United States District Court, S.D. New York
MEMORANDUM AND ORDER
KEVIN CASTEL, UNITED STATES DISTRICT JUDGE
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.
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)).
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”). (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).
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).
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).
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).
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).
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
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
Claims Against the NYPD.
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,