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McKay v. City of New York

United States District Court, S.D. New York

July 25, 2014

DAVID MCKAY, Plaintiff,

Filed July 24, 2014

Page 500

[Copyrighted Material Omitted]

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For David McKay, Plaintiff: Ronald Podolsky.

For The City of New York, Michael Bloomberg, Mayor of the City of New york, Raymond Kelly, Police Commissioner of the City of New York, Police Officer Harry Perez, Defendants: Tobias Eli Zimmerman, LEAD ATTORNEY, City of New York Law Department, New York, NY.

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John G. Koeltl, United States District Judge.

Plaintiff David McKay brings this action against the City of New York (" the City" ), Michael Bloomberg, Raymond Kelly, and Officer Harry Perez, alleging false arrest, false imprisonment, and malicious prosecution under 42 U.S.C. § 1983.[1] On June 1, 2012, Defendant Perez arrested the plaintiff for trespass after Perez and other officers encountered the plaintiff in the vestibule of an apartment building at 105 Charles Street in Manhattan. The plaintiff was held in custody for approximately three hours, and then released. On June 21, 2012, Perez signed a criminal complaint charging the plaintiff with criminal trespass. The plaintiff made multiple court appearances before the charge was dismissed on speedy trial grounds. In this action, the plaintiff alleges that he was arrested and prosecuted without probable cause, and that his prosecution was motivated by malice. Presently before the Court is the defendants' motion for summary judgment dismissing the plaintiff's claims. For the reasons explained below, the defendants' motion is granted.


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. L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). The moving party bears the initial burden of " informing the district court of the basis

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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).

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 Perez v. Duran, 962 F.Supp.2d 533, 535-36 (S.D.N.Y. 2013).


Unless otherwise noted, the following facts are not in dispute.


Plaintiff McKay is a professional musician who resides in New York. (Aff. of David McKay (" McKay Aff." ) ¶ 2; Compl. ¶ 2.) Defendant Perez is a New York City police officer who was assigned to the Sixth Precinct in Manhattan during the events relevant to this action. (Compl. ¶ 6.) Defendant Bloomberg was the Mayor of New York City and Defendant Kelly was the Police Commissioner of New York City when the relevant events occurred. (Compl. ¶ ¶ 4, 5.)


At approximately 3:00am on the evening of June 1, 2012, the plaintiff finished a performance at the Fat Cat Club in Manhattan. (See McKay Aff. ¶ 2.) After the performance, the plaintiff met a woman at a deli, left the deli with her, and had a conversation with her while sitting on the steps in front of the entrance of the residential building at 105 Charles Street. (McKay Aff. ¶ 2.) The conversation lasted approximately an hour and a half. (McKay Aff. ¶ 3.) After the conversation, the woman left. (McKay Aff. ¶ 3.) The plaintiff alleges that sitting on the steps had exacerbated an existing back injury, and that in order to relieve his back pain he entered the vestibule of the building at 105 Charles Street and sat down with his back against the wall. (Decl. of Tobias E. Zimmerman in Supp. of Defs.' Mot. for Summ. J. (" Zimmerman Decl." ), Ex. E (" McKay Dep." ) at 6; McKay Aff. ¶ 3.)

The vestibule was separated from the street by four or five steps, and the door to the vestibule was unlocked. (McKay Aff. ¶ ¶ 2-4; McKay Dep. at 25; see also Zimmerman Decl., Ex. F.) The vestibule contained an " intercommunication device whereby persons seeking entrance to the secure part of the building could be admitted by response by tenants." (McKay Aff. ¶ 4.) It did not contain any posted " no trespassing" sign.[2] (McKay Aff. ¶ 13.)

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At 4:51am on June 1, 2012, a 911 operator received a call from a female caller who reported that a man was sleeping in the doorway of the building at 105 Charles Street. (See Zimmerman Decl. ¶ 5 & Ex. D.) Defendant Perez and other officers from the Sixth Precinct responded to this call and arrived at 105 Charles Street at 4:52am. (See McKay Dep. at 37-38; Zimmerman Decl. ¶ 5 & Ex. D.) The plaintiff alleges that he had been in the vestibule for about ten minutes before the officers arrived. (McKay Aff. ¶ 5.) When the officers arrived, the plaintiff's eyes were closed. (McKay Dep. at 27.) The officers knocked on the door and pushed at the door. (McKay Dep. at 27.) The door pushed against the plaintiff's leg. (McKay Dep. at 27.) The plaintiff then got up and opened the door. (McKay Aff. ¶ 5; McKay Dep. at 27.) The officers questioned the plaintiff about drug dealing activities, which the plaintiff denied, and the officers then handcuffed the plaintiff, placed him under arrest, and escorted him to the Sixth Precinct station, which is located across the street from 105 Charles Street. (McKay Aff. ¶ 6; McKay Dep. at 6; Zimmerman Decl. ¶ 6.) At the station, the plaintiff was fingerprinted, photographed, and placed in a holding cell. (McKay Aff. ¶ 7; McKay Dep. at 12, 74.)

Defendant Perez completed and signed an arrest Report that indicates that the plaintiff was arrested at 5:03am for trespass, a violation under New York Penal Law § 140.05. (See Zimmerman Decl., Ex. B.) The plaintiff spent approximately three hours in custody, and was then issued a Desk Appearance Ticket and released. (McKay Aff. ¶ 8; Zimmerman Decl., Ex. C.) The Desk Appearance Ticket listed New York Penal Law § 140.05 as the offense charged and required the plaintiff to appear in New York County Criminal Court on July 9, 2012 to answer the charge. (Zimmerman Decl., Ex. C.) It did not impose any travel restrictions on the plaintiff. (See Zimmerman Decl., Ex. C; see also McKay Dep. at 21-22.)


On June 21, 2012, Defendant Perez signed a criminal complaint charging the plaintiff with criminal trespass in the second degree, a misdemeanor under New York Penal Law § 140.15. (See Zimmerman Decl., Ex. H.) The complaint states that Perez " observed [the plaintiff] inside the vestibule of a dwelling, an apartment building where people reside, at [105 Charles Street], laying down and sleeping, and . . . said location is beyond a posted sign which read, NO TRESPASSING." (Zimmerman Decl., Ex. H.) It further states that the plaintiff is not a tenant at 105 Charles Street, and that the plaintiff was unable to provide the name of a resident who had invited him onto the premises. (Zimmerman Decl., Ex. H.) Finally, it states that Perez

determined that [the plaintiff] did not have permission or authority to be inside the dwelling based on information and belief the source of which is as follows: [Perez] is informed by Joseph Jackson, of an address known to the District Attorney, that [Jackson] is an agent of this dwelling and [the plaintiff] did not have ...

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