Intorcia v. City of New York et al

United States District Court
Eastern District of New York
-----------------------------------X
Deborah Intorcia,
Plaintiff,
- against -
City of New York, et al.,
Defendants.
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Memorandum and Order
No. 24-cv-4837 (KAM) (SDE)
Kiyo A. Matsumoto, United States District Judge:
Pending before the Court is a motion for partial summary
judgment filed by all defendants. 	(ECF Nos. 118-121.) 	Plaintiff
Deborah Intorcia asserts 15 civil rights claims, under federal and
state 	law, 	against 	the 	City 	of 	New 	York 	and 	six 	officers 	of 	the
New York City Police Department (“NYPD”) – specifically, Sergeant
Gregory 	Acerra, 	Officer 	Kristen 	Caldararo, 	Sergeant 	Louis
Campanella, 	Sergeant 	John 	Falzarano, 	Officer 	Christopher 	Ng, 	and
Officer 	Ryan 	Stam. 	(ECF 	No. 	33.) 	The 	sole 	claim 	for 	which
Defendants 	do 	not 	seek 	summary 	judgment 	is 	Plaintiff’s 	federal
claim 	for 	unconstitutional 	search 	(Claim 	11) 	against 	Ofc.
Caldararo. 	(ECF No. 121 at 12.1) 	For the reasons discussed below,
Defendants’ motion for partial summary judgment is GRANTED IN PART
and DENIED IN PART.
1 Unless otherwise noted, pincites refer to the page number generated by CM/ECF.
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BACKGROUND
I. 	Factual Background
Given 	the 	voluminous 	evidentiary 	record 	in 	this 	case,
the 	Court 	will 	focus 	its 	recitation 	of 	the 	facts 	on 	only 	those
relevant 	to 	the 	resolution 	of 	the 	pending 	motion. 	Plaintiff’s
claims 	arise 	from 	two 	critical 	events: 	first, 	the 	responding
officers’ 	decision 	to 	arrest 	Plaintiff, 	and 	second, 	Ofc.
Caldararo’s 	search 	of 	Plaintiff 	in 	the 	bathroom 	of 	the 	police
precinct. 	Each 	is 	discussed 	in 	turn. 	When 	possible, 	the 	Court
relies upon bodyworn camera (“BWC”) video footage to ascertain the
relevant 	facts. 	See 	Scott 	v. 	Harris, 	550 	U.S. 	372, 	381 	(2007)
(holding that, if video footage of the events at issue exists, the
Court 	must 	“view[] 	the 	facts 	in 	the 	light 	depicted 	by 	the
videotape”).2
A. 	Plaintiff’s Arrest
1. 	The Construction Noise Dispute
This action arises from a construction noise dispute on
July 17, 2023 between neighbors in Staten Island and the subsequent
police response. 	Unless otherwise noted, the following facts are
deemed 	undisputed 	based 	on 	the 	parties’ 	submissions. 	Internal
quotations are omitted from quotations of the parties’ statements
of 	undisputed 	material 	facts 	submitted 	in 	accordance 	with 	Local
2 For citations to BWC, the Court will identify the officer whose BWC is cited
and rely on the timestamp provided in the BWC footage (in military time) at the
top right corner of the screen.
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Civil Rule 56.1.
Plaintiff 	Deborah 	Intorcia 	and 	her 	husband 	Frank
Intorcia 	(together 	“the 	Intorcias”) 	resided 	next 	door 	to 	Alysa
Andrade3 who was having construction done on her house. 	(ECF No.
122-1 	(“56.1 	Counterstatement”) 	¶¶ 	1-3.) 	Plaintiff 	claims 	– 	and
Defendants dispute – that loud construction noise was coming from
Alysa 	Andrade’s 	home 	for 	most 	of 	the 	day. 	(ECF 	No. 	127 	(“56.1
Reply”) ¶ 95.) 	At 7:52 PM on July 17, 2023, Alysa Andrade called
911 and told the operator that one of her neighbors had come onto
her 	property 	without 	her 	permission 	and 	threatened 	her. 	(Id. 	¶
96; 56.1 Counterstatement ¶¶ 6-7,9.) 	The 911 operator told Alysa
Andrade that the police would be there as soon as possible. 	(Id.
¶ 10.)
2. 	The Police Response
a. 	Alysa Andrade’s Statements to NYPD Officers
After 	the 	911 	call, 	defendant 	Sgt. 	Falzarano 	and 	non-
party Ofc. Kevin Padilla responded to the scene. 	(Id. ¶ 11.) 	As
shown in Ofc. Padilla’s BWC video footage, the officers approached
Alysa 	Andrade’s 	house 	at 	8:05 	PM 	on 	July 	17, 	2023, 	in 	broad
daylight and with full visibility.4 	(ECF No. 123-3, Ofc. Padilla’s
3 	Given 	that 	multiple 	members 	of 	the 	Andrade 	family 	are 	referenced 	in 	the
parties’ submissions, the Court will refer to Alysa and Anessa Andrade by their
full names.
4 	The 	Court 	relies 	on 	video 	footage 	from 	Ofc. 	Padilla’s 	BWC, 	which 	clearly
captured 	the 	officers’ 	on-scene 	investigation, 	including 	interactions 	with
Plaintiff and members of the Andrade family, conducted during daylight. 	(See
ECF No. 123-3, Ofc. Padilla’s BWC (“Padilla BWC”).)
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BWC 	(“Padilla 	BWC”), 	8:05:00 	PM.) 	Alysa 	and 	her 	sister 	Anessa
Andrade 	told 	the 	officers, 	who 	stood 	on 	the 	sidewalk, 	that 	their
house was under construction and that a contractor was working on
their 	bathroom. 	(Padilla 	BWC 	8:05:15 	to 	8:05:40 	PM.) 	Alysa
Andrade 	then 	told 	officers 	that 	the 	Intorcias 	had 	come 	onto 	her
backyard 	and 	started 	yelling 	at 	her 	sister 	Anessa 	Andrade 	and
Anessa Andrade’s boyfriend. 	(Padilla BWC 8:05:50 to 8:06:00 PM.)
Alysa Andrade told officers that she (Alysa Andrade) then came to
the yard and spoke to the Intorcias who appeared very upset about
the construction noise. 	(Padilla BWC 8:06:00 to 8:06:12 PM; 56.1
Counterstatement 	¶ 	18.) 	Alysa 	Andrade 	told 	officers 	that 	she
(Alysa 	Andrade) 	told 	Plaintiff, 	“No, 	you 	need 	to 	get 	off 	my
property.” 	(Padilla 	BWC 	8:06:12 	to 	8:06:15 	PM.) 	Alysa 	Andrade
then told officers that Plaintiff would not leave her property and
that 	Plaintiff 	made 	disparaging 	comments 	about 	the 	construction
workers “being Mexican.” 	(Padilla BWC 8:06:15 to 8:06:20 PM; 56.1
Counterstatement 	¶ 	19.) 	Alysa 	Andrade 	told 	officers 	that 	she
(Alysa 	Andrade) 	then 	said 	to 	Plaintiff 	to 	“get 	out” 	and 	that,
instead 	of 	complying, 	Plaintiff 	“gets 	in 	[Alysa 	Andrade’s] 	face
and starts yelling” insults and threats, including that Plaintiff
stated 	that 	she 	was 	going 	to 	“fuckin’ 	kill” 	Alysa 	and 	Anessa
Andrade. 	(Padilla BWC 8:06:20 to 8:06:30 PM; 56.1 Counterstatement
¶¶ 21-22.) 	At this point, as Alysa Andrade was in the process of
relaying 	her 	version 	of 	events 	to 	the 	officers, 	the 	Intorcias
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walked 	up 	to 	the 	scene 	on 	the 	sidewalk. 	(Padilla 	BWC 	8:06:30 	to
8:06:40 PM.)
b. 	The Intorcias’ Statements to NYPD Officers
The 	officers 	then 	asked 	Plaintiff 	what 	happened, 	to
which 	Plaintiff, 	who 	initially 	did 	not 	stop 	walking, 	responded,
“Nothing. Goodnight.” 	(Padilla BWC 8:06:37 to 8:06:41 PM.) 	Soon
thereafter, 	however, 	the 	Intorcias 	stopped 	and 	spoke 	with 	the
officers. 	The 	Intorcias 	did 	not 	dispute 	that 	they 	intentionally
went 	onto 	Alysa 	Andrade’s 	fenced 	yard, 	and 	instead 	attempted 	to
downplay 	the 	trespass 	as 	insignificant. 	Mr. 	Intorcia 	told 	Ofc.
Padilla 	that 	they 	had 	only 	come 	three 	feet 	onto 	Alysa 	Andrade’s
property, 	and 	Ms. 	Intorcia 	told 	Ofc. 	Padilla 	that 	“the 	gate 	was
open.” 	(Padilla 	BWC 	8:07:02 	to 	8:07:32 	PM.) 	Mr. 	Intorcia 	then
admitted 	to 	Ofc. 	Padilla, 	“It 	was 	wrong. 	We 	shouldn’t 	have 	done
that.” 	(Padilla 	BWC 	8:07:33 	to 	8:07:36 	PM.) 	Ofc. 	Padilla 	then
asked Plaintiff, “Did you go to their yard?” (Padilla BWC 8:07:40
to 8:07:41 PM.) 	Plaintiff responded, “Yeah, I did.” 	(Padilla BWC
8:07:41 to 8:07:42 PM.) 	Ofc. Padilla then asked Plaintiff, “Were
you 	allowed 	to 	go 	their 	yard?” 	(Padilla 	BWC 	8:07:43 	to 	8:07:45
PM.) 	Plaintiff shook her head and responded, “No.” 	(Padilla BWC
8:07:45 PM.) 	Later, in relevant part, Alysa Andrade reiterated to
the officers, “I asked [Ms. Intorcia] to leave while [Ms. Intorcia]
was still on my property. She did not leave.” 	(Padilla BWC 8:09:48
to 	8:09:52 	PM.) 	Soon 	after 	hearing 	the 	version 	of 	events 	as
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presented by Alysa Andrade and the Intorcias, officers decided to
arrest Plaintiff, and Ofc. Padilla handcuffed Plaintiff. 	(Padilla
BWC 8:10:59 to 8:11:20 PM.)
B. 	Ofc. Caldararo’s Search of Plaintiff in the Precinct
Bathroom
After her arrest, Plaintiff was transported to the 122nd
Precinct 	by 	Officers 	Ng 	and 	Stam. 	(56.1 	Counterstatement 	¶ 	66.)
Ofc. Ng, Ofc. Stam, and Plaintiff arrived at the precinct at 8:34
PM, approximately 23 minutes after Plaintiff was handcuffed. 	(ECF
No. 120-6, Ofc. Stam’s BWC (“Stam BWC”), 8:34:00 PM.) 	There is no
evidence 	that 	Plaintiff 	was 	searched 	at 	any 	point 	prior 	to 	her
arrival at the precinct. 	(ECF Nos. 114-115.)
Officers Ng and Stam brought Plaintiff to the counter at
the 	precinct 	before 	Sgt. 	Campanella, 	the 	desk 	officer 	on 	duty.
(Stam BWC 8:36:00 PM.) 	The video shows that Plaintiff was agitated
and uncooperative. 	Plaintiff refused to spell her last name (“I’m
not spelling it”) and repeatedly interrupted Sgt. Campanella as he
attempted 	to 	explain 	to 	her 	the 	consequences 	of 	her 	decision.
(Stam 	BWC 	8:36:00 	to 	8:37:12 	PM.) 	During 	the 	conversation,
Plaintiff invoked her status as a local business owner by telling
the 	officers, 	“I 	have 	four 	business 	like 	up 	the 	street, 	so 	you
probably 	all 	know 	me 	anyway.” 	(Stam 	BWC 	8:39:05 	to 	8:39:05 	PM.)
Plaintiff then invoked her connections to NYPD officers by asking
the 	officers, 	“Is 	Detective 	Oswald 	here?” 	(Stam 	BWC 	8:39:38 	to
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8:39:41 	PM.) 	An 	officer 	responded, 	“Dunno. 	We’ll 	find 	out 	for
you.” 	(Stam 	BWC 	8:39:42 	to 	8:39:45 	PM.) 	Plaintiff 	continued,
“He’s a friend of mine... not saying he can do anything, but like
I 	can 	cry 	on 	his 	shoulder... 	I’ll 	just 	cry 	on 	him.” 	(Stam 	BWC
8:39:45 	to 	8:39:52 	PM.) 	Sgt. 	Campanella 	then 	explained 	to
Plaintiff 	that 	they 	would 	wait 	for 	a 	female 	officer 	to 	arrive 	to
conduct a search and that she would remain handcuffed until then.
(Stam BWC 8:40:30 to 8:39:48 PM.)
Upon hearing that she would be searched, Plaintiff grew
angry 	at 	Sgt. 	Campanella: 	“Search 	me? 	I 	don’t 	have 	anything 	on.
I’m 	not 	being 	searched. 	There’s 	no 	reason 	why 	I 	should 	be
searched. 	Why 	you 	searching 	me? 	Seriously... 	yeah 	I’m 	not 	being
searched. 	I 	deny 	it.” 	(Stam 	BWC 	8:40:45 	to 	8:41:01 	PM.)
Approximately a minute later, officers took Plaintiff to a secure
part of the precinct with a bench facing a holding cell (occupied
by a male inmate) to the left and a bathroom to the right. 	(Stam
BWC 	8:42:00 	PM.) 	While 	she 	was 	sitting 	on 	the 	bench 	next 	to
Officers Ng and Stam, Plaintiff told the male inmate in the holding
cell, 	“Go 	back 	to 	sleep. 	Why 	are 	you 	up?” 	(Stam 	BWC 	8:42:46 	to
8:42:50 PM.) 	Officer Ng then told Plaintiff, “Can you not?” 	(Stam
BWC 8:42:50 PM.) 	Plaintiff responded to Officer Ng, “He’s staring.
I 	have 	the 	right.” 	(Stam 	BWC 	8:42:53 	to 	8:42:55 	PM.) 	Plaintiff
then 	had 	casual 	conversation 	with 	the 	officers 	for 	nearly 	five
more minutes until 8:47 PM when Ofc. Caldararo arrived to conduct
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a search of Plaintiff. 	(Stam BWC 8:47:30 PM.)
Ofc. Ng introduced Plaintiff to Ofc. Caldararo, a female
officer, 	and 	explained 	to 	Plaintiff 	that 	Ofc. 	Caldararo 	would 	be
doing 	the 	search. 	(Stam 	BWC 	8:47:33 	to 	8:47:36 	PM.) 	Ofc.
Caldararo, who was wearing blue medical gloves, asked Plaintiff if
she had anything on her that she should not have, such as “anything
sharp” or “drugs.” 	(Stam BWC 8:47:44 to 8:47:49 PM.) 	Plaintiff,
who was wearing a long and loose-fitting green dress, said no and
confirmed that she was not wearing a bra or underwear because she
“just 	got 	out 	of 	the 	shower.” 	(Stam 	BWC 	8:47:49 	to 	8:47:55 	PM.)
Officers 	Ng 	and 	Caldararo 	then 	removed 	the 	handcuffs 	from
Plaintiff’s 	hands. 	(Stam 	BWC 	8:48:03 	PM.) 	Plaintiff 	removed 	a
bracelet 	she 	was 	wearing 	on 	her 	ankle. 	(Stam 	BWC 	8:48:43.) 	At
approximately 8:49:04 PM, Ofc. Caldararo and Plaintiff entered the
bathroom, 	the 	door 	closed, 	and 	the 	search 	began. 	(ECF 	No. 	120-
10, 	Ofc. 	Caldararo’s 	BWC 	(“Caldararo 	BWC”), 	8:49:04 	PM.) 	Ofc.
Caldararo 	removed 	her 	bodyworn 	camera 	and 	placed 	it 	on 	a 	table
with 	the 	camera 	lens 	facing 	the 	bathroom 	door 	and 	continuing 	to
record. 	(Id.) 	Approximately 	42 	seconds 	later, 	at 	8:49:46 	PM,
Ofc. 	Caldararo 	opened 	the 	bathroom 	door 	and 	walked 	out 	with
Plaintiff behind her. 	(Caldararo BWC 8:49:46 PM.) 	Ofc. Caldararo,
still with her gloves on, used her right hand to push the bathroom
door open and held what appears to be a white hairband in her left
hand. 	(Caldararo 	BWC 	8:49:46 	to 	8:49:50 	PM.) 	She 	then 	used 	her
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right 	hand 	to 	pick 	up 	her 	bodyworn 	camera 	and 	place 	it 	back 	onto
her uniform. 	(Caldararo BWC 8:49:56 PM.) 	She then used her right
hand 	to 	place 	the 	hairband 	into 	a 	glove 	Ofc. 	Stam 	held 	open.
(Caldararo 	BWC 	8:50:08 	PM.) 	Ofc. 	Caldararo 	then 	sighed 	and 	said
to 	Plaintiff, 	“Alright 	Miss, 	good 	luck 	with 	everything, 	okay?”
(Caldararo 	BWC 	8:50:10 	to 	8:50:12 	PM.) 	Plaintiff, 	responded,
“Thank you.” 	(Caldararo BWC 8:50:13 PM.) 	Ofc. Caldararo replied,
“You’re 	welcome.” 	(Caldararo 	BWC 	8:50:14 	PM.) 	She 	then 	removed
her 	gloves 	and 	turned 	off 	the 	bodyworn 	camera. 	(Caldararo 	BWC
8:50:15 PM.)
C. 	Plaintiff’s Criminal Charges
Plaintiff was initially arrested on four New York state
criminal 	offenses: 	(i) 	criminal 	trespass 	in 	the 	third 	degree 	in
violation of N.Y. Penal Law §140.10(A); (ii) trespass in violation
of 	N.Y. 	Penal 	Law 	§140.05; 	(iii) 	disorderly 	conduct 	in 	violation
of 	N.Y. 	Penal 	Law 	§240.20(6); 	and 	(iv) 	harassment 	in 	the 	second
degree 	in 	violation 	of 	N.Y. 	Penal 	Law 	§240.26(3). 	(ECF 	No. 	123-
1, NYPD Arrest Form, at 1.) 	Plaintiff was ultimately charged with
only two of the offenses: (i) criminal trespass in the third degree
in 	violation 	of 	N.Y. 	Penal 	Law 	§140.10(A); 	and 	(ii) 	trespass 	in
violation of N.Y. Penal Law §140.05. 	(ECF No. 123-5 at 9.)
According 	to 	Plaintiff, 	she 	was 	arraigned 	in 	handcuffs
the day after her arrest (July 18, 2023), pleaded not guilty, and
released 	on 	her 	own 	recognizance. 	(ECF 	No. 	33 	¶ 	55.) 	Plaintiff
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claims she was required to appear in court on August 23, 2023 and
October 	23, 	2023 	– 	before 	her 	charges 	were 	dismissed 	on 	December
14, 2023. 	(Id. ¶¶ 58-59, 62.)
II. 	Procedural Background
Plaintiff filed her original complaint in this action on
July 	11, 	2024, 	(ECF 	No. 	1), 	and 	later 	an 	amended 	complaint 	on
November 	8, 	2024, 	(ECF 	No. 	33 	(“Am. 	Complaint”)). 	Below 	is 	a
summary 	table 	of 	the 	claims 	Plaintiff 	asserts 	in 	her 	amended
complaint:
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Claim State or
Federal Nature of Claim 	Defendants
1 	State 	Malicious prosecution 	Stam, Ng, Falzarano
2 	Federal 	Malicious prosecution 	Stam, Ng, Falzarano
3 	Federal 	Evidence fabrication All individual
defendants5
4 	Federal 	Failure to intervene All individual
defendants
5 	State 	Abuse of process 	All defendants
6 	Federal 	Abuse of process 	All defendants6
7 	Federal 	Civil conspiracy All individual
defendants
8 	State 	False arrest City of New York,
Stam, Ng, Falzarano
9 	Federal 	False arrest 	Stam, Ng, Falzarano
10 	State 	False imprisonment 	All defendants
11 	Federal 	Unconstitutional 	search 	All defendants7
12 	Federal 	Excessive force 	All defendants8
13 	State 	Assault and battery City of New York,
Caldararo
14 	State Negligent Infliction of
Emotional Distress (“NIED”) All defendants
15 	State Negligent hiring, training,
and supervision City of New York
On 	December 	3, 	2024, 	Defendants 	filed 	an 	answer 	to 	the 	amended
complaint. 	(ECF 	No. 	41.) 	On 	August 	21, 	2025, 	the 	Court 	held 	a
5 Plaintiff is inconsistent in her use of the terms “all Defendants” and “the
Individual 	Defendants.” 	(Am. 	Complaint 	at 	33.) 	The 	only 	non-individual
defendant is the City of New York, and the City is not a proper defendant for
the evidence fabrication claim. 	“[A] plaintiff seeking to impose liability on
a municipality under § 1983” must “identify a municipal ‘policy’ or ‘custom’
that caused the plaintiff's injury.” 	Bd. of Cnty. Comm'rs of Bryan Cnty., Okl.
v. Brown, 520 U.S. 397, 403 (1997) (quoting Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 694 (1978)). 	“[A] municipality cannot be held
liable under § 1983 on a respondeat superior theory.” 	Monell, 436 U.S. at 691.
6 	Plaintiff 	incorrectly 	brings 	claims 	against 	“All 	Defendants” 	despite 	the
Section 1983 abuse of process claim, as alleged, being ineligible for municipal
liability. 	See supra n.5.
7 	Plaintiff 	incorrectly 	brings 	claims 	against 	“All 	Defendants” 	despite 	the
Section 1983 unconstitutional search claim, as alleged, being ineligible for
municipal liability. 	See supra n.5.
8 	Plaintiff 	incorrectly 	brings 	claims 	against 	“All 	Defendants” 	despite 	the
Section 1983 excessive force claim, as alleged, being ineligible for municipal
liability. 	See supra n.5.
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pre-motion 	conference 	in 	anticipation 	of 	Defendants’ 	motion 	for
partial 	summary 	judgment. 	(See 	Minute 	Entry 	dated 	August 	21,
2025.) 	The 	parties’ 	fully-briefed 	papers 	for 	Defendants’ 	motion
for partial summary judgment were filed on November 18, 2025.
LEGAL STANDARD
I. 	Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, a court
“shall grant summary judgment if the movant 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); 	accord
Alberty 	v. 	Hunter, 	144 	F.4th 	408, 	414 	(2d 	Cir. 	2025). 	A 	court
should 	grant 	summary 	judgment 	“if 	the 	pleadings, 	depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any 	material 	fact 	and 	that 	the 	moving 	party 	is 	entitled 	to 	a
judgment 	as 	a 	matter 	of 	law.” 	Anderson 	v. 	Liberty 	Lobby, 	Inc.,
477 	U.S. 	242, 	247 	(1986). 	“By 	its 	very 	terms, 	this 	standard
provides 	that 	the 	mere 	existence 	of 	some 	alleged 	factual 	dispute
between the parties will not defeat an otherwise properly supported
motion 	for 	summary 	judgment; 	the 	requirement 	is 	that 	there 	be 	no
genuine 	issue 	of 	material 	fact.” 	Id. 	at 	247–48 	(emphasis 	in
original). 	“An issue of fact is genuine if ‘the evidence is such
that 	a 	reasonable 	jury 	could 	return 	a 	verdict 	for 	the 	nonmoving
party,’” and “[a] fact is material if it ‘might affect the outcome
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of the suit under the governing law.’” 	Roe v. City of Waterbury,
542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).
“The 	role 	of 	the 	district 	court 	on 	summary 	judgment 	is
not to resolve disputed issues of fact but to assess whether there
are 	any 	factual 	issues 	to 	be 	tried.” 	McKinney 	v. 	City 	of
Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (citation modified).
“A party may not rely on mere speculation or conjecture as to the
true 	nature 	of 	the 	facts 	to 	overcome 	a 	motion 	for 	summary
judgment.” 	Hicks 	v. 	Baines, 	593 	F.3d 	159, 	166 	(2d 	Cir. 	2010)
(citation modified); see also Kemp v. Regeneron Pharms., Inc., 117
F.4th 63, 68 (2d Cir. 2024) (“Generally, speculation by the party
resisting the motion will not defeat summary judgment.”) (internal
quotations omitted).
Federal 	Rule 	of 	Civil 	Procedure 	56 	“mandates 	the 	entry
of 	summary 	judgment, 	after 	adequate 	time 	for 	discovery 	and 	upon
motion, against a party who fails to make a showing sufficient to
establish 	the 	existence 	of 	an 	element 	essential 	to 	that 	party's
case, 	and 	on 	which 	that 	party 	will 	bear 	the 	burden 	of 	proof 	at
trial.” 	Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 	“In
such a situation, there can be no genuine issue as to any material
fact, 	since 	a 	complete 	failure 	of 	proof 	concerning 	an 	essential
element of the nonmoving party's case necessarily renders all other
facts 	immaterial.” 	Id. 	at 	322–23 	(internal 	quotations 	omitted).
“The 	moving 	party 	is 	entitled 	to 	a 	judgment 	as 	a 	matter 	of 	law
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because the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof.” 	Id. at 323 (internal quotations omitted).
II. 	Section 1983 Claims
Plaintiff’s 	federal 	claims 	are 	brought 	pursuant 	to 	42
U.S.C. § 1983. 	Under Section 1983,
[e]very 	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 provides a cause of action against
any 	person 	who 	deprives 	an 	individual 	of 	federally 	guaranteed
rights 	‘under 	color’ 	of 	state 	law.” 	Filarsky 	v. 	Delia, 	566 	U.S.
377, 	383 	(2012). 	Section 	1983 	“does 	not 	confer 	any 	substantive
rights, but merely provides a method for vindicating federal rights
elsewhere 	conferred.” 	Village 	of 	Freeport 	v. 	Barrella, 	814 	F.3d
594, 600 n.8 (2d Cir. 2016) (citation modified).
“To 	state 	a 	claim 	under 	§ 	1983, 	[the 	plaintiff] 	[i]s
required to plausibly allege that ‘(1) the challenged conduct was
attributable 	at 	least 	in 	part 	to 	a 	person 	who 	was 	acting 	under
color 	of 	state 	law 	and 	(2) 	the 	conduct 	deprived 	the 	plaintiff 	of
a right guaranteed under the Constitution of the United States.’”
Flynn v. James, 513 F. App'x 37, 39 (2d Cir. 2013) (summary order)
(quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).
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DISCUSSION
For 	the 	reasons 	discussed 	below, 	the 	Court 	GRANTS
Defendants summary judgment on the following claims:
• 	Claim 	One 	(state 	malicious 	prosecution 	claims 	against
defendants Falzarano, Ng, and Stam)
• 	Claim Two (federal malicious prosecution claims against
defendants Falzarano, Ng, and Stam)
• 	Claim Three (federal evidence fabrication claim against
all individual defendants)
• 	Claim Four (federal failure to intervene claim against
all individual defendants)
• 	Claim 	Five 	(state 	abuse 	of 	process 	claim 	against 	all
defendants)
• 	Claim 	Six 	(federal 	abuse 	of 	process 	claim 	against 	all
defendants)
• 	Claim Seven (federal civil conspiracy claim against all
individual defendants)
• 	Claim 	Eight 	(state 	false 	arrest 	claim 	against
defendants City of New York, Falzarano, Ng, and Stam)
• 	Claim 	Nine 	(federal 	false 	arrest 	claim 	against
defendants Falzarano, Ng, and Stam)
• 	Claim 	Ten 	(state 	false 	imprisonment 	claim 	against 	all
defendants)
• 	Claim 	Eleven 	(federal 	unconstitutional 	search 	claim
against all defendants except defendant Caldararo)
• 	Claim Twelve (federal excessive force claim against all
defendants except defendant Caldararo)
• 	Claim Fourteen (state negligent infliction of emotional
distress claim against all defendants except defendants
Caldararo and City of New York)
• 	Claim 	Fifteen 	(state 	negligent 	hiring, 	training, 	and
supervision claim against the City of New York)
Plaintiff’s surviving claims for trial are therefore:
• 	Claim 	Eleven 	(federal 	unconstitutional 	search 	claim
against defendant Caldararo9)
• 	Claim 	Twelve 	(federal 	excessive 	force 	claim 	against
defendant Caldararo)
9 Ofc. Caldararo did not move for summary judgment on this claim. 	(ECF No. 121
at 12.)
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• 	Claim 	Thirteen 	(state 	assault 	and 	battery 	claims
against defendants Caldararo and City of New York)
• 	Claim Fourteen (state negligent infliction of emotional
distress claim against defendants Caldararo and City of
New York)
In 	the 	discussion 	below, 	the 	analysis 	of 	certain 	claims 	will 	be
grouped 	when 	the 	viability 	of 	such 	claims 	is 	predicated 	on 	the
same issue of law or fact.10
I. 	False Arrest, False Imprisonment, and Malicious Prosecution
(Claims One, Two, Eight, Nine, and Ten)
As 	discussed 	below, 	the 	existence 	of 	probable 	cause 	to
arrest and prosecute Plaintiff warrants summary judgment in favor
of 	Defendants 	on 	Plaintiff’s 	state 	malicious 	prosecution 	claim
(Claim 	One), 	federal 	malicious 	prosecution 	claim 	(Claim 	Two),
state false arrest claim (Claim Eight), federal false arrest claim
(Claim Nine), and state false imprisonment claim (Claim Ten).
A. 	Probable Cause
The 	Court 	will 	analyze 	probable 	cause 	to 	arrest 	and
probable 	cause 	to 	prosecute 	separately 	because 	probable 	cause 	to
prosecute 	must 	be 	analyzed 	charge-by-charge 	and 	is 	subject 	to 	a
“slightly higher” standard. 	Stansbury v. Wertman, 721 F.3d 84, 95
(2d Cir. 2013).
1. 	Probable Cause to Arrest
“An officer has probable cause to arrest when he or she
10 	For 	example, 	Plaintiff’s 	state 	malicious 	prosecution 	claim 	(Claim 	One),
federal malicious prosecution claim (Claim Two), state false arrest claim (Claim
Eight), federal false arrest claim (Claim Nine), and state false imprisonment
claim (Claim Ten) are all predicated on the absence of probable cause.
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has 	knowledge 	or 	reasonably 	trustworthy 	information 	of 	facts 	and
circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed
a crime.”11 	Id. at 89 (citation modified). 	“A court must consider
only those facts available to the officer at the time of the arrest
and immediately before it.”12 	Id. (citation modified).
The undisputed video evidence from BWC establishes that,
upon arrival at the scene, defendant Sgt. Falzarano and non-party
Ofc. Kevin Padilla engaged in an appropriate investigation of the
alleged 	trespass 	before 	determining 	that 	they 	had 	probable 	cause
to 	arrest 	Plaintiff. 	The 	officers 	spoke 	with 	the 	complaining
witness, 	Alysa 	Andrade, 	and 	then 	spoke 	with 	the 	Intorcias 	who
walked 	up 	to 	the 	officers 	on 	the 	sidewalk. 	Alysa 	Andrade 	told
officers 	that 	she 	(Alysa 	Andrade) 	said 	to 	Plaintiff, 	while
Plaintiff was on Alysa Andrade’s property, to “get out” and that,
instead 	of 	complying, 	Plaintiff 	“gets 	in 	[Alysa 	Andrade’s] 	face
11 The relative seriousness of a criminal offense does not affect the analysis
of probable cause to arrest. 	See Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) (“If an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”)
12 Plaintiff goes to great lengths in attempting to trace back the subjective
knowledge of various officers at various points in time, (see ECF No. 125 at
12-20), 	but 	such 	efforts 	are 	misplaced. 	As 	the 	Supreme 	Court 	explained 	in
Nieves 	v. 	Bartlett, 	“[a] 	particular 	officer's 	state 	of 	mind 	is 	simply
irrelevant, and it provides no basis for invalidating an arrest.” 	587 U.S.
391, 403 (2019) (internal quotations omitted). 	Also, “police officers, when
making a probable cause determination, are entitled to rely on the victims'
allegations that a crime has been committed.” 	Martinez v. Simonetti, 202 F.3d
625, 634 (2d Cir. 2000) (citation omitted). 	“They are also entitled to rely on
the allegations of fellow police officers.” 	Id. (citation omitted).
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and starts yelling” insults and threats. 	(Padilla BWC 8:06:20 to
8:06:30 	PM.) 	During 	the 	officers’ 	investigation, 	Ofc. 	Padilla
asked Plaintiff, “Did you go to their yard?” (Padilla BWC 8:07:40
to 8:07:41 PM.) 	Plaintiff responded, “Yeah, I did.” 	(Padilla BWC
8:07:41 to 8:07:42 PM.) 	Ofc. Padilla then asked Plaintiff, “Were
you 	allowed 	to 	go 	their 	yard?” 	(Padilla 	BWC 	8:07:43 	to 	8:07:45
PM.) 	Plaintiff shook her head and responded, “No.” 	(Padilla BWC
8:07:45 PM.) 	Later, Alysa Andrade reiterated to the officers, “I
asked [Ms. Intorcia] to leave while [Ms. Intorcia] was still on my
property. 	She 	did 	not 	leave.” 	(Padilla 	BWC 	8:09:48 	to 	8:09:52
PM.) 	Alysa 	Andrade’s 	allegations, 	coupled 	with 	Plaintiff’s 	own
admission (i.e. knowing that she was not allowed on Alysa Andrade’s
yard 	but 	that 	she 	went 	anyway), 	were 	sufficient 	to 	establish
probable cause as to each element of criminal trespass under N.Y.
Penal Law § 140.05. 	“[T]o establish probable cause for arresting
[Plaintiff] 	for 	criminal 	trespass, 	Defendants 	must 	show 	that 	(1)
there 	was 	a 	lawful 	order 	excluding 	Plaintiff 	from 	the 	property;
(2) 	that 	the 	order 	was 	communicated 	to 	him 	by 	a 	person 	with
authority 	to 	give 	the 	order; 	and 	(3) 	that 	Plaintiff 	defied 	the
order.” 	Yorzinski 	v. 	City 	of 	New 	York, 	175 	F. 	Supp. 	3d 	69, 	77
(S.D.N.Y. 	2016). 	In 	sum, 	officers 	had 	probable 	cause 	to 	arrest
Plaintiff 	based 	on 	their 	investigation, 	which 	showed 	that
Plaintiff 	defied 	Alysa 	Andrade’s 	order 	to 	leave 	her 	yard 	and
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therefore committed a N.Y. Penal Law § 140.05 offense.13
2. 	Probable Cause to Prosecute
As noted earlier, “[t]he probable cause standard in the
malicious prosecution context is slightly higher than the standard
for 	false 	arrest 	cases.” 	Stansbury, 	721 	F.3d 	at 	95. 	“Probable
cause, 	in 	the 	context 	of 	malicious 	prosecution, 	has 	... 	been
described 	as 	such 	facts 	and 	circumstances 	as 	would 	lead 	a
reasonably 	prudent 	person 	to 	believe 	the 	plaintiff 	guilty.” 	Id.
(internal 	quotations 	omitted). 	In 	contrast 	to 	the 	analysis 	of
probable 	cause 	to 	arrest, 	probable 	cause 	to 	prosecute 	must 	be
evaluated 	“charge 	by 	charge” 	such 	that 	“a 	Fourth 	Amendment
malicious-prosecution claim may succeed when a baseless charge is
accompanied 	by 	a 	valid 	charge.” 	Chiaverini 	v. 	City 	of 	Napoleon,
13 	One 	of 	the 	four 	criminal 	offenses 	for 	which 	Plaintiff 	was 	arrested 	was
disorderly conduct in violation of N.Y. Penal Law §240.20(6). 	(ECF No. 123-1
at 4.) 	This may have been a mistake or clerical error because officers lacked
probable 	cause 	to 	arrest 	Plaintiff 	for 	an 	offense 	under 	this 	particular
subsection 	(§240.20(6)) 	but 	arguably 	had 	probable 	cause 	under 	different
subsections of the disorderly conduct statute. 	Under N.Y. Penal Law §240.20(6),
“[a] person is guilty of disorderly conduct when, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof ...
congregates with other persons in a public place and refuses to comply with a
lawful order of the police to disperse.” 	There is no evidence that Plaintiff
congregated in a public place or defied a police order to disperse.
This error does not give rise to a false arrest claim because “a claim for false
arrest turns only on whether probable cause existed to arrest a defendant, and
... 	it 	is 	not 	relevant 	whether 	probable 	cause 	existed 	with 	respect 	to 	each
individual 	charge, 	or, 	indeed, 	any 	charge 	actually 	invoked 	by 	the 	arresting
officer at the time of arrest.” 	Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.
2006). 	“Stated differently, when faced with a claim for false arrest, we focus
on the validity of the arrest, and not on the validity of each charge.” 	Id.
(emphasis in original).
This error also does not give rise to a malicious prosecution claim because
Plaintiff was not charged with disorderly conduct in violation of N.Y. Penal
Law §240.20(6). 	(ECF No. 123-5 at 9.)
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Ohio, 	602 	U.S. 	556, 	562 	(2024). 	Although 	Plaintiff 	was 	arrested
on four charges, she was ultimately charged with only two trespass-
related 	offenses: 	(i) 	trespass 	in 	violation 	of 	N.Y. 	Penal 	Law
§140.05, 	and 	(ii) 	criminal 	trespass 	in 	the 	third 	degree 	in
violation 	of 	N.Y. 	Penal 	Law 	§140.10(A). 	(ECF 	No. 	123-5 	at 	9.)
Each is analyzed in turn.
a. 	Trespass (N.Y. Penal Law § 140.05)
First, 	as 	discussed 	at 	length 	above 	in 	Part 	I.A.1,
officers 	had 	probable 	cause 	to 	arrest 	Plaintiff 	for 	criminal
trespass 	under 	§ 	140.05. 	Their 	investigation 	also 	provided
adequate 	probable 	cause 	under 	the 	“slightly 	higher” 	standard 	for
probable 	cause 	to 	prosecute. 	Stansbury, 	721 	F.3d 	at 	95. 	Alysa
Andrade’s statements and the admissions of both Plaintiff and her
husband, 	Mr. 	Intorcia, 	were 	more 	than 	sufficient 	to 	establish
probable cause to prosecute Plaintiff because a reasonable person
would 	conclude 	Plaintiff 	entered 	Alysa 	Andrade’s 	property 	and
remained after being ordered to leave.
b. 	Criminal Trespass in the Third Degree (N.Y.
Penal Law §140.10(A))
Second, 	Plaintiff 	was 	charged 	under 	N.Y. 	Penal 	Law
§140.10(A), which provides that “[a] person is guilty of criminal
trespass 	in 	the 	third 	degree 	when 	he 	knowingly 	enters 	or 	remains
unlawfully in a building or upon real property ... which is fenced
or 	otherwise 	enclosed 	in 	a 	manner 	designed 	to
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exclude 	intruders.” 	The 	Court 	incorporates 	here 	its 	preceding 	§
140.05 	analysis 	in 	Section 	I.A.2.a. 	to 	find 	that 	Plaintiff
“knowingly ... remain[ed] unlawfully ... upon real property.” 	The
only 	element 	distinguishing 	§ 	140.10(A) 	from 	§ 	140.05 	is 	the
fencing 	element 	– 	that 	is, 	whether 	the 	property 	at 	issue 	was
“fenced 	or 	otherwise 	enclosed 	in 	a 	manner 	designed 	to 	exclude
intruders.”14 	This 	element 	is 	satisfied 	because, 	as 	officers
approached 	the 	property, 	the 	fencing 	around 	Alysa 	Andrade’s 	yard
was visible. 	(See Padilla BWC 8:05:04 to 8:05:08 PM.) 	In speaking
with 	the 	responding 	officers, 	Plaintiff 	attempts 	to 	excuse 	her
conduct by claiming that “the gate was open.” 	(Padilla BWC 8:07:02
to 8:07:32 PM.) 	Even if the Court were to credit Plaintiff’s claim
that 	there 	was 	an 	open 	gate 	on 	the 	fence 	surrounding 	Alysa
Andrade’s yard, an open gate in a residential yard would not render
the 	property 	unfenced. 	Moreover, 	Plaintiff 	presents 	no 	evidence
and 	no 	argument 	that 	Alysa 	Andrade’s 	yard 	was 	not 	“fenced” 	under
N.Y. 	Penal 	Law 	§ 	140.10(A). 	The 	Court 	therefore 	finds 	that
probable 	cause 	existed 	to 	prosecute 	Plaintiff 	for 	“knowingly 	...
remain[ing] unlawfully ... upon real property ... which is fenced”
– 	that 	is, 	Plaintiff’s 	refusal 	to 	leave 	Alysa 	Andrade’s 	fenced
yard after she was ordered to leave.
14 A N.Y. Penal Law § 140.05 offense is a lesser-included offense of N.Y. Penal
Law § 140.10(A). 	See Yorzinski v. City of New York, 175 F. Supp. 3d 69, 76-77
(S.D.N.Y. 2016).
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B. 	Probable Cause Defeats False Arrest, False Imprisonment,
and 	Malicious 	Prosecution 	Claims 	(Claims 	One, 	Two,
Eight, Nine, and Ten)
As 	discussed 	below, 	the 	existence 	of 	probable 	cause 	to
arrest and prosecute Plaintiff warrants summary judgment in favor
of Defendants on five claims predicated on the absence of probable
cause.
1. 	False Arrest and False Imprisonment
Probable 	cause 	to 	arrest 	Plaintiff 	defeats 	Plaintiff’s
state false arrest claim (Claim Eight), federal false arrest claim
(Claim Nine), and state false imprisonment claim (Claim Ten). 	See
Ackerson 	v. 	City 	of 	White 	Plains, 	702 	F.3d 	15, 	19 	(2d 	Cir. 	2012)
(“Probable 	cause 	is 	a 	complete 	defense 	to 	an 	action 	for 	false
arrest brought under New York law or § 1983.”) (internal quotations
omitted); 	see 	also 	Martinez 	v. 	City 	of 	Schenectady, 	761 	N.E.2d
560, 564 (2001) (“The existence of probable cause serves as a legal
justification 	for 	the 	arrest 	and 	an 	affirmative 	defense 	to 	the
[false imprisonment] claim.”) 	The City of New York is not liable
for 	Claims 	Eight 	and 	Ten 	under 	a 	vicarious 	liability 	theory
because, 	“when 	there 	is 	no 	underlying 	liability, 	there 	can 	be 	no
vicarious 	liability.” 	Triolo 	v. 	Nassau 	Cnty., 	24 	F.4th 	98, 	112
(2d 	Cir. 	2022). 	The 	Court 	therefore 	GRANTS 	Defendants 	summary
judgment as to Claims Eight, Nine, and Ten.
2. 	Malicious Prosecution
Probable 	cause 	to 	prosecute 	Plaintiff 	defeats
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Plaintiff’s 	state 	malicious 	prosecution 	claim 	(Claim 	One), 	and
federal malicious prosecution claim (Claim Two). 	See Mitchell v.
City 	of 	New 	York, 	841 	F.3d 	72, 	79 	(2d 	Cir. 	2016) 	(“In 	order 	to
prevail on ... a [malicious prosecution] claim under both Section
1983 	and 	New 	York 	State 	law, 	a 	plaintiff 	is 	required 	to
demonstrate,” 	inter 	alia, 	“that 	there 	was 	no 	probable 	cause 	for
the proceeding.”) (internal quotations omitted). 	The Court finds
that there was probable cause to prosecute Plaintiff and that she
has not presented any evidence upon which a reasonable jury could
find 	for 	Plaintiff 	on 	Claims 	One 	and 	Two. 	Therefore, 	the 	Court
GRANTS Defendants summary judgment as to Claims One and Two.
II. 	Abuse of Process Claims (Claims Five and Six)
Although, as discussed below, the elements of claims for
federal 	and 	state 	abuse 	of 	process 	(also 	termed 	“malicious 	abuse
of process”15) are unclear as to probable cause, the Second Circuit
has 	previously 	held 	that 	“[i]n 	New 	York, 	‘a 	malicious 	abuse-of-
process 	claim 	lies 	against 	a 	defendant 	who 	(1) 	employs 	regularly
issued legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse [or] justification,
and (3) in order to obtain a collateral objective that is outside
the 	legitimate 	ends 	of 	the 	process.’” 	Savino, 	331 	F.3d 	at 	76
(quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)).
15 Courts 	use 	the 	terms 	“abuse 	of 	process” 	and 	“malicious 	abuse 	of 	process”
interchangeably to refer to the same claim. 	See Savino v. City of New York,
331 F.3d 63, 76-78 (2d Cir. 2003).
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A. 	Probable Cause
As the Second Circuit acknowledged in 2015, “[t]here has
been 	considerable 	confusion 	within 	our 	Circuit 	regarding 	whether
probable cause is a complete defense to a claim of abuse of process
under New York law.” 	Mangino v. Inc. Vill. of Patchogue, 808 F.3d
951, 	958 	(2d 	Cir. 	2015). 	After 	a 	decade 	of 	“considerable
confusion” 	on 	this 	issue, 	the 	Second 	Circuit 	has 	not 	issued 	a
precedential opinion as to whether probable cause defeats an abuse
of process claim. 	Instead, the Second Circuit has held that, for
abuse 	of 	process 	claims 	where 	probable 	cause 	exists, 	the 	“very
existence” 	of 	“this 	confusion” 	in 	the 	law 	“establishes 	that 	[the
defendant] is entitled to qualified immunity.” 	Id. at 959. 	Since
Mangino, 	the 	lingering 	uncertainty 	over 	the 	past 	decade 	has
resulted in courts routinely granting officers qualified immunity
on 	the 	basis 	of 	“confusion” 	rather 	than 	a 	legal 	finding 	that
probable 	cause 	is 	a 	complete 	defense 	to 	abuse 	of 	process 	claims.
See, 	e.g., 	Pulk 	v. 	Winter, 	722 	F. 	App'x 	36, 	39 	(2d 	Cir. 	2018)
(summary 	order) 	(granting 	qualified 	immunity 	due 	to 	the
“considerable 	confusion” 	discussed 	in 	Mangino); 	DuBois 	v.
Cunningham, 	No. 	21-923, 	2022 	WL 	2186956, 	at 	*3 	(2d 	Cir. 	June 	17,
2022) (summary order) (same).
The 	Mangino 	panel 	recognized 	that, 	in 	the 	absence 	of
controlling authority from the Second Circuit, “numerous district
courts 	within 	our 	Circuit” 	and 	at 	least 	one 	Second 	Circuit 	panel
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(in a nonprecedential summary order) held that “probable cause is
a 	complete 	defense 	to 	an 	abuse-of-process 	claim 	under 	New 	York
law.” 	808 F.3d at 958 (collecting cases) (emphasis added). 	But,
given 	that 	the 	Mangino 	panel 	left 	the 	question 	unanswered, 	some
district 	courts 	have 	since 	adopted 	the 	opposite 	view 	– 	that
probable 	cause 	is 	not 	a 	complete 	defense 	to 	abuse 	of 	process
claims. 	See 	Carwell 	v. 	City 	of 	New 	York, 	No. 	21-CV-480 	(VEC),
2023 WL 419182, at *4 (S.D.N.Y. Jan. 26, 2023) (collecting cases).
In 	the 	face 	of 	at 	least 	a 	decade 	of 	uncertainty
throughout the Circuit on this important constitutional question,
this Court finds it prudent at this juncture to undertake a fresh,
exhaustive review of the relevant controlling case law. 	Upon doing
so, this Court finds on-point Supreme Court authority that offers
a 	clear 	answer. 	Across 	majority 	opinions, 	concurrences, 	and
dissents 	over 	decades, 	the 	Supreme 	Court 	has 	uniformly 	taken 	the
position 	that 	an 	abuse 	of 	process 	claim 	is 	not 	predicated 	on 	an
absence of probable cause or “the wrongfulness of the prosecution,
but 	[rather] 	some 	extortionate 	perversion 	of 	lawfully 	initiated
process 	to 	illegitimate 	ends.” 	Heck 	v. 	Humphrey, 	512 	U.S. 	477,
486 	n.5 	(1994); 	Hartman 	v. 	Moore, 	547 	U.S. 	250, 	258 	(2006)
(discussing 	“whether 	the 	closer 	common-law 	analog 	to 	retaliatory
prosecution 	is 	malicious 	prosecution 	(with 	its 	no-probable-cause
element) or abuse of process (without it)”) (emphasis added); Heck,
at 	495 	(Souter, 	J., 	concurring) 	(four-Justice 	concurrence 	citing
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to Restatement (Second) of Torts § 682, Illustration 1 (1977) for
the 	proposition 	that 	liability 	for 	abuse 	of 	process 	could 	be
established “regardless of ... want of probable cause”); Pro. Real
Est. 	Invs., 	Inc. 	v. 	Columbia 	Pictures 	Indus., 	Inc., 	508 	U.S. 	49,
74 	(1993) 	(Stevens, 	J., 	concurring) 	(“The 	existence 	of 	a 	tort 	of
abuse 	of 	process 	shows 	that 	it 	has 	long 	been 	thought 	that
litigation could be used for improper purposes even when there is
probable 	cause 	for 	the 	litigation.”); 	Gonzalez 	v. 	Trevino, 	602
U.S. 653, 670 (2024) (Alito, J., concurring) (“the common-law tort
of 	abuse 	of 	process 	... 	lacks 	a 	no-probable-cause 	requirement”);
Gonzalez, 	602 	U.S. 	at 	677 	(2024) 	(Thomas, 	J., 	dissenting) 	(“an
abuse-of-process 	claim 	did 	not 	require 	a 	plaintiff 	to 	establish
the 	absence 	of 	probable 	cause”) 	(citing 	C. 	Addison, 	Wrongs 	and
Their Remedies 601–602 (3d ed. 1870); T. Cooley, Law of Torts 356
(3d ed. 1906)).
Another 	notable 	analytical 	issue 	is 	that, 	although 	the
Second Circuit held in Mangino that “[w]hen a plaintiff asserts an
abuse-of-process claim under Section 1983, we turn to state law to
find 	the 	elements,” 	808 	F.3d 	951, 	958 	n.5 	(internal 	quotations
omitted), the Supreme Court more recently held that courts should
employ 	a 	more 	demanding 	(and 	research-intensive) 	approach 	to
identify 	the 	correct 	elements: 	“To 	determine 	the 	elements 	of 	a
constitutional 	claim 	under 	§ 	1983, 	this 	Court's 	practice 	is 	to
first 	look 	to 	the 	elements 	of 	the 	most 	analogous 	tort 	as 	of 	1871
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when 	§ 	1983 	was 	enacted, 	so 	long 	as 	doing 	so 	is 	consistent 	with
the 	values 	and 	purposes 	of 	the 	constitutional 	right 	at 	issue.”
Thompson 	v. 	Clark, 	596 	U.S. 	36, 	43 	(2022) 	(internal 	quotations
omitted) (emphasis added).
After 	conducting 	the 	Thompson 	analysis 	and 	reviewing
case law that sheds light on how courts analyzed abuse of process
torts in the late 1800s, this Court finds further support for the
view that probable cause does not defeat an abuse of process claim.
In 	an 	1898 	case, 	Whitten 	v. 	Bennett, 	the 	Second 	Circuit 	held, 	in
relevant part, that “[t]here is a class of cases in which a party
who has been injured by the use of legal process which is neither
void 	nor 	invalid 	has 	a 	remedy 	by 	action 	upon 	the 	case, 	sometimes
termed 	an 	action 	for 	abuse 	of 	process.” 	86 	F. 	405, 	406 	(2d 	Cir.
1898) 	(internal 	quotations 	omitted). 	In 	contrast, 	“[t]he 	burden
of 	showing 	want 	of 	probable 	cause 	is 	upon 	the 	plaintiff 	in 	an
action 	for 	malicious 	prosecution.” 	Marks 	v. 	Townsend, 	97 	N.Y.
590, 590 (1885).
Moreover, a review of pre-1871 case law establishes that
the 	distinction 	between 	malicious 	prosecution 	(which 	is 	defeated
by 	probable 	cause) 	and 	abuse 	of 	process 	(which 	is 	not) 	was 	well-
settled 	by 	1871. 	For 	example, 	in 	an 	1837 	case, 	Baldwin 	v. 	Weed,
the 	Supreme 	Court 	of 	Judicature 	of 	New 	York16 	noted 	that, 	though
16 As explained by the Historical Society of the New York Courts, the Supreme
Court 	of 	Judicature 	of 	New 	York 	was 	the 	highest 	New 	York 	state 	court 	with
jurisdiction in law, prior to the merger of law and equity jurisdiction:
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plaintiff’s 	malicious 	prosecution 	claim 	was 	defeated 	by 	probable
cause,17 the 	plaintiff’s 	complaint 	“should 	have 	contained 	a 	count
for 	the 	abuse 	of 	the 	process, 	and 	which 	would 	have 	reached 	this
particular 	objectionable 	conduct 	of 	the 	defendant, 	so 	highly
outrageous and indefensible.” 17 Wend. 224, 233-34, 1837 WL 2761,
at *7 (N.Y. Sup. Ct. 1837).
Bound 	by 	controlling 	Supreme 	Court 	authority 	and
informed by the analytical approach in Thompson (i.e. ascertaining
the elements of abuse of process as understood in 1871), this Court
finds 	that 	probable 	cause 	is 	not 	a 	complete 	defense 	to 	abuse 	of
process.
B. 	Federal Qualified Immunity Applicable to Federal Abuse
of Process Claim (Claim Six)
Notwithstanding 	the 	Court’s 	preceding 	finding 	that
probable cause is not a complete defense to abuse of process, this
By Chapter 4 of the Laws of 1691, the New York Assembly established the
New York Supreme Court of Judicature with the same common law jurisdiction
as the English Courts of King’s Bench, Common Pleas and Exchequer. The
court did not have jurisdiction in equity — that jurisdiction was vested
in the Court of Chancery. The Supreme Court of Judicature was continued
under 	the 	1777 	Constitution. 	Under 	the 	1846 	Constitution, 	the 	equity
jurisdiction 	of 	the 	Court 	of 	Chancery 	became 	vested 	in 	the 	New 	York
Supreme Court, which from then on possessed general common law and equity
jurisdiction.
See Historical Society of the New York Courts, New York State Supreme Court,
https://perma.cc/6BWG-KEMB (accessed November 23, 2025).
17 “In an action for malicious prosecution for procuring the indictment of the
plaintiff for obtaining goods by false pretences, evidence that the plaintiff
had 	been 	guilty 	of 	conduct 	... 	is 	sufficient 	to 	warrant 	a 	verdict 	for 	the
defendant 	on 	the 	ground 	of 	the 	existence 	of 	probable 	cause 	for 	criminal
prosecution.” 	Baldwin v. Weed, 17 Wend. 224, 1837 WL 2761, at *1 (N.Y. Sup.
Ct. 1837) (emphasis in original).
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Court 	is 	bound 	by 	the 	Second 	Circuit’s 	finding 	in 	Mangino 	that,
when 	probable 	cause 	exists, 	defendants 	are 	entitled 	to 	qualified
immunity 	on 	federal 	abuse 	of 	process 	claims 	because 	“officers 	of
reasonable 	competence,” 	and 	even 	“federal 	judges,” 	“could
disagree” (and, in fact, do disagree) “on the issue.” 	808 F.3d at
959. 	See 	Pulk, 	722 	F. 	App'x 	at 	39 	(granting 	qualified 	immunity
due to the “considerable confusion” discussed in Mangino); DuBois,
2022 WL 2186956, at *3 (same). 	Because Defendants are entitled to
federal 	qualified 	immunity, 	the 	Court 	GRANTS 	Defendants 	summary
judgment on Plaintiff’s federal abuse of process claim (Claim Six).
C. 	State Abuse of Process Claim (Claim Five)
Plaintiff’s 	state 	abuse 	of 	process 	claim 	is 	analyzed
under 	state 	law, 	and 	the 	Court 	must 	consider 	qualified 	immunity
under state law rather than federal law. 	See Triolo, 24 F.4th at
108–09 	(distinguishing 	between 	federal 	and 	state 	qualified
immunity); 	see 	also 	Napolitano 	v. 	Flynn, 	949 	F.2d 	617, 	621 	(2d
Cir. 	1991) 	(“the 	substantive 	law 	of 	[the 	state] 	governs 	the
applicability 	of 	qualified 	immunity 	to 	[plaintiff]'s 	state 	law
claims”).
1. 	Lack of Clarity Under State Law
As 	a 	threshold 	matter, 	at 	least 	some 	of 	the 	confusion
about the elements of federal abuse of process claims also appears
to exist as to the elements of state abuse of process claims. 	In
Shields 	v. 	City 	of 	New 	York, 	the 	First 	Department 	held 	that
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probable 	cause 	is 	not, 	by 	itself, 	a 	complete 	defense 	to 	a 	state
abuse 	of 	process 	claim 	– 	but 	rather 	must 	be 	accompanied 	by 	the
absence 	of 	a 	“collateral 	objective.” 	35 	N.Y.S.3d 	330, 	331 	(1st
Dep’t 2016) (“Since plaintiffs point to no evidence that defendants
were 	motivated 	by 	some 	collateral 	objective, 	the 	existence 	of
probable cause likewise constitutes a defense to plaintiffs' cause
of 	action 	for 	abuse 	of 	process”) 	(citations 	omitted) 	(emphasis
added). 	The 	Second 	Department, 	however, 	previously 	held 	that
“justification” 	(i.e. 	probable 	cause) 	could 	negate 	an 	element 	of
abuse 	of 	process. 	See 	Hornstein 	v. 	Wolf, 	491 	N.Y.S.2d 	183, 	187
(2d 	Dep’t 	1985), 	aff'd, 	67 	N.Y.2d 	721 	(1986) 	(“There 	are 	three
essential elements to the cause of action [for abuse of process]:
(1) 	regularly 	issued 	process 	compelling 	the 	performance 	or
forbearance of some prescribed act; (2) the person activating the
process 	must 	have 	been 	motivated 	to 	do 	harm 	without 	economic 	or
social excuse or justification; and (3) the person activating the
process must be seeking some collateral advantage or corresponding
detriment to the plaintiff which is outside the legitimate ends of
process.”) (citations omitted) (emphasis added). 	Therefore, there
exists at least some conflict in state law on this issue.18
18 Historically, New York courts found that probable cause does not defeat state
abuse of process claims. 	For example, in a 1903 case, Paul v. Fargo, the Fourth
Department quoted Hale on Torts for the proposition that the absence of probable
cause is not an element of malicious abuse of process:
Malicious abuse of process is distinguished from malicious prosecution in
at least two respects: First, in that want of probable cause is not an
essential element; and, second, that it is not essential that the original
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2. 	State Qualified Immunity
“New 	York 	law 	grants 	government 	officials 	qualified
immunity 	on 	state 	law 	claims 	... 	if 	their 	actions 	entail 	making
decisions 	of 	a 	judicial 	nature, 	unless 	there 	is 	bad 	faith 	or 	the
action taken is without a reasonable basis.” 	Triolo, 24 F.4th at
108 	(internal 	quotations 	omitted). 	“In 	contrast 	to 	the 	federal
standard, 	which 	is 	objectively 	reasonable 	reliance 	on 	existing
law, 	the 	New 	York 	standard 	for 	entitlement 	to 	qualified 	immunity
has 	both 	objective 	and 	subjective 	components.” 	Lore 	v. 	City 	of
Syracuse, 	670 	F.3d 	127, 	166 	(2d 	Cir. 	2012) 	(internal 	quotations
omitted). 	“The 	subjective 	component 	makes 	qualified 	immunity
entirely 	unavailable 	if 	there 	are 	undisturbed 	findings 	of 	bad
faith.” 	Id. (internal quotations omitted).
The 	Court 	finds 	(i) 	that 	the 	lingering 	confusion
identified 	in 	Mangino 	exists 	as 	to 	state 	abuse 	of 	process 	claims
proceeding shall have terminated.
82 	N.Y.S. 	369, 	373 	(4th 	Dep’t 	1903) 	(emphasis 	added). 	In 	1968, 	the 	Second
Department 	quoted 	Law 	of 	Torts 	by 	Harper 	and 	James 	to 	explain 	the 	“often
overlooked” “distinction between abuse of process and malicious prosecution”:
A wrong usually referred to as “malicious abuse of process” is committed
when the actor employs legal process in a manner technically correct, but
for a wrongful and malicious purpose to attain an unjustifiable end or an
object which it was not the purpose of the particular process employed to
effect. It differs from malicious prosecution in that it is not necessary
to show that the action in which the process was used was without probable
cause or that it terminated favorably to the plaintiff. The action is not
for 	the 	wrongful 	bringing 	of 	an 	action 	or 	prosecution, 	but 	for 	the
improper use, or rather “abuse,” of process in connection therewith.
Pagliarulo 	v. 	Pagliarulo, 	293 	N.Y.S.2d 	13, 	14 	(2d 	Dep’t 	1968) 	(citation
modified).
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as well, (see supra Section II.C.2), (ii) that officers’ probable
cause 	determination 	constitutes 	a 	“decision[] 	of 	a 	judicial
nature,” Triolo, 24 F.4th at 108, and (iii) that Plaintiff has not
adduced 	any 	non-speculative 	evidence 	suggesting 	bad 	faith 	on 	the
part 	of 	the 	officers 	involved 	in 	Plaintiff’s 	arrest 	and
prosecution. 	See Hicks, 593 F.3d at 166 (“A party may not rely on
mere speculation or conjecture as to the true nature of the facts
to overcome a motion for summary judgment.”) (citation modified).
Even 	if, 	arguendo, 	Plaintiff 	was, 	as 	she 	claims, 	subjected 	to 	an
invasive cavity search by Ofc. Caldararo, Plaintiff has offered no
non-speculative evidence that such invasive cavity search was the
product of bad faith police conduct. 	Accordingly, the individual
officer 	defendants 	are 	entitled 	to 	state 	qualified 	immunity, 	and
the 	Court 	GRANTS 	the 	individual 	officer 	defendants 	summary
judgment on Plaintiff’s state abuse of process claim (Claim Five).
3. 	Plaintiff’s State Abuse of Process Claim Against
the City of New York
Although state qualified immunity bars Plaintiff’s state
abuse of process claim (Claim Five) against the individual officer
defendants, qualified immunity is only “an individual affirmative
defense” and “does not protect municipalities.” 	Triolo, 24 F.4th
at 	110. 	“[U]nder 	New 	York 	law 	and 	basic 	agency 	principles, 	a
municipal 	employer 	is 	vicariously 	liable 	for 	the 	wrongs 	of 	its
employee, 	even 	when 	the 	employee 	is 	individually 	immune, 	so 	long
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as 	the 	wrong 	was 	committed 	within 	the 	scope 	of 	employment.” 	Id.
Regardless of whether probable cause is a complete defense to state
abuse of process claims, the Court finds that Plaintiff has offered
no non-speculative evidence for a critical element of the claim –
specifically, 	that 	officers 	were 	“seeking 	some 	collateral
advantage 	or 	corresponding 	detriment 	to 	the 	plaintiff 	which 	is
outside the legitimate ends of process.” 	Hornstein, 491 N.Y.S.2d
at 187, aff'd, 67 N.Y.2d 721. 	As discussed at length in Part III
of this section, see infra, Plaintiff’s allegations that officers
had 	improper 	motives 	are 	predicated 	on 	“mere 	speculation 	or
conjecture 	as 	to 	the 	true 	nature 	of 	the 	facts,” 	which 	cannot
“overcome a motion for summary judgment.” 	Hicks, 593 F.3d at 166.
Because 	Plaintiff 	cannot 	establish 	that 	officers 	had 	improper
motives 	for 	Plaintiff’s 	arrest 	and 	prosecution, 	the 	City 	of 	New
York 	cannot 	be 	held 	liable 	on 	a 	theory 	of 	vicarious 	liability.
See 	Triolo, 	24 	F.4th 	at 	112 	(holding 	that, 	“when 	there 	is 	no
underlying 	liability, 	there 	can 	be 	no 	vicarious 	liability”).
Accordingly, 	the 	Court 	GRANTS 	defendant 	City 	of 	New 	York 	summary
judgment on Plaintiff’s state abuse of process claim (Claim Five).
III. Plaintiff’s Claims of Civil Conspiracy, Evidence Fabrication,
Failure 	to 	Intervene, 	and 	Negligent 	Hiring, 	Training, 	and
Supervision 	(Claims 	Three, 	Four, 	Seven, 	and 	Fifteen) 	are
Predicated 	on 	Impermissible 	Speculation 	and 	are 	Unsupported
by Evidence Creating a Factual Dispute From Which a Jury Could
Find for Plaintiff
As 	previously 	discussed, 	the 	Second 	Circuit 	has 	held
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that “[a] party may not rely on mere speculation or conjecture as
to 	the 	true 	nature 	of 	the 	facts 	to 	overcome 	a 	motion 	for 	summary
judgment.” 	Hicks, 593 F.3d at 166; see also Kemp, 117 F.4th at 68
(“Generally, 	speculation 	by 	the 	party 	resisting 	the 	motion 	will
not 	defeat 	summary 	judgment.”) 	(internal 	quotations 	omitted).
Most 	of 	Plaintiff’s 	claims 	rely 	wholly 	on 	unsupported 	inferences
and 	assumptions 	that 	are 	impermissible 	under 	controlling 	Second
Circuit precedent.19 	As discussed below, Plaintiff fails to adduce
non-speculative 	evidence 	in 	support 	of 	elements 	required 	to
establish 	claims 	of 	civil 	conspiracy 	(Claim 	Seven), 	evidence
fabrication (Claim Three), failure to intervene (Claim Four), and
negligent hiring, training, and supervision (Claim Fifteen). 	Each
19 	Although 	the 	Court 	will 	discuss 	the 	speculative 	nature 	of 	Plaintiff’s
allegations 	in 	its 	claim-by-claim 	analysis, 	the 	Court 	notes 	at 	the 	outset
certain 	general 	principles 	that 	apply 	across 	Plaintiff’s 	claims: 	There 	is
nothing improper about a crime victim, whether related to police officers or
not, calling 911 about a trespassing neighbor and to also call her parents to
discuss what happened. 	A crime victim’s status as a relative of law enforcement
officers 	does 	not 	give 	rise 	to 	any 	inference 	of 	impropriety. 	Similarly, 	a
conversation about an offense with a family member who is a law enforcement
officer is not inherently improper. 	Furthermore, there is nothing inherently
improper about officers pursuing criminal charges that are supported by probable
cause, 	even 	low-level 	charges, 	in 	which 	the 	victim 	is 	a 	relative 	of 	a 	law
enforcement officer and where the law enforcement officer relative is aware of
the 	ongoing 	investigation 	and 	prosecution 	of 	the 	crime. 	Throughout 	her
opposition brief, Plaintiff invites the Court to put on conspiratorial glasses
to speculate as to how neutral facts about a relatively mundane trespass arrest
can, 	in 	fact, 	be 	evidence 	of 	a 	multi-precinct 	NYPD 	conspiracy 	to 	punish
Plaintiff for complaining about construction noise. 	Plaintiff argues that “[i]t
would 	not 	be 	difficult 	for 	a 	jury 	to 	find 	that 	the 	Defendants 	having 	an
additional 	arrest 	under 	their 	belt 	(especially 	the 	arrest 	of 	someone 	who
allegedly trespassed onto the daughter of an NYPD captain’s property), might
make 	them 	look 	like 	the 	hero 	at 	work 	and 	garner 	brownie 	points 	with 	their
supervisors.” 	(ECF No. 125 at 29) (emphasis added). 	Plaintiff’s use of the
word 	“might” 	reveals 	the 	purely 	speculative 	nature 	of 	these 	allegations.
Pursuant to Hicks and Kemp, the Court cannot entertain such speculation on a
motion for summary judgment.
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is analyzed in turn.
A. 	Civil Conspiracy (Claim Seven)
“To 	prove 	a 	§ 	1983 	conspiracy, 	a 	plaintiff 	must 	show:
(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.” 	Pangburn v. Culbertson,
200 	F.3d 	65, 	72 	(2d 	Cir. 	1999). 	“[U]nder 	the 	intracorporate
conspiracy 	doctrine, 	the 	officers, 	agents, 	and 	employees 	of 	a
single 	corporate 	entity,” 	including 	a 	municipality, 	“are 	legally
incapable 	of 	conspiring 	together.” 	Murphy 	v. 	City 	of 	Stamford,
634 	F. 	App'x 	804, 	805 	(2d 	Cir. 	2015) 	(summary 	order) 	(internal
quotations 	omitted). 	Applied 	to 	the 	facts 	of 	this 	case, 	members
of the NYPD cannot, under Section 1983, conspire together because
they 	are 	agents 	of 	the 	same 	entity. 	“[A]n 	exception 	to 	the
intracorporate 	conspiracy 	doctrine 	allows 	suits 	against
individuals within a single entity when they are pursuing personal
interests wholly separate and apart from the entity.” 	Ruggiero v.
Cnty. 	of 	Orange, 	No. 	20-CV-7693 	(AEK), 	2023 	WL 	7005074, 	at 	*14
(S.D.N.Y. 	Oct. 	24, 	2023) 	(citation 	modified). 	Thus, 	Plaintiff
must 	present 	non-speculative 	evidence 	to 	create 	an 	issue 	of 	fact
that either (i) Alysa Andrade agreed with one or more NYPD officers
“to 	act 	in 	concert 	to 	inflict 	an 	unconstitutional 	injury” 	on
Plaintiff, Pangburn, 200 F.3d at 72, or (ii) multiple NYPD officers
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agreed among themselves to unconstitutionally injure Plaintiff for
“personal 	interests 	wholly 	separate 	and 	apart 	from 	the 	[NYPD],”
Ruggiero, 2023 WL 7005074, at *14.
The 	only 	possibly 	unconstitutional 	police 	conduct 	in
this action was Ofc. Caldararo’s alleged cavity search. 	Plaintiff
has 	not 	identified 	any 	non-speculative 	evidence 	that 	Ofc.
Caldararo 	agreed 	with 	Alysa 	Andrade 	or 	other 	officers 	to 	conduct
an 	invasive 	cavity 	search 	of 	Plaintiff. 	Plaintiff’s 	arguments
otherwise are farfetched and sometimes nonsensical. 	For example,
Plaintiff 	claims 	that 	defendants 	Campanella, 	Stam, 	and 	Ng 	“took
overt acts to cover up Plaintiff’s unlawful cavity search.” 	(ECF
No. 125 at 46.) 	Without specifying any such overt acts, Plaintiff
instead 	points 	to, 	inter 	alia, 	certain 	officers’ 	career
advancement 	to 	deduce, 	out 	of 	whole 	cloth, 	the 	existence 	of 	a
cover-up:
Campanella 	admitted 	that 	he 	“could 	not 	wait” 	to 	get
transferred from the 122nd Precinct, and he in fact did
get transferred following Plaintiff’s arrest. (LCDT 10-
13 	(JDA 	6)). 	Ng 	was 	interviewed 	to 	become 	a 	detective
following 	Plaintiff’s 	arrest, 	and 	sought 	Campanella’s
assistance 	in 	attempts 	to 	secure 	the 	promotion. 	(LCDT
201 	(JDA 	6)). 	Stam 	testified 	that 	he 	has 	only 	been 	a
police 	officer 	three 	and 	a 	half 	years 	and 	this 	is 	the
first 	time 	he 	has 	ever 	been 	sued. 	(RSDT 	9-10 	(JDA 	4)).
Accordingly, 	a 	jury 	could 	reasonably 	find 	that 	the
Defendants 	conspired 	to 	cover-up 	Plaintiff’s 	unlawful
cavity 	search 	to 	avoid 	discipline 	and 	advance 	their
careers.
(Id.) 	In evaluating the viability of claims on summary judgment,
the Court cannot rely on such bald speculation. 	Accordingly, the
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Court 	GRANTS 	Defendants 	summary 	judgment 	on 	Claim 	Seven 	(federal
civil conspiracy claim).
B. 	Evidence Fabrication (Claim Three)
“To succeed on a fabricated-evidence claim, a plaintiff
must 	establish 	that 	an 	(1) 	investigating 	official 	(2) 	fabricated
information (3) that is likely to influence a jury's verdict, (4)
forwarded 	that 	information 	to 	prosecutors, 	and 	(5) 	the 	plaintiff
suffered a deprivation of life, liberty, or property as a result.”
Barnes 	v. 	City 	of 	New 	York, 	68 	F.4th 	123, 	128 	(2d 	Cir. 	2023)
(citation 	modified). 	A 	critical 	element 	of 	this 	claim 	is 	the
likelihood 	that 	any 	purportedly 	fabricated 	evidence 	would
influence 	a 	jury’s 	verdict. 	Plaintiff’s 	evidence 	fabrication
claim 	makes 	no 	serious 	attempt 	to 	establish 	this 	element.
Plaintiff 	does 	not 	allege 	evidence 	fabrication 	that 	could
plausibly 	influence 	a 	jury’s 	verdict 	as 	to 	Plaintiff’s 	criminal
trespass 	offenses. 	Rather 	than 	address 	the 	seemingly 	conclusive
evidence 	of 	Plaintiff’s 	guilt 	for 	the 	charged 	trespass 	offenses
(including 	Alysa 	Andrade’s 	allegations 	and 	Plaintiff’s 	own
admissions 	captured 	on 	video), 	Plaintiff’s 	opposition 	brief
advances a tangential argument that the purported cavity search at
the 	precinct 	would 	(somehow) 	persuade 	a 	jury 	that 	Plaintiff 	did
not trespass on Alysa Andrade’s property:
Had 	the 	DA 	known 	that 	this 	cavity 	search 	occurred, 	a
reasonable 	jury 	could 	find 	that 	the 	DA 	would 	not 	have
even 	prosecuted 	Plaintiff 	in 	the 	first 	place, 	and 	it
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surely would have influenced a jury’s decision. This is
so 	because 	all 	Defendants’ 	credibility 	would 	be
irreparably 	tainted 	if 	a 	jury 	became 	aware 	that 	a
suspicionless cavity search was conducted for such low-
level 	charges, 	which 	in 	turn 	weakens 	any 	case 	the
prosecution may have had against Plaintiff.
(ECF No. 125 at 30.) 	Plaintiff presents no explanation other than
her ipse dixit for why a cavity search would “irreparably taint[]”
“all 	Defendants’ 	credibility” 	such 	that 	a 	jury 	would 	ignore 	the
elements 	of 	Plaintiff’s 	trespass 	charges 	and 	instead 	render 	a
verdict 	based 	on 	the 	type 	of 	post-arrest 	search 	Plaintiff
purportedly 	received. 	Accordingly, 	the 	Court 	GRANTS 	Defendants
summary 	judgment 	on 	Claim 	Three 	(federal 	evidence 	fabrication
claim).
C. 	Failure to Intervene (Claim Four)
“[A]ll 	law 	enforcement 	officials 	have 	an 	affirmative
duty to intervene to protect the constitutional rights of citizens
from 	infringement 	by 	other 	law 	enforcement 	officers 	in 	their
presence.” 	Buari 	v. 	City 	of 	New 	York, 	530 	F. 	Supp. 	3d 	356, 	391–
92 (S.D.N.Y. 2021) (quoting Terebesi v. Torreso, 764 F.3d 217, 243
(2d 	Cir. 	2014)). 	“Liability 	attaches 	on 	the 	theory 	that 	the
officer, by failing to intervene, becomes a tacit collaborator in
the 	illegality.” 	Figueroa 	v. 	Mazza, 	825 	F.3d 	89, 	106 	(2d 	Cir.
2016) 	(internal 	quotations 	omitted). 	“A 	police 	officer 	can 	be
liable 	for 	failure 	to 	intercede 	when 	(1) 	the 	officer 	had 	a
realistic 	opportunity 	to 	intervene 	and 	prevent 	the 	harm; 	(2) 	a
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reasonable 	person 	in 	the 	officer's 	position 	would 	know 	that 	the
victim's 	constitutional 	rights 	were 	being 	violated; 	and 	(3) 	the
officer 	does 	not 	take 	reasonable 	steps 	to 	intervene.” 	Buari, 	at
392.
Plaintiff’s 	failure 	to 	intervene 	claim 	again 	relies 	on
speculation. 	Given 	that 	Officers 	Ng 	and 	Stam 	were 	males, 	they
were not present inside the bathroom where a female officer (Ofc.
Caldararo) was searching Plaintiff. 	Therefore, Plaintiff’s claim
that 	Officers 	Ng 	and 	Stam 	failed 	to 	intervene 	(to 	prevent 	the
purported cavity search) must be premised on Officers Ng and Stam
having 	advance 	knowledge 	of 	the 	specific 	type 	of 	search 	Ofc.
Caldararo 	would 	allegedly 	conduct 	in 	the 	bathroom. 	Plaintiff
offers 	no 	evidence 	in 	the 	record 	that 	Officers 	Ng 	and 	Stam 	– 	or
any other officer – had any advance knowledge of the type of search
Ofc. 	Caldararo 	would 	conduct. 	The 	only 	circumstantial 	evidence
that Plaintiff adduces is Ofc. Caldararo’s decision to remove her
bodyworn 	camera 	and 	place 	it 	on 	a 	table 	outside 	the 	bathroom.
(Caldararo 	BWC 	8:49 	PM.) 	Ofc. 	Caldararo 	did 	not 	turn 	off 	the
bodyworn camera, and the camera continued to record video before,
during, and after the search. 	(Id.) 	Ofc. Caldararo’s removal of
her bodyworn camera for the search in the bathroom was not, on its
own, enough to put Officers Ng and Stam (or any reasonable officers
in 	their 	position) 	on 	notice 	that 	Ofc. 	Caldararo 	was 	about 	to
(purportedly) insert her finger in Plaintiff’s rectum, as alleged.
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(Am. 	Complaint 	¶ 	45.) 	Further, 	given 	that 	the 	adjacent 	holding
cell was occupied by a male inmate and that Plaintiff had accused
the male inmate of “staring” at her, (Stam BWC 8:42:53 to 8:42:55
PM), the bathroom was a reasonable location for a quick search of
Plaintiff’s person.20 	In sum, Plaintiff has not presented evidence
that 	can 	establish 	that 	other 	officers 	had 	advance 	notice 	of 	any
planned 	unconstitutional 	conduct 	by 	Ofc. 	Caldararo. 	Therefore,
the 	Court 	GRANTS 	Defendants 	summary 	judgment 	on 	Plaintiff’s
failure to intervene claim (Claim Four).21
D. 	Negligent Hiring, Training, and Supervision (Claim
Fifteen)
“In order to prevail on a negligence claim, a plaintiff
must demonstrate (1) a duty owed by the defendant to the plaintiff,
(2) 	a 	breach 	thereof, 	and 	(3) 	injury 	proximately 	resulting
therefrom.” 	Pasternack v. Lab'y Corp. of Am. Holdings, 59 N.E.3d
485, 	490 	(2016). 	“In 	addition 	to 	the 	standard 	elements 	of
negligence, 	a 	plaintiff 	alleging 	negligent 	hiring, 	retention,
supervision, and direction must show: (1) that the tort-feasor and
the defendant were in an employee-employer relationship; (2) that
the employer knew or should have known of the employee's propensity
20 Sgt. Campanella testified that he directed Ofc. Caldararo to conduct a pat-
down search of Plaintiff in the bathroom in the cell area. 	(See Deposition of
Louis Campanella, ECF No. 130-6 at 64.)
21 Ofc. Caldararo cannot be held liable 	in a claim for failure to intervene
predicated on her search of Plaintiff because, “[o]bviously, a person who is
held 	liable 	under 	a 	theory 	of 	direct 	participation 	in 	the 	constitutional
violation cannot also be held liable for a failure to intervene.” 	Rizk v. City
of New York, 462 F. Supp. 3d 203, 226 (E.D.N.Y. 2020) (citation omitted).
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for 	the 	conduct 	which 	caused 	the 	injury 	prior 	to 	the 	injury's
occurrence; and (3) that the tort was committed on the employer's
premises or with the employer's chattels.” 	PC-41 Doe v. Poly Prep
Country 	Day 	Sch., 	590 	F. 	Supp. 	3d 	551, 	566 	(E.D.N.Y. 	2021)
(citation modified).
“Under 	New 	York 	law, 	a 	claim 	for 	negligent 	hiring 	or
retention 	can 	only 	proceed 	against 	an 	employer 	for 	an 	employee
acting outside the scope of her employment.” Peterec v. Hilliard,
No. 	12-CV-3944 	(CS), 	2013 	WL 	5178328, 	at 	*13 	(S.D.N.Y. 	Sept. 	16,
2013) 	(internal 	quotations 	omitted). 	“If 	an 	employee 	is 	acting
within 	the 	scope 	of 	her 	employment, 	the 	employer 	could 	only 	be
liable, 	if 	at 	all, 	vicariously 	under 	the 	theory 	of 	respondeat
superior, 	not 	for 	negligent 	supervision 	or 	retention.” 	Id.
(internal 	quotations 	omitted). 	“Under 	New 	York 	law, 	an 	employee
acts within the scope of his employment when both (1) he is doing
something 	in 	furtherance 	of 	the 	duties 	he 	owes 	to 	his 	employer,
and 	(2) 	the 	employer 	is, 	or 	could 	be, 	exercising 	some 	control,
directly or indirectly, over the employee's activities.” 	Hamm v.
United States, 483 F.3d 135, 138 (2d Cir. 2007).
Plaintiff’s negligent hiring and training theory appears
to 	be 	that 	the 	City 	of 	New 	York 	– 	specifically 	the 	NYPD 	– 	was
negligent 	in 	hiring, 	training, 	and 	supervising 	the 	defendant
officers. 	(ECF 	No. 	125 	at 	47-51.) 	Consistent 	with 	the 	Court’s
findings earlier in this Memorandum and Order, the only potentially
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unlawful conduct in this case is Ofc. Caldararo’s purported cavity
search 	of 	Plaintiff. 	Therefore, 	the 	Court 	will 	restrict 	its
analysis 	of 	negligent 	hiring, 	training, 	and 	supervision 	to 	the
purported cavity search.
Plaintiff’s claim fails for two reasons: First, there is
no 	non-speculative 	evidence 	presented 	that 	Ofc. 	Caldararo’s
bathroom search of Plaintiff at the precinct was outside the scope
of 	her 	employment 	or 	conducted 	for 	any 	reason 	other 	than 	being
directed 	by 	colleagues 	to 	do 	so. 	Ofc. 	Caldararo, 	who 	was 	not
involved 	with 	the 	investigation 	of 	the 	offense 	or 	Plaintiff’s
arrest, was summoned by her male colleagues to conduct a search of
Plaintiff, 	a 	female 	arrestee. 	Even 	if 	Plaintiff’s 	allegations
regarding 	Ofc. 	Caldararo’s 	search 	in 	the 	bathroom 	are 	true 	(i.e.
Ofc. Caldararo conducted an invasive cavity search of Plaintiff),
the 	search 	– 	which 	occurred 	at 	the 	precinct 	at 	the 	direction 	of
her colleagues – was within the scope of her employment. 	Moreover,
Plaintiff alleges that “Sgt. Campanella directed Officer Caldararo
[his 	subordinate] 	to 	conduct 	a 	cavity 	search 	of 	Plaintiff
specifically 	inside 	of 	the 	bathroom 	in 	the 	cell 	area.” 	(56.1
Counterstatement 	¶ 	70) 	(emphasis 	added). 	Under 	Hamm, 	“the
employer” 	(NYPD, 	through 	Sgt. 	Campanella) 	was 	or 	could 	have 	been
“exercising 	some 	control, 	directly 	or 	indirectly, 	over 	[Ofc.
Caldararo]'s activities” when directing her to search Plaintiff in
the 	bathroom. 	483 	F.3d 	at 	138. 	Thus 	Ofc. 	Caldararo 	was 	acting
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within, not outside, the scope of her employment.
Second, 	there 	is 	insufficient 	similarity 	between 	an
alleged unconstitutional cavity search and the types of misconduct
Plaintiff 	identifies 	in 	Ofc. 	Caldararo’s 	history 	to 	place 	her
employer, 	the 	NYPD, 	on 	notice 	that 	Ofc. 	Caldararo 	had 	a
“propensity” 	for 	unconstitutional 	searches. 	PC-41 	Doe, 	590 	F.
Supp. 	3d 	at 	566. 	Plaintiff 	points 	to 	various 	unrelated 	alleged
misconduct: “failing to activate her BWC during a mandatory event,”
(ECF No. 125 at 48), “threatening to use physical force against an
emotionally 	disturbed 	person,” 	(id. 	at 	49), 	“incomplete/improper
memobook entries,” (id.), and “threatening to issue a summons ...
without 	justification,” 	(id.). 	None 	of 	these 	allegations 	relate
to searches, much less cavity searches of a person. 	Accordingly,
defendant City of New York did not have notice of Ofc. Caldararo’s
alleged 	propensity 	for 	unconstitutional 	searches. 	The 	Court
GRANTS summary judgment in favor of defendant City of New York on
Plaintiff’s 	claim 	of 	negligent 	hiring, 	training, 	and 	supervision
(Claim Fifteen).
IV. 	Genuine Issue of Material Fact as to Whether Ofc. Caldararo
Inserted Her Finger Into Plaintiff’s Rectum
There is a genuine issue of material fact as to whether
Ofc. Caldararo inserted her finger into Plaintiff’s rectum during
the 42-second search of Plaintiff in the precinct bathroom between
approximately 8:49:04 and 8:49:46 PM. 	(See Caldararo BWC 8:49:04
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to 8:49:46 PM.) 	Plaintiff claims that Ofc. Caldararo did so. 	(See
Deposition 	of 	Deborah 	Intorcia, 	ECF 	No. 	130-11 	at 	21.) 	Ofc.
Caldararo 	denies 	doing 	so. 	(See 	ECF 	No. 	41, 	Answer, 	¶ 	45.)
Notably, 	Defendants 	have 	not 	moved 	for 	summary 	judgment 	on
Plaintiff’s unconstitutional search claim against Ofc. Caldararo.
(ECF No. 121 at 12.)
Plaintiff 	asserts 	four 	claims 	premised 	on 	Ofc.
Caldararo’s conduct during the search of Plaintiff in the precinct
bathroom: (i) federal unconstitutional search claim (Claim Eleven)
against all defendants; (ii) federal excessive force claim (Claim
Twelve) 	against 	all 	defendants; 	(iii) 	state 	assault 	and 	battery
claim (Claim Thirteen) against Ofc. Caldararo and the City of New
York; 	and 	(iv) 	state 	negligent 	infliction 	of 	emotional 	distress
(NIED) 	claim 	(Claim 	Fourteen) 	against 	all 	defendants. 	Although
some 	of 	the 	claims 	asserted 	appear 	inconsistent, 	Federal 	Rule 	of
Civil Procedure 8(d)(3) provides that “[a] party may state as many
separate claims or defenses as it has, regardless of consistency.”
(emphasis 	added). 	The 	Second 	Circuit 	has 	emphasized 	that 	“[t]he
flexibility afforded by Rule 8[] is especially appropriate in civil
rights cases, in which complex inquiries into the parties' intent
may 	sometimes 	justify 	raising 	multiple, 	inconsistent 	claims.”
Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d Cir. 1994).22
22 At the time Henry was published, the rule regarding inconsistent claims was
located at Rule 8(e)(2), which “provide[d]: A party may set forth two or more
statements of a claim or defense alternately or hypothetically, either in one
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A. 	Plaintiff’s Federal Unconstitutional Search Claim (Claim
Eleven), 	Federal 	Excessive 	Force 	Claim 	(Claim 	Twelve),
State 	Assault 	and 	Battery 	Claim 	(Claim 	Thirteen), 	and
State Negligent Infliction Of Emotional Distress (NIED)
Claim (Claim Fourteen) Against Ofc. Caldararo Require a
Factfinder to Determine Whether Ofc. Caldararo Inserted
Her Finger Into Plaintiff’s Rectum
The 	common 	issue 	of 	material 	fact 	across 	all 	four
aforementioned 	claims 	against 	Ofc. 	Caldararo 	– 	that 	is,
Plaintiff’s 	(i) 	federal 	unconstitutional 	search 	claim 	(Claim
Eleven); (ii) federal excessive force claim (Claim Twelve); (iii)
state 	assault 	and 	battery 	claim 	(Claim 	Thirteen); 	and 	(iv) 	state
negligent 	infliction 	of 	emotional 	distress 	(NIED) 	claim 	(Claim
Fourteen) 	– 	is 	whether 	Ofc. 	Caldararo 	inserted 	her 	finger 	into
Plaintiff’s rectum as part of the search in the precinct bathroom.
This 	genuine 	issue 	of 	material 	fact 	precludes 	the 	Court 	from
granting Ofc. Caldararo summary judgment as to these four claims.
B. 	The 	City 	of 	New 	York 	is 	a 	Proper 	Defendant 	for
Plaintiff’s 	State 	Assault 	and 	Battery 	Claim 	(Claim
Thirteen) 	and 	State 	Negligent 	Infliction 	Of 	Emotional
Distress 	(NIED) 	Claim 	(Claim 	Fourteen) 	Under 	a
Respondeat Superior Theory
“Under 	the 	common-law 	doctrine 	of 	respondeat 	superior,
an employer — including the State — may be held vicariously liable
for 	torts, 	including 	intentional 	torts, 	committed 	by 	employees
count or defense or in separate counts or defenses. When two or more statements
are 	made 	in 	the 	alternative 	and 	one 	of 	them 	if 	made 	independently 	would 	be
sufficient, the pleading is not made insufficient by the insufficiency of one
or more of the alternative statements. A party may also state as many separate
claims or defenses as the party has regardless of consistency and whether based
on legal, equitable, or maritime grounds. All statements shall be made subject
to the obligations set forth in Rule 11.” 	Henry, 42 F.3d at 95 n.2.
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acting 	within 	the 	scope 	of 	their 	employment.” 	Rivera 	v. 	State,
142 	N.E.3d 	641, 	645 	(2019) 	(citations 	omitted). 	“[T]he 	employer
may be liable when the employee acts negligently or intentionally,
so 	long 	as 	the 	tortious 	conduct 	is 	generally 	foreseeable 	and 	a
natural 	incident 	of 	the 	employment.” 	Id. 	(citation 	omitted)
(emphasis 	added). 	“Liability 	attaches 	for 	the 	tortious 	acts 	of
employees only if those acts were committed in furtherance of the
employer's 	business 	and 	within 	the 	scope 	of 	employment.” 	Id.
(citation 	modified). 	As 	previously 	discussed 	in 	Section 	III.D,
the Court finds that Ofc. Caldararo was acting within the scope of
her employment when searching Plaintiff. 	Accordingly, the City of
New 	York 	is 	a 	proper 	defendant 	for 	Plaintiff’s 	state 	assault 	and
battery 	claim 	(Claim 	Thirteen) 	and 	state 	negligent 	infliction 	of
emotional 	distress 	(NIED) 	claim 	(Claim 	Fourteen) 	under 	a
respondeat superior theory.23
The City of New York is not a proper defendant, however,
for 	Plaintiff’s 	federal 	unconstitutional 	search 	claim 	(Claim
23 Defendants cite to Caravalho v. City of New York, a case regarding the use
of force applied to arrest “Occupy Wall Street” protesters in a public park,
for the proposition that “a claim for NIED does not lie where the claim falls
within the ambit of other traditional tort claims.” 	(ECF No. 121 at 32 (citing
Caravalho 	v. 	City 	of 	New 	York, 	No. 	13-cv-4174 	(PKC)(MHD), 	2016 	WL 	1274575
(S.D.N.Y. Mar. 31, 2016)). 	Given the specific facts of Caravalho (accusations
of officers arresting protesters in a physically rough manner or placing their
handcuffs on too tight), the Court found “the only conduct at issue is [the
officer]'s allegedly unreasonable use of force.” Caravalho, 2016 WL 1274575 at
*11-12, *23. 	The analytical distinction is clear. 	Intrusion of an officer’s
finger into arrestee’s rectum is a far more severe invasion of privacy and far
more 	susceptible 	to 	causing 	emotional 	distress 	than, 	for 	example, 	handcuffs
being too tight.
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Eleven) 	and 	federal 	excessive 	force 	claim 	(Claim 	Twelve). 	See
Brown, 520 U.S. at 403 (“[A] plaintiff seeking to impose liability
on a municipality under § 1983” must “identify a municipal ‘policy’
or ‘custom’ that caused the plaintiff's injury.”).
Therefore, 	the 	Court 	DENIES 	defendant 	City 	of 	New 	York
summary judgment as to Plaintiff’s state assault and battery claim
(Claim 	Thirteen) 	and 	state 	negligent 	infliction 	of 	emotional
distress (NIED) claim (Claim Fourteen). 	The Court GRANTS defendant
City 	of 	New 	York 	summary 	judgment 	as 	to 	Plaintiff’s 	federal
unconstitutional search claim (Claim Eleven) and federal excessive
force claim (Claim Twelve).
C. 	Plaintiff’s Federal Unconstitutional Search Claim (Claim
Eleven), 	Federal 	Excessive 	Force 	Claim 	(Claim 	Twelve),
and 	State 	Negligent 	Infliction 	of 	Emotional 	Distress
(NIED) 	Claim 	(Claim 	Fourteen) 	Against 	the 	Remaining
Officer 	Defendants 	Are 	Predicated 	on 	Impermissible
Speculation
As 	discussed 	at 	length 	earlier 	in 	this 	Memorandum 	and
Order, 	Plaintiff’s 	federal 	unconstitutional 	search 	claim 	(Claim
Eleven), 	federal 	excessive 	force 	claim 	(Claim 	Twelve), 	and 	state
negligent 	infliction 	of 	emotional 	distress 	(NIED) 	claim 	(Claim
Fourteen) 	against 	the 	remaining 	individual 	officer 	defendants
(officers other than Ofc. Caldararo) are predicated on, inter alia,
speculation that other officers had advance notice of the type of
search 	Ofc. 	Caldararo 	allegedly 	conducted. 	Plaintiff 	failed 	to
point 	to 	any 	non-speculative 	evidence 	that 	could 	establish 	that
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Ofc. Caldararo’s colleagues knew in advance that she would conduct
an unlawful type of search. 	As previously discussed, the Court is
precluded 	from 	entertaining 	Plaintiff’s 	speculative 	arguments.
See 	Hicks, 	593 	F.3d 	at 	166 	(“A 	party 	may 	not 	rely 	on 	mere
speculation 	or 	conjecture 	as 	to 	the 	true 	nature 	of 	the 	facts 	to
overcome a motion for summary judgment.”). 	Accordingly, the Court
GRANTS Sgt. Acerra, Sgt. Campanella, Sgt. Falzarano, Ofc. Ng, and
Ofc. Stam summary judgment on Claims Eleven, Twelve, and Fourteen.
CONCLUSION
For 	the 	reasons 	explained 	at 	length 	in 	this 	Memorandum
and Order, Plaintiff’s surviving claims for trial are:
• 	Claim 	Eleven 	(federal 	unconstitutional 	search 	claim
against defendant Caldararo)
• 	Claim 	Twelve 	(federal 	excessive 	force 	claim 	against
defendant Caldararo)
• 	Claim 	Thirteen 	(state 	assault 	and 	battery 	claims
against defendants Caldararo and City of New York)
• 	Claim Fourteen (state negligent infliction of emotional
distress claim against defendants Caldararo and City of
New York)
Defendants are GRANTED summary judgment on all other claims.24
Defendants’ 	motion 	to 	bifurcate 	Claim 	Fifteen 	(state
claim against the City of New York for negligent hiring, training,
and 	supervision), 	(see 	ECF 	No. 	121 	at 	37-41), 	is 	DENIED 	AS 	MOOT
24 Any exhibits filed under seal that are specifically cited in this Memorandum
and Order shall be unsealed. 	See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 126 (2d Cir. 2006) (holding that “documents submitted to a court in support
of or in opposition to a motion for summary judgment are judicial documents to
which a presumption of immediate public access attaches under both the common
law and the First Amendment”).
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because the Court grants summary judgment to the City of New York
on Claim Fifteen.
The 	parties 	are 	respectfully 	directed 	to 	confer 	and
comply 	with 	the 	Court’s 	Pretrial 	Order 	dated 	August 	25, 	2025, 	as
modified on November 26, 2025. 	The parties are also encouraged to
revisit settlement.
So ordered.
Dated: 	December 8, 2025
Brooklyn, New York 	_______________________________
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
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