# Brandon v. City Of New York

> District Court, S.D. New York · July 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10352917

## Case

- **Court:** District Court, S.D. New York
- **Decided:** July 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10352917

## How later opinions describe it (automated extraction)

- explaining that “continuing probable cause is a complete defense to a constitutional claim of malicious prosecution”

## Opinion text

Usd DUNT
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOC #:
ee ee eee ee ee ee ee ee ee ee ee eee ee eee eee HHH HX
7-27-2023
FRANK BRANDON, DATE FILED: __"<
Plaintiff,
-against- 20-cv-7784 (LAK) (SLC)

THE CITY OF NEW YORK, et al.,
Defendants.
ee ee eee ee ee ee ee ee ee ee ee eee ee eee eee HHH HX

MEMORANDUM AND ORDER

LEwis A. KAPLAN, District Judge.
Plaintiff Frank Brandon seeks relief pursuant to 42 U.S.C. § 1983 against the City of
New York (the “City”), New York City Police Department (“NYPD”) Officer Tuhin Khan, and NYPD
Sergeant Dumanovsky, arising out of his arrest on November 19, 2019 following a vehicular accident
in upper Manhattan. (Dkt 11) Following the close of fact discovery, defendants moved for summary
judgment (Dkt 43) under Federal Rule of Civil Procedure 56, which the plaintiff opposed (Dkt 53).
Magistrate Judge Sarah L. Cave filed a report and recommendation (the “R&R”) that recommends
granting defendants’ motion for summary judgment and dismissing all of plaintiff's claims. (Dkt 63)
Raising substantially the same arguments made in his opposition to the motion, plaintiff objects to the
R&R to the extent that 1t recommends dismissal of his claims for false arrest and malicious prosecution
against Officer Khan.' As set forth below, plaintiff’s objections are overruled and defendants’ motion
for summary judgment is granted in its entirety.
False Arrest Claim
For the reasons set forth by Magistrate Judge Cave, there 1s no genuine issue of material
fact. Officer Khan is entitled to summary judgment dismissing the false arrest claim on the merits.
Plaintiff objects to the R&R’s conclusion that Officer Khan had probable cause to arrest
him on November 19, 2019 following his vehicular accident. Probable cause exists when officers
“have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient
Plaintiff does not oppose dismissal of his claims against the City and Sergeant Dumanovsky.
See Dkt 63, at 7-8; Dkt 64, at 3. Accordingly, defendants’ motion for summary judgment
is granted as to the City and Sergeant Dumanovsky and plaintiffs claims against those
defendants are dismissed.

2
to warrant a person of reasonable caution in the belief that the person to be arrested has committed or
is committing a crime.”2
As Magistrate Judge Cave concluded, the undisputed evidence in the record
demonstrates that Officer Khan was justified in believing that plaintiff had operated a motor vehicle
while under the influence of alcohol or drugs in violation of New York Vehicle and Traffic Law
(“VTL”) § 1192. It is undisputed that an eyewitness told Officer Khan that the plaintiff drove into the
left lane and struck his vehicle in a head-on collision. At the scene of the accident, Officer Khan
observed plaintiff having difficulty balancing and removing his driver’s license from his wallet, which
he dropped in the process. Plaintiff then failed a series of tests conducted at the 28th Precinct,
including testing administered by a Drug Recognition Expert (“DRE”), who observed that plaintiff had
droopy eyelids, foul breath, and constricted pupils and concluded that plaintiff was under the influence
of a narcotic analgesic. Accordingly, viewing the facts and circumstances as they appeared at the time
of arrest, a reasonable person in the position of Officer Khan would be warranted in the belief that the
plaintiff had operated a vehicle while under the influence of an intoxicating drug.3
Plaintiff’s argument that Officer Khan should have “rule[d] out a medical emergency
before taking plaintiff into custody” is unpersuasive.4 Once Officer Khan had a reasonable basis for
believing there was probable cause for an arrest, he was “under no obligation to conduct further
investigation” to rule out every possible claim of innocence.5 In all events, it is undisputed that Officer
Khan asked plaintiff if he required medical attention, and plaintiff responded that he did not.6 The
record thus establishes the existence of probable cause regardless of whether “other exculpatory factors
2
Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting Posr v. Ct. Officer
Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999)).
3
See Hoyos v. City of New York, 999 F. Supp. 2d 375, 386–87 (E.D.N.Y. 2013) (quoting
People v. Farrell, 89 A.D.2d 987, 988 (2d Dep’t 1982)).
4
Dkt 64, at 9.
5
Guerrero v. City of New York, No. 12-cv-2916 (RWS), 2013 WL 5913372, at *4 (S.D.N.Y.
Nov. 4, 2013); see also Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“[O]nce
a police officer has a reasonable basis for believing there is probable cause, he is not required
to explore and eliminate every theoretically plausible claim of innocence before making an
arrest.”); Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) (“Once officers possess facts
sufficient to establish probable cause, they are neither required nor allowed to sit as
prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and
not to finally determine guilt through a weighing of the evidence.”).
6
See Dkt 53, at 5; see also Pellegrino Decl., Ex. A, at 10:8–9.
3
were [] considered” at the time of plaintiff’s arrest.7
I have considered plaintiff’s other arguments and concluded that they are without merit.
Malicious Prosecution Claim
Plaintiff objects also to the R&R’s conclusion that Officer Khan had probable cause
to initiate a prosecution against him and that there is no evidence of malice in the record.8 The
existence of probable cause to support an arrest precludes a plaintiff from establishing a malicious
prosecution claim “unless [he] can point to facts uncovered after the arrest that negated that probable
cause by making apparent the ‘groundless nature of the charges.’”9
As set forth above and in the R&R, Officer Khan had probable cause to arrest the
plaintiff. In his objection, plaintiff relies on the same intervening fact that already was considered and
soundly rejected by Magistrate Judge Cave. Namely, the “sole intervening fact to which [plaintiff]
points as vitiating the probable cause that existed when he was arrested . . . is Officer Khan’s testimony
that, on the day [plaintiff] returned to the 32d Precinct on November 23, 2019, another officer told him
that [plaintiff] had suffered a stroke.”10 Yet, as Magistrate Judge Cave reasoned, plaintiff has failed
to “adduce[] any evidence showing that Officer Khan learned of [this statement] before he issued the
DAT.”11 Furthermore, Officer Khan “did not recall whether he learned about [plaintiff’s] stroke before
or after he issued the DAT.”12 Even assuming that Officer Khan was informed of the plaintiff’s stroke
before issuing the DAT, the fact that plaintiff suffered a stroke does not vitiate the probable cause that
existed on the basis of the eyewitness statements made to Officer Khan, Officer Khan’s undisputed
7
See Dkt 64, at 5.
In all events, “reasonable officers could at least disagree” about whether probable cause
existed to arrest plaintiff, such that Officer Khan is entitled to qualified immunity. See
Hoyos, 999 F. Supp. 2d at 391.
8
See Dkt 64, at 10–11.
9
Rodriguez v. City of New York, 535 F. Supp. 2d 436, 443 (S.D.N.Y. 2008) (quoting Lowth
v.Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)); see also Betts v. Shearman, 751
F.3d 78, 82 (2d Cir. 2014) (explaining that “continuing probable cause is a complete defense
to a constitutional claim of malicious prosecution”).
10
Dkt 63, at 17.
11
Id.
12
Id.
4
observations of the plaintiff after the accident, and the DRE’s evaluation of the plaintiff at the 28th
Precinct.13
Additionally, plaintiff again argues that actual malice can be inferred by the absence
of probable cause.14 Here, plaintiff repeats his argument that probable cause dissipated when Officer
Khan was informed that the plaintiff had suffered a stroke.15 Yet, as Magistrate Judge Cave properly
found, plaintiff offers no evidence that Officer Khan acted “with improper or wrongful motives” or
that he acted “in reckless disregard of [his] rights[]” in issuing the DAT. Because there is “no evidence
of malice in the record,” there is no genuine issue of material fact as to the malice element of plaintiff’s
malicious prosecution claim.16
Conclusion
The objections to the R&R are overruled and the motion for summary judgment
(Dkt 43) dismissing the case is granted in its entirety. The Clerk shall enter judgment and close the
case.
SO ORDERED.
Dated: July 27, 2023
/s/ Lewis A. Kaplan
____________________________________________
Lewis A. Kaplan
United States District Judge
13
See Dkt 63, at 17–18.
As with false arrest, an arresting officer is entitled to qualified immunity from a malicious
prosecution claim if “(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.” O’Neill v. Town of Babylon, 986 F.2d 646, 649–50 (2d Cir.
1993) (internal quotation marks omitted). At a minimum, given the undisputed facts in the
record, reasonable officers could disagree about whether probable cause to prosecute
plaintiff existed, and Officer Khan therefore is entitled to qualified immunity. See Hoyos,
999 F. Supp. 2d at 390–91.
14
Dkt 64, at 12 (citing Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003)).
15
See Dkt 53, at 14–15; Dkt 64, at 13.
16
See Hayes v. City of New York, No. 12-cv-4370 (LAK), 2014 WL 4626071, at *11 (S.D.N.Y.
Sept. 15, 2014).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10352917. Public record. Not legal advice.