137 F. Supp. 3d 495
S.D.N.Y.2015Background
- Robert D. Berry (pro se) ran Independent Construction Services (ICS); ICS policy with NYSIF was canceled for nonpayment (≈$24k). Berry transferred ICS stock to his mother so she could attempt to procure coverage.
- Berry prepared an $83k estimate for the Alexander project but lacked valid workers’ compensation. His girlfriend Marcia ("Marcie/Marcia Rose") formed "Desormier Contractors," obtained a NYSIF policy, and Berry managed/operated the work under that policy.
- Investigators (Stanley Marchinkowski, a NYSIF investigator, and Detective Charles Locke) collected audits, insurance applications, bank records, estimates, building-permit submissions, and witness statements (Froman, Silvernail, Rose) suggesting Berry used others’ policies to avoid his debt.
- Rose gave a signed statement at the sheriff’s office implicating Berry; she later recanted, claiming coercion. Investigators corroborated aspects of her statement (same agent submitted applications; letterheads and phone numbers linked to Berry).
- Locke swore a felony complaint charging Berry with grand larceny (N.Y. Penal Law §155.35), offering a false instrument for filing (§175.35), and a Workers’ Compensation fraud provision (§114). Berry was arrested, arraigned, and the prosecution was ultimately dismissed under N.Y. Crim. Proc. Law §180.85(3) because the case was not presented to a grand jury within 12 months.
- Berry sued under 42 U.S.C. §1983 for false arrest and malicious prosecution; the Court granted summary judgment to Marchinkowski and Locke.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| False arrest (Fourth Amendment/§1983) | Berry contends arrest lacked probable cause; investigators relied on coerced/false statements (Rose) and ignored bankruptcy discharge. | Locke & Marchinkowski argue they had probable or arguable probable cause based on audits, applications, corroborating documents, and witness statements; they did not know of any bankruptcy that would negate probable cause. | Court: Defendants had probable/arguable probable cause to arrest Berry (information then known—audits, applications, letterheads, witness statements—was sufficient). Summary judgment for defendants. |
| Malicious prosecution — initiation element | Berry claims investigators initiated wrongful prosecution. | Locke swore the felony complaint; Marchinkowski investigated but did not swear the complaint or sign accusatory instrument. | Court: Locke may have initiated the prosecution (he signed the complaint); Marchinkowski did not — summary judgment for Marchinkowski on this claim; malicious-prosecution claim against Locke survives initiation analysis. |
| Malicious prosecution — favorable termination | Berry asserts prosecution terminated in his favor. | Defendants note dismissal was under §180.85 (procedural dismissal for failure to present to grand jury within 12 months), which allows possible renewal. | Court: §180.85 dismissal treated as a favorable termination for malicious-prosecution purposes here; summary judgment not granted to Locke on favorable-termination ground. |
| Malicious prosecution — probable cause / malice for each charge | Berry argues lack of probable cause and malice (coerced witness, bankruptcy, no intent to defraud). | Defendants argue they had arguable probable cause for each charged offense based on documentary evidence and corroborated witness statements; lack of direct evidence of malice. | Court: Granted summary judgment to defendants as to prosecution for offering false instrument (§175.35) and Workers’ Comp fraud (§114) and grand larceny (§155.35) because investigators had arguable probable cause for these charges (probable cause or arguable probable cause supported by documents and corroboration); overall summary judgment for both defendants. |
Key Cases Cited
- Jaegly v. Couch, 439 F.3d 149 (2d Cir.) (false arrest §1983 analyzed under state law probable cause)
- Ackerson v. City of White Plains, 702 F.3d 15 (2d Cir.) (probable cause is a complete defense to false arrest)
- Zellner v. Summerlin, 494 F.3d 344 (2d Cir.) (definition of probable cause for arrest)
- Cerrone v. Brown, 246 F.3d 194 (2d Cir.) (arguable probable cause and qualified immunity standard)
- Posr v. Court Officer Shield No. 207, 180 F.3d 409 (2d Cir.) (elements of malicious prosecution under state law plus §1983 wrapper)
- Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir.) (filing a criminal complaint can satisfy initiation element)
- Rogers v. City of Amsterdam, 303 F.3d 155 (2d Cir.) (constructive dismissal and effect on favorable termination analysis)
- Smith-Hunter v. Harvey, 95 N.Y.2d 191 (N.Y.) (malicious prosecution elements and favorable termination inquiry)