Funaro v. McKenna, et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
DAVID J. FUNARO, JR.
Plaintiff,
v. 	1:25-cv-00706 (AMN/PJE)
CITY OF GLENS FALLS; GLENS FALLS
POLICE DEPARTMENT; HUNTER McKENNA;
ZACHARY SWARTZ,
Defendants.
__________________________________________
APPEARANCES:
FINN LAW OFFICES
12 Sheridan Avenue
Albany, New York 12207
Attorneys for Plaintiff
MURPHY BURNS GROUDINE LLP
407 Albany Shaker Road
Loudonville, New York 12211
Attorneys for Defendants
OF COUNSEL:
RYAN M. FINN, ESQ.
STEPHEN M. GROUDINE, ESQ.
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On May 16, 2025, Plaintiff David J. Funaro Jr. filed a Summons with Notice in New York
State Supreme Court, Warren County, alleging claims pursuant to 42 U.S.C. § 1983 (“Section
1983”) and New York state law, against the City of Glens Falls (the “City”), the Glens Falls Police
Department (“Police Department”), and Glen Falls Police Department Officers Hunter McKenna
and Zachary Swartz (together, “Individual Defendants”) (collectively with the City and Police
Department, “Defendants”). Dkt No. 1-1. Plaintiff’s claims arise out of incidents relating to his
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arrest by the Individual Defendants on June 15, 2024. Id. at 3. 1 Plaintiff previously filed a Notice
of Claim in Warren County (“Notice of Claim”) indicating his intention to file state law claims
against Defendants on September 13, 2024. Dkt. No. 17-2.
Defendants removed this action to the Northern District of Northern New York on June 4,
2025, along with a demand for a complaint. Dkt. No. 1. Plaintiff filed a complaint on June 24,
2025, see Dkt. No. 6, and Defendants filed a motion to dismiss on July 14, 2025. Dkt. No. 14. On
August 4, 2025, Plaintiff amended his complaint as of right. Dkt. No. 16 (“Amended Complaint”);
see Fed. R. Civ. P. 15(a)(1)(B).
Presently before the Court is Defendants’ partial motion to dismiss the Amended Complaint
for failure to state a claim, Dkt. No. 17 (the “Motion”), Plaintiff’s opposition, Dkt. No. 21, and
Defendants’ reply in further support. Dkt. No. 23. For the reasons set forth below, the Court grants
the Motion in part and denies it in part.
II. 	BACKGROUND
Unless otherwise noted, the following facts are drawn from the Amended Complaint, its
attachments, or materials it incorporates by reference, and are assumed to be true for purposes of
ruling on the motion, see Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v.
N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam), or are otherwise matters of
public record. Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020).
A. The Parties
Plaintiff is an individual residing in the state of New York. Dkt. No. 16 at ¶ 10. The City
is a municipal corporation organized under New York law, see id. at ¶ 11, and the Police
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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Department is a department of the City. Id. at ¶ 12. The Individual Defendants are both employed
by the City as officers in the Police Department. Id. at ¶ 13.
B. The Amended Complaint
The Court presumes the Parties’ familiarity with the facts as alleged in the Amended
Complaint. 	See generally id. 	Plaintiff brings claims against all Defendants for false arrest,
fabrication of evidence, unlawful entry, and excessive force pursuant to Section 1983, as well as
state law claims for assault, battery, and false arrest. Id. at ¶¶ 59-80.
Plaintiff alleges that on March 18, 2024, Defendant Swartz conducted a routine traffic stop
of Plaintiff’s vehicle. Id. at ¶ 16. During the stop, Plaintiff alleges that he requested to speak to a
supervisor after he and Defendant Swartz engaged in a verbal dispute regarding whether his vehicle
registration was suspended. 	Id. at ¶¶ 17-18. 	Plaintiff further alleges that Defendant Swartz
“became noticeably hostile and angry,” told Plaintiff that he was going to physically remove him
from the vehicle, and then “lunged” through the driver’s side window. Id. at ¶¶ 19-20, 22. Plaintiff
then fled the scene in his vehicle, alleging that he feared for his safety. Id. at ¶ 23.
Defendants submit a copy of a warrant to arrest Plaintiff issued on March 20, 2024, which
sets forth charges for fleeing an officer in a motor vehicle, resisting arrest, and obstruction of
governmental administration. Dkt. No. 17-3. Defendants also submit a Certificate of Disposition
that enumerates charged misdemeanors and traffic violations relating to the traffic stop on March
18, 2024. Dkt. No. 17-4.
On June 15, 2024, the Individual Defendants went to Plaintiff’s home to arrest him on the
March 20, 2024 warrant. Upon arriving at Plaintiff’s home, Plaintiff was in his backyard. Dkt.
No. 16 at ¶ 25. Plaintiff alleges that Defendant Swartz called out, “Hey David, what’s up man, I
got your [license] plates.” Id. Plaintiff ignored Defendant Swartz and entered his home, closing
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the exterior door behind him. Id. at ¶ 26. According to Plaintiff, Defendant Swartz proceeded to
follow Plaintiff into his home, entering through the exterior door, and as he approached the interior
door, he yelled at Plaintiff to “get over here.” Id. at ¶¶ 27-28. Plaintiff then pushed against the
door to prevent Defendant Swartz from entering, but Defendant McKenna subsequently joined
Defendant Swartz, resulting in the Individual Defendants successfully pushing through the interior
door. 	Id. at ¶¶ 29-30. 	Thereafter, Plaintiff ran from his kitchen to his living room, causing
Defendant Swartz to tackle Plaintiff to the ground and arrest him. Id. at ¶¶ 32, 34.
Plaintiff also alleges that he did not resist arrest and complied with the Individual
Defendants’ commands. Id. at ¶ 35. Yet, according to Plaintiff, during his arrest, Defendant Swartz
repeatedly punched Plaintiff in the face and slammed his knee into Plaintiff’s testicles, while
Defendant McKenna kneed Plaintiff in the back and testicles. See id. at ¶ 37. This purportedly
caused Plaintiff to sustain serious physical injuries and emotional trauma. Id. at ¶ 38.
Following his arrest, Plaintiff was charged with felony assault upon a police officer—a
class D felony—as well as resisting arrest and obstruction of governmental administration. Id. at
¶ 39; see Dkt. No. 17-5. According to Plaintiff, his felony assault charge was based entirely upon
false statements made by Defendant Swartz and Lieutenant Ryan S. Pedone, a non-party. Dkt. No.
16 at ¶¶ 40, 42-43.
Ultimately, Plaintiff pled guilty to and was convicted of one misdemeanor count of fleeing
an officer in a motor vehicle in the third degree in satisfaction of the charges relating to the traffic
stop on March 18, 2024, and one misdemeanor count of obstructing governmental administration
in the second degree in satisfaction of the charges relating to his arrest on June 15, 2024. Id. at ¶
56; Dkt. No. 17-1 at ¶ 9; see also Dkt. No. 17-6.
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III. 	STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007).
In considering legal sufficiency, a court must accept as true all well-pled facts in the complaint and
draw all reasonable inferences in the pleader’s favor. 	See ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). 	This presumption, however, does not extend to legal
conclusions. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court’s review of a
motion to dismiss is generally limited to the facts presented in the pleadings, the court may
consider documents that are “integral” to the pleadings even if they are neither physically attached
to, nor incorporated by reference into, the pleadings. See Mangiafico v. Blumenthal, 471 F.3d 391,
398 (2d Cir. 2006) (quoting Chambers, 282 F.3d at 152-53).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to
relief.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation
omitted). Under this standard, a pleading’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” id. at 555, and present claims that are “plausible on [their]
face.” Id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff
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has “not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint
must be dismissed.” Id. at 570.
IV. 	DISCUSSION
Defendants move to dismiss all claims except for Plaintiff’s excessive force claim against
the Individual Defendants. See Dkt. No. 17.
A. Materials Considered
As an initial matter, Defendants attach several extrinsic materials to their Motion:
Plaintiff’s Notice of Claim, the warrant for Plaintiff’s arrest, a certificate of disposition showing
charges related to the traffic stop of March 18, 2024, a certificate of disposition showing charges
related to the arrest on June 15, 2024, and a certificate of disposition showing the charges to which
Plaintiff pled guilty. See Dkt. Nos. 17-2-17-6.
Defendants argue that the Court should consider the arrest warrant because the Amended
Complaint incorporates it by reference. Dkt. No. 17-8 at 6-7. Plaintiff does not respond to this
argument. The Court agrees with Defendants that the Court can consider the arrest warrant because
it is both incorporated by reference, see Dkt. No. 16 at ¶¶ 27, 54, 80, and integral to the Amended
Complaint. 	See Mortimer v. City of New York, No. 15-cv-7186, 2018 WL 1605982, at *10
(S.D.N.Y. Mar. 29, 2018) (considering the arrest warrant in case alleging false arrest because the
third amended complaint “relies heavily on the terms and effect of the arrest warrant,” concluding
that it is integral to plaintiffs’ claims); see also Schafer v. Direct Energy Servs., LLC, 845 F. App’x
81, 82 (2d Cir. 2021) (“Where an extrinsic document is not incorporated by reference, the district
court may nevertheless consider it if the complaint relies heavily upon its terms and effect, which
renders the document integral to the complaint.” (internal quotation marks and citation omitted)).
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Defendants also argue that the Court should take judicial notice of the three certificates of
disposition. 	Dkt. No. 17-8 at 7. 	Plaintiff seeks to have the Court consider the contents of the
Notice of Claim and one of the certificates of disposition, but does not contest that the Court may
take notice of the other certificates of disposition. See Dkt. No. 21 at 6-7. The Court may take
judicial notice of the Notice of Claim and the certificates of disposition because they are matters
of public record. 	See, e.g., Clark v. New York City Hous. Auth., 514 F. Supp. 3d 607, 611 n.3
(S.D.N.Y. 2021) (taking judicial notice of notice of claim documents for purpose of assessing
viability of claim under N.Y. Gen. Mun. L. § 50-e); Smith v. City of New York, No. 12-cv-4572,
2013 WL 6158485, at *1 (S.D.N.Y. Nov. 25, 2013) (taking judicial notice of plaintiff’s certificate
of disposition).
Accordingly, the Court will consider the arrest warrant, the Notice of Claim, and the three
certificates of disposition in adjudicating the Motion.
B. The Police Department
Next, Plaintiff cannot sue the Police Department separate and apart from the City because
it is an administrative arm of a municipality and therefore not a legal entity. “Under New York
law, departments which are merely administrative arms of a municipality do not have a legal
identity separate and apart from the municipality and cannot sue or be sued.” 	Schachtler Stone
Prods., LLC v. Town of Marshall, No. 21-cv-1100 (AMN/MJK), 2024 WL 4025862, at *10
(N.D.N.Y. Sept. 3, 2024) (quoting Town and Country Adult Living, Inc. v. Village/Town of Mount
Kisco, No. 17-cv-8586, 2019 WL 1368560, at *13 (S.D.N.Y. Mar. 26, 2019)); see also Gray v.
Coeymans Police Dep’t, No. 16-cv-1239, 2020 WL 871179, at *8 (N.D.N.Y. Feb. 21, 2020)
(dismissing claim against town-defendant’s police department because it cannot be sued as an
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entity separate from the town). Both Parties agree. See Dkt. No. 17 at 6; Dkt. No. 21 at 3. Thus,
the Court dismisses the Police Department from this action.
C. The City
Plaintiff’s Section 1983 claims against the City must also be dismissed because Plaintiff
has not plausibly pled a Monell claim. Municipalities are not liable under Section 1983 “unless
action pursuant to official municipal policy of some nature causes a constitutional tort.” Glassman
v. City of New York, 557 F. App’x 97, 98 (2d Cir. 2014) (quoting Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978)). “To bring a claim for municipal liability under Monell, [a plaintiff]
must plausibly allege the existence of an official policy or custom that caused him to be denied a
constitutional right.” 	Thomas v. Town of Lloyd, 711 F. Supp. 3d 122, 138 (N.D.N.Y. 2024)
(citations omitted). “The existence of a municipal policy or custom may be plead in any of four
ways: ‘(1) a policy formally adopted and endorsed by the municipality; (2) actions taken by
policymaking officials that caused the particular deprivation alleged; (3) practices by subordinate
officials that are not expressly authorized but are so widespread and consistent that policymakers
must have been aware of them; or (4) a failure by policymakers to train or supervise that amounts
to deliberate indifference to the rights of those who come into contact with the inadequately trained
or supervised municipal employees.’” 	Mendez v. Cayuga Cnty., No. 21-cv-1090, 2024 WL
1251541, at *3 (N.D.N.Y. Mar. 25, 2024) (quoting Crawley v. City of Syracuse, 496 F. Supp. 3d
718, 729 (N.D.N.Y. 2020)). “Boilerplate statements that county employees were acting in accord
with a municipal policy, with no facts to support those statements, are not sufficient to support a
Monell claim.” 	Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 76 (N.D.N.Y. 2023) (internal
quotation marks and citation omitted). 	“Once a plaintiff has demonstrated the existence of a
municipal policy, a plaintiff must then establish a causal connection, or an ‘affirmative link,’
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between the policy and the deprivation of his constitutional rights.” Mendez, 2024 WL 1251541,
at *3 (quoting Deferio v. City of Syracuse, 770 F. App’x 587, 589 (2d Cir. 2019)).
Here, Plaintiff’s allegations are conclusory and fail to sufficiently plead a Monell claim
against the City. Specifically, Plaintiff alleges that Lieutenant Pedone, who is not a party to this
action, fabricated evidence in his capacity as a supervisor by falsely stating in a “Use of Force”
report that body camera footage showed Plaintiff punching Defendant Swartz. Dkt. No. 16 at ¶¶
43-44. 	Plaintiff further alleges that Lieutenant Pedone’s falsehood, together with Defendant
Swartz’s falsehoods, establish the existence of “an informal, unwritten rule” permitting Glens Falls
police officers to fabricate evidence to paint criminal defendants as aggressors in order to justify
the use of force, see id. at ¶ 44, and that this informal rule is “well settled” to the point of being
“standard operating procedure.” Id. at ¶ 45. However, a single instance of alleged misconduct is
insufficient to infer a policy or custom under Monell.2 See Taranto v. Putnam Cnty., No. 21-cv-
2455, 2023 WL 6318280, at *16 (S.D.N.Y. Sept. 28, 2023) (noting that “a custom or policy cannot
be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the
municipality” (citations omitted)); see also Jones v. Town of East Haven, 691 F.3d, 72, 85 (2d Cir.
2012) (holding that pleading only two or three instances of a constitutional violation falls “far short
of showing a policy, custom, or usage”). 	Accordingly, Plaintiff’s conclusory allegations are
insufficient to support a Monell claim against the City.
Similarly, Plaintiff fails to establish a failure to train as a policy for purposes of Monell
liability. While Plaintiff alleges that the City is responsible for the “hiring, training, supervision,
discipline, management, policies and other aspects of the functioning of the Police Department[,]”
2 At no point does Plaintiff allege that Defendant Swartz or Lieutenant Pedone were official
policymakers for the City.
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see Dkt. No. 16 at ¶ 14, Plaintiff fails to allege any specific facts that plausibly suggest that the
City’s policymakers failed to train or supervise their employees. 	Plaintiff alleges that the City
“ratified the conduct” of Defendants Swartz and McKenna “by reviewing the body cam footage
(which shows that plaintiff was not an aggressor, did not throw a punch, attempt a headlock, or
bite the officers) yet upholding the use of force” by Defendants Swartz and McKenna as
appropriate. Id. at ¶ 46. However, even if the Court assumes that Plaintiff’s allegations regarding
the Individual Defendants’ use of force is true, “where the only evidence of a policy . . . is a failure
to 	discipline 	the 	defendant 	officers, 	a 	policy 	condoning 	unconstitutional 	action 	by 	the
[municipality] cannot be inferred.” Harris v. City of New York, No. 22-cv-1763, 2026 WL 308963,
at *5 (S.D.N.Y. Feb. 5, 2026) (citations omitted). Thus, these allegations are also insufficient to
support a Monell claim against the City.
For these reasons, the Court dismisses Plaintiff’s Section 1983 claims against the City.
D. False Arrest
“A [Section] 1983 false arrest claim is grounded in the Fourth Amendment right of an
individual to be free from unreasonable seizures.” LaFever v. Clarke, 525 F. Supp. 3d 305, 329
(N.D.N.Y. 2021) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). The Court considers
Plaintiff’s false arrest claims under Section 1983 and New York state law together, as they are
substantially the same. See Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017)
(“Claims for false arrest and false imprisonment are synonymous under New York law, and both
are substantially the same as a [Section] 1983 claim for false arrest.” (internal quotation marks
omitted)).
To state a claim for false arrest under Section 1983, a plaintiff must show that “(1) a
defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3)
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the plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged.” Adams v. City of New York, No. 21-cv-3956, 2023 WL 2734611, at *4 (E.D.N.Y. Mar.
31, 2023) (internal quotation marks and citations omitted). Regarding the fourth element, in the
context of an arrest, “an act of confinement is privileged if it stems from a lawful arrest supported
by probable cause.” 	Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (citation
omitted). 	“A police officer has probable cause to arrest when he 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 or is committing a
crime.’” Hulett, 253 F. Supp. 3d at 494 (quoting Jackson v. City of New York, 939 F. Supp. 2d 235,
249 (E.D.N.Y. 2013) (quoting Weyant, 101 F.3d at 852)). If an officer has probable cause to arrest,
that constitutes “a complete defense to an action for false arrest, whether that action is brought
under state law or under [Section] 1983.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.
2007) (quoting Weyant, 101 F.3d at 852) (internal quotation marks omitted).
As relevant here, a subsequent conviction generally bars a false arrest claim under Section
1983 because false arrest claims by their very nature challenge the validity of the arrest. See Moore
v. City of Syracuse, 711 F. Supp. 3d 143, 146-47 (N.D.N.Y. 2024) (citations omitted); see also
Cameron v. Fogarty, 806 F.2d 380, 388 (2d Cir. 1986) (“Where the civil rights plaintiff has been
convicted of the offense for which he was arrested, we have in effect accepted the fact of that
conviction as conclusive evidence of the good faith and reasonableness of the officer’s belief in
the lawfulness of the arrest.”). 	Here, Plaintiff alleges that his claim for false arrest is “limited
solely to a claim that the plaintiff was arrested, detained, and jailed on the felony assault charge.”
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Dkt. No. 16 at ¶ 72.3 	While Plaintiff pled guilty to one count of obstruction of governmental
administration in satisfaction of all the criminal charges for which he was arrested on June 15,
2024, including the felony assault charge, see id. at ¶ 56, “a false arrest claim is barred even where
the civil rights plaintiff pl[ed] guilty to a lesser charge pursuant to a plea agreement that dismissed
the charges for which plaintiff was arrested.” Burris v. Nassau Cnty. Dist. Att’y, No. 14-cv-5540,
2017 WL 9485714, at *6 (E.D.N.Y. Jan. 12, 2017) (internal quotation marks and citations omitted),
report and recommendation adopted, 2017 WL 1187709 (E.D.N.Y. Mar. 29, 2017); see also
Parkinson v. Town of Niskayuna, No. 22-cv-70, 2023 WL 8574309, at *4 (N.D.N.Y. Dec. 11, 2023)
(concluding that “[b]y pleading guilty to the crimes charged from the purportedly false arrest, or
to any lesser-included offenses to resolve all of the crimes charged, a plaintiff concedes as a matter
of law that there was probable cause for all charges covered by the plea agreement”) (citation
omitted).
Thus, Plaintiff’s subsequent conviction bars his Fourth Amendment claim for false arrest
as a matter of law. For these reasons, the Court dismisses Plaintiff’s claims for false arrest under
Section 1983 and New York state law.4
3 Plaintiff does not dispute the validity of the arrest warrant issued against him, see Dkt. No. 21,
nor do Defendants argue that the Individual Defendants had presumptive probable cause to arrest
Plaintiff pursuant to the warrant. See Dkt. Nos. 17-8, 23.
4 To the extent that Plaintiff argues that his allegations regarding fabricated evidence support “a
false arrest claim based upon a malicious prosecution theory,” see Dkt. No. 21 at 8, the Court notes
that false arrest and malicious prosecution constitute two separate claims and Plaintiff does not
raise a cause of action for malicious prosecution. See generally Dkt. No. 16; see, e.g., Bornschein
v. Herman, 304 F. Supp. 3d 296, 300-03 (N.D.N.Y. 2018) (plaintiff brings both false arrest and
malicious prosecution claims against defendants).
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E. Fabrication of Evidence5
A Section 1983 plaintiff “may sue for denial of the right to a fair trial based on a police
officer’s fabrication of information . . . when the information fabricated is the officer’s own account
of his or her observations of alleged criminal activity, which he or she then conveys to a
prosecutor.” Garnett v. Undercover Officer C0039, 838 F.3d 265, 274 (2d Cir. 2016). To succeed
on a fabrication of evidence claim, 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.”
Ashley v. City of New York, 992 F.3d 128, 139 (2d Cir. 2021) (quoting Garnett, 838 F.3d at 279)
(brackets omitted). Additionally, “the underlying criminal proceeding [must] be terminated in such
a manner that the lawsuit does not impugn an ongoing prosecution or outstanding conviction.”
Smalls v. Collins, 10 F.4th 117, 139 (2d Cir. 2021) (citations omitted) (emphasis in original). “This
requirement may be satisfied where a criminal conviction has been invalidated or a criminal
prosecution has been terminated in the criminal defendant’s favor because, in such circumstances,
there is no risk that a [S]ection 1983 plaintiff’s claim will impugn an existing conviction or the
basis for an ongoing prosecution.” 	Id.; see also Williams v. City of New York, No. 21-cv-3005,
2025 WL 2782810, at *10 (E.D.N.Y. Sept. 27, 2025) (noting that “fabrication of evidence claims
can accrue at two distinct points—when a ‘criminal proceeding has ended in the defendant's favor,’
5 Plaintiff seeks to bring his fabrication of evidence claim under both the Fourth and Fourteenth
Amendments. 	Dkt. No. 16 at 8-9. 	“When a plaintiff brings both Fourth and Fourteenth
Amendment claims that arise out of the same conduct by defendants, the two claims may not
proceed simultaneously.” Fraser v. City of New York, No. 20-cv-5741, 2022 WL 3045524, at *2
(E.D.N.Y. Aug. 1, 2022) (citations omitted). Because a fabricated evidence claim implicates the
right to a fair trial and “sounds in the Due Process Clause,” courts adjudicate such claims under
the Fourteenth Amendment. Barnes v. City of New York, 68 F.4th 123, 128 (2d Cir. 2023).
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i.e., acquittal, or when ‘a resulting conviction has been invalidated within the meaning of [Heck v.
Humphrey, 512 U.S. 477 (1994)]” (quoting McDonough v. Smith, 588 U.S. 109, 120 (2019)).
Here, Plaintiff was convicted of obstruction of governmental administration, see Dkt. No.
16 at ¶ 56. Plaintiff’s conviction has not been reversed on appeal, expunged, declared invalid, or
otherwise called into question. Cf. Parker v. Kraham, No. 25-cv-6438, 2026 WL 570521, at *9
(W.D.N.Y. Mar. 2, 2026) (dismissing fabrication of evidence claim because it would call into
question plaintiff’s ongoing prosecution, noting that the prosecution must end without a conviction
before plaintiff may proceed with the claim). 	Accordingly, because Plaintiff’s fabrication of
evidence claim would impugn his outstanding conviction, the Court dismisses Plaintiff’s
fabrication of evidence claim.
F. 	Unlawful Entry
The Fourth Amendment protects against “unreasonable searches and seizures.” 	U.S.
Const. amend IV. 	“It is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.” Brigham City, Utah v. Stuart,
547 U.S. 398, 403 (2006) (internal quotation marks and citations omitted).
Plaintiff contends that the Individual Defendants entered his home without knocking,
announcing a warrant, or stating that Plaintiff was under arrest. Dkt. No. 16 at ¶ 27. Defendants
argue that exigent circumstances justified their entry into Plaintiff’s home unannounced because
Plaintiff physically resisted arrest by immediately fleeing from his backyard upon hearing and
seeing the Individual Defendants, and Plaintiff has a history of fleeing from the police. See Dkt.
No. 17-8 at 12-13; Dkt. No. 23 at 7.
“Under the emergency aid doctrine, exigent circumstances exist permitting entry if law
enforcement has probable cause to believe that a person is ‘seriously injured or threatened with
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such injury.’” Chamberlain ex rel. Chamberlain v. City of White Plains, 960 F.3d 100, 105 (2d
Cir. 2020) (quoting Brigham City, 547 U.S. at 403). “Whether such an urgent need existed ‘turns
on [an] . . . examination of the totality of the circumstances confronting law enforcement agents in
the particular case.’” 	Crespo v. City of New York, 781 F. Supp. 3d 125, 131 (E.D.N.Y. 2025)
(quoting United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc)). 	“The core
question is whether the facts, as they appeared at the moment of entry, would lead a reasonable,
experienced 	officer, 	to 	believe 	that 	there 	was 	an 	urgent 	need 	to 	render 	aid 	or 	take
action.” Chamberlain, 960 F.3d at 106 (quoting United States v. Klump, 536 F.3d 113, 117-18 (2d
Cir. 2008)).
Here, based on the facts as alleged by Plaintiff, the Court cannot conclude that a reasonable,
experienced officer would be justified in concluding that entry into Plaintiff’s home was necessary.
Specifically, Plaintiff alleges that Defendant Swartz called out to him about his license plates while
he was in his backyard, and after ignoring Defendant Swartz and entering his home, Defendant
Swartz followed him, ultimately pushing through the interior door, with the help of Defendant
McKenna, then tackling Plaintiff to the ground. Dkt. No. 16 at ¶¶ 25-27, 30, 32, 34. Plaintiff does
not allege any facts indicating that “a person within the house [was] in need of immediate aid.”
Michigan v. Fisher, 558 U.S. 45, 47 (2009); compare United States v. Ashburn, No. 11-cr-303,
2014 WL 1800409, at *5, 5 n.6 (E.D.N.Y. May 6, 2014) (finding that emergency aid doctrine
justified entry to search for shooting victims where there was evidence that shots had been fired,
and collecting cases); with Greene v. City of New York, 725 F. Supp. 3d 400, 420 (S.D.N.Y. 2024)
(finding that an uncorroborated 911 call paired with officers’ prolonging their entry to have a
colloquy with plaintiff and his fiancé could not support probable cause for exigent circumstances).
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Accordingly, Defendants’ motion to dismiss Plaintiff’s unlawful entry claim on the basis
of exigent circumstances is denied.
G. Assault and Battery Claims
Lastly, Defendants contend that Plaintiff’s assault and battery claims under New York state
law must be dismissed because Plaintiff did not include assault and battery claims in his Notice of
Claim. See Dkt. No. 17-8 at 7-8. Plaintiff argues that the Notice of Claim must be read liberally
to include claims of assault and battery because the allegations contained in the Notice of Claim
encompass the same conduct that underlies assault and battery claims. See Dkt. No. 21 at 3-5.
“A notice-of-claim statute generally provides that no action may be brought . . . or
maintained against certain government entities without first providing written notice of the claim.”
Cooper Crouse-Hinds, LLC v. City of Syracuse, New York, No. 16-cv-1201, 2018 WL 840056, at
*8 (N.D.N.Y. Feb. 12, 2018). “[A] plaintiff cannot sue a municipality or any of its officers, agents,
or employees unless he first serves a notice of claim on the municipality within 90 days after the
claim arose.” 	King v. City of New York, 581 F. Supp. 3d 559, 577 (S.D.N.Y. 2022) (internal
quotation marks and citation omitted), aff’d, No. 22-231, 2023 WL 2398679 (2d Cir. Mar. 8, 2023);
see also N.Y. Gen. Mun. Law § 50-e. The notice must state the nature of the claim, as well as the
time, place, and manner in which the claim arose. See O’Brien v. City of Syracuse, No. 22-cv-948,
2023 WL 6066036, at *22 (N.D.N.Y. Sept. 18, 2023) (citing N.Y. Gen. Mun. Law § 50-e(2)). A
plaintiff “may not raise in the complaint causes of action or legal theories that were not directly or
indirectly mentioned in the notice of claim and that change . . . the nature of the earlier claim or
assert a new one.” LeClair v. Raymond, No. 19-cv-28, 2020 WL 5027278, at *13 (N.D.N.Y. Aug.
25, 2020) (citations omitted).
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Here, Plaintiff’s Notice of Claim asserted “physical injuries” based on allegations of,
among other things, “police brutality” and “excessive force.” Dkt. No. 17-2 at 1. “Although the
notice must set forth the nature of the claim, it need not state a precise cause of action in haec
verba.” Rentas v. Ruffin, 816 F.3d 214, 227 (2d Cir. 2016) (internal quotation marks and citations
omitted). In this case, Plaintiff’s allegations are sufficiently similar to claims of assault and battery
under New York state law such that Defendants were adequately notified that Plaintiff may bring
assault and battery claims against them. See, e.g., Jimenez on behalf of J.M. v. Cnty. of Suffolk,
No. 23-cv-9476, 2025 WL 948348, at *20 (E.D.N.Y. Mar. 28, 2025) (finding that notice of claim
containing allegations of police officers causing “physical bodily injury” and noticing “all common
law torts” was sufficient to raise assault and battery claims); Green-Page v. United States, No. 20-
cv-837, 2024 WL 3584194, at *5 (W.D.N.Y. July 30, 2024) (finding that allegations in notice of
claim that mentioned “assault” but not “battery” or “physical injuries” were sufficient to provide
notice to defendants that plaintiffs intended to assert a battery claim).
In reply, Defendants contend that Plaintiff’s assault and battery claims under New York
state law are duplicative of his excessive force claim pursuant to Section 1983. See Dkt. No. 23
at 4. This argument is without merit. See, e.g., Lalonde v. City of Ogdensburg, 662 F. Supp. 3d
289, 311 (N.D.N.Y. 2023) (permitting plaintiff’s assault and battery claims under New York state
law to proceed alongside plaintiff’s Fourth Amendment excessive force claims based upon the
same factual circumstances); cf. Burdick v. New York State Police, No. 14-cv-1254, 2015 WL
1954616, at *6 (N.D.N.Y. Apr. 28, 2015) (finding that assault and battery claims asserted under
Section 1983 are duplicative of plaintiff’s Section 1983 excessive force claim); Acquah v. City of
Syracuse, No. 18-cv-1378, 2019 WL 3975463, at *4 (N.D.N.Y. Aug. 22, 2019) (same).
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Accordingly, Defendants’ motion to dismiss Plaintiff’s assault and battery claims under
New York state law is denied.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Plaintiff’s claims against the Police Department be DISMISSED with
prejudice; and the Court further
ORDERS that Plaintiff’s false arrest claims under Section 1983 and New York state law
against the Individual Defendants be DISMISSED with prejudice; and the Court further
ORDERS that Plaintiff’s fabrication of evidence claims against the Individual Defendants
be DISMISSED with prejudice; and the Court further
ORDERS that Plaintiff’s Section 1983 claims against the City be DISMISSED without
prejudice; and the Court further
ORDERS that Defendants’ motion to dismiss Plaintiff’s unlawful entry claim against the
Individual Defendants is DENIED; and the Court further
ORDERS that Defendants’ motion to dismiss Plaintiff’s assault and battery claims under
New York state law is DENIED; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 23, 2026
Albany, New York
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