Wagner v. City of N.Y.

• Decision Date: 28 September 2015
• Docket Number: 14-CV-2521 (VEC)
• Parties: LAWRENCE WAGNER and HAKIM ABDURRAHEEM, Plaintiffs, v. CITY OF NEW YORK, individually and in his official capacity as Commissioner of the New York City Police Department, RAYMOND W. KELLY; individually and in her official capacity as Commissioner of the New York City Department of Correction, DORA B. SCHRIRO; and, individually and in their official capacities as New York City police officers, JEROME FOY (Shield No. 8820) and "JOHN DOE," Defendants.
• Court: U.S. District Court — Southern District of New York

LAWRENCE WAGNER and HAKIM ABDURRAHEEM, Plaintiffs, v. CITY OF NEW YORK, individually and in his official capacity

as Commissioner of the New York City Police Department,

RAYMOND W. KELLY; individually and in her official capacity

as Commissioner of the New York City Department of Correction,

DORA B. SCHRIRO; and, individually and in their official capacities

as New York City police officers,

JEROME FOY (Shield No. 8820) and "JOHN DOE," Defendants.

14-CV-2521 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 28, 2015

OPINION & ORDER

VALERIE CAPRONI, United States District Judge:

This case arises from the arrests of Lawrence Wagner and Hakim Abdurraheem, two disabled military veterans who are licensed New York City street vendors, by the New York City Police Department ("NYPD"). Plaintiffs bring claims under 42 U.S.C. § 1983 ("Section 1983"), the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 2-101, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, against the City of New York (the "City"), the arresting officer, Jerome Foy ("Foy"), former NYPD Commissioner Raymond Kelly ("Kelly") and former New York City Department of Correction Commissioner Dora Schriro ("Schriro").

Plaintiffs have moved for partial summary judgment on their false arrest claims brought pursuant to Section 1983. Defendants have cross-moved for summary judgment on all of Plaintiffs' claims. For the reasons set forth below, Plaintiffs' Partial Motion for SummaryJudgment is DENIED, and Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Plaintiff Wagner is a disabled military veteran who uses a wheelchair to conduct his daily activities. Basinski Aff. Ex. A, Wagner Aff. ¶¶ 2, 4. Plaintiff Abdurraheem is a disabled military veteran who walks with the assistance of a cane. Basinski Aff. Ex. B, Abdurraheem Aff. ¶¶ 2, 3. On June 18, 2012, Plaintiffs were working as licensed street vendors at separate tables in the vicinity of Battery Park in Manhattan selling various clothing items, including several bearing the "I Love N.Y." logo. Wagner Aff. ¶¶ 13-14; Abdurraheem Aff. ¶¶ 6, 9; Basinski Aff. Ex. G, Hearing Tr. 26:23-27:9. Plaintiffs were working for different merchants who supplied them with merchandise, including the "I Love N.Y" t-shirts at issue. Wagner Aff. ¶ 7; Abdurraheem Aff. ¶¶ 6, 8.

At some point between 2:00 p.m. and 3:00 p.m., Officer Foy, who was then a member of the NYPD Manhattan South Peddler Task Force, approached Abdurraheem's table, examined the "I Love N.Y." t-shirts he was selling, and arrested Abdurraheem for Trademark Counterfeiting in the Third Degree in violation of N.Y. Penal Law § 165.71. Schuman Decl. Ex. C, Foy Dep. 15:8-14, 39:23-40:5, 65:15-66:19. Shortly thereafter, Foy approached Wagner's table, examined the "I Love N.Y." t-shirts he was selling, and arrested Wagner for the same crime. Id. 46:9-51:2, 54:6-11. At the time of their arrests, both Plaintiffs were selling the "I Love N.Y." t-shirts at issue for approximately $5.00. Basinski Aff. Ex. E, Wagner Dep. 54:4-6; Basinski Aff. Ex. F, Abdurraheem Dep. 163:10-14.

Officer Foy made the decision to arrest Plaintiffs after concluding that some of the "I Love N.Y." t-shirts that they were selling were counterfeit. He based his conclusion on his observations that: (1) the shirts lacked certain hologram-like "hang tags," (2) the neck labelslacked identifying information for an authorized licensee, and (3) the logos on the t-shirts were heat-pressed rather than screen-printed. Foy Dep. 49:16-51:2. Foy did not ask or determine whether Plaintiffs knew that the t-shirts they were selling were counterfeit. Id. 53:15-54:2, 68:17-69:2. Instead, Foy believed that the mere fact that Plaintiffs were selling counterfeit items was sufficient to establish probable cause for their arrests. Id. 106:18-107:9; see also id. 53:21-54:2.

Following their arrests, both Plaintiffs were driven in a police van to the precinct, where they were detained for approximately five hours. Wagner Dep. 66:17-23, 85:10-22; Defs.' 56.1 Stmt. ¶ 54. Wagner alleges that Foy refused to transport Wagner's wheelchair to the police station, which Defendants dispute.¹ Wagner Dep. 66:13-67:7, 77:2-77:25. As a result, Wagner was forced to walk a short distance and then to alternate standing and sitting in a crowded cell, which caused him back and leg pain. Id. 80:3-80:16, 85:23-86:16. Abdurraheem testified that when he was arrested, Foy did not allow him to take his cane, forcing him to walk to the police van and the precinct unassisted. Abdurraheem Dep. 178:9-179:13. Moreover, because he did not have his cane, when he was released from custody he had to "hop" to and from the subway, all of which exacerbated his knee condition and caused him pain. Id. 181:24-183:10.

On July 25, 2012, Wagner appeared at the Criminal Court of the City of New York and accepted an adjournment in contemplation of dismissal pursuant to N.Y. CPLR § 170.55 and on January 24, 2013, the criminal case against him for violating N.Y. Penal Law§ 165.71 was dismissed. Wagner Dep. 90:15-20; Basinski Aff. Ex. I, Certificate of Disposition.

Abdurraheem, on the other hand, pled not guilty and moved to suppress the confiscated t-shirts. Hearing Tr. 39:6-8. At the suppression hearing, Abdurraheem argued that Foy did not have a founded suspicion to examine the t-shirts or probable cause to seize them. Id. 39:10-41:11. The state court found that a warrant was not required (because the goods were contraband in plain view) and denied Abdurraheem's motion to suppress. Id. 43:4-25.² After a bench trial, Abdurraheem was found not guilty of violating N.Y. Penal Law § 165.71 based on the judge's finding that the government had failed to prove that Abdurraheem acted with the requisite level of intent. Basinski Aff. Ex. H, Trial Tr. 56:21-57:5.

DISCUSSION

I. The Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show 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." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact, and the Court must "resolve all ambiguities, and draw all inferences, against the moving party." Sista v. CDC Ixis N. America, Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987)).

The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts," and "may not rely on conclusory allegations orunsubstantiated speculation." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (citations and internal quotation marks omitted). Rather, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Sista, 445 F.3d at 169 (citation omitted). "[I]f the evidence is such that a reasonable jury could return a verdict for the nonmoving party," a motion for summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

II. Neither Party is Entitled to Summary Judgment On Plaintiffs' False Arrest Claims Pursuant to Section 1983

Both Plaintiffs and Defendants have moved for summary judgment on Plaintiffs' false arrest claims. Plaintiffs argue that the undisputed facts demonstrate that there was no probable cause for their arrest. Defendants argue the opposite. As is often the case when opposing parties cross move for summary judgment on the same issue, there are disputed facts that preclude the granting of summary judgment in favor of either side.

A claim brought pursuant to Section 1983 for false arrest rests on the Fourth Amendment right of an individual to be free from unreasonable seizures. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citation omitted). "[P]robable cause to arrest constitutes justification and is a complete defense to" such a claim. Id. at 852 (citation and internal quotations omitted). Probable cause exists when an officer 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." Provost v. City of Newburgh, 262 F.3d 146, 156-57 (2d Cir. 2001) (citing Weyant v. Okst, 101 F.3d at 852). "An arresting officer need not have concrete proof of each element of a crime to establish probable cause for an arrest," Brewton v. City of New York, 550 F. Supp. 2d 355, 365 (E.D.N.Y. 2008), but where a specific level of intent is an element of the crime, an arresting officer must have "atleast some evidence" of the required intent to establish probable cause. Id. (citing Rodis v. City and County of San Francisco, 499 F.3d 1094, 1100 (9th Cir. 2007)); see also Provost, 262 F.3d at 157-58 (probable cause as to the intent element of disorderly conduct charge is necessary for probable cause to arrest).

A person is guilty of Trademark Counterfeiting in the Third Degree when:

...with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale . . . or distribution of goods, he or she . . . sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods.

N.Y. Penal Law § 165.71 (emphasis added). The New York State Court of Appeals has stated that, with regard to trademark counterfeiting, the "intent" requirement presupposes knowledge that the goods are counterfeit. See People v. Levy, 15 N.Y.3d 510, 517 (2010) ("[I]t would be impossible to intend to evade a lawful restriction on the...