United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF United States District Judge.
Lashawn Burgess commenced this action for false arrest,
denial of the right to a fair trial, and malicious
prosecution under 42 U.S.C. § 1983, as well as malicious
prosecution and respondeat superior under New York State law
against defendants the City of New York, and police officers
Vincent Agostino, Michael DiCecco, and Ricky Alexander. (Am.
Compl. (Doc. No. 13).) Defendants now move for summary judgment
pursuant to Federal Rule of Civil Procedure 56. (Mot. for
Summ. J. (Doc. No. 42).) Burgess opposes the motion.
(Pl.'s Opp'n (Doc. No. 48).) Because a jury could
credit Burgess's version of what occurred on the night
that he was arrested, summary judgment does not lie.
facts in this are rather straightforward. They are taken from
the record and are largely undisputed, except in where noted.
At approximately 9:00 p.m. on the night of February 28, 2014,
officers Agostino, Alexander and DiCecco were on patrol in
plainclothes and in an unmarked car in the Port Richmond
neighborhood of Staten Island, an area known for drug
activity. (Defs.' Ex. B (Doc. No. 41-2) at 17:12-14,
Defs.' Ex. C (Doc. No. 41-3) at 57:9-22, Pl.'s Ex. A.
(Doc. No. 46-1) at 53:3-13.) According to the officers'
version of events, as they approached the corner of Park
Avenue and Church Street, they observed two men, Burgess and
an acquaintance of his later identified as Leroy Miller.
(Defs.' Ex. A (Doc. No. 41-1) at 25:12-22.) Miller was
known to the officers as an individual who had previously
been arrested for possession of a controlled substance, a
fact that Burgess does not dispute. (Defs.' Ex. A at
37:6-38:18; Defs.' Ex. B at 29:8-30:2, 65:22-66:4;
Defs.' Ex. C at 23:14-24:7.) They were the only two men
on the street, and they were standing close to each other
when the officers first saw them from a distance of 20 to 50
feet. (Defs.' Ex. A at 25:12-17, 30:25-31:5; Defs.'
Ex. B at 23:11-16, 27:22-28:4.) The intersection of Park
Avenue and Church Street is well lit. (Defs.' Ex. A at
three officers claim that, from their vantage point in their
slow-moving vehicle, straight ahead of them they saw Burgess
hand something to Miller, and Agostino and DiCecco both claim
that they saw Miller hand over U.S. currency in exchange.
(Defs.' Ex. A at 10:10-18, 35:10-36:9; Defs.' Ex. B
at 26:14-21; Defs.' Ex. C at 22:9-23:10.) The officers
then pulled up beside the two men, as Burgess and Miller
began to walk away from one another. (Defs.' Ex. A at
34:6-19.) They approached both men, and detained them. They
searched Miller and discovered two bags of crack cocaine
hidden in his glove. (Defs.' Ex. A at 41:21-24.) The
officers then arrested both Miller and Burgess. (Defs.'
Ex. A at 43:17-19, 47:13-15.) Burgess was then searched; no
drugs were found, but the officers recovered $20 from
(Defs.' Ex. E (Doc. No. 41-5) at 62:1- 63:5.)
version is not dissimilar except in a few material respects.
Burgess concedes that upon initially seeing Miller, the two
greeted one another with a handshake. (Pl.'s Ex. A at
56:24-57:4.) He says that the men did not shake hands again
after their initial greeting. (Id. at 58:7-15.)
Burgess adamantly denies handing anything to Miller at any
time that evening. (Pl.'s Ex. K (Doc. No. 46-11).) In
addition, Burgess claims that the two men had been in
conversation for five minutes before the police arrived on
the scene, and as a result, he claims that the officers could
not possibly have observed the handshake between the two men.
(Pl.'s Ex. A at 57:11-12; Pl.'s Opp'n at 13-14.)
the arrest, Agostino prepared an arrest report in which he
claimed to have seen Burgess sell drugs to Miller. (Pl.'s
Ex. F (Doc. No. 46-6) at 8-10.) Alexander entered this
report, and DiCecco was the approving supervisor.
(Id.) Alexander also prepared a complaint report in
which he claimed to have witnessed this drug transaction,
again with DiCecco approving the report. (Pl.'s Ex. F at
11-12.) Agostino later spoke with a Queens County Assistant
District Attorney (“ADA”) in his role as the
arresting officer and signed a criminal complaint charging
Burgess with criminal possession of a controlled substance in
the fifth degree and criminal possession of a controlled
substance in the seventh degree. (Defs.' Ex. A at 60:18-
61:16; Defs.' Ex. J (Doc. No. 41-10) at 2-3.) After
coming in to court three different times, the charges against
Burgess were dropped on September 16, 2014. (Pl.'s Ex. H
(Doc. No. 46-8); Pl.'s Ex. I (Doc. No. 46-9).)
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; 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).
determining whether a genuine issue of material fact exists,
the evidence of the nonmovant “is to be believed”
and the court must draw all “justifiable” or
“reasonable” inferences in favor of the nonmoving
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). Once
the moving party has satisfied its burden, “the
nonmoving party must come forward with ‘specific facts
showing 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)), and “may not rely on conclusory
allegations or unsubstantiated speculation, ”
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)
(internal citations omitted). 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) (alteration in
original). 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).
state a claim for false arrest, a plaintiff must show that
“(1) the defendant intended to confine the plaintiff,
(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.” Savino
v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003). A
confinement is “privileged” when the arrest was
based on probable cause. Torres v. Jones, 26 N.Y.3d
742, 759 (2016). Therefore, the existence of probable cause
is an absolute defense to claims for false arrest.
Jenkins v. City of New York, 478 F.3d 76, 84 (2d
officer has probable cause to arrest when he or she 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 a crime.” Stansbury v.
Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (internal
citations and alterations omitted). In determining whether an
officer had probable cause, courts consider the totality of
the circumstances, based on the facts available to the
officer at the time of the arrest. Id. Where the
question of whether an arresting officer had probable cause
is dependent on a factual dispute, the issue should be
decided by the jury. Murphy v. Lynn, 118 F.3d 938,
947 (2d Cir. 1997).
the facts in the light most favorable to Burgess, a jury
crediting his version of events could find that the officers
lacked probable cause for his arrest. First, Burgess's
mere proximity to “others independently suspected of
criminal activity, does not, without more, give rise to
probable cause.” Ybarra v. Illinois, 444 U.S.
85, 91 (1979). This is true even when a person is arrested at
a location known for drug sales, and when others in near
proximity are found to be in possession of drugs. Flores
v. City of Mount Vernon, 41 F.Supp.2d 439, 443-44
(S.D.N.Y. 1999) (no probable cause to arrest bartender where
owner had been selling cocaine from behind the bar, and
patrons were found with cocaine).
and most important, Burgess presents facts which, if
credited, cast doubt on the credibility of the officer's
version of events. Critically, Burgess admits that he shook
Miller's hand, and adamantly denies that he handed
anything to the officers. Assuming that Burgess's version
of the facts is true, and that all the officers' saw was
a handshake, those observations, even in a drug prone
location where one man is a known drug user, are not
sufficient to give rise to probable cause. Moreover, Burgess
testified that, by his observations, the police officers
arrived on the scene five minutes after the men first met and
shook hands. This ...