Robertson v. Fluerinord

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

────────────────────────────────────

DALE ROBERTSON,

Plaintiff, 23-cv-4977 (JGK)

- against - MEMORANDUM OPINION

AND ORDER

JACQUELINE FLUERINORD, ET AL.,

Defendants.

────────────────────────────────────

JOHN G. KOELTL, District Judge:

The plaintiff, Dale Robertson, brought this pro se action

pursuant to 42 U.S.C. §§ 1983, 1985 and New York state law

against Jacqueline Fluerinord; Westchester County (the

“County”); the Elmsford Village Police Department, and Elmsford

Police Officers Anthony Lopez and Christopher Bujarski

(together, the “Elmsford Defendants”); the City of New York (the

“City”), the New York City Police Department (“NYPD”), and NYPD

Officer John Theos (together, the “City Defendants”). The

County, the Elmsford Defendants, and the City Defendants move to

dismiss the Amended Complaint for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For the

reasons stated below, the motion is granted.

1 Fluerinord has not answered the Amended Complaint or otherwise appeared in

the action. The Court addresses the plaintiff’s claims against Fluerinord in

a separate order.

I.

A.

The following facts are drawn from the Amended Complaint,

ECF No. 24 (“Am. Compl.”). The allegations in the Amended

Complaint are accepted as true solely for the purposes of

deciding the pending motions. The plaintiff initiated this

action on June 13, 2023. ECF No. 1. On July 27, 2023, the Court

ordered the plaintiff to file an amended complaint. ECF No. 5.

The plaintiff then filed the Amended Complaint on January 5,

2024. ECF No. 24.

B.

The plaintiff alleges that Fluerinord, the plaintiff’s

alleged former girlfriend, robbed the plaintiff. Am. Compl. at 8

(pdf pag.). The plaintiff alleges that he awoke in his hotel

room on September 7, 2020, and discovered that Fluerinord had

fled the hotel after taking the plaintiff’s rental car and

personal property, including $4,000 in cash, clothing, a

cellphone, and marijuana. Id. The plaintiff tried to contact

Fluerinord and request that she return the stolen property, but

Fluerinord never answered. Id.

The Amended Complaint further alleges that, after robbing

the plaintiff, Fluerinord filed false criminal charges against

the plaintiff in order to conceal her own wrongdoing. Id. In

doing so, Fluerinord allegedly made deliberately false

statements to the police, in which she swore that the plaintiff

had kidnapped, assaulted, and raped her. Id.

The plaintiff, meanwhile, had called the police to report

Fluerinord’s theft of his property. Id. However, the Amended

Complaint alleges, the Greenburg Police then came to the hotel

and arrested the plaintiff on false charges—that is, based on

Fluerinord’s assertion that the plaintiff had kidnapped, raped,

and assaulted her. Id. The plaintiff alleges that the arresting

police officers tortured him and placed him in overly

restraining handcuffs, which the plaintiff alleges caused him to

go into cardiac arrest. Id.

The Amended Complaint alleges that the police did not

arrest, or file any charges against, Fluerinord, and appeared

not to have acted on the plaintiff’s allegations against

Fluerinord. Id. Instead, the Amended Complaint alleges,

Westchester and Bronx County conspired with Fluerinord to cover

up her robbery of the plaintiff. Id. This alleged cover-up

involved impounding the plaintiff’s rental car without notifying

the plaintiff or the rental car company of the car’s location,

and without permitting the plaintiff to inspect the vehicle or

retrieve personal property from the car. Id. The plaintiff

alleges that Westchester County and Bronx County either stole

the plaintiff’s personal property from the car or allowed

Fluerinord to keep the items she had stolen from the plaintiff.

Id. at 8–9.

Additionally, the Amended Complaint alleges that the

defendants never vouchered and never returned the plaintiff’s

rental car, money, or other property. Id. at 9. The plaintiff

alleges that the defendants withheld his car even after the

prosecuting attorneys informed police that Fluerinord had stolen

the car and that the car belonged to the plaintiff. Id. The

plaintiff also alleges that he attempted to retrieve his

property at the New York City Courts, Greenburg Police Station,

and White Plains Police Station. Id. However, each of the

plaintiff’s attempts to retrieve his property was unsuccessful,

because the defendants allegedly lied to the plaintiff: the

defendants initially told the plaintiff that the rental car was

never recovered, but then claimed that the car was impounded,

while refusing to voucher or at any point give the plaintiff

access to the car. Id. The plaintiff alleges that he kept

incurring fees for the rental car throughout this period. Id.

The Amended Complaint also alleges that the prosecutors

involved with the plaintiff’s case knew that the charges filed

against the plaintiff were false. Id. Further, the plaintiff

alleges that the prosecutors prevented the case from progressing

to the Grand Jury, out of fear of the defendants’ purported

guilt. Id. The plaintiff alleges that once the investigation

showed the plaintiff’s innocence and revealed Fluerinord’s

actions, the prosecution dropped all charges against the

plaintiff. Id.

The Amended Complaint brings several claims against all the

defendants, including claims for false arrest, malicious

prosecution, and intentional infliction of emotional distress

under New York law, as well as claims pursuant to 42 U.S.C.

§ 1983 for malicious prosecution, wrongful arrest and detention,

evidence manufacturing, denial of a fair trial, and deprivation

of liberty in violation of the Fourth, Fifth, Sixth, and

Fourteenth Amendments. Id. at 10–12. Additionally, the Amended

Complaint asserts a state law claim for negligent hiring,

training, and supervision against the County and the City. Id.

at 11–12. Pursuant to § 1983, the Amended Complaint asserts a

failure to intervene claim against Officers Theos, Lopez, and

Bujarski. Id. at 14. Additionally, the Amended Complaint brings

a claim pursuant to § 1983 against the City and the NYPD for

allegedly unlawful policies, practices, and procedures. Id. The

Amended Complaint also asserts a claim for defamation against

Fluerinord and the City. Id. at 15.

The County, the City Defendants, and the Elmsford

Defendants now move to dismiss the Amended Complaint in its

entirety.

II.

In deciding a motion to dismiss pursuant to Rule 12(b)(6),

the allegations in the complaint are accepted as true, and all

reasonable inferences must be drawn in the plaintiff’s favor.

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007). The Court’s function on a motion to dismiss is “not to

weigh the evidence that might be presented at a trial but merely

to determine whether the complaint itself is legally

sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.

1985).2 The Court should not dismiss the complaint if the

plaintiff has stated “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

While the Court should construe the factual allegations in

the light most favorable to the plaintiff, “the tenet that a

court must accept as true all of the allegations contained in

the complaint is inapplicable to legal conclusions.” Id. When

presented with a motion to dismiss pursuant to Rule 12(b)(6),

2 Unless otherwise noted, this Memorandum Opinion and Order omits all internal

alterations, citations, footnotes, and quotation marks in quoted text.

the Court may consider documents that are referenced in the

complaint, documents that the plaintiff relied on in bringing

suit and that are either in the plaintiff’s possession or that

the plaintiff knew of when bringing suit, or matters of which

judicial notice may be taken. See Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002).

When faced with a pro se complaint, the Court must

“construe [the] complaint liberally and interpret it to raise

the strongest arguments that it suggests.” Chavis v. Chappius,

618 F.3d 162, 170 (2d Cir. 2010). “Even in a pro se case,

however, . . . threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Id. Thus, although the Court is “obligated to draw the

most favorable inferences” that the complaint supports, it

“cannot invent factual allegations that [the plaintiff] has not

pled.” Id.; see also Yajaira Bezares C. v. The Donna Karan Co.

Store LLC, No. 13-cv-8560, 2014 WL 2134600, at *1 (S.D.N.Y. May

22, 2014).

III.

Against the County, the plaintiff brings claims for false

arrest; malicious prosecution; intentional infliction of

emotional distress; and negligent hiring, training, and

supervision under § 1983 and state law. Am. Compl. at 10–14.3

Because the plaintiff has not pleaded sufficient facts alleging

the § 1983 claims, those claims are dismissed. Further, because

the plaintiff did not plead that he filed a notice of claim, the

plaintiff’s state law claims are barred by statutes of

limitations and those claims are also dismissed.

A.

42 U.S.C. § 1983 provides: “Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of any

State . . . , subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction

thereof to the deprivation of rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.”

The County may be held liable under § 1983 only if there is

municipal liability pursuant to Monell v. Department of Social

3 The Amended Complaint also purports to bring claims pursuant to 42 U.S.C.

§ 1985. Am. Compl. at 1, 10. Section 1985, which addresses conspiracies to

interfere with civil rights, contains three separate provisions, respectively

pertaining to (1) preventing officers from performing duties, (2) obstructing

justice or intimidating parties, witnesses, or jurors, and (3) depriving

persons of rights or privileges. 42 U.S.C. § 1985. To state a conspiracy

claim under 42 U.S.C. § 1985(3), the plaintiff must allege (1) some racial or

other class-based discriminatory animus underlying the defendants’ actions,

and (2) that the conspiracy was aimed at interfering with the plaintiff’s

protected rights. Sklodowska-Grezak v. Stein, 236 F. Supp. 3d 805, 809

(S.D.N.Y. 2017). To the extent that the plaintiff has attempted to allege

that any of the defendants conspired to deprive the plaintiff of the equal

protection of the laws in violation of § 1985(3), he has failed to allege

such a violation.

Services, 436 U.S. 658, 694–95 (1978), for violation of the

plaintiff’s rights under § 1983. The elements of a municipal

liability claim under Monell are “(1) a municipal policy or

custom that (2) causes the plaintiff to be subjected to (3) the

deprivation of a constitutional right.” Agosto v. N.Y. City

Dep’t of Educ., 982 F.3d 86, 97–98 (2d Cir. 2020). The plaintiff

has failed to allege sufficient facts supporting the County’s

municipal liability under Monell.

A plaintiff may show the existence of a municipal policy or

custom in a number of ways, namely, by identifying 1) an express

policy or custom; 2) an authorization of a policymaker of the

unconstitutional practice; 3) failure of the municipality to

train its employees, which exhibits a “deliberate indifference”

to the rights of its citizens; or 4) a practice of the municipal

employees that is “so permanent and well settled as to imply the

constructive acquiescence of senior policy-making officials.”

Biswas v. City of New York, 973 F. Supp. 2d 504, 536 (S.D.N.Y.

2013).

In this case, the plaintiff has not sufficiently alleged a

municipal policy or custom that gave rise to the alleged § 1983

violations. The Amended Complaint alleges that the County “acted

pursuant to a policy or custom . . . of impounding vehicles in

depriving their owners and operators of personal property

without court order.” Am. Compl. at 10-11. Similarly, the

Amended Complaint alleges that the County “established policies,

practices, procedures, and customs that were intended to and did

encourage, endorse, and reward their agents and employees for

violating the constitutional rights of plaintiff and other

similarly situated persons.” Id. at 15. However, for such

claims, “[t]he custom and policy must be described with factual

specificity, rather than bare and conclusory statements.” Perez

v. Metropolitan Transp. Auth., No. 11-cv-8655, 2012 WL 19943943,

at *4 (S.D.N.Y. May 29, 2012). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555).

Accordingly, the plaintiff’s § 1983 claims against the

County must be dismissed.

B.

The plaintiff also brings state law claims against the

County, including claims for false arrest, malicious

prosecution, intentional infliction of emotional distress, and

negligent hiring, training, and supervision. Am. Compl. at 10-

12. Because the plaintiff’s state law claims are barred by the

statute of limitations, and because the plaintiff failed to

plead that he filed a notice of claim, these state law claims

must be dismissed.

The plaintiff’s claims are barred by the statute of

limitations. Under New York law, an action for damages against

“any political subdivision of the state” may not “commence[]

more than one year and ninety days after the cause of action”

accrued. N.Y. CPLR § 217-a.

The plaintiff’s various causes of action did not all accrue

on the same date. Because causes of action based on false arrest

accrue when the arrestee is released from confinement, the

plaintiff’s cause of action for false arrest accrued on

September 7, 2020. Bellissimo v. Mitchell, 995 N.Y.S.2d 603, 605

(App. Div. 2014); Am. Compl. at 8. Because causes of action

based on intentional infliction of emotional distress begin to

accrue on the date of injury, that claim also began to accrue on

September 7, 2020, when the plaintiff was arrested. Am. Compl.

at 8; Bellissimo, 995 N.Y.S.2d at 605. Because causes of action

based on negligent hiring, training, and supervision accrue on

the date of the event on which the claim is based, this cause of

action also began to accrue on the day of the plaintiff’s

arrest. Murray v. City of New York, 725 N.Y.S.2d 73, 74 (App.

Div. 2001). Finally, because claims for malicious prosecution

accrue on the date that the criminal proceedings against the

plaintiff are terminated, that cause of action accrued on July

14, 2021. Am. Compl. at 11; Williams v. City of New York, 62

N.Y.S.3d 401, 406–07 (App. Div. 2017). In this case, the

plaintiff did not file the original complaint until June 13,

2023. ECF No. 1. Because that is well beyond the one year and

ninety day statute of limitations for all of the plaintiff’s

state law claims, the plaintiff’s state law claims are time-

barred. See N.Y. CPLR § 217-a.

Additionally, the plaintiff’s state law claims are

dismissed for the plaintiff’s failure to plead that he filed a

notice of claim. Under New York law, “no action or special

proceeding founded upon tort may be prosecuted or maintained”

against a municipality unless, among other requirements, the

plaintiff files a notice of claim with the municipality within

ninety days of the claim arising. N.Y. Gen. Mun. Law 50–e; Gym

Door Repairs, Inc. v. Young Equipment Sales, Inc., 206 F. Supp.

3d 869, 909 (S.D.N.Y. 2016). Further, in the subsequent action,

the plaintiff must plead that a notice of claim was filed. N.Y.

Gen. Mun. Law 50–e. In this case, the plaintiff has not pleaded

that a notice of claim was filed. Accordingly, the plaintiff’s

state law claims must be dismissed.

IV.

Against the City Defendants, the plaintiff brings claims

pursuant to § 1983 for false arrest, malicious prosecution,

denial of a fair trial, and failure to intervene. Am. Compl. at

10–15. The plaintiff also brings state law claims for false

arrest, malicious prosecution, intentional infliction of

emotional distress, defamation, and negligent hiring, training,

and supervision. Id. For the reasons discussed below, the City

Defendants’ motion to dismiss is granted.

A.

The Amended Complaint separately names the NYPD as a

defendant. However, it is well-established that, under New York

law, “the NYPD is a non-suable agency of the City.” Jenkins v.

City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also

N.Y.C. Charter § 396. The plaintiff’s claims against the NYPD

are therefore dismissed.

B.

The plaintiff asserts a false arrest claim pursuant to

§ 1983 against the City Defendants.

In New York, to state a claim for false arrest or false

imprisonment, the plaintiff must show that “(1) the defendants

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.” Holland v. City of Poughkeepsie, 935 N.Y.S.2d 583,

589 (App Div. 2011); see also Weyant v. Okst, 101 F.3d 845, 852

(2d Cir. 1996) (noting that a § 1983 claim for false arrest is

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

York law). However, an arrest of a criminal suspect by a law

enforcement officer with probable cause is a “privileged”

confinement. Bennett v. Vidal, 267 F. Supp. 3d 487, 493

(S.D.N.Y. 2017). Therefore, “[t]he existence of probable cause

to arrest constitutes a complete defense to an action for false

arrest, whether that action is brought under Section 1983 or

state law.” Id. “Probable cause exists where the arresting

officer has knowledge of 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.” United States

v. Delossantos, 536 F.3d 155, 158 (2d Cir. 2008).

In this case, the facts alleged in the Amended Complaint

establish that there was probable cause to arrest the plaintiff.

The Amended Complaint alleges that after Fluerinord filed

allegedly false charges of kidnap, rape, and assault against the

plaintiff with the police, the police sought to arrest the

plaintiff based on Fluerinord’s complaints. Am. Compl. at 8.

Crucially, the plaintiff also alleges that Fluerinord swore to

the authorities that her allegations against the plaintiff were

true. Id. When making a probable cause determination, police

officers are entitled to rely on the victim’s allegations that a

crime has been committed, Martinez v. Simonetti, 202 F.3d 625,

634 (2d Cir. 2000), “unless the circumstances raise doubt as to

the person’s veracity,” Curley v. Vill. of Suffern, 268 F.3d 65,

70 (2d Cir. 2001). Further, an officer is not required to

confirm independently allegations by an eyewitness or victim in

order to have probable cause to arrest. Pierre v. City of New

York, 05-cv-5017, 2007 WL 2403573, at *8–9 (E.D.N.Y. Aug. 17,

2007). In this case, Fluerinord’s sworn allegations against

plaintiff thus gave the police probable cause for arrest.

Because Fluerinord’s allegations against the plaintiff gave

the police probable cause to arrest the plaintiff, and probable

cause constitutes a complete defense to false arrest claims, the

plaintiff’s false arrest claims pursuant to § 1983 and state law

are dismissed. Bennett, 267 F. Supp. 3d at 493.

C.

The plaintiff also brings a claim for malicious prosecution

pursuant to § 1983 against the City Defendants. Because there

was probable cause to arrest the plaintiff, the plaintiff fails

to state a malicious prosecution claim pursuant to § 1983.

To establish a claim for malicious prosecution under

§ 1983, the plaintiff must establish the elements of a malicious

prosecution claim under New York state law, as well as a

violation of the plaintiff’s rights under the Fourth Amendment.

Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir.

2010). In New York, a claim for malicious prosecution requires

the plaintiff to show “(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.” Id. at 161. A plaintiff asserting a

claim for malicious prosecution pursuant to § 1983 must

establish the additional element of “(5) a sufficient post-

arraignment liberty restraint to implicate the plaintiff’s

Fourth Amendment rights.” Rohman v. New York City Transit Auth.,

215 F.3d 208, 215 (2d Cir. 2000).

Similar to a claim for false arrest, the existence of

probable cause is a complete defense to a claim for malicious

prosecution in New York. Manganiello, 612 F.3d at 161–62; Cooper

v. City of New Rochelle, 925 F. Supp. 2d 588, 611 (S.D.N.Y.

2013). Specifically, “a malicious prosecution claim will be

defeated by a finding of probable cause to arrest, unless the

plaintiff can demonstrate mitigating facts to vitiate probable

cause which were first uncovered after the arrest.” Carson v.

Lewis, 35 F. Supp. 2d 250, 263 (E.D.N.Y. 1999); see also Dukes

v. City of New York, 879 F. Supp. 335, 342 (S.D.N.Y. 1995).

In this case, as noted above, the facts alleged in the

Amended Complaint establish that there was probable cause to

arrest the plaintiff based on the charges Fluerinord filed with

the police. Further, the Amended Complaint does not suggest that

Officer Theos was presented with any “mitigating facts to

vitiate probable cause” after the arrest, beyond the plaintiff’s

denial of the charges. McKay v. City of New York, 32 F. Supp. 3d

499, 511 (S.D.N.Y. 2014). Because probable cause can still exist

“where a police officer [is] presented with different stories

from an alleged victim and the arrestee,” Curley, 268 F.3d at

70, the plaintiff’s denial of the charges against him does not

negate the probable cause that Officer Theos had. Therefore,

Officer Theos had probable cause to commence the proceeding

against the plaintiff, and because probable cause is a complete

defense to a malicious prosecution claim, the plaintiff’s

malicious prosecution claims are dismissed.4

D.

The plaintiff also brings a § 1983 claim against Officer

Theos for denial of a fair trial. Am. Compl. at 12.

To succeed on a § 1983 fair trial claim based on fabricated

evidence, a plaintiff must prove that “an (1) investigating

official (2) fabricates information (3) that is likely to

influence a jury’s verdict, (4) forwards that information to

prosecutors, and (5) the plaintiff suffers a deprivation of

4 In response to the plaintiff’s argument in his opposition papers that

Officer Theos is not shielded by qualified immunity, the City Defendants

contend for the first time, in reply, that Officer Theos is entitled to

qualified immunity on the plaintiff’s false arrest and malicious prosecution

claims. See City Defs.’ Reply at 5–6, ECF No. 57. However, qualified immunity

was not an argument that the City Defendants initially raised, and therefore

is not a basis for the City Defendants’ motion. See Clubside, Inc. v.

Valentin, 468 F.3d 144, 159 n.5 (2d Cir. 2006) (“[W]e generally do not

consider arguments that are raised for the first time in a reply brief.”). In

any event, qualified immunity is rarely a proper basis for granting a motion

to dismiss. See, e.g., Chamberlain Estate of Chamberlain v. City of White

Plains, 960 F.3d 100, 110–11 (2d Cir. 2020) (“[A]s a general rule, the

defense of qualified immunity cannot support the grant of a Rule 12(b)(6)

motion.”).

life, liberty, or property as a result.” Garnett v. Undercover

Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016). In bringing

such a claim, a plaintiff “may rely on allegedly false

information in the criminal complaint, as well as other

documents in the record,” such as “arrest paperwork.” Kee v.

City of New York, 12 F.4th 150, 170 (2d Cir. 2021).

In this case, the Amended Complaint does not allege

adequately that Officer Theos fabricated information. The

plaintiff conclusorily asserts that Officer Theos, acting in

concert with Officers Lopez and Bujarski, “created misdemeanor

police and complaint reports omitting exculpatory information,

and alleging Plaintiff committed crimes that the plaintiff

simply did not commit,” that “[t]he misleading information

contained in those false reports and the information omitted

from them[] was likely to influence a jury’s decision,” and that

Officers Theos, Lopez, and Bujarski “then forwarded those

reports to prosecutors.” Am. Compl. at 13. The Amended

Complaint does not explain what “exculpatory information” was

allegedly omitted from reports that Officer Theos may have

prepared, nor does it set forth any facts “regarding what

precise evidence or allegations” Officer Theos purportedly

fabricated in specific police reports. See, e.g., Jean-Laurent

v. Cornelius, No. 15-cv-2217, 2017 WL 933100, at *7 (S.D.N.Y.

Mar. 8, 2017) (finding the plaintiff’s allegations conclusory

because the complaint “does not set forth any facts regarding

which particular allegations were fabricated”); Armory v. Katz,

No. 15-cv-1535, 2016 WL 7377091, at *9 (D. Conn. Dec. 19, 2016)

(dismissing a claim where the plaintiff’s only allegations were

“conclusory statements that the officers’ description of events

were ‘false’”); Longo v. Ortiz, No. 15-cv-7716, 2016 WL 5376212,

at *6 (S.D.N.Y. Sept. 26, 2016) (finding that the plaintiff’s

allegations “fail to state with the requisite specificity the

evidence that was purportedly fabricated,” where the plaintiff

alleged that “the defendants fabricated evidence, gave false

testimony, and made false extrajudicial statements to the [DA’s]

Office to be used against [the plaintiff] at trial . . . in an

effort to secure a search warrant, indictment and conviction”).

Accordingly, the plaintiff fails to state a claim for

denial of a fair trial based on fabrication of evidence against

Officer Theos.

E.

The plaintiff also brings a claim pursuant to § 1983

against the City Defendants for deprivation of property in

violation of the due process clause of the Fourteenth Amendment.

Because meaningful postdeprivation remedies were available to

the plaintiff, this claim fails.

To succeed on a procedural due process claim, a plaintiff

must establish that (1) a deprivation of life, liberty, or

property occurred (2) without due process of law. Evans v. City

of New York, 308 F. Supp. 2d 316, 323 (S.D.N.Y. 2004). With

regard to the second element—that there was no due process of

law—“the type of process due depends in part on whether the

alleged violation was caused by established state procedures or

by random, unauthorized acts by state employees.” Ford Motor

Credit Co. v. N.Y. City Police Dep’t, 394 F. Supp. 2d 600, 610

(S.D.N.Y. 2005). If the alleged deprivation is the result of a

random and unauthorized act by state employees, but the state

provides a meaningful postdeprivation remedy, then there is no

due process violation. Hellenic Am. Neighborhood Action Comm. v.

City of New York, 101 F.3d 877, 880 (2d Cir. 1996). In contrast,

if the deprivation is the result of established state

procedures, the availability of a postdeprivation remedy does

not by itself satisfy due process. Id.

Construing the Amended Complaint liberally, the plaintiff

alleges that Officer Theos, along with Officers Lopez and

Bujarski, deprived the plaintiff of his property, including his

rental car and the possessions in it such as his clothes,

cellphone, and money, without due process of law. Am. Compl. at

9. Specifically, the plaintiff alleges that his rental car was

impounded by the police without a voucher. Id. Further, the

plaintiff alleges that, when he attempted to retrieve his

property by going to the New York State Courts, Greenburg Police

Station, and White Plains Police Station, he was told that his

car was not in their possession or was impounded, and was in

each instance denied return of his property. Id.

In this case, the alleged deprivation of property suffered

by the plaintiff was based on the random, unauthorized acts of

the defendants. The plaintiff alleges that he received no

voucher for his seized property. Id. New York City and state law

entitles a person to a property voucher for property taken at

the time of arrest. Because the plaintiff alleges that the

defendants’ deprivation of his property was contrary to the

rules of established state procedure, the alleged deprivation

was a random and unauthorized act. See Ochoa v. Bratton, No. 16-

cv-2852, 2017 WL 5900552, at *5 (S.D.N.Y. Nov. 28, 2017).

The plaintiff had access to meaningful postdeprivation

remedies, such as state law causes of action for negligence,

replevin, or conversion. Id.; see also Dove v. City of New York,

No. 99-cv-3020, 2000 WL 342682, at *3 (S.D.N.Y. Mar. 30, 2000);

Mejia v. New York City Dep’t of Corr., No. 96-cv-2306, 1999 WL

138306, at *4 (E.D.N.Y. Mar. 5, 1999). Because the plaintiff had

access to meaningful postdeprivation remedies, there was no

violation of due process.

For these reasons, the plaintiff’s claim of deprivation of

property in violation of the due process clause against the City

Defendants is dismissed.

F.

The plaintiff brings a failure to intervene claim pursuant

to § 1983 against Officer Theos. “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 attaches when (1) the officer had “a realistic

opportunity to intervene to prevent the harm”; (2) a reasonable

person in the officer’s position would know that the victim’s

constitutional rights were being violated; and (3) the officer

does not take reasonable steps to intervene. See id.

In this case, the plaintiff alleges only that Officer

Theos, along with Officers Lopez and Bujarski, were present at

the scene of the plaintiff’s arrest and were aware of, and took

no steps to prevent or stop, the ongoing violation of the

plaintiff’s constitutional rights. Am. Compl. at 14. These

“threadbare recitals of the elements of a cause of action” are

insufficient to state a claim. Chavis, 618 F.3d at 170; see also

Ying Li v. City of New York, 246 F. Supp. 3d 578, 619–20

(E.D.N.Y. 2017) (dismissing a claim where the plaintiff “resorts

to conclusory generalized allegations asserting her failure to

intervene claim against every single [d]efendant and refers to

the numerous defendants collectively”); Hardy v. City of New

York, No. 12-cv-17, 20213 WL 5231459, at *4 (S.D.N.Y. July 9,

2013) (“This restatement of the legal standard . . . does not

sufficiently allege constitutional violations in which the

Individual Defendants might have intervened. Where were the

officers in relation to Plaintiff and in relation to each other?

What impermissible actions did they take? Which officers

observed those actions? Plaintiff does not say.”).

In any event, as explained above, the plaintiff has alleged

no underlying constitutional violations in which Officer Theos

could have intervened. See Hardy, 2013 WL 5231459, at *4 (“As a

preliminary matter, the Court notes that it has dismissed

Plaintiff’s claims for constitutional violations. As a result,

Plaintiff has alleged no violations in which the Individual

Defendants could have intervened.”).

For these reasons, the failure to intervene claim against

Officer Theos is dismissed.

G.

The plaintiff’s § 1983 claims against the City must be

dismissed for an additional reason: failure to plead Monell

liability. As with the County, the plaintiff fails to allege

specific facts that plead the existence of an official policy or

custom that caused the alleged violations of the plaintiff’s

rights. The plaintiff’s conclusory assertions are insufficient

to plead a Monell claim against the City. Accordingly, the

plaintiff’s § 1983 claims against the City are dismissed.

H.

The plaintiff brings several state law claims against the

City Defendants, including negligent hiring, training, and

supervision, intentional infliction of emotional distress,

malicious prosecution, false arrest, and defamation. Am. Compl.

at 10–12, 15. Because the plaintiff’s state law claims are

barred by the applicable statute of limitations, these claims

are dismissed. These state law claims are also dismissed due to

the plaintiff’s failure to comply with the notice of claim

requirements of New York law.

The applicable statute of limitations bars the plaintiff’s

state law claims. The plaintiff initiated this action on June

13, 2023. ECF No. 1. A claim against the City or its employees

must be initiated within one year and ninety days after the

happening of the event upon which the claim is based. N.Y. Gen.

Mun. Law § 50-i(1). In this case, the plaintiff’s various state

law claims either accrued on the date of the plaintiff’s arrest,

September 7, 2020, or the date of the termination of the

criminal proceedings in favor of the plaintiff, July 14, 2021.

See Am. Compl. at 8, 11. Because the plaintiff initiated the

action long after the one year and ninety days statute of

limitations period had passed, the plaintiff’s state law claims

must be dismissed.

Additionally, the plaintiff failed to comply with the

notice of claim requirements of N.Y. General Municipal Law § 50-

i. As was true for the County, the plaintiff’s failure to file a

timely notice of claim and plead that he had done so requires

that his state law claims against the City be dismissed. See PBS

Bldg. Systems, Inc. v. City of New York, No. 94-cv-3488, 1996 WL

583380, at *3 (S.D.N.Y. Oct. 10, 1996). In this case, the

plaintiff has at no point pleaded that any notice of claim was

filed. Because the plaintiff has not complied with the notice of

claim requirements, the state law claims against the City

Defendants are dismissed.

V.

Finally, the plaintiff brings claims pursuant to § 1983 and

state law against the Elmsford Police Department and Elmsford

Police Officers Lopez and Bujarski. The plaintiff’s state law

claims include false arrest, malicious prosecution, and

intentional infliction of emotional distress. Am. Compl. at 10–

11. The plaintiff’s § 1983 claims include malicious prosecution,

wrongful arrest, evidence manufacturing, denial of a fair trial,

deprivation of liberty or property in violation of the

Fourteenth Amendment, and failure to intervene. Id. at 12-14.

For the reasons discussed below, all of the plaintiff’s claims

against the Elmsford Police Department and Officers Lopez and

Bujarski are dismissed.

A.

The plaintiff fails to allege facts that plausibly state a

§ 1983 claim against Officers Lopez and Bujarski. A plaintiff

must plead the personal involvement of each defendant in an

alleged violation of § 1983. A’Gard v. Perez, 919 F. Supp. 2d

394, 406 (S.D.N.Y. 2013).

In this case, the Amended Complaint fails to allege facts

showing the personal involvement of Officers Lopez or Bujarski

in any plausible constitutional violation. The plaintiff alleges

that the officers “acted in a criminal manner while on duty

during the time of the plaintiff’s malicious and false

prosecution,” and that they unlawfully deprived the plaintiff of

his property without due process. Am. Compl. at 9-10. The

plaintiff also alleges that Officers Lopez and Bujarski, acting

in concert with NYPD Officer Theos, created misdemeanor police

and complaint reports that omitted exculpatory information and

alleged crimes the plaintiff did not commit. Id. at 13. As

explained above with respect to Officer Theos, the plaintiff’s

allegations are wholly conclusory and therefore inadequate to

plead any constitutional violation, let alone Officers Lopez’s

and Bujarski’s personal involvement. Moreover, the plaintiff

alleges that he was arrested by the Greenburg Police, rather

than the Elmsford Police. Id. at 8. Although the Court is

“obligated to draw the most favorable inferences” that the

Amended Complaint supports, it “cannot invent factual

allegations that [the plaintiff] has not pled.” Chavis, 618 F.3d

at 170.

For those reasons, the § 1983 claims against Officers Lopez

and Bujarski are dismissed.

B.

The plaintiff’s § 1983 claims against the Elmsford Police

Department are also dismissed. Because the Elmsford Police

Department is an administrative arm of the Village of Elmsford,

“it does not have a legal identity separate and apart from the

municipality and thus cannot be sued.” Williams v. City of White

Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010); see also

Fanelli v. Town of Harrison, 46 F. Supp. 2d 254, 257 (S.D.N.Y.

1999).

Additionally, even if the Amended Complaint were construed

to sue the Village of Elmsford rather than the Elmsford Police

Department, the plaintiff has failed to allege any facts

supporting Monell liability. The Amended Complaint does not

allege a single fact supporting any policy or custom of the

Village of Elmsford that caused the alleged constitutional

violations. Accordingly, the plaintiff’s § 1983 claims against

the Elmsford Police Department (or against the Village of

Elmsford) must be dismissed.

C.

As with the state law claims against the City and

Westchester County, the plaintiff fails to allege that he

complied with the requirements of N.Y. General Municipal Law

§ 50-i. In this case, the plaintiff has not pleaded that any

notice of claim was filed or that the plaintiff complied with

the other requirements of N.Y. General Municipal Law § 50-i.

Accordingly, the plaintiff’s state law claims against the

Elmsford Defendants must be dismissed.

D.

The plaintiff’s § 1983 claims against Officers Lopez and

Bujarski pertaining to the plaintiff’s September 7, 2020 arrest

are also barred by the statute of limitations.

Although the plaintiff was arrested on September 7, 2020,

the plaintiff did not name Officers Lopez and Bujarski in this

action until the plaintiff filed the Amended Complaint on

January 5, 2024. ECF No. 24. In New York, the statute of

limitations for § 1983 claims is three years. Pearl v. City of

Long Beach, 296 F. 3d 76, 79 (2d Cir. 2002). Because over three

years had passed between plaintiff’s arrest and plaintiff’s

filing of the amended complaint, the plaintiff’s claims against

Officers Lopez and Bujarski are barred unless they relate back

to the date of the original pleading pursuant to Federal Rule of

Civil Procedure 15(c).

Rule 15(c) provides three ways in which an amendment to a

pleading may relate back to the date of the original pleading.

Specifically, an amendment to a pleading relates back when:

(A) the law that provides the applicable statute of

limitations allows relation back;

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out—

or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the

party against whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will

not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would

have been brought against it, but for a mistake

concerning the proper party’s identity.

Fed R. Civ. P. 15(c). Because the plaintiff seeks to amend the

complaint to substitute named defendants for the John Doe

defendants, Rules 15(c)(1)(A) and Rules 15(c)(1)(C) are most

relevant on this motion.

In this case, relation back is unavailable under Rule

15(c)(1)(A). For § 1983 claims in cases involving John Doe

arising in New York, courts analyzing relation back look to N.Y.

CPLR § 1024. See Hogan v. Fischer, 738 F.3d 509, 518–19 (2d Cir.

2013). “To take advantage of § 1024, a party must meet two

requirements. . . . First, the party must exercise due

diligence, prior to the running of the statute of limitations,

to identify the defendant by name. . . . Second, the party must

describe the John Doe party in such form as will fairly apprise

the party that he is the intended defendant.” Id. at 519.

The plaintiff failed to satisfy either requirement of CPLR

§ 1024. First, there is no indication that the plaintiff

exercised due diligence to identify the John Doe defendants

within the three-year statute of limitations. The plaintiff has

provided no information regarding any pre-filing efforts he may

have made to identify Officers Lopez and Bujarski. See, e.g.,

Williams v. United States, No. 07-cv-3018, 2010 WL 963474

(S.D.N.Y. Feb. 25, 2010), report & recommendation adopted, 2010

WL 963465 (S.D.N.Y. Mar. 16, 2010) (“Plaintiff could have filed

FOIL requests or written letters to the USAO [to identify the

individual defendants]. . . . Even if unsuccessful, this would

have at least evinced some degree of diligence.”).

Second, the plaintiff’s original complaint did not describe

the John Doe defendants “in such form as will fairly apprise the

part[ies] that [they are] the intended defendant[s].” Hogan, 738

F.3d at 519. In fact, the original complaint, like the Amended

Complaint, alleges that the plaintiff was arrested by the

Greenburg police, not the Elmsford police. See Compl. at 5 (pdf

pag.), ECF No. 1. Accordingly, the plaintiff’s original

complaint did not “provide[] enough detail to give notice to the

John Does that they [were] the intended defendants.” Hogan, 738

F.3d at 519.

Relation back is also unavailable under Rule 15(c)(1)(C).

The Second Circuit Court of Appeals has held that, “although

Rule 15(c) explicitly allows the relation back of an amendment

due to a ‘mistake’ concerning the identity of the parties, the

failure to identify individual defendants when the plaintiff

knows that such defendants must be named cannot be characterized

as a mistake.” Id. at 517–18. Because the plaintiff’s “lack of

knowledge of a John Doe defendant’s name does not constitute a

mistake of identity,” the plaintiff is time-barred from amending

his complaint under Rule 15(c)(1)(C). Id. at 518.

In sum, the plaintiff’s § 1983 claims against Officers

Lopez and Bujarski are barred by the statute of limitations.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed above, the

arguments are either moot or without merit. For the foregoing

reasons, the motion to dismiss the Amended Complaint with

respect to the County, the City Defendants, and the Elmsford

Defendants is granted. If the plaintiff wishes to file a Second

Amended Complaint, the plaintiff should file a motion for leave

to file such a complaint with a copy of the proposed amended

complaint and an explanation of how such a complaint would

resolve the issues identified by the Court. Any such motion must

be filed by December 6, 2024. If the plaintiff fails to file

such a motion, the claims against the County, the Elmsford

Defendants, and the City Defendants will be dismissed with

prejudice. The Clerk is directed to mail a copy of this

Memorandum Opinion and Order to the pro se plaintiff and to note

mailing on the docket. The Clerk is respectfully requested to

close ECF Nos. 43, 48, and 50.

SO ORDERED.

Dated: New York, New York SONG Lo py

November 8, 2024 A Co [Ctl

United States District Judge

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