# Kellner

> District Court, E.D. New York · December 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11216224

## Case

- **Full name:** Samuel Kellner v. The City of New York and Patricia L. Hynes, Administrator of the Estate of Charles J. Hynes
- **Court:** District Court, E.D. New York
- **Decided:** December 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11216224

## How later opinions describe it (automated extraction)

- 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
- establishing that a municipality may be liable under Section 1983 where its customs or policies deprive individuals of their rights under the Constitution
- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
—————————————————————X
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.
—————————————————————X
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, pr

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11216224. Public record. Not legal advice.