# Fernandez v. O'Neill

> District Court, S.D. New York · July 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10324595

## Case

- **Court:** District Court, S.D. New York
- **Decided:** July 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
JOSE JAVIER FERNANDEZ, :
:
Plaintiff, : 19cv1862 (DLC)
:
-v- : OPINION AND ORDER
:
THE CITY OF NEW YORK, NEW YORK CITY :
POLICE DEPARTMENT, JAMES P. O’NEILL, :
Commissioner of the New York City :
Police Department, JOSE CEPEDA, AMADEO :
OKTROVA, and CHRISTINA MONCION, :
:
Defendants. :
:
-------------------------------------- X

APPEARANCES

For the plaintiff:
Elliot H. Fuld
Law Office of Elliot H. Fuld
930 Grand Concourse, Suite 1G
Bronx, NY 10451

For the defendants:
Geoffrey M. Stannard
New York City Law Department
100 Church Street, 4th Floor
New York, NY 10007

DENISE COTE, District Judge:

Plaintiff Jose Javier Fernandez asserts civil rights claims
against three New York City police officers -- Amadeo Oktrova,
Christina Moncion, and Jose Cepeda. In particular, Fernandez
alleges that he was unlawfully stopped and falsely arrested in
violation of 42 U.S.C. § 1983 and New York law. He also asserts
a state law malicious prosecution claim. Fernandez additionally
names the City of New York as a defendant under Monell v.
Department of Social Services of City of New York, 436 U.S. 658
(1978), and under a theory of negligent hiring and supervision.

The defendants have moved for summary judgment. That motion is
granted except as to the false arrest and malicious prosecution
claims against Oktrova.
Background
The following facts are undisputed or taken in the light
most favorable to Fernandez, unless otherwise noted.1
The Traffic Stop and Arrest
On the evening of July 14, 2018, Fernandez was driving his

minivan in the Bronx, New York. Ariel Ovalles was seated in the
front passenger seat, and Elvio Toribio was seated in the second
row of seats.2 Fernandez turned onto 196th Street, drove
eastbound half a block, and then encountered a car stopped in
his lane. The street has two lanes, with one lane of traffic

1 Plaintiff’s counsel submitted his own Local Rule 56.1 statement
but failed to specifically oppose the facts advanced by the
defendants. Although the defendants’ version of the facts could
simply be deemed admitted due to plaintiff’s counsel’s failure,
the Court has chosen to consider any evidence submitted by the
parties and rely on those materials to determine where factual
disputes remain.

2 Ovalles and Toribio were initially co-plaintiffs with
Fernandez. But Ovalles and Toribio repeatedly failed to appear
for their depositions, and their claims were dismissed by an
Order of March 18, 2020.
flowing in each direction and curbside parking on both sides of
the street. Fernandez remained behind that stopped car for
approximately two minutes.

Meanwhile, Oktrova and Moncion were traveling slowly in the
opposite direction along 196th Street in an unmarked police
vehicle. Oktrova was driving and observed Fernandez’s minivan
while it was stopped. Oktrova waved at Fernandez as he passed.
About 20 seconds after Oktrova waved at him, Fernandez pulled
his van out and around the stopped car and continued along 196th
Street. Oktrova and Moncion did a U-turn and initiated a
traffic stop of Fernandez’s minivan. According to Oktrova, the
reason he stopped the minivan was because he had seen it double
parked.
Oktrova approached the driver’s side window of the minivan
and spoke with Fernandez. According to Oktrova, he observed
what appeared to be a gravity knife3 in a cup holder located in

3 At the time of these events, New York law prohibited the
carrying of gravity knives, defined as knives “that can be
opened to a locked position with a one-handed flick of the
wrist.” Copeland v. Vance, 893 F.3d 101, 107 (2d Cir. 2018).
The prohibition on gravity knives was subsequently found
unconstitutionally vague and then repealed by the state
legislature. Cracco v. Vance, 376 F. Supp. 3d 304, 318
(S.D.N.Y. 2019) (holding statute unconstitutionally vague);
Governor Cuomo Signs Legislation Ending The Legal Ban On Gravity
Knives (May 30, 2019), https://www.governor.ny.gov/news/
governor-cuomo-signs-legislation-ending-legal-ban-gravity-
knives.
the minivan’s center console.4 According to Fernandez, there was
no knife in the console.5 Ovalles and Toribio likewise testified
that they did not possess a knife or know of any knife in the

van. Oktrova ordered all three occupants to get out of the
minivan. According to Fernandez, Ovalles, and Toribio, Oktrova
then said something to the effect of, “Three Dominican guys in a
van -- you guys look suspicious.” Oktrova denies making any
such statement. Oktrova says that after the minivan’s occupants
exited the vehicle, he retrieved the knife from the van and
determined that it was a gravity knife.
Shortly thereafter, Oktrova called for backup, and other
officers arrived on the scene, including Cepeda. Oktrova

4 The parties seemingly use the term “center console” to refer to
a closed compartment. The Court understands the term to refer
more generally to a storage area between a vehicle’s front
seats, which can contain both a compartment and cup holder. See
United States v. Hussain, 835 F.3d 307, 315 (2d Cir. 2016)
(referring to the “console area”); United States v. Cuevas, No.
15cr846 (PKC), 2016 WL 2766657, at *1 (S.D.N.Y. May 12, 2016)
(referring to a “cup holder located in the center console”);
AutoZone, Console (last visited July 22, 2020) https://
www.autozone.com/interior-organization-and-cargo-management/
console (listing products containing both compartments and cup
holders).

5 In the portions of Fernandez’s deposition that have been
presented concerning this motion, he was not directly asked
whether there was a knife in the cup holder. Plaintiff did not
file an affidavit in opposition to the motion, which could have
clarified this point. But taking the available evidence in the
light most favorable to Fernandez, during his deposition he
denied the presence of a knife in any part of the van that he
could observe.
informed Cepeda that he had observed Fernandez’s minivan double
parked and had discovered a gravity knife in the van. Fernandez
was arrested, and Cepeda was designated as the arresting officer

on the arrest report.
Post-Arrest Events
At the precinct, Cepeda conducted an inventory search of
the minivan and reached the conclusion that the van’s safety and
emissions inspection sticker was a forgery. Cepeda signed a
criminal court complaint charging Fernandez with criminal
possession of a weapon in the fourth degree, based on the report
Oktrova provided concerning the gravity knife. Fernandez was
arraigned and released on his own recognizance at approximately
5:00 p.m. on July 15, 2018. On October 18, the charges against
Fernandez were dismissed on speedy trial grounds.
Procedural History
This action was filed on February 27, 2019. An amended

complaint was filed on November 26. On March 20, 2020,
following the conclusion of discovery, the defendants moved for
summary judgment. Defendants supported their motion with a
variety of exhibits, including portions of deposition testimony
from Fernandez and Oktrova. On May 26, plaintiff opposed the
motion. Plaintiff’s opposition was likewise supported by a
variety of exhibits, including deposition testimony from
Fernandez and Oktrova. Plaintiff did not file an affidavit from
Fernandez addressing the points raised by defendants’ motion.
Nor did plaintiff respond to defendants’ Local Rule 56.1

statement as required. Defendants’ reply papers were filed on
July 3. On July 8, plaintiff filed a letter attaching certain
exhibits erroneously omitted from the May 26 opposition filings.
Discussion
A motion for summary judgment may not be granted unless all
of the submissions taken together “show[] that 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 genuine issue of material fact exists if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Nick’s Garage, Inc. v. Progressive Cas. Ins.
Co., 875 F.3d 107, 113 (2d Cir. 2017) (citation omitted).
“Where, as here, the party opposing summary judgment bears the
burden of proof at trial, summary judgment should be granted if
the moving party can point to an absence of evidence to support
an essential element of the nonmoving party’s claim.” Gemmink
v. Jay Peak Inc., 807 F.3d 46, 48 (2d Cir. 2015) (citation
omitted). In making this determination, the court “draws all

inferences in favor of the nonmoving party.” Id. Only disputes
over material facts will properly preclude the entry of summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “An issue of fact is genuine and material if the
evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Cross Commerce Media, Inc. v.
Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016).
Once the moving party has cited evidence showing that the
non-movant’s claims or affirmative defenses cannot be sustained,
the party opposing summary judgment must “come forward with
evidence that would be sufficient to support a jury verdict in
its favor.” CIT Bank N.A. v. Schiffman, 948 F.3d 529, 532 (2d
Cir. 2020) (citation omitted). “The nonmoving party may not
rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible.” Id. Nor
may the nonmoving party rely on “mere speculation or conjecture
as to the true nature of the facts.” Fed. Trade Comm’n v.

Moses, 913 F.3d 297, 305 (2d Cir. 2019) (citation omitted).
In order to prevail on a § 1983 claim, a plaintiff must
show “the violation of a right secured by the Constitution and
laws of the United States” and that “the alleged deprivation was
committed by a person acting under color of state law.” Jones
v. Cty. of Suffolk, 936 F.3d 108, 114 (2d Cir. 2019) (citation
omitted). Individual defendants can only be liable under § 1983
if they were “personally involved” in the constitutional
violation. Brandon v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019).
I. Unlawful Stop
To satisfy the Fourth Amendment, “an officer making a

traffic stop [must] have probable cause or reasonable suspicion
that the person stopped has committed a traffic violation or is
otherwise engaged in or about to be engaged in criminal
activity.” United States v. Wallace, 937 F.3d 130, 137 (2d Cir.
2019) (citation omitted). “Reasonable suspicion” exists when
the officer is “in possession of specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant the intrusion.” United States v. Ojudun, 915
F.3d 875, 882 (2d Cir. 2019) (citation omitted). “Although a
mere ‘hunch’ does not create reasonable suspicion, the level of
suspicion the standard requires is considerably less than proof
of wrongdoing by a preponderance of the evidence, and obviously

less than is necessary for probable cause.” Kansas v. Glover,
140 S. Ct. 1183, 1187 (2020) (citation omitted).
Here, Oktrova and Moncion had reasonable suspicion that
Fernandez was violating New York Vehicle and Traffic Law §
1202(a)(1)(a), which prohibits double parking. More precisely,
the statute provides,
Except when necessary to avoid conflict with other
traffic, or when in compliance with law or the
directions of a police officer or official traffic-
control device, no person shall . . . [s]top, stand or
park a vehicle . . . [o]n the roadway side of any
vehicle stopped, standing or parked at the edge or
curb of a street . . . .
N.Y. Veh. & Traf. Law § 1202(a)(1)(a). Fernandez contends that,
crediting his version of events, stopping the minivan in the
eastbound lane was “necessary to avoid conflict with other
traffic” and thus not a violation of the law. Fernandez
acknowledges that he was stopped for approximately two minutes
and did not move the minivan until after Oktrova waved at him.
He contends, however, that he moved the minivan at his first
opportunity since oncoming traffic had prevented him from moving
at any earlier point in those two minutes.
As the officers drove by, they would not have known how
long Fernandez had been stopped behind the other vehicle or
whether he had had an opportunity to continue along 196th
Street. The officers’ observations, however, provided them with
a reasonable suspicion Fernandez had double parked -- which is
sufficient to justify their investigatory traffic stop.
Accordingly, summary judgment is granted to the defendants on
plaintiff’s claim that the traffic stop was unlawful.
II. False Arrest
“A section 1983 claim for false arrest is substantially the
same as a claim for false arrest under New York law.” Jenkins
v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (citation
omitted). A false arrest claim under New York law requires a
plaintiff to prove “(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.” Liranzo v. United
States, 690 F.3d 78, 95 (2d Cir. 2012) (citation omitted).
“To avoid liability for a claim of false arrest, an
arresting officer may demonstrate that either (1) he had
probable cause for the arrest, or (2) he is protected from
liability because he has qualified immunity.” Simpson v. City
of New York, 793 F.3d 259, 265 (2d Cir. 2015) (citation
omitted). 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 person to be arrested
has committed or is committing a crime.” Garcia v. Does, 779
F.3d 84, 92 (2d Cir. 2015) (citation omitted). “Probable cause
is determined on the basis of facts known to the arresting
officer at the time of the arrest.” Shamir v. City of New York,
804 F.3d 553, 557 (2d Cir. 2015) (citation omitted); see also
District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (“To
determine whether an officer had probable cause for an arrest,
we examine the events leading up to the arrest, and then decide
whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable

cause.” (citation omitted)).
“[U]nder the collective or imputed knowledge doctrine, an
arrest is permissible where the actual arresting officer lacks
the specific information to form the basis for probable cause
but sufficient information to justify the arrest was known by
other law enforcement officials initiating the investigation.”
Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015)
(citation omitted). “When making a probable cause
determination, police officers are entitled to rely on the
allegations of fellow police officers.” Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006) (citation omitted). “The
determination of probable cause does not turn on whether the

fellow agent’s observations were accurate, but on whether the
arresting agent was reasonable in relying on those
observations.” Id.
Defendants argue that there was probable cause to arrest
Fernandez for (1) double parking, (2) possessing a gravity
knife, and (3) possessing a forged vehicle inspection sticker.
None of these assertions allows a grant of summary judgment as
to Oktrova.
Although there was reasonable suspicion to conduct an
investigatory stop concerning whether Fernandez had been double
parked, the defendants have provided no evidence that they in

fact investigated that suspected offense during the stop. More
investigation would have been necessary to develop probable
cause. Cf. Mitchell v. City of New York, 841 F.3d 72, 78 (2d
Cir. 2016) (“The failure to make a further inquiry when a
reasonable person would have done so may be evidence of lack of
probable cause.” (citation omitted)). Fernandez did not make
such further inquiry because, as he explains, he discovered and
seized the gravity knife.
Concerning the gravity knife, there is a genuine factual
dispute about whether such a knife was found in plain view in
the minivan. The defendants argue that there is no triable
issue of fact concerning the knife because Fernandez could not

testify that he had examined the closed compartment in the
center console or whether Ovalles and Toribio possessed a knife.
But Oktrova testified that the knife was in plain view in a cup
holder; accordingly, Fernandez’s testimony to the effect that he
saw no such knife is sufficient to raise a factual dispute about
whether there was probable cause to arrest for possession of a
gravity knife. The allegedly forged inspection sticker cannot
provide probable cause for the arrest, because Cepeda examined
the sticker during a post-arrest inventory search.
Plaintiff has not provided evidence that Moncion was

personally involved in his arrest. Nor has he provided any
evidence that it was unreasonable for Cepeda to rely on
Oktrova’s report that he had discovered a gravity knife.
Accordingly, plaintiff’s false arrest claim may proceed only
against Oktrova.
III. Malicious Prosecution
Fernandez has brought a malicious prosecution claim under
New York state law, which requires him to prove, “(1) the
initiation or continuation of a criminal proceeding against
plaintiff; (2) termination of the proceeding in plaintiff's
favor; (3) lack of probable cause for commencing the proceeding;
and (4) actual malice as a motivation for defendant’s actions.”
Stampf v. Long Island R. Co., 761 F.3d 192, 198 (2d Cir. 2014).

First, Moncion and Oktrova contend that they did not
initiate a criminal proceeding against Fernandez. It is true
that only Cepeda signed the criminal court complaint. The
filing of an “accusatory instrument,” including a criminal
complaint, initiates a prosecution under New York law. Cameron
v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010). But Cepeda
prepared the complaint based on information learned from
Oktrova. And “supplying false information . . . in substantial
furtherance of a criminal action against the plaintiff . . .
may, depending on the circumstances, constitute the

commencement” of a prosecution. Torres v. Jones, 47 N.E.3d 747,
761 (N.Y. 2016). A law enforcement officer need not have signed
the complaint to “initiate” a prosecution, where the officer
provides information in furtherance of the prosecution.
Cameron, 598 F.3d at 57, 63.6 Accordingly, both Cepeda and
Oktrova could be found to have initiated the prosecution here.
Under New York law, “any termination of a criminal
prosecution, such that the criminal charges may not be brought
again, qualifies as a favorable termination, so long as the
circumstances surrounding the termination are not inconsistent
with the innocence of the accused.” Lanning v. City of Glens
Falls, 908 F.3d 19, 27 (2d Cir. 2018) (citation omitted). A

dismissal on speedy trial grounds therefore generally
constitutes favorable termination under New York law. Smith-
Hunter v. Harvey, 734 N.E.2d 750, 753 (N.Y. 2000).
For purposes of a New York malicious prosecution claim,
probable cause “is the knowledge of facts, actual or apparent,

6 Even a civilian can be found to have initiated a criminal
proceeding where “[the] defendant played an active role in the
prosecution, such as giving advice and encouragement or
importuning the authorities to act.” Stampf, 761 F.3d at 199.
strong enough to justify a reasonable man in the belief that he
has lawful grounds for prosecuting the defendant in the manner
complained of.” Cardoza v. City of New York, 29 N.Y.S.3d 330,

340 (N.Y. App. Div. 2016). And “malice does not have to be
actual spite or hatred, but requires only that the defendant
must have commenced the criminal proceeding due to a wrong or
improper motive, something other than a desire to see the ends
of justice served.” Dufort v. City of New York, 874 F.3d 338,
353 (2d Cir. 2017) (citation omitted).
While lack of probable cause to institute a criminal
proceeding and proof of actual malice are independent
and indispensable elements of a malicious prosecution
action, the absence of probable cause does bear on the
malice issue, and probable cause to initiate a
criminal proceeding may be so totally lacking as to
reasonably permit an inference that the proceeding was
maliciously instituted.
Torres, 47 N.E.3d at 762 (citation omitted).
As discussed above, Cepeda was entitled to rely on
Oktrova’s account, so plaintiff has failed to raise a genuine
issue of fact concerning whether Cepeda lacked probable cause or
acted with malice. As to Oktrova, however, the conflicting
testimony concerning the gravity knife is sufficient to raise a
genuine dispute concerning these final two elements. Oktrova’s
alleged suggestion that the three men in the van were suspicious
due to their national origin only bolsters that conclusion.
Accordingly, Moncion and Cepeda are entitled to summary judgment
on the malicious prosecution claim, but Oktrova is not.
IV. Qualified Immunity
Defendants contend that they are entitled to qualified

immunity on all of plaintiff’s claims. Having already resolved
a number of claims in favor of the individual defendants, only
the remaining § 1983 claim against Oktrova is considered here.
“[O]fficers are entitled to qualified immunity under § 1983
unless (1) they violated a federal statutory or constitutional
right, and (2) the unlawfulness of their conduct was clearly
established at the time.” Wesby, 138 S. Ct. at 589 (citation
omitted). “To be clearly established, a legal principle must
have a sufficiently clear foundation in then-existing
precedent.” Id. “The rule’s contours must be so well defined
that it is clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. at 590 (citation

omitted). Applying these principles, the same factual disputes
that preclude summary judgment preclude a finding of qualified
immunity. All of the legal principles involved in this
determination are clearly established and would have been well
known to a reasonable officer.
V. Monell Liability
“[A] municipality can be held liable under Section 1983 if
the deprivation of the plaintiff’s rights under federal law is
caused by a governmental custom, policy, or usage of the

municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d
Cir. 2012) (citation omitted). “[I]solated acts . . . by non-
policymaking municipal employees are generally not sufficient to
demonstrate a municipal custom, policy, or usage that would
justify municipal liability.” Id. at 81 (citation omitted). “A
municipal policymaking official’s ‘deliberate indifference’ to
the unconstitutional actions, or risk of unconstitutional
actions, of municipal employees can in certain circumstances
satisfy the test for a municipal custom, policy, or usage that
is actionable under Section 1983.” Id. (citation omitted).
Here, plaintiff has provided evidence only of isolated
instances in which the particular officers involved in his

arrest are alleged to have engaged in misconduct. That is
insufficient to raise a triable issue of fact concerning Monell
liability.
VI. Remaining Issues
Plaintiff’s amended complaint also seems to assert state
law claims for assault and battery and for negligent hiring,
retention, training, or supervision. As the defendants point
out, plaintiff has failed to provide evidence to support
essential elements of these claims. Indeed, plaintiff
apparently abandons these claims by failing to address them in
the brief opposing defendants’ motion. Defendants are therefore
entitled to summary judgment on these claims.
Plaintiff also names the NYPD and its Commissioner as
defendants. The NYPD is a non-suable entity. Jenkins, 478 F.3d
at 93 n.19. And plaintiff has provided no evidence that the
Commissioner was personally involved in any constitutional
deprivation. These two defendants are therefore entitled to
summary judgment on all claims against them.

Conclusion
The only claims that remain for trial are the false arrest
and malicious prosecution claims against Oktrova. Otherwise,
defendants’ March 31, 2020 motion for summary judgment is
granted.

Dated: New York, New York
July 24, 2020

United States District Judge

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10324595. Public record. Not legal advice.