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Defendant's Attorney: JACKIE L. GROSS, Nassau County Attorney (Robert F.
Van der Waag, Deputy County Attorney and
Samuel Weinstein

Description:

New York, New York - Criminal defense lawyer represented Plaintiff-Appellant with a false arrest charge.

"Because this appeal follows a jury verdict, we view the facts in the
light most favorable to the prevailing party." MacDermid Printing Solutions LLC v.
Cortron Corp., 833 F.3d 172, 178 n.1 (2d Cir. 2016) (reviewing denial of judgment
as a matter of law). Here, while the parties disagree as to many of the facts, we
view the facts in the light most favorable to Triolo. Id.
I. The Facts
A. The First Altercation
On May 15, 2015, Triolo's father passed away suddenly. Two days
later, on May 17, 2015, around 2:10 p.m., Triolo arrived at his mother's house to
check on her. He was accompanied by his wife, Debra. An altercation ensued
between Triolo and his brother, Stephen, and their mother, Patricia.
The house smelled of marijuana. Triolo found Stephen inside and
told him he should not be smoking marijuana in the house. In response, Stephen
jumped up from his chair and started yelling and threatening Triolo. Both Triolo
5
and Debra believed Stephen was under the influence of crack cocaine. Triolo
yelled back at Stephen, but at no point did he grab, punch, or otherwise touch his
brother. Nor did he yell at, threaten, grab, or push his mother.1 Debra believed
Patricia was under the influence of alcohol or drugs, possibly Xanax given to her
by her other son, Michael.
Patricia called 911 at 2:14 p.m. The 911 call report stated: "Female
now on the line states her two sons are fighting" and "mom wants older son
arrested. He threatened her." J. App'x at 92. The report did not state that
anyone was harmed.
Three police officers arrived at Patricia's house in response to the
call. By then, Triolo had left. Both Stephen and Patricia gave sworn statements
to the officers. According to the police report, however, neither had visible
injuries.
Stephen's statement read:
My mother invited my brother, Daniel, Triolo, to the house to
play with the dog. Daniel entered the house, screaming
where is he? I'm going to kill him. Out of my way. My
1 According to Stephen, Triolo entered the house, grabbed his neck, and began
punching him. He maintains that he was sober that day. Patricia claimed that Triolo
grabbed her wrist in an attempt to take her phone away to prevent her from calling 911.
Triolo denies touching his mother. Because Triolo prevailed at trial, we accept his
version of events.
6
mother attempted to stop my brother Daniel from attacking
me. Daniel grabbed my mother by her wrist and pushed her
out of the way. Daniel then jumped on top of me while I was
sitting on the chair watching TV and began to choke me with
his both hands [sic]. I lost ability [sic] to breathe and saw stars.
My brother Daniel again started to punch me by my face with
his fist and spitting at me at the same time. I feel pain in my
head area and pain on my left side body. I request an arrest.
Daniel in the house stated to mother Patricia, I'm going to
fucking kill you and I hate you fucking guts [sic]. I'm going to
kill your son. Patricia is in fear for her safety and requested
an arrest as well.
J. App'x at 70-71. Patricia's statement read:
My son Daniel entered my house, started to scream at me. I'm
going to fucking kill you, and I hate your fucking guts. I'm
going to kill your son. I attempted to stop my son from
hurting Stephen. Daniel grabbed me by my wrist and pushed
me out of the way. My wrists are hurting. I'm in a lot of pain.
I request an arrest. I'm in fear for my safety.
J. App'x at 72. The domestic incident report noted that there were "no visible
injuries" and that no arrest was made because "no offense [was] committed." J.
App'x at 169, 173-77. 2 It also noted, however, that Triolo engaged in "punching,
pushing, strangulation, and . . . choking." Id. at 174. After taking the statements
and filling out the domestic incident report, the officers left the scene. At the
precinct, a supervisor completed the domestic incident report and forwarded the
2 The officer who completed the report testified that he marked "no offense
committed" by mistake.
7
case, including the domestic incident report and sworn statements, to Lee. When
Lee received the case, he reviewed the domestic incident report and the sworn
statements.3
B. The Second Altercation
Triolo's father's wake was held on May 18, 2015, at 2:00 p.m. Shortly
after Triolo and Debra arrived at the wake, a second altercation began. While
Triolo sat in the front row of the funeral home room, Stephen and Michael
approached and physically attacked him. Triolo and Debra left the wake shortly
after the altercation.
C. The Arrest
Triolo and Debra returned home around 3:00 p.m. Debra then called
police officers at Nassau County's eighth precinct to report the assault on her
husband at the funeral home. Three or four officers arrived at the house in
response to her call.
While Debra was speaking with the responding officers, Lee and
another officer arrived at the house in plainclothes and an unmarked vehicle.
3 Lee testified that he called Stephen and Patricia the next day to confirm their
statements. There is no evidence of these calls, however, and Triolo disputes that they
occurred.
8
Lee approached the group, asked for Triolo, and immediately began to place him
under arrest. Debra and Triolo were shocked, and Debra began to explain that
Triolo was in fact the victim of an assault, not the aggressor. Lee responded that
he was interested only in what happened the day before. Although Debra
responded that she was with Triolo the day before and that he did not do
anything, Lee rolled his eyes and appeared disinterested in what she had to say.
He asked no questions. Lee handcuffed Triolo and walked him towards the
unmarked car.
At Debra's urging, officers from the eighth precinct then asked Lee
to exit the car to speak with her. He did. In response to Debra's questions, Lee
said that he did not know what Triolo was being charged with and that Debra
would have to call the precinct to find out. Debra again expressed shock and
explained that she was in the process of reporting an assault on her husband
when Lee arrived. According to Debra, Lee responded that he "would never take
that report because that's retaliation and that's tit-for-tat" and that anything she
had to say "doesn't matter." J. App'x 64. Debra again explained that she was
present during the assault the day before and had taken pictures the next
morning that showed that Triolo's dominant hand and other parts of his body
9
had no marks on them -- proof that he had not assaulted anyone.4 Instead of
asking follow up questions, Lee simply rolled his eyes again and walked away.
The conversation lasted only a few minutes. Triolo was arrested around 3:40
p.m.5
D. The Release and Dismissal
Triolo was charged with: (1) criminal obstruction of breathing or
blood circulation, in violation of New York Penal Law § 121.11, for choking
Stephen; and (2) assault in the third degree under § 120.00, for grabbing his
mother. He spent time in a precinct holding cell where he was handcuffed to a
wall. He was then transported to Nassau University Medical Center to receive
treatment for the shoulder injury he sustained during the altercation at the
funeral home. After being held in a different location until the next morning, he
was transported to criminal court and eventually released on bail. The criminal
charges against Triolo were dismissed shortly thereafter.
4 After Michael left Debra voice messages claiming that Triolo had been violent the
previous day and indicating that the police were looking for him, Debra took pictures to
disprove the false allegations.
5 According to Lee, he had waited until the day after the alleged assault to arrest
Triolo because he believed that would allow Triolo to attend his father's funeral. In fact,
the funeral was on May 19, 2015, and Triolo was not able to attend because he was in
custody.
10
II. The Proceedings Below
On April 27, 2016, Triolo commenced this action against Lee and the
County seeking damages for false arrest under federal and New York state law.
Trial began on December 3, 2018. Before the case was submitted to the jury, Lee
and the County moved for judgment as a matter of law. The district court
denied the motion.
On December 7, 2018, the jury returned a verdict in favor of Triolo
on both the federal and state claims, finding that Lee did not have probable cause
to arrest. The jury awarded Triolo "$150,000 in compensatory damages [against]
the Defendants" and "$35,000 in punitive damages [against] Detective Lee." J.
App'x at 180-81.
Lee and the County thereafter renewed their motion for judgment as
a matter of law pursuant to Federal Rule of Civil Procedure 50(b). On November
4, 2019, the district court denied the motion in part and granted it in part. The
court upheld the jury's finding that there was no probable cause but dismissed
the claims against both defendants based on qualified immunity. The court held
that, although "Lee did not have actual probable cause as a matter of law to
arrest [Triolo] for criminal obstruction of breathing or third-degree assault, the
11
record is clear enough for the Court to determine that Lee had arguable probable
cause to arrest [Triolo] for these crimes." J. App'x at 23.
As to probable cause, the court explained that the jury's verdict was
supported by evidence sufficient to raise doubts about Stephen's and Patricia's
truthfulness, including lack of any physical injury and their alleged intoxication,
as well as the domestic incident report, which indicated that no offense had been
committed. As to qualified immunity, the court explained that the evidence did
not cast so much doubt on the truthfulness of the statements that "no reasonable
officer could have determined that probable cause existed to arrest [Triolo] for
criminal obstruction of breathing or third-degree assault." J. App'x at 195-96
(internal quotation marks omitted). Thus, the court concluded that there was
arguable probable cause to arrest Triolo and therefore Lee was entitled to
qualified immunity. The court also dismissed the claims against the County,
reasoning that the County was not liable because Lee was immune from liability
and it was sued for Lee's conduct only under a theory of respondeat superior. This
appeal followed.6
6 On December 7, 2020, this Court appointed pro bono counsel for Triolo, directing
counsel to brief "whether the jury award of punitive damages in this case is inconsistent
with the district court's finding of arguable probable cause, and, if so, [whether] such
12
STANDARD OF REVIEW
We review de novo a district court's decision on a motion for
judgment as a matter of law under Federal Rule of Civil Procedure 50(b),
"considering the evidence in the light most favorable to the non-moving party
and giving that party the benefit of all reasonable inferences that the jury might
have drawn in that party's favor from the evidence." Cangemi v. United States, 13
F.4th 115, 135 (2d Cir. 2021) (cleaned up). In other words, we apply "the same
standard that is required of the district court." Smalls v. Collins, 10 F.4th 117, 131
(2d Cir. 2021) (internal quotation marks omitted).
A district court may grant judgment as a matter of law only if it
finds that "a reasonable jury would not have a legally sufficient evidentiary basis
to find for the [nonmoving] party." Fed. R. Civ. P. 50(a)(1); see also Cangemi, 13
F.4th at 136. We affirm the denial of a Rule 50(b) motion "unless there is such a
complete absence of evidence supporting the verdict that the jury's findings
could only have been the result of sheer surmise and conjecture, or the evidence
in favor of the movant is so overwhelming that reasonable and fair minded
persons could not arrive at a verdict against it." Ashley v. City of New York, 992
inconsistency invalidates the district court's finding, and any other issues counsel
deems necessary." J. App'x at 203.
13
F.3d 128, 138-39 (2d Cir. 2021) (cleaned up). The movant's burden is "particularly
heavy" where, as here, the "jury has deliberated in the case and actually returned
its verdict." Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).
DISCUSSION
On appeal, Triolo argues that the district court erred in vacating the
jury's verdict and dismissing his false arrest claims against both Lee and the
County. We hold that the district court properly dismissed the claims against
Lee but erred in dismissing the claims against the County. First, the jury's
finding that Lee did not have probable cause was supported by the evidence.
Second, Lee is nevertheless entitled to qualified immunity because he had
arguable probable cause as a matter of law. Third, the County is vicariously
liable for the compensatory damages against Lee under New York state law.
I. Probable Cause
The district court found that the record supported the jury's finding
that Lee lacked probable cause to arrest Triolo. We agree.
Under both federal and New York state law, probable cause is a
complete defense to a false arrest claim. See, e.g., Figueroa v. Mazza, 825 F.3d 89,
99 (2d Cir. 2016) ("The existence of probable cause to arrest -- even for a crime
14
other than the one identified by the arresting officer -- will defeat a claim of false
arrest under the Fourth Amendment."); De Lourdes Torres v. Jones, 26 N.Y.3d 742,
759 (2016) ("For purposes of the privilege element of a false arrest and
imprisonment claim, an act of confinement is privileged if it stems from a lawful
arrest supported by probable cause.").
To determine whether probable cause existed, we consider the
totality of the circumstances, Jenkins v. City of New York, 478 F.3d 76, 90 (2d Cir.
2007), reviewing "plainly exculpatory evidence alongside inculpatory evidence to
ensure the court has a full sense of the evidence that led the officer to believe that
there was probable cause to make an arrest," Stansbury v. Wertman, 721 F.3d 84,
93 (2d Cir. 2013) (internal quotation marks omitted). In this analysis, we
"consider those facts available to the officer at the time of the arrest and
immediately before it," keeping in mind that "an officer may not disregard
plainly exculpatory evidence." Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012)
(internal quotation marks omitted). "The significance of each of these factors
may be enhanced or diminished by surrounding circumstances." Jenkins, 478
F.3d at 90.
15
Law enforcement officers have probable cause to arrest "when they
have 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."
Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (internal quotation
marks omitted); see also De Lourdes Torres, 26 N.Y.3d at 759 ("Probable cause
consists of such facts and circumstances as would lead a reasonably prudent
person in like circumstances to believe plaintiff guilty."). More specifically, "[a]n
arresting officer advised of a crime by a person who claims to be the victim, and
who has signed a complaint or information charging someone with the crime,
has probable cause to effect an arrest absent circumstances that raise doubts as to
the [alleged] victim's veracity." Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d
Cir. 1995). The "veracity of the informant and the basis for the informant's
knowledge are two important factors." Betts v. Shearman, 751 F.3d 78, 82 (2d Cir.
2014) (internal quotation marks omitted).
Here, although Stephen and Patricia signed sworn statements
attesting to the alleged assault, the jury reasonably found that Lee disregarded
evidence that undermined their veracity. Neither Stephen nor Patricia had
16
visible injuries after allegedly being grabbed, choked, or punched. No arrest was
made on the day of the alleged assault, and the domestic incident report also
indicated that "no offense [was] committed." Immediately before the arrest,
Debra repeatedly told Lee that Triolo was the victim, not the aggressor, in the
domestic dispute. In fact, she was already in the process of reporting Stephen's
assault on her husband at the funeral home to police officers from her local
precinct when Lee arrived at her home. She tried to show Lee photographic
evidence in support of her claims to no avail. Lee showed no interest in Debra's
photographs or her version of events, and he repeatedly rolled his eyes as she
spoke. He did not ask any follow-up questions. Lee instead dismissed Debra's
efforts, handcuffed Triolo, and left the scene.
Faced with information that undermined the veracity of the alleged
victims, Lee did not engage in further investigation to ensure the existence of
probable cause. And although he had no duty to seek it out, Lee was not free to
disregard the plainly exculpatory evidence that was presented to him. See
Fabrikant, 691 F.3d at 214. Viewing the facts in the light most favorable to Triolo,
we conclude that the trial evidence was sufficient for a reasonable jury to find
that "a person of reasonable caution" in Lee's position would have understood
17
that he did not have reasonably trustworthy information to believe that Triolo
committed a crime. See Hernandez, 939 F.3d at 199 (internal quotation marks
omitted). In other words, we do not find "such a complete absence of evidence"
supporting the jury's verdict that would require reversing the district court's
denial of the Rule 50(b) motion. See Ashley, 992 F.3d at 138-39 (internal quotation
marks omitted). Accordingly, we conclude that the district court properly
upheld the jury's finding as to the absence of actual probable cause.
II. Qualified Immunity
Triolo argues that the district court improperly held that Lee was
entitled to qualified immunity because the jury's award of punitive damages
"necessarily precludes immunity under both federal and New York law."
Appellant's Suppl. Br. at 28 n.5. We disagree. First, Lee is immune under federal
law because he had arguable probable cause. Second, Lee is immune under New
York state law because his actions were discretionary and not objectively
unreasonable, and the record, even construed in Triolo's favor, does not establish
bad faith.
18
A. Federal Law
Even where actual probable cause does not exist, an officer may be
entitled to qualified immunity on a § 1983 false arrest claim if his actions were
objectively reasonable or if "arguable probable cause" existed at the time of the
arrest. Figueroa, 825 F.3d at 100; accord District of Columbia v. Wesby, 138 S. Ct. 577,
591 (2018) ("Even assuming the officers lacked actual probable cause to arrest the
partygoers, the officers are entitled to qualified immunity because they
reasonably but mistakenly concluded that probable cause was present." (cleaned
up)). A defendant has the burden of proving the affirmative defense of qualified
immunity. See Gomez v. Toledo, 446 U.S. 635, 640-41 (1980).
"A police officer has arguable probable cause if either (a) it was
objectively reasonable for the officer to believe that probable cause existed, or (b)
officers of reasonable competence could disagree on whether the probable cause
test was met." Figueroa, 825 F.3d at 100 (internal quotation marks omitted). The
question is "not whether the officer should have acted as he did." Id. Instead, it is
"whether any reasonable officer, out of the wide range of reasonable people who
enforce the laws in this country, could have determined that" probable cause
existed. Id. Indeed, as the Supreme Court has repeatedly recognized, "qualified
19
immunity protects all but the plainly incompetent or those who knowingly
violate the law." Ziglar v. Abassi, 137 S. Ct 1843, 1867 (2017) (internal quotation
marks omitted). Whether a particular officer falls into either of these categories
turns on "whether it would have been clear to a reasonable officer that the
alleged conduct was unlawful in the situation he confronted." Ziglar, 137 S. Ct. at
1867 (internal quotation marks omitted).
Although we have concluded that the jury reasonably found a lack
of actual probable cause, we agree with the district court that Lee nonetheless
had arguable probable cause to arrest Triolo.7 As explained above, Lee lacked
actual probable cause because he ignored exculpatory evidence and information
that undermined the veracity of the alleged victims. But that conclusion does not
preclude a finding of arguable probable cause. On this record, even construed in
the light most favorable to Triolo, it is not clear that no reasonable officer could
have believed that probable cause existed. See Figueroa, 825 F.3d at 100.
7 This Court has explained that "the distinction between reasonableness as a
component of a Fourth Amendment violation and reasonableness as a component of an
immunity defense" results in a situation where "an officer is protected in some
circumstances even when he mistakenly concludes that probable cause is present when
he reasonably believes that a reasonably prudent police officer would have acted even
though a reasonably prudent police officer would not have acted." Oliveira v. Mayer, 23
F.3d 642, 649 (2d Cir. 1994) (cleaned up).
20
The alleged victims signed a domestic incident report, alleging that
Triolo choked, punched, grabbed, and injured them. Their accounts were
consistent with each other's. And even though the lack of visible injuries
arguably undermined their veracity, it is nonetheless possible that no visible
injuries resulted from the alleged assault. Finally, although the report stated that
no arrest was made on May 17, 2015, because "no offense [was] committed," a
reasonable officer receiving this report could have concluded this was a mistake
because the form also plainly indicated that Triolo had engaged in punching,
pushing, strangulation, and choking.
Accordingly, although we do not conclude that the evidence in favor
of defendants is "so overwhelming that reasonable and fair minded persons
could not arrive at a verdict against" them to justify vacating the jury's finding of
lack of actual probable cause, Ashley, 992 F.3d at 139 (cleaned up), we nonetheless
conclude that Lee had arguable probable cause based on the domestic incident
report and accompanying statements. Lee's actions, though wrong, were not so
wrong that no reasonable officer, "out of the wide range of reasonable people
who enforce the laws in this country, could have determined that the challenged
21
action was lawful." See Figueroa, 825 F.3d at 100. As a result, Lee is entitled to
qualified immunity with respect to the § 1983 claim.
B. New York State Law
New York law grants government officials qualified immunity on
state law claims, including false arrest 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." Arteaga v. State of New York, 72 N.Y.2d 212, 216
(1988). In other words, New York immunity law requires both objective and
subjective reasonableness. See Lore v. City of Syracuse, 670 F.3d 127, 166 (2d Cir.
2012) ("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." (internal citations and
quotation marks omitted)).
As to the first prong, a decision is "of a judicial nature" if it "requires
the application of governing rules to particular facts," or if it is "an exercise of
reasoned judgment which could typically produce different acceptable results."
Arteaga, 72 N.Y.2d at 216-17 (cleaned up). Here, Lee's decision to arrest Triolo
based on what he believed to be probable cause required the application of
22
governing rules to facts. As explained above, that decision was not objectively
unreasonable and could have produced different acceptable results.
Accordingly, he satisfies the objective component.
As to the second prong, an officer cannot satisfy the subjective
component "if there are undisturbed findings of bad faith" in the record. Lore,
670 F.3d at 166 (internal quotation marks omitted). Triolo argues that the jury's
award of punitive damages constitutes a finding of bad faith, which was not
disturbed by the district court. We disagree. First, the jury's punitive damages
award was, in fact, disturbed; it was vacated by the district court. Second, even
though the jury awarded punitive damages, it did not necessarily find malice;
the jury instruction allowed punitive damages for behavior done "wantonly" or
"oppressively" as well. See J. App'x at 153. Third, even if the jury's award
implied a finding of malice, the record does not support that finding.
The jury awarded $35,000 in punitive damages after it was
instructed it could award punitive damages if it found Lee had made the arrest
maliciously ("prompted or accompanied by ill-will or spite or grudge either
toward the plaintiff individually or toward all persons in the group or category
of which the injured person is a member"), wantonly ("in reckless or callous
23
disregard of, or indifference to the rights of the injured person"), or oppressively
("in a way or manner which injuries or damages or otherwise violates the rights
of another person with unnecessary harshness or severity or by misuse or abuse
of authority or power"). See J. App'x at 153. The jury did not specify which of
these three alternatives described Lee's conduct. Even assuming the jury found
that Lee acted maliciously, we agree with defendants that "there is not a scintilla
of evidence that the detective actually had any malicious" intent. Appellees'
Suppl. Br. at 22-23.
The jury's award of punitive damages does indicate that it assessed
the trial testimony and evidence to strongly favor Triolo. That said, there is no
evidence in the record that Lee held any ill-will, spite, or other bad faith toward
Triolo. Indeed, Lee had a domestic incident report, signed by two victims, which
noted that Triolo had engaged in punching, pushing, strangulation, and choking.
The only fact Triolo points to as showing bad faith is that Lee was not interested
in hearing Debra's version of events while he was arresting Triolo. This alone is
insufficient to support a finding of malice. Viewed in a light most favorable to
Triolo, the record could only support a finding of callousness or indifference in
making the arrest, and such a finding does not preclude the legal conclusion that
24
Lee acted in subjective good faith. Accordingly, Lee satisfies both prongs of the
New York immunity test and is immune from Triolo's state law false arrest
claim.
III. Vicarious Liability
Next, Triolo argues that, even if Lee is entitled to qualified
immunity, the County is still vicariously liable for Lee's wrongful conduct under
New York law.8 Specifically, Triolo argues, "when an employee-officer commits
an underlying violation, such as false arrest without probable cause, but is
personally shielded by qualified immunity, the municipal employer, like any
other principal under New York law, remains vicariously liable for its agent's
conduct." Appellant's Suppl. Reply at 26-27. We agree. First, qualified
immunity is an individual affirmative defense that does not protect
municipalities. Second, under New York law and basic agency principles, a
municipal employer is vicariously liable for the wrongs of its employee, even
8 Defendants argue that the County cannot be held vicariously liable for the claims
against Lee under either federal or state law. Triolo, however, does not argue the
County is vicariously liable under federal law. In any event, it is well established that
under federal law, "a municipality cannot be held liable under § 1983 on a respondeat
superior theory." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). The issue here is
whether a municipal employer can be held vicariously liable for its employee's wrongs
under New York law.
25
when the employee is individually immune, so long as the wrong was
committed within the scope of employment.
A. Municipal Immunity
The County is not entitled to qualified immunity, and, despite
defendants' contentions otherwise, Lee's immunity does not somehow transfer to
his municipal employer. The Supreme Court has explicitly rejected the idea that
municipalities are entitled to qualified immunity under federal law. See
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166–
67 (1993) ("[U]nlike various government officials, municipalities do not enjoy
immunity from suit -- either absolute or qualified -- under § 1983."). Further, the
justifications behind qualified immunity simply do not apply to municipalities.
As the Supreme Court has explained, "the concern that the threat of personal
monetary liability will introduce an unwarranted and unconscionable
consideration into the decisionmaking process" is "[a]t the heart" of the
justification for qualified immunity. Owen v. City of Independence, 445 U.S. 622,
655-56 (1980).
26
We turn then to the issue of whether the County may be vicariously
liable for damages caused by its employee under New York state law, even
though that employee is entitled to individual immunity.
B. Respondeat Superior
The district court held that claims against a municipal employer
must be dismissed when its employee is entitled to qualified immunity,
regardless of whether that employee violated the law. We agree, as does Triolo,
that a municipal employer cannot be vicariously liable in the absence of unlawful
conduct. Here, however, Lee engaged in unlawful conduct when he arrested
Triolo without probable cause. Thus, the question is whether a municipal
employer can be held vicariously liable for its individually immune employee
under New York state law when that employee has been found liable for an
underlying wrong. It can.
New York law is clear that municipalities can be liable for the
actions of police officers on false arrest claims under a theory of respondeat
superior. See, e.g., Jones v. State of New York, 33 N.Y.2d 275, 279-80 (1973) ("A long
line of cases has held the State or municipalities liable for the actions of their
police officers in the line of duty.") (collecting cases). Indeed, this Court has so
27
held. See, e.g., Ackerson v. City of White Plains, 702 F.3d 15, 22 (2d Cir. 2012)
(holding that an officer's liability for a false arrest claim under New York law
creates liability for the city "under a theory of respondeat superior"); see also
Williams v. City of White Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010) ("The
remaining state law claim of assault and battery against the City of White Plains
is alive due to the potential for vicarious liability for actions of its police officers
as its employees.").
The next question is whether New York law categorically bars a
principal's vicarious liability when an agent is individually immune. It does not.
New York courts have addressed this question in the context of spousal and
other immunities. See Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 255
(1928) ("The disability of wife or husband to maintain an action against the other
for injuries to the person [given interspousal immunity] is not a disability to
maintain a like action against the other's principal or master."); see also Rauch v.
Jones, 4 N.Y.2d 592, 596 (1958) ("[T]he negligence of the employee having been
established, liability [for the employer] ensued under the rule of respondeat
superior. The employer, of course, could not avail itself of the personal immunity
of the [employee]."). And although these cases are plainly distinguishable in that
28
they did not involve municipal liability, they do support the conclusion that an
agent's immunity is not a categorical bar to the principal's vicarious liability.
Basic agency principles outlined in the Restatement (Second) of
Agency (the "Restatement") provide similar guidance. See Restatement (Second)
of Agency § 217. Section 217 of the Restatement states that an employer remains
liable for its employee's wrongful conduct even when that employee is entitled to
personal immunity from paying damages. Id. Moreover, comment b to § 217
explains that where "the agent acts in the scope of employment, the fact that the
agent has an immunity from liability does not bar a civil action against the
principal . . . . This result is in accordance with the rule stated in this Section and
is the rule adopted in most of the states." Id. New York courts have relied on the
Restatement, including section 217. See, e.g., Padlo v. Spoor, 422 N.Y.S.2d 895, 895
(4th Dep't 1979) (citing § 217(b)(ii)) 9; Winnick v. Kupperman Constr. Co., 287
N.Y.S.2d 329, 332 (2d Dep't 1968) (citing comment b to § 217).10
9 Section 217(b)(ii) of the Restatement provides that "[t]he principal has no defense
because of the fact that . . . the agent had an immunity from civil liability as to the act."
Contrary to the concurrence's contention, we do not look to the Restatement "alone [to]
settle[ ] an open question of New York law." Concurrence at 4. Rather, we look to the
Restatement for guidance, and consider it together with the other principles of law set
forth in the case law.
10 See also Guardian Life Ins. Co. of Am. v. Chem. Bank, 94 N.Y.2d 418, 422-43 (2000)
(citing Restatement (Second) of Agency § 3 for the proposition that a broker who is not
29
Lee was acting within the scope of employment when he arrested
Triolo. Defendants do not directly respond to Triolo's argument that the County,
just like any other principal-employer, has respondeat superior liability for its
agent-employee's wrongdoing, even when that agent is entitled to personal
immunity from damages. We see no reason why those basic agency principles
would not apply here.
Undeniably, this analysis can become muddled when it incorporates
caselaw involving no underlying violation. For example, in dismissing the
claims against the County, the district court relied on a series of cases that did
not involve an underlying wrong. In Boyler v. City of Lackawanna, 287 F. Supp. 3d
a general agent of an insurance company may still be a special agent for the purpose of
processing requests for policy loans and dividend withdrawals," and comment b to § 26
for the proposition that "a principal and agent need not enter into a formal contract in
order to create an agency relationship"); Sokoloff v. Harriman Ests. Dev. Corp., 96 N.Y.2d
409, 416 (2001) (citing §§ 377, 403); Parlato v. Equitable Life Assur. Soc. of U.S., 749
N.Y.S.2d 216, 220–21 (1st Dep't 2002) (citing §§ 261, 262, and 265 for the proposition that
"a principal may be held liable in tort for the misuse by its agent of his apparent
authority to defraud a third party who reasonably relies on the appearance of authority,
even if the agent commits the fraud solely for his personal benefit, and to the detriment
of the principal"); G.K. Alan Assoc., Inc. v. Lazzari, 840 N.Y.S. 2d 378, X (2d Dep't 2007)
(citing §§ 1, 376, 416, 456, 469); Smalls v. Reliable Auto Serv., Inc., 612 N.Y.S.2d 674, 676
(2d Dep't 1994) (citing § 272 for the proposition that "[a] principal is bound by notice to
or knowledge of his or her agent in all matters within the scope of the agency,
notwithstanding the fact that such information is never actually communicated to the
principal"); Nelson v. Times Square Stores Corp., 487 N.Y.S. 2d 814, 816 (2d Dep't 1985)
(Titone, J., concurring) (citing § 217).
30
308, 326 (W.D.N.Y. 2018), the court dismissed claims against officers and thus
against the city as well because the "arrest was supported by probable cause." In
Brown v. City of New York, the court held that there were "no unconstitutional
actions by the City's employees." 2015 WL 427942, at *6 (E.D.N.Y. Feb. 2, 2015)
(citing Shapiro v. Kronfeld, 2004 WL 2698889, at *24 (S.D.N.Y. Nov. 24, 2004)
(holding "there can be no imposition of vicarious liability in the absence of
underlying liability")). In Hargroves v. City of New York, 2014 WL 1271024, at *4
(E.D.N.Y. Mar. 26, 2014), the court dismissed vicarious liability claims against the
city because it found the officers acted objectively reasonably and thus there was
"no underlying offense for which the City could be held vicariously liable."
Lastly, in Fiedler v. Incandela, 222 F. Supp. 3d 141, 161-62, 169 (E.D.N.Y. 2016), the
court held that "[t]he undisputed facts establish that probable cause existed to
arrest Plaintiff," and "[h]aving concluded that the Individual Defendants are
entitled to judgment as a matter of law with respect to Plaintiff's claims arising
under New York law, the County Defendants are also entitled to judgment as a
matter of law with respect to Plaintiff's claims for vicarious liability." Defendants
similarly rely on cases that are distinguishable in that, unlike here, they do not
31
involve underlying wrongful conduct. Of course, when there is no underlying
liability, there can be no vicarious liability.
In Kass v. City of New York, 864 F.3d 200 (2d Cir. 2017), we upheld the
"dismiss[al of] Kass's state law false arrest claim against the City" because it was
"based solely on his allegation that the City is responsible for any false arrest that
was committed by the officers." Id. at 213-14. There, unlike here, we did not
conclude that the arresting officer lacked probable cause. Indeed, in support of
our holding in Kass, we cited Demoret v. Zegarelli, 451 F.3d 140, 152-53 (2d Cir.
2006), where we held that the defendants were entitled to qualified immunity
because the plaintiffs had not established an underlying violation of their equal
protection rights. Then, when discussing the vicarious liability of the
municipality, we stated:
Plaintiffs' allegations that the [municipality] is liable for a
hostile work environment are based solely on the acts of [the
individual defendants]. Plaintiffs' claims against the
[municipality] are thus inextricably intertwined with their
claims against the individual defendants. Because we have
found as a matter of law that [the individual defendants] did
not subject plaintiffs to a hostile work environment,
defendants are entitled to summary judgment on plaintiffs'
parallel state law causes of action.
32
Demoret, 451 F.3d at 153. In other words, because there was no underlying
violation, there was no vicarious liability. Here, in contrast, a jury found that Lee
lacked probable cause and therefore falsely arrested Triolo. Defendants cite no
persuasive authority as to why the County, as Lee's employer, cannot be
vicariously liable for the damages he caused in doing so.
In sum, the County remains vicariously liable under New York law
for the compensatory damages because (1) municipalities are not entitled to
qualified immunity, (2) municipal employers may be vicariously liable on state
law claims brought against their police officer employees, (3) a principal remains
liable for damages caused by its agent, even when that agent is individually
immune, and (4) Lee was acting within the scope of his employment when he
arrested Triolo. Thus, even though Lee is shielded from personally paying for
the damages he caused by falsely arresting Triolo, the County remains liable for
those damages under New York state law.11

Outcome: For the reasons set forth above, we AFFIRM the district court's
dismissal of the claims against Lee and REVERSE the district court's dismissal of
the claims against the County, and REMAND for the entry of judgment in
Triolo's favor against the County in the amount of $150,000 and for such other
proceedings as may be appropriate.

Plaintiff's Experts:

Defendant's Experts:

Comments: