MEMORANDUM-DECISION AND ORDER

BRENDA K. SANNES, District Judge.

I. INTRODUCTION

Plaintiff Edward C. Sherman, proceeding pro se, brings this action against Defendants New York State Troopers Matthew R. Holecek and John Cornell under 42 U.S.C. § 1983 for alleged constitutional violations resulting from his arrests on two occasions in June 2013. (See generally Dkt. No. 1). The Complaint includes three claims: (1) false arrest; (2) malicious prosecution; and (3) denial of right to a fair trial (procedural due process). (Id. at 5-7). Plaintiff seeks $2 million in compensatory and punitive damages. Presently before the Court is Defendants' motion to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 23). Plaintiff did not file an opposition. For the reasons set forth below, the motion is granted in part and denied in part.

II. FACTS1

According to the Complaint, the events in this case spring from Plaintiff's attempts to retrieve his belongings from his brother Michael B. Sherman's property, as his brother "was repeatedly refusing to relinquish [the belongings] for whatever reason." (Dkt. No. 1, at 5). Plaintiff sought Defendants' assistance in the matter "several times" before, but they "refused to assist him." (Id. at 5-6). On June 14, 2013,2 Defendant Cornell arrested Plaintiff for trespass and petit larceny after Plaintiff tried to recover his belongings from his brother's property. (Dkt. No. 1, at 4-5). Several days later, on June 20, 2013, Defendant Holecek arrested Plaintiff for trespass, petit larceny, and criminal mischief in the fourth degree "based on another fabricated complaint sworn to by plaintiff's distraught brother." (Id.). At the time of the arrests, Defendants knew Plaintiff's brother was "refusing to relinquish property that belonged legitimately to Plaintiff" (Id. at 6). Plaintiff was detained for nine days until bail was posted, and was "under continued prosecution" until the Walton Town Court dismissed all charges with prejudice on November 7, 2013. (Id. at 4; Dkt. No. 1-1, at 1-2).

Plaintiff claims that the charges against him lacked "any factual evidence," that Defendants relied on his brother's "depositions, which were fabricated," and that Defendants never "verified said info." (Dkt. No. 1, at 4). Furthermore, Plaintiff asserts that Defendants "conspired with Michael B. Sherman to fabricate allegations, including incorporating said allegations into the related accusatory instruments, which resulted in commencing two separate criminal actions" against Plaintiff (Id. at 5). The Complaint adds that Defendants "conveniently left out a multitude of exculpatory evidence and/or circumstances that they knew long before these dates charged, that [Plaintiff] never intended to commit any crimes, against his brother or his brother's property, and that [Plaintiff] merely wished to recover his own property from his brother's property." (Id.). According to Plaintiff, these circumstances indicate that Defendants acted with malice. (Id. at 5-6).

Plaintiff "strongly believes that [Defendants] chose [to] initiate his arrest and commencement of criminal proceedings, solely as a result of [Plaintiff] making derogatory comments at them for repeatedly refusing to assist him in retrieving his own personal property from his brother Michael Sherman." (Id. at 7). Plaintiff "deems their actions retaliatory in nature." (Id.). Further, the Complaint states that "the police agencies have an unwritten policy of `DO NOT RESPOND' to any of [Plaintiff's] requests for assistance or complaints, which has been apparent & provable fact for many years prior," as "[t]hese parties have repeatedly harassed and/or ignored [Plaintiff], ever since his wife committed suicide and caused [Plaintiff] to suffer mental complications thereafter." (Id.).

III. STANDARD OF REVIEW

To survive a motion to dismiss, "a complaint must provide `enough facts to state a claim to relief that is plausible on its face.' Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twonibly, 550 U.S. 544, 570 (2007)). "Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations `must be enough to raise a right to relief above the speculative level.'" Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist. LEXIS 155140, at *5 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). The Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). When deciding a motion to dismiss, the Court's review is ordinarily limited to "the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A complaint that has been filed pro se "must be construed liberally with `special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). "Nonetheless, a pro se complaint must state a plausible claim for relief." Id.

IV. DISCUSSION

Before analyzing whether Plaintiff has stated any claim upon which relief can be granted, the Court must first address Defendants' request to dismiss the Complaint to the extent that Plaintiff sues them in their official capacities. (See Dkt. No. 23-1, at 5-6). Sovereign immunity bars a suit in federal court against a state, absent the state's consent to suit or congressional abrogation of immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996); Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir.1997). "New York has not waived its immunity, nor has Congress abrogated it." Jackson v. Ramirez, 691 F. App'x 45, 46 (2d Cir. 2017) (citation omitted). "A claim [for damages] against state officials in their official capacities is likewise barred." Id. Given that Plaintiff only seeks damages, the Court must dismiss the Complaint to the extent that Plaintiff sues Defendants in their official capacities. The Court will now analyze whether Plaintiff has stated any claims against Defendants in their individual capacities.

A. False Arrest Claim

Defendants move to dismiss the false arrest claim on the ground that it is time-barred. (Dkt. No. 23-1, at 7-8). The limitations period for claims brought under 42 U.S.C. § 1983 is "borrowed from the statute of limitations for the analogous claim under the law of the state where the cause of action accrued." Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017); accord Wallace v. Kato, 549 U.S. 384, 387 (2007) (explaining that federal law determines the limitations period for § 1983 claims by reference to the limitations period for personal injury torts under "the law of the State in which the cause of action arose"). In New York, the limitations period for personal injury claims is three years. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015). Therefore, Plaintiff's § 1983 claims are subject to a three-year statute of limitations.

A § 1983 claim's accrual date, however, is "a question of federal law that is not resolved by reference to state law." Wallace, 549 U.S. at 388. In Wallace, the Supreme Court held that the statute of limitations for a § 1983 false arrest claim begins to run when the arrestee's alleged false imprisonment ends, that is, "once the victim becomes held pursuant to [legal] process— when, for example, he is bound over by a magistrate or arraigned on charges." Id. at 389 (emphasis omitted). Whereas a claim for "malicious prosecution relates to deprivations of liberty pursuant to legal process—meaning either post-arraignment or as a result of arrest pursuant to warrant," a claim for false arrest covers "[d]eprivations of liberty from the moment of warrantless arrest until arraignment." Coleman v. City of New York, 688 F. App'x 56, 58 n.1 (2d Cir. 2017).

"Statute of limitations defenses are affirmative defenses, which normally cannot be decided on a motion to dismiss." Ntsebeza v. Daimler (In re S. African Apartheid Litig.), 617 F.Supp.2d 228, 287 (S.D.N.Y. 2009). Dismissal may be appropriate, however, "where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.' Id. (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir. 1994)).

The Complaint does not specify whether Defendants arrested Plaintiff without a warrant, nor does it indicate the date of arraignment. But as Defendants point out, (Dkt. No. 23-1, at 8), New York law requires that, following arrest, an arrestee be brought "without unnecessary delay" before a local criminal court, N.Y. Crim. Proc. Law § 120.90(1) (arrest pursuant to warrant); id. § 140.20(1) (arrest without warrant). "New York courts have held that an arrest-to-arraignment delay in excess of 24 hours is presumptively unnecessary within the meaning of [N.Y. Crim. Proc. Law § 140.20]." Walker v. Village of Freeport, No. 15-cv-4646, 2016 WL 4133137, at *11, 2016 U.S. Dist. LEXIS 77582, at *33 (E.D.N.Y. June 13, 2016) (alteration in original) (internal quotation marks omitted), report and recommendation adopted, 2016 WL 4132252, 2016 U.S. Dist. LEXIS 101869 (E.D.N.Y. Aug. 2, 2016). Many courts, therefore, presume that the date of accrual occurs within several days of the arrest. See, e.g., id.; Forbes v. City of New York, No. 15-cv-3458, 2016 WL 6269602, at *3, 2016 U.S. Dist. LEXIS 148354, at * 11 (S.D.N.Y. Oct. 26, 2016) (assuming that less than 78 days "elapsed between Plaintiff's arrest and his arraignment"); Brown v. Rowe, No. 12-cv-691, 2012 WL 5449588, at *3, 2012 U.S. Dist. LEXIS 159379, at *13 (N.D.N.Y. Nov. 7, 2012) (presuming that the plaintiff was arraigned at the time that he was "arrested and jailed"); Stewart v. City of New York, No. 06-cv-15490, 2008 WL 1699797, at *6 n.4, 2008 U.S. Dist. LEXIS 30632, at *19 n.4 (S.D.N.Y. Apr. 9, 2008) (noting that the plaintiff "presumably was arraigned shortly" after his arrest). Likewise, here, the Court presumes that Plaintiff was arraigned shortly after his second arrest on June 20, 2013. Accordingly, his false arrest claim accrued in late June 2013 and expired in late June 2016.3 Since Plaintiff did not bring this action until November 2016—more than four months after the limitations period expired—his false arrest claim is untimely and must be dismissed.4

B. Malicious Prosecution Claim

The elements of malicious prosecution under § 1983 and New York law are the same. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). A malicious prosecution claim requires a Plaintiff to allege: "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). Defendants argue that Plaintiff failed to plead all the requisite elements of a malicious prosecution claim, specifically the third element (probable cause) and the fourth element (malice). (Dkt. No. 23-1, at 14-15).

Probable cause to commence a criminal proceeding exists when the prosecuting officer has "knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir.1994) (quoting Pandolfo v. U.A. Cable Sys. of Watertown, 171 A.D.2d 1013, 1013 (4th Dep't 1991)). The existence of probable cause is measured as of the time the prosecution was initiated based on the facts that the prosecuting officer knew or reasonably believed to be true at that time. See Ahern v. City of Syracuse, 411 F.Supp.2d 132, 151 (N.D.N.Y. 2006).

Defendants contend that the Complaint's allegations in fact establish probable cause because they "establish that . . . Plaintiff entered his brother's property without permission, for the purpose of removing certain items from that property." (Dkt. No. 23-1, at 16). Nowhere in the Complaint, however, does Plaintiff assert that he entered his brother's property "without permission." Although the Complaint states that Plaintiff's brother refused to relinquish Plaintiff's belongings, the Court cannot infer from that allegation that Plaintiff lacked permission to enter—and therefore trespassed on—his brother's property. Nor are there any allegations that Plaintiff damaged his brother's property and thereby committed criminal mischief in the fourth degree under section 145.00 of the New York Penal Law. (Id.).

It is the Plaintiff's burden to plausibly allege that there was no probable cause. The Complaint does not allege facts from which it could plausibly be inferred that there was no probable cause to arrest Plaintiff for trespass or for criminal mischief in the fourth degree, as the Complaint contains no allegations regarding how the Plaintiff entered his brother's property or whether Plaintiff damaged any property. But with respect to petit larceny, the Complaint does allege that the Plaintiff was "merely retrieving his own property." (Dkt. No. 1 at 6). At this stage, the Court must draw all reasonable inferences in favor of Plaintiff, not against him. Thus, the Complaint sufficiently alleges lack of probable cause but only for the petit larceny arrests.

Defendants also contend that the Complaint does not plausibly plead the element of malice, which requires allegations that the defendant "commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served." Laboy v. County of Ontario, 668 F. App'x 391, 394 (2d Cir. 2016) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996)). In the Complaint, Plaintiff states that Defendants "knew" that his brother was "refusing to relinquish property that belonged legitimately" to Plaintiff, that Plaintiff asked them for assistance retrieving it, and that he "strongly believes" that Defendants arrested Plaintiff and commenced criminal proceedings against him "solely as a result of [Plaintiff] making derogatory comments at them for repeatedly refusing to assist him in retrieving his own personal property from his brother Michael Sherman."5 (Dkt. No. 1, at 5-7). Plaintiff has, as noted above, adequately alleged a lack of probable cause for the petit larceny arrest. And an inference of malice sufficient to overcome a Rule 12(b)(6) motion can be inferred from a lack of probable cause. See Hilfiger v. Bradlees, Inc., No. 99-cv-4677, 2002 WL 737477, at *11, 2002 U.S. Dist. LEXIS 7191, at *32-33 (S.D.N.Y. Apr. 25, 2002) (finding that sufficient allegations of lack of probable cause allowed an inference of malice so as to overcome a motion to dismiss). Accordingly, the Court denies Defendants' request to dismiss the malicious prosecution claim with respect to the petit larceny charge.

C. Fair Trial Claim

Plaintiff claims that Defendants violated his procedural due process right to a fair trial by using fabricated evidence against him and "omit[ting] evidence that they knew would exculpate" him. (Dkt. No. 1, at 5, 7). As with the false arrest claim, Defendants contend that Plaintiff's fair trial claim should be dismissed as time-barred. In a recent decision, the Second Circuit discussed the accrual rule for § 1983 fair trial claims that are brought by individuals who, like Plaintiff here, allege that government officers used fabricated evidence against them in the course of criminal proceedings. See McDonough, 2018 WL 3672942, at *4-6, 2018 U.S. App. LEXIS 21540, at *9-13. The court held that such claims accrue "(1) when a plaintiff learns of the fabrication and it is used against him, and (2) his liberty has been deprived in some way." Id. at *4 (citation omitted). The court explained that "accrual did not have to await [the criminal defendant's] acquittal" and elaborated as follows:

Id. at *5.6 For the plaintiff in that case, the claim accrued "at the earliest, when he was indicted and arrested and, at the latest, by the end of his first trial, after all of the prosecution's evidence had been presented." Id.

Defendants argue that the fair trial claim in this case accrued at the time of Plaintiff's arrests on June 14 and 20, 2013 because the Complaint's own allegations establish that he learned of the fabricated evidence and its use against him then. (See Dkt. No. 23-1, at 10-11). Further, Defendants note that "Plaintiff does not allege that he learned of the allegedly fabricated or exculpatory evidence as the result of any criminal proceedings or related investigations subsequent to his arrests and incarceration." (Id. at 10). The Court agrees. The Complaint asserts that Defendants incorporated fabricated allegations in the "accusatory instruments" used to charge him and that Defendants "omit[ted] evidence that they knew would exculpate [him] from any guilt of said charges and that should have protected him from being unlawfully and/or falsely arrested." (Dkt. No. 1, at 5, 7).7 Therefore, Plaintiff's own pleading indicates that he learned of the fabricated or omitted exculpatory evidence at the earliest upon his arrest and at the latest upon his arraignment—in other words, his fair trial claim accrued in late June 2013. See Mitchell v. Home, 377 F.Supp.2d 361, 374 (S.D.N.Y. 2005) (dismissing fair trial claim as timebarred because the plaintiff filed her action more than three years after she was arraigned and arrested). Plaintiff commenced this action in November 2016, more than four months after the limitations period on his fair trial claim expired. Accordingly, the Court dismisses the claim as time-barred.8

V. LEAVE TO AMEND

In recognition of Plaintiffs status as a pro se litigant and because Plaintiff may be able to assert cognizable claims with better pleading, the Court grants Plaintiff leave to file an amended complaint within thirty (30) days of the date of this Order. In any amended complaint, Plaintiff must clearly set forth the facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. Any such amended complaint will replace the existing complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Elliott v. City of Hartford, 649 F. App'x 31, 32 (2d Cir. 2016) ("It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect." (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994))). If Plaintiff fails to file an amended complaint within thirty days, this case will be closed.

VI. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendants' motion to dismiss for failure to state a claim (Dkt. No. 23) is GRANTED in part and DENIED in part; and it is further

ORDERED that the false arrest claim (first claim) and the fair trial claim (third claim) asserted in the Complaint (Dkt. No. 1) are DISMISSED without prejudice; and it is further

ORDERED that the malicious prosecution claim (second claim) as to the prosecutions for trespass and criminal mischief is DISMISSED without prejudice; and it is further

ORDERED that the motion to dismiss the malicious prosecution claim (second claim) as to the prosecutions for petit larceny is DENIED; and it is further

ORDERED that Plaintiff may amend the Complaint within THIRTY (30) days of the date of this Order, in accordance with the conclusions stated above; and it is further

ORDERED that the Clerk of Court shall serve a copy of this Memorandum-Decision and Order on Plaintiff in accordance with the Local Rules along with copies of the unpublished decisions cited in this decision.

IT IS SO ORDERED.

Attorneys and Law Firms

Louis S. Ederer, Michael D. Pantalony, Gursky & Ederer, P.C., New York, for Plaintiffs.

Leonard S. Baum, Dean T. Cho, Solomon, Zauderer, Ellenhorn. Frischer & Sharp, New York, for Defendants M & D Sportswear Corp. and Dalia Wallach.

Jay T. Hahn. Goodwin, Proctor & Hoar LLP, New York, for Defendant Bradlees, Inc.

Lawrence M. Sands, New York, for Defendants B & L Enterprises of NY, Inc. and Jack Schwartz.

William A. Rome, Hoffman Pollok & Pickholz LLP, New York, for Defendant Marty Mirkin.

MEMORANDUM & ORDER

KNAPP, Senior District J.

*1 Plaintiffs Tommy Hilfiger Licensing, Inc. ("Tommy Hilfiger"), PRL USA Holdings, Inc. ("Polo"), Nike, Inc. ("Nike"), Adidas-Salomon AG, Adidas International BV, and Adidas America, Inc. (the last three manufacturers hereinafter referred to as "Adidas") brought this action against, among others, Defendants M & D Sportswear Corp. CM & D") and Dalia Wallach ("Wallach") (collectively "Defendants") for trademark counterfeiting, trademark infringement (in violation of both the Lanham Act and the common law), false designation of origin, trademark dilution in violation of the Lanham Act, common law unfair competition, and violations of New York General Business Law §§ 349 and 360-1. The Defendants filed an Answer with counterclaims for malicious prosecution against Plaintiffs Nike, Polo, and Adidas, and the Plaintiffs moved to dismiss these counterclaims. Although the Defendants have since amended and supplemented their original counterclaims by way of an Amended Answer, the Plaintiffs continue to press their motion to dismiss and, in addition, now move to strike various allegations from the Amended Answer.

For the reasons that follow, we deny both the motion to dismiss and the motion to strike.

BACKGROUND

In Tommy Hilfiger Licensing, Inc. v. Bradlees, Inc. (S.D.N.Y. Jan. 11, 2002) 2001 WL 1702151, we set out the factual background and procedural history underlying this litigation in extensive detail. Since we assume familiarity with the facts and procedural history set forth therein. we do not now further elaborate on such facts beyond setting out the convoluted procedural history relevant to the Plaintiffs' motion to dismiss and motion to strike.

On June 28, 1999, Plaintiffs Tommy Hilfiger and Polo initiated this action against Defendants Bradlees, Inc., B & L Enterprises of N.Y., Inc., Summit Merchandising, Ltd., Jack Schwartz, and Mayer Parets. In their Complaint, Tommy Hilfiger and Polo asserted causes of action under the Lanham Act for trademark counterfeiting, trademark infringement, trademark dilution, and false designation of origin. They also asserted causes of action for common law unfair competition, common law trademark infringement, and violations of New York's antidilution and deceptive practices statutes. On July 8, 2000, these Plaintiffs amended their Complaint to include additional Plaintiffs (i.e. Nike and Adidas), additional causes of action, and additional exhibits. On July 24, 2000, Plaintiffs Tommy Hilfiger, Polo, Nike, and Adidas (collectively "Plaintiffs") further amended their Amended Complaint to include claims against additional parties, namely Defendants Marty Mirkin Andrez Shops, Inc., Shahin Ghaderi, Consolidated Stores Corp., M & D, and Wallach. The Plaintiffs' actions against Defendants M & D and Wallach are based on their sale of allegedly counterfeit Nike and Polo socks as well as Nike t-shirts to three retailers, DSW Shoe Warehouse Stores, Ammar's Inc., and Bradlees, Inc.

On August 28, 2000, M & D and Wallach filed their Answer to the Plaintiffs' Second Amended Complaint. In that Answer, the Defendants asserted counterclaims against Plaintiffs Polo, Nike, and Adidas (but not against Plaintiff Tonuny Hilfiger) for malicious prosecution. The allegations underlying these counterclaims stemmed from the initiation of a criminal action against Wallach and a civil forfeiture action against M & D by Bronx District Attorney Robert T. Johnson (the "Bronx D.A."). Specifically, the Defendants alleged that the Trademark Infringement Unit of the New York City Police Department's ("NYPD") Organized Crime Investigation Division had pursued an undercover criminal investigation into whether the Defendants were engaged in the sale of counterfeit apparel. On June 21, 2000, this investigation culminated in a raid on M & D's premises in which a wide variety of allegedly counterfeit apparel was seized. Shortly thereafter, as a result of the investigation and the goods seized in the raid, the Bronx D.A. initiated the criminal proceeding and the civil forfeiture action upon which the counterclaims here are predicated. The Defendants now seek to recover against Plaintiffs Polo, Nike, and Adidas for malicious prosecution on the grounds that these Plaintiffs allegedly instigated and assisted with the criminal investigation, the June 21, 2000 seizure of apparel, and the subsequent criminal prosecution and civil forfeiture action which ensued therefrom.

*2 The Plaintiffs moved to dismiss the counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6). However, before that motion was fully briefed, both the criminal proceeding and the civil forfeiture action were dismissed. As the Defendants concede, the criminal prosecution was dismissed without prejudice on November 15, 2000. On November 16, 2000, the Bronx D.A. also agreed voluntarily to discontinue the civil forfeiture action with prejudice, and that action was dismissed around November 18, 2000.

When they submitted their opposition papers to the Plaintiffs' motion to dismiss, the Defendants discussed such further facts, as well as a number of new allegations relating to events preceding the filing of their Answer, by way of an affidavit from Wallach with exhibits. These allegations had never been raised in their initial Answer. In replying to the Defendants' opposition brief, the Plaintiffs asserted that these additional allegations were an improper basis on which to oppose the motion to dismiss since they fell outside the four comers of the Answer.

While our decision with respect to the Plaintiffs' motion to dismiss was still pending, the Defendants moved for leave to amend their Answer. The Amended Answer they submitted in conjunction with that motion would have both (a) added new counterclaims and additional parties and (b) amended and supplemented the original malicious prosecution counterclaims by incorporating within the Amended Answer the various earlier allegations and exhibits which had been presented by way of Wallach's affidavit in support of the Defendants' opposition to the motion to dismiss. Although we denied them leave to add the new counterclaims and additional parties, we granted the Defendants' request to amend and supplement their original malicious prosecution counterclaims. See Tommy Hilfiger Licensing, Inc., 2001 WL 1702151 at *7.

Since the Amended Answer modified the allegations underlying the very counterclaims which were the subject of the motion to dismiss, we permitted the parties to file supplemental memoranda addressing any new arguments raised as a result of the amendments. See Tommy Hi Eger Licensing, Inc. v. Bradlees, Inc. (S.D.N.Y. Jan. 17, 2002) 2002 WL 64365, *1. As all the parties have now filed their supplemental memoranda, we treat the Plaintiffs' motion to dismiss the original malicious prosecution counterclaims as a fully briefed motion to dismiss the amended counterclaims. In addition, the Plaintiffs, by way of their supplemental brief, now also move to strike various allegations from the Amended Answer. Through the following discussion, we address each of their motions respectively.

DISCUSSION

1. THE MOTION TO DISMISS

The Plaintiffs move to dismiss the Defendants' counterclaims "for failure to state a claim upon which relief can be granted" pursuant to Federal Rule of Civil Procedure 12(b)(6). "On such a motion, the Court is required to accept the material facts alleged in [the] defendants' answer and counterclaims as true and to construe all reasonable inferences in favor of the defendants." Twinlab Corp. v. Signature Media Services, Inc. (S.D.N.Y. Dec. 7, 1999) 1999 WL 1115237, *3. See also Jaghory v. New York State Dept. of Education (2d Cir.1997) 131 F.3d 326, 329. Dismissal of the counterclaims is proper only where it appears beyond doubt that the non-moving parties can prove no set of facts in support of their claims that would entitle them to relief. See Conley v. Gibson (1957) 355 U.S. 41, 45-46. See also Commer v. Keller (S.D.N.Y.1999) 64 F.Supp.2d 266, 269.

*3 In this instance, the Plaintiffs assert that the Defendants have failed to satisfy any of the elements of a malicious prosecution cause of action. In order to state a claim for the tort of malicious prosecution under New York law, a party must show (1) the initiation of a proceeding against that party; (2) the termination of the proceeding in that party's favor: (3) lack of probable cause for commencing the proceeding; and (4) malice as a motivating factor. See Murphy v. Lynn (2d Cir.1997) 118 F.3d 938, 947. With these considerations in mind, we turn to the merits of the Plaintiffs' arguments.

A. Initiation Of Proceedings

The Plaintiffs contend that the Defendants cannot state causes of action against them for malicious prosecution because it was the Bronx D.A. and not they who initiated the criminal proceeding and civil forfeiture action on which the counterclaims are predicated. They argue that they merely reported their suspicions concerning the Defendants' alleged criminal activity to the police.

Had this been the nature of the Defendants' allegations against them, we would be compelled to dismiss the counterclaims. "It is well-settled that one who discloses to a prosecutor all he knows concerning a potential criminal matter is not liable for commencing any ensuing prosecution." Baer v. Sprint Long Distance (S.D.N.Y.1999) 60 F.Supp.2d 209, 212. Hence, where a party merely states what it believes and leaves the decision to prosecute entirely to the uncontrolled discretion of the officer, then that party will not be regarded as having instigated a prosecution. See id.

However, the Defendants do not allege that the Plaintiffs merely informed the Bronx D.A. of potential wrongdoing on their part. Rather, the Defendants assert that Plaintiffs Polo, Nike, and Adidas "instigated" the criminal prosecution and the civil forfeiture action "through their financing and conduct" by helping to select the targets of the undercover investigation, funding that investigation, and examining the Defendants' apparel in a conclusory fashion in order to provide much of the evidence supporting both the June 21, 2000 police raid on M & D's premises as well as the initiation of the criminal prosecution and the civil forfeiture action against them. See Am. Answer ¶¶ 44, 46-51, 53-55, 60, 107-109, 112-114, Ex. B, and Ex. C.

"A defendant can initiate a prosecution by actively providing advice and encouragement to the complaining party." Noga v. City of Schenectady Police Officers (N.D.N.Y.2001) 169 F.Supp.2d 83, 90. See also Mazza v. City of New York (E.D.N.Y. July 13, 1999) 1999 WL 1289623, *6 (holding that a person who does not file a complaint commencing a proceeding nevertheless may be found to have instituted the proceeding for malicious prosecution purposes when the person plays an active role in the initiation and continuation of a proceeding against the party claiming malicious prosecution). Indeed, "[w]here a party is responsible for providing false information or manufactured evidence that influences a decision to prosecute, he may be held liable for malicious prosecution." Chimurenga v. City of New York (S.D.N.Y.1999) 45 F.Supp.2d 337, 343. See also Babi-Ali v. City of New York (S.D.N.Y.1997) 979 F.Supp. 268, 276 ("[i]f `it is found that [the defendant's] persuasion was a determining factor in inducing the officer's decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be liable"). Since we must assume that their allegations are true, the Defendants have sufficiently pled the "influence" necessary to survive this motion to dismiss. If they can prove their allegations, they may be able to show that the Plaintiffs' conduct was a determining factor in inducing the Bronx D.A. to initiate the criminal proceeding and the civil forfeiture action.

B. Termination Of The Proceedings In The Defendants' Favor

*4 To sustain a claim for malicious prosecution, a party must show" that the criminal or civil proceeding underlying such a claim was terminated in the party's favor. See Sundbye v. Ogunleye (E.D.N.Y.1998) 3 F.Supp.2d 254, 260. Since Wallach and M & D have each premised their malicious prosecution counterclaims on different proceedings, we consider each respectively to determine whether they were terminated in favor of the Defendants.

1. The Criminal Action Against Wallach

Where, as here, a criminal prosecution did not result in an acquittal, it is deemed to have ended in favor of the accused only when its final disposition was such as to indicate the innocence of the accused. Murphy, 118 F.3d at 949. Whether or not the termination is indicative of innocence depends on the nature and circumstances of the termination, and the dispositive inquiry is whether the failure to proceed implicates a lack of reasonable grounds for the prosecution. Id.

Wallach bases her malicious prosecution counterclaim solely on the initiation of the criminal action against her for trademark counterfeiting. See Am. Answer ¶¶ 112-116. The criminal action was dismissed on November 15, 2000. See Am. Answer, Ex. H. However, although an exhibit to the Amended Answer reflects that the criminal action against Wallach was dismissed on the motion of the Bronx D.A., see Am. Answer, Ex. H, and although the Defendants have since conceded that the criminal action was dismissed without prejudice, see Defs' Opp'n Brief at 9, neither that exhibit nor the Amended Answer indicate the Bronx D.A.'s reasons for moving to dismiss the charges against Wallach. At best, the Defendants suggest that the district attorney abandoned the prosecution after they submitted voluminous documentary exhibits purportedly establishing Wallach's innocence of any trademark counterfeiting activity. See Am. Answer ¶ 71. See also Defs.' Opp'n Brief at 9 ("The Bronx District Attorney simply abandoned the criminal proceeding against Dalia [Wallach], five months after it was commenced").

The Second Circuit has held, in the context of a summary judgment motion, that "when the grounds for the dismissal of a criminal proceeding are unclear, New York courts consider whether the proceeding was terminated in plaintiff's favor to be a question of fact that prevents summary judgment." Rounseville v. Zahl (2d Cir.1994) 13 F.3d 625, 629. In Rounseville, a group of taxpayers initiated a criminal prosecution against the town assessors. Rounseville, 13 F.3d at 627. The local district attorney recommended that the criminal charges be dismissed and the town justice subsequently entered a dismissal. Id. The town assessors thereafter sought a measure of revenge by instituting, among other things, a malicious prosecution claim against both the taxpayers and the town justice. See id. These plaintiffs argued that the district attorney's dismissal recommendation amounted to a formal abandonment of the prosecution and that this constituted a termination in their favor. See id. at 629. Although the district court emphasized that the plaintiffs had failed to present specific evidence as to why the criminal proceeding had been terminated and therefore dismissed the plaintiffs' action, the Second Circuit reversed that dismissal.

*5 The Second Circuit noted that, under New York law, the formal abandomnent of a prosecution may constitute a favorable termination. See id., citing Loeb v. Teitelbaum (N.Y.App.Div.1980) 432 N.Y .S.2d 487, 493-494. The court then explained that the record did not contain any specific evidence as to why the charges which were brought by the defendants against the plaintiffs had been dismissed. See Rounseville, 13 F.3d at 629. At most, the record only revealed that the district attorney had moved to dismiss the action and that this motion had been granted. Id. Faced with these circumstances, the Second Circuit held that "when `a termination is indecisive because it does not address the merits of the charge, the facts surrounding the termination must be examined to determine `whether the failure to proceed implies a lack of reasonable grounds for the prosecution."" Id. Consequently, because the grounds for the dismissal of the criminal action were unclear and the facts surrounding the termination were in dispute, the court found that a factual dispute existed as to whether the criminal action had been terminated in the plaintiffs' favor and that this precluded summary judgment. See id.

A similar conclusion was reached in Scheirer v. Wallace (S.D.N.Y. Aug. 4, 1995) 1995 WL 464944. In that case, the plaintiffs had initiated an action against the defendants for malicious prosecution. In pleading the termination of a criminal proceeding in their favor, they simply alleged that the charges against them had been dropped. See Scheirer, 1995 WL 464944 at *5. As in Rounseville, the record in Scheirer was "devoid of any specific evidence concerning why the charges brought against Plaintiffs were dropped." Id. Therefore, the termination was indecisive and failed to address the merits of the charge. In accordance with Rounseville, the district court explained that if, under such circumstances, the question of whether an action had been terminated in favor of the plaintiffs was "inappropriate for resolution on [a] motion for summary judgment, then still greater caution must be applied when the question arises, as it does here, on a motion to dismiss." Id. Hence, the district court held that, "[i]nasmuch as this Court is required to accept all of Plaintiff's material factual allegations as true and draw all reasonable inferences therefrom in the light most favorable to the Plaintiffs. . .it cannot be said that Plaintiffs' have failed to plead their malicious prosecution claim." Id.

The circumstances here are analogous to those addressed by the courts in Rounseville and Scheirer. Although the available record shows that the Bronx D.A. moved to dismiss the criminal action against Wallach and that the charges against her were therefore dropped, the record is devoid of any specific evidence as to why the Bronx D.A. moved to dismiss the criminal action. The Defendants rely on this murkey record to contend that the "Bronx District Attorney simply abandoned the criminal proceeding against Dalia [Wallach], five months after it was commenced." Defs' Opp'n Brief at 9. As the New York Court of Appeals recently held, "[a] dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents `the formal abandomnent of the proceedings by the public prosecutor.'" Smith-Hunter v. Harvey (N.Y.2000) 95 N.Y.2d 191, 198. See also Loeb, 432 N.Y .S.2d at 493; Halberstadt v. New York Life Ins. Co. (N.Y.1909) 194 N.Y. 10-11.

*6 In contrast, the Plaintiffs rely on that same opaque record to contend that the criminal action was not resolved in a manner that establishes Wallach's innocence. Since the basis for the dismissal of the criminal action is unclear at this stage, and inasmuch as we must accept the Defendants' allegations as true and draw all reasonable inferences therefrom in the light most favorable to the Defendants, we find that Wallach has sufficiently pled a termination in her favor to withstand a motion to dismiss. See Bacquie v. City of New York (S.D.N.Y. July 31, 2000) 2000 WL 1051904, *3 (finding that a malicious prosecution claim could survive a motion to dismiss where the plaintiffs had alleged that the charges against them were dismissed by the motion of the district attorney and where, at this early stage in the litigation, it was impossible to tell why the charges had been dropped). See also Rounseville, 13 F.3d at 629: Noga, 169 F.Supp.2d at 91; Scheirer, 1995 WL 464944 at *5.

2. The Civil Forfeiture Action Against M & D

A party asserting a malicious prosecution claim based on a civil proceeding must similarly establish a termination in favor of itself. See Sundbye, 3 F.Supp.2d at 260. As with a malicious prosecution claim stemming from an underlying criminal action, the termination of a civil proceeding must have been of such a character so as to fairly imply the lack of a reasonable ground for the prosecution. See Levy's Stores, Inc. v. Endicott Johnson Corp. (N.Y.1936) 272 N.Y. 155, 162.

M & D premises its malicious prosecution counterclaim on the initiation of the civil forfeiture action against it. See Am. Answer ¶¶ 107-111. On November 16, 2000, Assistant District Attorney Cristina Paquette, acting on behalf of the Bronx D.A., voluntarily stipulated to a discontinuance of the civil forfeiture action with prejudice. See Am. Answer, Ex. G. M & D contends that, as a consequence thereof, the action was dismissed around November 18, 2000. See Am. Answer ¶ 71.

As the Second Circuit has explained, albeit with respect to malicious prosecution claims arising in the criminal context, whether the abandomnent of a prosecution resulting in a termination with prejudice constitutes a termination favorable to a party depends on the cause of the abandonment. Murphy, 118 F.3d at 949. The prevailing view is that if the abandonment was the result of a compromise to which the party agreed, or an act of mercy requested or accepted by the party, it is not a favorable termination for the purposes of a malicious prosecution claim. See id. These principles are equally applicable in the context of a malicious prosecution claim predicated on a civil proceeding. See Miller v. Jamaica Savings Bank (N.Y.App.Div.1975) 377 N.Y.S.2d 89, 90 (recognizing that a malicious prosecution claim based on a civil lawsuit will not lie where the civil suit was terminated by settlement): Levy's Stores, Inc., 272 N.Y. at 162 (holding that where a proceeding has been terminated without regard to its merits because of an agreement or settlement or solely by the procurement of the party as a matter of favor, such a termination cannot support a malicious prosecution claim).

*7 However, courts have repeatedly held that in the absence of a compromise or inducement offered by the plaintiff party in the underlying civil proceeding, the voluntary discontinuance with prejudice by that party is tantamount to a successful termination on the merits in favor of the defendant in the underlying civil proceeding. Aquilina v. O'Connor (N.Y.App.Div.1977) 399 N.Y.S .2d 919, 457; Marion Steel Co. v. Alderton Dock Yards (N.Y.App.Div.1928) 227 N.Y.S. 678, 680. See also Chrysler Corp. v. Fedders Corp. (S.D.N.Y.1982) 540 F.Supp. 706, 719 n. 4 (recognizing that a voluntary discontinuance of a civil suit can serve as the basis for a malicious prosecution claim). Although the voluntary discontinuance of the civil forfeiture action against M D states that it is being entered because the action had been "settled," see Am. Answer, Ex. G, Defendants specifically allege that they "made no admission of guilt, provided no testimony against others, paid no fine and never agreed to forfeit any property in connection with the dismissal of the. . .Forfeiture Action." See Am. Answer ¶ 71.

Given M & D's allegations, there is at least some question as to whether or not the discontinuance of the civil forfeiture action with prejudice was procured by way of settlement or whether it was merely a voluntary discontinuance with prejudice which did not involve any compromise. Drawing all reasonable inferences in favor of M & D, we find that it has sufficiently pled a termination in its favor to survive the motion to dismiss.

C. Lack of Probable Cause

To state a claim for malicious prosecution under New York law, the Defendants must also demonstrate that there was a lack of probable cause for commencing the proceedings against them. See Murphy, 118 F.3d at 947. In their Amended Answer, the Defendants contend that no probable cause existed to initiate either the criminal proceeding or the civil forfeiture action. See Am. Answer ¶¶ 53-55, 60, 109, 114.

"[T]he existence of probable cause depends on whether "the knowledge of facts, actual or apparent, [are] strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Pritzker v. City of Hudson (N.D.N.Y.1998) 26 F.Supp.2d 333, 442. In this instance, according to the allegations of three Assistant District Attorneys, loin or about June 21, 2000, police officers from [the] Organized] C[riminal] I[nvestigation] D[ivision] executed search warrants for MGM Apparel, located at 350 5th Avenue in Manhattan, and at the location of the M & D Sportswear, located in Buildings 77 and 280 in the Brooklyn Navy Yard, in Brooklyn." See Am. Answer, Ex. C at 12. The raid came after an undercover investigation by the NYPD into M & D and Wallach's purported sale and distribution of counterfeit trademark garments in the New York metropolitan area. See Am. Answer, Ex. C at 9-12. Over the course of several months, the NYPD had obtained various pieces of apparel from M & D, including Nike and Polo t-shirts and socks as well as Adidas t-shirts. See id. The NYPD provided samples of the apparel to representatives of Nike, Polo, and Adidas, and these representatives determined that the items were counterfeit. See Am. Answer, Ex. C at 10-12, 36, 38-39, 44, 46-47, 51-53, 57.

*8 During the raid which resulted from this investigation, the police arrested Wallach and seized additional allegedly counterfeit apparel from M & D's premises. See id. at 12. Shortly thereafter, the Bronx D.A. filed the civil forfeiture action against the Defendants to recover $2,555,089, which represented the estimated value of the purportedly counterfeit apparel seized by the police during the June 21, 2000 raid. See id. at 21. At the same time, the Bronx D.A. sought and obtained a temporary restraining order ("TRO") from Justice De Marco of the New York Supreme Court, Bronx County, which restrained the Defendants' assets on the basis that probable cause existed to believe that those assets were the proceeds of illegal activity by the Defendants. See id. at 1-5. Around June 22, 2000, the Bronx D.A. also commenced a criminal action against Wallach for trademark counterfeiting. See Am. Answer ¶ 58. The Defendants, the Bronx D.A., and the various Assistant District Attorneys indicate that this criminal action was based on both the NYPD undercover investigation and the results of the raid. See Am. Answer ¶¶ 53, 112, and Ex. C at 12-13, 21-22.

In essence, the Defendants contend that both the criminal prosecution and the civil forfeiture action were premised in large measure on the accusations of the Plaintiffs' experts, who had examined the merchandise obtained during the undercover investigation and through the police raid and deemed such apparel to be counterfeit. They assert that although the Plaintiffs' representatives concluded that the apparel obtained during the undercover investigation was counterfeit, these representatives generally either (a) provided no explanation for those conclusions; (b) when they did provide explanations, those statements were consistent with non-counterfeit but irregular merchandise: or (c) actually found that the apparel was not counterfeit or found that they could not determine whether the garments were authentic. See Am. Answer ¶ 51. Moreover, the Defendants also attack the representatives' determinations with respect to the supposedly counterfeit nature of the apparel seized during the raid: they contend that the Plaintiffs' representatives did not actually inspect each piece of apparel seized by the NYPD and that the representatives have not provided any explanations as to how they determined such apparel to be counterfeit. See Am. Answer ¶ 54. Indeed, the Defendants note that the supposedly counterfeit apparel which was seized on June 21, 2000 included garments bearing the trademarks of Major League Baseball, Champion, Calvin Klein, Nautica, Chaps, and Fila even though no representatives from the companies who own those trademarks were present to examine the nature of such apparel during the raid. Id. Hence, the Defendants assert that since the criminal and civil actions were based on the biased, self-interested, and uncorroborated determinations of the Plaintiffs' representatives, no probable cause existed to believe that either the criminal prosecution or the civil forfeiture action would succeed. See Am. Answer ¶¶ 107, 114.

*9 In an effort to counter these allegations, the Plaintiffs attempt to rely on the TRO issued by Justice De Marco to raise a presumption of probable cause. Although the Plaintiffs do not refer as extensively to the warrant which preceded that TRO, we are also generally aware that a search warrant was purportedly executed for the June 21, 2000 raid on M & D's premises. See Am. Answer, Ex. C at 12.

Where a search warrant has been issued by a neutral magistrate, that warrant, which depends on a finding of probable cause, is sufficient to create a presumption that probable cause existed. See Golino v. City of New Haven (2d Cir.1991) 950 F.2d 864, 870. cert. denied (1992) 505 U.S. 1221 ("Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe there was probable cause. . ."): Barber v. Winn (N.D.N.Y. Mar. 31, 1997) 1997 WL 151999, *6, aff'd (1997) 131 F.3d 130 ("The issuance of a [search] warrant by an independent magistrate creates a presumption that it was objectively reasonable" for the officer to rely on that warrant): Hornstein v. Wolf (N. Y. App.Div. 1985) 491 N.Y.S.2d 183, 186, aff'd (1986) 67 N.Y.2d 721 (recognizing that presumption of probable cause arises from "a decree or order of a judicial officer"). A presumption of probable cause also arises where a TRO has been issued by a court. See Hornstein v. Wolf (N.Y.1986) 67 N.Y.2d 721, 723.

Accordingly, a party which argues that a warrant or other judicial decree was issued on less than probable cause faces a heavy burden. See Golino, 950 F.2d at 870. To overcome the presumption of probable cause which would arise from such judicial determinations, the party asserting the malicious prosecution claim would generally need to show that the order had been obtained through fraud, perjury, or the withholding of evidence. See Hornstein, 491 N.Y.S.2d at 186. See also Golino, 950 F.2d at 870 ("In order to mount such a challenge, the plaintiff must make a `substantial preliminary showing' that the affiant [on whose accusation the order was issued] knowingly and intentionally, or with reckless disregard for the truth made a false statement in his affidavit and that the allegedly false statement was `necessary to the finding of probable cause'"). Since the Defendants failed to assert either fraud, perjury, or the withholding of evidence in their Amended Answer, we would, under ordinary circumstances, dismiss their malicious prosecution counterclaims for failing to state allegations sufficient to overcome the presumption of probable cause created by either the search warrant or Justice De Marco's TRO.

However, these are no ordinary circumstances. First, we have not, as of yet, been provided with any information as to the search warrant which was purportedly "executed" for the raid on M & D's premises. As such, we do not know the grounds on which that warrant was issued or whether it had been issued by a neutral magistrate.

*10 Moreover, although Justice De Marco did issue a TRO, he did so only after the goods were seized by the police on June 21, 2000 and Wallach had already been arrested. The parties have not discussed whether a TRO issued after the seizure of goods or an arrest raises the same presumption of probable cause as a TRO issued prior to the seizure or arrest. However, even assuming arguendo that a TRO issued after such a seizure or arrest could raise the same presumption of probable cause as a TRO issued before the seizure or arrest, any such presumption of probable cause which would generally arise from that TRO would still be inapplicable under these circumstances. Presumptions of probable cause are inapplicable where they are issued by a judge on the basis of sworn accusations of the defendant in the malicious prosecution counterclaim. See Pritzker, 26 F.Supp.2d at 442. See also Russo v. State of New York (2d Cir.1982) 672 F.2d 1014, 1018, modified on other grounds (2d Cir.1983) 721 F.2d 410.

Here, Justice De Marco expressly premised his TRO on, among other things, "the annexed affirmation of Assistant District Attorneys MAUREEN DUFFY, CHRISTINA PAQUETTE and LAURIE SPARROW, of counsel to the District Attorney of Bronx County, ROBERT T. JOHNSON. . .together with all the exhibits annexed thereto." Am. Answer, Ex. C at 1-2. In turn, each of the aforementioned Assistant District Attorneys based their affirmations in large measure on the conclusions reached by the Plaintiffs' experts with respect to the counterfeit nature of the Defendants' apparel. See Am. Answer, Ex. C at 7-8 ("In an effort to ascertain defendants' criminal liability, experts of the trademark companies examined the merchandise purchased during the investigation. . .The experts have determined that all of the merchandise purchased by the Undercover Detective assigned to this case was counterfeit. Therefore, defendants' entire business is predicated on the manufacture, sale, and distribution of counterfeit trademark merchandise. Experts have also preliminarily examined the large volume of merchandise recovered pursuant to a search warrant, and have determined that the wholesale value of the merchandise seized to be $2,555,089.00 in United States currency.") See also Am. Answer, Ex. C at 10-14. Given Justice De Marco's reliance on affirmations which themselves heavily relied on determinations made by the Plaintiffs' representatives, no presumption of probable cause can arise from Justice De Marco's TRO.

Drawing all reasonable inferences and resolving all ambiguities in favor of the non-moving parties, we conclude that, under these circumstances, the Defendants have sufficiently pled a lack of probable cause to withstand the motion to dismiss.

D. Malice

Finally, to state a counterclaim for malicious prosecution under New York law, the Defendants must also demonstrate actual malice as a motivation for the Plaintiffs' actions. See Murphy, 118 F.3d at 947. Pursuant to Federal Rule of Civil Procedure 9(b), malice may be averred generally. FED.R.CIV.P. 9(b). Moreover, lulnder New York law, malice does not have to be actual spite or hatred, but means only `that the defendant must have commenced the proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'" Lowth v. Town of Cheektowaga (2d Cir.1996) 82 F.3d 563, 573.

*11 The Defendants contend, inter alia, that the Plaintiffs instigated the criminal prosecution and the civil forfeiture action against them through their financing and conduct (particularly in determining, in a conclusory manner, that the Defendants' apparel was counterfeit), that they did not have probable to cause to believe that the criminal prosecution or civil forfeiture action would succeed, and that they "maliciously instigated" the criminal and civil actions "in the hopes that any adverse outcome of those actions would financially benefit them, by facilitating the Manufacturers' recovery of a monetary judgment in this Federal Action against Wallach and M & D." See Am. Answer ¶¶ 51, 53-55, 60, 66, 107-109. These allegations are sufficient to give rise to an inference that the criminal prosecution and civil forfeiture action were commenced due to a wrong or improper motive.

Moreover, as we have already discussed, we lack sufficient information to determine whether probable cause existed to support the initiation of either the criminal proceeding against Wallach or the civil forfeiture action against M & D, and when we draw all reasonable inferences and resolve all ambiguities in favor of the non-moving parties, the Defendants have successfully pled a lack of probable cause. "[L]ack of probable cause generally raises an inference of malice." Ricciuti v. N.Y.C. Transit Authority (2d Cir.1997) 124 F.3d 123, 131. See also Babi-Ali, 979 F.Supp. at 277 ("actual malice can be inferred from a lack of probable cause for the initiation of. . .proceedings"). Accordingly, we find that an inference of malice has sufficiently been raised by the Defendants' allegations so as to overcome the motion to dismiss. See Pritzker, 26 F.Supp.2d at 443 (holding that the complaint sufficiently alleged malice since, "if it is determined that the defendants acted without probable cause, then this would support an inference of malice sufficient to overcome defendants' Rule 12(b)(6) motion"): Babi-Ali, 979 F. Supp. at 277 ("Because Plaintiff has stated a lack of probable cause, an inference can be drawn under New York law that the prosecution was initiated with actual malice. Thus, this Court finds that Plaintiff has stated a claim [for malicious prosecution] upon which relief can be granted").1

E. Lack Of Subject Matter Jurisdiction

Separate and apart from their contention that the Defendants failed to state causes of action for malicious prosecution, the Plaintiffs also assert that we lack subject matter jurisdiction over the Defendants' counterclaims. In their initial Answer, the Defendants made no allegations as to how we had subject matter jurisdiction over their counterclaims. In their Amended Answer, they alleged for the first time that the "Court has subject matter jurisdiction over the subject matter of the counterclaims asserted by M & D and Wallach against Counterclaim-Defendants Polo, Nike, Adidas AG, Adidas BV and Adidas America. . . pursuant to 28 U.S.C. §§ 1331, 1343 and 1367 and the principles of supplemental jurisdiction." Am. Answer ¶ 32. Having been afforded the opportunity to examine the specific grounds for the Defendants' jurisdictional allegations, the Plaintiffs now contend that 28 U.S.C. §§ 1331 and 1343 are no longer applicable bases for jurisdiction and that we lack supplemental jurisdiction pursuant to 28 U. S. C. § 1367.

*12 We need not resolve whether we lack subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, or 1367, for even assuming arguendo that the Defendants' jurisdictional allegations were defective, we still have an independent basis for jurisdiction with respect to the Defendants' malicious prosecution counterclaims. Although the Defendants failed to allege diversity jurisdiction pursuant to 28 U.S.C. § 1332 in their Amended Answer, they have since argued by way of their supplemental brief that we have diversity jurisdiction under 28 U.S.C. § 1332 over their counterclaims.

Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount of $75,000. See 28 U.S.C. § 1332(a). "A case falls within the federal district court's `original' diversity `jurisdiction' only if diversity of citizenship among the parties is complete, i. e., only if there is no plaintiff and no defendant who are citizens of the same State." Wisconsin Dept. of Corrections v. Schacht (1998) 524 U.S. 381, 388. In this instance, the parties to the counterclaims are, in large measure, corporations. "For jurisdictional purposes, a corporation is deemed to be a citizen of both the state in which it has been incorporated and the state in which it has its principal place of business." Advani Enterprises, Inc. v. Underwriters At Lloyds (2d Cir.1998) 140 F.3d 157, 160. See also 28 U.S.C. § 1332(c). Both the Plaintiffs and the Defendants have alleged that: (a) Plaintiffs Tommy Hilfiger and Polo are organized under the laws of Delaware and maintain their principal places of business in that state: (b) Plaintiff Nike is organized under the laws of Oregon and maintains its principal place of business in that state; (c) Plaintiff Adidas-Salomon AG is organized under the laws of the Federal Republic of Germany and maintains its principal place of business in that country: (d) Plaintiff Adidas International BV is organized under the laws of the Netherlands and maintains its principal place of business in that country; and (e) Plaintiff Adidas America, Inc. is organized under the laws of Delaware and maintains its principal place of business in Oregon. See Second. Am Compl. ¶¶ 4-9: Am. Answer ¶¶ 21-25. Moreover, both the Plaintiffs and the Defendants have further alleged that Defendant M & D is a New York corporation with its principal place of business in New York and that Wallach is a resident of New York. See Second Am. Compl. ¶¶ 19-20: Am. Answer ¶¶ 19-20. In other words, according to both the Second Amended Complaint and the Amended Answer, the Plaintiffs and the Defendants in this action enjoy complete diversity of citizenship. In addition, with respect to the amount in controversy implicated by the malicious prosecution counterclaims, M & D has demanded compensatory damages of no less than $417,000 as well as $5 million in punitive damages, and Wallach has demanded compensatory and punitive damages each in the sum of $5 million. See Am. Answer, Ad Damnum Clause ¶¶ E and F.

*13 In light of the undisputed allegations with respect to the citizenship of the parties and the Defendants' allegations with respect to the amount in controversy, the Defendants have sufficiently established that we have diversity jurisdiction over their counterclaims. As such, the purported deficiencies in their initial jurisdictional allegations are not fatal to their counterclaims. According to 28 U.S.C. § 1653, "Plefective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." See 28 U.S.C. § 1653. Where a new theory of subject matter jurisdiction is supported by the allegations underlying a complaint, we may simply deem that complaint to be amended to state that new theory of jurisdiction in furtherance of judicial economy. See Advani Enterprises, Inc., 140 F.3d at 161. See also American National Fire Ins. Co. v. Mirasco, Inc. (S.D.N.Y. Sept. 20, 2000) 2000 WL 1368009, *3 ("If the record established complete diversity then the Court could simply deem the complaint to have been amended and the jurisdictional problem would be cured"). Accordingly, we deem the Amended Answer to be further amended to allege diversity jurisdiction and therefore any purported deficiencies in the Defendants' previous jurisdictional allegations are now cured.

II. THE MOTION TO STRIKE

In their supplemental memorandum in support of their motion to dismiss, the Plaintiffs also ask us to strike Paragraphs 46, 49-50, 56-57, and 73-106 of the Amended Answer. See Pls.' Supplemental Brief at 9-10. The Plaintiffs note that the Amended Answer had originally been submitted by the Defendants in the hopes of introducing several new counterclaims against both the Plaintiffs and a number of new parties. Since we denied the Defendants leave to add these new counterclaims or parties by way of the Amended Answer, the Plaintiffs contend that the aforementioned paragraphs should be stricken as they relate solely to such new counterclaims and parties and "have no bearing whatsoever on the malicious prosecution counterclaims" which remain. See id.

Under Federal Rule of Civil Procedure 12(f). we are permitted to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED.R.CIV.P. 12(f). However. "[t]he Federal Rules of Civil Procedure have long departed from the era when lawyers were bedeviled by intricate pleading rules and when lawsuits were won or lost on the pleadings alone. Thus the courts should not tamper with the pleadings unless there is a strong reason for doing so. Lipsky v. Commonwealth United Corp. (2d Cir.1976) 551 F.2d 887, 893. Accordingly, "[m]otions to strike are disfavored and will not be granted `unless it is clear that the allegations in question can have no possible bearing on the subject matter.'" See Thomas v. NASL Corp. (S.D.N.Y. Nov. 20, 2000) 2000 WL 1725011, *11. See also Lipsky, 551 F.2d at 893 ("it is settled that the motion [to strike] will be denied unless it can be shown that no evidence in support of the allegation would be admissible").

*14 We have thoroughly examined Paragraphs 46, 49-50, 56-57, and 73-106. Although the Plaintiffs may contend that the allegations contained therein are immaterial to the Defendants' malicious prosecution counterclaims, questions of relevancy and admissibility usually "require the context of an ongoing and unfolding trial in which to be properly decided." Lipsky, 591 F.2d at 893. Therefore, "ordinarily neither a district court nor an appellate court should decide to strike a portion of. . . [a pleading] on the grounds that the material could not possibly be relevant on the sterile field of the pleadings alone." Id.

The paragraphs at issue here largely either address (a) the purported relationship between the Plaintiffs, the NYPD, and the Bronx D.A., or (b) the treatment and nature of the very apparel which served as a predicate for the criminal prosecution and civil forfeiture action that were initiated against the Defendants after the June 21, 2000 raid on M & D's premises. There is no basis, at this stage, to conclude from the barren field of the pleadings alone that the allegations in the disputed paragraphs can have no possible bearing on the subject matter of the malicious prosecution counterclaims.2 As such, we deny the motion to strike.

CONCLUSION

For the foregoing reasons, the motion to dismiss and the motion to strike are denied.

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2002 WL 737477.

Appeal from the United States District Court for the Northern District of New York, No. 15-cv-1505—Mae A. D'Agostino, Judge.

Attorneys and Law Firms

Brian D. Premo, Premo Law Firm PLLC, Albany, NY, for Plaintiff-Appellant.

Thomas J. O'Connor, Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany, NY, for Defendant-Appellee Youel Smith.

Andrew D. Bing, Deputy Solicitor General, Jennifer L. Clark, Assistant Solicitor General, for Barbara D. Underwood, Attorney General of the State of New York, for Defendant John G. Ogden.

Before: Jacobs, Raggi, and Droney, Circuit Judges.

Opinion

Droney, Circuit Judge:

*1 Plaintiff-Appellant Edward G. McDonough, the former Democratic Commissioner of the Rensselaer County Board of Elections, was acquitted in New York state court of forging absentee ballots in a local primary election. He appeals from two subsequent decisions of the United States District Court for the Northern District of New York (D'Agostino, J.) dismissing his claims against Defendant-Appellee Youel Smith under 42 U.S.C. § 1983 related to that prosecution. He alleged (1) denial of due process based on fabricated evidence and (2) malicious prosecution. The district court determined that (1) McDonough's due process claim was untimely and dismissed it as to all Defendants1 and (2) Smith, a Special District Attorney who prosecuted McDonough, was entitled to absolute prosecutorial immunity on McDonough's malicious prosecution claim and therefore dismissed that claim with respect to Smith.2

Pursuant to Federal Rule of Civil Procedure 54(b), the district court entered judgment as to Smith and certified the decisions dismissing the two claims against him for interlocutory appeal by McDonough.3

For the reasons that follow, we agree with the district court's conclusion that McDonough's due process claim was untimely, and thus barred by the applicable statute of limitations. We also agree with the district court that Smith is entitled to absolute immunity as to the malicious prosecution claim. We therefore AFFIRM the dismissal of those claims.

BACKGROUND

During the 2009 Working Families Party primary election in the City of Troy, New York, several individuals associated with the Democratic and Working Families Parties forged signatures and provided false information on absentee ballot applications and absentee ballots in order to affect the outcome of that primary. Those individuals then submitted the forged absentee ballot applications to McDonough. McDonough, as a commissioner of the Rensselaer County elections board, was responsible for processing those applications.4 McDonough approved the forged applications, but subsequently claimed he did not know that they had been falsified.

*2 The plot to influence the primary was eventually discovered. Defendant Richard McNally, the elected District Attorney for Rensselaer County, was disqualified from the ensuing investigation because certain of those allegedly involved in the scheme had worked on his prior campaign. The state court then appointed Smith as a Special District Attorney to lead the investigation and potential prosecution. McDonough claimed that Smith then engaged in an elaborate scheme to frame McDonough for the crimes by, among other things, fabricating evidence. This alleged scheme included using forged affidavits, offering false testimony, and using faulty DNA methods for analyzing materials used in processing the ballot applications, all despite Smith knowing that McDonough was innocent.

McDonough claims that Smith presented the fabricated evidence to a grand jury. The grand jury subsequently indicted McDonough on more than three dozen state law counts of felony forgery in the second degree and a similar number of counts of felony criminal possession of a forged instrument in the second degree. See N.Y. Penal Law §§ 170.10, 170.25. The case against McDonough proceeded to trial but ended in a mistrial. McDonough was then retried, again with Smith as the prosecutor. That trial ended in McDonough's acquittal on December 21, 2012.

On December 18, 2015, McDonough filed this action under 42 U.S.C. § 1983, claiming that the Defendants (including Smith) (1) had violated his right to due process by fabricating evidence and later using it against him before the grand jury and in his two trials and (2) were liable for malicious prosecution.

Several Defendants filed motions to dismiss McDonough's due process claim. They argued, in part, that it was barred by the applicable three-year statute of limitations because the allegedly fabricated evidence had been disclosed to McDonough. and his claim therefore accrued, well before the second jury acquitted him.5

In opposing the Defendants' motions, McDonough argued that because his fabrication of evidence claim was based on the actions of Smith, a prosecutor, it was analogous to a malicious prosecution claim, and therefore did not accrue until the second trial terminated in his favor. McDonough also contended that his due process claim did not accrue until the termination of the second trial under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). He argued that his fabrication of evidence claim would challenge the validity of the pending criminal proceedings against him, and thus, under Heck, did not accrue until he was acquitted.

In two decisions, dated September 30, 2016 and December 30, 2016, the district court dismissed McDonough's due process claims against all Defendants as untimely and his malicious prosecution claim against Smith on the basis of absolute prosecutorial immunity.6

As to the due process claim, the district court reasoned that McDonough's claim was "based upon the fabrication of evidence" and it "accrued when he knew or should have known that such evidence was being used against him and not upon his acquittal in his criminal case." J. App. 155. As the district court indicated, McDonough's complaint had alleged "that all of the fabricated evidence was either presented at grand jury proceedings or during his two trials, all of which occurred" more than three years before he filed suit. J. App. 156.

*3 The district court also concluded that Smith was protected by absolute immunity as to the malicious prosecution claim.

DISCUSSION

I. Standard of Review

"We review de novo the grant of a motion to dismiss, accepting all factual allegations in the complaint as true and drawing inferences from those allegations in the light most favorable to the plaintiff." Bascunan v. Elsaca, 874 F.3d 806, 810 (2d Cir. 2017) (alterations and internal quotation marks omitted); see also Deutsche Bank Nat'l Jr. Co. v. Quicken Loans Inc., 810 F.3d 861, 865 (2d Cir. 2015) ("We review de novo a district court's grant of a motion to dismiss, including its legal interpretation and application of a statute of limitations . . . .").

II. The Due Process Claim

McDonough argues that his due process claim is timely because he alleged that Smith fabricated evidence in order to file baseless charges against him, and thus his claim is most analogous to a malicious prosecution action, which does not accrue until favorable termination of the prosecution, here the verdict of acquittal. See Poventud v. City of New York, 750 F.3d 121, 131 (2d Cir. 2014). In the alternative, McDonough asserts (1) that his claim is timely in light of Heck v. Humphrey, and (2) that the use of fabricated evidence against him constituted a continuing violation that renders his claim timely.

We conclude that the nature of McDonough's due process claim is different from a malicious prosecution claim, and that it accrued when (1) McDonough learned that the evidence was false and was used against him during the criminal proceedings: and (2) he suffered a loss of liberty as a result of that evidence. Because both occurred more than three years prior to McDonough filing this action, we agree with the district court that McDonough's due process claim is time-barred.7 We also reject McDonough's additional arguments as to the due process claim.

a. The Accrual of § 1983 Actions for Fabrication of Evidence and Malicious Prosecution

The statute of limitation for claims brought under 42 U.S.C. § 1983 is generally "the statute of limitations for the analogous claim under the law of the state where the cause of action accrued." Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017). It is undisputed that the applicable statute here is New York's three-year limitations period for personal injury claims. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (applying three-year personal injury limitations period to retaliatory prosecution claim); see also N.Y. C.P.L.R. § 214(5) (personal injury statute of limitations).

"However, the time at which a claim . . . under [§] 1983 accrues is a question of federal law that is not resolved by reference to state law." Spak, 857 F.3d at 462 (quoting Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)) (emphasis in original). Instead, federal "courts apply general common-law tort principles to determine the accrual date of a [§] 1983 claim." Spak, 857 F.3d at 462 (alterations and internal quotation marks omitted). It "is the standard rule that accrual occurs when a plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief." Smith, 782 F.3d at 100 (internal quotation marks omitted). Put other ways, an action accrues "when the wrongful act or omission results in damages," id., and "once the plaintiff knows or has reason to know of the injury which is the basis of his action," Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (internal quotation marks omitted).

*4 We next consider the accrual rules for the two types of claims that McDonough has brought against Smith in this case: fabrication of evidence and malicious prosecution.

Under the Fifth and Fourteenth Amendments' Due Process Clauses, individuals have "the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer . . . ." Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). The forwarding by an investigating officer to a prosecutor of fabricated evidence, or in this instance, the alleged creation or use of such evidence by both investigating officers and the prosecutor, "works an unacceptable `corruption of the truth-seeking function of the trial process.' Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

Applying our standard accrual rules, a fabrication of evidence claim accrues (1) when a plaintiff learns of the fabrication and it is used against him, see Veal, 23 F.3d at 724, and (2) his liberty has been deprived in some way, see Zahrey, 221 F.3d at 348. Because there is no dispute in this case that McDonough suffered a liberty deprivation because of that evidence when he was arrested and stood trial, we focus our attention on the first prong. See id.

The statute of limitations begins to run on a fabrication of evidence claim against law enforcement officials under § 1983 when the plaintiff has "`reason to know of the injury which is the basis of his action.'" Veal, 23 F.3d at 724 (quoting Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980)). "The reference to `know[ledge] of the injury `does not suggest that the statute does not begin to run until the claimant has received judicial verification that the defendants' acts were wrongful." Id. (second alteration in original).

In Veal, a police detective manipulated a lineup by arranging for the witness to view the criminal defendant (later the plaintiff in the § 1983 fabrication of evidence lawsuit) entering the police station in handcuffs prior to conducting the lineup. Id. at 723-24. However, at the time of the lineup, the defendant had already been arrested for the crime based on the same witness's identification of him from a prior photo array. Id. at 725. The evidence of the identification from the lineup was later used at trial and the defendant was convicted. Id. at 724. The Appellate Division of the New York Supreme Court reversed the conviction because of the use of the suggestive lineup and the resulting in-court identification. Id.

Veal brought his § 1983 due process claim within three years of the decision by the Appellate Division but more than three years after he had been sentenced following his trial. Id. We concluded that the statute of limitations had expired before the suit was instituted because Veal was made aware of the tainted lineup when its circumstances were disclosed before his trial (and he moved to suppress its use at trial), more than three years before suit was brought. Id. at 724-25. The date of the reversal of the conviction by the Appellate Division was not the accrual date of the due process violation: rather it was as early as when the circumstances of the lineup were disclosed at the pretrial hearing, and certainly no later than the date of conviction and sentencing, because those later dates were when the liberty deprivation occurred based on the effect of the tainted evidence at trial. Id. at 725-26.8

*5 We acknowledge that the Third, Ninth, and Tenth Circuits have held that the due process fabrication cause of action accrues only after criminal proceedings have terminated because those circuits have concluded that fabrication of evidence claims are analogous to claims of malicious prosecution, which require termination of the criminal proceeding in the defendant's favor before suit may be brought. See Floyd v. Attorney Gen. of Pennsylvania, 722 F. App'x. 112, 114 (3d Cir. 2018); Bradford v. Scherschligt, 803 F.3d 382, 388-89 (9th Cir. 2015) ("To determine the proper date of accrual, we look to the common law tort most analogous to Bradford's claim. As we have explained, the right at issue . . . is the right to be free from [criminal] charges based on a claim of deliberately fabricated evidence. In this regard, it is like the tort of malicious prosecution, which involves the right to be free from the use of legal process that is motivated by malice and unsupported by probable cause.") (second alteration in original) (internal citation and quotation marks omitted); Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008) ("After the institution of legal process, any remaining constitutional claim is analogous to a malicious prosecution claim. . . . Because the statute of limitations does not start running before the elements of a claim are satisfied, the statute of limitations for this due process claim cannot start until the plaintiff has achieved a favorable result in the original action."). We disagree with those decisions. Because the injury for this constitutional violation occurs at the time the evidence is used against the defendant to deprive him of his liberty, whether it be at the time he is arrested, faces trial, or is convicted, it is when he becomes aware of that tainted evidence and its improper use that the harm is complete and the cause of action accrues. Indeed, the harm—and the due process violation—is in the use of the fabricated evidence to cause a liberty deprivation, not in the eventual resolution of the criminal proceeding.

We thus conclude that, under the circumstances here, the § 1983 action based on fabrication of evidence accrued when McDonough (1) learned of the fabrication of the evidence and its use against him in criminal proceedings, and (2) was deprived of a liberty interest by his arrest and trial. For McDonough, this was, at the earliest, when he was indicted and arrested and, at the latest, by the end of his first trial, after all of the prosecution's evidence had been presented.9 "[J]udicial verification that the defendants' acts were wrongful" is not required, and thus accrual did not have to await McDonough's acquittal. T'eal, 23 F.3d at 724.

In contrast, we have long held that malicious prosecution claims brought pursuant to § 1983 do not accrue until the underlying criminal proceedings against the plaintiff terminate in his favor.

Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010). Favorable termination is an element of malicious prosecution under New York law and also for the Constitution-based tort. Id. A plaintiff therefore cannot have a complete cause of action unless and until the criminal proceedings against him terminate favorably.10 Accordingly, the district court properly concluded that the malicious prosecution claims were timely.11

That McDonough alleged that a prosecutor, rather than a law enforcement officer, fabricated evidence does not delay the accrual of his due process claim until accrual of his malicious prosecution claim. The constitutional right violated by fabricated evidence is the right not to be arrested or to face trial based on such evidence. See Zahrey, 221 F.3d at 348. That violation and its harm were complete when the fabricated evidence was used by Smith against McDonough in those ways. It matters not, in the circumstances here, whether it was Smith or a law enforcement officer who created and used the allegedly false evidence: whoever causes that deprivation of liberty is a proper defendant for this constitutional cause of action. But the defendant's role makes no difference when the claim accrues. The separate and distinct harm that malicious prosecution claims are designed to address afforded McDonough a remedy to the extent that he alleged that fabricated evidence was created to prosecute him maliciously and without probable cause.12 See id. (discussing claim based on prosecutor's fabrication of evidence).

*6 McDonough argues that, notwithstanding its date of accrual, his due process claim is timely as a result of the Supreme Court's decision in Heck, 512 U.S. at 486-87, 114 S.Ct. 2364 (concluding that civil complaint must be dismissed in a malicious prosecution—type case if a judgment in favor of the plaintiff would "imply the invalidity of his conviction"). That argument, however, is foreclosed by the Supreme Court's subsequent decision in Wallace, 549 U.S. at 393-94, 127 S.Ct. 1091. In Wallace, the plaintiff brought a false arrest claim under § 1983. The conviction following that arrest was reversed by the state appeals court because the arrest was without probable cause, thus invalidating a subsequent confession admitted at trial. Id. at 386-87, 127 S.Ct. 1091. The Supreme Court held that the civil false arrest claim accrued at the time of the initial arrest and the ultimate reversal of the conviction was not necessary to complete the false arrest constitutional tort. Id. at 394, 127 S.Ct. 1091. Even though the false arrest claim might impugn a future conviction, Heck did not delay its accrual date, and the civil action could proceed even though the criminal case had not been resolved at that time.13 Id. at 393, 127 S.Ct. 1091. Thus, the Court clarified that, "the Heck rule for deferred accrual is called into play only when there exists a conviction or sentence that has not been invalidated, that is to say, an outstanding criminal judgment." Wallace, 549 U.S. at 393, 127 S.Ct. 1091 (internal punctuation and quotation marks omitted) (emphasis in original). McDonough was never convicted, so Heck is not "called into play." Id.

Finally, McDonough argues that his due process claim is timely because his "wrongful prosecution [constituted] a continuing violation," that only ceased on his acquittal. Appellant's Br. 50. We are not persuaded. As we have explained: "Characterizing defendants' separate wrongful acts as having been committed in furtherance of a conspiracy or as a single series of interlocking events does not postpone accrual of claims based on individual wrongful acts." Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995) (internal quotation marks omitted). Smith allegedly fabricated evidence, then presented that evidence to a grand jury, and later used it at McDonough's trials. The cause of action accrued when McDonough became aware of the fabricated evidence, which was, at the latest, during the first trial. The continuation of the prosecution does not, by itself, constitute a continuing violation that would postpone the running of the statute of limitations until his acquittal.14

City of Joliet, which held that a plaintiff (formerly a criminal defendant) may seek damages under 42 U.S.C. § 1983 concerning his pretrial detention on the ground that it violated the Fourth Amendment for the period of pretrial detention after his arrest. ___ U.S. ___, 137 S.Ct. 911, 914, 197 L.Ed.2d 312 (2017). That a claim under the Fourth Amendment may be based on events occurring after an arrest does not affect our conclusion that McDonough's due process claim accrued well before his acquittal, and the Supreme Court stated in Manuel that its recognition that the Fourth Amendment applies to a period after the arrest did not necessarily alter the accrual date of that and other causes of action, and left the question for the Courts of Appeals to resolve. Id. at 922.

III. The Malicious Prosecution Claim

Prosecutors are protected by absolute immunity for their acts that are "intimately associated with the judicial phase of the criminal process" and their role as advocates, but they receive only qualified immunity for acts that are investigatory in nature. Simon v. City of New York, 727 F.3d 167, 171-72 (2d Cir. 2013) (internal quotation marks omitted). The district court concluded that Smith was entitled to absolute immunity from McDonough's malicious prosecution claim because even though McDonough's complaint suggests that, at times, Smith was acting in an investigatory capacity, "the distinction between a prosecutor's investigative and prosecutorial functions is immaterial to a malicious prosecution claim, since prosecutors are generally immune from such claims." J. App. 204; see also Shmueli v. New York, 424 F.3d 231, 238 (2d Cir. 2005). We agree. Although prosecutors may be eligible only for qualified immunity when functioning in an investigative capacity, they are entitled to absolute immunity when acting as advocates for the state, such as initiating prosecutions or at trial. See Zahrey, 221 F.3d at 346 (holding, in § 1983 cases, that prosecutorial la]ctions taken as an advocate enjoy absolute immunity, while actions taken as an investigator enjoy only qualified immunity" (internal citation omitted)); see also Shmueli, 424 F.3d at 237 ("[T]he initiation and pursuit of a criminal prosecution are quintessential prosecutorial functions As the malicious prosecution claim relates only to Smith's prosecutorial function, it is barred by absolute immunity.15

CONCLUSION

*7 McDonough's due process claim accrued when (1) the purportedly fabricated evidence was used against him and he had knowledge of that use, and (2) he was deprived of a liberty interest. Because that occurred more than three years before he filed suit, we AFFIRM the decision of the district court dismissing that claim. We also AFFIRM the decision of the district court that Smith was entitled to absolute immunity for the malicious prosecution claim.

All Citations

___ F.3d ___, 2018 WL 3672942.

MEMORANDUM DECISION AND ORDER

FRANK MAAS, United States Magistrate JUdge.

I. Introduction

*1 In this civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983"), plaintiff Phillip Stewart ("Stewart") seeks to recover damages for false arrest, malicious prosecution, malicious abuse of process, and denial of his right to a fair trial. The sole remaining defendant is an undercover police officer ("UC 3583"). Stewart contends that UC 3583 falsely told the Office of the District Attorney of New York County and a grand jury that Stewart had acted as a "lookout" and "voucher" during a street level drug transaction on November 26, 2002.

Following the close of discovery, UC 3583 has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In accordance with 28 U.S.C. § 636(c), the parties have consented to my exercise of jurisdiction for the limited purpose of entering a final order regarding this motion. Accordingly, for the reasons set forth below, the motion is granted with respect to Stewart's false arrest and malicious abuse of process claims, but denied with respect to his other claims.

II. Background

Unless otherwise noted, the relevant facts are either undisputed or set forth in the light most favorable to Stewart.

A. Relevant Facts

In November 2002, the Manhattan North Narcotics Division of the New York City Police Department and the New York County District Attorney's Office were jointly conducting a long-term undercover narcotics buy operation in the vicinity of West 112th Street and Seventh Avenue in Harlem. (Def's R. 56.1 Stmt. ¶ Decl. of Hillary Frommer. Esq., dated June 14, 2007 ("Frommer Decl."), Ex. A (Dep. of UC 3583, taken on Feb. 16, 2007 ("UC 3583 Dep.")), at 4-5). In such an operation, an undercover officer attempts to purchase narcotics from sellers in a particular community over an extended time period. (Det's R. 56.1 Stmt. ¶ 2; UC 3583 Dep. at 6-7). The sellers therefore are not arrested when the sales occur. (Def.'s R. 56.1 Stmt. ¶ 4). Instead, the police amass information over time and arrest the targets at the conclusion of the operation during the "case take down." (Id. ¶¶ 4-5).

On the morning of November 26, 2002, UC 3583 went to West 112th Street, where he had purchased drugs at least seven times before as part of the undercover operation. (Id. ¶¶ 14-15). UC 3583 wore a Kel audio transmitter and was surreptitiously videotaped by an investigator, Thomas Artino ("Artino"), who was in a parked car across the street. (Id. ¶¶ 16-17; UC 3583 Dep. at 15-16; Frommer Decl. Ex. F (Decl. of Thomas Artino, dated June 6, 2007 ("Artino Deck")), ¶ 3).

Upon his arrival in the vicinity of West 112th Street, UC 3583 observed Richard Sullivan (-Sullivan"), a target of the buy operation, selling drugs to several individuals. (Def.'s R. 56.1 Stmt. ¶¶ 18-21; UC 3583 Dep. at 17-18, 26). UC 3583 approached Sullivan and asked about purchasing crack cocaine. (Det's R. 56.1 Stint. ¶ 22; UC 3583 Dep. at 27). Sullivan responded, in substance, that he did not know UC 3583 and was reluctant to conduct a sale. (Def.'s R. 56.1 Stmt. ¶ 23; UC 3583 Dep. at 28-29, 36; Decl. of Jon L. Norinsberg, Esq., dated Aug. 24, 2007 ("Norinsberg Deck"), Ex. G (Transcript of Audio Tape) at 2-4). As UC 3583 attempted to convince Sullivan that he was not a police officer, Tanzie Spann ("Spann") and Stewart approached and joined the conversation. (Deft's R. 56.1 Stint. ¶¶ 24-25; UC 3583 Dep. at 35, 37, 51; Stewart Dep. at 33-34). UC 3583 recognized Stewart from the neighborhood and knew that he previously had been arrested for selling drugs. (Def.'s R. 56.1 Stmt. ¶¶ 28-29; UC 3583 Dep. at 39-40; see Stewart Dep. at 58, 85). Stewart asked UC 3583 questions about a dealer named "D block" and UC 3583's possible role in the arrest of a woman named "Sandra," inquiries that UC 3583 thought were being made in an effort to determine whether he was a police officer. (Def.'s R. 56.1 Stmt. ¶¶ 35, 37-38; UC 3583 Dep. at 51-52, 55, 64; Norinsberg Deck Ex. G at 3-5). Stewart also commented that he had seen UC 3583 around the neighborhood wearing the same distinctively-colored jacket he had on that day. (Def.'s R. 56.1 Stmt. ¶ 39; UC 3583 Dep. at 51, 61; Stewart Dep. at 34, 48; Norinsberg Decl. Ex. G at 4-5).

*2 The audiotape of the conversation between UC 3583 and Stewart, the authenticity of which is not disputed, reflects the following exchanges:

* * *

* * *

* * *

* * *

* * *

* * *

* *

(Norinsberg Decl. Ex. G at 3-6) (emphasis added).

Stewart contends that he did not vouch for UC 3583 during their conversation. (Pl.'s Resp. to Def.'s R. 56.1 Stmt. ("Pl.'s Resp.") ¶¶ 37, 41-46). UC 3583, on the other hand, maintains that he understood Stewart's promise to "do you first" to mean that Stewart was vouching for him by indicating to the others that it was safe to sell him drugs. (Def.'s R. 56.1 Stmt. ¶¶ 41-44; UC 3583 Dep. 52, 57-58, 61-64, 73, 148-49).

*3 Following Stewart's promise to "do you first," all four men walked up the block to a building on the next corner. (Def.'s R. 56 .1 Stmt. ¶ 47; UC 3583 Dep. at 68, 141). Although Stewart denies that he was "en route" to a drug transaction, (see Pl.'s Resp. ¶¶ 47, 49-50, 56-57; Stewart Dep. at 114-15), he concedes that UC 3583 "was still trying to convince everyone present that he was not a police officer." (Pl.'s Resp. ¶ 48).

When the group reached 1833 Seventh Avenue, UC 3583 and Spann entered the building, at which time Spann sold twenty-one vials of crack cocaine to UC 3583 in exchange for $100. (Def.'s R. 56.1 Stmt. ¶¶ 50-51). UC 3583 subsequently saw Spann hand the buy money to Sullivan. (Def.'s R. 56.1 Stmt. ¶ 55; UC 3583 Dep. at 123). According to UC 3583, Stewart acted as a "lookout" outside the building where the transaction took place, looking up and down Seventh Avenue. (Def.'s R. 56.1 Stmt. ¶¶ 52-53; UC 3583 Dep. at 87-88, 90-91). Stewart, however, denies playing any role-including that of a lookout-in connection with the transaction. (Pl.'s Resp. ¶¶ 42-47, 40-50, 52-53, 56-57, 62-63, 79; Stewart Dep. at 114-15).

After leaving the area, UC 3583 stopped at a bodega and radioed to the other officers that he had completed a buy. (Ders R. 56.1 Stmt. ¶¶ 56-57; UC 3583 Dep. at 97). Later, the officers met at a "re-tac" meeting where UC 3583 described the transaction to the other officers. (Def.'s R. 56.1 Stint. ¶ 58-59). UC 3583 alleges that he told the other officers at the meeting that Stewart had vouched for him and acted as a lookout. (Def.'s R. 56.1 Stmt. ¶ 59; UC 3583 Dep. at 155-56). Artino, who was at the meeting, testified that he was not told about Stewart's participation in the transaction until more than one week later. (Artino Dep. at 23-26, 28-30, 39-40).

UC 3583 subsequently prepared a written report detailing the transaction and identified Stewart from a book of photographs as a participant in the drug purchase. (Def.'s R. 56.1 Stmt. ¶¶ 60, 62; UC 3583 Dep. at 98-99). UC 3583 also told an assistant district attorney that Stewart had vouched for him and acted as a lookout. (Def.'s R. 56.1 Stmt. ¶ 66; UC 3583 Dep. at 115, 186-87).

UC 3583, Detective Jeremiah Breen ("Det.Breen"), and a chemist testified before the grand jury. (Def.'s R. 56.1 Stmt. ¶ 68; UC 3583 Dep. at 112; Stewart Dep. at 80; Supp. Decl. of Hillary A. Frommer, dated Sept. 14, 2007 ("Supp. Frommer Decl."), Ex. 0 at 37). Thereafter, on June 12, 2003, the grand jury returned an indictment charging Stewart with Criminal Sale of a Controlled Substance In or Near a School (in violation of New York Penal Law ("PL") § 220.39) and Criminal Sale of a Controlled Substance in the Third Degree (in violation of PL § 220.39(1)). (Def.'s R. 56.1 Stmt. ¶ 74). The following day, the District Attorney's Office obtained an arrest warrant: Det. Breen then arrested Stewart on June 18, 2003. (Ders R. 56.1 Stmt. ¶¶ 76-78).

*4 The witnesses at Stewart's subsequent jury trial included UC 3583, Artino, Det. Breen, and a chemist. (Frommer Decl. Ex. B; Stewart Dep. at 85). Despite their testimony, Stewart was acquitted. (Def.'s R. 56.1 Stmt. ¶ 85; Stewart Dep. at 85; Compl. ¶ 21; Answer ¶ 21). Prior to his acquittal in July 2004, Stewart was detained for thirteen months. (Compl. ¶ 22).

B. Procedural History

On February 25, 2005, Stewart filed a lawsuit ("Action No. 1") against the City of New York, Artino, Det. Breen, and UC 3583. (See Stewart v. City of N.V., 05 Civ. 2375(RMB) (Docket No. 1 (Compl.))). In his complaint in Action No. 1, Stewart sought to recover damages for false arrest, malicious prosecution, malicious abuse of process, and denial of his right to a fair trial. (Id.). On June 24, 2005, the defendants served and filed an answer in which they stated, upon information and belief, that UC 3583 had not been properly served. (See Supp. Frommer Decl. Ex. Q at 1 n. 1).

Stewart alleges that he caused UC 3583 to be served with the summons and complaint in Action No. 1 at the Homicide Investigation Unit of the District Attorney's Office, which had worked with the Police Department during the undercover narcotics investigation. (Norinsberg Decl. Ex. I (Supp. Decl. of Jon L. Norinsberg, Esq., dated Aug. 24, 2007 ("Supp. Norinsberg Decl.")), ¶ 3). Although Stewart states that this service was effected "[o]n or about February 24, 2005," (id.), there is no affidavit of service on file.1 Moreover. UC 3583 was not assigned to the District Attorney's Office at that time. Accordingly. Stewart concedes that UC 3583 could not properly have been served there.2 (Pl.'s Mein. at 15-16).

Stewart contends that he first learned in the fall of 2006 that UC 3583 had never been properly served. (Id. at 16; Supp. Norinsberg Decl. ¶¶ 4-5). When Stewart then attempted to effect service at the Police Department, service was refused because UC 3583 had retired from the force. (Supp. Norinsberg Decl. ¶ 6; UC 3583 Dep. at 4). Thereafter. Stewart attempted to subpoena the New York City Pension Board to obtain UC 3583's last known address. (Supp. Norinsberg Decl. ¶ 7). Because UC 3583 had used a pseudonym to protect his identity, even this effort proved unsuccessful. (Id.).

After failing to serve UC 3583 properly, Stewart commenced a separate action on December 27, 2006, as a "last resort." (Id. ¶ 8). That action ("Action No. 2") was assigned docket number 06 Civ. 15490. In his complaint in Action No. 2, Stewart raised the same claims as in Action No. 1 and, with the exception of Artino, named the same defendants. (Action No. 2, Docket No. 1).

On the day that Action No. 2 was filed, 1 directed the Police Department to provide Stewart's attorney with information sufficient to serve UC 3583. (See Action No. 2, Docket No. 16). I also directed Stewart to serve process on UC 3583 in Action No. 2 by February 8, 2007. (Id.).

*5 Because the information enabling Stewart to serve UC 3583 personally might reveal sensitive information concerning his whereabouts, I directed that the affidavit of service "be furnished to defense counsel, with a copy also sent to my Chambers, but [that] the affidavit of service shall not be filed." (Id.). Despite that order, it does not appear that my Chambers ever was furnished with such an affidavit. Nonetheless, UC 3583 does not dispute that he was properly served in Action No. 2. Indeed, he has interposed an answer in which he does not assert lack of personal jurisdiction as a defense.

Following the service of process on UC 3583, Stewart voluntarily dismissed all of his claims against all of the other defendants on April 10, 2007. (Action No. 1, Docket No. 17). Thereafter, Judge Herman directed that both cases be consolidated under the docket number of Action No. 2. (Docket No. 22). As a consequence, there is only one lawsuit and one defendant-UC 3583-before the Court.

Following the close of discovery, UC 3583 filed a motion for summary judgment on June 18, 2007. (Docket Nos. 8-11). Stewart filed opposition papers on August 24, 2007. (Docket Nos. 16-19). UC 3583 filed reply papers on September 14, 2007. (Docket Nos. 20-21). The matter is therefore fully submitted.

III. Discussion

A. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997). The Court also must accept as true the nonmoving party's evidence, if supported by affidavits or other evidentiary material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Fischl, 128 F.3d at 55; see also Fed.R.Civ.P. 56(e) 1963 advisory committee's note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55.

To defeat a motion for summary judgment, the nonmoving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Moreover, the moving party is not required to disprove unsupported assertions made by the nomnovant. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) (citing D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.1998)). Accordingly, c[i]f the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citing Dombrowski v. Eastland, 387 U.S. 82, 84 (1967), and First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003) (the "mere existence of a scintilla of evidence' . . . is . . . insufficient to defeat summary judgment") (quoting Anderson, 477 U.S. at 252).

B. False Arrest

*6 UC 3583 argues that Stewart's false arrest claim is time barred because (a) Stewart never served UC 3583 in Action No. 1 and (b) service of process in Action No. 2 occurred after the expiration of the statute of limitations. (Def.'s Mem. at 10-12). In that regard, Rule 4(m) of the Federal Rules of Civil Procedure ("Rule 4(m)") generally requires a plaintiff to effect service of the summons and complaint within 120 days after a suit is commenced. Consequently, because Stewart commenced Action No. 1 by the filing of his complaint on February 25, 2005, service had to be effected on or before June 27, 2005, to be timely. Here, it is undisputed that Stewart did not meet this deadline.

In an attempt to overcome his lengthy delay, Stewart argues that UC 3583 waived any objections to improper service by purposely waiting until after the statute of limitations had run before moving for the dismissal of his false arrest claim. (Pl.'s Mein. at 11). This argument is unpersuasive for at least three reasons. First, because Stewart's counsel never filed an affidavit of service in Action No. 1, he had reason to know that his process server's attempt to serve UC 3583 was ineffective. (See supra note 2). Second, the Assistant Corporation Counsel assigned to this matter did not sandbag Stewart. Rather, she disclosed in the answer in Action No. 1, filed on June 24, 2005, that UC 3583 had not been properly served. (See Supp. Frommer Decl. Ex. Q at 1 n.1; PL's Mem. at 11 n.1). Finally, at the time that Action No. 2 was filed in late 2006, the conventional wisdom was that a false arrest claim under Section 1983 accrued when the plaintiff's criminal case was dismissed. See Covington v. City of N.Y., 171 F.3d 117, 124 (2d Cir.1999) ("[I]f `success on § 1983] claim would necessarily imply the invalidity of a conviction in a pending criminal prosecution, such a claim does not accrue so long as the potential for a judgment in the pending prosecution continues to exist.' ") (quoting Smith v. Holtz, 87 F.3d 108, 113 (3d Cir.1996) (second brackets in original)). Accordingly, Corporation Counsel would have had no reason to obscure the fact that UC 3583 had not been served since both sides evidently thought that the statute of limitations would not expire until July 2007 at the earliest.3

Notwithstanding Stewart's failure to demonstrate good cause for his failure to effect timely service, the Court may extend the Rule 4(m) deadline in the exercise of its discretion. Zapata v. City of N. Y., 502 F.3d 192, 197 (2d Cir.2007). As the Second Circuit has recently noted, however, a court is not required to grant an extension in the absence of good cause. Id.; see also Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.2002) ( "[T]he fact that the balance of hardships favors the plaintiff does not require the district judge to excuse the plaintiff's failure to serve the complaint and summons within the 120 days provided by the rule."). In this case, whether Mr. Norinsberg learned that his attempt to serve UC 3583 was defective through the defendants' answer on June 24, 2005, or, as he maintains, in the fall of 2006, it is undisputed that he failed to ask the Court to extend the deadline to serve UC 3583 until he filed his papers in opposition to the present summary judgment motion in August 2007. This was nearly one year after he acknowledges learning that UC 3583 had not been served, and more than two years after the City so stated in its answer. Although Mr. Norinsberg admittedly resorted to the filing of Action No. 2 in the interim, it is undisputed that this, too, was ineffective because the three-year statute of limitations for Stewart's false arrest claim had expired before that action was filed.4 Accordingly, the commencement of Action No. 2 was essentially a nullity with respect to the timeliness of Stewart's false arrest claim.

*7 In these circumstances, because Stewart took no steps to extend the Rule 4(m) deadline for service within a reasonable time after its expiration, the Court declines to grant at this late date a nunc pro tunc extension of his time to do so in Action No. 1. See Zapata, 502 F.3d at 199 (affirming dismissal of claim under Rule 4(m) where plaintiff "neglected to ask for an extension within a reasonable period of time, and . . . advanced no cognizable excuse for the delay"); Bogle-Assegai v. Connecticut, 470 F.3d 498, 508 (2d Cir.2006) (claim properly dismissed under Rule 4(m) where, "despite having been informed that [defendants] objected to the improper service . . ., [plaintiff] never attempted to remedy the defect by asking the district court to extend her time to effect personal service").

Finally, the statute of limitations for a false arrest claim may be equitably tolled in appropriate circumstances. For equitable tolling to apply, a plaintiff must establish the existence of "rare and exceptional circumstances" and that he acted "with reasonable diligence" throughout the period sought to be tolled. See, e.g., Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.2004). Here, for the reasons previously cited, Stewart has established neither the existence of such circumstances nor reasonable diligence. Accordingly, he is not entitled to equitable tolling.

Stewart's false arrest claim therefore is dismissed as time barred.

C. Malicious Prosecution

To establish malicious prosecution under Section 1983, a plaintiff "must demonstrate conduct by the defendant that is tortious under state law and that results in a constitutionally cognizable deprivation of liberty." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.2003). In New York, to make out a prima facie case of malicious prosecution, a plaintiff must show: "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Id. It is undisputed that the state criminal case was terminated in Stewart's favor. Accordingly, the question is whether Stewart can satisfy the remaining three elements of his malicious prosecution claim.

Because the grand jury returned an indictment against Stewart, UC 3583 obviously did not file the charges that led to Stewart's arrest. Nonetheless, the first element of the tort of malicious prosecution may be satisfied by proof that a law enforcement officer's actions, although indirect, "cause[d] the initiation of criminal process against the plaintiff." Phelps v. City of N.Y., No. 04 Civ. 8570(DLC), 2006 WL 1749528, at *4 (S.D.N.Y. June 27, 2006); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.1997) (officer initiated the prosecution where he did "not directly file [ ]" the charges, but played an "instrumental" role by forwarding information to the prosecutors). Stewart contends that UC 3583 played such a pivotal role because he falsely stated to the prosecutor and grand jury that Stewart participated in the drug transaction by acting as a voucher and lookout. (See Def.'s R. 56.1 Stmt. ¶¶ 66, 68; UC 3583 Dep. at 112, 115, 186). In that regard, it apparently is undisputed that UC 3583 provided the information to the district attorney's office and grand jury that led to Stewart's indictment and subsequent arrest. A reasonable juror consequently could find that UC 3583 initiated the criminal proceedings against Stewart. The first element of a prima facie malicious prosecution claim therefore has been satisfied. See Richardson v. City of N.Y., No. 02 CV 3651(JG), 2006 WL 2792768, at *5 (E.D.N.Y. Sept. 27, 2006) (officer initiated prosecution where he "passed [fabricated] evidence along to the . . . District Attorney's office, and . . . as a result [plaintiff] was indicted and prosecuted"); Chimurenga v. City of N.Y., 45 F.Supp.2d 337, 343 (S.D.N.Y.1999) (under the plaintiff's version of the facts, if the defendant "provid[ed] false information . . . that influence[d] a decision whether to prosecute, he may be held liable for malicious prosecution"): see also Williams v. City of N.Y., No. 05 Civ. 10230(SAS), 2007 WL 2214390, at *6 (S.D.N.Y. July 26, 2007) (defendant officer is liable for malicious prosecution where he "creates false information likely to influence a jury's decision and forwards that information to prosecutors") (internal quotation marks and citations omitted).

*8 The next disputed element of a malicious prosecution claim requires Stewart to show that there was no probable cause to prosecute him. A grand jury indictment gives rise to a presumption of probable cause; consequently, to overcome that presumption, Stewart must show that UC 3583 made an incomplete statement to the authorities or grand jury, withheld, falsified, or misrepresented evidence, or otherwise acted in bad faith. Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d Cir.2004) (quoting Colon v. City of IV. Y., 60 N.Y.2d 78, 82-83 (1983)). Here, of course, Stewart contends that he played no role in the drug transaction, a position that stands in stark contrast to UC 3583's testimony that Stewart not only vouched for him, but also acted as a lookout. While the tape recorded conversation casts considerable doubt on Stewart's suggestion that he was not a voucher, a jury could conceivably conclude that Stewart's undisputed statements did not rise to the level necessary for him to become a party to any drug deal. Similarly, if a jury chooses to credit Stewart rather than UC 3583, it could find that UC 3583 lied when he told the district attorney's office and the grand jury that Stewart acted as a lookout. For these reasons, the Court cannot say as a matter of law that there was probable cause for Stewart's arrest. See Boyd v. City of N.Y., 336 F.3d 72, 77 (2d Cir.2003) (taking as true plaintiff's version as to the timing of his arrest, "there is sufficient evidence to support the inference that the indictment was secured by bad faith conduct on the part of the police to defeat summary judgment"); Reid v. N.Y., County Dist. Attorney Marrinaccio, No. 00 Civ. 5164(RCC)(JCF), 2004 WL 1488194, at *6 (S.D.N.Y. July 1, 2004) ("[B]ecause there exists competing affidavits from [an exculpatory witness] and Defendant, there is, at a minimum, a factual issue that precludes granting summary judgment on the malicious prosecution claim."); see also Winn v. McQuillan, 403 F.Supp.2d 292, 293 (S.D.N.Y.2005) (when plaintiff provides evidence that the indictment may have been based on defendant's false grand jury testimony, he can overcome the probable cause presumption): cf. Matheis v. Fritton, 128 Fed. Appx. 787, 791 (2d Cir.2005) (plaintiff failed to rebut the presumption of probable cause created by the grand jury indictment where he did not allege that defendant lied during his grand jury testimony).

This case is therefore a far cry from Scott v. Harris, 127 S.Ct. 1769 (2007), a case cited by UC 3583, in which the Supreme Court upheld the granting of summary judgment on the basis of a videotape. In that case, the plaintiff's allegation that he was abiding by traffic laws and in complete control of his car was contradicted by video footage showing him driving erratically at speeds described as "shockingly fast," while making "hazardous maneuvers" to evade the police. Scott, 127 S.Ct. at 1775. Here, by comparison, the issue is not what Stewart said, but what he intended. Unlike the speed of a car, the meaning behind Stewart's statements is not capable of being captured on a videotape or audiotape. Scott therefore does not compel the conclusion that a jury could not reasonably accept Stewart's version of the events surrounding UC 3583's drug purchase.

*9 The final element of a malicious prosecution claim is malice, which exists whenever a police officer presses a criminal prosecution in bad faith with "something other than a desire to see the ends of justice served." Brogdon v. City of New Rochelle, 200 F.Supp.2d 411, 423 (S.D.N.Y.2002) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03 (1978)). When probable cause is totally lacking, malice may be inferred. Boyd, 336 F.3d at 78 ("Once we find an issue of material fact as to probable cause, the element of malice also becomes an issue of material fact as well."); Ricciuti, 124 F.3d at 131 ("[L]ack of probable cause generally raises an inference of malice sufficient to withstand summary judgment."). Consequently, if the jury credits the testimony of Stewart, and rejects that of UC 3583, it clearly could find that UC 3583 acted with malice.

If follows that UC 3583 is not entitled to summary judgment with respect to Stewart's malicious prosecution claim.

D. Malicious Abuse of Process

A defendant is liable for malicious abuse of process when he "(1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Savino v. City of N. 331 F.3d 63, 76 (2d Cir.2003) (citing Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994)). Although malicious prosecution and abuse of process are closely related, malicious prosecution concerns the improper issuance of process, whereas "the gist of abuse of process is the improper use of process after it is regularly issued." Cook, 41 F.3d at 80 (citation omitted and emphasis added); Jones v. Maples Trump, No. 98 Civ. 7132(SHS), 2002 WL 287752, at *7 (S.D.N.Y. Feb. 26, 2002).

Stewart alleges that the factual issues that preclude summary judgment on his other claims also compel the denial of summary judgment on his abuse of process claim. (Pl.'s Mem. at 27). However, to prevail on his malicious abuse of process claim, Stewart must establish that UC 3583 sought to bring about a collateral objective separate and distinct from any malicious intent to initiate proceedings against him. See Savino, 331 F.3d at 77; Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984) ("A malicious motive alone . . . does not give rise to a cause of action for abuse of process."). Thus, the collateral objective must arise after process has issued. See Jovanovic v. City of N. Y., No. 04 Civ. 8437(PAC), 2006 WL 2411541, at *11 (S.D.N.Y. Aug. 17, 2006); Lopez v. City of N. Y., 901 F.Supp. 684, 691 (S.D.N.Y.1995).

Assuming that UC 3583 acted maliciously in instigating Stewart's prosecution, Stewart still has failed to allege any purpose "beyond or in addition to his criminal prosecution" which might support the collateral objective element of his malicious abuse of process claim. In the absence of such proof, UC 3583 therefore is entitled to summary judgment on that claim. See Savino, 331 F.3d at 77; Mangano v. Cambariere, No. 04 Civ. 4980(GAY), 2007 WL 2846418, at *5 (S.D.N.Y. Sept. 27, 2007); Taylor v. City of N.Y., No. 03 Civ. 6477(RLC), 2006 WL 1699606, at *7 (S.D.N.Y. June 21, 2006): Webster v. City of N.Y., 333 F.Supp.2d 184, 208 (S.D.N.Y.2004).

E. Right to a Fair Trial

*10 UC 3583 next argues that he is entitled to summary judgment on Stewart's right to a fair trial claim. (Def.'s Mein. at 22-23). "[W]hen a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983." Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir.2003) (quoting Ricciuti, 124 F.3d at 130): see also Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir.2000) (recognizing a constitutional "right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity").

Viewing the evidence in the light most favorable to Stewart, there is, at a minimum, a question of fact as to whether UC 3583 falsely told an assistant district attorney and the grand jury that Stewart had acted as a lookout on the day of the drug sale. UC 3583 therefore is not entitled to summary judgment with respect to Stewart's right to a fair trial claim. See Jocks, 316 F.3d at 138 ("Although there was certainly not overwhelming evidence of falsification, a reasonable jury would be entitled to credit [plaintiff's] testimony and reject [defendant's]."); Zahrey, 221 F.3d at 352-54 (where fabricated evidence was put before a grand jury, "it was at least reasonably foreseeable that . . . [defendant] would be indicted and arrested"); Ricciuti, 124 F.3d at 130 (summary judgment denied where "a reasonable jury could find . . . that defendants . . . foward[ed] to prosecutors a known false confession almost certain to influence a jury's verdict"). Moreover, it is undisputed that Stewart suffered a serious deprivation of liberty, having spent thirteen months in jail before his acquittal. (Compl. ¶ 22); see also Henry v. City of N.Y., No. 02 Civ. 4824(JSM), 2003 WL 22077469, at *4 (S.D.N.Y. Sept 8, 2003) (summary judgment inappropriate where "it is a question of fact whether Plaintiff's deprivation of liberty (his incarceration between his arrest and his release) was caused by the fabrication of evidence").

F. Qualified Immunity

UC 3583's final contention is that he is entitled to qualified immunity, and therefore summary judgment, with respect to each of Stewart's claims. (Def.'s Mem. at 23-24). Qualified immunity attaches when a constitutional right would have been violated on the facts alleged, but it was objectively reasonable for a defendant to believe that those actions did not violate clearly established law. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.2007) (quoting Saucier, 533 U.S. at 202) (emphasis omitted).

*11 By the date of Stewart's arrest, it was clearly established that an individual has a right not to be arrested or prosecuted without probable cause. Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000). Accordingly, it would have been objectively unreasonable for UC 3583 to assist in the arrest and prosecution of Stewart unless he had reason to believe that Stewart had participated in a drug transaction. Because a reasonable jury could accept Stewart's claim that he played no role in the drug transaction, and that there consequently was no probable cause, UC 3583 is not entitled to summary judgment on the basis of qualified immunity. See, e.g., McClellan v. Smith, 439 F.3d 137, 148 (2d Cir.2006) (reversing grant of summary judgment on qualified immunity grounds where the record reflected "many conflicting versions" of the relevant facts): Taylor, 2006 WL 1699606, at *7 (defendant officer not entitled to summary judgment regarding qualified immunity defense where, "relying on plaintiff's version of the facts, a rational jury could conclude that officers of reasonable competence would not be able to find that probable cause existed").

IV. Conclusion

For the reasons set forth above, UC 3583's motion for summary judgment (Docket No. 8) is granted with respect to Stewart's false arrest and malicious abuse of process claims, but denied with respect to all other claims.

Additionally, in light of this disposition, the Court will hold a telephone conference on April 15, 2008, at 11 a.m. Mr. Norinsberg should initiate the call.

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2008 WL 1699797

Attorneys and Law Firms

James B. Brown, Catskill, NY, pro se.

Jonathan M. Bernstein, Goldberg. Segalla Law Finn, Albany, NY, for Defendants.

DECISION & ORDER

THOMAS J. McAVOY, Senior District Judge.

I. INTRODUCTION

*1 Plaintiff James R. Brown, proceeding pro se, commenced this action on April 26, 2012. The complaint alleges claims against the defendants pursuant to 42 U.S.C. § 1983 sounding in false arrest and malicious prosecution.1 Now before the Court is Defendants' motion pursuant to Federal Rule of Criminal Procedure 12(b)(6) seeking to dismiss the complaint in its entirety. See Mot., dkt. 12. Plaintiff opposes that much of the motion seeking to dismiss the claims against the Hudson Police Department, but asserts that he has withdrawn the claims against Defendant Rowe "because plaintifffls conviction [stemming from the arrests by Rowe] remains intact." Pl. Opp. Aff. ¶¶ 7-8, dkt. # 17. Plaintiff states that he intends to pursue post-conviction remedies to have his convictions vacated, and then will reassert the claims against Rowe. Id. He argues that dismissal of the claims against Rowe should, therefore, be without prejudice. Defendants argue that the dismissal should be with prejudice because there exists other valid reasons for the dismissal of these claims that cannot be cured by re-pleading. See Reply MOL, pp. 1-2.

II. STANDARD OF REVIEW

"Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. " [T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.' Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S.Ct. at 1949. Legal conclusions must be supported by factual allegations. Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief" Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).

III. DISCUSSION

a. Claims Against Dean Rowe

*2 As indicated above, Plaintiff concedes that he cannot sustain any claims against Rowe (Causes of Action One through Four) because his convictions arising from Rowe's arrests remain intact. Pl. Aft, ¶ 7. Plaintiff is correct that the claims are subject to dismissal. The subsequent convictions necessarily indicate that there existed probable cause to arrest plaintiff, and any malicious prosecution claim is barred because the prosecutions did not end favorably to plaintiff See Williams v. City of New York, 368 Fed. Appx. 263, 264 (2d Cir. March 08, 2010);2 Pooler v. Hempstead Police Dept. ___ F.Supp.2d ___, 2012 WL 4060743, at *5 (E.D.N.Y. Sept.14, 2012);3 see also See Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 593, 160 L.Ed.2d 537 (2004);4 Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.2010);5 Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006).6 Moreover, the claims "are barred by the favorable termination doctrine articulated in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)." Williams, 368 Fed. Appx. at 264;7 see Younger v. City of N.Y., 480 F.Supp.2d 723, 730 (S.D.N.Y.2007).8 Thus, plaintiff's claims against Rowe must be dismissed.

To the extent that the parties argue over whether the dismissal should be with or without prejudice, plaintiff's decision to withdraw the claims is not dispositive of this issue. Rather, the Court looks to the other arguments presented for dismissal to determine whether the claims may be re-pleaded if plaintiff is able to vacate his convictions.9

1. First and Second Causes of Action

All of the allegations in the Complaint are brought pursuant to 42 U.S.C. § 1983 alleging deprivations of plaintiffs federal constitutional rights. See generally Compl.: see also Pl. Aff., § 9 (attesting that he brings claims under § 1983 only. not under state law). The First and Second Causes of Action sound in false arrest based on a May 2011 arrest by Rowe accusing plaintiff of possessing a stolen laptop computer. See Compl ¶¶ 6-9, 16-19. Defendants argue that Rowe is entitled to qualified immunity on the claims in the First and Second Causes of Action. The Court agrees.

While qualified immunity is usually not susceptible to resolution at the Rule 12(b)(6) stage, the allegations in the Complaint and its attachments demonstrate that Rowe is entitled to this immunity on these claims. Attached to the Complaint is a sworn deposition from Brandon Santos. Compl. ex. B. Santos attests that he purchased the stolen laptop computer from an individual outside of a bar in the City of Hudson. Id. Santos had purchased other "stuff' from the seller before, and described the seller as an African America male "in his forties about 6'1" or 6'2" maybe 180 pounds" with a scar on his face. Id. In the arrest report, also attached to the Complaint, Plaintiff is described as a male, age 45, Black, 5'10", 180 pounds, with a scar near his left eyebrow. Id. Santos further attests that he "picked out the black guy who sold me the computer in four different [Police Department mug shot] pictures." Id.

*3 Also attached to the Complaint is a sworn statement by plaintiff Compl. ex. A. In this, plaintiff attests, inter alia, that when questioned by Rowe about the stolen laptop, plaintiff stated that he had previously helped two people "sell their computers . . . so that they [could] buy drugs," but that he did not "recall seeing" the laptop in question (Rowe showed plaintiff a picture of the stolen laptop), that he would "need a few days to think about it," and that if he "didn't get back to [Rowe], that is to be taken to mean that [he had] no" involvement with the laptop. Compl. Ex. A.

Based on Santos' identification of an individual matching plaintiffs description as the seller of the stolen laptop, Santo's selection of plaintiff's picture from the Police Department's mug shots, and plaintiff's statement that he had aided in the sale of other computers to help with drug purchases, Rowe had, at the least, arguable probable cause to arrest plaintiff for possessing stolen property. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir.2009);10 see also Coons v. Casabella, 284 F.3d 437, 441 (2d Cir.2002);11 Hahn v. County of Otsego, 820 F.Supp. 54, 55 (N.D.N.Y.1993),12 aff'd, 52 F.3d 310 (2d Cir.1995). Indeed, reasonable officers objectively viewing the available evidence could have believed that they had probable cause to arrest plaintiff for possessing the stolen laptop and selling it to Santos outside the bar in the City of Hudson. Thus, even if plaintiff were to invalidate his conviction on these charges,13 Rowe is still entitled to qualified immunity. Accordingly, the First and Second Causes of Action are dismissed with prejudice.

2. Third Cause of Action

The Third Cause of Action arises from an April 9, 2007 arrest for stealing a purse. The charge was resolved by Plaintiff's guilty plea to "reduced charges" on July 9, 2007. See Compl. ¶¶ 22-27. Plaintiff asserts that Rowe secured his arrest by false testimony to a judge to obtain an arrest warrant, compl. 1123, and that Rowe committed perjury at the subsequent preliminary hearing by falsely testifying that plaintiff confessed to haven stolen the purse and that the Police Department possessed a video tape of plaintiff stealing the purse. Compl ¶ 25.

Inasmuch as plaintiff asserts that he was "arrested and jailed" on April 9, 2007 based upon the arrest warrant that Rowe purportedly obtained under false pretenses, the Court presumes that plaintiff was arraigned on the charge at the time he was "jailed." Consequently, Plaintiff's claim for false arrest arising from the April 9, 2007 arrest accrued on April 9, 2007. See Wallace v. Kato, 549 U.S. 384, 397, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).14 Plaintiff failed to institute this action within 3 years of the accrual of this false arrest claim, see Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997),15 and he fails to present a meritorious argument to toll the expiration of the statute of limitations. Accordingly, the false arrest claim contained in the Third Cause of Action is barred by the statute of limitations and must be dismissed with prejudice.

*4 Plaintiff's claim of malicious prosecution in the Third Cause of Action is also barred by the statute of limitations. Plaintiff knew or had reason to know of the injury that is the basis of the malicious prosecution claim by July 9, 2007 when he was allegedly "forced to plead out to get out of jail," Compl. ¶ 27, at which time any malicious prosecution claim accrued. See Dellutri v. fillage of Elmsford, ___ F.Supp.2d ___, 2012 WL 4473268, at *5 (S.D.N.Y. Sept. 18, 2012).16 Because the action was not commenced within three years of the accrual of any malicious prosecution claim contained in the Third Cause of action, it too must be dismissed with prejudice.

3. Fourth Cause of Action

The Fourth Cause of Action is nothing more than a reiteration of plaintiff's claims continued in the first three Causes of Action against Rowe, and amounts merely to a general complaint against Rowe without any specific theory of liability other than asserted in the first three Causes of Action. Accordingly, the Fourth Cause of Action is dismissed with prejudice.

b. Claims against the Hudson New York Police Department

1. Police Department as a Proper Defendant

The Court next addresses plaintiffs claims against the Hudson New York Police Department. Defendants correctly note that the Hudson Police Department is not an entity subject to suit under New York law. See In re Dayton, 786 F.Supp.2d 809, 818 (S.D.N.Y.2011);17> Moffett v. Town of Poughkeepsie, 2012 WL 3740724, at *1, n. 1 (S.D.N.Y. Aug.29, 2012);18 Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y.2002).19 Because [1] Defendants have opted to argue the dismissal motion pertaining to the Hudson New York Police Department ("Police Department") as if it were a properly sued entity, reserving their right to seek dismissal if the claims against the Police Department survive, see Def. MOL p. 17, fn. 2; RI the Second Circuit has directed district courts to grant leave to pro se litigants to allow them to amend their pleadings in such circumstances to name the municipality in which the police department sits as the real party in interest, see Morris v. New York City Police Dept., 59 Fed. Appx. 421, 422-23 (2d Dept.2003); and [3] the Court is required to read pro se complaints liberally and as raising the strongest legal argument that they suggest, the Court will substitute the City of Hudson ("the City") for the Police Department for purposes of this motion only.

2. Monell—Background & Claims

Plaintiffs claims against the City arise from his several arrests by unnamed Hudson Police officers for violating the loitering-begging statute, N.Y. Penal L. 240.35(1).20 In this regard, plaintiff was first arrested for violating this statute on April 19, 2009. After he was arrested, he was found to be in possession of controlled substances and charged accordingly. On June 17, 2009, the Hudson City Court dismissed the loitering-begging charge because the statute had been declared "unconstitutional as violative of First Amendment protections of free speech" by the Second Circuit in Loper v. New York City Police Dept., 999 F.2d 699 (2d Cir.1993). See Hudson City Ct. 6/17/09 Op. in People v. Brown, attached to Compl. as ex. D. The Hudson City Court also dismissed the additional charges as the fruits of an unconstitutional arrest. Id.

*5 On June 1, 2010, plaintiff was again arrested for violating the loitering-begging statute, and was also charged with criminal possession of a controlled substance and possession of a hypodermic unent. These charges were dismissed on November 23, 2010. See Compl. ex. C.

The New York loitering-begging statute was repealed by New York State effective July 30, 2010. See N.Y. Penal L. § 240.35 (McKinney's 2010). Plaintiff was arrested on September 15, 2010, again for violating the loitering-begging statute on two separate occasions, September 8 and 15, 2010. He was arraigned on September 23, 2010 at which time the charges were dismissed. Compl. ex. A.

Plaintiff asserts as his Fifth Cause of Action that on April 19, 2009, the City of Hudson "wrongfully arrested plaintiff for violation of Penal Law 240.35(1)" in deprivation of his "First Amendment rights." Compl. ¶ 36. In the Sixth Cause of Action he asserts that the City of Hudson "wrongfully arrested plaintiff a second time for the same loitering-begging offense." Id. ¶ 39. With regard to this second arrest. Plaintiff asserts that because "defendant" had already been advised that the statute was unconstitutional, his arrest violated his First, Fourth, and Fourteenth Amendment rights. Compl. ¶¶ 40-41. In the Seventh Cause of Action, plaintiff asserts that the City of Hudson "did wrongfully arrest [him] two more times on the loitering/begging offenses . . . knowing that the arrests were patently illegal . . . show[ing] defendant's gross disregard and deliberate indifference to plaintiff's right to due process and equal protection of law." Id. ¶¶ 42-43. In the Eighth Cause of Action, Plaintiff asserts that "defendants [sic ] did instigate and practice a policy of deliberate indifference by systematically and repeatedly arresting plaintiff for violating a New York penal law (240.35(1)), they [sic] knew had been declared unconstitutional." Id. ¶ 45.21 Plaintiff does not present a cognizable claim that would constitute a Ninth Cause of Action. See Compl. & fn. 15, supra. The Tenth Cause of Action asserts "[t]hat at all times hereinafter mentioned, the cause of actions alleged in One through Nine supra, did directly cause plaintiff substantial harm and did injure plaintiff in a significant manner and directly caused plaintiff's repeated arrests." Compl. ¶ 48.

2. Fifth, Sixth, and Seventh Causes of Action

A municipality cannot be held liable under Section 1983 solely on a theory of respondeat superior. Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, a Section 1983 claim can only be brought against a municipality if the action that is alleged to be unconstitutional was the result of an official policy or custom. Id. at 690-91. A plaintiff must allege that such a municipal policy or custom is responsible for his injury. Bd. of Cnty. Commis. of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see also Connick v. Thompson, ___ U. S. ___, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011).22 "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell." Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

*6 Plaintiff does not assert in the Fifth, Sixth, or Seventh Causes of Action that a policy or practice by the City of Hudson caused him injury. Rather, he asserts what sounds to be respondeat superior claims for the identified arrests in each of these Causes of Action. Further, the Fifth and Sixth Causes of Action concern individual arrests, and the Seventh Cause of Action concerns two individual arrests without an allegation that the arrests were the result of a municipal policy or practice. Thus, the Fifth, Sixth, and Seventh Causes of Action are dismissed for failure to plead a plausible claim that a policy or practice caused a constitutional deprivation.

3. Eighth Cause of Action

In the Eighth Cause of Action, Plaintiff asserts in conclusory fashion that his several arrests for violating the loitering statute were caused by a policy or practice of the Police Department. He does not identify what the policy was, whether it was applied to others, or whether his arrests were the results of individual decisions by the unnamed arresting officers. Nevertheless, under the circumstances alleged in the Complaint which assert that Plaintiff was repeatedly arrested for violating a statute that was known to be invalid, plaintiff presents a plausible Monell claim sounding in the failure to train or supervise the Police Department's officers in the proper and justifiable bases for arrests. See Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 440 (2d Cir.2009).23 Because the Eighth Cause of Action names an improper party, the claim will be dismissed with leave to re-plead against the proper party.

4. Ninth and Tenth Causes of Action

The Ninth Cause of Action fails to set forth a plausible Monell claim and, therefore, is dismissed. The Tenth Causes of Action appears to be an attempt to combined all of the allegation in the Complaint into a naked assertion of liability. This is insufficient and fails to set forth a plausible Monett claim. It, too, is dismissed.

IV. CONCLUSION

For the reasons set forth above. Defendants" motion to dismiss [dkt. # 12] is GRANTED. All claims against Defendant Dean Rowe are DISMISSED WITH PREJUDICE. All claims against the Hudson New York Police Department are DISMISSED. Because the Hudson New York Police Department is not a proper party, Plaintiff is entitled to re-plead these claims against the proper party. if Plaintiff intends to re-plead using the instant civil action number, he must file a new complaint within thirty (30) days of the date of this Decision and Order. If he fails to do so, the Clerk of the Court shall close this file. If plaintiff files a new complaint, he must understand that it will completely supersede the now-dismissed complaint and he cannot incorporate by reference any allegations contained in the now-dismissed Complaint. Further, plaintiff must effect service of process of the new complaint and a summons on the newly-named defendant.

*7 IT IS SO ORDERED

All Citations

Not Reported in F.Supp.2d. 2012 WL 5449588

Attorneys and Law Firms

James Forbes, Ossising, NY, pro se.

Richard Bahrenburg, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, District Judge

*1 I. INTRODUCTION

Plaintiff James Forbes, proceeding pro se and in forma pauperis, brings this lawsuit against the City of New York and Sergeant Patrick Romain, alleging violations of his constitutional rights in connection with Plaintiff's arrest on June 15, 2011 for criminal possession of stolen property, criminal trespassing, and attempted petit larceny. All three charges were dismissed by the Criminal Court of the City of New York, County of New York, on November 23, 2011. Defendants now move to dismiss all of Plaintiff's claims as time-barred, arguing that Plaintiff simply waited too long to bring this lawsuit. For the reasons stated below, Defendants' motion is GRANTED, and Plaintiff is given leave to file a third amended complaint with respect to his claim for malicious prosecution against Sergeant Romain.

II. BACKGROUND

Plaintiff's initial complaint in this matter alleges that it was delivered to prison authorities on September 9, 2015. Dkt. No. 2 at 7.1 The complaint named as defendants the New York City Police Department ("NYPD") and a "John Doe" police officer, "Shield # 937424." Id. at 1. The complaint appears to have been signed by Plaintiff on September 9, 2014, and was filed along with a letter from Plaintiff to the Court's Pro Se Office, dated February 6, 2015. The letter annexed to the complaint states that Plaintiff had initially filed his complaint in September 2014, but he never received a "case number," and "was told to resubmit the documents again." Letter, dated Feb. 6, 2015, annexed to Complaint. The letter also states that Plaintiff suffers from brain cancer, which "doesn't allow [him] to remember half of what [he] need[s] to remember." Id.

by an incarcerated individual is "filed" when "delivered

to prison officials for transmittal to the court." Daly v.

Ryan, 999 F.2d 679, 682 (2d Cir. 1993).

On September 2, 2015, the Court issued an order dismissing Plaintiff's claims against the NYPD on the grounds that the NYPD is an agency of the City of New York that cannot be sued. Dkt. No. 8 at 1-2. The Court's order also directed the Clerk of Court to amend the caption of this action to replace the NYPD with the City of New York. Id. at 2. Finally, as relevant here, the Court's September 2, 2015 order directed the City of New York to identify the "John Doe" officer Plaintiff was seeking to sue, pursuant to I"alentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997). Id. at 2-3.

Plaintiff thereafter filed an amended complaint. Dkt. No. 9. Plaintiff's amended complaint named as defendants the City of New York and "Police Officer John Doe Shield # 937424." Id. at 1-2. By letter dated November 2, 2015, Corporation Counsel for the City of New York informed Plaintiff and the Court that the individual identified by Plaintiff as a John Doe officer is Sergeant Patrick Romain. Shield # 5132. Dkt. No. 12. Plaintiff then filed a second amended complaint, which is nearly identical to the first amended complaint, except that it names "Sergeant Patrick Romain Shield 5132" as a defendant in place of the John Doe officer named in the first amended complaint. Dkt. No. 19 at 2.

*2 Plaintiff's original complaint alleged that on June 15, 2011, he double-parked his car outside of a restaurant on the corner of Delancey Street and Allen Street in New York City in order to use the restroom and that on the way out of the restaurant, he was arrested for "criminal possession of stolen property," "criminal trespassing," and "attempted petit larceny." Dkt. No. 2 at 3.2 The amended complaint and second amended complaint repeat these allegations, in sum and substance, but provide some additional detail surrounding the incident underlying this action. In particular, the second amended complaint alleges that, upon exiting the restaurant, Plaintiff was "unlawfully arrested, excessively restrained by being placed in tightly applied handcuffs, unlawfully seized and then searched, unlawfully detained and incarcerated . . . [and] thereafter . . . maliciously prosecuted." Dkt. No. 19 at 4. Liberally construing Plaintiff's filings to raise the strongest arguments they suggest, Plaintiff arguably asserts claims for false arrest, excessive force, unlawful search, and malicious prosecution. Defendants now move to dismiss Plaintiff's claims as time-barred, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 28.

III. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). It is not enough for a plaintiff to allege facts that are consistent with liability: the complaint must "nudge" claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. The court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). Legal conclusions, unlike facts, are not entitled to an assumption of truth. Iqbal, 556 U.S. at 679. A complaint that offers "labels and conclusions" or "naked assertion[s]" without "further factual enhancement" will not survive a motion to dismiss. Id. at 678 (citing Twombly, 550 U.S. at 555).

Furthermore, "[a] document filed pro se is to be liberally construed . . . and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Courts are to "liberally construe pleadings and briefs submitted by pro se litigants . . . reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007).

IV. DISCUSSION

The Court notes at the outset that, during a January 15, 2016 telephone conference, the Court "directed that defendants' anticipated motion to dismiss on statute of limitations grounds should address plaintiff's allegation that he submitted a complaint in September 2014." Order, dated February 25, 2016 (Dkt. No. 25). In their motion papers, Defendants do not mount a challenge to the notion that Plaintiff's complaint should be deemed filed as of September 2014; rather, they argue that, even if the complaint were filed as of that time, all of Plaintiff's claims are still untimely. As noted, Plaintiff averred in his original complaint that he delivered the complaint to prison authorities on September 9, 2015. "It is well-settled. . . that the date of filing a federal complaint by a pro se prisoner is, for statute of limitations purposes, the date of delivery to prison authorities." Walker v. Jastremski, 430 F.3d 560, 562 n. 1 (2d Cir. 2005) (citing Dory, 999 F.2d at 682). For non-incarcerated individuals, the date a complaint is "filed" is governed by the Federal Rules of Civil Procedure. Rule 3 provides that a "civil action is commenced by filing a complaint with the court." Rule 5(d) provides that a "paper is filed by delivering it . . . to the clerk[ ] or to a judge who agrees to accept it for filing, who must then note the fling date on the paper and promptly send it to the clerk." Plaintiff states in his opposition that he "placed" the "original complaint . . . in the mailbox on Rikers Island." Pl. Opp., Dkt. No. 43, at 13. The Court will therefore proceed with the understanding, but without concluding, that Plaintiff's original complaint was filed in September 2014. This issue can be revisited, if necessary, as this case proceeds. In any event, because Plaintiff's claims are either untimely or fail to state a claim, the Court finds it appropriate to analyze the timeliness of Plaintiff's claims within the rubric of Defendant's arguments, which assume for purposes of this motion that the complaint was filed as of September 2014.

*3 Given that Plaintiffs claims all allege deprivation of rights guaranteed by the Constitution remediable in an action under 42 U.S.C. § 1983, the Court begins with the observation that "Section 1983 does not provide a specific statute of limitations. Thus, courts apply the statute of limitations for personal injury actions under state law." Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); accord Dory, 999 F.2d at 681 ("The statute of limitations for actions under § 1983 is the statute of limitations applicable to personal injuries occurring in the state in which the appropriate federal court sits."). In New York, the limitations period for personal injury actions is three years. See N.Y. C.P.L.R. § 214(5). As a result, the statute of limitations for § 1983 cases filed in New York is three years. See, e.g., Dory, 999 F.2d at 681 (same); Quezada v. Roy, No. 14-cv-4056 (CM), 2015 WL 5970355, at *14 (S.D.N.Y. Oct. 13, 2015) (same). "However, federal law governs the determination of the accrual date (that is, the date the statute of limitations begins to run) for purposes of statute of limitations in a section 1983 action.Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). "[T]he statute of limitations accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action.' Id. (quoting Singleton v. City of New York, 632 F.2d 195, 191 (2d Cir. 1980)); accord Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) ("Federal law determines when a section 1983 cause of action accrues . . . and [the Second Circuit] ha[s] ruled that accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action.") (internal citations and quotation marks omitted). With these general principles in mind, the Court assesses the timeliness of each of Plaintiffs claims.

A. Excessive Force and Unlawful Search Claims

"In the context of an excessive force claim, the clock starts running `when the use of force occurred.'" Jennings v. Municipality of Suffolk Cnty., No. 11-cv-00911 (JFB) (ARL), 2013 WL 587892, at *4 (E.D.N.Y. Feb. 13, 2013) (quoting Fairley v. Collins, No. 09-cv-6894 (PGG), 2011 WL 1002422, at *3 (S.D.N.Y. Mar. 15, 2011)). An unlawful search claim "accrues at the time of the search." McClanahan v. Kelly, No. 12-cv-5326 (PGG), 2014 WL 1317612, at *4 (S.D.N.Y. Mar. 31, 2014). Accordingly, Plaintiffs' claims for excessive force and unlawful search accrued on June 15, 2011, the date of his arrest. As a result, the three-year statute of limitations for those claims expired on June 15, 2014. Thus, Plaintiff's excessive force and unlawful search claims would be untimely even if filed in September 2014 and must be dismissed.

B. False Arrest Claim

The Supreme Court has held that "the statute of limitations upon a § 1983 claim seeking damages for a false arrest . . . where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process." Wallace v. Kato, 549 U.S. 384, 397 (2007). In Wallace, the Court concluded that the statute of limitations began to run when the plaintiff "appeared before the examining magistrate and was bound over for trial." Id. at 392; see also Lynch v. Suffolk Cnty. Police Dept., Inc., 348 Fed.Appx. 672, 675 (2d Cir. 2009) ("[F]or a claim of false arrest . . . the statute of limitations begins to run `when the alleged false imprisonment ends, and an "alleged false imprisomnent ends when `the victim becomes held pursuant to [legal] process—when, for example, he is bound over by a magistrate or arraigned on charges.'") (quoting Wallace, 549 U.S. at 388-89); Traore v. Police Officer Andrew Ali Shield, No. 14-cv-8463 (ER), 2016 WL 316856, at *6 (S.D.N.Y. Jan. 26, 2016) (holding that, while arrest occurred on January 20, statute of limitations did not begin to run on false arrest claim until January 21, when the plaintiff was arraigned).3

Defendants argue that, even "taking as true plaintiff's allegation that he mailed his Original Complaint in September 2014," any claim for false arrest with respect to Plaintiffs arrest on June 15, 2011 would be untimely under the applicable statute of limitations. Def. Memo, Dkt. No. 7, at 7. Here, Plaintiff alleges that he was arrested on June 15, 2011, but he does not allege the date on which he was arraigned or bound over by a judge after his arrest. New York law provides that a defendant must "without unnecessary delay" be "brought before a local criminal court" if arrested with or without a warrant. N.Y. Crim. Proc. Law §§ 120.90(1) and 140.20(1). Although Plaintiff does not provide a date in September 2014 on which he allegedly attempted to file his original complaint, the Court will assume that he attempted to file it on September 1, 2014. In order for the claim to have been timely if filed on that date, his false arrest claim would have had to accrue no later than September 1, 2011, which would have required 78 days to have elapsed between Plaintiff's arrest and his arraignment. The Court assumes this was not the case. As a result. Plaintiff's claim for false arrest must be dismissed as untimely.

C. Malicious Prosecution Claim

*4 A cause of action for malicious prosecution accrues "only when the underlying criminal action is conclusively terminated." Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995); accord Brown v. New York City Housing Auth., No. 13-cv-7599 (RJS), 2015 WL 4461558, at *3 (S.D.N.Y. July 20, 2015). Here, Defendants have submitted a Certificate of Disposition from the Criminal Court of the City of New York indicating that the criminal proceedings underlying Plaintiffs claims were dismissed on November 23, 2011. See Certificate of Disposition, annexed as Ex. D to Declaration of Richard Bahrenburg. Dkt. No. 29-1. Although the Court is generally limited to the pleadings when adjudicating a motion to dismiss under Rule 12(b)(6), a district court may also consider "matters of which judicial notice may be taken.Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). The Second Circuit has held that the "prosecution of [an individual] is a matter of public record, of which [a court] take[s] judicial notice." Shmeuli v. City of New York, 424 F.3d 231, 233 (2d Cir. 2005). In line with this general principle, courts have taken judicial notice of criminal court certificates of disposition. See, e.g., Jones v. Rivera, No. 13-cv-1042 (NSR), 2015 WL 8362766, at *3 (S.D.N.Y. Dec. 7, 2015); Marcus v. Bush, No. 11-cv-4049 (JS) (WDW), 2013 WL 2154786, at *3 (E.D.N.Y. May 17, 2013). The Court therefore takes notice of the fact that Plaintiff's criminal proceedings conclusively terminated on November 23, 2011 and that as a result, his claim for malicious prosecution accrued on that date.

Defendants concede that the statute of limitations for Plaintiffs malicious prosecution claim expired on November 23, 2014, "approximately two months after plaintiff alleges to have filed the Original Complaint." Def. Memo at 7; see also id. at 8, n.5 ("Defendants recognize that taking as true plaintiffs allegation that he filed the Original Complaint in September 2014, the Original Complaint would have been filed within the statute of limitations for a malicious prosecution claim as against the John Doe defendant."). Defendants argue that this claim is nevertheless time-barred because "Sergeant Romain was not named as a defendant in this matter until on or about December 29, 2015 —more than one year later" and that "the naming of a John Doe defendant cannot be used to circumvent the statute of limitations." Id. at 8. This argument concerns the "relation back" doctrine, which concerns the circumstances under which an amendment to a complaint made after the expiration of a statute of limitations will nevertheless be considered timely.

The Court need not analyze whether Plaintiffs malicious prosecution claim against Sergeant Romain is timely by operation of the relation back doctrine at this time, however, given that Plaintiff fails to state a claim for malicious prosecution. In a case like this, where the plaintiff is proceeding in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). Although the statute speaks in terms of a "case" rather than "claims," the court "has the authority to screen sua sponte an in forma pauperis complaint at any time and must dismiss a complaint, or portion thereof, that . . . fails to state a claim upon which relief may be granted." Ramrattan v. Fischer, No. 13-cv-6890 (KPF), 2015 WL 3604242, at *3 (S.D.N.Y. June 9, 2015).

"In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law." Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (internal citations omitted). "To establish a malicious prosecution claim under New York law, a plaintiff must prove `(1) the initiation or continuation of a criminal proceeding against plaintiff: (2) termination of the proceeding in plaintiffs favor: (3) lack of probable cause for commencing the proceeding: and (4) actual malice as a motivation for defendant's actions.' Id. (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). Here, although Plaintiff has asserted a claim for malicious prosecution, the only elements of the cause of action he has pleaded are the first and second: Plaintiff has pleaded no facts in support of the remaining elements. Accordingly, Plaintiff's malicious prosecution claim must be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). However, the Court grants Plaintiff leave to file an amended complaint for malicious prosecution no later than 30 days from the date of this order.

D. Tolling

*5 Defendants argue in their motion papers that Plaintiff is not entitled to the benefit of "insanity tolling," "equitable tolling," or "equitable estoppel" in order to avoid dismissal of his claims on timeliness grounds. Def. Memo at 16-18.4 "[S]tate tolling rules, like state limitations periods, govern federal actions brought under § 1983 except when inconsistent with the federal policy underlying § 1983." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980). It is Plaintiff's burden to demonstrate the applicability of a state-law tolling doctrine. See, e.g., rallen v. Carrol, No. 02-cv-5666 (PKC), 2005 WL 2296620, at *3 (S.D.N.Y. Sept. 20, 2005) ("Once the defendant demonstrates that the claim facially falls within the limitations period, the plaintiff, not the defendant, bears the burden of proof on tolling.") (citing Doe v. Holy See (State of Vatican City), 793 N.Y.S.2d 565, 567 (3d Dep't 2005)).

i. Insanity Tolling

N.Y. C.P.L.R. § 208 provides, in relevant part:

N.Y. C.P.L.R. § 208; accord McCarthy v. Folkmagen of Am., Inc., 450 N.Y.S.2d 457, 458 (1982) ("CPLR 208 provides, in pertinent part, that where a person is under a disability of `insanity' at the time his cause of action accrues, the limitations period in a personal injury action will be extended to three years after the disability ceases."). In McCarthy, the New York Court of Appeals held that "the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society." 450 N.Y.S.2d at 460. Thus, "New York construes insanity as used in N.Y. C.P.L.R. § 208 narrowly." La Russo v. St. George's Univ. Sch. of Med., 747 F.3d 90, 99 (2d Cir. 2014). "Courts have consistently held that the application of § 208 is appropriate only where the mental disability is `severe and incapacitating,' on the ground that the statute itself `speaks in terms of insanity and not merely mental illness.' Sanders v. Kiley, No. 91-cv-6320, 1995 WL 77916, at *5 (S.D.N.Y. Feb. 23, 1995) (citation omitted). Here, Plaintiff has not alleged that he suffered from an "over-all inability to function in society" at the time his causes of action accrued. Aside from a reference to not being able to "remember half of what [he] need[s] to remember" in the letter annexed to the original complaint and several references to his brain cancer in his opposition papers, Plaintiff has made no plausible claim that he was incompetent to protect his legal rights at the time his claims accrued, and insanity tolling is therefore unavailable in this case. In fact, in his opposition papers, Plaintiff explicitly disclaims the notion that he ever referred to his illness to justify tolling. See Pl. Opp. at 22.

ii. Equitable Tolling

*6 Under the doctrine of equitable tolling, "when a defendant fraudulently conceals the wrong, the time [limit of the statute of limitations] does not begin running until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, the cause of action." Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (brackets in original); accord Daniel v. Safir, 175 F.Supp.2d 474, 480 (E.D.N.Y. 2001) ("A plaintiff seeking equitable tolling of a limitations period must demonstrate that defendants engaged in a fraud which precluded him from discovering the harms he suffered or the information he needed to file a complaint."). Here, Plaintiff has not made any such allegation of fraudulent concealment by Defendants, and the doctrine of equitable tolling is therefore inapplicable in this case.

iii. Equitable Estoppel

"A defendant may be equitably estopped from asserting the statute of limitations `in cases where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused [the plaintiff] to delay in bringing his lawsuit.'" Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) (quoting Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 50 (2d Cir. 1985)). "To invoke equitable estoppel, a plaintiff must show that: (1) the defendant made a definite misrepresentation of fact, and had reason to believe that the plaintiff would rely on it; and (2) the plaintiff reasonably relied on that misrepresentation to his detriment." Id. at 1493. "To invoke an estoppel as a shield against a statute of limitations defense, a plaintiff `must show that he brought his action within a reasonable time after the facts giving rise to the estoppel have ceased to be operational.' Id. at 1494 (quoting Overall v. Estate of Klotz, 52 F.3d 398, 404 (2d Cir. 1995)). Plaintiff has not alleged any misrepresentations made by Defendants, reliance upon which caused him to delay in bringing this action. Accordingly, equitable estoppel is unavailable in this case.

E. Claims Against City of New York

Municipalities may be held liable under § 1983 claims "where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers." Morrell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). "A single incident of unconstitutional activity is not sufficient to impose liability on a municipality unless it is shown that the incident was caused by an existing, unconstitutional municipal policy that can be attributed to a municipal policy maker." Bascom v. New York City, No. 11-cv-4217 (SLT) (LB), 2011 WL 4073785, at *2 (E.D.N.Y. Sept. 13, 2011); see also Warheit v. City of New York, No. 02-cv-7345 (PAC), 2006 WL 2381871, at *12 (S.D.N.Y. Aug. 15, 2006) ("[A] single incident of unconstitutional conduct by a non-policymaking employee . . . [will not] suffice to establish Because Plaintiff nowhere challenges a municipal policy or practice, and only alleges a single incident of unconstitutional conduct, his claims against the City of New York must be dismissed.

F. Leave to Replead Untimely Claims5

"Although district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings, leave to amend need not be granted when amendment would be futile." Terry v. Inc. Fill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016). Here, the Court declines to grant Plaintiff leave to replead his claims for false arrest, excessive force, or unlawful search against Sergeant Romain given that they are untimely, and any amendment would therefore be futile. See, e.g., Hayes v. Dep't of Educ. of City of New York, 20 F.Supp.3d 438, 451 (S.D.N.Y. 2014) ("Even were the Court to grant Plaintiff leave to amend her suit to introduce a retaliation claim, that amendment would be futile: it could not survive a motion to dismiss because it would be time-barred."); Kotler v. Charming Shoppes, Inc., No. 11-cv-3296 (SAS), 2012 WL 291512, at *3 (S.D.N.Y. Jan. 31, 2012) ("Here, leave to replead would be futile because [plaintiff's] claims are time barred and an amended complaint would be unable to cure that deficiency."); Keitt v. New York City, 882 F.Supp.2d 412, 426 (S.D.N.Y. Sept. 29, 2011) ("All of [plaintiff's] claims against the City Defendants are time-barred and thus an amendment with respect to these claims would be futile.").

*7 With respect to Plaintiff's claims against the City of New York, leave to replead these claims is also denied. Plaintiff has already amended his complaint twice. None of Plaintiffs three complaints remotely suggest that Plaintiff believes his constitutional rights were violated pursuant to a policy or custom maintained by the City of New York. Indeed, Plaintiff did not even name the City of New York as a defendant in his initial complaint: it was only after the Court sua sponte dismissed the NYPD as a defendant and ordered the substitution of the City of New York in the NYPD's place that the City became a defendant. Since that substitution, Plaintiff has not taken the opportunity to amplify his pleadings against the City of New York, despite having amended the complaint twice since that time. "Where it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend." Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 62 (2d Cir. 2016) (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 132 (2d Cir. 1993)). Because Plaintiff has given the Court the clear impression that he does not intend to challenge any policy or custom of the City of New York, leave to amend with respect to his claims against the City of New York is denied. Cf. Bascom v. New York City, 2011 WL 4073785, at *2 (E.D.N.Y. Sept. 13, 2011) ("Plaintiff does not allege, and nothing in his complaint suggests, that any of the allegedly wrongful acts were attributable to a municipal policy or custom attributable to a municipal policymaker. Accordingly, there does not appear to be any basis for suing New York City, and the claim against New York City is hereby dismissed without leave to amend.'").

IV. CONCLUSION

For the reasons stated above, Plaintiff's claims for false arrest, excessive force, and unlawful search are untimely under the applicable statute of limitations. Accordingly, Defendants' motion to dismiss these claims is GRANTED, and Plaintiff's claims for false arrest, excessive force, and unlawful search are DISMISSED WITH PREJUDICE. Plaintiff is granted leave solely to file a third amended complaint with respect to his claim for malicious prosecution against Sergeant Patrick Romain, no later than 30 days from the date of this order.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to terminate the motion pending at Dkt. No. 28. The Clerk of Court is further directed to send a copy of this order to Plaintiff James Forbes by certified mail, along with copies of the unpublished opinions cited herein.

SO ORDERED.

Dated: October 26, 2016.

All Citations

Not Reported in F.Supp.3d, 2016 WL 6269602

Attorneys and Law Firms

Frederick Walker, East Meadow. NY, pro se.

Keith Michael Corbett, Harris Beach PLLC, New York, NY, Kadion Dwayne Henry, Harris Beach PLLC, Uniondale, NY, for Defendants.

REPORT AND RECOMMENDATION

LOCKE, Magistrate Judge

Presently before the Court, on referral from the Honorable Joseph F. Bianco for Report and Recommendation, is Defendants' motion to dismiss pro se Plaintiff's Complaint for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Docket Entry (DE") [17]. Pro se Plaintiff Frederick Walker ("Plaintiff" or "Walker") commenced this action against Defendants Village of Freeport, Chief of Police Miguel Bermudez, Police Officer Martin Zimmer, and Police Officer T. Cirko (collectively, the "Defendants"), seeking to recover for, among other things, alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. See DE [1]. On December 2, 2015, Defendants filed the instant motion, which Plaintiff opposes. See DE [17], [18]. On April 12, 2016, Judge Bianco referred Defendants' motion to this Court for a Report and Recommendation as to whether it should be granted. See DE [21]. For the reasons set forth herein, the Court respectfully recommends that Defendants' motion to dismiss be granted in part and denied in part.

I. BACKGROUND

The following facts are taken from Plaintiff's Complaint and are accepted as true for purposes of the instant motion.

A. Relevant Facts

Defendant Village of Freeport ("Freeport" or the "Village") is the municipality that owns and operates the Freeport Police Department (-FPD"). See Compl., DE [1], ¶ 4. At all relevant times, Defendants Police Chief Bermudez and Police Officers Zimmer and Cirko (collectively, the "individual Defendants") were police officers with the FPD. Id. at ¶¶ 5-7. Plaintiff alleges that, as police chief, Bermudez is a policy maker for the FPD and is "responsible for all acts done in furtherance of the department's official customs or policies either put in place by him, or put in place by his predecessors and continued by him." Id. at ¶ 5. Plaintiff further alleges that the Village is "responsible for the acts taken pursuant to official customs or policies put in place and/or continued by its elected and/or appointed officials and officers as policy makers." Id. at ¶ 4.

According to Plaintiff, the south side of Freeport is "largely comprised of Caucasian inhabitants," and the north side of Freeport is "largely comprised of Hispanic inhabitants." Id. at ¶ 11. Plaintiff alleges that, during the past twenty years, crime in the Village "has risen drastically," and that "a large percentage of the robberies, burglaries and assaults committed in the Village are alleged to have been committed by inhabitants of the neighboring towns" of Roosevelt and Uniondale, both of which "are largely comprised of African-Americans." Id. at ¶¶ 12, 13. In response to the rise in crime, Plaintiff alleges that the Village and its police chiefs "instituted official customs or policies of a stop, question and frisk, targeting specifically African Americans, particularly if they were found on the south side" of Freeport. Id. at ¶ 14. According to Plaintiff, each police chief, including Defendant Bermudez, allowed this policy or custom of targeting African Americans to continue up to and including the date of the events relevant to this action. Id. at ¶ 15.

*2 At approximately 1:20 p.m. on May 9, 2014, Plaintiff, an African American male, was walking in the south side of Freeport near 223 West Merrick Road and South Long Beach Avenue. Id. at 1118. At that time, Officers Zimmer and Cirko pulled up next to Plaintiff in their police car and asked him "a barrage of . . . questions," including who he was, where he lived, and what he was doing in the neighborhood. Id. at ¶ 19. According to Plaintiff, one of the officers said, "black mother flickers don't belong on `the white side' of Freeport," and the other officer said, "we better arrest this one." Id. at irij 20, 21. Although the officers told Plaintiff that "he was seen urinating behind a dumpster," Plaintiff claims that this accusation "was patently false.""Id. at ¶¶ 22, 23. Nevertheless, Plaintiff was arrested, handcuffed, and placed in the police car. Id. at ¶ 23. According to Plaintiff, he was arrested on a busy street in the middle of the day, and the officers loudly repeated that he was being arrested for "public lewdness" and "exposure of a person," and referred to him as a "pervert" and a "flasher." Id. at ¶ 24. Plaintiff subsequently "had two trials on [the] false charges," with the first taking place on March 2, 2015 and resulting in a mistrial, and the second taking place on March 12, 2015 and resulting in an acquittal of both charges. Id. at ¶ 26.

B. Procedural History

On June 11, 2015, Plaintiff sent a Notice of Claim to both the Village of Freeport Court Clerk and the Office of the Nassau County Attorney. Id. at ¶ 10, Ex. A. According to Plaintiff, after submitting his Notice of Claim, Defendants "failed or refused to make adjustment and payment within the statutory timeframe . . . ." Id. at ¶ 10. As a result, Plaintiff commenced this action by way of Complaint dated July 30, 2015. See DE [1]. According to Walker, as a result of the Village and Bermudez's "official custom or policies," as well as the "sadistic and intentional acts" of Officers Zimmer and Cirko, he was subjected to "racial profiling and other race-based discrimination in violation of the 14th Amendment . . . ." Compl. ¶¶ 27, 28. He further alleges that he was "falsely arrested and imprisoned, maliciously prosecuted, slandered and otherwise defamed of his character, all to his damage." Id. at ¶ 29. Plaintiff seeks to recover compensatory, punitive, exemplary, and special damages in the total sum of $10,000,000. Id. at § VII.

On December 2, 2015, Defendants filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See DE [17]. According to Defendants, the Court lacks jurisdiction over Plaintiff's claims arising under New York state law because Plaintiff failed to serve a Notice of Claim within ninety days of the date on which those claims accrued as required by N.Y. Gen. Mun. Law. § 50-e. See Memorandum of Law in Support of the Village Defendants' Motion to Dismiss Pursuant to Rule 12 of the Federal Rules of Civil Procedure (-Defs.' Mem."), DE [17-3], at 5-7. Defendants further argue that Plaintiff fails to state a claim for individual or municipal liability arising under 42 U.S.C. § 1983. Id. at 7-15. In opposition, Plaintiff argues that he "do[es] not really need case law to prove [his] case." See Response to Motion to Dismiss (Pl.'s Opp'n"), DE [18], at 1. Nevertheless, relying on Ives v. S. Buffalo Ry. Co., 201 N.Y. 271 (1911), he argues that, "here it is clearly a Federal and State Constitutions [sic] violations."1 Id. at ¶ 3.

II. LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 12(b)(1), a federal court must dismiss a claim when it lacks jurisdiction over the subject matter of the action. See Fed. R. Civ. P. 12(b)(1); see also Gentile v. Town of Huntington, 288 F.Supp.2d 316, 319 (E.D.N.Y. 2003) ("Rule 12(b)(1) provides for the dismissal of a claim where a federal court lacks jurisdiction over the subject matter of the action.") (internal quotation marks omitted). In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), "a court must assume that all factual allegations in the complaint are true and must draw all reasonable inferences in the light most favorable to the plaintiff." Gentile, 288 F. Supp. 2d at 319. However, in deciding a motion to dismiss for lack of subject matter jurisdiction, "the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds by 505 U.S. 1215, 112 S.Ct. 3020 (1992); see also Alonso v. Saudi Arabian Airlines Corp., No. 98 Civ. 7781, 1999 WL 244102. at *1 (S.D.N.Y. Apr. 23, 1999) ("[T]he standard used to evaluate a Rule 12(b)(1) claim is akin to that for summary judgment under Fed. R. Civ. P. 56(e)").

*3 In order to survive a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell All. v. Twombley, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). A claim is considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949. In deciding a motion to dismiss, "a court must `accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.'" U.S. ex rel. Siegel v. Roche Diagnostics Corp., 988 F.Supp.2d 341, 343 (E.D.N.Y. 2013) (quoting LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009)). Unlike a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court's consideration is limited to:

Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 498 (S.D.N.Y. 2003) (internal citation omitted); see also Messina v. Mazzeo, 854 F.Supp. 116, 128 (E.D.N.Y. 1994) ("The court's consideration on a motion to dismiss is limited to the factual allegations in the complaint; documents incorporated by reference into the complaint; matters of which judicial notice may be taken: and documents either in plaintiff's possession or of which plaintiff had knowledge and relied on in bringing suit.").

It is well-established that pleadings by pro se plaintiffs are held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal citations omitted). The Second Circuit has held that a court reviewing a pro se complaint must "construe the complaint broadly, and interpret it to raise the strongest arguments that it suggests." Weixel v. Bd. of Educ. of the City of New York, 287 F.3d 138, 146 (2d Cir. 2002) (internal alterations omitted); see also Rene v. Citibank N.A., 32 F. Stipp. 2d 539, 541 (E.D.N.Y. 1999) (holding that a court must "make reasonable allowances so that . . . pro se plaintiffs do not forfeit their rights by virtue of their lack of legal training"). However, the court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist." Ogunmokun v. Am. Educ. Servs./PHEAA, No. 12-CV-4403, 2014 WL 4724707, at *3 (E.D.N.Y. Sept. 23, 2014) (quoting Molina v. New York, 956 F.Supp. 257, 259 (E.D.N.Y. 1995)).

III. DISCUSSION

Plaintiff asserts causes of action for: (i) individual liability arising under 42 U.S.C. § 1983 against the Individual Defendants; (ii) municipal liability arising under 42 U.S.C. § 1983 against the Village of Freeport; and (iii) defamation, intentional infliction of emotional distress (ITED"), false arrest, and malicious prosecution arising under New York common law against all Defendants. See Compl. ¶¶ 27-30. Applying the standards outlined above, and for the reasons set forth herein, the Court recommends that Defendants' motion be granted in part and denied in part.

A. Individual Liability Arising under Section 1983

*4 Section 1983 of Title 42 of the United States Code provides, in relevant part:

42 U.S.C. § 1983.

Section 1983 itself does not create substantive rights; rather, "it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To prevail on a claim arising under 42 U.S.C. § 1983, a plaintiff must establish: "(1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law." Hawkins v. Nassau Cty. Corr. Facility, 781 F.Supp.2d 107, 111 (E.D.N.Y. 2011) (citing 42 U.S.C. § 1983). Here, although Plaintiff does not specifically enumerate his theories of liability arising under 42 U.S.C. § 1983, the Court interprets the Complaint to assert causes of action for: (i) false arrest and malicious prosecution as against Officers Zimmer and Cirko;2 and (ii) supervisory liability as against Chief Bermudez. See Compl. ¶¶ 27-30.

1. False Arrest Against Officers Zimmer and Cirko

Although the Complaint asserts claims for both false arrest and false imprisonment, such claims are subject to identical analyses. See Jenkins v. City of New York, 478 F.3d 76, 88 n.10 (2d Cir. 2007) ("False arrest is simply false imprisonment accomplished by means of an unlawful arrest."); Smith v. City of Utica, No. 6:13-CV-767, 2015 WL 4366230, at *1 (N.D.N.Y. July 16, 2015) ("In New York State . . . the torts of false arrest and false imprisomnent are synonymous."); Hargroves v. City of New York, No. 03-CV-1668, 2014 WL 1271024, at *1 n.1 (E.D.N.Y. Mar. 26, 2014) ("Because false arrest is a species of false imprisonment, the Court refers to this claim throughout only as one for false arrest.") (internal citation omitted). To state a claim for false arrest under Section 1983, a plaintiff must allege that: "(1) he was intentionally confined: (2) he was conscious of the confinement; (3) he did not consent to the confinement; and (4) the confinement was not privileged." Anderson v. Cty. of Nassau, 297 F.Supp.2d 540, 545 (E.D.N.Y. 2004); see also Harley v. City of New York, No. 14-CV-5452, 2016 WL 552477, at *2 (E.D.N.Y. Feb. 10, 2016) ("The elements of a false arrest claim under Section 1983 are substantially the same as the elements under New York State law: Plaintiff must show that the defendant intentionally confined him without his consent and without justification") (internal quotation omitted). It is well-established that, pursuant to both Section 1983 and New York state law, "the existence of probable cause is an absolute defense to a false arrest claim." Jaegly v. Couch. 439 F.3d 149, 151-52 (2d Cir. 2006); see also Davenport v. Cty. of Suffolk, No. 99-CV-3088, 2007 WL 608125, at *5 (E.D.N.Y. Feb. 23, 2007) ("[P]robable cause as to any charge at the time of arrest is sufficient to defeat a false arrest claim as a matter of law.").

*5 Probable cause to arrest exists where an officer has "knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). To that end, "it is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness, unless the circumstances raise doubt as to the person's veracity." Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal citation omitted); see also Curley v. Till. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (holding that the report of a "putative victim or an eyewitness" can be used to establish probable cause). In deciding a motion to dismiss, the "question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). However, where disputes exist as to the pertinent events resulting in an arrest, a finding of probable cause is improper at the motion to dismiss stage. See Hyde v. Caputo, No. 98-CV-6722, 2001 U.S. Dist. LEXIS 6253, at *8 (E.D.N.Y. May 11, 2001) ("Given the conflicting plausible interpretations of [the plaintiff's] arrest, it would be improper for the Court at this stage of the litigation to conclude that it was reasonable for the officers to believe that probable cause existed.") (internal quotations omitted).

Here, Defendants argue that Plaintiff's claim for false arrest arising under Section 1983 must be dismissed because probable cause existed to arrest Walker for public lewdness and exposure of a person. See Defs.' Mem. at 9-11. Specifically, Defendants claim that a complainant reported that the Plaintiff was exposing his genitalia in public," and that the complainant subsequently signed a statement of her complaint against Plaintiff. Id. at 9. Even accepting as true Defendants' argument that the "complainant's 911 report, statement at the scene and statement at the police station clearly established probable cause to arrest the Plaintiff," the facts allegedly contained in the 911 report and subsequent statements are neither pled in, nor integral to, Plaintiffs Complaint in this action. Id. Rather, the only references to the 911 report and subsequent statements are contained in Defendants' Memorandum of Law. Id. at 1-2. Because "a court may not consider affidavits and exhibits submitted by the parties or rely on factual allegations contained in legal briefs or memoranda" in deciding a motion to dismiss, the Court may not consider the alleged 911 report and subsequent statements in determining whether probable cause existed to arrest Plaintiff. Moor v. Fischer, No. 10 Civ. 4038, 2011 WL 2988527, at *4 (S.D.N.Y. July 22, 2011); see also Frederick v. Jetblue Airways Corp., No. 14-CV-7238, 2016 WL 1306535, at *5 (E.D.N.Y. Mar. 31, 2016) ("Consideration of affidavits, exhibits, or factual assertions contained in legal memoranda is reversible error."). In any event, Plaintiff acknowledges that Officers Zimmer and Cirko told him that "he was seen urinating behind a dumpster," but claims that the accusation "was patently false." See Compl. ¶ 22. Accepting Plaintiff's allegations as true, as the Court must, in light of the factual dispute regarding the basis for Plaintiff's arrest, Defendants have failed to establish as a matter of law that probable cause existed to arrest Plaintiff. See Chillemi v. Town of Southampton, 943 F. Stipp. 2d 365, 380 (E.D.N.Y. 2013) ("[I]t is not appropriate for [the] Court to make a determination as to whether there existed probable cause to arrest [the plaintiff] in the context of a motion to dismiss."); see also Hyde, 2001 U.S. Dist. LEXIS 6253, at *7-8 ("[F]or this motion, the Court must accept the facts as pleaded by [the plaintiff]."). Therefore, the Court recommends that Defendants' motion to dismiss be denied with respect to Plaintiffs claim for false arrest and false imprisonment arising under Section 1983.

2. Malicious Prosecution Against Officers Zimmer and Cirko

A claim for malicious prosecution under Section 1983 is governed by the same standards applicable under New York state law. See Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). To state a claim for malicious prosecution under New York law, the plaintiff must allege: "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the accused; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice." Anderson, 297 F. Supp. 2d at 546 (citing Riccuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). To establish that a defendant initiated a proceeding, "it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Mitchell v. Home, 434 F.Supp.2d 219, 227 (S.D.N.Y. 2006) (quoting DeFilippo v. Cty. of Nassau, 183 A.D.2d 695, 696, 583 N.Y.S.2d 330 (2d Dep't 1992)). A plaintiff may establish that a police officer initiated criminal proceedings for purposes of a malicious prosecution claim by alleging that the officer had the plaintiff arraigned, filled out a complaining or corroborating affidavit, or signed a felony complaint. See Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 382-83 (S.D.N.Y. 2005).

*6 Like a claim for false arrest, "[t]he existence of probable cause is an absolute defense to a cause of action for malicious prosecution." Maron v. Cty. of Albany, 166 Fed.Appx. 540, 541 (2d Cir. 2011). However, "[t]he existence of probable cause at the time of arrest . . . may not be dispositive of the issue as to the malicious prosecution claim, because . . . evidence could later surface which would eliminate that probable cause." Mitchell v. Cty. of Nassau, 786 F.Supp.2d 545, 562 (E.D.N.Y. 2011); see also Gaston v. City of New York, 851 F.Supp.2d 780, 793 (S.D.N.Y. 2012) ("The determination of probable cause in the context of malicious prosecution is essentially the same as for false arrest, `except that [a claim for malicious prosecution] must be evaluated in light of the facts known or believed at the time the prosecution is initiated, rather than at the time of arrest.'") (quoting Danielak v. City of New York, 02-CV-2349, 2005 WL 2347095, at *10 (E.D.N.Y. Sept. 26, 2005)). Nevertheless, "in the absence of exculpatory facts which became known after an arrest, probable cause to arrest is a complete defense to a claim of malicious prosecution." D'Angelo v. Kirschner, 288 Fed.Appx. 724, 726 (2d Cir. 2008).

Here, in moving to dismiss Walker's claim for malicious prosecution, Defendants again argue that "there was probable cause to arrest the Plaintiff." See Defs.' Mem. at 8. How-ever, having determined that Defendants failed to establish that probable cause existed to arrest Plaintiff as a matter of law sufficient to dismiss the claim for false arrest on the pleadings alone, the Court also concludes that Defendants have failed to establish that probable cause existed to commence criminal proceedings against Plaintiff for public lewdness and exposure of a person at this juncture. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) (holding that a finding that probable cause for an arrest did not exist "entails the rejection of an argument that probable cause existed for an ensuing prosecution); see also Guzman v. City of New York, No. 08-CV-2853, 2010 WL 4025563, at *3 (E.D.N.Y. Oct. 13, 2010) ("[T]he issue of whether probable cause existed for his prosecution cannot be resolved in a motion to dismiss."). Therefore, the Court recommends that Defendants' motion to dismiss be denied with respect to Plaintiff's claim for malicious prosecution arising under Section 1983.

3. Supervisory Liability Against Police Chief Bermudez

It is well-established that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (holding that a complaint that fails to allege the individual defendant's personal involvement is "fatally defective on its face"). Therefore, "an individual defendant cannot be held liable for damages simply because he or she holds a supervisory position." Stamile v. Ciy. of Nassau, No. 10-CV-2632, 2014 WL 1236885, at *3 (E.D.N.Y. Mar. 25, 2014); see also Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) ("[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority."). Rather, an individual in a supervisory role may be held liable under Section 1983 in one of the following ways:

*7 Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003); see also Stancati v. Cty. of Nassau, No. 14-CV-2694, 2015 WL 1529859, at *3 (E.D.N.Y. Mar. 31, 2015) (holding that a supervisory official who was not personally involved in an alleged constitutional violation may be liable under 42 U.S.C. § 1983 if the official "(1) created a policy or custom under which the unconstitutional practice occurred, or (2) allowed the continuance of such a policy or custom") (internal alterations omitted) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)); Bellamy v. Mt. Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) ("[A] supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred.").

Here, Plaintiff's allegations are sufficient to state a claim for supervisory liability against Chief Bermudez. According to Walker, Chief Bermudez "is the policy-maker for [the FPD] and responsible for all acts done in furtherance of the department's official customs or policies either put in place by him, or put in place by his predecessors and continued by him." See Compl. ¶ 5. Plaintiff further alleges that, as a result of the FPD's "stop, question and frisk" policy targeting African-Americans, "particularly if they were found on the south side" of Freeport, he was subjected to false arrest and malicious prosecution in violation of his constitutional rights. Id. at ¶¶ 14, 19-23. In moving to dismiss Plaintiffs claim for supervisory liability against Chief Bermudez, Defendants argue that, "[u]nder § 1983, supervisory liability requires personal involvement by the supervisor for . . . liability to attach." See Defs.' Mem. at 14. However, it is well-established that "personal involvement" for purposes of supervisory liability may be established by "creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue." Hernandez, 341 F.3d at 145; see also Black, 76 F.3d at 74 (holding that "personal involvement" of a supervisory official includes "direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates."). Because Plaintiff alleges that Bermudez either created a custom or policy that resulted in the deprivation of his constitutional rights, or allowed such a policy to continue, Plaintiff adequately" states a claim for supervisory liability against Chief Bermudez sufficient to defeat a motion to dismiss. Accordingly, the Court recommends that Defendants' motion to dismiss be denied with respect to Plaintiff's Section 1983 claim against Defendant Bermudez.

4. Qualified Immunity

Defendants further argue that Plaintiff's claims against the Individual Defendants arising under Section 1983 should be dismissed pursuant to the doctrine of qualified immunity. See Defs.' Mem. at 12-13. The doctrine of qualified immunity "protects govermnent officials from suit if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (internal quotation omitted). A police officer is entitled to qualified immunity if he establishes "either that his conduct did not violate `clearly established rights' of which a reasonable person would have known, or that it was `objectively reasonable' to believe that his acts did not violate these clearly established rights." Landy v. Irizarry, 884 F.Supp. 788, 800 (S.D.N.Y. 1995) (quoting Finnegan v. Fountain, 915 F.2d 817, 818 (2d Cir. 1990)). In determining whether the doctrine of qualified immunity applies, courts consider: "(1) whether a plaintiff has shown facts making out a violation of a constitutional right: (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct at issue was lawful." Deanda v. Hicks, 137 F.Supp.3d 543, 561 (S.D.N.Y. 2015) (quoting Gonzalez, 728 F.3d at 154). An officer's actions are objectively reasonable "if officers of reasonable competence could disagree on the legality of the defendant's actions." Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir. 2000) (internal quotation omitted). However, courts in this district have held that "a motion to dismiss is not the time for the defendants to make evidentiary submissions on the reasonableness of their conduct in support of their qualified immunity defense Allen v. Suozzi, No. 09-CV-1520, 2011 WL 1059147, at *4 (E.D.N.Y. Mar. 21, 2011).

*8 Here, Defendants argue that they are entitled to qualified immunity because they "did not violate any rights of the Plaintiff' and because it "was objectively reasonable for Defendant Police Officers to believe that their actions in arresting the Plaintiff, based on the report of a crime victim, did not violate any clearly established rights of the Plaintiff." Defs.' Mem. at 13. However, for the reasons discussed above, the complainant's report and subsequent statements are not properly before the Court in deciding Defendants' motion to dismiss. Rather, accepting Plaintiff's allegation as true that it was "patently false" that he was seen urinating behind a dumpster, see Compl. ¶ 22, the Court is unable to conclude that the officers' actions in arresting Plaintiff were objectively reasonable such that they are entitled to qualified immunity at this point in the proceedings. See Lee v. Sandberg, 136 F.3d 94, 101 (2d Cir. 1997) (holding that qualified immunity is an affirmative defense to be established by the defendant); Hickey v. City of New York, No. 01 Civ. 6506, 2002 WL 1974058, at *5 (S.D.N.Y. Aug. 26, 2002) ("[T]he fact-intensive question of what the defendants knew or reasonably believed, or indeed whether there is any material dispute about that question, can only be addressed on a fuller factual record, at summary judgment or trial."). Therefore, to the extent that Defendants seek dismissal of Plaintiff's claims against the Individual Defendants on qualified immunity grounds, the Court recommends that Defendants' motion be denied.

B. Municipal Liability Arising Under Section 1983

A municipality, such as the Village of Freeport, may not be held liable pursuant to 42 U.S.C. § 1983 on a respondeat superior theory of liability. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978); see also Genovese v. Town of Southampton, 921 F.Supp.2d 8, 24 (E.D.N.Y. 2013) ("[A] municipal entity may only be held liable where the entity itself commits a wrong; a municipality cannot be held liable under § 1983 on a respondeat superior theory.") (internal quotation omitted). Rather, a municipality may only be found liable under Section 1983 "if the deprivation of the plaintiffs rights under federal law is caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012); see also McCrary v. Cty. of Nassau, 493 F.Supp.2d 581, 590 (E.D.N.Y. 2007) (holding that, to state a claim for municipal liability, a plaintiff must allege "(1) an official policy or custom that (2) caused the plaintiff to be subjected to (3) a denial of a constitutional right"). A plaintiff may establish a policy or custom for purposes of municipal liability by alleging any of the following:

Hunter v. City of New York, 35 F.Supp.3d 310, 323 (E.D.N.Y. 2014) (quoting Parker v. City of Long Beach, 563 Fed.Appx. 39, 41 (2d Cir. 2014)). However, it is well-established that "a single incident involving an employee below the policymaking level will not suffice to support an inference of a municipal custom or policy." Brewster v. Nassau Cty., 349 F.Supp.2d 540, 549 (E.D.N.Y. 2004) (citing Farm v. City of New York, 72 F.3d 1040, 1050 (2d Cir. 1995)).

Here, Plaintiff's allegations are sufficient to state a claim for municipal liability against the Village of Freeport. According to Plaintiff, in response to rising crime rates, the Village "instituted official customs or policies of a stop, question and frisk, targeting specifically African Americans, particularly if they were found on the south side" of Freeport. Compl. ¶ 14. Plaintiff further alleges that, "[a]s the years went by, each police chief, including Bermudez, allowed this custom or policy targeting African-Americans to continue, in full force and effect, up to and including the date and time and place of the events surrounding this complaint." Id. at ¶ 15. To that end, Plaintiff alleges that Chief Bermudez is a "policymaker for [the FPD] and responsible for all acts done in furtherance of the department's official customs or policies either put in place by him, or put in place by his predecessors and continued by him." Id. at ¶ 5. According to Plaintiff, as a result of the Village's custom or policy, Officers Zimmer and Cirko stopped him on May 9, 2014 and subjected him to false arrest and malicious prosecution in violation of his constitutional rights. Id. at ¶¶ 27-30. Plaintiffs allegations, accepted as true, are sufficient to state a claim against the Village of Freeport for municipal liability pursuant to 42 U.S.C. § 1983. See, e.g., Guichard v. Town of Brookhaven, 26 F.Supp.3d 219, 224 (E.D.N.Y. 2014) (holding that the plaintiff stated a claim for municipal liability where he alleged that policymakers "used their policy making authority" in a manner that resulted in constitutional violations); Cruz v. Jackson, No. 94 Civ. 2600, 1997 WL 45348, at *8 (S.D.N.Y. Feb. 5, 1997) (denying motion to dismiss claim for municipal liability where the plaintiff alleged that policy making officials participated in alleged constitutional violations)

*9 In moving to dismiss Plaintiff's claim for municipal liability under Section 1983, Defendants do not argue that Plaintiff fails to allege the existence of a municipal policy or custom. See Defs.' Mem. at 13-14. Rather, Defendants assert that Plaintiffs rights were not violated as a result of any such policy or custom because his arrest "came about from a 911 call regarding lewd behavior that was then investigated and supported by a victim's statement." Id. at 14. Accordingly, Defendants argue that "Plaintiffs claim against the Village that he was arrested based on Freeport Police Department ['s] policy to `stop, question and frisk' African Americans is devoid of merit . . . ." Id. However, as discussed above, evidence of the 911 call and the complainant's subsequent statements are neither pled in, nor integral to, Plaintiffs Complaint, and are therefore not properly before the Court in deciding the instant motion to dismiss. See Frederick, 2016 WL 1306535, at *5. Because Plaintiff's allegations, accepted as true, are sufficient to support an inference that his constitutional rights were violated as a result of the Village's official policies or customs, he sufficiently states a claim for municipal liability pursuant to Section 1983. Accordingly, the Court recommends that Defendants' motion to dismiss be denied with respect to Plaintiff's claim against the Village of Freeport for municipal liability arising under Section 1983.

C. State Law Causes of Action

In addition to his claims arising under Section 1983, Plaintiff asserts causes of action against all Defendants arising under New York state law for defamation, TIED, false arrest, and malicious prosecution.3 See Compl. § I. Defendants argue that the Court lacks subject matter jurisdiction over Plaintiffs state law claims because Plaintiff failed to file a timely Notice of Claim pursuant to N.Y. Gen Mun. Law § 50-e, and the Court lacks authority to grant leave to file a late Notice of Claim. See Defs.' Mem. at 5-7. Defendants further argue that Plaintiff fails to state a claim under his state law theories of liability. Id.

1. Whether Plaintiff's Notice of Claim was Timely

Pursuant to N.Y. Gen. Mun. Law § 50-e:

N.Y. Gen. Mun. Law § 50-e(1)(a). Claims arising under New York state law brought in federal court "are subject to state procedural rules." Coggins v. Cty. of Nassau, 988 F.Supp.2d 231, 250 (E.D.N.Y. 2013). To that end, "New York state courts strictly construe Notice of Claim requirements, which federal courts must apply in exercising supplemental jurisdiction over state law claims." Matthews v. City of New York, 889 F.Supp.2d 418, 448 (E.D.N.Y. 2012) (internal citation omitted); see also Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991) ("In applying pendant jurisdiction, federal courts are bound to apply state substantive law to the state law claim."). Therefore, because timely service of a Notice of Claim is "a condition precedent to commencement of a tort action against [a public corporation] or its employees, . . . failure to do so is grounds for dismissal." Excell v. City of New York, No. 12 Civ. 2874, 2012 WL 2675013, at *4 (E.D.N.Y. July 5, 2012); see also Privat Air, S.A. v. Port Auth. of New York and New Jersey, No. 05-CV-2213, 2007 WL 2089285, at *2 (E.D.N.Y. July 19, 2007) ("Under New York's substantive law, notice of claim requirements are jurisdictional, and the failure to comply with them ordinarily requires dismissal."). Moreover, "[a] plaintiff is required to affirmatively plead in his complaint that he has filed a notice of claim." Evans v. Nassau Cty., 184 F.Supp.2d 238, 246 (E.D.N.Y. 2002). Ultimately, "[t]he burden is on the plaintiff to demonstrate compliance with the Notice of Claim requirement." Horvath v. Daniel, 423 F.Supp.2d 421, 423 (S.D.N.Y. 2006); see also Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61-62, 484 N.Y.S.2d 533 (1984) ("Plaintiff must not only plead in his complaint that he has served a notice of claim, but must also allege that the notice was served at least 30 days prior to commencement of the action and that in that time defendants neglected to or refused to adjust or to satisfy the claim.").

*10 According to Defendants, "Plaintiff's state law claims accrued on May 9, 2014, the day he was arrested and the day he alleges that Defendant Police Officers publicly announced that he was being `arrested for public lewdness and exposure of person and referring to plaintiff as a pervert and flasher.'" Defs.' Mein. at 5 (quoting Compl. ¶ 24). Accordingly, Defendants argue that Plaintiff's June 11, 2015 Notice of Claim was untimely pursuant to N.Y. Gen. Mun. Law § 50-e, as it was filed more than ninety days after his state law claims accrued. Id. In the Complaint, Plaintiff alleges that his Notice of Claim was timely pursuant to N.Y. Gen. Mun. Law § 50-e because his state law causes of action actually accrued on March 18, 2015, which is the date on which he was acquitted of public lewdness and exposure of a person. See Compl. ¶ 10. In light of the parties' disagreement regarding the timeliness of Plaintiff's Notice of Claim, the Court must first determine the accrual date of his state law claims for defamation, IIED, false arrest, and malicious prosecution.

i. Defamation

A cause of action for defamation "accrues at the time of the defendant's original publication of the defamatory statement." Cinevert v. Varsity Bus Co., Inc., No. 12-CV-1223, 2014 WL 4699674, at *3 (E.D.N.Y. Sept. 22, 2014); see also Wilson v. Erra, 94 A.D.3d 756, 756, 942 N.Y.S.2d 127 (2d Dep't 2012) ("A cause of action alleging defamation accrues at the time the alleged statements are originally uttered."). Here, Plaintiff's defamation claim is based on Officers Zimmer and Cirko "repeating loudly that [he] was being arrested for `public lewdness and `exposure of a person' [and] referring to plaintiff as a `pervert' and `flasher.' Compl. ¶ 24. Accordingly, Plaintiffs claim for defamation accrued on the date on which he was arrested, May 9, 2014, and his June 11, 2015 Notice of Claim was therefore untimely with respect to this cause of action. As a result, the Court recommends that Plaintiff's state law claim for defamation be dismissed with prejudice. See Belgrave v. City of New York, No. 95-CV-1507, 1999 WL 692034, at *46 (E.D.N.Y. Aug. 31, 1999) (dismissing defamation claim for failure to file a timely Notice of Claim).

ii. Intentional Infliction of Emotional Distress

A cause of action for IIED "accrues on the date of injury." Wilson, 94 A.D.3d at 756. Where an LIED claim is premised on an allegedly wrongful arrest, courts have held that the cause of action accrues on the date of arrest. See, e.g., McCart v. Vill. of Mt. Morris, No. 09-CV-6472, 2011 U.S. Dist. LEXIS 85804, at *8-9 (W.D.N.Y. Aug. 4, 2011) (holding that a claim for LIED accrued on the date the plaintiff was arrested). Here, although Plaintiff does not specifically state the basis for his 11ED claim, the Court interprets it to be premised on his allegedly illegal arrest and the allegedly defamatory statements that Officers Zimmer and Cirko made during the course thereof. See Compl. ¶¶ 24, 25, 29-30. Accordingly, Plaintiff's claim for LIED accrued on May 9, 2014, and his June 11, 2015 Notice of Claim was untimely with respect to this cause of action. Accordingly, the Court recommends that Plaintiff's state law claim for LIED also be dismissed with prejudice. See Jackson v. City of New York, 29 F.Supp.3d 161, 182 (E.D.N.Y. 2014) (dismissing LIED claim for failure to file a timely Notice of Claim as well as on the merits).

iii. False Arrest

A cause of action for false arrest under New York law "accrues when an arrestee is bound over by a magistrate or arraigned on charges." Bailey v. City of New York, 79 F.Supp.3d 424, 443 (E.D.N.Y. 2015); see also Mitchell v. Home, 377 F.Supp.2d 361, 378 (S.D.N.Y. 2005) (holding that a cause of action for false arrest "accrues when a plaintiff is released from pre-arraigmnent custody"). To that end, the Supreme Court of the United States has "specifically rejected the theory that a claim for false arrest does not accrue until state criminal proceedings have ended . . . ." Covington v. New York City Police Dep't, No. 94-CV-3382, 2010 WL 4690876, at *2 (E.D.N.Y. Nov. 12, 2010) (citing Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 1096 (2007)); see also Allan v. Antal, No. 12 Civ. 8024, 2014 WL 2526977, at *5 (S.D.N.Y. Mar. 13, 2014) ("[T]he Court must reject Plaintiff's contention that his false imprisomnent did not end until the criminal proceedings terminated:).

*11 Here, although Plaintiff alleges that, during the course of his May 9, 2014 arrest, he was "handcuffed, placed in a police car, printed, photographed and processed," see Compl. ¶ 23, he does not allege that he was also "bound over by a magistrate or arraigned on charges" on that date. See Bailey, 79 F. Stipp. 3d at 443. As such, the Court is unable to conclude that Plaintiff's false arrest claim accrued on the date on which he was arrested. Id. Nevertheless, pursuant to N.Y. Crim. Proc. Law § 140.20, "[u]pon arresting a person without a warrant, a police officer . . . must . . . without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question." N.Y. Crim. Proc. Law § 140.20(1). To that end, New York courts have held that an arrest-to-arraigmnent delay in excess of 24 hours is presumptively `unnecessary' within the meaning of [N.Y. Crim. Proc. Law § 140.20]." Mazza v. City of New York, No. 98-CV-2343, 1999 WL 1289623, at *10 (E.D.N.Y. July 13, 1999); see also People ex rel. Maxian v. Brown, 77 N.Y.2d 422, 427, 568 N.Y.S.2d 575 (1991) (holding that "the steps leading up to arraignment can generally be accomplished well within 24 hours after arrest," and that longer delays are unnecessary pursuant to N.Y. Crim. Proc. Law § 140.20). Accordingly, although the exact date on which Plaintiff's false arrest claim accrued is not readily apparent from the face of the Complaint, it likely accrued within several days of May 9, 2014, and his June 11, 2015 Notice of Claim was therefore untimely with respect to his claim for false arrest. Therefore, the Court recommends that Plaintiff's state law claim for false arrest be dismissed. See Mercedes ex rel. Brown v. Blue, No. 00 Civ. 9225, 2004 WL 2202578, at *11 (S.D.N.Y. Sept. 30, 2004) ("Plaintiffs' false arrest claim under state law is subject to dismissal because of Plaintiffs' failure to file a timely notice of claim."). However, because the exact date of accrual for Walker's state law false arrest claim is uncertain, the Court recommends that dismissal of that cause of action be without prejudice and with leave to replead in the event that Plaintiff claims that he was not taken to see a judge until after March 13, 2015 or later, which would be within ninety days before he served his Notice of Claim.4

iv. Malicious Prosecution

A cause of action for malicious prosecution under New York law "accrues `when plaintiff first becomes entitled to maintain the action, (namely, when there is a determination favorable to plaintiff).'" Riverhead Park Corp. v. Cardinale, 881 F.Supp.2d 376, 381 (E.D.N.Y. 2012) (quoting 10 Ellicott Square Court Corp. v. Violet Realty, Inc., 81 A.D.3d 1366, 1369, 916 N.Y.S.2d 705 (4th Dep't 2011)); see also Harris v. Town of Islip Housing Auth., 825 F.Supp.2d 370, 375 (E.D.N.Y. 2011) ("A malicious prosecution claim accrues on the date that the criminal proceeding against the plaintiff is terminated in his favor."). To that end, it is axiomatic that an acquittal of criminal charges is a "determination favorable to plaintiff." Riverhead Park Corp., 881 F. Supp. 2d at 381; see also Poux v. Cty. of Suffolk, No. 09-CV-3081, 2010 WL 1849279, at *14 (E.D.N.Y. May 4, 2010) (holding that the date of accrual for a malicious prosecution claim was the date on which the plaintiff was acquitted of state law criminal charges); Melia v. City of New York, 119 F.Supp.2d 232, 256 (E.D.N.Y. 2000) (holding that a malicious prosecution claim accrued on the date of the plaintiff's acquittal). Here, it is undisputed that Plaintiff was acquitted of the charges for public lewdness and exposure of a person on March 18, 2015. See Compl. ¶ 10; Defs.' Mem. at 3. Although Defendants argue that "Plaintiff's state law claims accrued on May 9, 2014," the date of Walker's arrest, see Defs.' Mem. at 5, it is well established that a cause of action for malicious prosecution accrues on the date the plaintiff is acquitted, and not on the date of arrest. See Poux, 2010 WL 1849279, at *14. Accordingly, Plaintiff's claim for malicious prosecution accrued on March 18, 2015, and his June 11, 2015 Notice of Claim was therefore timely with respect to that cause of action. Therefore, insofar as Defendants seek dismissal of Plaintiff's state law claim for malicious prosecution on the grounds that Walker's Notice of Claim was untimely pursuant to N.Y. Gen. Mun. Law § 50-e, the Court recommends that Defendants' motion be denied.

2. Whether Plaintiff May be Granted Leave to File a Late Notice of Claim

*12 Defendants further argue that, "[i]f Plaintiff moves to file a late notice of claim, . . . the Court is obligated to deny the request because the Plaintiff's [time] within which to commence an action on his claims that accrued on May 9, 2014 expired on August 7, 2015." Defs.' Mem. at 6. Although Plaintiff has not requested leave to file a late Notice of Claim, given his pro se status, the Court considers whether it is appropriate to extend his time to file a Notice of Claim for his causes of action for defamation, IIED, and false arrest.

Pursuant to N.Y. Gen. Mun. Law § 50-e, "the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) or subdivision one of this section . . . ." N.Y. Gen. Mun. Law" § 50-e(5). However, "[t]he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation." Id. Therefore, a motion for leave to file a late notice of claim must be made within one year and ninety days of the date on which the claim accrued. See N.Y. Gen. Mun. Law § 50-i(1) (requiring that actions against municipalities and their employees be commenced within one year and ninety days of the date on which the claim accrued); see also Evans v. Brookdale Hosp. Med. Ctr., 194 A.D.2d 642, 642, 599 N.Y.S.2d 84 (2d Dep't 1993) ("A motion for leave to serve a late notice of claim must be brought within the applicable Statute of Limitations, which, unless tolled, is one year and 90 days from the date upon which the claim allegedly accrued.").

Moreover, an untimely Notice of Claim served without leave of the court is deemed a nullity. See White v. New York City Housing Auth., 38 A.D.3d 675, 675, 831 N.Y.S.2d 515 (2d Dep't 2007) ("The petitioner failed to serve her notice of claim within the statutory period, and her late service without leave of court was a nullity."); Maxwell v. City of New York, 29 A.D.3d 540, 541, 815 N.Y.S.2d 133 (2d Dep't 2006) (holding that the plaintiff's "late service without leave of court was a nullity"). To that end, like a motion seeking leave to file an untimely Notice of Claim, a motion to deem an untimely filed Notice of Claim as timely nunc pro tune must also be made within one year and ninety days of the date on which the claim accrued. See Palagashvili v. City of New York, 26 A.D.3d 481, 481, 809 N.Y.S.2d 583 (2d Dep't 2006) (holding that the court lacked authority to grant a motion seeking to deem a Notice of Claim timely served nunc pro tune where the "motion was made after the expiration of the one-year and 90-day limitations' period"); Small v. New York City Transit Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229 (2d Dep't 2005) ("As the plaintiff cross-moved to deem the notice of claim served nunc pro tunc after the one year and 90-day accrual date of the claim, the Supreme Court was without authority to grant such relief.").

Here, because Plaintiff's causes of action for defamation, IIED, and false arrest accrued on or about May 9, 2014, any request to file a late Notice of Claim, or to deem his June 11, 2015 Notice of Claim as being timely served nunc pro tune, must have been made within one year and ninety days thereof. See N.Y. Gen. Mun. Law § 50-e(5). Therefore, even if Plaintiff's January 4, 2016 opposition to Defendants' motion to dismiss is liberally construed as a cross-motion for leave to file a late Notice of Claim, the Court lacks authority to grant such relief, as it was filed well over one year and ninety days after Plaintiff's claims for defamation, LIED, and false arrest accrued. See Palagashvili, 26 A.D.3d at 481; Small, 14 A.D.3d at 691. Accordingly, the Court does not recommend that Plaintiff be granted leave to file a late Notice of Claim, or that his June 11, 2015 be deemed timely filed nunc pro tune.

3. Whether Plaintiff States a Claim for Malicious Prosecution under New York State Law

*13 Having recommended that Plaintiff's state law claims for defamation, IIED, and false arrest be dismissed for failure to file a timely Notice of Claim, the Court need only consider whether the Complaint sufficiently states a claim for malicious prosecution under New York law. To that end, having concluded that Plaintiff's allegations are sufficient to state a cause of action for malicious prosecution arising under 42 U.S.C. § 1983, the Court similarly concludes that Plaintiff's allegations are sufficient to state a claim for malicious prosecution under state law. See Deskovic v. City of Peekskill, 894 F.Supp.2d 443, 455 (S.D.N.Y. 2012) ("The standard is the same for Plaintiffs' federal and state law malicious prosecution claims . . . ."). Accordingly, the Court recommends that Defendants' motion to dismiss Plaintiff's state law cause of action for malicious prosecution be denied.

IV. CONCLUSION

Based on the foregoing, the Court respectfully recommends that Defendants' motion to dismiss be granted in part and denied in part. The Court recommends that Defendants' motion: (i) be denied with respect to Plaintiff's causes of action arising under 42 U.S.C. § 1983; (ii) be denied with respect to Plaintiff's cause of action arising under New York state law for malicious prosecution: and (iii) be granted with respect to Plaintiff's remaining causes of action arising under New York state law for defamation, LIED, and false arrest. The Court further recommends that Plaintiff be granted leave to replead his claim for false arrest arising under New York law in an amended complaint, but that his claims for defamation and TIED arising under New York law be dismissed with prejudice.

V. OBJECTIONS

A copy of this Report and Recommendation is being served on Defendants by electronic filing on the date below. Defendants are directed to serve a copy of this Report and Recommendation on Plaintiff and promptly file proof of service by ECF. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of receipt of this report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72; Ferrer v. Woliver, No. 05-3696, 2008 WL 4951035, at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).

All Citations

Not Reported in F.Supp.3d, 2016 WL 4133137

Attorneys and Law Firms

David William Ricksecker, Gregory Keith McGillivary, Hillary LeBeau, Gregory Keith McGillivary, Woodley & McGillivary LLP, Washington, DC, Hope Allison Pordy, Spivak Lipton LLP, New York, NY, for Plaintiffs.

Aliza Jordana Balog, New York City Law Department, New York, NY, for Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, United States District Judge

*1 Plaintiffs, six Motor Vehicle Operators ("MVOs") employed by the New York City Department of Homeless Services ("DHS"), brought an action on behalf of themselves and all others similarly situated alleging that Defendant City of New York failed to comply with various provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"). First Amended Complaint ("Am. Compl."), Dkt. No. 14. Specifically, Plaintiffs allege that the City failed to properly compensate them for overtime, incorrectly calculated their rate of overtime pay, and failed to pay overtime in a timely manner. Id. Defendant moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Amended Complaint in its entirety for failure to state a claim. Defendant's Memorandum of Law in Support of Its Motion to Dismiss the First Amended Complaint (Br), Dkt. No. 18.

For the following reasons, the Court GRANTS in part and DENIES in part the motion to dismiss.

I. Background

On a Rule 12(b)(6) motion, a court must take the facts alleged in the complaint as true and draw all reasonable inferences in plaintiffs' favor. See N.Y. Life Ins. Co. v. United States, 724 F.3d 256, 261 (2d Cir. 2013). Accordingly, the following statement of facts is drawn from the Amended Complaint.

Plaintiffs are, and at all material times have been, employed as MVOs by DHS. Am. Compl. ¶ 4. Named Plaintiffs Nicole Lawtone-Bowles, Ramzan Alli, Gib Brown, Lance Predmore, Dennis Tobin, and Charles Smith all worked at DHS's Prevention Assistance and Temporary Housing (PATH) center in the Bronx, and they bring the action on behalf of all MVOs who work or have worked for DHS at the material times. Id. ¶ 7. MVOs transport homeless individuals and families to temporary housing placements, train stations and airports, and transport DHS employees between DHS facilities, among other duties. Id. ¶ 9. MVOs are generally scheduled for 5 shifts of 8 hours and 30 minutes each week, of which 30 minutes each day is automatically deducted for uncompensated meal period: thus, Plaintiffs are scheduled to work 40 hours per week. Id. ¶ 10.

According to the Amended Complaint, the City's approach to compensating MVOs for overtime violates the FLSA in three ways.

First, Plaintiffs plead that MVOs frequently work uncompensated overtime hours. Plaintiffs "frequently work overtime on their scheduled work days and weekends" because they "frequently work through the unpaid meal periods without compensation," and "frequently work additional hours before the official start time and after the official end time of their regularly scheduled shifts,' causing them to "work in excess of 40 hours in each week that they perform off-the-clock duties." Id. Plaintiffs allege that they "regularly work these additional uncompensated hours in workweeks in which they work over 40 hours." Id. The Amended Complaint goes on to plead more specifics about uncompensated overtime, which the Court addresses below. Id. 11-19, 25-29.

*2 Second, Plaintiffs allege a miscalculation of the rate of MVOs overtime pay. When MVOs work the "night shift," they are entitled to receive "night shift differential pay" equal to ten percent of their basic rate of pay, but Defendant fails to include this in the regular rate of pay when calculating overtime. Id. ¶ 20. The Amended Complaint goes on to plead more specifics about improperly calculated overtime rates, which the Court addresses below. Id. ¶¶ 20, 31-36.

Third, Plaintiffs claim that when they are paid overtime compensation in cash, Defendant improperly delays the payment beyond the next pay period. Id. ¶ 22. The Amended Complaint goes on to plead more specifics about delayed overtime payment, which the Court addresses below. Id. 23, 38-42.

Plaintiffs seek to recover liquidated damages equal to their unpaid compensation, interest on their unpaid compensation, attorney's fees and costs, and declaratory judgment. Id. at 17.

II. Discussion

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. lqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "Determining whether a plausible claim has been pled is `a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 679)

While allegations made upon information and belief satisfy the pleading standards, especially when "facts are peculiarly within the possession and control of the defendant," Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), that the defendant possesses the exact records does not allow plaintiffs to shirk their pleading obligations. Angiulo v. Cty. of Westchester, No. 11-CV-7823(CS), 2012 WL 5278523, at *3, n. 4 (S.D.N.Y. Oct. 25, 2012).

A. Uncompensated Overtime

The FLSA requires that "for a workweek longer than forty hours," an employee who works in "excess of forty hours" shall be paid for that excess work "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). Therefore, "in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of 40 hours." Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013).

Defendant analyzes Plaintiffs' claims of uncompensated overtime using two separate groups of Plaintiffs. The complaint pleads more detail in relation to one group than the other. The Court addresses each in turn.

1. Plaintiffs Lawtone-Bowles, Alli, Smith, and Brown

Defendants argue that Plaintiffs fail to plausibly plead a FLSA overtime claim with respect to four of the named Plaintiffs—Lawtone-Bowles, Alli, Smith, and Brown. Br. at 12. For all named plaintiffs, and for those similarly situated, Plaintiffs plead that they are scheduled for five shifts of 8 hours and 30 minutes each week, for which 30 minutes is uncompensated meal time. Am. Compl. ¶ 10. Plaintiffs therefore are scheduled to perform a minimum of 40 hours of work per week. Id. The overtime work arises, according to the complaint, when Plaintiffs "frequently" work through their unpaid meal periods and "frequently" work additional time before the official start and end of their scheduled shifts. Id. Plaintiffs "regularly work these additional uncompensated hours in workweeks in which they work over 40 hours." Id.

*3 As to the pre-shift work, all plaintiffs are more specifically alleged to "begin work 10 minutes to 30 minutes before the official start time of their shifts and perform pre-shift activities, including but not limited to the [usual tasks discussed above] as well as preparing for their shift by retrieving equipment and vehicle keys, walking to the parking garage to retrieve the vehicle, cleaning the vehicle and taking the vehicle for repairs, for which they are not properly compensated." Id. ¶ 11.

Uncompensated post-shift work activities occur "approximately 2 to 4 times a week" and include MVOs' normal tasks "as well as transporting families and individuals, solving problems with placement sites, helping families unload their luggage, driving through heavy traffic, refilling the vehicle's fuel tank, cleaning the vehicle, returning the vehicle to the parking garage, finalizing trip sheets and submitting receipts." Id.

Plaintiffs provide that they work through their 30-minute meal periods "approximately 2 to 4 times a week, performing the [usual tasks discussed above] for which they are not compensated, such as transporting families and individuals to various locations." Id.

The Complaint then proceeds to give specific examples as to the four above-named plaintiffs. For Lawtone-Bowles, she "arrives and begins working approximately 30 minutes before the start of every shift," preparing by "retrieving equipment for her work vehicle, retrieving the work vehicle keys, walking to the parking garage to pick up her work vehicle, cleaning the vehicle and filling it with gas." Id. ¶ 12. She also works after the end of her shift "approximately 2 to 3 times a week for approximately 30 to 90 minutes," as she is still "transporting families and individuals to placement sites." Id. This may be caused by "traffic," a "problem with the placement site," or if "the family has a lot of luggage to unload." Id. After her shifts, Lawtone-Bowles also "refills the vehicle's fuel tank, cleans the vehicle, returns the vehicle to the parking garage and walks 2.5 blocks from the garage to PATH." Id. At PATH, "she organizes receipts and finalizes her trip log before she clocks out." Id. Plaintiffs continue that these tasks cause her to work in excess of 40 hours per week without compensation, and offer two specific weeks—February 2, 2014 to February 8, 2014 and December 27, 2015 to January 2, 2016—in which she worked more than 40 hours while not being compensated for 2 hours and 1.5 hours of overtime respectively. Id. Moreover, the Complaint alleges that during these weeks in which she performed "off-the-clock duties," she also worked during her meal periods without compensation. Id.

Similar claims are made for the other three: Alli, Smith, and Brown. See id. Ili 13-15. For example, Alli begins working "approximately 15 to 30 minutes before the start of his shift approximately 3 times a week," doing similar tasks to Lawtone-Bowles. Id. ¶ 13. Two specific weeks—May 3, 2015 to May 9, 2015 and June 7, 2015 to June 13, 2015—are referenced as times in which Alli was not compensated for the entirety of his overtime. Id. For Plaintiff Brown, the Complaint does not specify on which days he is normally scheduled for shifts, id. ¶ 15, but given the earlier statement that "MVOs are scheduled for 5 shifts," id. ¶ 10, this is not fatal to Brown's claim.

Defendant argues that these allegations are insufficient to state a claim, dismissing the claims that each plaintiff "routinely" works in excess of 40 hours per week as a "boilerplate" allegation. Br. at 12. When it comes to the eight specific weeks mentioned (two for each plaintiff), Defendant objects that the pleadings "do not allege what tasks were performed that led to this uncompensated work, when such tasks were performed (i.e., before or after a plaintiff's shift), or with what frequency plaintiffs performed these tasks leading them to work uncompensated time." Id. at 13. Moreover, Defendant attempts to turn the allegations around on these plaintiffs, as the specific allegations suggest that they were compensated for much of their overtime, and argues that the "failure to plead any facts explaining what plaintiffs were doing that was uncompensated is fatal to their claims." Id. at 13-14.

*4 The cases relied upon by Defendant do not support its position. Take Lundy for example, a Second Circuit case upon which both parties rely extensively. 711 F.3d at 106. In Lundy, the Court held that "in order to state a plausible FL SA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours." Id. at 114. Plaintiffs have done so here with respect to each of these four individuals. Am. Compl. ¶¶ 10, 12-17. The Lundy plaintiffs did not regularly work 40 hours a week, and so their failure to allege that their uncompensated time put them over the 40-hour mark in any given week was fatal. Id. at 114-15. That is not the case here.

Other recent Second Circuit cases also rely upon markedly different facts in affirming a district court's dismissal of a FLSA overtime claim. In Nakahata v. New York-Presbyterian Healthcare System, the Second Circuit held that "[t]o plead a plausible FLSA overtime claim, plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week." 723 F.3d 192, 201 (2d Cir. 2013). Plaintiffs here have done so directly, providing details about the length, frequency, and nature of their pre-shift, post-shift, and lunch-time activities, on top of allegations that Plaintiffs were scheduled to work forty hours a week. Am. Compl. ¶¶ 10-17. By contrast, in Nakahata, Plaintiffs had not alleged that they were scheduled to work forty hours such that their additional tasks would yield a work week above forty hours. 723 F.3d at 201. And in Dejesus, the Circuit elaborated on Lundy's requirement that a plaintiff "allege overtime without compensation in a `given' workweek," and said that "[w]hile this Court has not required plaintiffs to keep careful records and plead their hours with mathematical precision," they are required to draw on their memory and experience to provide complaints with "sufficiently developed factual allegations." Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2d Cir. 2013); see Bustillos v. Academy Bus, LLC, No. 13-CV-565(AJN), 2014 WL 116012, at *3 (S.D.N.Y. Jan. 13, 2014). Again, this describes what Plaintiffs have done. Am. Compl. ¶¶ 10-17; cf. DeJesus, 726 F.3d at 89 (finding that "Dejesus provided less factual specificity that did the plaintiffs in Lundy or Nakahata").

2. Plaintiffs Predmore and Tobin

The only difference in how Predmore's and Tobin's claims are pled from the other four named plaintiffs is in the lack of any specific week cited as one in which Predmore or Tobin worked more than 40 hours. Am. Compl. Ili 16-17. Instead, with respect to their claims, Plaintiffs rely on more generalized statements of approximation. Consequently, Defendant's arguments for dismissal are stronger here.1

For Predmore and Tobin, in addition to the generalized claims made with respect to all six named plaintiffs, Plaintiffs offer certain specifics. The Amended Complaint alleges that Predmore arrives "approximately 20 to 30 minutes before the start of his shift and performs pre-shift activities," including "checking emails, filling the vehicle's fuel tank, cleaning the vehicle [,] taking the vehicle for repairs, and transporting families and individuals to and from placement sites, airports and train stations." Id. ¶ 16. When he performs these activities, as well as when he "performed work activities identified above during his meal periods," it causes him "to work in excess of 40 hours per week, for which he is not compensated." Id. The specifics offered for Plaintiff Tobin are similar in form and substance. Id. ¶ 17.

*5 Defendant compares the allegations for Predmore and Tobin to the plaintiffs in a series of cases in which dismissal was granted. Br. at 9. But the cases Defendant cites are factually distinct in material ways.

In Cromwell v. New York City Health & Hospitals Corporation, the plaintiff was regularly scheduled to work 37.5 hours per week, meaning that any alleged "uncompensated work" did not necessarily push him over the 40 hour mark to allege uncompensated overtime. No. 12-CV-4251 (PAE), 2013 WL 2099252 (S.D.N.Y. May 15, 2013). This is a fatal deficiency because, "[s]o long as an employee is being paid the minimum wage or more, FL SA does not provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works overtime hours the same week." Lundy, 711 F.3d at 116. The same exact deficiency is present in Lundy, as the plaintiffs, who all worked regular shifts of under 40 hours a week, did not make allegations sufficient to connect the dots between their uncompensated tasks and the weeks in which they allegedly worked more than 40 hours. Id. at 114. In Ramos, this same deficiency is present, as the complaint fails to allege that "any single plaintiff engaged in such ['off the clock'] activities during a week that he or she worked more than 40 hours, or that these activities resulted in a single plaintiff working more than 40 hours in a week." Ramos v. City of N.Y. Fire Dept., No. 13-CV-9225(KBF), 2014 WL 2111687, at *5 (S.D.N.Y. May 9, 2014). For Predmore and Tobin, who normally work 40 hours a week, any additional work they perform is overtime by definition.

In Walz, Judge McMahon granted the motion to dismiss because the plaintiffs did not provide "an estimate of how often they worked overtime or for how many hours, nor do they provide the time frame for when these unpaid hours were earned." Walz v. 44&X Inc., No. 12-CV-5800(CM), 2012 LEXIS 161382, at *12 (S.D.N.Y. Nov. 7, 2012). She continues, "[e]ven stating `most weeks during the entire course of my employment, 1 worked at least two hours later than my shift, plus a two-hour meeting every day' would be enough detail for this Court." Id. Predmore and Tobin meet this minimal standard.

In Bustillos, the deficiency is of a slightly different variety, but one inapposite to the present case nonetheless. Bustillos v. Academy Bus, LLC, No. 13-CV-565(AJN), 2014 WL 116012 (S.D.N.Y. Jan. 13, 2014). The plaintiff's bare allegation that he would "regularly work 60 to 90 hours per week," absent any factual allegations that gave context to his claim, was insufficient to move plaintiff's claim from speculative and conclusory to plausible. Id. at *3. Here, however, Predmore and Tobin add context that helps explain why they worked more than forty hours in a week. Am. Compl. ¶¶ 16-17.

As Judge Forrest explains in Ramos, "Put simply, plaintiffs must allege both that they actually performed work for 40 hours in a week, and then work of some amount over 40 hours for which they were not compensated." 2014 WL 2111687, at *3 (emphasis in original). The failure of Predmore and Tobin to cite a specific week is not fatal when their baseline workweek is already 40 hours. The Court finds that all Plaintiffs adequately state a claim for uncompensated overtime.

B. Other Claims

1. Failure to Apply Differential Rate to Overtime

*6 Defendant argues that Plaintiffs do not plausibly plead their claim that Defendant miscalculated plaintiffs' overtime pay by failing to include the night shift differential. In addition to Plaintiffs' general allegations as to their overtime work and entitlement to the rate, their Amended Complaint also provides reference to specific weeks during which four of the six named plaintiffs (all but Alli and Predmore) should have, but did not, receive this differential rate applied to their overtime compensation. Am. Compl. ¶ 21.

Section 207(e) of the FLSA, pursuant to regulations promulgated by the Department of Labor, 29 CFR Part 778, et seq., requires that all forms of remuneration be included in the rate at which overtime is paid. The collective bargaining agreement between the City of New York and plaintiffs' union specifies that plaintiffs should receive a ten percent shift differential for all scheduled hours worked between 6 P.M. and 8 A.M. with more than one hour of work between 6 P.M. and 8 A.M. See Declaration of Aliza Balog, Exhibit A ("Collective Bargaining Agreement"), Art. III, Sec. 1. Plaintiffs allege that the "failure to include night shift differential pay in plaintiffs' regular rates means that when plaintiffs receive paid overtime for working over 40 hours a week, they are paid at a rate that is below the rate mandated by the FLSA." Am. Compl. ¶ 33.

Defendant argues that plaintiffs fail to plausibly plead this claim in a number of ways. First, the City reiterates its argument that plaintiffs have not sufficiently pled that they worked more than 40 hours in a given workweek such that the requirement that the night shift differential be included in the calculation of overtime takes effect. Br. at 15. As discussed above, the Court rejects this argument, as Plaintiffs plead sufficient facts, drawing inferences in their favor, to establish that they work over 40 hours in a work week at various times.

Defendant lodges other criticisms, including that plaintiffs have not "pled that their regular rate includes them working hours between 6 P.M. and 8 A.M.," that they have not alleged that "they worked at least a full hour between 6 P.M. and 8 A.M. . . . so as to qualify for the night shift differential," and that some plaintiffs have not alleged "what tasks they were performing that caused them to work between 6 P.M. and 8 A.M., given that their alleged regular shifts end before 6 P.M." Id.

While Defendant makes various factual errors,2 these criticisms are valid as to certain named plaintiffs. Plaintiffs Lawtone-Bowles, Smith, and Brown are asserted to have regular schedules in which their entire shifts fall within the night shift window of time. Am. Compl. ¶¶ 11, 12, 14, 15. Additionally, Tobin, whose shifts normally run mostly during the daytime, is specifically alleged to have worked "5 shifts between the hours of 6:00 PM to 8:00AM," during the week of January 11, 2015 to January 17, 2015, "for which defendant failed to include the night shift differential when calculating the regular rate for overtime payments." Id. ¶ 21. Thus, drawing inferences in favor of the plaintiffs, if an individual's normal schedule has him or her working 40 hours a week at night, it stands to reason that any overtime should be compensated with the inclusion of the ten percent shift differential.

By contrast, there are no factual allegations specific to Plaintiffs Alli and Predmore establishing that they ever worked hours entitling them to night shift differential pay. For this reason, there is little question that the complaint does not adequately plead this claim for those plaintiffs, and any claims brought on these grounds with respect to Plaintiffs Alli and Predmore are dismissed.

2. Improper Delay in Overtime Payment

*7 Finally, Plaintiffs allege that when they are paid for overtime compensation in cash, "defendant delays the payment of overtime beyond the next pay period for which the plaintiffs are paid for their regular work hours," in violation of 29 USC § 207(a) and 29 CFR § 778.106. Id. ¶ 22. The FLSA allows for delays "reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made." 29 CFR § 778.106. But Plaintiffs allege that the delays are due, in actuality, to "a failure by management personnel to approve overtime payments or management's withholding of such payments until the next budgetary quarter." Am. Compl. ¶ 38. Plaintiffs offer two specific instances, related to Brown and Lawtone-Bowles, to supplement an otherwise conclusory allegation. Id. ¶ 23.

Defendant moves to dismiss this claim on two related grounds. First, as the prompt payment requirement only applies to overtime, if, as Defendant argues, Plaintiffs did not plead more than 40 hours of work in a given workweek, this claim would fall. Br. at 16. Given the above discussion regarding overtime, the Court finds that this was sufficiently pleaded. Second, Defendant argues that Plaintiffs' failure to allege that the specific instances cited were during weeks of more than 40 hours of work is a fatal omission. Id. The Court, drawing inferences in plaintiffs' favor, finds that the use of the word ``overtime" withinthis context implies that the plaintiffs worked more than 40 hours in a given workweek, triggering the application of this provision of the FLSA.

However, Defendant, in its reply brief, also points to a difference between two groups of plaintiffs in how their claims are pleaded, highlighting a flaw similar to that discussed above with respect to the shift differential claims. While Plaintiffs point to specific weeks of overtime for Brown and Lawtone-Bowles that were not timely paid, Am. Compl. ¶ 23, in the absence of similarly specific allegations for the other four named plaintiffs, their claims remain purely conclusory. Reply at 9 (1C]laims as to two plaintiffs are not sufficient to plead plausible claims as to all plaintiffs."). Simply stating that an unlawful thing occurred is insufficient.3 The Court grants the motion to dismiss on Count III for Plaintiffs Alli, Smith, Predmore, and Tobin.

III. Conclusion

For the foregoing reasons, the Court GRANTS in part and DENIES in part the City's motion to dismiss. The Court DENIES the motion to dismiss Count I (failure to pay overtime) in its entirety. Count 11 (failure to properly calculate overtime regular rate of pay) is dismissed as to Plaintiffs Alli and Predmore. Count III (untimely payment of overtime) is dismissed as to Plaintiffs Alli, Smith, Predmore, and Tobin.

An initial pretrial conference shall be scheduled in a separate order.

This resolves Docket Number 17.

SO ORDERED.

All Citations

Slip Copy, 2017 WL 4250513, 2017 Wage & Hour Cas.2d (BNA) 335, 783.