# Greco v. The City of New York

> District Court, E.D. New York · August 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10310161

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310161. Public record. Not legal advice.