Jimenez v. County of Nassau

CLERK

UNITED STATES DISTRICT COURT 2:09 pm, Sep   24, 2025

EASTERN DISTRICT OF NEW YORK

X U.S. DISTRICT COURT

MIGUEL JIMENEZ, EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Plaintiff, MEMORANDUM OF

- against – DECISION & ORDER

18-CV-3911 (GRB)(AYS)

CHARLES JAVOROWSKY and

DANIEL BILZ,

Defendants.1

X

GARY R. BROWN, United States District Judge:

In this §1983 action, defendants Charles Javorowsky and Daniel Bilz move for summary

judgment. Those motions are granted in part and denied in part for the reasons set forth herein

and as summarized in the table contained in the conclusion section.

FACTS

The following represents the undisputed facts, facts which are, based on the evidence

provided, indisputable, and/or facts which are deemed admitted as a result of inadequate

disputation.

On January 1, 2018, Emalee Jimanez, plaintiff’s daughter, was upstairs in plaintiff’s home,

while plaintiff and his wife were entertaining “old friends” named Douglas Kuhn and his wife,

1 On consent, the Court dismissed the Monell claim against Nassau county at the pre-motion

conference on May 30, 2024. DE 89 at 36. In addition, “[p]laintiff's claims against . . .

Nassau County Police Department cannot proceed, as [it] do[es] not have a legal identity

separate and apart from Nassau County and thus cannot be sued.” Haddock v. Nassau Dist.

Attorney's Off., No. 22-CV-6161 (KAM), 2023 WL 3231489 at *1 (E.D.N.Y. May 3, 2023).

Accordingly, the caption has been amended to remove Nassau County and Nassau County Police

Department as defendants. Moreover, plaintiff never identified Police Officers John Doe(s) 1-

10, who have similarly been removed.

Annie McMenamin. Docket Entry (“DE”) 94-8 at 20-28.2 Suddenly, she heard a thud, as though

someone had fallen to the floor, sounds of wrestling or scuffling and overheard part of an argument

between plaintiff and Kuhn. Id. at 30. Emalee heard Kuhn yelling that he was going to kill plaintiff

“in front of his family” and was going to get a gun to carry out that threat. Id. at 31. She then

heard Kuhn saying that he was going to hurt plaintiff and his family. Id. at 34. Emalee witnessed

Kuhn, whom she found to be a “scary guy,” punch a hole in the wall of the house (something he

did a second time) and again threaten to get his gun. Id. at 35.

Emalee borrowed her sister’s phone and called 9-1-1. She later testified as to the content

of the call, reporting that she told the operator:

That I was scared and that this guy was really going to harm us. I was telling her

what I had heard him say. Like about the gun and whatnot. If we could have a

police officer come.

Id. at 36. Police records indicate that the call was received at approximately 5:43 p.m., and reflect

that the caller communicated the following:

There is a really bad dispute here, I feel like someone is going to get hurt. There is

a guy who is really unstable and strong and he was invited over and is punching

holes in the wall, he is threatening to kill people . . . he is threatening my parents,

me and my little sister.

DE 94-19 at 8-9. A disturbance could be heard in the background of portions of the tape. Id.

Approximately one minute later, a second call was made to 9-1-1 by an unknown male caller

stating “Disturbance at 212 Gordon Aveneue, Westbury. Quickly.” Id. The male caller then hung

up. Id.

Six officers, including defendants Javorowsky and Bilz, responded to the premises. DE 84

2 While the Court has, for the sake of brevity, cited the parties’ Rule 56.1 statements and

deposition testimony, such assertions have also been verified through examination of the

underlying evidence submitted on this motion. DE 94-96

at ¶ 15. Javorowsky had previously been to the premises responding to a domestic disturbance

call. Id. at ¶ 37. The parties agree that the officers “arrived to a hectic, chaotic scene.” Id. at ¶

16. Kuhn was intoxicated and belligerent. Id. at ¶ 17. Two officers, assisted by Javorowsky and

Bilz, placed Kuhn under arrest. Id. at ¶ 19. During that process, Kuhn’s wife, Annie McMenamin,

who appeared intoxicated, became angry and belligerent, yelling and screaming at the officers, and

may have taken a “swing” at Javorowsky without touching him. Id. at ¶ 20-21. After continued

interactions between the officers, McMenamin, plaintiff and his wife, Javorowsky told plaintiff

that he needed to check the house to ensure that no one inside was hurt. Id. at ¶ 26. Plaintiff

replied “you’re not going into the house without a warrant.” Id.. After some exchanges, plaintiff

continued to insist that the officers get a warrant before entering the property and referred to

“controlling his dogs,” – a pair of Dobermans – which the officers may have interpreted as a threat.

Id. at ¶¶ 28-31, DE 94-4 at 81. Plaintiff re-entered the house, accompanied by McMenamin,

closing and apparently locking the door behind him. DE 84 at ¶ 32. Whether McMenamin entered

with him voluntarily or was forced by plaintiff remains in dispute. Id. at ¶ 33.

The officers had not had the opportunity to speak with the 9-1-1 caller or the opportunity

to fully investigate the reasons for the call. Id. at ¶ 35. As a result of his previous visit to the

home, Javorowsky was aware that the residents of the home included plaintiff’s wife, her mother,

and her two daughters. Id. at ¶ 38. The officers did not know who else was in the home or who

had made the call, other than from statements made by plaintiff’s wife and another daughter. Id.

at ¶ 34.

A sort of standoff – which seems to have lasted between fifteen minutes and one hour –

followed, and while the parameters of this impass remain somewhat in dispute, several aspects are

undisputed. For much of the time, plaintiff leaned out of a window, purportedly holding his cell

phone in what he claimed to be an effort to “record the police activity from a safe distance for

approximately one (1) hour.” Id. at ¶ 39. The parties sent the cell phone for a joint forensic

investigation which revealed that the phone did not contain any video or audio recordings of the

events of that day. DE 99.3 Officers requested that plaintiff open the door more than once, and

plaintiff refused. DE 84 at ¶ 43. It is undisputed that Bilz went to the front of the house and

requested that plaintiff and anyone else inside come out so that the officers could conduct their

investigation. Id. at ¶ 44. Plaintiff admits that the officers told him to open the door and threatened

to arrest him for the unlawful imprisonment of McMenamin. Id. at ¶ 52. During this period,

McMenamin was seated in a chair in the dining room, sitting on the dining room table and/or lying

on the floor of the kitchen. Id. at ¶¶ 45, 46, 55; DE 94-4 at 99. It is further undisputed that, from

outside the house, the police could see McMenamin inside through the glass of the front door. DE

84 at ¶ 54.

At some point, Bilz and a second officer went to the side of the house in an effort to

intercept plaintiff. Id. at ¶ 58. The officers slipped on ice and fell to the ground. DE 94-4 at 99.

Meanwhile, Javorowsky kicked open the front door and entered the house with a second police

officer. DE 84 at ¶ 59. A scuffle ensued; Javorowsky engaged with the plaintiff, but he fell to the

floor. Id. at ¶¶ 60-61. Ultimately, plaintiff’s arms were pulled behind him and he was handcuffed;

whether he resisted this process is disputed. Id. at ¶ 65. Javorowsky acknowledged punching

plaintiff several times “near his head and shoulder,” though asserts that this was in an effort to get

plaintiff to comply with being handcuffed. Id. at ¶ 66. Once the handcuffs were in place, the

3 Though ultimately irrelevant, it is troubling that assertions by plaintiff’s counsel repeatedly

suggests that such a video was actually made when counsel knew this to be untrue. DE 84 at ¶

39 (“Plaintiff [was] all the while utilizing his cell phone to record the police activity”); Id. at ¶ 45

(“Plaintiff was recording in the kitchen”). At best, he attempted to do so, a critical distinction

which delayed these proceedings. See Order dated September 9, 2025.

officers did not use further physical force against him. Id. at ¶ 67. Bilz did not use any physical

force against plaintiff. Id. at ¶ 69; Bilz Aff. ¶ 11.4

Plaintiff claims that an officer uttered a racial slur and other obsceneties at him during the

altercation but is unable to identify which officer uttered the statement. DE 84 at ¶ 69; DE 94-4 at

100, 112-13. Both Javorowsky and Bilz deny making this alleged statement, and plaintiff offers

nothing to controvert their assertions. DE 84 at ¶ 70. Notably, Bilz was not present during the

altercation, as he and another officer were at the side of the house at that time. Id. at ¶ 62.

At 5:44 p.m., about 50 minutes after the 9-1-1 call, plaintiff was transported to the Third

Precinct, at which point Javorowsky went to the hospital to be treated for an injury to his hand.

DE 84 at ¶ 79; DE 94-5 at 73.5 Plaintiff was charged with Second Degree Assault, Second Degree

Unlawful Imprisonment and Resisting Arrest. In a “Short Form Order” dated July 26, 2018, the

Nassau County District Court reduced the pending felony complaint as to the assault charge to a

complaint charging a non-felony offense (Third Degree Assault), finding “there is reasonable

cause to believe that the defendant committed a felony,” but that with the consent of the District

Attorney and in the interest of justice, the reduction was warranted. DE 94-23. Then, on

September 11, 2018, the case against plaintiff was dismissed for violation of his speedy trial rights

under state law. DE 94-24 at 2-3.

4 Plaintiff’s nominal effort to dispute this assertion, which is plainly supported by the affidavit

cited, proves unavailing: plaintiff’s citation to the IAU Correpondence marked as Ex. P is wholly

inapposite.

5 Counsel for defendants asserts this fact, which is of the most marginal relevance, citing page 75

of the deposition, which it actually appears on page 72. DE 84 at ¶ 77. In a disappointing

moment of gamesmanship, plaintiff’s counsel seeks to controvert this fact by noting that the

citation does not support the assertion, while counsel, who took the deposition, well knows its

content. Such wasteful manenuevers do not further the resolution of this matter, and could affect

other determinations, including, if applicable, any future award of attorneys fees.

DISCUSSION

Summary Judgment Standard

This motion for summary judgment is decided under the oft-repeated and well-understood

standard for review for these matters, as discussed in Bartels v. Inc. Vill. of Lloyd Harbor, 97 F.

Supp. 3d 198, 211-12 (E.D.N.Y. 2015), aff'd, 643 F. App’x 54 (2d Cir. 2016), which discussion is

incorporated by reference herein. In sum, the question before the Court is whether, based upon

the undisputed or improperly disputed facts, the defendants are entitled to summary judgment.

Moreover, as this Court has previously held:

[T]o oppose a motion for summary judgment, a party is required by the Court's

Local Rules to submit a Statement of Material Facts upon which it contends there

“exists a genuine issue to be tried” and “each statement controverting any

statement of material fact ... must be followed by citation to evidence which

would be admissible, set forth as required by Fed. R. Civ. P. 56(c).” L. Civ. R.

56(d); Tuccio v. FJC Sec. Servs., Inc., No. CV 12-5506(JFB)(GRB), 2014 WL

4438084, at *5 (E.D.N.Y. Aug. 18, 2014), adopted by, 2014 WL 4438469

(E.D.N.Y. Sept. 8, 2014), appeal dismissed, (2d Cir. Mar. 18, 2015). A party may

not rest on a mere denial without citing supporting admissible evidence. “Merely

denying certain statements in the moving party's statement of undisputed material

facts without stating the factual basis for such denial and without disclosing where

in the record is the evidence relied upon in making such denial does not constitute

a ‘separate, short, and concise statement of the material facts as to which it is

contended that there exists a genuine issue to be tried’—as is required to

controvert the moving party's statement of undisputed material facts.” Covelli v.

Nat'l Fuel Gas Distrib. Corp., 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001)

(citing Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001) ), aff'd, Covelli

v. Nat'l Gas Distrib. Corp., 49 F. App'x 356 (2d Cir. 2002).

Upon the failure to properly controvert a movant's statement of material fact, such

statement “will be deemed admitted for the purposes of the motion.” L. Civ. R.

56.1(c); D.N. ex rel. D.N. v. Bd. of Educ. of Ctr. Moriches Union Free Sch. Dist.,

No. CV 14-99(GRB), 2015 WL 5822226, at *3 n.3 (E.D.N.Y. Sept. 28, 2015); see

also Edmonds v. Seavey, No. 08 CIV. 5646 (HB), 2009 WL 2949757, at *1 n.2

(S.D.N.Y. Sept. 15, 2009), aff'd, 379 F. App'x 62 (2d Cir. 2010); AFL Fresh &

Frozen Fruits & Vegetables, Inc. v. De-Mar Food Servs. Inc., No. 06 Civ.

2142(GEL), 2007 WL 4302514, at *5 (S.D.N.Y. Dec. 7, 2007). Again, district

courts have “broad discretion to determine whether to overlook a party's failure to

comply with local court rules,” Holtz, 258 F.3d at 73, and the Court may not rely

solely upon the failure to controvert assertions made in a Rule 56.1 statement if

those assertions are not supported in the record. See Giannullo, 322 F.3d at 140

(“[E]ven though plaintiff's Rule 56.1 counter-statement failed to specifically

controvert these assertions, the unsupported assertions must nonetheless be

disregarded and the record independently reviewed.”); but see Jackson v. Fed.

Express, 766 F.3d 189, 196 (2d Cir. 2014) (distinguishing Giannullo and

upholding default where “each statement of proposed undisputed facts was

supported by a citation to the record sufficient to prove each such fact”).

Davis v. Town of Hempstead, 2019 WL 235644, at *3 (E.D.N.Y. 2019).

Having identified the undisputed facts above, this standard guides the Court’s

determinations as to the pending causes of action as follows:

1. Racial Discrimination Claim

Plaintiff brings a claim of racial discrimination against defendants under §1983, predicated

upon the hurling of a racial epithet at him during the physical altercation at the time of his arrest.

As noted, however, he cannot identify by whom this statement was made. Of the two individual

defendants, Javorowsky filed a sworn affidavit indicating that he did not make such a comment

and, despite the completion of a fulsome discovery process, plaintiff offers no evidence to rebut

this assertion. Bilz was, indisputably, not present when the comment was made. Individual

liability under §1983 requires proof of personal involvement of a particular defendant in the

violation; having failed to establish such involvement by the individual defendants, plaintiff cannot

succeed on this claim. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (“a

plaintiff must establish a given defendant's personal involvement in the claimed violation in order

to hold that defendant liable in his individual capacity under § 1983”). Accordingly, defendants

are entitled to summary judgment as to the racial discrimination claim.

2. False Arrest

Defendants move for summary judgment as to the false arrest claims, a motion rooted in

the contention that “Javorowsky observed a woman—McMenamin—appear to want to leave the

residence, and plaintiff prevented her from doing so by forcing her into a chair several times,” and

that he “witnessed [p]laintiff pull McMenamin from the chair and start to drag her toward the back

of the room with the staircase and side door.” DE 94-27 at 19. This assertion is anything but

undisputed. Thus, defendants’ motion for summary judgment as to false arrest fails.

3. Malicious Prosecution

“To prevail on a malicious prosecution claim under New York law and federal law, a

plaintiff must show: ‘(1) the commencement or continuation of a criminal proceeding by the

defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3)

the absence of probable cause for the criminal proceeding and (4) actual malice.’” Kee v. City of

New York, 12 F.4th 150, 161–62 (2d Cir. 2021) (quoting Smith-Hunter v. Harvey, 95 N.Y.2d

191, 712 N.Y.S.2d 438, 734 N.E.2d 750, 752 (2000)). Here, as to the assault charge, the state

court expressly found that “there is reasonable cause to believe that the defendant committed a

felony.” DE 94-23. Thus, plaintiff cannot satisfy the “absence of probable cause” element.

Accordingly, defendants are entitled to summary judgment on this aspect of the malicious

prosecution charge. See Thompson v. Clark, 596 U.S. 36, 44 (2022) (discussing interest in

“avoid[ing] parallel litigation in civil and criminal proceedings over the issues of probable cause

and guilt [and] inconsistent civil and criminal judgments.”).

Yet the determination regarding one charge does not end the inquiry. “[A] Fourth

Amendment malicious-prosecution claim may succeed when a baseless charge is accompanied

by a valid charge.” Chiaverini v. City of Napoleon, Ohio, 602 U.S. 556, 562 (2024) (“Consistent

with both the Fourth Amendment and traditional common-law practice, courts should evaluate

suits like Chiaverini's charge by charge.”)

In this case, regarding the unlawful imprisonment and resisting arrest charges, the facts

that might support a finding of probable cause remain very much in dispute. While defendants

contend that plaintiff cannot demonstrate malice, sufficient evidence has been proffered from

which, if credited, an inference of malice might be drawn. As such, plaintiff’s malicious

prosecution claim as it relates to the false imprisonment and resisting arrest charges survives.

4. Abuse of Process

Defendants move to dismiss plaintiff’s abuse of process claim, contending that plaintiff

cannot demonstrate a “collateral objective” required to support such a claim. Recently, this

Court held the following on this very same question and as to this same plaintiff:

“[I]n New York, a malicious abuse-of-process claim lies against a defendant who

(1) employs regularly issued legal process to compel performance or forbearance

of some act, (2) with intent to do harm without excuse or justification, and (3) in

order to obtain a collateral objective that is outside the legitimate ends of the

process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003). “In order to

state a claim for abuse of process, a plaintiff must establish that the defendants

had an improper purpose in instigating the action” and not simply a malicious

motive, such as “to retaliate against him by pursuing his arrest and

prosecution.” Id. at 77 (internal quotations omitted).

Here, plaintiff has failed to identify any improper purpose that is supported by the

evidence of record. The only improper purpose plaintiff has ever alleged is that

defendants intended to use plaintiff's prosecution to discredit him, thereby

concealing and avoiding accountability for their torts against plaintiff. See DE 34

¶¶ 117-19. At least one district court in this circuit has recognized “covering up

[an] illegal arrest” as a plausible improper purpose at the motion-to-dismiss

stage. See Ying Li v. City of New York, 246 F. Supp. 3d 578, 617 (E.D.N.Y. 2017).

But even if this qualifies as an improper purpose, plaintiff has not produced any

evidence from which a jury could rationally infer that defendants’ objective was

in fact to effectuate a cover-up. Plaintiff's theory instead relies on “mere

speculation or conjecture as to the true nature of the facts, [which is insufficient]

to overcome a motion for summary judgment.” Fletcher v. Atex, Inc., 68 F.3d

1451, 1456 (2d Cir. 1995) (internal quotations omitted); Sosa v. New York City

Dep't of Educ., 406 F. Supp. 3d 266, 268–69 (E.D.N.Y. 2019) (“the non-movant

cannot survive summary judgment merely by relying on the same conclusory

allegations set forth in her complaint”). As plaintiff has failed to provide

evidentiary support for this claim despite several opportunities to do so, summary

judgment is granted as to the abuse of process claim.

Jimenez v. Vargas, 2025 WL 458244, at *7–8 (E.D.N.Y. Feb. 11, 2025). The same can be said

for this case, and defendants are entitled to summary judgment on the abuse of process claim.

5. Unreasonable Search and Seizure and Trespass

Much like their argument relating to false arrest, the foundation of defendants’

summary judgment motion as to the unreasonable search and seizure claim appears to

rest upon the notion that “Defendants had probable cause to arrest Plaintiff.” DE 94-27 at

12. Again, the facts underlying this conclusion remain very much in dispute. Defendants

make this argument seeking to dismiss the search and seizure claim, citing authorities

relating to searches incident to arrest. Id. This argument plainly misses the mark.

Equally misguided, however, is plaintiff’s response, which focuses upon

defendants’ entry into plaintiff’s home, arguing that such entry was unlawful. DE 95 at

13. On the undisputed facts, however, it is clear that defendants had probable cause to

enter plaintiff’s home to ensure the safety of its occupants. Taken together, the 9-1-1

call, the pandemonium at the scene, the requests by the officers to enter or, at a minimum,

have plaintiff bring all of the occupants to the door to ensure their safety, and plaintiff’s

refusal to cooperate with such requests demonstrate that the police were justified in

entering the home. As the Supreme Court has held:

One exigency obviating the requirement of a warrant is the need to assist persons

who are seriously injured or threatened with such injury. The need to protect or

preserve life or avoid serious injury is justification for what would be otherwise

illegal absent an exigency or emergency. Accordingly, law enforcement officers

may enter a home without a warrant to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury. [S]ee also Georgia v.

Randolph, 547 U.S. 1031, 126 S.Ct. 1515, 1525 (“[I]t would be silly to suggest

that the police would commit a tort by entering ... to determine whether violence

(or threat of violence) has just occurred or is about to (or soon will) occur”).

Brigham City, Utah v. Stuart, 547 U.S. 398, 403–04 (2006). At a minimum, under the

extraordinary undisputed circumstances here, defendants had arguable probable cause to

enter if only to ensure the safety of occupants, and therefore would be entitled to

qualified immunity.

Thus, summary judgment is granted on the unreasonable search and seizure claim

insofar as such claim relates to the initial entry into the home for the purposes of ensuring

the safety of occupants, but is otherwise denied. For the same reasons, summary

judgment is granted as to plaintiff’s trespass claim.

6. Excessive Force, Assault and Battery Claims

On this motion, defendants argue that “Plaintiff was lawfully arrested and the

force used to subdue the resisting Plaintiff was reasonable.” DE 94-27 at 22. But

wishing it does not make it so. With a set of facts that includes an admission by

Javorowsky that he repeatedly punched plaintiff in an effort to obtain compliance with

the administration of handcuffs, it cannot be said that there is no dispute as to whether

reasonable force was employed. As such, the summary judgment motion as to the

excessive force, assault and battery claims is denied as to Jarovowsky. At the same time,

the undisputed facts demonstrate that Bilz was not present during the altercations, such

that he is entitled to summary judgment on these claims.6

7. Fabrication of Evidence

“To succeed on a fabricated-evidence claim, a plaintiff must establish that an (1)

investigating official (2) fabricate[d] information (3) that is likely to influence a jury's

verdict, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffe[red] a

deprivation of life, liberty, or property as a result.” Barnes v. City of New York, 68 F.4th

6 Defendants argue that the failure to intervene claim fails because the individual defendants

were both allegedly involved in the constitutional violations at issue, and are therefore not

subject to a failure to intervene claim. As plaintiff failed to respond, the claim is deemed

abandoned.

123, 128 (2d Cir. 2023). In this case, under oath, plaintiff was unable to identify a single

instance of false testimony, statements, police reports, fabricated physical evidence or

witness intimidation by the defendants. DE 94-4 at 171-180. Furthermore, despite the

completion of discovery, his counsel fails to identify the specific fabricated evidence or

information upon which this claim rests. DE 95 at 27-8. While one might attempt to

deduce or infer the gravamen of this claim, it is far too late in the process to engage in

such speculative endeavors, and it would be necessarily unfair to force defendants to

litigate this claim under such circumstances. As such, summary judgment is granted as to

the fabricated evidence claim.

8. Intentional Infliction of Emotional Distress

Plaintiff also asserts a claim for intentional infliction of emotional distress which

requires the satisfaction of the following elements:

(1) extreme and outrageous conduct, (2) intent to cause, or reckless disregard of a

substantial probability of causing, severe emotional distress, (3) a causal

connection between the conduct and the injury, and (4) severe emotional distress.

Conboy v. AT & T Corp., 241 F.3d 242 (2d Cir.2001). “New York sets a high

threshold for conduct that is ‘extreme and outrageous' enough to

constitute intentional infliction of emotional distress.” Bender v. City of New

York, 78 F.3d 787, 790–791 (2d Cir.1996).

Hamlett v. Santander Consumer USA Inc., 931 F. Supp. 2d 451, 457 (E.D.N.Y. 2013).

However, plaintiff’s claim under an IIED theory fails for at least three reasons, as

identified by former Chief Magistrate Judge Gold in another case involving alleged false

arrest and malicious prosecution:

In this case, the acts of the defendants in connection with plaintiffs' arrest do not

amount to the type of outrageous conduct “beyond all possible bounds of

decency” and “utterly intolerable in a civilized community” as to be

actionable. Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461

N.Y.S.2d 232, 448 N.E.2d 86 (1983); Sylvester v. City of New York, 23 Misc.3d

1139(A), at *5 (N.Y. Sup.Ct., N.Y. County, June 4, 2009) (“The emotional

distress plaintiffs experienced is inherent in any police arrest and detention and

does not sustain a claim of intentional infliction of emotional distress.”).

Moreover, “public policy bars claims sounding in intentional infliction of

emotional distress against a governmental entity,” such as defendant MTA or

defendant LIRR. Wyllie v. District Atty. of County of Kings, 2 A.D.3d 714, 720,

770 N.Y.S.2d 110 (2d Dep't 2003). Additionally, a claim for IIED based on false

arrest and malicious prosecution is precluded by the fact that “the underlying

conduct is actionable under another theory of tort liability.” Lewis v. U.S., 1999

WL 222611, at *2 (W.D.N.Y. Mar.26, 1999) (collecting cases); see also Roper v.

Hynes, 2006 WL 2773032, at * 13 (S.D.N.Y. Sept.27, 2006) (dismissing

plaintiff's IIED claim based on her criminal prosecution).

Stampf v. Long Island R.R. Auth., 2010 WL 2517700, at *11 (E.D.N.Y. June 14, 2010).

These tenets apply with equal force to the instant matter, and hence summary judgment is

warranted as to the IIED claims.

CONCLUSION

For these reasons, defendants motion for summary judgment is granted in part and denied

in part to the extent set forth below:

Ruling

Claim

Granted Denied

Excessive Force; Assault; Battery

X

(Javorowsky)

Excessive Force; Assault; Battery

X

(Bilz)

§1983 Racial Discrimination X

False Arrest X

Malicious Prosecution (Assault) X

Malicious Prosecution (Unlawful

X

Imprisonment)

Malicious Prosecution (Resisting Arrest) X

Abuse of Process X

Unreasonable Search and Seizure (Initial

X

Entry of Home)

Unreaosnable Search and Seizure (Other

X

Searches and Seizures)

Trespass X

Fabrication of Evidence X

Intentional Infliction of Emotional Distress X

Failure to Intervene X

SO ORDERED.

Dated: Central Islip, New York

September 24, 2025

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge