RDK NY Inc. v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RDK NY INC. d/b/a GREEN ANGEL CBD,

OREN LEVY and RONEN LEVY,

MEMORANDUM & ORDER

Plaintiffs, 21-CV-01529(EK)(JAM)

-against-

THE CITY OF NEW YORK, POLICE OFFICER

RODNEY GREENIDGE, POLICE OFFICER

JOSHUA GANSHAW, and FEDEX GROUND

PACKAGE SYSTEM, INC.

Defendants.

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ERIC KOMITEE, United States District Judge:

This case arises out of the seizure of a substantial

volume of hemp products. Oren Levy owns and operates RDK NY,

Inc., which does business as “Green Angel CBD.” Levy ordered

the hemp from a company in Vermont and arranged for it to be

delivered to his brother Ronen in Brooklyn. Along the way,

however, FedEx and certain police officers came to believe that

the shipment contained marijuana. When Ronen Levy arrived at a

New York City police precinct to retrieve the packages, he was

arrested, held overnight, and charged with multiple felonies.

These charges were later dismissed. While the hemp was in

police custody, however, it spoiled and was rendered unsaleable.

The three plaintiffs — both Levy brothers and RDK NY —

sued, asserting a number of federal- and state-law claims.

Before the Court are two motions to dismiss: one filed by FedEx

Ground Package System, Inc. (“FedEx”), and one by the City of

New York, Officer Rodney Greenidge, and Officer Joshua Ganshaw

(the “Municipal Defendants”). For the reasons discussed below,

these motions are granted in part and denied in part.

Background

The following facts are taken from the Third Amended

Complaint (“TAC” or the “complaint“), ECF 66, and are assumed to

be true unless otherwise indicated.

Oren Levy was, at all times relevant to this case, in

the business of buying and selling hemp products through RDK NY,

Inc. (“RDK”). TAC ¶ 21. In November 2019, he placed an order

to purchase 106 pounds of hemp products from Fox Holler Farms in

Vermont for $17,000. Id. ¶ 22; see also id. ¶ 38 (social-media

post showing dozens of bags of confiscated product). Although

he was initially planning to receive the shipment himself, he

ended up being hospitalized and arranged for it to be sent to

his brother Ronen’s address in Brooklyn. Id. ¶ 23.

After FedEx accepted the shipment, its driver came to

believe that the packages contained marijuana. The company

reported this observation to police in Vermont, who then

“seized” the package and notified Oren1 that they had done so.

1 This order will sometimes refer to Oren and Ronen Levy by their first

names, in light of the shared surname.

Id. ¶¶ 24-25. After reviewing “documents provided by Fox Holler

Farm contained in the shipment,” however, the Vermont police

concluded that the shipment contained “federally legal hemp

product” and returned the packages to FedEx. Id. ¶¶ 26-27.

Despite this outcome, the “same” FedEx driver “took

the shipment to the 75th Police Precinct in Brooklyn, New York,

and “falsely” reported to officers there that it contained

marijuana. Id. ¶¶ 28-29.2 The driver also presented the same

Fox Holler shipping documents to those officers. Id. ¶ 30. The

officers maintained custody of the packages, and on November 2,

2019, when Ronen “voluntarily arrived” at the precinct to

retrieve the hemp, Officers Greenidge and Ganshaw arrested him.

Id. ¶¶ 33-34. Ronen was charged in Kings County with multiple

felonies, including criminal possession of marijuana, id. ¶ 35,

though these charges were ultimately dismissed. Id. ¶ 99. The

shipment was also seized and, while in the police’s custody,

became “unfit for sale to the general public.” Id. ¶ 62.

The plaintiffs have brought multiple claims, breaking

down into two categories: claims arising from the seizure of the

shipment, and claims arising out of the arrest and prosecution

2 FedEx appears to deny that the same driver alerted both states’

police, writing that “[s]eparate FedEx Ground personnel in separate stations

(Vermont and New York) took the reasonable step of reporting to law

enforcement that the packages in question may have contained marijuana.”

FedEx Defs.’ Mem. in Supp. of Mot. to Dismiss (“FedEx Mem.”) 20, ECF No. 68-

3; see also id. (asserting that FedEx’s “‘left hand’ in New York did not know

what had previously transpired in Vermont”). But the Court is of course

bound, at this stage, to accept plaintiffs’ allegations as true.

of Ronen. Given the assertion of multiple claims by multiple

plaintiffs against multiple defendants, a chart of these claims

is appended hereto as Appendix A.

This case was initially brought in state court but was

removed to this Court. Notice of Removal, ECF No. 1. The

plaintiffs moved to remand the action to state court, but I

denied that motion, largely on the basis that Oren and RDK’s

state law claims were completely preempted by the Carmack

Amendment. Mem. & Order, ECF No. 41. The plaintiffs have since

amended their complaint multiple times, and the operative

complaint is the Third Amended Complaint.

Legal Standard

On a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), “the court’s task is to assess the legal

feasibility of the complaint.” Lynch v. City of New York, 952

F.3d 67, 75 (2d Cir. 2020).3 In doing so, the Court “must take

the facts alleged in the complaint as true, drawing all

reasonable inferences in [the plaintiff’s] favor.” In re NYSE

Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir.

2007). “In

adjudicating a Rule 12(b)(6) motion, a district court must

confine its consideration to facts stated on the face of the

3 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

complaint, in documents appended to the complaint or

incorporated in the complaint by reference, and to matters of

which judicial notice may be taken.” Leonard F. v. Isr. Disc.

Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999).

To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Courts “are not bound to accept

as true a legal conclusion couched as a factual allegation,” and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

Claims Brought by Oren Levy and RDK

Oren Levy and RDK allege that FedEx violated the

Carmack Amendment to the Interstate Commerce Act, which provides

a remedy for packages lost or damaged by carriers. They also

bring state-law claims against the three Municipal Defendants

for conversion, trespass, and “tortious interference with

personal property“; negligence; and negligent hiring and

retention. FedEx moves to dismiss the first claim, and the

Municipal Defendants move to dismiss all claims brought against

them. We consider these claims, and the asserted bases for

dismissal, in turn.

A. Violation of the Carmack Amendment

Oren Levy and RDK bring claims against FedEx pursuant

to the Carmack Amendment to the Interstate Commerce Act, 49

U.S.C. § 14706. The Carmack Amendment “addresses the subject of

carrier liability for goods lost or damaged during shipment, and

most importantly provides shippers with the statutory right to

recover for the actual loss or injury to their property caused

by any of the carriers involved in the shipment.” Cleveland v.

Beltman N. Am. Co., 30 F.3d 373, 377 (2d Cir. 1994).

FedEx moves to dismiss this claim on the basis that

their Ground Tariff — a part of their Service Guide that serves

as FedEx’s contract of carriage — listed hemp products among the

items that shippers are prohibited from tendering in the FedEx

ground network. See FedEx Defs.’ Mem. in Supp. of Mot. to

Dismiss (“FedEx Mem.”) 20-21, ECF No. 68-3; Decl. of Ryan P.

Stewart, Esq. in Supp. of Mot. to Dismiss (“Stewart Decl.”)

¶¶ 8, 11. The Tariff, FedEx contends, operates as a contractual

waiver of liability for delay, loss, or damage to shipments

containing such items. Id.

As an initial matter, it is not clear that the Tariff

is cognizable on this motion, as the plaintiffs did not attach

it to the complaint or incorporate it therein by reference. Nor

does the complaint “rel[y] heavily upon its terms and effect,”

such that it can be considered “integral” to the complaint.

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

FedEx asserts that judicial notice is nevertheless appropriate,

given that the Tariff’s existence (and contents) “can accurately

and readily be determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b)(2). Judicial

notice may, in appropriate circumstances, extend to “information

contained on websites where the authenticity of the site has not

been questioned.” Fernandez v. Zoni Language Ctr., Inc., No.

15-CV-6066, 2016 WL 2903274, at *3 (S.D.N.Y. May 18, 2016).

Courts in this circuit have, however, declined to take

judicial notice of common carrier tariffs like the one at issue

here. See Berger v. JetBlue Airways, Corp., No. 22-CV-7374,

2024 WL 4107243, at *4 & n.6, n.7 (E.D.N.Y. Sept. 6, 2024)

(declining to take judicial notice of airline’s contract of

carriage based on “undated and unsworn” screenshots of

defendants’ website); Lichten v. E. Airlines, 8 F.R.D. 138, 140

(S.D.N.Y. 1948) (declining to judicially notice common carrier’s

tariffs regarding baggage transportation). Even when judicial

notice of a document can be taken on a motion to dismiss, the

document is generally not considered for the truth of the

matters asserted therein. See Kramer v. Time Warner Inc., 937

F.2d 767, 774 (2d Cir. 1991); Staehr v. Hartford Fin. Servs.

Grp., Inc., 547 F.3d 406, 424-25 (2d Cir. 2008). And “[t]he

existence of a tariff is not in itself sufficient to limit

liability.” Mech. Tech. Inc. v. Ryder Truck Lines, Inc., 776

F.2d 1085, 1088 (2d Cir. 1985).

The Carmack Amendment allows a carrier to limit its

liability “to a value established by written or electronic

declaration of the shipper or by written agreement between the

carrier and shipper if that value would be reasonable under the

circumstances surrounding the transportation.” 49 U.S.C.

§ 14706(c)(1)(A). For such a limitation to be enforceable, it

must (1) be “set forth in a reasonably communicative form;” and

(2) “offer the shipper a possibility of higher recovery by

paying the carrier a higher rate.” Nippon Fire & Marine Ins.

Co. v. Skyway Freight Sys., Inc., 235 F.3d 53, 59–60 (2d Cir.

2000) (quoting Shippers Nat. Freight Claim Council, Inc. v.

I.C.C., 712 F.2d 740, 746 (2d Cir. 1983)); see Martino, S.A. v.

Transgroup Express, 269 F. Supp. 2d 448, 449–50 (S.D.N.Y. 2003).

Judicial notice aside, FedEx cannot establish at this

stage that its tariff was “reasonably communicative.” In this

context, for a tariff to be “reasonably communicative,” it must

“result in a fair, open, just and reasonable agreement between

carrier and shipper.” Nippon, 235 F.3d at 59. In making this

assessment, courts look, for example, to whether it was “a

reasonably prominent writing, not in particularly small print”

and to where it was posted, and with what degree of clarity.

Martino, 269 F. Supp. 2d at 450. Alternatively, a shipper may

be charged with constructive notice of the terms of a tariff

when the shipping contract “was negotiated between people of at

least equal economic stature and commercial awareness or

acuity.” Mech. Tech., Inc., 776 F.2d at 1088; Chartis Seguros

Mexico, S.A. de C.V. v. HLI Rail & Rigging, LLC, 3 F. Supp. 3d

171, 191 (S.D.N.Y. 2014).

FedEx attaches a copy of the Ground Tariff as Exhibit

A to their motion. See Stewart Decl., Ex. A. The company tells

us that the Ground Tariff is “publicly available online,” FedEx

Mem. 20, and that it was “effective January 7, 2019, and updated

October 1, 2019,” Stewart Decl. ¶ 11. They do not, however,

explain where on their website the Tariff is posted, how many

screens or layers a user of the site would need to click through

to get there, or other relevant information. See Berger, 2024

WL 4107243, at *4 (declining to “rely on the undated screenshots

of the defendants’ website” to determine whether plaintiffs had

reasonable notice of the contract of carriage).4

4 FedEx similarly fails to indicate whether the plaintiffs had “a

reasonable opportunity to choose between two rates and levels of liability.”

Chartis Seguros Mexico, 3 F. Supp. 3d at 190 (declining, on that basis, to

award summary judgment based on carrier’s limitation of liability under

Carmack Amendment); see also Emerson Elec. Supply Co. v. Estes Express Lines

Corp., 451 F.3d 179, 186–87 (3d Cir. 2006) (“[A] carrier must continue to

offer two or more rates with corresponding levels of liability in order to

successfully limit its liability pursuant to the Carmack Amendment.”).

The Ground Tariff therefore cannot serve as a basis

for dismissal at this stage, and the motion to dismiss Claim I

is denied.

B. Conversion, Trespass, and “Tortious Interference with

Personal Property”

The complaint’s “Count II” is styled as a claim for

“Conversion, Trespass, and Tortious Interference with Personal

Property.” Oren and RDK NY assert this count against the

Municipal Defendants. TAC ¶¶ 53-63. This framing does not,

however, map well onto New York law: conversion and trespass to

chattels are in fact separate causes of action with distinct

elements, which should have been stated in separate counts. See

generally Fed. R. Civ. P. 10(b). We take these claims up in

turn below. “Tortious interference with personal property” is

not a New York cause of action at all.5

1. The Conversion Claim Will Proceed

Under New York law, “conversion is the unauthorized

assumption and exercise of the right of ownership over goods

belonging to another to the exclusion of the owner’s rights.”

Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d

5 The Municipal Defendants argue, and the plaintiffs do not dispute,

that tortious interference with personal property is not a recognized cause

of action in New York. Mem. of L. in Supp. of City Defs.’ Mot. to Dismiss 17

n.3 (“City Mem.”). New York courts have recognized claims for tortious

interference with contractual relationships and with prospective economic

advantage. But plaintiffs cite no authority — and the Court has located none

— for this cause of action. This aspect of the claim is therefore dismissed.

Cir. 2007). “Two key elements of conversion are (1) plaintiff’s

possessory right or interest in the property and (2) defendant’s

dominion over the property or interference with it, in

derogation of plaintiff’s rights.” Colavito v. New York Organ

Donor Network, Inc., 8 N.Y.3d 43, 50 (2006).

In moving to dismiss, the Municipal Defendants argue

primarily that Oren and RDK “could not be in lawful possession

of 106 pounds of marijuana” and that “it was reasonable for

Officers Ganshaw and Greenidge to seize what was believed to be

marijuana.” Mem. of L. in Supp. of City Defs.’ Mot. to Dismiss

(“City Mem.”) 18, ECF No. 69-1. But there is no mental state

requirement for a New York conversion claim; “a party may be

liable for conversion even if it acted in good faith.” V&A

Collection, LLC v. Guzzini Props. Ltd., 46 F.4th 127, 133 (2d

Cir. 2022) (citing New York cases). And in any event, the

complaint pleads that the officers were on notice that the

packages at issue contained legal hemp products, not marijuana.6

See, e.g., TAC ¶¶ 26-27, 29-32, 37, 59.

The Municipal Defendants’ second argument for

dismissal is that the seizure of the property was made incident

6 Federal and New York state law have, at various times, criminalized

certain parts of, and products derived from, the hemp plant, including

substances not colloquially referred to as marijuana (such as CBD). See 21

U.S.C.A. § 802(16) (West 2017) (amended October 24, 2018) (federal marijuana

definition); N.Y. Pub. Health Law § 3302(21) (McKinney 2017) (amended March

8, 2020) (New York definition). The relevance of this legal landscape (if

any), which was in flux at the time that the shipments at issue were made, is

for a later stage of this litigation.

to a lawful arrest, and thus not an “unauthorized” conversion.

Thyroff, 460 F.3d at 403. This argument hangs on the Municipal

Defendants’ contention that the officers had probable cause to

arrest Ronen Levy. The Municipal Defendants are correct that no

conversion occurs when property is seized incident to an arrest

supported by probable cause. Chunn v. Amtrak, 916 F.3d 204, 208

(2d Cir. 2019). Probable cause is also a defense to many of

Ronen’s claims, as discussed below.7

a. The Court Declines to Take Judicial Notice

of the Field Test

In arguing that probable cause existed to arrest Ronen

Levy, the Municipal Defendants rely heavily on the results of a

field test that, they assert, indicated that the substance in

the packages was marijuana. City Mem. 5. But this test is not

mentioned in or appended to the complaint, and the Court

declines to take judicial notice of it.

“Under Federal Rule of Evidence 201, a court may

judicially notice a fact that is not subject to reasonable

dispute.” Dixon v. von Blanckensee, 994 F.3d 95, 102 (2d Cir.

2021). “Such facts must either be (1) generally known within

7 Probable cause is a complete defense to false arrest and false

imprisonment, Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994);

accord Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014); Jaegly v. Couch,

439 F.3d 149, 152 (2d Cir. 2006), and to malicious prosecution, Savino v.

City of New York, 331 F.3d 63, 72 (2d Cir. 2003). Similarly, probable cause

supporting arrest allows for lawful search incident to arrest, which would

negate Ronen’s search and seizure claims. See generally, Arizona v. Gant,

556 U.S. 332 (2009).

the territorial jurisdiction of the trial court or (2) capable

of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” Id. “Because the

effect of judicial notice is to deprive a party of the

opportunity to use rebuttal evidence, cross-examination, and

argument to attack contrary evidence, caution must be used in

determining that a fact is beyond controversy under Rule

201(b).” Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger

U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998).

While district courts occasionally take judicial

notice of investigative documents like arrest reports, they more

often decline to do so. See, e.g., Bey v. Antoine, No. 19-CV-

1877, 2021 WL 3725985, at *7 (E.D.N.Y. Aug. 23, 2021)

(collecting cases). The Municipal Defendants have cited no case

in which a field test was judicially noticed on a motion to

dismiss, and this case will not be the first. For starters, the

Municipal Defendants have not established that the report (or

its contents) are “generally known” in any given jurisdiction,

see F.R.E. 201; indeed, there is no indication that it is a

public record at all. In Moore v. Newton, the district court

declined to judicially notice an N.Y.P.D. field test similar to

the test at issue here, because the defendants had not explained

“how the source of these documents is unimpeachable.” No. 14-

CV-6473, 2016 WL 11445696, at *7 (E.D.N.Y. Sept. 7, 2016),

report and recommendation adopted in part, rejected in part on

other grounds, 220 F. Supp. 3d 275 (E.D.N.Y. 2016) (collecting

cases). Likewise, the Municipal defendants here have not

asserted — let alone established — that the field test’s

accuracy “cannot reasonably be questioned.” F.R.E. 201.8

This question may be largely academic: even if the

Court were to take judicial notice of the field test, we would

acknowledge only the fact of the report, not the accuracy of its

results or the reasonableness of relying on them. For all these

reasons, the field test result is not properly considered on

this motion.

b. The Municipal Defendants Have Not

Established Probable Cause to Arrest Ronen

Without the field test, the Municipal Defendants have

identified no basis to infer probable cause. “Probable cause to

arrest exists when the officers have knowledge of, or reasonably

trustworthy information as to, facts and circumstances that are

sufficient to warrant a person of reasonable caution in the

belief that an offense has been or is being committed by the

person to be arrested.” Mastromonaco v. Cnty. of Westchester,

8 The report indicates that the field test was conducted via a

“Duquenois – Levine Reagent” test. City Mem. Ex. A, ECF No. 69-3. This

method has not received universal acclaim: among other things, the Wisconsin

Supreme Court held that it is insufficiently specific to establish that a

given substance is cannabis. State v. Wind, 60 Wis. 2d 267, 272 (Wis. 1973);

see also J.I. Thornton & G.R. Nakamura, The Identification of Marijuana, 12

J. of the Forensic Science Society 3, 461 (1972) (acknowledging false

positives).

779 F. App’x 49, 50 (2d Cir. 2019). “A defendant bears the

burden of raising and proving the existence of probable cause

for a plaintiff’s arrest.” McLennon v. City of New York, 171 F.

Supp. 3d 69, 87–88 (E.D.N.Y. 2016); Dickerson v. Napolitano, 604

F.3d 732, 751 (2d Cir. 2010). In addition to the field test,

the Municipal Defendants see probable cause emanating from

certain allegations in the complaint: (1) the FedEx driver’s

“report to the Municipal Defendants that the shipment contained

marijuana,” see TAC ¶ 29; (2) the “leafy” appearance of the

substance, which “resemble[ed] marijuana — an appearance the

Municipal Defendants claim to see in the photograph at paragraph

38 of the complaint; and (3) the fact that Ronen arrived at the

precinct to pick up the package, TAC ¶ 33. City Mem. 4-6.

These allegations are not sufficient. The FedEx

driver reported nothing to the N.Y.P.D. that they could not

observe for themselves. TAC ¶¶ 29-30. And the complaint’s

photograph of the hemp / marijuana bags is taken from many feet

away; nothing about the contents’ appearance — leafy or

otherwise — is apparent in the picture. Beyond that, the

complaint includes allegations that tend to undermine probable

cause. It alleges, for example, that the Municipal Defendants

observed shipping documents that “clearly identified that the

shipment only contain[ed] [] legal hemp product.” Id. ¶ 30.

Further, the complaint alleges that the Vermont Police

Department readily determined that the package contained only

legal hemp. Id. ¶ 26; see Mastromonaco, 779 F. App’x at 50

(asking whether the officers asserting probable cause exercised

“reasonable caution”).

Courts regularly decline to make probable cause

findings at the motion to dismiss stage, especially in the face

of incomplete or conflicting allegations. See, e.g. Jurkowitsch

v. City of New York, No. 14-CV-6810, 2015 WL 8489964, at *5

(E.D.N.Y. Dec. 9, 2015), aff’d sub nom. Jurkowitsch v.

Choudhury, 673 F. App’x 44 (2d Cir. 2016) (collecting cases).

Here, as discussed further below, infra Section IV.E, the

complaint does not establish probable cause to arrest Ronen;

thus, the conversion claim will proceed.

2. The Trespass Claim Will Proceed

To assert a claim for trespass to chattels under New

York law, plaintiffs must allege that “(1) defendants acted with

intent, (2) to physically interfere with (3) plaintiff[‘s]

lawful possession, and (4) harm resulted.” Biosafe-One, Inc. v.

Hawks, 639 F. Supp. 2d 358, 368 (S.D.N.Y. 2009), aff’d, 379 F.

App’x 4 (2d Cir. 2010). The Municipal Defendants marshal the

same arguments for dismissal of this claim as the conversion

claim; namely, that the plaintiffs have not shown lawful

possession over the packages, and that seizure incident to

Ronen’s arrest was warranted. City Mem. 4-6. These arguments

depend (again) on the existence of probable cause, and thus do

not prevail at this stage.

The TAC adequately alleges each element of the

trespass claim, including that the Municipal Defendants acted

with intent, TAC ¶ 59; that they seized and refused to release

the packages, id. ¶ 58; that Oren and RDK had lawful possession

of the packages, id. ¶ 55-56, 61; and that harm resulted, as the

contents of the packages spoiled in police custody, id. ¶ 62.

The motion to dismiss the trespass cause of action is therefore

denied.

C. Negligence

Oren and RDK also bring a claim for “general

negligence” against the Municipal Defendants. (Presumably they

refer to this claim as such to distinguish it from their

negligent hiring claim.) Under New York law, to state a claim

for negligence, a plaintiff must establish: “1) the existence of

a duty flowing from defendant to plaintiff; 2) a breach of this

duty; 3) a reasonably close causal connection between the

contact and the resulting injury; and 4) actual loss, harm or

damage.” Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 79 (2d

Cir. 1997). The complaint alleges that the Municipal Defendants

“were negligent, reckless and careless” in taking a number of

actions, including in confiscating and withholding the packages,

which they “knew or should have known were legal hemp products.”

TAC ¶ 65. This claim suffers from a number of flaws.

Most prominently, there is no cause of action for

negligence, generally speaking, against police officers in these

circumstances. “Under New York law, a plaintiff may not recover

under general negligence principles for a claim that law

enforcement officers failed to exercise the appropriate degree

of care in effecting an arrest or initiating a prosecution.”

Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (cited

by Watson v. United States, 865 F.3d 123, 127 (2d Cir. 2017));

see also Prezioso v. Cnty. of Niagara, 213 A.D.3d 1302, 1306

(4th Dep’t 2023) (“A cause of action for negligent investigation

is not recognized in New York.”); Gewirtz v. City of New York,

196 N.Y.S. 3d 683, 688 (N.Y. Sup. Ct. 2023) (“[I]n general, no

cognizable cause of action exists for negligent police

investigation.”). Therefore, to the extent that the negligence

claims are predicated on the Municipal Defendants’ investigation

of the packages, a negligence claim cannot stand.

Plaintiffs also allege no particular duty owed to

them. “The existence of a duty is the sine qua non of a

negligence claim: In the absence of a duty, as a matter of law,

no liability can ensue.” Alfaro v. Wal-Mart Stores, Inc., 210

F.3d 111, 114 (2d Cir. 2000). In their opposition, the

plaintiffs argue that the officers had a “duty not to illegally

seize their lawful products,” RDK Pls.’ Mem. in Opp’n to Mot. to

Dismiss (“RDK Mem.”) 2, ECF No. 71, or “a duty not to tortiously

interfere with their property.” Id. at 10. But they provide no

authority that these duties exist or, more importantly, are

actionable.9

Finally, seizure and tortuous interference are

intentional acts, and therefore not actionable on a negligence

theory. In their second claim, Oren and RDK specifically allege

that the Municipal Defendants acted with intent. See TAC ¶ 59.

Under New York law, harm that is predicated on intentional

conduct cannot give rise to a negligence claim. See United Nat.

Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 353 (2d Cir. 1993)

(recognizing the “mutual exclusivity” of negligent and

intentional conduct); Schmidt v. Bishop, 779 F. Supp. 321, 324

(S.D.N.Y. 1991) (“New York courts have rejected uniformly such

attempts to transmogrify intentional torts into negligence.”);

Wahlstrom v. Metro-N. Commuter R. Co., 89 F. Supp. 2d 506, 531-

32 (S.D.N.Y. 2000) (finding under New York law that, “because

9 To the extent that the negligence claims are predicated on the City’s

lack of action or failure to act in a certain way, the plaintiffs would need

to identify a “special” duty, beyond the general duty owed to all citizens:

they must allege “that the City owed [them] a special duty of care as ‘an

essential element’ of [their] negligence claims.” Howell v. City of New

York, 39 N.Y.3d 1006, 1008 (N.Y. 2022); see also Gewirtz v. City of New York,

196 N.Y.S.3d 683, 688 (N.Y. Sup. Ct. 2023).

the actions alleged here were intentional and deliberate . . .

they are outside the ambit of actionable negligence”).

For all these reasons, Oren and RDK’s “general

negligence” claims are dismissed.

D. Negligent Hiring and Retention

Oren and RDK’s final claim is for negligent hiring and

retention, against the Municipal Defendants.10 They assert that

the City did not exercise reasonable care and diligence in

hiring and supervising Greenidge and Ganshaw. TAC ¶ 70. To

bring a negligent hiring and retention claim, a plaintiff must

allege:

(1) that the tort-feasor and the defendant were in an

employee-employer relationship; (2) that the employer

knew or should have known of the employee’s propensity

for the conduct which caused the injury prior to the

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

committed on the employer’s premises or with the

employer’s chattels.

Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004).

However, “where an employee is acting within the scope of his or

her employment, the employer is liable under the theory of

respondeat superior, and the plaintiff may not proceed with a

claim to recover damages for negligent hiring, retention,

10 This claim is brought against the City as well as Officers Greenidge

and Ganshaw. However, the allegations connected to the claim itself refer

only to the City, and indeed it logically makes little sense to hold the

individual defendants liable for their own hiring and retention. For this

reason, as well as those articulated in this section, the claim is dismissed

as to the individual defendants.

supervision, or training.” Ambroise v. United Parcel Serv. of

Am., 143 A.D.3d 929, 931 (2d Dep’t 2016) (collecting cases); see

also Eckardt v. City of White Plains, 87 A.D.3d 1049, 1051 (2d

Dep’t 2011) (dismissing negligent hiring and supervision claim

based on false arrest and detention, as “these actions were

performed by the officers in the scope of their employment with

the City”).

Oren and RDK alleged in the complaint that officers

Ganshaw and Greenidge were “acting within the scope of their

employment for the City of New York” at all relevant times. TAC

¶ 66; see also id. ¶ 33. And they do not dispute the

defendants’ asserted basis for dismissal; instead, they “take no

position” on whether the motion should be granted on this claim.

See RDK Mem. 11. Therefore, the negligent hiring and retention

claim is dismissed.

Claims Brought by Ronen Levy

Ronen Levy brings several claims, separately from

those brought by Oren and RDK.11 The defendants move to dismiss

these claims as well. This order first addresses a number of

11 Ronen’s claims include: 49 U.S.C. § 1983 False Arrest; State Law

False Arrest; 49 U.S.C. § 1983 Unlawful Search and Seizure; State Law

Unlawful Search and Seizure; 49 U.S.C. § 1983 False Imprisonment; State Law

False Imprisonment; 49 U.S.C. § 1983 Failure to Intervene; 49 U.S.C. § 1983

Malicious Prosecution’ State Law Malicious Prosecution; Custom, Policy, and

Monell Liability; State Law Negligence; and State Law Intentional Infliction

of Emotional Distress.

overarching issues that impact more than one of his claims,

before addressing the claims that remain individually.

A. Ronen’s Claims are Not Preempted by the Carmack Amendment

In their motion to dismiss, FedEx first argues that

all of Ronen’s claims against them are preempted by the Carmack

Amendment.

1. Legal Standard: Carmack Preemption

“Congress has the power to preempt state law” under

the Supremacy Clause of the Constitution. Arizona v. United

States, 567 U.S. 387, 399 (2012). “The key to the preemption

inquiry is the intent of Congress.” New York SMSA Ltd. P’ship

v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010).

Therefore, “we are to begin as we do in any exercise of

statutory construction,” with “the provision in question.” In

re WTC Disaster Site, 414 F.3d 352, 371 (2d Cir. 2005).

The Carmack Amendment “superseded diverse state laws

with a nationally uniform policy governing interstate carriers’

liability for property loss.” New York, N. H. & Hartford R. Co.

v. Nothnagle, 346 U.S. 128, 131 (1953). It established a

federal remedy for “actual loss or injury to [] property”

provided to carriers for interstate shipment. 49 U.S.C.

§ 14706. “Almost every detail of the subject is covered so

completely that there can be no rational doubt but that Congress

intended to take possession of the subject, and supersede all

state regulation with reference to it.” Adams Express Co. v.

Croninger, 226 U.S. 491, 505-06 (1913).

Thus, Carmack preemption is broad. The Second Circuit

has held that “the Carmack Amendment preempts state common law

remedies that might be asserted against a carrier for damages to

goods shipped under a proper bill of lading.” Cleveland v.

Beltman N. Am. Co., 30 F.3d 373, 378 (2d Cir. 1994); see also

Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 n.6 (2d Cir. 2001)

(“The Carmack Amendment . . . preempt[s] the shipper’s state and

common law claims against a carrier for loss or damage to goods

during shipment.”). This Court noted, in denying remand, that

Carmack preemption “embrac[es] all damages resulting from any

failure to discharge a carrier’s duty with respect to any part

of the transportation to the agreed destination.” Mem & Order

at 9, ECF No. 41. This can include damages for “misdelivery”

and for “refusal to deliver,” among other things. Id. at 8.

In conducting the Carmack preemption analysis, courts

typically look to the conduct about which a plaintiff complains,

in addition to the nature of the loss. In Smith v. United

Parcel Service, after the plaintiffs directed “harsh words” at a

UPS driver and called her an “unflattering and derogatory name,”

their packages began failing to materialize. 296 F.3d 1244,

1245 (11th Cir. 2002). The plaintiffs brought a number of

common-law claims, including for fraud (because UPS “accept[ed]

shipments for delivery,” “knowing that they had no intention of

fulfilling” those deliveries). They also asserted a claim for

“outrage” — apparently the Alabama analogue to an emotional-

distress claim. Id. at 1246.

The Eleventh Circuit looked to what UPS was alleged

to have done — namely, “failing and refusing to make

deliveries.” Because the fraud claim was based “on UPS’s

failure to provide [the plaintiffs] with particular

transportation and delivery services” — conduct at the heart of

the contract of carriage — it fell “squarely within the

preemption coverage of the Carmack Amendment.” Id. at 1247.

And the “outrage” claim was preempted “because it too is based

on the same conduct.” Id. at 1248.

In looking at the conduct alleged, Carmack cases focus

on the relationship between that conduct and the contract of

carriage between the shipper and customer. The Seventh Circuit

has held, for example, that the Carmack Amendment “preempts all

state law claims based upon the contract of carriage, in which

the harm arises out of the loss of or damage to goods.” Gordon

v. United Van Lines, Inc., 130 F.3d 282, 284 (7th Cir. 1997)

(emphasis added). Still, that court noted, “claims involving a

separate and independently actionable harm to the shipper

distinct from such damage are not preempted.” Id.

Applying these rules, the Gordon panel held that the

Carmack Amendment preempted fraud and breach of contract claims.

The common-law fraud claim was a “close call,” but in the end

the court concluded that “claims relating to the making of the

contract for carriage” — like the fraud claim — “are so closely

related to the performance of the contract, and the measure of

damages for such claims so likely to be the loss or damage to

the goods, that they are also preempted by the Carmack

Amendment.” Id. at 289. At the same time, the court held that

Amendment did not preempt the Gordons’ claim for intentional

infliction of emotional distress, because it was “independent

from the loss or damage to goods.” Id. (citing Rini v. United

Van Lines, 104 F.3d 502, 506 (1st Cir. 1997)).

2. Application to Ronen’s Claims

According to FedEx, the Carmack Amendment preempts

each of Ronen’s claims because they arise from FedEx’s alleged

misdelivery of the packages at issue to the New York Police

Department, rather than to Ronen. FedEx Mem. 5.12

But despite the broad sweep of the Carmack Amendment,

Ronen’s claims are not preempted. To begin with, the claims’

connection to the contract of carriage is attenuated: that

12 FedEx argues simply that Ronen’s “claims” are preempted by the

Carmack Amendment, without specifying which claims. FedEx Mem. 4-8. This

argument is “untenable” as to Ronen’s federal-law claims, for example, and

perhaps to others. Cleveland, 30 F.3d at 377-78.

document may tell shippers that FedEx will not accept hemp

products for shipment, but no party has indicated that the

contract speaks to communications with law enforcement (one way

or another). And Ronen is not FedEx’s customer; it was his

brother (and his brother’s company) that made the purchase that

led to the shipment. TAC ¶¶ 22-23. Ronen is therefore a

sizeable step removed from the shipper, relative to the usual

plaintiff in a Carmack analysis.

In that regard, this case bears some similarities to

Koch v. McConnell Transp. Ltd., No. 13-CV-3016, 2015 WL 3470182,

at *6 (E.D.N.Y. May 29, 2015). There, a Home Depot employee

climbed onto a truck operated by McConnell Transport to assist

in unloading Christmas trees that Home Depot would be selling.

The employee slipped on ice in the truck’s trailer, hit his head

on the pavement, and died. Given how far removed this employee

was from the shipping arrangement with McConnell (among other

things), his claims were not preempted.

By its text, the Carmack Amendment applies to “the

actual loss or injury to the property.” 49 U.S.C. § 14706(a)(1)

(emphasis added); see also Cleveland, 30 F.3d at 377 (Carmack

Amendment applies to damage to goods and loss or injury to

property).13 Ronen is not complaining of any injury to property;

13 As the Supreme Court has written, “the Carmack Amendment deals only

with the shipment of property. Its language is so clear as to leave no

instead, he seeks recompense for time spent in jail. Indeed,

unlike his brother Oren, Ronen claims no possessory interest in

the hemp products at all. His claims are thus not preempted.

B. Ronen’s Claims are Not Preempted by the FAAAA

FedEx argues next that Ronen’s claims are each

preempted by the Federal Aviation Administration Authorization

Act (“FAAAA”). The FAAAA preempts state law causes of action

“related to a price, route, or service of any motor carrier

. . . with respect to the transportation of property.” 49

U.S.C. § 14501(c)(1). Again, FedEx’s argument is premised on

the theory that Ronen’s claims arise from FedEx’s depositing of

the packages with the New York Police Department, rather than

delivering them to Ronen, and thus his “causes of action

implicate the sole service that FedEx provides: transporting and

delivering packages.” FedEx Mem. 12. However, as discussed

above, Ronen’s claims each sound primarily in personal injury

and deprivation of liberty, not misdelivery of a package. See

supra Section IV.A. As such, they are not “related to a

[carrier’s] price, route, or service.” 49 U.S.C.

§ 14501(c)(1).14

ground for the contention that Congress intended to deal with the

transportation of persons.” Chicago, R.I. & P. Ry. Co. v. Maucher, 248 U.S.

359, 363 (1919).

14 By contrast, the cases that FedEx cites involve claims that implicate

actual transportation and delivery procedures. See, e.g., Trujillo v.

American Airlines, Inc., 938 F. Supp. 392 (N.D. Tex. 1995), aff’d, 98 F.3d

“[T]he relevant inquiry is whether enforcement of the

plaintiff’s claims would impose some obligation on [the

defendant] with respect to conduct that, when properly

undertaken, is a service.” Tobin v. Fed. Express Corp., 775

F.3d 448, 454 (1st Cir. 2014). The conduct most relevant to

Ronen’s claims is not, as FedEx suggests, the discretion to

deliver a certain kind of product. Rather, it is the alleged

making of a police report and fabrication of evidence. See,

e.g., TAC ¶¶ 74, 80, 122, 130. Therefore, the motion to dismiss

Ronen’s claims as preempted by the FAAAA is denied.

C. Ronen’s Section 1983 Claims Against FedEx Fail to

Plead State Action

Ronen brings a number of claims under Section 1983

against all defendants. These include claims for false arrest,

“unlawful search and seizure,” false imprisonment, and malicious

prosecution. In order to maintain a Section 1983 action, a

plaintiff must show that the defendant (a) acted under color of

state law (b) to deprive the plaintiff of a right arising under

the Constitution or federal law. Cornejo v. Bell, 592 F.3d 121,

127 (2d Cir. 2010). FedEx argues that the Section 1983 claims

1338 (5th Cir. 1996) (claims for negligence and consumer protection based on

airline’s loss of a package were preempted); Aretakis v. Fed. Express Corp.,

No. 10-CV-1696, 2011 WL 1226278 (S.D.N.Y. Feb. 28, 2011) (claims for

negligence, breach of contract, and violation N.Y. Business Law based on late

delivery of a package were preempted); Rockwell v. United Parcel Serv., Inc.,

No. 2:99 CV 57, 1999 WL 33100089 (D. Vt. July 7, 1999) (claims regarding

deficiencies in UPS package intake and delivery protocol, which led to

delivery of a pipe bomb, preempted).

must fail as to FedEx, because Ronen does not adequately allege

that they were acting under color of law. See Sykes v. Bank of

Am., 723 F.3d 399, 406 (2d Cir. 2013). “[S]tate action may be

found if, though only if, there is such a close nexus between

the State and the challenged action that seemingly private

behavior may fairly be treated as that of the State itself.”

Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n., 531

U.S. 288, 295 (2002).

The primary action that FedEx is alleged to have taken

with respect to Ronen’s claims is falsely reporting to the New

York Police Department that the package at issue contained

marijuana. TAC ¶ 32. However, the “mere identification of a

potential culprit” or the “mere furnishing of information to the

police” does not establish state action. King v. Crossland Sav.

Bank, 111 F.3d 251, 257 (2d Cir. 1997). Therefore, the report

alone cannot suffice.

Ronen claims that FedEx and the Municipal Defendants

“conspired together” to deprive him of his constitutional

rights. See, e.g., TAC ¶¶ 32, 74, 80, 97. This, too, is not

enough, as a “merely conclusory allegation that a private entity

acted in concert with a state actor does not suffice to state a

§ 1983 claim against a private entity.” Ciambriello v. Cnty. of

Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Instead, “[t]o state

a claim against a private entity on a section 1983 conspiracy

theory, the complaint must allege facts demonstrating that the

private entity acted in concert with the state actor to commit

an unconstitutional act.” Spear v. West Hartford, 954 F.2d 63,

68 (2d Cir. 1992). No such facts are alleged here. Therefore,

the Section 1983 claims are dismissed as to FedEx.

D. Ronen’s Section 1983 Claims Against the City Fail to

Satisfy Monell

Municipalities do not have respondeat superior

liability for the constitutional violations of their agents.

Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S.

658, 691-94 (1978). Instead, “to hold a city liable under

§ 1983 for the unconstitutional actions of its employees, a

plaintiff is required to plead and prove three elements: (1) an

official policy or custom that (2) causes the plaintiff to be

subjected to (3) a denial of a constitutional right.” Batista

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

A failure to train or supervise can amount to a

“policy or custom” for Monell purposes only when the failure

reflects “deliberate indifference to the rights of others.”

Wray v. City of New York, 490 F.3d 189, 195-96 (2d Cir. 2007).

“Deliberate indifference is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” Connick v. Thompson, 563

U.S. 51, 61 (2011). Monell liability for failure to train

therefore attaches only when: (1) the policy maker knows “to a

moral certainty” that City employees will confront a given

situation; (2) “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;” and (3) “the wrong choice by the

city employee will frequently cause the deprivation of a

citizen’s constitutional rights.” Walker v. City of New York,

974 F.2d 293, 297-98 (2d Cir. 1992). This showing, in turn,

generally requires identification of a specific deficiency in

the municipality’s training program, see Reynolds v. Giuliani,

506 F.3d 183, 193 (2d Cir. 2007), or a pattern of similar

constitutional violations. See Connick, 563 U.S. at 62.

Ronen claims that the “City has permitted and

tolerated a pattern and practice of unjustified, unreasonable,

and illegal false arrests, false imprisonments, excessive uses

of force, malicious prosecutions, abuses of process, and

procedural and substantive due process violations.” TAC ¶ 111.

However, “[t]he mere invocation of the ‘pattern’ or ‘plan’ will

not suffice without [a] causal link” connecting the pattern to

the alleged misconduct. Batista, 702 F.2d. at 387.

The complaint attempts to identify ostensibly similar

constitutional violations by other officers. TAC ¶¶ 113-17.

But the episodes Ronen marshals bear little similarity to this

case. He identifies instances in which N.Y.P.P. officers were

convicted of “corruption-related crimes,” murder, lying under

oath, and sexual assault. TAC ¶ 117. Such conduct “could not

have put [the City] on notice that specific training was

necessary to avoid this constitutional violation.” Connick, 563

U.S. at 63 (emphasis added) (different types of Brady violations

were insufficiently similar to establish a pattern under

Monell). As the quoted language indicates, the case law

requires a tight fit between the alleged “pattern” evidence and

the facts of the instant case.

So, in Greene v. City of New York, the Second Circuit

held that the plaintiff had not adequately alleged a district

attorney’s office’s failure to train employees about the

obligation to disclose exculpatory and other relevant evidence.

742 F. App’x 532, 536–37 (2d Cir. 2018). The complaint listed

thirty-six court decisions identifying non-disclosure

violations, but only two of those pre-dated the Greene

plaintiffs’ allegations. And those two allegations were

“inapposite because they do not concern the nondisclosure of the

same sort of evidence at issue in this case.” Id. at 537.

Here, the alleged pattern is even further removed from the

violations at issue.

Ronen also asserts, in conclusory fashion, that the

City “was aware that the Defendants were unfit officers,” id.

¶ 114, and that the City “exercised deliberate indifference by

failing to take remedial action” and by insufficiently training

and supervising the individual defendants, id. ¶ 115. But

“general and conclusory allegations” such as these do not

suffice to establish Monell liability, even at the motion to

dismiss stage. Schnauder v. Gibens, 679 F. App’x 8, 10 (2d Cir.

2017) (summary order); see also Vasquez v. City of New York, No.

20-CV-4641, 2023 WL 8551715, at *4-*5 (S.D.N.Y. Dec. 11, 2023)

(“[C]ourts dealing with Monell claims have disregarded the use

of conclusory allegations that do not provide additional support

that a plaintiff’s experience is consistent with a larger

pattern of similar conduct.”) (collecting cases).

There is also no indication that the City failed to

take remedial action against the officers mentioned. Therefore,

the complaint fails to allege Monell liability against the City

of New York. All claims brought against the City under Section

1983 are therefore dismissed.15

E. The Individual Officers Are Not Entitled to Qualified

Immunity at this Stage

“[A] police officer is entitled to qualified immunity

where (1) his conduct does not violate clearly established

15 Ronen pleads Monell liability as a separate cause of action.

However, Monell created a method for holding municipal defendants liable,

rather than establishing an independent cause of action. See generally

Monell, 436 U.S. 658. Claim XIV is therefore dismissed, along with the

Section 1983 claims against the City.

statutory or constitutional rights of which a reasonable person

would have known, or (2) it was objectively reasonable for him

to believe that his actions were lawful at the time of the

challenged act.” Jenkins v. City of New York, 478 F.3d 76, 87

(2d Cir. 2007). At this stage, the burden rests with the

defendants to “show that, construing all reasonable inferences

in the plaintiff’s favor, the facts supporting the immunity

defense appear on the face of the complaint,” and “the plaintiff

can prove no set of facts . . . that would entitle him to

relief.” Kass v. City of New York, 864 F.3d 200, 206 (2d Cir.

2017). The Second Circuit has described this as “a formidable

hurdle.” McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004).

Officers Greenidge and Ganshaw argue that they cannot

be held liable for the Section 1983 claims because it was

objectively reasonable for them to arrest and charge Ronen.

City Mem. 12-13. As established in Section III.B.1(b), above,

the officers cannot establish probable cause to arrest Ronen on

the instant record. Even without that finding, however, “an

arresting officer will still be entitled to qualified immunity

from a suit for damages if he can establish that there was

‘arguable probable cause’ to arrest.” Escalera v. Lunn, 361

F.3d 737, 743 (2d Cir. 2004). Arguable probable cause may be

found “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.” Id.

The officers look to the same operative facts to

establish “arguable” probable cause as they did to establish

actual cause. These are (1) the field test that indicated the

packages were positive for marijuana; (2) the fact that “the

packages resembled marijuana,” which the officers assert is

evident from the photo in the complaint (at ¶ 38); and (3) the

report from the FedEx driver that the package contained

marijuana. City Mem. 12-13. As noted above, the field test is

not cognizable on a motion to dismiss. See supra Section

III.B.1(a). Second, nothing on the face of the complaint

indicates that the contents of the packages resembled marijuana.

The photograph is taken from a distance and reveals the shape of

the packages but nothing about their contents.

This leaves the Municipal Defendants only with the tip

from the FedEx driver at this stage. And the tip is

insufficient, standing alone, even to establish that probable

cause was “arguable.” In assessing the value of an informant’s

tip, courts look to the “totality-of-the-circumstances.”

Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Generally

speaking, “the informant’s ‘basis of knowledge’ and ‘veracity’

(i.e., how he knows and why we should believe him) remain highly

relevant to a determination of either probable cause or

reasonable suspicion.” United States v. Elmore, 482 F.3d 172,

179 (2d Cir. 2007).

But nothing in the complaint reveals that the FedEx

driver had a unique or special basis to conclude that the

packages contained marijuana. Thus, whatever initial value the

tip had, that value dropped from the equation as soon as the

driver turned the packages over to the police. At that point,

the officers had access to exactly the same information as the

FedEx driver. The circumstances of this case are, in this way,

similar to those in Borisova v. Friberg, No. 18-CV-7440, 2023 WL

5045090 (E.D.N.Y. Aug. 8, 2023). In Borisova, the district

court found that the value of an informant’s tip about

counterfeit goods “dissipated” when the officers were able to

view these goods for themselves. Id. (denying qualified

immunity).

Officers Greenidge and Ganshaw may have additional

light to shed in depositions or at trial. At this stage,

however, they cannot establish arguable probable cause.16 The

motion to dismiss Ronen’s claims as to the individual defendants

on qualified immunity grounds is therefore denied.

16 The utility of the driver’s tip was even more remote by the time of

the probable cause assessment for malicious prosecution. “[P]robable cause

for malicious prosecution is assessed in light of facts known or reasonably

believed at the time the prosecution was initiated, and not at the time of

arrest.” Castro v. Cnty. of Nassau, 739 F. Supp. 2d 153, 169 (E.D.N.Y.

2010).

F. False Arrest and False Imprisonment

“[F]alse arrest is a species of false imprisonment.”

Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).

The false arrest and false imprisonment claims thus share the

same elements. Id. “Under New York law, the elements of a

false imprisonment claim are: (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.” Id. “The elements of a claim of false arrest

under § 1983 are substantially the same as the elements of a

false arrest claim under New York law.” Hygh v. Jacobs, 961

F.2d 359, 366 (2d Cir. 1992). Therefore, the merits of these

claims are examined together.

1. The False Arrest and Imprisonment Claims May

Proceed Against the Municipal Defendants

All three Municipal Defendants move to dismiss Ronen’s

false arrest and false imprisonment claims on the (sole) basis

that probable cause existed to arrest him. City Mem. 4-6.

Because neither probable cause nor arguable probable cause can

be found at this stage, see Sections Section III.B.1(b) and

IV.E, above, this argument fails. The Monell analysis above,

moreover, applies only to claims brought under Section 1983.

Under New York common law, municipalities may be held liable for

the torts of their officers, including false arrest and

imprisonment, under the doctrine of respondeat superior. See

Ackerson v. City of White Plains, 702 F.3d 15, 22 (2d Cir.

2012). Therefore, the Municipal Defendants’ motions to dismiss

the state-law false arrest and imprisonment claims are denied.

2. The False Arrest and False Imprisonment Claims

Against FedEx are Dismissed

FedEx moves to dismiss the false arrest and

imprisonment claims on the basis that the complaint fails to

plead that FedEx arrested or otherwise confined Ronen. FedEx

Mem. 15 n.2. These motions are granted.

The only allegations in the complaint connecting FedEx

to Ronen’s arrest and imprisonment involve the report of the

package to the police. TAC ¶ 29. This is not, of course,

itself an act of arrest or confinement. The complaint also

alleges, in conclusory fashion, that the FedEx driver and the

Municipal Defendants “conspired together” to arrest and confine

Ronen. Id. ¶¶ 74-75. But “under New York law, in order to

properly plead a cause of action to recover damages for civil

conspiracy, the plaintiff must allege a cognizable tort, coupled

with an agreement between the conspirators regarding the tort,

and an overt action in furtherance of the agreement.” Faulkner

v. City of Yonkers, 105 A.D.3d 899, 900 (2013). “A bare

conclusory allegation of conspiracy is usually held

insufficient.” Id. at 901 (dismissing false arrest claim based

on conspiracy). Here, because the complaint has not established

that FedEx arrested or confined Ronen, and has not alleged any

facts indicating a conspiracy, the false arrest and false

imprisonment claims against FedEx are dismissed.

G. Unlawful Search and Seizure

Ronen also brings claims for “unlawful search and

seizure” — purportedly under both Section 1983 and New York

state law. These claims are addressed in turn.

1. Section 1983 / Fourth Amendment

An allegation of illegal search and / or seizure is

actionable under Section 1983. See Townes v. City of New York,

176 F.3d 138 (2d Cir. 1999) (evaluating claim that defendant was

“subjected to an unconstitutional search and seizure” in

violation of Section 1983). Such claims may relate to the

search and seizure of either person, id., or property, United

States v. Ganias, 755 F.3d 125 (2d Cir. 2014), on reh’g en banc,

824 F.3d 199 (2d Cir. 2016). “Two categories of seizure of the

person implicating the protection of the Fourth Amendment have

emerged in the caselaw:” (1) an investigative detention, or

Terry stop, and (2) an arrest. Posr v. Doherty, 944 F.2d 91, 98

(2d Cir. 1991).

Ronen asserts virtually no specifics in support of

this claim. He avers that the defendants “conspired together

and unlawfully stopped and searched Plaintiff without cause, a

warrant, or consent.” TAC ¶ 80. Beyond that single, conclusory

sentence, nothing: he does not explain where, when, or how he

was searched or what was seized. He therefore pleads no facts

at all to suggest that he was subject to an investigative

detention, distinct from his arrest.17

To the extent his “seizure” claim is premised on his

arrest, it is duplicative of his false arrest and imprisonment

claims. “Two claims are duplicative of one another if they

arise from the same facts and do not allege distinct damages.”

NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 175

(2d Cir. 2008). Thus, in Jackson v. City of New York, the court

concluded that claims for “illegal search and seizure of the

person, false arrest, unlawful detention, and false

imprisonment” were duplicative, and construed them as “one claim

for false arrest.” 29 F. Supp. 3d 161, 169 n.8 (E.D.N.Y. 2014);

see also Ivery v. Baldauf, 284 F. Supp. 3d 426, 434 (W.D.N.Y.

2018) (“[T]he false-arrest and illegal-seizure claims are

properly asserted in a single count, inasmuch as they both arise

from the same rights guaranteed by the Fourth Amendment.”).

As for the “search” aspect, the complaint includes no

specific facts regarding a search of Ronen’s person or

17 The complaint states that Ronen “voluntarily arrived” at the police

precinct. TAC ¶ 33.

possessions. Presumably, he was searched incident to arrest;

but again, the lawfulness of such a search would rise or fall

with the lawfulness of the arrest itself. Finally, to the

extent that Ronen complains about the search or seizure of the

hemp packages, that complaint would run headlong into his

disclaimer of any possessory interest therein. See Am. Compl.

¶¶ 22-23 (identifying Oren Levy and RDK as the purchasers and

intended recipients of the packages).

Ronen’s federal claims for “unlawful search and

seizure,” false arrest, and false imprisonment — each brought

pursuant to Section 1983 — are therefore consolidated into a

single claim for false arrest.

2. State-Law Search and Seizure Claim

There is no common-law claim for “illegal search and

seizure” in New York state. See, e.g., Elio v. Putnam County,

Index No. 00523/2024, 2024 WL 3611492, at *10 (N.Y. Sup. Ct.

July 30, 2024) (“Likewise, plaintiff’s claims of coercion and

‘unlawful search and seizure’ must be dismissed because they are

not cognizable civil claims under New York law.”). The New York

courts can, however, construe this as a claim brought pursuant

to the New York State constitution. See Gordon v. Suffolk

Cnty., No. 21-CV-1653, 2022 WL 17585706, at *6 (E.D.N.Y. Dec. 9,

2022); see also Allen v. Antal, 665 Fed. App’x. 9, 13 (2d Cir.

2016) (“The New York State Constitution provides a private right

of action where remedies are otherwise unavailable at common law

or under § 1983.”).

That construction, however, provides limited recourse,

as New York State constitutional claims will not lie where the

alleged wrongs can be “redressed by an alternative remedy.”

Gordon, 2022 WL 17585706, at *6 (citing Lyles v. State, 2 A.D.3d

694, 695–96 (2d Dep't 2003)); see also Alwan v. City of New

York, 311 F. Supp. 3d 570, 588 (E.D.N.Y. 2018) (“Under New York

law, a state constitutional-tort claim will not lie when state

tort law provides an alternative means of redress.”).

Alternative remedies for an illegal search and seizure

include Section 1983 and common-law tort claims for false arrest

or imprisonment, which Ronen has alleged. See Gordon, 2022 WL

17585706, at *6; Lyles, 2 A.D.3d at 695–96. Accordingly, this

claim is dismissed.

H. Failure to Intervene

Ronen next brings a claim against the individual

municipal defendants for failing to intervene in his arrest and

imprisonment. TAC ¶¶ 90-94. Because “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,” an officer may be

liable for “preventable harm caused by the actions of the other

officers where that officer observes” a constitutional

violation. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

An officer may only be held liable for failure to intervene 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), aff’d sub nom. Jean-Laurent v.

Wilkerson, 461 F. App’x 18 (2d Cir. 2012).

The Municipal Defendants argue that this claim must be

dismissed, as no underlying constitutional violation is alleged,

and because the officers were alleged to have direct involvement

in the incident at issue. City Mem. 10-11. They are correct

regarding the second point; it is inherent in a claim for

failure to intervene, as laid out above, that the relevant

action was taken by “other officers.” Anderson, 17 F.3d at 557.

The complaint includes no allegations that any constitutional

violations were committed by other officers in the presence of

the individual defendants. Therefore, Ronen’s failure to

intervene claim is dismissed.

I. Malicious Prosecution

Ronen next brings claims under Section 1983 and New

York law for malicious prosecution, against all defendants.

Claims for malicious prosecution under both federal and New York

law must satisfy the following elements: “(1) the initiation or

continuation of a criminal proceeding against plaintiff; (2)

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

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

malice as a motivation for defendant’s actions.” Manganiello v.

City of New York, 612 F.3d 149, 161 (2d Cir. 2010). A Section

1983 malicious prosecution claimant must additionally allege a

post-arraignment deprivation of liberty sufficient to implicate

the plaintiff’s Fourth Amendment rights. See Kinzer v. Jackson,

316 F.3d 139, 143 (2d Cir. 2003).

1. The Malicious Prosecution Claims are

Insufficiently Pleaded as to the Municipal

Defendants

The Municipal Defendants seek to dismiss the malicious

prosecution claims on two bases. First, they argue that

probable cause existed to prosecute Ronen, which is a complete

defense to malicious prosecution. Savino, 331 F.3d at 72.

However, as discussed above, no probable cause (or arguable

probable cause) to arrest can be established at this juncture,

and no facts that are reviewable on a motion to dismiss indicate

that probable cause to prosecute developed thereafter. Second,

the Municipal Defendants assert that the District Attorney’s

office, not the individual defendants or the City, initiated the

prosecution. City Mem. 9-10. We take up this second basis

here.

“[W]here [an] allegation of misconduct is directed at

police, a malicious-prosecution claim cannot stand if the

decision made by the prosecutor to bring criminal charges was

independent of any pressure exerted by police.” Hartman v.

Moore, 547 U.S. 250, 263 (2006). “It is well settled that the

chain of causation” between an officer’s arrest and a subsequent

prosecution “is broken by the intervening exercise of

independent judgment” by the prosecutor “in the absence of

evidence that the police officer misled or pressured” the

prosecutor. Townes, 176 F.3d at 147.

Therefore, “an officer who does no more than disclose

to a prosecutor all material information within his knowledge is

not deemed to be the initiator of the proceeding.” Bailey v.

City of New York, 79 F. Supp. 3d 424, 449 (E.D.N.Y. 2015). At

the same time, officers may be liable for malicious prosecution

when they “failed to make a complete and full statement of facts

to the District Attorney, misrepresented or falsified evidence,

withheld evidence or otherwise acted in bad faith.” Id.

(quoting Manganiello, 612 F.3d 160).

Here, the complaint states that the officers engaged

in wrongdoing by “drafting and signing sworn documents and

police reports, fabricating testimony and evidence, suppressing

and concealing exculpatory evidence, and forwarding and

presenting false information to a court.” TAC ¶ 106. Again,

however, “conclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent

a motion to dismiss.” Smith v. Loc. 819 I.B.T. Pension Plan,

291 F.3d 236, 240 (2d Cir. 2002); see Toussaint v. Cnty. of

Westchester, 615 F. Supp. 3d 215, 227-28 (S.D.N.Y. 2022)

(“Plaintiff offers no concrete allegations for his assertion

that the Officer Defendants played any role in [the

prosecutor]’s decision to prosecute.”). The instant complaint

identifies no actual example of fabricated evidence, exculpatory

evidence withheld, or other “false information” provided to a

prosecutor or court.

Similarly, the complaint does not reference any

particular document or report that the officers allegedly signed

or swore to. See Bernstein v. City of New York, No. 06-CV-895,

2007 WL 1573910, at *5-*6 (S.D.N.Y. May 24, 2007) (dismissing

malicious prosecution claim based on conclusory allegation that

officer prepared a “false accusatory instrument” and swore to

the criminal complaint).18 Therefore, Ronen has not plausibly

pleaded that the officers initiated the proceeding against him.

18 While the act of signing a felony complaint, coupled with specific

factual allegations about an officer’s active participation in the

prosecution, can amount to initiation of prosecution, Manganiello, 612 F.3d

at 163, neither of these components is plausibly alleged here. In fact, the

complaint specifically identifies the Kings County District Attorney’s Office

as the entity that charged Ronen. Am. Compl. ¶ 35.

His allegation of actual malice — that the defendants

“initiated the above-stated malicious prosecution to cover up

their illegal and unconstitutional conduct,” TAC ¶ 104 — is

similarly supported by no factual allegations. Given the

omission to plausibly allege the first and fourth element of a

malicious prosecution claim, this claim is dismissed as to the

Municipal Defendants.

2. The Malicious Prosecution Claims are Dismissed as

to FedEx

As with the claims for false arrest and imprisonment,

the only allegations connecting FedEx to the malicious

prosecution claims are the general allegation that FedEx

wrongfully reported the packages, TAC ¶ 29, and the conclusory

allegation that the FedEx driver “conspired with the Municipal

Defendants,” id. ¶ 97. But the mere act of reporting suspected

evidence cannot amount to malicious prosecution under state law,

either. See, e.g., Du Chateau v. Metro-N. Commuter R. Co., 253

A.D.2d 128, 130-31 (1st Dep’t 1999) (“[A] civilian complainant,

by merely seeking police assistance or furnishing information to

law enforcement authorities . . . will not be held liable for

false arrest or malicious prosecution.”); Present v. Avon

Prods., Inc., 253 A.D.2d 183, 189-90 (1st Dep’t 1999) (reporting

matter to police and responding to inquiries did not suffice to

state malicious prosecution claim, absent allegation “that

defendant played an active role in the prosecution”).

The malicious prosecution claims against FedEx are

therefore dismissed.

J. Ronen’s Negligence Claim Against FedEx

Ronen also brings a claim for state law negligence

against all defendants, asserting, inter alia, that FedEx was

negligent in falsely reporting the package as marijuana, the

City was negligent in training and supervising its officers, and

the individual defendants were negligent in falsely arresting

Ronen. TAC ¶¶ 120-127. “Under New York law, the elements of a

negligence claim are: (i) a duty owed to the plaintiff by the

defendant; (ii) breach of that duty; and (iii) injury

substantially caused by that breach.” Lombard v. Booz-Allen &

Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002). The Municipal

Defendants’ arguments for dismissal of Oren and RDK’s negligence

claims apply equally here. Therefore, for the reasons laid out

in Section III.C-D, supra, Ronen’s negligence claims against the

Municipal Defendants are dismissed.

For its part, FedEx argues that they did not owe Ronen

a duty because the Ground Tariff specifically disclaimed

liability. As discussed in Section III.A, above, the Ground

Tariff cannot be noticed at this stage. Still, the burden rests

with the plaintiff to identify a duty in support of a negligence

claim. Alfaro, 210 F.3d at 114; see also supra Section III.C.

And beyond a passing reference to “Defendants’ non-delegable

duties to Plaintiff,” Ronen does not allege any actual duty that

FedEx owed to him, and thus no breach of duty. Therefore, this

claim is dismissed against FedEx as well.

K. Intentional Infliction of Emotional Distress

Finally, Ronen brings a claim for intentional

infliction of emotional distress (“IIED”) under state law,

against all defendants. “The state law tort of intentional

infliction of emotional distress has four elements: (1) extreme

and outrageous conduct, (2) intent to cause severe emotional

distress, (3) a causal connection between the conduct and the

injury, and (4) severe emotional distress.” Bender v. City of

New York, 78 F.3d 787, 790 (2d Cir. 1996).

The first element requires a showing of conduct that

is “so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Chanko v. Am. Broad. Companies Inc., 27 N.Y.3d 46, 56 (2016).

IIED is, moreover, “a highly disfavored tort under New York law”

and “is to be invoked only as a last resort.” Turley v. ISG

Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014). It serves

primarily “to provide relief in those circumstances where

traditional theories of recovery do not.” Salmon v. Blesser,

802 F.3d 249, 256 (2d Cir. 2015).

In support of his claim, Ronen alleges that FedEx’s

“actions in reporting the shipment to the City as containing

marijuana, when they knew that the shipment did not contain

marijuana, were extreme and outrageous and caused Plaintiff

severe emotional distress.” TAC ¶ 130. He further asserts that

City’s actions in “failing to properly train and supervise its

employees . . . were extreme and outrageous and caused Plaintiff

severe emotional distress,” id. ¶ 131, as did the individual

officers’ actions in falsely arresting him. Id. ¶ 132. These

actions do not clear the high bar of extreme and outrageous

conduct. Morales v. Kerr, 828 N.Y.S.2d 345 (1st Dep’t 2007)

(dismissing IIED claim based on alleged false reports of

criminal acts to government agencies). Because he brings a host

of other claims for the very same conduct alleged here,

moreover, his IIED claim is plainly not a “last resort.” The

claims for intentional infliction of emotional distress are

therefore dismissed.

Conclusion

For the foregoing reasons, the motions to dismiss are

granted in part and denied in part, as set forth above.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: September 28, 2024

Brooklyn, New York