# Kukaj

> District Court, S.D. New York · February 10, 2026

URL: https://www.frixlaw.com/law-library/cases/11382104

## Case

- **Full name:** Ismet Kukaj v. Town of Eastchester, et al.
- **Court:** District Court, S.D. New York
- **Decided:** February 10, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ISMET KUKAJ,
Plaintiff, OPINION & ORDER

-against- 24-CV-08942 (PMH)
TOWN OF EASTCHESTER, et al.,

Defendants.
PHILIP M. HALPERN, United States District Judge:
Ismet Kukaj (“Plaintiff”), proceeding pro se, brings this action against the Town of
Eastchester, Sergeant Robert Krause, Sergeant Richard Biagi, Officer John Blume i/s/h/a Officer
Blume, Officer Brian Donovan, and Officer Michael Pascale i/s/h/a Officer M. Pascale
(collectively, “Defendants”), alleging violations of his constitutional rights and state law. (Doc. 23,
“Am. Compl.”).1 Plaintiff presses claims for: (1) negligent infliction of emotional distress; (2)
unlawful seizure of property; (3) right to record and retaliation in violation of the First Amendment
under 42 U.S.C. § 1983; (4) unlawful arrest in violation of the Fourth Amendment under 42 U.S.C.
§ 1983; (5) excessive force in violation of the Fourth and Fourteenth Amendments under 42 U.S.C.
§ 1983; (6) failure to intervene in violation of 18 U.S.C. § 242 and 42 U.S.C. § 1983; (7) malicious
prosecution in violation of the Fourth Amendment under 42 U.S.C. § 1983; and (8) Monell liability.
(See Am. Compl.).2

1 Citations to specific pages of the Amended Complaint and other filings on the docket correspond to the
pagination generated by ECF.
2 Plaintiff, in the Amended Complaint, states for each of his first seven claims for relief that Defendants
“deprived [him] of the rights and immunities guaranteed by the United States Constitution as well as the
Constitution of the State of New York.” (Am. Compl. ¶¶ 31, 37, 45, 48, 50, 57, 61). The Court, in the
Opinion & Order dismissing the original complaint, granted Plaintiff “leave to file an amended complaint
asserting only claims under 42 U.S.C. § 1983 for violations of the First Amendment, unlawful arrest,
excessive force, failure to intervene, malicious prosecution, and Monell liability; and state law claims for
negligent infliction of emotional distress and unlawful seizure of property.” (Doc. 22, “May 15, 2025
Opinion & Order” at 8). Consequently, to the extent Plaintiff attempts to assert claims inconsistent with the
Before the Court is Defendants’ motion to dismiss the Amended Complaint in its entirety
pursuant to Fed. R. Civ. P. 12(b)(6) filed on July 21, 2025. (See Doc. 26; Doc. 27; Doc. 28 (“Def.
Br.”)). Plaintiff filed his opposition on August 12, 2025 (Doc. 29, “Pl. Br.”), and the motion was
fully briefed with the filing of Defendants’ reply on August 29, 2025 (Doc. 34, “Reply”).
For the reasons set forth below, Defendants’ motion to dismiss is granted in part and denied

in part.
BACKGROUND
For the purposes of deciding the pending motion, the Court accepts as true all the well-pled
factual allegations in the Amended Complaint.3
Plaintiff, in the Amended Complaint, alleges that he was wrongfully detained and arrested
by Defendants while visiting the owner of an establishment in Eastchester, New York. (See Am.

Court’s May 15, 2025 Opinion & Order, such claims are dismissed. See Palm Beach Strategic Income, LP
v. Salzman, 457 F. App’x 40, 43 (2d Cir. 2012) (“District courts in this Circuit have routinely dismissed
claims in amended complaints where the court granted leave to amend for a limited purpose and the plaintiff
filed an amended complaint exceeding the scope of the permission granted.”).
3 Plaintiff attaches a number of documents to his opposition brief. (See Pl. Br. Exs. A-J). Namely, Plaintiff
attaches what he purports to be a certificate of disposition from Eastchester Town Court, correspondence
between Plaintiff and the Town of Eastchester regarding a freedom of information request submitted by
Plaintiff, a police report from Plaintiff’s January 26, 2023 arrest, and correspondence regarding a civilian
complaint submitted by Plaintiff to the Eastchester Police Department. (See id.). Plaintiff also asserts a host
of new factual allegations in his opposition related to these documents including that the Eastchester Police
Department has not responded to certain of Plaintiff’s letters and denied Plaintiff certain discovery. (See,
e.g., id. at 1-5). Given the liberality afforded pro se litigants, it is appropriate to consider new allegations in
a pro se plaintiff’s opposition to a motion to dismiss where they are consistent with the allegations contained
in the pleading. See Vail v. City of New York, 68 F. Supp. 3d 412, 427 (S.D.N.Y. 2014). However, the new
factual allegations contained in Plaintiff’s opposition are not consistent with the allegations in the Amended
Complaint, and the additional documents attached to Plaintiff’s opposition are not referred to in the
Amended Complaint, “integral” to the Amended Complaint, or otherwise helpful in deciding the present
motion. See Heckman v. Town of Hempstead, 568 F. App’x 41, 43 (2d Cir. 2014) (“[T]he Court is entitled
to consider facts alleged in the complaint and documents attached to it or incorporated in it by reference,
documents ‘integral’ to the complaint and relied upon in it, and facts of which judicial notice may properly
be taken under Rule 201 of the Federal Rules of Evidence.”). Accordingly, in deciding this motion, the
Court does not consider the new factual allegations raised in or the documents attached to Plaintiff’s
opposition.
Compl. ¶¶ 16-22). Specifically, Plaintiff alleges that on January 26, 2023, at approximately 1:30
a.m., he drove to Sea Flame Steakhouse in Eastchester to “meet with the owner of the
establishment.” (Id. ¶¶ 16-17). When Plaintiff arrived at Sea Flame Steakhouse, multiple police
vehicles were parked outside. (Id. ¶ 17). Plaintiff, upon exiting his vehicle, was approached by
Defendants Blume, Pascale, and a third, unidentified police officer. (Id.). These three officers

searched Plaintiff, and Plaintiff subsequently consented to a search of his car. (Id.). Defendant
Krause and another unidentified officer then arrived and Defendants Blume, Pascale, and the first
unidentified officer “became increasingly more aggressive” and got “in [Plaintiff’s] face.” (Id.).
Defendant Krause proceeded to seize Plaintiff’s cell phone and, after Plaintiff threatened
to file a complaint against the officers, arrested Plaintiff. (Id. ¶¶ 18-22). Defendant Krause
informed Plaintiff that he was being recorded by the officers’ body cameras. (Id. ¶ 18). Plaintiff,
in response, took out his cell phone and informed the officers of his intent to record them. (Id.).
“Sergeant Krause immediately removed the phone from [Plaintiff’s] hands and confiscated it.”
(Id.). Plaintiff requested the return of his cell phone, but the officers refused. (Id.). Plaintiff then

stated that he planned to “file a complaint against them with the Attorney General and the
Westchester District Attorney’s Office.” (Id.). After Plaintiff made this statement, Defendant
Krause handcuffed and detained Plaintiff. (Id.). Defendant Krause placed Plaintiff in the back of a
police car where Plaintiff remained for one hour. (Id. ¶ 19). Defendant Krause stated that he was
“locking [Plaintiff] up for cursing out my police officers.” (Id. ¶ 21).
After an hour in the police car, Plaintiff was informed that he would be released. (Id. ¶ 22).
However, Plaintiff “demanded an apology,” or else he “would file the complaint with the Attorney
General and the Westchester District Attorney’s Office.” (Id.). The officers attempted “to coerce
[Plaintiff] to forego filing any complaints against them in exchange for them dropping the charges
against [him].” (Id.). Plaintiff did not agree to forego filing a complaint against the officers, and
Plaintiff was arrested and taken to the police station. (Id.). Plaintiff had not, up to that point, been
informed of the charges against him. (Id.).
At the police station, Plaintiff was finally informed of the charges against him: menacing
and disorderly conduct. (Id. ¶ 23). Plaintiff was also informed that the wife of the owner of Sea

Flame Steakhouse had made accusations against a guest. (Id. ¶ 24). Plaintiff alleges that Officer
Brian Donovan, “the original arresting officer,” filed a “report despite never interviewing the
alleged Complainant,” the Sea Flame Steakhouse owner’s wife. (Id.). Furthermore, “the
Complainant never identified [Plaintiff] as the guest she complained against.” (Id.). Plaintiff also
alleges that “the Complainant was intoxicated at the time she made the accusations.” (Id.). The
Complainant allegedly came to the police station to withdraw her complaint, while still intoxicated,
four hours after Plaintiff was arrested. (Id.). Plaintiff alleges that he was detained for over six
hours. (Id. ¶ 26). Plaintiff was ultimately charged with disorderly conduct but not menacing. (Id.
¶ 25).

Plaintiff further alleges that Defendant Pascale issued Plaintiff a parking ticket on March
15, 2023 at 2:31 a.m. for parking his car overnight outside his house despite there being no signs
in the vicinity indicating that overnight parking is not permitted. (Id. ¶ 28). Plaintiff alleges that,
as a result of these incidents, he has “sought medical advice from licensed doctors and [has] been
prescribed medication to manage and treat major depressive disorders such as depression, panic
disorder, post-traumatic stress disorder, and social anxiety disorder.” (Id. ¶ 29).
STANDARD OF REVIEW
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The factual allegations pled “must
be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences
are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and
conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to less
stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429 U.S. 97,
106 (1976). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading
requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency of a pro
se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v. U.S. Dep’t
of Just., 218 F. Supp. 2d 357, 371 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intell. Agency, 953
F.2d 26, 28 (2d Cir. 1991)). However, while “[p]ro se complaints are held to less stringent standards
than those drafted by lawyers, even following Twombly and Iqbal,” dismissal is “appropriate where
a plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v. Westchester
Cnty., No. 12-CV-06718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (citations omitted); see
also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a

court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable
to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” (internal quotation marks omitted)). Therefore, while
the Court must “draw the most favorable inferences that [a plaintiff's] complaint supports, [it]
cannot invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. The
Court does, however, have a duty to interpret “the pleadings of a pro se plaintiff liberally and
interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).4
ANALYSIS

I. Plaintiff’s State Law Claims Against the Town of Eastchester
Defendants argue that Plaintiff’s state law claims for negligent infliction of emotional
distress and unlawful seizure of property against the Town of Eastchester must be dismissed as the

4 Defendants, in their moving brief, argue that the Amended Complaint should “not be afforded the special
solicitude afforded to pleadings prepared by pro se litigants as it appears to have been drafted with the
assistance of counsel.” (Def. Br. at 13). When pro se submissions are ghostwritten by an attorney, those
submissions are not afforded “the special consideration which the courts customarily grant to pro se
parties.” Spira v. J.P. Morgan Chase & Co., 446 F. App’x 20, 22 n.1 (2d Cir. 2012) (quoting Holtz v.
Rockefeller & Co, Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001)). However, the Court cannot conclusively
determine that the Amended Complaint was ghostwritten by an attorney and, thus, affords the Amended
Complaint the special solicitude afforded to pro se submissions. See West v. City of Hartford, No. 23-CV-
01020, 2024 WL 2113076, at *2 n.1 (D. Conn. May 10, 2024) (“While the quality of Plaintiff’s opposition
brief was better than the Court has received from other pro se litigants, it cannot conclude, on the record
before it, that it was necessarily drafted with the assistance of an attorney.”).
Court already dismissed these claims with prejudice. (Def. Br. at 14). Plaintiff’s claim for negligent
infliction of emotional distress is pressed against “all defendants”; Plaintiff’s claim for unlawful
seizure of property is pressed against the “individual defendants,” but the paragraphs
corresponding to this claim refer to Defendants collectively. (Am. Compl. at 7). Since the Court
already dismissed these claims against the Town of Eastchester with prejudice (see May 15, 2025

Opinion & Order at 5-6, 8), to the extent Plaintiff pleads claims against the Town of Eastchester
for negligent infliction of emotional distress and unlawful seizure of property, such claims are
dismissed.
II. Personal Involvement of Defendant Biagi
Defendants argue that Plaintiff fails to allege the personal involvement of Defendant Biagi
in any alleged constitutional violations and, thus, all claims against Defendant Biagi must be
dismissed. (Def. Br. at 17-18). The Court agrees.
“[A]s a threshold matter, ‘[t]o establish a § 1983 claim, a plaintiff must show the
defendants’ personal involvement in the alleged constitutional violation.’” Jackson v. Annucci, No.

20-CV-02008, 2021 WL 2581340, at *5 (S.D.N.Y. June 23, 2021) (second alteration in original)
(quoting Boley v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017)). “Failure to allege a defendant’s
personal involvement renders a ‘complaint . . . “fatally defective” on its face.’” Id. (alteration in
original) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)). Moreover, “[i]t
is well-settled that ‘where the complaint names a defendant in the caption, but [contains] no
allegations indicating how the defendant violated the law or injured the plaintiff, a motion to
dismiss the complaint in regard to that defendant should be granted.’” Taylor v. City of New York,
953 F. Supp. 95, 98-99 (S.D.N.Y. 1997) (first alteration in original) (quoting Thomas v. Beth Israel
Hosp., Inc., 710 F. Supp. 935, 942 (S.D.N.Y. 1989)); see also Cipriani v. Buffardi, No. 06-CV-
00889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (citing Gonzalez v. City of New York, No.
97-CV-02246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)) (“Dismissal is appropriate where
a defendant is listed in the caption, but the body of the complaint fails to indicate what the
defendant did to the plaintiff.”).
The Amended Complaint makes no allegations specific to Defendant Biagi. (See Am.

Compl.). Defendant Biagi is named in the caption of the Amended Complaint, and the Amended
Complaint states that Defendant Biagi is, “[u]pon information and belief . . . [a] resident[] of
Westchester County.” (Id. ¶ 13). This is insufficient to allege the personal involvement of
Defendant Biagi in any of Plaintiff’s claims. See Taylor, 953 F. Supp. at 99. Accordingly, all claims
against Defendant Biagi are dismissed.
III. First Claim for Relief: Negligent Infliction of Emotional Distress
Defendants, with respect to Plaintiff’s negligent infliction of emotional distress claim,
argue that Plaintiff fails to plead: (1) extreme and outrageous conduct; and (2) a duty owed to him
by Defendants, let alone a breach of any duty, which is required to plead a negligent infliction of

emotional distress claim under a direct duty theory. (Def. Br. at 15-16). The Court agrees.
To state a claim for negligent infliction of emotional distress under New York law, Plaintiff
must plead: “(1) extreme and outrageous conduct; (2) a causal connection between the conduct
and the injury; and (3) severe emotional distress.” Truman v. Brown, 434 F. Supp. 3d 100, 122
(S.D.N.Y. 2020) (quoting Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 297 (S.D.N.Y. 2015)).
In addition to satisfying those three elements, Plaintiff must also allege “facts making out one of
three ‘theories’: (1) a bystander theory, (2) a direct duty theory, or (3) a special circumstances
theory.” Id. at 122-23 (citing Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir. 2000)). The bystander
theory, premised on “witnessing the death or serious bodily injury of a member of [one’s]
immediate family,” id. at 123 (quoting Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996)),
does not apply here. The special circumstances theory, which has only been recognized in “limited
contexts,” such as a hospital “negligently informing an individual that her parent had died,” id.,
also does not apply here. The only theory which could apply to Plaintiff’s claim is the direct duty
theory, which requires Plaintiff to allege that he “suffer[ed] an emotional injury from defendant’s

breach of a duty which unreasonably endangered [his] own physical safety.” Id. (quoting Mortise,
102 F.3d at 696).
The conduct Plaintiff complains of—Defendants “continually being in his face,”
handcuffing him, placing him in a police vehicle, and arresting him—does not constitute
“outrageous conduct.” See Berrio v. City of New York, No. 15-CV-09570, 2017 WL 118024, at *6
(S.D.N.Y. Jan. 9, 2017) (“[C]ourts in this Circuit have dismissed claims based on unlawful arrests
as insufficiently ‘outrageous’ or ‘extreme.’”). Plaintiff, in the Amended Complaint, also does not
allege any duty owed to him by the Defendant officers to state a claim for negligent infliction of
emotional distress under a direct duty theory. See Green, 96 F. Supp. 3d at 299 (“Plaintiffs have

alleged no such duty that the Defendant Police Officers specifically owed them, and therefore they
fail to state a claim under the direct duty theory.”).
Accordingly, Plaintiff’s claim for negligent infliction of emotional distress is dismissed.
IV. Second Claim for Relief: Unlawful Seizure of Property
Defendants argue that Plaintiff’s unlawful seizure of property claim fails because Plaintiff:
(1) does not plead the personal involvement of Defendants Blume, Pascale, or Donovan; and (2)
Defendant Krause had probable cause or, in the alternative, qualified immunity to arrest Plaintiff.
(Def. Br. at 19-20). Defendant Krause argues that he was “locking [Plaintiff] up for cursing out
my police officers,” which constitutes disorderly conduct and, thus, Defendant was authorized to
seize Plaintiff’s cell phone incident to his arrest. (Id.at 21).
“A ‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interest in that property.” McCrae v. Town of Brookhaven, 759 F. Supp. 3d
372, 390 (E.D.N.Y. 2024) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). However,

“a search incident to an arrest based on probable cause ‘is a reasonable intrusion under the Fourth
Amendment’ and ‘requires no additional justification.” Qing You Li v. City of New York, No. 16-
CV-00174, 2018 WL 6251339, at *4 (E.D.N.Y. Nov. 28, 2018) (quoting United States v. Koron,
101 F.3d 682, at *2 (2d Cir. 1996)). “An officer has probable cause to arrest when in possession of
facts sufficient to warrant a prudent person to believe that the suspect had committed or was
committing an offense.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (first
citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975); and then citing O’Neill v. Town of Babylon, 986
F.2d 646, 650 (2d Cir. 1993)).
Plaintiff does not plead any facts that show Defendants Blume, Pascale, or Donovan were

involved in the seizure of his cell phone. Plaintiff alleges that Defendants Blume and Pascale were
present when Plaintiff arrived at Sea Flame Steakhouse and were “in his face.” (Am. Compl. ¶ 17).
This is insufficient to allege these Defendants’ personal involvement in the seizure of his cell
phone. See, e.g., Snead v. City of New York, 463 F. Supp. 3d 386, 398 (S.D.N.Y. 2020) (“An
officer’s mere presence at the scene of a stop or arrest generally does not constitute sufficient
personal involvement . . . .”); Arbuckle v. City of New York, No. 14-CV-10248, 2016 WL 5793741,
at *13 (S.D.N.Y. Sept. 30, 2026) (“Simply being present at the scene of an arrest does not suffice
for personal involvement.”). Likewise, Plaintiff alleges that Defendant Donovan was “the original
arresting officer” and “filed the report,” (Am. Compl. ¶ 24), but does not allege anywhere in the
Amended Complaint that Defendant Donovan was actually present at the scene of his arrest.5 Thus,
Plaintiff’s unlawful seizure of property claim is dismissed as to Defendants Blume, Pascale, and
Donovan.
Defendants argue that Defendant Krause had probable cause to seize Plaintiff’s cell phone
incident to his arrest because, as alleged in the Amended Complaint, Defendant Krause stated that

he was “locking [Plaintiff] up for cursing out my police officers” which constitutes disorderly
conduct under New York law. (Def. Br. at 21-22). Plaintiff, however, does not allege that he
actually “cursed out” any officers nor that Defendant Krause actually believed his own statement
to be true. (See Am. Compl.). The Court also notes that Plaintiff alleges that Defendant Krause
seized Plaintiff’s cell phone prior to his arrest and Defendant Krause initiated Plaintiff’s arrest only
after Plaintiff threatened to file a complaint against the officers. (Id. ¶ 18). Accordingly, Defendant
Krause’s statement that he was arresting Plaintiff for “cursing out [his] police officers” does not
support a finding that Defendant Krause was “in possession of facts sufficient to warrant a prudent
person to believe that the suspect had committed or was committing an offense.” Ricciuti, 124 F.3d

at 128. Thus, Plaintiff’s unlawful seizure of property claim does not fail as against Defendant
Krause on the basis that Defendant Krause had probable cause to arrest Plaintiff.
Defendants further argue that Defendant Krause’s actions are protected by the doctrine of
qualified immunity. (Def. Br. at 20). While qualified immunity is ordinarily an affirmative defense

5 Plaintiff’s assertion that Defendant Donovan was the “original arresting officer” is inconsistent with the
more specific factual assertions in the Amended Complaint that Defendant Krause actually handcuffed and
arrested Plaintiff. (Compare id. ¶ 24, with id. ¶ 18). The Second Circuit “has recognized an exception to the
rule that a court must accept all factual assertions as true when attenuated allegations supporting the claim
are contradicted by more specific allegations in the Complaint or when a claim is based on wholly
conclusory and inconsistent allegations.” Grant v. Cnty. of Erie, 542 F. App’x 21, 23 (2d Cir. 2013).
Accordingly, the Court does not accept Plaintiff’s attenuated assertion that Defendant Donovan was “the
original arresting officer,” as it is contradicted by the more specific factual assertions in the Complaint that
Defendant Krause was the original arresting officer.
asserted in an answer, a defendant can properly raise a qualified immunity defense in a pre-answer
12(b)(6) motion to dismiss. McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). A 12(b)(6)
motion based on qualified immunity may be granted if “the facts supporting the defense appear on
the face of the complaint.” Hyman v. Abrams, 630 F. App’x 40, 42 (2d Cir. 2015) (quoting
McKenna, 386 F.3d at 435-36). A defendant bears the burden of establishing that he is entitled to

qualified immunity. Gardner v. Murphy, 613 F. App’x 40, 41 (2d Cir. 2015) (citing Vincent v.
Yelich, 718 F.3d 157, 166 (2d Cir. 2013)). Consequently, when a defendant raises a qualified
immunity defense in a 12(b)(6) motion to dismiss, the defendant must accept that “the plaintiff is
entitled to all reasonable inferences from the facts alleged, not only those that support his claim,
but also those that defeat the immunity defense.” Hyman, 630 F. App’x at 42 (quoting McKenna,
386 F.3d at 436). Thus, “[a]t the motion to dismiss stage, the qualified immunity defense ‘faces a
formidable hurdle . . . and is usually not successful’ because it is the defendant that must plead and
prove the defense.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (second alteration
in original) (quoting Estate of Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d Cir.

2020)).
The doctrine of qualified immunity protects officials from liability for civil damages when,
“(a) the defendant’s action did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not violate such law.” Garcia v. Does,
779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir.
2007)). “A Government official’s conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Almighty Supreme Born Allah v.
Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). If
an official’s belief that his or her action does not violate clearly established law is “objectively
reasonable,” he or she is shielded from liability by qualified immunity. Cooper v. City of New
Rochelle, 925 F. Supp. 2d 588, 608 (S.D.N.Y. 2013).
Defendants argue that Defendant Krause is entitled to qualified immunity because his
“conduct was reasonable . . . based upon [Plaintiff’s] conduct, cursing out the Officers, and the

report of the complaining witness . . . .” (Def. Br. at 23). However, the Amended Complaint does
not allege that Plaintiff in fact cursed out any officers. (See Am. Compl.). Nor does the Amended
Complaint sufficiently allege when Defendants became aware of the accusations made by the Sea
Flame Steakhouse owner’s wife or the nature of the accusations to allow the Court to determine
that it was “objectively reasonable” for Defendant Krause “to believe that his action did not
violate” clearly established law. Garcia, 779 F.3d at 92 (quoting Russo, 479 F.3d at 211). The
Amended Complaint alleges only that Plaintiff was made aware of these accusations upon arrival
at the police station, well after Defendant Krause seized his cell phone. (See Am. Compl. ¶ 24).
Thus, it is unclear, as alleged in the Amended Complaint, if Defendant Krause was aware that an

accusation had been made against a guest of Sea Flame Steakhouse or that Defendant Krause
reasonably believed that Plaintiff was that guest at the time he arrested Plaintiff. Accordingly, the
Court cannot find at this juncture that Defendant Krause is protected by qualified immunity.6

6 The Court notes that Plaintiff attaches as an exhibit to his opposition what appears to be police reports
from the incident which led to Plaintiff’s arrest. (See Def. Br. Ex. C). Defendant Krause, in these documents,
purportedly writes that he was responding to a 911 call and interviewed an eyewitness who stated that
Plaintiff was in a physical altercation and in possession of a firearm. (See id. at 28-29). These facts, if true,
would strongly support a finding of probable cause or, at a minimum, qualified immunity to arrest Plaintiff.
See Goldberg v. Town of Glastonbury, 453 F. App’x 40, 42 (2d Cir. 2011); Corsini v. Bloomberg, 26 F. Supp.
3d 230, 241 (S.D.N.Y. 2014). However, the Court is constrained from considering these documents on the
instant motion. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2d Cir. 1995) (stating that a plaintiff
does not necessarily “adopt as true the full contents of any document attached to a complaint or adopted by
reference.”).
V. Third Claim for Relief: First Amendment Right to Record and Retaliation
Defendants argue that Plaintiff fails to state a claim for violations of his First Amendment
rights because: (1) Plaintiff does not sufficiently allege the personal involvement of Defendants
Blume, Pascale, or Donovan; (2) Plaintiff’s First Amendment rights were not chilled; and (3)
Defendant Krause had probable cause or, at the very least, qualified immunity to seize Plaintiff’s

cell phone incident to his arrest. (Def. Br. at 18; Reply at 4-5).
“Neither the Supreme Court nor Second Circuit precedent has squarely established that an
individual who is the subject of police activity has the right to record police performing their
official duties.” Adamides v. Warren, No. 21-CV-06613, 2022 WL 2788435, at *10 (W.D.N.Y. July
15, 2022) (quoting Picardo v. Torneo, No. 16-CV-01564, 2019 WL 4931353, at *4 (D. Conn.
2019)). However, several circuit courts and many district courts in this district that have addressed
this issue “concluded that the First Amendment protects the right to record police officers
performing their duties in a public space, subject to reasonable time, place and manner
restrictions.” Id. (quoting Higginbotham v. City of New York, 105 F. Supp. 3d 369, 379 (S.D.N.Y.

2015)); see also Reyes v. City of New York, No. 23-CV-06369, 2023 WL 7212192, at *5 (S.D.N.Y.
Nov. 2, 2023) (“[R]ecording police performing their official duties in public is protected under the
First Amendment.”).
To state a claim for First Amendment retaliation, a plaintiff must allege that: “(1) he has an
interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially
caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of
his First Amendment right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citing
Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998)). Additionally, “private citizens claiming
retaliation for their criticism of public officials have been required to show that they suffered an
‘actual chill’ in their speech as a result.” Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir. 2011)
(citing Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)).
The Court agrees with Defendants that Plaintiff does not sufficiently plead the involvement
of Defendants Blume, Pascale, or Donovan in any alleged First Amendment violations stemming
from Plaintiff’s arrest. Indeed, Plaintiff, in the Amended Complaint, alleges that Defendant Krause

seized his cell phone and arrested Plaintiff after he threatened to file a complaint against the
officers, (Am. Compl. ¶ 18), but makes no similar allegations regarding Defendants Blume,
Pascale, or Donovan. Plaintiff does allege that, roughly two months after his arrest, Defendant
Pascale, for seemingly no reason, issued him a parking ticket. (Id. ¶ 28). However, Plaintiff does
not explain how receiving a parking ticket actually chilled the exercise of his First Amendment
rights. Zherka, 634 F.3d at 645. Plaintiff does not plead any actions taken by Defendants Blume or
Donovan in relation to his First Amendment claim. See Snead, 463 F. Supp. 3d at 398. Accordingly,
Plaintiff’s First Amendment claim is dismissed as to Defendants Blume, Pascale, and Donovan.
Defendants argue, with respect to Defendant Krause, that Defendant Krause had probable

cause to seize Plaintiff’s cell phone incident to his arrest and alternatively that Defendant Krause
is protected by the doctrine of qualified immunity. (Def. Br. at 20). Defendants also argue that
Plaintiff does not properly allege that Defendant Krause’s actions “chilled the exercise of his First
Amendment rights.” (Reply at 9). Generally, probable cause will defeat a First Amendment
retaliation claim. See Higginbotham v. Sylvester, 741 F. App’x 28, 31 (2d Cir. 2018); but see
Lozman v. City of Riviera Beach, 585 U.S. 87, 101 (2018) (“[Plaintiff] need not prove the absence
of probable cause to maintain a claim of retaliatory arrest against the City.”). However, probable
cause and qualified immunity do not warrant dismissal of Plaintiff’s First Amendment claim for
the same reasons that probable cause and qualified immunity do not warrant dismissal of Plaintiff’s
unlawful seizure of property claim. Accord Novak v. City of New York, No. 25-CV-03734, 2026
U.S. Dist. LEXIS 21521, at *28-30 (S.D.N.Y. Feb. 2, 2026) (denying motion to dismiss First
Amendment retaliation claim where Defendants did “not establish[] that they had probable cause
to arrest” and had “not even established that they had arguable probable cause to arrest.”).
Moreover, Plaintiff does plausibly allege that Defendant Krause chilled the exercise of his First

Amendment right to record by seizing his cell phone, preventing Plaintiff from recording the
officers in violation of Plaintiff’s “right to record police performing their official duties.”
Adamides, 2022 WL 2788435, at *10.
Accordingly, Plaintiff’s First Amendment claim is dismissed as to Defendants Blume,
Pascale, and Donovan, but will proceed against Defendant Krause.
VI. Fourth Claim for Relief: False Arrest
Defendants argue that Plaintiff’s false arrest claim fails because: (1) Plaintiff does not
sufficiently allege the personal involvement of Defendants Blume, Pascale, or Donovan; and (2)
Defendant Krause had probable cause or, in the alternative, qualified immunity to arrest Plaintiff.

(Def. Br. at 12-14).
To plead a claim for false arrest, a Plaintiff must allege sufficient facts to establish that:
“(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not
otherwise privileged.” Barkai v. Mendez, 629 F. Supp. 3d 166, 190 (S.D.N.Y. 2022) (quoting
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)). “A confinement is privileged if
probable cause existed at the time of the arrest. Thus, a claim for false arrest must fail if probable
cause to arrest existed.” Id. (quoting Martinetti v. Town of New Hartford Police Dep’t, 112 F. Supp.
2d 251, 252 (N.D.N.Y. 2000)).
The Court agrees that Plaintiff does not sufficiently plead the personal involvement of
Defendants Blume, Pascale, and Donovan to state a claim for false arrest. While Defendants Blume
and Pascale were present for Plaintiff’s arrest, Plaintiff does not plead any involvement by these
defendants in the arrest. See, e.g., Rodriguez v. City of New York, 291 F. Supp. 3d 396, 410 (“There
is no evidence in the record that [defendant] identified Plaintiff; ordered his arrest; assisted others

in his arrest; touched, searched, or spoke to Plaintiff; processed any of his arrest paperwork; or had
any involvement whatsoever in – beyond physical proximity to – Plaintiff’s arrest.”). Plaintiff does
not even allege that Defendant Donovan was present at Sea Flame Steakhouse when Plaintiff was
arrested. (See Am. Compl.); see also Drayton v. City of New York, No. 17-CV-07091, 2020 WL
2615930, at *5 (E.D.N.Y. May 20, 2020) (dismissing false arrest claim where the defendant “was
absent from the scene when [Plaintiff] was arrested and apart from [the defendant’s] signature on
[Plaintiff’s] arrest paperwork, [the defendant] was uninvolved in [Plaintiff’s] arrest.”).
However, Plaintiff does plausibly plead a false arrest claim against Defendants Krause.
Defendants admit that Plaintiff satisfies the first three elements necessary for a false arrest claim

but argue that Plaintiff does not sufficiently plead his “confinement was not otherwise privileged.”
(Def. Br. at 21). Having already rejected Defendants’ argument that Defendant Krause had
probable cause to arrest Plaintiff, the Court cannot say that Plaintiff’s confinement was not
otherwise privileged or that Defendants Krause is entitled to qualified immunity at this stage.
Thus, Plaintiff’s false arrest claim is dismissed as to Defendants Blume, Pascale, and
Donovan, but will proceed against Defendant Krause.
VII. Fifth Claim for Relief: Excessive Force
Defendants next argue that Plaintiff’s excessive force claim should be dismissed because:
(1) Plaintiff fails to allege that Defendants Blume, Pascale, or Donovan used any force against
him; and (2) Plaintiff alleges only a de minimis use of force by Officer Krause. (Def. Br. at 23-24).
The Court agrees.
Plaintiff’s excessive force claim is “analyzed under the reasonableness standard of the
Fourth Amendment.” Basora v. City of Poughkeepsie, No. 22-CV-03300, 2025 WL 50322, at *3
(S.D.N.Y. Jan. 8, 2025) (citing Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019)).

Under that standard, “[p]olice officers’ application of force is excessive, in violation of the Fourth
Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting
them, without regard to the officers’ underlying intent or motive.’” Id. (quoting Maxwell v. City of
New York, 380 F.3d 106, 108 (2d Cir. 2004)). “[A] de minimis use of force will rarely suffice to
state a constitutional claim.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson
v. McMillian, 503 U.S. 1, 10 (1992)).
The only force alleged in the Amended Complaint is that Defendant Krause handcuffed
Plaintiff. (See Am. Compl. ¶ 18). Defendant Krause simply placing handcuffs on Plaintiff, as
alleged in the Amended Complaint, is a de minimis use of force insufficient to support a claim for

excessive force especially given that Plaintiff does not even allege a resultant injury. See DiDonna
v. Maas, No. 22-CV-05417, 2024 WL 5202239, at *8 (S.D.N.Y. Dec. 23, 2024) (“In order to be
actionable, the injuries [from handcuffs] must be more than de minimis.” (citing Morgan v. City of
New York, No. 17-CV-06454, 2021 WL 2207002, at *5 (E.D.N.Y. Mar. 25, 2021)). Plaintiff also
alleges verbal harassment by Defendants Pascale and Blume. (See Am. Compl. ¶ 17). However,
“verbal harassment, absent ‘any appreciable injury,’ cannot support an excessive force claim.”
Gerard v. City of New York, 843 F. App’x 380, 382 (2d Cir. 2021) (citing Purcell v. Coughlin, 790
F.2d 263, 265 (2d Cir. 1986)).
Accordingly, Plaintiff’s excessive force claim is dismissed against all Defendants.
VIII. Sixth Claim for Relief: Failure to Intervene
Defendants argue that: (1) Plaintiff’s failure to intervene claim “is pled in a vague and
conclusory fashion and must be dismissed against all Defendants”; and (2) because Plaintiff fails
to plead any underlying constitutional violations, his failure to intervene claim should be
dismissed. (Def. Br. at 25-28).

“An officer may be liable for failure to intervene under Section 1983 where (1) the officer
had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the
officer’s position would know that the victim’s constitutional rights were being violated; and (3)
the officer does not take reasonable steps to intervene.” Werkheiser v. Cnty. of Broome, 655 F.
Supp. 3d 88, 108 (N.D.N.Y. 2023) (quoting Gerasimou v. Cillis, No. 15-CV-06892, 2022 WL
118748, at *5 (E.D.N.Y. Jan 12, 2022)) (citation modified). Moreover, a “failure to intervene claim
is contingent upon the disposition of the primary claims underlying the failure to intervene claim.”
Matthews v. City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012). A defendant “cannot
be liable for both the underlying constitutional deprivation and a failure to intervene to stop

themselves from committing that violation.” Buari v. City of New York, 530 F. Supp. 3d 356, 392
(S.D.N.Y. 2021).
Having already dismissed Plaintiff’s excessive force claim, Plaintiff does not state a claim
on a failure-to-intervene theory of liability against any Defendants. Matthews, 889 F. Supp. 2d at
443-44. As to the remaining extant claims against Defendant Krause, Plaintiff’s unlawful seizure
of property, First Amendment, and false arrest claims are, however, proceeding. Accordingly,
Plaintiff cannot assert these claims against Defendant Krause premised on a failure-to-intervene
theory of liability because, as alleged in the Amended Complaint, Defendant Krause participated
directly in the constitutional deprivations. Buari, 530 F. Supp. 3d at 392.
Defendants also argue that Plaintiff’s failure to intervene claim suffers from group
pleading. (Def. Br. at 27-28). The Court agrees. Plaintiff does not allege any actions taken, or that
should have been taken, by any specific Defendant when Defendant Krause took Plaintiff’s phone
and subsequently arrested him. Instead, “Plaintiff resorts to conclusory generalized allegations
asserting [his] failure to intervene claim against every single Defendant and refers to the numerous

defendants collectively. Such conclusory and generalized allegations do not give any of the
Defendants ‘fair notice of what [Plaintiff’s] claim is and the grounds upon which it rests.’” Ying Li
v. City of New York, 246 F. Supp. 3d 578, 619 (E.D.N.Y. 2017) (second alteration in original)
(quoting Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 212 (N.D.N.Y. 2008)); (see also, e.g.,
Am. Compl. ¶ 18 (“[N]either Sergeant Krause nor any of the other officers present restored the
cell phone to my possession.”)).
Accordingly, Plaintiff’s failure to intervene claim is dismissed.
IX. Seventh Claim for Relief: Malicious Prosecution
Defendants argue that Plaintiff’s malicious prosecution claim should be dismissed because:

(1) Plaintiff fails to allege any role by Defendants Blume or Pascale in his prosecution; and (2)
Plaintiff alleges that Defendants Krause and Donovan arrested him, but does not allege that they
“continued a criminal proceeding against him nor that they did so with malice.” (Def. Br. at 28-
29).
To state a claim for malicious prosecution, a Plaintiff must plead: (1) “the commencement
or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination
of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal
proceeding and (4) actual malice.” Kee v. City of New York, 12 F.4th 150, 161 (2d Cir. 2021)
(quoting Smith-Hunter v. Harvey, 734 N.E.2d 750, 752 (N.Y. 2000)).
Here, Plaintiff fails to allege in the Amended Complaint that any of the Defendants initiated
and continued a criminal proceeding against him. “While police officers do not generally
‘commence or continue’ criminal proceedings against defendants, a claim for malicious
prosecution can still be maintained against a police officer if the officer is found to ‘play[] an active
role in the prosecution, such as giving advice and encouragement or importuning the authorities to

act.’” Bermudez v. City of New York, 790 F.3d 368, 377 (2d Cir. 2015) (alteration in original)
(quoting Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010)). Plaintiff alleges that
Defendants Krause arrested him, (Am. Compl. ¶ 18), but Plaintiff does not allege that Defendant
Krause was involved in any manner in the criminal proceedings against him. Accord Thomsen v.
City of New York, No. 15-CV-02668, 2016 WL 590235, at *8 (S.D.N.Y. Feb. 11, 2016)
(“[Defendant’s] conduct in arresting [Plaintiff] . . . does not rise to the level of an ‘active role’ in
the prosecution.”). Plaintiff also alleges that Defendant Donovan “filed the report,” (Am. Compl.
¶ 24), but he does not specify what this report was or if it was in any way related to his prosecution.
Accordingly, Plaintiff’s claim for malicious prosecution is dismissed.

X. Eighth Claim for Relief: Monell Liability
Defendants argue that Plaintiff’s Monell claim should be dismissed because Plaintiff “does
not allege an underlying constitutional violation, and his allegations are entirely conclusory.” (Def.
Br. at 29).
“It is well established that a municipality may not be held liable under Section 1983 for
alleged unconstitutional actions by its employees below the policy-making level solely upon the
basis of respondeat superior.” Ukeje v. N.Y.C. Health & Hosps. Corp., 821 F. Supp. 2d 662, 669
(S.D.N.Y. 2011) (citing Monell v. Dep’t of Soc. Services of City of N.Y., 436 U.S. 658 (1978)).
Rather, to prevail on a Monell claim against a municipality “the plaintiff must plead and prove that
the violation of constitutional rights resulted from a municipal custom or policy.” Id. at 670 (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83 (1986)). Thus, to assert a Monell claim against
a municipality a plaintiff must plausibly allege and ultimately prove three things: “(1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional
right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez,

702 F.2d 393, 397 (2d Cir. 1983)). Proof of the existence of a municipal policy or custom is
required because a plaintiff must demonstrate that “the municipality took some action beyond
merely employing the [allegedly] misbehaving officers.” Chamberlain v. City of White Plains, 986
F. Supp. 2d 363, 390 (S.D.N.Y. 2013) (quoting Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d
Cir. 1985)).
Plaintiff pleads his Monell claim against “all defendants.” (Am. Compl. at 13). However,
“a Monell claim cannot be pleaded against an individual. . . . And a Monell claim asserted against
an individual defendant acting in her official capacity is treated as a suit against the municipality.”
Barrera v. N.Y.C. Dep’t of Educ., No. 24-CV-07194, 2025 WL 3211802, at *8 (S.D.N.Y. Nov. 17,

2025) (first citing Hafer v. Melo, 502 U.S. 21, 25 (1991); and then citing Perez v. Annucci, No. 18-
CV-00147, 2019 WL 1227801, at *4 (S.D.N.Y. Mar. 15, 2019)). Therefore, to the extent Plaintiff
attempts to plead a Monell claim against the individual defendants, such claim is dismissed.
Regardless, Plaintiff alleges no facts to establish a custom, pattern, practice, or procedure
on the part of any of the Defendants in “hiring and/or retaining police officers whom they know to
have committed acts of violence, including crimes, and/or have a propensity to do so.” (Am.
Compl. ¶ 63). Plaintiff alleges that he was arrested and later issued a parking ticket by one of the
same officers who was present for his arrest. (Am. Compl. ¶¶ 22-23, 28). This is not sufficient to
state a claim under Monell. See, e.g., Riccio v. Town of Old Saybrook, No. 21-CV-00821, 2022 WL
4585650, at *3 (D. Conn. Sept. 29, 2022) (“Courts in this Circuit have regularly found that such
conclusory allegations fail to allege a Monell claim.”); Gerardi v. Huntington Union Free Sch.,
124 F. Supp. 3d 206, 226 (E.D.N.Y. 2015) (“Plaintiff’s allegation that the District had a
‘widespread or persistent’ policy of gender discrimination in its hiring process [is] conclusory and
unsupported by the record and, therefore, insufficient to establish Monell liability.”).

Accordingly, Plaintiff’s Monell claim is dismissed.
XI. Punitive Damages
Defendants argue that Plaintiff fails to allege the “evil motive or intent” or “reckless and
callous indifference” necessary to recover punitive damages against the individual defendants.
(Def. Br. at 31). “[R]eckless or callous disregard for [a] plaintiff’s rights, as well intentional
violations of federal law,” are “sufficient to trigger a jury’s consideration of the appropriateness of
punitive damages.” Smith v. Wade, 461 U.S. 30, 51 (1983). Here, Plaintiff alleges that Defendant
Krause intentionally disregarded his First Amendment rights and falsely arrested him. (See Am.
Compl.). Since Plaintiff plausibly alleges claims for unlawful seizure of property, First

Amendment violations, and false arrest against Defendant Krause, it is premature to dismiss his
request for punitive damages at this stage. See, e.g., Kinnel v. Barton, No. 24-CV-01701, 2025 WL
2694859, at *7 (D. Conn. Sept. 22, 2025) (“Since Plaintiff may proceed on his Eighth Amendment
excessive force claim against [the defendant], it is premature to dismiss his request for punitive
damages on that claim.”).
CONCLUSION
For the reasons stated in this Opinion & Order, Defendants’ motion to dismiss is granted
in part and denied in part. Plaintiff’s First, Fifth, Sixth, Seventh, and Eighth claims for relief are
dismissed against all Defendants. Plaintiff’s Second, Third, and Fourth claims for relief are
dismissed as against Defendants Biagi, Pascale, Blume, and Donovan, but will proceed against
Defendant Krause.
Accordingly, Defendants Blume, Biagi, Pascale, Donovan, and the Town of Eastchester are
dismissed from this action. Plaintiff’s case may proceed against Defendant Krause on his claims
for unlawful search and seizure, First Amendment right to record and retaliation, and false arrest.
Defendant Krause shall file an answer to the Amended Complaint on or before February
24, 2026.
The Clerk of Court is respectfully directed to terminate the motion pending at Doc. 26 and
to terminate the Town of Eastchester, Sergeant Richard Biagi, Officer Blume, Officer Brian
Donovan, and Officer M. Pascale as defendants herein.
SO ORDERED.

Dated: White Plains, New York
February 10, 2026 ( /
PHILIP M. HALPERN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11382104. Public record. Not legal advice.