    12-4820-cv
    Retamozzo 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 TO 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 22nd
    day of January, two thousand fourteen.

    PRESENT:
                RALPH K. WINTER,
                GUIDO CALABRESI,
                REENA RAGGI,
                      Circuit Judges.
    _____________________________________

    ARMAND RETAMOZZO,
                 Plaintiff - Appellant,

                      v.                                        No. 12-4820-cv

    CITY OF NEW YORK, NEW YORK CITY POLICE
    DEPARTMENT, FREDERICK HARTWELL,
    DISTRICT ATTORNEY, INDIVIDUALLY AND IN
    HIS OFFICIAL CAPACITY, JOSE VARGAS,
    DETECTIVE, INDIVIDUALLY AND IN HIS
    OFFICIAL CAPACITY, EDWARD GONZALEZ,
    DETECTIVE, INDIVIDUALLY AND IN HIS
    OFFICIAL CAPACITY, JESSICA MEDOFF, IN HER
    OFFICIAL CAPACITY,
                    Defendants - Appellees,

    JOHN DOES, 1-10, INDIVIDUALLY AND IN
    THEIR OFFICIAL CAPACITY,
                      Defendants.
    ______________________________________
APPEARING FOR APPELLANT:                         WILBERT RAMOS, ESQ., Warwick, New York.

APPEARING FOR APPELLEES:                         KATHY H. CHANG, of Counsel, (Larry Sonnenshein,
                                                 of Counsel, on the brief), for Michael A. Cardozo,
                                                 Corporation Counsel of the City of New York, New
                                                 York, New York.

       Appeal from a judgment of the United States District Court for the Southern District of New

York (Alvin K. Hellerstein, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on October 12, 2012 is AFFIRMED.

       Plaintiff Armand Retamozzo, originally pro se, but represented by counsel at argument,

appeals an award of summary judgment dismissing his claims of false arrest and malicious

prosecution, brought pursuant to 42 U.S.C. § 1983, against the City of New York (“the City”) and

two New York City Police Detectives responsible for his arrest, Edward Gonzalez and Jose Vargas

(the “Detectives”).1 We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       We review awards of summary judgment de novo and will affirm only if the record reveals

no genuine issue as to any material fact and the moving party’s entitlement to judgment as a matter

of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sudler v. City of New

York, 689 F.3d 159, 168 (2d Cir. 2012). In making this determination, we resolve all ambiguities

and draw all permissible factual inferences in favor of the non-moving party. See Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Sudler v. City of New York, 689

F.3d at 168. Nevertheless, more than “a scintilla of evidence” is necessary to defeat summary


       1
         Retamozzo’s claims against other defendants were dismissed at the pleadings stage and
are not challenged on appeal.

                                                   2
judgment; the evidence must be sufficient to permit a reasonable finder of fact to hold in the non-

movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.

         Upon such review, we conclude that Retamozzo’s appeal is without merit substantially for

the reasons stated by the district court in its well-reasoned order. As the district court correctly

concluded, probable cause to arrest Retamozzo was established as a matter of law by facts that were

explicitly not disputed by Retamozzo. Insofar as he now urges otherwise, the disputes he identifies

are too trivial to raise a triable question of fact as to probable cause. For example, whether the

ecstacy pills underlying Retamozzo’s arrest were retrieved from “a bush,” “a set of bushes,” or

“hedges” in the general location of Retamozzo’s car is immaterial to determining probable cause and

would not allow a reasonable jury to return a verdict in his favor. See id. at 248.

         Furthermore, we decline to consider Retamozzo’s alternative challenge to the timeliness of

defendant’s summary judgment motion because it is well established that we will not consider an

issue raised for the first time on appeal. See Schnabel v.Trilegiant Corp., 697 F.3d 110, 130 (2d Cir.

2012).

         We have considered Retamozzo’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

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




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