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Antic v. City of New York

United States District Court, S.D. New York

July 27, 2017

PERO ANTIC, Plaintiffs,
THE CITY OF NEW YORK, et al., Defendants.


          JESSE M. FURMAN, United States District Judge.

         In 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.


         The 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).

         When 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).

         Whether (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).

         Observing 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).

         Later 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 Sefolosha.
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).[1]

         On 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 ...

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