Pemberton v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-- ---------------------------------------------------------- X

:

CLYDE PEMBERTON, et al., :

Plaintiffs, : 18 Civ. 7908 (LGS)

:

-against- : OPINION AND ORDER

:

THE CITY OF NEW YORK, et al., :

Defendants. :

------------------------------------------------------------ X

LORNA G. SCHOFIELD, District Judge:

Plaintiffs Dr. Clyde Pemberton and Christian Baptiste (collectively, “Plaintiffs”)1 seek

damages from the City of New York (the “City”) and two members of the New York Police

Department -- Police Officer Anthony Sengco and Lieutenant Khandakar Abdullah -- for false

arrest and malicious prosecution among other claims. These claims arise from an incident at

MIST, a bar that Plaintiff Pemberton owned and at which Plaintiff Baptiste worked, where at

least one patron claimed that she and her friends had been prevented from leaving by Plaintiff

Baptiste, at Plaintiff Pemberton’s command. Plaintiffs were arrested for false imprisonment

based on these claims. Defendants move for summary judgment. For the reasons below, the

motion is granted in part and denied in part.

BACKGROUND

The pertinent facts below are drawn from the parties’ Rule 56.1 statements and other

submissions on this motion. The facts are either undisputed or based on evidence in the record

drawing all reasonable inferences in favor of Plaintiffs, the non-moving parties.

1 A third plaintiff, Thomas Debnam, is no longer a party following a settlement.

MIST is a multi-purpose entertainment venue, which contains a bar, café, restaurant and

event space. On June 1, 2017, E. Levin, L. Mears and G. Allard went to MIST and became

intoxicated, with Ms. Allard apparently becoming severely intoxicated. Plaintiff Pemberton, the

MIST owner and a physician, directed MIST staff to call an ambulance for Ms. Allard, and told

them that Ms. Allard should remain on the premises until the ambulance arrived. The parties

dispute whether Plaintiff Pemberton directed the MIST staff to detain Ms. Levin and Ms. Mears,

and whether the MIST staff did so. A verbal and physical altercation ensued. Ms. Levin and

Ms. Mears assaulted MIST staff, Ms. Levin punched Plaintiff Pemberton in the chest, and the

women used racial slurs against Plaintiff Pemberton and MIST staff. Numerous calls were made

to 911. An ambulance arrived at MIST, followed by Defendant Sengco and his partner, followed

by Defendant Abdullah (who was then a police Captain) with his partners. Ms. Allard was

removed to the ambulance. Ms. Levin and Ms. Mears were escorted out of MIST by officers.

Defendant Abdullah spoke with Ms. Levin outside of MIST, who told him that Plaintiff

Baptiste and another MIST staff member had physically prevented her from leaving MIST.

Defendant Abdullah then approached Plaintiff Pemberton and said, “She said you prevented her

from leaving” and arrested him. Although there seems to be some dispute about whether

Defendant Abdullah spoke with Ms. Levin or Ms. Mears, Plaintiff Pemberton identified her as

Ms. Levin in a nearly contemporaneous email.

Defendant Abdullah directed Defendant Sengco and his partner to arrest Plaintiffs and

Ms. Levin. Ms. Levin was arrested for assaulting Plaintiff Pemberton. Plaintiffs were arrested

and prosecuted for unlawful imprisonment in the second degree. The criminal prosecutions were

dismissed and sealed at Plaintiffs’ fourth court appearance.

STANDARD

Summary judgment is appropriate where the record establishes “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). There is a genuine dispute as to a material fact “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); accord Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875

F.3d 107, 113-14 (2d Cir. 2017). A court must construe the evidence in the light most favorable

to the nonmoving party and must draw all reasonable inferences in favor of the nonmoving party.

Liberty Lobby, 477 U.S. at 248; Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017). “It is not the

province of the court itself to decide what inferences should be drawn,” and “if there is any

evidence in the record from any source from which a reasonable inference could be drawn in

favor of the nonmoving party, summary judgment is improper.” Vivenzio v. City of Syracuse,

611 F.3d 98, 106 (2d Cir. 2010); accord Figueroa v. W.M. Barr & Co., Inc., No. 18 Civ. 11187,

2020 WL 5802196, at *1 (S.D.N.Y. Sept. 29, 2020). When the movant has properly supported

its motion with evidentiary materials, the opposing party may only establish a genuine issue of

fact by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “[A]

party may not rely on mere speculation or conjecture as to the true nature of the facts to

overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)

(alteration in original); accord Pierre v. City of N.Y., 844 F. App’x 411, 413 (2d Cir. 2021)

(summary order). To prevail on a § 1983 claim, 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).

DISCUSSION

Defendants move for summary judgment on all claims in the First Amended Complaint

(“FAC”). Plaintiff does not oppose dismissal of the following claims -- excessive force, assault

and battery, and negligent hiring, training and supervision against the City (the Third, Seventh

and Eighth and Ninth causes of action, respectively).

The remaining claims at issue on this motion assert false arrest and false imprisonment

under federal and state law, malicious prosecution under federal and state law and failure to

intervene under federal law. The federal claims allege constitutional violations under 42 U.S.C.

§ 1983. The state claims allege violations of New York common law. All claims are asserted

against Defendants Abdullah and/or Sengco. The state law claims are also asserted against the

City on a theory of respondeat superior. Defendants also seek summary judgment on Plaintiffs’

demands for punitive damages and recovery of attorneys’ fees incurred in their defense of their

wrongful arrest and prosecution. Each of these matters is addressed in turn below.

A. False Arrest and Malicious Prosecution (First, Second, Fifth, and Sixth

Causes of Action)

Defendants move for summary judgment on the causes of action for false arrest and

malicious prosecution under § 1983 and New York common law. Defendants’ motion is denied

because questions of fact preclude summary judgment.

1. Applicable Law – Probable Cause and Arguable Probable Cause

Claims for false arrest under § 1983 and state law are substantially the same. See Ashley

v. City of N.Y., 992 F.3d 128, 136 (2d Cir. 2021). Probable cause is a complete defense to an

action for false arrest and malicious prosecution. Id. at 136, 138. Probable cause 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.” Figueroa v. Mazza, 825 F.3d 89,

99 (2d Cir. 2016) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)) (internal

quotation marks omitted). Probable cause exists if a law enforcement officer receives

information “from some person, normally the putative victim or eyewitness, unless the

circumstances raise doubt as to the person’s veracity.” Betts v. Shearman, 751 F.3d 78, 82 (2d

Cir. 2014); accord Tortora v. City of N.Y., 804 F. App’x 35, 37 (2d Cir. 2020) (summary order).

“An officer is entitled to qualified immunity from a federal false arrest and imprisonment

claim if he had arguable probable cause to arrest the plaintiff for any offense, regardless of the

offense with which the plaintiff was actually charged.” Kass v. City of N.Y., 864 F.3d 200, 206

(2d Cir. 2017). “Arguable probable cause exists when it was objectively reasonable for the

officer to believe that probable cause existed, or . . . officers of reasonable competence could

disagree on whether the probable cause test was met.” Id. (internal quotation marks omitted)

(ellipses in original). Summary judgment may be granted on the basis of qualified immunity

only if the facts necessary to find qualified immunity are undisputed. Sloley v. VanBramer, 945

F.3d 30, 44 (2d Cir. 2019) (remanding for trial including on the issue of qualified immunity

where a fact central to a finding of qualified immunity was in dispute); Gatling v. West, 850 F.

App’x 91, 96 (2d Cir. 2021) (summary order).

2. The Arrest of Pemberton

Defendants seek summary judgment on the false arrest and malicious prosecution claims

on the grounds that they had probable cause and arguable probable cause to arrest Plaintiffs for

unlawful imprisonment in the second degree and criminal solicitation in the fifth degree in

violation of New York Penal Law.2 See N.Y. Penal Law §§ 135.05 & 100.00.

Here, the undisputed evidence shows that Ms. Levin told Defendant Abdullah that

Plaintiff Pemberton had prevented her from leaving MIST. Nevertheless, there is a question of

fact whether the circumstances raised doubt as to her veracity. As recounted in Plaintiff

Pemberton’s nearly contemporaneous email, the “senior officer,” Defendant Abdullah spoke

with Ms. Levin3 out of Plaintiff Pemberton’s earshot. Defendant Abdullah then approached

Plaintiff and “[w]ithout a question to me, he states, ‘she said you prevented her from leaving.’”

In response to Defendant Abdullah’s question, Plaintiff Pemberton confirmed that he was the

owner of MIST. Defendant Abdullah then ordered Plaintiff Pemberton’s arrest. Plaintiff

Pemberton testified at his deposition that the email is accurate. See Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795, 806 (1999) ([A] party cannot create a genuine issue of fact sufficient to

surviving summary judgment simply by contradicting his or her own previous sworn

statement . . . .”); accord Daniels v. City of N.Y., No. 15 Civ. 2251, 2016 WL 4368378, at *6

(S.D.N.Y. Aug. 14, 2016).

2 Defendants have abandoned their argument that they had arguable (but not actual) probable

cause to arrest Plaintiff Pemberton for a misdemeanor violation of the Alcoholic Beverage

Control Law § 65 by not defending it in their Reply Memorandum. See, e.g., In re Gen. Motors

LLC Ignition Switch Litig., 477 F. Supp. 3d 170, 179 n.2 (S.D.N.Y. 2020). The argument also

fails on the merits in light of the clear law established in People v. Byrne, 77 N.Y.2d 460, 465,

468 (1991) (holding that a person can violate § 65 only through his own conduct and not through

the conduct of another person with whom he has a business relationship).

3 Plaintiff Pemberton’s email describes her as “Assailant #1” and further describes “Assailant

#1” as the person “who perpetrated the assault on me and others” and whom he later sees at the

28th precinct after the Plaintiffs were arrested. The record is clear that Ms. Levin was the MIST

patron who was arrested.

Whether Ms. Levin’s accusation that Plaintiff Pemberton prevented her from leaving

should have been viewed as reliable by a person of reasonable caution is a question of fact for

the jury. Defendant Sengco was called to the scene and was aware of numerous 911 calls. The

calls reported intoxication and/or assaultive behavior by one or more female patrons. When they

arrived, the police observed three drunk women. One woman (Ms. Allard) was so drunk she was

lying incapacitated on the floor and taken away in an ambulance. The other two (Ms. Mears and

Ms. Levin) were yelling, screaming and using racially derogatory language. Ms. Levin was

sufficiently agitated that she physically assaulted members of MIST staff, punched Plaintiff

Pemberton in the chest and was arrested for assault. Before she was arrested, Ms. Levin and

Defendant Abdullah had the conversation described above leading to Plaintiff Pemberton’s

arrest. In his nearly contemporaneous email, Plaintiff Pemberton described Ms. Levin’s conduct

just prior to the conversation: “She is flailing her arms and resisting [Defendant Abdullah’s]

advance toward her. She is psychotic, loudly abusive, still hurling racial epithets.” The

reliability of Ms. Levin’s accusation in the eyes of a reasonably cautious person is a question of

fact for the jury. See Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997) (finding that an arresting

officer has probable cause to effect an arrest if informed of a crime by a purported victim “absent

circumstances that raise doubts as to the victim’s veracity”); Abusikin v. City of N.Y., No. 18 Civ.

4582, 2021 WL 930349, at *6-7 (S.D.N.Y. Mar. 11, 2021) (denying summary judgment where

disputed facts may, if resolved in nonmovant’s favor, cast doubt on the veracity of the victims’

account of events). Contrary to Defendants’ argument, this is not a question of law to be gleaned

from other cases in other circumstances finding that intoxication or racial slurs did or did not

render an account unreliable.

The record also contains other, equivocal evidence of what the police were told about

Plaintiff Pemberton’s possible role in confining the MIST patrons. Defendant Abdullah testified

that Plaintiff Baptiste or Debnam, both MIST staff members, said that Plaintiff Pemberton had

directed them to prevent the women from leaving MIST. But a jury could conclude that this

conversation never occurred as both Plaintiffs Baptiste and Debnam testified that their only

conversation with the police was the brief exchange when they were arrested.

These and other factual disputes about the entirety of information that Defendants knew

and what they could reasonably credit at the time of Plaintiffs’ arrests preclude finding probable

cause and arguable probable cause as a matter of law. Summary judgment is denied on the false

arrest and malicious prosecution claims.4

3. The Arrest of Baptiste

Summary judgment is likewise denied on the false arrest and malicious prosecution

claims brought by Plaintiff Baptiste. Defendant Abdullah testified that, in the same conversation

between Defendant Abdullah and Ms. Levin described above and leading to Plaintiff

Pemberton’s arrest, Ms. Levin also told Defendant Abdullah that Plaintiffs Baptiste and Debnam

were the individuals who prevented her from leaving MIST. As discussed above, a material

4 The parties argue about whether false imprisonment under N.Y. Penal Law § 135 can be

violated by a directive to another person to use physical force. Plaintiffs argue that a directive is

insufficient. Defendants argue to the contrary and, to the extent that the law is unclear, that

Defendants are entitled to qualified immunity. The Court finds that Defendants have the better

argument both as to statutory interpretation and qualified immunity. Similarly, the parties argue

about whether the criminal solicitation statute can provide the basis for a probable cause defense.

For the reasons stated in Defendants’ memoranda of law in support of the motion, the Court

finds that the statute can support a probable cause or arguable probable cause defense at least

with respect to the false arrest claim. These arguments are not addressed at length because the

factual issues discussed in the text nevertheless preclude summary judgment.

question of fact exists as to whether the circumstances raised doubt about Ms. Levin’s veracity

sufficient to negate probable cause.

B. Failure to Intervene (Fourth Cause of Action)

Defendants apparently seek summary judgment on Plaintiffs’ Fourth Cause of Action for

failure to intervene, although the parties’ memoranda of law do not discuss it. Summary

judgment is denied because the FAC’s theory of the claim is that Defendants Sengco and

Abdullah failed to intervene in the unconstitutional arrest and prosecution of Plaintiffs. Because

those claims remain to be decided, the failure to intervene claim remains. See Buari v. City of

N.Y., No. 18 Civ. 12299, 2021 WL 1198371, at *17 (S.D.N.Y. Mar. 30, 2021) (stating that a

failure to intervene claim is contingent on the underlying claim); Rolkiewicz v. City of N.Y., 442

F. Supp. 3d 627, 646 (S.D.N.Y. 2020) (same).

It should be noted however that the claim appears to be nonsensical and unlikely to

survive a motion at trial. The evidence suggests that Defendant Sengco was the arresting officer

who arrested Plaintiffs at the direction of Defendant Abdullah. If so, it is unclear who could or

should have intervened with whom. Cf., e.g., Theodat v. City of N.Y., 818 F. App'x 79, 83 (2d

Cir. 2020) (summary order) (finding evidence sufficient to support the jury’s finding that the

non-arresting police officer had the opportunity to intervene in the false arrest and was aware of

its falsity). A police officer is liable when (1) the officer had a realistic opportunity to intervene

and prevent the harm; (2) a reasonable person in the officer’s position would know that the

victim’s constitutional rights were being violated; and (3) the officer does not take reasonable

steps to intervene. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994); Holland v. City of

N.Y., 197 F. Supp. 3d 529, 549 (S.D.N.Y. 2016). The failure to intervene claim survives.

C. Punitive Damages and Criminal Defense Fees

Summary judgment is granted on the FAC’s demand for punitive damages, which

requires a showing that a defendant’s conduct was motivated by “evil motive or intent, or when

it involves reckless or callous indifference to federally protected rights of others.” Cardoza v.

City of N.Y., 29 N.Y.S.3d 330, 341 (1st Dep’t 2016); see also Wiercinski v. Mangia 57, Inc., 787

F.3d 106, 115 (2d Cir. 2015) (outlining the substantially similar federal standard). Based on the

evidence in the record no reasonable jury could find this degree of malevolent intent. The

evidence shows that police officers responded to a chaotic scene with cross-accusations that

resulted in arrests of individuals from both sides of the dispute. The evidence does not show evil

motive or an indifference to federally protected rights.

Defendants seek summary judgment on Plaintiffs’ demand to recover criminal defense

costs they allegedly incurred as a result of their wrongful arrest and prosecution. The motion is

denied. “The ‘basic purpose’ of § 1983 damages is ‘to compensate persons for injuries that are

caused by the deprivation of constitutional rights.’” Townes v. City of N.Y., 176 F.3d 138, 147

(2d Cir. 1999) (quoting Carey v. Piphus, 435 U.S. 247, 254 (1978)). Criminal attorneys’ fees

may be recoverable in a § 1983 action. See Manganiello v. City of N.Y., 612 F.3d 149, 168 (2d

Cir. 2010); Hillary v. Vill. of Potsdam, No. 17 Civ. 659, 2020 WL 7122010, at *7 (N.D.N.Y.

Nov. 2, 2020).

Defendants argue that the fees were paid by a third party and that Plaintiffs’ cannot

recover for damages they did not incur. Defendants’ argument is rejected for two reasons. First,

there is a factual dispute about whether Plaintiffs are liable for those fees or whether the payment

by a third party was merely a loan. Second, and regardless of the outcome of that factual

dispute, under the federal collateral source rule, Plaintiffs are entitled to fees on their § 1983

claims whether or not the fees were paid by a third party. The collateral source rule provides that

a plaintiff's damages are not reduced to the extent the plaintiff recovers those damages from a

third party. See N.Y. State Elec. & Gas Corp. v. FirstEnergy Corp., 766 F.3d 212, 238 (2d Cir.

2014). The federal collateral source rule generally applies to federal claims, including § 1983

claims. Doe v. Darien Bd. of Educ., No. 11 Civ. 1581, 2015 WL 7458498, at *2 (D. Conn. Nov.

24, 2015); see also Hartnett v. Reiss S. S. Co., 421 F.2d 1011, 1016 n.3 (2d Cir. 1970) (“The

general rule in the federal courts is that the collateral source rule is applied and defendants

cannot show payments of this kind in mitigation.”); Shiwbodh v. Caribbean Airlines Ltd., No. 12

Civ. 01706, 2018 WL 1514242, at *15 (D. Conn. Mar. 27, 2018), amended in part on other

grounds, 2018 WL 3241350 (D. Conn. July 3, 2018) (collecting cases).

IV. CONCLUSION

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

and denied in part. For clarity, remaining are the First, Second, Fourth, Fifth and Sixth Causes of

Action for federal and common law claims of false arrest and malicious prosecution and for the

federal claim of failure to intervene. Plaintiffs’ request for punitive damages is denied, but

Plaintiffs’ request for criminal defense fees survives.

The Clerk of Court is respectfully directed to close the motion at Dkt. No. 79. A trial

scheduling order will follow, as will a referral to the Magistrate Judge for a settlement

conference.

Dated: August 2, 2021 / /

New York, New York

LORNA G. SCHOFIEL

UNITED STATES DISTRICT JUDGE

1]