Bleiwas v. City Of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MARTIN BLEIWAS,

Plaintiff,

– against –

CITY OF NEW YORK, LEON LIAN,

OPINION AND ORDER

ALFREDO TORRES, GEORGE GOMEZ,

15 Civ. 10046 (ER)

MIRIAM LORENZO, DENNIS BOWMAN,

CHRISTOPHER KENNIS, ESTHER BUENO,

CARL LAI, WOJCIECH LIPINSKY, PIERRE

BARBEE, JOHN HAND, and JOHN and JANE

DOE 1 through 10,

Defendants.

Ramos, D.J.:

Martin Bleiwas sues the City of New York, Leon Lian, a sergeant with the New York

Police Department, and several other NYPD officers and employees for constitutional injuries

arising out of his 2014 arrest for possession of stolen property. �at arrest, as Lian and the other

defendants admit, was a mistake. �is case is about whether Lian should have known he was

making a mistake at the time of the arrest and when he signed the criminal complaint charging

Bleiwas. Because the Court finds there is a factual dispute over whether Lian missed his

opportunity to fix his mistake, it DENIES his motion for summary judgment as to Bleiwas’

malicious prosecution claim. �e Court GRANTS summary judgment for all other claims

against Lian and the other defendants.

I. BACKGROUND

A. Lian’s Investigation and Bleiwas’ Arrest

Like many police investigations, this one began with a tip. A member of the New York

City Council told the NYPD that police radios were for sale on eBay, the online auction

platform. Defs.’ Rule 56.1 Statement of Material Facts in Supp. of Summ. J. (“Defs.’ SMF”) ¶ 9,

Doc. 130. �e Department’s Internal Affairs Bureau assigned this tip to one of its sergeants,

Lian, in March 2015. Id. ¶¶ 8–10. Lian searched eBay for any live auctions involving police

radios; he found two. Id. ¶ 11. One auction, held by a person located outside New York State,

was for an operable “Saber” radio model still in use by the NYPD. Pl.’s Rule 56.1 Counter

Statement (“Pl.’s CS”) ¶¶ 2–3, Doc. 133;1 Decl. of Elissa P. Fudim in Supp. of Defs.’ Mot. for

Summ. J. (“Fudim Decl.”) Ex. B (“Lian Dep.”) 37:12–13, Doc. 127. �e other auction, held by

Bleiwas, was for a “Motorola MX-3740 NYPD Portable Radio with Coiled Microphone,” an

obsolete model with serial number X9360. Defs.’ SMF ¶ 12.

Concerned that an officer could be impermissibly selling part of his or her uniform, that

the radios were stolen, or that someone was attempteing to impersonate an officer, Lian Dep.

33:22–35:10, Lian attempted to purchase both radios. He was unable to bid for the Saber radio

because the auction had ended. Lian Dep. 38:5–9. He did place a bid on radio X9360, for sale

by Bleiwas. Defs.’ SMF ¶ 13. Although Lian did not win that auction, Bleiwas reached out,

offering Lian an opportunity to buy X9360 in a “last chance offer.” Id. ¶ 28. Based on his

experience with eBay and similar offers, Lian suspected that Bleiwas had multiple units similar

to X9360. Id. Between when he bid for X9360 and when he was given the last chance offer,

Lian found a second radio for sale by Bleiwas, a “Motorola MX-320 Two-Way Radio NYPD.”

Id. ¶ 23. He was able to purchase this radio, with serial number U9488, immediately. Id. ¶ 24.

Bleiwas also offered to sell Lian two additional radios engraved with “NYCTD,” but Lian did

not purchase these two radios. Id. ¶ 26. Bleiwas, as Lian discovered, was a retired officer with

1 Bleiwas’ Counter Statement includes both his responses to the defendants’ statement of material facts and his own

affirmative statement of the facts. References to the Counter Statement are to the latter unless otherwise noted.

the New York Department of Corrections and had last worked in the Telecommunications Unit.

Fudim Decl. Ex D (“Lian DD-5”) at DEF-58.

Lian reached out to the NYPD’s Communication Division to continue his investigation.

Id. ¶ 14. �ere, he spoke first with defendant Lt. John Hand, the Division’s Integrity Control

Officer. Hand told him that the Saber was listed in the NYPD’s database as stolen.2 Pl.’s CS ¶ 6.

He also told Lian that he did not know what happened to older radios like the MX-3740, but that

the Division’s head radio mechanic, defendant Pierre Barbee, might know. Defs.’ SMF ¶ 16.

Lian wrote in his notes that Barbee “stated in sum and substance that the NYPD does not sell any

old radios. All old NYPD radios are salvaged and mechanically shredded. �ey do not get re-

sold or re-circulated in any way.” Lian DD-5 at DEF-50. Lian recalls that Barbee also indicated

that X9360 in particular had been salvaged and mechanically shredded. Lian Dep. 63:12–22.

Hand later confirmed to Lian that X9360 had been recorded in NYPD’s database as “salvaged”

in August 1993. Defs.’ SMF ¶ 22. Lian also spoke with John Buck, a member of the

Communications Division since 1987. Id. ¶ 30. Buck told Lian that the radio he had purchased

outright, U9488, was authentic and in circulation in the early 1980s to mid-1990s. Id. ¶ 29. Lian

recalls Buck confirming that radio U9488 radio was listed as salvaged and mechanically

destroyed, as well, although Lian did not record that in his notes. Lian Dep. 85:14–19.

About three weeks after beginning his investigation, in early April 2015, Lian applied for

and was granted a warrant for the search of Bleiwas’ home by Judge Richard Weinberg of the

New York City Criminal Court. Defs.’ SMF ¶ 36. Lian recounted his investigation in the

warrant application and swore specifically to the following:

2 Lian dropped the investigation of the Saber radio soon thereafter. Lian Dep. 45:16–18. Lian indicated that he did

so because it would be difficult to extradite an out-of-state person for what he believed was a misdemeanor. Id. at

45:19–46:13.

 Barbee indicated to Lian that radio X9360 (the radio Lian had bid for but not

purchased) was authentic and that NYPD logs indicate that the radio “was sent to be

mechanically destroyed.” Fudim Decl. Ex. K at DEF-244.

 Buck indicated that radio U9488 (the radio Lian purchased outright) was authentic.

Id. at DEF-245.

 Lian expected to find “evidence of the crime[] of Criminal Possession of Stolen

Property in the Fifth Degree” at Bleiwas’ home in Baldwin, New York, including

“items bearing NYPD markings or serial numbers, including but not limited to

portable radios bearing NYPD stamps” and “evidence of proceeds from the sale of

NYPD police radios and other items that are property of NYPD.” Id. at DEF-243.

Lian arrived at Bleiwas’ Long Island home two days later. Defs.’ SMF ¶ 39. With him

were defendants Sgt. George Gomez, Det. Carl Lai, Det. Alfredo Torres, who Bleiwas contends

played key roles in the search. Id. Also present were defendants Deputy Inspector Miriam

Lorenzo, Lt. Dennis Bowman, Lt. Christopher Kennis, Det. Esther Bueno, and Det. Wojciech

Lipinsky. Id. When they arrived, Lian asked Bleiwas where he kept police radios; Bleiwas

showed Lian to his bedroom, garage, and basement. Id. ¶ 42. Bleiwas had over one thousand

radios in his home, including two operable radios on his nightstand. Id. ¶¶ 43, 46. As Lai took

notes of the radios’ locations and Torres took photos, Gomez and Lian interviewed Bleiwas. Id.

¶¶ 44, 45, 47. Bleiwas told the sergeants that he had purchased the radios at auction and might

still have copies of the receipts. Id. ¶ 47. Bleiwas remembers Lian telling him, Bleiwas, that he

could bring the documents to court. Pl.’s CS ¶ 65.

Altogether, the search team seized over 200 radios. Defs.’ SMF ¶ 48. Some of those

radios were in large boxes that had pieces of paper taped to the top. Pl.’s CS ¶ 71. �ose slips

had a list of serial numbers on them, as well as the following written in the top right:

“RELINQUISHMENT of surplus, obsolete or unrepairable equipment, material or supplies, to

the Department of Purchase, for sale, transfer or other disposition.” Id. ¶ 72, Decl. of Brett H.

Klein (“Klein Decl.”) Ex. 11 at DEF-797, Doc. 134. �e form also had separate instructions if

the equipment included automobiles. Id. A search of the NYPD’s database produced in

discovery indicates that all of the seized phones were listed as “salvaged.” Pl.’s CS ¶ 93.

After the search team finished, Lian arrested Bleiwas for possession of stolen property.

Defs.’ SMF ¶ 49. �e officers took Bleiwas to the 1st Precinct in Manhattan and released him

later that day with a Desk Appearance Ticket, ordering him to appear in court on June 1. Id.

¶ 50.

B. �e Relinquishment Slips

A few days after his release, Bleiwas found the receipts he claimed to have had during the

search. Id. ¶ 53. He claims that he called Lian and told him that he had found “the receipt.”

Fudim Decl. Ex. A (“Bleiwas Dep.”) 39:5–8. In this conversation, Bleiwas recalls Lian telling

him, “[F]ax it to me and I will add it to my paperwork.” Id. at 39:8–12. Bleiwas, however,

testified that he never sent Lian anything. Id. at 39:12–14.

Lian recalls this conversation, as well. As he remembers it, Bleiwas called and “wanted

to fax [him] the receipts.” Lian Dep. 242:1. After the call, Lian “think[s] [Bleiwas] sent [him]

some records, some receipts.” Id. at 53:2–3. In his deposition, Lian characterized the

transmission as “a partial receipt.” Id. at 242:20. He was then shown a four-page document,

marked as “Exhibit 17.” Id. at 246:5–7. Lian indicated that Bleiwas faxed him a “copy of a

partial” of Exhibit 17. Id. at 246:15–16.

Although Exhibit 17 was not included in the moving papers of either party, the

defendants provide a photo of what they claim Lian received, i.e., the “copy of a partial.”

Fudima Decl. Ex. W. Exhibit W depicts several torn relinquishment slips like the ones attached

to the boxes of radios seized from Bleiwas’ home. Bleiwas argues that the photos in Exhibit W

are actually from the seized boxes themselves, not from anything he sent Lian. Pl.’s CS at 13

(response to Defs.’ SMF ¶ 54). Bleiwas maintains that he sent Lian nothing at all after their

phone conversation. See id. at 13–15 (responses to Defs.’ SMF ¶¶ 54, 55, 56, 58, 59).

Lian recalls performing some investigation after he spoke with Bleiwas to determine

whether the documents he received were genuine. Defs.’ SMF ¶ 58. In his deposition, Lian

recalled that he made phone calls where he “tried to track down the receipts but [] hit a brick

wall. Nobody had any records.” Lian Dep. 242:24–243:9. He did not indicate whom he

attempted to call, but he does “remember trying to find it because no one knew what department

that was. It’s a defunct agency, it doesn’t exist.” Id. at 244:8–11. He then remembers that he

sent the relinquishment slips to the New York County District Attorney’s Office. Defs.’ SMF

¶ 55. Bleiwas disputes Lian’s recollection, saying that the DA’s Office did not receive the

documents until Bleiwas gave them to an assistant district attorney at a June 2015 court date.

Pls.’ CS ¶¶ 97, 111. �e assistant district attorney himself believes that the slips in his file came

from Bleiwas, rather than Lian. Fudim Decl. Ex. EE 90:2–5.

C. Subsequent Court Proceedings

�e New York County District Attorney’s Office formally charged Bleiwas by criminal

complaint with possession of stolen property on May 19, 2015. Defs.’ SMF ¶ 64. Lian signed

the accompanying affidavit, which indicated that Barbee had told Lian that the radios Bleiwas

sold were “genuine NYPD radios” and that such radios are “mechanically destroyed when they

are decommissioned.” Fudim Decl. Ex. Y.

Bleiwas had two court days in June 2015. Bleiwas made his first court appearance for

arraignment on June 1. �e DA’s Office offered to adjourn Bleiwas’ case in contemplation of

dismissal, see N.Y. Crim. Proc. Law § 170.55 (McKinney 2019), but Bleiwas refused. Defs.’

SMF ¶ 66. �e case was adjourned to June 24. Id.

Bleiwas appeared in court that day. He claims it was on this day that he provided the

auction receipts to the DA’s Office. Pl.’s CS ¶ 111. �ese receipts bore the name of a Ken

Rappaport and commanded that “All City identification marks on any items included in this sales

order must be removed by purchaser prior to sale.” Defs.’ SMF ¶¶ 62, 63. �at day, Bleiwas

also produced copies of the relinquishment slips and a notarized letter from Rappaport indicating

that Rappaport had purchased the radios at auction and sold them to Bleiwas. Pl.’s CS ¶ 111.

�e assistant district attorney sought another adjournment to obtain a supporting affidavit

that corroborated Lian’s investigation into the procedures for decommissioning radios. Defs.’

SMF ¶ 67, 68. �e court granted the request and adjourned the case to September 9. Id.

�e assistant district attorney asked Lian for help in getting a supporting affidavit that

confirmed the policy of salvaging and destroying old radios. Id. ¶ 69. Lian approached the

commanding officer of the Communications Division, Deputy Inspector John Howard, first. Id.

¶ 70. Lian believes he spoke to Howard on June 29, over five weeks after he signed the criminal

complaint. Id. ¶ 74.

During this conversation Lian learned that the Communications Division had not always

destroyed radios when they were taken out of service. Fifteen years previously, the Division had

given radios to the City’s Department of General Services or Department of Citywide

Administrative Services, which disposed of them at auction. Id. ¶ 72, 73. �e NYPD only began

destroying radios after 2000, when old radios began appearing on eBay and the Department

began to fear that they could be used by individuals attempting to impersonate police officers.

Id. ¶ 78. Lian promptly told the prosecutor this new information. Decl. of Leon Lian ¶ 8, Doc.

129. In September, the case against Bleiwas was dismissed. Defs.’ SMF ¶ 77.

D. �is Litigation

Bleiwas, as it turns out, has been a radio collector since he was a child. Pl.’s CS ¶ 8. In

1994, he purchased a large lot of radios from his friend, Ken Rappaport, who had in turn recently

purchased the radios through an auction run by the New York City Department of General

Services. Id. ¶ 9. Bleiwas resold some of the radios, which were inoperable, on eBay over time.

Id. ¶ 10, 11.

Barbee had been mistaken when he informed Lian that all old radios were destroyed and

not sold. He had joined the Communications Division in 1993, around the time Bleiwas

purchased his lot, but he had limited experience with hand-held radios. Id. ¶ 16. Buck, though

he had joined the Division in 1987, had no direct experience with the salvaging of those radios.

Id. ¶ 42. At no time, however, did either man tell Lian the limits of their knowledge regarding

the disposal of hand radios. Defs.’ SMF ¶ 34.

Bleiwas brought this lawsuit three months after the dismissal of charges, alleging

violations of his rights stemming from his arrest and prosecution. He named as defendants

nearly every officer involved with the investigation, search, and arrest. After defendants filed

their motion to dismiss, Doc. 59, the Court granted it in part, Doc. 80, and then modified the

associated order after the defendants’ motion for reconsideration, Docs. 84, 93. In July 2018,

Bleiwas filed a Second Amended Complaint listing the following federal and state causes of

action:

(1) False Arrest and Unlawful Imprisonment under 42 U.S.C. § 1983 against Lian, Hand,

and Barbee. Second Amended Compl. ¶¶ 43–46, Doc. 105.

(2) Violation of Right to Fair Trial under § 1983 against Lian, Hand, and Barbee. Id.

¶¶ 47–51.

(3) Malicious Prosecution under § 1983 against Lian, Hand, and Barbee. Id. ¶¶ 52–55.

(4) Failure to Intervene under § 1983 against Lian, Torres, Gomez, Lorenzo, Bowman,

Kennis, Bueno, Lai, Lipinsky, Barbee, and Hand. Id. ¶¶ 56–60.

(5) Supervisory Liability under § 1983 against Lian and Hand. Id. ¶¶ 61–63.

(6) False Arrest under the laws of the State of New York against Lian, Hand, Barbee, and

the City of New York. Id. ¶¶ 70–76.

(7) Malicious Prosecution under the laws of the State of New York against Lian, Hand,

Barbee, and the City. Id. ¶¶ 77–81.

(8) Negligence under the laws of the State of New York against Barbee and the City. Id.

¶¶ 82–85.

In October 2018, the defendants moved for summary judgment as to all claims. Doc.

110. �ey amended their motion the following March. Doc. 125.

II. STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the

evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v.

Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint

Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it “might

affect the outcome of the suit under the governing law.” Id. (internal quotation marks omitted).

�e party moving for summary judgment is first responsible for demonstrating the absence of

any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party meets its burden, “the nonmoving party must come forward with admissible

evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.”

Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 504 (S.D.N.Y. 2010) (internal quotation

marks omitted) (citing Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).

“�e question of whether or not probable cause existed may be determinable as a matter

of law if there is no dispute as to the pertinent events and the knowledge of the officers.” Weyant

v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “If the issue of probable cause is ‘predominantly

factual in nature,’ then it is ‘properly presented to the jury.’” Barksdale v. Colavita, 506 F. App’x

82, 84 (2d Cir. 2012) (summary order) (quoting Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir.

1994)). Likewise, “[s]ummary judgment on qualified immunity grounds is not appropriate when

there are facts in dispute that are material to a determination of reasonableness.” Thomas v.

Roach, 165 F.3d 137, 143 (2d Cir. 1999).

III. FALSE ARREST

“[A] § 1983 claim for false arrest derives from [the] Fourth Amendment right to remain

free from unreasonable seizures, which includes the right to remain free from arrest absent

probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). To establish a § 1983 claim

for false arrest, a plaintiff must show 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.” Bernard v. United States,

25 F.3d 98, 102 (2d Cir. 1994).

Generally, confinement is “privileged” when there is probable cause to make an arrest.

Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). In other words, “[t]he 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 § 1983.” Weyant v. Okst, 101 F.3d 845,

852 (2d Cir. 1996) (internal quotation marks and citation omitted).

Probable cause to make an arrest “exists when the arresting officer 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 person to be arrested has committed or is

committing a crime.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation

marks omitted). “[T]he probable cause inquiry is based upon whether the facts known by the

arresting officer at the time of the arrest objectively provided probable cause to arrest.” Jaegly,

439 F.3d at 153 (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)).

As the Second Circuit has emphasized, “probable cause is a fluid standard that does not

demand hard certainties or mechanistic inquiries; nor does it demand that an officer’s good-faith

belief that a suspect has committed or is committing a crime be correct or more likely true than

false.” Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016) (internal quotation marks omitted).

“Rather, it requires only facts establishing the kind of fair probability on which a reasonable and

prudent person, as opposed to a legal technician, would rely.” Id. (internal quotation marks and

brackets omitted). In determining whether probable cause existed to support an arrest, courts

must consider the totality of the circumstances, including the facts available to the arresting

officer both immediately before and at the time of arrest. Simpson v. City of New York, 793 F.3d

259, 265 (2d Cir. 2015).

Even if a court concludes that an arresting officer lacked probable cause to arrest, the

officer is entitled to qualified immunity if the officer establishes that “(a) it was objectively

reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable

competence could disagree on whether the probable cause test was met.” Williams v. City of New

York, No. 17 Civ. 4391 (ER), 2018 WL 4189515, at *2 (S.D.N.Y. Aug. 31, 2018) (internal

quotation marks omitted). Put differently, an officer is entitled to qualified immunity if there is

“arguable probable cause,” a concept that turns on whether “a reasonable police officer in the

same circumstances and possessing the same knowledge as the officer in question could have

reasonably believed that probable cause existed in the light of well[-]established law.” Cerrone

v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001) (citation omitted).

A. �e Investigation

Lian argues that probable cause is based on his belief that old radios are all destroyed if

properly disposed. �e radios in Bleiwas’ possession were not destroyed. �erefore, he argues,

there is probable cause that the radios seized from Bleiwas were stolen. �e Court agrees with

his analysis.

Lian’s chain of reasoning is similar to the matter presented to the Second Circuit in

Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989). In that case — a § 1983 case stemming

from an arrest for possession of stolen property — a police officer observed a stop sign hanging

in the plaintiff’s garage. Id. at 364. Several days later, the officer confirmed that it was missing

and presumed stolen. Id. at 366. Based on this information, the Second Circuit determined that

he had at least arguable probable cause to arrest the plaintiff, notwithstanding the plaintiff’s

plausible explanations of innocence. Id. at 370–71. In its decision, the panel noted that, “[w]hile

traffic signs are not contraband, it is commonly known that they are often stolen from roadsides,

and that they are not routinely acquired by the general public.” Id.; see also Criss v. City of Kent,

867 F.2d 259 (6th Cir. 1988) (finding probable cause for possession of stolen property when

officers observed road signs hanging in plaintiff’s apartment).

�e Court finds that, at the very least, Lian had arguable probable cause and may enjoy

qualified immunity for his actions. Like the plaintiffs in Krause and Criss, Bleiwas had in his

possession former state property that, based on Lian’s information, would not be in the hands of

the public unless stolen. Although Lian did not explicitly confirm that the radios were stolen, as

the officer in Krause did with the stop sign, see 887 F.2d at 366, Lian did confirm that all old

radios were destroyed with both Barbee and Buck, longtime employees of the NYPD’s

Communication division. �is information is (at least arguably) sufficient for Lian to conclude

that there was probable cause to arrest Bleiwas.

But Bleiwas argues that whether Lian did in fact confirm that the radios were salvaged

and mechanically destroyed is disputed and best left to a jury. On this point, Lian recalled in his

deposition that both Barbee and Buck told him that the specific old radios he was investigating

were destroyed. Lian Dep. 63:12–22; 110:7–16. Lian’s notes of his conversation with Barbee

indicate that he had been told by Barbee of NYPD’s blanket destruction policy for old radios.

Lian DD-5 at DEF-50. Nevertheless, Bleiwas suggests that there is a factual dispute because

neither Buck nor Barbee remember the conversation. Klein Decl. Ex. 2, 24:2–11; Ex. 5 19:22–

20:23.

Regardless of the state of Barbee and Buck’s memories, “[no] issue of fact exists where,

as here, one witness has a recollection of an event, while another actor in the same event has no

recollection, one way or the other.” Creighton v. City of New York, No. 12 Civ. 7454 (PGG),

2017 WL 636415, at *40 (S.D.N.Y. Feb. 14, 2017) (quotation marks removed); see also, e.g.,

Creese v. City of New York, No. 17 Civ. 3659 (ARR) (ST), 2019 WL 3302436, at *7 (E.D.N.Y.

July 23, 2019) (finding no dispute of material fact when officer failed to document detail in

reports), appeal filed, No. 19-2502 (2d Cir. Aug. 15, 2019); Hess v. Mid Hudson Valley Staffco

LLC, No. 16 Civ. 1166 (KMK), 2018 WL 4168976, at *15 n.21 (S.D.N.Y. Aug. 30, 2018)

(finding no dispute when only one participant recalled the details of conversation), aff’d, No. 18-

2747-CV, 2019 WL 4127329 (2d Cir. Aug. 30, 2019). �erefore, absent any affirmative evidence

to the contrary, there is no genuine dispute of material fact that Buck and Barbee told Lian that

the radios in question had been mechanically destroyed.

Accordingly, the Court finds that there is no genuine dispute of material fact regarding

the basis for Lian’s probable cause determination going into the search of Bleiwas home. �e

undisputed facts support Lian’s opinion that there was probable cause—or at least arguable

probable cause sufficient to trigger Lian’s qualified immunity. 3

B. �e Search

But Lian did not arrest Bleiwas at that point. Instead, he and his team arrived at Bleiwas’

home to confirm that Bleiwas did indeed possess old police radios. During the search, Lian was

presented with three new pieces of information: (1) Bleiwas, who was not an active police

officer, had thousands of police radios in his home, including two operable ones on his night

stand; (2) Bleiwas explained the existence of the radios by saying he had purchased them at

auction and had receipts to back his story up; and (3) the boxes of radios that the search team

seized had relinquishment slips on them. Given that Lian had probable cause for arrest as he

began executing the search warrant, the question is whether any of these three pieces of

information destroyed probable cause. Cf. Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d

Cir. 1996) (as amended) (“Under New York law [regarding malicious prosecution], even when

probable cause is present at the time of arrest, evidence could later surface which would

eliminate that probable cause.” (internal quotations removed)).

“[U]nder some circumstances, a police officer’s awareness of the facts supporting a

defense can eliminate probable cause.” Jock v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003). But

“[o]nce a police officer has a reasonable basis for believing there is probable cause, he is not

3 Although the Court conducts its own analysis, it does note that Judge Weinberg found that Lian’s reasoning was

sufficient to establish probable cause for the existence of stolen property in Bleiwas’ home when the judge signed

the search warrant in April 2015. Bleiwas claims that this Court cannot rely on Judge Weinberg’s reasoning because

the search warrant contained a false statement, namely that all old radios were destroyed. But the Court finds that

the evidence Lian presented to Judge Weinberg was the same that Lian himself knew. �ere is no evidence that

Lian intentionally or recklessly fabricated evidence in front of Judge Weinberg’s. See also infra Part V.

required to explore and eliminate every theoretically plausible claim of innocence before making

an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). When making his

probable cause determination, however, the “officer may not disregard plainly exculpatory

evidence.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006).

First of all, Bleiwas’ claim that he had receipts for the purchase of the radios was not

plainly exculpatory. Even though courts have long recognized that suspects protest their

innocence, they have declined to force officers to follow up on these protests before arrest. See,

e.g., Jock, 316 F.3d at 135–36; Ricciuti, 124 F.3d at 128; Krause v. Bennett, 887 F.2d 362, 371

(2d Cir. 1989). Lian was not bound to take Bleiwas’ claims at face value and abstain from

executing the arrest until he tracked those claims down.

Nor does the presence of the relinquishment slips materially change the probable cause

calculation. Although the slips do indicate that radios inside were relinquished for possible

“sale,” the slips also indicate that the relinquishment could have been for disposal or other ends

consistent with mechanical destruction. Indeed, the slips do not mention radios specifically;

rather, they are designed for the relinquishment of many types of equipment, including vehicles.

�ey did not immediately contradict the information the Communications division gave to Lian,

and they did not provide any confirmation that the radios to which they were affixed had been

sold at auction, as opposed to some “other disposition.” �e slips do not have a price or

purchaser listed on them—only the radios’ serial numbers.

Finally, Bleiwas, a man Lian knew to have been a member of the Department of

Corrections’ Telecommunications Unit, had thousands of radios in his home. Two were operable

and on his night stand. Based on everything Lian had been told up to that point, a member of the

public should not have been able to amass such a collection. �e discovery of this evidence

supports Lian’s final decision to arrest Bleiwas for the possession of stolen property by providing

support for an inference that Bleiwas knew the radios were stolen. See Krause, 887 F.2d at 371

(“[Officer] was entitled to rely on the implications of the information known to him in assessing

whether [plaintiff] possessed this knowledge [that the property in question was stolen].”). Far

from being plainly exculpatory, they raise more questions—questions that the law did not compel

Lian to answer before arrest. See Ricciuti, 124 F.3d at 128.

Taking into account the “facts available to [Lian] at the time of the arrest and

immediately before it,” Lowth, 82 F.3d at 569 — namely, all old police radios are supposed to

have been destroyed, none are resold, and Bleiwas, a former radio repairman, possessed

thousands of old police radios — the Court finds that Lian possessed at least arguable probable

cause to make an arrest, granting him qualified immunity from the false arrest claim. Further, the

Court finds there are no genuine disputes of material fact regarding the basis of Lian’s

knowledge. �erefore, the Court GRANTS the defendants’ motion for summary judgment as to

Bleiwas’ federal false arrest claim against Lian. And, because “[t]he elements of a claim of false

arrest under § 1983 are substantially the same as the elements of a false arrest claim under New

York law,” it GRANTS Lian’s motion as to the state false arrest claim, as well. Hygh v. Jacobs,

961 F.2d 359, 366 (2d Cir. 1992) (internal quotations marks omitted)

IV. MALICIOUS PROSECUTION

Plaintiff also asserts a federal and a state law claim for malicious prosecution against

Lian. As with the false arrest claim, “[t]he elements of malicious prosecution under § 1983 are

‘substantially the same’ as the elements under New York law.” Bailey v. City of New York, 79 F.

Supp. 3d 424, 448 (E.D.N.Y. 2015) (citing Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir.

2003)). “To establish a claim for malicious prosecution under New York law, a plaintiff must

show ‘(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant

lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with

malice, and (4) that the prosecution was terminated in the plaintiff’s favor.’” Mitchell v. Victoria

Home, 434 F. Supp. 2d 219, 226 (S.D.N.Y. 2006) (quoting Posr v. Court Officer Shield No. 207,

180 F.3d 409, 417 (2d Cir. 1999)). Probable cause is a complete defense for claims of malicious

prosecution, similar to claims of false arrest. Manganiello v. City of New York, 612 F.3d 149,

161–62 (2d Cir. 2010). In addition to these state law elements, a plaintiff seeking relief under

§ 1983 must assert that there was “a sufficient post-arraignment liberty restraint to implicate

plaintiff’s Fourth Amendment right[]” to be free of unreasonable seizure. Id. (quoting Rohman v.

N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (internal quotation marks omitted)).

�ree of the five elements are undisputed here. Lian initiated the prosecution against

Bleiwas when he signed the criminal complaint charging Bleiwas with criminal possession of

stolen property. See Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010). With the

dismissal of charges, the prosecution was terminated in plaintiff’s favor. And the parties do not

dispute that Bleiwas’ requirement to appear in court several times after his arrest was a sufficient

post-arraignment liberty restraint to make this state law claim cognizable under § 1983.

Furthermore, if probable cause for the prosecution was lacking, the Court may infer malice on

the part of Lian. See Boyd, 336 F.3d at 78. �erefore, the only element in dispute is whether

Lian had probable cause at the time he signed the criminal complaint.4

�e principal dispute, and the one the Court finds is sufficiently material to send to a jury,

4 Bleiwas makes a passing claim that Lian withheld evidence sometime in June. But he neither alleges in his Second

Amended Complaint nor argues in his moving papers that Lian’s actions after signing the complaint amounted to

“play[ing] an active role in the prosecution, such as giving advice and encouragement or importuning the authorities

to act.” Rohman, 215 F.3d at 217. �e Court accordingly focuses its analysis on what Lian knew and did prior to

his signing the complaint in May 2015.

regards what Lian did in the six weeks between Bleiwas’ arrest and when Lian signed the

criminal complaint. Bleiwas argues that the combination of him allegedly telling Lian he had the

receipts and Lian’s discovery of the relinquishment slips found on the seized boxes of radios

should have compelled Lian to investigate further. Lian responds that he did conduct an

investigation through his phone calls to verify the documents he had in his possession, but that

he hit a “brick wall” and was not able to get an answer either way. Bleiwas maintains that he

never faxed anything to Lian to verify and that, in any event, the speed with which Howard, the

head of the Communications Division, pointed out that auctions did happen in the 1990s shows

that Lian’s investigation was inadequate.

“[T]he failure to make a further inquiry when a reasonable person would have done so

may be evidence of lack of probable cause.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571

(2d Cir. 1996) (as amended). Here, there is a question of fact around whether it was reasonable

for Lian to cease his investigation after hitting his “brick wall” with his phone calls. In order to

make that determination as a matter of law, the Court would need to know whom Lian spoke

with, what they said, and, ultimately, whether their responses made it reasonable to stop the

investigation there. Lian has not produced a record sufficient to set these disputes to rest. See

Weiner v. McKeefery, 90 F. Supp. 3d 17, 35–36 (E.D.N.Y. 2015) (finding lack of record between

arrest and signing of complaint supported denying motion for summary judgment in malicious

prosecution proceeding).

�e questions raised by the results of Lian’s search buttress this conclusion. If Lian had

checked the police database, all of the radios recovered would have shown up as “salvaged” and

none as stolen. �erefore, based on his prior investigation, Lian had one of two conclusions to

draw: either Bleiwas was a participant in a thriving black market for stolen old police radios —

with some police insider potentially misappropriating radios bound for destruction — or the

initial information Lian received — that all old radios were destroyed — was suspect. In the

face of this information, Lian chose to make several phone calls to unknown individuals, rather

than seeking clarification from the Communications Division — clarification that Howard

promptly provided when Lian eventually asked several months later.

�e record does not contain enough undisputed information to determine whether Lian’s

failure to further investigate and discover his mistake was reasonable enough to provide a

complete defense to Bleiwas’ state and federal malicious prosecution claims. �erefore, the

Court DENIES summary judgment as to the state and federal false malicious prosecution claims

against him.

V. FAIR TRIAL

Finally, defendants seek dismissal of Bleiwas’ federal fair trial claim. “To establish a

claim of denial of the right to a fair trial, Plaintiff must plausibly plead the following elements:

“(1) investigating official (2) fabricates evidence (3) that is likely to influence a jury’s decision,

(4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty

as a result.” Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012) (summary

order). �e Second Circuit has held that “[w]hen a police officer creates false information likely

to influence a jury’s decision and forwards that information to prosecutors, he violates the

accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable

action is redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti v. N.Y.C. Transit

Auth., 124 F.3d 123, 130 (2d Cir. 1997). Although some courts have held that a § 1983 claim for

denial of the right to a fair trial requires that a trial have actually been conducted, the Second

Circuit in Ricciuti and other courts in this District have found otherwise. See id. at 127; Schiller

v. City of New York, No. 04 Civ. 10178 (RJS) (JCF), 2008 WL 200021, at *10 (S.D.N.Y. Jan. 23,

2008) (“�e limiting factor appears to be not whether the plaintiff went to trial but whether the

falsification caused material harm.”); Canario v. City of New York, No. 05 Civ. 9343 (LBS), 2006

WL 2015651, at *2–4 (S.D.N.Y. July 12, 2006). �us, in cases where there are allegations that

officers fabricated evidence, the key consideration is whether the fabrication resulted in a

deprivation of liberty.

Bleiwas primarily contends that he was denied a fair trial because: (1) Lian included in

the criminal complaint the untrue fact that someone had told him old radios were destroyed and

(2) Lian withheld the relinquishment slips from the DA’s Office.5 Neither allegation withstands

scrutiny. For the reasons described in Part III.A, supra, there is no dispute of material fact over

whether Barbee confirmed to Lian that old radios are destroyed. Accordingly, there is no

evidence that Lian fabricated this when he swore to the criminal complaint. See Ricciuti, 124

F.3d at 130 (requiring knowing fabrication of evidence to give rise to a fair trial claim).

Bleiwas’ claim regarding the alleged withholding relinquishment slips fares no better.

Functionally, it amounts to an accusation of a Brady violation for which Bleiwas seeks a civil

remedy. See Fappiano v. City of New York, 640 F. App’x 115, 118 (2d Cir. 2016) (summary

order). When plaintiffs make such claims, they must prove three elements: “�e evidence at

issue must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Id. (quoting United States v. Rivas, 377 F.3d

195, 199 (2d Cir. 2004)). In a fair-trial-claim context, the officer must have willfully suppressed

5 Bleiwas also argues that Lian made two mistakes in the complaint: that it was Buck, and not Barbee, who

authenticated the radios; and that the radios recovered had “NYCPD” on them rather than “NYPD.” Even if they

had been intentional misstatements, they are immaterial and not sufficient to give rise to a fair trial claim.

evidence. See Fappiano, 640 F. App’x at 118. “To establish prejudice, a plaintiff must show the

evidence was material; i.e., whether the ‘evidentiary suppression undermines confidence in the

outcome of the trial.’” Id. (quoting Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir. 2001)).

Even if there were a dispute of material fact over whether Lian willfully suppressed the

relinquishment slips, there is no evidence that the withholding of the slips was material. Bleiwas

provided the documents to the DA’s Office after his second court date, but it did not dismiss the

case until September. Bleiwas has not produced any facts that would suggest the result would

have been any different if Lian had forwarded the slips to the Office earlier.

Because the Court finds no genuine dispute of material fact regarding the fair trial claim,

the Court GRANTS summary judgment as to Bleiwas’ federal fair trial claims against Lian.

VI. REMAINING CLAIMS

Because the Court finds there was probable cause for Bleiwas’ April 2015 arrest, the

Court also GRANTS the defendants’ motions for summary judgment as to all of the claims

deriving from the false arrest claim against Lian, specifically Bleiwas’ failure to intervene claims

and his false arrest claims against Hand and Barbee.

Additionally, in their initial moving papers, defendants produced a prima facie showing

that there is no genuine dispute of material fact surrounding the following counts: the fair trial

claim against Hand and Barbee; the supervisory liability claims against Lian and Hand; the

malicious prosecution claims against Hand, Barbee, and the City of New York; and the state law

negligence claim against Barbee and the City. Bleiwas does not rebut these contentions at all.

�erefore, the Court GRANTS the defendants’ motion for summary judgment as to those

defendants. See Schlenger v. Fid. Emplr. Servs. Co., LLC, 785 F. Supp. 2d 317, 346–47

(S.D.N.Y. 2011) (finding claims not addressed in opposition to summary judgment

“abandoned”).

VII. CONCLUSION □

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in

part and DENIED in part. Both the state and federal malicious prosecution claim against Lian

shall survive. All other claims against Lian and the other defendants are DISMISSED. The

parties are directed to appear for a pre-trial conference on October 16, 2019 at 11:30 A.M. The

Clerk of Court is respectfully directed to terminate the motions, Docs. 110, 125.

It is SO ORDERED.

Dated: September 27, 2019 5 |)

New York, New York ZR \—

Edgardo Ramos, U.S.D.J.

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