Smith v. DeGirolamo, 17-cv-5532 (KAM)(ST)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtKIYO A. MATSUMOTO, United States District Judge
Decision Date25 September 2020
Docket Number17-cv-5532 (KAM)(ST)

ALFRED SMITH, Plaintiff,
06632,' SGT. "JANE DOE," AND THE CITY OF NEW YORK; Defendants.

17-cv-5532 (KAM)(ST)


September 25, 2020


KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Alfred Smith ("plaintiff") brings this action against the City of New York ("City"), former New York City Police Department ("NYPD") Officer Joseph DeGirolamo, Shield No. 06632, and Sergeant "Jane Doe" (collectively, "defendants"), alleging civil rights violations arising from plaintiff's February 10, 2016 arrest for possession of a forged instrument in the second degree under New York law. (ECF No. 1, Compl.) Plaintiff asserts claims under 42 U.S.C. § 1983 for false arrest and malicious prosecution, and under New York state law for malicious prosecution and respondeat superior. Presently before the court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendants' motion is granted and plaintiff's case is dismissed in its entirety.

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The following material facts are drawn from the parties' submissions on the instant motion, including depositions, declarations, exhibits, and the parties' statements pursuant to Local Civil Rule 56.1.

I. Undisputed Material Facts

At approximately 3 p.m., on February 10, 2016, Plaintiff was driving a vehicle in Jamaica, Queens when he was pulled over by defendant, NYPD Officer Joseph DeGirolamo. (ECF No. 43, Defendants' Statement of Material Facts Pursuant to Local Civil 56.1 ("Defs.' SOF") ¶¶ 3-4; ECF No. 41-6, Criminal Court Complaint, People v. Smith, Docket Number 2016QN006321 ("Crim. Compl.") 1.)1 At the time of the stop, there were two passengers in plaintiff's vehicle, including Ramel Solomon, who was sitting in the front passenger seat. (Defs.' SOF ¶ 5.) Upon approaching Plaintiff's vehicle, Officer DeGirolamo asked plaintiff, Mr. Solomon, and the other passenger to exit the vehicle, and all complied. (Id. ¶¶ 6-7.)

After plaintiff exited the vehicle, Officer DeGirolamo searched him. In the course of the search, Officer DeGirolamo recovered a Pennsylvania driver's license from the interior of

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plaintiff's wallet. (Defs.' SOF ¶ 8.) The license displayed Mr. Solomon's image, but not his real name, which he had provided to Officer DeGirolamo moments earlier. (Id. ¶ 9; ECF No. 46-2, Deposition Transcript of Defendant Officer Joseph DeGirolamo, dated April 10, 2019 ("DeGirolamo Tr."), 23:8-14 ("Well, the license had a picture of the front passenger on it, and then the front passenger told me his name was Solomon which was not the name on the license.").) Mr. Solomon admitted the license was forged, that it belonged to him, and that he purchased it for $20 in order to gain entry into nightclubs. (Defs.' SOF ¶ 10; ECF No. 45, Plaintiff's Statement of Material Facts Pursuant to Local Rule 56.1 ("Pl.'s SOF") ¶ 38.)

Upon discovering the forged license, Officer DeGirolamo placed Mr. Smith, Mr. Solomon, and the other passenger in handcuffs. (Defs.' SOF ¶ 13.) Plaintiff was arrested for Criminal Possession of a Forged Instrument in the Second Degree under New York Penal Law ("NYPL") § 175.25, and transported to the 103rd Precinct for arrest processing. (Id. ¶¶ 14-15; ECF No. 41-8, NYPD Arrest Report for February 10, 2016 arrest.) The following day, February 11, 2016, plaintiff was arraigned on the possession charge, as well as additional traffic violation under New York Vehicle and Traffic Law ("NYVTL") § 1163(a), for failing to signal a turn. (Defs.' SOF ¶ 16; see also Crim. Compl.) Plaintiff was held on $4,000.00

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bond over $2,000.00 cash bail for two to three days. (Pl.'s SOF ¶ 44.)

On June 28, 2016, the Queens County District Attorney dismissed the criminal charges against plaintiff. (Defs.' SOF ¶ 17.)

II. Facts in Dispute

The parties' accounts diverge in several respects. The most critical divergence concerns the grounds for the initial traffic stop. Officer DeGirolamo testified that he pulled plaintiff over for making a left turn onto Jamaica Avenue without using his directional signal. (DeGirolamo Tr. 11:21-25 ("Q: And why did you -- when did you make a determination to pull the vehicle over? A: After I observed him make the left turn without signaling.").) Plaintiff disputes Officer DeGirolamo's basis for pulling him over. According to plaintiff, his left turn signal had been on for approximately one minute while he waited at a red light to make the left turn onto Jamaica Avenue. (ECF No. 46-1, Deposition Transcript of Plaintiff Alfred Smith, dated January 17, 2019 ("Pl.'s Tr.") 67:24-68:6; see also id. 72:9-16.) After completing the left turn, plaintiff noticed a gray-colored jeep immediately behind him begin flashing its lights as a signal to pull his vehicle over. (Id. 67:24-68:6.)

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III. The Parties' Contentions

On September 20, 2017, plaintiff filed the instant action alleging false arrest and malicious prosecution under 42 U.S.C. § 1983, arising from the events surrounding plaintiff's February 10, 2016 arrest. (Compl. ¶¶ 42-43, 47-49, 51, 55-56.) Following the close of discovery on April 19, 2019 (see ECF No. 34), defendants sought leave to move for summary judgment. (See ECF No. 35.) The defendants' motion was fully-briefed on September 30, 2019. (ECF Nos. 39-41.)

In the main, defendants contend plaintiff's claims should be summarily dismissed because Officer DeGirolamo had probable cause to arrest plaintiff for Possession of a Forged Instrument in the Second Degree, and also under NYVTL § 509(6), due to the forged driver's license found in plaintiff's wallet. (ECF No. 40, Defendants' Memorandum of Law in Support of Summary Judgment ("Mot.") 4-6.) Defendants assert plaintiff's arrest was therefore privileged, vitiating his false arrest claim. (Id. 7.) Likewise, defendants argue the existence of probable cause is fatal to plaintiff's malicious prosecution claim under federal law. (Id. 11-12.) Defendants further argue that plaintiff's malicious prosecution claim fails because plaintiff cannot demonstrate that his "interest of justice" dismissal was a favorable termination, or that the State's prosecution was motived by actual malice. (Id. 8-11, 12-13.) At a minimum,

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defendants maintain there was arguable probable cause for Officer DeGirolamo's arrest of plaintiff, thus entitling defendants to qualified immunity from liability under § 1983. (Id. 16-18.) Lastly, defendants urge the court not to exercise supplemental jurisdiction over plaintiff's state law malicious prosecution claim, and to grant summary judgment on plaintiff's respondeat superior claim, given the absence of an independent, viable tort. (Id. 19-21.)

Plaintiff's principal contention in opposition is that Officer DeGirolamo lacked probable cause for arrest. Plaintiff insists "none of his actions at the time that he was stopped by Officer DeGirolamo . . . would indicate in any manner that [plaintiff] knew the document was forged and, even more importantly, that he exhibited any interest to defraud, deceive or injure anyone through use of a forged instrument." (ECF No. 42, Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Opp.") 2.) In addition, plaintiff argues there is a factual issue concerning Officer DeGirolamo's basis for stopping plaintiff's vehicle for failure to utilize his turn signal. (Id. 6-7.) Plaintiff has consistently maintained that he signaled when he turned onto Jamaica Avenue, which contradicts Officer DeGirolamo's testimony, and according to plaintiff, renders summary judgment inappropriate.

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Turning to malicious prosecution, plaintiff concedes he cannot establish a claim under § 1983 because the State's case did not result in a favorable termination, as defined by the Second Circuit in Lanning v. City of Glans Falls, 908 F.3d 19 (2d Cir. 2018). (Opp. 11-12.) Plaintiff does not make the same concession regarding his state law malicious prosecution claim. He explains in his opposition brief that common law malicious prosecution approaches the favorable termination element differently than its federal counterpart, and that defendants have not shown the absence of triable issues regarding the other elements of malicious prosecution. (Id. 12-14.) Lastly, plaintiff's opposition is silent regarding defendants' motion as it pertains to plaintiff's respondent superior claim.


Summary judgment shall be granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is 'material' for these purposes when it 'might affect the outcome of the suit under the governing law.'" Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), cert denied, 565 U.S. 1260 (2012)). No genuine issue of material fact exists "unless there is

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sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment allows the court to dispose of meritless claims before becoming entrenched in a frivolous and costly trial. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).

When bringing a motion for summary judgment, the movant carries the burden of demonstrating the absence of any disputed issues of material fact. Rojas, 660 F.3d at 104. In deciding a summary judgment motion, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), cert. denied, 534 U.S. 1065 (2001)). A...

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