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October 5, 2000


The opinion of the court was delivered by: Trager, District Judge.

                  CORRECTED OPINION
Plaintiffs Luis and Aura Mejia (the "Mejias") bring this § 1983/Bivens action against the City of New York (the "City"), Airborne Freight Corporation ("Airborne"), U.S. Customs Service Special Agent Brenda Tipton ("S/A Tipton"), and Sergeant Daniel McNicholas ("Sergeant McNicholas") and Detective John Skinner ("Detective Skinner") of the New York City Police Department ("NYPD") (the latter two individuals collectively referred to as the "police defendants"), alleging false arrest, false imprisonment, use of excessive force, and malicious prosecution, all in relation to the controlled pickup of a shipment of cocaine. The Mejias also assert pendent state law claims for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress against various defendants. Each of the defendants now moves for summary judgment on the basis of probable cause, qualified immunity, and/or various procedural grounds.



The initial events precipitating this case are not in dispute. On November 18, 1993, U.S. Customs Service ("Customs") agents in Miami intercepted a package from Bogota, Columbia, in which 1 pound and 1 3/8 ounces of cocaine had been hidden. The package contained three books of textile samples, inside the covers of which plastic bags containing cocaine had been concealed. The package had been delivered to Miami by International Bonded Courier ("IBC"), a Columbian express courier, for transfer to Airborne, the connecting domestic courier. The airbill identified the sender as "GABRIEL JARAMILLO LARA, CRA 38 No. 8-06, SANTA FE DE BOGOTA, COLUMBIA, TELEPHONE NUMBER 2686824." The airbill designated the recipient as "COMPLETE DIAGNOSTIC, BEST SPORTS CAR SERVICE, 188-06 HILLEIDE [sic] AVE., HOLLIS, N Y 11423, U.S.A.," and gave the recipient's telephone number as "(718) 740-2121," but did not list an individual addressee. Complete Diagnostic was an auto repair garage owned and operated by plaintiff Luis Mejia.
Miami Customs officials notified the New York Customs office of their discovery and forwarded the package to S/A Tipton, who then worked out of the New York office. Because the package contained less than one kilogram of cocaine, the matter fell outside federal prosecution guidelines. At the direction of the New York office's supervisor, Special Agent Joseph Gloria, S/A Tipton contacted Sergeant Nicholas on November 18, 1993, about the possibility of the NYPD conducting a controlled delivery of the package.
On November 19, 1993, S/A Tipton contacted Bezmen, who was Airborne's regional security manager, and asked him to arrange to place an entry in Airborne's computer system to reflect a delay due to misrouting in order not to arouse the suspicion of the unknown recipient. Bezmen agreed to the request and offered to cooperate in any subsequent controlled delivery of the package.
On that same date, Customs Special Agent John Raffa ("S/A Raffa") visited Complete Diagnostic. While there, S/A Raffa picked up a business card for the garage, which included the name "Luis" and the telephone number (718) 740-2121.
On November 22, 1993, S/A Tipton and Sergeant McNicholas discussed tentative plans for Customs to sign over the package to the NYPD for a controlled delivery on the following day. Later on the 22nd, plans for a controlled delivery were abandoned when Sergeant McNicholas reported that he had gone to the auto garage and had seen many workers, a heavy workload, and no individual designated to take delivery. Under these circumstances, Sergeant McNicholas stated that he could not in good conscience proceed with the controlled delivery since there would be no way of knowing whether the person who happened to sign for the package was the intended recipient.


At this point in the story, plaintiffs' and defendants' accounts of the events diverge widely. First, the defendants'. At some point in the day on November 29, 1993, S/A Tipton spoke to Bezmen, who had previously left a message for her. Bezmen told her that he had noticed an entry on Airborne's computer that indicated someone named "Luis" had called on November 22, 1993, asked about the package, and left the phone number (718) 740-2121 — the number for Complete Diagnostic.*fn1 S/A Tipton and Sergeant McNicholas then conferred to make arrangements for a controlled pickup at Airborne's facility the next day, November 30, 1993.

At S/A Tipton's request, Gennarelli, an Airborne cartage supervisor, called the contact number and asked for "Luis Mejia."*fn2 A person answered and said: "This is Luis." Gennarelli told "Luis" that his package was available for pickup at Airborne's Inwood station, which is located near JFK. Gennarelli further advised "Luis" that he should come to pick up the package after noon the next day, November 30, 1993. Gennarelli does not recount having to give "Luis" any reasons as to why he was required to pick up the package at the Airborne office as opposed to it being delivered to Complete Diagnostic; Gennarelli states that "Luis" simply agreed without asking any questions. According to Gennarelli, the call lasted approximately two minutes. After the call, Gennarelli advised S/A Tipton that "Luis" said he would come to Airborne's facility the next day to pick up the package.

On November 30, 1993, S/A Tipton brought the package to the Airborne's Inwood station and signed it over to Detective Skinner. According to S/A Tipton, she had no further role in the controlled delivery, though she remained at the facility until Mr. Mejia arrived.

Detective Skinner placed the intercepted package in an Airborne box, sealed it, and gave it to Gennarelli. The police then waited for Mr. Mejia's arrival out of sight in prearranged positions.
Later that day, Mr. Mejia set off for the Airborne office along with his wife. Along the way, he got lost and had to call for directions. Gennarelli answered, or was given, the call and provided Mr. Mejia with additional directions. Shortly thereafter, Luis Mejia entered Airborne's facility and walked up to Gennarelli who was dressed in an Airborne uniform. Mr. Mejia signed for the package, accepted delivery and walked out. According to Gennarelli, Mr. Mejia did not inspect the package while he was in the office or indicate in any way that the package was unexpected. According to Detective Skinner, who was watching from the reception area of the Airborne office, once back in the car, Mr. Mejia handed the package to his wife, who immediately opened it.
About ten minutes later, Sergeant McNicholas, Detective Skinner, and several other NYPD officers pulled Mr. Mejia's car over to the side of the road in order to effect the arrest. The police defendants deny displaying their weapons during the arrest. When Detective Skinner approached the car, he observed that Mrs. Mejia had the three portfolios on her lap. After removing her from the car, Detective Skinner examined the portfolios and discovered that one of them had been ripped open, and a white powdery substance was visible.*fn3
In addition, Sergeant McNicholas states that, while at the arrest scene, Mr. Mejia spontaneously asked him: "What is this for, the drugs?"
For her part, S/A Tipton states that she did not actively participate in the arrest. However, while driving back to her office, she noticed activity on the side of the road and recognized the detectives.*fn4 S/A Tipton then pulled over, got out of her car, and spoke to Sergeant McNicholas. S/A Tipton states that she had no contact with the Mejias during the arrest.

At some point during the arrest, Mrs. Mejia told Sergeant McNicholas that similar portfolios had been delivered to her and her husband's auto garage the previous day.*fn5 With Mrs. Mejia's consent, Sergeant McNicholas, Detective Skinner, and one Detective Fox then went to the garage, entered the Mejias' office, and seized similar books whose front and back covers had been torn.

The books seized from the Mejias' office had been mailed in a package that bore the same address as the intercepted package, including the misspelling of Hillside Avenue ("Hilleide"). In addition, the package had almost the same return address ("Kr 38 no. 8-06, tel. 2686524, Santa Fe de Bogota, Colombia") as the intercepted package. On the package recovered from the office, the sender identified itself as "INDUNALTEX," the same name emblazoned on the cover of the books seized by Customs agents. No cocaine was detected in the portfolios recovered from the Mejias' office.
Detective Skinner states that later at the precinct house, in the course of taking pedigree information from Mr. Mejia, Mr. Mejia told him: "My wife doesn't know anything about this."

The police defendants deny making any disparaging remarks about Colombians during the arrest or threatening that Mrs. Mejia would lose her children if she went to jail.


The Mejias tell a very different story about the events leading up to their arrest and prosecution. In essence, the Mejias allege that they knew nothing about the package from Colombia and that Airborne representatives (or government agents masquerading as Airborne representatives) coaxed and cajoled them into claiming the package under the pretense that the package was a Christmas gift from Venezuela.
Specifically, Mr. Mejia denies that he placed a call to Airborne inquiring about the package. Mr. Mejia testified in deposition that one of his employees, Charlie Diego ("Diego"), received a telephone call on November 22, 1993, from an unidentified individual who asked who owned the business. Diego told the caller the owner was named Luis. The caller also allegedly asked whether the owner was Colombian and whether everyone who worked at the garage was Spanish.
Thereafter, Mr. Mejia states that he received four unsolicited phone calls from Airborne in which one or possibly two purported Airborne agents beseeched him to come to the Airborne facility and pick up the package. The first alleged call took place early on the morning of November 29, 1993. The first caller*fn6 asked him if he was "Luis" and told him that Airborne had a package for him. Mr. Mejia then stated: "Okay, why don't you deliver it." The caller responded that Airborne could not deliver the package because it was a personal package and that he would have to come and sign for it: "You have to come personally to pick up the package because it is addressed to you." Mr. Mejia then stated that he could not pick up the package that day because he was too busy. Mr. Mejia asked whether Airborne could just deliver the package for an extra charge, which he would pay. The caller answered that he could not do so, again, because the package was personal. At that point, Mr. Mejia asked where the package was from, to which the caller responded: "Caracas, Venezuela." Mr. Mejia then had a conversation off the phone, in which he asked his wife whether she was expecting a package from Venezuela. When his wife answered no, Mr. Mejia "went back to the phone and told the man and said, `Are you sure it is coming from Venezuela?'" The caller answered yes. Mr. Mejia then asked the caller to describe the package. After a number of questions along that line, the caller said:
"Look, this package, it was supposed — this package is supposed to be picked up few days going on, if you're not picking up the package, we are going to send it back and I'm going to get into trouble, because this package, I suppose [sic] to send it out and I forgot to send it out. . . . So please come and pick it up. . . . [sic] Put it away for you and you just come and take out this package."
Mr. Mejia then asked: "But where [sic] is the package?" The caller replied: "Looks like a Christmas present." Mr. Mejia again advised the caller: "Bring it to me and I will pay." The caller again stated that he could not do so because the package was already two days late and gave Mr. Mejia "a whole story about the package. Came through Miami also, the whole story." The caller added that the package would be sent back to Venezuela if he did not pick it up and again emphasized that it was a Christmas present.
Finally, Mr. Mejia stated that he "might pick it up later on," and asked for directions. At that point, Mr. Mejia and the caller had a conversation about the best route to take. The conversation ended with Mr. Mejia telling the caller that he would pick up the package, "[p]erhaps . . . today, I don't guarantee that."
Mr. Mejia testified that the call lasted over twenty to twenty-five minutes; later, he stated that it was probably even longer, between half an hour and forty-five minutes. At no time during the call, however, did the caller use his last name, Mejia.
The second alleged conversation occurred later on the afternoon of the 29th, around 2:30 p.m. or 3:00 p.m., when an unidentified, purported Airborne representative told Mr. Mejia: "We're waiting." Mr. Mejia replied: "I'm sorry, I forgot about it but I definitely [sic] pick it up tomorrow." Mr. Mejia then hung up. Mr. Mejia believes the individual who made the second call was not the first caller.
Two more calls were allegedly made on November 30, 1993. The first came at about 9:30 or 10:00 a.m. Mr. Mejia believes this caller was the first caller from the day before. This caller asked: "Yes, what happened, you coming today?" Mr. Mejia responded: "I don't know. I think I will not be able to. Why don't you call me back later." With that, Mr. Mejia hung up.
The fourth call came that afternoon, at about 1:30 p.m. or 2:00 p.m. This caller, apparently the same one who had made the first and third calls, said: "Luis, you going to do me a favor or not, you picking up this package?" Mr. Mejia then states that he finally decided to go pick up the package because the caller convinced him it might be a Christmas present for his daughter.*fn7 Mr. Mejia asked the caller how he knew it was present. The caller explained that he had jiggled the box and heard bells inside.*fn8 Mr. Mejia then made additional inquiries regarding the description of the package. The caller ended by suggesting that he hurry over because the office was closing early.
Ultimately, Mr. Mejia relented and decided to pick up the package. According to Mr. Mejia, the only reason he did so was because his wife wanted to pick up some fresh chickens at a store that the last Airborne caller indicated was near the Airborne office.*fn9 So, he and his wife left the garage for the Airborne office. Along the way, they got lost, and Mr. Mejia called for directions. A woman answered the phone and said: "Luis?" Mr. Mejia said "yes," and the woman gave him additional directions.

When he and his wife arrived at the Airborne facility, Mr. Mejia was met by S/A Tipton, who was wearing an Airborne uniform.*fn10 Mr. Mejia then signed for the package, and S/A Tipton released it to him.

Once he took possession of the package, Mr. Mejia went back to his car, opened up the package and took out one of the books. When he discovered it contained nothing but textile samples, Mr. Mejia decided it was "junk mail," threw the entire contents of the package into the back of his car, and drove off. According to Mrs. Mejia, she never touched the package or the enclosed books, and her husband did not rip open the bindings of any of the portfolios while they were in the car.
When asked at deposition why he did not return the package to Airborne, Mr. Mejia stated that he thought it might be for one of his employees, Javier Acevedo ("Acevedo"), who was allegedly from Medellin, Colombia. Mr. Mejia stated that Acevedo had been going through the mail at the garage and had been inquiring about a package from Colombia beginning about three weeks before the Mejias' arrests. The Mejias testified that, at the time of the arrests, another one of their employees and a roommate of Acevedo, Byron Benitez, was in Colombia. According to Mr. Mejia, Acevedo disappeared immediately after his and his wife's arrest.*fn11 Mr. Mejia, however, conceded in deposition that he "couldn't accuse [Javier]."
At any rate, about ten minutes after the Mejias left the Airborne facility, their car was stopped by police. A number of police officers approached the car with their guns drawn. Sergeant McNicholas banged on the car window with his gun. The Mejias were taken out of the car, and the police demanded that they produce the "drugs." In particular, Sergeant McNicholas said: "Where are the F drugs, you F Colombians, you are all the F same thing." The Mejias state that they did not know what the police officers were talking about. In addition, Mr. Mejia states that during the arrest, Detective Fox, who is not a defendant in this action, held a gun to his head and repeatedly said that he was going to "blow up [Mr. Mejia's] F head" if Mr. Mejia moved or looked around.
Sergeant McNicholas then frisked Mrs. Mejia, "kind of quick, rough, sort of thing," as she put it, though Mrs. Mejia acknowledged that she did not feel any pain or suffer injury as a result. Someone also asked Mrs. Mejia: "Bitch, tell me who this package was for." At some point, Sergeant McNicholas remarked: "Colombians, drug dealers from Columbia." In response, Mr. Mejia insisted that his wife knew nothing about any drugs, but the police officers, including Sergeant McNicholas, kept "picking on" her.

S/A Tipton was also on the scene.*fn12 S/A Tipton did not say anything to the Mejias during the arrest, other than to ask Mrs. Mejia whether she had children.*fn13 S/A Tipton did speak with Sergeant McNicholas at some point, after which he went to the back of the car and took the books from the backseat.

Mrs. Mejia then indicated to Sergeant McNicholas that similar textile books had been delivered to her and her husband's office on the previous day, November 29th.*fn14 As a result, Sergeant McNicholas, Detective Skinner, and Detective Fox took Mrs. Mejia back to the garage, where they seized the other books without advising her that she did not have to give her consent to the search.

The Mejias do not know whether the books were intact when the police seized them. The Mejias stated in deposition that they had opened the package containing the portfolios, but did not recognize what they were and so just left them sitting on top of a box in the garage's office.*fn15 The Mejias deny ripping the covers of any of the portfolios open. Mr. Mejia, however, did not inspect the covers of the portfolios before he left for the Airborne office on November 30th; nor did Mrs. Mejia have an opportunity to do so when the police seized them from the office. Both of the Mejias testified that the door to the office was unlocked when they left to pick up the package.
After the search of the office, the police then took the Mejias to the 105th precinct. At the precinct, Mrs. Mejia, who was three months pregnant at the time, was told that she was "going to have the baby in jail, you're only going to have the baby for a year, and then the state is going to have the baby."*fn16 Sergeant McNicholas, specifically, told her: "You don't want to spend 7 to 15 years in jail. You wouldn't have your baby in jail." On Sergeant McNicholas's order, Mrs. Mejia was strip searched.
The only two officers, however, that the Mejias could identify as using abusive language were Sergeant McNicholas and Detective Fox. Neither of the Mejias allege that Detective Skinner engaged in any derogatory language. Indeed, Mr. Mejia stated that his only contact with Detective Skinner was at the scene of the arrest when Detective Skinner announced that he was the arresting officer. For her part, Mrs. Mejia stated that Detective Skinner did not say anything at all to her during the arrest.


To explain why they might have thought that someone in Venezuela was sending them a Christmas present, the Mejias testified in deposition that about six months before their arrest, their former nanny, Nelly Betancour, had moved to Venezuela. There is no evidence that any of the defendants knew about the nanny, and, thus, there is no explanation of why the purported Airborne agents would have chosen to say that the package was from Venezuela as opposed to any other country besides Columbia.

Nonetheless, Mr. Mejia's account of the four telephone calls in which he was told the package was from Venezuela is corroborated by two salient pieces of physical evidence. The first is the Airborne airbill that was attached to the package when he picked it up from the Airborne office. Unlike the IBC airbill attached to the original packaging, which indicated the sender's address to be in Bogota, Columbia, the new Airborne airbill listed the sender's address simply as "Caracas."*fn17 None of the defendants claim responsibility for creating the Caracas airbill.*fn18
The second piece of evidence is the Airborne box into which Detective Skinner placed the original package before the pickup. The exterior of the box carries a routing slip which indicates various airport codes. Pertinently, the section marked "ORIGIN" bears the notation "CAR," which appears to be an attempted reference to Caracas.*fn19

Although Gennarelli initially denied playing any role in the repackaging of the shipment other than bringing Detective Skinner a box and some tape and stated that he was not even in the room at the time, he admitted later in his deposition that he filled out the entire routing slip, including the designation of CAR as the origin.*fn20 When asked what "CAR" stands for, Gennarelli replied: "Just initials." Gennarelli further stated that he did not remember who, if anyone, told him to put CAR on the package, and did not know what it meant.*fn21 Although Gennarelli admitted that S/A Tipton told him to put a particular airbill number on the routing slip, he denied that S/A Tipton or anyone else had told him that the package originated in Caracas. Gennarelli further denied that anyone had instructed him to tell Mr. Mejia that the package was from Caracas. Notably, S/A Tipton and Detective Skinner were together in the room where the shipment was being repackaging throughout the time it was being repackaged, and Sergeant McNicholas entered the room when Detective Skinner was finishing taping the box.

Finally, two aspects of Mr. Mejia's account of the four calls and their content are corroborated by testimony of certain of the defendants. First, whereas Gennarelli does not recount having to give "Luis" any reasons why he had to come to Airborne to pick up the package and testified that "Luis" readily agreed to do so, S/A Tipton's notes indicate that Gennarelli had given "Luis" "several reasons [why it] could not be delivered," though she could not recall what those "several reasons were."
Second, Mr. Mejia's account that he received more than one telephone call from a purported Airborne agent is corroborated by Detective Skinner's deposition testimony. Although defendants have represented in their motion papers that the only call placed to Mr. Mejia was Gennarelli's call on November 29th, Detective Skinner testified that on November 30th, after finishing the repackaging of the portfolios, "[w]e sat around, conversated [sic], eventually, I believe, someone, I don't know who it was, I don't remember who it was, said `I'm going to attempt to call this person again.'" Detective Skinner stated that Mr. Mejia arrived a "short time later." Based on Detective Skinner's daily activity report, which puts the time of Mr. Mejia's arrival at 2:45 p.m., this unidentified individual's call appears to coincide with Mr. Mejia's estimate that he received a fourth call from a purported Airborne agent at around 1:30 p.m. to 2:00 p.m. on the 30th.


The events subsequent to the arrest are not in dispute. After the arrest, Detective Skinner swore out an arrest affidavit charging the Mejias with Criminial Possession of a Controlled Substance in the First Degree, in violation of New York Penal Law § 220.21. Mrs. Mejia was released on bail the next day, and Mr. Mejia was released on bail three days later.

Thereafter, state grand juries were convened.*fn22 Mrs. Mejia was not indicted, but Mr. Mejia was. Mr. Mejia was tried in the New York Supreme Court for Queens County, and was acquitted on March 20, 1995.*fn23

On March 18, 1996, the Mejias served a notice of claim on the City, alleging false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress ("IIED").

On June 17, 1996, the Mejias commenced this action, asserting: (1) causes of action under § 1983 against S/A Tipton, Sergeant McNicholas, Detective Skinner, and Airborne, for false arrest, excessive force, and malicious prosecution; (2) state law causes of action for false arrest, false imprisonment, and IIED, against Sergeant McNicholas, Detective Skinner, and the City; and (3) state law causes of action for malicious prosecution and IIED against Airborne.
Each of the defendants, except for the City, now moves for summary judgment on the grounds that probable cause existed for the arrest and prosecution, and, in the alternative, that they are entitled to qualified immunity. The City moves on the grounds that it cannot be held vicariously liable under § 1983 for its officers' actions and that the Mejias' notice of claim and complaint were untimely.


Certain basic principles of law apply equally to each of the defendants and will, therefore, be reviewed at the outset. Separate analyses of the application of these principles to each of the defendants will follow.

(1) Applicable Law

A. False Arrest under § 1983 and New York Law

Under New York law, false arrest is considered to be a species of false imprisonment, and the two claims have identical elements. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (citing Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93 (1975)).*fn24 Moreover, a "§ 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 845, 852 (2d Cir. 1996). Therefore, the elements of a cause of action for false arrest under both 42 U.S.C. § 1983 and New York law are: "`(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.'" Singer, 63 F.3d at 118 (quoting Broughton, 37 N.Y.2d at 456, 373 N.Y.S.2d at 93.
Where, as here, an arrest is made without a warrant, the existence of probable cause is an affirmative defense that must proved by the defendant. See Broughton, 37 N.Y.2d at 458, 373 N YS.2d at 95; 335 N.E.2d 310; see also Weyant, 101 F.3d at 852 (holding that "existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest' (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994))). Probable cause, or reasonable cause as it is known in New York law, "exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person about to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852 (citations omitted); see Raysor v. Port Auth. of N.Y. & N.J., 768 F.2d 34, 39-40 (2d Cir. 1985) (holding that New York law "reasonable cause" standard is equivalent to Fourth Amendment's "probable cause" standard). Since the law seeks to protect citizens against unlawful arrest, the determination of whether probable cause existed must be made on the basis of the information possessed or reasonably available to the defendant at the time of the arrest. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 570 (2d Cir. 1996). It is, therefore, axiomatic that subsequently discovered evidence cannot be used to cure an arrest that was made without probable cause. Cf. People v. Gomcin, 265 A.D.2d 493, 495, 697 N.Y.S.2d 93, 95 (2d Dep't 1999) (search incident to arrest) ("[I]t is beyond cavil that the fruit of a search incident to an arrest cannot be used to establish probable cause to arrest."); cf. also Johnson v. United States, 333 U.S. 10, 16-17, 68 S.Ct. 367, 370 (1948) (holding that reasoning which would "justify the arrest by the search and at the same time justify the search by the arrest . . . will not do").*fn25

B. Malicious Prosecution under § 1983 and New York Law

To establish a claim for malicious prosecution under New York law, a plaintiff must show: "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice." Broughton, 37 N.Y.2d at 457, 373 N.Y.S.2d at 94 (citation omitted). On a motion for summary judgment, malice may be inferred from evidence showing a lack of probable cause. See Rounseville v. Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (citing Maxwell v. City of New York, 156 A.D.2d 28, 34-35, 554 N.Y.S.2d 502, 505-06 (1st Dep't 1990)).
In order to establish a claim for malicious prosecution under § 1983, a plaintiff must show: (1) that elements of the common law tort of malicious prosecution are satisfied; and (2) that the malicious prosecution led to a deprivation of liberty sufficient to constitute a "seizure" within the meaning of the Fourth Amendment, or must otherwise establish that the malicious prosecution violated a right, privilege, or immunity secured by the Constitution and laws of the United States. See 42 U.S.C. § 1983; Singer, 63 F.3d at 116 & n. 5.*fn26
The probable cause determination relevant to a malicious prosecution claim differs from that relevant to a false arrest claim, and the two determinations play different roles in the two causes of action. First, in a malicious prosecution action, the relevant probable cause determination is whether there was probable cause to believe the criminal proceeding could succeed and, hence, should be commenced. See Posr v. Court Officer Shield # 207, 180 F.3d 409, 417 (2d Cir. 1999). This determination is distinct from the question of whether there was probable cause for the arrest, though a lack of probable cause to believe the plaintiff committed the crime in question necessarily entails a lack of probable cause to commence a proceeding against him or her. See id.
Second, in a malicious prosecution action, the lack of probable cause is an element of the tort that must be pled and proved by the plaintiff. See Broughton, 37 N.Y.2d at 457, 373 N YS.2d at 94.
Finally, the existence, or lack, of probable cause is measured at a different point in time in a malicious prosecution action than a false arrest action, where the prosecution follows a warrantless arrest. This is because a warrantless arrest is an extrajudicial proceeding. See id. at 458, 373 N.Y.S.2d at 94. In such cases, the judicial proceeding is not deemed to have been commenced until the plaintiff's arraignment or an indictment by a grand jury. See id. at 457, 373 N.Y.S.2d at 94. Accordingly, the existence, or lack, of probable cause is measured as of the time the judicial proceeding is commenced (e.g., the time of the arraignment), not the time of the preceding warrantless arrest. See 59 N.Y. Jur. 2d False Imprisonment & Malicious Prosecution § 73 (1987) ("Whether probable cause existed depends upon whether a reasonably prudent person would have believed the plaintiff guilty of the crime charged on the basis of the facts known to the defendant at the time the prosecution was initiated or which he then reasonably believed to be true." (emphasis added)). Thus, information discovered by a malicious prosecution defendant after the arrest, but before the commencement of proceedings, is relevant to the determination of probable cause in cases where the prosecution follows a warrantless arrest.

This distinction between the time at which probable cause is measured in a false arrest action and in a malicious prosecution action takes on some significance in this case, because several pieces of (at least potentially) inculpatory evidence were discovered between the Mejias' arrest and the commencement of judicial proceedings against them, viz., the three similar portfolios seized from their office.*fn27

C. Qualified Immunity

Even where probable cause is lacking, a law enforcement officer in a § 1983 action for false arrest or malicious prosecution may, under the doctrine of qualified immunity, affirmatively defend on the ground that it was "objectively reasonable" for an officer in his or her position to believe that probable cause existed. Weyant, 101 F.3d at 857-58 (citing Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39 (1987)). The objective reasonableness of an officer's belief that probable cause existed turns on "whether a reasonable officer could have believed that [his actions were] lawful, in light of clearly established law and the information the . . . officer[] possessed" at the relevant time. Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. The relevant time for the purposes of a false arrest action is the time of the arrest; and the relevant time for purposes of a malicious prosecution action is the time that the criminal proceeding was commenced. The purpose of the qualified immunity doctrine in this context is to protect law enforcement officials from liability for reasonable errors of judgment. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986) (stating that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law").

With these principles in mind, an examination of plaintiffs' various claims against each particular defendant may begin.

(2) City of New York

A. Any implicit § 1983 respondeat superior claims plaintiffs may be making must be dismissed.
Plaintiffs' complaint does not expressly assert any § 1983 claims against the City. (See Compl. ¶ 25.) Nonetheless, the City has moved for summary judgment on the issue, and to the extent plaintiffs are implicitly making a § 1983 claim against it, the issue will be addressed and decided.
As the City notes, in Monell v. Department of Social Services, the Supreme Court held that a municipality cannot be held vicariously liable under § 1983 for constitutional torts committed by its employees. See 436 U.S. 658, 694, 98 S.Ct. 2018, 2037 (1978). Instead, a municipality can only be held liable if the constitutional violation of which a plaintiff complains resulted from an official custom, policy, practice, or usage of the municipality. See id. at 690-91, 98 S.Ct. at 2035-36. Plaintiffs have produced no evidence that any of the alleged constitutional violations committed in the course of their arrest and prosecution stemmed from any policy, practice or custom of the City. Accordingly, the City's motion for summary judgment on plaintiffs' § 1983 claims against it, if any, is granted.
B. Plaintiffs' state law respondeat superior claims must be dismissed.
The City correctly argues that plaintiffs' state law respondeat superior claims against it must be dismissed for failure to comply with a condition precedent. In cases where a plaintiff seeks to sue a municipality for torts arising out of the conduct of police officers in the course of their employment with the municipality, New York General Municipal Law §§ 50-e and 50-i require that a plaintiff file a notice of claim within ninety days after the accrual of the causes of action on which the claim is based. Here, plaintiffs did not file a notice of claim against the City until March 18, 1996, which is more than ninety days after the accrual of the last-accruing cause of action they have pled (viz., March 20, 1995, the date on which Mr. Mejia's malicious prosecution claim accrued as a result ...

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