Hogan v. Lewis County, New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

MARK HOGAN, et al.,

Plaintiffs,

-against- 7:16-CV-1325 (LEK/ATB)

LEWIS COUNTY, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

This is the latest round in a long-running feud between plaintiffs Mark Hogan and

Elizabeth Hogan and several of their neighbors on Hiawatha Lake in the Town of Greig, New

York. The feud has principally involved disputes about property lines and rights, but has

sprawled to include allegations of harassment and other tortious conduct and has enmeshed

various local officials in its sprawl. In this particular lawsuit, Plaintiffs have sued both their

neighbors and local officials under 42 U.S.C. § 1983 and New York law. Dkt. No. 1

(“Complaint”).

Presently before the Court are two separate summary judgment motions seeking

dismissal of the Complaint under Federal Rule of Civil Procedure 56. The first has been filed by

defendant Wilbur L. Stanford, Jr., one of Plaintiffs’ neighbors. Dkt. Nos. 82 (“Stanford

Motion”); 82-1 (“Stanford Statement of Material Facts” or “Stanford SMF”); 82-13 (“Stanford

Memorandum”). The second has been filed by defendants Michael Fayle and Ricky Craft, both

employed by the New York State Police (together, the “NYSP Defendants”). Dkt. Nos. 83

(“NYSP Motion”); 83-14 (“NYSP Memorandum”); 83-15 (“NYSP Statement of Material Facts”

or “NYSP SMF”). Plaintiffs oppose both these motions. Dkt. Nos. 89-7 (“Response to NYSP

SMF”); 89-8 (“Response to Stanford SMF”); 89-9 (“Opposition to NYSP Motion”); 89-10

(“Opposition to Stanford Motion”). Both Stanford and the NYSP Defendants have filed a reply.

Dkt. Nos. 91 (“NYSP Reply”); 92-1 (“Stanford Reply”).

For the following reasons, the Court grants the NYSP Defendants’ motion in its entirety,

and grants in part and denies in part Stanford’s motion.

II. BACKGROUND

A. Factual Background

The following facts are relevant to the instant motions. Where necessary, the Court

provides additional details in its analysis.

1. The Prior State Court Action

Both Plaintiffs and Stanford own property around Hiawatha Lake, in Grieg, New York.

Stanford SMF ¶ 1; Resp. to Stanford SMF ¶ 1. Though the details of the parties’ various property

rights and obligations is much in dispute in this lawsuit (and others), it appears beyond dispute

that an access road to several lakefront properties, including Stanford’s, crosses Plaintiffs’

property. Hogan Dep. at 326–28, 332–34; Stanford Aff. ¶ 3–4; Stanford SMF ¶ 5. Stanford

claims he has a deeded right-of-way to use this road, see Stanford SMF ¶ 5; Plaintiffs’ assert that

Stanford holds no such right-of-way, see Resp. to Stanford SMF ¶ 5.

Back in 2008, Plaintiffs brought a lawsuit in state court against several of their neighbors,

including Stanford, in which they sought, amongst other relief, clarification regarding the

existence, nature, and extent of the right-of-way across Plaintiffs’ property. Stanford SMF ¶ 4;

Dkt. No. 82-5 (“2008 Decision”). In that lawsuit, the Stanford and Plaintiffs “agree[d] that there

exists [at least some] right of way,” and the state court issued a preliminary injunction ordering

the parties to “maintain the status quo of the right of way,” including no “widen[ing] or

narrow[ing].” 2008 Decision at 3, 5–6. The State Court matter was eventually resolved in 2013,

when the state court granted Stanford’s summary judgment motion in that case. See Stanford

SMF ¶ 4; Resp. to Stanford SMF ¶ 4; Dkt. No. 82-6 (“2013 Decision”).

2. The September 1, 2016 Incident

On September 1, 2016, Stanford was driving home to his cabin along the access road.

Stanford SMF ¶ 6; Resp. to Stanford SMF ¶ 6. At a Y-intersection, Stanford encountered Mark

Hogan,1 who was digging a hole on the side of the roadway. Stanford SMF ¶ 6; Resp. to Stanford

SMF ¶ 6; Dkt. No. 82-3 9 (“Stanford Affidavit”) ¶ 6. Hogan insists he was doing repair work to

fix electrical lines that Stanford had damaged. Resp. to Stanford SMF ¶ 6. Stanford, however,

believed that Hogan was altering the road in violation of the preliminary injunction issued in the

2008 Decision. Stanford Aff. ¶¶ 7–8; Dkt. No. 82-8 (“Stanford Deposition”) at 14.

To document Hogan’s actions, Stanford stopped his car and began recording Hogan with

a cellphone camera. Stanford SMF ¶ 6; Resp. to Stanford SMF ¶ 6; Dkt. Nos. 89-1 (“Hogan

Deposition”) at 347; 81-10 (“First Video”). Observing this, Hogan became agitated. He

approached Stanford with a golf club, told him repeatedly to go and “get out of here,” and called

him a “little fucker.” First Video. Hogan then used the handle of the golf club to knock

Stanford’s phone out of his hand. Id.2

1 Because all of the events that are pertinent to this decision involve Mark Hogan alone,

and not his wife and co-plaintiff Elizabeth Hogan, when the Court refers to “Hogan” elsewhere

in this opinion, it means only Mark Hogan.

2 Though Hogan testified that he never struck Stanford or his phone, and instead that

Stanford dropped the phone, Hogan Dep. at 350, this is not borne out by the First Video.

Crucially, the parties dispute where exactly this altercation took place. Hogan attests that

the event took place wholly on “Lake lot 29 on Hiawatha Lake I” (“Lot 29”), which he insists is

purely his private property, subject to no easement by Stanford. Dkt. Nos. 89-5 (“Hogan

Affirmation”) ¶ 2; 89-6, Ex. A (“Hogan Deed”). In contrast, Stanford asserts that the incident

took place on “Great Lot 24,” over which his deeded right-of-way runs. Dkt. No. 92-7

(“Response to Hogan’s SMF”) ¶ 13; Dkt. No. 82-9 (“Stanford Deed”).3

In any event, at this point, Stanford picked up his phone, drove to a second location, and

began filming Hogan again. Stanford SMF ¶ 7; Resp. to Stanford SMF ¶ 7; Dkt. No. 89-6, Ex. C

(“Second Video” and “Third Video”). After a brief period, Stanford left. Stanford SMF ¶ 7;

Resp. to Stanford SMF ¶ 7.

Stanford then made a call to the New York State Police about Hogan’s actions. Stanford

SMF ¶ 8; Resp. to Stanford SMF ¶ 8. Defendant Fayle and Trooper Emerson Lyndaker, who is

not a party to this action, both responded to Stanford’s call, with Fayle arriving first. NYSP SMF

¶¶ 4–8; Resp. to NYSP SMF ¶¶ 4–8.

Stanford described to the troopers the incident between him and Hogan and showed them

at least the First Video he had taken with his phone. NYSP SMF ¶ 10; Resp. to NYSP SMF ¶ 10.

Fayle also took a sworn deposition statement from Stanford in which Stanford described the

incident. NYSP SMF ¶ 9; Resp. to NYSP SMF ¶ 9; Dkt. No. 82-11 (“Criminal Complaint and

Deposition”). Stanford then told the troopers he wanted a restraining order against Hogan. NYSP

SMF ¶ 17; Resp. to NYSP SMF ¶ 17. Lyndaker spoke with their sergeant and then told Stanford

that they could charge Hogan with harassment in the second degree, a violation of N.Y. Penal

3 The Court notes that the record as to the boundaries of Hogan’s property is quite

confused. See, e.g., Hogan Dep. at 324–32; 343–44; Stanford Dep. at 14.

Law § 240.26, and that Stanford could perform a “citizen’s arrest” of Hogan. NYSP SMF ¶ 18;

Resp. to NYSP SMF ¶ 18. Stanford agreed, and proceeded to file a criminal complaint against

Hogan for harassment in the second degree. Stanford Aff. ¶ 14.

The troopers then followed Stanford back to where Hogan was working on the access

road. NYSP SMF ¶ 20; Resp. to NYSP SMF ¶ 20. There, Stanford told Hogan that he was under

arrest for harassment. Stanford SMF ¶ 9; Resp. to Stanford SMF ¶ 9. Lyndaker then placed

handcuffs on Hogan and placed him in a police cruiser to transport him to court. NYSP SMF ¶

22; Resp. to NYSP SMF ¶ 22; Dkt. No. 89-3 (“Fayle Deposition”) at 40. Hogan remained in

custody approximately three hours. Hogan Aff. ¶ 15.

In the aftermath of this incident, Stanford received a six-month order of protection

against Hogan. Stanford SMF ¶ 10; Resp. to Stanford SMF ¶ 10. Additionally, on July 25, 2017,

after a bench trial (the “Criminal Trial”) in the Watson Town Court, Hogan was convicted of

harassment in the second degree. NYSP SMF ¶ 25; Resp. to NYSP SMF ¶ 25; Dkt. No. 82-12

(“Certificate of Disposition”). He did not appeal the conviction. Stanford SMF ¶ 10; Resp. to

Stanford SMF ¶ 10. Finally, Plaintiffs assert that the Second Video and Third Video taken by

Stanford were exculpatory and were illegally withheld from them by the district attorney’s office

during the course of the Criminal Trial. Hogan Aff. ¶ 11.

3. The September 3, 2016 Incident

Two days after his arrest over his altercation with Stanford, Hogan had another run-in

with state police.

David Vandewater, one of Hogan’s neighbors and a defendant in this action, placed a call

to state police in which he reported observing Hogan remove several orange traffic cones from

their position around a dirt pile. NYSP SMF ¶ 30; Resp. to NYSP SMF ¶ 30; Dkt. No. 83-4

(“Craft Declaration”) ¶ 6. Vandewater was unsure who owned the cones but thought that it was

possible Hogan had stolen them. Craft Decl. ¶ 6; Dkt. No. 83-6 (“Craft Deposition”) at 25–27.

As the unit closest to Vandewater’s location, defendant Craft was assigned to respond to

Vandewater’s call. Craft Decl. ¶ 4. Craft drove to Vandewater’s house and parked his car on the

right side of the narrow roadway. NYSP SMF ¶ 29; Resp. to NYSP SMF ¶ 29. Vandewater then

explained to Craft what he had seen Hogan do with the cones. NYSP SMF ¶ 30; Resp. to NYSP

SMF ¶ 30.

While Craft was speaking with Vandewater, Hogan happened to drive by. NYSP SMF ¶

31; Resp. to NYSP SMF ¶ 31. He drove around Craft’s patrol car—still parked on the right side

of the road—and onto Vandewater’s lawn before continuing on his way. NYSP SMF ¶ 31; Resp.

to NYSP SMF ¶ 31.4

Observing this, Craft believed that Hogan had violated several provisions of New York’s

Vehicle and Traffic Law, as well as Penal Law § 145.00 for criminal mischief, and that he had

potentially committed larceny of the traffic cones as well. Craft Decl. ¶¶ 8–9. Craft turned on his

emergency lighting and pulled Hogan over. NYSP SMF ¶ 32; Resp. to NYSP SMF ¶ 32. Craft

told Hogan that he had seen him drive off the roadway onto Vandewater’s lawn and that he was

4 In their Response to the NYSP SMF, Plaintiffs deny the NYSP Defendants’ assertion

that Hogan drove on to Vandewater’s lawn, stating that Hogan did not leave his “designated 50-

foot right-of-way” and citing to the Hogan Deed in support. See Resp. to NYSP SMF ¶ 31 (citing

Hogan Deed). But the deed indicates only that Hogan owns a right-of-way, not that he remained

on it on September 3, 2016 as he drove by Craft’s cruiser. Thus, because the citation does not

support the denial, this fact is deemed admitted. See Hogan v. Lewis Cty., No. 16-CV-1325,

2018 WL 4689094, at *6 (N.D.N.Y. Sept. 28, 2018) (“Plaintiffs deny this asserted fact, but

provide no record citation to support that denial. . . . This fact is therefore deemed admitted.”)

(citing N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648–49 (2d Cir. 2005)). Moreover,

in his deposition, Hogan effectively admits that he drove over Vandewater’s lawn. See Hogan

Dep. at 416 (“Q. Is the grass that you drove over part of Mr. Vandewater’s lawn? A: It’s a pretty

crappy lawn, but he mows it so you can say yes. But in that area it’s a mixture of grass and dirt.

It’s sort of like gravel, grass and dirt, nice grass. And I wasn’t in the nice grass.”).

also investigating a potential larceny of traffic cones. NYSP SMF ¶ 34; Resp. to NYSP SMF ¶

34. Hogan assured Craft that the cones were his, and to prove it he showed Craft where he had

written his initials and address on the cones. NYSP SMF ¶¶ 35–37; Resp. to NYSP SMF ¶¶ 35–

37. At this, Craft apparently no longer suspected Hogan of stealing the cones. Craft Dep. at 38.

By this point, however, Hogan and Vandewater began arguing and shouting at one

another. Craft Decl. ¶ 11. The parties dispute exactly what happened next. Craft says that, “[i]n

order to defuse the conflict and complete [his] investigate work,” he “advised Mr. Hogan that he

was free to go, and [Craft] would stop by his cabin [to complete their conversation] as soon as

[he] finished [his] discussions with Mr. Vandewater.” Craft Decl. ¶ 12; see also Craft Dep. at 37.

By contrast, Hogan says that Craft ordered him to go wait at home until Craft showed up to

continue the interview. Hogan Aff. ¶ 17; Hogan Dep. at 414, 418; see also Dkt. No. 83-5

(“Incident Report”) (stating that Craft “directed” Hogan “to return to his house” and that Craft

would be “down to talk with him in a few minutes”).

In any event, whether in response to Craft’s request or command, Hogan returned to his

home and waited for Craft. After “maybe 15 or 20 minutes,” Craft arrived. Hogan Dep. at 419–

20; see also Hogan Aff. ¶ 18 (“20 minutes”). Craft and Hogan had a brief conversation, at which

point Craft left. NYSP SMF ¶¶ 43–45; Resp. to NYSP SMF ¶¶ 43–45; Hogan Dep. at 419. Craft

decided not to charge Hogan with any offenses based on the events of September 3, 2016. NYSP

SMF ¶ 46; Resp. to NYSP SMF ¶ 46.

B. Procedural History and Plaintiffs’ Claims

Plaintiffs initially brought ten separate claims against nine named defendants: (1) the

County of Lewis, New York; (2) Lewis County District Attorney Leanne Moser; (3) Assistant

District Attorney Caleb Petzoldt; (4) Assistant District Attorney Mark Lemieux; (5) Frank Rose,

yet another of Hogan’s Hiawatha Lake neighbors; (6) Vandewater; (7) Stanford; (8) Fayle; and

(9) Craft. See Compl. In a prior decision, the Court dismissed the claims against Moser, Petzoldt,

Lemieux, and Lewis County. See Dkt. No. 68 (“2018 Order”). Relevant to Stanford’s and the

NYSP Defendants’ motions for summary judgment are the following claims: (1) a § 1983 claim

for false arrest against Stanford and Fayle arising out Hogan’s arrest following the September 1,

2016 incident, Compl. ¶¶ 53–57; (2) a § 1983 claim for illegal seizure or false imprisonment

against Craft arising out of Hogan’s brief confinement in his house during the September 3, 2016

incident, id. ¶¶ 58–62; (3) a state law defamation claim against Stanford regarding his statements

to Fayle on September 1, 2016, id. ¶¶ 63–66; (4) a state law trespass claim against Stanford

arising out of the events of September 1, 2016, id. ¶¶ 67–72; and (5) a claim for punitive

damages against all defendants, id. ¶¶ 87–88

III. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the

outcome of the suit under the governing law,” and a dispute is “‘genuine’ . . . if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or

unnecessary” will not preclude summary judgment, “summary judgment will not lie if . . . the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see

also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of

fact could find in favor of the nonmoving party should summary judgment be granted.”).

The party seeking summary judgment bears the burden of informing the court of the basis

for the motion and identifying those portions of the record that the moving party claims will

demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party

has failed “to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Id. at 322.

In attempting to repel a motion for summary judgment after the moving party has met its

initial burden, the nonmoving party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all

reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000). Hence, “a court’s duty in reviewing a motion for summary

judgment is ‘carefully limited’ to finding genuine disputes of fact, ‘not to deciding them.’”

Macera v. Vill. Bd. of Ilion, No. 16-CV-668, 2019 WL 4805354, at *8 (N.D.N.Y. Sept. 30,

2019) (Kahn, J.) (quoting Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224

(2d Cir. 1994)).

IV. DISCUSSION

The Court considers, in turn: (A) Plaintiffs’ federal claims under § 1983; (B) Plaintiffs’

state law claims; and (C) their request for punitive damages.

A. Federal Claims Under § 1983

Plaintiffs bring their federal claims under § 1983. “[Section] 1983 provides a civil claim

for damages against any person who, acting under color of state law, deprives another of a right,

privilege or immunity secured by the Constitution or the laws of the United States.” Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999). Section 1983 does not create any substantive rights;

instead it provides litigants a procedure to redress the deprivation of rights established elsewhere.

See Doe v. Patrick, No. 17-CV-846, 2020 WL 529840, at *7 (N.D.N.Y. Feb. 3, 2020) (Kahn, J.)

(citing Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004)). Bearing these

principles in mind, the Court turns first to the false arrest claims against Fayle and Stanford, then

to the illegal seizure claim against Craft.

1. False Arrest Claim Against Fayle and Stanford

Hogan asserts a false arrest claim under § 1983 against Fayle and Stanford stemming

from Hogan’s arrest on September 1, 2016. Compl. ¶¶ 53–57. “Claims for false arrest

. . . brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to be free

from unreasonable seizures, are substantially the same as claims for false arrest . . . under state

law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (internal quotation marks omitted);

see also Callahan v. City of New York, 90 F. Supp. 3d 60, 68 (E.D.N.Y. 2015) (citation omitted)

(“A [Section] 1983 claim for false arrest, resting on the Fourth Amendment right of an individual

to be free from unreasonable seizures, including arrest without probable cause, is substantially

the same as a claim for false arrest under New York [state] law.”) (alterations in original). To

state a claim for false arrest under § 1983 or New York law, a plaintiff must allege that: “(1) the

defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement,

(3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise

privileged.” Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991).

Both Fayle and Stanford argue that the Court should grant them summary judgment on

this claim because, among other reasons, Hogan was convicted of the charge that was the basis

of the citizen’s arrest. NYSP Mem. at 11–14; Stanford Mem. at 3–4. The Court agrees with

respect to Fayle, but disagrees with respect to Stanford.

a. Fayle

The false arrest claim against Fayle is barred by his conviction for harassment. “The

existence of probable cause to arrest constitutes justification and is a complete defense to an

action for false arrest, whether that action is brought under state law or under § 1983.” Weyant v.

Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal citations and quotation marks omitted).

Additionally, “if a person [is] convicted of the crime for which he [is] arrested, he [is] barred

from bringing a claim for false arrest because . . . a valid conviction establishes the existence of

probable cause.” Vallen v. Connelly, 36 F. App’x 29, 31 (2d Cir. 2002 ) (citing Cameron v.

Fogarty, 806 F.2d 380, 388 (2d Cir. 1986)); see also Clark v. City of New York, No. 16-CV-

7744, 2018 WL 4372671, at *4 (S.D.N.Y. Sept. 13, 2018) (“A conviction of the crime for which

an[] individual is arrested bars recovery for false arrest or malicious prosecution.”) (citing

Cameron, 806 F.2d at 387). As explained below, the Court finds that Hogan’s conviction for

harassment in the second degree bars his false arrest claim, and even if it did not, Hogan’s claim

would otherwise fail because Fayle had probable cause to make the arrest.5

i. Conviction

Here, it is undisputed that, on September 1, 2016, Fayle responded to a dispatch call

regarding the altercation between Stanford and Hogan. NYSP SMF ¶¶ 7–10; Resp. to NYSP

5 In light of the fact that Stanford effected a citizen’s arrest of Hogan and Lyndaker

actually cuffed Hogan and took him into custody, see Resp. to NYSP SMF ¶¶ 21–22, the NYSP

Defendants argue that Fayle is not the proper defendant for this false arrest claim, see NYSP

Mem. at 9–11. However, for the purposes of resolving the instant motion, the Court assumes—

without deciding—that Fayle was sufficiently involved in Hogan’s arrest to potentially face

liability under § 1983.

SMF ¶¶ 7–10. It is further undisputed that, as a result of this altercation, Hogan was arrested and

charged with harassment in the second degree, a violation of N.Y. Penal Law § 240.26. See

NYSP SMF ¶¶ 20–24; Resp. to NYSP SMF ¶¶ 20–24; Criminal Compl. and Dep. Finally, it is

undisputed that, after a bench trial on July 25, 2017, Hogan was convicted of harassment in the

second degree, and that he declined to appeal. NYSP SMF ¶ 25; Resp. to NYSP SMF ¶ 25;

Certificate of Disposition; Hogan Dep. at 363. Because Hogan was convicted of the crime for

which he was arrested, he does not have a viable claim for false arrest against Fayle. See

Cameron, 806 F.2d at 387 (“[T]he plaintiff can under no circumstances recover if he was

convicted of the offense for which he was arrested.”).

To rebut this conclusion, Plaintiffs offer several arguments, none of them successful.

First, Plaintiffs argue that “[t]he New York Court of Appeals has unequivocally ruled that an

harassment conviction under Penal Law Sec. 240.25 is not to be given collateral estoppel effect

in a subsequent civil action.” Opp’n to NYSP Mot. at 7 (citing Gilberg v. Barbieri, 53 N.Y.2d

285 (1981)); see also Opp’n to Stanford Mot. at 4. But this argument is flawed because the

doctrine of collateral estoppel is not necessary to the Court’s decision. Cameron is clear that

subsequent conviction bars a claim for false arrest, separate and apart from any application of

collateral estoppel, through an independent “common-law defense.” See Cameron, 806 F.2d at

384 (explaining that plaintiff’s false arrest claim “is not barred by principles of collateral

estoppel,” but, rather, “under common-law principles, as properly incorporated into § 1983

actions of this type, [plaintiff’s] present lawsuit is defeated by his prior conviction”); see also

John v. Lewis, No. 15-CV-5346, 2017 WL 1208428, at *10 (E.D.N.Y. Mar. 31, 2017) (“[E]ven

though a conviction does not always preclude a claim for false arrest under principles of res

judicata or collateral estoppel, the ‘common law defense of conviction’ to a false arrest claim

[nonetheless] provides immunity to [the defendant].”) (citing Cameron, 806 F.2d at 386–89).

Therefore, whether or not a conviction for harassment in the second degree has collateral

estoppel effect is immaterial to the Court’s determination that Hogan’s conviction bars his false

arrest claim. See Patterson v. Labella, No. 12-CV-1572, 2014 WL 4892895, at *13 (N.D.N.Y.

Sept. 30, 2014) (“As to Plaintiff’s false arrest claim, the Court finds that Defendants are entitled

to summary judgment because Plaintiff was convicted after trial of violating N.Y. Penal Law

§ 240.26. Plaintiff did not appeal his conviction and it is therefore still valid. A conviction that

survives appeal is conclusive evidence of probable cause and is therefore a complete defense to a

false arrest claim brought under § 1983.”) (internal quotation marks omitted), aff’d, 641 F.

App’x 89 (2d Cir. 2016).

Next, Plaintiffs argue that Hogan’s conviction for harassment in the second degree should

not bar his false arrest claim because the conviction “was procured through fraud and

concealment.” Opp’n to NYSP Mot. at 9. Specifically, Plaintiffs assert that “critical recordings

were withheld from Plaintiff in the course of the prosecution,” i.e., the Second Video and Third

Video that Stanford took of Hogan on September 1, 2016. Id. at 9. But this argument, too, fails.

While Plaintiffs are correct that a showing of “fraud or perjury” can vitiate a conviction such that

it will not bar a claim for false arrest, see Roundtree v. City of New York, 778 F. Supp. 614, 619

(E.D.N.Y. 1991) (“[A] conviction . . . conclusively [bars a false arrest claim] unless the

conviction was obtained by fraud, perjury or other corrupt means.”), they have failed to raise a

triable issue of fact as to whether the conviction at issue in this case was procured through fraud

or other corrupt means.

First, Plaintiffs have failed to establish that the Second Video and Third Video are

exculpatory. The videos do not depict Stanford engaging in any violent or aggressive behavior

such that Hogan’s conduct would be justified, and even if they did, Plaintiffs have not explained

how videos taken after Hogan had already knocked Stanford’s phone out of his hand could

justify Hogan’s earlier actions. Nor do the videos prove that Stanford was trespassing on

Hogan’s land when he was filming, as they do not depict any property lines or boundaries, and

Hogan’s unsworn assertions in the Third Video that Stanford was trespassing do not prove that

Stanford, in fact, was. Finally, the videos, in which Stanford is silent, offer nothing to

substantiate Plaintiffs oft-repeated claim that Stanford “delighted in the damage and destruction

he inflicted.” See Opp’n to Stanford Mot. at 6; Resp. to Stanford’s SMF ¶ 23; Hogan Aff. ¶ 11.

No reasonable jury could find these brief videos—one 23 seconds long, the other 31 seconds—to

be exculpatory, much less find that failing to turn them over to the defense meant that Hogan’s

conviction was obtained through fraud or corruption.

Second, Plaintiffs also fail to demonstrate that these allegedly exculpatory videos were

“withheld” in a manner that qualifies as fraudulent or corrupt. Hogan knew these videos existed,

as he viewed Stanford recording them, Hogan Dep. at 351–52, yet Plaintiffs have directed the

Court to no evidence demonstrating that they requested the videos in discovery prior to the

Criminal Trial, that the prosecutor unjustifiably withheld the videos, or that they raised a

potential Brady violation with the criminal court. Furthermore, “despite plaintiff commencing

this action in November 2016, plaintiff’s counsel did not serve a demand for any videos until

February 2018, which was six months after plaintiff was convicted of harassment.” Stanford

Reply at 3 (citing Dkt. No. 92-3 (“Plaintiff’s Request for Documents”)); see also Dkt. No. 92

(“Hurley Affidavit”) ¶ 3; Certificate of Disposition (demonstrating that Hogan was convicted of

harassment in the second degree on July 25, 2017). Plaintiffs have offered no evidence

controverting this timeline, nor any explanation for why, when discovery opened in this case in

May 2017, see Dkt. No. 44, they did not immediately request videos that they now claim were

crucial to their criminal case.

Without any such explanation for how these videos would exculpate Hogan, nor any

evidence that they were withheld through the malevolent acts of Stanford, the police, and the

prosecution, no reasonable jury could find that Hogan’s conviction was procured through fraud

or perjury. See Artis v. Liotard, 934 F. Supp. 101, 104 (S.D.N.Y. 1996) (granting defendants’

motion for summary judgment as to plaintiff’s false arrest claim because, even though plaintiff

argued that his conviction for the crime of arrest had been procured through a “malicious police

conspiracy against him,” plaintiff had “not introduced any evidence of such a conspiracy”).6

Therefore, Hogan’s conviction serves as a complete defense to his false arrest claim

against Fayle, and the Court grants the motion for summary judgment as to this claim.

ii. Probable Cause

Assuming for the sake of argument that, for some reason, Fayle cannot rely on Hogan’s

conviction for harassment in the second degree as a defense against Hogan’s false arrest claim,

the claim would still fail because Fayle had probable cause to make an arrest.

As described above, “probable cause is a complete defense to an action for false arrest.”

Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015). “An officer has probable cause

to arrest when he or she has knowledge or reasonably trustworthy information of facts and

circumstances that are sufficient to warrant a person of reasonable caution in the belief that the

6 Plaintiffs make additional arguments regarding the correctness of Hogan’s conviction,

but these arguments address the merits of that decision, rather than whether any fraudulent

conduct helped procure it, and therefore do not affect Court’s decision. See Opp’n to Stanford

Mot. at 6–8 (arguing that Stanford was a trespasser and, therefore, Hogan had a right to defend

his property). If Plaintiff wished to make these arguments, he could have appealed his conviction

in state court.

person to be arrested has committed or is committing a crime.” Jaegly v. Couch, 439 F.3d 149,

152 (2d Cir. 2006) (internal quotation marks omitted). “An arresting officer advised of a crime

by a person who claims to be the victim, and who has signed a complaint or information

charging someone with the crime, has probable cause to effect an arrest absent circumstances

that raise doubts as to the victim’s veracity.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d

Cir. 1995) (quotation marks omitted). “Information about criminal activity provided by a single

complainant can establish probable cause when the information is sufficiently reliable and

corroborated.” Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir. 1994).

Here, it is undisputed that Fayle interviewed Stanford about his altercation with Hogan,

took Stanford’s sworn deposition, and saw the First Video in which Hogan knocked Stanford’s

phone out of his hand. NYSP SMF ¶¶ 9–10; Resp. to NYSP SMF ¶¶ 9–10. Fayle, therefore,

“received his information from . . . the putative victim,” which alone was enough to establish

probable cause. See Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (determining that

officers had probable cause to arrest when they received information about a crime from the

victims). In addition to Stanford’s statements, Fayle also viewed the First Video, which

corroborated Stanford’s account. Accordingly, there was probable cause to arrest Hogan. See

Corsini v. Bloomberg, 26 F. Supp. 3d 230, 241 (S.D.N.Y. 2014) (explaining that probable cause

can be founded “on the victims’ allegations that a crime has been committed”) (internal

quotation marks omitted), aff’d in part, appeal dismissed in part sub nom. Corsini v. Nast, 613 F.

App’x 1 (2d Cir. 2015).

Plaintiffs first response, rather than to contest probable cause, is to argue that,

“irrespective of whether probable cause was present,” Hogan’s arrest “for a non-criminal

violation constitute[d] an unreasonable seizure under the Fourth Amendment.” Opp’n to NYSP

Mot. at 3. Specifically, Plaintiffs point out that harassment in the second degree is a “violation,”

see N.Y. Penal Law § 240.26, a level of offense below misdemeanors, see Gilberg, 53 N.Y.2d at

293 (describing how “violations” are “petty infractions below the grade of a misdemeanor”), and

that “N.Y. Criminal Procedure Law 140.10 does not grant police officers the authority to arrest

for noncriminal violations committed outside their presence,” Opp’n to NYSP Mot. at 3 (citing

N.Y. C.P.L. § 140.10(1)(a)). Further, they argue that, since Hogan’s alleged harassment of

Stanford occurred outside Fayle’s presence, he was not “authorized to arrest [Hogan] for the

alleged harassment” under New York law. Id.

Fatal to Plaintiffs’ argument, however, is that they have brought their false arrest claim

under § 1983 and the Fourth Amendment, not New York law. The Supreme Court has stated

that, “while States are free to regulate . . . arrests however they desire, state restrictions do not

alter the Fourth Amendment’s protections.” Virginia v. Moore, 553 U.S. 164, 176 (2008). In line

with this principle, “several courts” have rejected exactly the argument Plaintiffs make here, and

“correctly found [NY C.P.L. 140.10] inapplicable in the context of a § 1983 false-arrest claim.”

See Mikulec v. Town of Cheektowaga, 909 F. Supp. 2d 214, 225 (W.D.N.Y. 2012) (citing

cases); see also Penree v. City of Utica, New York, No. 13-CV-1323, 2016 WL 915252, at *11

(N.D.N.Y. Mar. 4, 2016) (“[T]he Constitution . . . is not concerned with the restrictions that New

York chooses to place on its police officers.”). Accordingly, Plaintiffs’ argument that Hogan’s

arrest “for a non-criminal offense was an unreasonable seizure under the Fourth Amendment”

fails. See Opp’n to NYSP Mot. at 4; see also Worytko v. Cty. of Suffolk, No. 02-CV-2233, 2007

WL 9724944, at *10 (E.D.N.Y. May 25, 2007) (rejecting plaintiff’s motion for a new trial on the

basis that his allegedly false arrest was invalid because violations—trespass and harassment in

the second degree—did not occur in the police officers’ presence), aff’d, 285 F. App’x 794 (2d

Cir. 2008); cf. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (defendant’s Fourth

Amendment rights are not violated when the subject is arrested for a misdemeanor that is

punishable only by a fine).

Plaintiffs also attempt to argue Hogan’s arrest was not supported by probable cause

because Fayle “was not entitled to ignore a plainly obvious justification for . . . Hogan’s

conduct,” namely, that he was defending his property against a trespasser. Opp’n to NYSP Mot.

at 5. Specifically, as justification for Hogan’s actions, Plaintiffs cite to N.Y. Penal Law § 35.20,

which states, in relevant part:

A person in possession or control of any premises, or a person licensed

or privileged to be thereon or therein, may use physical force upon

another person when he or she reasonably believes such to be necessary

to prevent or terminate what he or she reasonably believes to be the

commission or attempted commission by such other person of a

criminal trespass upon such premises.

N.Y. Penal Law § 35.20 (emphasis added).

But even assuming, as Plaintiffs would have the Court do, that Stanford parked his

vehicle on Hogan’s property without permission and that Fayle was aware of this fact, § 35.20

still would not justify Hogan’s response—nor undermine Fayle’s probable cause assessment—

because it is limited by its terms to defense against “criminal trespass.” New York’s Penal Law

distinguishes between three degrees of “criminal trespass,” see §§ 140.10, 140.15, and 140.17,

and simple “trespass,” which is a violation, see § 140.05; see also People v. Orta, 54 Misc. 3d 16,

17 (N.Y. App. Term. 2016) (distinguishing between “trespass” and “criminal trespass”). The

three degrees of criminal trespass each contain aggravating elements that simple trespass does

not, such as entering a school, public housing project, or other area enclosed in a manner

designed to exclude intruders. See §§ 140.10, 140.15, and 140.17. Here, where there is no

indication that any of the aggravating factors were met during Stanford’s brief stop on September

1, 2016, Stanford’s actions could constitute nothing more than a simple trespass. See N.Y. Penal

Law § 140.05 (“A person is guilty of trespass when he knowingly enters or remains unlawfully

in or upon premises.”). Consequently, § 35.20 would not apply and could provide no justification

for Hogan’s conduct that day, which in turn means that Fayle’s arrest is still supported by

probable cause.

For all these reasons then, the Court finds that Plaintiffs have failed to raise a genuinely

disputed issue of material fact as to the false arrest claim against Fayle, and the Court grants the

NYSP Defendants’ summary judgment motion as to that claim.7

b. Stanford

By contrast, the Court cannot grant Stanford’s summary judgment motion as to Plaintiffs’

false arrest claim.

Preliminarily, the Court notes that Plaintiffs bring their false arrest claim against

Stanford—who appears to be a private citizen8—under § 1983, which offers a cause of action

only against those who act under color of state law. See 42 U.S.C. § 1983. While there is some

authority to support Plaintiffs’ decision to bring this false arrest claim against Stanford under

§ 1983, see Fraser v. Cty. of Maui, 855 F. Supp. 1167, 1177 (D. Haw. 1994) (“[S]tate action may

exist where the private citizen makes a citizen’s arrest upon the advice of police officers.”), the

7 Because the Court grants the Motion on these grounds, it need not address Fayle’s

personal involvement or qualified immunity arguments. See NYSP Mem. at 9–11, 14–16; see

also Kampfer v. Argotsinger, No. 18-CV-7, 2020 WL 906274, at *10 (N.D.N.Y. Feb. 25, 2020)

(Kahn, J.) (“Because the Court dismisses Plaintiff’s claims on the above grounds, there is no

need to address Defendants’ alternative arguments as to legislative immunity, qualified

immunity, or personal involvement.”).

8 The Court has scoured the record but has been unable to find any evidence, from any

party, indicating what Stanford does for a living. However, since both parties agree that Stanford

made a “citizen’s arrest,” the Court thinks it reasonable to assume that Stanford is a private

citizen.

issue is not clear cut, see Patterson v. City of New York, No. 16-CV-3525, 2017 WL 3432718, at

*7 (E.D.N.Y. Aug. 9, 2017) (stating that “private citizens may effectuate arrests without

becoming state actors” and dismissing § 1983 claims against private-citizen defendants), aff’d,

758 F. App’x 217 (2d Cir. 2019); Spencer v. Lee, 864 F.2d 1376, 1380 (7th Cir. 1989)

(explaining that citizens’ arrests are not made under color of state law). However, because

Stanford has failed to argue this point in his motion, and Plaintiffs have correspondingly also

failed to brief the issue, the Court assumes that Plaintiffs can properly bring their false arrest

claim against Stanford under § 1983.

Turning to the merits of Stanford’s Motion, he argues that Plaintiffs’ false arrest claim

against him is barred, under Cameron, by Hogan’s conviction for harassment in the second

degree. See Stanford Mem. at 3–4. But the Court cannot find that Cameron protects private

citizens accused of false arrest. Cameron enunciated its rule in the context of a federal false

arrest claim brought against police officers, a fact that appears crucial to its decision and

analysis. See Cameron, 806 F.2d at 386 (“Cameron’s complaint was properly dismissed because

under long-established common-law principles, Cameron’s conviction gives the defendant police

officers a complete defense to the present claim.”) (emphasis added); id. at 387 (“The law

enforcement officer is given th[e] protection [of the valid-conviction rule] because he has a duty

to the public to prevent crime and arrest criminals.”) (internal quotation marks omitted). In

particular, the foundation of Cameron’s rule— that conviction provides the defendant “a

complete defense” against a false arrest claim—is that “conviction of the plaintiff following the

arrest is viewed as establishing the existence of probable cause,” and “the defendant is entitled to

prevail if he can establish that there was probable cause for the arrest,” Cameron, 806 F.2d at 387

(citing Broughton v. State, 37 N.Y.2d 451, 458 (1975)). Significantly, while probable cause

shields law enforcement officers from liability for false arrest, see Broughton, 37 N.Y.2d at 458,

it provides no such shield to private citizens, see Liranzo v. United States, 690 F.3d 78, 96 (2d

Cir. 2012) (“In New York, a private citizen who makes an arrest does so at his peril; if the person

arrested did not in fact commit the crime for which he is arrested, the person who arrests him is

liable [for false arrest] even if he acts in good faith or has probable cause to make an arrest.”)

(citing White v. Albany Med. Ctr. Hosp., 151 A.D.2d 859, 861 (1989)); Biswas v. City of New

York, 973 F. Supp. 2d 504, 515 (S.D.N.Y. 2013) (“[P]robable cause is not a defense for false

arrests by private citizens.”). Therefore, because probable cause cannot shield Stanford from

Plaintiffs’ false arrest claim against him, and because Cameron’s rule rests upon the probable

cause defense, the Court finds that Cameron is inapplicable to the claim against Stanford and,

thus, that the ruling in that case does not support awarding summary judgment to Stanford.

The Court recognizes that, despite this analysis, Cameron has been extended to some

subsequent cases in which the defendant was not a police officer. See Vallen, 36 F. App’x at 31

(citing Cameron rule in case where plaintiff brought claim against state social workers for

making reports to police that led to plaintiff’s arrest by police); Croft v. Greenhope Servs. for

Women, Inc., No. 13-CV-2996, 2013 WL 6642677, at *5–6 (S.D.N.Y. Dec. 17, 2013) (granting

summary judgment to employee of “private non-profit” drug treatment organization who

reported plaintiff’s parole violation to police because plaintiff “pled guilty to [the parole

violation], thus conclusively establishing that probable cause existed to arrest her for violating

her parole [and] [a]s a result, . . . no claim for false arrest may lie.”); Blackwood v. Omorvan,

No. 16-CV-644, 2018 WL 816839, at *2 (S.D.N.Y. Feb. 8, 2018) (dismissing false arrest claim

brought against hospital security guard because plaintiff “was arrested, prosecuted and

convicted” and “[t]herefore, there was probable cause to effectuate the arrest”). But these cases

do not resolve the issue to the Court’s satisfaction. In Vallen, the reference to the Cameron rule

is mere dicta, and in Croft and Blackwood, the courts applied Cameron without analyzing

whether its common law defense protected non-police-officer defendants. Moreover, these cases

do not address the particular issue at stake here, i.e., whether Cameron’s common law defense

applies to a false arrest claim against a private citizen who made a citizen’s arrest.9 As such,

these cases do not alter the Court’s conclusion that Cameron’s rule is unavailable as a defense to

Stanford.

Without Cameron to rely on, to prevail on his Motion, Stanford must show that Hogan

actually committed the crime of harassment in the second degree. See White, 151 A.D.2d at 861;

Scanlon v. Flynn, 465 F. Supp. 32, 37 (S.D.N.Y. 1978) (“If [defendant] acted as a private citizen,

. . . he can justify the arrest only by showing that [plaintiff] in fact committed th[e] crimes [of

arrest].”). At least for the purposes of this summary judgment motion, he has not met his burden

to do so. First, though Hogan was convicted of harassment in the criminal court, collateral

estoppel does not resolve the issue in this case. Even if a conviction for a criminal violation has

collateral estoppel effect, compare Gilberg, 53 N.Y.2d at 291 (ruling that conviction for

harassment in the second degree did not have collateral estoppel effect in a subsequent civil

action) with Akwaboa v. Bowe, 791 N.Y.S.2d 867, at *2 (Sup. Ct. 2004) (finding that

defendant’s plea of guilty to charge of harassment in the second degree estopped him from

arguing in a subsequent civil suit that he had not struck the plaintiff), Stanford bears the initial

burden to prove estoppel, see Maiello v. Kirchner, 949 N.Y.S.2d 200, 202–03 (2012) (“The party

seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was

9 Stanford has identified no cases expressly addressing this question, see Stanford Mem.;

Stanford Reply, nor has the Court’s own independent research.

necessarily decided in the prior proceeding, and is decisive of the present action.”), and he makes

no effort to argue that the doctrine applies here, see Stanford Mem. (failing even to mention

collateral estoppel). The Court will not do the parties’ work for them.

Alternatively, without addressing the estoppel issue, Stanford could also prevail on his

motion by demonstrating that Hogan’s actions on September 1, 2016 did, in fact, satisfy the

elements of the charge of harassment in the second degree. Under New York law, “[a] person is

guilty of harassment in the second degree when, with intent to harass, annoy or alarm another

person . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical

contact, or attempts or threatens to do the same . . . .” N.Y. Penal Law § 240.26. The video is

certainly highly probative as to whether Hogan’s conduct met these elements, but the Court notes

§ 240.26’s precise mens rea requirement. In order to be guilty of the harassment charge, Hogan

must have knocked Stanford’s camera from his hand “with intent to harass, annoy, or alarm”

Stanford. Id. “[Q]uestions of subjective intent,” such as this one, “can rarely be decided by

summary judgment,” See United States v. City of New York, 717 F.3d 72, 82 (2d Cir. 2013)

(citing Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)), particularly where, as here, a jury might

find that Hogan intended merely to prevent Stanford from filming him, rather than to harass,

annoy, or alarm him. For this reason, the Court declines to grant Stanford summary judgment as

to Plaintiffs’ false arrest claim. See J&J Sports Prods., Inc. v. Bernabe, No. 08-CV-690, 2009

WL 2905781, at *1 (D. Conn. Sept. 8, 2009) (denying motion for summary judgment because

“[t]he Court believe[d] it would be inappropriate on summary judgment to make any conclusions

as to the Defendant’s intent”).

2. Illegal Seizure Claim Against Craft

As an initial matter, although Plaintiffs’ Complaint clearly asserts a claim for “false

imprisonment” against Craft. See Compl. ¶¶ 58–62 (“[A]s and for a fourth cause of action

against defendant Trooper Craft for false imprisonment pursuant to 42 U.S.C. § 1983.”), the

parties instead treat this cause of action as one for the related, but distinct, claim of illegal

seizure. See NYSP Mem. at 16–22; Opp’n to NYSP Mot. at 10–15; see also Allen v. Antal, 665

F. App’x 9, 12 (2d Cir. 2016) (noting that the district court had dismissed plaintiff’s claim for

“false imprisonment” and his claim for “illegal search and seizure”). Accordingly, the Court does

the same.

Turning to the illegal seizure claim, Hogan asserts that he was seized for the twenty

minutes he remained at home waiting for Craft, after Craft had ordered him to do so. See Compl.

¶ 59. The NYSP Defendants argue that the Court should grant summary judgment as to

Plaintiffs’ illegal seizure claim against Craft because: (1) Craft did not seize Hogan “within the

meaning of the Fourth Amendment,” see NYSP Mem. at 17; (2) even if he had seized Hogan, the

brief seizure was “authorized as incident to [his] investigation,” see id. at 19; and (3) he is

entitled to qualified immunity, see id. at 22. The Court grants the motion because it finds that

seizure of Hogan was authorized.

“Whether a seizure occurred and, if so, whether it was justified by the requisite showing,

are questions of law.” United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995). “A person is

seized by the police and thus entitled to challenge the government’s action under the Fourth

Amendment when the officer, by means of physical force or show of authority, terminates or

restrains his freedom of movement, through means intentionally applied.” Brendlin v. California,

551 U.S. 249, 254 (2007) (citations and quotation marks omitted); United States v. Mendenhall,

446 U.S. 544, 554 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth

Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.”). If the seizure is a brief,

“investigative detention,” it is justified if the police have “reasonable suspicion to believe that

criminal activity has occurred or is about to occur.” Tehrani, 49 F.3d at 58 (internal quotation

marks omitted). “If an investigative detention is properly premised upon articulable suspicion,

the next inquiry is whether its scope and duration are reasonable.” Id. By contrast, if the seizure

qualifies as an arrest or its equivalent, the police must have probable cause. See Gilles v.

Repicky, 511 F.3d 239, 245 (2d Cir. 2007). In turn, “probable cause to arrest exists when police

officers have knowledge or reasonably trustworthy information of facts and circumstances that

are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested

has committed or is committing a crime.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007)

(internal quotation marks omitted).

Here, the parties dispute what Craft said to Hogan on September 3, 2016, and whether

Craft’s words—whatever they were—sufficed to “seize” Hogan for the purposes of the Fourth

Amendment.10 However, the Court need not resolve this issue because, even if Craft did order

10 Craft attests that, after Hogan and Vandewater began “arguing and shouting” on

September 3, 2016, he “advised Mr. Hogan that he was free to go, and [he] would stop by

[Hogan’s] cabin as soon as [he] finished [his] discussions with Mr. Vandewater.” Craft Decl.

¶¶ 11–12; see also Craft Dep. at 37. Therefore, according to Craft, there is no basis to find that

Hogan would not have felt free to leave his home. See NYSP Mem. at 17–19. By contrast,

Hogan attests that Craft ordered him to go to his cabin and to stay there. See Hogan Aff. ¶ 17

(“[Craft] then stated to me[:] . . . “Don’t go anywhere. Go down to your cabin. Stay there.” I did

not consent to the detainment but complied.”); see also Hogan Dep. at 414. Consequently, Hogan

argues that he was seized because “a reasonable person would believe that he was required to

follow such a command from a police officer.” Opp’n to NYSP Mot. at 11.

Hogan to remain at his home and Hogan was seized as a result of this order, Hogan’s claim still

fails because such an order was reasonable under the circumstances.

As described above, it is undisputed that, while interviewing Vandewater, Craft observed

Hogan drive his vehicle onto Vandewater’s lawn. As Craft attests in his affidavit, based on what

he had observed, “[Hogan’s] driving upon Mr. Vandewater’s lawn constituted a violation of

several New York State statutes, including . . . Penal Law § 145.00 (criminal mischief).”11 Craft

Decl. ¶ 8; see also People v. Each, 901 N.Y.S.2d 909 (Dist. Ct. 2009) (denying defendant’s

motion to dismiss charge of criminal mischief in the fourth degree where defendant had driven

over victim’s lawn). Having witnessed this potential violation, Craft thus had probable cause to

stop and detain Hogan.12 See Santagata v. Diaz, No. 17-CV-3053, 2020 WL 1536347, at *4

(E.D.N.Y. Mar. 30, 2020) (officer had probable cause to arrest plaintiff where “he had

reasonably trustworthy information that Plaintiff had” violated Penal Law § 145.00); Garcia v.

Cty. of Westchester, No. 11-CV-7258, 2017 WL 6375791, at *21 (S.D.N.Y. Dec. 12, 2017)

(finding that officer had probable cause to arrest plaintiff where he “witnessed conduct that could

reasonably be said to fall under the purview of N.Y. Penal Law § 145.00”); Cf. Atwater, 532

U.S. at 354 (no fourth amendment bar against plaintiff’s arrest after officer had witnessed her

commit minor infraction).

11 “A person is guilty of criminal mischief in the fourth degree when, having no right to

do so nor any reasonable ground to believe that he or she has such right, he or she . . .

[i]ntentionally damages property of another person . . . .” N.Y. Penal Law § 145.00.

12 For this reason, to the extent Plaintiffs have not abandoned their traditional false

imprisonment claim, that claim would also fail. See Greenaway v. Cty. of Nassau, 97 F. Supp. 3d

225, 233 (E.D.N.Y. 2015) (“Probable cause is a complete defense to both Fourth Amendment

and New York State law claims of false imprisonment.”).

Since Craft’s “seizure” of Hogan was justified by probable cause, the Court next asks

whether the seizure was reasonable, and finds that it was. Hogan admits that, after his discussion

with Craft on the road, he returned to his lake cabin and waited for “maybe 15 or 20 minutes.”

Hogan Dep. at 418–19; see also Resp. to NYSP SMF ¶ 42. Therefore, the restraint of Hogan’s

movement in his cabin lasted, at most, 20 minutes. To begin, since Craft had probable cause to

arrest Hogan, and since such an arrest would almost certainly have taken more than twenty

minutes and involved a trip to the state police barracks, the Court fails to see how a twenty-

minute period of confinement at home could be considered unreasonable. Cf. Atwater, 532 U.S.

at 354. And even if Craft had only had reasonable suspicion to believe that Hogan had

committed some sort of violation, other courts have found similar periods of detention to

comport with the Fourth Amendment’s reasonableness requirement when officers were

investigating similarly minor infractions. See Harwe v. Floyd, 545 F. App’x 20, 22 (2d Cir.

2013) (30-minute traffic stop not unreasonable); Ikezi v. City of New York, No. 14-CV-5905,

2017 WL 1233841, at *11 (E.D.N.Y. Mar. 31, 2017) (25-minute stop during which defendants

were handcuffed not unreasonable where police were investigating potentially forged license

plates); Cady v. McCook, No. 01-CV-4375, 2002 WL 999429, at *3 (N.D. Ill. May 13, 2002)

(20-minute stop of uncooperative barefoot jogger found reasonable).

Harwe is especially persuasive. There, the district court granted summary judgment to a

defendant police officer who had pulled the plaintiffs over after observing their car change lanes

without signaling, finding that the eventual 30-minute traffic stop was reasonable under the

Fourth Amendment. See Harwe v. Floyd, No. 09-CV-1027, 2011 WL 674024, at *1 (D. Conn.

Feb. 17, 2011). The Second Circuit affirmed, noting that “once [the officer] stopped plaintiffs’

car for a suspected traffic violation, the officer was entitled to inquire into matters that could

have informed the violation,” and that the officer’s “decision to investigate further by briefly

questioning [the plaintiffs] separately . . . cannot be deemed more intrusive than necessary.”

Harwe, 545 F. App’x at 22. Similarly, once Craft had stopped Hogan to investigate the allegedly

stolen traffic cones, he was entitled to inquire further regarding the criminal mischief he had just

witnessed. Further, because Hogan and Vandewater then began shouting at one another, Craft

Decl. at 11, it was reasonable for Craft to separate Hogan and Vandewater—before the situation

escalated—in order to complete the investigation, see Harwe, 545 F. App’x at 22.

Plaintiffs’ attempt to distinguish Harwe is not convincing. They argue that the Harwe

officers had a need to lengthen the traffic stop in order to administer sobriety tests, and there was

no similar need in the instant case. Opp’n to NYSP Mot. at 13. But the 20-minute “lengthening”

of the traffic stop in this case was directly due to Hogan’s and Vandewater’s burgeoning

argument in the midst of Craft’s investigation, conduct for which Hogan undoubtedly bears some

of the responsibility. Therefore, Craft’s decision to have Hogan wait for him at home—and, thus,

wait those extra 20 minutes—“can[not] . . . be found to have unnecessarily prolonged the stop.”

Id.; see also United States v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992) (stating that courts

“should not indulge in unrealistic second-guessing as to the means law enforcement officers

employ to conduct their investigations”) (alteration and internal quotation marks omitted).

Here, Craft had probable cause to investigate Hogan for the very minor offense of

criminal mischief, and he resolved that investigation favorably for Hogan by declining to issue a

citation. Under the circumstances then, it appears to the Court that “[n]o reasonable jury

could . . . conclude [that,] where the interview means [Craft] employed yielded a result favorable

to plaintiff[] in the course of a stop lasting a total of half an hour,” Craft had violated Hogan’s

Fourth Amendment rights. See Harwe, 545 F. App’x at 22.13

B. State Law Claims

1. Choice of Law

First, the Court briefly discusses which state’s law governs Plaintiffs’ diversity claims.

See Lancaster v. Ethicon, Inc., No. 19-CV-1377, 2020 WL 819291, at *3 (N.D.N.Y. Feb. 19,

2020) (Kahn, J.) (“This case is based on diversity jurisdiction. Federal law thus controls

procedural issues and state law controls substantive issues.”). Though not addressing the issue

explicitly, all parties appear to agree that New York law applies. “In the absence of any objection

from [the parties], and because all the significant contacts lie in the state of New York, . . . the

Court applies New York substantive law to Plaintiffs’ [state law] claims.” See Balura v. Ethicon,

Inc., No. 19-CV-1372, 2020 WL 819293, at *3 (N.D.N.Y. Feb. 19, 2020) (Kahn, J.) (citing

Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994)).

2. Defamation

The Court finds that Plaintiffs’ state law defamation claim against Stanford fails.

In New York, “[d]efamation is the making of a false statement which tends to expose the

plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the

minds of right-thinking persons, and to deprive him of their friendly intercourse in society.” Elias

v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Stepanov v. Dow Jones & Co.,

987 N.Y.S.2d 37, 41 (1st Dep’t 2014)). “To make a claim for defamation under New York law,

the plaintiff must allege ‘(1) a false statement that is (2) published to a third party (3) without

13 Because the Court grants the motion on these grounds, it need not address Craft’s

qualified immunity argument. See NYSP Mem. at 22; see also Kampfer, 2020 WL 906274, at

*10.

privilege or authorization, and that (4) causes harm, unless the statement is one of the types of

publications actionable regardless of harm.’” Cain v. Atelier Esthetique Inst. of Esthetics Inc.,

733 F. App’x 8, 11 (2d Cir. 2018) (quoting Elias, 872 F.3d at 104). “Generally, spoken

defamatory words are slander; written defamatory words are libel.” Albert v. Loksen, 239 F.3d

256, 265 (2d Cir. 2001).

Hogan asserts that the following statements defamed him: (1) Stanford’s statement that

he had a “deeded right-of-way across [Plaintiffs’] property” (“Statement 1”); (2) Stanford’s

statement that Hogan “hit [his] camera with [his] golf club” (“Statement 2”); and (3) Stanford’s

statement that Hogan “harassed” him (“Statement 3”). See Hogan Dep. at 369–70; Stanford SMF

¶ 11; Resp. to Stanford SMF ¶ 11; see also Compl. ¶¶ 65–66.14 Stanford argues that the Court

should grant him summary judgment on this claim because “the alleged defamatory statements

[were] true” and because Plaintiffs failed to properly plead damages. Stanford Mem. at 5–6. The

Court agrees that Stanford is entitled to summary judgment because Plaintiffs have failed to

adequately plead damages and that, in any event, Stanford’s statements are privileged.

a. Damages

To satisfy the damages element of a defamation claim, a plaintiff must establish special

damages—i.e., “the loss of something having economic or pecuniary value which must flow

directly from the injury to reputation caused by the defamation”—or “defamation per se,” which

“absolves a plaintiff of the requirement to plead special damages.” Cain, 733 F. App’x at 11

(quoting Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 179 (2d Cir. 2000). Special

damages “must be fully and accurately stated, with sufficient particularity to identify actual

14 Since Stanford makes no argument challenging whether he made these statements, the

Court assumes for the sake of this motion that he in fact said these three things.

losses,” and “[r]ound figures or a general allegation of a dollar amount . . . will not suffice.”

Thorsen v. Sons of Norway, 996 F. Supp. 2d 143, 164–65 (E.D.N.Y. 2014). Nor do [v]ague

injuries such as “dignitary harm” or mere “injury to reputation.” Macineirghe v. Cty. of Suffolk,

No. 13-CV-1512, 2015 WL 4459456, at *11 (E.D.N.Y. July 21, 2015). Here, Plaintiffs’

Complaint makes no allegations of special damages stemming from the reputational injury due to

Stanford’s alleged defamatory conduct, see Compl. ¶ 66 (“As a direct . . . result of [Stanford’s]

false statements, Plaintiff has been harmed to his reputation, suffered financial harm, and was

deprived of his liberty.”), nor have they directed the Court to any evidence in support of their

Opposition to Stanford’s summary judgment motion that quantifies and particularizes their

damages. Therefore, Plaintiffs have failed to raise a triable issue of fact as to whether they

suffered special damages due to Stanford’s alleged defamatory conduct.

Nor have Plaintiffs met the elements of defamation per se. A plaintiff has established

defamation per se—and, thus, “need not . . . prove[] [damages]”—“‘where [the] plaintiff alleges

statements: (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her

trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing

unchastity to a woman.’” Thorsen, 996 F. Supp. 2d at 165 (quoting Zherka v. Amicone, 634 F.3d

642, 645 n.6 (2d Cir. 2011)). Here, the only possible category of defamation per se that might

apply to Stanford’s alleged statements is “charging plaintiff with a serious crime,” but case law is

clear that harassment in the second degree—a mere violation, see N.Y. Penal Law § 240.26

(“Harassment in the second degree is a violation”)—does not qualify as such, see Warlock

Enterprises v. City Ctr. Assocs., 611 N.Y.S.2d 651, 651 (1994) (“[H]arassment in the second

degree is beyond the definition of slander per se because the harm to the reputation of a person

falsely accused of it is insubstantial.”). Consequently, no reasonable jury could find that

Plaintiffs’ have a viable claim for defamation per se.

Plaintiffs attempt to salvage their defamation claim by arguing that they have asserted a

libel claim—because Stanford’s statements were written in the Criminal Complaint and

Deposition—and that, under New York law, damages for libel claims are presumed. Opp’n to

Stanford Mot. at 8 (citing Matherson v. Marchello, 100 A.D.2d 233, 237 (2d Dep’t 1984)).

Conversely, Stanford argues that because “Plaintiffs’ defamation claim is explicitly directed at

words spoken by [Stanford to Fayle and Lyndaker], not their subsequent reduction to writing in

the criminal complaint and/or supporting deposition, Plaintiffs’ claim is for slander.” See

Stanford Mem. at 4 (quoting Albert, 239 F.3d at 265). Plaintiffs position is somewhat strained,

though, since the first statement that Hogan claims defamed him—Stanford’s statement that he

had a “deeded right-of-way across [Plaintiffs’] property,” Hogan Dep. at 369–70—is nowhere

found in the Criminal Complaint and Deposition, see Criminal Compl. and Dep.

In any event, even assuming that Plaintiffs’ defamation claim sounds in libel, rather than

slander, Plaintiffs have offered no authority binding on this Court to support their argument that

claims for libel require no proof of damages. See Stern v. Cosby, 645 F. Supp. 2d 258, 275

(S.D.N.Y. 2009) (“Stern argues . . . that this Court is bound by New York Appellate Division

cases . . . [but] I am not so bound. The rulings of intermediate appellate courts are ‘helpful

indicators of how the state's highest court would rule,’ but they are not binding on me.”) (quoting

DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir. 2005)). By contrast, this Court is bound by the

Second Circuit’s decision in Celle, which explains that “to recover in libel” “a plaintiff must

establish . . . special damages or per se actionability (defamatory on its face).” 209 F.3d at 176

(emphasis added); see also id. at 179 (adjudicating libel claim and differentiating between

“statements that are defamatory per se and those that require proof of special damages”); Davis

v. Ross, 754 F.2d 80, 82 (2d Cir. 1985) (“New York recognizes a limited category of statements

to be libelous per se which do not require pleading and proof of special damages.”). For this

reason, the Court still finds that, to succeed on their defamation claim, Plaintiffs needed to—but

have failed to—plead special damages or damages per se.15 In light of this failure, Stanford is

entitled to summary judgment as to this claim.

b. Qualified Privilege

Additionally, Plaintiffs’ defamation claim fails for an alternative reason. Specifically,

“New York courts recognize a qualified privilege for statements made to police officers about

suspected crimes.” Udechukwu v. City of New York, 333 F. Supp. 3d 161, 172 (E.D.N.Y. 2018)

(citing cases); see also Remley v. State, 665 N.Y.S.2d 1005, 1008 (Ct. Cl. 1997) (“A person

filing a formal complaint charging another with a crime is . . . entitled to absolute immunity from

a civil suit for defamation.”). “[A] plaintiff can overcome the privilege by showing malice—

evidence that the defendant knew the statement to be false, but made it anyway.” Udechukwu,

333 F. Supp. 3d at 172. Here, the basis for Plaintiffs’ defamation claim is statements Stanford

made to Fayle and Lyndaker—either oral or written—about Hogan’s conduct on September 1,

2016. Therefore, these statements are protected by the qualified privilege and cannot serve as the

basis for a defamation claim unless Plaintiffs can show malice. They cannot. Simply put, there is

15 This conclusion is not even necessary to dispense with Plaintiffs’ claim based on

Stanford’s alleged defamatory statement that he had a “deeded right-of-way across [Plaintiffs’]

property.” This statement is nowhere found in the Criminal Complaint and Deposition that

Plaintiffs insist libeled Hogan. See Criminal Compl. and Dep. Therefore, any defamation claim

arising out of this statement must sound in slander, rather than libel. Plaintiffs do not dispute that

special damages or slander per se must be pleaded to sustain a slander claim. See Opp’n to

Stanford Mot. at 8. Therefore, even assuming that Stanford’s statement about owning a right-of-

way over Hogan’s property is defamatory (a weak assumption at best), it is clear Plaintiffs have

failed to meet the damage element with regard to a claim based on this statement.

no evidence in the record that Stanford knew his statements to Fayle and Lyndaker on September

1, 2016 were false. Thus, the Court grants Stanford’s summary judgment motion as to Plaintiffs’

defamation claim for this reason as well. See Udechukwu, 333 F. Supp. 3d at 172 (dismissing

defamation claim where plaintiff could not show malice); Nevin v. Citibank, N.A., 107 F. Supp.

2d 333, 344 (S.D.N.Y. 2000) (granting summary judgment on defamation claim to defendant

who had reported a suspected crime to police because “[t]here is not one scintilla of evidence in

the record . . . to support any inference of malice” and so defendant was protected by the

qualified privilege).

3. Trespass

Plaintiffs have raised a genuine dispute of material fact as to whether Stanford trespassed

on their property on September 1, 2016.

“Under New York law, trespass is the intentional invasion of another’s property.”

Scribner v. Summers, 84 F.3d 554, 557 (2d Cir. 1996). “To establish a prima facie case of

trespass . . . , [the] [p]laintiff must show that [the] [d]efendant[] either entered without

permission, or if permission was granted, refused to leave after permission to remain ha[d] been

withdrawn.” Elmowitz v. Exec. Towers at Lido, LLC, 571 F. Supp. 2d 370, 377–78 (E.D.N.Y.

2008) (internal quotation marks omitted). Additionally, “[l]iability may attach regardless of

defendant’s mistaken belief that he or she had a right to enter.” Volunteer Fire Ass’n of Tappan,

Inc. v. Cty. of Rockland, 956 N.Y.S.2d 102, 105 (2d Dep’t 2012); see also Menkes v. Phillips,

940 N.Y.S.2d 317, 318 (2d Dep’t 2012) (“Entering upon the land of another without permission,

even if innocently or by mistake, constitutes trespass.”).

Stanford states that “no action for trespass can be maintained where the use of [an]

easement [by the owner of the dominant parcel is] . . . reasonable.” Stanford Mem. at 7 (citing

Kaplan v. Inc. Vill. of Lynbrook, 784 N.Y.S.2d 586 (2d Dep’t 2004)). He then argues that he is

entitled to summary judgment on Plaintiffs’ trespass claim because “it is clear from the evidence

that . . . [he] had a deeded right of way easement through Plaintiffs’ property” and he was

“entirely reasonable in his use of the right of way easement on September 1, 2016.” Stanford

Mem. at 7. However, despite Stanford’s assertion, the evidence is less than clear that Stanford

had a deeded right of way through the entire portion of Plaintiffs’ property he traversed on

September 1, 2016.

In support of his Motion, Stanford submitted the deed for his Hiawatha Lake property.

See Stanford Deed. The deed states that Stanford’s parcel has a “right of way” over “Lot No. 27

on ‘Hiawatha Lake’ No. 1,” over “Lot No. 36 on ‘Hiawatha Lake[’] No. 2,” and “through Lot

No. 24 of the Brantingham Tract.” Stanford Deed at 3–5. Hogan, for his part, owns “lot Numbers

29, 30, 31, 32, and 33 on Hiawatha Lake I,” see Hogan Deed, over which Stanford’s deed does

not appear to provide any right-of-way, see Stanford Deed. As best the Court can discern from

the evidence submitted by the parties, it appears that the access road to both Stanford’s parcels

and Hogan’s parcels runs primarily across Lot No. 24, and both parties appear to have a right-of-

way along this road. See Stanford Deed; Hogan Deed. Were there no dispute that the September

1, 2016 altercation between Stanford and Hogan took place on Lot No. 24, Stanford’s assertion

that he was on his on lawfully-deeded right-of-way would appear to be correct. However, in his

affidavit, Hogan attests that “[t]he incident which occurred on September 1, 2016 . . . was . . .

wholly on Lake lot 29 on Hiawatha Lake I.” Hogan Aff. ¶ 2; see also Hogan Dep. at 325–30.

Therefore, there is a genuinely disputed issue of fact as to the location of the September 1, 2016

incident that precludes summary judgment at this juncture.16 If the altercation took place in a

location where Stanford had a deeded easement and if his use of the easement was reasonable, he

would not be a trespasser as a matter of law. However, if the altercation took place in a location

where Stanford did not have an easement, Plaintiffs’ trespass claim can move forward.17 Since

the precise location of the alleged trespass is disputed in the evidence before the Court, the Court

denies Stanford’s motion as to Plaintiffs’ trespass claim.

C. Punitive Damages

“Punitive damages are meant to punish the defendant for his willful or malicious conduct

and to deter others from similar behavior.” Milfort v. Prevete, 3 F. Supp. 3d 14 (E.D.N.Y. 2014)

(internal quotation marks omitted). “[T]o be entitled to an award of punitive damages, a claimant

must show a positive element of conscious wrongdoing.” New Windsor Volunteer Ambulance

Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir. 2001).

Stanford asks the Court to dismiss the claim for punitive damages against him. Stanford

Mem. at 8. However, “[g]enerally, the issue of whether defendants’ conduct is sufficiently

serious to warrant punitive damages is a question best left to the jury.” Lozada v. Weilminster,

92 F. Supp. 3d 76, 108 (E.D.N.Y. 2015); see also Lin v. Cty. of Monroe, 66 F. Supp. 3d 341, 362

16 The Court notes that Stanford has submitted several maps that he says show the

location of the right-of-way he enjoys over Hogan’s property. Dkt. No. 92-5 (“Maps”). However,

since none of the parcels on this map are numbered, nor the location marked where the

September 1, 2016 confrontation took place, they are of little help to the Court in resolving this

issue.

17 Alternatively, to the extent Stanford had Hogan’s permission to enter any portion of

the Hogans’ property not covered by the right-of-way, see Hogan Dep. at 333 (“Q. But as of

September 1, 2016, you allowed him to use this roadway? A. Yes”), such permission would have

been revoked when Hogan told Stanford to leave. See First Video; Third Video; see also Navarro

v. Fed. Paper Bd. Co., 586 N.Y.S.2d 381, 383 (3d Dep’t 1992) (“[A] license or privilege to

remain in a building or public place may be terminated by a lawful order not to remain which is

personally communicated to the prospective trespasser by the owner or other authorized

person.”) (internal quotation marks omitted).

(W.D.N.Y. 2014) (“Generally, the issue of whether to award punitive damages is an issue for the

jury to decide based on an evaluation of the plaintiffs[’] proof of sufficiently serious

misconduct.”). For this reason, “because [Plaintiffs] ha[ve] provided sufficient evidence to

overcome summary judgment, the Court cannot state as a matter of law that [they] [are] not

entitled to punitive damages.” See Emblen v. Port Auth. of New York/New Jersey, No. 00-CV-

8877, 2002 WL 498634, at *12 (S.D.N.Y. Mar. 29, 2002).18 Consequently, the Court denies

Stanford’s summary judgment motion as to the punitive damages claim asserted against him.

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the NYSP Defendants’ summary judgment motion (Dkt. No. 83) is

GRANTED in its entirety. All claims against the NYSP Defendants are hereby DISMISSED;

and it is further

ORDERED, that Stanford’s summary judgment motion (Dkt. No. 82) is GRANTED in

part and DENIED in part. The defamation claim against Stanford is DISMISSED; the false

arrest claim, trespass claim, and associated request for punitive damages against Stanford can

proceed; and it is further

ORDERED, that the Clerk shall TERMINATE defendants Craft and Fayle from the

docket; and it is further

ORDERED, that the Clerk shall serve a copy of this Memorandum-Decision and Order

on all parties in accordance with the Local Rules.

18 Of course, because the Court has granted summary judgment to the NYSP Defendants

as to all of the substantive claims against them, the claim for punitive damages is also dismissed.

Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546, 563 (W.D.N.Y. 2013) (“[P]unitive

damages are a remedy and not a separate cause of action.”).

IT IS SO ORDERED.

DATED: June 1, 2020

Albany, New York

Lawrence E. Kahn

Senior U.S. District Judge

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