10-541-cv
Cyrus 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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 5th day of December, two thousand eleven.
Present: ROBERT D. SACK,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________________________
EARL CYRUS, JR., as administrator of the Estate of Erskine Cyrus, Jr.,
Plaintiff-Appellant,
-v- No. 10-541-cv
CITY OF NEW YORK, CITY OF NEW YORK POLICE DEPARTMENT, SCOLLO, City of
New York Police Officer, CITY OF NEW YORK POLICE OFFICERS JOHN DOE and JANE
DOE, individually and in their capacities as New York City Police Officers,*
Defendants-Appellees.
____________________________________________________________
For Plaintiff-Appellee: VALERIE A. HAWKINS, ESQ., Hempstead, N.Y.
For Defendants-Appellants: VICTORIA SCALZO (Barry K. Myrvold, Stephen J. McGrath, on
the brief), for Michael A. Cardozo, Corporation Counsel of the
City of New York, New York, N.Y.
*
Defendant-Appellant Scollo is improperly named “Scoko” in the caption of this action.
The Clerk of the Court is directed to amend the caption as listed above.
Appeal from the United States District Court for the Eastern District of New York (Ross,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant appeals from a January 14, 2010 order of the United States District
Court for the Eastern District of New York (Ross, J.) denying plaintiff’s motion for
reconsideration of a February 9, 2009 order granting summary judgment to defendants on
plaintiff’s § 1983 claims for malicious prosecution. We assume the parties’ familiarity with the
facts and procedural history of the case.
Plaintiff1 purports to appeal from both the underlying summary judgment decision and
the denial of the motion for reconsideration. However, plaintiff did not file a timely notice of
appeal from the judgment that was entered on February 10, 2009 following the district court’s
summary judgment ruling. See Fed. R. App. P. 4(a)(1)(A). Cyrus’s counsel conceded at oral
argument that on March 2, 2009, Cyrus only sought an extension of time to file a motion for
reconsideration pursuant to a local rule, which the district court granted. Although the timely
filing of a motion under Federal Rule of Civil Procedure 59 will toll the time to file an appeal
until the entry of the order disposing of the Rule 59 motion, id. 4(a)(4)(A)(iv), an untimely
motion will not toll the filing period even where, as here, the district court elects to treat such a
motion as filed pursuant to Rule 60(b). See Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010)
(“An untimely motion for reconsideration is treated as a Rule 60(b) motion [for relief from a
1
While the motion for summary judgment was pending before the district court, plaintiff
Erskine Cyrus, Jr. died intestate, and Earl Cyrus, Jr. was subsequently substituted as plaintiff as
the administrator of Erskine Cyrus’s estate. For convenience, we refer to “plaintiff” throughout
without distinguishing between Erskine Cyrus and Earl Cyrus.
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judgment or order]. It is well settled that ‘[a]n appeal from an order denying a Rule 60(b)
motion brings up for review only the denial of the motion and not the merits of the underlying
judgment for errors that could have been asserted on direct appeal.’” (second alteration in
original) (citation omitted) (quoting Branum v. Clark, 927 F.3d 698, 704 (2d Cir. 1991))); see
also Fruit of the Loom, Inc. v. Am. Mktg. Enter., Inc. 192 F.3d 73, 75-77 (2d cir. 1999)
(recognizing that a district court’s local practice does not alter the strict twenty-eight day time
frame, Fed. R. App. P. 4(a)(4)(A), to move for reconsideration in order to toll the time for filing
a notice of appeal). Accordingly, plaintiff’s notice of appeal, which was filed on February 11,
2010, brings before us only the denial of the motion for reconsideration, which we review for
abuse of discretion, id. “When deciding the motion for reconsideration, the District Court was
deciding whether the movant had pointed to ‘controlling decisions or data that the court
overlooked’ — matters ‘that might reasonably be expected to alter the conclusion reached by the
court.’” Id. (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
In challenging the denial of his motion for reconsideration, plaintiff fails to point to any
case law or other relevant information that the district court overlooked. As he argued before the
district court, plaintiff contends that material factual disputes exist as to whether Officer Scollo
lacked probable cause to prosecute him2 for criminal possession of a weapon in the fourth degree
2
“To obtain recovery for malicious prosecution, a plaintiff must establish that a criminal
proceeding was commenced, that it was terminated in favor of the accused, that it lacked
probable cause, and that the proceeding was brought out of actual malice.” Martinez v. City of
Schenectady, 97 N.Y.2d 78, 84 (2001). “A criminal defendant has not obtained a favorable
termination of a criminal proceeding where the outcome is inconsistent with the innocence of the
accused . . . the absence of a conviction is not itself a favorable termination.” Id. And, the
probable cause element has been explained as requiring that the plaintiff to demonstrate a “lack
of probable cause for commencing the proceeding.” E.g. Manganiello v. City of New York, 612
F.3d 149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)).
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because the pistol was discovered during a search incident to an arrest that purportedly violated
plaintiff’s Fourth Amendment rights. The district court held on both the initial motion for
summary judgment and on the motion for reconsideration that the discovery of the weapon on
plaintiff’s person gave rise to probable cause to prosecute the weapons charge. Even assuming
that plaintiff’s arrest was unlawful, the district court concluded that the exclusionary rule does
not apply to § 1983 claims and therefore the gun would be admissible to determine probable
cause in the civil action. See, e.g., Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999)
(“No Fourth Amendment value would be served if [plaintiff], who illegally possessed firearms
and narcotics, reaps the financial benefit he seeks. [Plaintiff] has already reaped an enormous
benefit by reason of the illegal seizure and search to which he was subjected: his freedom,
achieved by the suppression of evidence obtained in violation of the Fourth Amendment.”
(footnote omitted)); cf. Jenkins v. City of New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007) (“The
district court correctly concluded that [the state court’s] finding that the lineup identifications
were ‘fruit of the poisonous tree’ is of no effect in this civil [§ 1983] proceeding.”); Jocks v.
Tavernier, 316 F.3d 128, 138 (2d Cir. 2003) (“Miranda violations, absent coercion, do not rise to
the level of constitutional violations actionable under § 1983. The appropriate remedy for
violations of Miranda rights is exclusion of the evidence at trial.” (citation omitted)). Plaintiff’s
arguments to the contrary amount to a disagreement with the district court’s conclusions with
respect to the case law that was already before it, and accordingly, the district court did not abuse
its discretion in denying reconsideration.
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We have considered plaintiff’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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