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Fobbs v. City of New York

United States District Court, S.D. New York

June 19, 2017

KIM FOBBS, Plaintiff,



         Plaintiff Kim Fobbs brings this action against the City of New York (“City”) and the New York City Police Department (“NYPD”), asserting claims under 42 U.S.C. § 1983. Fobbs's complaint alleges violations of her right to a speedy trial, malicious prosecution, infliction of extreme emotional distress, harassment, and municipal liability. Fact discovery in this action has concluded. Defendants now move for summary judgment on all claims. For the following reasons defendants' motion is GRANTED.


         The following facts are taken from materials submitted in connection with the present motion and are either undisputed or construed “in the light most favorable to the [plaintiff].” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). Fobbs, who is represented by counsel, has not submitted a Rule 56.1 statement and in fact, appears to have copied the text of the defendants' Rule 56.1 statement into the fact section of her opposition brief. The Court accepts the facts set forth in defendants' unchallenged statement to the extent they are supported by the record. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)).

         Fobbs was arrested by the NYPD on March 24, 2011 on charges of grand larceny and offering a false instrument for filing in connection with her receipt of Section 8 housing benefits from the New York City Housing Authority (“NYCHA”).[1] (Johnson Decl. Ex. G; Criminal Complaint, Johnson Decl. Ex. C). The criminal complaint, sworn out by NYCHA Special Investigator Beth-Ann Permuy, accused Fobbs of failing to report her husband's income on her applications for Section 8 housing vouchers. (Johnson Decl. Ex. C). Fobbs and her husband William Adams were married on May 4, 1992. (Defs.' 56.1 ¶ 2; Johnson Decl. Ex. C). Fobbs began receiving Section 8 housing vouchers in 1996. (Defs.' 56.1 ¶ 1). Using the vouchers, Fobbs rented an apartment located at 370 East 173rd Street in the Bronx. (Id. ¶ 4). Later, she moved to 4005 Dereimer Avenue in the Bronx. (Id. ¶ 5). Fobbs's rent at 4005 Dereimer Avenue was subsidized by the Section 8 program from 2000 to 2009. (Id. ¶ 6).

         The amount of the subsidy Fobbs received was determined by the number of people in her household as well as each person's employment status and income level. (Id. ¶ 7). In “Affidavits of Income” filed with NYCHA on March 24, 2006, April 12, 2007, April 18, 2008, and February 24, 2009, Fobbs reported that she lived only with her children and grandchildren. (Id. ¶ 18). She did not report living with her husband and did not include his income on her “Affidavits of Income.” (Id. ¶¶ 17-18). However, her husband, Adams, listed 4005 Dereimer Avenue as his residence on a New York state driver's license issued in 2004, and on a commercial driver learner's permit issued to him in 2005. (Id. ¶¶ 14-15). Permuy's investigation also revealed that Adams had worked full-time as a New York City bus driver since approximately 2004 where he listed 4005 Dereimer Avenue as his home address. (Id. ¶ 8; Johnson Decl. Ex. C). In addition, W-2 forms issued by the Metropolitan Transit Authority (“MTA”) between 2005 and 2008 listed his residence as 4005 Dereimer Avenue. (Defs.' 56.1 ¶ 11). During that time he earned in excess of $191, 000, which was not included in any of the “Affidavits of Income” Fobbs filed with NYCHA. (Id. ¶¶ 18, 23).

         Based on this information, Permuy swore out a criminal complaint on March 24, 2011 charging Fobbs with grand larceny and offering a false instrument for filing. (Id. ¶ 22). The criminal complaint states that Fobbs would not have been eligible to receive Section 8 housing vouchers if she had reported her husband's income. (Johnson Decl. Ex. C). As a result of her failure to report her husband's income and presence in the apartment, NYCHA overpaid Fobbs in excess of $36, 504 between 2006 and 2009. (Defs.' 56.1 ¶ 24). NYPD officers arrested Fobbs in Dutchess County on March 24, 2011. (Id. ¶ 26; Johnson Decl. Ex. G). These charges were ultimately dismissed on March 19, 2015 upon a motion under New York Criminal Procedure Law (“C.P.L.”) § 30.30. (Id. ¶ 29). C.P.L. § 30.30 requires that the state prosecutor be ready for trial within a prescribed period of time depending on the nature of the offenses charged. N.Y. Crim. Proc. Law § 30.30. According to Fobbs, the Assistant District Attorneys misrepresented their trial readiness to the court and failed to present witnesses in a timely manner and were therefore unable to move forward with the case. (Compl. ¶ 14; Pl.'s Mem. 10).

         During her deposition in this action, Fobbs testified that she and her husband did not live together between 1995 and 2009, and that he lived at his father's house during that time. (Fobbs Deposition, Johnson Decl. Ex. B 15:16-25, 16:10-12). She also explained that Adams only used the 4005 Dereimer address on his driver's license and other official documents so that he could claim head of household status on his tax returns, as he could not do so using his father's address. (Id. 29:14-24).


         I. Legal Standard.

         Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. A fact is material if it “might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he is entitled to relief as a matter of law. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

         When the moving party has met this initial burden and has asserted facts demonstrating that the non-moving party's claim cannot be sustained, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. In raising a triable issue of fact, the non-movant carries only a “limited burden of production, ” but nevertheless “must demonstrate more than some metaphysical doubt as to the material facts, and come forward with specific facts showing that there is a genuine issue for trial.” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (internal quotation marks omitted).

         An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotations and citations omitted). In reviewing a motion for summary judgment, the Court must scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c), Fed.R.Civ.P. In the absence of any disputed material fact, summary judgment is appropriate.

         II. Claims Against the NYPD.

         The NYPD is not a juridical entity separate from the City of New York. It is a non-suable agency of the City. See N.Y. City Charter § 396 (“All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of city of New York and not in that of any agency, except where otherwise provided by law.”). Fobbs's claims against the NYPD must be dismissed. See Jenkins v. City of New York, 478 ...

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