Thomsen v. Kefalas

Decision Date26 March 2018
Docket Number15-CV-2668 (BCM)
CourtU.S. District Court — Southern District of New York

BARBARA MOSES, United States Magistrate Judge.

Now before the Court is a motion for summary judgment (Dkt. No. 146) filed by the sole remaining defendant in this action, Maria Angeliki Kefalas. On June 11, 2014, Kefalas called New York's Statewide Central Register (SCR) of Child Abuse and Maltreatment and accused plaintiff Malthe Thomsen of sexually abusing young children at the preschool where he worked as an intern, resulting in his arrest, arraignment, and pretrial incarceration at Rikers Island. After the criminal charges against Thomsen were dropped, he filed this civil suit, including claims for libel, slander, and related torts against Kefalas. In her motion papers, Kefalas argues that as a "mandated reporter" under N.Y. Soc. Serv. Law § 413 she is immune, under § 419 of the same statute, from civil liability resulting from her good-faith report of suspected child abuse. For the reasons that follow, the motion is DENIED.


Plaintiff Thomsen was pursuing a teaching degree when he obtained an internship at the International Preschool (IPS) in Manhattan, where Kefalas worked as an assistant teacher. On May 30, 2014, Kefalas sent an email to an IPS administrator reporting that she had observed plaintiff engage in behavior "which I believe borders inappropriate touching of children." IPS conducted an investigation, during which no other witness corroborated defendant's charges. On June 5, 2014 - after Kefalas stated that she had evidence of Thomsen's misconduct, but refused to disclose it - IPS terminated her employment. One week later, defendant contacted the SCR, which referred the matter to the New York Police Department (NYPD). Kefalas told the NYPD that Thomsen had repeatedly engaged in inappropriate touching of multiple preschoolers at IPS.

Early on June 27, 2014, NYPD officers woke Thomsen at his apartment. After approximately four hours of unrecorded questioning by Detective Nela Gomez (during which Thomsen waived his Miranda rights and executed a written statement), plaintiff acquiesced to a second interview, recorded on videotape, by Assistant District Attorney Rachel Ferrari. The parties dispute whether any of plaintiff's statements can properly be characterized as a confession. It is undisputed, however, that Thomsen was arrested that day, and charged with 15 counts of sexual abuse in the first degree. The case was the subject of extensive media coverage both here and in Europe, and approximately 40 families withdrew their children from IPS.

Thomsen was never indicted by a grand jury. Instead, on November 13, 2014, all charges were dismissed on the motion of the People. This action followed.

A. Procedural History

Thomsen filed his initial Complaint on April 6, 2015, naming the City of New York, Police Commissioner William Bratton, Det. Gomez, ADA Ferrari, ADA Nicole Blumberg, and Kefalas as defendants. See Compl. (Dkt. No. 1) ¶¶ 1-23. As against the government defendants, plaintiff alleged violations of his rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, malicious prosecution, and intentional infliction of emotional distress. As against Kefalas, he alleged state law claims for libel, slander, injurious falsehood, negligent infliction of emotional distress, negligence, and prima facie tort. Id. ¶¶ 146-211. The case was assigned to United States District Judge Denise Cote.

All defendants moved to dismiss the Complaint. (Dkt. Nos. 21, 46, 49.) On July 10, 2015, at an initial conference, Judge Cote granted Thomsen an opportunity to amend his pleading and denied the pending motions to dismiss as moot. (Dkt. No. 45.) On July 31, 2015, Thomsen filed an Amended Complaint (Dkt. No. 58), which dropped Commissioner Bratton as a defendant and omitted several of the constitutional claims originally pled. On September 3, 2015, defendants renewed their motions to dismiss as to all remainining claims. (Dkt. Nos. 65, 69, 73.)

In an Opinion and Order dated February 11, 2016 (Dkt. No. 93), Judge Cote dismissed the case against against ADAs Ferrari and Blumberg, ruling that they were absolutely immune from Thomsen's federal and state law claims. Thomsen v. City of New York, 2016 WL 590235, at *4 (S.D.N.Y. Feb. 11, 2016), appeal withdrawn (May 23, 2016), reconsideration denied, 2016 WL 4507376 (S.D.N.Y. Aug. 26, 2016). She also dismissed all claims against the City and Det. Gomez (collectively the City Defendants) except for plaintiff's claim alleging that any inculpatory statements he made were coerced in violation of his Fifth Amendment right to be free from compulsory self-incrimination. Id. at *5-11. The District Judge declined to dismiss the claims against Kefalas, finding that Thomsen had "pled facts that, if true, rebut the statutory presumption that Kefalas made her reports to IPS and the NYPD in good faith." Id. at *12. The court specifically noted Thomsen's allegations that Kefalas had made other false reports against IPS teachers, including others in the same classroom; that she stated, "I am against this guy," meaning Thomsen; and that she was fired by IPS after she refused to show administrators the video evidence that she claimed to have showing Thomsen abusing students, arguably providing a motive for her to make a false report "in retaliation for the termination of her employment." Id.

On February 25, 2016, the City Defendants moved for reconsideration as to plaintiff's claim against the City for violation of his Fifth Amendment rights (Dkt. No. 97), and on March16, 2016, in an oral ruling during a scheduling conference, Judge Cote granted that motion (see Dkt. No. 106), leaving plaintiff with his Fifth Amendment claim against Det. Gomez and his state law claims against Kefalas. On November 23, 2016, after a settlement conference, plaintiff voluntarily dismissed his remaining claim against Gomez, leaving Kefalas as the sole defendant. (Dkt. No. 138.) On November 30, 2016, Thomsen and Kefalas consented to proceed before the assigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). (Dkt. No. 142.)1

B. The Summary Judgment Motion

On January 12, 2017, Kefalas filed her motion for summary judgment, supported by a memorandum of law (Dkt. No. 149), a Statement of Material Facts pursuant to Local Civil Rule 56.1(a) (Dkt. No. 149-1),2 and two declarations: one signed by attorney David Wolowitz (Dkt. No. 147), offering his expert opinion as to the proper interpretation and application of the relevant provisions of the Social Services Law; and one signed by attorney Russell Porter (Dkt. No. 148), defendant's counsel of record, annexing what appears to be most if not all of the discovery record amassed in this action, including the plaintiff's written and videotaped statements to the police, the complete transcripts of five depositions, the responses of plaintiff,defendant, and Det. Gomez to the written discovery requests served upon them, and the documents they produced. (Dkt. Nos. 148-3 through 148-12.)3

On February 3, 2017, in opposition to the motion, plaintiff submitted a memorandum of law (Dkt. No. 150) and a copy of a declaration that Kefalas had previously filed in connection with an earlier motion. (Dkt. No. 150-1.) Notwithstanding the requirements of Local Civil Rule 56.1(b), plaintiff did not respond to defendant's Statement of Material Facts. On February 10, 2017, defendant filed a reply memorandum (Dkt. No. 151) to which she annexed, without any authentication, several additional evidentiary documents, including a portion of her cellphone records for June 11, 2014 (Dkt. No. 151-1), a letter from IPS to Kefalas offering her a "floater" position for the 2014-15 school year (Dkt. No. 151-2); and a copy of what appear to be text messages between defendant and a friend on May 6, 2014. (Dkt. No. 151-3.)

On February 15, 2017, plaintiff sought leave to file a late Local Civil Rule 56.1(b) Statement, which I granted. (Dkt. No. 153.) Plaintiff filed that statement on February 17, 2017 (Dkt. No. 155), together with the declaration of Kaitlin F. Nares, one of his attorneys (Dkt. No. 154), annexing, among other things, CDs containing various audio and video recordings that Kefalas made at IPS. (Dkt. Nos. 154-4 and 154-5.) On February 22, 2017, defendant filed a Reply Statement of Material Facts addressing the portions of plaintiff's statement "with which Ms. Kefalas takes issue." (Dkt. No. 157.)

On February 24, 2017, I heard oral argument on the motion, during which I directed the parties to submit additional briefing regarding two evidentiary questions: (i) the admissibility of the Wolowitz Declaration; and (ii) the relevance, for summary judgment purposes, of evidencepost-dating Kefalas's report to the SCR. See Tr. of Feb. 24, 2017 Hr'g (Dkt. No. 164) at 37:8-38:18. Those briefs were filed on March 10, 24, and 31, 2017. (Dkt. Nos. 159, 160, 161.) With one exception not relevant here, the parties did not otherwise object to the admissibility of any of the evidentiary materials submitted.

C. Facts

The relevant facts are taken from the parties' Local Civil Rule 56.1 Statements and from the underlying evidentiary materials that they submitted, and are undisputed unless otherwise noted.4 Where the evidence is susceptible of more than one interpretation, I have, as required, "resolv[ed] all ambiguities and draw[n] all factual inferences in favor of the party against whom summary judgment is sought." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

1. Plaintiff

Thomsen was a 22-year-old Danish university student, pursuing a teaching degree, when he began a semester-long internship at IPS, a private preschool in New York City, in February 2014. Def. 56.l Stmt. ¶¶ 8, 40; Kane Dep....

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