Heredia v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

DIEGO HEREDIA,

Plaintiff, MEMORANDUM OF

DECISION AND ORDER

19-cv-5227 (LDH) (ST)

-against-

CITY OF NEW YORK, NEW YORK CITY

POLICE DEPARTMENT, DETECTIVE

THOMAS DONEGAN, DETECTIVE THOMAS

COZART, and P.O. JOHN DOES nos. 1-20,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Plaintiff brings the instant action against Defendants City of New York, the New York

Police Department, Detective Thomas Donegan, Detective Thomas Cozart, and twenty P.O. John

Does (collectively, “Defendants”), alleging claims of false arrest and malicious prosecution

pursuant to 42 U.S.C. § 19831 and New York law. Defendants move pursuant to Rule 56 of the

Federal Rules of Civil Procedure for summary judgment to dismiss the complaint in its entirety.

1 Plaintiff voluntarily dismissed his claim brought under Monell, negligent infliction of

emotional distress, intentional infliction of emotional distress claim, and negligent hiring,

training, supervision. (See Pl.’s Ltr., ECF No. 73.)

UNDISPUTED FACTS2

The Maison Gerard Art Gallery (“Gallery”) is an art gallery with two locations, one at 53

East 10th Street and the other at 43 East 10th Street between University and Broadway. (Defs.’

Reply Statement of Material Facts Pursuant to Local Civ. R. 56.1 (“Defs.’ 56.1 Reply”), ¶ 6,

ECF No. 75.) Plaintiff was employed as an art handler manager at both locations between the

Spring of 2008 and April 2016. (Id. ¶¶ 4, 7.)

Plaintiff had several responsibilities as an art handler manager. Plaintiff worked with and

supervised several people, including David Parker, Edwin Jimenez, John Acosta and Jerome

Soule. (Id. ¶¶ 20–29.) He also ensured the art pieces were ready to be shipped for shows and to

clients. (Id. ¶ 8.) Like all Gallery employees, Plaintiff had access to the Gallery’s computer and

surveillance systems. (Id. ¶¶ 11, 90.) The Gallery was equipped with an alarm system that used

turn off codes to disable the system, which Plaintiff had used more than twenty times while he

was employed there. (Id. ¶ 12.) In addition, Plaintiff had access to the two sets of keys at each

Gallery location. (Id. ¶¶ 13–14.) Plaintiff’s employment with the Gallery ended sometime in

April 2016, and when he left, he returned his keys. (Id. ¶¶ 17–18.)

On December 22, 2016, the 53 East 10th Street location of the Gallery was burglarized.

(Id. ¶ 95.) On January 3, 2017, Detective Thomas Donegan was assigned to investigate the

burglary. (Id. ¶ 32.) David Parker and the owner of the Gallery were at the scene when

Detective Donegan arrived. (Id. ¶ 113.) Parker told Detective Donegan that the Gallery had

been closed since December 2016 for the holidays, that the hard drive system failed to back up,

and that the Gallery’s IT department was looking into the issue. (Id. ¶ 34.) Parker also told

2 The following facts are taken from the parties’ statements of material fact pursuant to Local Rule

56.1 and annexed exhibits. Unless otherwise noted, the facts are undisputed.

Detective Donegan that when he arrived on the scene, he noticed some of the Gallery’s hard

drives and cash from a petty cash box were missing. (Id. ¶ 35.)

Detective Donegan did not observe any sign of forced entry into the Gallery. (Id. ¶ 112.)

However, Donegan did locate an interior surveillance video, which depicted someone disarm the

Gallery alarm around 11:55 p.m. (Id. ¶¶ 36–37.) Detective Donegan also found a second

surveillance camera outside the gallery that belonged to New York University. (Id. ¶¶ 39–40.)

The NYU surveillance footage showed a male wearing a black bubble jacket and black sneakers

with a strip of white on the bottom unlock the security gate and enter the Gallery through the

front door. (Id. ¶ 41–42.) The footage did not show the suspect exit. (Id. ¶ 118.)

Detective Donegan subsequently showed the surveillance footage to several Gallery

employees. (Id. ¶ 45.) Edwin Jimenez, with whom Plaintiff worked every day for a few years,

recognized the man depicted as Plaintiff based on his clothing and mannerisms. (Id. ¶¶ 22–23,

46–47; Ex. C, Donegan Dep. at 58:17–25; 59:1–15.) David Parker, who Plaintiff worked with

for approximately one year, also identified Plaintiff as the man in the video. (Defs.’ 56.1 Reply ¶

¶ 20–21, 50.) John Acosta, who worked with Plaintiff for approximately seven or eight months,

told Detective Donegan that when he worked at the Gallery, he saw Plaintiff wear the same black

jacket and sneakers that the suspect wore on the video. (Id. ¶¶ 25-27, 51.) Detective Donegan

documented this information in his report, which he forwarded to the Manhattan District

Attorney’s Office. (Id. ¶ 52–53.)

At some point during Detective Donegan’s investigation, the Gallery Manager, Will

Atkinson, informed Detective Donegan that, sometime before the burglary, Plaintiff had asked

current employee, Jerome Soule, whether the Gallery would be closed for the holidays. (Id. ¶

54.) And, according to Soule, he had not been in contact with Plaintiff for approximately six

months prior to that inquiry. (Id. ¶ 55.) Armed with these facts, Detective Donegan initiated an

investigation into Plaintiff, (id. ¶ 56; Defs.’ Ex. C., at 67:7–15), and directed the NYPD warrant

squad to apprehend Plaintiff for the burglary at the Gallery, (Defs.’ 56.1 Reply, ¶¶ 57–58).

Detective Thomas Cozart, who was not involved in the burglary investigation, arrested Plaintiff

on February 2, 2017. (Id. ¶¶ 59–61.)

Plaintiff was transported to the 6th Precinct, wearing black Puma sneakers with a white

stripe. (Id. ¶¶ 63–64.) Because Plaintiff’s sneakers appeared to match those worn by the

perpetrator on the surveillance footage, they were vouchered as evidence. (Id. ¶ 65.) Other than

arresting Plaintiff, Detective Cozart played no role in Plaintiff’s prosecution. He did not sign the

criminal court complaint, did not speak to the District Attorney’s Office regarding the arrest, and

was not involved in the decision to arrest Plaintiff. (Id. ¶¶ 86–88.)

On February 2, 2017, an Assistant District Attorney drafted a search warrant application

and search warrant to search Plaintiff’s residence. (Id. ¶ 66.) The search warrant affidavit

contained two errors. It listed Plaintiff’s termination date from the Gallery as September 2016

instead of April 2016, and it stated that that three individuals (rather than just two), identified

Plaintiff as the suspect who entered the Gallery on the surveillance footage. (Defs.’ 56.1 Reply,

¶ 68; Defs.’ Ex. F.) Detective Donegan did not notice the errors in the search warrant application

until after he signed it. (Defs.’ 56.1 Reply ¶¶ 69, 129.)

Detective Donegan signed a felony complaint pertaining to the burglary that was drafted

by an attorney for the New York County District Attorney’s Office. (Id. ¶¶ 72–73.) Like the

warrant, the felony complaint indicated incorrectly that Plaintiff’s termination date from the

Gallery was September 2016 instead of April 2016. (Id. ¶ 74.) On February 3, 2017, a search

warrant was executed at Plaintiff’s residence. (Id. ¶ 70.) Three portable hard drives and a black

bubble jacket were recovered from Plaintiff’s residence during the search. (Id. ¶ 71.) That same

day, Plaintiff was charged with burglarizing the Gallery. (Id. ¶ 75.) On December 22, 2016,

Plaintiff was indicted by a grand jury for burglary in the third degree. (Id. ¶ 77.) The case

proceeded to trial in July 2018, where the black jacket recovered from Plaintiff’s apartment

pursuant to the search warrant was admitted into evidence at the criminal trial. (Id. ¶¶ 83–84.)

Plaintiff testified at his subsequent trial that he was at home the night of the burglary and then

went to the city at 11:30 p.m. to drive for Uber. (Id. ¶ 107.) Plaintiff’s Uber log showed that at

1:00 a.m., he was working. (Id. ¶ 110.) Plaintiff was acquitted in July 2018. (Id. ¶ 85.)

STANDARD OF REVIEW

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant[s] are entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine dispute of

material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. The movants bear the initial burden of

demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477

U.S. 317, 23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Where the non-

movant bears the burden of proof at trial, the movants’ initial burden at summary judgment can

be met by pointing to a lack of evidence supporting the non-movant’s claim. Celotex Corp., 477

U.S. at 325. Once the movants meet their initial burden, the non-movant may defeat summary

judgment only by producing evidence of specific facts that raise a genuine issue for trial. See

Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 250; Davis v. New York, 316 F.3d 93, 100

(2d Cir. 2002). The Court is to believe the evidence of the non-movant and draw all justifiable

inferences in his favor, Anderson, 477 U.S. at 255, but the non-movant must still do more than

merely assert conclusions that are unsupported by arguments or facts. BellSouth Telecomms.,

Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).

DISCUSSION

I. False Arrest

Defendants argue that Plaintiff cannot sustain his false arrest claim because Defendants

had probable cause to arrest him. (Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”) at 7, ECF

No. 77.) Indeed, a plaintiff cannot prove a false arrest claim if there was probable cause to arrest

him or her because “[p]robable cause is a complete defense to an action for false arrest brought

under New York law or § 1983.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.

2012) (internal citation and quotation marks omitted). An officer has probable cause when he or

she has “reasonably trustworthy information as to [] facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that an offense has been . . . committed by

the person to be arrested.” Id. (alterations in original) (quoting Zellner v. Summerlin, 494 F.3d

344, 368 (2d Cir. 2007)).

On the record here, there is sufficient evidence to conclude that Detectives Donegan and

Cozart had probable cause to arrest Plaintiff for the Gallery burglary.3 Two gallery employees

identified Plaintiff on surveillance footage as the person seen entering the Gallery. Edwin

Jimenez, Plaintiff’s assistant at the Gallery, told Detective Donegan that he recognized the man

depicted as Plaintiff based on the clothing and how he walked. (Defs.’ 56.1 Reply ¶¶ 22–23,

46–47; Ex. C, Donegan Dep. Tr. 58:17–25; 59:1–15, ECF No. 76-3.) Plaintiff’s coworker,

David Parker, likewise identified Plaintiff as the man in the video. (Id. ¶¶ 20–21, 50.) Another

3 A person is guilty of burglary in the third degree “when he knowingly enters or remains

unlawfully in a building with intent to commit a crime therein.” N.Y. Pen. L. § 140.20.

coworker, John Acosta, confirmed that the clothing the man in the video wore matched clothing

that he had seen Plaintiff wear while working at the Gallery. (Id. ¶¶ 25–27, 51.) Next, the

search of Plaintiff’s residence revealed that Plaintiff owned a black jacket similar to the one

identified by Acosta, as well as three portable hard drives like the ones missing from the Gallery.

(Id. ¶ 70–71.) Detective Donegan also learned from his investigation that Plaintiff had keys to

the gallery, knew the security access code, and had knowledge of the computer and security

systems. (Id. ¶¶ 11–14.) Given the totality of these undisputed facts, Defendants had probable

cause to arrest Plaintiff.

Plaintiff’s perceived deficiencies in the search warrant do not alter the Court’s probable

cause determination. Relying on Dufort v. City of New York, 874 F.3d 338 (2d Cir. 2017), he

takes issue with Jimenez’s ability to identify Plaintiff by his mannerisms and clothing because he

did not tell Detective Donegan that he recognized Plaintiff in the surveillance footage. (Pl.’s

Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) at 6–7, 10–12, ECF No. 80.) Dufort has little

value here.

In Dufort, a plaintiff, suing for false arrest after he was arrested and acquitted for

homicide, argued that the police did not have probable cause to arrest him based on a suggestive

witness identification. 874 F.3d at 347–48. The witness told the officers that she did not

recognize the plaintiff’s face, and that she could only recognize the color of his sweatshirt as

similar to that of one of the assailants. Id. at 348. The police then placed the plaintiff in a lineup

in which he was the only suspect wearing a jacket resembling the clothing the witness

recognized. Id. The witness identified the plaintiff, again stressing that she recognized only his

clothing. Id. The Second Circuit held that this procedure was “a paradigmatic example of an

improperly suggestive lineup” and “cannot be construed as an ‘identification’ . . . for the

purposes of probable cause.” Id. The Court found instead that the witness’s statement “at most .

. . confirmed . . . that [the plaintiff’s] jacket was similar in color to a jacket or shirt worn by one

of the assailants.” Id. A fact that had diminished value given that similarly-clothed individuals

were present at the scene of the crime. Id. at 348–-49.

The identification by Jimenez did not arise from a witness lineup, much less an

unconstitutionally suggestive one. Instead, Jimenez determined that the person depicted in the

surveillance footage looked like Plaintiff based on his mannerisms, gait, and clothing. And,

while Dufort, found the similarity in clothing there to be less relevant to the probable cause

determination there because of the number of people at the crime scene, the surveillance footage

here showed only one person at the scene and there are no facts in evidence that suggest that

other employees dressed similarly.4

Even if the Court were to accept Plaintiff’s argument that Jimenez’s identification could

not support probable cause to arrest him, the undisputed record contains two other identifications

from David Parker and John Acosta. (Defs.’ 56.1 Reply ¶ ¶ 20–21, 25–27, 50–51.) And, it is

well-established that just one positive identification may establish probable cause to arrest.

Celestin v. City of New York, 581 F. Supp. 2d 420, 431 (E.D.N.Y. 2008) (collecting cases).

4 Separately, Plaintiff argues that Jimenez could not have made a reliable identification because

the quality of the video footage was poor. (Pl.’s Opp’n at 12.) While, Plaintiff’s contention

might undermine Jimenez’s credibility as a witness, it does not negate probable cause. Detective

Donegan relied on two other witness identifications, as well as circumstantial evidence of

Plaintiff’s access to and familiarity with the Gallery and he was not required to evaluate the

credibility of the witness’ ability to identify Plaintiff’s features. Krause v. Bennett, 887 F.2d

362, 372 (2d Cir. 1989) (“Once officers possess facts sufficient to establish probable cause, they

are neither required nor allowed to sit as prosecutor, judge or jury.” Law enforcement officers’

“function is to apprehend those suspected of wrongdoing, and not to finally determine guilt

through a weighing of the evidence”).

.

Plaintiff raises still another unpersuasive argument: that Defendants lacked probable

cause to arrest him because Detective Donegan conducted an inadequate investigation. For

example, Plaintiff contends that “Donegan did not recall inquiring if there was any animosity or

bad feelings between Jiminez and [P]laintiff.” (Pl.’s Opp’n at 3.) He also asserts that “Donegan

had tools available to at least attempt to enhance the video, but he failed to use them.” (Id. at 4.)

In other words, according to Plaintiff, Detective Donegan could (and should) have conducted a

more thorough investigation before initiating his arrest. Even if true, that fact does not operate to

call into question probable cause. Indeed, “[i]t is [] of no consequence” to the probable cause

determination “that a more thorough or more probing investigation might have cast doubt upon”

the situation. United States v. Manley, 632 F.2d 978, 984 (2d Cir. 1980).

In short, there is no genuine dispute of fact that Defendants had probable cause to arrest

Plaintiff and Defendants are entitled to judgment as a matter of law on Plaintiff's false arrest

claim.

II. Malicious Prosecution

To establish a claim for malicious prosecution under New York law, a plaintiff must

prove “(1) the initiation or continuation of a criminal proceeding against [him]; (2) termination

of the proceeding in [his] favor; (3) lack of probable cause for commencing the proceeding; and

(4) actual malice as a motivation for [defendants’] actions.” Manganiello v. City of New York,

612 F.3d 149, 161 (2d Cir. 2010) (citation omitted). There is no dispute that a criminal

proceeding was commenced against Plaintiff, and that the proceeding was terminated in

Plaintiff’s favor. Defendants argue, however, that they did not initiate the criminal proceedings

against Plaintiff and that there was probable cause to prosecute him in any event. (Def.’s Mem.

at 10–12.) The Court agrees.

First, to establish that Defendants initiated or continued any criminal proceeding against

him, Plaintiff must show that Defendants played an active role in the prosecution, such as giving

advice and encouragement or insisting that the authorities act. Mitchell v. Victoria Home, 434 F.

Supp. 2d 219, 227 (S.D.N.Y. 2006) (quoting DeFilippo v. County of Nassau, 183 A.D.2d 695,

583 (App. Div. 2d Dept. 1992)). Here, the record demonstrates only that Defendants participated

in his arrest. However, an arrest without more, cannot establish the requisite initiation. See

Weiner v. McKeefery, 90 F. Supp. 3d 17, 33, n.4 (E.D.N.Y. 2015) (recognizing that a police

sergeant’s signature on a civilian arrest form is insufficient to constitute an initiation of a

criminal prosecution for purposes of a malicious prosecution claim).

Second, Defendants had ample probable cause to arrest Plaintiff, as discussed above.

Probable cause may be undermined by evidence that Defendants learned of some “intervening

facts between arrest and initiation of prosecution.” Thomas v. City of New York, 562 F. App’x

58, 60 (2d Cir. 2014) (summary order). But, Plaintiff does not point to any such evidence, and

the record does not support it. Moreover, in New York, the fact that the Grand Jury returned an

indictment against Plaintiff creates a presumption that his indictment was procured with probable

cause. Colon v. City of New York, 468 N.Y.S.2d 453, 456 (1983) (“[T]he trial court may not

weigh the evidence upon which the police acted . . . after the indictment has issued.”). To rebut

this presumption, Plaintiff “must establish that the indictment was produced by fraud, perjury,

the suppression of evidence or other police conduct undertaken in bad faith.” Id. Because there

is no evidence of bad faith by Defendants, Plaintiff’s prosecution claim against them cannot be

maintained under New York law.

CONCLUSION

For the aforementioned reasons, Defendants’ motion for summary judgment is

GRANTED.5

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

March 29, 2024 LASHANN DEARCY HALL

United States District Judge

5 Because Plaintiff cannot sustain his claims for false arrest and malicious prosecution under

Section 1983, his state law claims for false arrest and malicious prosecution are dismissed as

well. His claims against the City of New York under respondeat superior liability, also fail

because “respondeat superior liability is inherently derivative of individual liability [and] the

City is not liable for those claims as a matter of law.” McGrier v. City of New York, No. 16-CV-

5667 (VEC), 2019 WL 1115053, at *13 (S.D.N.Y. Mar. 11, 2019). Finally, Defendants

advanced a qualified immunity defense in their summary judgment arguments, but because the

Court concludes that Defendants are entitled to judgment as a matter of law on the merits, it does

not reach that argument. See Bailey v. New York City Bd. of Educ., 536 F. Supp. 2d 259, 267

(E.D.N.Y. 2007) (“In light of this holding [granting the defendants’ motion for summary

judgment], the court declines to reach the issue of qualified immunity.”).