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Rao v. City of New York

United States District Court, E.D. New York

March 29, 2018



          ROSLYNN R. MAUSKOPF United States District Judge.

         Plaintiffs Kishor Kumar Rao and Poornima Kishor commenced this action pursuant to 42 U.S.C. § 1983, alleging that defendants City of New York, Detective Kevin Warmhold, Police Officer Yisel Cabrera, Detective Michael Riso, and Detective John Gridley violated Rao's civil rights on September 25, 2013 by, inter alia, unlawfully arresting him and using excessive force.[1]Defendants now move for partial summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56, on the grounds that Rao's federal and state law false arrest claims, his state law false imprisonment claim, as well as his malicious abuse of process claim, fail because the officers had probable cause to arrest. (See Mot. for Summ. J. (Doc. No. 64).) For the reasons stated below, the defendants' motion for partial summary judgment is granted in part and denied in part.


         Rao's legal troubles began on February 27, 2013, when Shahjahan Khan visited his medicinal supplements business that she had heard about on TV. (Defs.' Ex. C. (Doc. No. 67-3) at 3.) Khan, a 66 year-old woman, describes herself as “not healthy, ” and she says she has trouble remembering things. (Id.) Hoping to restore her health, she went to Holistic Healthcare Society and Research Center, Rao's business. (Id.) The precise details of what happened next are murky. In a statement Khan prepared on March 6, 2013, she wrote that the doctor, Rao, asked her questions about her personal life, who supports her, and how much money she has saved for retirement. (Id. at 3-4.) Rao assured Khan that he will make her feel better. (Id. at 4.) He then gave Khan “a medicine, ” a pill or powder of some kind, that Khan said made her feel dizzy and confused. (Id.) She was told that her Medicare card was not working and that she would have to pay in cash. (Id. at 5.) She remembered that Rao became “very angry, ” and told her that if she does not pay her medical bill, he “will straighten [her] out.” (Id.) Khan described how the people at Rao's business rummaged through her wallet and asked for her PIN number. (Id.) Rao then allegedly called Khan's credit card company and said Khan was in the hospital and needed to pay her bill. (Id.) A woman then accompanied Khan to Chase Bank, where Khan withdrew $25, 600, though she does not remember precisely how the lady got her to withdraw the money. (Id.) Khan described feeling scared. (Id. at 4, 6.)

         One week later, on March 5, 2013, Khan and her daughter, Mubiha, filed a complaint with the New York Police Department (“NYPD”). (Defs' 56.1 Statement (Doc. No. 65) ¶ 2.) Khan reported that Rao had “threatened/forced” her to withdraw $25, 600 from her bank account in exchange for medicinal supplements. (Id. ¶ 3.) The next day, Khan made the same complaint to the Queens County District Attorney's Office, and the case was assigned to Assistant District Attorney (“ADA”) Khadijah Muhammad-Starling and Detective (then-police officer) Kevin Warmhold, who worked at the 106th Precinct. (Id. ¶¶ 3-5, 7.) Mubiha appears to have filled out a form for the District Attorney's Office in which she described her mother's experience of feeling “drunk” after taking the pill Rao had given her. (Defs.' Ex. C. at 2.) She also noted on the form that her mother is 66 years old and had been diagnosed with “mild cognitive impairment” a year ago. (Id.)

         As part of his investigation, Warmhold visited the Chase Bank, where Khan had withdrawn $25, 600. (Defs.' Ex. E. (Doc. No. 67-5) at 3.) A manager there confirmed that he had approved Khan's transaction after a bank teller called him over to authorize it. (Id.) He remembered that he asked Khan why she was taking out so much money; she had responded that she needed to pay a medical bill. (Id.) Warmhold also interviewed Khan, who recounted her visit to Rao's office and added that the day after the incident, she received a phone call instructing her not to tell anyone, including her daughter, about her visit. (Id. at 7.) Warmhold then unsuccessfully attempted to interview Rao. (Id. at 6, 10.) He spoke with one of Rao's employees though, who said that Khan had “left happy.” (Id. at 13.)

         As their investigations progressed, ADA Starling and Warmhold conferred. Warmhold's police notes suggest that on April 4, 2013, Starling informed Warmhold that she intended to seek a grand jury indictment of Rao. (Id. at 14.) Three weeks after that conversation, on April 25, 2013, Warmhold activated an Investigation Card (“I-card”), [3] identifying Rao as a wanted perpetrator with probable cause to arrest. (Id. at 16.) Warmhold alleges that he went to Rao's residence that day to arrest him, but Rao would not answer the door. (Id. at 17.) Rao denies that he “ever refuse[d] to cooperate with any part of the investigation.” (Pl.'s 56.1 Statement (Doc. No. 68-1) at 4.)

         One month later, on June 24, Warmhold contacted Officer Remson of Customs and Border Patrol at JFK Airport, who placed “a hold” on Rao should he try to leave the country. (Defs.' Ex. E at 20.) At some point afterwards, Starling again spoke with Warmhold. In her deposition, Starling says that she told him that she was hoping to “get medical evidence to substantiate the mental health of Mrs. Khan.” (Defs.' Ex. D (Doc. No. 67-4) at 12.) Because she was “waiting to see if there was any additional evidence, ” she was under the impression that she and Warmhold “would have communicated” prior to any arrest. (Id.) In his deposition, Warmhold says that Starling informed him that she was waiting on financial records, rather than medical ones. (Defs.' Ex. X (Doc. No. 71) at 6-7.) Though the record is not clear as to when this conversation took place, Warmhold's notes relate that on July 31, Starling informed him that her office would not be prosecuting Rao's case “at this time.” (Defs.' Ex. E at 21.)

         At some point during the investigation - possibly in June or August - Detective Riso visited Rao at his home.[4] (Pl.'s Ex. J (Doc. No 69-9) at 2.) Rao invited him in, but the record does not reveal what they discussed. Riso explained at his deposition that Warmhold told him not to bring Rao to the precinct at that time. (Id. at 3.) On September 7, 2013, Warmhold administratively closed his investigation “C-12, ” which the defendants assert signified that “the next step in the investigation was to locate plaintiff Rao.” (Defs.' 56.1 Statement ¶ 20.) Warmhold left the I-card for Rao's arrest active. (Id. ¶ 19.)

         On September 25, 2013, Warmhold received a call from Customs and was notified that Rao was at John F. Kennedy Airport. (Pl.'s Ex. G (Doc. No. 69-7) at 7.) Warmhold “was working on another case at the time, ” and told Officers Cabrera and Gridley to arrest Rao at the airport for Grand Larceny in the Fourth Degree. (Defs.' 56.1 Statement ¶ 21; Pl.'s Ex. G at 7.) Rao testified at his deposition that, in a holding cell following his arrest, Warmhold tried to extort a $100, 000 bribe from him, payable to the “police welfare society.” (Rao Dep. (Doc. No. 69-12) at 5.) In exchange, Warmhold would let Rao carry on his business “as [he] want[s].” (Id.) When Rao refused “again and again, ” Warmhold allegedly hit him in the face with the butt of his gun and “smashed [Rao's] head” into the wall. (Id. at 6.) The defendants deny that any such exchange took place. Rao has undergone extensive dental surgery since the alleged assault, and his dentist wrote that the dental problems are consistent with “severe facial trauma.” (Pl.'s Ex. T (Doc. No. 69-20) at 1.)[5] The Queens District Attorney's Office declined to prosecute Rao, and he was released prior to arraignment. (Defs' 56.1 Statement ¶¶ 29-30.)


         Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In determining whether a genuine issue of material fact exists, the evidence of the non-movant “is to be believed, ” and the court must draw all “justifiable” or “reasonable” inferences in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see also Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial, '” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original), and “may not rely on conclusory allegations or unsubstantiated speculation, ” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256.

         Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [its] case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322) (internal quotation marks omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).


         I. False Arrest

         The elements of a Section 1983 claim for false arrest are “substantially the same” as those of a “claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996), cert. denied, 528 U.S. 946 (1999). “Under New York state law, to prevail on a claim of false arrest a plaintiff must show that ‘(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'” Jocks v. Tavernier, 316 F.3d 128, 134- 35 (2d Cir. 2003) (quoting Broughton v. State, 37 N.Y.2d 451, 456 (N.Y.), cert. denied, 423 U.S. 929 (1975)). “Under New York law, the existence of probable cause is an absolute defense to a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006).

         Here, Rao brings a false arrest claim against Detective Warmhold and arresting officers Cabrera and Gridley. The defendants argue that Warmhold had probable cause to arrest Rao based on Kahn's complaint that Rao defrauded her. (Defs.' Mem. (Doc. No. 66) at 14-18.) Rao argues that Kahn's complaint alone was insufficient for probable cause; and even if the complaint gave rise to probable cause, intervening facts in the subsequent six months vitiated probable cause, including ADA Starling's decision not to prosecute. (Opp'n (Doc. No. 68) at 12-23.) For the reasons stated below, Rao's arguments are unavailing, and the officers had probable cause to arrest Rao.

         A. Probable Cause at the Time of Kahn's Complaint

         An officer has probable cause to arrest when he has “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Jocks, 316 F.3d at 135 (internal quotation marks omitted). Applying that standard here, Warmhold had probable cause to arrest Rao for grand larceny in the fourth degree, as well as other possible crimes. Under New York law, a person is guilty of grand larceny in the fourth degree when “he steals property, ” such as money, and “[t]he value of the property exceeds one thousand dollars” or “the property, regardless of its nature and value, is obtained by extortion.” N.Y.P.L § 155.30. In addition, there was probable cause to arrest Rao for a scheme to defraud in the second degree, N.Y. Penal Law § 190.60.[6]

         The Second Circuit has repeatedly held that “an arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest . . .” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995); Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006). Here, the complaining victim's claims that Rao's medicine made her feel dizzy or drunk, her description of feeling intimidated, and the large sum of money involved, all indicated possible criminal activity. The police corroborated much of Khan's account by visiting Rao's business and the Chase Bank where she withdrew the $25, 600. This was sufficient to create probable cause.

         B. Intervening Facts

         The question then becomes whether there were any intervening facts between March 5, when Khan went to the police, and September 25, when Rao was arrested, that vitiated probable cause. Even when probable cause exists “at the time of arrest, evidence could later surface which would eliminate probable cause.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (internal quotation marks ...

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