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September 16, 2005.

THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Plaintiff William Gonzalez ("Gonzalez") brings this action pursuant to 42 U.S.C. § 1983 ("§ 1983"), as well the common law of New York. Gonzalez alleges, inter alia, that the City of New York ("City"), John D'Alessandro ("D' Alessandro"), Gustavo Blain ("Blain"), Richard Salonia ("Salonia"), Matthew Fallon ("Fallon") and Bernard Rosado ("Rosado") falsely arrested and maliciously prosecuted him, thereby depriving him of rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States.

  Before the Court is the application of the City, D'Alessandro and Blain (collectively, "defendants"), pursuant to Fed.R.Civ.P. 56, for summary judgment. Gonzalez opposes the application with respect to D'Alessandro but does not oppose the application with respect to the other defendants. For the reasons set forth below, I recommend that the defendants' application be granted. II. BACKGROUND

  On April 15, 1999, at about 7:00 p.m., Inoa Casilda ("Casilda"), was robbed at knifepoint in her apartment building elevator, as she returned from work. Casilda's assailant threatened to kill her and took her money and jewelry. Before the perpetrator escaped, another resident of the building, Angela Rijo ("Rijo"), entered the elevator and rode several floors with Casilda and her assailant. Rijo was unaware that a crime had just occurred. The three took the elevator to the basement, where Rijo exited. Casilda and her assailant returned to the main floor, where the assailant made his escape. Shortly thereafter, Casilda reported the crime to the police and provided them with a physical description of the robber.

  The building in which the crime occurred was equipped with four surveillance cameras. Each of these cameras was connected to a video recorder located in the building superintendent's office, that was located in the basement of the building. The cameras recorded, in condensed format of about one frame per second, days of surveillance onto a single videotape. Defendant Blaine, a New York City police officer, obtained the video recordings from the surveillance cameras within an hour of the robbery. He gave those recordings to the detective assigned to the case, defendant D'Alessandro. D'Alessandro went to the Video Production Unit of the New York County District Attorney's office to isolate still photographs from the videotape. As a result, he obtained at least three low-quality photographs depicting the face of the robber.

  On April 22, 1999, police officers showed Casilda a number of photograph arrays on a computerized "Force Field" system*fn1 at the 34th Precinct. Casilda viewed 570 photographs of individuals matching her description of her assailant. The photographs were displayed to Casilda on 95 pages, each of which contained six photographs. During this procedure, Casilda selected at least one of two photos of Gonzalez depicted on the same page, stating that she was "90% sure" that he was her assailant. According to D'Alessandro's deposition testimony, Casilda identified both photographs as depictions of her assailant. See Declaration of Rachel A. Seligman ("Seligman Declaration"), Exh. C, at 63.*fn2 On the strength of this identification, D'Alessandro issued a wanted card for the plaintiff. Thereafter, Gonzalez was arrested on May 27, 1999. Later that day, the police placed Gonzalez in a line-up. Casilda viewed the line-up and identified Gonzalez as her assailant.

  Gonzalez was arraigned in New York County Criminal Court on May 28, 1999, and held in lieu of $10,000 bail. Assistant District Attorney Melissa Bristol-Paolella ("ADA Bristol-Paolella") presented the case to a grand jury on June 1, 1999, which indicted Gonzalez for robbery in the first degree (New York Penal Law § 160.15[3]) and criminal possession of a weapon in the fourth degree (New York Penal Law § 265.01[2]). On June 16, 1999, Gonzalez was arraigned on the indictment. Gonzalez was unable to meet the bail conditions fixed for him, and spent approximately the next seven months incarcerated on Riker's Island.

  At the arraignment, the attorney representing Gonzalez in the criminal action ("criminal defense counsel"), having learned of the existence of the surveillance videotape, made the first of several demands for a copy of the tape. On October 21, 1999, criminal defense counsel received from ADA Bristol-Paolella the still photographs derived from the videotape and, on November 4, 1999, a copy of the tape itself.

  After two previous adjournments of the trial date — on which occasions the prosecution was unable to proceed due to the unavailability of the arresting officer — on November 5, 1999, the prosecution indicated that it was ready to proceed with the trial of the criminal action. However, at that time, Casilda indicated that she would be leaving the following week to visit her grandmother in Puerto Rico and would not return until November 25, 1999. As a consequence, the trial was adjourned to November 29, 1999, on the assumption that, by then, Casilda would have returned from her trip.

  Casilda did not return to New York by that date, and the prosecutor was unable to contact her. While the prosecution attempted to locate Casilda, the trial court reduced Gonzalez's bail and, subsequently, on December 14, 1999, released him on his own recognizance. On May 10, 2000, ADA Bristol-Paolella made a written recommendation to the court that the indictment be dismissed. In that document, the prosecutor concluded that since the only witness to the commission of the crime could not be located, the prosecution could not prove its case beyond a reasonable doubt. On May 17, 2000, the trial court dismissed the indictment.

  Thereafter, Gonzalez commenced the instant action. He alleges that he experienced pain and suffering as a result of: (a) his detention for approximately seven months; and (b) the state's year-long prosecution. Gonzalez contends that, had he been convicted, it would have resulted in a prison sentence of between 5 and 25 years. Gonzalez maintains, inter alia, that D'Alessandro violated his Fourth Amendment right to be free from unreasonable searches and seizures and his Fourteenth Amendment due process right to liberty, when he arrested Gonzalez without probable cause. Gonzalez also claims that D'Alessandro maliciously prosecuted him by withholding intentionally from ADA Bristol-Paolella exculpatory evidence, namely, the surveillance tape.

  In support of their application for summary judgment, the defendants have submitted, inter alia: (1) still photographs of Casilda's assailant, isolated from the surveillance videotape; (2) the page of photographs produced by the Force Field system that contained photographs of Gonzalez; and (3) still photographs of the individuals who were placed in the corporeal line-up at which Casilda identified Gonzalez as the robber. The defendants contend, inter alia, that: (a) all of Gonzalez' common law claims are barred, because he did not file a notice of claim timely; (b) Gonzalez has not stated a claim against the City upon which relief may be granted, since he has not alleged that any policy of the City was responsible for the alleged deprivations of his rights; (c) Gonzalez cannot show that the criminal action was terminated in his favor; (d) the doctrine of collateral estoppel bars Gonzalez from challenging the existence of probable cause to arrest him; (e) Gonzalez has not adduced evidence that would support all the elements of his claims against D'Alessandro; and (f) D'Alessandro is entitled to qualified immunity. The defendants also contend that certain defendants, other than D'Alessandro, were not served with the summons and complaint. Accordingly, the defendants request that the action be dismissed in its entirety.

  As noted above, Gonzalez does not oppose the defendants' application, except with respect to the § 1983 claims against D'Alessandro for false arrest and malicious prosecution. Consequently, no claims, other than the § 1983 claims against D'Alessandro will be analyzed in this writing. In opposition to those branches of the defendants' motion pertinent to D'Alessandro, Gonzalez has submitted, inter alia: (1) a copy of the videotaped recording of the robbery obtained from the surveillance camera; (2) ...

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