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Gannon v. City of New York

United States District Court, S.D. New York

January 8, 2013

George GANNON, Plaintiff,
v.
The CITY OF NEW YORK, Guadalupe Sarracino, Defendants.

Page 242

Michael Frank Rubin, Kelly & Rubin, LLP, New York, NY, for Plaintiff.

Andrew Galway Owen, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

HAROLD BAER, JR., District Judge.

The City of New York and Guadalupe Sarracino (" Sarracino" ) (collectively " Defendants" ) move to dismiss several claims in the Complaint charging violations of 42 U.S.C. § 1983 and New York state law for injuries arising out of a police search of Plaintiff George Gannon (" Plaintiff" )'s apartment. For the reasons set forth below, Defendants' motion to dismiss is GRANTED with respect to unlawful seizure but DENIED with respect to malicious prosecution.

Background

On November 11, 2009, Sarracino arrived at Plaintiff's apartment building with a team of police officers under her supervision following a tip from a security guard to investigate whether Jason Coonan (" Jason" ) possessed a handgun. The security guard in the lobby directed the officers to Plaintiff's apartment on the seventh floor, where Jason was headed. The police found Jason with Plaintiff's stepson Michael Buccino (" Michael" ) on the seventh floor. The police patted down the two men but found no gun. Not satisfied, Sarracino knocked on Plaintiff's apartment door and directed a full blown search without a search warrant or consent, notwithstanding Plaintiff's objection. Am. Compl. ¶ 19. As a result of the search, the police found weapons not attributed to the original gun investigation. Id. ¶ 20. Sarracino then arrested Plaintiff and charged him with several counts related to criminal possession of a weapon. Id. ¶ 21. Plaintiff was subsequently indicted by a grand jury and incarcerated until he was released on bail approximately a week later. Id. ¶¶ 21-22. Plaintiff's motion to suppress all evidence was subsequently granted, and the case was dismissed on January 3, 2012. Id. ¶¶ 25, 26.

Following Defendants' motion to dismiss, Plaintiff amended the Complaint, withdrawing several claims and terminating the action against the New York City Police Department. See Pl.'s Opp. 6; Am. Compl. In addition to opposing Defendants' motion, Plaintiff originally submitted a cross-motion for summary judgment with respect to Defendants' liability for unlawful search and malicious prosecution. At the oral argument, however, Plaintiff's Counsel notified the Court that Plaintiff

Page 243

was withdrawing the cross-motion, as well as the assault and battery claim in the Amended Complaint. Two claims remain for the Court to resolve: (1) unlawful seizure under § 1983; and (2) malicious prosecution under state law.

Discussion

A. Legal Standard

To survive Defendants' motion under Fed.R.Civ.P. 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The requirement that the court accept all factual allegations as true does not apply to " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. The court's determination of whether a complaint states a " plausible claim for relief" is a " context-specific task" that requires application of " judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. To decide the motion to dismiss, a court may consider " any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by ...


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