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Lundt v. The City of New York

United States District Court, Second Circuit

September 20, 2013

MAX LUNDT, Plaintiff,
THE CITY OF NEW YORK; SUPERVISOR POLICE OFFICER JOHN DOE #1; DET. DANIEL ALESSANDRINO; and POLICE OFFICERS JOHN DOES # 1-5; the individual defendant(s) sued individually and in their official capacities, Defendants.

Michael O. Hueston, Andrew S. Rendeiro, Flamhaft Levy Hirsch & Rendeiro LLP, Brooklyn, NY, for plaintiff.

Michael A. Cardozo, Susan Scharfstein, New York City Law Department, New York, NY, for defendants City of New York and Det. Daniel Alessandrino.


DENISE COTE, District Judge.

In his second amended complaint ("Complaint"), Max Lundt ("Lundt") brings claims in this Section 1983 action against defendants the City of New York ("City"), Assistant District Attorney Gregory Sangermano ("ADA Sangermano"), and Det. Daniel Alessandrino ("Alessandrino") arising out of his arrest and prosecution by state authorities. The claims against ADA Sangermano have been dismissed based on the affirmative defense of absolute immunity. The City and Alessandrino have moved to dismiss the remaining claims. For the reasons stated below, their motion is granted.


The following facts are taken from the Complaint. The claims in this action arise from a vicious attack on January 8, 2011 on two victims in front of a building at 344 East 28th Street ("344") in the New York City. The victims were interviewed by the police. One victim described his attackers as two black males and one Hispanic male. The second victim described the attackers as 11 to 13 members of the Brotherhood Crew.

Lundt was a suspect in the attack. On the day of the attack, Alessandrino and other officers went to Lundt's home and questioned him about the assault. Lundt denied being involved in the attack and said he had an alibi. Lundt told the police that he had left 344 ten minutes before the attack and had entered the building at 330 East 26th Street ("330") to visit a friend. The Complaint asserts that working video surveillance cameras were located at both 344 and 330, and could have been used to corroborate Lundt's alibi.

During the ensuing investigation, Alessandrino and ADA Sangermano determined that Lundt belonged to the Brotherhood Crew, that Lundt was "a significant instigator" of the attack, and that the attack grew out of a rivalry between two gangs. The two defendants obtained video surveillance tapes from the cameras at 330 and 344. These tapes corroborated Lundt's alibi. The tapes showed Lundt leaving 344 ten minutes before the attack and then entering 330 before the attack. They do not show Lundt leaving 330 in the short interval before the attack occurred. The Complaint asserts that ADA Sangermano and Alessandrino suppressed this exculpatory information.

During his arrest on January 11, Lundt's handcuffs were too tight and injured him. Lundt was arraigned and released on bail that day. At the arraignment, a prosecutor falsely stated that the videotapes corroborated the charges. When Lundt's defense attorney explained Lundt's alibi to ADA Sangermano, Lundt alleges that the ADA falsely told the attorney that Lundt was "not on" the 330 tape.

On February 10, Lundt was arraigned on an indictment and remanded. In support of remand, ADA Sangermano falsely stated in court that a review of the 330 video discredited Lundt's alibi. Lundt was released from custody on February 17.

Despite a court order to produce the videotapes to defense counsel and repeated written and oral requests from defense counsel, ADA Sangermano delayed providing the 330 tape until April 18. On April 20, having reviewed the 330 tape, Lundt's defense attorney asserted in writing to ADA Sangermano that the tape established Lundt's alibi. Despite representations from ADA Sangermano beginning in June that the case against Lundt was going to be dismissed, the case was not dismissed until October 6, 2011.

Lundt filed this action, pursuant to 42 U.S.C. ยง 1983, on March 8, 2012. He has amended his complaint twice. The Complaint pleads claims of false arrest, excessive force, retaliation, denial of a fair trial by the concealment of exculpatory evidence, malicious prosecution, unreasonable detention, and a Monell claim. At a conference on December 14, 2012, the Court granted ADA Sangermano's motion to dismiss based on the legal defense of absolute prosecutorial immunity. The remaining defendants have brought this motion to dismiss all claims against them.


When considering a motion to dismiss, a court must accept as true all allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Rothstein v. UBS AG , 708 F.3d 82, 94 (2d Cir. 2013). To survive a motion to dismiss, "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 (2009) (citation omitted); see Ideal Steel Supply Corp. v. Anza , 652 F.3d 310, 324 (2d Cir. 2011) (recognizing that "the standards for dismissal pursuant to Rule 12(c) are the same as for a dismissal pursuant to Rule 12(b)(6)"). The court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678. Accordingly, a court may disregard "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id.

Applying the plausibility standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. "Plausibility thus depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable." L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 430 (2d Cir. 2011). Although the focus should be on the pleadings in considering a motion to dismiss, the court will deem the complaint to include "any written instrument ...

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