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Soto v. City of New York

United States District Court, S.D. New York

March 6, 2017

THE CITY OF NEW YORK, et al., Defendants.


          LAURA TAYLOR SWAIN, United States District Judge

         Plaintiff Debora Poo Soto, who was arrested on September 15, 2012, in connection with Occupy Wall Street (“OWS”) demonstrations in downtown Manhattan, brought this action under 42 U.S.C. § 1983, alleging violations of her civil rights. (See docket entry no. 35 (Second Amended Complaint (“SAC”)).) The Amended Complaint names as defendants the City of New York, New York City Police Department (“NYPD”) Officer Lazar Simunovic, NYPD Lieutenant Stephen Latalardo, and NYPD Officer John Baiera (collectively, “Defendants”). The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331.

         Before the Court is Defendants' motion for summary judgment as to all of Plaintiffs' claims. (Docket entry no. 72.) The Court has carefully considered the parties' submissions and, for the following reasons, the motion is granted as to Plaintiff's retaliation claim under the First Amendment and her claim for municipal liability, and otherwise is denied.[1]


         The following facts are drawn from the parties' statements of undisputed material fact submitted pursuant to Local Rule 56.1.[2]

         As an initial matter, the parties have both submitted video recordings, allegedly from the area in question, in connection with the instant motion. (See docket entry no. 74 (Declaration of Joy T. Anakhu (“Anakhu Decl.”)), Ex. N; docket entry no. 84 (Declaration of Rebecca Heinegg (“Heinegg Decl.”), Ex. 1.) Defendants' video is described as “video produced by plaintiff” in connection with this litigation, and is authenticated only by Defendants' attorney, who has no firsthand knowledge of the video's origins. (Anakhu Decl. ¶ 15.) Plaintiff's video is “the video identified as P059, provided to Defendants on December 10, 2014, ” in connection with this litigation, and is authenticated only by Plaintiff's attorney, who has no firsthand knowledge of the video's origins. (Heinegg Decl. ¶ 3.) In order to be admissible as evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). The Second Circuit has required authentication of video evidence “on the same principles as still photographs.” Mikus v. U.S., 433 F.2d 719, 725 (2d Cir. 1970); see also Leo v. Long Island R. Co., 307 F.R.D. 314, 323-26 (S.D.N.Y. 2015) (holding that videos are not self-authenticating and therefore require authentication testimony). The Court finds that neither video has been authenticated by testimony sufficient to satisfy Federal Rule of Evidence 901, and the Court will not consider the videos in connection with the instant motion. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 269 F.3d 114, 123 (2d Cir. 2001) (“It is appropriate for a district court ruling on summary judgment to consider only admissible evidence.”).

         Soto is a freelance journalist who attended an OWS demonstration in lower Manhattan on September 15, 2012. (Def. 56.1 ¶¶ 4-5.) At approximately 8:40 p.m., Soto arrived at the corner of Broadway and Cedar Street. (Def. 56.1 ¶ 16.) A number of OWS protesters were also present on the corner. (Def. 56.1 ¶ 17.[3])

         Defendant Latalardo was present on the corner along with a number of other NYPD officers. (Def. 56.1 ¶¶ 26-36.) Latalardo testified that he issued several warnings for those present in the area, including Soto, to disperse. (Def. 56.1 ¶¶ 29, 32.) However, Latalardo was not certain that Soto heard his instructions. (Pl. 56.1 ¶ 29.) Soto testified that she did not hear any instructions to disperse. (Pl. 56.1 ¶ 29.) Latalardo testified that, while he was giving instructions to disperse, Soto came close to him and raised her camera to his face. (Def. 56.1 ¶¶ 33-34.) Soto disputes this version of events, stating that she did not approach any police officer, and remained several feet from the officers at all times. (Pl. 56.1 ¶¶ 33-34, 44.) Soto was arrested on the sidewalk shortly after the orders to disperse were given. (Def. 56.1 ¶¶ 36-37.)

         After her arrest, Soto was placed in plastic handcuffs. (Def. 56.1 ¶ 59.) Soto complained to officers at the time about the tightness of her handcuffs. (Def. 56.1 ¶ 68.) Soto later sought medical treatment for wrist injuries, and was diagnosed with post-traumatic muscular neuralgia and tendonitis. (Pl. 56.1 ¶¶ 95, 98.)


         Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment where that party can demonstrate “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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A party that is unable to “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial” will not survive a Rule 56 motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of demonstrating the absence of a material fact, and the court must be able to find that, “after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party.” Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). For the purposes of summary judgment motion practice, a fact is considered material “if it might affect the outcome of the suit under the governing law, ” and an issue of fact is “genuine” where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d Cir. 2001) (internal quotation marks and citations omitted). “[M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citation omitted). “As to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the nonmoving party's case.” Nora Beverages, 164 F.3d at 742.

         Plaintiff's Claim for False Arrest

         Defendants argue that probable cause existed for Plaintiff's arrest, and that her claim for false arrest must therefore fail as a matter of law. In order to establish probable cause, “the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information [must be] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been, or is being committed by the person to be arrested.” Dunaway v. New York, 442 U.S. 200, 208 (1979).

         Defendants first argue that there was probable cause to arrest Plaintiff for disorderly conduct. Section 240.20 of the New York Penal Law (“N.Y.P.L.”) defines various disorderly conduct offenses. Section 240.20(5) provides that one “is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [he or she] obstructs vehicular or pedestrian traffic.” The Second Circuit, in interpreting Section 240.20(5), has required a showing that the putative offender was “actually and immediately blocking” the pedestrian or vehicular traffic in question. Zellner v. Summerlin, 494 F.3d 344, 372 (2d Cir. 2007). Here, the evidence submitted by the Defendants is insufficient to establish, as a matter of law, that there was probable cause to believe Soto was personally blocking traffic. The evidence proffered by Plaintiff that a substantial number of NYPD officers and other members of the public were also present in the ...

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