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Frank De Michele v. City of New York

September 24, 2012


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


Plaintiff Frank DeMichele brings this action pursuant to 42 U.S.C. § 1983 and state law against Defendants City of New York (the "City"), New York City Police Department ("NYPD") Deputy Inspector Timothy Bugge, NYPD Captain Deodate Urprasad, NYPD Sergeant Adam Mellusi, NYPD Officers Roger DiCarlo and Andrew Nyberg*fn1 ("the City Defendants"), the County of Westchester (the "County"),Westchester County Sergeant William McGuinness, and Westchester County Police Officers Brian Tierney, George Ruiz, Christian Gutierrez, Mitchell Serlin, Christopher Lieberman, Michael Brady, and Richard Pucillo (together, "County Defendants"), asserting claims related to his January 18, 2009 arrest. The Amended Complaint includes (1) causes of action for excessive force, false arrest, malicious prosecution, and deprivation of access to the courts under Section 1983; (2) Monell claims against the County and the City; and (3) state law causes of action for false arrest, malicious prosecution, battery, and assault. (Am. Cmplt.)

Plaintiff has moved for summary judgment on his claims against (1) Defendants Urprasad, Mellusi, and DiCarlo for false arrest and malicious prosecution under Section 1983 and state law; and (2) Defendant Ruiz for excessive force under Section 1983. (Dkt. No. 77)

The City Defendants have moved for summary judgment on Plaintiff's (1) false arrest claims, because his arrest was supported by probable cause; (2) malicious prosecution claims, because the prosecution was instituted with probable cause; (3) claims against the individual City defendants, on qualified immunity grounds; (4) claims against defendants Bugge and Mellusi, because of a lack of evidence that they were personally involved; and (5) claims against the City, arguing that he has not established a basis for Monell liability. (Dkt. No. 72)

The County Defendants have moved for summary judgment on Plaintiff's excessive force, false arrest, assault, and battery claims, and claim for punitive damages. (Dkt. No. 80)

For the reasons stated below, the City Defendants' and County Defendants' motions will be granted in part and denied in part, and Plaintiff's motion will be denied.*fn2


Plaintiff's claims arise out of his arrest in the early morning hours of Sunday, January 18, 2009. County police arrested Plaintiff for drag racing on the Hutchinson River Parkway, while NYPD officers arrested him for armed robbery. (County R. 56.1 Stmt. ¶¶ 64- 69)*fn3


At about 12:35 a.m on January 18, 2009, County Officer Christian Gutierrez observed a white Mercedes Benz C63 racing with a gray Audi on the lower Hutchinson River Parkway. (County R. 56.1 Stmt. ¶¶ 63-64) Officer Gutierrez attempted to stop the two cars, but they accelerated and began to recklessly weave in and out of traffic at high speed. (County R. 56.1 Stmt. ¶ 65; Pltf. R. 56.1 Stmt. ¶ A)

Gutierrez contacted a County helicopter unit, which then began tracking the two vehicles on the Parkway. (County R. 56.1 Stmt. ¶ 66; Jones Decl., Ex. H (Lieberman Dep.) at 29-30; Pltf. R. 56.1 Stmt. ¶ B) The helicopter was staffed by County Officer Christopher Lieberman, the pilot, by County Officer Richard Pucillo, a tactical flight officer; and by County Officer Michael Brady, a tactical flight officer in training. (County R. 56.1 Stmt. ¶ 66) Officer Lieberman observed the white Mercedes traveling at a high rate of speed southbound on the Parkway, and followed it to a point where it stopped in traffic on the highway shoulder. (County R. 56.1 Stmt. ¶ 67)

Officer Lieberman observed a County police car -- driven by County Officer Brian Tierney -- attempt to intercept the vehicle. (County R. 56.1 Stmt. ¶ 68) Tierney drove his patrol car onto the shoulder and positioned it immediately in front of the white Mercedes; the front bumpers of the two vehicles were facing each other, approximately three feet apart. (County R.56.1 Stmt. ¶ 79; PX 13 (Tierney Dep.) at 17) Tierney had his vehicle's headlights and police lights on, and was able to observe that the white Mercedes's sole occupant was a white man with short brown hair, between the ages of 18 and 22, wearing a Yankees baseball cap. (County R.56.1 Stmt. ¶ 80; Jones Decl., Ex. E (Tierney Dep.) at 20-22) The driver of the white Mercedes put the car into reverse, and then smashed into the front passenger side of Tierney's car. (County R.56.1 Stmt. ¶ 81; Jones Decl., Ex. E (Tierney Dep.) at 23) The bumper of Tierney's car was damaged (id.), and he lost sight of the white Mercedes. (County R.56.1 Stmt. ¶ 82)

Officer Lieberman observed the white Mercedes drive at a high rate of speed to 1164 Edison Avenue in the Bronx, where the car's single occupant fled into that building. (County R. 56.1 Stmt. ¶ 69; Pltf. R. 56.1 Stmt. ¶ I) Lieberman transmitted the location of the white Mercedes over the radio, and Officer Tierney and other County police officers responded to that location. (County R. 56.1 Stmt. ¶¶ 70, 82) At 1164 Edison Avenue, Tierney observed NYPD officers and other County officers (County R.56.1 Stmt. ¶ 83), including County Officers Serlin, Gutierrez, and Ruiz. (County R.56.1 Stmt. ¶ 84) The County helicopter was positioned above the house, with its spotlight trained on the ground. (County R.56.1 Stmt. ¶ 84)

Officer Tierney observed three NYPD officers, including a captain, at the entrance to the basement apartment of the building. (County R.56.1 Stmt. ¶ 85) County Officer Serlin brought a police dog to the scene and had the dog sniff inside the white Mercedes. Officer Serlin then directed the dog to track the scent. (County R.56.1 Stmt. ¶ 56; PX 16 (Serlin Dep.) at 12-15) The dog tracked the scent to the steps leading down to Plaintiff's basement apartment. (Id.) NYPD officers then knocked on the door to that apartment. (PX 16 (Serlin Dep.) at 16)

Tierney was subsequently asked to view a suspect. From about 10 to 15 feet away, Tierney identified DeMichele as the individual who had been driving the white Mercedes. (County R.56.1 Stmt. ¶¶ 86-87; PX 13 (Tierney Dep.) at 61-63)


At some point before January 17, 2009, Robert Guerrerio, Jr. arranged to sell Mercedes car parts to an individual over the Internet. (City R.56.1 Stmt. ¶ 104) Late in the evening on January 17, 2009, Guerrerio went to a golf course on Shore Road in the Bronx, where he had agreed to sell the car parts. (City R.56.1 Stmt. ¶ 105) At that location, Guerrerio observed two men emerge from a customized, white Mercedes C63 automobile with a black roof. (City R. 56.1 Stmt. ¶ 106; Nyugen Decl., Ex. B (Guerrerio Aff.) ¶ 5) One man threatened to shoot Guerrerio, and both robbed him of his car parts and cellular telephone. (City R. 56.1 Stmt. ¶ 106; Nyugen Decl., Ex. B (Guerrerio Aff.) ¶ 5) Guerrerio attempted to report the robbery to New Rochelle police, but was instructed to report the crime to officers at the 45th Precinct in the Bronx. (City R. 56.1 Stmt. ¶ 109; Nyugen Decl., Ex. B (Guerrerio Aff.) ¶¶ 7-8) Guerrerio arrived at the 45th Precinct about one hour after the robbery. (City R. 56.1 Stmt. ¶ 110; Nyugen Decl., Ex. B (Guerrerio Aff.) ¶ 9; Pltf. R. 56.1 Stmt. ¶ FFF)

While at the 45th Precinct, Guerrerio overheard a report about a high speed car chase involving a white Mercedes C63 with a black roof. (City R. 56.1 Stmt. ¶ 111) An NYPD officer brought Guerrerio to 1164 Edison Avenue in the Bronx, where the car had stopped. Plaintiff resides in a basement apartment at this location. (City R. 56.1 Stmt. ¶ 111; Pltf. R. 56.1 Stmt. ¶¶ III, KKK; see also PX 26 (Ferrer Dep) at 16-17; County R. 56.1. Stmt. ¶ 1)

Guerrerio arrived at 1164 Edison Avenue two to three hours after the robbery. (City R. 56.1 Stmt. ¶ 112) At that location, Guerrerio observed a white Mercedes C63 and Plaintiff sitting in the back of a County police car. Guerrerio told police that the car appeared identical to the one used by the men who had robbed him, and noted that the car was unique, because it had been customized. (City R. 56.1. Stmt. ¶¶ 112-13) Guerrerio also told police that Plaintiff "look[ed] like" one of them men who had robbed him. (City R. 56.1 Stmt. ¶ 114) When Guerrerio made his identification, Plaintiff had blood on his face, and was wearing only underwear and a tank top. (Pltf. R. 56.1 Stmt. ¶ PPP) NYPD Defendants Urprasad and McGuinness were present at the showup identification. (Pltf. R. 56.1. Stmt. ¶ VVV; PX 32 (McGuinness Dep.) at 112)


The building at 1164 Edison Avenue is owned by Marcy Manfredonia (County R. 56.1. Stmt. ¶ 2) and contains four apartments. (Id. ¶ 12) Manfredonia and her family, including her son -- Frank Desideri -- live in a basement apartment in the building. (Id. ¶ 4) Plaintiff and his mother, Margaret Bonura, reside in another basement apartment in the building. (Id. ¶ 1) Plaintiff's apartment has two entrances: a front door on Edison Avenue, and a rear door that opens onto B Street. (Id. ¶ 14) Only Plaintiff's apartment is accessible through the rear of the building. (Id. ¶ 16)

Plaintiff was 19 years old at the time of his arrest, and was "good friends" with Desideri (id. ¶ 6; PX 7 (DeMichele Dep.) at 55; Pltf. Resp. to County R. 56.1 Stmt. ¶ 6), seeing him two to three times per week. (Id.; PX 7 (DeMichele Dep.) at 56) Plaintiff's girlfriend, Diana Brescia, and Desideri's girlfriend, Christina Ruocco, were also friends. (Id. ¶ 11)

Plaintiff drove a 2008 white BMW. (Id. at ¶ 8) Desideri drove a white Mercedes that was registered to Nationwide Maintenance General Contracting, a company owned by his mother. (Id. ¶ 9) Plaintiff did not drive the white Mercedes on January 17-18, 2009. (Id. ¶ 10; Jones Decl., Ex. A (DeMichele Dep.) at 57-58)

During the afternoon of Saturday, January 17, 2009, Plaintiff and his girlfriend, and Desideri and his girlfriend, visited with Tristano Reveccio, at Reveccio's home. (Id. ¶ 25) In the evening, the group left Reveccio's house in separate cars, and drove to the Crosstown Diner. (Id. ¶¶ 28-30)*fn4 Plaintiff and Brescia drove in Plaintiff's white BMW from the diner to Plaintiff's residence, where Plaintiff parked his car on B Street. (Id. ¶ 34) Plaintiff and Brescia then went to Plaintiff's bedroom to watch television. (Id. ¶ 36)

Shortly thereafter, Desideri entered Plaintiff's apartment through the B Street rear entrance. (Id. ¶ 38) Plaintiff was aware that Desideri had entered the apartment. (Id. ¶ 47)


Minutes after Desideri entered the apartment, Plaintiff heard a loud knock on the rear door. (Id. ¶¶ 41-42; Pltf. R. 56.1 Stmt. ¶ X) Plaintiff's mother answered the door and spoke with police officers. (Id. ¶ 42) County Officer Tierney identified Plaintiff as the man he had encountered earlier that evening driving the white Mercedes. (Id. ¶¶ 46, 87; Jones Decl., Ex. E (Tierney Dep.) at 61-63; PX 7 (DeMichele Dep.) at 98) NYPD Captain Urprasad, along with County Officers Gutierrez and Ruiz, removed Plaintiff from his home. (Pltf. R. 56.1 Stmt. ¶¶ BB-DD)

Outside, in Plaintiff's backyard, County and NYPD officers attempted to handcuff him. (County R. 56.1 Stmt. ¶¶ 51, 90; Pltf. R. 56.1 Stmt. ¶ HH) While against a brick wall, Plaintiff turned his head from side to side. (Id. ¶¶ 52, 90; Jones Decl., Ex E (Tierney Dep.) at 73) The parties dispute to what extent Plaintiff resisted arrest: Officer Ruiz testified that Plaintiff was flailing his arms and attempting to kick him and Gutierrez (PX 11 (Ruiz Dep.) at 84-89), but Plaintiff denies that he used force to resist. (PX 7 (DeMichele Dep.) at 143-44) The parties likewise dispute what, if any, force was used against Plaintiff. Officers Tierney and Ruiz testified that they used "soft hand" techniques to force Plaintiff's hands behind his back. (County R.56.1 Stmt. ¶¶ 90, 91) Ruiz also stated that he used "cuff control" -- which involves twisting handcuffs at a pressure point on the wrists -- in response to Plaintiff's resistance. (Pltf. R. 56.1 Stmt. ¶ OO; PX 11 (Ruiz Dep.) at 84-89) Plaintiff sustained bruises on his wrist, a scrape on his knee, a scrape and bruises on the back of his neck, and a cut above his left eyebrow.*fn5 (County R.56.1 Stmt. ¶ 92) There were about 20 to 25 officers at the Plaintiff's residence at the time of his arrest. (Pltf. R. 56.1 Stmt. ¶ FF)


DeMichele was charged in a criminal complaint with robbery in the first, second and third degree, with grand and petit larceny, with resisting arrest, and with criminal possession of stolen property. (PX 36 (Criminal Complaint)) He was held in NYPD custody from January 18, 2009 until January 20, 2009, when he was arraigned and released on his own recognizance. (Pltf. R. 56.1 Stmt. ¶¶ TTTT, VVVV) He was ordered to return to Bronx County Supreme Court on March 26, 2009. (Pltf. R. 56.1 Stmt. ¶ WWWW)

Plaintiff's mother filed a civilian complaint with the County. Her complaint was investigated by County Detective Steven Fumuso. (County R.56.1 Stmt. ¶ 93; Jones Decl., Ex. M (Fumuso Aff. ¶ 4)) Fumuso's investigation revealed that 1164 Edison Avenue was owned by Marcy Manfredonia, Desideri's mother (id. ¶ 95), and that the white Mercedes observed at the rear of the building on January 18, 2009, and impounded by County police, was also owned by Manfredonia. (Id. ¶ 94) Fumuso's investigation also revealed that Christina Ruocco, Desideri's girlfriend, had falsely reported to the New Rochelle Police Department on January 18, 2009, that the Mercedes had been stolen. (Id. ¶ 103; Jones Decl., Ex. M (Fumuso Aff.) ¶ 6)

On January 20, 2008, Det. Fumuso interviewed Guerrerio, who reported that "he was 'not 100% sure' about the identification of DeMichele." Guerrerio, however, "had seen the suspect vehicle at the scene on Edison Avenue, and was positive that it was the sa[me] one that 'Frankie Dez' arrived in earlier at 870 Shore Road." (Pltf. R. 56.1. Stmt. ¶ QQQ; PX 1 (Fumuso Report) at 12)

Based on his investigation, Det. Fumuso determined that it was Desideri, and not DeMichele, who had been driving the white Mercedes on January 18, and the County did not bring any charges against Plaintiff. (County R.56.1 Stmt. ¶ 97; Jones Decl., Ex. M (Fumuso Aff.) ¶¶ 6, 9))

In late January 2009, Det. Fumuso told NYPD Detective John Fennell that Plaintiff may have been misidentified on January 18, 2009. (City R. 56.1 Stmt. ¶ 116) In order to confirm the misidentification, Det. Fennell arranged for Guerrerio to view a photo array on February 2, 2009. (City R. 56.1 Stmt. ¶ 117) At that time, Det. Fennell confirmed that Guerrerio had misidentified Plaintiff as one of the robbers on January 18, 2009. (City R. 56.1 Stmt. ¶ 117)

When Plaintiff returned to Bronx County Supreme Court on March 26, 2009, the People dismissed the charges against him. (Pltf. R. 56.1 Stmt. ¶ CCCCC; PX 39) In dismissing the charges, the assistant district attorney noted that "there had been a mis-identification. The first individual who was identified, Mr. DeMichele, had not actually been present during the incident." (Pltf. R. 56.1 Stmt. ¶¶ EEEEE, FFFFF; PX 39)


A number of Plaintiff's claims are brought under Section 1983, which provides "'a method for vindicating federal rights elsewhere conferred,' including under the Constitution." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In order to state a claim for relief under Section 1983, "[t]he conduct at issue 'must have been committed by a person acting under color of state law' and 'must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.'" Id. (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)).


Summary judgment is warranted when the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "'[W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.'" Lesavoy v. Lane, No. 02 Civ. 10162, 2008 WL 2704393, at *7 (S.D.N.Y. July 10, 2008) (quoting Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991)).

In deciding a summary judgment motion, the Court "'resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a "'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. . . . [M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.'" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).


Plaintiff has moved for summary judgment on his false arrest claims against Urprasad, Mellusi, and DiCarlo, while the City and County Defendants have moved for summary judgment on all of Plaintiff's false arrest claims.

"To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that 'the defendant intentionally confined him without his consent and without justification.'" Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)); see also Golphin v. City of New York, 09 Civ. 1015(BSJ), 2011 WL 4375679, at *1 (S.D.N.Y. Sept. 19, 2011) ("In order to state a claim for false arrest [under New York law], a plaintiff must prove four elements: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.") (citing Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003)).*fn6 "The Fourth Amendment protects against unreasonable ...

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