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Simon v. City of New York

United States District Court, E.D. New York

March 19, 2017



          ERIC N. VITALIANO United States District Judge

         On March 27, 2009, plaintiff Alexina Simon ("Simon") commenced this § 1983 action against defendants the City of New York, New York City Police Department ("NYPD") Detective Douglas Lee, Sergeant Evelyn Alegre, and Queens County Assistant District Attorney ("ADA") Francis Longobardi. On October 19, 2011, summary judgment was granted for defendants on the ground of absolute immunity, and the case was dismissed. Plaintiff appealed. The Second Circuit vacated and remanded.[1] See Simon v. City of New York, 727 F.3d 167, 174 (2d Cir. 2013). The court of appeals pointedly noted, however, that it had made no finding as to qualified immunity. Id. That open question is now presented on defendants' renewed motion for summary judgment, as they advance qualified immunity as the principal ground for relief. For the reasons set forth below, defendants' motion is granted.


         Most of the relevant facts of this long-lived case, and the controlling standard of review, have already been described in prior memoranda and orders. See Simon v. City of New York, 09-cv-1302, 2011 WL 317975, at *1-2 (E.D.N.Y. Jan. 3, 2011); Simon, 819 F.Supp.2d at 147-48; Simon, 727 F.3d at 169-70. Therefore, only those facts relevant to this order will be recounted. All reasonable inferences are drawn, as they must be, in favor of plaintiff as the non-moving party.[2] See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).

         The origins of this case stem from an investigation, led by ADA Longobardi, into whether non-party NYPD Officer Shantell McKinnies falsely reported that her car was stolen. Simon Dep., Dkt. No. 127-2, at 41-42. Officer McKinnies alleged that the last person to see her car was a friend, whom she identified as "Alexandra Griffin." Longobardi Dep., Dkt. No. 127-5, at 32-33. According to police records, when "Alexandra Griffin" was first contacted by members of the NYPD on January 16, 2008, she provided limited information - namely that she had been out with McKinnies on the night the car was allegedly stolen and that a conflict ensued thereafter. Dkt. No. 124-1 at ¶ 16; Def. 56.1 Stmt., Dkt. No. 123 ¶¶ 5-9. Griffin then began crying and promptly hung up the telephone. Dkt. No. 124-1 at ¶ 16. In a follow-up conversation, "Alexandra Griffin" informed the officer that she went by the name "Alexandra Simon." Id. When detectives went to Alexandra Griffin/Simon's home at 444 Greene Avenue in Brooklyn for an in-person meeting, they were reportedly met with an "uncooperative person." M;Def. 56.1 Stmt. ¶ 12.

         Confusion ensued when investigators discovered that Alexandra Griffin/Simon lived at a home registered to plaintiff, Alexina Simon. Longobardi Dep. at 62. Only later would investigators come to realize that Alexina Simon and Alexandra Griffin/Simon shared a -, residence because they were mother and daughter, and that the similarity of their first names was a coincidence. At the time, however, the similarity of the names and the shared address led investigators to believe that Alexina Simon was, in fact, the witness they were after. Id. at 60-62.

         To that end, ADA Longobardi sought a material witness order and material witness arrest warrant as to Alexina Simon. The application, as required, set out the attempts that had been made to get in contact with Alexina Simon, including the aforementioned phone calls and subpoenas that had allegedly been delivered to 444 Greene Avenue. Dkt. No. 124-2. The application also described how ADA Longobardi had "spoke[n] with someone who purported to be the witness on the telephone[, ]" and that the witness conveyed that she was not legally required to speak with the District Attorney's Office, that, at this point, she believed to be harassing her. Dkt. No. 124-2 at 4.

         In an effort to end the recalcitrance of a perceived important prosecution witness, on August 8, 2008, a material witness order and material witness arrest warrant were issued for Alexina Simon. Dkt. No. 127-14. In pertinent part, the material witness arrest warrant provided that:

[ANY POLICE OFFICER IN THE STATE OF NEW YORK is], . . . COMMANDED forthwith to take the above-named ALEXINA SIMON into custody within the State of New York and bring her before this Court in order that a proceeding may be conducted to determine whether she is to be adjudged a material witness.

Dkt. No 127-14 (capitalization in original). The parties do not contest the fact that the order was sought in good faith.

         Detective Lee and Sergeant Alegre were tasked with executing this warrant. Accordingly, on August 11, 2008, around 10:00 a.m. or 11:00 a.m., they "arrested" plaintiff at her place of employment and took her to the Queens County Courthouse. Alegre Dep., Dkt. No. 127-4, at 116; Lee Dep., Dkt. No. 127-3, at 85-86, 87-88.

         The investigatory plan would soon unravel. At some point during the questioning of Simon, it came to light that she was not the witness whom they had originally sought. Though there is not perfect clarity as to when and how on August 11 that misidentification was revealed to each defendant, Detective Lee and Sergeant Alegre appear to be the first to realize that Simon was not the person they thought she was. Detective Lee testified that, upon arriving at the courthouse to meet with ADA Longobardi, Simon told Lee that "The person you're looking for is my daughter[, ]" and that Lee conveyed this information to Sergeant Alegre. Lee Dep. at 91; see also Alegre Dep. at 141. Around the same time, while questioning Simon in a hallway at the courthouse, ADA Longobardi also realized that they "wanted [Simon's] daughter and not her." Longobardi Dep. at 112. Accordingly, Sergeant Alegre testified that the warrant was never "executed." See Alegre Dep. at 148-49, 252-53, 255-56; Longobardi Dep. at 124-25. After these events had unfolded, around noon, Detective Lee and Sergeant Alegre, at the direction of ADA Longobardi, then took an unrestrained Simon to their office, approximately two-and-a-half blocks from the courthouse. Lee Dep. at 95; Alegre Dep. at 156-57.

         This is where the parties' accounts begin to diverge in substantial ways. Detective Lee and Sergeant Alegre are in significant agreement that Simon again spoke with ADA Longobardi at their offices and that she was taken home soon, i.e., at some point later that afternoon. See Lee Dep. at 99, 102 (1:00 p.m.); Alegre Dep. at 165 (between 2:00 p.m. and 3:00 p.m.). Simon on the other hand claims that she did not arrive home until after 8:00 that night. Simon. Dep. at 57.

         Notwithstanding this discrepancy, though, both sides agree that Simon returned to the DA's offices on the following day, August 12. Simon contends, however, that, after the first day of questioning concluded, she was told she had no choice but to return the next day. Simon Dep. at 53. Defendants, on the other hand, claim that Simon voluntarily agreed to return. Longobardi Dep. at 120, 123-25; Lee Dep. at 113; Alegre Dep. at 132. In sum, although there is no dispute that on August 12 the officers came in their car to Simon's home and brought her back to their office, Simon claims that the officers stated she had to "come to answer more question[, ]" Simon Dep. at 67, whereas the officers counter that they came to Simon's house purely as a courtesy, in recognition of her having agreed to return with her daughter, Longobardi Dep. at 120. In any case, it is clear that Simon, without her daughter, accompanied Detective Lee and Sergeant Alegre to their office once again. Simon Dep. at 77; Lee Dep. at 135. The unrestrained Simon was placed in a room (what Detective Lee described as the "reception office").[3] Simon Dep. at 71-72; Lee Dep. at 135-36. Simon recalls being asked questions by the officers as she waited, Simon Dep. at 72, but states that she could not recall whether she spoke with ADA Longobardi that second day - though she "could have." Simon Dep. at 74. According to the officers and the prosecutor, however, at some point, she was taken into an office to speak with ADA Longobardi; at some time following her conversation with him, she returned home. See Lee Dep. at 136; Alegre Dep. at 203; Longobardi Dep. at 136. Simon claims that she was kept for eight hours, even though ADA Longobardi stated that he only spoke to Simon that day for "[m]aybe five minutes."[4] Longobardi Dep. at 136.


         The objective "'of § 1983 is to deter public officials from violating citizens' federal rights and to compensate victims of such official wrongdoing.'" Aupperlee v. Coughlin,97 F.Supp.2d 336, 341 (E.D.N.Y. 2000) (quoting Weaver v. Brenner, 40 F.3d 527, 532 (2d Cir. 1994)). It is, conversely, well-established that government officials performing "discretionary functions" are entitled to invoke the doctrine of qualified immunity when faced with a § 1983 action.[5]Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982). This doctrine shields government officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, " Pearson v. Callahan,555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 ...

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