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Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 1 of 18
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`USbCSONY
`DOCUMENT
`·ELECTRONICALLY FILED
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`OPINION AND ORDER
`DENYING DEFENDANTS'
`POST-TRIAL MOTION
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`14 Civ. 7108 (AKH)
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`-------------------------------------------------------------
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`)(
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`MARTIN WALSH,
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`v.
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`Plaintiff,
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`LIEUTENANT JASON LUNSFORD, NEW
`YORK CITY POLICE OFFICER MICHAEL
`CLARK, and NEW YORK CITY POLICE
`SERGEANT CA THERINE ROACH
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`-------------------------------------------------------------
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`)(
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`Defendants.
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`ALVIN K. HELLERSTEIN, U.S.D.J.:
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`Defendants Michael Clark and Catherine Roach move to vacate the jury's verdict
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`and ask the Court to grant, alternatively, judgment as a matter of law or a new trial. Fed. R. Civ.
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`P. 50(b); 59(a). They contend that the evidence does not support th~ verdict of $225,000
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`compensatory damages and $100,000 punitive damages, for falsely arresting plaintiff Martin
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`Walsh and causing him to be maliciously prosecuted. They contend also that the verdict is
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`inconsistent with the jury's finding that defendant Jason Lunsford is not liable to plaintiff.
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`The motion is denied. The evidence amply supports the verdict against Roach
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`and Clark; the jury was properly instructed; and there were no evidentiary errors in the court's
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`rulings.
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`THE EVIDENCE
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`Defendants Lunsford, Clark and Roach were all working as law enforcement
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`officers for the New York Police Department on the night of the incident. Plaintiff Martin Walsh
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 2 of 18
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`is a senior court clerk in New York State Criminal Court and a peac~ officer, authorized to make
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`arrests for crimes committed within his presence, whether on or off duty. Walsh also worked
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`during off-duty hours as an armed security guard for Ambassador Protection Services. Tr. 57-
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`59.
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`On New Year's Eve, December 31, 2013, Walsh was working as a security guard
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`at the Hilton Hotel located at Sixth Avenue and 54th Street in Manhattan. He was posted in front
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`of an "exit only" door to prevent pedestrians from entering the Hilton through that door. Tr. 61-
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`62. The purpose of establishing this exit only door on New Year's Eve was to prevent non-guest
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`pedestrians from cutting through the hotel in attempt to get closer to Times Square. Tr. 41, 60.
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`At approximately 6:15 p.m., David Vadala approached Walsh at a "jogging" pace
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`and attempted to push his away past Walsh and into the hotel, exclaiming, "I gotta get in here."
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`Tr. 62. Vadala grabbed Walsh by the lapels of his coat and shoved him into the exit door, trying
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`to get past Walsh. Tr. 62-63. Walsh then punched Vadala in the face to free himself and sought
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`to arrest him. Tr. 65. The two tumbled to the ground, and other security guards and nearby
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`police officers came to the scene. Vadala "resisted violently," and it took the effort of several
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`officers to subdue Vadala and place him in handcuffs. Tr. 66-67. During the struggle, Vadala
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`yelled, "I'm retired, I'm retired," which Walsh interpreted to mean that Vadala was a retired
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`police officer. Tr. 67.
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`After Vadala was restrained, defendant Lieutenant Ja~on Lunsford, an officer on
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`the scene, spoke with Walsh. Lunsford was from the 75th precinct in Brooklyn, but was
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`assigned to midtown Manhattan to provide extra security on New Year's Eve. Walsh told
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`Lunsford that he had arrested Vadala in his capacity as a peace officer. Tr. 68. Lunsford
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`responded that the police would handle the arrest, and instructed Walsh, as the complainant, to
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 3 of 18
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`go to the nearby 18th precinct, and file a complaint against Vadala. Tr. 69. Lunsford took
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`Walsh's ID as a precaution, and Walsh voluntarily walked to the 18th precinct, unescorted. Tr.
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`71. Vadala, by contrast, was handcuffed, transported to the 18th precinct in a police car, and
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`placed in a holding cell or interrogation room. Tr. 68, 72, 240.
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`Walsh testified that when he arrived at the 18th precinct to file a complaint
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`against Vadala, he was told to wait in a room. After some time, defendant Officer Michael Clark
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`entered the room, leaned over the edge of a desk, pointed at Walsh, and stated, "I don't know if
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`you know how things work in the police department, but you gotta shit-can this job." Tr. 74.
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`Walsh responded, "I can't do that,'' and Clark "stormed" out of the r6om. Tr. 75.
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`A few minutes later, Sergeant Catherine Roach, the desk sergeant in charge of the
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`18th precinct that night and Officer Clark's superior, entered the room and asked Walsh what
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`had happened. Walsh told her and said that he had come to the precipct to file a complaint
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`against Vadala. Roach responded, "OK, we'll see about that," and walked out of the room. Tr.
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`76. A few minutes later, Roach returned with Lunsford, who had arrived at the precinct. Walsh
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`again explained what had happened, and asked if he needed a lawyer: Roach responded, "Well,
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`if that's the route you are going to go, we're going to have to go farther with this." Tr. 77.
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`Roach and Lunsford then left the room. After more time had passed,, Roach returned and asked
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`Walsh, "Well, are you going to drop the charges?" Tr. 80. After Walsh again stated he would
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`not do that, Roach responded, "All right. Tum around. Put your hands behind your back.
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`You're under arrest," and handcuffed Walsh. Id Roach instructed Officer Jhonny Milfort, a
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`novice officer who was assigned to the 18th precinct on temporary duty that night, to swear out
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`the complaint against Walsh charging him with assault. Tr. 212-213. Walsh spent the night in
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`jail, and was arraigned the following day. Tr. 111-12.
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`Throughout that evening, Roach and Clark interacted with Vadala as well. Tr.
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`232, 292. When Vadala was first brought into the precinct, Clark recognized Vadala because
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`they served together at the 18th precinct in the early 1990s. Tr. 285. Clark and Vadala spoke
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`three times that evening, and Roach estimated that she spoke with Vadala for about an hour. Tr.
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`249, 336. They asked Vadala if he wanted to press charges against Walsh, to enable them to
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`make a joint offer to both under which they would drop their complaints against each other and
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`accept a summons for a violation in lieu of arrest and detention. Tr. 236-37, 277-78, 328-29,
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`333-34. Walsh made it clear he was not interested in such a deal, and Roach and Clark arrested
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`both Walsh and Vadala for assaulting each other. Clark told Vadala, 'Tm sorry, it's going
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`through." Tr. 336.
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`Lunsford arrived at the 18th precinct after Walsh had arrived. Lunsford testified
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`that he briefed Roach about the incident between Walsh and Vadala, but did not recall speaking
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`with Clark. Tr. 162-63. Lunsford again spoke with Walsh and then with Vadala, but did not
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`recall any details other than Vadala's complaint that Walsh had assal:1lted him. Tr. 164, 167.
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`Lunsford testified that he offered a criminal summons to both Walsh and Vadala. Tr. 173. This
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`testimony was in tension with the testimony of Clark, who stated that he and Roach were the
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`ones who offered the deal to Walsh and Vadala, not Lunsford. Tr. 334. Lunsford left the
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`precinct after Walsh rejected the offer and was placed under arrest.
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`DISCUSSION
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`I.
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`Roach and Clark's Motion for Judgment as a Matter of Law is Denied
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`a. Legal Standard
`The burden on a party seeking judgment as a matter of law "is particularly heavy
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`after the jury has deliberated in the case and actually returned its verc;iict." Cross v. NY City
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`Transit Auth., 417 F .3d 241, 248 (2d Cir. 2005). "In deciding such a motion, the court must give
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`deference to all credibility determinations and reasonable inferences of the jury, and it may not
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`itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-
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`Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (citation omitted).
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`Consequently, a Rule 50 motion may not be granted unless "(I) there is such a complete absence
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`of evidence supporting the verdict that the jury's findings could only have been the result of
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`sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor
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`of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].
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`Williams v Cty. of Westchester, 171F.3d98, 101 (2d Cir. 1999) (citation omitted).
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`b. False Arrest
`To prevail on a claim for false arrest under New York law, the plaintiff must show
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`"(I) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the
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`confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not
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`otherwise privileged." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (quoting
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`Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975)). 1 "The existence of probable cause to
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`arrest constitutes justification and is a complete defense to an action for false arrest, whether that
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`action is brought under state law or under§ 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
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`1996) (internal quotation marks and citation omitted). "[P]robable cause to arrest exists when
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`the officers have knowledge or reasonably trustworthy information of facts and circumstances
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`that are sufficient to warrant a person of reasonable caution in the belief that the person to be
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`arrested has committed or is committing a crime." Jenkins v. City ofN. Y., 478 F.3d 76, 84-85
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`(2d Cir. 2007).
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`1 The elements of a claim of false arrest pursuant to 42 U.S.C. § 1983 are "substantially the same as the elements of
`a false arrest claim under New York law." Hygh v Jacobs, 961 F.2d 359, 366 (2d Cir. 1992) (internal quotation
`marks omitted).
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`Roach and Clark argue that they had probable cause to arrest Walsh as a matter of
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`law because Vadala told them that Walsh had punched him during the altercation at the Hilton
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`Hotel, and because Vadala had bruise marks on his face. Tr. 232, 287; see Wahhab v. City of
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`N. Y, 386 F. Supp. 2d 277, 287 (S.D.N.Y. 2005) ("Probable cause will generally be found to exist
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`when an officer is advised of a crime by a victim or an eyewitness."); Panetta v. Crowley, 460
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`F.3d 388, 395 (2d Cir. 2006) ("[I]t is well-established that a law enforcement official has
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`probable cause to arrest if he received his information from some person, normally the putative
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`victim or eyewitness.") (citation omitted).
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`This simplistic and selective description of the circumstances surrounding
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`Walsh's arrest fails to account for the credible facts known or reasonably available to Roach and
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`Clark at the time they made the arrest, and ignores the material incon~istencies in their
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`testimony.
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`From Walsh's testimony, which the jury by its verdict found credible, the jury
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`reasonably found that Roach and Clark arrested Walsh because he re(used to drop his complaint
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`against Vadala, their former colleague. By any standard, this is not a good faith basis for
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`arresting someone, and does not constitute probable cause. Roach and Clark argue that an
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`officer's subjective motivation for making an arrest is irrelevant in assessing probable cause. It
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`is true that "the standard for probable cause is an objective one, and does not depend upon an
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`officer's subjective motivations." Selvaggio v. Patterson, 93 F. Supp.: 3d 54, 66 (E.D.N.Y.
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`2015). But Roach and Clark's reliance on this principle is circular, for it presumes the existence
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`of probable cause. Absent an objective basis for a finding of probable cause, an officer may not
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`arrest someone in bad faith, and then shield himself from any inquiry into his motivation for the
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`arrest. See United States v. McDermott, 918 F .2d 319, 325 (2d Cir. 1990) ("[W]hen police
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 7 of 18
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`officers acting in bad faith make an arrest without probable cause, t~e person arrested has
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`suffered a deprivation of liberty without due process of law.").
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`The jury by its verdict found that Roach and Clark failed to consider facts
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`reasonably available to them that were critical to the question of probable cause. The jury was
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`instructed, without objection, that "probable cause exists when the facts and circumstances
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`known to an arresting officer, or readily available to the arresting officer, taken together are of
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`such weight and persuasiveness as to convince an officer of ordinary:intelligence, judgment and
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`experience, that it is reasonably likely that the person arrested commltted a crime." Tr. 468; see
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`also Mejia v. City of N. Y, 119 F. Supp. 2d 232, 253 (E.D.N.Y. 2000) ("Since the law seeks to
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`protect citizens against unlawful arrest, the determination of whether probable cause existed
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`must be made on the basis of the information possessed or reasonably available to the defendant
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`at the time of the arrest."). "Courts evaluating probable cause for an arrest must consider those
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`facts available to the officer at the time of the arrest and immediately before it." Lowth v. Town
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`of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). Although an arresting officer is "not required
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`to explore and eliminate every theoretically plausible claim of innocence before making an
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`arrest," Ricciuti v. N. Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997), "under some
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`circumstances, a police officer's awareness of the facts supporting a defense can eliminate
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`probable cause." Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003).
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`Roach and Clark knew that Walsh had voluntarily come to the precinct
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`specifically to file a complaint against Vadala, and that Vadala had been brought to the precinct
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`in handcuffs, having been arrested for assault. Tr. 242, 285. Vadala did claim that he had been
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`assaulted by Walsh, but Roach and Clark knew that Walsh had been working as a security guard,
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`that he was a peace officer, and that his use of force was privileged, made in reaction to Vadala's
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 8 of 18
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`effort to force his way past Walsh into the Hilton. Tr. 280. Significantly, Roach and Clark knew
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`from the outset that Walsh had punched Vadala, but they made no effort to arrest him until he
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`refused to drop his complaint against Vadala. Tr. 80. Based on the evidence before it, the jury
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`reasonably found that Roach and Walsh disregarded information known or reasonably available
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`to them, and therefore lacked probable cause to arrest Walsh.
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`There were also numerous inconsistencies in Roach's and Clark's testimony.
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`Clark testified that he and Roach discussed whether Vadala should be asked whether he wanted
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`to press charges against Walsh, whereas Roach testified that no such conversation happened. Tr.
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`261, 327. Clark testified that he had at least three conversations with Walsh and Vadala
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`throughout the evening, whereas Roach testified that Clark played no role whatever. Tr. 261,
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`336. Roach's testimony regarding her conversations with Vadala also was internally
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`inconsistent. During her deposition, she remembered virtually nothing about what Vadala told
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`her. Tr. 252. But at trial, Roach had a memory; she testified that she:remembered "Vadala
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`telling me that he was punched by Mr. Walsh, and he kind of cowered down to defend himself
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`against the punching ... that Mr. Walsh was doing to him." Tr. 232. These inconsistencies
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`provided a basis for the jury to credit Walsh's testimony over that of Roach and Clark.
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`Roach and Clark also argue that they were permitted to rely on Lunsford's
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`determination that there was probable cause to arrest Walsh. Lunsford testified that after
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`speaking with both Walsh and Vadala at the Hilton, and again at the precinct, he concluded there
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`was probable cause to arrest both. Tr. 160, 171. Roach and Clark argue that "when making a
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`probable cause determination, police officers are entitled to rely on the allegations of fellow
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`police officers." See Panetta, 460 F.3d at 395 (citation omitted).
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 9 of 18
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`Roach and Clark's reliance on this principle is misplaced because the "fellow
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`officer" rule is applicable only where an "officer acts upon the direction of or as a result of
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`communication with a superior or [fellow] officer." Annunziata v. City of NY, 2008 WL
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`2229903, at *3 (S.D.N.Y. May 28, 2008) (citation omitted); see also United States v. Colon, 250
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`F.3d 130, 135 (2d Cir. 2001) (under collective knowledge doctrine, "an arresting officer might
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`not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but
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`may nonetheless act reasonably in relying on information received by other law enforcement
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`officials.") (emphasis added). But neither Roach nor Clark ever testified that they relied on a
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`probable cause determination by Lunsford, or on any information that Lunsford provided to
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`them. Roach testified that she came to the decision to arrest Walsh "independently," and only
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`"ran it past" Lunsford. Tr. 234, 237. When asked if she and Lunsford collaborated on the
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`decision to arrest Walsh, she said "no." Tr. 263. As to Clark, Lunsford testified that he had no
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`recollection of speaking to Clark that evening, and Clark gave no indication that he relied on
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`information provided by Lunsford. Tr. 163, 332.
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`Absent evidence suggesting that Roach and Clark actually relied on Lunsford's
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`probable cause determination, or on information he supplied, they cannot invoke the fellow
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`officer rule. See Charles v. City of NY, 2014 WL 1284975, at *7 (S.b.N.Y. Mar. 31, 2014)
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`(rejecting defendant officers' invocation of the fellow officer rule where it was a question of fact
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`whether arresting officers actually relied on fellow officer's statements before making arrest).
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`There was also sufficient evidence for the jury to conclude that Lunsford simply
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`wasn't involved in Roach and Clark's scheme to pressure Walsh into dropping his complaint.
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`Lunsford did testify that he offered both Vadala and Walsh a criminal summons, Tr. 173, but this
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`was inconsistent with the testimony of Clark, who stated that when he asked for Lunsford's
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 10 of 18
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`blessing to make this offer, Lunsford said that "he didn't care, he just wanted it to be over." Tr.
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`334. Walsh never testified that Lunsford tried to pressure him into dropping the complaint.
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`l
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`Based on this evidence, the jury reasonably concluded that there was not a sufficient basis to
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`hold Lunsford liable for Walsh's arrest.
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`Roach and Clark argue also that the jury's verdict, in favor of Lunsford, but
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`against them, was inconsistent and irreconcilable. See Lavoie v. Pac. Press & Shear Co., a Div.
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`of Canron Corp., 975 F.2d 48, 53 (2d Cir. 1992) ("When the verdicts are not capable of
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`reconciliation ... a new trial may be-but is not always-required."). For the reasons discussed
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`above, there is no merit to this argument. The jury reasonably found that Roach and Clark were
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`liable to Walsh, and that Lunsford was not.
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`Lastly, Clark argues that he cannot be liable for falsely arresting Walsh because
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`I
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`he was not in the room when Walsh was arrested. It is true that "personal involvement of
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`defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §
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`1983," Wright v. Smith, 21 F.3d 496, 50 I (2d Cir. 1994) (citation omitted), but the jury was
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`presented with sufficient evidence to infer that Clark was personally involved in the decision to
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`arrest Walsh, as much as was Roach. In addition to telling Walsh that he had to "shit-can" his
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`complaint against Vadala, Walsh also testified that after he had been arrested and was placed in a
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`holding cell, Clark approached Walsh, handed Walsh his cell phone, and stated, "Your boss is
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`going to call you in a minute. You'd better do what he says." Tr. 85. Walsh then spoke on the
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`phone with John Kelly, his boss at Ambassador Protective Services, the security company Walsh
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`was working for that evening. When Walsh told his boss, "I didn't do anything wrong, I can't do
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`that," Clark reached into the cell, grabbed the phone from Walsh's hand, and said, "You're
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 11 of 18
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`done." Tr. 87, 97. It was reasonable for the jury to conclude that Clark played an active role in
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`the decision to arrest Walsh.
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`a. Malicious Prosecution
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`To prevail on a claim for malicious prosecution, a plaintiff must prove "( 1) the
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`initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
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`proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and
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`(4) actual malice as a motivation for defendant's actions." Murphy v. Lynn, 118 F.3d 938, 947
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`(2d Cir. 1997) (citation omitted). The jury's verdict is supported by sufficient evidence on each
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`of these elements.
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`First, Roach and Clark argue that Walsh failed to introduce any evidence showing
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`that they personally took affirmative steps to initiate Walsh's criminal prosecution. However, a
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`"police officer can also initiate a prosecution by creating material, false information and
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`forwarding that information to a prosecutor or by withholding material information from a
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`prosecutor." Costello v. Milano, 20 F. Supp. 3d 406, 415 (S.D.N.Y. 2014). The jury had a
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`sufficient basis to conclude that Roach and Clark withheld material information: namely, that
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`Walsh had come to the precinct voluntarily in order to file a complaint against Vadala, and that
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`Walsh's use of force, deployed as a security guard responding to Vadala's effort to push his way
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`through the exit door, likely was privileged.
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`Roach and Clark also seek to shift responsibility to non-party Jhonny Milfort, the
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`officer who formally swore out the criminal complaint against Walsh. "For a police officer to be
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`held responsible for malicious prosecution, however, his role need not be so direct," Phelps v.
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`City of N. Y, 2006 WL 1749528, at *4 (S.D.N. Y. June 27, 2006), and '.'there is no requirement
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`that an officer have direct contact with the prosecutor." Maldonado v. City of N. Y, 2014 WL
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`787814, at *6 (S.D.N.Y. Feb. 26, 2014). In Phelps, for example, the court reasoned that because
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 12 of 18
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`the jury could find that statements made by the defendant officers to the complaining officer
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`caused the plaintiff to be arrested, "their actions could be deemed to have initiated the
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`prosecution." 2006 WL 1749528, at *4. That is what the jury found here, that it was not Milfort,
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`but Roach and Clark who instigated Walsh's prosecution, even though they had no direct contact
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`with the prosecutor and did not personally swear out the criminal complaint.
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`Second, Roach and Clark argue that Walsh failed to introduce sufficient evidence
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`to show that the prosecution was terminated in his favor. However, "'[ f]or the termination of a
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`proceeding to be in the plaintiffs favor, the plaintiff must merely show a termination of the
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`proceeding that is 'not inconsistent with innocence.'" Phelps, 2006 WL 1749528, at *5 (quoting
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`Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir. 2004)). Walsh testified that after making three
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`court appearances, the district attorney dismissed the case on his own motion. Tr. 113-15. The
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`dismissal was not the result of any compromise or plea on the part of Walsh. From this
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`evidence, the jury reasonably found that the prosecution was terminated in Walsh's favor. See
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`Liberty Synergistics, Inc. v. Microjlo Ltd., 50 F. Supp. 3d 267, 289 (E.D.N.Y. 2014) (where
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`action "was terminated by abandonment under circumstances not inconsistent with innocence, it
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`is a favorable termination.").
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`Third, Roach and Clark argue that there was probable cause to prosecute Walsh.
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`The jury disagreed, and there was sufficient evidence for the jury's findings that Roach and
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`Clark lacked probable cause both to arrest Walsh and to initiate the prosecution against him.
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`Finally, the jury's finding that Roach and Clark acted with actual malice was
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`supported by the evidence. As the jury found, Roach and Clark arrested Walsh and caused him
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`to be prosecuted as a means of protecting Vadala, their former colleague, and thus the
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`"prosecution complained of was undertaken from improper or wrongful motives, or in reckless
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`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 13 of 18
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`disregard of the rights of the plaintiff," Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996), and
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`with actual malice. See Ricciuti v. N. Y C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997) (a jury
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`may "find that probable cause for the charges against the plaintiffs was lacking, and that finding
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`alone would support an inference of malice.").
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`c. Qualified Immunity
`Although the "qualified immunity standard gives ample room for mistaken
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`judgments," it does not extend to "those who knowingly violate the law." Hunter v. Bryant, 502
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`U.S. 224, 229 (1991) (citation omitted). The jury found that Roach ahd Clark acted maliciously
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`or wantonly; that is, with "ill-will, spite, or complete disregard of the rights of another," Tr. 482,
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`and awarded Walsh $100,000 in punitive damages. See Smith v. Wade, 461 U.S. 30, 56 (1983)
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`(a "jury may be permitted to assess punitive damages in an action under§ 1983 when the
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`defendant's conduct is shown to be motivated by evil motive or intent, or when it involves
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`reckless or callous indifference to the federally protected rights of others."). The jury had
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`sufficient evidence to conclude that Roach and Clark "knowingly viol_ate[d] the law," Hunter,
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`502 U.S. at 229, that their decision to arrest and prosecute Walsh was ."manifestly unreasonable,"
`
`Arrington v. City of NY, 628 F. App'x 46, 49 (2d Cir. 2015) (quoting· Lowth v. Town of
`
`Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996)), and that their behavior manifested "reckless or
`
`callous indifference to the federally protected rights of others," namely, Walsh.
`
`Roach and Clark's Motion for a New Trial is Denied
`II.
`Under Rule 59(a), a motion for a new trial may be granted "on all or some of the
`
`issues ... for any reason for which a new trial has heretofore been granted in an action at law in
`
`federal court." Fed. R. Civ. P. 59(a). A "jury's verdict ... should rarely be disturbed." Farrior v.
`
`Waterford Bd of Educ., 277 F.3d 633, 635 (2d Cir. 2002) (citation omitted). A district court
`
`''ordinarily should not grant a new trial unless it is convinced that the jury has reached a
`
`13
`
`

`

`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 14 of 18
`
`seriously erroneous result or that the verdict is a miscarriage of justice." Smith v. Lightning Bolt
`
`Prods., Inc., 861 F.2d 363, 3 70 (2d Cir. 1988). Because the jury has not reached a "seriously
`
`erroneously result" and its verdict is not a "miscarriage of justice," the motion for a new trial is
`
`denied.
`
`a. The Verdict Against Roach and Clark 'fas Not Against the Clear
`Weight of the Evidence
`
`A district court is "authorized to order a new trial on the basis that the jury verdict
`
`is against the clear weight of the evidence." Israeli v. Ruiz, 2015 WL 6437374, at *2 (S.D.N.Y.
`
`Oct. 7, 2015). In contrast to a Rule 50 motion, on a Rule 59 motion, 1'the trial judge may weigh
`
`the evidence and the credibility of witnesses and need not view the eyidence in the light most
`
`favorable to the verdict winner." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir.
`
`2012). That said, "trial judges must exercise their ability to weigh credibility with caution and
`
`great restraint, as a judge should rarely disturb a jury's evaluation of a witness's credibility, and
`
`may not freely substitute his or her assessment of the credibility of witnesses for that of the jury
`
`simply because the judge disagrees with the jury." Id (internal quotation marks and citations
`
`omitted). The jury found for Walsh against defendants Roach and Clark because it found that
`
`they lacked probable cause to arrest Walsh and to cause him to be prosecuted. For the reasons
`
`discussed previously, there was sufficient evidence for this verdict, and there is no basis to
`
`disturb it by requiring a new trial.
`
`b. The Court Did Not Improperly Comment on Defendant Roach's
`Credibility
`Roach and Clark complain that the Court's questions to Roach about the
`
`inconsistencies between her trial testimony and her deposition testimony unfairly influenced the
`
`jury. See Tr. 254-56.
`
`14
`
`

`

`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 15 of 18
`
`A "trial court may actively participate and give its own impressions of the
`
`evidence or question witnesses, as an aid to the jury, so long as it does not step across the line
`
`and become an advocate for one side .... Because a federal trial judge is not a passive spectator
`
`or moderator, he or she retains the undoubted right to express his or her opinion of the facts to
`
`the jury; but, if the court argues the case, it must argue it for both sides[.]" United States v.
`
`Filani, 74 F.3d 378, 385 (2d Cir. 1996). A judge may not, however, "interrogate so zealously as
`
`to give the jury an impression of partisanship or foster the notion that the judge believes one
`
`version of an event and not another." Id. at 386. The Court's questiqning of Roach's
`
`inconsistencies was no different from its questioning of inconsistencies in Walsh's testimony,
`
`see Tr. 78, 134, and courts are permitted to challenge witnesses in this manner. See United
`
`States v. Lasher, 661 F. App'x 25, 27 (2d Cir. 2016) (holding that criminal defendant was not
`
`denied a fair trial where district judge admonished defendant for giving unresponsive or evasive
`
`answers); Care Travel Co. v. Pan Am. World Airways, Inc., 944 F.2d 983, 991 (2d Cir. 1991)
`
`(judges have "the duty to see that the facts are clearly presented."). Moreover, the "overriding
`
`consideration is whether the judge saw to it that the jury had all the admissible evidence and
`
`knew it was free to find the facts as it thought the evidence showed them to be." Filani, 74 F.3d
`
`at 386. I instructed the jury to consider only the answers of witnesses, and not who asked the
`
`question, whether by the Court or by counsel. Specifically, I instructed the jury as follows:
`
`Only the witness' answer, taken in the context of the question that was asked, is
`evidence. That applies to me just the same way as it applies to the lawyer. Nothing
`I've said during this trial - I want to stress it. Nothing I've said during this trial or
`may say in these instructions should influence you in any way with regard to your
`job of finding the facts. The fact that I asked a question during the trial - and I
`asked a few - does not mean that my questions are more important than the lawyers'
`questions. The answers given to the questions I asked are not more important than
`the answers given to the questions asked by the lawyers. I have no opinion about
`the facts in the case. That's your job. I have no opinion about the credibility of
`any witness. That's your job. To the extent that you think that I had an opinion,
`
`15
`
`

`

`,.
`
`Case 1:14-cv-07108-AKH Document 100 Filed 07/07/17 Page 16 of 18
`
`disregard it. It's not my job. You should not take any hints:from questions that I
`asked or from the manner in which I asked questions. You are to consider only the
`answers to the questions asked. It makes no difference who asked the questions.
`Tr. 490.
`
`The Court's questioning of Roach did not mislead the jury or cause Roach to suffer
`
`any prejudice.
`
`c. The Verdict Sheet Was Not Improper
`
`Roach and Clark argue that the verdict sheet erroneously failed to permit the jury
`
`to make separate assessments with respect to punitive damages for each defendant. But there
`
`was no basis in the evidence to permit the jury to draw a distinction between Roach and Clark,
`
`for they acted as one. Significantly, Roach and Clark were represented by the same lawyer.
`
`Nor did Roach and Clark preserve this argument. Counsel for defendants did
`
`request that "damages be separated between the parties." But that

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