The opinion of the court was delivered by: Ramon E. Reyes, Jr. United States Magistrate Judge
RAMON E. REYES, JR., U.S.M.J.
Plaintiff, Panagiotis Armatas ("Plaintiff" or "Armatas"), brings this action on his own behalf and on behalf of his children, Alexander and Evangelos Armatas ("Minor Plaintiffs"), against Elena Maroulleti ("Maroulleti") and the City of New York ("City"), New York City Police Department ("NYPD"), Eric Christophersen ("Christophersen"), Robert Edwin ("Edwin"), Steven Borchers ("Borchers"), Alvin Gomez ("Gomez"), John Goetz ("Goetz"), and Carey Alpert ("Alpert") (collectively, "City Defendants"), alleging that Defendants violated 42 U.S.C. § 1983 ("Section 1983") and asserting various state law torts.
Maroulleti moved for summary judgment on June 14, 2010. (Docket No. 95.) The motion was fully briefed and presented to the Court on July 29, 2010. (Docket Nos. 95-99.) City Defendants also moved for summary judgment on June 14, 2010. (Docket No. 100.) Their motion was fully briefed and presented to the Court on August 6, 2010. (Docket Nos. 100-110.) On September 17, 2010, the Honorable Sandra J. Feuerstein referred both motions to me for a report and recommendation. (Docket Entry, 9/17/2010.) The trial was initially scheduled to begin October 12, 2010, but has since been rescheduled to start October 25, 2010. (Docket No. 120.)
For the reasons stated herein, I respectfully recommend that the City Defendants' motion for summary judgment be granted in its entirety and Maroulleti's motion for summary judgment be granted in part and denied in part.
Maroulleti founded a cultural nonprofit, Aktina Productions, which was set up "to promote and preserve the Greek and Cypriot culture through radio, TV and folk art programs." (Declaration of Qiana Smith-Williams in Support of City Defendants' Motion for Summary Judgment ("Smith-Williams Decl."), dated June 14, 2010, Exh. J at 19-20.) As part of the nonprofit, Maroulleti hosted a radio program every week. (Id. at 35.)
There came a time when Armatas sought out Maroulleti to have her investigate allegations that New York City hospitals were circumcising immigrants' children without obtaining proper consent. (Id. at 35-38.) Maroulleti suggested he contact his local elected official, explaining that she could not go on the air with his unfounded allegations. (Id.) On July 24, 2006, Armatas again contacted Maroulleti,*fn1 but this time called her cell phone to inform her that a former guest of her show, Steve Tsivicos, used "foul and threatening language" against him. (Smith-Williams Decl., Exh. I at 36.) Maroulleti maintains that during the course of their telephone conversation, Armatas said he was "going to do things to [her] and [her] family that you don't even want to think about." (Smith-Williams Decl., Exh. J at 60; see also Affidavit of Elena Maroulleti ("Maroulleti Aff."), dated June 4, 2010, ¶ 16.) Armatas, however, denies making any threats, veiled or otherwise, to Maroulleti or her family during that call. (Affidavit of Plaintiff, Panagiotis Armatas, in Opposition to Summary Judgment Motion of Defendant Maroulleti ("Armatas Aff. in Opp. to Maroulleti"), dated July 19, 2010, ¶ 16; Declaration of Robert G. Leino in Opposition to Summary Judgment Motion ("Leino Decl."),*fn2 dated July 19, 2010, Exh. 1 at 52-53.) After the conversation with Maroulleti, Armatas called Aktina Productions and left messages at least four times. (Smith-Williams Decl., Exh. I at 55, Smith-Williams Decl., Exh. J at 61.) Armatas maintains that he was calling to remind the station about the circumcision issue in case they wanted to investigate and that he did not at any time threaten Maroulleti or her family. (Smith-Williams Decl., Exh. I at 55; Leino Decl., Exh. 1 at 52-53.)
Armatas denies ever calling Maroulleti's cell phone again. (Leino Decl, Exh. 1 at 64.) However, in her deposition, Maroulleti claimed that Armatas called her cell phone again the next day, despite her having asked him to stop. (Smith-Williams, Exh. J at 60-61.) She claimed that she hung up, but he called again and repeated the same threat. (Id. at 61.) In her affidavit submitted with the motion for summary judgment, Maroulleti avers that all the calls and threats were made on July 24, 2010-once on her cell phone, and a handful of times at the Aktina number. (Maroulleti Aff. ¶ 16.)
On July 25, 2006, Maroulleti filed a complaint with NYPD.*fn3 (Smith-Williams Decl. Exh. C; Maroulleti Aff. ¶ 17.) In the NYPD complaint, Maroulleti alleged that Armatas called her "cell phone several times stating 'I will do things to you and your family you don't even know'" "causing annoyance and alarm." (Smith-Williams, Exh. C.)
Christophersen, an NYPD detective, claims to have called Maroulleti on July 26, 2006 to confirm the allegations in the report, which she allegedly did. (Smith-Williams, Exh. K at 19, 30.) Maroulleti, however, does not recall speaking to anyone from NYPD after making her report until she was informed of Armatas's arrest. (Leino Decl., Exh. 4 at 95.) Edwin, a member of Christophersen's team, did not know whether Christophersen made any calls to Maroulleti, but Christophersen did file a complaint follow-up report on July 26 regarding the call to Maroulleti. (Leino Decl., Exh. 12.)
On July 31, 2006, Christophersen and Edwin went to Armatas's house to speak with him about Maroulleti's allegations. (Id. at 27, 29-30.) Armatas's children, Alexander (8 years old) and Evangelos (6 years old), were at home with him at the time. (Smith-Williams Decl., Exh. I at 71.) Christophersen claims that he showed Armatas the police report and informed Armatas that he was being arrested on the basis of that report. (Smith-Williams Decl., Exh. I at 67-68.) Christophersen did not make the decision to arrest at the direction of any supervisor or at the specific request of Maroulleti or anyone else, rather the decision whether to make the arrest or not was completely within his discretion. (See Smith-Williams Decl., Exh. K at 27; Smith-Williams Decl., Exh. M at 17; Leino Decl., Exh. 11 at 26-27.) Christophersen maintains that upon hearing the allegations against him, Armatas did not deny them, but did state that Maroulleti was "crazy." (Smith-Williams Decl., Exh. K at 29-30.) Armatas, on the other hand, claims that he was never asked whether the allegations were true and that he was only informed that he needed to go to the station to sign for an order of protection. (Leino Decl., Exh. 1 at 69-71.)
Christophersen and Edwin gave Armatas time to call a family member to watch his children, but Armatas could not reach anyone, and so, the boys were brought along to the station. (Smith-Williams Decl., Exh. I at 73.) Armatas was not handcuffed, nor was he taken to the station in a marked police car. (Smith-Williams Decl., Exh. I at 75; Smith-Williams Decl., Exh. K at 64.) Upon reaching the police station, the boys were taken to an interview room where they watched television. (Smith-Williams Decl., Exh. K at 62; Smith-Williams Decl., Exh. I at 75-76, 81.) Armatas stayed with his boys except when he was taken to be fingerprinted. (Smith-Williams Decl., Exh. K at 62-63.) The only time he was handcuffed was when he was escorted through the precinct to be fingerprinted. (Id. at 34.) Armatas was not physically injured as a result of the handcuffing. (Smith-Williams Decl., Exh. I at 75, 78, 109.) The police issued Armatas a Desk Appearance Ticket and released him. (Smith-Williams Decl., Exh. K at 64.)
On August 1, 2006, Christophersen contacted the Queens County District Attorney's Office ("D.A.'s Office") to inform them of Maroulleti's report and thereafter, signed a criminal court complaint prepared by the D.A.'s Office charging Armatas with Aggravated Harrassment and Harrassment. (Smith-Williams Decl., Exh. F.) Christophersen had no further involvement with Armatas's prosecution. (Smith-Williams Decl., Exh. K at 46, 75-76.)
After arraignment, the D.A.'s Office obtained a Supporting Deposition from Maroulleti, which was necessary to continue the prosecution against Armatas. (See Leino Decl., Exh. 9.) The Supporting Deposition supported the allegations set forth in Maroulleti's NYPD report. (See Leino Decl., Exh. 9 and Smith-Williams Decl., Exh. F.) Alpert, the assigned Assistant District Attorney, engaged in discussions with supervisors regarding possible plea offers, contacted Maroulleti to discuss her allegations, engaged in motion practice, and prepared for court appearances. (Smith-Williams Decl., Exh. N at 19, 30-31, 55-57, 62-63, 96-97, 108-109, 121-122.) In August 2007, the charges against Armatas were dropped pursuant to N.Y.C.P.L. § 30.30,*fn4 since Maroulleti would no longer cooperate.*fn5 (Smith-Williams Decl., Exh. H; Smith-Williams Decl., Exh. J at 108.)
Armatas filed the instant complaint on January 22, 2008 alleging that the City, NYPD, and Maroulleti violated his constitutional rights and were liable for false arrest, malicious prosecution, and intentional infliction of emotional distress. He also alleged that Maroulleti filed a false police report against him. Armatas filed an amended complaint on July 29, 2009, naming the individual NYPD officers and Alpert and asserting that some and/or all were liable for violating his civil rights, and for false arrest, battery, negligence, intentional infliction of emotional distress, and malicious prosecution. Additionally, he added claims in his capacity as a parent against some of the individual defendants and the City for violating his children's civil rights, and for filing a false police report, false arrest, negligence, and intentional infliction of emotional distress.
A. City Defendants' Motion
City Defendants move for summary judgment on various grounds. City Defendants argue that probable cause for Armatas's arrest existed, precluding his false arrest claims. (City Defendants' Memorandum of Law in Support of their Motion for Summary Judgment ("City Def. Mem."), dated June 14, 2010, at 4-7.) They further argue that the false arrest claims against Borchers, Gomez, and Goetz should be dismissed because they were not personally involved in his arrest. (Id. at 8-10.) They also contend that Armatas cannot prove any of the necessary elements of his malicious prosecution claims. (Id. at 11-16.) Moreover, City Defendants assert that the individual defendants are entitled to qualified immunity, and that Alpert is entitled to absolute prosecutorial immunity. (Id. at 16-22.) City Defendants also contend that the Plaintiff cannot establish a claim for municipal liability and that NYPD is not a suable entity, and therefore, summary judgment should be granted to the City and NYPD. (Id. at 23-26.)
City Defendants further contend that all of Plaintiff's state law claims should be dismissed either as a matter of public policy or because Plaintiff cannot establish the elements of the claims. (Id. at 27-30.) In the alternative, City Defendants argue that if the Court dismisses the Section 1983 claims, the Court should decline to exercise jurisdiction over the state law claims. (Id. at 31.)
Finally, City Defendants assert that the false arrest claims brought on behalf of Minor Plaintiffs' fail because the children were not arrested. (Id. at 10-11.) With respect to the remainder of the Minor Plaintiffs' claims, City Defendants argue that they are entitled to judgment because the children did not file a notice of claim with the City. (Id. at 26-27.)
Regarding his false arrest claims against the individual NYPD defendants, Armatas asserts that there is no probable cause for an arrest when the arrestee denies the charges, necessitating further investigation, but concedes that there is no false arrest claim against Goetz and Gomez. (Plaintiff's, Panagiotis Armatas', Memorandum of Law in Opposition to the City Defendants' Motion for Summary Judgment ("Pl. Mem. in Opp. to City."), dated July 19, 2010, at 6-8.) However, he continues to assert that Borchers is liable by his "acquiescence" in the arrest. (Id. at 5-6.) As to the malicious prosecution claim, Armatas argues that the dismissal of the case was a favorable outcome for him. (Id. at 8-9.) He does not address the remaining elements of malicious prosecution. Armatas contends that Alpert is not entitled to prosecutorial immunity because she was acting as an "investigator the whole time trying to build up a case." (Id. at 8.) He does not address the issue of qualified immunity. With regard to his Section 1983 claim against the City, Armatas claims that the NYPD "has a pattern of falsification," which Armatas claims without much explanation creates a material fact in dispute. Id. at 5.) He does concede, however, that the claim against NYPD as an entity should be dismissed. (Id.) Armatas does not address the motion with respect to the Minor Plaintiffs' claims.
Maroulleti also moved for summary judgment on a number of grounds. First, Maroulleti argues that Armatas did not plead, nor can he prove, that she acted under color of state law necessitating the dismissal of all Section 1983 claims against her. (Memorandum of Law in Support of Defendant Maroulleti's Motion for Summary Judgment ("Maroulleti Mem."), dated June 14, 2010, at 4-6.) Second, she asserts that probable cause for the arrest of Armatas necessitates granting summary judgment in her favor on the false arrest and malicious prosecution claims since probable cause negates elements of each. (Id. at 6-12.) Third, she contends that Armatas did not sufficiently plead, nor can he raise an issue of triable fact regarding, intentional infliction of emotional distress. (Id. at 12-15.) Finally, she argues that the Minor Plaintiffs lack standing to sue upon the allegation of falsification to the authorities and so their claims must be dismissed. (Id. at 16-17.)
In response, Armatas claims several material issues of fact exist as to his false arrest and malicious prosecution claims that preclude summary judgment-namely whether Armatas made one or several calls to Maroulleti's cell phone, whether during the course of any of his admitted phone calls he threatened Maroulleti, whether probable cause existed, and whether a politician's power was used to cause the arrest. (Plaintiff's Memorandum of Law in Opposition to Defendant Maroulleti's Motion for Summary Judgment ("Pl. Mem. in Opp. to Maroulleti"), dated July19, 2010, at 6-7.) However, Armatas concedes that the Section 1983 claims must be dismissed since Maroulleti is a private citizen, who was not acting under the color of state law. (Id. at 8.) As to intentional infliction of emotional distress, Armatas argues that the arrest of an innocent man is conduct extreme and outrageous for purposes of establishing the claim. (Id.)
Armatas further contends that he has properly plead a New York falsification claim against Maroulleti given her accusations in the police report that he maintains are false. (Id. at 8-9.) Finally, he asserts that his children may maintain a derivative claim because Maroulleti knew he had children, and so it was foreseeable that they would be affected by her making a criminal complaint. (Id. at 9-10.)
I. Summary Judgment Standards
To grant a motion for summary judgment, the court must find that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c)(2). A genuine issue of material fact is an issue of fact which "could reasonably be resolved in favor of either party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), and which must be determined in order to apply the relevant substantive law, id. at 248. The moving party has the burden of establishing "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 447 U.S. 317, 323 (1986). Once the moving party demonstrates that no issue of material fact exists, the non-moving party bears the burden to present facts showing there is a genuine issue of material fact. Anderson, 477 U.S. at 250.
All facts and inferences should be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-movant cannot defeat summary judgment based on "mere allegations or denials," FED. R. CIV. P. 56(e), or "mere speculation or conjecture as to the true nature of the facts," Martal Cosmetics, Ltd. v. International Beauty Exchange Inc., No. 01-CV-7595, 2007 WL 895697, at *19 (E.D.N.Y. March 22, 2007) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995)). The court may only consider evidence that would be admissible at trial in determining whether genuine issues of material fact exist. FED R. CIV. P. 56(e); Abreu v. City of New York, No. 04-CV-1721, 2006 WL 401651, at *3 (E.D.N.Y. Feb. 22, 2006).
II. City Defendants' Liability
City Defendants assert, and Plaintiff concedes, that NYPD, as an entity, is not amenable to suit. Agencies, such as NYPD and divisions thereof, lack legal existence under New York Law. See NYC CHARTER § 396 ("All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law."). As such, NYPD cannot be sued independently, rather the City of New York is the appropriate party. Wray v. City of New York, 340 F. Supp. 2d 291, 303 (E.D.N.Y. 2004); see also Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (noting that the district court correctly dismissed claims against NYPD since it is not a suable entity). Therefore, I respectfully recommend that all claims pending against NYPD be dismissed.
B. Defendants Gomez and Goetz
City Defendants argue, and Armatas concedes, that there is no evidence that Gomez or Goetz were personally involved in the arrest, imprisonment, or prosecution of Armatas. Because neither Gomez nor Goetz was personally involved in the arrest or prosecution of Armatas, they cannot be liable for any of these claims. (Pl. Mem. in Opp. to City at 8.) As such, I respectfully ...