summons and complaint, u.s. district court, sdny, rubin v. nyc police department

7/30/2019 Summons and Complaint, U.S. District Court, SDNY, Rubin v. NYC Police Department

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK______________________________

ALLEN RUBIN,

PLAINTIFF

vs COMPLAINT [JURY TRIAL]

THE CITY OF NEW YORK, a 11 Civ. 4160municipal entity, NEW YORKCITY POLICE OFFICER VINCENTKONG, Shield # O1661, NEW YORKCITY POLICE SERGEANTCHRISTOPHER KOCH, Shield #2875, NEW YORK CITY POLICELIEUTENANT JOE COSTELLO,NEW YORK CITY POLICE CAPTAINSTEVEN BRAILLE, NEW YORK CITYNEW YORK CITY POLICE CHIEFBRIAN CONROY, NEW YORK CITYUNDERCOVER POLICE OFFICER 293(previously known as NEW YORKCITY UNDERCOVER POLICE OFFICER2948, and prior to that as NEWYORK CITY UNDERCOVER POLICEOFFICER 4325), NEW YORK CITY

POLICE OFFICERS JOHN DOES, eachof the identified and the non-identified persons in hisindividual capacity and in hisofficial capacity,

DEFENDANTS________________________________

I. INTRODUCTION

1. This litigation arises out of the custodial arrestof the Plaintiff on the late evening of Thursday, July 17,2008 and the early morning of Friday, July 18, 2008 at theHot Lap Dance Club, 344 West 38th Street, New York City, NewYork and the preferral of criminal charges and theprosecution of the Plaintiff associated therewith.

Case 1:11-cv-04160-LBS Document 1 Filed 06/17/11 Page 1 of 14


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2. The Plaintiff was detained in custody forapproximately twenty six hours until the early morning ofSaturday, July 19, 2008 when the Plaintiff appeared at anarraignment in the Criminal Court of the City of New York,County of New York, and State of New York and was then

released without bail and directed to return to Court forfurther proceedings on September 25, 2008; October 24,2008; December 18, 2008; and on January 8, 2008.

3. On January 8, 2009, on the motion of the New YorkCounty District Attorneys Office, the Criminal Courtcharge against the Plaintiff was dismissed and the mattersealed.

4. This is an action in which the Plaintiff seeksrelief for the violation of his rights as guaranteed underthe laws and Constitution of the United States.

5. The Plaintiff seeks monetary damages and suchother relief, including injunctive relief and declaratoryrelief [if appropriate], as may be in the interest ofjustice and as may be required to assure that the Plaintiffsecures full and complete relief and justice for theviolation of his rights.

II. JURISDICTION

6. Jurisdiction of this Court is invoked pursuant to

and under 28 U.S.C. Sections 1331 and 1343 in conjunctionwith the Civil Rights Act of 1871, 42 U.S.C. Section 1983,and the Fourth and Fourteenth Amendments to the UnitedStates Constitution.

7. The Plaintiff also invokes the jurisdiction ofthis Court in conjunction with the Declaratory JudgmentAct, 28 U.S.C. Sections 2201, et seq., this being an actionin which the Plaintiff seeks, in addition to monetarydamages, whatever other relief is needed to provide fulland complete justice including, if appropriate, declaratory

and injunctive relief.

8. This is an action in which the Plaintiff seeksrelief for the violation of his rights as guaranteed underthe laws and Constitution of the United States.

III. THE PARTIES



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9. The Plaintiff is a citizen of the United States ofAmerica, and a resident of the State of New York, the Cityof New York, and the County of Rockland.

10. The Defendant City of New York is a municipal

entity which was created under the authority of the lawsand Constitution of the State of New York and which isauthorized with, among other powers, the power to maintaina police department for the purpose of protecting thewelfare of those who reside in the City of New York.

11. Defendants Christopher Koch, Shield # 2875,Vincent Kong, Shield # 01661, Joe Costello, StevenBraille, Brian Conroy, New York City Undercover PoliceOfficer 293 (previously known as New York City UndercoverPolice Officer 2948, and prior to that as New York CityUndercover Police Officer 4325), and John Does are NewYork City Police Department line and command Officers andagents and employees of the City of New York.

12. Although the Defendants actions and conductherein described were unlawful and wrongful and otherwiseviolative of the Plaintiffs rights as guaranteed under thelaws and Constitution of the United States, they were takenin and during the course of their duties and functions asNew York City Police Department line and command Officersand as agents and employees of the City of New York andincidental to the otherwise lawful performance of their

duties and functions as New York City Police line andcommand Officers and agents and employees of the City ofNew York.

IV. ALLEGATIONS

13. This litigation arises out of the Plaintiffscustodial arrest on Thursday night, July 17, 2008 and onFriday morning July 18, 2008 at the Hot Lap Dance Club,which was located in a loft like area on the 5th floor of abuilding whose address was 344 West 38th Street, New York,

New York.

14. The Plaintiff had only commenced his employment atthe Hot Lap Dance Club [hereinafter referred to as theClub] eight days prior to the July 17, 2008 police raid.



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15. The Plaintiff was employed as an assistant floormanager, and was still in training on the date of the July17, 2008 raid.

16. The Plaintiff did not possess keys to the Club,

nor access to the Clubs money.

17. On July 17, 2008, the Plaintiff was working in hiscapacity as an assistant floor manager in training asdescribed above.

18. The Club opened to patrons at or about 8:00 P.M.

19. The Club became crowded with patrons.

20. At or about 11:30 P.M. the Plaintiff observed anumber of individuals come into the Club bearing shields.

21. Those individuals moved through the Club.

22. Plaintiff also observed what he believed to be anumber of plain clothes New York City Police Officers enterinto the Club, and into the main area of the Club.

23. A plainclothes New York City Police Officer pulledPlaintiff aside and said that things could go very easy forPlaintiff, if Plaintiff would just tell him what went on inthe Club.

24. Plaintiff informed the plainclothes New York CityPolice Officer that he had only been working at the Clubfor eight days, and that he did not know anything aboutwhatever the plainclothes New York City Police Officer wastalking about.

25. Eventually the plain clothes Officers arrested allof the Clubs employees, and took all the employees to theoffice in the Club and handcuffed each individual andplaced each individual under arrest.

26. Plaintiff was handcuffed with plastic flexcuffs,and was not permitted by the police officers to use thebathroom to relieve himself for a long period of time.

27. During the process of the arrest of the Plaintiffand others, patrons, who were in the Club, were permittedto leave.



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28. The Plaintiff was frisked.

29. The Plaintiff was transported to the 7th Precinct.

30. The Plaintiff was fingerprinted and photographed.

31. Plaintiffs cell phone was confiscated by thepolice officers who processed his arrest.

32. Plaintiffs cell phone was designated arrestevidence, and was only returned to him after the chargesagainst him were dismissed, on information and belief onNovember 10, 2008.

33. When Plaintiff received his cell phone back fromthe NYPD after the dismissal of the charges on November 10,2008, the battery was still charged, which indicates thatthe phone had been charged while in police custody, oninformation and belief so that it could be searched throughwithout Plaintiffs consent by the police while it was inpolice custody.

34. After being detained at the 7th Precinct for someperiod of time, the Plaintiff, along with others, wastransported to Manhattan Central Booking where he remaineduntil he and others were brought to Court for anarraignment at or about 1:30 A.M. on the morning of July

19, 2008.

35. The Plaintiff was in custody for 26 hours orthereabouts.

36. The Plaintiff had no information or ideawhatsoever as to the basis for his arrest.

37. The Plaintiff had no idea about any unlawful orillegal conduct, if any, which was alleged, as part of thepolice operation, to have occurred at the Club location.

38. The Plaintiff never promoted prostitution or otherunlawful conduct, ever, in the Club location or otherwise;and he was unaware of any unlawful conduct whatsoever inthe Club location.



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39. The Plaintiff never engaged in any criminalconduct or other unlawful conduct while employed at theClub.

40. The Plaintiff was released on his own recognizance

from custody without bail at an arraignment at or about1:30 A.M. on July 19, 2008 and he was directed to return tothe Court on September 25, 2008 for further proceedings inconnection with his arrest allegedly for promotingprostitution.

41. While Plaintiff was in custody, his car was towedfrom where he had parked it near the Club.

42. The Plaintiff appeared in Court on September 25,2008.

43. The Plaintiff was then directed to re-appear inCourt on October 24, 2008.

44. The Plaintiff appeared in Court on October 24,2008.

45. The Plaintiff was then directed to re-appear inCourt on December 18, 2008.

46. The Plaintiff appeared in Court on December 18,2008.

47. The Plaintiff was then directed to re-appear inCourt on January 8, 2009.

48. On January 8, 2009, the Plaintiff and his criminaldefense attorney met with the assigned Assistant DistrictAttorney prior to the Plaintiffs Court appearance on thatdate.

49. At that meeting Plaintiff voluntarily submittedhimself to an interview by the assigned Assistant District

Attorney, which led the assigned Assistant DistrictAttorney to dismiss the charges against the Plaintiff dueto Plaintiffs lack of involvement in any criminality.

50. The Plaintiff and his attorney then appeared inCourt on January 8, 2009, where, upon the Motion of theOffice of the New York County District Attorney, the charge



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against the Plaintiff was dismissed and the proceedingssealed.

51. The Plaintiff had to pay $1,500 to his criminaldefense attorney for representation in defending against

the criminal charge.

52. The Plaintiffs arrest on the night in question,in front of employees and others, was humiliating andembarrassing and stress and anxiety inducing.

53. The Plaintiffs arrest and the pendency of theCriminal Court proceeding, until it was dismissed, werestress and anxiety inducing, emotionally distressful, andotherwise publicly humiliating and embarrassing.

54. Defendants Does, Costello, Braille, Koch, Kong,New York City Undercover Police Officer 293 (previouslyknown as New York City Undercover Police Officer 2948, andprior to that as New York City Undercover Police Officer4325), and Conroy were involved in the pre-planning and/orthe execution of the Hot Dance Lap Club field operation onJuly 17, 2008.

55. It is believed that, among the Defendants, all orsome had been in the Hot Lap Dance Club as part of a pre-July 17, 2008 undercover operation which was taking placein said Club.

56. Among other efforts in which some or all of theDefendants engaged was an undertaking and effort to securea search warrant for the premises where the Hot Lap DanceClub was located.

57. Notwithstanding that it is believed that a searchwarrant was obtained for the search of the Hot Lap Dance onJuly 17, 2008, no pre July 17, 2008 arrest warrant wasobtained from a Court for the arrest of the Plaintiff.

58. It is believed that no pre-July 17, 2010 arrestwarrant was obtained for the arrest of the Plaintiffnotwithstanding undercover operations which the Defendantshad taken in the Club prior to July 17, 2008 because theDefendants lacked an objectively reasonable probable causefact basis on which to believe that the Plaintiff wasengaged in any criminal conduct prior to July 17, 2008 justas, on July 17, 2008, there was no such objectively



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reasonable probable cause fact basis for the Defendants tobelieve that the Plaintiff was engaged in any kind ofcriminal conduct to justify the Plaintiffs arrest.

59. The Plaintiff committed no criminal offense or

other offense whatsoever and no reasonable police officercould have reasonably and objectively believed that thePlaintiff committed any criminal offense or any otheroffense under the law to justify even a stop let alone anarrest, a custodial arrest, incarceration and detention,the preferral of any charge, including but not limited topromotion of prostitution charge, against him, and hiscriminal prosecution associated with the preferral of anycriminal charges including but not limited to the promotionof prostitution charge.

60. There was no basis for the stop, arrest andcustodial arrest of the Plaintiff by the New York CityPolice Officers, each of whom is an agent and employee ofthe City of New York.

61. In addition to the lack of any basis for thestop, arrest and custodial arrest of the Plaintiff, therewas no reasonable basis to believe that the Hot Lap Danceclub was a brothel or promoted any sort of systemicprostitution business, as New York City Undercover PoliceOfficer 293 (previously known as New York City UndercoverPolice Officer 2948, and prior to that as New York City

Undercover Police Officer 4325) - as well as his partner,named Detective Rijos, Shield No. 3026 - have testifiedthat in the course of their undercover operation at theclub there were a number of times where they reachednegative results in their attempts to reach prostitutionagreements with the dancers at the club.

62. There is, in fact, significant doubt as towhether they in fact reached those prostitution agreementswith those particular dancers with whom they claim to havereached agreement. Their investigatory techniques and

procedures were rife with dishonesty and incompetence.

63. There was no justification to handcuff thePlaintiff, frisk search the Plaintiff, or to detain thePlaintiff in custody for the period of time he was held incustody until he appeared at his arraignment when and wherehe was released without bail and required to return toCourt thereafter when and where, upon the motion of the New



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York County District Attorneys Office, the chargepreferred against the Plaintiff was eventually dismissedand the records sealed.

64. The Plaintiff was simply rounded up as part of a

collective group of employees at the Club without anyspecific and particularized objectively reasonable fact andinformation basis to believe that the Plaintiff had engagedin any unlawful conduct.

65. The Plaintiff was rounded up and left to be sortedout as part of a wholesale New York City collectiveprobable cause arrest policy and without any objectivelyreasonable specific and particular fact and informationbasis to believe that the Plaintiff was involved in anycriminal conduct associated with the Club.

66. The Defendants, per the policy of the City of NewYork, employed a shoot em all, and let God sort em outarrest psychology, which is abhorrent to the FourthAmendment, by arresting the Plaintiff simply because hewas present in the Club as an employee of the Club withoutpossessing any specific and particularized conduct by thePlaintiff that linked the Plaintiff to any alleged unlawfulconduct supposedly taking place in the Club.

67. Employment at the Club and by the Club in and ofitself and without any specific and particular independent

fact and information basis to believe that the Plaintiffeven knew about any alleged unlawful conduct at the Club,let alone was involved in any such alleged unlawfulconduct, is not a crime.

68. While the actions and conduct of the New York CityPolice Officers were unlawful they were taken in the courseof their duties and functions and incidental to theotherwise lawful performance of those duties and functionsas New York City Police Officers and as agents andemployees of the City of New York. Among others involved

in the challenged actions and conduct herein wereDefendants New York City Police Officers Does, Costello,Braille, Koch, Kong, New York City Undercover PoliceOfficer 293 (previously known as New York City UndercoverPolice Officer 2948, and prior to that as New York CityUndercover Police Officer 4325), and Conroy.



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69. There was no probable cause for the arrest of thePlaintiff or for the preferral of any any - chargesagainst the Plaintiff or for the criminal prosecution ofthe Plaintiff.

70. The Plaintiff was subjected to a Fourth Amendmentoffensive probable cause lacking stop, false arrest andunlawful custodial detention and imprisonment, and he wassubjected to excessive, unreasonable and unnecessary forcein the form of his handcuffing. Moreover, he was subjectedto an unlawful frisk search and to malicious prosecution,and to a malicious abuse of criminal prosecution.

71. The actions and conduct herein described werepropelled by the vice crime offense enforcement initiativesof the City of New York which are grounded in thephilosophy of the ends justifies the means and whichpropel New York City Police Officers to make unlawful andotherwise unjustified arrests.

72. Such vice crime offense enforcement initiatives,for which the City provided inadequate training, propelledthe Defendant officers to make collective probable causecustodial arrests of multiple individuals in thissituation, including the Plaintiffs arrest, where therewas no specific and particular Plaintiff linked objectivelyreasonable probable cause factual basis to believe that thePlaintiff was engaged in unlawful conduct to justify the

arrest of the Plaintiff.

73. The Plaintiff was falsely arrested and subjectedto excessive detention and an unlawful frisk search and amalicious abuse of criminal process and to a maliciousprosecution.

74. The actions, conduct, policies and practices andcustoms herein described violated the Plaintiffs rights asguaranteed under the Fourth and Fourteenth Amendments tothe United States Constitution and the Civil Rights Act of

1871, 42 U.S.C. Section 1983.

75. The Plaintiff suffered injuries and damagesincluding loss of liberty, fear, anxiety, mental distress,emotional anguish, and psychological trauma and physicalpain and suffering.



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76. The Plaintiff suffered public humiliation andembarrassment.

77. The Plaintiff has not yet placed a monetary valueon the damages which he incurred although he believes them

to be substantial and to include compensatory and punitivedamages.

78. The Plaintiff has no other adequate remedy of lawother than for the institution of this litigation.

V. CAUSES OF ACTION

A. FIRST CAUSE OF ACTION

79. The Plaintiff reiterates Paragraph #s 1 through78 and incorporates such by reference herein.

80. The Plaintiff was unlawfully and falsely arrestedand falsely and excessively imprisoned and detained, andsubjected to unreasonable conditions of his confinement,and had his property seized and / or unlawfully searched,all in violation of his rights as guaranteed under theFourth and Fourteenth Amendments to the United StatesConstitution and the Civil Rights Act of 1871, 42 U.S.C.Section 1983.

81. The Plaintiff suffered injuries and damages.

B. SECOND CAUSE OF ACTION

82. The Plaintiff reiterates Paragraph #s 1 through 81and incorporates such by reference herein.

83. The Plaintiff was subjected to maliciousprosecution in violation of his rights as guaranteed underthe Fourth and Fourteenth Amendments to the United StatesConstitution and the Civil Rights Act of 1871, 42 U.S.C.Section 1983.


C. THIRD CAUSE OF ACTION




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86. The Plaintiff was arrested for collateralobjectives other than legitimate law enforcement functionsincluding, as a collateral justification, that it wassimply easier to arrest someone and sort it out later thanit was to utilize the power of arrest in its proper,

probable cause grounded form and fashion based on anobjective and reasonable belief of the arresting lawenforcement officer at the time of the arrest that theindividual was engaged in unlawful conduct.

87. Simply being present at a location and beingemployed by the entity which does business at the locationis not a sufficient basis on which to form the requiredobjectively reasonable probable cause fact based andinformation belief to arrest an individual therebypropelling a belief that a non legitimate, ancillarypurpose was the basis on which the arrest of the individualwas grounded.

88. The Plaintiff was subjected to malicious abuse ofcriminal process in violation of his rights as guaranteedunder the Fourteenth Amendment to the United StatesConstitution and the Civil Rights Act of 1871, 42 U.S.C.Section 1983.


D. FOURTH CAUSE OF ACTION


91. The policies, practices and customs hereindescribed, including the vice crime offense enforcementinitiatives and the inadequate training policy associatedtherewith, propelled the actions and conduct herein. Thosepolicies, practices, and customs violated the Plaintiffsrights under the Fourth and Fourteenth Amendments to theUnited States Constitution and the Civil Rights Act of

1871, 42 U.S.C. Section 1983.


E. FIFTH CAUSE OF ACTION




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94. If the City of New York elects to represent itsofficers as it does in the overwhelming number of casesbrought against its officers [it is believed that the Cityof New York elects to represent its officers in

approximately 99 percent of the cases brought against itsofficers in the federal courts for alleged police officermisconduct], the City of New York uniformly and as a matterof policy and practice and custom pays the judgmentsawarded against its represented officers [both compensatoryand punitive damages] and otherwise pays settlements, allwithout requiring contribution from the officers.

95. The named and unnamed individual Defendants areemployees and agents of the City of New York and theirconduct, as described, was taken in the course of theirduties and functions as New York City Police Officers and,in their capacities as such, as agents and employees of theCity of New York.

96. Their actions and conduct, while unlawful andunconstitutional, nonetheless were actions and conducttaken in connection with the otherwise lawful performanceof their duties and functions as agents and employees ofthe City of New York.

97. The Plaintiff is entitled to recover directlyagainst the City of New York for the conduct of its named

and unnamed Officers under the federal claim jurisdictionand/or against the City pursuant to the doctrine ofrespondeat superior as the City is, as a matter of fact andlaw and policy and practice and custom, the real party ininterest in this litigation.




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WHEREFORE and in light of the foregoing, it isrespectfully requested that the Court assume jurisdictionand:

[a] Invoke pendent party and pendent claimjurisdiction.

[b] Award appropriate compensatory andpunitive damages.

[c] Award appropriate declaratory andinjunctive relief.

[d] Empanel a jury.

[e] Award attorneys fees and costs.

[f] Award such other and further relief asthe Court deems to be in the interestof justice.

DATED: New York, New YorkJune 17, 2011

Respectfully submitted,

______/S/________________JEFFREY A. ROTHMAN315 Broadway @ Suite # 200New York, New York 10007[212] 227-2980[212] 591-6343/[email protected]

JAMES I. MEYERSON64 Fulton Street @ Suite # 502

New York, New York 10013[212] 226-3310[212] 513-1006/[email protected]

ATTORNEYS FOR PLAINTIFFBY:_______________________


summons and complaint, u.s. district court, sdny, rubin v. nyc police department

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