2022)

(internal quotation omitted).

Greco claims that his unconstitutional termination was a foreseeable

consequence of the City’s failure to supervise the NYPD’s disciplinary decisions.

He alleges that his firing was part of a forty-year practice of the NYPD in which

officials used disciplinary decisions to discriminate against

NYPD Captain now Mayor Eric L. Adams, former NYPD Sergeant

now Sheriff Anthony Miranda, members of the Guardians Association

of the Police Department City of New York, Hispanic Society of the

Police Department City of New York, and other disenfranchised

members of the department including Greco because of their race,

gender, ‘familial’ and ‘political’ relationships.

SAC ¶ 119. Greco also points to a 2019 report by an NYPD committee

recommending that the NYPD address bias in its disciplinary process on the basis

of race and nationality, and that transparency be improved.

Greco fails to allege that his injuries were caused by a policy, custom, or

practice of the NYPD. He argues in his opposition brief that his firing resulted

from a failure to train and supervise to which the NYPD exhibited deliberate

indifference, but this allegation appears nowhere in the Second Amended

Complaint, and Greco fails to explain how a lack of supervision led to his firing.

To proceed on a deliberate-indifference theory, a plaintiff must first establish “that

the need for more or better supervision to protect against constitutional violations

was obvious.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 (2d Cir.

2004). To the extent that Greco raises the 2019 report in order to allege an obvious

need for supervision, he pleads no facts that plausibly link this need to the sort of

constitutional violation he claims he was subjected to.

The Second Amended Complaint alleges that NYPD disciplinary decisions

discriminated for 40 years against a wide range of individuals and groups—an

accusation so broad and unelaborated that it fails to identify a specific policy or

practice that could plausibly be linked to his firing. Greco fails to allege specific

facts about this wide-ranging discrimination, including how targeting

disenfranchised members of the NYPD or those with political relationships led to

his discipline, in what sense these members were disenfranchised, or what sort of

political relationships were targeted. Nor does he allege being a member of any of

the racial or national groups that he claims were discriminated against.

Because Greco fails to plausibly allege municipal liability, his claims must

be dismissed insofar as they are lodged against New York City and individual

defendants in their official capacities.

4. Qualified Immunity

Qualified immunity bars claims for damages against government officials

sued individually for conduct undertaken in their official capacities. Ziglar v.

Abbasi, 582 U.S. 120, 150-51 (2017). Qualified immunity is designed to balance

the “competing interests” of allowing an “avenue for vindication of constitutional

guarantees,” and providing “breathing room” for government officials “to make

reasonable but mistaken judgments about open legal questions.” Id. (internal

quotations omitted). As a result, suits are barred against “all but the plainly

incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011) (internal quotation omitted). To survive a qualified immunity

defense, a plaintiff must plead “facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly established at the

time of the challenged conduct.” Sabir v. Williams, 52 F.4th 51, 58 (2d Cir. 2022)

(cleaned up). Each of the individual Defendants invokes qualified immunity here.

Because the Court has already found that Greco states a § 1983 claim for the

violation of his First Amendment right to expressive association, the first step of

the qualified immunity inquiry is complete. The Court now turns to whether

Plaintiffs’ rights were clearly established under contemporary law. A right is

“clearly established” if “it would be clear to a reasonable officer [in the position of

the defendant] that his conduct was unlawful in the situation he confronted,”

Saucier v. Katz, 533 U.S. 194, 202 (2001), “consider[ing] Supreme Court and

Second Circuit precedent as it existed at the time of the challenged conduct,”

McGowan v. United States, 825 F.3d 118, 124 (2d Cir. 2016). “[E]ven if the right

was ‘clearly established,’” a Court can still bar a suit where “it was ‘objectively

reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v.

City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013).

Because qualified immunity is an affirmative defense, “as a general rule,” it

“cannot support the grant of a Rule 12(b)(6) motion.” Chamberlain Est. of

Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020).

“[A]dvancing qualified immunity as grounds for a motion to dismiss is almost

always a procedural mismatch,” and “is usually not successful.” Id. at 111 (internal

quotations omitted). Accordingly, “the facts supporting the defense” must “appear

on the face of the complaint” and “the plaintiff is entitled to all reasonable

inferences from the facts alleged, not only those that support his claim, but also

those that defeat the immunity defense.” Id. at 110 (internal quotation omitted).

“The Second Circuit has rejected qualified immunity defenses raised in

motions to dismiss in opposition to First Amendment retaliation claims.” Torres v.

LaLota, No. CV157097JMAAYS, 2017 WL 4457514, at *9 (E.D.N.Y. Aug. 14,

2017), report and recommendation adopted, No. 15CV7097JMAAYS, 2017 WL

4443578 (E.D.N.Y. Sept. 30, 2017). This is because retaliation claims like Greco’s

require an improper retaliatory motive on the part of the defendant, and “‘where a

more specific intent is actually an element of the plaintiff’s claim as defined by

clearly established law, it can never be objectively reasonable for a government

official to act with the intent that is prohibited by law.’” Washington v. Gonyea,

538 F. App’x 23, 27 (2d Cir. 2013) (quoting Locurto v. Safir, 264 F.3d 154, 169

(2d Cir. 2001)).

Here, Greco’s First Amendment claim turns on the subjective intent that

NYPD officials had when they investigated and terminated him. See Cobb, 363

F.3d at 101-02 (associational freedom claims for public employees ultimately turn

on “the reason for the adverse employment action”). Subjective intent as an

element of expressive association claims was clearly established at least as far back

as Cobb in 2004, well before Greco was fired. Because Greco has sufficiently

alleged an expressive association claim, which has as an element the subjective

intent of his employer, qualified immunity is inappropriate at this stage. Greco’s

expressive association claim therefore stands with respect to Defendants Sewell,

Hart, Cutter, and Orenstein in their individual capacities.

b. Greco’s New York Labor Law Claim

New York State Labor Law § 201-d prohibits discrimination on the basis of

“political activities” undertaken by an employee outside of working hours. N.Y.

Labor Law § 201-d(2)(a). Protected political activities under § 201-d include

“(i) running for public office, (ii) campaigning for a candidate for public office, or

(iii) participating in fund-raising activities for the benefit of a candidate, political

party or political advocacy group.” N.Y. Labor Law § 201-d(1)(a).

Greco does not allege that he was investigated or fired because he ran for

office, campaigned for a political candidate, or engaged in political fundraising. He

argues that because he has successfully pleaded a First Amendment claim, his New

York Labor Law claim must also stand. But § 201-d(1)(a) is a state law separate

and apart from § 1983. It has its own pleading standards that Greco must

independently satisfy. He has failed to do so here, and his labor law claim is

therefore dismissed.

IV. CONCLUSION

Defendants’ motion to dismiss is granted in part and denied in part. Greco’s

§ 1983 First Amendment intimate association claim and his New York Labor Law

claim are dismissed. His § 1983 First Amendment expressive association claim is

dismissed as to the City of New York and all other Defendants in their official

capacities; it stands as to Defendants Sewell, Hart, Cutter, and Orenstein in their

individual capacities.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

August 8, 2023