16-3731
Smith v. The City of New York et al.


                                       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, at 40 Foley Square, in the City of New York, on
the 19th day of September, two thousand seventeen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         ROBERT D. SACK,
         PETER W. HALL,
                     Circuit Judges.
________________________________________________

KENNETH SMITH,

                                   Plaintiff-Appellant,

                                   v.                                          No. 16-3731

THE CITY OF NEW YORK, P.O. DANIEL PANTALEO,
SH. 13923, P.O. JOSEPH TORRES, P.O. CHRISTIAN
CATALDO, P.O. GREGORY HOWARD, KRISTEN
WHITE, P.O. PHILIP VACARINO, P.O. GREGORY
HERBERT, P.O. HENRY CHERNYAVSKY, SGT.
IGAZIO CONCA, LT. SCOTT SWEENEY, CAPTAIN
MARK MOLINARI, P.O., 1-5 JOHN DOE,

                     Defendants-Appellees.
_____________________________________________

For Plaintiff-Appellant:                   MICHAEL J. COLIHAN, Brooklyn, NY.
For Appellee:                     EMMA GRUNBERG (Richard Dearing and Claude S. Patton, on
                                  the brief), of Counsel, for Zachary W. Carter, Corporation
                                  Counsel of the City of New York, New York, NY.


       Appeal from the United States District Court for the Southern District of New York

(Ramos, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff Kenneth Smith appeals from a judgment of the United States District Court for

the Southern District of New York (Ramos, J.) granting summary judgment to the defendants-

appellees on Smith’s claim for false arrest brought under 42 U.S.C. § 1983. In February 2012,

Smith was arrested outside his apartment building for fifth-degree criminal possession of

marijuana and unlawful possession of marijuana. The charges were dismissed at Smith’s

arraignment and Smith subsequently initiated this action. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal. For the reasons

that follow, we affirm.

       We review a grant of summary judgment de novo, “view[ing] the facts in the light most

favorable to the non-moving party and resolv[ing] all factual ambiguities in its favor.” Coppola

v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). For summary judgment to be

warranted, the movant must “show[] that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       On appeal, Smith contends that the district court erred in ruling that the various police

reports and related documents submitted by the defendants in support of their motion for

summary judgment were admissible under the business-records or public records exceptions to

the hearsay rule. See Fed. R. Evid. 803. We review “a district court’s evidentiary rulings


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underlying a grant of summary judgment” for abuse of discretion. Porter v. Quarantillo, 722

F.3d 94, 97 (2d Cir. 2013). We need not resolve whether the documents fall within either the

business-records exception or the public-records exception to the hearsay rule because, in any

case, material relied on at summary judgment need not be admissible in the form presented to the

district court. Rather, so long as the evidence in question “will be presented in admissible form at

trial,” it may be considered on summary judgment. Santos v. Murdock, 243 F.3d 681, 683 (2d

Cir. 2001) (per curiam); see also Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At

the summary judgment stage, we do not focus on the admissibility of the evidence’s form. We

instead focus on the admissibility of its contents.”). Here, the documents in question could

readily be reduced to admissible form at trial through the testimony of the defendant officers as

to the underlying events in question. As for the statements made by the confidential informant on

which the officers relied in arresting Smith, they are not implicated by the hearsay rule because

they would not be offered for the truth of the matter asserted. See Fed. R. Evid. 801(c) (defining

hearsay as an out-of-court statement that “a party offers in evidence to prove the truth of the

matter asserted in the statement”). Rather, those statements would be offered for the fact that

they were made to the defendants and were thus relevant to the probable cause inquiry.

       Having resolved that the district court did not err in considering the documentary

evidence before it, we have no trouble concluding that the district court properly granted the

defendants’ motion. Probable cause to arrest “is a complete defense to an action for false arrest,

whether that action is brought under state law or under § 1983.” Amore v. Novarro, 624 F.3d

522, 536 (2d Cir. 2010) (internal quotation marks omitted). “Probable cause exists if at the time

of the arrest the facts and circumstances within the officer’s knowledge and of which he had

reasonably trustworthy information were sufficient to warrant a prudent man in believing that the



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suspect had committed or was committing an offense.” Id. (internal quotation marks and

alterations omitted). Here, the officers were acting on information from a reliable confidential

informant and had recovered fifteen bags of marijuana from what the informant had asserted was

Smith’s bedroom pursuant to a search warrant executed the day of the arrest. Smith contends that

there is no evidence demonstrating the specific knowledge of the arresting officers. Under the

collective knowledge doctrine, however, “an arrest . . . is permissible where the actual arresting

. . . officer lacks the specific information to form the basis for probable cause . . . but sufficient

information to justify the arrest . . . was known by other law enforcement officials initiating or

involved with the investigation.” United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001). The

arresting officers were therefore entitled to rely on the information Sergeant Chernyavsky

obtained from the informant and the results of the search of the apartment. These circumstances

were sufficient to create probable cause to arrest Smith for criminal possession of marijuana in

the fifth degree, N.Y. Penal Law § 221.10.

        Finally, the district court did not abuse its discretion in granting summary judgment to the

defendants despite Smith’s contemporaneous objection that insufficient discovery had taken

place for Smith to meaningfully oppose the defendants’ motion. While the Federal Rules provide

that a court “may” defer consideration of a motion for summary judgment (or deny it) if “a

nonmovant shows . . . it cannot present facts essential to justify its opposition,” Fed. R. Civ. P.

56(d), Smith has not made the required showing. See Miller v. Wolpoff & Abramson, L.L.P., 321

F.3d 292, 303 (2d Cir. 2003) (“[A] party resisting summary judgment on the ground that it needs

discovery in order to defeat the motion must submit an affidavit showing (1) what facts are

sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably

expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain



                                                   4
them, and (4) why the affiant was unsuccessful in those efforts.” (internal quotation marks

omitted)).

       We have considered all of the plaintiff’s arguments on this appeal and find in them no

basis for reversal. Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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