United States District Court, E.D. New York
MEMORANDUM & ORDER
PAMELA K. CHEN, District Judge.
Plaintiff Eddy Stwaerd's ("Stwaerd") sole remaining claim in this case is that Defendant, Officer Chris Thompson ("Officer Thompson"),  in his individual and official capacity, falsely arrested Stwaerd. Stwaerd's arrest was based on the allegations of his wife and the initial report of two other officers, which suggested that he had made harassing telephone calls to his wife after an earlier disagreement over his refusal to pay the couple's outstanding cable bill. The Court now grants Officer Thompson's summary judgment motion (Dkt No. 52), dismissing this claim with prejudice.
In the operative, second amended complaint, Stwaerd claims that Officer Thompson falsely arrested him on a charge of aggravated harassment in the second degree. New York Penal Law § 240.30(2) provides that "[a] person is guilty of aggravated harassment in the second degree when... [w]ith intent to harass or threaten another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." Id. The central issue in deciding this summary judgment motion is whether the undisputed evidence shows that Officer Thompson had probable cause to arrest Stwaerd for this offense.
On the evening of May 23, 2008, Stwaerd and his then-wife, Nilsa Ware ("Nilsa"), had a telephone conversation about their unpaid cable bill. (Def.'s 56.1 ¶ 2.) When Stwaerd told Nilsa that he would pay the bill after receiving his next paycheck, his wife was displeased, though, according to Stwaerd, they did not fight. (Dkt. Nos. 57-1-57-6 ("Pl.'s Exs."), Ex. 2, at 28:10-31:13.)
The next morning, at approximately 7 AM, the New York City Police Department ("NYPD") received a 911 call from a Sprint PCS cellular telephone number, 917-744-5910. (Dkt. Nos. 54-1-54-8 ("Def.'s Br. Exs."), Ex. B.) The caller identified herself as "Nilsa." ( Id. ) The NYPD's records indicate that "Nilsa" reported her husband's verbal abuse, and requested that the police remove him from their residence at 969 East 100th Street in Brooklyn, New York. ( Id.; Def.'s 56.1 ¶¶ 1, 4.) The NYPD promptly dispatched Officer Evens Pierre-Louis ("Officer Pierre-Louis") and another officer (collectively, the "investigating officers") to the residence to investigate this reported "family dispute." (Def.'s 56.1 ¶ 5.)
As one of the investigating officers called to the couple's residence, Officer Pierre-Louis's job was to speak with the "complaining victim, " i.e., Nilsa, and to prepare a "domestic incident report" based on the victim's allegations to bring back to the precinct. (Pl.'s Ex. 3, at 36:22-37:4; Def.'s Br. Ex. C, at 16:13-17:12.) In this report, Officer Pierre-Louis summarized the results of the investigation:
At T/P/O [ i.e., the time/place of occurrence][, ] C/V [i.e., the complaining victim] states she had an argument with her husband because he refused to pay the bills in the house. C/V states she just wants her husband out of the house. C/V sustained no injuries. C/V states her husband called her 35 times between 10 PM to 6 AM Saturday morning saying that he will not give her any money.
(Def.'s Br. Ex. D (emphasis added).)
In a contemporaneous, sworn statement appended to this report, Nilsa, the complaining victim, corroborated these results:
On 5/23/08[, ] I took a 2nd job at night. Ed called me about 35 times between 10 pm an[d] [sic] 6 am Sat morning. He said he is not paying me $[.] [H]e [sic] is off of work for the next few days so he will sit here and harass me because the cops can't do anything about it. I told him to stop calling and harassing me and he said no so I called the cops because I want him out.
( Id. (emphasis added).) In short, Nilsa complained that Stwaerd had made 35 telephone calls between the hours of 10 PM the evening before and 6 AM, for no other purpose except to harass her at work over the subject of paying the cable bill.
This report, however, also indicated that the investigating officers did not arrest Stwaerd "on-scene, " and filled in the corresponding bubble for "No Offense Committed" as their reason for not doing so. ( Id. ) At his deposition, however, Officer Pierre-Louis testified that the marking of "No Offense Committed" was a "mistake, " because this report clearly listed below an offense for "aggravated harassment." (Dkt. Nos. 59-1-59-3 ("Def.'s Reply Exs."), Ex. B, at 45:4-45:10.)
Officer Thompson, thereafter, reviewed the investigating officers' domestic incident report. (Def.'s 56.1 ¶ 18.) As Officer Thompson testified, his job, as a "domestic violence officer" for the precinct, was to "read all domestic incident reports that come in, " and, depending on the substance of report, to conduct a subsequent arrest. (Def.'s Br. Ex. F, at 11:21-12:24; Def.'s 56.1 ¶¶ 16-17.) On June 4, 2008, Officer Thompson also called the complaining victim, and Nilsa ...