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Li v. City of New York

United States District Court, E.D. New York

March 31, 2017

YING LI, Plaintiff,


          PAMELA K. CHEN, United States District Judge.

         On March 26, 2015, Plaintiff Ying Li commenced this action against Defendants pursuant to 42 U.S.C. § 1983 (“Section 1983”) and New York law. (See Dkt. 1.) Plaintiff's ten-count Amended Complaint alleges numerous theories of liability against Defendants. (See Dkt. 36, Amended Complaint (“Am. Compl.”).) In general, Plaintiff alleges that she was wrongfully accused of being responsible for the death of her infant daughter. (Id.) The Amended Complaint makes claims against two groups of defendants: (i) the first group is composed of the City of New York (the “City”) and various City employees (collectively, the “City Defendants”), including twelve named New York City Police Department (“NYPD”) officers who allegedly investigated Plaintiff (the “Officer Defendants”)[1]; Dr. Kristen Landi (“Dr. Landi”), a physician employed by the City; Queens County Assistant District Attorney P. Leigh Bishop (“ADA Bishop”); and fifteen “John Doe” defendants; and (ii) the second group is composed of Flushing Hospital Medical Center (“Flushing Hospital” or “FHMC”) and one of its employees, Dr. Fernanda Kupferman (“Dr. Kupferman”) (collectively, the “Medical Center Defendants”).

         Plaintiff asserts the following ten counts, of which eight are against all Defendants: Count 1 (false arrest and imprisonment), Count 2 (malicious prosecution), Count 3 (malicious abuse of process), Count 4 (failure to intervene), Count 5 (conspiracy), Count 6 (unreasonably prolonged detention), Count 7 (violation of due process), Count 8 (Monell liability against the City), Count 9 (Monell-type liability against Flushing Hospital), and Count 10 (violation of the New York State Constitution). Except for Count 10, all of Plaintiff's claims are alleged as federal claims pursuant to Section 1983.

         Presently before the Court are two separate motions to dismiss filed by the two groups of Defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). For the reasons set forth below, both the City Defendants' and Medical Center Defendants' motions are GRANTED IN PART and DENIED IN PART. Furthermore, all claims against the following Defendants are dismissed in their entirety: ADA Bishop, Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.


         I. THE FACTS[2]

         Early in the morning of October 23, 2007, Annie, the 8-1/2-week-old daughter of Plaintiff and her husband Hang Bin Li, suddenly went limp while being fed. (Am. Compl. ¶¶ 92, 95.) The Lis called 911 and took Annie to the emergency room at Flushing Hospital. (Am. Compl. ¶¶ 95, 98, 108.) Annie was unresponsive when she arrived at the emergency room, where she was revived and placed on life support. (Am. Compl. ¶ 98.)[3]

         Suspecting child abuse, Flushing Hospital called Det. Phelan and the NYPD Child Abuse Squad that day. (Am. Compl. ¶ 101.) Det. Phelan went to the hospital, spoke with the hospital staff, looked at medical charts, and met with the Lis. (Am. Compl. ¶¶ 101-103.) P.O. Yam, an officer who spoke Mandarin, accompanied Det. Phelan. (Am. Compl. ¶ 101.) The Lis were taken to Det. Phelan's office at the Queens Child Abuse Squad. (Am. Compl. ¶ 104.) When they arrived at the 109th precinct, other officers and sergeants, including Defendant Manfredi, were present. (Am. Compl. ¶ 105.) Det. Heffernan also came to the Precinct that night. (Am. Compl. ¶ 105.) Dets. Phelan and Degnan interrogated Plaintiff, alone, for about an hour while P.O. Yam interpreted. (Am. Compl. ¶ 106.) They then interrogated Hang Bin Li. (Am. Compl. ¶ 106.) Afterwards, Dets. Degnan and Heffernan drove the Lis back to Flushing Hospital. (Am. Compl. ¶ 108.) At the hospital, Dets. Degnan and Heffernan had extended conversations with the hospital staff, including Dr. Kupferman. (Am. Compl. ¶ 108.)

         The next day, October 24, 2007, Det. Phelan went to the Lis' house, and Plaintiff's husband gave written consent for Det. Phelan to search the home. (Am. Compl. ¶ 110.) Later, detectives from the 109th Precinct went to search the Lis' home after getting a warrant. (Am. Compl. ¶ 110.) Subsequently, the Lis were interviewed again by numerous people, including Dets. Heffernan and Moser, officers from the Queens Homicide Squad, and medical personnel at Flushing Hospital, including Dr. Kupferman.[4] (Am. Compl. ¶¶ 112-15.) Det. Chan served as an interpreter from the afternoon of October 24, 2007, until the morning hours of October 25, 2007. (Am. Compl. ¶ 112.) During these interviews, according to Plaintiff, Dets. Heffernan and Moser and Dr. Kupferman repeatedly screamed at the Lis that they had killed their daughter and that unless the Lis told them which one of them had hurt Annie, the doctors could not help her. (Am. Compl. ¶ 115.) They also promised the Lis that they could see Annie if they admitted to hurting her. (Am. Compl. ¶ 116.) After being repeatedly told this, Hang Bin Li stated that he might have inadvertently bumped Annie's head lightly against a table while trying to resuscitate her. (Am. Compl. ¶ 117.)

         On October 25, 2007, Dr. Kupferman conducted a “forensic interview” of Plaintiff. (Am. Compl. ¶ 120.) A day later, Annie was confirmed brain dead, and was diagnosed with “Shaken Baby Syndrome” (“SBS”).[5] (Am. Compl. ¶¶ 123, 134.) That evening, the Lis were again taken to the 109th precinct, and Dets. Degnan, Heffernan, and Chan questioned the Lis separately until the next morning. (Am. Compl. ¶ 124.) Hang Bin Li also gave a written statement regarding the events that had occurred on October 22 and 23. (Id.) Annie was removed from life support on October 28. (Am. Compl. ¶ 125.) On October 29, Dets. Moser, Degnan, Heffernan, and Sgt. Cai questioned Hang Bin Li at the 109th precinct. (Am. Compl. ¶ 126.) Throughout the multiple investigations and interviews, Plaintiff denied any wrongdoing. (Am. Compl. ¶ 127.) Unidentified Defendants ordered Plaintiff to remain in and about her home from approximately October 26, 2007 up to her arrest five months later. (Am. Compl. ¶ 131.)

         On March 11, 2008, Plaintiff and her husband were arrested for Annie's death based on the conclusion that Annie had died of SBS. (Am. Compl. ¶¶ 133-34.) Plaintiff was charged with two counts of Manslaughter in the First Degree, and one count of Endangering the Welfare of a Child. (Am. Compl. ¶¶ 146.) The grand jury indicted Plaintiff on various charges, including Manslaughter in the Second Degree. (Am. Compl. ¶ 181, 184, Ex. C.) Plaintiff pled not guilty to all charges. (Am. Compl. ¶ 179.) Plaintiff's husband was also indicted for one count of Murder in the Second Degree, two counts of Manslaughter in the Second Degree, and one count of Endangering the Welfare of a Child. (Am. Compl. ¶ 185.) Unable to make bail, Plaintiff was held at the Riker's Island correctional facility for about four years without a trial. (See Am. Compl. ¶¶ 180, 234.) On March 26, 2012, Plaintiff was released after her bail was reduced. (Am. Compl. ¶ 197.) On January 2, 2013, ADA Bishop moved to dismiss the criminal charges against Plaintiff. (Dkt. 63-6, Ex. F.) Hang Bin Li's trial began the next day. (Am. Compl. ¶ 199.) On February 1, 2013, he was convicted of reckless manslaughter. (Am. Compl. ¶ 200.)


         Plaintiff filed this action on March 26, 2015. (Dkt. 1.) On November 19, 2015, she filed the Amended Complaint. (Dkt. 36.) On March 7, 2016, Defendants moved to dismiss the Amended Complaint pursuant to FRCP 12(b)(6). (Dkt. 53, 58.)



         Plaintiff and Defendants both seek to have the Court consider certain information and documents outside of the Amended Complaint. Both parties have attached to their moving papers the Queens County criminal court complaint (“criminal complaint”) against Plaintiff (Dkt. 60, Ex. B; Dkt. 63, Ex. B) and the transcript of the court conference at which ADA Bishop moved to dismiss the criminal charges against Plaintiff (Dkt. 60, Ex. C; Dkt. 63, Ex. F). The City Defendants also submitted the grand jury minutes (Dkt. 65, Ex. A) with their Reply brief. Plaintiff also has submitted a copy of the manslaughter indictment returned by the grand jury against her (Dkt. 63, Ex. C) and two press releases from the Queens District Attorney's Office, dated March 12, 2008, and September 11, 2015 (Dkt. 63, Exs. D, E). The March 12, 2008 press release discusses the District Attorney's charging of Plaintiff and her husband. (See Ex. D, Dkt. 63-4, at ECF 2.)[7] The September 11, 2015 press release notes that the Queens District Attorney and the New York City Chief Medical Examiner were to host the 2015 New York City Abusive Head Trauma / Shaken Baby Syndrome Conference. (See Ex. E, Dkt. 63-5 at ECF 2.)

         In determining the adequacy of a claim under Rule 12(b)(6), courts are generally limited to the facts alleged in the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and facts that may be judicially noticed. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 292 F.3d 147, 153 (2d Cir. 2002)); see also Williams v. Kellogg Co., 628 F.App'x. 59, 60 (2d Cir. 2016) (summary order) (noting that the court may consider matters of which judicial notice may be taken in deciding a Rule 12(b)(6) motion). However, even if the complaint does not expressly cite a document, the complaint is deemed to include that document if it is “integral” to the complaint. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)); Sira, 380 F.3d at 67 (document not expressly cited in the complaint was “incorporated into the pleading because [it] was integral to [plaintiff's] ability to pursue” his cause of action); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.” (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir. 2002)); Fed.R.Evid. 201 (a court may take judicial notice of “a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).

         By repeatedly referring to the criminal complaint, the Amended Complaint incorporates it by reference.[8] As for Plaintiff's other exhibits, i.e., the indictment, the transcript of the criminal court conference, and the two press releases, the Court takes judicial notice of them, but for the limited purpose of establishing their existence and legal effect, and determining the statements that they contain without considering the truth of those statements. See, e.g., Bejaoui v. City of New York, No. 13-cv-5667, 2015 WL 1529633, at *6 (E.D.N.Y. Mar. 31, 2015) (recognizing disagreement among district courts in the Second Circuit as to whether incident reports, arrest reports, and police complaints may be judicially noticed, but still taking notice of the plaintiff's State court indictment and criminal court order to establish their existence and legal effect); Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” (quoting Int'l Star Class Yacht Racing Assn'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998))); see, e.g., Garcia-Garcia v. City of New York, No. 12-cv-1302, 2013 WL 3832730 (S.D.N.Y. July 22, 2013) (taking judicial notice of criminal complaints and indictments for the limited fact that plaintiff was arrested and charged with certain crimes).[9]Here, the criminal court records and the press releases relate to Plaintiff's allegations that the criminal case was terminated favorably to her and the date on which the criminal charges were dropped.[10] (Am. Compl. ¶¶ 201, 212.)

         The Court, however, declines to take judicial notice of the grand jury minutes in People v. Hang Bin Li and Ying Li, Indictment No. 603/08 (Dkt. 65, Ex. A), which the City Defendants have attached to their Reply brief, because the City seeks to rely on the substance and truth of the testimony set forth in those minutes, and not just the fact of the testimony being given or the date on which it was given. See St. John's Univ., N.Y. v. Bolton, 757 F.Supp.2d 144, 156 (E.D.N.Y. 2010) (“[T]he court may, at its discretion, consider matters of which judicial notice may be taken . . . .” (emphasis added) (citation omitted)).


         Under Rule 12(b)(6) of the FRCP, a defendant may move for dismissal on the ground that the complaint “fail[s] to state a claim upon which relief can be granted.” To withstand a Rule 12(b)(6) motion, a complaint must plead sufficient facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal. 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). In ruling on a 12(b)(6) motion, a court must accept the factual allegations set forth in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). However, that “‘tenet is inapplicable to legal conclusions, ' and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 668). A complaint that “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” will not suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 555 U.S. at 557). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. A complaint should be dismissed where a plaintiff has not “nudged [its] claims across the line from conceivable to plausible[.]” Id. at 570.


         Plaintiff has brought this action pursuant to 42 U.S.C. § 1983 (“Section 1983”), which provides a cause of action for anyone subjected “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a person acting under color of state law. 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). To state a claim under Section 1983, a plaintiff must plausibly allege “(1) that the defendants deprived him of a right ‘secured by the Constitution or laws of the United States'; and (2) that they did so ‘under color of state law.'” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)); see Flynn v. James, 513 F.App'x 37, 39 (2d Cir. 2013).

         A. Liability of Medical Center Defendants as Private Actors

         Plaintiff asserts her federal claims not only against the City Defendants but also against the Medical Center Defendants, who ordinarily would be considered non-State actors. See White v. St. Joseph's Hosp., 369 Fed.App'x 225, 226 (2d Cir. 2010) (“[P]rivate actors and institutions, such as the hospitals . . . are generally not proper § 1983 defendants because they do not act under color of state law.” (citing Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)); see also Kia P. v. McIntyre, 235 F.3d 749, 756 (2d Cir. 2000) (finding that a hospital was not a State actor to the extent it acted in its capacity as a private provider of medical care). As a general matter, liability under Section 1983 is proper only with respect to individuals acting under “color of state law, ” i.e., State actors, or individuals acting in concert with a State actor. See 42 U.S.C. § 1983; Jones v. City of New York, No. 12-cv-9144, 2013 WL 4028183, at *6 n.3 (S.D.N.Y. Aug. 8, 2013) (“Section 1983 addresses only those injuries caused by state actors or those acting under color of state law.” (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992)). For a private entity to be held liable under Section 1983, a plaintiff must establish that the private entity acted as a “willful participant in joint activity with the State or its agents.” Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014) (citation and quotation marks omitted).

         Although the Medical Center Defendants argue that they are not State actors and therefore not subject to liability under Section 1983, they also note that this issue may be more appropriate to be decided on summary judgment. (See Dkt. 55 at 19 n.3.) Because the Medical Center Defendants essentially defer arguing the issue, the Court reserves consideration of the issue for summary judgment. For purposes of ruling on Defendants' motions to dismiss, the Court assumes without deciding that the Medical Center Defendants are State actors who acted “under color of state law.”

         B. City Defendants' Request to Dismiss the Individual Officer Defendants for Lack of Personal Involvement

         The City Defendants point out-and rightfully so-that Plaintiff has failed to allege any personal involvement by many of the named Officer Defendants. (Dkt. 59 at 6.) “An individual defendant is not liable under § 1983 absent personal involvement.” Morris v. Eversley, 282 F.Supp.2d 196, 202 (S.D.N.Y. 2003) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); Spavone v. New York State Dept. of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Pleadings that do not differentiate which defendant was involved in the unlawful conduct are insufficient to state a claim. See, e.g., Wright v. Orleans Cnty., No. 14-cv-0622A, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a § 1983 case that “[g]roup pleading is insufficient for purposes of Rule 8(a)(2) [of the FRCP] which requires a short and plain statement of the claim showing that the pleader is entitled to relief.” (citation and quotation marks omitted)); Holmes v. Allstate Corp., No. 11-civ-1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan. 27, 2012) (“Plaintiffs' method of group pleading is incoherent or illogical” and “[FRCP] 8(a) is violated where a plaintiff, by engaging in ‘group pleading, ' fails to give each defendant fair notice of the claims against it.”); Pierson v. Orlando Regional Healthcare Systems, Inc., 619 F.Supp.2d 1260, 1273 (M.D. Fla. 2009) (dismissing complaint because group-pleading method of collectively referring to individual defendants and two physician groups as “Peer Review Defendants” throughout complaint did not satisfy [FRCP] 9(a)).

         1. Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, and Sgt.

         Manfredi The Amended Complaint fails to allege facts from which it can be reasonably inferred that Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, and Det. Lee had any involvement in Plaintiff's Queens County criminal proceedings. Though the lengthy Amended Complaint devotes six paragraphs to each of these Defendants (see Am. Compl. ¶¶ 19-22, 82-83 (for Lt. Conforti); Am. Compl. ¶¶ 27-30, 81-82 (for Det. Perdoch); Am. Compl. ¶¶39-42, 82-83 (for Sgt. Rodriguez); Am. Compl. ¶¶ 43-46, 82-83 (for Lt. Hall); Am. Compl. ¶¶ 55-58, 82-83 (for Det. Lee)), these paragraphs simply recite the same conclusory, formulaic, and non-substantive allegations as to each of these Defendants, asserting that they were “acting within the course and scope of their employment” and “under color of state law, ” that they are being sued in their individual and official capacities, and that they should be referred to as “CITY DEFENDANTS” or “OFFICER DEFENDANTS.” In short, Plaintiff does not allege that any of these five officers had even a minimal role in arresting, investigating, or prosecuting her. For Sgt. Manfredi, Plaintiff alleges nothing more than that he was present at the 109th Precinct when the Lis arrived with Det. Phelan. (See Am. Compl. ¶¶ 104-105.)[11]

         Based on Plaintiff's counsel's representation at the pre-motion conference, it appears that Plaintiff named some of these individual Defendants because they were listed as having supervisory roles in the Queens County District Attorney's press release (dated March 12, 2008). (See Ex. D, Dkt. 63-4 at ECF 3.) Even though the Court takes judicial notice of the press release, as noted, it does not take judicial notice of the press release for the truth of its contents, i.e., that the identified officers were, in fact, supervisors at the time of Plaintiff's arrest and prosecution. See Roth, 489 F.3d at 509. Furthermore, the mere listing of these officers as supervisors in a press release is insufficient to create an inference of personal involvement absent further allegations, especially because “a defendant [may not] be held liable merely by his connection to the events through links in the chain of command.” Reynolds v. Goord, No. 98- cv-6722, 2000 WL 235278, at *7 (S.D.N.Y. Mar. 1, 2000); Colon, 58 F.3d at 873-74 (“The bare fact that [the defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim.”).

         2. P.O. Yam, Sgt. Cai, and Det. Chan

         With respect to P.O. Yam, Sgt. Cai, and Det. Chan, the allegations in the Amended Complaint are also insufficient to show personal involvement in unlawful conduct that supports any of Plaintiff's claims. Based on the Amended Complaint, the participation of these officers was limited to serving as translators during the investigations of Plaintiff's criminal case.[12] (See Am. Compl. ¶¶ 35-38, 101, 104, 106 (for P.O. Yam); Am. Compl. ¶¶ 51-54, 126 (for Sgt. Cai); Am. Compl. ¶¶ 59-62, 112, 119 (for Det. Chan); Am. Compl. ¶ 82-83 (for all Defendants).) While these translating officers are alleged to have been present during the interviews of the Lis by the other City Defendants, there are no other allegations from which to infer that these three officers were involved, in any way, in the conduct that gives rise to Plaintiff's Section 1983 claims, e.g., arresting Plaintiff without probable cause, initiating criminal process against her, forwarding false or fabricated evidence to the prosecution, or concealing exculpatory information from the prosecutors or the defense. The translating officers' mere presence at the Lis' interviews is simply not enough to allege their direct involvement in the unlawful conduct at issue in this case, as opposed to their incidental involvement in some of the events related to Plaintiff's arrest and detention. All claims against P.O. Yam, Sgt. Cai, and Det. Chan are, therefore, dismissed.

         3. Dets. Moser, Phelan, and Heffernan

         With respect to Dets. Moser, Phelan, and Heffernan, the Court finds that Plaintiff has provided sufficient allegations as to their personal involvement in the conduct giving rise to some, but not all, of Plaintiff's claims, as discussed infra. (See Am. Compl. ¶¶ 112, 119, 126, 130 (alleging Det. Moser's involvement in the investigation of the Lis); ¶¶ 102-104, 106, 109- 111 (alleging Det. Phelan's involvement to the extent that he went to the hospital, spoke to the hospital staff, examined relevant medical charts, and interrogated Ying Li); ¶¶ 112, 126, 130 (alleging Det. Heffernan's involvement to the extent that he interrogated Hang Bin Li and other witnesses).)

         * * *

         Accordingly, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan are dismissed as Defendants due to the insufficiency of allegations establishing personal involvement. See Zurich American Ins. Co. v. Dah Sing Bank, Ltd. No. 03-civ-7778, 2004 WL 1328215, at *6 (S.D.N.Y. Jun. 15, 2004) (dismissing claims against one defendant bank where plaintiff did not put forth “a single factual allegation” but instead “lump[ed] the three bank defendants together and assert[ed] that they collectively processed the checks”); Hernandez v. Goord, 312 F.Supp.2d 537, 548 (S.D.N.Y. 2004) (dismissing individual defendants who were merely listed at the beginning of the complaint and were never connected in the complaint to any particular adverse action); see also B. v. City of New York, No. 14-cv-1021, 2016 WL 4530455, at *13 (E.D.N.Y. Aug. 29, 2016) (dismissing claims where the complaint did “not even directly name any of the defendants or allege the particular actions they undertook” (citation omitted)); Barber v. Ruzzo, No. 10-cv-1198, 2011 WL 4965343, at *2 (N.D.N.Y. Oct. 19, 2011) (“Simply stating that [defendants] were ‘personally and actively involved in the continuation of criminal proceedings against [a plaintiff], ' is grossly insufficient to establish personal involvement in the actual prosecution.”).


         A claim for false arrest under Section 1983, resting on the Fourth Amendment right to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as that under New York law.[13] Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). In analyzing Section 1983 claims for false arrest, courts “generally look[] to the law of the state in which the arrest occurred.” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006)). Under New York law, a plaintiff must establish, inter alia, that “the defendant intentionally confined him without his consent and without justification.” Id. at 107 (quoting Weyant, 101 F.3d at 852) (quotation marks omitted); see also Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (citing Broughton v. State of New York, 37 N.Y.2d 451, 456 (1975)).

         A. Plaintiffs False Arrest Claim is Barred by the Statute of Limitations

         The statute of limitations for Section 1983 claims filed in federal court in New York is determined by New York State's statute of limitations for personal injury actions. See Owens v. Okure, 488 U.S. 235, 251 (1989) (discussing Wilson v. Garcia, 471 U.S. 261 (1985), which held that courts deciding claims under Section 1983 should “borrow” the State statute of limitations for personal injury actions); see also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (citing Owens). In New York State, the applicable statute of limitations for personal injuries is three years. N.Y. C.P.L.R. § 214 (McKinney). Thus, Plaintiff should have filed her false arrest claim within three years of the date on which the cause of action accrued.

         While the applicable limitations period is determined by State law, the accrual date “is a question of federal law”. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” (emphasis in the original)). Under federal law, a Section 1983 false arrest claim accrues at the time that the alleged false arrest ends, i.e., when the arrestee “becomes held pursuant to [legal] process-when, for example, he is bound over by a magistrate or arraigned on charges.” Wallace, 549 U.S. at 389; see also Lynch v. Suffolk Cnty. Police Dep't, Inc., 348 F.App'x 672, 675 (2d Cir. 2009) (summary order) (applying Wallace to find that plaintiffs § 1983 false arrest claim was time-barred).

         Here, the Medical Center Defendants and the City Defendants contend that Plaintiffs false arrest claim as to all Defendants is time-barred. (Dkt. 55 at 4; Dkt. 64 at 3.) Plaintiff concedes this (Dkt. 66 at 6), and the Court agrees. Plaintiff was arrested on March 11, 2008 in connection with her daughter's death. (Am. Compl. ¶ 133.) For Plaintiffs false arrest claim to be timely, she must have made an initial appearance or been arraigned on or after March 26, 2012, i.e., three years from the filing of her complaint. See Wallace, 549 U.S. at 389 (false arrest claim accrues when plaintiffs false arrest ends and plaintiff becomes held pursuant to legal process). However, Plaintiff alleges that she was arrested on March 11, 2008 and that she was incarcerated as of that date until March 26, 2012.[14] Because Plaintiff did not bring her false arrest claim until March 2015, it is plainly barred by the applicable three-year statute of limitations.

         B. Equitable Tolling

         Recognizing that the statute of limitations has run, Plaintiff contends that equity demands tolling of the statute of limitations. (Dkt. 66 at 7.) Plaintiffs claim for equitable tolling is based on the notion of fraudulent concealment.[15] See Pearl, 296 F.3d at 81-84 (noting that the “taxonomy of tolling, in the context of avoiding a statute of limitations, includes at least three phrases: equitable tolling, fraudulent concealment of a cause of action, and equitable estoppel, ” and also recognizing that the Second Circuit equates both equitable estoppel and equitable tolling with fraudulent concealment).

         When a “defendant fraudulently conceals the wrong, the [statute of limitations] does not begin running until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, the cause of action.” Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (quoting Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983)); Pearl, 296 F.3d at 81; see also Halstead v. City of New York, No. 13-cv-4874, 2015 WL 1506133, at *4 (E.D.N.Y. Mar. 31, 2015). To benefit from this doctrine of equitable tolling based on fraudulent concealment, the “plaintiff must submit non-conclusory evidence of conspiracy or other fraudulent wrong which precludes his possible discovery of harms that he suffered.” Pinaud, 52 F.3d at 1157 (emphasis in original); see also Govt. Employees Ins. Co. v. U.S., No. 13-cv-4063, 2014 WL 582164 (E.D.N.Y. Feb. 14, 2014) (“the ‘burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff.'” (quoting Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000))). The Second Circuit has made clear that, “as a matter of fairness”, the doctrine should only be applied “where a plaintiff has been ‘prevented in some extraordinary way from exercising [her] rights'”. Pearl, 296 F.3d at 85 (citation and quotation marks omitted). Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (noting that courts apply equitable tolling only in “rare and exceptional circumstances” (citation and internal quotation marks omitted)).

         Here, Plaintiff presents only an unsupported, conclusory statement to justify equitable tolling: “[D]efendants' fraud, misrepresentation, and deception, induced plaintiff from filing a timely action. Defendants' misconduct caused the plaintiff to delay in bringing suit and/or wrongfully deceived or misled plaintiff in order to conceal the existence of a cause of action.” (Am. Compl. ¶ 209.) The Amended Complaint does not allege (a) which of the numerous Defendants committed fraud, misrepresentation, or deception, (b) what information was kept from Plaintiff, or (c) how the alleged withholding of information made it impossible for Plaintiff to discover the harms she had suffered. See, e.g., Harrison v. Harlem Hosp., 364 F.App'x. 686, 688 (2d Cir. 2010) (summary order) (“The appellants have failed to identify any specific fact they have learned since the limitations period expired which, if known by them sooner, would have led them to file suit sooner.” (emphasis in original)).

         In her opposition brief, Plaintiff claims that she became aware of her false arrest only “when Plaintiff's attorneys were told . . . that there was no ‘medical proof' that she could have saved her daughter, ” and that Plaintiff's reliance on Dr. Kupferman's assessment that earlier medical intervention could have saved Annie caused Plaintiff to delay filing her false arrest claim. (Dkt. 66 at 7.) However, as the Medical Center Defendants correctly point out, none of these factual allegations are in Plaintiff's Amended Complaint.[16]

         Furthermore, even assuming arguendo that Dr. Kupferman had concealed information that might have supported Plaintiff's false arrest claim, equitable tolling is still not warranted if this alleged concealment did not sufficiently justify Plaintiff's failure to pursue her cause of action. Paige v. Police Dept. of City of Schenectady, 264 F.3d 197 (2d Cir. 2001). In Paige, the plaintiff, a minor at the time, was sexually assaulted by a police officer. Id. at 198. She reported the assault to the police department soon after it occurred, but the department told her that there was insufficient evidence to pursue the case. Id. Fifteen years later, the plaintiff found out through a newspaper article that the police department might have had an investigatory file with information identifying the assaulting officer as the suspect, but chose not to pursue the case. Id. at 199. In bringing a Section 1983 claim against the City, the police department, and the suspected assaulting officer, the plaintiff argued that none of her claims was time-barred because (a) they did not accrue until the publishing of the newspaper article, and, in the alternative (b) the statute of limitations should be tolled until the date the article was published under the doctrine of equitable tolling. Id. The Second Circuit rejected both arguments finding, inter alia, that the plaintiff had sufficient knowledge to timely commence her causes of action without the investigatory file. Id. at 200 (“Although some of the facts putatively concealed by the defendants might have strengthened [plaintiff's] case . . . the absence of those facts did not sufficiently justify [plaintiff] in not pursuing her cause of action as to merit equitable tolling.”); see also Pearl, 296 F.3d at 78-85 (finding Section 1983 plaintiff, who alleged a brutal beating by four officers, was not entitled to equitable tolling, despite one of the officer's subsequent confession that the officers had fabricated evidence against plaintiff; explaining that plaintiff had full knowledge of his encounter with the officers and that the officer's recantation was “not newly developed awareness of a previously concealed cause of action”, but simply “more persuasive evidence”).

         Even accepting Plaintiff's new, and improperly asserted, theory of fraudulent concealment, her case is indistinguishable from Paige and Pearl: Plaintiff “had full knowledge” of her actions relating to her child's death, including whether she knowingly delayed getting her child medical attention, and thus the purportedly withheld information that earlier medical intervention might not have saved Annie's life does not lead to a “newly developed awareness of a previously concealed cause of action”, but simply provides potentially persuasive evidence for that claim. Indeed, Plaintiff fails to explain how Dr. Kupferman's purported diagnosis with regard to Annie made it “impossible” for Plaintiff to learn that she had a claim for false arrest. See Pearl, 296 F.3d at 85 (reiterating that, with respect to application of the equitable tolling doctrine, “we made it clear that we had in mind a situation where a plaintiff ‘could show that it would have been impossible for a reasonably prudent person to learn' about [her] cause of action.” (emphasis in original)). In fact, some allegations in the Amended Complaint suggest that Plaintiff always knew or believed that she had a false arrest claim. For example, she alleges that she had “steadfastly denied wrongdoing throughout the numerous interrogations conducted by Defendants, ” even in the early stages of the investigation of Annie's death. (See Am. Compl. ¶ 127; see also Am. Compl. ¶ 118 (“Ying Li, however was positive that she did not harm her daughter, that she never saw Hang Bin do anything but love and treasure Annie. She maintained her innocence throughout.”).) Plaintiff also pleaded not guilty to all counts in the criminal complaint and indictment. (Am. Compl. ¶ 179.) Furthermore, Plaintiff also alleges in the Amended Complaint that she made diligent attempts to disprove the shaken baby syndrome diagnosis of Annie, thereby demonstrating her belief from the time of her arrest that the diagnosis was wrong and that Plaintiff had been falsely arrested and accused of causing her daughter's death, whether by SBS or failing to get her daughter prompt medical attention. (See, e.g., AC ¶ 197 (“In May of 2012[, ] Judge Gregory Lasak ordered further DNA testing done on [the Lis], after the OI [Osteogenesis Imperfecta][17] gene had been detected in Hang Bin Li.”).) While Plaintiff may have “diligently attempted to disprove Kupferman's . . . diagnosis (Dkt. 66 at 7), in this case, it only reinforces the conclusion that Plaintiff was aware of her false arrest claim before 2013.

         In sum, Plaintiff's Amended Complaint provides only an unsupported, conclusory assertion regarding “fraud, misrepresentation, and deception” that is patently insufficient to support equitable tolling with respect to her false arrest claim, which is barred by the three-year statute of limitations. Furthermore, even Plaintiff's belated and improper assertion of facts regarding the withholding of information by the Medical Center Defendants fails to show that Plaintiff could not have timely brought her false arrest claim, and thus even these facts, if accepted as true, would not support the application of the equitable tolling doctrine.

         Accordingly, Defendants' motions to dismiss Plaintiff false arrest claim are granted.[18]


         Plaintiff asserts a federal malicious prosecution claim against all Defendants. (Am. Compl. ¶ 211-213.) To allege a Section 1983 claim for malicious prosecution, a plaintiff must allege the four elements of a malicious prosecution claim under New York law-“(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions”-as well as a violation of the plaintiff's rights under the Fourth Amendment.[19] Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (citations and quotation marks omitted); Cornejo, 592 F.3d at 129 (“And § 1983, in recognizing a malicious prosecution claim when the prosecution depends on a violation of federal rights, adopts the law of the forum state so far as the elements of the claim for malicious prosecution are concerned.” (citation omitted)); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116-117 (2d Cir. 1995) (relying in part on common law and New York State malicious prosecution law in analyzing § 1983 malicious prosecution claim). In establishing a violation of a Fourth Amendment right in relation to a Section 1983 malicious prosecution claim, a plaintiff must demonstrate “a sufficient post-arraignment deprivation[] of liberty.”[20] Singer, 63 F.3d at 117; see also Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (noting that it is insufficient for a plaintiff to assert only the four elements of New York State malicious prosecution claim alone).

         The Medical Center Defendants contend that Plaintiff cannot satisfy three out of the five requisite elements-specifically, favorable termination, lack of probable cause, and malice. (Dkt. 55 at 5-9.) The City Defendants argue that Plaintiff's claim must be dismissed because there was probable cause and because none of the Officer Defendants initiated the prosecution against Plaintiff. (See Dkt. 59 at 7-11.) For the reasons stated below, the Court finds that Plaintiff has adequately alleged a malicious prosecution claim against Det. Degnan, Dr. Landi, and also Dr. Kupferman, but not as to all of the other Defendants. The malicious prosecution claim is dismissed as to Dets. Moser, Phelan, and Heffernan, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.

         A. Initiation of a Criminal Proceeding

         To initiate or continue a criminal proceeding, “a defendant must do more than report the crime or give testimony. He must play an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” Manganiello, 612 F.3d at 163 (quoting Rohman, 215 F.3d at 217) (alteration and internal quotation marks omitted). An active role in prosecution is inferred when a defendant had the plaintiff arraigned, filled out a complaining and corroborating affidavit, or signed a felony complaint. See Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (noting that a police officer can initiate prosecution by filing charges or other accusatory instruments); see also Costello v. Milano, 20 F.Supp.3d 406, 415 (S.D.N.Y. 2014). Additionally, a defendant could have initiated a prosecution “by creating material, false information and forwarding that information to a prosecutor or by withholding material information from a prosecutor.” Costello, 20 F.Supp.3d at 415; see also Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 383 (S.D.N.Y. 2005) (“[A]n arresting officer may be held liable for malicious prosecution [if he] creates false information likely to influence a jury's decision and forwards that information to prosecutors.” (citation and quotation marks omitted)); Webster v. City of New York, 333 F.Supp.2d 184, 198-99 (S.D.N.Y. 2004) (noting that police officers could be held liable for malicious prosecution if they provided false information to prosecutors).

         The Medical Center Defendants do not dispute that they took part in the initiation of the criminal proceeding (see Dkt. 55), whereas the City Defendants contend that Plaintiffs Amended Complaint only alleges active participation in the prosecution by Det. Degnan (see Dkt. 59 at 9 n.10). The Court finds that the Amended Complaint contains sufficient factual allegations to support a plausible inference that not only Det. Degnan, but also Dr. Landi, initiated Li's prosecution.[21] (See Am. Compl. ¶ 149.)

         Plaintiff has adequately alleged that Det. Degnan initiated the prosecution, because the Amended Complaint alleges that Det. Degnan swore to the criminal complaint. (See Am. Compl. ¶ 145.) Plaintiff has also alleged that Dr. Landi “swore under oath in the criminal complaint against plaintiff” and made assertions that were “false, misleading, and perjurious, and entirely unsupported and unsupportable by any medical science or clinical or forensic evidence.” (Am. Compl. ¶¶ 149-150.) See Cameron, 598 F.3d at 63 (noting that a police officer can initiate prosecution by filing charges or other accusatory instruments). The Amended Complaint also alleges that Dr. Landi “played an active role in the prosecution of Ying Li. She provided advice and encouragement, that went well beyond her role, and into ancillary and forensic aspects of motive, culpability, and the veracity of Ying Li.” (Am. Compl. ¶ 155.)

         These City Defendants “cannot hide behind the decision of the DA to prosecute” when they, according to Plaintiff's allegations, provided the prosecutor with false information. Blake v. Race, 487 F.Supp.2d 187, 211 (E.D.N.Y. 2007) (rejecting the defendants' argument that the District Attorney, not the officers, initiated the prosecution); Zahrey v. Coffey (“Coffey”), 221 F.3d 342, 352 (2d Cir. 2000) (“[I]t is not readily apparent why the chain of causation should be considered broken where the initial wrongdoer can reasonably foresee that his misconduct will contribute to an ‘independent' decision that results in a deprivation of liberty.”) Therefore, the Court finds that Plaintiff has adequately alleged that Det. Degnan and Dr. Landi participated in the initiation of Plaintiff s criminal proceeding.

         By contrast, the Amended Complaint contains no factual allegations to support the inference that Dets. Moser, Phelan, and Heffernan, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan played an active role in initiating Plaintiffs prosecution. Therefore, as to these Defendants, the malicious prosecution claim is dismissed. See, e.g., Jean-Laurent v. Bowman, No. 12-cv-2954, 2014 WL 4662221, at * 6 (E.D.N.Y. Jul. 7, 2014) (finding that plaintiff failed to demonstrate that some of the defendants played an active role in commencing the criminal prosecution against plaintiff, even though plaintiff alleged that they “authorized, approved and/or participated” in plaintiffs criminal prosecution, because the defendants neither swore out a criminal complaint or corroborating affidavit, nor presented any information to the prosecutor).

         B. Favorable Termination

         The second element of a malicious prosecution claim is termination of the criminal proceeding in the plaintiffs favor. The Medical Center Defendants argue that Plaintiffs criminal proceeding did not terminate in her favor because (i) the prosecution was not terminated on its merits, (ii) Plaintiff does not set forth factual allegations to support an inference that the charges were dropped because she was innocent, and (iii) a dismissal “in the interest of justice” does not constitute a favorable termination. (See Dkt. 56 at 5-8.) The Court disagrees, and finds that Plaintiff has sufficiently alleged a favorable termination for purposes of her malicious prosecution claim.[22]

         The Court looks to New York law to determine whether Plaintiff has sufficiently alleged a favorable termination of her Queens County criminal proceeding. Neal v. Fitzpatrick, 250 F.Supp.2d 153, 154 (E.D.N.Y. 2003) (citing Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir. 1992)). “Under New York law, there are two ways to establish [a] favorable termination: ‘(1) an adjudication of the merits by the tribunal in the prior action, ' or (2) ‘an act of withdrawal or abandonment on the part of the party prosecuting the prior action.'” Liberty Synergistics, Inc. v. Microflo Ltd., 50 F.Supp.3d 267 (E.D.N.Y. 2014) (quoting Morgan v. Nassau County, No. 03- cv-5109, 2009 WL 2882823, at *8 (E.D.N.Y. Sept. 2, 2009) and citing Castro v. East End Plastic, Reconstructive & Hand Surgery, P.C., 850 N.Y.S.2d 483, 485 (2008)); Castro, 850 N.Y.S.2d at 485 (“The favorable termination element must be established by evidence that ‘the court passed on the merits of the charge or claim . . . under circumstances as to show . . . nonliability, ' or evidence that the action was abandoned under circumstances ‘which fairly imply the plaintiff's innocence.'” (citation and internal quotation marks omitted). Thus, the fact that a criminal prosecution never reached the merits does not preclude a plaintiff from alleging a favorable termination. See Castro, 850 N.Y.S.2d at 485; see also Norton v. Town of Brookhaven, 47 F.Supp.3d 152, 158 (E.D.N.Y. 2014) (noting, on reconsideration, “the fact that the underlying prosecutions against the Plaintiff [were dismissed pursuant to statutes that] did not reach the merits does not, without more, render the termination of the prosecution inconsistent with innocence”); Verboys v. Town of Ramapo, 785 N.Y.S.2d 496, 497 (App. Div. 2004) (holding that favorable termination can be shown by “the formal abandonment of the proceedings”).

         Furthermore, “New York law does not require a malicious prosecution plaintiff to prove her innocence, or even that the termination of the criminal proceeding was indicative of innocence.” Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir. 2004) (citing Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195-96 (2000)). “[A]ny final termination of a criminal proceeding in favor of the accused, such that the proceeding cannot be brought again, qualifies as a favorable termination for purposes of a malicious prosecution action, ” Smith-Hunter, 95 N.Y.2d at 195-96, unless the disposition was “inconsistent with the innocence of the accused, ” Cantalino v. Danner, 96 N.Y.2d 391, 396 (2001). See Rothstein, 373 F.3d at 275 (discussing New York Law regarding the favorable termination element and citing to both Smith-Hunter, 95 N.Y.2d 191, and Cantalino, 96 N.Y.2d 391); see also Stampf v. Long Island R. Co., 761 F.3d 192, 201 (2d Cir. 2014) (applying Smith-Hunter, 95 N.Y.2d 191 (2000)).

         While New York and federal courts in this circuit have consistently applied the Cantalino “not inconsistent with innocence” standard in deciding whether a termination is favorable, there is open disagreement and divergence in this circuit on the constituent issue of whether the termination of a criminal case “in the interest of justice” is a favorable termination, i.e., a termination that is not inconsistent with innocence.[23] See Gem Financial Serv., Inc. v. City of New York, No. 13-cv-1686, 2014 WL 1010408, at *10 n.10. (E.D.N.Y. Mar. 17, 2014) (recognizing “an apparent fissure amongst Second Circuit opinions with respect to the proper standard for assessing a favorable termination” where an “interest of justice” dismissal is involved). On the one hand, the New York Court of Appeals in 2001 held in Catalino that there is no “per se rule that a dismissal in the interest of justice can never constitute a favorable termination.” 96 N.Y.2d at 396.[24] Nonetheless, in 2009, the Second Circuit in a summary order in Lynch v. Suffolk County Police Dep't, Inc. found, “as a matter of law”, that a dismissal in the interest of justice could not “provide the favorable termination required as the basis for a claim of malicious prosecution”, because such a dismissal was “neither an acquittal of the charges nor any determination of the merits[, and left] the question of guilt or innocence unanswered”. 348 F.App'x 672, 675 (2d Cir. 2009) (citing Hygh, 961 F.2d 359). Even after the Lynch decision, district courts in this circuit have continued to apply Catalino to find that an “interest of justice” termination can be deemed favorable in a malicious prosecution action. See Norton, 47 F.Supp.3d at 106 (collecting district court cases that adopted Cantalino even after Lynch); Guzman v. United States, No. 11-CV-5834, 2013 WL 543343, at *8 (S.D.N.Y. Feb. 14, 2013) (collecting cases decided by the Southern District of New York that applied Cantalino even after the Second Circuit decided Lynch); see, e.g., Genovese v. Cnty. of Suffolk, 128 F.Supp.3d 661, 672 n.3 (E.D.N.Y. 2015) (declining to apply the standard set forth in Lynch, noting that it is a non-binding summary order failing to cite to Cantalino, which had already been decided at the time Lynch was decided). Other courts, however, have followed Lynch in dismissing malicious prosecution claims involving “interest of justice” dismissals. See Norton, 47 F.Supp.3d at 160- 161 (citing Tribie v. Parwanta, No. 10 Civ. 6016, 2012 WL 246619, at *8 (S.D.N.Y. Jan. 26, 2012) and Paulin v. Figlia, 916 F.Supp.2d 524, 533 (S.D.N.Y. 2013)). However, as discussed below, notwithstanding the Medical Center Defendants' argument, the Court need not resolve this issue in order to determine whether Plaintiff has sufficiently alleged a favorable termination.

         The Court now turns to the Medical Center Defendants' three arguments. First, the argument that Plaintiff cannot show a favorable termination because her criminal case was not terminated on the merits is plainly unavailing. As discussed, there are “two ways to establish a favorable termination”, one of which is the “act of withdrawal or abandonment” of the case by the prosecution, which is what Plaintiff alleges happened here. (Am. Comp. ¶ 201 (“Contemporaneously with the commencement of Hang Bin's trial, all charges against plaintiff were dismissed.”).)

         Second, the argument that Plaintiff has not sufficiently alleged malicious prosecution because she has not alleged facts from which it can be inferred that the criminal charges against her were dropped because she was innocent similarly lacks merit. As the New York Court of Appeals made clear in Smith-Hunter, a claim of malicious prosecution does not require that the plaintiff prove her innocence of the charges that were dropped, or even that the termination of her prosecution was indicative of innocence. 95 N.Y.2d at 195-96.[25] Rather, all that is required after Smith-Hunter and Cantalino is that the termination of Plaintiff's case was “final, ” e.g., that the charges were dismissed with prejudice, and that the termination did not fall into one of the exceptions recognized by Catalino, e.g., that the disposition of Plaintiff's criminal case was “inconsistent with innocence”. Cantolino, 96 N.Y.2d at 396. Thus, the absence of any allegations demonstrating that the termination of Plaintiff's prosecution is indicative of her innocence of the charges that were dropped does not preclude her malicious prosecution claim.

         Third, the Medical Center Defendants argue that the termination of Plaintiff's prosecution was an “interest of justice” dismissal and therefore does not constitute a favorable termination. However, the Court cannot make that determination at this stage, because it cannot determine the reason or reasons for the District Attorney's dismissal of the charges against Plaintiff. The Amended Complaint simply alleges that, “Defendants . . . caused plaintiff to be prosecuted with malice and without probable cause-a prosecution that terminated in plaintiff's favor . . . .”[26](Am. Compl. ¶ 212 (emphasis added).) Although Plaintiff does not allege the specific disposition of the case, the Court finds she has sufficiently alleged favorable termination to survive a motion to dismiss. See Rivers v. Towers, Perrin, Foster & Crosby Inc., No. 07-cv- 5441, 2009 WL 817852, at *4 (E.D.N.Y. Mar. 27, 2009) (“There is nothing implausible about a bare allegation that the prosecution terminated in plaintiff's favor and hence there is no need to amplify that allegation by pleading specific facts.”); see also Norton, 47 F.Supp.3d at 161 (reinstating plaintiff's malicious prosecution claim on reconsideration after concluding that the court cannot conclude that the dismissal of the charges was inconsistent with plaintiff's innocence); McLennon v. New York City, No. 13-cv-128, 2015 WL 1475819, at *6 n.16 (E.D.N.Y. Mar. 31, 2015); Peros v. Castano, No. CV-01-4457, 2002 WL 603042, at *4 (E.D.N.Y. Mar. 22, 2002) (stating, “Although there apparently is some uncertainty as to the precise basis of the state court's dismissal of the criminal charges, I cannot say at this point that there is no set of facts on which plaintiff could satisfy the favorable termination element of his claim, ” when plaintiff's Complaint alleged “[t]hat after the Plaintiff was arraigned on [ ] charges [and] appeared in Court . . . the case was finally disposed of by the Court granting the Motion to Dismiss.” (citation omitted)); accord Tommy Hilfiger Lic., Inc. v. Bradlees, Inc., No. 99-CIV- 4677, 2002 WL 737477, at *6 (S.D.N.Y. Apr. 25, 2002) (finding that the defendant sufficiently alleged favorable termination to withstand a motion to dismiss because the basis for the dismissal of the criminal action was unclear at that particular stage of litigation) (citation omitted); Bacquie v. City of New York, No. 99-CIV-10951, 2000 WL 1051904, at *3 (denying defendant's motion to dismiss plaintiffs' malicious prosecution claim where the plaintiffs alleged that the charges against them were dismissed by the district attorney's motion and where, at the early stage in the litigation, the Court could not tell why the charges had been dropped); but see Campbell v. Giuliani, No. 99-cv-2603, 2000 WL 194815, at *4 (E.D.N.Y. Feb. 16, 2000) (“I find that the bare allegation of dismissal, absent any explanation of the basis on which the case was dismissed, is insufficient to meet the favorable termination requirement.”); Weaver v. Warrington, No. 14-cv-7097, 2015 WL 4645298, at *5 (E.D.N.Y. Aug. 4, 2015) (directing plaintiff to amend the complaint alleging additional facts that make clear whether the dismissal was under circumstances not inconsistent with plaintiffs innocence). It is important to note that while the Court has taken judicial notice of the criminal court records submitted by Plaintiff and the City Defendants, including the transcript of the conference at which Plaintiffs case was dismissed, the Court has only considered those documents to establish the date and fact of the dismissal, but not for the truth of statements made by ADA Bishop at the conference as to why Plaintiffs case was being dismissed. See Global Network Commc 'ns, Inc., 458 F.3d at 157 (“A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”).

         Accordingly, the Court finds that Plaintiff has adequately alleged a favorable termination of her criminal proceedings.

         C. Probable Cause

         The Medical Center Defendants also contend that Plaintiffs malicious prosecution claim must be dismissed because there was probable cause. (Dkt. 55 at 8.) Specifically, they assert that the Amended Complaint's factual allegations regarding Annie's condition when she arrived at FHMC and her subsequent medical test results are sufficient to establish the existence of probable cause at the time criminal proceedings were initiated against Plaintiff. (Dkt. 55 at 8) They also argue that there is a presumption of probable cause unless the indictment was procured through improper means. (Dkt. 55 at 9.) For the reasons explained below, the Court finds that Plaintiff has rebutted the presumption of probable cause, and that the facts alleged in the Amended Complaint support a plausible inference that there was no probable cause for Plaintiff's prosecution.

         As an initial matter, the Court notes that probable cause for malicious prosecution is different from probable cause for false arrest. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) (“The defendants seem to conflate probable cause to arrest with probable cause to believe that [the plaintiff] could be successfully prosecuted. Only the latter kind of probable cause is at issue with respect to the malicious prosecution claim . . . .”). For a malicious prosecution claim, probable cause to prosecute consists of “facts and circumstances [that] would lead a reasonably prudent person to believe the plaintiff guilty.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003) (citing Colon v. City of New York, 60 N.Y.2d 78, 82, 455 N.E.2d 1248 (N.Y. 1983)). Probable cause to prosecute is evaluated “in light of the facts known or reasonably believed at the time the prosecution was initiated, as opposed to at the time of arrest.” Drummond v. Castro, 522 F.Supp.2d 677, 677-78 (S.D.N.Y. 2007) (citations and quotation marks omitted).

         A grand jury indictment “gives rise to a presumption that probable cause exists” and thereby defeats a claim for malicious prosecution. Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (quoting McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006)). “If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.” McClellan, 439 F.3d at 145 (quoting Colon, 60 N.Y.2d at 83). A plaintiff may demonstrate fraud or perjury through “evidence establishing that the [ ] witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith.” Rothstein, 373 F.3d at 283 (quoting Colon, 60 N.Y.2d at 82- 93).

         1. Rebutting the Presumption of Probable Cause as to the City Defendants

         Plaintiff alleges that the indictment against her was procured by bad faith on the part of the City Defendants. Plaintiff alleges that “the Officer Defendants failed to obtain or disclose evidence inconsistent with plaintiff's guilt, did not document or inform the district attorney's office of exculpatory evidence, falsely reported facts in reports and search warrant affidavits, and fabricated oral statements of witnesses. Officers sought to strengthen their case against plaintiff in order to avoid acquittal, leading them to falsify and omit information in their reports and representations to the district attorney's office.” (Am. Compl. ¶ 178; see also Id . ¶ 181.) More specifically, Plaintiff alleges that “it was apparent from medical evidence that [she] was innocent.” (Am. Compl. ¶ 201.) Plaintiff also alleges that Dr. Landi “enthusiastically and with commitment” sought the Lis' prosecution and conviction “despite the lack of any evidence connecting them with any crime whatsoever.” (Am. Compl. ¶ 171.) The Amended Complaint further alleges that Dr. Landi misrepresented that the medical evidence conclusively showed Plaintiff's guilt. (Am. Compl. ¶ 208.)

         Taking these allegations as true and given the circumstantial nature of the case against Plaintiff, which, in turn, rested almost entirely on Dr. Landi's and Dr. Kupferman's medical conclusions, the Court finds that these allegations are sufficient to rebut the presumption of probable cause created by the grand jury indictment. See Anilao v. Spota, 774 F.Supp.2d 457, 494 (E.D.N.Y. 2011) (denying defendant's motion to dismiss finding that plaintiff sufficiently overcame the presumption of probable cause by alleging that the grand jury indictment was based on falsified evidence and testimony in spite of defendant's knowledge of significant exculpatory evidence, and that the defendants agreed to present false evidence to the grand jury); McLennon, 2015 WL 1475819, at *8 (finding sufficient allegations similar to Plaintiff's allegations about Defendants procuring indictment in bad faith); see also Brandon v. City of New York, 705 F.Supp.2d 261, 273-74 (S.D.N.Y. 2010) (denying summary judgment to defendant with respect to malicious prosecution claim where jury could reasonably find that the indictment was secured through bad faith or perjury).

         Accordingly, the Court finds that Plaintiff has sufficiently rebutted the presumption of probable cause.

         2. Rebutting the Presumption of Probable Cause Against the Medical Center Defendants

         Plaintiff also sufficiently alleges that the indictments were procured in bad faith by the Medical Center Defendants. For example, Plaintiff alleges that “Defendant FHMC and Kupferman made no efforts to seek a diagnosis other than SBS.”[27] (Am. Compl. ¶ 122.) This claim is analogous to an allegation that a police officer failed to obtain evidence inconsistent with a plaintiff's guilt, which has been considered sufficient to allege that an indictment was procured in bad faith. See McLennon, 2015 WL 1475819, at *8 (finding bad faith sufficiently alleged where officer defendants accused of, inter alia, failing to obtain or disclose evidence inconsistent with plaintiff's guilt and not informing the district attorney's office of exculpatory evidence).

         While the Court acknowledges that a grand jury witness is entitled to absolute immunity in Section 1983 actions, Rehberg v. Paulk, 566 U.S. 356 (2012), the Second Circuit's decision in Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015), provides a clarification of this principle that is applicable to Plaintiff's malicious prosecution claim against Dr. Kupferman. In Coggins, the plaintiff was arrested and charged with various felonies based on allegations made by two officers in police paperwork and also verbally to the grand jury. 776 F.3d 108. The Second Circuit affirmed the district court's denial of absolute immunity to one of the police officers because the plaintiff's Section 1983 claims against that officer were based on alleged misconduct “prior to and independent of [the police officer's] perjurious grand jury appearance.” Id. at 113 (“The fact that [the police officer's] grand jury testimony paralleled information he gave in other contexts does not mean that [plaintiff's] malicious prosecution claim was ‘based on' [the officer's] grand jury testimony[;] . . . [thus, ] the district court properly found that absolute immunity is inappropriate.”) Similarly, here, Plaintiff alleges that, separate and apart from Dr. Kupferman's grand jury testimony, the Medical Center Defendants, including Dr. Kupferman, diagnosed Annie with SBS in bad faith and provided false information about the cause of Annie's death to the prosecutor. (See Am. Compl. ¶¶ 122, 150-52.)[28] Therefore, even assuming that Plaintiff cannot rebut the presumption of probable cause based on Dr. Kupferman's grand jury testimony alone, Plaintiff has done so based on other allegedly wrongful acts by Dr. Kupferman. Accordingly, the Court finds that Plaintiff has rebutted the presumption of probable cause.

         3. Amended Complaint Sufficiently Alleges Lack of Probable Cause to Prosecute

         For the same reasons just discussed, the Court finds that the allegations in the Amended Complaint are sufficient to create a plausible inference that there was no probable cause to prosecute Plaintiff at the time she was indicted. The case against Plaintiff was almost entirely circumstantial and depended upon the accuracy of the Medical Center Defendants' determination that SBS and the failure to obtain prompt medical attention caused Annie's death. Plaintiffs allegations that both the Medical Center Defendants and the City Defendants failed to obtain evidence that would have contradicted these findings-i.e., that Annie suffered from osteogenesis imperfecta, and that Annie's brain damage was so extensive that prompter medical intervention would not have saved her life-and the resulting communication of false or incomplete information to the prosecutors support a plausible inference that there was no probable cause to prosecute when Plaintiff was indicted.

         D. Malice

         To plead a malicious prosecution claim, Plaintiff must also allege malice for each of the Defendants. Manganiello, 612 F.3d at 160-61. “[M]alice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff.” Id. at 163; see also TADCO Const. Corp. v. Dormitory Auth. of State of New York, 700 F.Supp.2d 253, 271 (E.D.N.Y.2010) (“Actual malice requires pleading facts that show the defendant ‘commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'” (citation and quotation marks omitted)); Manbeck v. Micka, 640 F.Supp.2d 351, 377 (S.D.N.Y.2009) (“Malice in this context does not have to be actual spite or hatred.” (citation, internal quotation marks, and alteration omitted)); Newton v. City of New York, 566 F.Supp.2d 256, 273 (S.D.N.Y.2008) (Malice is “a wrong or improper motive[.]” (citations and quotation marks omitted)). “[A] lack of probable cause generally creates an inference of malice.” Manganiello, 612 F.3d at 163 (citation and quotation marks omitted) (emphasis added); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (“In most cases, the lack of probable cause- while not dispositive-‘tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.'” (quoting Conkey v. State, 427 N.Y.S.2d 330, 332 (App. Div. 1980))).

         1. The City Defendants' Malice

         Drawing all inferences in favor of Plaintiff, the Court finds that Plaintiff has adequately pled malice only for Det. Degnan and Dr. Landi. (Am. Compl. ¶ 145 (alleging that Degnan signed the criminal complaint knowing that its content was false and fabricated); see also Am. Compl. ¶ 150 (alleging that Dr. Landi swore under oath in the criminal complaint and made a statement that was false, perjurious, and entirely unsupported by any medical science or clinical or forensic evidence).) Plaintiff incorrectly argues that she has “plainly alleged malice” for all Defendants and directs the Court to Paragraph 215 of the Complaint. However, that paragraph is conclusory and is one of the numerous instances where Plaintiff resorts to “group pleading” against all the Defendants.[29] While Paragraph 215 properly alleges an improper motive for her prosecution, i.e., to “us[e] plaintiff as a bargaining chip to pressure Hang Bin Li to plead guilty and covering up defendants' illegal actions in knowingly arresting plaintiff without any legal basis, justification, or probable cause[, ]” it fails to allege any facts upon which to plausibly infer that each of the City Defendants acted out of this improper motive, and instead categorically states that they all had the same improper motive. Such conclusory allegations are not enough to infer malice on the part of all City Defendants. The Court, therefore, finds that malice has been sufficiently alleged only as to Det. Degnan and Dr. Landi.

         2. The Medical Center Defendants' Malice

         Notwithstanding Plaintiff's failure to cite to the relevant paragraphs in the Complaint, the Court finds that Plaintiff has adequately alleged malice on the part of the Medical Center Defendants. Plaintiff alleges that Defendants “arrested and imprisoned [her] despite knowing that there was no legal justification . . . in order to pressure plaintiff to testify against her husband . . . or to put pressure on plaintiff's husband to plead guilty.” (Am. Compl. ¶ 196.) More specifically, Plaintiff alleges that “[d]espite lab results showing high alkaline phosphatase and low calcium, consistent with metabolic bone disesase, ” FHMC and Dr. Kupferman “made no effort to seek a diagnosis other than SBS.” (Am. Compl. ¶ 122). Plaintiff also alleges, in describing “the interrogations and searches of [the Lis'] home by three separate squads . . . [and] forensic interrogations by several medical personnel at Flushing Hospital, ” that she was treated with “suspicion and unconcealed and unrestrained racism.” (Am. Compl. ¶ 114.) Drawing inferences in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently alleged malice on the part of the Medical Center Defendants, based on their motives in concealing exculpatory medical evidence to enable the prosecutor's use of Plaintiff as a “bargaining chip” against Plaintiff's husband[30] and conducting racially biased “forensic interrogations” of her.

         * * *

         Accordingly, the Medical Defendants' motion to dismiss the malicious prosecution claim is denied in its entirety, and the City Defendants' motion to dismiss Plaintiff's malicious prosecution claim is denied as to Det. Degnan and Dr. Landi, but is granted as to all other City Defendants.[31]


         Plaintiff also asserts a claim of abuse of process under Section 1983 against the City Defendants.[32] As with malicious prosecution, the Court looks to State law for the elements of a Section 1983 abuse of process claim. Mangino v. Incorporated Village of Patchogue, 808 F.3d 951, 958 n.5 (2d Cir. 2015) (citing Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) and Savino v. City of New York, 331 F.3d 63, 76-77 (2d Cir. 2003)). Under New York law, “a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with the intent to do harm without excuse of justification and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Savino, 331 F.3d at 76 (quoting Cook, 41 F.3d at 80); Hoffman v. Town of Southampton, 523 F.App'x 770, 771 (2d Cir. 2013) (summary order) (citing Savino, 331 F.3d 63). In the context of an abuse of process claim, “legal process means that a court issued the process, and the plaintiff will be penalized if he violates it.” Cook, 41 F.3d at 80 (quoting Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup. Ct. 1942)). So, for example, an arrest executed by the officers for a “‘collateral objective outside the legitimate ends of the process', satisfies the first element of an abuse of process claim.” Crockett v. City of New York, No. 11-CV-4378, 2015 WL 5719737, at *10 (E.D.N.Y. Sept. 29, 2015) (citation and quotation marks omitted); see also Cook, 41 F.3d at 80 (finding, with respect to abuse of process claim, that New York State Troopers who stopped and arrested plaintiff “clearly employed criminal process against [plaintiff] by having him arraigned on charges” that caused him to be held in custody). Notably, in TADCO Const. Corp., the court found that allegations that defendants “improperly contributed to [plaintiff's] arrest, but not that they took any further actions in his prosecution” were sufficient to withstand a motion to dismiss an abuse of process claim. 700 F.Supp.2d at 272 (recognizing “split of opinion” on whether mere act of issuing process is sufficient for first element of malicious abuse of process claim).

         “The crux of a malicious abuse of process claim is the collateral objective element.” Kraft v. City of New York, 696 F.Supp.2d 403, 416 (S.D.N.Y. 2010), aff'd, 441 F.App'x 24 (2d Cir. 2011). To plead a collateral objective, a plaintiff must plausibly plead not that defendant acted with an “improper motive, ” but rather an “improper purpose”: “[A plaintiff] must claim that [the defendant] aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Savino, 331 F.3d at 77.

         The City Defendants argue that Plaintiff's abuse of process claim should be dismissed because the claim accrued at the time of Plaintiff's arrest, and therefore the three-year statute of limitations expired sometime around March 2011. (Dkt. 59 at 21.) The Court, however, finds that because Plaintiff could not have discovered one of the two collateral objectives she ...

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