# Sano v. The City of New York

> District Court, E.D. New York · September 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11154704

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11154704

## How later opinions describe it (automated extraction)

- noting that the circuit has “[r]eferr[ed] to this standard as ‘arguable’ probable cause”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
ISAIAH SANO, :
:
Plaintiff, :
: OPINION AND ORDER
-against- : 22-cv-7688 (DLI)(TAM)
:
THE CITY OF NEW YORK, POLICE OFFICER :
DEVON D MOSES, POLICE OFFICER PATRICK :
SANON, and DETECTIVE BRIAN FLY, :
:
Defendants. :
----------------------------------------------------------------x

DORA L. IRIZARRY, United States District Judge:

Plaintiff Isaiah Sano (“Plaintiff”) initially filed a complaint on December 17, 2022 against
New York City Police Department Officers Devon D. Moses, Patrick Sanon, and Brian P. Flynn
(collectively, the “Officer Defendants”) and the City of New York (together with the Officer
Defendants, “Defendants”). See, Compl., Dkt. Entry No. 1. Defendants responded by filing a
motion to dismiss. See, Mem. Supp. Defs.’ Mot. Dismiss, Dkt. Entry No. 18. In response, Plaintiff
filed an Amended Complaint on June 21, 2023, alleging violations of Sections 1983, 1985, and
1988 of Title 42 of the United States Code, and the Fourth, Fifth, and Fourteenth Amendments.
See, Am. Compl., Dkt. Entry No. 19. The Amended Complaint also alleges a series of violations
under New York law. Id.
In response to the Amended Complaint, Defendants filed a second motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (the “Rules”). See, e.g., Mem.
Supp. Defs.’ Second Mot. Dismiss (“Mot.”), Dkt. Entry No. 22. Plaintiff partially opposed the
motion and consents to the dismissal of some claims. See, Pl.’s Opp’n Mot. (“Opp’n”), Dkt. Entry
No. 24. Defendants replied. See, Reply Supp. Mot. (“Reply”), Dkt. Entry No. 27. For the reasons
set forth below, Defendants’ motion is granted in part and denied in part.
BACKGROUND1
On October 23, 2021, a shooting occurred in front of Plaintiff’s apartment building. See,

Am. Compl. ¶¶ 14, 45, 61. Officers Sanon and Flynn, who investigated the shooting, provided a
false statement accusing Plaintiff of shooting a firearm from his apartment based on alleged video
footage of the event. Id. ¶¶ 14-16, 19, 61. Plaintiff alleges that these officers knew the statement
was false when they made it because he was not the person in the video. Id. ¶¶ 16-17, 19; See
also, Am. Compl. ¶ 47 (alleging that Officer Moses also “supplied” the false allegations). Plaintiff
asserts that Defendants made the false statements “because the [shooting] allegedly occurred in
front of [his] apartment building and . . . [he] had run ins with the law previously.” Id. ¶ 45.
Plaintiff further alleges that, on November 8, 2021, the Officer Defendants arrested
Plaintiff without probable cause as he exited his apartment building. Id. ¶¶ 28-31. After his arrest,
the Officer Defendants discovered drug related contraband on Plaintiff’s person and brought him

to three different police precincts for questioning. Id. ¶¶ 33, 35-37, 39. Plaintiff was strip searched
at the first precinct and questioned at each precinct. Id. ¶¶ 35-37, 39. The Officer Defendants did
not inform Plaintiff of his rights or why he was being arrested. Id. ¶¶ 32, 35-36, 40. At one point,
while in transit, one of the Officer Defendants stated to Plaintiff, “[o]nce I get you in cuffs,
everything is over baby . . . [.] Without you, I wouldn’t have a job,” and then proceeded to play
the song “Country Grammar” by Nelly at full volume. Id. ¶ 38. In their arrest report, the Officer
Defendants noted that Plaintiff’s arrest was not for his alleged involvement in the October 23, 2021

1 The following facts are taken from the Amended Complaint, which are accepted as true in deciding this motion. See,
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (citations omitted).
shooting as the officers falsely claimed, but upon his possession of drug related contraband. Id.
¶¶ 33-34, 61.
The Officer Defendants then provided the false statements to the prosecutor’s office and
the court. Id. ¶ 43. A felony complaint was issued the following day, November 9, 2021, upon

which Plaintiff was arraigned on charges of attempted murder in the second degree and “numerous
firearm possession charges,” including criminal possession of a weapon in the second degree, and
ordered held in custody in Rikers Island for approximately thirty (30) days. Id. ¶¶ 45-48, 61.
However, Plaintiff was indicted only on “numerous weapons possession charges.” Id. ¶
50. He was not indicted for attempted murder, attempted assault, or the contraband charge that
served as the purported reason for his November 8, 2021 arrest. Id. ¶¶ 50, 61. Plaintiff alleges the
“indictment was based on [Defendants’] lies, fraud and falsehoods.” Id. ¶ 53. Eventually, on June
8, 2022, the indictment was dismissed. Id. ¶ 56. Other than body camera footage from the
November 8, 2021 arrest, Defendants did not turn over any evidence to the defense, including, for
example, the video of the October 23, 2021 shooting, materials from the grand jury, exculpatory
material, or any relevant investigation card (or “I-Card”).2 Id. ¶¶ 20-27, 56, 61.

Based on those allegations, Plaintiff asserts claims against Defendants for: (1) false arrest
and unlawful imprisonment3; (2) violations of his right to a fair trial; (3) malicious prosecution;
(4) failure to intervene; (5) supervisory liability; (6) municipal liability; (7) conspiracy; (8)

2 “An I-card is a tool used frequently by the [NYPD] to arrest a suspect who has an open complaint pending against
him in lieu of an arrest warrant signed by a judge after charges have been signed.” Dowtin v. O’Neill, 2019 WL
7496574, at *1 (E.D.N.Y. Jan. 7, 2019) (citation and internal quotation marks omitted); See also, United States v.
Esters, 2022 WL 16715891, at *2 n.4 (E.D.N.Y. Nov. 4, 2022) (“I-Cards are ‘an internal NYPD form issued by an
officer when there is a suspect, witness, or perpetrator to be investigated.’” (citation omitted)).
3 As Plaintiff asserted false arrest and unlawful imprisonment as a single claim, and such claims “are subject to the
same analysis,” the Court will treat them as single claim in deciding this motion. Seitz v. DeQuarto, 777 F. Supp.2d
492, 501 (S.D.N.Y. 2011) (citing Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir.1995)); See also, Hargroves
v. City of New York, 411 F. App’x 378, 382 (2d Cir. 2011) (“False arrest ‘is a species of false imprisonment,” so both
claims are subject to the same legal analysis for purposes of this order.’” (quoting Singer, 63 F.3d at 118)).
unlawful search and seizure; (9) negligent hiring retention and training; (10) negligence; and (11)
intentional infliction of emotional distress. Id. ¶¶ 63-150. Defendants move to dismiss the
Amended Complaint for failure to state a claim, except as to the unlawful search and seizure claim
and certain state law claims, claiming the Court should decline to exercise supplemental

jurisdiction. See, generally, Mot.; See also, Opp’n at 17 (arguing that the Fourth Amendment
claim should “survive” because Defendants “did not move to dismiss [it]”). While opposing the
motion, Plaintiff does not oppose dismissal and withdraws the failure to intervene, supervisory
liability, conspiracy, and municipal liability claims. Opp’n at 17. Therefore, the Court need
address only the plausibility of Plaintiff’s false arrest, fair trial, and malicious prosecution claims.
Defendants contend that Plaintiff’s false arrest and malicious prosecution claims fail
because his arrest was based on probable cause. Mot. at 4-8. Defendants further maintain that,
even if probable cause “was somehow lacking,” “arguable” probable cause existed for Plaintiff’s
arrest, entitling them to qualified immunity. Id. at 6-7. Defendants additionally argue that
Plaintiff’s right to a fair trial claim fails because the Amended Complaint does not plead adequately

that Defendants knowingly fabricated evidence. Id. at 8-9.
LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a
complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). The plausibility standard “does not require ‘detailed factual
allegations,’ but it demands more than . . . unadorned, the-defendant-unlawfully-harmed-me
accusation[s].” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
In deciding this motion to dismiss pursuant to Rule 12(b)(6), the Court must accept, as true,
all well pled factual allegations and draw all reasonable inferences in Plaintiff’s favor. LaFaro v.
N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citation omitted). The Court’s
duty “is merely to assess the legal feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.” DiFolco v. MSNBC Cable LLC, 622 F.3d
104, 113 (2d Cir. 2010). Nevertheless, “threadbare recitals of the elements of a cause of action”

that are supported by “conclusory” statements and mere speculation are inadequate and subject to
dismissal. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and
citation omitted); See also, Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions.”).
DISCUSSION
I. False Arrest Claims
Defendants seek dismissal of Plaintiff’s false arrest claims brought pursuant to Section
1983 and state law. See, Mot. at 4-7. “A § 1983 claim for false arrest . . . is substantially the same
as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)
(citations omitted). Indeed, in analyzing a Section 1983 false arrest claim, courts “look to the law

of the state in which the arrest occurred.” Guan v. City of New York, 37 F.4th 797, 804 (2d Cir.
2022) (citation omitted). To state a false arrest claim under New York law, Plaintiff must allege
sufficient facts showing that: (1) Defendants “intended to confine him”; (2) he “was conscious of
the confinement”; (3) he “did not consent to the confinement”; and (4) “the confinement was not
otherwise privileged.” Id. (internal quotation marks and citation omitted). An arrest is privileged
if it is based on probable cause. Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (“If probable
cause existed, . . . [an] officer would be privileged to make an arrest.”).
Here, only the final element is at issue. According to Defendants, two features of the arrest
suggest the existence of probable cause: (1) before his arrest, the NYPD had issued an “I-Card”
for Plaintiff related to the shooting; and (2) after his arrest, the police found him in possession of
a controlled substance. See, Mot. at 4-6. Probable cause for an arrest exists when an officer “has
knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has committed .

. . a crime.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2010) (citation and internal quotation
marks omitted). The existence of probable cause is determined from “the totality of the
circumstances . . . based on ‘a full sense of the evidence that led the officer to believe that there
was probable cause to make an arrest.’” Guan, 37 F.4th at 804 (citations omitted). Additionally,
the Court should consider only “those facts available to the officer at the time of the arrest and
immediately before it.” Id. (citation and internal quotation marks omitted).
Alternatively, Defendants contend that the Officer Defendants are entitled to qualified
immunity “even if probable cause was somehow lacking . . . [because] there was still, at a
minimum, arguable probable cause to arrest Plaintiff.” Mot. at 6. “Qualified immunity shields
government officials performing discretionary functions ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In the false arrest context, “[a]n officer
is entitled to qualified immunity against a suit for false arrest if he can establish that he had
‘arguable probable cause’ to arrest the plaintiff.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015)
(citation omitted). “Arguable probable cause exists if either (a) it was objectively reasonable for
the officer to believe that probable cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.’” Id. (citations and internal quotation marks
omitted). Plaintiff counters that there was no arguable or actual probable cause for the arrest based
on either the alleged I-Card or the contraband discovered after the arrest. Opp’n at 7-11.
A. Alleged Outstanding I-Card for Plaintiff
At this stage, Defendants’ contention that the existence of an I-Card alone sufficiently
establishes probable cause does not justify dismissal of the false arrest claims. As previously

noted, “in determining whether a complaint states a claim, the [C]ourt is required to make the
assessment based solely on the allegations in the complaint, without considering extraneous facts
and materials.” Pearson v. Gesner, 125 F.4th 400, 406 (2d Cir. 2025); See also, Lively v. WAFRA
Inv. Advisory Grp., Inc., 6 F.4th 293, 305 (2d Cir. 2021) (stating that a court may, on a Rule
12(b)(6) or 12(c) motion, “consider extrinsic material that the complaint ‘incorporate[s] by
reference,’ that is ‘integral’ to the complaint, or of which courts can take judicial notice” (quoting
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002))).
Here, without any factual support, Defendants assert that “Plaintiff was arrested on
November 5, 2021 for his participation in a shooting based upon an outstanding NYPD ‘i-card.’”
Mot. at 5 (citing Am. Compl. ¶¶ 30, 40, 61); See also, Reply at 1 (citing Am. Compl. ¶¶ 30, 33-

34, 40, 61). Defendants neither have attached a copy of the relevant I-Card to their motion nor
requested that the Court take judicial notice of the I-Card’s alleged existence or legal effect.
Instead, they rely on the allegations in the Amended Complaint. However, none of the paragraphs
they cite allege that the Officer Defendants arrested Plaintiff based on an I-Card. Instead, the
Amended Complaint states that Plaintiff never was advised that “he was arrested pursuant to an
investigation card.” Am. Compl. ¶ 40. Moreover, Plaintiff alleges that Defendants failed to
produce an I-Card in discovery during the local criminal proceeding and that the “Alerts Sheet
attached to [his] unlawful arraignment [sic]” fails to identify the alleged I-Card. Id. ¶¶ 26, 41-42.
Finally, Plaintiff explicitly alleges that his arrest was made based on the Officer Defendants’ false
statements purportedly identifying him in the video depicting the October 23, 2021 shooting. Id.
¶¶ 30-33, 61.
As the Amended Complaint does not allege the existence of the purported I-Card and
Defendants have not submitted extraneous materials that the Court may consider at this stage,

Defendants’ motion is denied on this ground.
B. Plaintiff’s Possession of a Controlled Substance
Defendants’ argument that they had probable cause to arrest Plaintiff based on his
possession of a controlled substance at the time of his arrest fares no better. In support of their
motion, Defendants merely quoted language from a Second Circuit case, which they failed to
analyze and apply to this matter. See, Mot. at 6 (citing Wingate v. Gives, 725 F. App’x 32 (2d Cir.
2018) (summary order)). For his part, Plaintiff urges the Court not to read Wingate as “stand[ing]
for the proposition that being arrested for contraband renders an otherwise unlawful arrest valid.”
Opp’n at 13. The Court finds Wingate is inapposite.
In Wingate, the plaintiff asserted, inter alia, a Section 1983 false arrest claim involving a
criminal charge for possession of a controlled substance that later was dismissed. 725 F. App’x at

34. In affirming the district court’s order granting summary judgment in favor of the defendants,
the circuit held that the false arrest claim “failed because [the] defendants had probable cause to
arrest and prosecute [Wingate] for possession of a controlled substance because it is undisputed
that [he] was in possession of two crack pipes at the time of his arrest.” Id. at 36. However, neither
the circuit’s opinion in Wingate nor Defendants’ motion papers contain any factual discussion
regarding the officers’ probable cause determination as to the arrest or the timing of Wingate’s
detention. Id. at 35-36. Notably, before the district court, Wingate did not argue that the evidence
allegedly supporting probable cause to arrest him was obtained unlawfully. See, S.D.N.Y. Civ.
No. 05-cv-01872, Dkt. Entry No. 143, Feb. 22, 2011 R. & R. at 20 (arguing, instead, that the
officers who signed the arrest paperwork lacked knowledge of the underlying facts because they
did not participate in the arrest). On the record presented in Wingate, the Second Circuit concurred
with both the magistrate and district judges that there was sufficient probable cause for Wingate’s
arrest.

Such is not the case here. Relying on Wingate, Defendants seem to contend that their
subsequent discovery of illegal contraband, even if unlawfully seized, supplies the requisite
probable cause to defeat Plaintiff’s false arrest claim. “It is true, as [] [D]efendants suggest, that .
. . an arrest is not rendered ‘false’ solely because the evidence providing probable cause for such
arrest was uncovered as a result of an illegal seizure and search.” Lust v. Joyce, 2007 WL 3353214,
at *2 (N.D.N.Y. Nov. 9, 2007) (citing Townes v. City of New York, 176 F.3d 138, 149 (2d Cir.
1999)). In the criminal context, “the fruit of the poisonous tree doctrine” serves to “exclude[]
evidence obtained from or as a consequence of lawless official acts.” Townes, 176 F.3d at 145
(citations and quotation marks omitted). However, “this evidentiary doctrine is inapplicable to
civil § 1983 actions.” Id. at 145-46 (citation omitted).

In Townes, a plaintiff brought a Section 1983 claim for a violation of his Fourth
Amendment right to be free from an unreasonable search and seizure arising from a “police stop
of a taxicab in which he was a passenger.” Id. at 141-42, 145 (noting that Townes was arrested
upon the discovery of weapons in the taxicab but only after he was unlawfully stopped and
searched). The Second Circuit held that the “unconstitutional seizure and search . . . was not a
proximate cause of his conviction because . . . the trial court’s refusal to suppress the evidence[] .
. . [was] an intervening and superseding cause of Townes’s conviction.” Id. at 146. The circuit
also found that “Townes is foreclosed from recovery . . . [because] the injury he pleads (a violation
of his Fourth Amendment right to be free from unreasonable searches and seizures) does not fit
the damages he seeks (compensation for his conviction and incarceration).” Id. at 147-49 (stating
that the sought damages were compensable only through a malicious prosecution claim).
While Townes did not assert a false arrest claim, the circuit nevertheless held that he could
not “recover compensatory damages for his arrest and pre-arraignment detention” based on a false

arrest or imprisonment theory. Id. It reasoned that, while the officers “lacked probable cause to
stop and search Townes, [] they certainly had probable cause to arrest him upon discovery of the
handguns in the passenger compartment of the taxicab in which he was riding.” Id. (“The lack of
probable cause to stop and search does not vitiate the probable cause to arrest . . . .”). Here, the
Officer Defendants undisputedly discovered illegal contraband in Plaintiff’s possession and had
probable cause to arrest Plaintiff upon that discovery. Therefore, as to his Section 1983 false arrest
claim, Plaintiff is unable to recover damages for the period of confinement from the undisputed
discovery of the contraband “up until issuance of process or arraignment.” Id.
However, under existing Second Circuit law, Plaintiff’s federal false arrest claim survives.
Notably, unlike in Townes, Plaintiff alleges that his arrest occurred before the discovery of the

contraband. See, Am. Compl. ¶¶ 28-31, 33-34. “[A] claim for false arrest may be stated for that
finite period of time in between an initial detention which was unsupported by probable cause, and
the subsequent discovery of evidence providing probable cause for an arrest.” Lust, 2007 WL
3353214, at *2 (citing Gonzalez v. City of Schenectady, 2001 WL 1217224, *5 (N.D.N.Y. Sept.
17, 2001) (finding that the plaintiff “assert[ed] cognizable false arrest claims for the period of time
between initial contact with the police and the point where the marijuana was discovered”));
Drayton v. City of New York, 2022 WL 16948769, at *3 (E.D.N.Y. Nov. 15, 2022) (finding, in a
case where the police officers “did not find drugs on [the] plaintiff until after they arrested him,”
that the plaintiff “was wrongfully in custody for somewhere between 3 and 30 minutes,” from the
point of his arrest to the discovery of the drugs (citing Townes, 176 F.3d at 149)); Jenkins v. N.Y.C.
Police Dep’t, 2015 WL 4660899, at *4 (S.D.N.Y. Aug. 6, 2015) (“Courts considering Townes
have since found that plaintiffs may recover damages from a false arrest subsequently supported
by probable cause, where such damages are limited to the period between the arrest and the

acquisition of probable cause.” (citations omitted)); Cf., Townes, 176 F.3d at 149 (recognizing that
Townes could have asserted a “damage claim . . . limited to the brief invasion of privacy related
to the seizure and initial search of his person”); Morgan v. City of New York, 2014 WL 3407714,
at *5 (E.D.N.Y. July 10, 2014) (“[B]ecause probable cause existed once the knife was found on
Plaintiff’s person, Plaintiff may only seek recovery for damages that accrued from the time of the
stop until the moment that the knife was found.” (citations omitted)).
As in those cases, Plaintiff alleges that Defendants unlawfully arrested and detained him
based on false statements without any reason to believe he possessed any controlled substance
before then as the drug related evidence was found on him after the arrest. See, Am. Compl. ¶¶
30, 33, 61. Therefore, considering only “those facts available to the officer at the time of the arrest

and immediately before it,” as alleged in the Amended Complaint, Plaintiff has pled sufficient
plausible facts establishing each of the elements of his federal false arrest claim and, specifically,
that the confinement was not privileged, i.e., because the Officer Defendants lacked probable cause
to arrest him from the period of the initial detention to the discovery of the illegal contraband.
Guan, 37 F.4th at 804 (citation and internal quotation marks omitted)).
As for their qualified immunity defense, Defendants have failed to show that the Officer
Defendants had “arguable” probable cause to arrest Plaintiff. As with probable cause, “arguable”
probable cause is judged on the facts and circumstances known to an officer at the time of arrest.
Zellner, 494 F.3d at 370 (citations omitted). As Plaintiff alleges that the Officer Defendants
arrested Plaintiff “without a warrant and without probable cause,” “the right at issue . . . , the right
not to be subjected to a warrantless arrest without probable cause[,] was clearly established.” Id.
at 367 (citations omitted). Thus, the relevant question “is whether it was objectively reasonable
for the officers to believe they did have probable cause.” Id. at 369 (noting that the circuit has

“[r]eferr[ed] to this standard as ‘arguable’ probable cause”); See also, Cerrone v. Brown, 246 F.3d
194, 202-03 (2d Cir. 2001) (“Arguable probable cause exists when ‘a reasonable police officer in
the same circumstances and possessing the same knowledge as the officer in question could have
reasonably believed that probable cause existed in the light of well established law.’” (alteration
in original) (citation omitted)). “[I]f, on an objective basis, it is obvious that no reasonably
competent officer would [] conclude[] that probable cause existed, [the Officer] [D]efendants will
not be immune . . . .” Zellner, 494 F.3d at 367 (citation and internal quotation marks omitted).
Here, Plaintiff alleges that the Officer Defendants arrested him despite knowing, based on
alleged video footage of the shooting, that the accusation he had discharged a firearm from his
apartment was false. See, Am. Compl. ¶¶ 14-16, 19, 28-31, 45, 47, 49, 61. Moreover, accepting

Plaintiff’s allegations as true and construing them in the light most favorable to him, the Officer
Defendants did so without having any reasonably trustworthy information or reasonable belief that
Plaintiff possessed illegal contraband or had committed another crime at the time of arrest. See,
generally, Am. Compl. Therefore, at this juncture, Defendants have not shown they are entitled
to qualified immunity because officers of reasonable competence would agree there was no
probable cause to arrest Plaintiff before the discovery of the contraband. See, Jenkins v. City of
New York, 478 F.3d 76, 87 (2d Cir. 2007) (“If officers of reasonable competence would have to
agree that the information possessed by the officer at the time of arrest did not add up to probable
cause, the fact that it came close does not immunize the officer.”).
Moreover, while “it is possible for a qualified immunity defense to succeed on a motion to
dismiss, such a defense ‘faces a formidable hurdle . . . and is usually not successful.’” Sabir v.
Williams, 52 F.4th 51, 64 (2d Cir. 2022), cert. dismissed, 143 S. Ct. 2694 (2023); Chamberlain
Est. of Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d Cir. 2020) (“[A]dvancing

qualified immunity as grounds for a motion to dismiss is almost always a procedural mismatch.”
(citation omitted)). “Not only must the facts supporting the defense appear on the face of the
complaint, but . . . the [Rule 12(b)(6)] motion may be granted only where ‘it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’”
McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citations omitted). At this stage,
Defendants have not cleared this “formidable hurdle” to warrant granting qualified immunity.
Finally, the Court holds that the motion to dismiss the state false arrest claim should be
denied for the same reasons. As previously noted, a federal false arrest claim “is substantially the
same as a claim for false arrest under New York law.” Weyant, 101 F.3d at 852. While “there is
some ambiguity as to whether New York courts apply the same reasoning as Townes,”4 Defendants

did not address this distinction in their motion papers. Hatcher v. City of New York, 2018 WL
1583036, at *4 (S.D.N.Y. Mar. 27, 2018). Notwithstanding, even assuming the ambiguity remains
unsettled, for the same reasons the Court stated in denying dismissal of Plaintiff’s federal false
arrest claim, the Court concludes that Defendants lacked “actual” and “arguable” probable cause
to arrest Plaintiff, at least before the discovery of the illegal contraband. Accordingly, for all the

4 Some courts find that, “[u]nder state law, . . . a civil defendant cannot raise a defense of probable cause to a false
arrest claim if the arrest was the result of an initially unlawful search or seizure.” E.g., Doe v. City of New York, 2018
WL 3824133, at *4 (E.D.N.Y. Aug. 9, 2018) (citations omitted) (collecting cases). Others find that “[w]hatever
ambiguity may exist,” the existence of a 2001 New York Court of Appeals’ decision “afford[s] at least the ‘reasonable
basis’ necessary for qualified immunity with regard to the state claim . . . .” E.g., Cabral v. City of New York, 662 F.
App’x 11, 13 (2d Cir. 2016) (summary order) (citing Martinez v. City of Schenectady, 97 N.Y.2d 78 (2001)).
foregoing reasons, dismissal of Plaintiff’s false arrest claims brought under federal and state law
is denied.
II. Claim for a Violation of a Right to a Fair Trial
Pursuant to Section 1983, Plaintiff alleges that Defendants violated his right to a fair trial

by fabricating evidence and utilizing that evidence against him in legal proceedings. See, Am.
Compl. ¶¶ 73-79. “A § 1983 plaintiff ‘may sue for denial of the right to a fair trial based on a
police officer’s fabrication of information . . . when the information fabricated is the officer’s own
account of his or her observations of alleged criminal activity, which he or she then conveys to a
prosecutor.’” Barnes v. City of New York, 68 F.4th 123, 129 (2d Cir. 2023) (citation omitted); See
also, Ashley v. City of New York, 992 F.3d 128, 132, 132 n.1 (2d Cir. 2021) (adopting the term
“fabricated-evidence claim” for a cause of action based on a violation of the “right to a fair trial
based on fabricated evidence,” and noting that the Second Circuit “has frequently referred to this
claim as a ‘fair trial claim’”). To plead this fair trial claim, Plaintiff must allege “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, 68 F.4th at 128-29 (quoting Ashley, 992 F.3d at 138).
Defendants contend Plaintiff’s fair trial claim fails because he has not alleged sufficiently
that Officer Defendant Sanon “either knowingly lied or falsely identified [Plaintiff] on the
surveillance [video].” Mot. at 9 (citations omitted). They argue that, because Plaintiff admits he
has not seen the surveillance video, he could not know if Officer Defendant Sanon falsely
identified him and, therefore, that his fabrication of evidence allegations are conclusory and
insufficient to survive Rule 12(b)(6) dismissal. Id. (citing Am. Compl. ¶¶ 19, 21).
Plaintiff counters that “[f]abricated evidence can include an officer’s own (false) account
of his or her observations of alleged criminal activity, including statements made in a criminal
charging instrument.” Opp’n at 16 (citations omitted). He further argues that, contrary to
Defendants’ contentions, Defendants knowingly fabricated and forwarded evidence to the

prosecutor that led to a prosecution and deprivation of his liberty. Id. (citing Am. Compl. ¶¶ 14-
15, 19 (investigating officers fabricated evidence to support accusation and alleged identification
of Plaintiff), ¶ 43 (fabricated evidence knowingly and intentionally provided to prosecutors), ¶ 50
(fabricated evidence leads to grand jury indictment)). Finally, Plaintiff asserts that the question of
whether the statements were fabricated is question of fact that only may be resolved by the jury at
trial. Id. at 17.
At this stage, the Court must ascertain whether the allegations set forth in the Amended
Complaint, construed in the light most favorable to Plaintiff, sufficiently plead the fair trial claim.
See, Barnes, 68 F. 4th at 128. In Barnes, the plaintiff was arrested, charged, and prosecuted, in
part, for selling drugs. Id. at 126. In reversing the district court’s dismissal of the fabricated

evidence claim, the Second Circuit noted that the plaintiff met his pleading obligation when he
alleged, in pertinent part, “that the Defendant Officers knowingly lied to the prosecutors in relaying
that they witnessed [the plaintiff] sell drugs.” Id. at 129. The Second Circuit observed that, “before
discovery, it is unclear what other facts [the plaintiff] could be expected to allege in order to show
that Defendants’ conduct was knowing, as opposed to mistaken.” Id. (citations omitted).
Here, too, it is unclear what other facts Plaintiff could allege to show that Officer Defendant
Sanon’s conduct was knowing and not mistaken. Plaintiff alleges that “[D]efendants knew their
statements were false and inaccurate.” Am. Compl. ¶ 28; See also, Am. Compl. ¶¶ 16-17, 31, 33-
34, 43-45, 51 (alleging that Officer Defendants Sanon and Flynn knew there was no basis to: (1)
arrest Plaintiff; (2) support the false assertion that he shot a firearm from his apartment; or (3)
provide the false statements to the prosecutors, court, and grand jury). The Amended Complaint
also alleges that the Officer Defendants “provided and caused to be provided and generated false,
misleading and inconsistent information to accuse [P]laintiff of shooting a firearm.” Id. ¶ 14.

These allegations, together with the allegation that “Plaintiff was eventually indicted on the basis
of false allegations supplied by [D]efendants,” sufficiently plead the first three elements of the
fabricated evidence claim. Moreover, the allegation that Defendants knowingly gave “false
statements and identifications” to the prosecuting office and the state criminal court satisfies the
fourth element. Id. ¶ 43. Finally, Plaintiff’s pretrial detention, 30-day confinement at Rikers
Island, and indictment, which was dismissed with prejudice, are enough to prove that he suffered
a deprivation of liberty, thus satisfying the fifth element of the claim. Id. ¶¶ 35-37, 48-50, 56; See
also, Barnes, 68 F.4th at 129 (pretrial detention and prosecutions are deprivations of liberty).
Therefore, at this stage, Plaintiff has alleged sufficiently all elements necessary to state a
claim for a violation of his right to a fair trial based on the claimed fabrication of evidence.

Accordingly, the motion to dismiss this claim is denied.
III. Malicious Prosecution Claims
Finally, Defendants seek dismissal of Plaintiff’s malicious prosecution claims brought
under federal and state law. “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) (citations omitted); See also, Ortiz
v. Stambach, ___ F.4th ___, 2025 WL 1350063, at *6 (2d Cir. May 9, 2025) (“Claims for malicious
prosecution brought under Section 1983 are substantially the same as claims for malicious
prosecution brought under state law.” (citation omitted)). Moreover, to state a Section 1983 claim,
the plaintiff must plead plausible facts showing “a ‘sufficient post-arraignment liberty restraint.’”
Kee, 12 F.4th at 162 (citation omitted).

Defendants do not dispute that a criminal proceeding was commenced against Plaintiff,
which was terminated in Plaintiff’s favor, or that Plaintiff suffered a sufficient post-arraignment
liberty restraint. See, Mot. at 7-8. Instead, they argue the existence of probable cause to prosecute
barred the malicious prosecution claims. Id. Defendants correctly assert that the grand jury’s
indictment of Plaintiff creates a rebuttable presumption of probable cause. See, Ortiz, 2025 WL
1350063, at *6 (citation omitted). “Probable cause, in the context of malicious prosecution, has . .
. been described as such facts and circumstances as would lead a reasonably prudent person to
believe the plaintiff guilty.” Id. (citation omitted). It “should not be conflated with probable cause
to arrest” because, for example, probable cause to prosecute “must be shown as to each crime
charged in the underlying . . . action.” Kee, 12 F.4th at 166 (citations omitted).

Instead of arguing that Defendants lacked probable cause to prosecute him, Plaintiff
counters that his allegations rebut the presumption created by the grand jury indictment with “facts
that [t]he defendants lied, perjured themselves and submitted false evidence to the grand jury.”
Opp’n at 14. That presumption “may only be rebutted by evidence that the indictment was
procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad
faith.” Ortiz, 2025 WL 1350063, at *6 (citation and internal quotation marks omitted); See also,
Dufort v. City of New York, 874 F.3d 338, 352 (2d Cir. 2017) (“[T]he ‘intervening exercise of
independent judgment’ by a prosecutor to pursue the case usually breaks the ‘chain of causation’
[to sustain a malicious prosecution claim] unless the plaintiff can produce evidence that the
prosecutor was ‘misled or pressured’ by the police” (quoting Townes, 176 F.3d at 147)). In
rebutting that presumption, Plaintiff is “not require[d] . . . to prove that police officers fabricated
evidence or engaged in bad faith through any particular type of evidence.” Ortiz, 2025 WL
1350063, at *7 (stating that the “plaintiff may do so entirely through circumstantial evidence”).

Defendants maintain that Plaintiff cannot overcome this presumption because he does not
allege any non-conjectural facts that suggest “fraud or any other misconduct was perpetrated
before the grand jury” or that show “any Defendant acted in bad faith in connection with the Grand
Jury proceeding.” Mot. at 8; Reply at 3. In response, Plaintiff asserts that his allegation that he
was not indicted for possession of a controlled substance undermines any presumption created by
the grand jury’s indictment. Opp’n at 14-15. Plaintiff further argues that he plausibly alleged
actual malice, which “does not have to be actual spite or hatred, but means only that the defendant
must have commenced the criminal proceeding due to a wrong or improper motive, something
other than a desire to see the ends of justice served.” Id. at 14 (quoting Lowth v. Town of
Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996), as amended (May 21, 1996)).

Here, the Amended Complaint adequately states a claim for malicious prosecution.
Specifically, it contains facts indicating that “the indictment was the product of . . . police conduct
undertaken in bad faith.” Ortiz, 2025 WL 1350063, at *6. Plaintiff alleges that Defendants made
false statements implicating him in the shooting, which were memorialized in the criminal
complaint and forwarded to the prosecutors, despite their knowledge that he was not involved in
the shooting. Am. Compl. ¶¶ 43-44, 45-46. This criminal complaint later served as the basis for
Plaintiff’s arraignment. Id. ¶ 47. Plaintiff also alleges that he was indicted based on Defendants’
false allegations and statements, which Defendants made to the grand jury knowing they were
false. Id. ¶¶ 49-51. These allegations amount to “‘a police officer’s fabrication and forwarding to
prosecutors of known false evidence[,] [which] works an unacceptable corruption of the truth-
seeking function of the trial process,’ and thus, if proven, would rebut the presumption of probable
cause that attaches to an indictment.” Ortiz, 2025 WL 1350063, at *6 (citations omitted).
As to malice, Plaintiff alleges statements made to him by the Officer Defendants that

suggest an insidious reason for his arrest. See, Am. Compl. ¶¶ 38, 44. He further claims that
Defendants withheld evidence and potentially exculpatory discovery. Id. ¶¶ 19-27. These
allegations are made more compelling because Defendants based Plaintiff’s arrest on charges
different from those for which he ultimately was indicted, and the indictment ultimately was
dismissed by the court. Id. ¶¶ 50, 56. Critically, “with respect to the malice element, the jury
could [] reasonably infer[] malice from [] lack of probable cause, as well as from [] evidence of
[an officer’s] misconduct in fabricating [a] confession.” Ortiz, 2025 WL 1350063, at *10 n.9
(collecting cases). Based on these allegations, and the Court’s prior finding that Plaintiff has pled
a fabricated evidence claim sufficiently, the Court concludes that Plaintiff plausibly has pled the
malice element. Accordingly, the Amended Complaint adequately states claims for malicious

prosecution under federal and state law, and Defendant’s motion to dismiss these claims is denied.
IV. Remaining Claims
As previously noted, while Defendants move to dismiss all federal claims except the
unlawful search and seizure claim, Plaintiff does not oppose, and consents to, the dismissal of the
failure to intervene, supervisory liability, conspiracy, and municipal liability claims. See,
generally, Mot.; Opp’n at 17. “[F]ailure to oppose an argument raised in a motion to dismiss is
deemed a concession of the argument and abandonment of the claims.” Ross v. Port Chester Hous.
Auth., 2019 WL 4738941, at *7 (S.D.N.Y. Sept. 27, 2019) (collecting cases); See also, Wilkov v.
Ameriprise Fin. Servs., Inc., 735 F. App’x 44, 46 n.1 (2d Cir. 2018) (affirming dismissal of claims
that “were ‘abandoned’ by [the plaintiff] when she failed to oppose them in [] opposition to [the]
motion to dismiss”). As the Court finds that Plaintiff abandoned these claims by failing to oppose
Defendants’ substantive arguments, they are dismissed without prejudice.
CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss the Amended Complaint is
granted in part and denied in part. Plaintiff’s failure to intervene, supervisory liability, conspiracy,
and municipal liability claims, as set forth in Counts IV, V, VI, and VII of the Amended Complaint,
are dismissed without prejudice. Defendants’ motion is denied as to all other claims.

SO ORDERED.
Dated: Brooklyn, New York
September 29, 2025
/s/
DORA L. IRIZARRY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11154704. Public record. Not legal advice.