11-530-cv
Cornell v. Kapral

                                  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
Richard C. Lee United States Courthouse, 141 Church Street, in the City of New Haven,
Connecticut, on the 1st day of May, two thousand twelve.

PRESENT:

          JOHN M. WALKER,
          JOSEPH M. MCLAUGHLIN,
          JOSÉ A. CABRANES,
                       Circuit Judges.

__________________________________________

August F. Cornell,

                    Plaintiff-Appellant,

                             v.                                        No. 11-530-cv

Scott Kapral, individually and in his official capacity
as a police officer with the Town of DeWitt, and
Town of DeWitt,

            Defendants-Appellees.
__________________________________________


FOR PLAINTIFF-APPELLANT:                                  A.J. BOSMAN, Bosman Law Firm LLC, Rome,
                                                          NY.




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FOR DEFENDANT-APPELLEES:                                 FRANK W. MILLER, (Brian Georgiady, on the
                                                         brief), The Law Firm of Frank W. Miller, East
                                                         Syracuse, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Glenn T. Suddaby, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant August F. Cornell (“Cornell”) appeals from the January 11, 2011
judgment of the District Court granting summary judgment to defendants-appellees, Sergeant Scott
Kapral (“Kapral”) and the Town of DeWitt (the “Town”), and dismissing Cornell’s malicious
prosecution, malicious abuse of process, false arrest, and Monell claims brought pursuant to 42
U.S.C. § 1983.

        We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal. Briefly, Cornell was the owner of Erie Gem and Watch, a
consignment retail shop located in DeWitt, New York. In or around March 2006, a former
customer of Erie Gem and Watch, Michael Hughes, contacted the Town of DeWitt Police
Department regarding a transaction he had entered with Cornell. Kapral, an investigator employed
by the Town of DeWitt Police Department, gathered voluntary sworn affidavits from former
customers and employees of Erie Gem and Watch. Cornell was arrested on April 5, 2006, and
charged with two counts of Grand Larceny in the Third Degree and a Scheme to Defraud in the
First Degree. The Onondaga County Grand Jury returned an indictment in September 2006,
charging Cornell in eight counts of Grand Larceny in the Fourth Degree and a Scheme to Defraud
in the First Degree. The indictment was subsequently dismissed on the ground that Cornell was not
properly afforded the opportunity to testify before the grand jury.

        We review an order granting summary judgment de novo, drawing all factual inferences in
favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d
Cir. 2008). “Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011)
(quoting Fed. R. Civ. P. 56(a)). We review for abuse of discretion the denial of leave for discovery




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under Rule 56(d) of the Federal Rules of Civil Procedure. Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir. 2003).1

         On appeal, Cornell principally contends that summary judgment was premature because he
was “deprived of the opportunity to prove his claims” by engaging in discovery. Pl.’s Br. 9. This
argument is without merit. The record makes clear that in the six months that elapsed between the
parties’ initial disclosures in November 2009 and the defendants’ motion for summary judgment in
May 2010, neither party served a discovery demand or noticed a deposition.2 Moreover, Cornell
failed to file an affidavit sufficiently explaining the need for additional discovery, as required by Rule
56(d) of the Federal Rules of Civil Procedure, which “is itself sufficient grounds to reject a claim that
the opportunity for discovery was inadequate.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1137
(2d Cir. 1994). On these facts, the District Court did not err in refusing Cornell’s request for an
extension of time to conduct additional discovery.

        Cornell further argues that the District Court erred by holding that the grand jury indictment
of Cornell established the existence of probable cause and therefore barred Cornell’s claim for
malicious prosecution. Under New York law, a grand jury indictment “creates a presumption of
probable cause that may only be rebutted by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct undertaken in bad faith.’” Savino v. City
of New York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 83
(1983)).3 In this case, Cornell argues that the presumption should not apply because “no indictment
was issued with respect to the criminal charges commenced by Defendant Kapral.” Pl.’s Br. 8. This
is incorrect. Following his April 2006 arrest, Cornell was charged with Grand Larceny in the Third
Degree and a Scheme to Defraud in the First Degree. The grand jury indictment subsequently
charged Cornell with a Scheme to Defraud in the First Degree and eight counts of Grand Larceny in
the Fourth Degree. Thus—contrary to Cornell’s assertion—the grand jury returned an indictment
against Cornell for one of the same charges (a Scheme to Defraud in the First Degree) that followed
from his April arrest.



         1
           Recent amendments to the Federal Rules of Civil Procedure (effective December 1, 2010) moved the relevant
provision to Fed. R. Civ. P. 56(d), without substantive change.
         2
           The informal e-mail communication between counsel did not conform to the requirements of Rule 30 of the
Federal Rules of Civil Procedure, which provides that a notice of deposition “must state the time and place of the
deposition and, if known, the deponent’s name and address.” Fed. R. Civ. P. 30(b)(1).
         3
           As the District Court correctly noted, “‘the presumption of probable cause arising from an indictment applies
only in causes of action for malicious prosecution and is totally misplaced when applied in false [arrest] cases.’” Cornell v.
Kapral, No. 09-cv-0387 (GTS/ATB), 2011 WL 94063 (N.D.N.Y. Jan. 11, 2011), at *10 n.16 (quoting Savino v. City of New
York, 331 F.3d 63, 75 (2d Cir. 2003)).

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        Cornell has failed to allege facts or adduce evidence demonstrating that the indictment was
procured by “‘fraud, perjury, the suppression of evidence,’” or other police misconduct. Id. And
the fact that the indictment was subsequently dismissed on procedural grounds does not vitiate the
presumption of probable cause that arises from the issuance of the indictment. For that reason, the
District Court correctly held that the prosecution against Cornell was supported by probable cause,
and therefore dismissed Cornell’s claim for malicious prosecution.

        Upon a review of the record and the arguments of counsel, we reject Cornell’s remaining
arguments, including his argument in the alternative that Kapral is not entitled to qualified immunity,
as lacking in merit. Accordingly, we affirm the judgment below substantially for the reasons stated
by the District Court.

                                          CONCLUSION

       We reject all of Cornell’s claims on appeal. Accordingly, the judgment of the District Court
is AFFIRMED.

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




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