Kellner

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SAMUEL KELLNER,

Plaintiff, MEMORANDUM & ORDER

-against- 17-cv-1268 (NRM) (MMH)

THE CITY OF NEW YORK and PATRICIA L.

HYNES, Administrator of the Estate of Charles

J. Hynes,

Defendants.

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NINA R. MORRISON, United States District Judge:

Plaintiff Samuel Kellner brings this case for malicious prosecution and

conspiracy against the estate of former Kings County District Attorney Charles J.

Hynes pursuant to 42 U.S.C. § 1983 and the Fourth Amendment to the United States

Constitution. Kellner also brings a Monell municipal liability claim against the City

of New York, alleging that Hynes, as the elected District Attorney, acted in his

capacity as a municipal policymaker for the City.

In 2008, Kellner, a member of the Satmar Hasidic community in Brooklyn,

New York, accused Baruch Lebovits, a prominent figure in the Satmar community,

of sexually abusing Kellner’s son. Lebovits was indicted on charges relating to

Kellner’s son and other alleged sexual abuse victims in the Satmar community and,

eventually, convicted of abusing one of the victims.

Shortly after this conviction, members of Lebovits’s family and legal defense

team approached Hynes with accusations that Kellner had manufactured false

allegations against Lebovits in order to extort his wealthy family. Kellner alleges

that Hynes knew these accusations by the Lebovits family were likely false and,

moreover, knew that Lebovits had in fact committed the crimes for which he had been

convicted. However, Kellner alleges that Hynes nonetheless entered into a

conspiracy with the Lebovits family to investigate Kellner with the goal of producing

false evidence that Hynes could use to prosecute Kellner. Kellner alleges that Hynes

did this for an unlawful purpose: to clear Lebovits’s name and secure the support of

the Lebovits family, whose wealth and influence Hynes sought to shore up support

among the politically powerful Satmar community for his upcoming reelection

campaign. While Kellner was indicted for an alleged extortion conspiracy, Lebovits

was released on bail and his conviction was vacated. However, Lebovits ultimately

pled guilty to eight counts of criminal sexual act in the third degree rather than face

a retrial. And in March 2014, shortly after Hynes lost his bid for reelection, the new

District Attorney dismissed the charges against Kellner.

Defendants have moved for summary judgment, arguing that Kellner’s

malicious prosecution and conspiracy claims fail as a matter of law and that Hynes,

who at all relevant times acted in his capacity as an elected state prosecutor, is

entitled to absolute prosecutorial immunity or, at a minimum, qualified immunity.

Defendants further argue that, because the claims against Hynes fail, the claims

against the City fail as well. Plaintiff counters that there are disputed issues of fact

precluding summary judgment and that an array of pre-indictment conduct

attributed to Hynes as part of the alleged Section 1983 conspiracy and malicious

prosecution places Plaintiff’s claims within the limited exceptions to prosecutorial

immunity that exist under current law.

The Court has reviewed the extensive summary judgment record as well as the

parties’ submissions. For the reasons set forth below, the Court finds that (1) genuine

issues of material fact preclude summary judgment, and (2) if a jury were to find in

Kellner’s favor on certain key disputed facts, and agree with Kellner about the

reasonable inferences to be drawn from those facts, Hynes would not be entitled to

either absolute immunity or qualified immunity. Accordingly, Defendants’ motion is

DENIED.

FACTUAL BACKGROUND

The facts below are drawn from the summary judgment record and are either

undisputed or presented in the light most favorable to Kellner as the non-moving

party.

I. Abuse Allegations Against Baruch Lebovits and His Prosecution

Plaintiff Samuel Kellner is a member of the Brooklyn Satmar Hasidic

Orthodox Jewish community. Kellner Dep. dated Jan. 25 and 30, 2023, Pl. Ex. 1

(“Kellner Dep. 1”) at 24:7–27:9,1 ECF No. 104-1.2 Understanding the complex

1 Pincites to deposition and court transcripts are to the original pages and lines,

not to the ECF pagination.

2 Defendants dispute that the record establishes Kellner is Hasidic. See Def.

Resp. to Pl. Rule 56.1 Statement (“Def. Reply 56.1 Statement”) ¶ 135, ECF No. 107.

While it is true that the record evidence before the Court does not expressly confirm

that Kellner is a member of the Satmar Hasidic Orthodox community, the record

circumstances of his prosecution by the Kings County District Attorney’s Office

(“KCDA”) requires some context involving the prosecution of Baruch Lebovits — the

man Kellner accused of molesting his son — for sexual abuse within the Satmar

Hasidic Jewish community in Brooklyn.

In 2008, Kellner’s wife told him that their son, P.K. (or “Victim 2”), had recently

been sexually abused by Baruch Lebovits. Kellner Dep. 1 at 152:4–153:9. Kellner

brought his son to the KCDA, where he reported the abuse. Id. at 174:13–175:10.

Subsequently, Kellner was put in contact with New York Police Department

(“NYPD”) Detective Steven Litwin, who interviewed P.K. and asked Kellner if he

could locate any other victims in the Satmar community. Id. at 184:12–186:18.

Kellner was advised that the KCDA would not proceed with charges arising out of his

son’s complaint because the alleged offense was a misdemeanor, Baruch Lebovits was

60 years old, and a prosecution was unlikely to result in jail time. Kellner Dep. dated

Jan. 25, 2023, Def. Ex. W (“Kellner Dep. 2”) at 175:21–177:19, ECF No. 100-23.

Kellner did not want P.K. to testify at trial if he was the only witness and was

concerned that his son would have to reveal what had happened to him if cross-

examined at trial. Kellner Dep. dated Jan 30, 2023, Def. Ex. G (“Kellner Dep. 3”) at

includes, among other references to the Satmar community, a submission by Kellner’s

attorney in his criminal case which refers to Kellner’s community as “the Satmar

Hasidic community.” MacGiollabhui Affirmation dated July 26, 2013, Pl. Ex. 51

(“MacGiollabhui Affirmation”) ¶ 10, ECF No. 104-51. Kellner’s membership in the

Satmar Hasidic community permeates every aspect of this case, and Defendants have

not adduced evidence that tends to disprove Kellner’s membership in that

community. Accordingly, the Court will treat Kellner’s membership in the

community as an undisputed fact for purposes of this motion. See F.R.C.P. 56(c)(3),

(e)(2).

256:2–13, 326:21–327:24, ECF No. 100-7; Pl. Resp. to Def. Rule 56.1 Statement (“Pl.

56.1 Statement”) ¶¶ 46–47, ECF No. 103. Through the Williamsburg Va’ad HaTznius

(a “modesty committee” which receives reports of sexual impropriety in the Brooklyn

Satmar community), Kellner learned of another potential victim, M.T. (or “Victim 1”).

Kellner Dep. 1 at 162:8–163:6, 186:19–187:25. Kellner referred M.T. to Det. Litwin.

Id. at 196:18–197:11.

On April 1, 2008, the KCDA indicted Baruch Lebovits on charges relating to

the alleged abuse of M.T. and P.K. Lebovits Indictment No. 2600/2008, Pl. Ex. 2

(“Lebovits Indictment”), ECF No. 104-2. Following Lebovits’s indictment, Kellner

learned of a third potential victim, Y.R. (or “Victim 3”). Kellner Dep. 1 at 188:10–22.

In November 2008, the KCDA brought a superseding indictment against Lebovits,

including charges relating to the abuse of Y.R. Lebovits Indictment No. 11393/2008,

Pl. Ex. 3 (“Lebovits Superseding Indictment”), ECF No. 104-3. Both indictments were

signed by Charles J. Hynes, the then-District Attorney (“DA”) of Kings County.

Lebovitz Indictment at 25;3 Lebovits Superseding Indictment at 27.

Baruch Lebovits was, at that time, a prominent member of the Satmar Hasidic

community. His family — which included, among other children, his sons Chaim and

Meyer — had access to significant financial resources. During the course of his

prosecution, Baruch Lebovits was represented by six lawyers — Arthur Aidala, Alan

Dershowitz, Amy Adelson, Nathan Dershowitz, Lawrence Goldman, and Elizabeth

Johnson. Lebovits Pre-Pleading Memorandum Signature Page, Def. Ex. P at 2, ECF

3 All page references are to ECF pagination unless otherwise noted.

No. 100-16; Lebovits Reply Memorandum of Law Cover Page, Def. Ex. Q at 1, ECF

No. 100-17.

Through the winter of 2008 and spring and summer of 2009, Lebovits and the

KCDA engaged in plea negotiations. A status sheet compiled by the KCDA and dated

November 18, 2008 indicates that the KCDA prepared a plea offer; it is reasonable to

infer the offer was made to Lebovits. See KCDA Status Sheet 11/18/2008, Pl. Ex. 4,

ECF No. 104-4. This plea offer remained the same following the superseding

indictment, except that Lebovits would have been required to also enter a plea to one

of the counts relating to Y.R. Gregory Dep. dated Feb. 23, 2022, Pl. Ex. 7 (“Gregory

Dep. 1”) at 90:2–91:18, ECF No. 104-7. DA Hynes approved this plea offer to Lebovits.

Feinstein Dep. dated Apr. 26, 2022, Pl. Ex. 6 (“Feinstein Dep.”) at 84:4–84:17, ECF

No. 104-6.4 In February 2009, attorney Arthur Aidala, defense counsel for Lebovits,

advised the court that Lebovits intended to submit a Pre-Pleading Information

(“PPI”). Court Tr. dated Feb. 24, 2009, Pl. Ex. 5 at 4, ECF No. 104-5. A PPI is a

document submitted to the court in an effort to obtain an improved plea offer when a

criminal defendant intends to plead guilty. Feinstein Dep. at 79:22–81:3.

Plaintiff obtained an unredacted version of the PPI in discovery and filed it

with this Court under seal. See Letter Mot. to File Under Seal, ECF No. 105 (Oct. 31,

4 Though the deposition transcript does not indicate that “the offer” about

which Chief Assistant District Attorney (“Chief ADA”) Amy Feinstein testified is the

same as the offer indicated on the 11/18/2008 Status Sheet, and Defendants dispute

that the offers were the same, see Def. Reply 56.1 Statement ¶ 152, Defendants have

not introduced evidence of any other plea offers made to Baruch Lebovits. It is thus

reasonable to infer that the offer Chief ADA Feinstein referenced as approved by DA

Hynes is the same offer indicated in the Status Sheet.

2024); PPI Memo dated May 4, 2009, Pl. Ex. 8 (“Unredacted PPI Memo”), ECF No.

113. The PPI Memo prepared by attorneys Goldman, Johnson, and Aidala stated

that Lebovits “candidly admits his involvement in some (but not all) of the conduct

described in the indictment.” Unredacted PPI Memo at 4.5 The PPI Memo further

stated that, “[a]t [Lebovits’s] first meeting with counsel, somewhat surprisingly to

counsel, he fully admitted the extent of his guilt to the allegations of the indictment

and indeed candidly told us about other incidents.” Id. at 6 (emphasis added). The

PPI Memo contains the caveat that “any statement or admission in it is excluded from

use by the District Attorney in the event of trial.” Id. at 1 (citing People v. Crosby,

387 N.Y.S.2d 362 (N.Y. Sup. Ct., Bronx Cnty. 1976) and N.Y. Crim. Proc. L.

§ 310.50(1)6). Moreover, while the PPI Memo makes reference to P.K., M.T., and Y.R.,

and the charges stemming from Lebovits’s abuse of each, the Memo also notes that

the charges relating to P.K. had been severed from the charges relating to M.T. and

Y.R. Id. at 2. Accordingly, the PPI Memo (and the admissions it contains) appears

to reference unlawful sexual conduct directed towards M.T. and Y.R., as well as other

unspecified victims. The PPI Memo does not indicate the precise unlawful conduct to

which Lebovits admitted but does indicate Lebovits’s willingness to plead guilty “to

the top count or counts, or even the entire indictment” in exchange for a sentence of

5 References to the Unredacted PPI Memo used the document’s original

pagination.

6 This citation to Section 310.50(1), the provision concerning the form of jury

verdicts, appears to be in error. See N.Y. Crim. Proc. L. § 390.50(1) (concerning

confidentiality of pre-sentence reports and memoranda).

“a term of probation not involving incarceration, but with required psychiatric

treatment.” Id. at 1.

Also in the record is a report by Dr. Robert L. Goldstein, a clinical psychiatrist

who performed an evaluation of Lebovits in April 2009. Goldstein Report dated Apr.

29, 2009, Pl. Ex. 9 (“Goldstein Report”), ECF No. 104-9. This report references an

admission by Lebovits of “deviate sexual behavior” with “underage boys,” though the

report does not contain the names of any of the victims. Goldstein Report at 5–6. The

PPI and its supporting documentation were provided to the KCDA and discussed

among KCDA staff. Gregory Dep. 1 at 97:2–98:22, 102:25–103:13, 105:22–106:5.

The PPI did not result in a change in the plea offered to Lebovits, as DA Hynes

remained personally unwilling to reduce the offer to a non-jail disposition. Feinstein

Dep. at 84:19–85:14.

II. Initial Extortion Allegations Against Kellner

On May 5, 2009, defense counsel for Baruch Lebovits informed Assistant

District Attorney (“ADA”) Miss Gregory, a supervisor of the KCDA’s Sex Crimes

Special Victims Bureau who was prosecuting Lebovits, and the court presiding over

the Lebovits trial of extortion allegations that had recently been made against

Kellner. Gregory Affirmation dated July 8, 2011, Pl. Ex. 10 (“Gregory Affirmation”)

¶ 2, ECF No. 104-10. Lebovits’s counsel claimed “that Kellner had approached

[Lebovits’s] family and told them that he would have all of the criminal cases against

[Lebovits] dropped in exchange for $250,000.” Id. ¶ 3. Defense counsel also claimed

that Kellner had repeated the same offer to the Satmar rabbi and, as ADA Gregory

recalled it, “[o]ne of the defense attorneys noted that Kellner had stated that all of

the victims were telling the truth, but that they needed the money.” Id. At that time,

defense counsel “had not yet decided how they were going to proceed, but [] they were

considering their options, including bringing the matter to the attention of the Kings

County District Attorney’s Office Rackets Division.” Id. ¶ 4. The presiding judge

granted an adjournment until June 17, 2009 to investigate these allegations. Id.

Several days later, ADA Gregory heard from one of Lebovits’s defense counsel

“that Kellner had approached [Lebovits’s] son, [Meyer], in person on May 6, 2009 and

over the phone on May 7, 2009.” Id. ¶ 5. Defense counsel also represented that

“Kellner allegedly told [Meyer] that he could make the case go away.” Gregory

Affirmation ¶ 5. On June 17, 2009, the presiding judge granted another adjournment

until July 21 to investigate these claims. Id. ¶ 6. On July 21, “[d]efense counsel

informed [ADA Gregory] and the court that they had decided that, at that time, the

defense were not going to go to law enforcement with the allegations against Kellner.”

Id. ¶ 7.

III. M.T.’s Recantation

In November 2009, M.T. informed ADA Gregory that he was prepared to testify

against Lebovits at trial, which was due to begin the following month. Gregory

Affirmation ¶ 11. ADA Gregory had taken steps to secure the cooperation of M.T. for

Lebovits’s prosecution. Gregory Dep. dated Feb. 23, 2022, Def. Ex. N (“Gregory Dep.

2”) at 240:5–20, ECF No. 100-14. However, later in November 2009, ADA Gregory

and Det. Litwin each received a call from an attorney named John Lonuzzi, who

claimed that he represented M.T. and that M.T. would no longer cooperate with the

Lebovits prosecution or testify if called at Lebovits’s trial. Gregory Affirmation ¶ 12;

Litwin Aff. dated July 7, 2011, Pl. Ex. 11 (“Litwin Aff.”) ¶ 8, ECF No. 104-11.

ADA Gregory discussed attorney Lonuzzi’s representation of M.T. and M.T.’s

non-cooperation with Chief ADA Feinstein. Gregory Dep. 1 at 259:10–260:3. ADA

Gregory attempted to contact M.T. through attorney Lonuzzi and arranged multiple

appointments through Lonuzzi to meet with M.T., but each of these appointments

was cancelled. Gregory Dep. 2 at 148:15–149:17; Gregory Affirmation ¶ 12. ADA

Gregory’s office also served subpoenas to obtain M.T.’s attendance, but M.T. did not

comply with these subpoenas. Gregory Affirmation ¶ 13. Without M.T.’s testimony,

there was insufficient evidence to try the case arising from M.T.’s allegations against

Lebovits. Gregory Dep. 2 at 240:11–17.

ADA Gregory prepared a memorandum, addressed to Sex Crimes Bureau Chief

Rhonnie Jaus, expressing her belief that M.T.’s “decision to no longer cooperate with

the case was caused by pressure from [the] Hasidic Community.” Gregory

Memorandum dated June 3, 2010, Pl. Ex. 22 (“Gregory Memo”) at 3, ECF No. 104-

22.7 ADA Gregory also noted that, while “[t]here is no evidence at this point that

7 The Court considers the various KCDA memoranda put into the summary

judgment record by Plaintiff as likely admissible under the hearsay exception for

public records. See Fed. R. Evid. 803(8)(A)(iii), (B) (“A record or statement of a public

office [is not excluded by the rule against hearsay, regardless of whether the declarant

is available as a witness] if . . . it sets out . . . in a civil case . . . factual findings from

a legally authorized investigation [and] the opponent does not show that the source

of information or other circumstances indicate a lack of trustworthiness.”); Moskowitz

v. Am. Express Co., No. 19-CV-566 (NGG) (JRC), 2025 WL 2494378, at *11 (E.D.N.Y.

Aug. 29, 2025) (“To be admissible under Rule 803(8)(A)(iii), the proffered evidence

[M.T.] was paid [apparently by Lebovits’s supporters] to drop out of the case . . ., [the

KCDA] has been contacted by various individuals who believe that is the case.” Id.

For his part, Det. Litwin received a call from M.T. “some months later and

before [Lebovits’s] trial” in which M.T. stated that he had not retained attorney

Lonuzzi and “that someone else had.” Litwin Aff. ¶ 9. M.T. arranged to meet with

Det. Litwin the next day and stated that “his family could not know that he had

contacted [Litwin]” because “[h]is father did not want him to talk to [Litwin].” Id. At

their meeting, M.T. repeated that “he had not retained [attorney Lonuzzi]” and stated

“that someone else had retained [Lonuzzi] but that he did not know who had done

so.” Id. ¶ 10. M.T. further stated that “he had been pressured and that he was afraid

to say what had happened” and “that he had been told not to talk to [Litwin] or to go

to the District Attorney’s Office.” Id. According to a subsequent KCDA internal

review of the Lebovits and Kellner cases conducted by ADA Kevin O’Donnell, Det.

must (1) contain factual findings (2) based upon an investigation made pursuant to

legal authority.”); United States v. Klein, No. 16-CR-442 (JMA), 2017 WL 1316999, at

*3 (E.D.N.Y. Feb. 10, 2017) (“The Supreme Court has held that a public record

containing ‘factually based conclusions or opinions’ may be admissible under Rule

803(8) based, among other things, on recognition ‘that factual findings includes

conclusions or opinions that flow from a factual investigation.’” (citation modified)

(quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162–63 (1988))); Revlon, Inc. v.

Carson Prods. Co., 602 F. Supp. 1071, 1079 (S.D.N.Y. 1985), aff’d, 803 F.2d 676 (Fed.

Cir. 1986) (“Admissibility under this provision is within the broad discretion of the

district court and courts have interpreted it quite liberally.” (citation omitted)); cf.

Moskowitz, 2025 WL 2494378, at *11 (“The unreviewed findings of an agency are

admissible as evidence under Rule 803(8)(A)(iii) as factual findings from a legally

authorized investigation by a public office.” (citation modified) (quoting Cortes v. MTA

New York City Transit, 802 F.3d 226, 232 (2d Cir. 2015))). The portions of these

memoranda describing the activities of members of the KCDA would likely also be

admissible under this hearsay exception. See Fed. R. Evid. 803(8)(A)(i) (excepting

records of a public office setting out “the office’s activities” from the rule against

hearsay).

Litwin “wanted [M.T.’s] non-cooperation to be investigated (by him or by an ADA)

[but Sex Crimes Bureau Chief] Rhonnie [Jaus] said no.” Kevin O’Donnell Notes, Pl.

Ex. 13 (“O’Donnell Notes”) at 15, ECF No. 104-13; see also O’Donnell Dep. dated Apr.

22, 2022, Def. Ex. AA at 20:14–21:10, ECF No. 100-27.

IV. Lebovits’s Conviction

Baruch Lebovits was tried and found guilty of crimes against Y.R. on March 8,

2010. Batsidis Dep. dated Mar. 23, 2022, Def. Ex. A (“Batsidis Dep. 1”) at 40:12–41:7,

ECF No. 100-1;8 Hynes Sentencing Letter to Justice DiMango dated Mar. 25, 2010,

Def. Ex. O (“Hynes Sentencing Letter”) at 1, ECF No. 100-15. DA Hynes, through

ADA Gregory, characterized Lebovits’s conviction as establishing that, “[f]rom May

2, 2004 through February 22, 2005, [Lebovits], an adult man, sexually assaulted

[Y.R.], then a sixteen year old boy, on multiple occasions by putting his mouth on the

penis of the boy.” Hynes Sentencing Letter at 1. Hynes sought a sentence of ten and

two-thirds to thirty-two years of incarceration for Lebovits. Id. at 2. Lebovits was

sentenced on April 12, 2010. See People v. Lebovits, 942 N.Y.S.2d 638, 639 (N.Y. App.

Div. 2012) (noting the “judgment of the Supreme Court, Kings County (DiMango, J.),

rendered April 12, 2010, convicting [Lebovits] of criminal sexual act in the third

degree (eight counts), upon a jury verdict, and imposing sentence”); Rachel Aviv, The

Outcast, The New Yorker (Nov. 10, 2014), Pl. Ex. 19 (“New Yorker Article”) at 18,

8 Page 41 of the Batsidis deposition, which is cited in Defendant’s Rule 56.1

Statement for the fact of Lebovits’s conviction, appears to be missing in the record.

The parties, however, agree that Lebovits was convicted of at least one crime against

Y.R. See Pl. 56.1 Statement ¶ 48.

ECF No. 104-19 (stating that Justice DiMango “sentenced Lebovits to the maximum

penalty on eight counts, to run consecutively, for a total of up to thirty-two years”).

On an unclear date after Lebovits’s conviction, DA Hynes met with ADA

Gregory, Sex Crimes Bureau Chief Jaus, Chief ADA Feinstein, and possibly others to

discuss the trial and the remaining cases against Lebovits. Gregory Dep. 1 at 221:3–

222:4. At this meeting, Hynes was told that M.T. was no longer cooperating with the

KCDA. Id. at 258:18–259:8. At some point thereafter, ADA Gregory and Bureau

Chief Jaus sought and received approval from Chief ADA Feinstein and DA Hynes to

dismiss the charges against Lebovits relating to his alleged abuse of M.T. and P.K.

Feinstein Dep. at 49:8–50:11, 53:19–54:13. The Sex Crimes Bureau prosecutors were

constrained to dismiss the charges against Lebovits relating to M.T. after “[M.T.]

became uncooperative under highly suspect circumstances” and “later recanted his

claims of [Lebovits’s] sexual abuse.” Bruffee Dep. dated Apr. 14, 2022, Pl. Ex. 27

(“Bruffee Dep.”) at 82:5–83:11, ECF No. 104-27.

V. Beginning of the Investigation into Samuel Kellner

On April 27, 2010, Baruch Lebovits’s lead defense attorney, Arthur Aidala, met

with ADA Michael Vecchione, Chief of the KCDA Rackets Division (“Rackets”), and

Detective Investigator (“DI”) Stephanie Green-Jones in Vecchione’s office to discuss

a potential extortion investigation. Vecchione Dep. dated May 20, 2022 (“Vecchione

Dep.”) at 18:19–19:9, ECF No. 109-2; Green-Jones Memorandum dated Apr. 30, 2010,

Pl. Ex. 14 (“Rackets Memo”) at 1, ECF No. 104-14. Later that same day, DI Green-

Jones and Assistant Chief Investigator (“ACI”) George Terra met with attorney

Aidala and Chaim Lebovits, one of Baruch Lebovits’s sons, at Aidala’s office. Rackets

Memo at 2. There, Green-Jones and Terra interviewed Chaim Lebovits. Id. Chaim

Lebovits claimed that his family had been approached by a man name Simon Taub

and Kellner with an offer to “make the case [against Baruch Lebovits] go away” for a

fee.9 Id. Chaim Lebovits also stated this his brother Meyer Lebovits, another son of

Baruch Lebovits, had also been approached by Taub, who attempted to extort him

with respect to abuse allegedly committed by Meyer. Id. Taub had not succeeded in

his alleged attempted extortion before Chaim Lebovits approached the KCDA, and

Green-Jones and Terra encouraged Chaim to continue communicating with Taub. Id.

at 2–3.

Chaim continued emailing with Taub and provided updates to DI Green-Jones

— including reporting to the KCDA that “Guess he [Taub] doesn’t have Kellner yet”

and “Looks like he [Taub] is having problems to ‘deliver’ [Kellner].” Kevin O’Donnell

Memorandum dated Mar. 4, 2014, Pl. Ex. 24 (“O’Donnell Memorandum”) at 4, ECF

No. 104-24 (alternation in original); O’Donnell Notes at 4. At some point, Kellner

learned of Taub’s plan and reported it to Det. Litwin. Kellner Dep. dated Mar. 16,

2023, Pl. Ex. 15 (“Kellner Dep. 4”) at 38:12–39:14, ECF No. 104-15.

9 The record is not explicit on which case Taub and Kellner alleged promised

to make go away, but DI Green-Jones’s memo contains a reference to “[o]ne of Kelner’s

[sic] sons also ha[ving] a case alleging that Baruch Lebovits molested him. (This case

has not been brought to trial yet.).” Rackets Memo at 2. It is reasonable to infer that

“the case” referenced in this allegation is P.K.’s allegation against Baruch Lebovits.

On May 4 and 5, 2010, attorney Aidala held two meetings with DA Hynes at

the KCDA. KCDA Appointments Log, Pl. Ex. 16, ECF No. 104-16.10 Five days later,

on May 10, 2010, Rackets opened an investigation targeting Taub and Kellner, with

ADA Vecchione assigned to the investigation. Case Tracking Report, Pl. Ex. 18, ECF

No. 104-18.

At the time it was opened, the investigation focused on the allegations that

“Target Taub approached Meyer Lebovits alleging that one of Target Kelner’s [sic]

children was molested by Meyer Lebovits but that if Meyer Lebovits gave Target

Taub an unspecified amount of money, Target Taub would make the case go

away . . . .” Id. Following a wire and sting operation, in which Chaim and Meyer

Lebovits delivered $75,000 to Taub, Taub was arrested on July 7, 2010. Green-Jones

Debriefing Memorandum dated July 20, 2010, Pl. Ex. 23 (“Debriefing Memo”), ECF

No. 104-23.11

As to the claims against Kellner, ADA Nicholas Batsidis was assigned to

investigate. Batsidis Dep. 1 at 204:5–9; Vecchione Dep. at 77:24–78:4. ADA

10 DA Hynes also had appointments to meet with attorney Aidala on July 28,

2011 and with attorney Alan Dershowitz on March 6, 2012. KCDA Appointments

Log. These are the only appointments scheduled with DA Hynes personally as

indicated on this appointments log. See id.

11 Defendants dispute the date of Taub’s arrest and point out, correctly, that

this Debriefing Memo does not state that Taub was arrested during the wire

operation it documents. See Def. Reply 56.1 Statement ¶ 179. However, the record

contains other references in KCDA-produced documents to July 7, 2010 as the date

of Taub’s arrest. See O’Donnell Notes at 4 (“7/7/10 . . . $75K delivered to

Taub . . . 7/7/10 . . . Taub arrested”). Moreover, Defendants have not adduced

evidence that tends to disprove Plaintiff’s assertion that Taub was arrested on July

7. Accordingly, it is reasonable to infer that this is the date of Taub’s arrest.

Vecchione supervised the investigation. Batsidis Dep. 1 at 211:13–14. ADA Joseph

Alexis had also been assigned to the investigation by May 2012. Batsidis Dep. 1 at

204:5–9, 211:10–12.

VI. Affidavits and Interviews Implicating Samuel Kellner

On May 24, 2010, Meyer Lebovits met with DI Green-Jones and claimed that

Kellner had demanded money from him to get rid of all three criminal cases against

Baruch Lebovits. Green-Jones Interview Memorandum dated May 25, 2010, Pl. Ex.

20 (“Lebovits Interview Memo”) at 2–3, ECF No. 104-20. A witness, Rabbi Mandel,

also reported to ADA Batsidis that Meyer Lebovits had told him that Meyer was

forced to give money to Kellner and wanted to memorialize the fact that he was

paying the money through a third party. Batsidis Dep. at 154:16–155:18. Rabbi

Mandel told Batsidis that he had prepared a document in or around January 2009 to

memorialize Meyer Lebovits’s statement. Id. at 155:4–8.

On June 2, 2010, attorney Aidala hired Robert Mladinich, a private

investigator. Aidala Dep. dated June 29, 2022 (“Aidala Dep.”) at 73:11–14, ECF No.

109-1; Mladinich Aff. dated Jan. 3, 2011, Pl. Ex. 36 (“Mladinich Aff.”) at 19, ECF No.

104-36 at 19–20. In June and July 2010, Mladinich notarized three affidavits, using

the KCDA’s caption for Baruch Lebovits’s criminal prosecution. The first was by an

individual named Sholem Weisner. Weisner Aff. dated June 22, 2010, Pl. Ex. 28

(“Weisner Aff.”), ECF No. 104-28. Weisner claimed that Y.R. told him that Kellner

and Y.R. were engaged in an effort to extort money from the Lebovits family in

exchange for Y.R.’s not proceeding with the case. Id. ¶¶ 5, 9–10. Weisner also implied

that Y.R. told him that Y.R. had falsified or embellished the extent of Baruch

Lebovits’s abuse. Id. ¶¶ 4–6, 8–11.

The second affidavit was by a rabbi named Moshe Friedman. Friedman Aff.

dated July 15, 2010, Pl. Ex. 26 (“Friedman Aff.”), ECF No. 104-26. Friedman claimed

that Kellner asked Friedman to “negotiate with the Lebovits family to ensure that

the charges against Baruch Lebovits never went to court and ‘all went away’” in

exchange for money. Id. at 2. Friedman also claimed that Kellner stated that he

“controlled all of these cases.” Id. Friedman further claimed that, when he asked

Kellner why he was pursuing the case, Kellner stated “Baruch doesn’t have money

but his son has money. I need to get money. I am not making a living. I have to get

this money.” Id.

The third affidavit was affirmed by M.T. M.T. Aff. dated July 22, 2010, Pl. Ex.

25 (“M.T. Aff.”), ECF No. 104-25. M.T. claimed that Kellner paid him $10,000 to

falsely allege that he had been abused by Baruch Lebovits. Id. at 2.

At a meeting with ADA Vecchione and counsel for Baruch Lebovits, ADA

Batsidis received various affidavits, including the affidavits of Weisner, Friedman,

and M.T. Batsidis Timeline dated Aug. 2013, Pl. Ex. 30 (“Batsidis Timeline”) at 2,

ECF No. 104-30. Vecchione subsequently instructed Batsidis to contact Mladinich

and schedule interviews for Friedman and M.T. Id. Mladinich “personally delivered”

Sholem Weisner and other witnesses to be interviewed by DI Green-Jones. Mladinich

Aff. at 19.

Friedman met with ADA Batsidis and KCDA investigators on August 13, 2010.

Batsidis Timeline at 2; Green-Jones Interview Memorandum dated Aug. 13, 2010,

Def. Ex. E (“Friedman Interview Memo”), ECF No. 100-5. At this meeting, Friedman

was shown a copy of his affidavit and stated that it was true and accurate. Friedman

Interview Memo at 1. During the interview, Friedman reiterated the statements

from his affidavit and added more information. He newly claimed that Kellner told

him he was having business problems; that Kellner’s son had problems in school and

needed a tutor, but Kellner had no money; that Kellner stated that he “controlled”

Y.R.; that Friedman advised Kellner not to try and extort the Lebovits family; that

Kellner stated he was receiving money from “some people in Monroe, New York . . .

based on whether Baruch Lebovits stayed in prison”; and that Kellner intended to

demand $250,000 from the Lebovits family. Id. at 1–2.

M.T., accompanied by attorney Lonuzzi, met with ADA Batsidis and DI Green-

Jones on September 15, 2010 under a proffer agreement. Batsidis Timeline at 3.

During this interview, M.T. stated, among other things, that Kellner came to his

home on or around March 11, 2008 and asked whether M.T. had ever been molested,

to which M.T. answered yes; that Kellner asked M.T. whether Baruch Lebovits had

molested him, to which M.T. responded no; that Kellner told M.T., if anyone asked,

to say that he was molested by Baruch Lebovits; that Kellner told M.T. he had a job

for him and gave him $500 in cash; that Kellner brought M.T. to Det. Litwin and told

M.T. to tell Litwin that Baruch Lebovits molested him; that M.T. lied by identifying

Baruch Lebovits as the man who molested him despite knowing that he was not; that

M.T. received approximately $100 per week from Kellner, totaling approximately

$10,000; that Y.R. had told M.T. that he, too, had received money and regretted

starting the Lebovits prosecution; and that M.T. came forward because he was

shocked when he learned about Baruch Lebovits’s lengthy prison sentence. Green-

Jones Memorandum dated Sep. 16, 2010, Def. Ex. L (“M.T. Interview Memo”) at 1–2,

ECF No. 100-12.

ADA Batsidis subsequently noted “that the Kellner case was resurrected by

the Lebovits lawyers with the affidavits they gave [the KCDA] and [Lebovits’s]

investigator [] escorting witnesses and potential witnesses [against Kellner] to [the]

KCDA.” Batsidis Timeline at 16–17. ADA Batsidis further stated that the Kellner

case had four elements: (1) Rabbi Moshe Friedman’s statement, (2) Meyer Lebovits’s

statement, (3) M.T.’s statement, and (4) a May 2009 recorded conversation between

Kellner and Meyer Lebovits. Batsidis Dep. at 218:17–219:6.

VII. Translations of a May 2009 Conversation Between Kellner and

Meyer Lebovits

During the May 24, 2010 meeting between Meyer Lebovits and DI Green-

Jones, Meyer told her about a conversation he had with Kellner the previous year, in

May 2009. Lebovits Interview Memo at 2–3. Meyer Lebovits recorded the

conversation. Pl. 56.1 Statement ¶¶ 18, 20. Kellner and Meyer Lebovits conducted

the conversation in Hungarian Yiddish and some Hebrew. Green-Jones Interview

Memorandum dated Aug. 1, 2013, Def. Ex. F (“Hikind Interview Memorandum”),

ECF No. 100-6; Kellner Dep. 3 at 428:10–430:13. In June 2010, Rackets obtained a

written translation of a transcript of the recorded conversation that was prepared by

Rina Neeman in 2009. Neeman Translation dated June 6, 2009, Pl. Ex. 21 (“Neeman

Trans.”), ECF No. 104-21; Batsidis Dep. 1 at 102:21–103:18. On November 24, 2010,

Rackets obtained a second translation of the recorded conversation prepared by Ruth

Kohn. Batsidis Timeline at 4; Kohn Translation, Pl. Ex. 31 (“Kohn Trans.”), ECF No.

104-31; Pl. 56.1 Statement ¶ 22.

The Neeman translation contains an exchange between Kellner and Meyer

Lebovits wherein they discuss Kellner’s son’s sexual abuse allegations against

Baruch Lebovits. Neeman Trans. at 26–27. The full Neeman translation is 54 pages

long, and this exchange takes place approximately halfway through the transcript.

The translated, transcribed exchange proceeds as follows, with slight alteration for

clarity:

Kellner: “[I]t’s my son who is a misdemeanor.”

Meyer Lebovits: “So what, what do you want to be done? You’re not

talking to the point.”

Kellner: “What should be done? I don’t know, what do you mean, what

should be done?”

Meyer: “And besides, what do you want from me? It was you who got

them into this situation. Take it out, so much the better. If you go out,

your son is out. Then only [M.T.] remains.”

Kellner: “One moment, but after all I cannot drop it.”

Meyer: “But you don’t want to go to trial!”

Kellner: “But after all my child was treated unjustly!”

Meyer: “True!”

Kellner: “I don’t want to drop it! The person who comes and says, young

man, I in fact did break into your home…”

Meyer: “So you want to settle?”

Kellner: “No! Not settle. [Extended metaphor involving a hypothetical

home break in]. And now you say, if you don’t back out, I will fix you.”

Meyer: “Who wants to fix you?”

Kellner: “If not, I have to go to trial. Do you know what happens if your

father pleads guilty for a misdemeanor? Do you know what’ll happen?

He walks. Your father walks.”

Meyer: “Who didn’t want to plead guilty for a misdemeanor?”

Kellner: “What do you mean. Your father wanted to go to trial with a

misdemeanor.”

Meyer: “That’s a lie! After all both cases were joined.”

Kellner: “What you mean? The two cases were divide [redacted]”

Meyer: “Well, he wanted to plead guilty for, for… he wanted to plead

guilty.”

Kellner: “No! He wanted to plead guilty for [M.T.], and everything

together. But if he pleads guilty for my son, he walks.”

Meyer: “But he wanted to plead guilty. I don’t know what you’re talking

about?”

Kellner: “He did not want to.”

Meyer: “Yes he did!”

Kellner: “If he wanted, then why didn’t he plead guilty?”

Meyer: “He wanted to plead guilty, but they didn’t want to compromise

on what they wanted.”

Kellner: “Aaaaah. This means he wanted to plead guilty, and he wanted

ten years probation, and if not, then no.”

Meyer: “Yes.”

Kellner: “That’s the whole story. Ah, I know about it.”

Id.

The Kohn translation contains a substantially similar exchange. Kohn Trans.

at 69–73. Kohn uses various symbols in the translation, including “[UI]” where the

recording is unintelligible, “[OV]” where there are overlapping voices, “//” where there

is an interruption, “[brackets]” for translator’s comments, and italics where the

speakers used English in the original recording. Id. at 2. The full Kohn translation

is 161 pages long, and this exchange takes place a little less than halfway through

the transcript. The exchange in the Kohn translation proceeds as follows, again with

slight alteration (in [bold brackets]) for clarity:

Kellner: “After all, my kid [UI] is a misdemeanor.”

Meyer Lebovits: “[OV] So you want... What have you, what have you

[UI]? [Loud noises] What do you want to [UI]?”

Kellner: “What should I do?”

Meyer: “[OV][UI]?”

Kellner: “[OV] I know. What do you mean, what should we do?”

Meyer: “Well, tell me. Anyway, what did you accomplish? You filed it

after all. Take it out [UI] he’ll come out, your son will come out.

[Redacted] will be out.”

Kellner: “[Whispers very softly:] It has to be filed three times [UI]. In

case I’m not [UI]. [UI] your father was finally reminded, so I have to

drop it… //”

Meyer: “You will not drop it, so let’s understand. Common sense [UI].”

Kellner: “[OV] Yes. After all, my child was hurt.”

Meyer: “True.”

Kellner: “So I should not drop it! Here I… The… The person that comes

and says, ‘Young man. I did break into your home… //’”

Meyer: “[OV] I thought [UI] that we’ll settle it, we’ll settle the matter…

//”

Kellner: “[OV] No, not settle. [Extended metaphor involving a

hypothetical home break in] Now you’re saying, ‘Oh, if you don’t back

off, I’ll fix you.’”

Meyer: “Who wants to fix you? Am I saying… //”

Kellner: “[OV] [UI] to bring you guys to trial, [UI]. [Loud noises].”

Meyer: “[OV] So I must defend myself, I must defend myself.”

Kellner: “Right. But do you know what happens if your father [UI] on a

misdemeanor? Do you know what happens? He walks.”

Meyer: “No.”

Kellner: “Your father walks. Should you father… //”

Meyer: “[OV] [UI] something like that.”

Kellner: “[OV] Now. What does it mean… //”

Meyer: “Who didn’t want [UI]?”

Kellner: “[OV] What do you mean? Right. Your father wanted to go to

trial on the misdemeanor.”

Meyer: “It’s a lie.”

Keller: “What do you mean? But what’s the thing? They assigned both

cases… //”

Meyer: “[OV] That’s what there was, two cases.”

Kellner: “The two cases were separated… //”

Meyer: “[OV] That’s what there was, two cases together. //”

Kellner: “The two cases were separated. //”

Meyer: “He didn’t want to go to trial [UI]. //”

Kellner: “[OV] [Redacted] [Redacted] //”

Meyer: “[OV] He wanted to plead guilty to a, to a, to… to a mis… He

wanted to plead guilty. //”

Kellner: “No, He just wanted to plead guilty to a misdemeanor in the

[redacted] case and to everything together. If he had just my son, if he

were to plead guilty for my son – he would walk.”

Meyer: “He did want to plead guilty, I don’t understand what you’re

talking about.”

Kellner: “He did not want to. //”

Meyer: “He did.”

Kellner: “He wanted [UI]. //”

Meyer: “[OV] He wanted to plead guilty. //”

Kellner: “And?”

Meyer: “And they didn’t wan… They didn’t give him what he wanted.”

Kellner: “That’s right. That means he wanted to plead guilty to whatever

he wanted. Approximately ten years probation and no

whatchamacallit.”

Meyer: “Yes.”

Kellner: “Yes. This is the whole story. I know about that.”

Id. at 69–73.

At his deposition, ADA Batsidis agreed that there were times when it was

“difficult for [him] to parse or understand[] the evidence because of language barriers”

and “difficult for [him] to understand the evidence because it depended to some extent

on the cultural mores of the orthodox community.” Batsidis Dep. 1 at 247:22–248:2,

249:5–13.” Batsidis also claimed that, upon review, he initially found the meaning of

Kohn’s translation unclear. Id. at 219:7–11. Batsidis then reviewed the translation

with Meyer Lebovits line by line. Id. at 219:12–17.

VIII. Y.R. Does Not Recant His Allegations Against Baruch Lebovits

On November 24, 2010, ADA Vecchione received an email from attorney Aidala

indicating that Mladinich had identified Y.R.’s residence. Emails dated Nov. 24 and

Nov. 29, 2010, Pl. Ex. 32 at 2, ECF No. 104-32. On November 29, 2010, ADA

Vecchione forwarded this email to ADA Batsidis with instructions to “[h]ave [DI]

Stephanie [Green-Jones] coordinate with Bob [Mladinich] to see if we can come up

with [Y.R.]” Id. KCDA then interviewed Y.R. on December 1, 2010 “regarding

allegations that he lied at the Baruch Lebovits trial.” Green-Jones Memorandum

dated Dec. 2, 2010, Pl. Ex. 33 at 2, ECF No. 104-33. At this interview, Y.R. “stated

that everything he testified to at both the Grand Jury and trial regarding Baruch

Lebovits was true” and “stated unequivocally that he was molested by Baruch

Lebovits and at no time did he accept money for his testimony.” Id.

At his deposition, Vecchione testified that he “never had [the] view that [he]

can recall” that Baruch Lebovits was wrongfully convicted and that he did not “recall

ever having [the] view” that the crimes of child sexual abuse for which Baruch

Lebovits was convicted at trial did not occur. Vecchione Dep. at 35:10–36:4, 40:2–10.

According to notes documenting the 2014 KCDA internal review of the Kellner

prosecution, Meyer Lebovits stated that at this point, “Sholom [sic] Weisner came

forward” and the “DA told him to continue to have interactions w[ith] [Y.R.] to see

what he could find out.” Kevin O’Donnell Interview Notes dated Feb. 25, 2014, Pl.

Ex. 34 (“O’Donnell Interview Notes”) at 12, ECF No. 104-34. Thereafter, “the

Lebovits family arranged for [Y.R.] to be taken to Florida” on false pretenses:

specifically, “under the guise of making a documentary film related to sexual abuse

victims.” O’Donnell Memorandum at 3;12 see also Green-Jones Dep. dated Mar. 24,

2022, Pl. Ex. 35 (“Green-Jones Dep.”) at 80:17–20, ECF No. 104-35.

While in Florida, Weisner interviewed Y.R. on video. During those interviews,

Y.R. “was plied with drugs and alcohol and filmed answering questions about Samuel

Kellner as well as his victimization at the hands of Baruch Lebovits.” O’Donnell

Memorandum at 3. A transcription was provided to the KCDA, apparently by

attorneys Aidala and Alan Dershowitz. See Batsidis Timeline at 5 (“I [ADA Batsidis]

along with ADA Vecchione met with Arthur Aidala, Alan Dershowitz and Nathan

Dershowitz in ADA Vecchione's office [on March 15, 2011].”); Faxed Tr. dated Mar.

12 Defendants admit the factual accuracy of the memorandum on this point but

observe that the cited evidence establishes only that, “as of the date of the cited

exhibit, such information was known by the author of same.” Def. Reply 56.1

Statement ¶ 192.

15, 2011, Pl. Ex. 37 (“Y.R. Recording Tr.”) at 2, ECF No. 104-37 (“Excerpts of [Y.R.]

Recording Given by A. Dershowitz [and] Aidala.”). The KCDA was also provided with

photographs taken in Florida. Green-Jones Dep. at 79:10–80:20; see also Def. Reply

56.1 Statement ¶ 193.

After these documents were provided to the KCDA, ADA Vecchione called

Bureau Chief Jaus and informed her that, “after the [Baruch Lebovits] sentencing[,]

the victim in our case from the trial . . . may have recanted and there was a tape.”

Jaus Dep. dated Apr. 8, 2022, Pl. Ex. 39 (“Jaus Dep.”) at 157:16–158:2, ECF No. 104-

39. Bureau Chief Jaus first met with ADAs Vecchione, Gregory, and Bruffee before,

“later that day or maybe the next day,” meeting with DA Hynes. Id. at 158:14–16.

At this meeting, they “discussed what was going on and that Mike [Vecchione]’s

[Rackets] department was going to look into it.” Id. at 158:16–18; see also id. at

157:7–15. Bureau Chief Jaus recalled that, “[u]ltimately I think the victim [Y.R.]

said he did not recant.” Id. at 158:13–14 (emphasis added).

On March 21, 2011, ADA Batsidis interviewed M.T. again in connection with

the Kellner investigation. Batsidis Dep. dated Mar. 23, 2022, Pl. Ex. 40 (“Batsidis

Dep. 2”) at 173:10–14, ECF No. 104-40; Batsidis Timeline at 5. On March 24, 2011,

ADA Batsidis conducted a second interview of Y.R. Batsidis Dep. 2 at 172:2–17;

Batsidis Timeline at 5.

Following this interview, ADA Vecchione told Batsidis to “indict and see if

[Y.R.] comes around.” Batsidis Dep. 2 at 172:18–173:5; see also Def. Reply 56.1

Statement ¶ 202. ADA Batsidis recalls these being the final two interviews before

Kellner was indicted. Batsidis Dep. 2 at 173:18–21; see also Batsidis Timeline at 5

(“Conferenced [on March 24, 2011] with ADA Vecchione proceed to grand jury.”).

IX. Kellner is Indicted and Arrested

ADA Batsidis presented the case against Kellner to a grand jury on March 29,

30, and 31, and April 7, 2011. Batsidis Timeline at 5; see generally Grand Jury Tr.,

Pl. Ex. 41 (“Grand Jury Tr.”), ECF No. 104-41. This evidence consisted of the

following: testimony of ADA Gregory, Grand Jury Tr. at 2–12;13 testimony of Meyer

Lebovits, id. at 13–31; testimony of Moshe Friedman, id. at 32–38; testimony of M.T.,

id. at 39–45; and two transcripts of court proceedings in the Baruch Lebovits criminal

trial. Id. at 40, 46–47. In his grand jury testimony, Meyer Lebovits claimed that, in

the recorded May 2009 conversation, Kellner demanded money from Meyer and

stated that Y.R. and M.T. “will not come to testify if [Meyer] [gave] him the money

that he is asking for.” Id. at 27–29. Batsidis did not present a transcript of the May

2009 conversation itself; nor did he present Baruch Lebovits’s 2009 PPI in which

Lebovits’s counsel represented to the KCDA that he had admitted to child sexual

abuse and was prepared to plead guilty to some, and potentially all, of the charges in

the indictment on the counts involving Y.R. and M.T. The third affiant against

Kellner, Sholem Weisner, did not testify before the grand jury. See generally Grand

Jury Tr.

The grand jury voted to indict Kellner on April 11, 2011. Kellner Indictment

No. 2538/2011, Def. Ex. M (“Kellner Indictment”), ECF No. 100-13; Pl. 56.1 Statement

13 Citations to this grand jury transcript use ECF pagination.

¶ 36. Kellner was indicted on one count of conspiracy in the fourth degree, five counts

of attempted grand larceny in the second degree by extortion, two counts of perjury

in the first degree, and two counts of criminal solicitation in the fourth degree. See

generally Kellner Indictment. On April 12, 2011, Kellner was arrested. Batsidis

Timeline at 6; Pl. 56.1 Statement ¶ 39. Following Kellner’s arrest, ADA Vecchione

emailed DA Hynes, stating, “Boss, Kellner is in custody. See you in the morning.”

Email dated Apr. 12, 2011, Pl. Ex. 43 (“Vecchione Email”) at 2, ECF No. 104-43. DA

Hynes responded, “Great.” Id.

After Kellner’s indictment, Hynes held a press conference where he stated,

“child abuse has to be prosecuted vigorously, but we also have to be very, very careful

about false complaints.” Amended Compl. (“Am. Compl.”) ¶ 44, ECF No. 14 (Oct. 2,

2017);14 Batsidis Timeline at 6. Kellner was arraigned on April 13, 2011. Batsidis

Timeline at 6.

14 Defendants cite Plaintiff’s Amended Complaint and a 2013 affirmation by

Plaintiff’s counsel for the fact that “[a] news conference attended by Hynes took place

after plaintiff’s arrest.” Def. Rule 56.1 Statement (“Def. 56.1 Statement”) ¶ 40, ECF

No. 101. While the record does not conclusively establish the content of DA Hynes’s

statements at the press conference, for purposes of this motion, the Court will accept

Plaintiff’s version of the statements as fact in light of Defendants’ general willingness

to rely upon Plaintiff’s representations and specific failure to dispute Plaintiff’s

allegations. The Court also notes that the record elsewhere supports Plaintiff’s

version of DA Hynes’s statements. New Yorker Article at 27 (“At a press conference

that morning, [DA] Hynes announced the charges while standing beside an easel with

a large photograph of Kellner’s face on it. He told a room full of reporters that ‘child

abuse has to be prosecuted vigorously, but we also have to be very, very careful about

false complaints.’”); see also United States v. Arevalo-Chavez, No. 22-CR-429 (JMA)

(AYS), 2025 WL 1952438, at *2 (E.D.N.Y. July 16, 2025) (citing a New Yorker article

for the content of a politician’s statement to the media).

X. Baruch Lebovits’s Conviction is Vacated and He Ultimately Pleads

Guilty to Sexually Abusing Y.R.

Before Kellner was indicted, on January 20, 2011, attorney Aidala forwarded

an email to ADA Vecchione containing draft papers in support of a N.Y. Crim. Proc.

L. § 440.10 motion to vacate Baruch Lebovits’s conviction. Email and Attachments

dated Jan. 20, 2011, Pl. Ex. 36 (“Aidala Email and Attachments”) at 2, ECF No. 104-

36. These draft motion papers included the Sholem Weisner, Moshe Friedman, and

M.T. affidavits accusing Kellner of seeking to extort the Lebovits family. Id. at 14–

18. At her deposition, ADA Bruffee testified that she was not aware of Aidala sending

this draft motion to Vecchione. Bruffee Dep. at 228:12–22.

On March 16, 2011, Nathan Dershowitz, one of Baruch Lebovits’s defense

counsel, sent an email to ADA Bruffee concerning Lebovits’s application for bail

pending appeal of his criminal conviction. Email dated Mar. 16, 2011, Pl. Ex. 38 at

2, ECF No. 104-38. Following this email, ADA Bruffee first met with Chief ADA

Feinstein and subsequently met with DA Hynes concerning the bail application.

Bruffee Dep. at 41:17–43:20. ADA Bruffee testified that she “had the

impression . . . that the 19th floor [i.e., DA Hynes] was getting information that

maybe Mr. Lebovits wasn’t guilty as convicted.” Id. at 43:21–24. At her deposition,

ADA Bruffee explained why she requested this meeting:

I asked [Chief ADA Feinstein] if she would cause a meeting with the

D.A. to be created at which the . . . trial people would talk to Mr. Hynes

and explain that we believed that Mr. Lebovits in fact was guilty and in

fact had done the same thing to other people. Just so that he had kind

of our side of the story.

Id. at 44:3–11. At the beginning of this meeting, DA Hynes stated, “where is the

Rackets Bureau Chief, Mike Vecchione” — who had been tapped by Hynes to lead the

extortion investigation into Kellner — and informed the Sex Crimes lawyers that

“[w]e can’t have a meeting without him too.” Id. at 44:12–16. ADA Vecchione then

“came down” for the meeting. Id. at 44:16. ADA Bruffee testified that, at the meeting,

Vecchione said, “well, [Lebovits] might have touched him, but it wasn’t what the

victim said.” Id. at 44:17–19. ADA Bruffee “vividly” recalled that Hynes asked, “but

I thought you [i.e., Vecchione] said he was an innocent man.” Bruffee Dep. at 44:19–

21. Bruffee further testified that “Mr. Hynes was surprised [and] maybe got a

different view of the case after that.” Id. at 44:24–25.

On April 14, 2011, two days after Kellner’s arrest, the Hon. Barry Kamins,

administrative judge for the criminal courts of New York City, emailed DA Hynes

and Chief ADA Feinstein ex parte regarding Baruch Lebovits’s potential release on

bond pending appeal. Email dated Apr. 14, 2011, Pl. Ex. 44 at 2, ECF No. 104-44.

Justice Kamins stated that “[Justice John M.] Leventhal will put in his order that in

the event there is an application with respect to a violation of the terms of the house

arrest, the application will be made to [Justice] DiMango [i.e., the judge who

sentenced Lebovits].” Id. Justice Kamins also requested, “Please do not mention this

to anyone until [Justice] Leventhal issues his order.” Id. DA Hynes responded, “Of

course.” Id. On April 15, 2011, Justice Leventhal issued an order granting Lebovits’s

N.Y. Crim. Proc. L. § 460.50 motion for a stay of execution of a judgment and releasing

Lebovits on bail and house arrest. People v. Lebovits, No. 2010-03777, 2011 N.Y. Slip

Op. 70203(U), 2011 WL 1448937 (N.Y. App. Div. Apr. 15, 2011).

In September 2011, Lebovits sought to modify the conditions of his bond.

Bruffee Dep. at 104:14–15. ADA Bruffee sent an email to Chief ADA Feinstein with

a draft opposition to the bail modification. Id. at 103:9–104:15; Emails dated Sep. 19

and Sep. 20, 2011, Pl. Ex. 45 (“Bruffee Emails”) at 3–5, ECF No. 104-45. Bruffee also

forwarded these emails to ADA Gregory and stated, “Let’s hope she [i.e., Chief ADA

Feinstein] can convince the DA.” Bruffee Emails at 2. Bruffee specifically asked

Chief ADA Feinstein for permission “to refer to [Lebovits’s] 2009 psychiatric report

[that was included with his PPI] and submit it to the App. Div. under seal.” Id. at 5.

Bruffee believed that “[Lebovits’s] admissions in the report are highly relevant to the

threat he poses to the community, should the court give him unrestricted access.” Id.

On October 3, 2011, at a conference in chambers in the Lebovits criminal

proceeding, Lebovits’s defense counsel discussed the impact of the allegations against

Kellner on Lebovits’s prosecution. Court Tr. dated Oct. 3, 2011, Pl. Ex. 65 (“Lebovits

Conference Tr.”), ECF No. 104-65. Attorney Aidala accused Kellner of attempting to

extort the Lebovits family by threatening, “if you don’t give us the money for your

brother, what we did to your father we are going to do to your brother.” Id. at 44:4–

6. Aidala explained to Justice DiMango:

Your Honor, the first people we go to is the FBI. They move on a

different speed. At that point, I mean, we had to make a decision. It is

very odd. And I compliment Joe Hynes and his office tremendously

because they easily could have closed the door on our faces and they

didn’t. They sat. They listened. They evaluated. They put their top

people on it and they may [sic] a decision like everybody else does in any

domestic violence, “Do you believe him or do you believe her? Do you

believe her or do you believe him?” And they came to the conclusion that

they believed this guy, Taub.

I didn’t have that name, Taub, before any of this. I never had Taub. I

had Kellner, Kellner, Kellner. This was Taub. The only thing we knew

about was a wealthy man that was written on a piece of paper. I didn’t

know anything about a guy named Taub. All of a sudden Malcolm [sic]

Taub comes up. Everything unfolds. Your Honor, he said something

before, “We are trying to confuse you.” We didn’t look for this. . . .

This came in a panic phone call to us, “Artie, you have to help us. They

are going to arrest my brother. They are going to make up charges

against my brother the way that they did to my father. Help, help, help.”

I called the greatest lawyer maybe in the nation. He calls the FBI. They

don’t help him very much, quite frankly. What else do we do? Obviously,

it’s no secret that I have a relatively amicable relationship with the

District Attorney’s office. I called people there who I knew would at least

listen to me. They listened, but they took action. It’s a brand new set of

facts. This is a new person asking a new person for money on another

thing.

Id. at 44:7–45:13.

Justice DiMango questioned the relevance of these allegations against Kellner

to the Lebovits prosecution, to which Aidala responded, “If there were tapes where

Taub says, ‘I controlled Kellner who controlled [Y.R.] and that’s why your father is in

jail,’ that’s irrelevant?” Id. at 45:14–20. Justice DiMango then questioned whether

these allegations would be admissible in Lebovits’s case. Id. at 45:21–22. Attorney

Nathan Dershowitz responded, “First of all, Kellner is a witness. He takes the fifth.

We have an inference,” followed by attorney Alan Dershowitz, who responded, “We

cross-examine [Y.R.].” Id. at 45:23–25.

On April 24, 2012, the Appellate Division, Second Department reversed

Lebovits’s conviction and ordered a new trial. People v. Lebovits, 942 N.Y.S.2d 638,

640 (N.Y. App. Div. 2012). The court concluded that “the evidence was legally

sufficient to establish the defendant’s guilt beyond a reasonable doubt” and that “the

verdict of guilt was not against the weight of the evidence.” Id. at 641. However, the

court found “that the Supreme Court improvidently exercised its discretion in

declining to grant a mistrial,” identifying several prejudicial errors by the prosecution

and the court that required Lebovits be tried again. Id. at 641–42.

In November 2013, Hynes lost his race for reelection as District Attorney.

Vivian Yee, Thompson Defeats Hynes, Again, for Brooklyn District Attorney, N.Y.

Times (Nov. 5, 2013), https://www.nytimes.com/2013/11/06/nyregion/thompson-

claims-victory-over-hynes-again-for-brooklyn-district-attorney.html [https://perma.

cc/3CDV-7BCU]. The newly elected District Attorney continued the office’s

prosecution of Lebovits. In May 2014, Lebovits pled guilty to eight counts of criminal

sexual act in the third degree, the same charges on which he was convicted in his

criminal trial as to Y.R.’s allegations. Andrew Keshner, Brooklyn Man Pleads Guilty

to Child Sex Abuse Charges, N.Y. L.J. (May 21, 2014),

https://www.bloomberglaw.com/product/blaw/document/X7IG3G9S000000 [https://

perma.cc/44CR-N6UF]. Pursuant to a plea agreement, he was sentenced to a term of

two years with credit for time served. Stephanie Clifford, Brooklyn Cantor Is

Sentenced to 2 Years for Sexual Abuse, N.Y. Times (July 9, 2014),

https://www.nytimes.com/2014/07/10/nyregion/brooklyn-cantor-sentenced-to-2-

years-for-sexual-abuse.html [https://perma.cc/4WT6-5P66].

XI. Developments in Kellner’s Prosecution, the Subsequent KCDA

Review, and Dismissal of the Charges Against Plaintiff

Kellner’s prosecution continued for nearly three years, from April 2011

through March 2014. O’Donnell Memorandum at 2; Def. Reply 56.1 Statement ¶ 215.

On March 23, 2012, ADA Batsidis, ADA Bruffee, and Det. Litwin interviewed

Y.R. Memorandum from ADAs Alexis and Batsidis dated Jan. 16, 2024, Pl. Ex. 55

(“Alexis/Batsidis Memorandum”) at 6, ECF No. 104-55. During this interview, Y.R.

stated that, in 2008, Beryl Ashkenazi15 offered to pay him not to testify against

Baruch Lebovits before withdrawing the offer. Id. Y.R. also represented that Kellner

“urged [Y.R.] not to take any of Beryl Ashkenazi’s money,” “promised [Y.R.] that

[Kellner] would help [Y.R.] get a bigger payment in the future,” and “urged [Y.R.] to

continue participating in the Lebovits prosecution.” Id. Y.R. also reported a rumor

that M.T. “backed out of testifying at the Lebovits trial due to Lebovits family

pressure and because his lawyer [i.e., attorney Lonuzzi] was paid $5,000.” Id. at 7.

On May 4, 2012, DI Green-Jones and KCDA DI Jeannette Sbordone

interviewed Natalie Bagimov, a mutual friend of M.T. and Y.R. whom Y.R. had

mentioned during his interview. Id. at 6–7. Bagimov stated that M.T. “informed her

that one of Baruch Lebovits’[s] daughters warned [M.T.] that if he testified against

her father, the Lebovits family would insure that [M.T.] would be charged with

15 Beryl Ashkenazi testified as a defense witness in Baruch Lebovits’s criminal

trial. Alexis/Batsidis Memorandum at 10; see also Court Tr. dated Mar. 3, 2010, Pl.

Ex. 64 at 4:10–5:7, ECF No. 104-64 (discussing Ashkenazi as a defense witness, with

attorney Aidala making an offer of proof that, “within the last 12 to 14 months[,

Ashkenazi] had a conversation with the complainant [i.e., Y.R.] whereby the

complainant in sum and substance admitted to [Ashkenazi] that [Y.R.] was going to

try to make money by accusing Mr. Lebovits of these crimes”).

molesting two boys.” Id. at 7. Bagimov also stated that “[t]hese Lebovits family

threats caused [M.T.] to stop cooperating with the Lebovits prosecution.”

Alexis/Batsidis Memorandum at 7. Bagimov further stated that M.T. had “fled to

Israel” approximately seven months earlier. Id.

In August and September 2012, the KCDA subpoenaed “flight records and

bank records relating to [M.T.’s] travel between Israel and the United States.” Id.

ADA Batsidis subsequently informed DA Hynes that “[a] review of said records

indicates clearly that Zalman Ashkenazi, a Lebovits family ally and the brother of

Beryl Ashkenazi[,] a defense witness in the Leibovits [sic] trial, paid for [M.T.’s] travel

expenses.” Email dated June 19, 2013, Pl. Ex. 49 (“Batsidis Email”) at 3, ECF No.

104-49. In October 2012, ADA Batsidis further learned that Zalman Ashkenazi was

making payments to M.T.’s father. Batsidis Dep. 2 at 207:16–208:25; see also Def.

Reply 56.1 Statement ¶ 214 (leaving this fact undisputed).

Following these revelations, ADAs Batsidis and Alexis “decided that they

needed to personally confront [M.T.] with this information” and arranged with

attorney Lonuzzi for M.T. to return from Israel for an interview. Alexis/Batsidis

Memorandum at 8. “Batsidis and Alexis informed [ADA] Vecchione and [DA] Hynes

of these developments.” Id. On June 19, 2013, Batsidis emailed Hynes directly,

responding to a request made earlier that day by Hynes for “a brief summary of the

evidence against Kelner [sic]” to date. Batsidis Email at 2–3.

On June 26, 2013, ADAs Batsidis and Alexis interviewed M.T. “in order to

assess [M.T.] as a witness, and to discuss whether or not [M.T.] ever stated that his

initial sexual molestation accusations against Baruch were in fact true.”

Alexis/Batsidis Memorandum at 8. During this interview, M.T. “restated that

Kellner paid him to falsely accuse Baruch of sexual molestation.” Id. M.T. also stated

that Kellner brought him to see Det. Litwin and that, when initially going to see Det.

Litwin, M.T. “anticipated that Steve Litwin would give [M.T.] a badge and a gun and

allow [M.T.] to aid Litwin in his police work.” Id. M.T. further stated that he

informed Det. Litwin that “a man named Kraus was his true molester” and claimed

that, upon hearing this, “Litwin told [M.T.] that he wasn’t going to arrest Kraus, but

would instead arrest Baruch and falsely accuse him of this crime.” Id.

M.T. also claimed that Det. Litwin showed M.T. “Baruch’s passport photo,

informed [M.T.] of the address of the temple where the molestation took place,

advised [M.T.] as to the dates when the molestation took place,” and coached M.T. as

to the content of his testimony. Id. M.T. also disclosed “recent significant psychiatric

history” and told Batsidis and Alexis “that he used drugs and alcohol very heavily

during the relevant time period.” Id. After initially denying knowing Zalman

Ashkenazi, M.T. “admitted knowing Zalman Ashkenazi, stated that Zalman

Ashkenazi is his brother’s Rabbi, and added that Zalman Ashkenazi is paying for his

airfare to and from Israel, his apartment and school fees in Israel, and his attorney’s

fees.” Alexis/Batsidis Memorandum at 9. M.T. also stated “that he wasn’t sure who

molested him and stated that Baruch could have molested him, but that he wasn’t

sure” and “acknowledged telling other people on several occasions that Baruch

molested him.” Id. at 8–9.

“Shortly after this interview,” ADAs Batsidis and Alexis met with and briefed

DA Hynes. Id. at 9. Batsidis and Alexis shared their belief that M.T. was not a

reliable witness and that the case against Kellner should be dismissed. Id. DA Hynes

initially agreed and directed Batsidis and Alexis “to prepare a closing memo by

Monday July 1, 2013.” Id.

On June 27, 2013, Batsidis and Alexis discussed the case with ADA Vecchione

and shared their views on M.T.’s unreliability and the Kellner prosecution. Id.

Vecchione disagreed with their view that M.T.’s allegations against Det. Litwin

should not be reported to the NYPD’s Internal Affairs Bureau (“IAB”) and later

directed Executive ADA Charles Guria to refer Det. Litwin to the IAB.

Alexis/Batsidis Memorandum at 9.

On June 28, 2013, Vecchione “informed Batsidis and Alexis that there was a

change in course,” that “[t]he Kellner case was not going to be dismissed.” Id.

Vecchione also instructed that “Batsidis and Alexis were to have no further contact

with [DA Hynes] regarding the Kellner case.” Id.

At his deposition, ADA Vecchione testified as to a meeting he held with DA

Hynes about Batsidis’s and Alexis’s recommendation that the Kellner case be

dismissed. Vecchione Dep. at 43:25–45:12. Vecchione testified:

I recall a meeting in which Hynes called me to his office to tell me that

two of my -- that Batsidis and Alexis wanted the Kellner case dismissed.

And he asked them to write a memo, and he showed me the memo and

asked me, first of all, did I know that they wanted it to be dismissed,

and I said no. Second of all, he showed me the memo and said this memo

is not to my liking. It’s just -- it’s poor, shoddy work. And he said that

he didn’t like the -- not that he didn’t like. He was disappointed that

two people who work for him would write a memo of that quality. And

he asked me if I thought there was a triable case, and I said yes, I do.

He asked me if it was legally sufficient. I said yes, it was. And that was

the meeting.

Id. at 44:10–45:2.

After ADA Vecchione’s meeting with Hynes, at Vecchione’s request, M.T. came

once more to the KCDA on July 1, 2013 to be interviewed by Vecchione, Batsidis, and

Alexis. Alexis/Batsidis Memorandum at 9. At this interview, M.T. “repeated that

Kellner paid him to falsely testify against Baruch Lebovits.” Id. During this

interview, M.T. stated that his uncle paid for his flight to Israel and that two rabbis

gave him money and paid his rent and school fees in Israel. Id. at 10. M.T. initially

stated that he flew to Israel because his family had arranged a possible marriage for

him but subsequently stated “that he really went to Israel because he was accused of

child molestation” and his family “arranged for him to flee to Israel until the

accusations in America were resolved.” Id. M.T. also initially represented that “he

barely knew Zalman Ashkenazi” but subsequently stated that “he has known Zalman

Ashkenazi since he was a child, and that he knows the entire Ashkenazi family.” Id.

M.T. then “acknowledged that Zalman Ashkenazi paid for several of his flights

between the United States and Israel, and that he needed Zalman Ashkenazi’s

permission to return to the U.S. when he was in Israel.” Id. M.T. further stated that

Kellner promised to arrange a wedding for M.T. in exchange for falsely accusing

Baruch Lebovits but, when pressed, could not remember specific dates and times,

“stat[ing] that he could not clearly remember because of his heavy drug and alcohol

use.” Alexis/Batsidis Memorandum at 10. M.T. stated that his relationship with

Kellner cooled after Kellner did not pay him as promised. Id. Finally, M.T. stated

that he had “never at any time seen Baruch.” Id.

After this interview, ADAs Batsidis and Alexis “were further convinced that

[M.T.] was an unreliable witness” and “restated their belief that the Kellner case

should be dismissed.” Id. ADA Vecchione disagreed. Id. Batsidis and Alexis made

Brady disclosures related to the July 1, 2013 M.T. interview to Kellner’s defense

counsel in court on July 8, 2013. Id. at 11.

On July 17, 2013, Batsidis, Alexis, and DI Jones-Green met with New York

State Assemblyman Dov Hikind in his offices. Alexis/Batsidis Memorandum at 11;

see generally Hikind Interview Memorandum. Hikind stated that he “was very fluent

in the Hungarian Yiddish dialect that Kellner and Meyer [Lebovits] spoke during the

taped 2009 conversation” and that, “after listening to the conversation, he is

convinced that Kellner was not extorting the Lebovits family.” Alexis/Batsidis

Memorandum at 11.

On July 24, 2013, DA Hynes appeared on a radio program to comment on the

case against Kellner. Pl. 56.1 Statement ¶ 41. Hynes stated, “I believe there was a

substantial effort by Mr. Kellner to gain money by making up stories. I think we

have a substantial case.” Am. Compl. ¶ 50.16

At some point between January 2013 and July 26, 2013, officials at KCDA

became aware that Moshe Friedman, one of the grand jury witnesses against Kellner,

16 As with the 2011 press conference, Defendants cite to Plaintiff’s Amended

Complaint as evidence of Hynes’s appearance on this radio program. For the same

reasons discussed supra, for purposes of this motion, the Court will credit Plaintiff’s

version of Hynes’s statements on the radio program, as well.

was Baruch Lebovits’s first cousin. O’Donnell Memorandum at 5 (“The second reason

[that Friedman’s testimony is suspect] is that Friedman is Baruch Lebovits’[s] first

cousin. This fact, never disclosed by Friedman, was brought to the attention of the

KCDA by Kellner’s attorney as well as by media accounts of the Kellner case.”);

MacGiollabhui Affirmation ¶ 44; Hella Winston, Abuse Whistleblower Battling Both

Haredi Community, DA, The Jewish Week (Jan. 14, 2013), MacGiollabhui

Affirmation Ex. B at 32, ECF 104-51 at 28–38.

On July 29, 2013, Kellner’s defense counsel served ADAs Batsidis and Alexis

with a motion to dismiss the indictment in the interest of justice. Alexis/Batsidis

Memorandum at 11. Following receipt of the motion, Batsidis and Alexis informed

ADA Vecchione that they each “believed that the case should be dismissed” and each

“asked to be taken off the case.” Id. In early August 2013, Executive ADA Monique

Ferrell was assigned to the case. Id. at 12.

Hynes was defeated in the Democratic primary election for District Attorney

on September 10, 2013. Vivian Yee, Challenger Wins Primary for Brooklyn District

Attorney, N.Y. Times (Sep. 10, 2013), https://www.nytimes.com/2013/09/11/nyregion/

challenger-wins-primary-for-brooklyn-district-attorney.html [https://perma.cc/Q27X-

SFDH]. The following day (September 11, 2013), Kellner withdrew his motion to

dismiss the indictment, and Executive ADA Ferrell informed Batsidis and Alexis that

“she would no longer work on the Kellner matter.” Alexis/Batsidis Memorandum at

12. Kellner’s case was adjourned until November 11, 2013 — one week after the

general election for District Attorney, in which Hynes continued to seek reelection,

this time as a Republican. Id.; Vivian Yee, Thompson Defeats Hynes, Again, for

Brooklyn District Attorney, N.Y. Times (Nov. 5, 2013),

https://www.nytimes.com/2013/11/06/nyregion/thompson-claims-victory-over-hynes-

again-for-brooklyn-district-attorney.html [https://perma.cc/3CDV-7BCU].

After Hynes’ defeat in the general election, ADA O’Donnell was assigned to

review Kellner’s prosecution. O’Donnell Dep. at 20:14–21:10. On March 4, 2014,

O’Donnell compiled a memorandum of his findings and conclusions. See generally

O’Donnell Memorandum. In his memorandum, O’Donnell formally recommended

dismissing Kellner’s prosecution in the interest of justice. O’Donnell Memorandum

at 2. On March 7, 2014, O’Donnell made an unopposed motion on behalf of the KCDA

to dismiss the case against Kellner, which was granted. Court Tr. dated Mar. 7, 2014,

Pl. Ex. 60 (“Dismissal Tr.”) at 5:15–16, 10:16–17, ECF No. 104-60

PROCEDURAL BACKGROUND

Kellner initiated the instant suit on March 6, 2017. Compl., ECF No. 1. The

Hon. Margo K. Brodie, who was then presiding over this case, held a pre-motion

conference on Defendants’ anticipated motion to dismiss and granted Kellner leave

to file an amended complaint. Dkt. Order dated Aug. 31, 2017. Kellner then filed his

Amended Complaint on October 2, 2017. Am. Compl. Defendants’ motion to dismiss

was fully briefed on July 2, 2018. Def. Mot. to Dismiss, ECF No. 19; Def. Mem. in

Supp., ECF No. 20; Pl. Mem. in Opp’n, ECF No. 21; Def. Reply in Supp., ECF No. 22.

On March 4, 2019, Defendants filed a Suggestion of Death, informing the Court

that Defendant Charles J. Hynes had died. ECF No. 25. Judge Brodie stayed the

case pending Kellner’s filing a motion for substitution as to Charles Hynes. Min.

Entry dated Mar. 19, 2019. Kellner filed an unopposed motion to substitute party on

November 30, 2020, ECF No. 36, which was granted, substituting Patricia L. Hynes,

administrator of the estate of Charles J. Hynes, for the deceased Defendant Hynes.

Dkt. Order dated Dec. 16, 2020.

While discovery was ongoing, Judge Brodie denied Defendants’ motion to

dismiss. Kellner v. City of New York, No. 17-CV-1268 (MKB), 2021 WL 4251343

(E.D.N.Y. Sep. 17, 2021). Judge Brodie first evaluated the extent to which DA

Hynes’s alleged conduct was shielded by prosecutorial immunity. Id. at *6–9. Judge

Brodie concluded that, accepting certain allegations by Kellner as true for purposes

of the motion, his claims were not barred by prosecutorial immunity, specifically

finding “that Hynes is not protected by absolute immunity for (1) his decision to

exclude the Sex Crimes Bureau and Detective Litwin from the investigation into

Plaintiff; (2) encouraging Weisner to make YR ‘crack,’ or (3) counseling the Lebovits

family on what evidence to obtain against Plaintiff,” id. at *8, and that “Hynes

[cannot] rely on absolute immunity to shield him from liability arising from his

statements to the media,” id. at *9. Judge Brodie also denied Defendants’ motion to

dismiss Plaintiff’s malicious prosecution claim, id. at *11–13, his Section 1983

conspiracy claim, id. at *14, and his Monell claim, id. at *18–19. Judge Brodie further

denied the motion to dismiss on grounds of qualified immunity. Id. at *15.

This case was reassigned from Judge Brodie to this Court on November 28,

2022, while discovery was still ongoing. Dkt. Entry dated Nov. 28, 2022. Discovery

was completed on June 13, 2023. Dkt. Order dated June 13, 2023.

Following several motions for extension of time, Defendants’ motion for

summary judgment was fully submitted on October 31, 2024. Def. Mot. for Summ.

J., ECF No. 98; Def. Mem. in Supp. (“Def. Mem.”), ECF No. 99; Def. Decl. in Supp.,

ECF No. 100; Pl. Mem. in Opp’n (“Pl. Mem.”), ECF No. 102; Pl. Decl. in Opp’n, ECF

No. 104; Def. Reply in Supp. (“Def. Reply”), ECF No. 106.

The Court subsequently ordered supplemental briefing from Kellner on certain

issues, and directed the parties to file sealed, unredacted copies of certain exhibits

and other documents for the Court’s review. Dkt. Order dated Aug. 6, 2025

(unredacted exhibits); Dkt. Order dated Aug. 27, 2025 (supplemental briefing).

Oral argument was held before the Court on October 9, 2025. Min. Entry dated

Oct. 10, 2025. At oral argument, the Court requested that Kellner file under seal

certain additional documents referenced at argument, which Kellner did on October

14, 2025. Pl. Letter re PPI, ECF No. 120.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “A dispute about a ‘genuine issue’ exists for

summary judgment purposes where the evidence is such that a reasonable jury could

decide in the non-movant's favor.” Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d

Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). A fact is

material “when its resolution ‘might affect the outcome of the suit under the

governing law.’” SCW W. LLC v. Westport Ins. Corp., 856 F. Supp. 2d 514, 521

(E.D.N.Y. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In considering a summary judgment motion, the Court “is required to view the record

in the light most favorable to the party against which summary judgment is

contemplated and to resolve all ambiguities and draw all factual inferences in favor

of that party.” NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178 (2d

Cir. 2008).

“The moving party has the initial burden of demonstrating the absence of a

disputed issue of material fact.” Thorpe v. City of New York, No. 19-CV-5995 (CM)

(RWL), 2021 WL 3811238, at *4 (S.D.N.Y. Aug. 25, 2021). “Once such a showing has

been made, the non-moving party must present ‘specific facts showing that there is a

genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). “The party opposing

summary judgment ‘may not rely on conclusory allegations or unsubstantiated

speculation.’” Id. (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).

“Finally, the nonmoving party ‘must do more than simply show that there is some

metaphysical doubt as to the material facts.’” Id. (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “To withstand a summary

judgment motion, sufficient evidence must exist upon which a reasonable jury could

return a verdict for the nonmovant.” Id.

DISCUSSION

I. Prosecutorial Immunity

As a preliminary matter, the Court must consider what alleged conduct by

then-District Attorney Hynes could establish his liability, given the protections

generally afforded to prosecutors under the doctrine of absolute prosecutorial

immunity. “The doctrine of absolute immunity applies broadly to shield a prosecutor

from liability for money damages (but not injunctive relief) in a § 1983 lawsuit, even

when the result may be that a wronged plaintiff is left without an immediate remedy.”

Anilao v. Spota, 27 F.4th 855, 863 (2d Cir. 2022). It provides immunity from suit for

“virtually all acts, regardless of motivation, associated with [the prosecutor’s]

function as an advocate.” Id. at 864 (quoting Hill v. City of New York, 45 F.3d 653,

661 (2d Cir. 1995)). The Second Circuit has recognized that absolute immunity

protects even “reprehensible” prosecutorial misconduct committed in the course of

performing the advocacy function. See id. at 867 (collecting cases); see also Kellner,

2021 WL 4251343, at *6 (“Such immunity attaches regardless of any allegations that

the prosecutor’s actions were undertaken with an improper state of mind or improper

motive.” (citation modified) (quoting Shmueli v. City of New York, 424 F.3d 231, 237

(2d Cir. 2005))).

But prosecutorial immunity is not without its limits. Absolute prosecutorial

immunity extends only to “‘acts undertaken in preparing for the initiation of judicial

proceedings or for trial, and which occur in the course of his role as an advocate for

the State.’” Malik v. City of New York, 841 F. App’x 281, 284 (2d Cir. 2021) (citation

modified) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). By contrast,

“a prosecutor’s administrative duties and those investigatory functions that do not

relate to an advocate’s preparation for the initiation of a prosecution or for judicial

proceedings are not entitled to absolute immunity.” Id. (citation modified); see also

Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (“[P]rosecutorial actions that are

‘intimately associated with the judicial phase of the criminal process’ . . . are

absolutely immune from liability in § 1983 lawsuits . . . .” (quoting Imbler v.

Pachtman, 424 U.S. 409, 430 (1976))).

“[T]he official seeking absolute immunity bears the burden of showing that

such immunity is justified for the function in question.” Simon v. City of New York,

727 F.3d 167, 172 (2d Cir. 2013) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)).

In assessing whether a defendant is covered by absolute immunity for acts taken

while serving as a prosecutor, the court “take[s] a ‘functional approach,’ examining

‘the nature of the function performed, not the identity of the actor who performed it.’”

Id. at 171 (quoting Buckley, 509 U.S. at 269); see also Flagler v. Trainor, 663 F.3d

543, 547 (2d Cir. 2011) (“[I]mmunity is not a function of the prosecutor’s title. Rather,

it attaches to prosecutorial functions that are intimately associated with initiating or

presenting the State’s case.” (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997))). As

a general matter, immunity will lie where the conduct at issue involves a prosecutor’s

decisions concerning “whether to present a case to the grand jury, whether to file an

information, whether and when to prosecute, whether to dismiss an indictment

against particular defendants, which witnesses to call, and what other evidence to

present.” Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (quoting Imbler, 424

U.S. at 431 n.33); see also Simon, 727 F.3d at 171 (noting that the immunity extends

to prosecutors’ decisions to bring charges and present a case to a grand jury, “along

with the tasks generally considered adjunct to those functions, such as witness

preparation, witness selection, and issuing subpoenas”).

Absolute immunity does not extend, however, to “administrative duties and

those investigatory functions that do not relate to an advocate’s preparation for the

initiation of a prosecution or for judicial proceedings.” Warney v. Monroe Cnty., 587

F.3d 113, 121 (2d Cir. 2009) (quoting Buckley, 509 U.S. at 273). “Although all

investigative activity could be considered in some sense to be ‘preparing for the

initiation of judicial proceedings,’ the Supreme Court has sought to draw a line

between those preparatory steps that a prosecutor takes to be an effective advocate

of a case already assembled and those investigative steps taken to gather evidence.”

Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley, 509 U.S. at 273).

“The Supreme Court has identified evaluating evidence and interviewing witnesses

as falling on the absolute immunity side of the line, leaving ‘searching for the clues

and corroboration’ that might lead to a recommendation for an arrest on the qualified

immunity side.” Giraldo, 694 F.3d at 166 (citation modified) (quoting Smith, 147 F.3d

a 94). For example, “investigative acts that are entitled to only qualified immunity

are those undertaken in the phase of law enforcement that involves the gathering

and piecing together of evidence for indications of criminal activities and

determination of the perpetrators.” Id. (citing Smith, 147 F.3d at 94); see also Simon,

727 F.3d at 172 (“Investigation, arrest, and detention have historically and by

precedent been regarded as the work of police, not prosecutors, and ‘they do not

become prosecutorial functions merely because a prosecutor has chosen to

participate.’” (quoting Day v. Morgenthau, 909 F.2d 75, 77–78 (2d Cir. 1990))).

Moreover, the Supreme Court has expressly excluded certain types of conduct

from the shield of absolute prosecutorial immunity. These include “fabricating

evidence during the preliminary investigation of a crime,” Buckley, 509 U.S. at 261,

and “[c]omments to the media,” since they “have no functional tie to the judicial

process” and do “not involve the initiation of a prosecution, the presentation of the

state’s case in court, or actions preparatory for these functions,” id. at 277–78.

On Defendants’ earlier motion to dismiss, Judge Brodie considered the factual

allegations in Kellner’s Amended Complaint and concluded that “Plaintiff's

allegations concerning Hynes’ involvement in his prosecution relate to Hynes’ (1)

collection and fabrication of evidence against Plaintiff, and (2) media statements

about Plaintiff, none of which are entitled to absolute immunity.” Kellner, 2021 WL

4251343, at *8. Defendants do not contest that “those allegations, if supported by

evidence, consisted of actions that would not be entitled to absolute immunity.” Def.

Mem. at 23 (citing Kellner, 2021 WL 4251343, at *8). Instead, Defendants contend

that Kellner’s case, following discovery, suffers from evidentiary failings. They argue

that Kellner “[lacks] any argument, let alone admissible evidence, to establish that

Hynes was involved in [malicious preindictment] ‘conduct,’ assuming it even

occurred, or that he played any role whatsoever in any investigatory phase.” Def.

Reply at 9. Defendants further argue that the record and Kellner’s opposition papers

are “devoid of any admissible evidence [or] argument for what specifically Hynes did.”

Id.

For his part, Kellner asserts that his claims “are based on conduct that

occurred during the investigatory (rather than judicial) phase of the criminal

process,” during which “Hynes was performing investigative functions normally

performed by the police.” Pl. Mem. at 35. Specifically, Kellner seeks to hold Hynes

liable for his alleged decisions (1) to “authorize[] the initial investigation into Kellner

in May 2010” and (2) to “[resume] that investigation in August 2010, based on M.T.’s

fabricated affidavit.” Pl. Sur-Reply in Opp’n (“Pl. Sur-Reply”) at 19, ECF No. 119

(Sep. 19, 2025). Kellner contends that “[t]he investigative phase continued through

March 2011, when the decision was made to seek an indictment,” and acknowledges

that “Hynes is entitled to absolute immunity for that decision [to indict].” Id.

As further explained below, the Court concludes that the alleged conduct that

forms the basis for Kellner’s Section 1983 conspiracy and malicious prosecution

claims is outside the advocacy function of a prosecutor, and is therefore not subject to

prosecutorial immunity. The Court outlines that evidence below, as it considers

whether the record raises genuine issues of material fact precluding summary

judgment on those claims.

II. Section 1983 Conspiracy

Kellner alleges that “Hynes and his co-conspirators, by manufacturing

fabricated evidence from Meyer Lebovits, Moshe Friedman, and [M.T.], deliberately

brought about [Kellner’s] prosecution.” Am. Compl. ¶ 57. Following discovery,

Kellner’s claim that Hynes conspired with members of the Lebovits family, Lebovits’s

lawyers, and members of his own staff to fabricate evidence against Kellner remains

the cornerstone of his malicious prosecution claim — factual allegations that overlap

considerably with those that underlie his Section 1983 conspiracy claim.

The Court first turns to whether the summary judgment record raises a

genuine issue as to whether DA Hynes was personally involved in an alleged

conspiracy to prosecute Kellner based on evidence that Hynes knew to be false,

fabricated, or otherwise wholly unreliable. “To prove a § 1983 conspiracy, a plaintiff

must show: (1) an agreement between two or more state actors or between a state

actor and a private entity; (2) to act in concert to inflict an unconstitutional injury;

and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v.

Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Moreover, “a plaintiff alleging a § 1983

conspiracy claim must prove an actual violation of [his] constitutional rights.” Knopf

v. Esposito, 803 F. App’x 448, 453 (2d Cir. 2020) (quoting Singer v. Fulton Cnty.

Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)).

The Second Circuit has underscored that, “[w]hile conclusory allegations of a

§ 1983 conspiracy are insufficient[,] . . . such conspiracies are by their very nature

secretive operations, and may have to be proven by circumstantial, rather than direct,

evidence.” Pangburn, 200 F.3d at 72 (citation modified) (citation omitted). “But

‘while they need not produce direct evidence of a meeting of the minds, the plaintiff

must come forward with specific circumstantial evidence that each member of the

alleged conspiracy shared the same conspiratorial objective.’” Gordon v. Emmanuel,

No. 15-CV-2439 (CBA) (SJB), 2018 WL 4688935, at *9 (E.D.N.Y. Sep. 28, 2018)

(quoting Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996) and

citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997)). “The

evidence must ‘reasonably lead to the inference that [the defendants] positively or

tacitly came to mutual understanding to try to accomplish a common and unlawful

plan.’” Id. (quoting Hinkle, 81 F.3d at 421).

a. Kellner’s Allegations and the Positions of the Parties

In his Amended Complaint, Kellner alleges that, “[i]n April 2010, shortly after

the sentencing of Baruch Lebovits, Hynes entered into an agreement with members

of the Lebovits family, Moshe Friedman, ADA Michael Vecchione, and others, to work

together to undermine the conviction by means of manufacturing ‘evidence’ against

[Kellner] (of soliciting false testimony and attempted extortion) and thereby inducing

his prosecution.” Am. Compl. ¶ 55. Kellner further alleges that “[t]he conspirators

pursued an ‘investigation,’ directed by Hynes and Vecchione” and that Hynes “played

a direct role in the subsequent efforts to turn [Y.R.] against [Kellner], and recant the

testimony of sexual abuse upon which Lebovits was convicted, even as [Hynes’s] office

was outwardly defending the conviction on appeal.” Id. Kellner further alleges that

“Hynes directly participated in the conspiracy from the outset, and continued his

participation throughout, in person and via his lieutenant, Vecchione,” and that

“Hynes and Vecchione met on numerous occasions with their co-conspirators in the

Brooklyn District Attorney’s office, after the initial meetings on April 14 and April

27, 2010, to plot the course of the conspiracy. Id. ¶ 56.

Defendants assert that “Plaintiff’s conspiracy theory fails because he has not

developed evidentiary proof that Hynes acted with others to undermine the Lebovits’s

conviction by prosecuting plaintiff for soliciting false testimony and attempted

extortion without probable cause.” Def. Mem. at 26. They argue that “Plaintiff can

offer no evidence to support that Hynes ‘directed’ an ‘investigation’ or played a ‘direct

role’ in any efforts to do so, such as by ‘manufacturing’ evidence against plaintiff or

seeking to undermine the conviction of Lebovits.” Id. They further argue that Kellner

has failed to adduce evidence “that Hynes coordinated with the Lebovits family to

influence victims to recant or witnesses to change their stories,” “counseled the family

of Lebovits . . . on what evidence to obtain,” or “coordinated a pay-off by the family to

Y.R.” Id. Ultimately, Defendants assert that Kellner “fails to point to any admissible

evidence that would establish a conspiracy under § 1983.” Def. Reply at 9.

For his part, Kellner contends that “[t]here is clear evidence of Hynes’s

involvement in the violation of Plaintiff’s constitutional rights.” Pl. Mem. at 29.

Kellner points to the record evidence of meetings between Lebovits’s attorneys and

Vecchione and Hynes in April and May 2010, id., as well as the March 2011 meeting

between ADA Bruffee and Hynes following Baruch Lebovits’s application for bail

pending appeal, id. at 17, 31–32. Kellner also argues Hynes “authorized the initial

investigation into Plaintiff in May 2010, and the resumption of that investigation in

August 2010.” Id. at 32. Kellner further asserts that “Hynes knew that M.T. was a

genuine victim of Lebovits,” and thus, “he would also have known that the Lebovits

family manufactured a false affidavit” from M.T. purporting to recant those

allegations. Pl. Sur-Reply at 15.

b. Genuine Issues of Material Fact Preclude Summary Judgment

on Plaintiff’s Section 1983 Conspiracy Claim

Viewed in the light most favorable to Kellner, the record before this Court

contains sufficient evidence for a reasonable jury to conclude that (1) DA Hynes

conspired with others to maliciously prosecute Kellner using evidence that Hynes

knew was false; (2) the object of this conspiracy was to inflict an unconstitutional

injury upon Plaintiff; and (3) at least one overt act was undertaken in furtherance of

the conspiracy. Kellner has also adduced sufficient evidence from which a reasonable

jury could find that the conspiracy caused a violation of his constitutional rights.

Accordingly, the Court denies Defendants’ motion for summary judgment as to

Kellner’s Section 1983 conspiracy claim.

i. Circumstantial Evidence of the Existence of a

Conspiratorial Agreement

Kellner alleges that the conspiracy began during several meetings that took

place approximately two months after Baruch Lebovits was convicted of sexual abuse.

Attorney Aidala met with ADA Vecchione on April 27, 2010. Shortly thereafter,

Aidala was granted two back-to-back meetings with DA Hynes himself, on May 4 and

5, 2010.17

17 Defendants argue that the record evidence, specifically the KCDA

Appointments Log, does not establish that Aidala and Hynes actually met on these

dates. Def. Reply 56.1 Statement ¶ 171. However, Aidala has not disputed that these

Standing alone, the existence of these meetings would be insufficient

circumstantial evidence to support an inference of a conspiratorial agreement. See

Anilao, 27 F.4th at 871 (dismissing as “little more than speculation” plaintiffs’

contention that, “[b]ecause [an ADA] met with all the witnesses who testified in the

grand jury proceedings,” the ADA must have conspired with a private party for him

to lie to the grand jury); id. (“Speculation aside, the plaintiffs fail to point to any

admissible evidence that could lead a reasonable juror to conclude that [the ADA or

the DA] conspired with [a private party] to fabricate evidence.”). But Kellner has

adduced additional circumstantial evidence that raises his assertion beyond mere

speculation.

For example, five days after Aidala’s second meeting with Hynes, the KCDA

opened a criminal investigation into Kellner. The record contains evidence from

which a reasonable jury could infer that Hynes personally authorized this

investigation. Aidala Dep. at 72:6–8 (deposition testimony of Aidala that “I just don’t

remember being told [that Hynes approved the investigation],” but agreeing that

“Mike Vecchione didn’t have th[e] authority” to do so on his own). A reasonable jury

could also infer, based on close temporal proximity between the two events and the

broader context in which the investigation began, that Hynes’s decision to launch the

investigation arose from an agreement reached between Hynes and Aidala at their

meeting(s).

meetings took place; at his deposition, he claimed only that he presently has “zero

recollection” of the meetings with Hynes. Aidala Dep. at 58:9–59:13. On this record,

a jury could reasonably infer that Aidala’s meetings with Hynes did, in fact, take

place on the dates recorded in the Appointments Log.

The conduct of the Lebovits family and their legal team after the May 2010

meetings could also support the inference that the meeting produced some kind of

agreement between Hynes and Aidala. Chaim Lebovits brought his allegations

concerning the May 2009 recorded conversation to KCDA on April 27, 2010, shortly

after Baruch’s conviction — yet the KCDA only interviewed Meyer Lebovits about

these allegations on May 20, 2010, after the Hynes/Aidala meetings on May 4 and 5.

Similarly, Aidala only hired Mladinich to investigate the allegations that Kellner

sought to use false accusations against Baruch to extort the Lebovits family on June

2, 2010 (i.e., after the meetings with Hynes), despite the fact that Lebovits’s defense

counsel had raised these allegations against Kellner more than a year earlier, during

a May 5, 2009 court conference in Baruch’s criminal proceeding.

The interactions between the KCDA and Mladinich could similarly support an

inference of a conspiratorial agreement. After receiving the Weisner, Friedman, and

M.T. affidavits notarized by Mladinich, and after receiving an email from Aidala

indicating that Mladinich (the private investigator retained by then-convicted sex

offender Baruch Lebovits) was surveilling Y.R. (the victim of Baruch’s sexual abuse

whose testimony had resulted in Baruch’s conviction earlier that year), ADA

Vecchione instructed ADA Batsidis and DI Green-Jones on November 29, 2010 to

work with Mladinich to “come up” with Y.R. so that Y.R. could be interviewed in

relation to the Kellner investigation. At oral argument, Kellner’s counsel

characterized this conduct as the KCDA improperly “outsourcing” its investigation

into Kellner to the Lebovits defense team. A reasonable jury could agree.

Numerous aspects of the KCDA investigation into Y.R. could also lead a

reasonable jury to infer the existence of a conspiracy to implicate Kellner and clear

Baruch’s name. Y.R. stated unequivocally at his December 1, 2010 interview that he

was a genuine victim of Baruch and that no one paid him to testify. Earlier that year,

a jury had credited Y.R.’s testimony and convicted Baruch of sexually abusing Y.R.

at his criminal trial. Yet, according to Meyer Lebovits during his interview with ADA

O’Donnell, “[the] DA told [Sholem Weisner] to continue to have interaction with Y.R.

to see what he could find out” — at which point Weisner and the Lebovits family

arranged for Y.R. to travel to Florida, where he was pressured on tape to implicate

Kellner (but did not do so). A jury could conclude from Meyer’s statements that DA

Hynes was personally involved in the efforts to secure a recantation from Y.R.

Moreover, after the “Florida tapes” were presented to the KCDA by the Lebovits

defense team and characterized as a recantation, Hynes personally met with Bureau

Chief Jaus and ADAs Vecchione, Bruffee, and Gregory to discuss this development.

Despite Y.R.’s repeated refusals to recant, including while under extreme pressure in

Florida, the meeting with Hynes ended with the decision that Vecchione and the

Rackets division would continue investigating Y.R. ADA Batsidis subsequently

interviewed Y.R. once more, where he again refused to recant. Perhaps most notably,

after that interview, Vecchione told Batsidis to “indict and see if [Y.R.] comes around.”

This was the final investigative interview conducted before Kellner was indicted. A

jury could certainly conclude that Vecchione’s instruction was a reference to indicting

Kellner.

From these facts, a reasonable jury could also infer that an improper goal on

the part of Hynes and one of his top deputies, Vecchione, motivated the investigation

into Kellner. Vecchione testified at his deposition that he did not recall ever believing

that Baruch Lebovits was wrongfully convicted — that is, that Vecchione never

believed that Lebovits did not sexually abuse Y.R. This fact, together with the

persistent interviews of Y.R. and Vecchione’s comment that Batsidis should indict

Kellner to see if Y.R. “comes around,” could lead a jury to conclude that the true goal

of the investigation into and eventual prosecution of Kellner was to apply pressure to

Y.R. to recant and clear Baruch’s name, for reasons unrelated to Lebovits’s actual

innocence — i.e., to shore up political support for Hynes from the influential Lebovits

family and its allies in the Satmar Hasidic community.

Moreover, a jury could conclude from the record that (1) Hynes was made

personally aware of the suspicious circumstances of M.T.’s recantation at the time

the charges against Baruch Lebovits relating to M.T. were dropped and (2) Hynes

was personally aware of the contents of Baruch’s PPI, which included not only

Baruch’s willingness to plead guilty to the “top count or counts, or even the entire

indictment” as to M.T. and Y.R. but also general admissions of compulsive, unlawful

sexual conduct with minors. His decisions to accept M.T.’s allegations and authorize

an investigation into Kellner and to direct or permit Vecchione’s Rackets division to

apply investigative pressure to Y.R. suggest a willingness to disregard Baruch’s

admissions that he abused one or both criminal complainants. In light of Hynes’s

knowledge, a reasonable jury could conclude that Hynes’s goal in investigating

Kellner was to inflict upon him an unconstitutional injury.

A jury could also conclude from the record that Hynes was personally involved

in this investigation from its inception. The record supports that attorney Aidala met

with Hynes immediately prior to when the investigation was launched and that

Hynes alone had the power to authorize that investigation. Meyer’s comment that

the “DA” encouraged Sholem Weisner to continue pressuring Y.R. could be

interpreted by a reasonable factfinder as Meyer indicating Hynes’s personal

involvement in the creation and procurement of the “Florida tapes.” Further, it is

undisputed that Hynes personally met with members of his office to discuss Y.R.,

after KCDA received the “Florida tapes” and shortly before Vecchione’s statement

that Batsidis should “indict and see if [Y.R.] comes around.” The record also reflects

Hynes’s personal involvement in the case through Vecchione’s April 12, 2011 email

to him (stating “Boss, Kellner is in custody”), Hynes’s response (“Great”), and Hynes’s

statements at the press conference on April 13, 2011, the day of Kellner’s

arraignment.18

Finally, a jury could conclude from the record that multiple overt acts were

undertaken in furtherance of the alleged conspiracy, both by Hynes and his purported

co-conspirators. The initial meetings where Hynes allegedly counseled the Lebovits

18 While post-indictment conduct, like the decision to indict, is generally

shielded by absolute prosecutorial immunity, statements to the media are not.

Buckley, 509 U.S. at 277–78. These post-indictment statements could lead a

reasonable jury to conclude that Hynes was personally invested and involved in

Kellner’s prosecution and, as discussed infra, that Hynes had initiated that

prosecution with actual malice.

legal team on what evidence to obtain could be one. Hynes’s authorizing the

investigation into Kellner, and the concomitant commitment of KCDA resources to

gathering evidence, could also constitute an overt act. The production of the M.T.,

Friedman, and Weisner affidavits by the Lebovits legal team and their subsequent

delivery to KCDA could be another. So could the effort in Florida to pressure Y.R. to

recant and implicate Kellner, allegedly outsourced to the Lebovits defense team at

Hynes’s personal direction. Finally, the March 2011 decision to continue the KCDA’s

investigatory interviews with Y.R. and see if Kellner’s indictment might induce Y.R.

to “come[] around” and recant could be yet another.

The facts of this case contrast strongly with those of Cooper v. City of New York,

where the court granted summary judgment and dismissed plaintiff’s Section 1983

conspiracy to fabricate evidence claim. No. 17-CV-1517 (RPK) (RLM), 2022 WL

4468168 (E.D.N.Y. Sep. 26, 2022), aff’d, No. 22-2792-CV, 2024 WL 1107923 (2d Cir.

Mar. 14, 2024) (summary order). The district court disagreed with plaintiff’s

contention “that a conspiracy can be inferred from several alleged deficiencies

regarding the City Defendants’ investigation” because “those allegations are either

unsupported by the record or fail to support an inference of conspiracy.” 2022 WL

4468168, at *6. The investigative conduct at issue included (1) an officer’s “decision

not to include [plaintiff’s] allegation [against another office] in a particular form”; (2)

“officers credit[ing] one account over another, without more”; (3) “officers’ failure to

remember the name of the canvassing officer”; (4) a “reporting discrepancy [between

two officers’ reports] which, if anything, suggests the absence of coordination”; and

(5) plaintiff’s unsubstantiated allegation that “officers attempted to downplay his

injuries.” Id. at *7. The Cooper Court concluded that this amounted to “little more

than speculation” of a conspiracy to fabricate evidence. Id. The Second Circuit agreed

that “the alleged deficiencies and inconsistencies that could arguably give rise to a

constitutional violation related to the police investigation are not supported in the

record and fail to reasonably suggest a conspiracy to violate [plaintiff’s] constitutional

rights.” 2024 WL 1107923, at *2.

In the instant case, the alleged discrepancies, inconsistencies, and

irregularities Kellner cites to support his conspiracy claim are sufficient to survive

summary judgment. Drawing reasonable inferences from a broad array of

circumstantial evidence, a jury could find that DA Hynes conspired with Vecchione

and the Lebovits family and legal team to manufacture extortion charges against

Kellner in order to compel Y.R. to recant and, ultimately, clear Baruch Lebovits’s

name and criminal record.

Moreover, this is not a case where Kellner seeks to rely solely on circumstantial

evidence. As discussed below, the record also contains direct evidence which, if

admitted at trial, a reasonable jury could rely upon to find for Kellner on his

conspiracy claim.

ii. Potential Direct Evidence of the Existence of a

Conspiratorial Agreement

Kellner cites a 2014 article in The New Yorker magazine by Rachel Aviv titled

“The Outcast” as direct support for his claim that “Hynes specified for the Lebovits

family and their representatives exactly which kinds of evidence his office would need

to arrest Plaintiff.” Pl. 56.1 Statement ¶ 174. The relevant section of the article

reads:

[B]ut the Lebovits family was still confident that they could prove that

Kellner was an extortionist. Chaim [Lebovits] told me that Hynes

specified for his lawyers exactly which kinds of evidence they would need

to arrest Kellner. ‘They said that, if you can provide A, B, C, D, E, and

F, then we will move in with the indictment,’ Chaim said. (Hynes,

through his lawyer, declined to comment for this story.)”

New Yorker Article at 23.

Before considering whether Chaim Lebovits’s statements show the existence

of a conspiracy to maliciously prosecute Kellner, the Court must first resolve the

dispute as to whether the statements are admissible at summary judgment.

1. Admissibility of the New Yorker Article

Defendants contend that this evidence is inadmissible. Def. Reply 56.1

Statement ¶ 174. They point to caselaw from this circuit holding that “newspaper

articles containing quoted remarks are hearsay within hearsay — they contain out of

court statements by the quoted individual, within a document that is itself an out of

court statement,” and are therefore “usually inadmissible” for the truth of the matter

asserted. Mandal v. City of New York, No. 02-CV-1234 (WHP), 2006 WL 3405005, at

*1 (S.D.N.Y. Nov. 26, 2006); see also In re Columbia Sec. Litig., 155 F.R.D. 466, 474

(S.D.N.Y. 1994) (“Often, when offered to prove that certain statements were made,

newspaper and magazine articles are held inadmissible as hearsay.”); Holmes v.

Gaynor, 313 F. Supp. 2d 345, 358 n.1 (S.D.N.Y. 2004) (“The newspaper article,

however, is hearsay and inadmissible for proving the truth of the matters asserted

therein.”).

Defendants are correct that newspaper and magazine articles, such as the one

Kellner cites, present hearsay issues. And this particular article presents multiple

levels of out-of-court statements: (1) the article itself, restating (2) Chaim’s statement,

restating (3) the lawyers’ statement that either Hynes himself or someone else in the

KCDA specified to them what evidence would be needed to secure an indictment.

a. Admissibility of Chaim’s Statement

However, “[h]earsay within hearsay is not excluded by the rule against hearsay

if each part of the combined statements conforms with an exception to the rule.” Fed.

R. Evid. 805. As to print media specifically, “newspaper articles need not be excluded

from evidence when they contain admissions by a party opponent under Rule 801,

provided the article is a recorded recollection under Rule 803(5), or falls within the

‘residual exception’ of Rule 807.” Mandal, 2006 WL 3405005, at *2.

Here, neither the party opponent exception nor the recorded recollection

exception applies to Chaim’s statement to the New Yorker. Chaim is not a party to

this suit, and so his statement cannot be offered against the estate of DA Hynes. See

Fed. R. Evid. 801(d)(2)(A). Nor was Chaim’s statement to the New Yorker made

“during and in furtherance of” the purported conspiracy. See Fed. R. Evid.

801(d)(2)(E). The recorded recollection exception cannot apply because Chaim has

not testified to a lack of recollection. See Fed. R. Evid. 803(5); Jacobson v. Deutsche

Bank, A.G., 206 F. Supp. 2d 590, 597 (S.D.N.Y. 2002) (“A necessary predicate of [Rule

803(5)], however, is that there be a ‘witness’ with an ‘insufficient recollection.’”), aff’d,

59 F. App’x 430 (2d Cir. 2003).

However, the New Yorker article may be admissible for Chaim’s statement if it

qualifies for the residual exception of Rule 807. Under this rule, once the proponent

provides the required written notice, see Fed. R. Evid. 807(b), a statement is excluded

from the rule against hearsay under the following conditions:

(1) The statement is supported by sufficient guarantees of

trustworthiness (in light of the totality of circumstances under which it

was made and evidence, if any, corroborating the statement); and

(2) it is more probative on the point for which it is offered than any other

evidence that the proponent can obtain through reasonable efforts.

Fed. R. Evid 807(a). “[T]he trial court has broad discretion in assessing the probity

and trustworthiness of evidence.” In re Columbia Sec. Litig., 155 F.R.D. at 475.

Here, the Court finds that the requirements of Rule 807 are satisfied and that

Chaim’s statement is admissible for purposes of this motion. First, as to the

“guarantees of trustworthiness” accompanying the statement, a long line of courts

has noted The New Yorker’s “sterling reputation for accuracy and the existence of its

fabled fact-checking department.” Biro v. Conde Nast, 963 F. Supp. 2d 255, 282

(S.D.N.Y. 2013) (quoting Masson v. New Yorker Mag., Inc., 960 F.2d 896, 902 (9th

Cir. 1992)), aff’d, 807 F.3d 541 (2d Cir. 2015), and aff’d, 622 F. App’x 67 (2d Cir. 2015);

see also Sidis v. F-R Pub. Corp., 113 F.2d 806, 810 (2d Cir. 1940) (“The New Yorker

articles limit themselves to the unvarnished, unfictionalized truth.”). Courts in this

circuit routinely reference New Yorker articles for direct quotations and factual

background. See, e.g., Ligon v. City of New York, 736 F.3d 118, 127 (2d Cir. 2013)

(quoting a statement by a judge’s former law clerk in a New Yorker article in a

decision reassigning the case from that judge on remand), vacated in part on other

grounds, 743 F.3d 362 (2d Cir. 2014); Dakus v. Koninklijke Luchtvaart Maatschappij,

N.V., No. 22-CV-7962 (RA), 2024 WL 4265646, at *1 (S.D.N.Y. Sep. 23, 2024)

(reproducing a New Yorker quote from “a highly prolific class action attorney”);

Arevalo-Chavez, 2025 WL 1952438, at *2, *4, *10 (citing the New Yorker for quotes

and factual background); Fairstein v. Netflix, Inc., No. 20-CV-8042 (PKC), 2023 WL

6125631, at *18 (S.D.N.Y. Sep. 19, 2023) (quoting a declaration, which in turn cited

a New Yorker article, for the statement of a party opponent); Shah v. Stanley, No. 03-

CV-8761 (RJH), 2004 WL 2346716, at *4 (S.D.N.Y. Oct. 19, 2004) (citing a New Yorker

article to explain a potential conflict of interest on the part of a defendant), aff’d sub

nom., Shah v. Meeker, 435 F.3d 244 (2d Cir. 2006), abrogated on other grounds by

Merck & Co. v. Reynolds, 559 U.S. 633 (2010).19

The Court also notes that Rachel Aviv is a well-respected journalist whose

reporting has been favorably cited in this district. See, e.g., United States v. R.V., 157

F. Supp. 3d 207, 225 (E.D.N.Y. 2016) (citing Aviv’s reporting in The New Yorker on

child pornography and the internet). The quoted section indicates that DA Hynes

was provided an opportunity to refute or otherwise comment on Chaim’s statement,

which he declined to do, indicating Aviv abided by best journalistic practice and

bolstering the Court’s evaluation of the article’s trustworthiness.

19 The Court emphasizes that its decision should not be construed as holding

that articles in The New Yorker are necessarily trustworthy in all cases and may

always be admitted under the residual exception of Rule 807. Rather, the magazine’s

reputation is one of several factors leading the Court to conclude, for purposes of this

summary judgment motion only, that this particular statement attributed to Chaim

carries sufficient guarantees of trustworthiness to be admitted.

Second, as to corroborating evidence, the record before the Court, viewed in the

light most favorable to Kellner, tends to establish that the Lebovits legal team met

with Hynes shortly before they began producing to KCDA the affidavits and

witnesses that would eventually lead to Kellner’s indictment. In other words, a

reasonable jury could find that the parties proceeded to do precisely what Chaim

claimed they did in the New Yorker article. For purposes of this summary judgment

motion only, this evidence is sufficient, in light of the totality of the circumstances, to

assure the Court of the trustworthiness of Chaim’s statement as quoted in the article.

See In re Columbia Sec. Litig., 155 F.R.D. at 475 (“Newspaper and magazine articles,

however, may nevertheless be introduced into evidence if they are bolstered by

supporting evidence that confers some circumstantial guarantees of trustworthiness

upon them.”).

Importantly, as to whether Chaim’s statement is “more probative . . . than any

other evidence that [Plaintiff] can obtain through reasonable efforts,” Fed. R. Evid

807(a)(2), the New Yorker article is apparently the only available evidence as to this

statement. Chaim lives in Israel and was not available to be deposed. See Pl. Letter

re Deps., ECF No. 109 (Aug. 8. 2025). The parties confirmed his unavailability at

oral argument. In light of this, and the preliminary guarantees of trustworthiness

outlined above, the Court finds that the New Yorker article and Chaim’s statement

therein are likely admissible for trial, and thus may be considered at summary

judgment. See Mandal, 2006 WL 3405005, at *3 (admitting newspaper articles under

the residual exception, “assuming an adequate foundation is established at trial,”

where there was “a compelling need for the evidence contained” within them, “since

all senior officials deposed by [p]laintiffs claimed to have no recollection”); cf. Larez v.

City of Los Angeles, 946 F.2d 630, 643 & n.6 (9th Cir. 1991) (excluding sufficiently

trustworthy newspaper articles as not “best evidence” where the defendant who was

quoted in the newspapers testified).20

b. Admissibility of the Statement of Chaim’s

Lawyers

Admitting Chaim Lebovits’s statement as quoted in the New Yorker article

only dispenses with the first two levels of out-of-court statements. For the statement

to be admissible for the truth of the matter asserted by Kellner — that “Hynes

specified for the Lebovits family and their representatives exactly which kinds of

evidence his office would need to arrest Plaintiff,” Pl. 56.1 Statement ¶ 174 — Chaim’s

lawyer’s out-of-court statement that “[t]hey said that, if you can provide A, B, C, D,

E, and F, then we will move in with the indictment,” New Yorker Article at 23, must

also be admissible.

The Court concludes that this statement, as recounted by Chaim, is the

statement of an alleged coconspirator and therefore not hearsay under Federal Rule

of Evidence 801(d)(2)(E). This Rule provides that a statement is not hearsay when it

“is offered against an opposing party and . . . [w]as made by the party’s coconspirator

20 Plaintiff has provided adequate notice to take advantage of the New Yorker

article under Rule 807 because Plaintiff’s counsel included the article as an exhibit to

his October 31, 2024 declaration in opposition to Defendants’ motion for summary

judgment. Decl. in Opp’n, Ex. 19, ECF No. 104-19. This was far in advance of any

prospective trial and gives Defendants “a fair opportunity to meet [the evidence].”

Fed. R. Evid. 807(b).

during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). The Rule

further provides that “[t]he statement must be considered but does not by itself

establish . . . the existence of the conspiracy or participation in it.” Fed. R. Evid.

801(d)(2).

Here, the purported statement of the Lebovits lawyer satisfies each of the

Rule’s requirements. Kellner alleges that the Lebovits family and their lawyers

conspired with DA Hynes and ADA Vecchione to maliciously prosecute Plaintiff using

evidence Hynes knew to be false. This statement by the Lebovits lawyer is thus a

statement by one alleged coconspirator offered against another alleged coconspirator

(i.e., Hynes) who is an opposing party to this suit.21 The statement by the Lebovits

lawyers to Chaim, another alleged coconspirator, was made following the alleged

initiation of the conspiracy at the May 4 and 5, 2010 meetings between attorney

Aidala and Hynes, meaning the statement was made during the course of the alleged

conspiracy. Moreover, Lebovits’s lawyers’ relaying of Hynes’s statement (“if you can

provide A, B, C, D, E, and F, then we will move in with the indictment”) was in

furtherance of the alleged conspiracy, in that it enlisted the Lebovits family in finding

21 While Patricia L. Hynes, as administrator of the estate of Charles J. Hynes,

is the technical party here, she was substituted for DA Hynes, following his death,

pursuant to Federal Rule of Civil Procedure 25(a)(1). Pl. Mot. to Substitute Party,

ECF 36 (Nov. 30, 2020); Dkt. Order dated Dec. 16, 2020. “Rule 25(a)(1) allows a

representative of a decedent to take [his] place so that litigation in which the decedent

is a party can continue and conclude. The substitute is thus not litigating on his or

her own behalf . . . , but rather stands in the shoes of the decedent.” Tankleff v. Cnty.

of Suffolk, No. 09-CV-1207 (JS) (AYS), 2016 WL 3162059, at *2 (E.D.N.Y. June 2,

2016) (citation modified) (citation omitted). Accordingly, this coconspirator

statement may be offered even though the alleged coconspirator, DA Hynes, has died.

and procuring false statements from the witnesses whose claims would eventually

lead to the KCDA’s indictment of Kellner.

Finally, as detailed supra, there is sufficient circumstantial evidence in the

record from which a reasonable jury could conclude that a conspiracy existed

involving Hynes, the Lebovits family, and the Lebovits defense team to (1) implicate

Kellner in an alleged extortion scheme, in order to (2) pressure Y.R. to recant his

accusations against Baruch Lebovits, in order to (3) clear Baruch’s criminal record

and his name. Because Kellner does not need to rely on this statement of the Lebovits

lawyers to Chaim alone to establish the existence of the alleged conspiracy or Hynes’s

alleged participation in it, the statement satisfies the final requirement of Rule

801(d)(2).

Accordingly, this statement is not hearsay and is likely admissible against

Hynes. See Fischl v. Armitage, 128 F.3d 50, 59 (2d Cir. 1997) (applying Rule

801(d)(2)(E) to admit a coconspirator’s statement against correctional officers at the

summary judgment stage of a Section 1983 conspiracy case); see also 30B Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6778 (2025 ed.)

(noting that “the [Rule 801(d)(2)(E)] hearsay exemption is ‘applicable in both civil and

criminal cases, whether or not a conspiracy is charged’” and collecting cases (citations

omitted)).

2. The New Yorker Article Raises a Genuine Issue of

Fact as to the Existence of the Alleged Conspiracy

The Court, in concluding its analysis of the New Yorker article offered by

Kellner, notes that this statement of the Lebovits lawyers, as recounted by Chaim,

does not necessarily establish the existence of a conspiracy to inflict an

unconstitutional injury upon Kellner. While a factfinder could conclude from this

statement that Hynes was telling the Lebovits legal team, in sum and substance, “if

you bring me the following false evidence implicating Kellner, I will indict him,” the

statement could also be construed as a far more benign explanation to Lebovits’s

lawyers, specifying the kinds of admissible evidence (as opposed to mere

uncorroborated allegations) against a suspect in an extortion case that the KCDA

would require before it “move[d] in” with a criminal indictment. The susceptibility of

this statement to differing interpretations, however, presents a genuine issue of

material fact, the resolution of which is properly reserved for a jury. See Fairstein,

2023 WL 6125631, at *18 n.4 (noting that, where “competing inferences can be drawn

from . . . [t]he quote in the New Yorker piece[,] . . . the reasonable inferences to be

drawn from the quote are best left to a jury”).

* * *

For the foregoing reasons, genuine issues of material fact preclude summary

judgment on Kellner’s Section 1983 conspiracy claim. Accordingly, Defendants’

motion is denied.

III. Malicious Prosecution Claim

The Court next turns to Kellner’s underlying Fourth Amendment claim under

Section 1983 for malicious prosecution. As noted supra, “a plaintiff alleging a § 1983

conspiracy claim must prove an actual violation of constitutional rights.” Knopf, 803

F. App’x at 453 (2d Cir. 2020) (quoting Singer, 63 F.3d at 119). Thus, even if a

reasonable jury could find that DA Hynes participated in a conspiracy to fabricate

evidence, Kellner’s entire case would fail if no genuine issues of material fact existed

as to the underlying Section 1983 malicious prosecution claim.

“In order to prevail on a § 1983 claim against a state actor for malicious

prosecution, a plaintiff must establish the elements of a malicious prosecution claim

under state law.” Alberty v. Hunter, 144 F.4th 408, 417 (2d Cir. 2025) (citation

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

2010)). “To establish a malicious prosecution claim under New York law, a plaintiff

must prove (1) the initiation or continuation of a criminal proceeding against plaintiff;

(2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for

commencing the proceeding; and (4) actual malice as a motivation for defendant’s

actions.” Manganiello, 612 F.3d at 161 (citation modified) (citation omitted). “[A]

Fourth Amendment claim under § 1983 for malicious prosecution does not require

the plaintiff to show that the criminal prosecution ended with some affirmative

indication of innocence. A plaintiff need only show that the criminal prosecution

ended without a conviction.” Thompson v. Clark, 596 U.S. 36, 49 (2022). “[A]s in all

§ 1983 cases, the plaintiff must prove that the defendant’s action was a proximate

cause of the plaintiff’s injury.” Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998).

a. Kellner’s Allegations and the Positions of the Parties

Kellner’s factual allegations against Hynes as to his malicious prosecution

claim overlap with his conspiracy allegations as detailed supra. Am. Compl. ¶ 58.

Kellner alleges that Hynes, “acting under color of state law, initiated a criminal

proceeding against [Kellner], the proceeding terminated in [Kellner’s] favor, probable

cause did not exist for commencing the proceeding, and Hynes’s actions were motived

by actual malice.” Id. ¶ 59. Kellner further alleges that “[t]he indictment against

Plaintiff was obtained through fraud, perjury, misrepresentation, falsification and

suppression of evidence, and other conduct undertaken in bad faith, by Hynes and

his co-conspirators.” Id. ¶ 60. Finally, Kellner alleges that “Hynes’s motivation in

initiating and pursuing the investigation and prosecution of Plaintiff was wrong and

improper; it was not a desire to see the ends of justice served.” Id. “As a result, Hynes

violated Plaintiff’s constitutional rights under the Fourth and Fourteenth

Amendments.” Id. ¶ 59.

Defendants argue that “[t]he evidentiary record is devoid [] of any admissible

evidence to establish that [Hynes] personally either initiated or continued a criminal

proceeding against [P]laintiff.” Def. Mem. at 20. They further contend that Kellner

“cannot demonstrate a lack of probable cause for commencing the criminal

proceedings,” in light of presumption of probable cause created by the grand jury’s

indictment. Id. at 20–22. As to the actual malice requirement, Defendants assert

that “[P]laintiff’s prosecution was not malicious because it was supported by probable

cause.” Id. at 23. Defendants do not dispute that Kellner’s prosecution ended with a

termination in his favor.

b. Genuine Issues of Material Fact Preclude Summary Judgment

on Kellner’s Section 1983 Malicious Prosecution Claim

Viewed in the light most favorable to Kellner, the record before this Court

contains sufficient circumstantial and direct evidence for a reasonable jury to

conclude (1) that DA Hynes was personally involved in the initiation and/or

continuation of a criminal proceeding against Kellner (separate and apart from the

ultimate decision to indict); (2) that there was a lack of probable cause for the charges;

and (3) that actual malice was the motivation for the proceeding. Accordingly,

because genuine issues of material fact exist as to whether Hynes violated Kellner’s

constitutional rights, the Court denies Defendants’ motion for summary judgment as

to Kellner’s Section 1983 malicious prosecution claim.

i. Genuine Issues as to the Initiation of a Criminal

Proceeding and the Personal Involvement of Hynes

The Court has already concluded that the investigative acts undertaken by

Hynes, or at Hynes’s direction, are not shielded by absolute prosecutorial immunity.

The Court has further concluded that genuine issues of material fact preclude

summary judgment on Kellner’s Section 1983 conspiracy claim. This alleged

conspiracy, if found by a jury, could serve as a basis for liability against Hynes. See

Fries v. Barnes, 618 F.2d 988, 990 (2d Cir. 1980) (“[A] government agent may not

escape responsibility by claiming that the violation of the plaintiff’s rights was

committed by the private person involved in [a Section 1983 conspiracy].”).

Upon review of the record in the light most favorable to Kellner, genuine issues

of material fact exist as to whether (1) the evidence adduced against Kellner was the

result of a conspiracy to maliciously prosecute him and (2) Hynes was personally

involved in this alleged conspiracy. A jury’s finding that Hynes personally

participated in an alleged conspiracy to procure false or wholly unreliable evidence

against Kellner in the investigative stage of his prosecution would satisfy the

“initiation” element of a malicious prosecution claim. See Harris v. Tioga Cnty., 663

F. Supp. 3d 212, 241, 241 (N.D.N.Y. 2023) (“[O]btaining false witness

statements . . . for the purpose of obtaining probable cause would be sufficient to

sustain this claim; i.e., a jury could conclude that [the District Attorney], acting in a

pre-indictment investigative capacity, ‘initiated’ the proceeding against plaintiff in

the absence of probably cause and with actual malice.”), appeal dismissed, No. 23-

503, 2024 WL 4179651 (2d Cir. Sep. 13, 2024). Accordingly, summary judgment is

inappropriate.

ii. Genuine Issues as to the Lack of Probable Cause

“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.” Kee v. City of New York, 12 F.4th 150, 166 (2d Cir. 2021) (citation

modified) (quoting Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)).

“Although probable cause to prosecute is a complete defense to a claim of malicious

prosecution, such probable cause must be shown as to each crime charged in the

underlying criminal action.” Id. (first citing Savino v. City of New York, 331 F.3d 63,

72 (2d Cir. 2003), then citing Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991), and

Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)). “[I]n general,

‘probable cause is a mixed question of law and fact.’” Frost v. New York City Police

Dep’t, 980 F.3d 231, 243 (2d Cir. 2020) (citation modified) (quoting Dufort v. City of

New York, 874 F.3d 338, 348 (2d Cir. 2017)). “[U]nder New York law, indictment by

a grand jury creates a presumption of probable cause that may only be rebutted by

evidence that the indictment was procured by ‘fraud, perjury, the suppression of

evidence or other [] conduct undertaken in bad faith.’” Savino, 331 F.3d at 72 (2d Cir.

2003) (quoting Colon v. City of New York, 455 N.E.2d 1248, 1251 (N.Y. 1983)). The

plaintiff “bears the burden of proof in rebutting the presumption of probable cause

that arises from the indictment.” Id. at 73 (citing Bernard v. United States, 25 F.3d

98, 104 (2d Cir. 1994)).

Here, the Court may not independently resolve the issue of probable cause.

Viewing the summary judgment record in the light most favorable to Kellner, there

are simply too many genuine issues and disputes of material fact. Cf. Frost, 980 F.3d

at 243 (“[W]here there is no dispute as to what facts were relied on to demonstrate

probable cause, the existence of probable cause is a question of law for the court.”

(quoting Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007))). As explained supra, a

reasonable jury could conclude that Hynes participated in a conspiracy to produce

evidence that he knew to be false or fabricated, and that the allegedly false or

fabricated evidence was used to initiate and continue Kellner’s prosecution. This

would be sufficient to overcome the presumption of probable cause created by the

grand jury indictment.

Kellner has also identified evidence, including Baruch’s PPI submission to the

criminal trial court and the full transcripts of the May 2009 conversation between

Kellner and Meyer Lebovits, that could permit a reasonable juror to conclude that

Hynes knew that the claims of certain witnesses against Kellner were false.

Defendants are correct that, as a general rule, “the KCDA ha[d no] obligation to

present this evidence to the grand jury even assuming it was exculpatory in nature.”

Def. Mem. at 21 (collecting cases). However, Kellner does not argue that either the

PPI or the 2009 transcript should have been presented as exculpatory evidence to the

grand jury. Rather, as to the PPI, Kellner argues that it is offered to show that Hynes

deliberately ignored evidence contradicting the claims in M.T.’s affidavit and

impeaching M.T.’s overall veracity. Pl. Mem. at 24–26; Pl. Sur-Reply at 15. Kellner

offers the recording of the May 2009 conversation for a similar purpose. Pl. Mem. at

15, 26–27. The inferences to be drawn from any divergence between Meyer Lebovits’s

statements to KCDA investigators as to the May 2009 conversation and the

translated transcript of the conversation itself — in light of Kellner’s allegation that

Hynes was counseling the Lebovits family about the evidence they needed to produce

against Kellner to justify an indictment — is properly left to the jury. If a jury were

to find that Hynes proceeded with the investigation despite knowing that the primary

evidence against Kellner was false, that would defeat the presumption of probable

cause created by the eventual grand jury indictment. See Kanciper v. Lato, 989 F.

Supp. 2d 216, 225, 233 (E.D.N.Y. 2013) (holding that a plaintiff “set forth sufficient

allegations to overcome this presumption” where she alleged, inter alia, that a

District Attorney “surreptitiously decided to investigate whether [she] committed any

crimes,” despite “knowing that the DA’s Office had already determined that probable

cause did not exist” (citation modified)).

In essence, Kellner alleges that Hynes coached the Lebovits defense team on

what evidence to procure against Kellner, and was personally aware that the

evidence that was eventually brought to him was false, fabricated, or otherwise

wholly unreliable. Nonetheless, Kellner argues, Hynes used this evidence, knowing

that it was baseless and ignoring exculpatory evidence, to initiate and continue a

criminal investigation into Keller. See, e.g., Weiner v. McKeefery, 90 F. Supp. 3d 17,

35 (E.D.N.Y. 2015) (“[C]ontinued prosecution after facts sufficient to exonerate the

accused have been provided may give rise to an action for malicious prosecution under

New York law.”); Cox v. Cnty. of Suffolk, 827 F. Supp. 935, 939 (E.D.N.Y. 1993)

(holding that the pre-indictment receipt of exculpatory statements

meant defendants “lacked probable cause to continue the prosecution”). This

investigation included attempts — both conducted by KCDA investigators, and

“outsourced” to the Lebovits defense team, as with the Florida tapes — to pressure

Y.R. into making what Hynes allegedly knew would be false statements about Baruch

Lebovits’s purported innocence. The record, when viewed in the light most favorable

to Kellner, would permit a reasonable jury to conclude (1) that the evidence that

Hynes, his KDCA deputies, and the Lebovits team collectively amassed against

Kellner was false, and even deliberately fabricated; (2) that Hynes had personal

knowledge that the evidence against Kellner was false or, at a minimum, wholly

unreliable; and (3) that Hynes himself personally participated in a conspiracy to

procure false information for the purpose of securing a baseless indictment of Kellner.

Ultimately, the question of whether Kellner’s indictment, which created a

presumption of probable cause, was procured by fraud, perjury, or other bad faith

conduct during the KCDA’s pre-indictment investigation is a genuine issue of

material fact that precludes summary judgment. See Harris, 663 F. Supp. 3d at 241,

243 (denying summary judgment and observing the “analytical overlap” where claims

for fabrication of evidence, conspiracy, and malicious prosecution are “intertwined”).

iii. Genuine Issues as to Actual Malice as a Motivation

Under New York law, “malice may be shown by proving that the prosecution

complained of was undertaken from improper or wrongful motives, or in reckless

disregard of the rights of the plaintiff.” Manganiello, 612 F.3d at 163 (quoting Pinsky

v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996)); see also Brogdon v. City of New Rochelle,

200 F. Supp. 2d 411, 423 (S.D.N.Y. 2002) (“Malice means ‘that the defendant must

have commenced the prior criminal proceeding due to a wrong or improper motive,

something other than a desire to see the ends of justice served.’” (quoting Nardelli v.

Stamberg, 377 N.E.2d 975, 976 (N.Y. 1978) and Rounseville v. Zahl, 13 F.3d 625, 630

(2d Cir. 1994))). “A lack of probable cause generally creates an inference of malice.”

Boyd, 366 F.3d at 78; see also Chimurenga v. City of New York, 45 F. Supp. 2d 337,

343–44 (S.D.N.Y. 1999) (“Where, as here, there is a triable issue as to probable cause,

there will almost always be a triable issue as to malice, [and t]his is even more the

case where, as here alleged, the defendants attempted to falsely create a sham

probable cause.”). “Falsifying evidence is sufficient to show malice.” Bailey v. City of

New York, 79 F. Supp. 3d 424, 451 (E.D.N.Y. 2015) (collecting cases).

Here, the existence of disputed fact questions as to probable cause creates a

similar issue for trial as to actual malice. The record contains evidence from which a

reasonable jury could conclude that something other than a “desire to see the ends of

justice served” motivated Kellner’s prosecution. Hynes’s July 24, 2013 appearance

on a radio program to discuss and publicly defend the prosecution’s case against

Kellner — which occurred less than a month after ADAs Batsidis and Alexis had fully

briefed Hynes on developments in the Kellner case that led them to conclude that

M.T.’s accusations against Kellner were false or unreliable, prompting Hynes initially

to instruct them to prepare a closing memorandum to dismiss the prosecution —

could support an inference that Hynes personally had another reason for initiating

and continuing the prosecution other than securing a conviction against Kellner.22

ADA Vecchione’s March 24, 2011 instruction to Batsidis that he should “indict and

see if [Y.R.] comes around” is evidence from which a jury could conclude that the goal

of Kellner’s prosecution was to pressure Y.R. into recanting his allegations against

Baruch Lebovits. Moreover, Vecchione’s deposition testimony that he did not recall

ever believing that Lebovits was wrongfully convicted or that his crimes of conviction

22 Plaintiff has not alleged that Hynes’s statements to the media caused the

initiation or continuation of his prosecution. This distinguishes the instant case from

Buckley, where the plaintiff claimed the prosecutor’s allegedly false assertions in

public announcements and release of plaintiff’s mug shots “inflamed the

populace . . . thereby defaming him, resulting in deprivation of his right to a fair trial,

and causing the jury to deadlock rather than acquit.” 509 U.S. at 276–77. While a

jury could consider Hynes’s statements to the media — which are not shielded by

absolute prosecutorial immunity — in assessing whether he acted with actual malice

in initiating and continuing the investigation that led to Plaintiff’s prosecution, these

post-indictment media statements cannot themselves serve as the grounds for

Hynes’s potential liability. See Wills v. Schneiderman, No. 24-CV-2764 (BMC), 2025

WL 2378034, at *3 (E.D.N.Y. Aug. 15, 2025) (“Wills does not allege that

Schneiderman’s public disparagement of Wills . . . caused him to be prosecuted

without probable cause. Because Wills fails to connect Schneiderman’s actions to his

alleged malicious prosecution, this claim fails.”).

did not occur also permits an inference that the only reason he was pressuring Y.R.

to “come around” through Kellner’s indictment was in service of an ulterior motive.

Because the record contains evidence from which a reasonable juror could conclude

that Hynes was in close coordination with Vecchione and his Rackets division

throughout Kellner’s prosecution, as well as the inference that he was personally

directing key aspects of the investigation, these statements by Vecchione could

support a jury finding that Hynes acted with actual malice in prosecuting Kellner.

These genuine issues of material fact preclude summary judgment.

IV. Qualified Immunity

Defendants argue that, even if DA Hynes is not shielded by absolute

prosecutorial immunity, he “is entitled to qualified immunity where he may have

reasonably relied on information provided by members of the KCDA.” Def. Mem. at

25 (citing Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir. 2003)). Kellner

contends that, in addition to not being shielded by absolute immunity, “Hynes is also

not entitled to qualified immunity,” because “[t]he right to be free from malicious

prosecution based on fabricated evidence was clearly established in 2010 and it was

not objectively reasonable for Hynes to believe that initiating a prosecution of

[Kellner] based on an affidavit from M.T. that Hynes knew to be false did not violate

that right.” Pl. Mem. at 35.

In the Second Circuit, “[a] government official sued in his individual capacity

is entitled to qualified immunity (1) if the conduct attributed to him was not

prohibited by federal law; or (2) where that conduct was so prohibited, if the plaintiff's

right not to be subjected to such conduct by the defendant was not clearly established

at the time it occurred; or (3) if the defendant’s action was objectively legally

reasonable.” Manganiello, 612 F.3d at 164 (citation modified) (citations omitted).

“Freedom from malicious prosecution is a constitutional right that has long been

clearly established.” Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003).

Because the constitutional rights here were “clearly established” in 2011, when

Kellner was indicted, the only question is whether Hynes’s conduct was “objectively

legally reasonable.” See Manganiello, 612 F.3d at 164 (“Only the third aspect of the

qualified immunity doctrine was genuinely at issue in the present case . . . .”).

“[W]hether a defendant officer’s conduct was objectively reasonable is a mixed

question of law and fact,” and, “[i]f there are unresolved factual issues which prevent

an early disposition of the [qualified immunity] defense, the jury should decide these

issues on special interrogatories.” Lore v. City of Syracuse, 670 F.3d 127, 162 (2d Cir.

2012) (citation omitted).

As discussed supra, the record could permit a reasonable jury to find that

Hynes conspired with members of the Lebovits family and legal team to investigate

and maliciously prosecute Kellner using manufactured evidence that he knew to be

false. A jury could also find otherwise — i.e., that Hynes’s decision to open an

extortion investigation into Kellner, and the steps he directed others to take during

that investigation, were objectively reasonable and lawful ones. These genuine issues

of material fact preclude summary judgment on Defendants’ qualified immunity

defense. See Harris, 663 F. Supp. 3d at 246.

V. Municipal Liability

Finally, Kellner asserts municipal liability against the City of New York for

the alleged conduct of DA Hynes. Am. Compl. ¶¶ 61–64. Specifically, Kellner asserts

that, “because Hynes had final decision-making authority in the area of policy that

encompassed his tortious conduct, the City of New York is responsible for his actions.”

Id. ¶ 63.

Under the Monell theory of municipal liability, “[w]here plaintiffs allege that

their rights were deprived . . . by a city employee’s single tortious decision or course

of action, the inquiry focuses on whether the actions of the employee in question may

be said to represent the conscious choices of the municipality itself.” Amnesty Am. v.

Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004); see generally Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978) (establishing that a municipality may be liable

under Section 1983 where its customs or policies deprive individuals of their rights

under the Constitution). A single decision may create Section 1983 liability “where

the decisionmaker possesses final authority to establish municipal policy with respect

to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). As

to district attorneys, the Second Circuit has held that “the actions of county

prosecutors in New York are generally controlled by municipal policymakers for

purposes of Monell, with a narrow exception . . . being the decision of whether, and

on what charges, to prosecute.” Bellamy v. City of New York, 914 F.3d 727, 759 (2d

Cir. 2019).

At oral argument, Defendants conceded that DA Hynes was, at all relevant

times, the ultimate decisionmaker for KCDA’s investigative functions and, thus, that

the City of New York’s Monell liability is coextensive with Hynes’s individual liability.

The Court agrees. Because genuine issues of material fact preclude summary as to

Hynes’s personal liability, the City is not entitled to summary judgment on the issue

of its municipal liability for Hynes’s alleged misconduct during the investigative stage

of Kellner’s prosecution.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is

DENIED in its entirety.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: December 8, 2025

Brooklyn, New York