United States District Court, S.D. New York
OPINION AND ORDER
M. FURMAN, United States District Judge.
2015, Pero Antic and Thabo Sefolosha were teammates on the
National Basketball Association's Atlanta Hawks. Early on
the morning of April 8th that year, they were both arrested
after officers from the New York City Police Department
(“NYPD”) responded to a nightclub to investigate
a stabbing (a stabbing in which Antic and Sefolosha were
uninvolved). Thereafter, they each filed civil rights suits
against the City of New York and various NYPD officers,
alleging - among other things - claims of false arrest,
malicious prosecution, and excessive force. On April 5, 2017,
the Sefolosha case settled; the Antic case
did not. (See Docket No. 50; see also
16-CV-2564, Docket No. 54). Instead, Defendants moved,
pursuant to Rule 56 of the Federal Rules of Civil Procedure,
for summary judgment on all of Antic's claims. (Docket
No. 45). By “bottom-line” Order entered on June
28, 2017, the Court granted Defendants' motion
“[f]or reasons to be provided in a forthcoming
opinion.” (Docket No. 68). This is that opinion.
following facts, taken from materials submitted by the
parties, are, unless otherwise noted, undisputed. See
Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.
2011). In the early morning hours of April 8, 2015, Antic and
Sefolosha were in 1 OAK, a New York City nightclub on 17th
Street near 10th Avenue, when a stabbing occurred outside the
lounge. (Docket No. 48 (“Defs.' SOF”)
¶¶ 1-2). To secure the crime scene, the responding
NYPD officers directed those in the nightclub - including
Antic, Sefolosha, and two women who were with them - to leave
and walk towards 10th Avenue. (Id. ¶¶ 6,
12). As they walked in that direction, one of the Defendants
here - NYPD Officer Paul Giacona - singled out Sefolosha, and
repeatedly directed him (how forcefully is a matter of some
dispute, but ultimately irrelevant) to keep moving.
(Defs.' SOF ¶ 11; Docket No. 62 (“Pl.'s
SOF”) ¶ 9).
the group arrived at 10th Avenue, Antic and the two women got
in a car that Antic had ordered. (Defs.' SOF ¶ 15;
Pl.'s SOF ¶¶ 7, 15). Sefolosha, however, was
approached by a homeless-looking man asking for money.
(Defs.' SOF ¶ 17). Sefolosha sought to give the man
some money, but before he could do so another Defendant here
- Officer Daniel Dongvort - escorted the man away.
(Id. ¶ 18). Instead of entering the car,
Sefolosha followed Officer Dongvort and the man with his hand
extended, apparently in an effort to give the homeless man
the money. (Id. ¶¶ 20-21). Moments later,
a third Defendant here - Officer Richard Caster - grabbed
Sefolosha; other officers came to Officer Caster's
assistance and, after a brief scuffle during which Sefolosha
suffered injuries to his right fibula and certain ligaments,
they arrested Sefolosha. (Id. ¶¶ 23,
27-28; 16-CV-2564, Docket No. 8 (“Sefalosha
Compl.”) ¶ 33).
(or, at a minimum, in what ways) the final individual
Defendant here - Officer Michael O'Sullivan - assisted in
Sefolosha's arrest is to some extent unclear. He and at
least one other officer testified that he was among those who
participated in Sefolosha's arrest. (Docket No. 46
(“Francolla Decl.”), Ex. I (“O'Sullivan
Examination”), at 44; Docket No. 65 (“Modafferi
Decl.”), Ex. B (“Rossi Testimony”), at 34).
Similarly, Antic himself testified that he approached Officer
O'Sullivan to ask why the officers were “do[ing]
this” to Sefolosha (Francolla Decl., Ex. N
(“Antic Examination”), at 32), and that Officer
O'Sullivan was then “dealing with Thabo.”
(Id. at 34). And Sefolosha identified Officer
O'Sullivan as one of the officers who had
“attacked” him prior to his arrest. (Sefolosha
Compl. ¶ 32). But other officers were less certain of
Officer O'Sullivan's role (see Docket No. 61
(“Brown Decl.”), Ex. 9 (“Caster
Examination”), at 83, 91; Brown Decl., Ex. 10
(“Dongvort Examination”), at 73), and at least
one officer explicitly testified that “Officer
O'Sullivan was not arresting Mr. Sefolosha, ”
(Brown Decl., Ex. 17 (“Giacona Examination”), at
121). Regardless, there is no dispute that Officer
O'Sullivan was standing only a few feet away from
Sefolosha when the arrest occurred and that he was
participating in the NYPD's efforts to secure the area
around the 1 OAK nightclub. (See Pl.'s SOF
¶ 31; Caster Examination 105, 142).
these events, Antic got out of the car and approached Officer
O'Sullivan from behind to ask why Sefolosha was being
arrested. (Defs.' SOF ¶ 34; Pl.'s SOF ¶ 35;
Antic Examination 32-33). To get Officer O'Sullivan's
attention, Antic touched the officer on the shoulder.
(Pl.'s SOF ¶ 35). Officer O'Sullivan describes
the touch as a “grab”; Antic, however, asserts
that he merely “tapped” Officer O'Sullivan
“like a normal human being, ” while saying
“excuse me.” (O'Sullivan Examination 44;
Pl.'s SOF ¶ 35). In any case, Officer O'Sullivan
responded by pushing Antic, who - despite being six feet,
eleven inches tall and weighing 260 pounds - fell to the
ground. (Defs.' SOF ¶ 36; Pl.'s SOF ¶ 36).
Antic was then arrested for obstruction of governmental
administration (“OGA”), disorderly conduct, and
menacing, and spent several hours in jail. (Pl.'s SOF
¶¶ 41-42). In contrast to Sefolosha, Antic suffered
no physical injuries as a result of the incident. (Defs.'
SOF ¶ 38; Pl.'s SOF ¶ 38).
that same day, Antic was charged, in a misdemeanor complaint
signed by Officer Giacona, with OGA, disorderly conduct, and
harassment. (Brown Decl., Ex. 28). But on September 9, 2015,
all of these charges were dismissed on an oral motion by the
prosecution. In making the motion, the Assistant District
Attorney stated as follows:
On April 8, 2015, the police responded to 453 West 17th
Street in regards to a stabbing outside the 1 Oak nightclub.
Upon arrival, they were ordered to secure the crime scene and
remove over a hundred people off the block. The police
ordered the defendant, and separately charged defendant,
Thabo Sefolosha, to leave the area. Both defendants refused
multiple orders to disperse. The defendant Antic was arrested
after he grabbed the shoulder of a police officer, who's
attempting to arrest Sefolosha.
The investigation revealed the police officer had probable
cause to arrest defendant Antic because he refused multiple
orders to disperse, and because he grabbed the shoulder of a
police officer, who's attempting to arrest defendant
However, the investigation also revealed that Antic was
attempting to calm the escalating situation between Sefolosha
and the police officers. Officers reported that while
Sefolosha was resisting arrest, Antic was telling Sefolosha
to calm down and to do what the officers said.
Although Antic grabbed the officer's shoulder, he did not
cause any injury to the officer. In light of these mitigating
circumstances, the People move to dismiss this case against
Pero Antic in the interest of justice.
(Docket No. 49 (“Supp. Francolla Decl.”), Ex. Q
(“Dismissal Tr.”), at 2-3). Judge Kenneth McGrath
granted the motion, and dismissed all of the charges against
Antic. (Id. at 3).
April 1, 2016, Antic filed this suit. His primary claims -
brought under federal law, state law, or both, as the case
may be - were for false arrest, malicious prosecution,
excessive force, and assault and battery. (Docket No. 18
(“Am. Compl.”) ¶¶ 32-43, 53-55, 60-67).
In addition, he brought a municipal liability claim under
federal law and state-law claims for negligent ...