Vyrkin v. Triboro Bridge & Tunnel Authority

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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VLADIMIR VYRKIN, 18-cv-12106 (JGK)

Plaintiff,

- against - MEMORANDUM OPINION

AND ORDER

TRIBORO BRIDGE AND TUNNEL AUTHORITY,

ET AL.,1

Defendants.

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JOHN G. KOELTL, District Judge:

The pro se plaintiff, Vladimir Vyrkin, brings this action

against the Triboro Bridge and Tunnel Authority (the “TBTA”) and

Officer Edwin Cabrera alleging various claims relating to Mr.

Vyrkin’s arrest on the Bronx-Whitestone Bridge, including false

arrest, excessive force, assault, battery, and malicious

prosecution in violation of New York law and 42 U.S.C. § 1983.

The defendants move for summary judgment dismissing all claims,

asserting that Officer Cabrera had probable cause for Mr.

Vyrkin’s arrest and did not apply excessive force. For the

following reasons, the defendants’ motion is granted in part,

and denied in part.

1 Captain Michael Barnwell was dismissed from this action with prejudice

pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). ECF No. 14.

I.

Unless otherwise noted, the following facts are undisputed.2

The TBTA is a public benefit corporation established

through the New York Public Authorities Law. N.Y. Pub. Auth. L.

§§ 550, et seq.; Ds’ 56.1 Stmt. ¶ 1. Officer Cabrera was

employed by the TBTA as a Bridge and Tunnel Officer and assigned

to the Bronx-Whitestone Bridge facility on the date of the

incident. Ds’ 56.1 Stmt. ¶¶ 4, 5.

At approximately 7:08 a.m. on September 14, 2017, Mr.

Vyrkin entered lane 12 of the toll plaza of the Bronx-Whitestone

Bridge in a red Chevrolet sedan. Id. ¶¶ 6-7. He was 75 years

old. Vyrkin Decl. ¶ 3. In order to enter lane 12, Mr. Vyrkin

passed by a two-foot by three-foot sign affixed to an eight-foot

pole at the entrance of lane 12 that read “DO NOT BACK UP 2 PT

SUMMONS.” Ds’ 56.1 Stmt. ¶ 8. Mr. Vyrkin was unable to pass

through the toll in lane 12 because a vehicle in front of him

was stopped. Id. ¶ 7. When he noticed that the vehicle in

front of him was stopped, Mr. Vyrkin honked his horn and

2 The plaintiff failed to respond to or contest the defendants’ statement of

facts in the defendant’s Rule 56.1 Statement. The defendants advised the pro

se plaintiff, who was represented by counsel through discovery, of his Rule

56 obligations pursuant to Local Rule 56.2. See ECF No. 45. Therefore, the

plaintiff is not excused from the requirements of Local Rule 56.1. See

Liverpool v. Davis, 442 F. Supp. 3d 714, 723 (S.D.N.Y. 2020). Nevertheless,

the Court is required to assure that the statements in the Rule 56.1

statement are supported in the record. See Holtz v. Rockefeller & Co., 258

F.3d 62, 74 (2d Cir. 2001). Moreover, the Court will “conduct an assiduous

review of the record” in light of the special solicitude given to pro se

litigants. Holtz, 258 F.3d at 73.

reversed his vehicle. Id. ¶ 10. While reversing, Mr. Vyrkin

was immediately beside the sign prohibiting drivers from backing

up. Id. There was a school bus directly behind Mr. Vyrkin’s

vehicle. Id. ¶ 11.

Officer Cabrera observed Mr. Vyrkin reversing his vehicle

toward the school bus. Id. ¶ 13. Officer Cabrera, who was

wearing a high-visibility reflective neon vest over his uniform

and shield, first yelled for Mr. Vyrkin to stop reversing his

vehicle and then approached Mr. Vyrkin’s vehicle. Id. ¶¶ 13-14,

16. Officer Cabrera then asked Mr. Vyrkin to produce his

license and registration several times, but Mr. Vyrkin did not

comply. Id. ¶¶ 17, 19. Mr. Vyrkin also refused to move his

vehicle to the side of the road. Id. ¶ 19. After Mr. Vyrkin

refused to comply with Officer Cabrera’s requests, Officer

Cabrera called his sergeant for assistance. Id. ¶ 20. Sergeant

Hilda Ellis arrived minutes later, dressed in her uniform. Id.

¶ 21-22. She also asked Mr. Vyrkin for his license and

registration, but he did not comply. Id. Because of his

repeated non-compliance, Sergeant Ellis authorized Officer

Cabrera to arrest the plaintiff. Id. ¶ 23. Mr. Vyrkin contends

that he did not know that Officer Cabrera was a TBTA officer.

Vyrkin Decl. Ex. 11, Vyrkin Deposition, at 26-27.

Mr. Vyrkin left his vehicle and was handcuffed at 7:20

a.m., about 12 minutes after first arriving in lane 12. Ds’

56.1 Stmt. ¶ 26. Officer Cabrera escorted Mr. Vyrkin to a

nearby TBTA building about 200 feet away. Id. ¶¶ 26-27. To

arrive at the TBTA building, Officer Cabrera and Mr. Vyrkin had

to step over a 12-inch curb that separated the lanes of traffic

at the toll plaza. Id. ¶ 27. Mr. Vyrkin alleges that walking

over the curb caused him substantial pain due to a prior

surgery, but Officer Cabrera never touched Mr. Vyrkin’s leg.

Id. Mr. Vyrkin also suffers from asthma and has a pacemaker.

Vyrkin Decl. ¶ 4. He experiences pain in his legs when walking

long distances. Id. ¶ 8. Mr. Vyrkin also alleges that the

handcuffing caused him pain in his arms, although he did not

tell Officer Cabrera that he was experiencing pain and he did

not seek medical treatment. Ds’ 56.1 Stmt. ¶ 28.

Once inside the TBTA building, Mr. Vyrkin was handcuffed to

a bench for about an hour, at which point Mr. Vyrkin was driven

to the 45th Precinct of the New York City Police Department.

Id. ¶¶ 29-30. Mr. Vyrkin alleges that he was transported to the

45th Precinct while chained to the metal floor of a police

vehicle without seats. Vyrkin Decl. Ex. 11, Vyrkin Deposition,

at 38. Two surveillance videos capture (1) a partially

obstructed view of Mr. Vyrkin’s encounter with Officer Cabrera

while Mr. Vyrkin was in his car; and (2) Mr. Vyrkin handcuffed

to a bench in the TBTA building.

Mr. Vyrkin was issued three summonses for unsafe backing,

failure to comply with a lawful order, and obstruction of

governmental administration. Id. ¶ 31. He was released from

custody at about 9:30 a.m. Id. After two prior adjournments

due to Mr. Vyrkin’s lack of counsel, Mr. Vyrkin appeared in

court on February 28, 2018 where he was acquitted on all counts.

Id. ¶¶ 34-36.

Mr. Vyrkin filed a Notice of Claim with the TBTA on April

20, 2018, and then a Supplemental Notice of Claim on May 1,

2018. Id. ¶ 37. This case was filed on October 31, 2018 in the

New York State Supreme Court and then removed to this Court on

December 21, 2018. Id. ¶ 39; ECF No. 5.

II.

The standard for granting summary judgment is well

established. “The court shall grant summary judgment if the

movant shows 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); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,

Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994).3 “[T]he trial

court’s task at the summary judgment motion stage of the

litigation is carefully limited to discerning whether there are

3 Unless otherwise noted, this Memorandum Opinion and Order omits all

citations, alterations, emphasis, and internal quotation marks in quoted

text.

any genuine issues of material fact to be tried, not to deciding

them. Its duty, in short, is confined at this point to issue-

finding; it does not extend to issue-resolution.” Gallo, 22

F.3d at 1224. The moving party bears the initial burden of

“informing the district court of the basis for its motion” and

identifying the matter that “it believes demonstrate[s] the

absence of a genuine issue of material fact.” Celotex, 477 U.S.

at 323. “Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a

court must resolve all ambiguities and draw all reasonable

inferences against the moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)

(per curiam)); see also Gallo, 22 F.3d at 1223. Summary

judgment is improper if any evidence in the record from any

source would enable a reasonable inference to be drawn in favor

of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp.,

43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its

burden, the nonmoving party must produce evidence in the record

and “may not rely simply on conclusory statements or on

contentions that the affidavits supporting the motion are not

credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532

(2d Cir. 1993).

III.

The plaintiff has brought suit pursuant to New York law and

§ 1983, alleging violation of his Fourth Amendment rights.

Specifically, the plaintiff has brought the following claims

under either state or federal law or both: (1) false arrest;

(2) malicious prosecution; (3) excessive force, assault, and

battery; and (4) negligent hiring and supervision of Officer

Cabrera by the TBTA. The plaintiff also refers to other torts,

without pleading them as separate causes of action in his

complaint.

A. Claims Against Officer Cabrera

1. False Arrest

The defendants argue that the false arrest claim against

Officer Cabrera should be dismissed because Officer Cabrera had

probable cause to arrest Mr. Vyrkin. A false arrest claim under

Section 1983 based on the Fourth Amendment right to be free from

unreasonable seizures, including arrest without probable cause,

“is substantially the same as a claim for false arrest under New

York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

Accordingly, “a plaintiff claiming false arrest must show, inter

alia, that the defendant intentionally confined him without his

consent and without justification.” Id. Probable cause

constitutes such justification, and therefore “is a complete

defense to an action for false arrest.” Bernard v. United

States, 25 F.3d 98, 102 (2d Cir. 1994); see also Jaegly v.

Couch, 439 F.3d 149, 152 (2d Cir. 2006); Jocks v. Tavernier, 316

F.3d 128, 135 (2d Cir. 2003); Bullard v. City of New York, 240

F. Supp. 2d 292, 297 (S.D.N.Y. 2003); L.B. v. Town of Chester,

232 F. Supp. 2d 227, 233 (S.D.N.Y. 2002).

An officer has probable cause to arrest when the 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.” Jaegly, 439 F.3d at

152. Probable cause for any charge acts as a complete defense

to false arrest even where there is an absence of probable cause

for other individual charges. Ackerson v. City of White Plains,

702 F.3d 15, 20 (2d Cir. 2012); see also Jaegly, 439 F.3d at

154. The probable cause inquiry assesses “whether the facts

known by the arresting officer at the time of the arrest

objectively provided probable cause to arrest.” Ackerson, 702

F.3d at 19.

In this case, it is clear that Officer Cabrera had probable

cause to arrest Mr. Vyrkin. Officer Cabrera witnessed Mr.

Vyrkin reversing his vehicle in the toll plaza right next to a

large sign prohibiting such reversing. Mr. Vyrkin reversed his

vehicle directly toward an oncoming school bus. His actions

reasonably appeared to violate New York Vehicle and Traffic Law

Section 1211(a) (“The driver of a vehicle shall not back the

same unless such movement can be made with safety and without

interfering with other traffic.”).

Mr. Vyrkin argues that the unlawful backing does not give

rise to probable cause to arrest. However, pursuant to New York

law, a traffic infraction is a “petty offense” and a police

officer can arrest a person without a warrant for a “petty

offense” if the officer has probable cause to believe the person

committed the offense in the officer’s presence. N.Y. Veh. &

Traffic L. § 155 (definition of traffic infraction); N.Y. Crim.

Proc. L. § 1.20(39) (“‘Petty offense’ means a violation or a

traffic infraction.”); N.Y. Crim. Proc. L. § 140.10(1)-(2) (an

officer is authorized to arrest a person if the officer has

probable cause to believe the person committed a petty offense

in the officer’s presence); Roper v. City of New York, No. 15-

cv-8899, 2017 WL 2483813, at *4 (S.D.N.Y. June 7, 2017); see

also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)

(“If an officer has probable cause to believe that an individual

has committed even a very minor criminal offense in his

presence, he may, without violating the Fourth Amendment, arrest

the offender.”). Therefore, Officer Cabrera had probable cause

to arrest Mr. Vyrkin for unlawfully reversing his vehicle.4

Accordingly, the defendants are entitled to summary

judgment dismissing the plaintiff’s false arrest claims in

alleged violations of New York law and the Fourth Amendment.

2. Malicious Prosecution

The plaintiff also brings claims of malicious prosecution

and deprivation of liberty under Section 1983 and New York State

law on the basis that the defendants initiated criminal

proceedings against the plaintiff without probable cause and

with actual malice. To sustain a § 1983 claim based on

malicious prosecution, a plaintiff must demonstrate conduct by

the defendant that is tortious under state law and that results

in a constitutionally cognizable deprivation of liberty.

Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995);

see also Shabazz v. Kailer, 201 F. Supp. 3d 386, 391 (S.D.N.Y.

2016) (collecting cases). The elements of a malicious

prosecution claim under New York law are: “(1) the initiation or

continuation of a criminal proceeding against plaintiff;

(2) termination of the proceeding in plaintiff’s favor; (3) lack

4 Officer Cabrera also had probable cause to believe that Mr. Vyrkin

failed to comply with his lawful orders and thereby violated N.Y. Vehicle and

Traffic Law Section 1102. Additionally, Officer Cabrera had probable cause

to believe that Mr. Vyrkin obstructed governmental administration in

violation of New York Penal Law § 195.05 by intentionally obstructing Officer

Cabrera in Officer Cabrera’s obligation to ensure the free flow of traffic at

the toll plaza.

of probable cause for commencing the proceeding; and (4) actual

malice as a motivation for defendant’s actions.” Shabazz, 201

F. Supp. 3d at 391–92. “[T]he existence of probable cause to

commence a proceeding is also a complete bar to a claim of

malicious prosecution.” Bullard, 240 F. Supp. 2d at 297.

Because there was probable cause to begin the criminal

proceeding with respect to the unlawful backing charge, the

plaintiff cannot sustain the malicious prosecution cause of

action. There was also probable cause to begin the criminal

proceedings with respect to the failure to comply with a lawful

order and obstructing governmental administration charges.

Officer Cabrera and Sergeant Ellis both ordered that Mr. Vyrkin

produce his license and registration and he failed to do so on

multiple occasions. This failure to cooperate interfered with

Officer Cabrera’s ability to ensure the free flow of traffic at

the toll plaza because the officers had to call a tow truck to

remove Mr. Vyrkin’s car, creating a traffic jam on the bridge

during rush hour.

Separately, the plaintiff has not shown that Officer

Cabrera acted with malice in initiating the prosecution. A

showing of malice can include that the officer acted “with a

wrong or improper motive” or anything other than “a desire to

see the ends of justice served.” Fulton v. Robinson, 289 F.3d

188, 198 (2d Cir. 2002). In this case, the plaintiff has failed

to produce any evidence that Officer Cabrera acted with malice.

Accordingly, the defendants are entitled to summary

judgement dismissing the plaintiff’s malicious prosecution

claims.

3. Excessive Force

The plaintiff asserts that the defendants acted with

excessive force in violation of his constitutional rights. “The

Fourth Amendment prohibits the use of excessive force in making

an arrest, and whether the force used is excessive is to be

analyzed under that Amendment’s ‘reasonableness’ standard.”

Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)

(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). A police

officer’s use of force is “excessive” in violation of the Fourth

Amendment if it is objectively unreasonable in light of the

facts and circumstances known to the officer. Lennon v. Miller,

66 F.3d 416, 425-26 (2d Cir. 1995); see also Maxwell v. City of

New York, 380 F.3d 106, 108 (2d Cir. 2004). To determine

whether the amount of force applied to a plaintiff was

unreasonable, courts consider “the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether [the suspect] is

actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S. at 396. Excessive force claims

require “serious or harmful,” not “de minimis” use of force.

Drummond v. Castro, 522 F. Supp. 2d 667, 678-79 (S.D.N.Y. 2007).

Mr. Vyrkin asserts that Officer Cabrera used excessive

force by forcibly removing him from his vehicle, forcing him to

walk to the TBTA building thereby injuring his leg, and by

handcuffing him with excessively tight handcuffs. At the very

least, there are issues of fact that preclude summary judgment

on the excessive force claim based upon the manner and extent to

which Mr. Vyrkin was handcuffed.

On an excessive force claim regarding handcuffing, “a

plaintiff asserting a claim for excessive force need not always

establish that [the plaintiff] alerted an officer to the fact

that [the] handcuffs were too tight or causing pain,” and the

operative inquiry is “whether an officer reasonably should have

known during handcuffing that [the officer’s] use of force was

excessive.” Cugini v. City of New York, 941 F.3d 604, 613 (2d

Cir. 2019). A plaintiff satisfies this threshold if “the

unreasonableness of the force was apparent” or the plaintiff

signaled the plaintiff’s distress “verbally or otherwise, such

that a reasonable officer would have been aware of [the

plaintiff’s] pain.” Id. “[A] plaintiff’s testimony about the

injuries and subsequent treatment alone is sufficient to support

an excessive force claim on a motion for summary judgment” with

respect to an excessive force claim regarding handcuffing.

Fernandez v. City of New York, 457 F. Supp. 3d 364, 389

(S.D.N.Y. 2020) (denying motion for summary judgment on

excessive force claim concerning handcuffing), reconsideration

denied, No. 17-cv-789, 2020 WL 3448019 (S.D.N.Y. June 24, 2020).

In this case, the plaintiff alleges that Officer Cabrera

applied handcuffs in an excessively tight fashion. He alleges

three stages of excessive force when handcuffing. First, he

argues that the handcuffs were initially applied too tightly;

second, he alleges that he was handcuffed in a painful manner in

the TBTA building; and third, he alleges that the way he was

handcuffed while transported to the 45th Precinct was

excessively painful.

First, with respect to Mr. Vyrkin’s initial handcuffing,

there is a dispute of material fact as to the extent of his

injuries as a result of that handcuffing. The defendants argue

that the surveillance video shows that Mr. Vyrkin was not in

pain, but the video is equivocal. Mr. Vyrkin testified at his

deposition that the handcuffing “was like torture,” and that he

was “in pain when [Officer Cabrera] lifted my arms.” Vyrkin

Decl. Ex. 11, Vyrkin Deposition, at 32. Mr. Vyrkin’s alleged

crimes were not particularly serious, and the defendants have

not shown that Mr. Vyrkin posed a threat of danger, that he was

resisting arrest, or that he was attempting to flee. See

Graham, 490 U.S. at 396. The video shows hardly any detail with

respect to the initial application of the handcuffs, and given

Mr. Vyrkin’s testimony, the defendants are not entitled to

summary judgment on that issue. See Fernandez, 457 F. Supp. 3d

at 389.

The surveillance video in the TBTA building shows that Mr.

Vyrkin exhibited signs of discomfort with the handcuffs and

complained about the handcuffs being too tight. The handcuffs

were attached to a strap tied to a bench, and after complaining,

the strap was loosened. Given the inconclusive evidence, the

minor severity of the alleged crimes, and the lack of evidence

that Mr. Vyrkin posed a danger, flight risk, or resisted arrest,

the defendants are not entitled to summary judgment dismissing

the excessive force claim with respect to the handcuffing in the

TBTA building.

The plaintiff also argues that the way he was handcuffed to

the floor of the police vehicle caused him injury while being

transported to the 45th Precinct. Mr. Vyrkin alleges that he

was handcuffed and chained to the metal floor of the vehicle

without seats while being transported. The defendants do not

contest that Mr. Vyrkin was chained to the floor of the police

vehicle in transport, but assert that any injury was de minimis.

However, Mr. Vyrkin asserts that due to his age and prior

medical conditions, the use of force was excessive. There is an

issue of material fact as to whether the use of force in

transporting Mr. Vyrkin to the 45th Precinct was excessive.

Accordingly, because there are disputed material facts with

respect to Mr. Vyrkin’s excessive force claim, the defendants

are not entitled to summary judgment on that claim. See, e.g.,

Vitalone v. City of New York, No. 15-cv-8525, 2018 WL 1587591,

at *7 (S.D.N.Y. Mar. 27, 2018) (denying summary judgment because

the court could not conclude as a matter of law that the

defendants did not use excessive force).

4. Qualified Immunity

The defendants argue that Officer Cabrera is protected from

liability by qualified immunity. The only remaining claim

against Officer Cabrera is for excessive force. “Qualified

immunity protects public officials from liability for civil

damages when one of two conditions is satisfied: (a) the

defendant’s action did not violate clearly established law, or

(b) it was objectively reasonable for the defendant to believe

that his action did not violate such law.” Garcia v. Does, 779

F.3d 84, 92 (2d Cir. 2015). “[E]ven if defendants’ actions were

unreasonable under current law, qualified immunity protects

officers from the sometimes hazy border between excessive and

acceptable force.” Kerman v. City of New York, 261 F.3d 229,

239 (2d Cir. 2001).

It has long been clearly established that the use of

excessive force by a law enforcement officer is

unconstitutional. See Graham, 490 U.S. at 395. Whether the use

of force in this case was sufficiently reasonable so that it was

objectively reasonable for Officer Cabrera to believe that his

actions did not violation Mr. Vyrkin’s constitutional rights

depends on the resolution of factual issues that cannot be

resolved on this motion for summary judgment.

B. Claims Against the TBTA

The plaintiff alleges three theories of liability against

the TBTA: (1) respondeat superior for the plaintiff’s state law

claims against Officer Cabrera; (2) Monell liability; and

(3) direct liability pursuant to New York law for negligent

hiring and supervision.

The plaintiff’s state law claims for false arrest,

malicious prosecution, assault, and battery can only be

sustained against the TBTA on a respondeat superior theory. See

Linson v. City of New York, 951 N.Y.S.2d 167, 168 (App. Div.

2012). Mr. Vyrkin’s federal claims against the TBTA cannot be

sustained on a theory of respondeat superior. See Batista v.

Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Instead,

municipalities can be sued directly under Section 1983 for

constitutional deprivations inflicted pursuant to a custom or

policy. See generally Monell v. Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658 (1978). The TBTA is considered a

municipality for purposes of the Monell doctrine. See N.Y. Pub.

Auth. L. § 552 et seq.; see also Byrd v. Metro. Transit Auth.,

No. 15-cv-1364, 2015 WL 4546718, at *2 (E.D.N.Y. July 28, 2015).

The plaintiff can also bring a negligent hiring and supervision

claim directly against the TBTA pursuant to New York law.

1. Respondeat Superior

Mr. Vyrkin’s false arrest and malicious prosecution claims

against Officer Cabrera fail on the merits, and therefore they

cannot be sustained against the TBTA on a theory of respondeat

superior. The defendants argue that the remaining state law

claims should be dismissed because the plaintiff failed to serve

a Notice of Claim on the TBTA in a timely fashion with respect

to all claims except for malicious prosecution. In a tort

action against New York City (the “City”) or one if its

employees alleging violations of New York law, the plaintiff

must serve a notice of claim on the City before filing suit and

within 90 days after the claim arises. N.Y. Gen. Mun. L. §§ 50-

k(6); 50-e(1)(a); 50-i(1); see, e.g., Wagman v. Hooper, 29

N.Y.S.3d 519, 521 (App. Div. 2016). Timely filing of a Notice

of Claim is also a condition precedent to bringing suit against

the TBTA and its employees. N.Y. Pub. Auth. L § 569-a(2)

(incorporating Gen. Mun. L. § 50-e). The plaintiff alleges

specifically that Officer Cabrera was acting within the scope of

his employment, and Mr. Vyrkin seeks damages from the TBTA for

Officer Cabrera’s actions. Therefore, timely service of a

notice of claim on the TBTA is a condition precedent to bringing

the state law claims against the defendants.

Apart from the malicious prosecution claim, all of the

plaintiff’s claims accrued on September 14, 2017, the date that

Mr. Vyrkin was arrested and subsequently released. See Lynch v.

Suffolk Cnty. Police Dep’t, Inc., 348 F. App’x 672, 676 (2d Cir.

2009) (cause of action for false imprisonment accrues on the

date the prisoner is released from confinement); Bradshaw v.

City of New York, No 15-cv-2166, 2017 WL 6387617, at *4

(E.D.N.Y. Aug. 22, 2017) (intentional infliction of emotional

distress and negligence claims accrued on date of arrest);

Anderson v. City of Mount Vernon, No. 09-cv-7082, 2013 WL

12387017, at *4 (S.D.N.Y. May 8, 2013), report and

recommendation adopted, 2014 WL 1877092 (S.D.N.Y. Mar. 28, 2014)

(assault and battery, which would include any state law claim of

excessive force, accrue on the date of the application of

force). The plaintiff served the TBTA with a Notice of Claim

on April 20, 2018, after the 90-day window elapsed.

Service of the Notice of Claim for the malicious

prosecution claim was timely because a malicious prosecution

claim accrues on the date the criminal proceeding is terminated

in favor of the plaintiff. See, e.g., Mejia v. City of New

York, 119 F. Supp. 2d 232, 278 (E.D.N.Y. 2000). The criminal

proceeding terminated in Mr. Vyrkin’s favor on February 28,

2018.

Accordingly, the defendants are entitled to summary

judgment dismissing all of the plaintiff’s state law tort

claims, apart from the malicious prosecution claim, for failure

to serve the Notice of Claim on the TBTA in the required time.

The malicious prosecution claim fails for the independent

reasons, as described above, that the defendants had probable

cause to begin the criminal proceedings and Mr. Vyrkin failed to

show malice. Therefore, all of the plaintiff’s state law claims

are dismissed against all defendants. Mr. Vyrkin’s federal

claims are not subject to the state law notice of claim

provisions. See Felder v. Casey, 487 U.S. 131, 140 (1988)

(“[F]ederal courts have all, with but one exception, concluded

that notice-of-claim provisions are inapplicable to § 1983

actions brought in federal court. . . . [W]e fully agree with

this near-unanimous conclusion of the federal courts.”);

Day v. Moscow, 955 F. 2d 807, 813-14 (2d Cir. 1992) (filing a

notice of claim was not a condition precedent to bringing a

§ 1983 claim in federal court); see also Goode v. Manchester,

No. 5:18-cv-116, 2019 WL 1385762, at *4 (N.D.N.Y. Mar. 27, 2019)

(state notice of claim requirements are not applicable to § 1983

claims in federal court); Fanelli v. City of New York, No. 13-

cv-1423, 2013 WL 6017904, at *5 (S.D.N.Y. Nov. 1, 2013) (“New

York State notice of claim requirements do not apply to claims

brought pursuant to Section 1983.”).

2. Monell

To bring a claim against a municipality under § 1983, the

plaintiff must allege that the challenged conduct was “performed

pursuant to a municipal policy or custom.” Patterson v. Cnty.

of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004); Sorlucco v.

N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir. 1992); see

generally Monell, 436 U.S. at 694. To identify a “policy or

custom,” the plaintiff must demonstrate that the municipality,

through its deliberate conduct, was the “moving force” behind

the injuries alleged. Bd. of Cty. Comm’rs of Bryan Cnty.,

Okl. v. Brown, 520 U.S. 397, 404 (1997). The alleged policy

does not need to be contained in an explicitly adopted rule so

long as the unlawful practices of city officials are so

“persistent and widespread . . . as to constitute a custom or

usage with the force of law.” Sorlucco, 971 F.2d at 870-71; see

also Connick v. Thompson, 563 U.S. 51, 61 (2011) (stating that

the acts of city officials must be “so persistent and widespread

as to practically have the force of law”); see also Viruet v.

City of New York, No. 16-cv-8327, 2019 WL 1979325, at *8

(S.D.N.Y. May 3, 2019).

The plaintiff can satisfy the “policy or custom”

requirement by alleging:

(1) a formal policy officially endorsed by the

municipality; (2) actions taken by government officials

responsible for establishing municipal policies that

caused the particular deprivation in question; (3) a

practice so consistent and widespread that, although not

expressly authorized, constitutes a custom or usage of

which a supervising policy-maker must have been aware;

or (4) a failure by policymakers to provide adequate

training or supervision to subordinates to such an

extent that it amounts to deliberate indifference to the

rights of those who come into contact with the municipal

employees.

Tieman v. City of Newburgh, No. 13-cv-4178, 2015 WL 1379652, at

*13 (S.D.N.Y. Mar. 26, 2015).

The plaintiff has not alleged or produced any evidence to

prove that the TBTA had a policy or custom that caused the

plaintiff to suffer constitutional injury. The plaintiff has

not produced any evidence relating to the TBTA’s hiring,

training, or supervision practices for its officers. Because

the plaintiff offers no evidence of a policy or custom, the

defendants are entitled to summary judgment dismissing the

Monell claim against the TBTA.

3. Negligent Hiring and Supervision

For the same reason that Mr. Vyrkin’s Monell claim fails,

Mr. Vyrkin’s negligent hiring and supervision claims fail.

Pursuant to New York law, claims of negligent hiring,

supervision, or retention require the plaintiff to show, in

addition to the standard elements of negligence, “(1) that the

tort-feasor and the defendant were in an employee-employer

relationship; (2) that the employer knew or should have known of

the employee’s propensity for the conduct which caused the

injury prior to the injury’s occurrence; and (3) that the tort

was committed on the employer’s premises or with the employer’s

chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d

Cir.2004). Mr. Vyrkin has not produced any evidence that the

TBTA knew or should have known that Officer Cabrera had a

propensity for any of the claims alleged. Similarly, the

plaintiff has not produced any evidence that the TBTA was

negligent in hiring Officer Cabrera. Because the plaintiff

failed to allege or offer evidence for a necessary element of

the negligent hiring and supervision claims, the defendants are

entitled to summary judgment dismissing those claims.

C. Miscellaneous Claims

The plaintiff discusses various other claims that are

either not pleaded in the complaint or referenced in passing

without any explanation. These include violation of a right to

a fair trial, intentional infliction of emotional distress

(“IIED”), and Due Process and Equal Protection violations

pursuant to the Fourteenth Amendment. For the first time in his

opposition brief to the motion for summary judgment, Mr. Vyrkin

alleges that he was deprived of a right to a fair trial because

Officer Cabrera allegedly lied at the trial of the charges

against Mr. Vyrkin. The defendants are entitled to summary

judgment dismissing the deprivation of a right to a fair trial

claim because it was not raised in the complaint, and the

plaintiff cannot assert new causes of action in the opposition

brief to the motion for summary judgment. See Stapleton v.

Barrett Crane Design & Eng’g, 725 F. App’x 28, 32 (2d Cir. 2018)

(affirming district court’s decision not to consider a new

theory of liability raised in a brief in opposition to summary

judgment). The IIED claim fails because the plaintiff did not

timely file a notice of claim against the TBTA for this claim,

and independently, because the plaintiff cannot prove the

elements of the tort. See Lopez v. City of New York, No. 14-cv-

1660, 2014 WL 5090041, at *4 (S.D.N.Y. Oct. 10, 2014)

(dismissing IIED claim for failing to comply with New York’s

notice of claim requirement and because the plaintiff failed to

plead the elements of the tort adequately); see also Howell v.

New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993). With

respect to the Section 1983 claims pursuant to the Due Process

Clause of the Fourteenth Amendment, while Mr. Vyrkin does make

fleeting references to those causes of action in the complaint,

he does not provide any substantiating allegations or evidence

that could support such a claim. Accordingly, the defendants

are also entitled to summary judgment dismissing the § 1983

claims alleging violations of the Fourteenth Amendment.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed, the

arguments are either moot or without merit. For the reasons

stated above, the defendants’ motion for summary judgment

dismissing the claims is denied with respect to the plaintiff’s

§ 1983 excessive force claim against Officer Cabrera alone. The

defendants’ motion for summary judgment dismissing the claims is

granted with respect to all other claims. The Triboro Bridge

and Tunnel Authority is dismissed from the case. The Clerk is

directed to close Docket No. 40.

SO ORDERED.

Dated: New York, New York

March 2, 2021 _______/s/ John G. Koeltl____

John G. Koeltl

United States District Judge