Herman v. The City of New York

1

JOEL HERMAN, Plaintiff, v. THE CITY OF NEW YORK, NYPD POLICE DETECTIVE KENNETH WIEBER, NYPD POLICE OFFICER ANTHONY D'ALTO AND NYPD SERGEANTS JOHN STEWART AND ROBERT MAMYS, Defendants.

No. 15-CV-3059 (PKC) (SJB)

United States District Court, E.D. New York

March 28, 2022

MEMORANDUM & ORDER

Pamela K. Chen United States District Judge

New York Police Department (“NYPD”) Detective Kenneth Wieber, NYPD Officer Anthony D'Alto, NYPD Sergeant John Stewart, NYPD Sergeant Robert Mamys, and the City of New York (collectively, “Defendants”) seek summary judgment against Plaintiff Joel Herman, who brought this action under 42 U.S.C. § 1983 and state law. For the following reasons, Defendants' unopposed motion is granted in part and denied in part.

BACKGROUND

I. Factual Background

Plaintiff and Rochel Herman (“Rochel”) have three children together. (See Defendants' Rule 56.1 Statement (“Facts”), Dkt. 247, ¶¶ 1 11.)^[1] Plaintiff and Rochel alternate custody of their three children in accordance with family court visitation orders. (Id. ¶¶ 5-7; see also Dkt 246-5.)

A. The May 26, 2014 Arrest

On April 22, 2014, Plaintiff called 911 to report that one of his three children had not been dropped off for a scheduled visit with him and was “missing.” (Facts, Dkt. 247, ¶¶ 8, 12; see also Dkt. 246-8, at 3:2-8; Dkt. 246-9, at ECF 8.) Plaintiff told the 911 operator that he needed immediate assistance and that he wanted to file a “missing person report.” (See Dkt. 246-8, at 3:11-14.)

Defendant D'Alto responded to the 911 call and went to Plaintiff's building to investigate. (Dkt. 246-9, at ECF 19.) When D'Alto arrived, Plaintiff told D'Alto that the child “was missing” and that “[h]e had no idea where his son was.” (Id.) Officers conducted a search, and ultimately found the child asleep at Rochel's house. (See Facts, Dkt. 247, ¶ 19; see also Dkt. 246-7, at 87:11- 18.) Rochel told the officers that she had not sent the child to visit with Plaintiff because the child had been injured and needed to go to the doctor. (See Dkt. 246-7, at 87:11-18.)

When the officers informed Rochel of Plaintiff's 911 call, Rochel filed a complaint with the NYPD alleging that the call had been false. (See generally Dkt. 246-9.) Defendant Wieber investigated Rochel's complaint. (See id.) On May 5, 2014, Wieber interviewed Aaron Greenberg, who told Wieber that he had dropped off two of the couple's three children with Plaintiff on April 22, 2014, and, contrary to what Plaintiff reported in his 911 call, had told Plaintiff that Rochel had taken their third child to the doctor to be treated for an injury. (Dkt. 246-9, at ECF 15.) According to Wieber's report, Rochel also told Wieber on May 5, 2014 that Plaintiff “was very much aware and knew where [their third child] was” on April 22, 2014, despite reporting the child missing. (See Dkt. 246-9, at ECF 13.)

On May 26, 2014, Wieber went to arrest Plaintiff for making false statements in the 911 call. (Facts, Dkt. 247, ¶ 37.) When he arrived, Wieber saw Plaintiff driving dangerously, including on the sidewalk. (See Dkt. 246-12.) In addition, Plaintiff's children were in the car without proper seatbelts. (Id.) Wieber arrested Plaintiff and took him to the precinct.

At the precinct, Wieber searched Plaintiff and removed his wallet. (Facts, Dkt. 247, ¶ 44.) The wallet contained credit cards and debit cards that were not in Plaintiff's name. (Id. ¶ 45.) Wieber investigated and determined that the cards belonged to somebody Plaintiff knew, but who had not given Plaintiff permission to have the cards. (Id. ¶¶ 47-51.)

Wieber signed a criminal complaint, which charged Plaintiff with “falsely reporting an incident in the third degree” in violation of New York Penal Law §§ 240.50(2) and 240.50(3)(A); “[e]ndangering the welfare of a child” in violation of New York Penal Law § 260.10(1); “[d]riving on sidewalks” in violation of New York Vehicle & Traffic Law § 1225-a; operating a vehicle without proper safety seats or belts in violation of New York Vehicle & Traffic Law § 1229-c; “criminal possession of stolen property” in the fourth and fifth degrees in violation of New York Penal Law §§ 165.40 and 165.45(2), respectively; “criminal impersonation in the second degree” in violation of New York Penal Law § 190.25(4); and “identity theft in the third degree” in violation of New York Penal Law § 190.78(1). (See Dkt. 246-9, at ECF 7, 9.) On November 17, 2014, all of the criminal charges were dismissed. (Facts, Dkt. 247, ¶ 61.)

B. The May 30, 2014 Arrest

On May 30, 2014, Rochel called NYPD and told Wieber that Plaintiff had picked up one of their children from school in violation of a family court order that had been entered in state court in October 2013 and limited Plaintiff's visitation to every other weekend. (See Dkt. 246-17; see also Facts, Dkt. 257, ¶ 6.) Rochel told Wieber that the court had entered an order specifying which weekends Plaintiff was permitted visitation with the children, and that Plaintiff had picked up the child during an unscheduled time. (See Dkt. 246-18.) Rochel told Wieber that Plaintiff had signed the visitation order he had violated. (See id.)

The same day, Rochel also moved for an order to show cause in state court. (See Dkt. 246-4, at 2.) The state court ordered, ex parte, “that the child [whom Plaintiff had picked up from school] be immediately returned to [Rochel] and any police agency to assist.” (Id.) The court further directed that the Administration for Children's Services, “as well as the [District Attorney] and NYPD, ” “be notified forthwith of the alleged removal of [the child] by [Plaintiff].” (Id. at 2- 3.) Wieber arrested Plaintiff again. (Facts, Dkt. 247, ¶ 84.)

There is evidence that, while Plaintiff was at the precinct, his criminal defense attorney arrived and showed Wieber that the family court's visitation schedule had been modified on March 20, 2014, such that Plaintiff was in fact authorized to pick up the child from school on May 30, 2014. (See Dkt. 246-23, at 65:21-66:4; Declaration of Richard Finkel (“Finkel Decl.”), Dkt. 156-2, ¶¶ 7-14; see also Finkel Decl., Dkt. 156-2, at ECF 22-23 (March 20, 2014 family court order providing that, after a change for the Passover holiday, the alternate weekend visitation schedule would resume, with Rochel having visitation on April 25, 2014, and resulting in Plaintiff having visitation on May 30, 2014).) Plaintiff's attorney also showed the order to Defendant Mamys, who was the sergeant supervising Wieber. (See Dkt. 246-23, at 65:21-66:4; Finkel Decl., Dkt. 156-2, ¶¶ 7-14.)

Wieber signed a criminal complaint charging Plaintiff with “custodial interference in the second degree” in violation of New York Penal Law § 135.45(1), and “criminal contempt in the second degree” in violation of New York Penal Law § 215.50(3). (Dkt. 246-18, at ECF 2.) Wieber did not attach or mention the order showing that Plaintiff was entitled to visitation on May 30, 2014. (See Dkt. 246-18.) Plaintiff was arraigned on May 31, 2014. (Facts, Dkt. 247, ¶ 85.) On various occasions during the prosecution that followed, Plaintiff's defense attorney showed the prosecutor the March 20, 2014 visitation order he had shown Wieber and Mamys, and repeatedly wrote the prosecutor to argue that Plaintiff should not have been charged. (Id. ¶ 96-97.) On October 2, 2014, the criminal charges stemming from the May 30, 2014 arrest were dismissed. (Id. ¶ 98.)

II. Procedural Background

On May 26, 2015, Plaintiff sued the City of New York, Wieber, D'Alto, and various others. (See Complaint, Dkt. 1.) Plaintiff filed a first amended complaint on October 1, 2015 (see Dkt. 12), a second amended complaint on March 31, 2016 (see Dkt. 30), a third amended complaint on November 27, 2019 (see Dkt. 187), and a fourth amended complaint on December 11, 2019 (see Fourth Amended Complaint (“FAC”), Dkt. 190). The FAC is now the operative pleading. It includes the following causes of action against Defendants:

Violations of 42 U.S.C. § 1983:

. Wieber and D'Alto deprived Plaintiff of his Fourth and Fourteenth Amendment rights by arresting him without probable cause on May 26, 2014 and May 30, 2014;

. Wieber and D'Alto deprived Plaintiff of his Fourth and Fourteenth Amendment rights by maliciously prosecuting him for the alleged conduct leading to his arrests on May 26, 2014 and May 30, 2014;

. Wieber deprived Plaintiff of his Fourteenth Amendment rights by fabricating evidence related to his alleged conduct leading to his arrests on May 26, 2014 and May 30, 2014;

. Wieber deprived Plaintiff of his Fourth and Fourteenth Amendment rights by searching him after his arrest on May 26, 2014;

. Wieber and D'Alto deprived Plaintiff of his Fourth and Fourteenth Amendment rights by interfering with his familial association;

. Wieber deprived Plaintiff of his Fourteenth Amendment rights by maliciously abusing the criminal process;

. Stewart failed to intervene in the allegedly unconstitutional search of Plaintiffs wallet after the May 26, 2014 arrest, and Mamys failed to intervene in Plaintiffs allegedly false arrest and malicious prosecution on May 30, 2014; and

. The City of New York is liable under a municipal liability theory.

(FAC, Dkt. 190, ¶¶ 124-182.)

Violations of State Law:

. Wieber violated state law by unlawfully searching and seizing Plaintiff, and both Wieber and D'Alto violated state law by maliciously prosecuting Plaintiff, maliciously abusing the criminal process, and maliciously interfering with Plaintiffs association with his children; and

. The City of New York is liable under a theory of respondeat superior and negligent supervision, retention, and training.

(FAC, Dkt. 190, ¶¶ 183-213.)

On September 29, 2020, after the close of discovery, Magistrate Judge Sanket J....