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Marin v. City of New York

August 1, 2006


The opinion of the court was delivered by: Gershon, United States District Judge


Plaintiff Edgar Marin brings this suit against the City of New York and New York City Police Department Detective Walter Lynch, seeking damages for the violation of his civil rights under 42 U.S.C. § 1983 ("Section 1983") and New York law. Marin claims his Fourth Amendment rights were violated on October 15, 2003, when Detective Lynch arrested him for forgery and grand larceny. The City and Detective Lynch now move for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Because the evidence, viewed in the light most favorable to Marin, is insufficient for a reasonable jury to find for him on his false arrest and excessive use of force claims, defendants' motion for summary judgment as to those claims is granted. All of Marin's federal claims having been dismissed, I decline to exercise supplemental jurisdiction over Marin's remaining state law claims and dismiss them without prejudice.


The following facts are undisputed unless otherwise noted.

During 1998 and 1999, Marin worked as a customer service agent at John F. Kennedy International Airport. One evening, a flight arrived from South America and Marin was approached by a Brazilian woman who identified herself as Daniella Cuhna. Ms. Cuhna and Marin became friends, and she introduced him to her father, Pedro Cuhna. In the following years, Pedro Cuhna and Marin stayed in touch via telephone. They discussed doing business together in Brazil and occasionally had lunch when Mr. Cuhna and his wife visited New York.

During a telephone conversation in June or July 2003, Pedro Cuhna introduced Marin to a woman who identified herself as Thereza Pereira. Pereira told Marin she had worked in New York for many years, but needed help transferring money from her Merrill Lynch Cash Management Account, which was based in the United States, to Brazil. Marin, who by now was working as an insurance agent at New York Life, agreed to help. Pereira and Marin discussed the transaction in several other calls, but Marin never signed a written agreement with Pereira, asked her for her address, or discovered how she knew Pedro Cuhna. Marin Depo. 153--56.

Unknown to Marin, the real Thereza Pereira was diagnosed with Alzheimer's disease in the year 2000, and was incapacitated by 2003.*fn1 On January 27, 2003, Pereira's nephew, Mario Fihlo, was appointed her provisional administrator by the Court of Orphans and Successions in Rio de Janiero. See Affidavits of Mario Fihlo and Lucia Maria de Carvalho Pereira. Fihlo was appointed Pereira's permanent administrator on August 13, 2003. According to Filho, Pereira had no legal authority under Brazilian law to grant anyone a Power of Attorney after January 27, 2003.

Also unknown to Marin was that the checks for Pereira's Merrill Lynch account were stolen in March 2003.*fn2 After the theft, Merrill Lynch assigned Pereira's account a new number, and cancelled the checks and debit cards associated with it. In addition, Filho requested that no transactions on the account be allowed without his express permission.

In July 2003, Marin received a document purporting to be a Power of Attorney from the woman he believed to be Thereza Pereira, which authorized him, inter alia, to transfer funds from Pereira's Merrill Lynch account. Marin took the document to Merrill Lynch's offices. Marin spoke with Sal Campion, who reviewed the Power of Attorney, then told Marin it was "bogus" and he was "doing something illegal." Marin Depo. 150. Incensed at being denied access to the account, Marin challenged Campion to call the police and have him arrested, which Campion declined to do. Marin also filed a complaint against Merrill Lynch with the National Association of Securities Dealers.*fn3 Marin returned to Merrill Lynch several times thereafter, and was eventually denied access to their offices.

Unable to access the account, Marin called the woman he claims is Thereza Pereira, who told him she would send him some checks. Some days later, Marin received three checks, for $100,000, $60,000, and $10,000. The $100,000 and $60,000 checks were drawn against Thereza Pereira's cancelled Merrill Lynch account and made out to Marin.*fn4 On August 5, 2003, Marin deposited the $100,000 check into his Smith Barney money market account. On August 8, Marin deposited the $60,000 check into his Fleet Bank checking account. Before depositing the check, Marin's Fleet Bank account had a balance of approximately $1,100.

On August 13, 2003, Marin withdrew $25,000 cash from his Fleet account. Pedro Cuhna visited Marin's office, and Marin gave him the money in an envelope. Several days later, Marin attempted to withdraw an additional $25,000 and was informed that his account had been frozen because the $60,000 check was returned marked lost or stolen. The branch manager informed Marin he would face criminal prosecution if he did not repay the $25,000. Fleet made several attempts to recover the $24,142 overdraft. Marin, broke, never repaid the money. Id. at 245.

A. Criminal Investigation

On September 8, 2003, Noel Barreto, an investigator at Fleet Bank's corporate security services department, contacted Walter Lynch, a detective in the Midtown North Detective Squad. Barreto informed Lynch that Marin "had overdrawn his account under suspicious circumstances and refused to return the funds that he had withdrawn." Lynch Aff. ¶ 4. Specifically, Barreto told Lynch that Marin deposited a $60,000 check into his account drawn against Thereza Pereira's Merrill Lynch cash management account; that the check was returned marked "Lost/Stolen;" that Marin withdrew $25,000 from the account; that Marin was informed the $60,000 check was fraudulent; and that Marin refused to repay the overdrawn funds. Barreto also told Lynch that Marin returned to the bank with a Power of Attorney for the Merrill Lynch account and that the bank informed him it was fraudulent.

After their conversation, Barreto faxed Detective Lynch a formal request for assistance and documents in support of the request. Among them was a "Suspicious Activity Report" prepared at Fleet Bank, which stated:

During the course of our investigation, we conferred with [illegible] Merrill Lynch and were advised that Ms. Pereira (the maker) is a resident of Rio de Janeiro and did not issue any check as she is afflicted with mental illness. We also confirmed that Ms. Pereira does not ...

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