The opinion of the court was delivered by: Richard J. Holwell, District Judge:
MEMORANDUM OPINION AND ORDER
In this suit under 42 U.S.C. § 1983, plaintiff Linda Stansbury alleges that defendant Chad Wertman, a New York State trooper, violated her constitutional rights by falsely arresting her and initiating a malicious prosecution for petit larceny. Wertman has moved for summary judgment as to both claims. For the reasons set forth below, the motion is DENIED.
The incident for which Stansbury was arrested and prosecuted occurred on the evening of April 4, 2006. On that evening, Mary Sue Cirrincione, a security officer at a Stop & Shop supermarket on Route 6 in Somers, New York, was watching a three inch-by-five inch monitor displaying surveillance footage from around the store. (See Def.'s 56.1 Stat. ¶ 3; Pl.'s 56.1 Stat. ¶ 3.) At approximately 8:30, Cirrincione observed a black female who was taking items from shelves and placing them in plastic Old Navy bags in her shopping cart. (See id.) The woman was wearing a maroon windbreaker and blue jeans. (See id.) Cirrincione alerted Mark John, the head of the store's customer service department, and gave him a description of the woman. (See Pl.'s 56.1 Stat. ¶ 3.)
However, there is nothing in the record regarding how Cirrincione described the woman to John.
After receiving Cirrincione's call, John went to the aisle where the perpetrator was placing items in the Old Navy bags. (See id. ¶ 6.) John later testified that he did not observe the perpetrator's face at that time. (Dec. of R. McLaughlin, Apr. 11, 2011 ("McLaughlin Dec.") Ex. 2. at 175.) John then proceeded to the exit nearest the aisle. (See Pl.'s 56.1 Stat. ¶ 6.) When the perpetrator approached the exit, John asked for her receipt, but the perpetrator did not respond. (See id.) John later testified that this encounter gave him a view of the perpetrator's face for three to four seconds. (See McLaughlin Dec. Ex. 2. at 179.) The perpetrator walked past John, left the store and began fleeing without her shopping cart, stolen items falling from her pocket as she ran. (See Pl.'s 56.1 Stat. ¶¶ 6-7.) John and Cirrincione chased after the perpetrator but were unable to apprehend her and the perpetrator fled in a white Econoline van. (See id. ¶ 7.) John wrote down the van's license plate number. (See id.) Cirrincione called the police. (See id. ¶ 8.)
Wertman received the call to respond to the scene. (See id. ¶ 9.) Wertman went to the store and interviewed both Cirrincione and John, each of whom also signed a supporting deposition regarding the incident. (See id. ¶ 9.) Cirrincione described the woman as "a black female wearing blue jeans and a maroon windbreaker." (McLaughlin Dec. Ex. 5.) John described the woman as "a black woman" who was "wearing [a] maroon colored coat about 5'5" and blue jeans." (Id. Ex. 4.) Wertman's notes of his interviews reflect the same general description. (Id. Ex. 8. at 3.)
At the store, Wertman and Cirrincione viewed the surveillance tape which Wertman took as evidence. (See id. ¶ 10.) Wertman also recorded the license plate number that John had written down. (See id. ¶ 8.) However, Wertman was unable to match the number with any vehicles. (See id.; Def.'s 56.1 Stat. ¶ 10.) And neither a Peekskill bus ticket nor the perpetrator's jacket nor any other items found in the perpetrator's cart turned up any leads. (See id. ¶ 9; Pl.'s 56.1 Stat. ¶ 7.)
The Old Navy bags proved more fruitful. Later the same evening, Wertman decided to visit an Old Navy store further up Route 6 in Mohegan Lake, New York-one of two Old Navy stores in the area. (See id. ¶ 11; Def.'s 56.1 Stat. ¶ 9.) At the Old Navy store, Wertman interviewed Jentami Lawson, the store's manager. (See id.) According to Wertman's contemporaneous notes of his interview with Lawson and a supporting deposition Lawson completed after Stansbury was arrested, Lawson reported that "a black female" had attempted to make a purchase at around 8:00 p.m. that evening but had her credit card declined. (McLaughlin Dec. Ex. 8 at 3, Ex. 8.) There is no other evidence in the record of how Lawson described the woman or that Lawson had even personally observed her. Lawson also reported that, after 8:00 p.m., one of the store's employees noticed empty shopping bags-which were usually stored in the rear of the store-strewn on the floor at a register near the door. (See Pl.'s 56.1 Stat. ¶ 10.) The bags appeared to be identical to those used by the perpetrator. (See id.)
Wertman took a copy of the receipt from the transaction in which the woman's credit card had been declined. (See id.) Wertman traced the receipt to a MasterCard belonging to one Nicole Stansbury. (See id.) After contacting other law enforcement authorities, Wertman identified an address in White Plains, New York and a telephone number for that address under the name of Nicole Stansbury. (See id.; Def.'s 56.1 Stat. ¶13.)
It appears undisputed that Wertman called the number sometime in the middle of April 2006 and that a woman named Ruth Reynolds answered who told Wertman that Nicole Stansbury was in Texas. (See Pl.'s 56.1 Stat. ¶ 12; Def.'s 56.1 Stat. ¶ 13.) It also appears from the record that Wertman was later able to connect with Nicole Stansbury by telephone, at which time she acknowledged being at the Old Navy store on April 4 but stated that she thereafter returned to her mother's home at 592 Panorama Drive in Mohegan Lake. (See Def.'s 56.1 Stat. ¶ 12.)
On May 22, 2006, after not hearing from Stansbury for some period of time, Wertman went to the 592 Panorama Drive address. (See id. ¶ 13; Pl.'s 56.1 Stat. ¶ 13.) When Wertman arrived, he observed the plaintiff, Linda Stansbury, walk down the stairs to the front door. (See Def.'s 56.1 Stat. ¶ 14.) Stansbury then introduced herself as Nicole Stansbury's mother. (See id. ¶ 15.) Wertman maintains that he recognized Stansbury as the perpetrator he had seen on the videotape. Wertman proceeded to question Stansbury regarding their whereabouts on April 4. (See id.; Pl.'s 56.1 Stat. ¶ 16.) Wertman's notes of the interview reflect that Stansbury was nervous, that she would not answer his questions directly, and that Nicole Stansbury answered many of the questions he asked of her mother. (See McLaughlin Dec. Ex. 8 at 4.)
Following his visit to Stansbury home, Wertman obtained a DMV photograph of Linda Stansbury and asked another trooper to prepare a photo array. (See id. at 4-5; Pl.'s 56.1 Stat. ¶ 17; Def.'s 56.1 Stat. ¶ 16.) Wertman also scheduled an interview with Linda and Nicole Stansbury at the New York State Police Barracks in Somers on May 30, at which time Cirrincione and John would, if possible, identify the perpetrator. (See McLaughlin Dec. Ex. 8 at 5.) Prior to the scheduled interview, Wertman reviewed the videotape with his colleagues Jeremy Harrison and Steve Udice. (See id.; Def.'s 56.1 Stat. ¶ 16.) After comparing the videotape with the DMV photograph, both Harrison and Udice identified the perpetrator as Linda Stansbury. (See id.)
On May 30, Cirrincione and John arrived for the identification but the Stansburys did not. (See id. ¶ 17; McLaughlin Dec. Ex. 8 at 5.) In lieu of an in person identification, Wertman showed Cirrincione and John the DMV photograph. Though the New York State Police Field Manual instructed that witnesses should "NEVER" be shown a single photograph of a suspect, Wertman showed Cirrincione and John the DMV photograph and that photograph alone. (See Def.'s 56.1 Stat. ¶ 17; Pl.'s 56.1 Stat. ¶ 18; McLaughlin Dec. Ex. 13 at 2-3.) Both Cirrincione and John identified Stansbury as the perpetrator. (See Def.'s 56.1 Stat. ¶ 17.) Wertman then contacted Stansbury's lawyer who indicated that Stansbury would report the following day to be arrested. (See McLaughlin Dec. Ex. 8 at 5.)
On May 31, Stansbury reported as scheduled to the police barracks in Somers where she was arrested and charged with one count of misdemeanor petit larceny. (See Def.'s 56.1 Stat. ¶ 18; Pl.'s 56.1 Stat. ¶ 19.) The arrest information form listed Stansbury's height as 5'9". (McLaughlin Dec. Ex. 8 at 1.)
Stansbury was tried in a bench trial in Somers Town Court on March 26 and April 2, 2007. (See Def.'s 56.1 Stat. ¶ 20; Pl.'s 56.1 Stat. ¶ 21.) The court acquitted Stansbury of petit larceny on April 2, 2007. (See ...