20-1202 Moore v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of May, two thousand twenty-one. PRESENT: Dennis Jacobs, Robert A. Katzmann, Steven J. Menashi, Circuit Judges. _________________________________________ CHRISTOPHER MOORE, Plaintiff-Appellant, v. No. 20-1202 CITY OF NEW YORK, DET. ERICK M. PARKS, DET. MARCELO LUC, DET. ELENA GONZALEZ-MUNOZ, DET. SALVATORE TRISCRITTI, SGT. JOHN HERBERT, FIRE MARSHAL CONSTANTINE KANELOPOULOS, FIRE MARSHAL JOHN ORLANDO, FIRE MARSHAL ERIC H. HANSEN, Defendants-Appellees. *

* The Clerk of Court is directed to amend the caption as set forth above. ________________________________________________________________________________________________

For Plaintiff-Appellant: Samuel C. DePaola, Sim & Depaola, LLP, Bayside, New York.

For Defendants-Appellees: Tahirih M. Sadrieh, Assistant Corporation Counsel (Richard Dearing, Claude S. Platton, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Cogan, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Christopher Moore appeals the district court’s summary judgment decision

dismissing his complaint alleging numerous causes of action, including false arrest

under New York law and malicious prosecution under New York law and

. 1 We review a district court’s decision to grant summary judgment

1 Although the district court’s decision granting summary judgment explicitly addressed only some of the claims in Moore’s complaint, we consider the district court’s summary judgment decision as resolving Moore’s case in its entirety. The decretal language at the end of the summary judgment decision reads: “The Clerk is directed to enter judgment, dismissing this case.” Moore v. City of New York, No. 19-CV-0542,

, at *6

2 de novo, viewing the record in the light most favorable to the non-moving party

and drawing all reasonable inferences in that party’s favor. Samuels v. Mockry,

(2d Cir. 1996). We assume the parties’ familiarity with the

underlying facts, procedural history, and arguments on appeal.

This suit arises out of Moore’s arrest, prosecution, and eventual acquittal on

charges relating to a fire at Moore’s apartment building that killed one resident.

The fire occurred in the early morning of October 7, 2012. The police questioned

Moore at a police station on the night of October 8, 2012 and formally placed him

under arrest in the early morning of October 10, 2012. On October 24, 2012, a grand

jury indicted Moore on charges of murder and arson. Moore was then held in pre-

trial detention and was eventually acquitted of the charges after a trial on

December 20, 2017. Afterward, Moore brought this civil suit seeking damages for

injuries caused by his arrest and prosecution.

Moore contests the district court’s conclusions that (1) the police had

probable cause to arrest him, thus defeating his false arrest claim, and (2) the police

had probable cause to prosecute him, thus defeating his malicious prosecution

(E.D.N.Y. Mar. 16, 2020). The district court’s docket notes that the case was terminated on March 18, 2020—the date that judgment was entered on the summary judgment decision.

3 claims. “Probable cause is not a high bar.” District of Columbia v. Wesby,

(2018) (internal quotation marks omitted). We have explained that

“[p]robable cause to arrest exists when the authorities have knowledge or

reasonably trustworthy information sufficient to warrant a person of reasonable

caution in the belief that an offense has been committed by the person to be

arrested.” Boyd v. City of New York,

(2d Cir. 2003). The New York

Court of Appeals has similarly stated that “[p]robable cause does not require proof

sufficient to warrant a conviction beyond a reasonable doubt but merely

information sufficient to support a reasonable belief that an offense has been or is

being committed by the suspected individual.” De Lourdes Torres v. Jones,

(N.Y. 2016) (internal quotation marks omitted).

In assessing Moore’s false arrest claim, we consider “the circumstances

known to the officer at the time of the arrest.” Smith v. Cnty. of Nassau,

(N.Y. 1974). While the police did not formally place Moore under arrest

until October 10, 2012, Moore argues that he was subject to custodial interrogation

as early as the night of October 8. If Moore is correct, then the night of October 8

would serve as the time of Moore’s arrest for the purposes of his false arrest claim.

See De Lourdes Torres,

; Dunaway v. New York,

, 216

4 (1979). Therefore, like the district court, we will assume that Moore was arrested

on the night of October 8. See Moore,

, at *6. 2

By the night of October 8, the police had gathered the following information

regarding Moore’s possible involvement in the fire at his apartment building. Fire

Marshal John Orlando determined that the fire began near a dresser located in the

kitchen of Moore’s apartment and that it was not caused by candles, incense, faulty

wiring, or untended cooking. From discussions with witnesses and Moore,

Orlando learned that Moore had been the last person in his apartment before the

fire and that he left shortly before the fire began. Additionally, on the morning of

October 8, Orlando received a call from Pamela McGill, another resident of the

apartment building. McGill informed Orlando that, on October 6, Moore got into

an argument with Shelley Kinley, who also lived in the building (and was killed

in the fire), after Kinley asked Moore to turn down the music that Moore and the

other residents of the building were playing during an afternoon cookout. McGill

2 The district court considered evidence obtained on October 9 when assessing whether the police had probable cause to arrest Moore on October 8. See Moore,

, at *6. This was error. See Smith,

. Nevertheless, “[w]e may … affirm the judgment of the district court on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely.” Pollara v. Seymour,

(2d Cir. 2003). We do so here.

5 reported that, in the course of this argument, Moore said something about wanting

to burn the building down.

This information supported “a reasonable belief that an offense ha[d] been

... committed by [Moore].” De Lourdes Torres,

(internal quotation

marks omitted). Therefore, the police had probable cause to arrest Moore on the

night of October 8 and his claim for false arrest fails. See Jenkins v. City of New York,

(2d Cir. 2007) (noting that probable cause is a “complete defense”

to an action for false arrest under New York law).

Moore argues that we should not assume that Orlando had already

determined by the night of October 8 that the fire had originated in Moore’s

apartment because the Fire Incident Report that detailed that finding is undated

and some aspects of the report indicate that it did not issue until after Moore’s

arrest. The report, however, was based on surveys that Orlando conducted on

October 7-8. Therefore, Moore cannot genuinely dispute that Orlando made the

determination before Moore’s arrest.

The probable cause the police had to arrest Moore on October 8 also

precludes Moore’s malicious prosecution claims. See Frost v. N.Y.C. Police Dep’t,

(2d Cir. 2020) (noting that a lack of probable cause is an element

6 of a malicious prosecution claim under § 1983). Although “probable cause [may]

dissipate” after an arrest if “the groundless nature of the charges [is] made

apparent by the discovery of some intervening fact,” Lowth v. Town of Cheektowaga,

(2d Cir. 1996), Moore does not identify any evidence indicating

that the appellees “had knowledge of some intervening fact exonerating” him,

Brown v. City of New York,

(N.Y. 1983).

In fact, the police collected even more evidence that incriminated Moore

between the night of October 8 and October 24, when a grand jury returned an

indictment against him. The police learned from Moore’s mother that Moore had

a history of arson activity, for which he had received counseling when he was

young. McGill gave a sworn statement to the police explaining that after Moore’s

argument with Kinley hours before the fire, Moore said, “Oh, I need to burn this

mother fucker down” and that Moore had made similar statements in the past.

App’x 142. McGill also reported that when Moore returned to the building hours

after the fire, he gave her conflicting explanations of where he had been when the

fire broke out. McGill also told the police that she overheard Moore give additional

conflicting accounts to a man named Charles King. Additionally, Daniel

Hernandez, who also lived in Moore’s building, gave a sworn statement to the

7 police stating that Moore left the building five to ten minutes before the fire

started. Both Hernandez and McGill confirmed that the fire appeared to have

begun in Moore’s apartment.

* * *

We have considered Moore’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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