The opinion of the court was delivered by: Trager, J.
Plaintiff Delco Cornett ("Cornett") has sued the City of New York ("the City") and numerous individuals*fn1 pursuant to 42 U.S.C. § 1983 and laws of the State of New York alleging claims of false arrest, malicious prosecution, conspiracy, abuse of process, seizure of property, and mental anguish that he allegedly suffered in connection with three "false arrests." Plaintiff brought another suit arising from the same nucleus of facts under Docket No. 02-CV-2493. That case ended in dismissal of plaintiff's claims against Brown, Kerik and the City. Accordingly, plaintiff's claims against those defendants are dismissed from this case as well, under principles of res judicata. The remaining individual defendants in that case were never served, and the claims against them were dismissed without prejudice.
In this case, the ten individual defendants who were served - Vorbeck, Jamison, Linden, Erdman, Kaifler, Miller, Warren, Lowe, Santiago, White - and the City move for summary judgment on the grounds that the first alleged false arrest was not, in fact, an arrest, and that the police had probable cause for the second and third arrests. In the instant complaint, although plaintiff has named Inspector Jamison and Captain Vorbeck in the caption, he has listed no claims against them. Accordingly, the complaint should be dismissed as to these two defendants.
The following facts are undisputed and are taken from the parties' submissions on summary judgment, unless otherwise noted. Defendants take the bulk of their factual allegations from plaintiff's deposition testimony, which he does not dispute.
Plaintiff was a paralegal for the late Abraham Hirschfeld ("Hirschfeld"), a colorful real estate mogul who, near the end of his life, was convicted of trying to hire a hit man to kill a former business partner. Before starting his job with Hirschfeld, plaintiff apparently had no steady residence and had slept at a variety of locations during the preceding few years. Hirschfeld operated his firm from a four-floor office building he owned, located at 328 East 61st Street, New York, New York ("328"), and plaintiff began sleeping at the office. (Id. ¶ 8; Pl. Tr. Mar. 10, 2005 at 29.) After discovering that plaintiff had been living in his law office, Hirschfeld allowed plaintiff to sleep on the vacant fourth floor of 328 until plaintiff's employment with Hirschfeld ended. (Id.; Pl. Tr. Mar. 10, 2005 at 30.)*fn2
At some point during the summer of 2000, Hirschfeld was incarcerated. (Pl. Tr. March 10, 2005 at 79.) At the time of his incarceration, Hirschfeld owned a co-op apartment in the Jackson Heights neighborhood of Queens, New York. (Defs.' Rule 56.1 Stmt. ¶ 12.) Rather than leave the Jackson Heights apartment unoccupied for a prolonged period of time, Hirschfeld reached an agreement with plaintiff whereby plaintiff would use the apartment as a second residence (in addition to the fourth floor of 328), and his $400 weekly salary would be reduced by $100 per week to serve as plaintiff's rent. (Id.) This agreement, according to plaintiff, was to continue until Hirschfeld's release from prison. (Id.) Plaintiff had a few of his own belongings in the Jackson Heights apartment, including a radio cassette player and a few books. (Id. ¶ 18.) The furnishings in the apartment, including two beds, a sofa bed, a chair, and paintings, belonged to Hirschfeld. (Id. ¶¶ 18, 29.) According to plaintiff, he and Hirschfeld had agreed that plaintiff could keep the property in the apartment, although plaintiff was not required to pay for it. (Id. ¶ 29.)
In September 2000, plaintiff encountered an old acquaintance, Richard Simon, who, unbeknownst to plaintiff, was also known as Richard Anglin. (Id. ¶¶ 14, 15.) Plaintiff had first met Simon in 1997 when a mutual acquaintance provided Simon with plaintiff's name to discuss political campaigns. (Id. ¶ 14.) The two had intermittent contact between 1997 and 2000. (Id.) Upon seeing plaintiff in September 2000, Simon indicated that he did not have a place to live. (Id. ¶ 15.) Plaintiff suggested that Simon could stay at 328 at night. (Id.) No arrangement was made regarding rent at that time. (Pl. Tr. March 10, 2005 at 85.) A week or two later, Simon asked plaintiff if his godson, Erik Gaston, could also stay at the apartment.
(Defs.' Rule 56.1 Stmt. ¶ 15.) Plaintiff agreed. (Id.) Plaintiff subsequently allowed Simon and Gaston to move into the Jackson Heights apartment, and obtained an extra set of keys for Simon to the Jackson Heights apartment from Hirschfeld's office manager, although he did not tell the manager for whom the keys being sought. (Id. ¶ 16-17.) In fact, plaintiff never told Hirschfeld that Simon would be staying at the Jackson Heights apartment. (Id. ¶ 16.)
Simon and Gaston lived at the Jackson Heights apartment for approximately three months without paying rent. (Id. ¶ 17.) Simon and Gaston each had his own bedroom; plaintiff slept on the pull-out sofa when he stayed at the apartment, which was approximately once per week. (Id. ¶ 18.) Plaintiff explained that he did not sleep at the apartment more frequently because he did not like to travel to Queens unnecessarily; he worked at 328, and he could sleep there as well. (Id.; Pl. Tr. March 10, 2005 at 92.) The bills for the Jackson Heights apartment were generally paid by Hirschfeld's office manager, although Gaston had arranged to turn on cable service and had at least the cable bill in his name. (Id. ¶ 19.) Plaintiff neither received nor paid for any bills. (Id.)
In December 2000, plaintiff asked Simon when he expected to move out. (Id. ¶ 17.) Simon asked plaintiff if he could stay longer, and plaintiff agreed, provided that Simon pay $100 per week in rent. (Id.) Simon did pay the $100 per week; there was no written rental agreement between Simon and plaintiff. (Id.) Plaintiff claims that he agreed to let Simon stay at the Jackson Heights apartment until February 28, 2001. (Id. ¶ 21.) Simon and plaintiff allegedly arranged to speak at the Jackson Heights apartment on March 1, 2001. (Pl. Tr. March 10, 2005 at 100.)
On March 1, 2001, plaintiff visited Hirschfeld at a correctional facility and, subsequently, went to the Jackson Heights apartment at about 9:00 p.m. (Defs.' Rule 56.1 Stmt. ¶ 20.) Plaintiff watched television until Simon and Gaston arrived. (Id. ¶ 22.) Simon and Gaston were unable to enter the apartment since plaintiff had bolted the door, and neither man had a key to the bolt. (Id. ¶ 22, Pl. Tr. March 10, 2005 at 102.) Plaintiff let Simon and Gaston into the apartment, at which time Simon indicated to plaintiff that he needed more time at the apartment before he could vacate. (Defs.' Rule 56.1 Stmt. ¶ 22.) Simon allegedly offered plaintiff $500 to allow him to stay at the apartment, but plaintiff replied that it was out of his control since Hirschfeld relinquished ownership of the apartment as of February 28, 2001 as part of a lawsuit settlement. (Id. ¶ 22.) Although plaintiff had told Simon to vacate the apartment, plaintiff himself did not plan to leave, because Hirschfeld had not asked him to move out and plaintiff believed that plaintiff could only be removed by a court order. (Id. ¶ 23.)
Although plaintiff could not recall if Simon asked him to leave the apartment, plaintiff did recall that Simon went to bed but awoke about fifteen minutes later. (Id. ¶ 24.) Simon addressed plaintiff in an animated manner, returned to his bedroom, and called the police at 11:38 p.m. on March 1, 2001.*fn3
(Id.) Simon then left the apartment, apparently to go to the building's hallway and returned to the apartment with two policemen identified as Robert Erdman and John Miller. (Id.) Plaintiff was unable to recall the appearance of either officer. (Id.) While the record is not entirely clear on this point, it seems that Simon told the police that plaintiff had entered his apartment without authorization. (See id. Ex. G.)
Neither plaintiff nor Simon was able to produce a written lease on the night of March 1, 2001, but Simon was able to produce a cable bill in Gaston's name for the Jackson Heights apartment. (Id. ¶ 26.) Simon told the police that plaintiff did not live at the Jackson Heights apartment but rather lived at 328 East 61st Street. (Id.) Plaintiff admitted that he "ha[d] a place at 328" but argued that "[t]here is no law that says you can't have two residences." (Pl. Tr. March 10, 2005 at 119.)
The officers told plaintiff that he had to leave the premises, and one of the officers indicated that plaintiff should resolve the issue in landlord-tenant court. (Id. at 113--14.) Plaintiff took the names of the officers and protested that the actions of the police were illegal. (Id. at 115.) According to plaintiff, one of the officers threatened to arrest him for burglary if he entered the apartment again, so plaintiff left the premises. (Id.) Plaintiff was not forced to leave the premises physically; at no point was he handcuffed, detained, or taken to the police precinct. (Defs.' Rule 56.1 Stmt. ¶ 27.) Plaintiff suffered no physical harm as a result of this incident, although he does claim financial loss as a result of losing the property in the apartment which was allegedly promised to him by Hirschfeld. (Id. ¶ 29.) During discovery, defendants obtained from the Queens County District Attorney's office a copy of an alleged written lease for the apartment which indicates that Simon is the tenant (Id. ¶ 30); the authenticity of this document is adamantly contested by plaintiff, who calls the document "patently forged." (Pl.'s Counter-Statement Pursuant to Local Civil Rule 56.1 ("Pl.'s Rule 56.1 Stmt.") ¶ 30.)
Plaintiff subsequently submitted a complaint against Officers Erdman and Miller on March 11, 2001. The complaint consisted of a one-page letter addressed to Inspector Christopher Jamison of the 115th Precinct. Plaintiff also informed Inspector Jamison of suspected illegal activity by Richard Simon and Eric Gaston by letter dated March 15, 2001. Plaintiff accused Simon and Gaston of operating an unlicensed car service using cars that were missing front license plates and registration stickers. In an earlier complaint filed with this court, plaintiff brought claims against Inspector Jamison and Captain Paul Vorbeck for failing to investigate his accusations against Simon and Gaston. Although plaintiff failed to serve Inspector Jamison and Captain Vorbeck in his earlier complaint, his parallel claims against Queens County District Attorney Richard A. Brown for failure to investigate were dismissed. Cornett v. Brown, No. 02-CV-2493 (E.D.N.Y. Mar. 31, 2004).
Plaintiff was summoned to housing court in Queens on June 26, 2001 to testify in a holdover action against Simon and Gaston which was brought by the co-op board of the Jackson Heights apartment building. (Defs.' Rule 56.1 Stmt. ¶ 31.) Simon and Gaston were also at the courthouse on June 26. (Id.) According to plaintiff, Simon was "very upset," and he was "yelling and screaming." (Pl. Tr. March 10, 2005 at 125.) When plaintiff returned to the courthouse from lunch, he saw Simon on the sidewalk. (Id.) Plaintiff testified that he then saw Simon "dart[ ] back on the [court] plaza." (Id.) Before plaintiff could step onto the plaza, he was approached by two police officers. (Id.) The officers asked plaintiff to identify himself; when he did so, he was told to put his hands behind his back, and he was handcuffed. (Defs.' Rule 56.1 Stmt. ¶ 31.) The attorney for the co-op told plaintiff that he had seen Simon talking to the officers before they arrested plaintiff. (Id.) Plaintiff was taken to the precinct and was released hours later with a ticket/summons charging him with second degree criminal trespass and indicating that he should report to court on a future date (August 1, 2001, to the best of plaintiff's recollection). (Id. ¶ 34; Pl. Tr. March 10, 2005 at 137.)
Records from the New York City police department reflect that on March 23, 2001, Simon had filed a complaint under the name Richard Anglin with the 115th Police Precinct in regard to the March 1, 2001 incident. (Id. ¶ 33.) The arrest worksheet for plaintiff references the March 23 complaint, and further indicates that plaintiff was charged with Second Degree Criminal Trespass for the March 1 incident. (Id. ¶ 35; Defs.' Rule 56.1 Stmt. Ex. H.) Plaintiff also came to discover that the police had a copy of an alleged lease which indicated that Simon was the tenant at the Jackson Heights apartment. (Pl. Tr. March 10, 2005 at 140.) Plaintiff returned to court as required by the ticket/summons on August 1, 2001, where he was arraigned and released on his own recognizance and condition that he sign an Order of Protection. (Defs.' Rule 56.1 Stmt. ¶ 37.) The Order of Protection required that plaintiff "[r]efrain from assault, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or otherwise interfering with . . . Richard Anglin," but because plaintiff knew that individual only by the name Richard Simon, he claims that he did not know whom was being protected by the order. (Id.) Plaintiff later learned that Richard Simon had aliases, one of which was Richard Anglin. (Id.) The case resulting from plaintiff's June 26 arrest was later dismissed due to the 30.30 speedy trial requirement.*fn4 (Id. ¶ 37, Ex. J.) Plaintiff is claiming no physical injuries as a result of the June 26 incident. (Id. ¶ 38.)
On August 16, 2001, plaintiff was again summoned to court by the co-op to testify against Simon and again saw Simon at the courthouse. (Id. ¶ 39; Compl. ¶ 37.) Plaintiff claims that he did not speak to Simon. (Defs.' Rule 56.1 Stmt. ¶ 39.) After lunch, plaintiff returned to the courthouse, where he saw two police officers. (Id. ¶ 40.) Neither of these officers was involved in either the March 1 or the June 26 incident. Plaintiff approached the officers, who asked plaintiff his name. (Id.) After identifying himself, the officers said that plaintiff would have to accompany them, indicating that "he" (presumably Simon) had a written order of protection. (Id.) Plaintiff was handcuffed and taken to the police station. (Id.)
According to an affidavit by one of the arresting officers, Wayne Kaifler, and the arrest worksheet relating to the August 16, 2001 incident, Simon (referred to in those documents as both Angin and Anglin) told the officers that he had an open case against plaintiff and that at approximately 1:10 p.m., plaintiff said to Simon, in sum and substance: "I don't want you cooperating with the District Attorney people. I don't want you to show up. If the case continues, you are going to get hurt, hurt real bad." (Id. ¶ 41, Ex. K.)
Plaintiff was taken from the precinct to the Queens House of Detention. (Id. ¶ 42.) Plaintiff had been arrested at or about 2:00 p.m. and saw a judge at or about 12:00 a.m. that night. The judge set bail at $1,500. (Id.) Plaintiff was taken back to the Queens House of Detention and was released after approximately five days when Hirschfeld paid the $1,500 bail. (Id.) According to plaintiff, the case was brought before the Grand Jury which voted no true bill. (Id.) Plaintiff is claiming no physical injuries due to the August 16 incident. (Id. ¶ 43.)
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (FED. R. CIV. P. 56(C)). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). For these purposes, a fact is considered material if "it 'might affect the outcome of the suit under the governing law.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248). If the evidence is "merely colorable, or is not significantly probative," then the court must grant summary judgment. Anderson, 477 U.S. at 249--50.
The party making the motion for summary judgment has the burden of proving that there is no genuine issue of material fact. See Jeffries v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). Moreover, "a court must construe the evidence in the light most favorable to ...