INDEX NO. 153321/2012

FILED: NEW YORK COUNTY CLERK 06/03/2012
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/03/2012

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------

X

DAVIN HERNANDEZ,

SUMMONS TO THE
COMPLAINT

Plaintiff,

Index: _____________________-2012

-againstTHE CITY OF NEW YORK; SGT. CHRISTOPHER
DIAKONIKOLAS, SHIELD #2199; P.O. MARCELINO ALVAREZ,
SHIELD #26122; P.O. CONSTANTINOS CHARIDEMOU,
SHIELD #27883; P.O. GEORGE ANNARELLA, SHIELD #13728;
LT. PAUL GAGLIO; P.O. JUAN BATTLE, SHIELD #12711;
DET. JOSHUA BERISH, SHIELD #29219; and, DET. WILLIAM
DUNN, SHIELD #6684; the individual defendant(s) sued
individually and in their official capacities,

Index Purchased: 6/4/ 2012

Defendants.
---------------------------------------------

X

To the above named defendants:
You are hereby summoned to answer the complaint in this action, and to serve a copy of
your answer or, if the complaint is not served with this summons, to serve a notice of appearance on the
plaintiff’s attorney within twenty days after service of this summons exclusive of the day of service where
service is made by delivery upon you personally within the state, or within thirty days after completion of
service where service is made in any other manner. In case of your failure to appear or answer, judgment will
be taken against you by default for the relief demanded in the complaint.
Dated:

Brooklyn, New York
June 4, 2012
MICHAEL P. KUSHNER, ESQ.
Attorney for Plaintiff
16 Court St., Suite 2901
Brooklyn, New York 11241
(212) 202-2634
By:
______________________________________
Michael P. Kushner, Esq.

Defendants’ addresses: City of New York, 100 Church Street, New York, New York 10007; Sgt. Diakonikolas,
P.O. Alvarez, P.O. Charidemou, P.O. Annarella, Lt. Gaglio, P.O. Battle, Det. Berish, and Det. Dunn, NYPD
23rd Precinct, 162 East 102nd Street, New York, New York 10029.

 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------

X

DAVIN HERNANDEZ,
COMPLAINT

Plaintiff,

Index No. _____________________________

-againstTHE CITY OF NEW YORK; SGT. CHRISTOPHER
DIAKONIKOLAS, SHIELD #2199; P.O. MARCELINO
ALVAREZ, SHIELD #26122; P.O. CONSTANTINOS
CHARIDEMOU, SHIELD #27883; P.O. GEORGE
ANNARELLA, SHIELD #13728; LT. PAUL GAGLIO;
P.O. JUAN BATTLE, SHIELD #12711; DET. JOSHUA
BERISH, SHIELD #29219; and, DET. WILLIAM DUNN,
SHIELD #6684; the individual defendant(s) sued
individually and in their official capacities,

Index Purchased ___________________

Electronic File Case
Jury Trial Demanded

Defendants.
----------------------------------------

X

Plaintiff, DAVIN HERNANDEZ, by and through his counsel, Michael O.
Hueston, Javier Solano, and Michael P. Kushner, upon information and belief, alleges as
follows:
PRELIMINARY STATEMENT
1.

This is a civil rights action in which plaintiff seeks relief for the violation

of plaintiff’s rights secured by 42 U.S.C. §§ 1983 and 1985(3); and the First, Fourth, Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution. The claims arise from
an incident that occurred on or about July 23, 2009. During the incident the City of New
York, and members of the New York City Police Department (“NYPD”) subjected plaintiff to,

 among other things, false arrest and imprisonment, excessive force, unlawful search and
seizure, retaliation for free speech, malicious prosecution, conspiracy, and implementation and
continuation of an unlawful municipal policy, practice, and custom.

Plaintiff seeks

compensatory and punitive damages, declaratory relief, an award of costs and attorney’s fees,
pursuant 42 U.S.C. §§ 1988, and such other and further relief as the Court deems just and
proper.
JURISDICTION & VENUE
2.

This action is brought pursuant to 42 U.S.C. §§ 1983 and 1985(3),

and the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution.
3.

Jurisdiction is conferred upon this Court by the aforesaid statutes and

28 U.S.C. §§ 1331 and 1343.
4.

Venue is proper here pursuant to 28 U.S.C. § 1391 because some of

the acts in question occurred in New York County, and the City of New York is subject to
personal jurisdiction in the Supreme Court, New York County.
PARTIES
5.

Plaintiff Davin Hernandez is a resident of the State of New York, New

6.

Defendant City of New York is a municipal corporation organized under

York County.

the laws of the State of New York, which violated plaintiffs’ rights as described herein.

2

 7.

At all times relevant, defendant City of New York maintained a police

department known as the NYPD.
8.

Defendant Sgt. Christopher Diakonikolas is a New York City Police

Officer, assigned Shield #2199, employed with the 23rd Precinct located in New York, New
York, or other as yet unknown NYPD assignment who violated plaintiff’s rights as descried
herein.
9.

Defendant P.O. Marcelino Alvarez is a New York City Police Officer,

assigned Shield #26122, employed with the 23rd Precinct located in New York, New York, or
other as yet unknown NYPD assignment who violated plaintiff’s rights as descried herein.
10.

Defendant P.O. Constantinos Charidemou is a New York City Police

Officer, assigned Shield #27883, employed with the 23rd Precinct located in New York, New
York, or other as yet unknown NYPD assignment who violated plaintiff’s rights as descried
herein.
11.

Defendant P.O. George Annarella is a New York City Police Officer,

assigned Shield #13728, employed with the 23rd Precinct located in New York, New York, or
other as yet unknown NYPD assignment who violated plaintiff’s rights as descried herein.
12.

Defendant Lt. Paul Gaglio is a New York City Police Officer, employed

with the 23rd Precinct located in New York, New York, or other as yet unknown NYPD
assignment who violated plaintiff’s rights as descried herein.

3

 13.

Defendant P.O. Juan Battle is a New York City Police Officer, assigned

Shield #12711, employed with the 23rd Precinct located in New York, New York, or other as
yet unknown NYPD assignment who violated plaintiff’s rights as descried herein.
14.

Defendant Det. Joshua Berish is a New York City Police Officer,

assigned Shield #29219, employed with the 23rd Precinct located in New York, New York, or
other as yet unknown NYPD assignment who violated plaintiff’s rights as descried herein.
15.

Defendant Det. William Dunn is a New York City Police Officer,

assigned Shield #6684, employed with the 23rd Precinct located in New York, New York, or
other as yet unknown NYPD assignment who violated plaintiff’s rights as descried herein.
16.

The individual defendants were acting under color of state law and in

their capacities as New York City Police Officers at all relevant times herein. The individual
defendants are sued in their individual and official capacities.
STATEMENT OF FACTS
17.

On July 23, 2009, at and in the vicinity of 220 East 102nd Street, New

York, New York, the 23rd Precinct, located in New York, and Manhattan Central Booking,
several police officers operating from the 23rd Precinct, including upon information and belief,
defendants Sgt. Christopher Diakonikolas, P.O. Marcelino Alvarez, P.O. Charidemou, P.O.
Annarella, Lt. Gaglio, P.O. Battle, Det. Berish, Det. Dunn, and other as yet unknown police
officers (collectively referred to as the “individual defendants”), at times acting in concert and
at times acting independently, committed the following illegal acts against the plaintiff.

4

 18.

On July 23, 2009, at approximately 11:50 p.m., plaintiff was lawfully in

front of 220 East 102nd Street when, without consent, an arrest warrant, a lawful search
warrant, probable cause, or reasonable suspicion that plaintiff (or any third person) had
committed a crime, the individual defendants falsely arrested and imprisoned plaintiff.
19.

Once the individual defendants detained, plaintiff was not free to

disregard their questions, or walk way or leave the scene.
20.

During the arrest of plaintiff, the individual defendants committed

excessive force against him, by maliciously, gratuitously, and unnecessarily pointing a firearm
at him, grabbing plaintiff, and placing excessively tight handcuffs on plaintiff’s wrists. Those
defendants who did not touch plaintiff, witnessed these acts, but failed to intervene and
protect plaintiff from this conduct.
21.

The individual defendant officers did not have an objective and/or

reasonable basis to use any degree of force against plaintiff, since plaintiff was unarmed,
compliant, did not resist arrest, and the officers used force against plaintiff without informing
plaintiff that he was being arrested or detained.
22.

Plaintiff was physically injured as a result of the excessive use of force,

and suffered numbness and marks to his wrists.
23.

Plaintiff asked the individual defendants to loosen the cuffs, but they did

not.

5

 24.

Thereafter, the individual defendants transported plaintiff to the 23rd

Precinct for arrest processing.
25.

Plaintiff was transferred to Manhattan Central Booking where he was

subjected to depraved, filthy, and inhumane conditions of confinement.
26.

The guards and personnel assigned to Central Booking looked the other

way at these dangerous conditions, and ignored arrestees who sought their assistance.
27.

While plaintiff was incarcerated at the 23rd Precinct and Central Booking

awaiting arraignment, the individual defendants, pursuant to a conspiracy, falsely and
maliciously told the New York County District Attorney’s Office that plaintiff had committed
various crimes; based upon the false statements of the individual defendants, the New York
County District Attorney’s Office chose to prosecute plaintiff under docket No.
2009NY049976.
28.

Thereafter, the individual defendants, testified before a grand jury

proceeding and pursuant to a conspiracy, falsely and maliciously told the grand jury that
plaintiff had committed various crimes. Based upon the false statements of the individual
defendants, the grand jury chose to indict plaintiff under Indictment # 03487-2009.
29.

To cover up their misconduct, the individual defendants intentionally,

knowingly and purposely provided false statements and information to cause plaintiff to be
prosecuted.
30.

The

individual

defendants

6

initiated

the

above-stated

malicious

 prosecution(s) against plaintiff.
31.

The individual defendants lacked probable cause to believe the above-

stated malicious prosecution(s) could succeed.
32.

The individual defendants acted with malice to cover up their illegal and

unconstitutional conduct by initiating the above-stated malicious prosecution(s).
33.

The above-stated malicious prosecution(s) caused a sufficient post-

arraignment liberty restraint on plaintiff.
34.

The above-stated malicious prosecution terminated in plaintiff’s favor

when the case against plaintiff was dismissed in its entirety after an acquittal from a jury on
October 5, 2010.
35.

Defendant Lt. Gaglio supervised the other defendant police officers

concerning the above-mentioned unlawful acts against plaintiff, and approved the unlawful
acts against plaintiff.
36.

The aforesaid events are not an isolated incident. Defendant City of

New York is aware (from lawsuits, notices of claim and complaints filed with the Civilian
Complaint Review Board) that many of the NYPD’s officers are insufficiently trained on the
proper way investigate, use force, and search arrestees or detainees, and treat innocent
and/or uninvolved individuals who are found at an incident scene and/or investigation
location.

7

 37.

Defendant City of New York is further aware that its NYPD maintains a

quota system that improperly awards credit to officers who arrest individuals regardless of the
actual guilt of the individual arrested. Officers who operate within their authority and as a
result arrest fewer individuals are unnecessarily punished for their lack of productivity. This
policy and practice caused the individual defendants to arrest and prosecute the plaintiff in
this action.
38.

Defendant City of New York is further aware that such improper training

has often resulted in a deprivation of civil rights. Despite such notice, City of New York has
failed to take corrective action. This failure caused the defendants in the present case to
injure plaintiff, violate the law, and violate the plaintiff’s rights.
39.

Moreover, defendant City of New York was aware prior to the incident

that the individual defendants lacked the objectivity, temperament, maturity, discretion, and
disposition to be employed. Despite such notice, defendant has retained these individuals,
and failed to adequately train and supervise them.
40.

At all times defendant City of New York, by the NYPD, and its agents,

servants and/or employees, carelessly, negligently and recklessly trained the individual
defendants for the position of police and/or correction officers.
41.

At all times, defendant City of New York, by the NYPD, and its agents,

servants and/or employees, carelessly, negligently and recklessly supervised, controlled,
managed, maintained and inspected the activities of the individual defendants.

8

 42.

At all times, defendant City of New York, by the NYPD, and its agents,

servants and/or employees caused, permitted and allowed the individual defendants to act in
an illegal, unprofessional, negligent and/or deliberate manner in carrying out their official
duties and/or responsibilities.
43.

At all times, defendant City of New York, by the NYPD, and its agents,

servants and/or employees carelessly, negligently and recklessly retained in its employ, the
individual defendants, who were clearly unfit for their positions, who acted in an illegal,
unprofessional, negligent and/or deliberate manner in carrying out their official duties and/or
responsibilities.
44.

The occurrence(s) and injuries sustained by plaintiff, were caused solely

by, and as a result of the malicious, reckless, negligent, and/or intentional conduct of the
defendant City of New York and its agents, servants and/or employees, as set forth above,
without provocation on the part of the plaintiff contributing thereto, specifically, the negligent
and reckless manner in which said defendant hired, trained, supervised, controlled, managed,
maintained, inspected and retained the individual defendants.
45.

The individual defendants acted in concert committing the above-

described illegal acts toward plaintiff.
46.

Plaintiff did not resist arrest at any time during the above incidents.

9

 47.

Plaintiff did not violate any law, regulation, or administrative code;

commit any criminal act; or act in a suspicious or unlawful manner prior to or during the
above incidents.
48.

The individual defendants did not observe plaintiff violate any law,

regulation, or administrative code; commit any criminal act; or act in a suspicious or unlawful
manner prior to or during the above incidents.
49.

At no time prior to, during or after the above incidents were the

individual defendants provided with information, or in receipt of a credible or an objectively
reasonable complaint from a third person, that plaintiff had violated any law, regulation, or
administrative code; committed any criminal act; or acted in a suspicious or unlawful manner
prior to or during the above incidents.
50.

Defendants acted under pretense and color of state law and their

individual and official capacities and within the scope of their employment. Said acts by said
defendants were beyond the scope of their jurisdiction, without authority or law, and in abuse
of their powers, and said defendants acted willfully, knowingly, and with the specific intent to
deprive plaintiff of his/her rights.
51.

As a direct and proximate result of defendants’ actions plaintiff

experienced personal and physical injuries, pain and suffering, fear, an invasion of privacy,
psychological pain, emotional distress, mental anguish, embarrassment, humiliation, and
financial loss.

10

 52.

The plaintiff is also entitled to receive punitive damages from the

individual defendants because their actions were motivated by extreme recklessness and
indifference to the plaintiff’s rights.
FIRST CLAIM
(FALSE ARREST UNDER FEDERAL LAW /
UNLAWFUL SEARCH AND SEIZURE)
53.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
54.

Defendants falsely arrested plaintiff without either consent, an arrest

warrant, a lawful search warrant, probable cause, or reasonable suspicion that plaintiff (or any
third person) had committed a crime.
55.

Defendants unlawfully searched plaintiff and seized him after their

unlawful search returned no results for contraband or firearms.
56.

Accordingly, defendants are liable to plaintiff under for false arrest and

unlawful search and seizure under 42 U.S.C. § 1983; and the Fourth and Fifth Amendments
to the United States Constitution.
SECOND CLAIM
(EXCESSIVE FORCE UNDER FEDERAL LAW)
57.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.

11

 58.

The individuals use of force upon plaintiff, as described herein, and the

individual defendants’ failure to intervene, was objectively unreasonable and caused plaintiff
pain and injury.
59.

Accordingly, defendants are liable to plaintiff for using unreasonable and

excessive force 42 U.S.C. § 1983; and the Fourth and Fifth Amendments to the United
States Constitution.
THIRD CLAIM
(VIOLATING PLAINTIFF’S RIGHT TO FREE SPEECH UNDER FEDERAL
LAW)
60.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
61.

Plaintiff exercised free speech during the incident by, among other

things, peacefully telling the individual defendants that he had not committed a crime, and
that the officers were mistreating plaintiff.
62.

Plaintiff’s use of free speech was a motivating factor in defendants’

decision to arrest, use force upon, and prosecute him.

Accordingly, defendants are liable

to plaintiff under the First Amendment to the United States Constitution for violating
plaintiff’s right to free speech.

12

 FOURTH CLAIM
(FAILURE TO SUPERVISE)
63.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
64.

The supervisor defendants are liable to plaintiff because they supervised

subordinate individual defendants concerning above-mentioned unlawful acts against plaintiff,
and approved their unlawful acts.
FIFTH CLAIM
(DENIAL OF THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL)
65.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
66.

Defendants are liable to plaintiff because they created false information

likely to influence a jury’s decision and forwarded that information to prosecutors, violating
plaintiff’s constitutional right to a fair trial, and the harm occasioned by such an
unconscionable action is redressable in an action for damages under the Sixth Amendment to
the United States Constitution and 42 U.S.C. § 1983.
SIXTH CLAIM
(42 U.S.C. § 1983 CONSPIRACY)
67.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.

13

 68.

Defendants are liable to plaintiff because they agreed to act in concert

to inflict an unconstitutional injury; and committed an overt act done in furtherance of that
goal causing damage to plaintiff.
SEVENTH CLAIM
(42 U.S.C. § 1985 CONSPIRACY)
69.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
70.

Defendants are liable to plaintiff because they conspired against plaintiff

based on racial or other invidiously discriminatory animus for the purpose of depriving plaintiff
of equal protection of the privileges and immunities under the law, and committed an act in
furtherance of the conspiracy, which injured plaintiff.
EIGHTH CLAIM
(MALICIOUS PROSECUTION)
71.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
72.

Defendants are liable to plaintiff for malicious prosecution because,

pursuant to a conspiracy and acting with malice, the defendants initiated a malicious
prosecution against plaintiff by knowingly, intentionally, and maliciously providing false
statements to prosecutors and/or the criminal court(s), which alleged plaintiff had committed
various crimes; and based upon these false statements, prosecutors prosecuted plaintiff until
the case against plaintiff were dismissed in their entirety.
14

 73.

The individual defendants lacked probable cause to believe the above-

stated malicious prosecution(s) could succeed.
74.

The individual defendants acted to cover up their illegal and

unconstitutional conduct by initiating the above-stated malicious prosecution(s).
75.

The above-stated malicious prosecution(s) caused a sufficient post-

arraignment liberty restraint on plaintiff.
NINTH CLAIM
(FEDERAL MONELL CLAIM AGAINST THE CITY OF NEW YORK)
76.

Plaintiff repeats and realleges all the foregoing paragraphs as if the same

were fully set forth at length herein.
77.

The City of New York, through a policy, practice and custom, directly

caused the constitutional violations suffered by plaintiff.
78.

Upon information and belief, the City of New York, at all relevant times,

was aware that the defendants are unfit officers who have previously committed the acts
alleged herein, have a propensity for unconstitutional conduct, or have been inadequately
trained.
79.

Nevertheless, the City of New York exercised deliberate indifference by

failing to take remedial action. The City failed to properly train, retrain, supervise, discipline,
and monitor the defendants and improperly retained and utilized them.

Moreover, upon

information and belief, the City of New York failed to adequately investigate prior complaints
filed against the defendants.
15

 80.

In addition, the following are City policies, practices and customs:
(a)

arresting innocent individuals, based on a pretext, in

order to meet productivity goals;
(b)

fabricating evidence against individuals;

(c)

using excessive force on individuals;

(d)

retaliating against individuals who engage in free speech.

WHEREFORE, plaintiff demands a jury trial and the following relief jointly and severally
against the defendants:
(a)

Compensatory damages in an amount to be determined by a jury;

(b)

Punitive damages from the individual defendants in an amount to be

determined by a jury;
(c)

Costs, interest and attorney’s fees, pursuant to 42 U.S.C. § 1988; and

(d)

Such other and further relief as this Court may deem just and proper,

including injunctive and declaratory relief.
DATED:

Brooklyn, New York
June 4, 2012
MICHAEL P. KUSHNER, ESQ.
Attorney for Plaintiff
16 Court St., Suite 2901
Brooklyn, New York 11241
(212) 202-2634
By:
/s
______________________________________
Michael P. Kushner, Esq.
16