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Perez v. Duran

United States District Court, S.D. New York

July 3, 2013

JUTHER PEREZ, Plaintiff,
P.O. ELVIS DURAN, Defendant

Decided: July 2, 2013.

Page 534

For Juther Perez, Plaintiff: Joshua Paul Fitch, LEAD ATTORNEY, Cohen & Fitch LLP, New York, NY.

For P.O. Elvis Duran, Shield No. 21865, Individually, P.O. Elvis Duran, Shield No. 21865 in his official capacity, Defendants: Joshua Joseph Lax, Steven Mark Silverberg, LEAD ATTORNEYS, New York City Law Department, New York, NY.


Page 535


John G. Koeltl, United States District Judge.

The defendant, Police Officer Elvis Duran, has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking to dismiss the claims alleged against him by the plaintiff, Juther Perez. The plaintiff alleges claims for false arrest, malicious prosecution, and denial of the right to a fair trial in violation of 42 U.S.C. § 1983.

The circumstances surrounding the plaintiff's arrest and prosecution are vigorously disputed by the parties particularly whether Officer Duran had probable cause to arrest the plaintiff and whether Officer Duran truthfully reported the circumstances of the arrest to the prosecutor. Therefore, the motion for summary judgment must be denied.


The standard for granting summary judgment is well established. " The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). The moving party bears the initial burden

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of " informing the district court of the basis for its motion" and identifying the matter that " it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify the material facts and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Chepilko v. Cigna Group Ins., No. 08 Civ. 4033, 2012 WL 2421536, at *1 (S.D.N.Y. June 27, 2012).

In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); see also Pelayo v. Port Auth., 893 F.Supp.2d 632, 634-35 (S.D.N.Y. 2012).


The plaintiff, Juther Perez, was arrested on February 12, 2011 at approximately 2:45pm in front of 340 Alexander Avenue in the Bronx and charged with criminal sale of a controlled substance in violation of New York Penal Law § 220.39, a Class B felony. (Pl.'s Resp. to Defs.' Local Rule 56.1 Stmt. (" 56.1 Resp." ) ¶ 1; Silverberg Decl., Ex. A.)

On the day of his arrest, the plaintiff was in the vicinity of 340 Alexander Avenue to visit a friend. (Fitch Decl., Ex. A (" Pl. Dep." ) at 38; Def.'s Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (" 56.1 Stmt." ) ¶ ¶ 1, 3; 56.1 Resp. ¶ ¶ 1, 3.) The plaintiff parked his car and saw his father, Juther A. Perez, Sr., walking down the street. (Pl. Dep. at 38; Fitch Decl., Ex. B (" Perez Sr. Dep." ) at 8.) The parties have very different versions of the events that ensued.


The plaintiff's version of the events is as follows. The plaintiff stopped to speak with his father, Perez Sr. (Pl. Dep. at 38.) The plaintiff and his father shook hands. (Pl. Dep. at 38-40.) According to Perez Sr., he gave the plaintiff a high-five. (Perez Sr. Dep. at 71.) The plaintiff testified at his deposition that the handshake with his father could be described as grabbing hands together by " kind of lock[ing] your fingers in each other['s] hands" and " shak[ing] your hands a little bit," and the handshake did not last longer than two seconds. (Pl. Dep. at 39; see 56.1 Stmt. ¶ 4 (" [the] plaintiff and his father made hand to hand contact, which lasted approximately two seconds" ).)

The plaintiff testified that when he shook hands with his father, his father did not pass anything to him, the plaintiff did not pass anything to his father, and the plaintiff did not sell anything to his father. (Pl. Dep. at 104.) Perez Sr. testified that the only physical contact he had with the plaintiff was a high-five and that the plaintiff did not give him anything during this interaction. (Silverberg Decl., Ex. C at 71, 74.)

After he saw his father, the plaintiff went into 340 Alexander Avenue, and police officers stopped Perez Sr. at 143rd Street. (Perez Sr. Dep. at 74.) Perez Sr. testified that he told the officers that he

Page 537

had drugs on him. (Perez Sr. Dep. at 79; 56.1 Stmt. ¶ ¶ 11, 12; 56.1 Resp. ¶ ¶ 11, 12.)

The plaintiff received a phone call from a friend informing him that his father was being arrested. (Pl. Dep. at 41, 48.) The plaintiff then took the elevator downstairs to " ask what happened, and hopefully get his [father's] property." (Pl. Dep. at 41, 48.) Once the plaintiff left the building, two officers " came and grabbed" him. (Pl. Dep. at 48.) The officers searched the plaintiff and seized his phone, keys, and $444 in cash. (Pl. Dep. at 63-64.) The plaintiff testified that the defendant, Officer Duran, arrived after other officers had already placed the plaintiff in handcuffs. (Pl. Dep. at 53, 56-57; 56.1 Resp. ¶ 1.) The plaintiff testified that he recognized Officer Duran " from around the neighborhood." (Pl. Dep. at 53.)


Officer Duran's version of the events is very different. Officer Duran submitted a sworn report of the incident in which he claimed to have observed the plaintiff's father hand the plaintiff " a sum of United States currency, and in exchange, [the plaintiff] handed [his father] a small object," which Officer Duran identified, based on his training and experience, as crack cocaine. (Fitch Decl., Ex. C.) At his deposition, Officer Duran testified that on the day of the plaintiff's arrest, Officer Duran saw the plaintiff hand a " clear plastic bag containing [] powder," to Perez Sr. (Fitch Decl., Ex. G (" Duran Dep." ) at 53.) Officer Duran also testified that he saw the plaintiff's father hand the plaintiff cash. (Duran Dep. at 52-53.) Officer Cruz, who was also on the scene at the time ...

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