Case v. City of N.Y.

• Decision Date: 30 September 2019
• Docket Number: 14 Civ. 9148 (AT)
• Citation: 408 F.Supp.3d 313
• Parties: Benjamin CASE, Jennifer Klein, and Mark Kushneir, Plaintiffs, v. The CITY OF NEW YORK, Chief of Department Joseph Esposito, Lieutenant David Groht, Sergeant Lawrence Papola, Officer Benjamin Almonte, Officer Dmitry Tverdokhleb, and Officer Michael Maldonado, Defendants.
• Court: U.S. District Court — Southern District of New York

408 F.Supp.3d 313

Benjamin CASE, Jennifer Klein, and Mark Kushneir, Plaintiffs,

v.The CITY OF NEW YORK, Chief of Department Joseph Esposito, Lieutenant David Groht, Sergeant Lawrence Papola, Officer Benjamin Almonte, Officer Dmitry Tverdokhleb, and Officer Michael Maldonado, Defendants.

14 Civ. 9148 (AT)

United States District Court, S.D. New York.

Signed September 30, 2019

Gideon Orion Oliver, New York, NY, for Plaintiffs.

Amy Robinson, Brachah Goykadosh, New York City Law Department, New York, NY, for Defendants.

OPINION AND ORDER

ANALISA TORRES, United States District Judge

Plaintiffs, Benjamin Case, Jennifer Klein, and Mark Kushneir, bring this action pursuant to 42 U.S.C. § 1983 against the City of New York (the "City"), and Chief of Department Joseph Esposito, Lieutenant David Groht, Sergeant Lawrence Papola, Officer Benjamin Almonte, Officer Dmitry Tverdokhleb, and Officer Michael Maldonado (collectively, the "Individual Defendants"), who are employed by the New York City Police Department (the "NYPD"), alleging that Plaintiffs' constitutional rights were violated in connection with their participation in an Occupy Wall Street demonstration in Manhattan. In a memorandum and order dated February 10, 2017 (the "February 2017 Order"), the Court granted in part and denied in part Defendants' motion to dismiss the first amended complaint. Before the Court now is Defendants' motion for summary judgment on the remaining claims in the second amended complaint (the "complaint"). For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part.¹

BACKGROUND²

The facts discussed in this opinion are undisputed except where otherwise noted. The Court has drawn all reasonable inferences in favor of Plaintiffs, as the nonmovants. See Costello v. City of Burlington , 632 F.3d 41, 45 (2d Cir. 2011).

I. Events of November 17, 2011

The first Occupy Wall Street ("OWS") protest occurred on September 17, 2011. Cf. Def. 56.1 ¶ 1, ECF No. 138. OWS organizers then called for "a national day of direct action," to be held before the ring of the New York Stock Exchange bell, on November 17, 2011 (the "protest"), the two-month anniversary of the first demonstration. Id. ¶ 2. Facts specific to each Plaintiff are set forth below.

Benjamin Case. At about 9:45 a.m. on November 17, 2011, Defendant Officer Benjamin Almonte walked up to the intersection of William and Beaver Streets in the Wall Street area. Id. ¶ 12. Case, a participant in the protest, id. ¶ 4, arrived there at approximately 9:45–10:00 a.m., id. ¶ 10. Vehicles were unable to get through the intersection. Id. ¶ 13. At his deposition, Almonte testified that it was blocked by a crowd of protesters. Almonte Dep. 95:2–12, ECF No. 140-4. Defendant Sergeant Lawrence Papola gave orders to disperse over a loudspeaker. Def. 56.1 ¶¶ 16, 18–20. Case heard at least one such directive. Id. ¶ 17. After Papola's orders, Case and some other individuals briefly locked arms while standing, id. ¶ 23, and then Case sat down on the roadway, id. ¶ 21. Subsequently, he had his back briefly on the ground. Id. ¶¶ 22, 25. A police officer rolled Case onto his stomach, handcuffed him, and instructed him to reposition to his feet. Id. ¶ 26. Following Case's arrest, some vehicular traffic began proceeding. Id. ¶¶ 30–31. Almonte was assigned to Case's arrest and swore out Case's criminal court complaint. Id. ¶¶ 32, 34. Case was charged with disorderly conduct in violation of New York Penal Law §§ 240.20(5) (obstruction of pedestrian or vehicular traffic), 240.20(6) (failure to obey lawful dispersal order), and 195.05 (obstruction of governmental administration in the second degree). Pl. Opp. 56.1 ¶ 62, ECF No. 145. Case was issued a Desk Appearance Ticket ("DAT") and later released. Def. 56.1 ¶ 35. Case made three court appearances, Pl. Opp. 56.1 ¶ 64, and pleaded guilty to disorderly conduct, Def. 56.1 ¶ 38.

Jennifer Klein. Klein was another participant in the protest. Id. ¶ 39. She arrived at the intersection of Pine and Nassau Streets by 8:30 a.m. Id. ¶ 40. Klein wanted to continue walking onto Nassau to proceed to the Stock Exchange, but police barriers on Nassau blocked access. Id. ¶ 44. Defendant Officer Dmitry Tverdokhleb arrived at the intersection. Id. ¶ 48. Vehicular traffic could not move through. Tverdokhleb Dep. 63:22–64:23, ECF No. 140-5; Def. 56.1 ¶ 66. As Tverdokhleb was ordered to begin arrests, he observed Klein sitting down in the intersection. Id. ¶ 50. Video of the scene shows Klein seated at certain moments. Def. Ex. M, Rivera Video, 1 of 2, No. 329, 02:44, ECF No. 123-13; Def. Ex. N, Kilcoyne Video, VTS_01_3, 04:52, ECF No. 123-14. At around 8:45 a.m., Klein saw Defendant Lieutenant David Groht climb on top of a cement barrier with a bullhorn and instruct people that they "were blocking the street, they were blocking traffic[, and i]f they did not move, they would be arrested." Klein Dep. 21:19–24, ECF No. 140-2; Def. 56.1 ¶¶ 51–52. Klein heard at least four of the dispersal orders. Def. 56.1 ¶ 55. Groht moved from the cement block to the street and continued giving orders to leave the street. Id. ¶ 58. Video of the protest depicts Groht giving orders over a bullhorn to leave the intersection while standing a few feet from Klein, who is shown sitting in the street. Id. ¶ 60. Klein was arrested at the intersection sometime after 9 a.m. and charged with disorderly conduct in violation of New York Penal Law §§ 240.20(5) (obstruction of pedestrian or vehicular traffic) and 240.20(6) (failure to obey lawful dispersal order). Def. 56.1 ¶ 74; Pl. Opp. ¶ 148. Tverdokhleb was assigned to process Klein's arrest. Def. 56.1 ¶ 75. She was issued a DAT and later released. Id. ¶ 76. Klein accepted an Adjournment in Contemplation of Dismissal ("ACD") to resolve the charges. Pl. Opp. 56.1 ¶ 151.

Mark Kushneir. Kushneir also participated in the protest. Def. 56.1 ¶ 82. He arrived in the Wall Street area at approximately 6:30 a.m. Id. ¶¶ 83, 84. Kushneir marched toward the Stock Exchange at the front of a group of about 50 to 200 individuals. Id. ¶¶ 90–91. As he marched, Kushneir heard police officers telling people to move. Id. ¶ 94. Kushneir arrived at the intersection of Broadway and Exchange Place, id. ¶ 95, and stood side by side with others holding cardboard signs, id. ¶ 96. Defendant Chief of Department Joseph Esposito also stood at that intersection. Id. ¶ 97. Esposito gave at least one order for the crowd to disperse. Id. ¶ 101. Video footage of the scene begins with Esposito shouting an order through cupped hands while standing in front of Kushneir, directing individuals on the sidewalk to remove themselves "immediately," and "now," or be arrested for disorderly conduct for blocking the sidewalk. Def. Ex. M, Rivera Video, 1 of 2, No. 332, 0:00–0:08; Def. 56.1 ¶ 106. The parties dispute whether Esposito gave additional orders of dispersal prior to the start of filming. Def. 56.1 ¶ 108. About two seconds after the order shown in the video, Esposito instructed officers to make arrests. Def. Ex. M., Rivera Video, 1 of 2, No. 332, 0:08–0:11; Def. 56.1 ¶ 109. Kushneir was arrested at approximately 9:00 a.m., Def. 56.1 ¶ 110, charged with disorderly conduct in violation of New York Penal Law § 240.20(5) (obstruction of pedestrian or vehicular traffic), id. ¶ 111; Pl. Opp. ¶ 249, and issued a DAT, Def. 56.1 ¶ 111. Defendant Officer Michael Maldonado processed Kushneir's arrest and swore out Kushneir's criminal court complaint. Id. ¶ 112. Kushneir ultimately accepted an ACD to resolve the charges. Id. ¶ 114.

DISCUSSION

I. Legal Standard

Summary judgment is appropriate when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–26, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

The moving party initially bears the burden of informing the Court of the absence of a genuine dispute of material fact by citing particular evidence in the record. Fed. R. Civ. P. 56(c)(1) ; Celotex , 477 U.S. at 323–24, 106 S.Ct. 2548 ; Koch v. Town of Brattleboro , 287 F.3d 162, 165 (2d Cir. 2002). If the nonmoving party has the ultimate burden of proof on specific issues at trial, the movant may also satisfy its own summary-judgment burden by demonstrating that the adverse party cannot produce admissible evidence to support an issue of fact. Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ; PepsiCo, Inc. v. Coca-Cola Co. , 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine dispute of material fact. Beard v. Banks , 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) ; PepsiCo , 315 F.3d at 105. In deciding the motion, the Court views the record in the light most favorable to the nonmoving party. Koch , 287 F.3d at 165.

II. Analysis

A. Fourth Amendment False Arrest

Kushneir alone asserts a false arrest claim. "A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, ... is substantially the same as a claim for false arrest under New York law." Weyant v. Okst , 101 F.3d 845, 852 (2d Cir. 1996) (internal citations omitted). "Under New York law, a plaintiff claiming false arrest must show, inter alia , that the defendant intentionally confined him without his consent and without justification." Id. "The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest." Id. (internal quotation marks and citation omitted). "In general, probable cause to arrest exists when...