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Ribot v. City of New York

United States District Court, S.D. New York

February 3, 2017

JIMMY RIBOT, Plaintiff,
v.
CITY OF NEW YORK, RAYMOND ALICEA - SHIELD #434, JAMES GILLESPIE - SHIELD # 7488, Defendants.

          Plaintiff Pro Se Jimmy Ribot

          Attorneys for Defendants ZACHARY W. CARTER By: Daniel Oliner, Esq.

          OPINION

          ROBERT W. SWEET U.S.D.J.

         Defendants City of New York, Raymond Alicea, and James Gillespie ("Defendants") moved pursuant to Rule 56, F. R. Civ. P. for summary judgment dismissing the complaint of plaintiff Jimmy Ribot ("Ribot" or the "Plaintiff"). Based upon the findings and conclusions set forth below, Defendants' motion for summary judgment is granted.

         Prior Proceedings

         The pro se Plaintiff initiated this civil rights action on December 24, 2013. The Complaint was amended three times, most recently on September 1, 2014. On December 29, 2015, Defendants filed a letter, which the Court treated as a motion for summary judgment in a January 25, 2016 scheduling order. However, on May 13, 2016 the Court denied that motion for summary judgment with leave to renew, finding that compliance with Federal Rule of Civil Procedure 56.1 was appropriate for this case. Defendants filed the instant motion for summary judgment on September 2, 2016. The motion was taken on submission and marked fully submitted on October 20, 2016.

         The Facts

         The facts have been set forth in the Defendants' Rule 56.1 statement of material facts and Plaintiffs affidavit in opposition to the motion, which are not in dispute except as noted below.

         On June 15, 2012 at approximately 10:55 p.m., two Hispanic males entered the Duane Reade store located at 100 Delancey Street in Manhattan and approached the cash register, pulled out a firearm, and instructed the cashier to give them the money in the register. When the cashier was unable to do so, the individual carrying the firearm shot once in the direction of the cashier and the two men fled the scene of the crime. Detectives from the Seventh Precinct investigated this incident, but closed that investigation in September 2012 because all leads had been exhausted. See Oliner Decl., Exs. D, E, and 0.

         In February 2013, Detective Alicea interviewed a confidential informant ("Confidential Informant"), who told the Detective that he or she had seen a video of the June 15, 2012 attempted robbery on YouTube and was able to identify the individuals involved in that robbery as Plaintiff and non-party Victor Irizary. Oliner Decl., Ex. 0 at ¶¶ 3-4. Confidential Informant provided the basis for that knowledge, and further informed Detective Alicea that Confidential Informant had previously made a tip to the Crime Stoppers tip line. Oliner Decl., Ex. 0 at ¶¶ 5-6. Detective Alicea later verified that Confidential Informant had made a tip. After reviewing the video of the robbery, Detective Alicea found no basis to discredit Confidential Informant's identifications. Oliner Decl., Ex. 0 at ¶ 9. Detective Alicea then activated an I-Card for Plaintiff. Oliner Decl., Ex. 0 at ¶ 11.

         On February 27, 2013, Plaintiff was detained on the I-Card, and subsequently arrested at or around 1:45 p.m. Oliner Decl., Ex. 0 at ¶ 12; see also Ex. K. On February 28, 2013 the cashier from the Duane Reade store on the night of the attempted robbery participated in a line-up and identified Plaintiff as looking "very familiar, " because "he looks like the one that was holding the gun." Oliner Decl., Ex. M at DEF 4, 6, 8/ Ex. 0 at ¶ 13. The cashier clarified his earlier statements by telling the detective that "he resembles the one that was holding the gun." Oliner Decl., Ex. M at DEF 6.

         Later on February 28, 2013, Plaintiff was arraigned on charges of Robbery in the First and Second Degrees in New York County Criminal Court. Oliner Decl., Exs. N, Q. However, on August 30, 2013 the criminal action against Plaintiff was dismissed on motion by the District Attorney. Oliner Decl., Ex. N. Any involvement by Detective Gillespie was to assist Detective Alicea and was relying on Detective Alicea's knowledge and representations. Oliner Decl., Ex. P.

         The Applicable Standard

         Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). The relevant inquiry on application for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. A court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. Westinghouse Elec. Corp. v. N.Y. City Transit Auth.,735 F.Supp. 1205, 1212 (S.D.N.Y. 1990) (quoting Anderson, 477 U.S. at 249). "[T]he mere existence of some alleged factual dispute between the ...


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