DocketNumber： 14-cv-2572 (SJF)(AYS)
Citation Numbers： 222 F. Supp. 3d 141
Judges： Feuerstein
Filed Date： 12/6/2016
Status： Precedential
Modified Date： 7/25/2022
OPINION AND ORDER
Plaintiff Colby Fiedler (“Plaintiff’ or “Fiedler”) commenced this action against Defendants P.O. Michael Incandela, P.O. John Focas, P.O. Steven Capparelli, P.O. Dane Flynn, P.O. Richard Yasso, P.O. Stacey Cunneen, P.O. Moira Huggins, Sgt. Christopher Foley, the County of Nassau, and the County of Suffolk (collectively, “Defendants”), alleging causes of action arising under 42 U.S.C. § 1983 and New York state law. See Docket Entry (“DE”) [1]. Presently before the Court are two (2) motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. DE [39], [40], On December 11, 2015, Defendants Focas, Capparelli, Flynn, Yasso, Cunneen, Huggins, Foley, and the County of Suffolk (collectively, the “Suffolk County Defendants”) filed a motion for summary judgment, which Plaintiff does not oppose. DE [39], [39-17]. On December 14, 2015, Defendants Incandela and the County of Nassau (together, the “Nassau County Defendants”) filed a motion for summary judgment, which Plaintiff opposes. DE [40], [40-6]. For the reasons set forth herein, both motions are granted in their entirety.
I. BACKGROUND
A. Factual Background
This action arises out of Plaintiffs December 20, 2011 arrest and subsequent criminal prosecution for criminal possession of stolen property in the fifth degree in violation of N.Y. Penal Law § 165.40.
On December 15, 2011, an unidentified individual stole a package from the home of Incandela’s girlfriend in Lindenhurst, New York. See Incandela Aff. ¶ 4. According to Incandela, surveillance images revealed that the individual who took the package exited “an older grey Kia Optima with a distinctive dent.” Id. at ¶ 7. Subsequently, while driving to his girlfriend’s home on December 20, 2011, Incandela “recognized the vehicle in front of [him] as being the vehicle in the surveillance footage.” Id. at ¶ 8. It is undisputed that Fiedler was a passenger in the vehicle that Incandela observed on December 20, 2011, and that non-party Vincenzo Francese was driving the vehicle. See Pl.’s 56.1 Stmt. ¶ 4; Sivin Decl. Ex. 1 (“Fiedler Aff.”) at ¶ 2.
Incandela contacted the SCPD in order to “relay [his] observations to responding officers” and followed the vehicle to 669 South Sixth Street in Lindenhurst. See Incandela Aff. ¶¶8, 9; Pl.’s 56.1 Stmt. ¶ 8. According to Incandela, at 669 South Sixth Street, he “observed two individuals, males with dark hair, one relatively skinny and the other stockier, exit the vehicle and unload boxes into the garage.” Incandela Aff. ¶ 10. Fiedler disputes unloading packages from the vehicle and claims that, upon arrival at 669 South Sixth Street, he “immediately entered the house” while Francese “remained outside, having told [Fiedler] that he wanted to smoke a cigarette.” Fiedler Aff. ¶ 3. According to Fiedler, he “never unloaded, or assisted [Francese] in unloading, anything from [Francese’s] vehicle, nor did [he] carry anything into [Francese’s] garage or house.” Id. at ¶ 5. When Fiedler and Francese returned to the vehicle and drove away, Incandela remained on the telephone with the SCPD and followed the vehicle to 28 Knoll Street, Lindenhurst, New York. Incandela Aff. ¶ 11.
At approximately 3:35 p.m. on December 20, 2011, Defendants Capparelli and Focas responded to 669 South Sixth Street and received voluntary consent from the property owner, Luciano Francese, to search the premises. Suffolk 56.1 Stmt. ¶ 10; Mitchell Decl. Ex. F. According to Cappar-elli and Focas, “[t]he search resulted in the discovery of packages in the garage that were determined to be stolen.” Mitchell Decl. Ex. G (“Capparelli Aff.”) at ¶ 4; Mitchell Decl. Ex. J (“Focas Aff.”) at ¶ 4. Subsequently, non-parties Danielle De-Maio, Carolyn Shabunia, and Jason Kraft (collectively, the “Property Owners”) each completed a Larceny or Criminal Possession of Stolen Property Affidavit stating that they owned the property that was recovered from the garage at 669 South Sixth Street, and that their property was “taken, obtained, or withheld without [their] permission.” Mitchell Decl. Exs. BD. Capparelli and Focas relayed this information to their superior, non-party Sergeant Wayne Hutzel. Capparelli Aff. ¶ 5; Focas Aff. ¶ 5.
Hutzel, along with Defendants Cunneen, Flynn, and Yasso, responded to 28 Knoll Street and spoke to Incandela. See Mitchell Decl. Ex. K (“Hutzel Aff.”) at ¶ 4; Mitchell Decl. Ex. H. (“Cunneen Aff.”) at ¶ 4; Mitchell Decl. Ex. L (‘Yasso Aff.”) at ¶ 4. Incandela identified Fiedler and Fran-cese as the men he observed moving boxes from the vehicle to the garage at 669 South Sixth Street. Id. Based on Capparel-li and Focas’s determination that the boxes in the garage at 669 South Sixth Street were stolen, along with Incandela’s identification of Fiedler and Francese, SCPD officers arrested Fiedler and Francese outside of 28 Knoll Street. See Suffolk 56.1 Stmt. ¶¶7-11. As the officers arrested Fiedler and Francese, Incandela remained
Following Plaintiffs arrest, Incandela provided a sworn statement to Defendant Focas, in which he stated that, on December 20, 2011, he saw “the same exact vehicle that [he] saw on [his] girlfriend’s surveillance video travelling northbound on Shore Rd. towards Montauk Hwy.” See Nassau 56.1 Stmt. Ex. B (“Incandela Stmt.”), DE [40-3], at 1. Incandela further stated, in relevant part:
I followed the vehicle to 669 S. 6th St., Lindenhurst. I saw the vehicle pull nose in into the driveway and I saw 2 white males exit the vehicle and carry 5 boxes from the trank of the car into the garage. I then saw both white males go into the back seat of the Kia ... and take out items which they covered up with a towel and brought those items into the house. The 2 males came out of the house, got back into the Kia and drove to 28 Knoll St., Lindenhurst.... When the 2 white males exit[ed] the vehicle I positively identified them as the same 2 white males that unloaded the 5 boxes into the garage at 669 S. 6th St., Lindenhurst. As a matter of fact I never lost sight of the vehicle ... as I followed it from 669 S. 6th St. to 28 Knoll St., Lindenhurst.
Id. at 1-2. According to Incandela, after identifying Fiedler and Francese as the individuals who moved the boxes from the vehicle to the garage, he returned to 669 South Sixth Street, where he observed five (5) boxes that were “positively the same boxes [he] saw the 2 males carrying into the garage from the Kia trunk earlier in the day.” Id. at 2.
On December 20, 2011, Cunneen, Yasso, and Flynn each prepared and signed a Misdemeanor Information charging Plaintiff with criminal possession of stolen property in the fifth degree in violation of N.Y. Penal Law § 165.40. Suffolk 56.1 Stmt. ¶¶1-6. Cunneen, Yasso, and Flynn based their charges on Incandela’s December 20, 2011 sworn statement to the SCPD and the Property Owners’ Affidavits. Id.-, see also Mitchell Deck Exs. B-D. According to the Suffolk County Defendants, “[b]etween the time of the plaintiffs arrest and his arraignment, no defendant officer became aware of any information that would lead them to believe that probable cause did not exist for his arrest or that would eliminate probable cause.” Suffolk 56.1 Stmt. ¶ 12.
On January 14, 2013, Incandela gave another sworn statement to the SCPD, stating that, “through police investigation,” he learned that “one of the people [he] observed carrying boxes from the described vehicle into the garage ... to be Colby Fiedler.” Sivin Decl. Ex. 5. According to Plaintiff, following his December 20, 2011 arrest, he “was required to appear in Suffolk County Criminal Court on approximately a dozen occasions in connection with the criminal charges brought against him.” Ph’s 56.1 Stmt. ¶ 10. At a January 24, 2013 hearing, the Suffolk County District Attorney dropped all criminal charges pending against Fiedler, stating that the dismissal was “based upon [a] full and complete investigation into the[] cases.” Id. at ¶ 12.
B. Procedural Background
On February 21, 2013, Fiedler filed a Notice of Claim against Incandela, Nassau County, and Suffolk County. Sivin Deck Ex. 8. Plaintiff sought to “recover damages for injuries sustained ... as a result of being maliciously prosecuted by P.O. Michael Incandela and by other members of
By way of a Complaint dated April 22, 2014, Fiedler commenced this action, alleging causes of action arising under 42 U.S.C. § 1983 and New York state law. DE [1], Against Defendants Incandela, Fo-cas, Capparelli, Flynn, Yasso, Cunneen, Huggins, and Foley (collectively, the “Individual Defendants”), Plaintiff asserts causes of action for: (i) false arrest, malicious prosecution, abuse of process, and conspiracy arising under both 42 U.S.C. § 1983 and New York state law; (ii) common law negligence and gross negligence; and (iii) unreasonable search and seizure in violation of the New York State Constitution. Compl. ¶¶97-132, 138-49, 186-91. Against Nassau County and Suffolk County (together, the “County Defendants”), Plaintiff asserts causes of action for: (i) municipal liability arising under 42 U.S.C. § 1983; (ii) negligent hiring, training, supervision, and retention; and (iii) vicarious liability for the state law torts of the Individual Defendants. Id. at ¶¶133-37,150-85.
On December 11, 2015 the Suffolk County Defendants filed their motion for summary judgment pursuant to Fed. R. Civ. P. 56. DE [39]. The Suffolk County Defendants argue, inter alia, that probable cause existed to arrest and prosecute 'Plaintiff for criminal possession of stolen property in the fifth degree. See Suffolk County Defendants’ Memorandum of Law in Support of Motion Pursuant to Rule 56 (“Suffolk Defs.’ Mem.”), DE [39-4], at 2-3. They further argue that “all defendants are entitled to qualified immunity as there was at least arguable probable cause for the arrest of the plaintiff,” Id. at 3. In a November 30, 2015 letter, Plaintiff wrote that he “is not opposing the summary judgment motion served by defendants County of Suffolk and the individually named Suffolk County police officers.” DE [39-17].
On December 14, 2015, the Nassau County Defendants filed their motion for summary judgment pursuant to Fed. R. Civ. P. 56. DE [40]. According to the Nassau County Defendants, “Nassau County had no involvement whatsoever in the facts or circumstances giving rise to this case.” See Nassau County Defendants’ Memorandum of Law in Support of Motion for Summary Judgment (“Nassau Defs.’ Mem.”), DE [40-1], at 2. They further argue that “Incandela was [a] Nassau County police officer at the time of the occurrences, but was off-duty visiting his girlfriend ... in Suffolk County, and reported information to the local police in the same manner as any other citizen would.” Id. at 2-3. In opposition, Plaintiff argues that the Nassau County Defendants’ motion “should be denied on the merits since plaintiffs proofs raise triable issues of fact as to whether Incandela knowingly made false allegations that resulted in plaintiffs arrest and prosecution.” Pl.’s Opp’n at 1. Plaintiff further argues that the Nassau County Defendants’ motion should be denied on various procedural grounds. Id. at 4-7.
Pursuant to Fed. R. Civ. P. 56, a “court shall grant summary judgment if the mov-ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the burden of establishing that there are no material facts that preclude judgment as a matter of law. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2004). In deciding a motion for summary judgment, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (holding that a motion for summary judgment should be denied if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).
Once the movant has met its initial burden, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (internal quotation omitted); see also Maxton v. Underwriter Labs., Inc., 4 F.Supp.3d 534, 542 (E.D.N.Y. 2014) (“An issue of fact is considered ‘genuine’ when a reasonable finder of fact could render a verdict in favor of the non-moving party.”). In determining whether summary judgment is warranted, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
III. DISCUSSION
A. Plaintiffs Procedural Arguments
Before addressing the merits of Defendants’ motions for summary judgment, the Court considers Plaintiffs argument that the Nassau County Defendants’ motion should be denied on procedural grounds because: (i) the Nassau County Defendants failed to file a Notice of Motion as required by Local Rule 7.1; (ii) the Nassau County Defendants’ Rule 56.1 Statement does not contain citations to admissible evidence; and (iii) Scott J. Kreppein, Esq. lacks standing to move for summary judgment on Incandela’s behalf because Krep-pein did not file a Notice of Appearance with respect to Incandela. Pl.’s Opp’n at 4-7. For the reasons set forth herein, Plaintiffs procedural arguments do not provide an independent basis for denying the Nassau County Defendants’ motion.
1. Failure to Serve a Notice of Motion
Pursuant to Rule 7.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (the “Local Rules”), “all motions shall include ... [a] notice of motion, or an order to show cause signed by the Court, which shall specify the applicable rules or statutes pursuant to which the motion is brought, and shall specify the relief sought by the motion.” Local Rule 7.1(a). The Second Circuit has held that “[a] district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001), Relevant here, the court has discretion to overlook a failure to
According to Plaintiff, the Nassau County Defendants “failed to submit a notice of motion in support of their motion for summary judgment” and “the papers that have been submitted ... do not fairly and adequately apprise plaintiff of the scope of the relief they seek.”
2. Failure to Cite to Admissible Evidence
Pursuant to Local Rule 56.1, a party seeking summary judgment must submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Rule 56.1(a). Local Rule 56.1 further provides that “[e]ach statement by the movant or opponent pursuant to Rule 56.1(a) ... must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).” Id. at 56.1(d). The purpose of Local Rule 56.1(d) “is to ‘free district courts from the need to hunt through voluminous records without guidance from the parties ....’” Giannullo v. City of New York, 322 F.3d 139, 145 (2d Cir. 2003) (quoting Holtz, 258 F.3d at 74). The court need not consider as true any fact that is not supported by admissible evidence. See Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 260 (S.D.N.Y. 2014). However, the court “may in its discretion opt to ‘conduct an assiduous review of the record’ even where one of the parties has failed to file such a statement.” Holtz, 258 F.3d at 73 (quoting Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 292 (2d Cir. 2000)); see also Whitehurst, 998 F.Supp.2d at 260 (considering the merits of a motion for summary judgment where the movant’s Rule 56.1
The Nassau County Defendants fail to cite to admissible evidence in any of the eight (8) paragraphs of their Rule 56.1 Statement. See Nassau 56.1 Stmt. ¶¶1-8. According to Plaintiff, the failure to cite to admissible evidence, “coupled with defendants’ failure to submit a notice of motion, should result in a denial of the motion.” PL’s Opp’n at 6. Although the Court does not condone the Nassau County Defendants’ blatant disregard for Local Rule 56.1, in light of the “strong preference for resolving disputes on the merits, rather than on the basis of procedural issues,” Pushkin v. Nussbaum, No. 10 Civ. 9212, 2011 WL 4063493, at *1 (S.D.N.Y. Aug. 12, 2011), as well as the brevity of the Nassau County Defendants’ Rule 56.1 Statement, the Court will review the evidence submitted and consider the merits of the Nassau County Defendants’ motion.
3. Failure to File a Notice of Appearance
Finally, relying upon Baitey v. Sloly, No. 07 Civ. 9469, 2008 U.S. Dist. LEXIS 113153 (S.D.N.Y. Feb. 5, 2008), Fiedler argues that “the instant motion, to the extent it seeks summary judgment on behalf of Incandela, has been made by a lawyer who does not have standing to seek relief on behalf of Incandela.” Pl.’s Opp’n at 7. On June 18, 2014, Deputy Nassau County Attorney Diane C. Petillo fíled a Notice of Appearance on behalf of both Incandela and Nassau County. DE [5]. On June 5, 2015, Petillo withdrew her appearance only on behalf of Incandela. See Electronic Order, dated June 5, 2015. On July 8, 2015, Kreppein filed a Notice of Appearance only on behalf of Nassau County. DE [30]. Kreppein did not file a Notice of Appearance on behalf of Incandela until December 14, 2015. DE [41]. However, unlike the attorney in Baitey, who sought relief on behalf of defendants she “expressly stated that she did not represent,” 2008 U.S. Dist. LEXIS 113153, at *2 n.1, Kreppein has never disputed his representation of Incandela in this action. As Krep-pein seeks relief on behalf of his own client, his failure to file a Notice of Appearance prior to filing the instant motion does not provide an independent basis for denying the Nassau County Defendants’ motion for summary judgment.
B. 42 U.S.C. § 1983 Legal Standard
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....
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); see also Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (“[Section 1983] merely provides a method for vindicating federal rights elsewhere conferred ....”) (internal quotation omitted). Therefore, to prevail on a claim arising under Section 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).
As a threshold issue, the Nassau County Defendants argue that they cannot be liable under Section 1983 because Incandela
1. Judicial Admission
An “assertion of fact in a pleading is a judicial admission by which [a party] normally is bound throughout the course of the proceeding.” Bellefonte Reinsurance Co. v. Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985). A judicial admission is “not considered to be evidence, ‘but rather [has] the effect of withdrawing a fact from contention.’ ” TR 39th St. Land Corp. v. Salsa Distrib. USA, LLC, No. 11 Civ. 7193, 2015 WL 1499173, at *5 (S.D.N.Y. Mar. 25, 2015) (quoting Maurizio v. Goldsmith, 84 F.Supp.2d 455, 464 (S.D.N.Y. 2000)). To be considered a judicial admission, the assertion “must be [a] ‘clear and unambiguous admission of fact.’ ” Hausler v. JP Morgan Chase Bank, N.A., 127 F.Supp.3d 17, 37 (S.D.N.Y. 2015) (emphasis added) (quoting Kregler v. City of New York, 821 F.Supp.2d 651, 656 (S.D.N.Y. 2011)). In contrast, “[i]t is well established that judicial admissions on questions of law have no legal effect.” DeVito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 F.Supp. 258, 267 n.14 (S.D.N.Y. 1997) (emphasis in original). Additionally, “[a] District Court, convinced that an honest mistake had been made, the original allegation was untrue and that justice required relief ... may, in its discretion, relieve the party of its otherwise binding consequence.” Triumph Constr. Corp. v. New York City Council of Carpenters Pension Fund, 29 F.Supp.3d 373, 380 (S.D.N.Y. 2014).
As an affirmative defense in their Answer, the Nassau County Defendants claim that, “at all times herein mentioned and mentioned in the Complaint, the peace officers, and/or agents, servants or employees of the Defendant County of Nassau, having anything to do with the Plaintiff were in the performance of their respective duties as peace officers, and/or agents, servants or employees of the Defendant County of Nassau ....” See Nassau Ans. ¶ 224. According to Plaintiff, “[t]his is a formal judicial admission that is now conclusive against defendants.” Pl.’s Opp’n at 11. However, as the question of “whether an actor was functioning under color of law or as a state actor is a question of law for the court,” Vega v. Fox, 457 F.Supp.2d 172, 181 (S.D.N.Y. 2006), the doctrine of judicial admission is inapplicable. See DeVito, 975 F.Supp. at 267 n.14; see also Funnekotter v. Agric. Dev. Bank of Zimbabwe, No. 13 Civ. 1917, 2015 WL 3526661, at *8 (S.D.N.Y. June 3, 2015) (holding that there was “no judicial admission of fact that estop[ed] Plaintiffs from opposing [a] motion to dismiss” where “facts relevant to [a] question of law (which could constitute judicial admissions) [were] not pleaded in the complaint”). Moreover, elsewhere in their Answer, the Nassau County Defendants deny knowledge or information sufficient to form a belief as to the truth of Plaintiffs allegation that Incandela was “acting within the scope and course of his employment
2. Incandela was not Acting Under the Color of Law
It is well established that Section 1983’s “under-color-of-state-law element ... excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982)). The Supreme Court has held that an individual acts under the color of law when he or she exercises power “made possible only because [he or she] is clothed with the authority of state law .... ” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)); see also United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (“The Supreme Court has broadly interpreted the color of law requirement, concluding that misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law.”) (internal quotation and alteration omitted). In analyzing whether a police officer acted under the color of law, courts consider, inter alia, whether the officer:
(1) was off-duty; (2) identified himself as an officer of the law; (3) was in uniform; (4) was authorized to make an arrest at the time; (5) was carrying handcuffs; (6) was carrying any weapons; (7) flashed a police badge; and (8) placed the plaintiff under arrest or otherwise detained her.
Cotz v. Mastroeni, 476 F.Supp.2d 332, 372 (S.D.N.Y. 2007).
Where the defendant is an off-duty police officer, “courts look to the nature of the officer’s act, not simply his duty status.” Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994); see also Rivera v. La Porte, 896 F.2d 691, 695 (2d Cir. 1990) (“The off-duty status of an arresting officer does not mean that he is not acting under color of law.”). Liability under Section 1983 “may attach where an off-duty officer ‘invokes the real or apparent power of the police department.’ ” Wong v. Yoo, 649 F.Supp.2d 34, 54 (E.D.N.Y. 2009) (quoting Pitchell, 13 F.3d at 548). Therefore, even where an off-duty officer is engaged in an altercation that is private in nature, he “will be considered to be acting under color of law if the officer responded by invoking his or her authority.” Claudio v. Sawyer, 675 F.Supp.2d 403, 408 (S.D.N.Y. 2009); see also Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (“We have no doubt that when an officer identifies himself as a police officer and uses his service pistol, he acts under color of law.”). In contrast, “‘personal pursuits’ of police officers do not give rise to section 1983 liability .... ” Pitchell, 13 F.3d at 548 (quoting Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945)). Ultimately, the court must examine the “totality of the circumstances surrounding the officer’s acts, with attention to the nature of the officer’s acts (rather than simply the officer’s duty status) and the relationship of that conduct to the officer’s official
No rational trier of fact could conclude that Incandela was acting under the color of law on December 20, 2011. It is undisputed that Incandela was off duty at all relevant times, and that he contacted the SCPD—a police department for which he did not work-in order to “report the location of a vehicle that he knew had been involved in a crime five days earlier, and then gave a statement as to what he had observed.” Nassau Defs.’ Mem. at 5; see also Incandela Aff. ¶¶ 8, 17. When SCPD officers arrested Fiedler outside of 28 Knoll Street, Incandela remained in his vehicle and did not interact with Fiedler in any manner. Incandela Aff. 13, 14. There is no evidence that Incandela was wearing his NCPD uniform, was carrying or used a department-issued firearm or handcuffs, flashed a police badge, or identified himself as a police officer at any time such that he “invokefd] the real or apparent power of the police department.” Wong, 649 F.Supp.2d at 54; see also Cotz, 476 F.Supp.2d at 372. Rather, the evidence establishes that Incandela contacted the SCPD to report a crime and provided a sworn statement following Fiedler’s arrest, neither of which “depended on state authority .... ” Polk Cty. v. Dodson, 454 U.S. 312, 319, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 (1981). As Incandela did not exercise power “made possible only because [he was] clothed with the authority of state law,” Classic, 313 U.S. at 326, 61 S.Ct. at 1043, he was not acting under the color of law pursuant to Section 1983.
In opposition to the Nassau County Defendants’ motion, Plaintiff argues, inter alia, that Incandela “took an active role in plaintiffs arrest” because he “surveilled and followed the vehicle in which plaintiff was a passenger, ‘coordinated a response’ with the Suffolk County Police Department, and ... falsely accused plaintiff of being one of two people who unloaded items from the trunk and rear seat of the vehicle.” PL’s Opp’n at 9. However, as discussed above, there is no evidence that Incandela performed any “duties prescribed generally for police officers.” See Pitchell, 13 F.3d at 548. To the extent that Incandela “coordinated a response” with the SCPD, see PL’s Opp’n at 9, the evidence establishes that Incandela merely reported to 28 Knoll Street, identified Fielder and Francese as the individuals he observed moving boxes from the vehicle to the garage at 669 South Sixth Street, and provided a sworn statement to Focas.
Relying upon Hearst v. City of New York, No. 05-CV-5272, 2012 WL 1020041, 2012 U.S. Dist. LEXIS 41135 (E.D.N.Y. Feb. 17, 2012), Plaintiff further argues that “there is ample evidence from which the trier of fact reasonably can infer that In-candela acted as more than just a private citizen and that he engaged in the type of activities that normally are associated with law enforcement officials.” Pl.’s Opp’n at 13. In Heard, during the course of a personal dispute, an off-duty police officer identified himself to the plaintiff as a police officer, shot the plaintiff with a department-issued service revolver, and identified himself as a “member of the service” to a 911 dispatcher. 2012 WL 1020041, at *5, 2012 U.S. Dist. LEXIS 41135, at *16-18. In denying the defendant’s motion for summary judgment, the court observed that it was “undeniable that the altercation ... began as a personal dispute,” but held that “there [were] questions of material fact as to whether [the defendant] was acting within the scope of his employment when he shot [the plaintiff].” Id. at *6, 2012 U.S. Dist. LEXIS 41135, at *19-20. Unlike Hearst, as discussed above, In-candela’s actions of calling the SCPD to report a crime and providing a sworn statement to Focas were not “made possible only because [he was] clothed with the authority of state law,” Walsh, 194 F.3d at 50, and are insufficient to establish that he was acting under the color of law on December 20, 2011. Therefore, Incandela is entitled to judgment as a matter of law with respect to Plaintiffs claims arising under 42 U.S.C. § 1983.
C. Individual Liability Arising Under 42 U.S.C. § 1983
Plaintiff asserts causes of action arising under Section 1983 for false arrest, malicious prosecution, abuse of process, and conspiracy. Compl. ¶¶ 97-101, 108-12, 120-25, 145-49. He also asserts overlapping claims arising under New York state law for malicious prosecution, abuse of process, and conspiracy,
1. False Arrest
In analyzing a claim for false arrest under Section 1983, “federal courts look to the law of the state in which the arrest occurred.” Hoyos v. City of New York, 999 F.Supp.2d 375, 385 (E.D.N.Y. 2013). To prevail on a false arrest claim under either Section 1983 or New York law, the plaintiff must establish: “(1) the defendant intended to confíne him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Jocks, 316 F.3d at 134-35; see also Prowisor v. Bon-Ton, Inc., 426 F.Supp.2d 165, 171 (S.D.N.Y. 2006) (“A section 1983 claim for false arrest ... is identical to a claim for false arrest under New York law.”). The existence of probable cause to arrest “consti tutes justification and is a complete defense to an action for false arrest.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotation omitted). 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). The Second Circuit has held 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. Vill. 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). Whether probable cause to arrest exists “is objective ... and determined by the totality of the circumstances.” Prowisor, 426 F.Supp.2d at 172.
The undisputed facts establish that probable cause existed to arrest Plaintiff for criminal possession of stolen property in the fifth degree. Following In-candela’s report to the SCPD that he “observed a vehicle that he recognized as being involved in a previous theft of a package from the door step of his girlfriend,” Capparelli and Focas responded to 669 South Sixth Street, where they recovered packages determined to be stolen. Capparelli Aff. ¶ 3; Focas Aff. ¶ 3. Based on Incandela’s subsequent identification of Fiedler and Francese as the individuals he observed moving packages from the vehicle to the garage at 669 South Sixth Street, the SCPD arrested Plaintiff. Id. at ¶¶5, 6. These facts are sufficient to establish that probable cause existed to arrest Plaintiff for criminal possession of stolen property in the fifth degree. See Martinez, 202 F.3d at 634 (“[P]olice officers, when making a probable cause determination, are entitled to rely on the victims’ allegations that a crime has been committed.”); Prowisor, 426 F.Supp.2d at 172 (holding that probable cause existed where two witnesses “alleged that they independently witnessed plaintiff [commit a crime], with one swearing a Complaint/Information’’); see also N.Y. Penal Law § 165.40 (“A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than the owner thereof or to impede the recover by an owner thereof.”). As probable cause existed to arrest Plaintiff for criminal possession of stolen property in the fifth degree, the Suffolk County Defendants are entitled to judgment as a
2. Malicious Prosecution
Claims of malicious prosecution arising under Section 1983 are governed by the same standard applied under New York state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). To prevail on a claim of malicious prosecution under Section 1983 or New York law, a plaintiff must establish: “(1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)); see also Genovese v. Cty. of Suffolk, 128 F.Supp.3d 661, 668 (E.D.N.Y. 2015) (“[T]he elements of a malicious prosecution claim are identical under Section 1983 and New York law.”). A police officer initiates criminal proceedings for purposes of a malicious prosecution claim by having the plaintiff arraigned, filling out complaining or corroborating affidavits, or signing a felony complaint. See Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 382-83 (S.D.N.Y. 2005). Like a claim for false arrest, “the existence of probable cause is a complete defense to a claim of malicious prosecution in New York.” Savino, 331 F.3d at 72. However, the 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). 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).
i. Individual Suffolk Defendants
As discussed above, probable cause existed to arrest Fiedler for criminal possession of stolen property in the fifth degree. There is no evidence that the Individual Suffolk Defendants learned of exculpatory facts or circumstances after Fied-ler’s arrest sufficient to eliminate probable cause to initiate criminal proceedings. To the contrary, both Capparelli and Focas affirmed that they “did not become aware of any information that would lead [them] to believe that probable cause did not exist for [Plaintiffs] arrest or that would eliminate probable cause.” Capparelli Aff. ¶ 7; Focas Aff. ¶ 7. Therefore, probable cause existed to initiate criminal proceedings against Fiedler, see D’Angelo, 288 Fed.Appx. at 726, and the Suffolk County Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claim for malicious prosecution arising under Section 1983 and New York state law.
ii. Incandela
Under New York law, “ ‘[i]n order for a civilian complainant to be considered to have initiated a criminal proceeding, it must be shown that the complainant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.’ ” Weiner v. McKeefery, 90 F.Supp.3d 17, 45 (E.D.N.Y. 2015) (quoting Barrett v. Watkins, 82 A.D.3d 1569, 1572, 919 N.Y.S.2d 569 (3d Dep’t 2011)) (internal alteration omitted); see also Arum v. Miller, 273 F.Supp.2d 229, 234 (E.D.N.Y. 2003) (holding that a civilian may be held liable for malicious prosecution under New York law “where the plaintiff shows that the civilian ‘initiated’ or ‘instigated’ the proceedings against her
Ineandela is entitled to judgment as a matter of law with respect to Plaintiffs claim for malicious prosecution arising under New York law. The evidence establishes that Ineandela did not actually accuse Fiedler of moving stolen property from the vehicle to the garage at 669 South Sixth Street or of otherwise committing a crime. Rather, Ineandela initially contacted the SCPD because he “observed a vehicle that he recognized as being involved in a previous theft of a package from the door step of his girlfriend.” Cap-parelli Aff. ¶ 3; Focas Aff. ¶ 3 (emphasis added). Contrary to Plaintiffs arguments that “Ineandela told members of the SCPD that ... he saw plaintiff unload stolen property from the trunk and rear seat of the vehicle,” and that Ineandela “falsely accused plaintiff- of unloading stolen property into the garage and house,” see Pl.’s Opp’n at 2 (emphasis added), in his December 20, 2011 sworn statement, In-candela stated that he “saw 2 white males exit the vehicle and carry 5 boxes from the trunk of the car into the garage.” Incande-la Stmt, at 1. In his affidavit submitted in support of the instant motion, Ineandela stated that he “observed two individuals ... exit the vehicle and unload boxes into the garage.” Ineandela Aff. ¶ 10. There is no evidence that Ineandela informed the SCPD that the packages he observed Fiedler and Francese move from the vehicle to the garage were stolen. Rather, based on Incandela’s observations, the SCPD conducted its own investigation, including searching the garage at 669 South Sixth Street and speaking with the owners of the property recovered therein, which revealed that the packages in the garage were stolen. See Suffolk 56.1 Stmt. ¶¶8-11; Mitchell Decl. Exs. B-D. As Ineandela merely provided information to the SCPD, which then conducted its own investigation resulting in Fiedler’s arrest and prosecution, Ineandela did not initiate criminal proceedings as required to establish 'a claim for malicious prosecution. See Wong, 649 F.Supp.2d at 65; Arum, 273 F.Supp.2d at 234.
Even accepting as true Plaintiffs argument that Ineandela incorrectly accused Fiedler of moving boxes from the vehicle to the garage, there is no evidence that Ineandela acted with actual malice as required to establish a claim for malicious prosecution. Actual malice “does not require a plaintiff to prove that the- defendant was motivated by spite or hatred,” but rather, that the defendant initiated a criminal proceeding “due to a wrong or improper motive .... ” Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir. 1994). As Ineandela contacted the SCPD to report that he recognized the vehicle he observed in the December 15, 2011 surveillance footage of his girlfriend’s home, and never actually accused Fiedler of moving stolen property at 669 South Sixth Street or of otherwise committing a crime, it cannot be
Based upon the foregoing, Incandela is entitled to judgment as a matter of law with respect to Plaintiffs claim for malicious prosecution arising under New York state law.
3. Abuse of Process
A claim for abuse of process under Section 1983 is analyzed under the same standards applicable under New York law. Anderson v. Cty. of Nassau, 297 F.Supp.2d 540, 548 (E.D.N.Y. 2004); see also Lee v. Corneil, No. 13-CV-8359, 2016 WL 1322444, at *6 (S.D.N.Y. Apr. 1, 2016) (“Because a section 1983 claim for abuse of process borrows its elements from New York state law, both the federal and state claim follow the same analysis.”). To prevail on a claim for abuse of process under Section 1983 or New York law, a plaintiff must establish that the defendant: “(1) employed] 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.” Bertuglia v. City of New York, 133 F.Supp.3d 608, 638 (S.D.N.Y. 2015) (quoting Savino, 331 F.3d at 76). Moreover, “[t]he pursuit of a collateral objective must occur after the process is issued; the mere act of issuing process does not give rise to a claim.” Lopez v. City of New York, 901 F.Supp. 684, 691 (S.D.N.Y. 1995).
The Individual Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claims for abuse of process. First, Plaintiffs claim for abuse of process arising under New York state law against Incandela fails as a matter of law because, as discussed above, Incandela did not initiate legal proceedings against Plaintiff, and there is no evidence of any other form of regularly issued process that Ineandela improperly employed. Frederique v. Cty. of Nassau, 168 F.Supp.3d 455, 484 (E.D.N.Y. 2016) (granting the defendants’ motion for summary judgment with respect to the plaintiffs’ abuse of process claim where there was no evidence that the defendants employed any form of regularly issued legal process); see also Conte v. Cty. of Nassau, No. 06-CV-4746, 2010 WL 3924677, at *19 (E.D.N.Y. Sept. 30, 2010) (identifying subpoenas, indictments, and arrest warrants as other forms of legal process for purposes of an abuse of process claim). Next, although certain of the Individual Suffolk
4. Conspiracy
To prevail on a Section 1983 conspiracy claim, the plaintiff must establish: “(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
D. Municipal Liability Arising Under 42 U.S.C. § 1983
A municipality may not be held liable under Section 1983 on a respondeat
The County Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claims for municipal liability arising under Section 1983. As an initial matter, having concluded that Incandela was not acting under the color of law on December 20, 2011, Nassau County cannot be liable under Section 1983. See Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (holding that, “[i]n order to prevail on a claim against a municipality under section 1983,” the plaintiff must prove, inter alia, “actions taken under color of law”); Miqui, 2003 WL 22937690, at *5 (“Because [the defendant] did not act under color of law, the city ... cannot be held responsible for his private acts.”). Additionally, having concluded that the Individual Suffolk Defendants did not violate Fiedler’s constitutional rights, and are therefore not liable to Plaintiff under Section 1983, Fiedler’s claim against Suffolk County for municipal liability pursuant to Section 1983 also fails as a matter of law. See Claudio, 675 F.Supp.2d at 406 (“[A] municipality is liable under Monell only where there is an underlying constitutional violation committed by someone acting under color of law.”); Khan v. Ryan, 145 F.Supp.2d 280, 287 (E.D.N.Y. 2001) (“Since there is no underlying constitutional violation by a municipal official, the [municipality] may not be held liable.”). Therefore, the County Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claims for municipal liability arising under Section 1983.
E. Liability Arising Under New York State Law
In addition to his claims arising under Section 1983, Plaintiff asserts claims arising solely under New York law for: (i) negligence and gross negligence; (ii) unlawful search and seizure in violation of the New York State Constitution; (iii) negligent training, supervision, disciplining, and retention; and (iv) vicarious liability against the County Defendants. Compl. ¶¶133-91.
1. Negligence and Gross Negligence
To prevail on a claim for negligence under New York law, “a plaintiff
Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claims for negligence and gross negligence. With respect to the Individual Suffolk Defendants, Plaintiff alleges that he was harmed as a result of their negligence in failing “to exercise reasonable care in connection with the performance of their duties .... ” Compl. ¶ 127. As a plaintiff “may not recover under broad general principals of negligence” against law enforcement officers, Fielder’s claim for negligence and gross negligence against the Individual Suffolk Defendants fails as a matter of law. Burbar v. Inc. Vill. of Garden City, 961 F.Supp.2d 462, 474 (E.D.N.Y. 2013); see also Bernard, 25 F.3d at 98 (holding that “negligence claims arising out of allegedly improper ... procedures during an arrest” are barred). Furthermore, the evidence establishes that the Individual Defendants acted intentionally at all relevant times, and Plaintiff fails to identify any inadvertent or accidental harmful conduct. Specifically, Incandela intentionally reported his observations to the SCPD and provided a sworn statement following Fiedler’s arrest, and the Individual Suffolk Defendants intentionally arrested Plaintiff and commenced criminal proceedings for criminal possession of stolen property in the fifth degree. See Incandela Aff. ¶¶8-16; Suffolk 56.1 Stmt. ¶¶1-3, 11. As a negligence claim must be predicated on accidental or inadvertent conduct, Fiedler’s claims for negligence and gross negligence fail as a matter of law. See Frederique, 168 F.Supp.3d at 484 (granting summary judgment on the plaintiffs’ negligence and gross negligence claims where “there [was] no basis in the record to support a finding that the [action] was inadvertent, accidental, or anything but willful”) (internal quotation omitted); see also Pasternack v. Lab. Corp. of Am., 892 F.Supp.2d 540, 552 (S.D.N.Y. 2012) (“Where a claim for ordinary negligence fails, a gross negligence claim necessarily fails.”). Therefore, the Individual Defendants are entitled to summary judgment with respect to Plaintiffs claims for negligence and gross negligence.
2. New York Constitution
Article I, § 12 of the New York Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and sei
Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claim for unreasonable search and seizure arising under the New York State Constitution. With respect to the Suffolk County Defendants, as probable cause existed to arrest Plaintiff for criminal possession of stolen property in the fifth degree, their actions of arresting and searching Fiedler were not unlawful. See Miller, 498 F.Supp.2d at 555. With respect to Incandela, the evidence establishes that Incandela neither arrested nor participated in any search of Fiedler, but rather, that Incandela remained in his vehicle as SCPD officers arrested Fiedler and placed him in a police vehicle. See Incandela Aff. ¶¶13, 14; Incandela Stmt, at 2; see also Nassau Defs.’ Mem. at 9 (“Incandela was not involved in any search or seizure [of Plaintiff].”). Therefore, Incandela did not violate Plaintiffs right to be free from unreasonable searches and seizures, see Posr, 2003 WL 22962191, at *8, and Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claims arising under the New York State Constitution.
3. Negligent Training, Supervision, Disciplining, and Retention
In New York, “[a] municipality may be held liable for negligently training or supervising its law enforcement officers.” Marcano v. City of Schenectady, 38 F.Supp.3d 238, 268 (N.D.N.Y. 2014). To prevail on a claim for negligent hiring, training, supervision, or retention, “a plaintiff must prove that a municipality’s failure to properly train, hire, retain, or supervise its police officers in a relevant respect evidences a deliberate indifference
4. Vicarious Liability
Unlike claims arising under Section 1983, a municipality may be vicariously liable for the common law torts of its employees. See L.B. v. Town of Chester, 232 F.Supp.2d 227, 239 (S.D.N.Y. 2002) (“Unlike cases brought under [Section] 1983, municipalities may be liable for the common law torts, like false arrest and malicious prosecution, committed by their employees under the doctrine of responde-at superior.”). However, “there can be no imposition of vicarious liability in the absence of underlying liability.” Shapiro v. Kronfield, No. 00 Civ. 6268, 2004 WL 2698889, at *24 (S.D.N.Y. Nov. 24, 2004); see also Brown v. City of New York, No. 14-CV-2700, 2015 WL 427942, at *6 (E.D.N.Y. Feb. 2, 2015) (granting the defendants’ motion for summary judgment with respect to the plaintiffs state law claims for vicarious liability in the absence of underlying liability). Having concluded that the Individual Defendants are entitled to judgment as a matter of law with respect to Plaintiffs claims arising under New York law, the County Defendants are also entitled to judgment as a matter of law with respect to Plaintiffs claims for vicarious liability.
IV. CONCLUSION
For the reasons set forth herein, both the Suffolk County Defendants’ motion for summary judgment and the Nassau County Defendants’ motion for summary judgment are granted in their entirety. The Clerk of Court is respectfully directed to issue judgment in favor of Defendants and to close this ease.
SO ORDERED.
. Unless otherwise noted, the facts are drawn from the Suffolk County Defendants’ Statement Pursuant to Local Rule 56.1 ("Suffolk 56.1 Stmt,”), DE [39-3]; the Declaration of Brian C. Mitchell in Support of the Suffolk County Defendants’ Motion for Summary Judgment ("Mitchell Decl.’’), DE [39-2]; the Nassau County Defendants’ Rule 56.1 Statement ("Nassau 56.1 Stmt.”), DE [40-1]; the Affidavit of Michael Incandela in Support of the Nassau County Defendants’ Motion for Summary Judgment ("Incandela Aff,”), DE [40-1]; Plaintiff's Response to Rule 56.1 Statement by Defendants Incandela and County of Nassau (“PL’s 56.1 Stmt”), DE [40-5]; and the Declaration of Edward Sivin in Opposition to the Nassau County Defendants’ Motion for Summary Judgment ("Sivin Decl”), DE [40-7],
. The Nassau County Defendants’ fully briefed motion for summary judgment that was filed with the Court on December 14, 2015 includes a Notice of Motion. DE [40]. Therefore, the Court interprets Plaintiff’s argument to mean that the Nassau County Defendants' moving papers, which were served on Plaintiff, but not filed with the Court, on October 30, 2015, did not include a Notice of Motion. DE [36].
. Plaintiff’s argument that “it also is likely that Incandela identified himself to the Suffolk County Police Department as a fellow law enforcement official and therefore participated in the events leading to plaintiffs’ arrest to a greater degree than would be allowed of a private citizen,” see Pl.'s Opp’n at 13 n.3, is insufficient to defeat summary judgment as there is no evidence before the Court that Incandela identified himself as a police officer at any time. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991) (“The defendants’ bald assertion, completely unsupported by evidence, did not satisfy their burden; it certainly did not present a sufficient disagreement to require submission to the jury as required by Fed. R. Civ. P. 56(c).”) (internal alteration and quotation omitted).
. Plaintiff does not assert a claim for false arrest arising under New York state law. See generally Compl.; see also Pl.’s Opp’n at 1 n.1 ("Plaintiffs complaint does not include a state-law cause of action for false arrest.”).
. To the extent that Plaintiff argues that In-candela “could not have mistakenly believed that plaintiff had removed the items” because, "by [Incandela’s] own admission, [he] 'never lost sight of the vehicle,' ” see Pl.’s Opp’n at 15, Incandela actually stated that he "never lost sight of the vehicle ... as [he] followed it from 669 S. 6th St. to 28 Knoll St., Linden-hurst.” Incandela Stmt, at 2.
. Although Plaintiff asserts claims of conspiracy under both Section 1983 and New York state law, see Compl. KH138-49, "New York does not recognize civil conspiracy as an independent cause of action.” Reich v. Lopez, 38 F.Supp.3d 436, 460 (S.D.N.Y. 2014). Rather, New York courts recognize that "the damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir. 1956). Therefore, the Court analyzes Plaintiff's claim for civil conspiracy as arising only under Section 1983.
. Although Plaintiff also cites Article I, § 6 of the New York Constitution in his Complaint, see Compl. ¶¶186-91, that provision addresses due process violations and is not relevant to Plaintiff’s claims. See N.Y. Const. art. I, § 6; see also Posr, 2003 WL 22962191, at *8 (holding that N.Y. Const. art. I, § 6 was not relevant to the plaintiff's unlawful search and seizure claims, and analyzing the plaintiff’s claims as arising under N.Y. Const. art. I, § 12).