Khan v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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JANBAZ KHAN,

Plaintiff, 19-cv-104 (JGK)

- against - MEMORANDUM OPINION

AND ORDER

CITY OF NEW YORK, ET AL.,

Defendants.

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JOHN G. KOELTL, District Judge:

The plaintiff, Janbaz Khan, brought this suit pursuant to

42 U.S.C. § 1983 against the City of New York (“the City”),

Timothy Trotter, Frank Danoy, and Officers John Doe #1-10

alleging false arrest, malicious prosecution, fabrication of

evidence, conspiracy, and failure to intervene. The plaintiff

also asserts a municipal liability claim against the City.

The defendants move for summary judgment pursuant to

Federal Rule of Civil Procedure 56 dismissing all of the

plaintiff’s claims. The plaintiff brings a motion for sanctions

pursuant to Federal Rule of Civil Procedure 11. The defendants

also move pursuant to Federal Rule of Evidence 702 and Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) to exclude the

affidavit of the plaintiff’s expert, Dr. Nancy J. Franklin.1 For

the reasons explained below, the defendants’ motion for summary

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

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

text.

judgment is granted in part and denied in part, the plaintiff’s

motion for sanctions is denied, and the defendants’ Daubert

motion is denied without prejudice.

I.

This case arises from the arrest and subsequent prosecution

of the plaintiff for a sexual assault that occurred on the New

York City subway. The following facts are based on the parties’

Local Civil Rule 56.1 statements and supporting papers and are

undisputed unless otherwise noted.

On January 21, 2016, at approximately 6:00–6:30 p.m., a

woman named T.G.2 boarded an uptown 2 or 3 train from Penn

Station. Plaintiff’s Response to Defendants’ Statement of

Material Facts (“Pl.’s RTSMF”), ECF No. 86 ¶ 5. New York City

Police Department (“NYPD”) Officer Trotter boarded the same

subway car as T.G. Defendants’ Statement of Material Facts

(“Defs.’ SMF”), ECF No. 83 ¶ 6. Officer Danoy testified that he

boarded the same train car and was “ghosting” Officer Trotter

(that is, staying close to Officer Trotter and making sure

Officer Trotter was safe). Danoy Depo., ECF No. 87-2, at 54, 59.

But the plaintiff disputes that Officer Danoy boarded the same

subway car as Officer Trotter and T.G. Pl.’s RTSMF ¶ 6.3

2 For privacy reasons, and as the parties did in their papers, the Court will

refer to the complaining victim by her initials.

3 Officer Trotter testified that he and Officer Danoy were on the same train,

but Officer Trotter could not recall whether he and Officer Danoy were in the

same car. Trotter Depo., ECF No. 87-6, at 151–52.

As the subway began to leave Penn Station, T.G., who was

standing, testified that someone was “pressed up against . . .

[her] backside . . .” and that there was “movement back and

forth on [her] butt.” T.G. Trial Testimony, ECF No. 87-9, at

109–10. T.G. testified that she felt “a lot of pressure, and it

was back and forth very close.” Id. at 110. She testified that

“[i]t felt like somebody was intentionally touching me against

my will,” “almost as if there was someone pressed up against me

masturbating.” Id. T.G. testified that she “glanced quickly”

behind her and saw that the person touching her was a man. See

id. at 111; T.G. Depo., ECF No. 87-7, at 26–27. T.G. stated that

she was not sure of the man’s ethnicity, but that he did not

appear to be African American, Hispanic, or white. See id.; T.G.

Trial Testimony, at 111.4

T.G. testified that, after glancing at her assailant, she

“froze,” faced forward, and “star[ed] directly” into the eyes of

a different man, who T.G. later learned was Officer Trotter.

T.G. Depo., at 21–26, 41–43, 92. T.G. testified that Officer

Trotter would have been able to observe the assault based on

where he was positioned in the train car. See id. at 43, 92, 96–

97. Officer Trotter testified that he “observed [the plaintiff]

thrusting his genital area, his penis area against the buttocks

4 The plaintiff is a Pakistani-born United States citizen. Pl.’s RTSMF ¶ 15.

of [T.G.] on the train.” Trotter Depo., at 165. Officer Trotter

stated that he did not intervene because the train was moving.

Id. at 176–77.

After the train pulled into Times Square, the next stop,

T.G. and Officer Trotter left the train. Id. at 179; T.G. Depo.,

at 37–38. Officer Trotter followed T.G. off the train,

approached her, and identified himself as an NYPD officer. See

id. at 41–44; Trotter Depo., at 180, 188.5 T.G. testified that

the two officers who approached her said, in substance, that

“they saw what happened and that he was arrested.” T.G. Depo.,

at 44.6 T.G. told the officers that she “was standing on the

train, and it was very crowded, and this man was pressed up

against [her] extremely close.” T.G. Trial Testimony, at 114.

T.G. also wrote the following statement in Officer Trotter’s

memo book: “After stepping onto the 2 train, as it was crowded,

a man behind me was moving closer to point of pressing up

against me. I moved and he followed and continued to be

inappropriately close.” ECF No. 84-6, at D00012. Officer Danoy

5 The defendants suggest that only Officer Trotter approached T.G., but T.G.

testified that two officers approached her after she exited the train. See

Pl.’s RTSMF ¶ 23.

6 See also T.G. Depo., at 39, 42, 91; cf. Trotter Trial Testimony, ECF No. 87-

7, at 82 (Q: “You asked [T.G] if anything inappropriate happened on the

train, right?” A: “That’s correct.”).

arrested the plaintiff at Officer Trotter’s direction. See

Trotter Depo., at 195; Danoy Depo., at 109–10, 114–15.7

The plaintiff was charged with forcible touching and sexual

abuse in the third degree, and he was acquitted following a

bench trial in January 2017 in New York City Criminal Court, New

York County. Defs.’ SMF ¶¶ 33–34. T.G. was unable to identify

the plaintiff at trial. Pl.’s RTSMF ¶ 14. The plaintiff denies

assaulting T.G. Id. ¶ 20. The plaintiff also disputes that the

alleged assault occurred at all, and argues that T.G.’s account

was the product of leading comments by Officer Trotter. See id.

¶ 10.

II.

The defendants have moved for summary judgment dismissing

all of the plaintiff’s claims. 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.

7 It is unclear whether the plaintiff was arrested before or after T.G. spoke

to Officer Trotter. See Pl.’s RTSMF ¶ 99 & n.8. T.G. testified that the

officers who approached her told her that they had already arrested the man

who assaulted her. See, e.g., T.G. Depo., at 44 (the officers who approached

T.G. said “they saw what happened and that he was arrested”). Officers Danoy

and Trotter, by contrast, testified that Officer Trotter received a statement

from T.G. before directing Officer Danoy to arrest the plaintiff. See Danoy

Depo., at 109–10, 114–15; Trotter Depo., at 194–95. Officer Trotter testified

that, after the train arrived at Times Square, he followed T.G. and directed

Officer Danoy to follow the plaintiff. See id. at 184–85. Officer Danoy could

not recall how he learned that Officer Trotter had received a statement from

T.G. See Danoy Depo., at 114–15.

Catrett, 477 U.S. 317, 322–23 (1986). “[T]he trial court’s task

at the summary judgment motion stage of the litigation is

carefully limited to discerning whether there are 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 v. Prudential

Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir.

1994). 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); Gallo, 22

F.3d at 1223. “If, as to the issue on which summary judgment is

sought, 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.” Chambers v. TRM

Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving

party meets its burden under Rule 56, 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 N.Y., 996 F.2d 522, 532 (2d Cir. 1993).

A.

The first claim at issue is false arrest. “A § 1983 claim

for false arrest, resting on the Fourth Amendment right of an

individual to be free from unreasonable seizures, including

arrest without probable cause, is substantially the same as a

claim for false arrest under New York law.” Weyant v. Okst, 101

F.3d 845, 852 (2d Cir. 1996); see Jenkins v. City of N.Y., 478

F.3d 76, 84 (2d Cir. 2007). To prove false arrest under New York

law, the plaintiff must show: “(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.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118

(2d Cir. 1995).

The defendants argue that the plaintiff’s false arrest

claim fails as a matter of law because there was probable cause

to arrest the plaintiff. The existence of probable cause “is a

complete defense to an action for false arrest.” Weyant, 101

F.3d at 852. “Officers have probable cause when they have

knowledge or reasonably trustworthy information of facts and

circumstances that are sufficient to warrant a person of

reasonable caution in the belief that the person to be arrested

has committed or is committing a crime.” Hernandez v. United

States, 939 F.3d 191, 199 (2d Cir. 2019). “The inquiry is

limited to whether the facts known by the arresting officer at

the time of the arrest objectively provided probable cause to

arrest.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d

Cir. 2013). “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 arresting officers.”

Yorzinski v. City of N.Y., 175 F. Supp. 3d 69, 76 (S.D.N.Y.

2016).

In this case, there are significant questions of fact

surrounding the plaintiff’s arrest and the knowledge of the

defendant officers at the time of the arrest. In arguing that

there was probable cause to arrest the plaintiff, the defendants

rely primarily on T.G.’s statements to Officer Trotter following

the alleged assault. But whether T.G. made any statements to

Officer Trotter before the plaintiff was arrested is a disputed

issue of fact. Although Officers Trotter and Danoy testified

that Officer Trotter received T.G.’s statement before the

plaintiff was arrested, see Danoy Depo., at 109–10, 114–15;

Trotter Depo., at 194–95, T.G. consistently testified that the

officers who approached her following the alleged assault said

that the assailant had already been arrested, see T.G. Depo., at

39, 42, 44, 91; T.G. Trial Testimony, at 113. Therefore, at this

stage, the defendants cannot rely on any statements made by T.G.

to Officer Trotter to establish probable cause.

The defendants also rely on the testimony of Officers

Trotter and Danoy to establish probable cause. See, e.g., ECF

No. 82, at 7–8. But the plaintiff disputes that he committed the

alleged assault, that the alleged assault occurred at all, and

that the officers observed him at Penn Station before his

arrest. See Pl.’s RTSMF ¶¶ 3, 5, 9–10. Moreover, there are

conflicts in the record regarding how the alleged assault

unfolded, where the defendant officers were positioned in the

train car, whether Officer Trotter intervened, and the duration

of the train ride from Penn Station to Times Square. See id. ¶¶

5–6, 9–10. Viewing the evidence in the light most favorable to

the plaintiff, the defendants fail to explain: (1) why Officer

Trotter did not immediately intervene in what he described as a

brazen assault;8 or (2) how Officer Danoy managed to keep his

8 When asked at his deposition if he intervened “[a]t any point” during the

alleged assault, Officer Trotter answered no. Trotter Depo., at 176–77. When

asked why he did not intervene, Officer Trotter responded: “For safety

reasons, we do not conduct lawful business on a moving train.” Id. at 177.

Officer Trotter then testified that, “When [T.G.] stepped to her right,”

Officer Trotter stepped between T.G. and the plaintiff, thereby preventing

the plaintiff from following T.G. Id. at 177–78. T.G., by contrast, testified

that the assault lasted for the entire duration of the train ride from Penn

Station to Times Square. T.G. Depo., at 37. T.G. further testified that

Officer Trotter had a clear view of the assault because T.G. and Officer

focus on Officer Trotter without observing the alleged assault,

even though there were no people between Officer Trotter and

T.G.9

The defendants argue that “the undisputed record evidence

confirms that plaintiff was the perpetrator,” ECF No. 82, at 7,

but the defendants ignore the plaintiff’s denial. At this stage,

the Court must draw all reasonable inferences in favor of the

plaintiff, and the Court “may not make credibility

determinations or weigh the evidence.” Proctor v. LeClaire, 846

F.3d 597, 608 (2d Cir. 2017); see also Simpson v. City of N.Y.,

793 F.3d 259, 265 (2d Cir. 2015) (“Assessments of credibility

and choices between conflicting versions of the events are

matters for the jury, not for the court on summary judgment.”).

Whether the officers had probable cause to arrest the plaintiff

is a question of fact for the jury. Accordingly, the defendants

are not entitled to summary judgment on the plaintiff’s false

arrest claim.10

Trotter were holding onto the same subway pole, facing each other, and there

was nobody in between them. See id. at 96–99. T.G. “vividly” recalled

“staring directly in [Officer Trotter’s] eyes” during the assault. Id. at 25.

9 Officer Danoy testified that he recalls observing Officer Trotter during the

train ride and that there was nothing obstructing his view of Officer

Trotter. Danoy Depo., at 84. Officer Danoy testified that he did not witness

any criminal activity on the train. Id. at 87.

10 The defendants argue that, “[a]t an absolute minimum, there was probable

cause to arrest plaintiff for harassment in the second degree based solely on

T.G.’s written statement.” ECF No. 82, at 8. But, as explained, whether T.G.

gave any statement to Officer Trotter before the plaintiff was arrested is a

disputed issue of fact. Therefore the Court cannot conclude, as a matter of

law, that the officers had probable cause to arrest the plaintiff for

harassment in the second degree.

B.

The second claim at issue is malicious prosecution. The

elements of a malicious prosecution claim under § 1983 are

substantially the same as the elements under New York law. Boyd

v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003). “To succeed on

a claim for malicious prosecution, the plaintiff must show that

a prosecution was initiated against him, that it was brought

with malice but without probable cause to believe that it could

succeed and that the prosecution terminated in favor of the

accused plaintiff.” Id. at 76.

The defendants argue that the plaintiff’s malicious

prosecution claim fails because the plaintiff’s prosecution was

supported by probable cause. In support of this argument, the

defendants rely on their probable cause argument with respect to

the plaintiff’s false arrest claim. However, as explained with

respect to the plaintiff’s false arrest claim, the defendants

cannot establish as a matter of law that the plaintiff’s arrest

was supported by probable cause. While the probable cause

inquiry in a malicious prosecution claim is distinct from the

probable cause inquiry in a false arrest claim, especially where

the prosecution follows a warrantless arrest, see Mejia v. City

of N.Y., 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000),11 the

11 In cases such as this one where prosecution followed a warrantless arrest,

“the existence, or lack, of probable cause [for the prosecution] is measured

as of the time the judicial proceeding is commenced (e.g., the time of the

defendants do not explain how that distinction affects this

case. Even though it appears that the Court could consider

T.G.’s statements to Officer Trotter in assessing whether the

plaintiff’s prosecution was supported by probable cause, the

plaintiff has shown that “the circumstances raise doubt as to

[T.G.’s] veracity.” Panetta v Crowley, 460 F.3d 388, 395 (2d

Cir. 2006). For example, T.G. did not describe her alleged

assailant in her statement to Officer Trotter; T.G. could not

recall the ethnicity of her alleged assailant, T.G. Trial

Testimony, at 111; and T.G. could not identify the plaintiff at

trial and was not asked to identify the plaintiff prior to

trial, Pl.’s RTSMF ¶ 14. Moreover, the fact that Officer Trotter

approached T.G. using language suggesting that a crime had

occurred (that the officers “saw what happened” and had already

made an arrest, see T.G. Depo., at 44)12 casts doubt on T.G.’s

account. Accordingly, the defendants cannot show as a matter of

law that there was probable cause to prosecute the plaintiff.

The defendants also argue that the plaintiff cannot show

that his prosecution was brought with malice. But “[o]nce [the

court] find[s] an issue of material fact as to probable cause,

arraignment), not the time of the preceding warrantless arrest.” Mejia, 119

F. Supp. 2d at 254.

12 NYPD Inspector Thomas Ponella testified that officers should not approach a

potential victim by saying “I saw what happened” because, as Inspector

Ponella put it, “We want to get the victim’s own words.” Ponella Depo., ECF

No. 87-14, at 66.

the element of malice also becomes an issue of material fact as

well. A lack of probable cause generally creates an inference of

malice.” Boyd, 336 F.3d at 78; see Manganiello v. City of N.Y.,

612 F.3d 149, 163 (2d Cir. 2010). Accordingly, the defendants

are not entitled to summary judgment on the plaintiff’s

malicious prosecution claim.

C.

The third claim at issue is that the defendants deprived

the plaintiff of his right to a fair trial by fabricating

evidence. “A person suffers a constitutional violation if an (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 N.Y.,

486 F. App’x 149, 152 (2d Cir. 2012); see Ricciuti v. N.Y.C.

Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).

In this case, there is a genuine dispute of fact regarding

whether the defendant officers fabricated information in the

course of effecting the plaintiff’s arrest. The plaintiff

alleges that the officers lied about observing a crime and about

observing the plaintiff commit that alleged crime. The plaintiff

has sworn that he did not commit the alleged assault. Pl.’s

RTSMF ¶¶ 20, 112. The plaintiff has also highlighted several

discrepancies between the testimony of the officers and T.G.

regarding the alleged assault. Moreover, there is evidence that

Officer Trotter approached T.G. in a manner that suggested a

crime had occurred. Finally, viewing the evidence in the light

most favorable to the plaintiff, the defendant officers do not

explain satisfactorily: (1) why Officer Trotter did not

intervene in the brazen sexual assault that he allegedly

witnessed while holding onto the same subway pole as the alleged

victim, or (2) how Officer Danoy, who testified that he was

closely observing Officer Trotter during the train ride in

question, could have failed to notice the alleged assault.

Accepting the plaintiff’s account, as the Court must at this

stage, there is a dispute of fact about whether the officers

lied about what they saw in order to effect the plaintiff’s

arrest and further his prosecution. See Robinson v. City of

N.Y., No. 15-cv-5850, 2017 WL 2414811, at *5 (S.D.N.Y. June 2,

2017) (“Although whether Defendants fabricated their

observations is factually disputed, if the jury were to credit

Plaintiff’s evidence, it could reasonably find for Plaintiff on

his fair trial claim.”).13

The defendants note that “a mere difference in the

testimony of the plaintiff and the officers about what occurred

13 While Officer Trotter was officially the arresting officer and signed the

criminal complaint, Pl.’s RTSMF ¶ 109; ECF No. 84-8, Officer Danoy assisted

in processing the plaintiff’s arrest paperwork, Danoy Depo., at 121. This

paperwork memorialized allegations that, the plaintiff argues, Officer Danoy

knew were false. Cf. Robinson, 2017 WL 2414811, at *5.

on the day of the arrest is not sufficient evidence to create a

genuine dispute of material fact as to whether [the officers]

intentionally falsified information or fabricated evidence.”

Lauderdale v. City of N.Y., No. 15-cv-1486, 2018 WL 1413066, at

*8 (S.D.N.Y. Mar. 19, 2018). But Lauderdale involved an

allegation of mistaken identification; the plaintiff there did

not dispute that the defendant officers had witnessed criminal

activity. See id. at *4–5. Here, by contrast, the plaintiff

disputes that the defendant officers witnessed any criminal

activity.

Accepting the plaintiff’s account as true, a reasonable

juror could find that the defendant officers fabricated evidence

that was likely to influence a jury’s decision, forwarded that

information to prosecutors, and that the plaintiff suffered a

deprivation of liberty as a result.14 Therefore summary judgment

is not warranted with respect to the plaintiff’s fair trial

claim.

D.

The next claim at issue is that Officers Trotter and Danoy

conspired to violate the plaintiff’s constitutional rights. To

prevail on this claim, the plaintiff must show: “(1) an

agreement between a state actor and a private party; (2) to act

14 The defendants do not argue in this motion that the plaintiff was not

deprived of his liberty as a result of any fabricated information forwarded

to prosecutors by the defendant officers.

in concert to inflict an unconstitutional injury; and (3) an

overt act done in furtherance of that goal causing damages.”

Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324–25 (2d Cir.

2002). Because a conspiracy must involve two or more legal

entities, “under the intracorporate conspiracy doctrine,

officers, agents and employees of a single corporate entity are

legally incapable of conspiring together.” Hartline v. Gallo,

546 F.3d 95, 99 n.3 (2d Cir. 2008). However, “the intracorporate

conspiracy doctrine does not apply to bar conspiracy claims

against individuals within a single entity when they are

pursuing personal interests wholly separate and apart from the

entity.” Ali v. Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y.

2015).

The plaintiff argues that this “personal stake exception”

applies in this case because, “given the vast web of factual

disputes, a reasonable jury could conclude that the officers

were driven by factors separate from the entity such as racial

animus or the procurement of overtime pay.” ECF No. 85, at 13.

But while there is a dispute of fact regarding whether an

assault occurred, the plaintiff’s allegations that the officers

lied about what they witnessed because of personal interests are

based on sheer speculation. The plaintiff notes that the vast

majority of people arrested by the defendant officers for sex

crimes were people of color. The plaintiff also notes that

Officers Trotter and Danoy received overtime pay as a result of

the plaintiff’s arrest. See id. But there is no evidence in the

record suggesting that the officers were motivated by racial

animus in this case or the procurement of overtime pay when they

arrested the plaintiff. The plaintiff’s speculation is

insufficient to defeat a motion for summary judgment. See

Moroughan v. Cnty. of Suffolk, 514 F. Supp. 3d 479, 529–30

(E.D.N.Y. 2021) (granting summary judgment dismissing § 1983

conspiracy claims against certain defendants where those claims

were based on “speculation and conjecture”). Accordingly, the

defendants’ motion for summary judgment is granted with respect

to the plaintiff’s § 1983 conspiracy claim.

E.

The next claim at issue is failure to intervene. “It is

widely recognized that all law enforcement officials have an

affirmative duty to intervene to protect the constitutional

rights of citizens from infringement by other law enforcement

officers in their presence.” Anderson v. Branen, 17 F.3d 552,

557 (2d Cir. 1994). “Liability may attach only 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.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512

(S.D.N.Y. 2008).

The plaintiff asserts this claim against Officers Trotter

and Danoy, Compl., at 16, but it is only conceivable against

Officer Danoy. When a law enforcement officer is a direct

participant in the alleged constitutional violation, a failure

to intervene theory is inapplicable. See Buchy v. City of White

Plains, No. 14-cv-1806, 2015 WL 8207492, at *3 (S.D.N.Y. Dec. 7,

2015) (excessive force). It is plain that Officer Trotter was a

direct participant in any constitutional violation that the

plaintiff suffered: Officer Trotter directed Officer Danoy to

arrest the plaintiff, and Officer Trotter’s observations of the

alleged assault—potentially in combination with the statement

Officer Trotter obtained from T.G.—formed the basis for the

plaintiff’s arrest. No reasonable juror could find that Officer

Danoy, but not Officer Trotter, directly participated in any

constitutional violation. Accordingly, the plaintiff’s failure

to intervene claim against Officer Trotter is dismissed.15

15 The plaintiff seeks to hold Officer Danoy liable both as a direct

participant in the alleged constitutional violations and under a failure to

intervene theory. Although Officer Danoy cannot be held liable under both of

these theories, he may be held liable under one or the other, and the

plaintiff is permitted to pursue both theories of liability in the

alternative, even though they are mutually inconsistent. See Buchy, 2015 WL

8207492, at *3; Cumberbatch v. Port Auth. of N.Y. and N.J., No. 03-cv-749,

2006 WL 3543670, at *11 (S.D.N.Y. Dec. 5, 2006).

With respect to Officer Danoy, there are disputes of

material fact as to whether he failed to intervene in the

alleged constitutional violations by Officer Trotter. Officer

Danoy testified that he was in the train car when the alleged

assault occurred and that he had a clear view of Officer

Trotter. Danoy Depo., at 84. Officer Trotter and T.G. were

holding onto the same subway pole, and no one was in between

them. T.G. Depo., at 96–99. Accepting the plaintiff’s account

that no assault occurred, a reasonable juror could conclude

that: a reasonable officer would have known that the plaintiff

was being arrested and prosecuted without probable cause,

Officer Danoy had a realistic opportunity to intervene, and

Officer Danoy did not take reasonable steps to intervene.

The defendants argue that Officer Danoy is shielded from

liability by the collective knowledge doctrine. “Under the

collective or imputed knowledge doctrine, an arrest or search is

permissible where the actual arresting or searching officer

lacks the specific information to form the basis for probable

cause or reasonable suspicion but sufficient information to

justify the arrest or search was known by other law enforcement

officials initiating or involved with the investigation.” United

States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001). “There can be

no collective knowledge, however, if the initiating officer

lacked probable cause -- i.e., in that event no other officer

can rely on the information of the initiating officer.”

Hernandez, 939 F.3d at 209. Because it is disputed whether

Officer Trotter had probable cause to arrest the plaintiff,

Officer Danoy is not entitled to summary judgment based on the

collective knowledge doctrine. Moreover, a reasonable juror

could conclude that Officer Danoy acted unreasonably when he

arrested the plaintiff at Officer Trotter’s direction given that

Officer Danoy did not witness any criminal activity even though

he had a clear view of Officer Trotter (who was sharing a subway

pole with T.G.) when the alleged assault occurred. See Panetta,

460 F.3d at 395 (“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.”).

Beyond seeking to dismiss the plaintiff’s failure to

intervene claim, the defendants argue that all of the

plaintiff’s claims against Officer Danoy fail because, in

general, “police officers are entitled to rely on the

allegations of fellow police officers.” Id. This argument fails

because it is disputed (1) whether any officer had probable

cause to arrest the plaintiff, and (2) whether Officer Danoy

acted reasonably in relying on Officer Trotter’s observations.

Accordingly, the claims against Officer Danoy are not

dismissed, and summary judgment as to the plaintiff’s failure to

intervene claim against Officer Danoy is denied.

F.

The defendants next argue that Officers Trotter and Danoy

are entitled to qualified immunity. “Qualified immunity protects

government officials from civil damages liability insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020).

“[W]hen an official raises qualified immunity as a defense, the

court must consider whether: (1) the official violated a

statutory or constitutional right, and (2) the right was

‘clearly established’ at the time of the challenged conduct.”

Id.

There is no question that the right to be free from arrest

and prosecution without probable cause was clearly established

at the time of the plaintiff’s arrest and prosecution. See

Gonzalez, 728 F.3d at 157; Caldarola v. Calabrese, 298 F.3d 156,

161 (2d Cir. 2002). However, because officers are entitled to

qualified immunity if they reasonably could have believed that

their actions were lawful, Officers Trotter and Danoy would be

entitled to qualified immunity if they had “arguable probable

cause” to arrest the plaintiff. See Simpson, 793 F.3d at 268;

Betts v. Shearman, 751 F.3d 78, 83 (2d Cir. 2014). Arguable

probable cause exists “if either (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.” Simpson, 793 F.3d

at 268.

The defendants argue that Officers Trotter and Danoy “are

entitled to qualified immunity because they reasonably believed,

even if mistaken, that there was probable cause to arrest

plaintiff, at a minimum, based on the voluntary statement

written by T.G. in Trotter’s memobook.” ECF No. 82, at 15. The

defendants note that police officers are generally entitled to

assume the veracity of civilian complaints. “[A] law enforcement

official has probable cause to arrest if he received his

information from some person, normally the putative victim or

eyewitness, unless the circumstances raise doubt as to the

person’s veracity.” Panetta, 460 F.3d at 395. But in this case,

viewing the evidence in the light most favorable to the

plaintiff, a reasonable juror could conclude that the

circumstances raise doubt as to T.G.’s veracity. Officer Trotter

approached T.G. using language suggesting that a crime had

occurred, T.G. did not describe her assailant in her written

statement even though she testified she glanced back at her

assailant, and a reasonable juror could disbelieve that T.G.

suffered a minutes-long assault while a police officer—who was

at most a few feet from T.G.—looked directly at her and failed

to intervene. Accordingly, the officers did not have arguable

probable cause to arrest the plaintiff based on T.G.’s written

statement.

Accepting the plaintiff’s version of events as true, no

criminal activity occurred on the train, and Officers Trotter

and Danoy arrested the plaintiff and assisted in his prosecution

knowing that they lacked probable cause. Accordingly, the Court

cannot conclude at this stage that there was arguable probable

cause to arrest the plaintiff, and the officers are not entitled

to qualified immunity.

G.

The defendants also move for summary judgment dismissing

the plaintiff’s Monell claim against the City.

A municipality or other local government may be liable

under [§ 1983] if the governmental body itself

“subjects” a person to a deprivation of rights or

“causes” a person “to be subjected” to such deprivation.

But, under § 1983, local governments are responsible

only for their own illegal acts. They are not vicariously

liable under § 1983 for their employees’ actions.

Plaintiffs who seek to impose liability on local

governments under § 1983 must prove that action pursuant

to official municipal policy caused their injury.

Official municipal policy includes the decisions of a

government’s lawmakers, the acts of its policymaking

officials, and practices so persistent and widespread as

to practically have the force of law.

Connick v. Thompson, 563 U.S. 51, 60–61 (2011). The plaintiff

pursues several theories of Monell liability, although the

theories are not clearly delineated. First, the plaintiff argues

that the City failed to train or supervise its officers with

respect to how to approach and communicate with potential sex

crime victims. Second, and relatedly, the plaintiff argues that

the City failed to train or supervise its officers with respect

to the use of the “Victim’s Statement of Allegations Form”—a

particular form intended to record the accounts of crime

victims. Third, the plaintiff pursues an amorphous theory

relating to the NYPD’s alleged use of arrest quotas. Finally,

the plaintiff pursues a theory based on an equal protection

violation, although the Complaint does not assert an equal

protection claim.

1.

“In limited circumstances, a local government’s decision

not to train certain employees about their legal duty to avoid

violating citizens’ rights may rise to the level of an official

government policy for purposes of § 1983. A municipality’s

culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Id. at 61. “To

satisfy the statute, a municipality’s failure to train its

employees in a relevant respect must amount to deliberate

indifference to the rights of persons with whom the untrained

employees come into contact.” Id. The Second Circuit Court of

Appeals has framed the deliberate indifference inquiry in three

parts: “First, the plaintiff must show that a policymaker knows

to a moral certainty that her employees will confront a given

situation.” “Second, the plaintiff must show that the situation

either presents the employee with a difficult choice of the sort

that training or supervision will make less difficult or that

there is a history of employees mishandling the situation.”

“Finally, the plaintiff must show that the wrong choice by the

city employee will frequently cause the deprivation of a

citizen’s constitutional rights.” Walker v. City of N.Y., 974

F.2d 293, 297–98 (2d Cir. 1992).

“‘Deliberate indifference’ is a stringent standard of

fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action. Thus, when city

policymakers are on actual or constructive notice that a

particular omission in their training program causes city

employees to violate citizens’ constitutional rights, the city

may be deemed deliberately indifferent if the policymakers

choose to retain that program.” Connick, 563 U.S at 61. “A

pattern of similar constitutional violations by untrained

employees is ordinarily necessary to demonstrate deliberate

indifference for purposes of failure to train.” Id. at 62; see

also Hernandez, 939 F.3d at 206–07.

All of the plaintiff’s Monell theories trace back to the

NYPD’s “enhanced approach” to combating subway sex crime, an

initiative started by the NYPD Transit Bureau in 2014. Pl.’s

RTSMF ¶¶ 35–36. The initiative consisted of advertising

campaigns designed “to raise awareness of the seriousness with

which the NYPD takes sexually motivated offenses and also to

publicize the ways in which sexually motivated offenses could be

reported.” Defs.’ SMF ¶ 38. The initiative “also consisted of

specialized trainings for police officers, the placement of

additional plainclothes female police officers in the transit

system, and the creation of a victim impact statement form.” Id.

¶ 39. The parties agree that, as a result of the NYPD’s enhanced

approach, complaints of—and arrests for—sexually motivated

offenses increased. Id. ¶¶ 40–41. From the beginning of 2014 to

the end of 2016, the year the plaintiff was arrested, there was

a 39.5% increase in forcible touching and third-degree sex abuse

arrests by the NYPD. Pl.’s RTSMF ¶ 153. According to the

plaintiff, a vast majority of the increase in arrests was a

product of “officer-initiated enforcement,” “where plainclothes

officers would approach a prospective complainant, identify

themselves as police, obtain a written statement, and effect the

arrest.” Id. ¶ 117.

The plaintiff asserts that the NYPD had notice that “the

success of the officer’s approach and communication with

prospective victims was an essential component to the ‘enhanced

approach.’” ECF No. 85, at 19.16 The plaintiff also emphasizes

that, although the number of arrests for sex crimes increased in

2016, the percentage of cases that were sealed by operation of

law remained relatively unchanged from 2015. Id.; see Defs.’ SMF

¶¶ 47–48.17 The plaintiff argues that the NYPD did not train its

officers adequately with respect to how to approach and

communicate with potential victims of sex crimes, and that a

wrong choice by officers in this regard frequently caused the

deprivation of constitutional rights.

This theory of Monell liability fails because the plaintiff

has adduced no evidence that any failure to train officers with

respect to approaching potential victims has resulted in

constitutional deprivations. Indeed, far from showing “[a]

pattern of similar constitutional violations by untrained

employees,” Connick, 563 U.S. at 62, the plaintiff has not

produced evidence of even one prior constitutional violation

that can be linked to this alleged training failure. The

16 In support of this conclusion, the plaintiff cites (1) a statement by NYPD

Transit Chief Joseph Fox acknowledging that subway sex crime victims are

generally more comfortable speaking with female officers than male officers,

and (2) a statement by Chief Fox that the NYPD had formed a training

partnership with a group called Hollaback to “help [NYPD] officers understand

the unique nature of these personal crimes and establish victim’s trust.” ECF

No. 85, at 19.

17 Under New York law, records of criminal proceedings that terminate in favor

of the accused person are generally sealed. See N.Y. Crim. Proc. Law § 160.50

(McKinney 2021). Accordingly, sealed arrests reflect cases that terminated in

favor of the accused.

plaintiff asserts that constitutional deprivations have occurred

frequently because nearly half of the forcible touching and

third-degree sex abuse arrests in 2016 were sealed. See ECF No.

85, at 21; Defs.’ SMF ¶ 48. But the plaintiff has provided no

evidence that the sealed arrests at issue involved

constitutional deprivations; the plaintiff has also provided no

evidence that any training deficiency with respect to

approaching potential victims played any role in the sealing of

those arrests. Accordingly, the plaintiff has failed to show

that the City was on “actual or constructive notice that a

particular omission in [its] training program causes city

employees to violate citizens’ constitutional rights.” Connick,

563 U.S. at 61; see also Hernandez, 939 F.3d at 207.18

18 While the Supreme Court has left open the possibility “that the

unconstitutional consequences of failing to train could be so patently

obvious that a city could be liable under § 1983 without proof of a pre-

existing pattern of violations,” Connick, 563 U.S. at 64; see City of Canton,

Ohio v. Harris, 489 U.S. 378, 390 & n.10 (1989), this is not such a case. The

hypothetical example of single-incident liability posed by the Court in

Canton involved a city that “deploys [] armed officers into the public to

capture fleeing felons without training the officers in the constitutional

limitation on the use of deadly force. Given the known frequency with which

police attempt to arrest fleeing felons and the predictability that an

officer lacking specific tools to handle that situation will violate

citizens’ rights, the Court theorized that a city’s decision not to train the

officers about constitutional limits on the use of deadly force could reflect

the city’s deliberate indifference to the highly predictable consequence,

namely, violations of constitutional rights.” Connick, 563 U.S. at 63–64. In

this case, no reasonable juror could conclude that the violation of

arrestees’ constitutional rights is the “highly predictable consequence” of

failing to train officers with respect to approaching potential victims of

sex crimes; it is far from “patently obvious,” id. at 64, that an officer

approaching a potential victim by saying something along the lines of “I saw

what happened” would result in a false arrest or any other constitutional

violation. This case is also unlike the Canton hypothetical because the

record establishes (and the plaintiff does not dispute) that officers receive

general training with respect to approaching crime victims. See Fox Depo.,

This theory of Monell liability also fails for the

independent reason that the plaintiff cannot show causation.

Monell plaintiffs must “identify a specific deficiency in the

city’s training program and establish that that deficiency is

‘closely related to the ultimate injury,’ such that it ‘actually

caused’ the constitutional deprivation.” Amnesty Am. v. Town of

West Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (Sotomayor, J.)

(quoting Canton, 489 U.S. at 391). The plaintiff must show

causation in order to “ensure that a failure to train theory

does not collapse into respondeat superior liability.” Id. at

130. In this case, the plaintiff alleges that Officer Trotter

directed Officer Danoy to arrest the plaintiff even though

Officer Trotter knew that no crime had occurred, and that

Officer Danoy failed to intervene. These are allegations of

intentional misconduct by the officers. Any injury suffered by

the plaintiff was the direct result of that intentional

misconduct, not the suggestive language used by Officer Trotter

ECF No. 87-17, at 30–32, 112; Ponella Depo., at 65. The plaintiff instead

alleges that the NYPD fails to train its officers with respect to approaching

sex crime victims in particular. But because officers are trained with

respect to approaching crime victims generally, this is really a challenge to

the adequacy of officers’ training with respect to sex crime victims, not a

challenge to the existence of such training. Such claims cannot proceed under

the single-incident theory hypothesized in Canton. See Breitkopf v. Gentile,

41 F. Supp. 3d 220, 254–55 (E.D.N.Y. 2014); cf. Connick, 563 U.S. at 67

(noting “the utter lack of an ability to cope with constitutional situations

that underlies the Canton hypothetical”). Accordingly, the plaintiff’s

attempt to invoke the single-incident theory in this case fails. Because it

is far from obvious that the alleged training deficiency would cause

constitutional violations, applying the single-incident theory in this case

would serve to sidestep Connick’s notice requirement entirely.

in approaching T.G. The plaintiff therefore cannot show that the

alleged injury “occurred as the result of a municipal policy

rather than as a result of isolated misconduct by a single

actor.” Id.; see also id. (“[P]laintiffs have provided no

evidence tending to rule out those causes of the excessive force

that would not support municipal liability, . . . and therefore

no reasonable factfinder could conclude that the excessive force

occurred as a result of training deficiencies.”); Hernandez, 939

F.3d at 207–08 (asking if the challenged policy was the but-for

cause of the alleged injury). Any training to avoid using

suggestive language in approaching potential sex crime victims

would not have prevented the intentional misconduct that is the

cause of the plaintiff’s alleged injuries.

In sum, the City is not liable under § 1983 for any failure

to train its officers with respect to approaching sex crime

victims because (1) there is no pattern of similar

constitutional violations and this is not a case where any

failure to train was so obvious as to give rise to single-

incident liability; and (2) the plaintiff cannot show that his

alleged injuries were caused by the allegedly deficient

training.

2.

The plaintiff’s second failure to train theory—namely, that

the City failed to train its officers on the use of the Victim’s

Statement of Allegations Form—fails for similar reasons. The

plaintiff has not provided evidence of any past constitutional

violations caused by an officer’s failure to use this specific

form. The plaintiff also cannot show that “the unconstitutional

consequences” of any failure to train officers on using the form

would be “so patently obvious” that the City could be held

liable absent a pre-existing pattern of violations. Connick, 563

U.S. at 64. Finally, the plaintiff cannot show that any

constitutional violation in this case was caused by any failure

to train with respect to use of the form. There is nothing in

the record to suggest that Officer Trotter’s use of a more

detailed form to obtain T.G.’s statement would have changed

T.G.’s account. Moreover, because the plaintiff alleges that the

officers arrested him knowing that they lacked probable cause,

the plaintiff cannot show that T.G.’s written statement (which

stated only that an assaulted occurred and did not describe the

assailant) caused the plaintiff’s injuries.

Accordingly, the plaintiff’s failure to train theory with

respect to use of the Victim’s Statement of Allegations Form

fails.

3.

The plaintiff’s third theory of Monell liability relates to

the NYPD’s alleged use of arrest quotas in connection with its

enhanced approach to combating subway sex crime. The plaintiff

cites a variety of inadmissible evidence in support of this

theory. For example, the plaintiff cites allegations and factual

findings from other cases, some of which are currently pending.

Those allegations and findings are not admissible evidence in

this case. See, e.g., Blue Cross and Blue Shield of N.J., Inc.

v. Philip Morris, Inc., 141 F. Supp. 2d 320, 323 (E.D.N.Y. 2001)

(Weinstein, J.) (“Judicial findings in other cases proffered as

evidence are generally characterized as inadmissable hearsay.”).

The plaintiff also cites the court’s description of NYPD

documents in Floyd v. City of N.Y., 959 F. Supp. 2d 540, 600

(S.D.N.Y. 2013), but the plaintiff does not establish that those

documents accurately describe NYPD practices as of January 2016,

when the plaintiff was arrested.

The plaintiff also cites extensively to an affidavit of a

former NYPD transit officer submitted in connection with another

case. See ECF No. 85, at 25–26. This affidavit is inadmissible

hearsay offered for the truth of the matters asserted. The

hearsay exception for former testimony does not apply because

there is no showing that the witness is unavailable; the

plaintiff cites an affidavit, not testimony that “was given . .

. at a trial, hearing, or lawful deposition”; and there is no

showing that the City had “an opportunity and similar motive to

develop” the testimony. Fed. R. Evid. 804(b)(1). The plaintiff’s

invocation of this third-party affidavit also constitutes an

impermissible attempt to circumvent the disclosure requirements

of Federal Rule of Civil Procedure 26, requirements that would

have allowed the City to depose the affiant about his knowledge

of facts that are relevant to this case.

These inadmissible materials cannot be considered at the

summary judgment stage. See Fed. R. Civ. P. 56(c); Major League

Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d

Cir. 2008) (“In ruling on a motion for summary judgment, the

district court may rely on any material that would be admissible

or usable at trial.”). Moreover, none of these inadmissible

materials establish that any quota system played any role in the

plaintiff’s arrest.

In terms of admissible evidence, the plaintiff points to

increased arrest numbers and subway sex crime reports in the

years following the NYPD’s implementation of its enhanced

approach to combating subway sex crime. ECF No. 85, at 24. But

this is not evidence of an unconstitutional practice or policy

by the City: part of the NYPD’s sex crime strategy was to

increase reporting of what it perceived to be an underreported

crime. See Defs.’ SMF ¶ 38; Fox Depo., at 21–22.

The plaintiff has provided no evidence of a quota system or

any other unconstitutional pressure to increase arrests in

connection with the NYPD’s enhanced approach to combating subway

sex crime. The plaintiff has also provided no evidence that any

such pressure played any role in his arrest. Accordingly, this

theory of Monell liability also fails.

4.

The plaintiff’s final Monell theory is framed as an “equal

protection violation.” ECF No. 85, at 27. The plaintiff did not

assert a standalone equal protection claim in the Complaint, and

the phrase equal protection does not appear in the Complaint.

“It is well settled that a litigant may not raise new claims not

contained in the complaint in opposition to a motion for summary

judgment.” Mediavilla v. City of N.Y., 259 F. Supp. 3d 82, 106

(S.D.N.Y. 2016).

In any event, any Monell theory based on an equal

protection claim would fail. Equal protection claims require

proof of discriminatory purpose: that is, “that the City

selected or reaffirmed a particular course of action at least in

part because of, not merely in spite of, its adverse effects

upon an identifiable group.” Davis v. City of N.Y., 959 F. Supp.

2d 324, 360 (S.D.N.Y. 2013). There is no proof whatsoever of

discriminatory purpose in this case. That the NYPD’s enhanced

approach to combating subway sex crime involved placing

personnel in areas where sex offenders frequent, Pl.’s RTSMF ¶

172, and the fact that people of color are disproportionately

arrested for forcible touching and third-degree sex abuse, id.

¶¶ 173–78, do not establish that race was a motivating factor in

the NYPD’s policy for combating subway sex crime. The plaintiff

has also provided no evidence that his status as a Pakistani-

born United States citizen motivated his arrest. Accordingly, to

the extent the plaintiff asserts a theory of Monell liability

based on an equal protection violation, that claim also fails.

III.

The plaintiff also brings a motion for sanctions under

Federal Rule of Civil Procedure 11. The plaintiff argues that

sanctions are warranted because defense counsel asserts in the

defendants’ summary judgment papers that Inspector Ponella did

not testify as a Rule 30(b)(6) witness even though, the

plaintiff claims, Inspector Ponella was in fact a 30(b)(6)

witness testifying on behalf of the City. The motion for

sanctions is denied.

The plaintiff initially sought to depose NYPD Transit Chief

Fox about NYPD policy. In light of Chief Fox’s retirement, then-

defense counsel reached out to the plaintiff’s counsel asking if

the plaintiff would consider deposing “a different high ranking

official that worked closely with Fox on the relevant policies

and crime figures for the time frame that is relevant to the

complaint.” ECF No. 105-4. Plaintiff’s counsel consented to this

request, on the condition that the new witness could “testify

authoritatively” about the same policy as Chief Fox. Id.

Inspector Ponella was produced for a deposition on November

22, 2019, apparently pursuant to this agreement. As a

“courtesy,” defense counsel produced Inspector Ponella without

requiring a subpoena or a notice of deposition. See Ponella

Depo., at 112. The defendants were not served with a Rule

30(b)(6) deposition notice prior to Inspector Ponella’s

deposition. Indeed, the only 30(b)(6) notice served on the

defendants in this case was served on December 10, 2019, weeks

after Inspector Ponella’s deposition. See Depoian Decl., ECF No.

94 ¶ 5.

The plaintiff argues that Inspector Ponella nonetheless

testified as a 30(b)(6) witness. The plaintiff attempts to

downplay the fact that there was no 30(b)(6) notice prior to

Inspector Ponella’s deposition by arguing that plaintiff’s

counsel’s description of the anticipated deposition topics was

“consistent with” the inclusion of an unnamed 30(b)(6) witness

as a “person[] with pertinent information” in the plaintiff’s

Rule 26 disclosure. See ECF No. 105-3. The plaintiff also argues

that, at Inspector Ponella’s deposition, “colloquy between

counsel confirms all sides understood that Ponella was produced

at minimum as a policy witness.” ECF No. 104, at 4. The

plaintiff also argues that the defendants waived 30(b)(6) notice

with respect to Inspector Ponella because they did not object to

the lack of a 30(b)(6) notice until nearly two years after

Inspector Ponella’s deposition.

These arguments are unpersuasive. First, the fact that the

defendants had notice that the plaintiff intended to depose a

30(b)(6) witness does not transform every witness with personal

knowledge of NYPD policy into a 30(b)(6) witness. A 30(b)(6)

witness speaks for an organization and has the obligation to

find out facts (of which the witness may not have personal

knowledge) so that the witness can speak for the entity. See

Fed. R. Civ. P. 30(b)(6). However, witnesses who are not deposed

pursuant to Rule 30(b)(6) can of course testify regarding

policies about which they have personal knowledge. The plaintiff

is therefore wrong to argue that Inspector Ponella must have

been a Rule 30(b)(6) witness because “his only relevance as a

witness could be to testify about the policies underlying

plaintiff’s Monell claim.” ECF No. 104, at 12. The plaintiff is

also wrong to suggest that all parties understood that Inspector

Ponella was testifying as a 30(b)(6) witness because he was

discussing NYPD policy. To the contrary, at Inspector Ponella’s

deposition, then-defense counsel objected to the scope of

questioning that appeared to be appropriate for a 30(b)(6)

witness rather than “just a fact witness.” Ponella Depo., at

112.

The plaintiff’s argument that the defendants waived formal

30(b)(6) notice with respect to Inspector Ponella also fails.

The defendants did not waive 30(b)(6) notice by producing

Inspector Ponella without a subpoena or notice of deposition. If

the plaintiff wanted to conduct a deposition pursuant to Rule

30(b)(6), he should have sent the defendants a formal 30(b)(6)

notice, as he ultimately did in this case. Depoian Decl. ¶ 5.

For avoidance of doubt, the Court concludes that Inspector

Ponella did not testify as a 30(b)(6) witness.19 In any event,

the parties’ dispute does not appear to have any significance.

Defense counsel insists that Inspector Ponella’s testimony “is

not binding on the City” because Inspector Ponella did not

testify as a 30(b)(6) witness. ECF No. 93, at 9. But facts about

which Inspector Ponella has personal knowledge, including facts

relating to NYPD policy, could still form the basis for

liability against the City. And the plaintiff fails to point to

any instance in which Inspector Ponella’s status as a fact

witness as opposed to a 30(b)(6) witness makes any difference.

The plaintiff moves for sanctions under Rule 11(b)(3),

which provides that, “[b]y presenting to the court a pleading,

19 The plaintiff also highlights the fact that defense counsel incorrectly

referred to Inspector Ponella as a 30(b)(6) witness in a letter to the Court

seeking an extension of discovery. See ECF Nos. 105–15, 105–18. Defense

counsel admits that this reference was an error, and the Court agrees with

the defendants that this after-the-fact misstatement does not transform

Inspector Ponella into a 30(b)(6) witness.

written motion, or other paper . . . an attorney . . . certifies

that to the best of the person’s knowledge, information, and

belief, formed after an inquiry reasonable under the

circumstances . . . the factual contentions have evidentiary

support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further

investigation or discovery.” Liability under this rule requires

“a showing of objective unreasonableness on the part of the

attorney or client signing the papers.” ATSI Commc’ns., Inc. v.

Shaar Fund, Ltd., 579 F.3d 143, 150 (2d Cir. 2009). There was no

objective unreasonableness on the part of defense counsel in

this case.20

IV.

Finally, the defendants bring a motion to exclude the

affidavit of the plaintiff’s expert, Dr. Franklin. Because the

Court did not need to consider Dr. Franklin’s affidavit in

ruling on the defendants’ motion for summary judgment, the

defendants’ motion to exclude is denied without prejudice. The

defendants may assert specific objections with respect to Dr.

Franklin’s anticipated testimony in advance of trial.

20 The plaintiff’s attempt to invoke equitable estoppel, which is only

available against the Government “in the most serious of circumstances” and

“upon a showing of affirmative misconduct,” Rojas-Reyes v. I.N.S., 235 F.3d

115, 126 (2d Cir. 2000), also fails because there was no affirmative

misconduct on the part of defense counsel.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed ahove, the

arguments are either moot or without merit. For the reasons

explained above, the defendants’ motion for summary judgment is

granted in part and denied in part. Summary judgment is granted

with respect to the following claims: § 1983 conspiracy, Monell,

and failure to intervene with respect to Officer Trotter.

summary judgment is denied with respect to the following claims: □

false arrest, malicious prosecution, fabrication of evidence,

and failure to intervene with respect to Officer Dancy. The

plaintiff’s motion for sanctions is denied. The defendants’

Daubert motion is denied without prejudice.

The Clerk is directed to close ECE Nos. 72, 81, 96, and

103.

SO ORDERED.

ed: ¥ y .

metess Kegon Bone

SAIN GC [(sebse

Unitéd States District Judge

40