Assumed Room Temperature Malthe Thomsen, New York City, New York (arrested June 2014) [coerced confession of sex abuse]

From https://www.cbc.ca/passionateeye/features/full-transcript-of-a-false-confession:

Malthe Thomsen: False Confession
In False Confessions attorney Jane Fisher-Byrialsen describes one of her cases:

"In the Malthe Thomsen case we had, he was a Danish intern, who came...He was a Danish college student studying to become a teacher, and he came and interned at IPS, which is a really, you know, like a 20,000 dollar a year preschool up by the UN, and...

It was a co-teacher who accuses Malthe of molesting all the kids in the class. And he's on the cover of the Daily News. They take his Facebook profile picture; it's him with his niece on his shoulders. So they put that on the cover of the Daily News and write "Sex Monster".

And they go arrest him in the morning and bring him into the station, and they have a female cop interrogate him.

She tells him, "Well, you know, we have video of you molesting these kids." Which, they had videos, but he's not molesting anybody. So they had...

This woman who accused him had taken videos of him in the classroom interacting normally with children. And so, either the cops hadn't watched it, or they had watched it and were blatantly lying to him.

But there was no video of him molesting kids. But he hears that, right? And he thinks, "Holy (expletive deleted)! Well, if I'm on video, I must have done it." They let him continue to believe this lie that he's caught red-handed on tape molesting these kids. And I think that that... You know, he started, you could tell through the whole, when they finally are recording him, he's doubting himself. You know, he's wondering, "Did I do this?"


Malthe Thomsen was picked up by the cops for questioning at 6 a.m. The cameras weren't turned on until more than six hours later.


In the interrogation video Rachel Ferrari, assistant district attorney in New York County, presents Malthe Thomsen's confession to the camera.

This morning i had a rude awakening. I realised that
i had taken a kids hand to the genital area of my
shorts, and taken something good from it.
I am horrified by this. Hurting/taking advantage of
kids as allways been strongly condemned by me, as the
worst thing a person could do. So for me to have done
anything like that fills me with great remorse and
anger at myself. I didn't think this was a part of me.
the only comfort i have was that it was found out this
early, and that i haven't done anything else. Nor have i ever
thought of doing anything else. But i also didn't
think of this and this is more than horrible enough.
I want to deal with this part of me, however small or
big it may be, i won't to do whatever necessary.
I don't think about kids of any gender in a sexual way
really, but obviously my behavior means that there is
something to be dealt with, and i sincerely want to do this.
Specifically this is about several children. I took their hand to my
genitals and it felt good. I never allowed it to go further. I didn't prefer any
gender and i don't remember who the individuals were specifically.


Malthe S. L. Thomsen 06-27-14


Also, this has only taken place in this classroom at IPS, the blue
room, not anywhere else in the
US or in Denmark.


Malthe S. L. Thomsen​

 

From https://www.leagle.com/decision/infdco20160212b03:

THOMSEN v. CITY OF NEW YORK
No. 15cv2668 (DLC).

MALTHE THOMSEN, Plaintiff, v. CITY OF NEW YORK; WILLIAM BRATTON, Commissioner of the New York City Police Department, in his individual and official capacities; Detective NELA GOMEZ, in her individual and official capacities; Assistant District Attorney RACHEL FERRARI, and Assistant District Attorney NICOLE BLUMBERG, in their individual and official capacities; MARIA ANGELIKI KEFALAS (a/k/a Mariangela Kefalas/Gigi Kefalas), in her individual capacity, Defendants.

United States District Court, S.D. New York.

February 11, 2016.

Attorney(s) appearing for the Case
Malthe Thomsen, Plaintiff, represented by Alissa Marla Boshnack , Fisher & Byrialsen PLLC, David N. Fisher , Fisher & Byrialsen PLLC, Jane H Fisher-Byrialsen , Fisher & Byrialsen & Kreizer, PLLC & Kaitlin Fleur Nares , Fisher & Byrialsen PLLC.

City of New York, Defendant, represented by Qiana Charmaine Smith , NYC Law Department, Office of the Corporation Counsel.

William Bratton, Defendant, represented by Qiana Charmaine Smith , NYC Law Department, Office of the Corporation Counsel & Qiana Charmaine Smith , NYC Law Department, Office of the Corporation Counsel.

Detective Nela Gomez, Defendant, represented by Qiana Charmaine Smith , NYC Law Department, Office of the Corporation Counsel.

Nela Gomez, Defendant, represented by Qiana Charmaine Smith , NYC Law Department, Office of the Corporation Counsel.

Rachel Ferrari, Defendant, represented by Patricia Jean Bailey , New York County District Attorney's Office & Elizabeth Norris Krasnow , New York City District Attorney's Office.

Nicole Blumberg, Defendant, represented by Patricia Jean Bailey , New York County District Attorney's Office, Elizabeth Norris Krasnow , New York City District Attorney's Office, Patricia Jean Bailey , New York County District Attorney's Office & Elizabeth Norris Krasnow , New York City District Attorney's Office.

Maria Angeliki Kefalas, Defendant, represented by Lawrence Scott Wasserman , Gordon & Silber, P.C. & Russell Louis Porter , Xie & Associates, P.L.L.C..

OPINION AND ORDER
DENISE COTE, District Judge.

This case arises from the arrest and prosecution of Malthe Thomsen ("Thomsen"). Thomsen was prosecuted for sexually abusing children while he was a teacher at the International Preschool ("IPS"). He alleges that Mariangela Kefalas ("Kefalas"), a colleague of his, intentionally made the false report on which his arrest and prosecution were based and that false statements that government officials made to him about the strength of the evidence against him caused him to give a false confession. Each of the defendants filed a motion to dismiss the complaint in its entirety. For the reasons that follow, the motion to dismiss is granted with respect to the DA Defendants. The City Defendants' motion to dismiss is granted in part. Kefalas's motion to dismiss is denied.

Background
These facts are taken from the complaint, its attached exhibits, or documents integral to the complaint. Thomsen brought this suit against three sets of defendants. The first is the City Defendants, which include the City of New York ("City"), William Bratton ("Bratton"), and Detective Nela Gomez ("Gomez") of the New York Police Department ("NYPD"). The second is the District Attorney ("DA") Defendants, which include Assistant DA Rachel Ferrari ("Ferrari") and Assistant DA Nicole Blumberg ("Blumberg"). The last defendant is Kefalas, who is being sued in her private capacity under state law.

Thomsen is a 23-year-old man from Denmark who interned at IPS for a semester. He was assigned to work in the "Blue Room" alongside three teachers, including Kefalas. Kefalas had many problems during her employment at IPS. Specifically, she received negative evaluations indicating that she was defensive, did not work well with others, and could not handle criticism. More importantly, the complaint alleges that Kefalas made numerous false reports against other teachers at IPS.

On May 30, 2014, Kefalas wrote an email to IPS that accused Thomsen of sexually abusing children at the school. The complaint alleges that Kefalas wrote the email to seek revenge on her colleagues for her negative reviews and her demotion. Kefalas purportedly said to an IPS administrator that she was "against" Thomsen and complained that he "unfriended" her on Facebook. The complaint alleges that Kefalas accused Thomsen of sexual abuse for malicious reasons and knew that her claim was false.

On June 2, 2014, IPS's Chief Administrative Officer met with Kefalas and initiated an investigation. IPS investigated Kefalas's complaint by conducting undisclosed observations of Thomsen and interviewing several IPS staff members. Each IPS staff member who was interviewed said that Kefalas's allegations were false and provided positive reviews of Thomsen's work. On June 5, Kefalas told IPS staff that she had video recordings of the alleged sexual abuse. She refused to turn over this evidence, however, and was fired for insubordination that same day. IPS closed its investigation and determined that Thomsen had not sexually abused children.

On June 10, 2014, Kefalas reported the same allegations against Thomsen to the NYPD. Early in the morning of June 27, Gomez and another officer woke Thomsen in his apartment and told him to come to the police station. Gomez took Thomsen to a locked room and read him his Miranda rights, which he waived. Gomez then interrogated Thomsen in a manner that, according to the complaint, was consistent with the policies of the NYPD and included the "false evidence ploy," minimization, and promises of leniency if Thomsen cooperated. For example, Gomez told Thomsen that she would wait with him all day until he admitted to abusing children and threatened that the DA would be harsh with him if he did not confess to the allegations. Moreover, Gomez lied when she told Thomsen that she had seen a video of him taking children's hands and placing them on his genitals. Gomez even used gestures to demonstrate what she claimed to have seen in the video of the abuse; she had in fact seen no such video. Gomez did not record Thomsen's interrogation. Thomsen alleges that there is a de facto policy or custom of not recording police interrogations, and this policy leads to false confessions.

Thomsen proclaimed his innocence during the initial portion of the interrogation. He also told Gomez about the IPS investigation that was resolved in his favor and about the issues with Kefalas's behavior. In particular, Thomsen told Gomez that Kefalas refused to produce video evidence of the alleged abuse during IPS's investigation. Gomez left Thomsen alone for a while, a tactic meant to create feelings of isolation and hopelessness that often leads to false confessions.

Gomez returned and took a written statement from Thomsen that largely memorialized the information that she gave him. Throughout the long interrogation, Gomez used allegedly manipulative tactics to make Thomsen believe that he had abused children and repressed those memories. At the time he completed a written confession to criminal conduct, Thomsen had no actual memory of abusing children and relied on Gomez's representation that a video of the conduct existed. After Thomsen signed the statement, Gomez asked him to add the specific detail that the abuse took place only in his classroom at IPS. Thomsen complied. Gomez further told Thomsen that he had to repeat what he said in the written statement when he spoke to the DA.

At about 11:30 a.m. on June 27, Gomez took Thomsen to the DA's office. Gomez allegedly spoke with Ferrari before Ferrari conducted a recorded video interview with Thomsen. Gomez was present at the recorded interview. In response to Ferrari's questions, Thomsen indicated that his answers were based on his interview with Gomez and the information she had given him about Kefalas's video of the alleged abuse. Ferrari did not correct Thomsen's belief that Kefalas took videos of him putting children's hands on his genitals.1 Moreover, Thomsen continued to state during the interview that he did not remember touching any children inappropriately. After giving his statement to Ferrari, Thomsen was taken back to the police station. Gomez then informed Thomsen that Ferrari had instructed her to arrest him. Thomsen was ultimately arrested at 4:10 p.m.

On June 29, 2014, Thomsen was arraigned on fifteen counts of Sexual Abuse in the First Degree pursuant to NYPL § 130.65(3). Ferrari told Thomsen's attorneys that his case would be presented to a grand jury on July 3; instead, Ferrari took the case to a preliminary hearing. According to the complaint, Ferrari chose to pursue a preliminary hearing rather than a grand jury indictment because she had no evidence that corroborated Thomsen's confession; such evidence would be required for a grand jury to indict him, but was not necessary at a preliminary hearing. Ferrari chose not to call Kefalas as a witness at the preliminary hearing. The evidence presented at the preliminary hearing consisted of the videotaped interview with Ferrari and Ferrari's testimony about that interview.

On July 9, 2014, Thomsen posted bail and was released from jail after thirteen days in custody. On November 13, the DA's office moved to dismiss the charges against Thomsen because the investigation did not produce any reliable evidence that corroborated Thomsen's confession. Kefalas did take videos in connection with her complaint, but those videos do not show that Thomsen touched children inappropriately. As described in the complaint, Gomez's decision to lie about the evidence she had against Thomsen led him to confess to a serious crime that it is now evident he did not commit. As a foreign student who is unfamiliar with the ways of our criminal justice system, Thomsen was particularly vulnerable to this interrogation technique. Moreover, law enforcement officials did not pause sufficiently to consider the possibility that Thomsen's weak and hypothetically-phrased confession was false.

As a result, Thomsen was exposed to psychological and physical trauma. He was incarcerated for thirteen days at Rikers Island. He was subjected to a great deal of negative and sensationalist press coverage. His name is now linked with these horrible events. Thus, according to the complaint, Thomsen's arrest and continued prosecution in light of an investigation that uncovered no reliable evidence against him violated his rights.

Thomsen brings several causes of action based on these events. Against the individual City and DA defendants, Thomsen alleges: (1) violations of the Fourth, Fifth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983; (2) conspiracy to violate his rights under the Fourteenth Amendment pursuant to 42 U.S.C. §§ 1983 and 1985(3); and (3) state law claims for malicious prosecution, intentional infliction of emotional distress, and violation of unspecified rights under the New York State Constitution.2 Against the City of New York, Thomsen brings a Monell claim under 42 U.S.C. § 1983 for violations of his rights by both the ADA's and the police officers involved in his arrest and prosecution. Against Kefalas, Thomsen alleges the following state law claims: (1) intentional infliction of emotional distress; (2) injurious falsehood; (3) libel; (4) slander; (5) negligent infliction of emotional distress; (6) negligence; and (7) prima facie tort. Thomsen agreed to dismiss the following claims voluntarily: (1) claims against Bratton;

(2) claims that his Sixth Amendment right to counsel was violated; (3) equal protection claims under the Fourteenth Amendment and § 1983; (4) claims related to his registration on the Child Abuse and Maltreatment Registry; and (5) his claim that his constitutional right to familial association was violated.

The complaint was filed on April 6, 2015. The DA Defendants filed the first motion to dismiss on June 15. The City Defendants filed an answer on June 15. It took Kefalas some time to secure an attorney. An initial conference was held on July 10. At that conference, the Court granted Thomsen an opportunity to amend his complaint and denied the DA Defendants' motion to dismiss as moot. On July 31, Thomsen filed an amended complaint. On September 3, the DA Defendants, Kefalas, and the City Defendants each filed a separate motion to dismiss the amended complaint. Those motions became fully submitted on December 7, December 11, and December 14, respectively.

Discussion
When deciding a motion to dismiss under Rule 12(b), Fed. R. Civ. P., a court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009). "To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient facts which, taken as true, state a plausible claim for relief." Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("[A] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face."). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Parkcentral Global Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208 (2d Cir. 2014) (citation omitted).

In deciding a motion to dismiss, the court considers "any written instrument attached to the complaint as an exhibit or any statements or documents incorporated in it by reference." Stratte-McClure v. Morgan Stanley, 776 F.3d 94, 100 (2d Cir. 2015) (citation omitted). Thomsen has attached several exhibits to his complaint, including excerpts from transcripts of state court proceedings, his written confession, and a video of his interview with Ferrari.

Thomsen's complaint contains both federal and state law claims against each of the defendants. Supplemental jurisdiction exists over state law claims "that are so related to claims in the action within [the Court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). In other words, federal courts may assert supplemental jurisdiction over claims that "derive from a common nucleus of operative fact." Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (citation omitted). A district court may "exercise supplemental jurisdiction over state law claims even where it has dismissed all claims over which it had original jurisdiction." Parker v. Della Rocco, 252 F.3d 663, 666 (2d Cir. 2001) (citation omitted); see also Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 102 (2d Cir. 2014). To decide whether to do so, the court must weigh "the traditional `values of judicial economy, convenience, fairness, and comity.'" Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).

Here, the state law claims may be resolved without considering any novel or complex questions of state law. See Carver v. Nassau Cnty. Interim Fin. Auth., 730 F.3d 150, 153-54 (2d Cir. 2013). Convenience and judicial economy weigh in favor of resolving the state law claims as part of this litigation.

I. DA Defendants Ferrari and Blumberg
The DA Defendants are absolutely immune from Thomsen's federal and state law claims. It is appropriate to consider claims of absolute or qualified immunity at the motion to dismiss stage. See Drimal v. Tai, 786 F.3d 219, 225 (2d Cir. 2015). Absolute immunity bars a civil suit against a prosecutor for functions that are "intimately associated with the judicial phase of the criminal process." Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (citation omitted). "These functions include deciding whether to bring charges and presenting a case to a grand jury or a court, along with tasks generally considered adjunct to those functions, such as witness preparation." Id. "This immunity attaches to . . . conduct preliminary to the initiation of a prosecution and actions apart from the courtroom." Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (citation omitted). Absolute immunity for prosecutors is thus "broadly defined." Id. (citation omitted).

Courts apply a "functional approach" in determining whether absolute immunity attaches. Simon, 727 F.3d at 171 (citation omitted). "[P]rosecutors receive only qualified immunity when performing administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." Id. at 172 (citation omitted); Morse v. Fusto, 804 F.3d 538, 548 (2d Cir. 2015) (no absolute immunity for activities "normally performed by a detective or a police officer" (citation omitted)). Accordingly, a prosecutor is absolutely immune when authorizing an arrest, but is entitled only to qualified immunity for executing an arrest warrant. Simon, 727 F.3d at 172; Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1987). Analyzing a claim for absolute immunity "requires [courts] to view the relevant circumstances as would a reasonable official in the claimant's position." Giraldo, 694 F.3d at 165. The "relevant question, therefore, is whether a reasonable prosecutor would view the acts challenged by the complaint as reasonably within the functions of a prosecutor." Id. at 166. This is true "even in the face of a complaint's allegations of malicious or corrupt intent behind the acts." Id.

The DA Defendants are entitled to absolute immunity for interviewing and prosecuting Thomsen. Ferrari interviewed him, which is part of her core function in deciding whether to bring charges. See id. Moreover, the decision to hold a preliminary hearing instead of seeking a grand jury indictment is central to prosecutorial discretion.

Thomsen's arguments to the contrary are unavailing. Thomsen primarily argues that the DA Defendants are not absolutely immune because their actions were investigatory and therefore were outside the scope of their core judicial functions. In so arguing, Thomsen points to the fact that Ferrari's interview with Thomsen took place before he was arrested, and that Ferrari and Gomez communicated with each other immediately before Thomsen's arrest. These facts, Thomsen argues, show that the interview constituted pre-arrest investigative activity more properly considered a function of the police.3 This argument is misplaced because "evaluating evidence and interviewing witnesses" falls on the "absolute immunity side of the line, leaving searching for the clues and corroboration that might lead to a recommendation for an arrest on the qualified immunity side." Id. (citation omitted). Indeed, "good prosecutors may — usually should — perform acts reasonably characterized as investigative at all phases of a criminal proceeding." Id. Thus, "[v]iewed through the eyes of a reasonable prosecutor," the DA Defendants' actions "were well within their legitimate functions as prosecutors." Id. at 167.

II. Defendants Gomez and the City of New York
The City Defendants primarily argue that Thomsen's suit should be dismissed because (1) the confession was not coerced; (2) there was probable cause to arrest and prosecute Thomsen; (3) they are protected by qualified immunity; and (4) there are no facts in the complaint demonstrating a policy or practice that would give rise to a plausible Monell claim, in part because Thomsen's constitutional rights were not violated. Section 1983 provides a cause of action for damages against "[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." In other words, "[t]o state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color of state law." McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014), cert. denied, 135 S.Ct. 1703 (2015). Further, "in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show. . . the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Vicarious liability is not applicable to § 1983 suits. Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015). Thus, "to impose liability on a municipality under § 1983, a plaintiff must identify a municipal `policy' or `custom' that caused the plaintiff's injury." Newton v. City of New York, 779 F.3d 140, 152 (2d Cir. 2015) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)).

A. § 1983 Claims Against Gomez
Thomsen alleges that Gomez violated his Fourth and Fifth Amendment rights as well as the Due Process Clause of the Fourteenth Amendment. These claims are largely based on the allegation that Gomez coerced Thomsen's confession by lying about the existence of evidence against him and using other interrogation tactics that were manipulative. The City Defendants have construed these claims as for false arrest and malicious prosecution, and that Thomsen alleges essentially that Gomez violated his right to be free from arrest and prosecution in the absence of probable cause.4 See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). Thomsen's claims under the Fifth Amendment are also construed here to include violations of his right to be free from involuntary self-incrimination.

1. False Arrest and Malicious Prosecution
A false arrest claim requires a plaintiff to prove "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012) (citation omitted). "To avoid liability for a claim of false arrest, an arresting officer may demonstrate that either (1) he had probable cause for the arrest, or (2) he is protected from liability because he has qualified immunity." Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015). An officer "has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (citation omitted). "Probable cause is determined on the basis of facts known to the arresting officer at the time of the arrest." Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015) (citation omitted). The arresting officer is "not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Garcia, 779 F.3d at 93 (citation omitted). "At most, probable cause may be defeated if the officer deliberately disregards facts known to him which establish justification." Id. (citation omitted).

"To establish a malicious prosecution claim . . . a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Stampf v. Long Island R. Co., 761 F.3d 192, 198 (2d Cir. 2014) (citation omitted). "[T]he existence of probable cause is a complete defense to a claim of malicious prosecution." Stansbury v. Wertman, 721 F.3d 84, 94-95 (2d Cir. 2013) (citation omitted).

"The probable cause standard in the malicious prosecution context is slightly higher than the standard for false arrest cases." Id. at 95. "Probable cause, in the context of malicious prosecution, has . . . been described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty." Id. (citation omitted).

In addition to arguing that there was probable cause to arrest Thomsen, Gomez contends that qualified immunity protects her from suit. "Qualified immunity protects public officials performing discretionary functions from personal liability in a civil suit for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Morse, 804 F.3d at 546 (citation omitted). Qualified immunity "balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability" when they act reasonably. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (per curiam).

"Whether qualified immunity applies turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Morse, 804 F.3d at 546 (citation omitted). A right is "clearly established if it would be clear to a reasonable public official that his conduct was unlawful in the situation he confronted." Id. (citation omitted). An officer "is entitled to qualified immunity against a suit for false arrest if he can establish that he had arguable probable cause to arrest the plaintiff." Garcia, 779 F.3d at 92 (citation omitted). "Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Id. (citation omitted). Courts "look to the information possessed by the officer at the time of arrest" when determining whether an officer's conduct was objectively reasonable. Id. (citation omitted).5

Probable cause existed to arrest and prosecute Thomsen, despite the fact that his prosecution was later dismissed because the DA Defendants determined that there was not sufficient evidence to support the case against him. Kefalas's report led Gomez to question Thomsen. Thomsen wrote out a clear, if hesitant, confession to sexual wrongdoing involving children. Although Thomsen is innocent of any inappropriate conduct involving children at IPS, Gomez at the time had sufficient facts available to her to render her decision to arrest Thomsen objectively reasonable. At the very least she is protected by qualified immunity because officers of reasonable competence could disagree about whether there was probable cause to arrest Thomsen.

Thomsen's arguments to the contrary do not negate the existence of probable cause for his arrest. Thomsen's primary argument is that Gomez fabricated evidence in support of probable cause, thereby rendering unreasonable Gomez's determination that probable cause existed. Gomez did not actually fabricate the evidence supporting Thomsen's arrest, however. Thomsen wrote his statement that contained a confession to inappropriate activity. Although the confession is now known to be false, Gomez did not invent it. Therefore, the confession, along with Kefalas's report to the NYPD, together provide sufficient support for Thomsen's arrest such that his constitutional rights were not violated. Thomsen argues that Gomez was aware of facts that called Kefalas's credibility into question. Even if this is true, and if Kefalas's report alone was not sufficient to establish probable cause, Thomsen's statements both to Gomez and Ferrari were.

The facts in the complaint are also insufficient to sustain a malicious prosecution claim against Gomez. An element of malicious prosecution is a lack of probable cause. As discussed above, after Thomsen confessed both in writing and during his recorded interview with Ferrari and Gomez, there was probable cause for his arrest and prosecution. Those interviews gave Gomez and the DA Defendants information such that a reasonably prudent person could believe that Thomsen was guilty of the charged crimes.

Thomsen's malicious prosecution claim against Gomez suffers from another defect: Gomez, as a police officer, did not initiate or continue the prosecution after she arrested Thomsen. The DA Defendants' exercise of independent judgment broke the chain of causation such that his continued prosecution is fairly attributable to them, not Gomez. "[P]olice officers do not generally `commence or continue' criminal proceedings against defendants." Bermudez, 790 F.3d at 377. There is an exception when police officers "play an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Id. (citation omitted). Gomez's conduct in arresting Thomsen and sitting with Ferrari during the recorded interview does not rise to the level of an "active role" in the prosecution. The complaint indicates that Ferrari instructed Gomez to arrest Thomsen. Thus, there are two grounds for dismissing the malicious prosecution claim against Gomez: (1) there was probable cause to prosecute Thomsen; and (2) Gomez did not "commence or continue" the prosecution, as the elements of the claim require.

Thomsen's arguments in support of his malicious prosecution claim are unavailing. Thomsen primarily argues that, even if probable cause existed at the time of his arrest, it dissipated when his prosecution began. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996), as amended (May 21, 1996). Moreover, Thomsen argues that Gomez was the "proximate cause" of his prosecution because she lied about the existence of evidence against him, elicited a false confession, and gave that information to Ferrari. Thomsen's argument rests on cases holding that the intervening acts of prosecutors do not break the chain of causation when police officers "deliberately suppl[y] misleading information that influenced" the decision to prosecute. Zahrey v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000) (citation omitted); see Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (clarifying the circumstances when the chain of causation is broken in a malicious prosecution claim).

Gomez's conduct cannot fairly be characterized as intentionally fabricating evidence and forwarding that information to prosecutors. Thomsen has not alleged that Gomez fabricated his confession, only that she lied to Thomsen about video evidence when none was in the police's possession. Nor does the complaint assert that Gomez lied to Ferrari about the video. The intervening, independent decision by the ADAs to prosecute Thomsen thus broke the chain of causation such that Gomez is not responsible for the decision to commence or continue Thomsen's prosecution.

2. Fifth Amendment and Compulsory Self-Incrimination
The Fifth Amendment provides that "No person . . . shall be compelled in any criminal case to be a witness against himself." It is axiomatic that statements obtained in violation of the Fifth Amendment are not admissible against the defendant who provided the statements involuntarily. United States v. Taylor, 745 F.3d 15, 23 (2d Cir. 2014), reh'g denied 752 F.3d 254, 269 (2d Cir. 2014). This is true even where a suspect executed a knowing and voluntary waiver of his Miranda rights. Id. at 19-20. In other words, a "knowing and voluntary [Miranda] waiver does not . . . guarantee that all subsequent statements were voluntarily made." Id. at 23 (citation omitted).

"[A] § 1983 action may exist under the Fifth Amendment self-incrimination clause if coercion was applied . . . to obtain inculpatory statements, and the statements thereby obtained were used against the plaintiff[] in a criminal proceeding." Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998). "se or derivative use of a compelled statement at any criminal proceeding against the declarant violates that person's Fifth Amendment rights; use of the statement at trial is not required." Higazy v. Templeton, 505 F.3d 161, 171 (2d Cir. 2007) (citation omitted) (holding that using a coerced statement against a defendant during his initial appearance violated the Fifth Amendment). "Such use, if the confession is found to have been coerced, violates the declarant's constitutional rights." Id. (citation omitted).

"It is difficult to determine whether a confession is voluntary; case law yields no talismanic definition for the term." Taylor, 745 F.3d 24 (citation omitted). Courts "look at the totality of circumstances surrounding a Miranda waiver and any subsequent statements to determine knowledge and voluntariness." Id. at 23. "A confession is not voluntary when obtained under circumstances that overbear the defendant's will at the time it is given." Id. (citation omitted). Determining the voluntariness of a confession is a fact-intensive inquiry that requires considering "the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials." Id. at 24 (citation omitted). Moreover, "the use of coercive and improper tactics in obtaining an initial confession may warrant a presumption of compulsion as to a second one, even if the latter was obtained after properly administered Miranda warnings." Id. at 25 (citation omitted). "In deciding whether a second confession has been tainted by the prior coerced statement, the time that passes between confessions, the change in place of interrogations, and the change in identity of interrogators all bear on whether that coercion has carried over into the second confession." Id. at 25-26 (citation omitted).

Thomsen has pled a plausible claim that his right to be free from compulsory self-incrimination was violated. Such a claim requires that the statement at issue was coerced and that the State made use or derivative use of that statement at a criminal proceeding. Thomsen's claim that his will was overcome in this case is plausible. See Weaver v. Brenner, 40 F.3d 527, 537 (2d Cir. 1994) (finding a genuine issue of material fact regarding the voluntariness of a confession where the officers promised to keep the case out of the newspaper if the arrestee confessed, claimed that there was powerful evidence against the arrestee where none existed, and otherwise psychologically manipulated the arrestee).

The State also made at least derivative use of his written confession during the preliminary hearing when it relied on Ferrari's testimony and her videotaped interview with Thomsen. Ferrari mentioned the written statement in her testimony at the preliminary hearing and the written statement was discussed during the videotaped interview that itself was played at the preliminary hearing.

The City Defendants did not address in their motion to dismiss the issue of compelled self-incrimination, the legal principles recited here, or the application of qualified immunity to this Fifth Amendment claim. The City Defendants did generally outline their position, however, that Thomsen's confession was voluntarily given because each of the interrogation tactics that Gomez used has been found to be permissible by New York state courts. Mirroring the moving brief, the plaintiff's opposition did not separately discuss his Fifth Amendment claim. Thus, Thomsen's Fifth Amendment and Due Process claim under a theory of compulsory self-incrimination survives.

B. Monell Claims Against the City
As discussed above, a municipality may be held liable under § 1983 for a policy or custom that caused the plaintiff's constitutional injury. Newton, 779 F.3d at 152. To satisfy a motion to dismiss, the "plaintiff need not identify an express rule or regulation, but can show that a . . . practice of municipal officials was so persistent or widespread as to constitute a custom or usage." Littlejohn, 795 F.3d at 315 (citation omitted); Newton, 779 F.3d at 152 (a municipal policy may be a "persistent, widespread course of conduct . . . that has become the usual and accepted way of carrying out policy . . . even though the municipality has not necessarily formally adopted or announced the custom" (citation omitted)).

Thomsen has not pled sufficient facts to make his Monell claim based on the conduct the DA Defendants plausible. His Monell claims based on the conduct of Gomez and the policies of the NYPD are dismissed in part. As discussed above, there was probable cause for Thomsen's arrest and prosecution. Therefore, he did not suffer a constitutional violation that could provide the foundation for a Monell claim against the City based on false arrest or malicious prosecution claims for either Gomez or the DA Defendants. The motion to dismiss Thomsen's Monell claim that derives from the claimed violation of his rights under the Fifth Amendment discussed above is denied, however.

Thomsen's arguments in support of his remaining Monell claims are not persuasive. Thomsen has alleged the existence of two policies pursuant to which his constitutional rights were allegedly violated: (1) the NYPD has a policy of not recording police interviews; and (2) the NYPD has a policy of using interrogation tactics that encourage false confessions. According to the complaint, these tactics include lying about evidence against an arrestee, minimizing the seriousness of the accused conduct, and promising leniency if the arrestee cooperates. Because there was probable cause for Thomsen's arrest and prosecution, these tactics — which in general do not violate the law — cannot form the basis for a Monell claim premised on false arrest or malicious prosecution.

Thomsen also points to several specific paragraphs of the amended complaint in arguing that his Monell claim against the City for the conduct of the DA Defendants is plausible. These allegations in the complaint are largely general in nature and accuse the City, including the District Attorney, of failing to train or supervise ADA's regarding constitutional violations, particularly violations of Brady. These assertions are too conclusory to plead a Monell claim. Thomsen alleges that there were meetings at which high level supervisors, including the District Attorney, learned about Thomsen's prosecution and allowed it to go forward for several months despite the lack of evidence supporting the prosecution's case. The allegations do not identify a policy or custom that resulted in a violation of Thomsen's constitutional rights, however, and therefore are not actionable under § 1983.

C. Conspiracy Claims under §§ 1983 and 1985(3)
In order to survive a motion to dismiss on a § 1983 conspiracy claim, Thomsen must "allege (1) an agreement between a state actor and a private party (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Complaints "containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient." Id. at 325 (citation omitted).

42 U.S.C. § 1985(3) provides in relevant part that "f two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . . . the party so injured or deprived may have an action for the recovery of damages." A conspiracy claim under § 1985(3) requires a plaintiff to allege:

1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.
Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (citation omitted). "The conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus." Id. (citation omitted).

Thomsen's conspiracy claims under §§ 1983 and 1985(3) are dismissed.6 His allegations of an agreement between the DA Defendants and the City Defendants to violate his constitutional rights are conclusory. Moreover, he has not alleged any specific facts indicating that the defendants prosecuted him because of a protected characteristic. In other words, the facts in the complaint do not suggest that the prosecution was motivated by discriminatory animus.

Thomsen's arguments to the contrary are unavailing. He argues that the communications between Ferrari and Gomez constitute an agreement to violate his constitutional rights. Such a broadly stated rule would cause virtually any communications between police officers and prosecutors to be a source of civil liability. Thomsen further argues that Gomez and Ferrari acted in concert to conceal exculpatory evidence and prolong his prosecution. Absent any facts giving rise to such an inference, Thomsen's conspiracy claims are not plausible and are dismissed.

D. State Law Claims
Thomsen brought state law claims against Gomez and the DA Defendants for malicious prosecution, intentional infliction of emotional distress ("IIED"), and violations of unspecified rights under the New York State Constitution. There has been no substantive argument regarding Thomsen's claims under the New York State Constitution, and thus it appears those claims have been abandoned. As discussed above, the malicious prosecution claim is dismissed because there was probable cause to prosecute Thomsen.

The tort of IIED "provides a remedy for the damages that arise out of a defendant engaging in extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 157 (2d Cir. 2014) (citation omitted)." In order to prevail, a "plaintiff must establish that there was extreme and outrageous conduct, that the conduct was undertaken with intent to cause, or disregard of a substantial probability of causing, severe emotional distress, and that the conduct did in fact cause severe emotional distress." Id. at 158 (citation omitted). This is a "highly disfavored tort under New York law" that "is to be invoked only as a last resort." Id. (citation omitted). "The element of outrageous conduct has been described as rigorous, and difficult to satisfy." Taggart v. Costabile, 14 N.Y.S.3d 388, 393 (2d Dep't 2015) (citation omitted). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citation omitted). Finally, a claim "may not be sustainable where the conduct complained of falls well within the ambit of other traditional tort liability." Turley, 774 F.3d at 159 (citation omitted); see Salmon v. Blesser, 802 F.3d 249, 256-57 (2d Cir. 2015) (upholding the dismissal of a claim for IIED where the conduct was actionable as a battery).

Thomsen's IIED claim against the DA Defendants and Gomez is dismissed because the defendants' conduct falls within the traditional torts of false arrest and malicious prosecution. Moreover, none of the conduct described in the complaint is sufficiently outrageous to satisfy the first element of IIED.

In opposition, Thomsen argues that the torts of false arrest and malicious prosecution are not the cause of his emotional distress. Rather, his emotional distress derives from the alleged due process violation resulting from Gomez's lies to him about the evidence against him. This fact, Thomsen argues, places his IIED claim outside the traditional scope of tort liability such that it is actionable.

Even if his IIED claim were indeed based on conduct that was not actionable as a false arrest or malicious prosecution, Thomsen would fail to satisfy the element of "extreme or outrageous" conduct. The conduct at issue here does not rise to the level of outrageousness that would meet the high standards for such conduct under New York law. See Taggart, 14 N.Y.S.3d at 394 ("The threshold of outrageousness is so difficult to reach that the Court of Appeals recognized, in 1993, that, of the [IIED] claims that it had considered to that date, every one had failed because the alleged conduct was not sufficiently outrageous." (citation omitted)).

III. Kefalas
Thomsen brings several state law claims against Kefalas, alleging that she knowingly made false reports of child abuse both to IPS and the NYPD. In moving to dismiss the complaint, Kefalas argues that she is statutorily immune from Thomsen's suit. She does not address the merits of Thomsen's individual causes of action.

New York law requires that teachers report instances of suspected child abuse to the authorities when they have "reasonable cause" to believe that such abuse occurred. N.Y. Soc. Serv. Law § 413(1)(a). "[A] qualified privilege protects certain individuals from civil liability arising from reports of child abuse that are based on reasonable cause and made in good faith." G.L. v. Markowitz, 955 N.Y.S.2d 643, 646-47 (2d Dep't 2012) (discussing N.Y. Soc. Serv. Law § 419). New York law further provides that a "school official acting in the scope of his or her employment is presumptively acting in good faith so long as the person did not engage in willful misconduct or gross negligence." Villarin v. Rabbi Haskel Lookstein Sch., 942 N.Y.S.2d 67, 71-72 (1st Dep't 2012) (citation omitted). A plaintiff may rebut this presumption of good faith with a showing of bad faith or malice. E.g., Donovan v. City of New York, 790 N.Y.S.2d 11, 12 (1st Dep't 2005); Escalera v. Favaro, 749 N.Y.S.2d 263, 264 (2d Dep't 2002) ("To rebut the presumption of good faith, a plaintiff must demonstrate that a defendant was motivated by actual malice.").

Thomsen has pled facts that, if true, rebut the statutory presumption that Kefalas made her reports to IPS and the NYPD in good faith. Specifically, the plaintiff alleges that Kefalas made several false reports against specific teachers at IPS, including Thomsen's colleagues in his classroom. Moreover, Kefalas specifically stated that she disliked Thomsen by saying "I am against this guy." According to the complaint, Kefalas also refused to hand over the video evidence she purported to have of the abuse, was fired for her refusal, and then made her report to the NYPD in retaliation for the termination of her employment. The complaint therefore specifically alleges facts that support Thomsen's allegation that Kefalas intentionally and in bad faith filed false reports against him. These facts are sufficient at this stage to make Thomsen's claim against Kefalas plausible.

Kefalas's arguments to the contrary are not persuasive. Kefalas primarily contends that Thomsen's confessions prove retroactively that Kefalas's reports were reasonable and made in good faith. This argument ignores the fact that this suit's fundamental premise is that Thomsen's confessions were false. Moreover, Thomsen's confessions cannot retroactively absolve Kefalas of the bad faith and malicious intent with which she allegedly brought her reports to IPS and the NYPD.7 Kefalas's policy argument similarly fails. While it is true that the statutory immunity is meant to encourage reports about child abuse based on reasonable cause, the immunity specifically does not cover willfully malicious or grossly negligent reports of abuse. Finally, Kefalas cites several cases that she claims stand for the proposition that she had reasonable cause to report the abuse even though the charges were eventually dropped. This argument does not overcome the specific facts in Thomsen's complaint that evince Kefalas's bad faith.

Conclusion
The DA Defendants' September 3, 2015 motion to dismiss is granted. The City Defendants' September 3, 2015 motion to dismiss is granted in part. Kefalas's September 3, 2015 motion to dismiss is denied.

FootNotes

1. It is not clear precisely when Ferrari obtained the videos that Kefalas took of Thomsen in the classroom at IPS. Those videos, which Kefalas submitted as an exhibit attached to her motion to dismiss, do not show any criminal conduct, let alone the conduct Gomez claimed was recorded on the videos.

2. Thomsen also alleges that the City itself is liable for these state law claims under a theory of respondeat superior.

3. Thomsen relies on several cases in making this argument, none of which support this narrow view of absolute prosecutorial immunity. E.g., Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993) (holding that prosecutors were not absolutely immune for "endeavoring to determine whether the bootprint at the scene of the crime had been made by" the defendant's foot because this was more akin to police work); Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987) (prosecutor was not absolutely immune for working on securing the cooperation of a witness during an investigation that preceded the prosecution because such actions constituted "supervision of and interaction with law enforcement agencies in acquiring evidence which might be used in prosecution").

4. Based on his opposition to the City Defendants' motion to dismiss, it appears that Thomsen also alleges that Gomez, along with the DA Defendants, violated his rights under Brady v. Maryland, 373 U.S. 83 (1963). Thomsen bases this claim on the fact that, during his interrogation, Gomez lied about having a video of him abusing children. The failure to disclose that there was no such evidence led to Thomsen's confession and confinement. "Brady information . . . must be disclosed in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial or to use the information to obtain evidence for use in the trial." United States v. Rittweger, 524 F.3d 171, 180 (2d Cir. 2008) (citation omitted). Moreover, "it is not feasible or desirable to specify the extent or timing of disclosure Brady and its progeny require" except in terms of the "defense's opportunity to use the evidence when the disclosure is made." Id. at 180-81 (citation omitted). "[T]he police satisfy their obligations under Brady when they turn exculpatory evidence over to the prosecutors." Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992). This is so because "prosecutors, who possess the requisite legal acumen, [should] be charged with the task of determining" what information is subject to disclosure under Brady. Id.; see Bermudez v. City of New York, 790 F.3d 368, 376 n.4 (2d Cir. 2015). Thus, Thomsen's claim fails for two reasons: (1) Brady is essentially a trial right, and Thomsen was neither tried nor convicted; and (2) he does not allege that Gomez failed to disclose exculpatory evidence to the DA Defendants.

5. New York has a similar immunity doctrine, such that if granting this motion on qualified immunity grounds is appropriate, it would also be appropriate to dismiss the state law claim for false arrest. See Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007).

6. These claims may have been abandoned when Thomsen voluntarily dismissed claims related to violations of the Equal Protection Clause.

7. Kefalas has submitted video clips with her motion which she argues support a finding that she acted in good faith. Even if it were appropriate to consider these clips on a Rule 12(b)(6) motion, and it is not, they do not assist Kefalas.​

 

From https://casetext.com/case/thomsen-v-kefalas:

Thomsen v. Kefalas

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Mar 26, 2018
15-CV-2668 (BCM) (S.D.N.Y. Mar. 26, 2018)
BARBARA MOSES, United States Magistrate Judge.

OPINION AND ORDER

BARBARA MOSES, United States Magistrate Judge.

Now before the Court is a motion for summary judgment (Dkt. No. 146) filed by the sole remaining defendant in this action, Maria Angeliki Kefalas. On June 11, 2014, Kefalas called New York's Statewide Central Register (SCR) of Child Abuse and Maltreatment and accused plaintiff Malthe Thomsen of sexually abusing young children at the preschool where he worked as an intern, resulting in his arrest, arraignment, and pretrial incarceration at Rikers Island. After the criminal charges against Thomsen were dropped, he filed this civil suit, including claims for libel, slander, and related torts against Kefalas. In her motion papers, Kefalas argues that as a "mandated reporter" under N.Y. Soc. Serv. Law § 413 she is immune, under § 419 of the same statute, from civil liability resulting from her good-faith report of suspected child abuse. For the reasons that follow, the motion is DENIED.

I. BACKGROUND

Plaintiff Thomsen was pursuing a teaching degree when he obtained an internship at the International Preschool (IPS) in Manhattan, where Kefalas worked as an assistant teacher. On May 30, 2014, Kefalas sent an email to an IPS administrator reporting that she had observed plaintiff engage in behavior "which I believe borders inappropriate touching of children." IPS conducted an investigation, during which no other witness corroborated defendant's charges. On June 5, 2014 - after Kefalas stated that she had evidence of Thomsen's misconduct, but refused to disclose it - IPS terminated her employment. One week later, defendant contacted the SCR, which referred the matter to the New York Police Department (NYPD). Kefalas told the NYPD that Thomsen had repeatedly engaged in inappropriate touching of multiple preschoolers at IPS.

Early on June 27, 2014, NYPD officers woke Thomsen at his apartment. After approximately four hours of unrecorded questioning by Detective Nela Gomez (during which Thomsen waived his Miranda rights and executed a written statement), plaintiff acquiesced to a second interview, recorded on videotape, by Assistant District Attorney Rachel Ferrari. The parties dispute whether any of plaintiff's statements can properly be characterized as a confession. It is undisputed, however, that Thomsen was arrested that day, and charged with 15 counts of sexual abuse in the first degree. The case was the subject of extensive media coverage both here and in Europe, and approximately 40 families withdrew their children from IPS.

Thomsen was never indicted by a grand jury. Instead, on November 13, 2014, all charges were dismissed on the motion of the People. This action followed.

A. Procedural History

Thomsen filed his initial Complaint on April 6, 2015, naming the City of New York, Police Commissioner William Bratton, Det. Gomez, ADA Ferrari, ADA Nicole Blumberg, and Kefalas as defendants. See Compl. (Dkt. No. 1) ¶¶ 1-23. As against the government defendants, plaintiff alleged violations of his rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, malicious prosecution, and intentional infliction of emotional distress. As against Kefalas, he alleged state law claims for libel, slander, injurious falsehood, negligent infliction of emotional distress, negligence, and prima facie tort. Id. ¶¶ 146-211. The case was assigned to United States District Judge Denise Cote.

All defendants moved to dismiss the Complaint. (Dkt. Nos. 21, 46, 49.) On July 10, 2015, at an initial conference, Judge Cote granted Thomsen an opportunity to amend his pleading and denied the pending motions to dismiss as moot. (Dkt. No. 45.) On July 31, 2015, Thomsen filed an Amended Complaint (Dkt. No. 58), which dropped Commissioner Bratton as a defendant and omitted several of the constitutional claims originally pled. On September 3, 2015, defendants renewed their motions to dismiss as to all remainining claims. (Dkt. Nos. 65, 69, 73.)

In an Opinion and Order dated February 11, 2016 (Dkt. No. 93), Judge Cote dismissed the case against against ADAs Ferrari and Blumberg, ruling that they were absolutely immune from Thomsen's federal and state law claims. Thomsen v. City of New York, 2016 WL 590235, at *4 (S.D.N.Y. Feb. 11, 2016), appeal withdrawn (May 23, 2016), reconsideration denied, 2016 WL 4507376 (S.D.N.Y. Aug. 26, 2016). She also dismissed all claims against the City and Det. Gomez (collectively the City Defendants) except for plaintiff's claim alleging that any inculpatory statements he made were coerced in violation of his Fifth Amendment right to be free from compulsory self-incrimination. Id. at *5-11. The District Judge declined to dismiss the claims against Kefalas, finding that Thomsen had "pled facts that, if true, rebut the statutory presumption that Kefalas made her reports to IPS and the NYPD in good faith." Id. at *12. The court specifically noted Thomsen's allegations that Kefalas had made other false reports against IPS teachers, including others in the same classroom; that she stated, "I am against this guy," meaning Thomsen; and that she was fired by IPS after she refused to show administrators the video evidence that she claimed to have showing Thomsen abusing students, arguably providing a motive for her to make a false report "in retaliation for the termination of her employment." Id.

On February 25, 2016, the City Defendants moved for reconsideration as to plaintiff's claim against the City for violation of his Fifth Amendment rights (Dkt. No. 97), and on March 16, 2016, in an oral ruling during a scheduling conference, Judge Cote granted that motion (see Dkt. No. 106), leaving plaintiff with his Fifth Amendment claim against Det. Gomez and his state law claims against Kefalas. On November 23, 2016, after a settlement conference, plaintiff voluntarily dismissed his remaining claim against Gomez, leaving Kefalas as the sole defendant. (Dkt. No. 138.) On November 30, 2016, Thomsen and Kefalas consented to proceed before the assigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). (Dkt. No. 142.)

Because plaintiff is a citizen and resident of Denmark and Kefalas is a resident of New York (see Amend. Compl. ¶¶ 12, 23), this Court has subject-matter jurisdiction over the remaining parties and claims based on diversity of citizenship. 28 U.S.C. § 1332(a)(2).

B. The Summary Judgment Motion

On January 12, 2017, Kefalas filed her motion for summary judgment, supported by a memorandum of law (Dkt. No. 149), a Statement of Material Facts pursuant to Local Civil Rule 56.1(a) (Dkt. No. 149-1), and two declarations: one signed by attorney David Wolowitz (Dkt. No. 147), offering his expert opinion as to the proper interpretation and application of the relevant provisions of the Social Services Law; and one signed by attorney Russell Porter (Dkt. No. 148), defendant's counsel of record, annexing what appears to be most if not all of the discovery record amassed in this action, including the plaintiff's written and videotaped statements to the police, the complete transcripts of five depositions, the responses of plaintiff, defendant, and Det. Gomez to the written discovery requests served upon them, and the documents they produced. (Dkt. Nos. 148-3 through 148-12.)

Rule 56.1(a) requires a party moving for summary judgment to submit "a short and concise statement, in numbered paragaphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Rule 56.1(b) requires the opposing party to file a statement "responding to each numbered paragraph in the statement of the moving party." Rule 56.1(b). The opposing party may also include "additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Id.

At the Court's direction, Porter later refiled some of the same materials in redacted form to avoid disclosure of the names of minor children. (Dkt. Nos. 166, 167, 168.)

On February 3, 2017, in opposition to the motion, plaintiff submitted a memorandum of law (Dkt. No. 150) and a copy of a declaration that Kefalas had previously filed in connection with an earlier motion. (Dkt. No. 150-1.) Notwithstanding the requirements of Local Civil Rule 56.1(b), plaintiff did not respond to defendant's Statement of Material Facts. On February 10, 2017, defendant filed a reply memorandum (Dkt. No. 151) to which she annexed, without any authentication, several additional evidentiary documents, including a portion of her cellphone records for June 11, 2014 (Dkt. No. 151-1), a letter from IPS to Kefalas offering her a "floater" position for the 2014-15 school year (Dkt. No. 151-2); and a copy of what appear to be text messages between defendant and a friend on May 6, 2014. (Dkt. No. 151-3.)

On February 15, 2017, plaintiff sought leave to file a late Local Civil Rule 56.1(b) Statement, which I granted. (Dkt. No. 153.) Plaintiff filed that statement on February 17, 2017 (Dkt. No. 155), together with the declaration of Kaitlin F. Nares, one of his attorneys (Dkt. No. 154), annexing, among other things, CDs containing various audio and video recordings that Kefalas made at IPS. (Dkt. Nos. 154-4 and 154-5.) On February 22, 2017, defendant filed a Reply Statement of Material Facts addressing the portions of plaintiff's statement "with which Ms. Kefalas takes issue." (Dkt. No. 157.)

On February 24, 2017, I heard oral argument on the motion, during which I directed the parties to submit additional briefing regarding two evidentiary questions: (i) the admissibility of the Wolowitz Declaration; and (ii) the relevance, for summary judgment purposes, of evidence post-dating Kefalas's report to the SCR. See Tr. of Feb. 24, 2017 Hr'g (Dkt. No. 164) at 37:8-38:18. Those briefs were filed on March 10, 24, and 31, 2017. (Dkt. Nos. 159, 160, 161.) With one exception not relevant here, the parties did not otherwise object to the admissibility of any of the evidentiary materials submitted.

C. Facts

The relevant facts are taken from the parties' Local Civil Rule 56.1 Statements and from the underlying evidentiary materials that they submitted, and are undisputed unless otherwise noted. Where the evidence is susceptible of more than one interpretation, I have, as required, "resolv[ed] all ambiguities and draw[n] all factual inferences in favor of the party against whom summary judgment is sought." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

Both parties had difficulty complying with Rule 56.1. As noted above, plaintiff initially neglected to file the counter-statement required by Rule 56.1(b), and then belatedly sought (and obtained) permission to do so out of time. Moreover, both parties' submissions include many paragraphs of wholly inappropriate legal and factual argument, serving only to burden the Court and delay decision on the motion. See, e.g., Def. 56.1 Stmt. ¶¶ 51-57 (presenting extended legal argument as to the proper interpretation and application of the relevant statutory provisions); Pl. 56.1 Stmt. ¶¶ 71, 93 (arguing that "t can be inferred" from the evidence that Kefalas "had clear animus," that her allegations against plaintiff were "false," and that "her true motive was to seek vengeance against co-workers"); Def. Reply 56.1 Stmt. ¶¶ 17, 19, 26, 61-68 (calling plaintiff's contentions "illogical," "self-serving," and "disingenuous").

1. Plaintiff

Thomsen was a 22-year-old Danish university student, pursuing a teaching degree, when he began a semester-long internship at IPS, a private preschool in New York City, in February 2014. Def. 56.l Stmt. ¶¶ 8, 40; Kane Dep. Tr. (Dkt. Nos. 168-7 and 168-8) at 7:17-25, 18:10-14; Thomsen Dep. Tr. I at 45:14-18. After working briefly in other classrooms, Thomsen requested an assignment to the "Blue Room," where he worked with four- and five-year-old children alongside head teacher Gillian Weitz and two assistant teachers, Sarah Baraie and defendant Kefalas. Def. 56.l Stmt. ¶¶ 10, 46; Thomsen Dep. Tr. I at 83:18-84:9; Baraie Dep. Tr. (Dkt. No. 148-10) at 8:12-9:9, 17:22-24; Kane Dep. Tr. at 9:16-11:8.

Thomsen testified for two days, producing two separately-paginated deposition transcripts, referred to here as Thomsen Dep. Tr. I (Dkt. No. 148-6, at ECF pages 1-303) and Thomsen Dep. Tr. II (Dkt. No. 148-6, at ECF pages 304-470).

2. Defendant

Kefalas had been working at IPS since August or September of 2012. Kefalas Dep. Tr. (Dkt. No. 148-7) at 317:25-318:2. During her first year at IPS she worked in the "Yellow Room" with Lisa Goodman and another teacher. Id. at 315:9-14. At the end of that school year, she told IPS administrators that she did not want to work with Goodman again, because she "didn't like the way [Goodman] was teaching." Id. at 312:6-16. Kefalas thought that Goodman "was not a professional." Id. at 312:17-24.

3. Defendant's Interactions With Her IPS Colleagues

Kefalas was assigned to the Blue Room in the fall of 2013. Def. 56.1 Stmt. ¶ 47; Baraie Dep. Tr. at 28:17-25. Over the course of the 2013-14 school year, her interactions with her Blue Room colleagues became increasingly fraught. Beginning in October, Kefalas lodged a series of complaints about her fellow teachers, particularly Baraie. Def. Reply 56.1 Stmt. ¶¶ 60, 61-68; see also Kefalas Dep. Tr. at 60:14-17 (confirming that the "allegations against Sarah" started in October 2013). Paul Kane, the school's Chief Administrative Officer, recalled that Kefalas "complained that she was being treated unfairly in the team," Kane Dep. Tr. at 84:5-85:3, and that "people mistreated her because she was Greek." Id. In addition, Kefalas reported that Baraie "was vocally very loud," id. at 89:21-22, that she "like[d] to hit on fathers in the room," and that she "liked to flirt with all of the male administration." Id. at 199:3-7. Kefalas also "advised" IPS that Baraie "would come to work at IPS 'hungover.'" Kefalas Interrog. Resp. No. 9 (Dkt. No. 168-3, at ECF pages 30-31).

Asked about these complaints at deposition, Kefalas testified that she simply "told the management of the school" that she didn't consider Baraie's teaching to be "professional." Kefalas Dep. Tr. at 48:6-9; see also id. at 49:25-50:5 ("I told them that I didn't think her behavior was very professional"); id. at 60:7-9 ("In the beginning, in October, I remember telling the director that Sarah was unprofessional with the children"). See also Def. Reply 56.1 Stmt. ¶¶ 61-68 (Kefalas told IPS management about "the many instances of unprofessional behavior exhibited by Ms. Baraie").

Some time in the fall of 2013 Kefalas and Baraie met with CAO Kane to "discuss[ ] if we could work together for the rest of the year." Baraie Dep. Tr. at 32:8-23. According to Baraie, "we all decided we could and then we moved on." Id. According to Kefalas, however, she was asked to write "positive things" about Baraie, as "homework," but "didn't do it." Kefalas Dep. Tr. at 386:23-387:25.

Kefalas's November 2013 teacher review noted that she was "defensive in nature," had a "difficult time with criticism," and at times had an "attitude" that created "conflict with other teachers." (expletive deleted)'t Teacher Rev. dated Nov. 4, 2013 (Dkt. No. 168-2, at ECF pages 70-75). Kefalas was given the lowest of three possible ratings ("Needs Improvement") in several areas involving her relationships with other IPS personnel, including, "Assists and Supports the Head Teacher in all aspects of classroom management," "Displays a positive attitude toward co-workers," "Accepts constructive criticism," "Has a good working relationship with team members," and "Responds to head teacher's suggestions in a positive way." In the "comments" section, the review noted that "[l]ast year, a similar situation occurred with her former team mates." Id. at ECF page 73.

At deposition, Kefalas could not recall receiving "this specific form," denied having a meeting in November 2013 to review her job performance, and further denied that she ever did anything to create conflict with other teachers. Kefalas Dep. Tr. at 380:7-24, 388:22-390:12.

Later in the 2013-14 school year, Kefalas escalated her complaints about Baraie, making additional reports to Mona Green, the Location Director responsible for the IPS facility where she worked. Pl. 56.l Stmt. ¶¶ 61-65, 67; Def. Reply 56.1 Stmt. ¶¶ 61-68; see also Kefalas Dep. Tr. at 60:18-61:2; 162:13-17. Kefalas objected to Baraie discussing "her personal issues" in front of the childen. Id. at 50:6-12. She also accused Baraie of yelling at Kefalas when Kefalas permitted a child to go to the bathroom, id. at 53:1-21; "finger-pointing," id. at 55:19-56:2; 62:9-21; walking "very heavily with these weird high heels," id. at 57:17-22; "flash[ing]" a sorority tattoo that Baraie had on her bicep, id. at 63:10-16, 64:15-65:24; and wearing "very short" skirts. Id. at 69:16-70:2. In addition, Kefalas "might have mentioned" to Green that Baraie told her not speak to the children's parents because her English was not good enough. Id. at 64:4-65:12.

At some point Kefalas made secret audio recordings of Baraie in the classroom. Pl. 56.1 Stmt. ¶ 69; Kefalas Dep. Tr. at 75:4-77:7. She did this because she wanted to show that "certain things [were] happening in the classroom that shoudn't be happening in front of the children." Kefalas Dep. Tr. at 77:5-7.

Kefalas also complained about head teacher Weitz. "I may have said for an exam[ple] that she's crying because she cannot handle the role of the head teacher." Kefalas Dep. Tr. 310:5-12. At deposition, Kefalas described Weitz as incompetent. Pl. 56.1 Stmt. ¶ 73; see also Kefalas Dep. Tr. at 266:7-8 (testifying that the head teacher "wasn't even capable of opening a ketchup bottle").

In the spring of 2014, Kefalas and Baraie received their contracts for the following school year. Kefalas learned that she was to be a "floater." Baraie Dep. Tr. 35:12-23; Kane Dep. Tr. at 25:6-20; see also Def. Reply Mem. Ex. 2 (offer letter dated April 16, 2014). The evidence is mixed as to whether the new assignment was a demotion. Compare Kane Dep. Tr. at 25:21-25 ("some people perceive it that way") and Baraie Dep. Tr. at 35:12-23 (a floater "is basically a sub") with Def. Reply Mem. Ex. 3 (Dkt. No. 151-3, at ECF pages 2-6 ) (Kefalas texts dated May 6, 2014, stating that she got the position she wanted and adding, "if I stayed in blue room . . . With sarah and Gillian I would LEAVE!") (punctuation and capitalization in the original). However, according to Baraie, "[t]hat was when the climate completely changed in our relationship," Baraie Dep. Tr. at 36:18-23, and it became "just near impossible to work with [Kefalas]." Id. at 36:25-37:4. It was at this point that Kefalas complained to Green about Baraie's "finger-pointing." Id. at 40:13-16. Baraie, in turn, "went to Mona [Green] quite often" regarding Kefalas, "because I really felt we needed a mediator and I didn't feel comfortable being in the room with her." Id. at 43:25-44:4. "There was always a conflict, always." Id. at 44:6-7.

4. Defendant's Observation and Charges

In late May 2014, Kefalas began to observe - and attempt to document - what she characterizes as inappropriate sexual contact between Thomsen and multiple children in the Blue Room. Def. 56.1 Stmt. ¶ 20. It is unclear when Kefalas first focused on this issue - she now states that she first suspected plaintiff of misconduct on or about May 20, see Pl. 56.1 Stmt. ¶¶ 20, 84; Kefalas Dep. r. at 257:13-20 - but it is undisputed that between May 19 and May 30, 2014, defendant sent her father, Vassilios Kefalas, a series of text messages purporting to report serious misconduct by several of her fellow teachers, including plaintiff, together with a number of audio and video files. See Kefalas Texts (Dkt. No. 168-9), at ECF pages 1-8.

Kefalas and her father texted one another in Greek. The English translation produced in discovery, and relied on by both parties in their summary judgment papers, was prepared by defendant and her father. See Kefalas Dep. Tr. 94:25-95:21. At oral argument, both parties stipulated to the accuracy of the translation. See Tr. of Feb. 24, 2017 Hr'g at 44:14-45:14.

For example, on May 19, 2014, defendant texted "What I see happening are [sic] unheard of." Kefalas Texts at ECF page 2. On May 20, Kefalas sent her father two videos, which she later testified were videos of Thomsen interacting with children in the Blue Room. Id.; Kefalas Dep. Tr. at 107:17-108:3. Her father replied, accurately, "It doesn't show anything suspicious." Kefalas Texts at ECF page 2.

On May 22, 2014, during a field trip to the zoo, Kefalas texted that Baraie "acts as if I am trash and the other [Malthe] doesn't hug the kids in front of the parents," adding, "And they think he is sweet." Kefalas Texts at ECF page 3 (brackets in the original). She added that Baraie "is looking at me very hostile." Id. An hour later, Kefalas texted: "They belong in prison Sarah and the other [male]," adding, "I mean it," "[a]t least for ten years." Id. (initial brackets in the original). Kefalas's last text on May 22 stated that Baraie "is not well I am wondering how she is walking free." Id. at ECF page 4. At deposition, asked why Baraie should be "in prison" rather than "walking free," Kefalas explained that her fellow assistant teacher "saw Malthe do something that was inappropriate to the kids." Kefalas Dep. 117:2-10.

None of Kefalas's May 22 texts asserted that Thomsen was engaging in inappropriate conduct while on the field trip. When asked about this at deposition, Kefalas confirmed that nothing "suspicious" occurred "[w]hile we were at the field trip." Kefalas Dep. Tr. at 110:12-17; see also id. at 110:23-111:2 ("no, I don't remember him doing anything while we were there").

On May 28, 2014, Kefalas sent additional video files to her father, asking him to "save them [videos] so that I can erase them to record more," and promising that "[t]omorrow I will take better [videos]." Kefalas Texts at ECF page 4 (brackets in the original). She also provided commentary on some of the videos, for example, "focus on his hands the last minute." Id.

On May 29, 2014, Kefalas's first text of the day reported that Baraie "has been looking at me with a lot of hostility like non-stop." Kefalas Texts at ECF page 5. She then announced, "the pervert just entered." Id. That same day, IPS Location Director Green visited the Blue Room, where Kefalas was sitting at a table with some of the children. Green told her to "concentrate on this specific table" rather than look around the classroom. Kefalas Dep. Tr. at 150:14-151:3. Kefalas texted her father to inform him that "Mona told me things I don't like." Kefalas Texts at ECF page 5. Kefalas later explained that in her view it was "very wrong" of Green to tell her where to focus. Kefalas Dep. Tr. at 151:12-24. Later that day, Kefalas sent her father another recording and more texts, one reading, "Sarcastic glimpses." Kefalas Texts at ECF pages 5-6.

See also Kefalas Texts at ECF pages 27, 29 (referring to plaintiff as "the pervert"). Kefalas also referred to Thomsen from time to time as the "fat one." See id. at ECF pages 9, 25, 29.

On the morning of Friday, May 30, 2014, Green informed Kefalas that she was being reassigned to another classroom, leaving Weitz, Baraie, and plaintiff in the Blue Room. Pl. 56.1 Stmt. ¶ 80; Kefalas Dep. Tr. 158:20-22. The reassignment was temporary - Kefalas was back in the Blue Room the following Monday - but she appears to have misunderstood that, at least initially. See Kane Dep. Tr. at 24:16-25:1; 45:2-16. At 8:52 a.m. that day, Kefalas texted her father: "so Mona [Green] was accusing me to the other teachers [t]hat I am the problem [a]nd that Sarah and Malthe are a super team? And she took me out? The bitch." Pl. 56.1 Stmt. ¶ 82; Kefalas Texts at ECF page 6.

At deposition, Kefalas acknowledged the text and added, "I might have called her a bitch before." Kefalas Dep. Tr. at 164:9-12.

Up until this point, Kefalas had not reported any suspicions concerning plaintiff to anyone else at IPS. Pl. 56.1 Stmt. ¶¶ 87; see also Kefalas Dep. Tr. at 257:13-265:8 (explaining that she was "sure that he was doing it" but told no-one at IPS). However, when Mr. Kefalas learned that his daughter had been removed from the Blue Room, he texted her the following advice:

During your break go to Mona to tell her that you have noticed improper touching of the children in the blue room and you are worried about the welfare of the children and that the school needs to investigate.. Don't tell her about the video.. If she asks tell her that the head teacher and Sarah should have witnessed it but they are not doing anything about it.. Don't say ANYTHING else.. Then Mona will have the responsibility.. When you tell her send me email exactly what you said so that we have evidence..
Kefalas Texts at ECF page 7 (capitalization and punctuation in the original).
Kefalas did not speak to Green during her break. However, that evening, she sent her an email (which her father helped her draft, see Kefalas Dep. Tr. at 176:23-25), reading, in full:

I feel compelled to report that I have observed certain peculiar behavior of Mr. Malthe Arkitekten [sic] lately in the blue room, which I believe borders inappropriate touching of children. In the past, whenever I observed such a behavior I had calmly tried to defuse the situation, by removing the children from the immediate vicinity of Mr. Malthe.
Considering that today you reassigned me to another class and I will no longer be able to observe the behavior and take appropriate action, I [am] now forced to alert you and to ask you to immediately investigate the situation, otherwise, I am advised that I will have to report the incident to the authorities.
Def. 56.1 Stmt. ¶¶ 20-21, 41; Pl. 56.1 Stmt. ¶¶ 58, 81; May 30, 2014 Email from Kefalas to Green (Dkt. No. 148-13). This was the first time defendant reported her allegations concerning plaintiff to anyone at IPS. Pl. 56.1 Stmt. ¶ 81.

5. The IPS Investigation

CAO Kane learned about Kefalas's email to Green over the weekend. Def. 56.1 Stmt. ¶ 41; Pl. 56.1 Stmt. ¶ 41; Kane Dep. Tr. at 26:2-27:9. On Monday, June 2, 2014, Kane interviewed Kefalas in the presence of his supervisor, IPS Director Donna Cohen. Kane Dep. Tr. at 28:3-29:1, 116:4-12. Kefalas told Kane and Cohen that during the zoo trip plaintiff stood behind the children, who were in line, and "rub[bed] their heads against his genitalia." Kane Dep. Tr. at 29:21-30:7; see also IPS Invest. Notes (Dkt. No 168-1 at ECF pages 82-88), at ECF page 88. Kane asked Kefalas how that was possible, given that the children were chaperoned by all three classroom teachers as well as parents and guardians, so that "there would have been an adult assigned to each of the children." Kane Dep. Tr. at 30:23-31:15. Kefalas replied that "no one else noticed." Id. at 31:17. Kefalas also told Kane that after the field trip the children "all began to play with themselves." Id. at 32:2-3.

This part of Kefalas's report to Kane was inconsistent with her earlier text messages - which do not reflect any inappropriate behavior by Thomsen while at the zoo, see Kefalas Texts at ECF pages 3-4 - and with her later deposition testimony, during which she confirmed that nothing "suspicious" occurred "[w]hile we were at the field trip." Kefalas Dep. Tr. at 110:12-17.

Kefalas added that while in the classroom plaintiff "would put a Lego into his lap, on top of his pants, and then ask a child to reach and grab that"; that during lunch plaintiff "would take the child's hand while they were eating and rub the spoon, or the hand, against his genitalia"; and that while on the roof playground plaintiff "would seemingly gain pleasure from lifting up a girl onto the playground equipment and reach underneath her dress and touch her buttocks." Kane Dep. Tr. at 35:17-20, 35:25-36:4, 36:8-11. Asked if any of the other teachers noticed this behavior - all of which occurred, by defendant's account, in the presence of multiple adults - Kefalas indicated "that she was the only one who seemed to notice it." Id. at 38:11-17. Kefalas did not tell IPS about the videos she had taken. Id. at 39:18-21.

As Kefalas had requested in her email, IPS investigated her claims. Def. 56.1 Stmt. ¶ 42; Pl. 56.1 Stmt. ¶ 95; Kane Dep. Tr. at 41:23-42:3. As part of the investigation, on June 3, 2014, IPS staff members with plausible reasons for rotating through the Blue Room - Developmental Specialist Marcia Finkelstein and Location Director Green - were sent in to observe plaintiff's conduct without alerting him to the existence of the investigation. Kane Dep. Tr. at 46:6-48:14. Neither of them reported any inappropriate conduct by plaintiff. Pl. 56.1 Stmt. ¶¶ 100-103; see also Kane Dep. Tr. at 48:15-50:9, 53:14-54:24; June 3, 2014 Email from Green to Kane (Dkt. No. 168-1, at ECF page 86) ("He worked with the children all day in a very professional manner"); June 3, 2014 Email from Finkelstein to Kane (Dkt. No. 168-1, at ECF pages 86-87) (noting that during Lego play one child tried to "climb on him" but he "[g]uided her away" and "was gently removing her from this").

Meanwhile, on June 2 and 3, 2014, Kefalas continued texting her father. On June 2 she sent him 51 messages (including 13 audio, video, or image files). Kefalas Texts at ECF pages 9-16. Some of the messages appeared to narrate Thomsen's conduct that day, while others referenced earlier events. At deposition, Kefalas acknowledged, "I might have added stuff that was happening before too." Kefalas Dep. Tr. at 191:24-192:6; see also id. at 195:22-23 ("I might have included incidents from previous days too.").

In some of her June 2 messages, Kefalas wrote that Thomsen was touching the children inappropriately (e.g., "He was putting the girls on top of his lap and they were fondling when we had lunch time") or looking at them inappropriately (e.g., "On the roof where the girls are on the bars he is watching them when they open their little legs wearing skirts and he looks at their pipi and their underwear."). Kefalas Texts at ECF page 10. In other messages that day, she accused Baraie and Weitz of intentionally ignoring Thomsen's conduct. Id. at ECF page 11 ("Sarah and Gillian are constantly talking and make believe they don't see anything."). In addition, Kefalas criticized Baraie's interaction with one of the children. Id. at ECF page 14 (accusing Baraie of "extorting" the child "psychologically" and making him cry).

Kefalas also complained about her IPS performance review, given to her by Green that morning. See Kefalas Dep. Tr. at 206:10-15 (confirming that they "gave me the evaluation" that day); Kefalas Texts at ECF page 16 (telling her father, "these are gross accusations"). The review itself, signed by head teacher Weitz, generally reported that Kefalas met or exceeded expectations in her interaction with the children and their parents, but needed improvement in several areas related to classroom management and professionalism, including, "Accepts constructive criticism" and "Has a good working relationship with team members." (expletive deleted)'t Teacher Rev. dated May 14, 2014 (Dkt. No. 168-2, at ECF pages 64-69). Weitz also commented that there were "some times" when Kefalas "said inappropriate things" to parents. Id. at ECF page 68.

On June 3 - the day that IPS placed observers in plaintiff's classroom - Kefalas sent her father another 22 text messages, some of which reported that Thomsen was openly engaging in inappropriate contact even under the eyes of those observers. For example, after noting the presence of Finkelstein (whom she described as "best friends with Lisa [Goodman] . . . and Sarah [Baraie]," Kefalas Texts at ECF page 16), defendant told her father that Thomsen's behavior was "continuing" and that he was "doing it now," even though "[t]he psychologist is looking at him." Id. at ECF pages 16-17. See also id. at ECF page 18 ("Now he is doing it with [another child]" and "S/he saw it").

Since then, Kefalas has told several different versions of what she saw (and consequently what the observers could have seen) on June 3, 2014. In her declaration in this action, signed under penalty of perjury on July 9, 2015, Kefalas stated, "Of course, the plaintiff committed no further misconduct in the presence of the two adults." Kefalas Decl. ¶ 20. At her deposition, taken a year later on July 7, 2016, Kefalas testified that when Finkelstein was present Thomsen "would do it very discreetly." Kefalas Dep. Tr. at 215:21-25. "She might have seen it with a sort of - the further end of her eye, but it wasn't that apparent." Id. at 216:21-23.

Wednesday, June 4, 2014, was the last day of the 2013-14 school year at IPS. Between 8:30 a.m. and 4:28 p.m. that day, Kefalas sent her father 72 text messages. In some of them she voiced continued hostility towards Baraie, expressing disbelief that Baraie had been invited by some IPS parents to "their summer houses." Kefalas Texts at ECF page 19. In other texts, Kefalas stated that Thomsen was "still doing it and nobody has come to observe." Id. Thereafter, Kefalas reported that Thomsen "is putting [a child's] head on his penis and she is jumping on top of him/it," id. at ECF page 20; that he "is doing it and he is smiling," id. at ECF page 22; and that "[h]e does it with [another child] also." Id. At 4:28 p.m. on June 4, 2014, Kefalas texted her father, "FACEBOOK - Guess who deleted me yesterday." Id. at ECF page 26. A few messages later, Kefalas referred to Baraie as a "(expletive deleted) animal," who "was always jealous of me!" and predicted, "In the end she will have the pervert do me harm." Id. at ECF page 27.

At deposition, Kefalas confirmed that she was referring to Thomsen having "deleted" (de-friended) her on Facebook. Kefalas Dep. Tr. at 242:24-243:22.

At some point on June 4 - after being encouraged several times, via text, by her father - defendant met again with IPS Director Cohen, expressing the view that IPS wasn't "doing enough to address the issue," and that Thomsen should be removed from the classroom immediately. IPS Invest. Notes at ECF page 82; Def. 56.1 Stmt. ¶ 43; see also Kane Dep. Tr. at 57:11-20. Cohen "asked Malthe to leave the classroom," but permitted him to "return at dismissal to say goodbye to the parents and the children." IPS Invest. Notes at ECF page 82.

On Thursday, June 5, 2014, Kane formally interviewed (and in some cases re-interviewed) Weitz, Green Baraie, Kefalas, Finkelstein, and the IPS iPad teacher, Eira Toral-Sukhra. Pl. 56.1 Stmt. ¶ 101; see also Kane Dep. Tr. at 60:11-83:2; IPS Invest. Notes at ECF pages 81-86. Weitz, Green, Baraie, Finkelstein, and Toral-Sukhra all denied having seen any inappropriate conduct by Thomsen and generally spoke favorably of his teaching skills. Pl. 56.1 Stmt. ¶¶ 101-109; see also Kane Dep. Tr. at 61:10-78:15; IPS Invest. Notes at ECF pages 81-86.

Kane interviewed Kefalas twice that day. During the first interview defendant reiterated her previous charges, including that Thomsen hid Lego pieces under his genitalia and then asked a child to take them, and added new allegations, incuding that on June 4 (the previous day), "she saw Malthe touching the girls under their dresses." IPS Invest. Notes at ECF page 84; see also Kane Dep. Tr. at 70:21-25. Kefalas also "mentioned other inappropriate touching which she would not describe." IPS Invest. Notes at ECF page 84. Kefalas stated that she had "evidence," but declined to disclose her evidence until she spoke to her lawyer. Def. 56.1 Stmt. ¶ 44; Pl. 56.1 Stmt. ¶¶ 110-11; see also Kane Dep. Tr. at 68:1-69:6, 71:23-72:10; IPS Invest. Notes at ECF pages 83-84.

During the second interview, Kane again asked Kefalas for her evidence concerning Thomsen - stressing that it was "important" to share any such evidence since the school had been "unable to corroborate any of these allegations." Kane Dep. Tr. at 79:25-81:12. In addition, Kane advised defendant that "not giving me the evidence would be insubordination," but defendant remained "unwilling to show whatever she had." Id. at 81:16-21. Kefalas then backtracked, stating that her evidence was her description of plaintiff's conduct, and explained that she was "not against the school, she was against this guy." Id. at 81:22-82:9; see also IPS Invest. Notes at ECF page 85.

Kefalas has provided several different accounts of her June 5 meetings with Kane, including several different versions of the reasons she gave him for not letting him view the videos she took in the Blue Room. See Kefalas Decl. ¶ 21 ("I informed him that it was not on my person at that time."); July 11, 2014 Email from Kefalas to Det. Gomez ("I said [the] evidence was what I witnessed . . . and any other evidence I may have I will send you with my lawyer."); Kefalas Dep. Tr. at 294:22-25 ("I said, 'I don't have it on me,' and I said, 'I have it in my phone.'").

After a further warning, and a further refusal, Kane terminated defendant's employment. Def. 56.1 Stmt. ¶ 44; Pl. 56.1 Stmt. ¶¶ 111-13; see also Kane Dep. Tr. at 82:10-16; IPS Invest. Notes at ECF page 85; Kefalas Texts at ECF page 31; Kefalas Decl. ¶¶ 21-22; July 11, 2014 Email from Kefalas to Det. Gomez; Kefalas Interrog. Resp. No. 12.

At various places in their summary judgment papers the parties have suggested that these meetings occurred, and that Kefalas was terminated, on Wednesday, June 4, 2014. See, e.g., Def. 56.1 Stmt. ¶ 24; Pl. 56.1 Stmt. ¶ 51. However, the underlying testimony and documents, including Kane's deposition testimony, the IPS investigation notes, Kefalas's contemporaneous text messages, her own declaration, and her July 11, 2014 email to Det. Gomez (reading, "Yes I am sure I was fired on June 5th 2014"), all show that the interviews took place, and defendant's employment was terminated, on Thursday, June 5, 2014.

6. Defendant's Videos

The evidence that Kefalas declined to share with IPS (although she had it on her cellphone the day she was terminated, see Kefalas Dep. Tr. at 294:22-295:7) included multiple short videos taken in the Blue Room, using that cellphone, between May 20, 2014 and June 2, 2014. The summary judgment record includes two videos from May 20, four from May 28, and eight from June 2, 2014, most of them showing Thomsen interacting unremarkably with small children. (Dkt. No. 154-4.) At deposition, Kefalas testified that she wanted to "show that the way he was handling the kids was not appropriate," Kefalas Dep. Tr. at 131:14-16, but struggled when asked to point out any improper conduct captured on the videos. See, e.g., id. at 280:5-9 ("I saw the hand of the child sort of approaching his - his genitalia, touching his genitalia area, but you couldn't see [in] the video, because I was moving my leg."); id. at 280:23-281:2 ("Because I was sitting in the chair, it was very difficult for me to tape it, so you can't really see there, but that's what was happening."); id. at 281:9-10 ("I wasn't able to capture it."); id. at 283:11-14 ("He would do it in a much worse scale, but this is just the only time I could capture a moment that is indicative of what was happening."); id. at 286:3-4 ("I don't think you can clearly see it in the video."); id. at 287:5 ("You can't see it clearly, no.").

7. Defendant Calls the SCR

While working at IPS, Kefalas had received and read a copy of the school's handbook, which informed her that school employees were "mandated reporters" who must report suspected child abuse or maltreatment to the SCR, and provided a 1-800 number for that purpose. Pl. 56.1 Stmt. ¶ 83; Kefalas Dep. Tr. at 370:9-372:19; Kefalas Decl. ¶¶ 6-8. In addition, she took a two-hour mandated reporter training class. Kefalas Dep. Tr. at 369:1-370:8.

Kefalas first called the SCR on June 11, 2014, one week after her employment was terminated. Def. 56.1 Stmt. ¶ 25. That same day, NYPD Detective Gomez was assigned to investigate defendant's accusations against Thomsen. Id. ¶ 27; see also Gomez Dep. Tr. (Dkt. No. 148-8) at 8:17-9:9. Gomez first interviewed Kefelas on June 12, 2014. Def. 56.1 Stmt. ¶ 28; see also Gomez Dep. Tr. at 8:19-21. Kefalas was accompanied by her father and her attorney. Id. at 15:25-16:19. Kefalas "generally restated what she had told IPS regarding the inappropriate behavior she observed Malthe Thomsen engage in." Kefalas Interrog. Resp. No. 13; see also Def. 56.1 Stmt. ¶ 28.

Defendant testified that she was not sure what number she called, or when. Kefalas Dep. Tr. at 372:14-373:18. However, assuming that her cellphone records (Dkt. No. 151-1) can be adequately authenticated at trial, they will confirm that she called the SCR on June 11, 2014. Similarly, the NYPD records produced by Det. Gomez reflect that the "source" (Kefalas) contacted the "child abuse hotline" on June 11, 2014. See Law Enforcement Referral (Dkt. No. 148-5, at ECF pages 217-18). I therefore conclude that there is no genuine dispute as to whether and when Kefalas called the SCR.

According to Det. Gomez's typed interview notes, Kefalas reported that she saw plaintiff "grab children [sic] hands and make the children touch his genitals," "place toys under his gen[itals] over his clothes so the children would touch his genitals as they were trying to grab the toys," "grab childrens [sic] buttocks as he would carry them down from the monkey bars," and "dry hump other children where the childs [sic] face would be facing Mr. Malthe [sic] groin and dry hump towards the children [sic] face." (Dkt. No. 148-5, at ECF page 40.)

Kefalas also told Gomez that she had documented her observations with video recordings, and provided Gomez with a copy of "one or two" recordings. Gomez Dep. Tr. at 23:22-24:15, 26:5-27:4. According to Gomez, the videos themselves were "of no investigatory value." Id. at 27:21-28:4; see also id. at 35:8-11 ("there was really nothing on the video that would be helpful"). However, Gomez believed Kefalas, see id. at 106:25-107:3, and, after discussing the matter with her supervisors, decided to interview Thomsen next. Id. at 124:20-125:19; see also Pl. 56.1 Stmt. ¶ 123.

The undersigned Magistrate Judge concurs, as did the District Judge. See Thomsen, 2016 WL 590235, at *13 n.7 (the videos "do not assist Kefalas").

8. The Criminal Investigation and Prosecution

Early in the morning on June 27, 2014, Gomez and another police officer came to plaintiff's home. Def. 56.l Stmt. ¶ 13. Thomsen agreed to accompany them to a nearby police station, id., where he was read, and waived, his Miranda rights. Id. ¶¶ 14-15. He was then questioned by Gomez for approximately four hours. Id. ¶ 18.

The interview was not recorded, and the parties vigorously dispute what Thomsen was told as well as what he said. According to plaintiff, Gomez (i) falsely informed him that there were videos showing him engaged in the specific conduct alleged by Kefalas, see Thomsen Dep. Tr. I at 204:3-7; Thomsen Dep. II at 89:19-23; (ii) suggested that he might have engaged in that conduct "without knowing it," see Thomsen Dep. Tr. I at 181:16-19; and (iii) relentlessly pressured him to confess even though he could not recall committing any abuse. According to Gomez, she told Thomsen that she had seen the videos, but did not tell him that they were inculpatory or engage in any "trickery" about "evidence that doesn't really exist." Gomez Dep. Tr. at 189:11-190:10. Moreover, Gomez testified, by the end of the interview Thomsen clearly admitted - three times - that he "grabbed the children's hands, put them up his genitals [sic] to touch him," and that "it felt good." Id. at 217:7-23.

Thomsen testified that when he asked to see the videos, Gomez said they were not available, "and that either way, it wasn't relevant at that time because I knew what was on them." Thomsen Dep. Tr. I at 204:7-14; accord Thomsen Dep. Tr. II at 108:5-9. It did not occur to Thomsen that a police officer might misrepresent the existence or contents of evidence. See Thomsen Dep. Tr. I at 204:15-24 (upon learning about the videos "my head like exploded" because "I believed in the authority of the police and . . . she was a Special Victims Unit officer who had expertise in this sort of thing," ); id. at 205:1-6 (Thomsen did not know "why she would [lie] about something like that," but "at the same time, I couldn't remember having done anything like that."). He began to doubt his own memory. See Thomsen Dep. Tr. II at 104:8-10 ("I couldn't remember having done it, but if it's on video, then it would have to be true."). As the questioning wore on, he "probably ended up believing her to some degree." Id. at 109:1-6. Asked directly about the same allegations at deposition, Thomsen denied engaging in any of the misconduct that Kefalas reported. See Thomsen Dep. Tr. II at 7:15-8:11, 73:17-74:14.

Gomez also denied bringing up or discussing the idea that Thomsen might have engaged in abusive behavior without being aware of it. Gomez Dep. Tr. at 187:7-16.

Thereafter, Thomsen executed what Kefalas characterizes as a "written confession." Def. 56.1 Stmt. ¶ 32. In the document itself (Dkt. No. 148-11), plaintiff stated that he "had a rude awakening" that morning when he "realized" that he "had taken a kids [sic] hand to the genital area of my shorts, and taken something good from it." Plaintiff wrote that he was "horrified by this," because he "didn't think this was a part of me," but was glad it was "found out this early" and wanted to "deal with this part of me" and "do whatever necessary." Id.

Thomsen was then taken to the District Attorney's office, where ADA Ferrari conducted a video-recorded interview in which she confirmed the authenticity of his written statement, obtained some background information, then asked "what happened?" Video Interview (Dkt. No. 154-3) at 12:50:07-13:01:57. Thomsen responded by stating that Kefalas had "presented a video, and so I had taken kids' hands during play time and placing it [sic] around my genital area and my shorts." Id. at 13:02:00-13:02:33. He denied having any sexual thoughts about children, "but of course being presented with this today I realized that it was something I did and it's like, it's really hard to take in." Id. at 13:03:30-13:03:51. Asked to confirm details of the charges, Thomsen could not do so. Asked whether he had ever touched a child inappropriately, Thomsen replied that he "was told" that he had done so. Id. at 13:05:54-13:07:02, 13:39:05-13:39:40.

For example, Thomsen could not say when the misconduct started, Video Interview at 13:20:03-13:20:37, or how often it occurred. Id. at 13:20:38-13:22:30. Nor could he identify any specific child with whom he engaged in any inappropriate conduct, even after discussing each child in the Blue Room with ADA Ferrari. See id. at 13:23:25-13:29:00.

At the conclusion of the videotaped interview, plaintiff was arrested. Def. 56.1 Stmt. ¶ 34. Neither party suggests that there was any basis for that arrest beyond Kefalas's statements and his own. Plaintiff was charged with 15 counts of sexual abuse in the first degree in violation of N.Y. Penal L. § 130.65(3). See Criminal Complaint (Dkt. No. 148-5, at ECF pages 229-30). The case was widely covered in the press. Approximately 40 children were withdrawn from IPS when the story broke. Kane Dep. Tr. at 203:13-19. Some of the children later re-enrolled. Id.

The NYPD did not speak to any of the IPS witnesses who were present when the alleged abuse took place, nor to any of the children in the Blue Room, until after Thomsen was arrested. Pl. 56.1 Stmt. ¶ 123; Gomez Dep. Tr. at 81:5-83:16, 124:20-125:19.

See, e.g., Colin Moynihan and Joseph Goldstein, Preschool Intern Accused of Sex Abuse Can Be Kept in Jail, N.Y. Times, July 3, 2014, https://www.nytimes.com/2014/07/04/...ex-abuse-can-be-kept-in-jail-judge-says.html; Alex Greig, Danish intern, 22, jailed for allegedly sexually abusing 13 children at Manhattan preschool, Daily Mail, July 4, 2014, http://www.dailymail.co.uk/news/art...-allegedly-sexually-abusing-13-children.html; 22-årig dansker faengslet i New York, Politiken, July 5, 2014, http://politiken.dk/udland/art5524559/22-årig-dansker-fængslet-i-New-York; Adam K. Raymond, Posh Manhattan Preschool Shaken Up by Messy Sex Abuse Allegations, N.Y. Magazine, July 23, 2014, http://nymag.com/daily/intelligencer/2014/07/posh-nyc-preschool-shaken-up-by-sex-abuse-claims.html (all last visited March 26, 2018).

Meanwhile, the NYPD and the District Attorney continued their investigation. Law enforcement personnel searched Thomsen's phone and computer, interviewed various IPS personnel, and conducted forensic interviews of a dozen children who had been in the Blue Room with Thomsen. See Informational Reports dated June 28-July 2, 2014 (Dkt. No. 148-5, at ECF pages 77-101). On September 18, 2014, the People moved to lower Thomsen's bail, reporting concerns about the government's ability to produce "competent reliable evidence" corroborating Thomsen's statements. Pl. 56.1 Stmt. ¶ 127; see also Tr. of Sept. 18, 2014 Crim. Ct. Hr'g (Dkt. No. 58-5), at 2-3. On November 13, 2014, the People moved to dismiss all of the charges against Thomsen. Pl. 56.1 Stmt. ¶ 128. ADA Ferrari explained that after "a careful and thorough evaluation of the evidence gathered in our extensive investigation, we have determined that we cannot prove this case beyond a reasonable doubt." Tr. of Nov. 13, 2014 Crim. Ct. Hr'g (Dkt. No. 58-6) at 2.

II. LEGAL STANDARDS

A. Summary Judgment

A court may grant a motion for summary judgment "if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128-29 (2d Cir. 1996). The party moving for summary judgment bears the burden of showing the absence of any genuine dispute of material fact by citing to admissible evidence in the record. Fed. R. Civ. P. 56(a), (c); Adickes v. S.H Kress & Co., 398 U.S. 144, 157 (1970).

If the moving party meets its initial burden, the burden then shifts to the non-moving party to establish a genuine dispute of fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party may not avoid summary judgment by "relying solely on conclusory allegations or denials that are unsupported by facts." Garcia v. Jon.Jon Deli Grocery Corp., 2015 WL 4940107, at *2 (S.D.N.Y. Aug. 11, 2015) (citing Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002)). Instead, the non-moving party "must set forth 'specific facts showing that there is a genuine issue for trial.'" Garcia, 2015 WL 4940107, at *2 (quoting Celotex Corp., 477 U.S. at 324).

When considering a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Thus, "the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. The inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin, 46 F.3d at 202 (citations omitted).

At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "The trial court's responsibility is 'limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.'" Cornigans v. Mark Country Day Sch., 2006 WL 3950335, at *3 (E.D.N.Y. July 12, 2006) (quoting B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996)), report and recommendation modified on other grounds, J.C. v. Mark Country Day Sch., 2007 WL 201163 (E.D.N.Y. Jan. 23, 2007). In other words, the court need only "determine 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Shapiro v. Kronfeld, 2004 WL 2698889, at *8 (S.D.N.Y. Nov. 24, 2004) (quoting Anderson, 477 U.S. at 251-52). "Summary judgment is proper only when, with all permissible inferences and credibility questions resolved in favor of the party against whom judgment is sought, 'there can be but one reasonable conclusion as to the verdict."' Kaytor v. Electric Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010) (quoting Anderson, 477 U.S. at 250). See also Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (quoting In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009)) ("Summary judgment is inappropriate when the admissible materials in the record 'make it arguable' that the claim has merit").

"A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). See also Local Civ. R. 56.1(d) (each statement by a party of a fact as to which that party contends that there is, or is not, a genuine issue to be tried must be followed by a citation to evidence "which would be admissible," as required by Fed. R. Civ. P. 56(c)). However, "documents inadmissible under the evidence rules may be considered by the court if not challenged." 10A Wright, Miller, & Kane, Federal Practice & Procedure § 2722, at 400 (4th ed.); accord Capobianco v. City of New York, 422 F.3d 47, 55-56 (2d Cir. 2005) (where "unsworn letters" were submitted by defendants as part of their summary judgment moving papers, defendants "waived any objections" to their admissibility, thus permitting plaintiff to rely on them in opposition to the motion); accord A.A.B. Joint Venture v. United States, 77 Fed. Cl. 702, 706 (2007); Jackson v. City of New York, 2011 WL 1533471, at *9 (E.D.N.Y. Mar. 3, 2011), report and recommendation adopted sub nom. Jackson v. New York, 2011 WL 1527935 (E.D.N.Y. Apr. 22, 2011); Watson v. Long Island R.R. Co., 500 F. Supp. 2d 266, 269 n.5 (S.D.N.Y. 2007).

Here, because subject-matter jurisdiction is based on diversity of citizenship and plaintff's claims all arise under state law, the Court applies the substantive law of the State of New York. See, e.g., Burt Rigid Box, Inc., 302 F. 3d at 91.

B. New York Social Services Law

1. Reasonable Cause

Article 6, Title VI of the New York Social Services Law, first enacted in 1973 as the Child Protective Services Act (the Act), L.1973, ch. 1039, § 1, 1973 N.Y. Laws 2909, was designed "to encourage more complete reporting of suspected child abuse and maltreatment." N.Y. Soc. Serv. Law § 411. In its current form, the Act requires teachers, school administrators, and other school officials to "report or cause a report to be made" whenever they "have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or mistreated child." Id. § 413(1)(a). Reports of "suspected child abuse" under the statute must be made "immediately," either by telephone or by facsimile. Id. § 415. Oral reports must be made to the SCR, "unless the appropriate local plan for the provision of child protective services provides that oral reports should be made to the local child protective service," and must be followed by a written report within 48 hours. Id.

In New York City, oral reports are made by calling the SCR. See Mandated Reporters, New York City Administration for Children's Services, https://www1.nyc.gov/site/acs/child-welfare/mandated-reporters.page (last visited March 26, 2018).

Mandated reporters "need not await conclusive evidence of abuse or maltreatment but must act on their reasonable suspicions." Rine v. Chase, 309 A.D.2d 796, 798, 765 N.Y.S.2d 648, 650 (2d Dep't 2003) (quoting Isabelle V. v. City of New York, 150 A.D.2d 312, 313, 541 N.Y.S.2d 809, 810 (1989)); see also Kempster v. Child Prot. Servs. of Dep't of Soc. Servs. of Suffolk Cty., 130 A.D.2d 623, 625, 515 N.Y.S.2d 807, 809 (2d Dep't 1987) (reporting requirement is predicated upon "reasonable cause to suspect that the infant might have been abused," not "actual or conclusive proof").

Mandated reporters who "willfully" fail to report suspected child abuse may be charged with a Class A misdemeanor. N.Y. Soc. Serv. Law § 420(1). In addition, mandated reporters who "knowingly and willfully" fail to report suspected child abuse may be subject to civil liability for any damages proximately caused by their inaction. Id. § 420(2).

2. Presumption of Good Faith

"The state's interest in encouraging teachers to protect students is . . . powerful." Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir. 2011); see also Satler v. Larsen, 131 A.D.2d 125, 129, 520 N.Y.S.2d 378, 382 (1st Dep't 1987) ("The importance of rapidly detecting and addressing instances of an evil as pernicious as child abuse cannot be overstated."). To that end, the Act provides qualified immunity to mandated reporters from "any liability, civil or criminal," that might otherwise result from the reporter's participation "in good faith" in "the making of a report" pursuant to the statute. N.Y. Soc. Serv. Law § 419. The good faith of a mandated reporter "shall be presumed," id., provided that (a) the report was made in "discharge of [the reporter's] duties and within the scope of [her] employment," and (b) any resultant liability (from the report) did not "result from the willful misconduct or gross negligence" of the reporter. Id.

3. Standard for Reasonable Cause

The "reasonable cause" language of § 413(1)(a), which creates the duty to report suspected child abuse, does not reappear in § 419, which establishes qualified immunity for reports made in good faith. However, the New York courts, to which this Court must defer when interpreting a New York statute, see United States v. Fernandez-Antonia, 278 F.3d 150, 162 (2d Cir. 2002), have consistently held that statutory immunity "attaches" only where both standards are met; that is, "where there is reasonable cause to suspect that the child might have been abused, and where the reporting party has acted in good faith." Goldberg v. Edison, 41 A.D.3d 428, 428, 838 N.Y.S.2d 145, 146 (2d Dep't 2007) (Goldberg I) (emphasis added); accord Biondo v. Ossining Union Free Sch. Dist., 66 A.D.3d 725, 727, 888 N.Y.S.2d 75, 77 (2d Dep't 2009); Lentini v. Page, 5 A.D.3d 914, 915-16, 773 N.Y.S.2d 472, 474 (3d Dep't 2004); Rine, 309 A.D.2d at 797, 765 N.Y.S.2d at 650; Kempster, 130 A.D.2d at 625, 515 N.Y.S.2d at 809. Thus, in Vacchio v. St. Paul's United Methodist Nursery Sch., 1995 WL 17959412 (N.Y. Supr. Ct. N.Y. Co. Aug. 18, 1995), where a nursery school teacher made a report of suspected child abuse after observing a child's black eye - without any further investigation - the court expressly relied on the "reasonable cause" standard in refusing to dismiss the subsequent suit by the child's parents. 1995 WL 17959412, at *4 (noting that "[t]he concepts of 'reasonable suspicion' and 'reasonable cause' from which the immunity springs are inextricably interwoven with the concept of 'gross negligence' which serves both to rebut the presumption of good faith and to remove the foundational underpinnings on which the immunity is grounded"). See also Biondo, 66 A.D.3d at 727, 888 N.Y.S.2d at 77 (affirming denial of summary judgment where there were "triable issues of fact as to whether the defendant school district employees had reasonable cause to suspect possible child abuse" by the plaintiff).

Whether reasonable cause exists to suspect child abuse is an objective question that must be answered in light of the information available to the reporter at the time of her report. See, e.g., Rine, 309 A.D.2d at 797-98, 765 N.Y.S.2d at 650 (granting summary judgment in favor of defendant reporter where she "submitted evidence establishing that the children made statements to her during therapy sessions which provided her with reasonable cause to suspect that they had been abused by the plaintiff" and demonstrated "that she acted in good faith in reporting her suspicions"); Satler, 131 A.D.2d at 131, 520 N.Y.S.2d at 382 (dismissing claims on summary judgment where "there was ample basis for the report"); Kempster, 130 A.D.2d at 625-26, 515 N.Y.S.2d at 809-810 (finding that appellant "had reasonable cause to suspect a possible case of child abuse" based on "the medical data and other available information" when the report was made); see also Shapiro, 2004 WL 2698889, at *19 (citing § 419 and holding, in federal civil rights action, that school social worker and principal were entitled to qualified immunity because "it was objectively reasonable" for them to "report to the SCR their suspicions concerning possible abuse or neglect based on what [the child] had reported to them"); Carossia v. City of New York, 39 A.D.3d 429, 430, 835 N.Y.S.2d 102 (2d Dep't 2007) (granting motion for directed verdict to defendants where mandated reporter had "reasonable cause to suspect the child might have been abused" after being presented with "serious allegations of child sexual abuse" that were "seemingly" confirmed by the child).

In her moving brief, defendant Kefalas points out, correctly, that § 413(1)(c) of the Act, which protects employees from "retaliatory personnel action" for making mandated reports, states that no such retaliatory action may be taken against an employee "because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee therefore makes a report in accordance with this title." (Emphasis added.) From this, she infers that "the reasonable cause standard is a subjective one which focuses on the mens rea of the reporter." Def. Mem. at 5; see also Tr. of Feb. 24, 2017 Hr'g at 11:5-12:11 (conceding that "an objective standard is used" to determine whether a mandated reporter is liable for failing to make a report, but arguing that "with regard to retaliation by an employer or with regard to whether statutory immunity attaches, it's actually the subjective mindset of the reporter" that controls) (emphasis added). Counsel is correct as to retaliation, which is governed by the very specific language of subsection (1)(c), but not as to statutory immunity, which is governed by the more general "reasonable cause" language of subsection (a)(1) and by New York case law, which consistently looks to objective evidence to determine when immunity "attaches," and which this Court is not free to disregard. See Fernandez-Antonia, 278 F.3d at 162 (The federal courts, when interpreting a New York statute, are "guided not only by the language of the statute itself but also by New York courts' interpretation of the statute.").

As noted above, "reasonable cause" does not require "conclusive evidence," Rine, 309 A.D.2d at 798, 765 N.Y.S.2d at 650, or indeed any other particular type or quantity of evidence. However, "[t]he requisite knowledge must be more than subjective; it should have at least some demonstrable roots." Vacchio, 1995 WL 17959412, at *3 "Mere 'hunch' or 'gut reaction' will not do." Id. (quoting People v. Sobotker, 43 N.Y.2d 559, 564, 402 N.Y.S.2d 993, 996 (1978)).

4. Standard for Rebutting Presumption of Good Faith

Long before the Act became law in 1973, the New York courts recognized, as a matter of common law, that where a defendant is entitled to qualified immunity arising from statements made pursuant to a statutory obligation, the plaintiff may rebut that presumption by showing both the falsity of the statements and "actual malice or ill will" on the part of the defendant. See, e.g., Shapiro v. Health Ins. Plan of Greater New York, 7 N.Y.2d 56, 61, 163 N.E.2d 333, 336 (1959) ("When defendant's statements are presumptively privileged the rule is that, in order to render them actionable, it is incumbent on the plaintiff to prove that [they were] false and that the defendant was actuated by express malice or actual ill-will.") (internal quotation marks omitted).

Although § 419 states on its face that either "willful misconduct" or "gross negligence" will defeat the presumption of good faith, many New York courts continue to apply the older common-law formulation to cases arising under that provision. See, e.g., Miller v. Beck, 82 A.D.2d 912, 913, 440 N.Y.S.2d 691, 691-92 (2d Dep't 1981) (citing Shapiro, 7 N.Y.2d at 61) ("Where, as here, a defendant's statements are presumptively privileged, either by statutory mandate or at common law, they are actionable only if the plaintiff can prove their falsehood and that the defendant was motivated by actual malice or ill will."); accord Satler, 131 A.D.2d at 130-31, 520 N.Y.S.2d at 382 (at summary judgment, plaintiff was required "to produce evidence sufficient to raise a triable issue of fact as to whether defendant acted out of actual malice"); Zornberg v. N. Shore Univ. Hosp., 29 A.D.3d 986, 815 N.Y.S.2d 719, 720 (2006) ("Although the defendants are entitled to immunity from liability based upon the good-faith making of a report of suspected child abuse, and the good faith of any person required to report cases of suspected child abuse shall be presumed, the complaint alleged facts sufficient to support a claim of actual malice.") (internal citations omitted); see also Stratakis v. Ferncliff Manor Home for the Handicapped, 308 A.D.2d 397, 398, 764 N.Y.S.2d 431, 432 (1st Dep't 2003) (denying summary judgment where the "strained relationship" and "verbal confrontations" between plaintiff and defendant suggested that defendant's report may have been retaliatory).

Other cases recite both the statutory language ("willful misconduct or gross negligence") and the common-law standard ("actual malice or ill-will"), treating them as alternative methods of rebutting the presumption of good faith. E.g., Rine, 309 A.D.2d at 798, 765 N.Y.S.2d at 650 (granting summary judgment to defendant where plaintiff's evidence "was insufficient to raise a triable issue of fact as to whether the defendant engaged in misconduct or gross negligence" and she "failed to come forward with evidence raising an issue of fact as to whether the defendant acted with actual malice"); Hachmann v. Cty. of Nassau, 29 A.D.3d 952, 952-53, 818 N.Y.S.2d 102, 103-104 (2006) (noting school officials are generally entitled to immunity for reports absent "willful misconduct or gross negligence" but denying summary judgment to defendant where plaintiff demonstrated "an issue of fact as to actual malice"); Goldberg v. Edson, 41 A.D.3d 429, 429-30, 837 N.Y.S.2d 326, 326-27 (2d Dep't 2007) (Goldberg II) (finding that there was "no evidence" that physician who participated in a child abuse investigation was "guilty of willful misconduct or gross negligence so as to overcome the statutory presumption of good faith," and also noting there was "no evidence that [physician] acted with any malice toward the mother or any other member of the child's family").

In addition - and not surprisingly - a number of cases focus exclusively on the standard set out in the statute itself. See, e.g., Lillian C. v. Admin. for Children's Servs., 48 A.D.3d 316, 316-17, 852 N.Y.S.2d 86, 87 (1st Dep't 2008) (holding that defendants were entitled to summary judgment because "[t]he record contains no evidence of willful misconduct or gross negligence, which is required to overcome the statutory presumption"); Ervin v. Bronx Lebanon Hosp. Ctr., 17 A.D.3d 301, 302, 794 N.Y.S.2d 41, 41 (1st Dep't 2005) (affirming summary judgment where "[n]o triable issue was raised as to whether defendants . . . engaged in willful misconduct or were grossly negligent in making the disputed report of child abuse"). In Vacchio, for example, the court applied the "willful misconduct or gross negligence" standard, and denied summary judgment, 1995 WL 17959412, at *2, without ever mentioning "malice" or "ill will."

"Willful misconduct occurs when a person intentionally acts or fails to act knowing that (his, her) conduct will probably result in injury or damage." N.Y. Prac. Com. Litig. § 88:92 (4th ed.); see also Seminara v. Highland Lake Bible Conference, Inc., 112 A.D.2d 630, 633, 492 N.Y.S.2d 146, 148 (3d Dep't 1985) ("Intentional acts of unreasonable character, performed in disregard of a known or obvious risk so great as to make it highly probable that harm will result, are considered willful conduct in the realm of tort law.") (citing W. Prosser & W. Keeton, The Law of Torts § 34, at 213 (5th ed. 1984)).

"Gross negligence," in New York, "betokens a reckless indifference to the rights of others." Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 385, 448 N.E.2d 413, 417 (1983); see also Cornejo v. Bell, 2008 WL 5743934, at *19 (E.D.N.Y. May 19, 2008) (quoting Mosher-Simons v. Cty. of Allegany, 1997 WL 662512, at *6 (W.D.N.Y. Sept. 30, 1997) ("Gross negligence is defined as 'an aggravated disregard for the rights and safety of others.'"); Shapiro, 2004 WL 2698889, at *23 (gross negligence "requires a showing of deliberate indifference or reckless disregard"); Vacchio, 1995 WL 17959412, at *4 (quoting Colnaghi U.S.A., Ltd. v. Jewelers Prot. Servs, Ltd., 81 N.Y.2d 821, 823-24, 595 N.Y.S.2d 381, 383 (1993)) (gross negligence is "conduct that evinces a reckless disregard for the rights of others or 'smacks' of intentional wrongdoing") (internal citation omitted). In declining to dismiss claims against a nursery school teacher and the school, the Vacchio court reasoned that the teacher's failure to conduct even a "preliminary inquiry or investigation" into a child's black eye before calling the SCR "may support a finding of gross negligence." 1995 WL 17959412, at *4.

It is clear, however, that immunity attaches even where reports of abuse are "ultimately determined to be unfounded." Rine, 309 A.D.2d at 798, 765 N.Y.S.2d at 650. Thus, evidence that the report was unfounded, i.e., that no abuse actually occurred, does not - standing alone - undercut the existence of "reasonable cause," nor rebut the presumption of good faith. Mark Country Day Sch., 2007 WL 201163, at *7 ("[T]he issue is not whether there is ultimately a finding of abuse or not . . . but rather whether plaintiffs have rebutted the presumption of good faith.") (internal quotations omitted); Rine, 309 A.D.2d at 798, 765 N.Y.S.2d at 650 (granting summary judgment to defendants where report, although "determined to be unfounded," was not motivated by "actual malice"). It is equally clear that simple negligence is insufficient to rebut the presumption of good faith. See Lara v. City of New York, 187 Misc. 2d 882, 891, 726 N.Y.S.2d 217, 224 (Supr. Ct. N.Y. Co. 2001) ("Negligence, even if established, is not synonymous with bad faith.").

Good faith, like reasonable cause, must be evaluated in light of the information available to the reporter at the time of her report. Thus, facts that could not have been known to the reporter at that time - whether inculpatory or exculpatory - are irrelevant to the good faith analysis. See Thomsen, 2016 WL 590235, at *13 (S.D.N.Y. Feb. 11, 2016) (plaintiff's post-arrest "confessions" "cannot retroactively absolve Kefalas of the bad faith and malicious intent with which she allegedly brought her reports to IPS and the NYPD"); see also Kipper v. NYP Holdings Co., 12 N.Y.3d 348, 354-55, 912 N.E.2d 26, 29 (2009) (the actual malice inquiry looks to "the state of mind of the publisher . . . at the time of publication").

C. Evidence

In analyzing the Act I have relied on the statute itself, the cases interpreting it, and the arguments of the parties' counsel. I did not rely on the expert declaration of attorney Wolowitz, notwithstanding that his practice "involves extensive analysis of applicable mandated reporting laws." Wolowitz Decl. ¶ 1. The bulk of his declaration consists of a series of assertions as to how the Act should be interpreted and how it should be applied in this case. Specifically, attorney Wolowitz contends (without citing any cases or other authority beyond the Act itself) that both the "reasonable cause" standard set forth in § 413 and the "good faith" standard set forth in § 419 are "subjective." Id. ¶¶ 7-13. From this he concludes that if Kefalas "subjectively believed that the behavior she had witnessed was abusive," she was both obligated to report it and immune from any resulting liability. Id. ¶ 13.

As noted above, defendant's litigation counsel took a more nuanced position at oral argument, conceding that a mandated reporter's obligation to call the SCR is governed by an objective standard. Tr. of Feb. 24, 2017 Hr'g at 11:5-12:11.

It is well-settled in this Circuit that expert opinions as to the interpretation and application of domestic law are inadmissible. See Marx & Co., Inc. v. Diners' Club Inc., 550 F.2d 505, 509-510 (2d Cir. 1977) (holding that a lawyer called as an expert witness could explain customary "practices" in the securities industry, but that it was error to admit his "legal opinions as to the meaning of the contract terms at issue" or his "conclusions as to the legal significance of various facts adduced at trial"). "As Professor Wigmore has observed, expert testimony on law is excluded because 'the tribunal does not need the witness' judgment . . . [T]he judge (or the jury as instructed by the judge) can determine equally well'" what the law is - and how it should be applied to the facts of the case - thus making "the witness' testimony superfluous." Id. at 510 (quoting VII Wigmore on Evidence § 1952, at 81). Accordingly, a district court must "exclude expert testimony that 'provides legal opinions, legal conclusions, or interprets legal terms; those roles fall solely within the province of the court.'" Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 48 (S.D.N.Y. 2016) (citing Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 470 (S.D.N.Y. 2005)). The operative provisions of the Wolowitz Declaration consist entirely of prohibited legal opinion and legal conclusions, and for that reason will be disregarded.

III. ANALYSIS

In this case, after reviewing the record in the light most favorable to plaintiff Thomsen, see Cronin, 46 F.3d at 202, I conclude that defendant Kefalas was a mandated reporter and that her report was made within the scope of her employment. However, plaintiff has raised triable issues of fact, precluding summary judgment, as to (a) whether defendant had reasonable cause to suspect child abuse and (b) whether her report was made in good faith.

A. Kefalas was a Mandated Reporter

Plaintiff argues that Kefalas is not entitled to statutory immunity because she waited too long to call the SCR and was no longer a teacher - and therefore no longer a mandated reporter - when she finally did so on June 11, 2014. See Pl. Mem. at 18-21. Noting that the duty to report attaches "immediately," N.Y. Soc. Serv. L. § 415, but that defendant waited until a week after her employment was terminated to make her report, plaintiff concludes that she could not have been acting "in the discharge of [her] duties and within the scope of [her] employment," as required by § 419. Pl. Mem. at 20-21.

I am not persuaded. The reporting requirement is triggered when "a child coming before [the mandated reporter] in [her] professional or official capacity is an abused or mistreated child." It is undisputed that Kefalas's reporting obligation arose - if at all - while she was employed at IPS and while the children in the Blue Room came before her in her "professional . . . capacity." Once the reporting requirement is triggered, it does not expire with the end of the reporter's employment. See Hilbert S. v. Cty. of Tioga, 2005 WL 1460316, at *1 n.3 (N.D.N.Y. June 21, 2005) (fact that Department of Social Services employee was no longer employed by DSS was "irrelevant" to claims against her for, inter alia, failing to report suspected child abuse). Since the good faith presumption and the obligation to report go hand in hand, it would make little sense to strip a teacher of the presumption the moment she loses her job while continuing to mandate - on pain of civil and criminal liability, see N.Y. Soc. Serv. . § 420 - that she report suspected abuse. Consequently, while it is undisputed that Kefalas's employment was terminated a week before she made her report, this fact, standing alone, is not grounds for denying her summary judgment motion.

B. Questions of Fact Exist as to Reasonable Cause

In Kefalas's view of the law, once a mandated reporter has called the SCR she is immune from civil liability, pursuant to the presumption of good faith built into N.Y. Soc. Serv. Law § 419, unless the plaintiff rebuts that presumption by making "a persuasive showing that the reporter acted with malice or ill-will." Def. Mem. at 7 (emphasis in the original). Therefore, Kefalas reasons, since she has "maintained at all times that she believed the plaintiff was engaging in inappropriate behavior," id. at 8, and since no witness has "stated that [she] fabricated her claims . . . or that her reports were the result of malicious intent," id., defendant is entitled to summary judgment. See also Def. Reply Mem. at 2 (arguing that defendant is entitled to summary judgment because there is no evidence that she "did not subjectively believe that the plaintiff had committed inappropriate conduct").

Leaving aside, for the moment, that adjudicating the "persuasiveness" of a factual showing is a task for the trier of fact at trial - not the court on summary judgment - defendant's analysis is flawed in several respects. First, she ignores the teaching of Goldberg I and its progeny that statutory immunity "attaches" only where (1) "there is reasonable cause to suspect that the child might have been abused," and (2) "the reporting party has acted in good faith." Goldberg I, 41 A.D.3d at 428, 838 N.Y.S.2d at 146; accord Kempster, 130 A.D.2d at 625, 515 N.Y.S.2d at 509. Thus, in addition to the evidence as to "good faith," I must also consider the evidence as to "reasonable cause." See Biondo, 66 A.D.3d at 727, 888 N.Y.S.2d at 77 (affirming denial of summary judgment where there were "triable issues of fact" as to whether defendants had "reasonable cause" to suspect child abuse); Vacchio, 1995 WL 17959412, at *4 (denying motion to dismiss where complaint alleged facts calling into question whether defendant had reasonable cause to suspect abuse).

Second, while "reasonable cause" is a generous standard - consistent with the overall goal of the Act to encourage the reporting of suspected abuse - it is not, as defendant argues, "a subjective one." Def. Mem. at 5. Reasonable cause must be judged objectively, in light of the information available to the reporter at the time of her report. Vaccio, 1995 WL 17959412, at * 3 (quoting People v. Brooks, 88 A.D.2d 451, 454, 453 N.Y.S.2d 740, 742-43 (2d Dep't 1982)) (reporter's belief "must be based upon articulable facts which, when examined objectively, would lead others to the same conclusion") (emphasis added); see also, e.g., Kempster, 130 A.D.2d at 625-26, 515 N.Y.S.2d at 809-810 (defendants had "reasonable cause" to suspect child abuse based on "the medical data and other available information" when the report was made). Viewing the evidence from this perspective, I conclude that plaintiff has raised a triable issue of fact as to whether Kefalas had "reasonable cause" to suspect that he was sexually abusing the young children in his care.

The record is striking for the number of adult witnesses who were present, along with Kefalas, when the alleged abuse occurred - and in some instances were actively looking for evidence of it - but saw no sign of inappropriate behavior. Unlike many cases involving allegations of sexual misconduct with children, the misconduct at issue here took place in public or semi-public settings. Thomsen was always in plain view of at least two permanent teachers in the Blue Room. See Baraie Dep. Tr. at 11:19-12:10 (two permanent teachers were required to be in the room at all times); id. at 21:22-24 (Thomsen was never alone with any students); Kefalas Interrog. Resp. No. 11 (either Baraie or Weisz were "usually" present when the alleged misconduct occurred; Green, Finkelstein and Cohen "may also have been present"). At the zoo - when according to Kefalas's initial interview with Kane plaintiff stood behind the children in line and "rub[bed] their heads against his genitals," Kane Dep. Tr. at 29:21-30:7 - he and the children were accompanied by all three Blue Room teachers and multiple parents. Baraie Dep. Tr. at 24:18-24:4 (each child was accompanied by an adult). And on June 3, 2014 - when Kefalas texted her father that Thomsen was "still doing it," and named two different children as his victims - he was under direct observation by Location Director Green and Developmental Specialist Finkelstein. Indeed, in her texts that day, Kefalas confirmed that "the psychologist" (Finkelstein) was "looking at him" while he was "doing it." Kefalas Texts at ECF page 17.

Significantly, the two occasions on which Thomsen was under the most scrutiny - May 22, when the Blue Room went to the zoo, and June 3, when Green and Finkelstein were dispatched to observe his behavior - are also the two occasions as to which Kefalas has given inconsistent accounts, at some points insisting that plaintiff committed clear misconduct in full view of adult observers, while at other points stating that nothing suspicious occurred while those observers were present. Regarding the zoo trip, compare Kane Dep. Tr. at 29:21-31:15 (Kefalas told Kane that Thomsen rubbed the childrens' heads against his genitals during the zoo trip, which no one else noticed) with Kefalas Dep. Tr. at 110:12-17 (testifying that nothing "suspicious" occurred on the field trip). Regarding the events of June 3, when Green and Finkelstein were observing, compare Kefalas Texts at ECF pages 17-18 (telling her father that Finkelstein was "looking at him . . . doing it" and that Finkelstein "saw it") with Kefalas Decl. ¶ 20 ("Of course, the plaintiff committed no further misconduct in the presence of the two adults.").

All of these witnesses were interviewed by CAO Kane, and one of them, Sarah Baraie, has been examined under oath. Baraie testified that she "never" saw Thomsen interact inappropriately with IPS students. Baraie Dep. Tr. at 21:15-24; see also id. at 22:4-23:17 (testifying that she did not witness any of the specific acts of misconduct reported by Kefalas). Similarly, it is undisputed that both Finkelstein and Green denied observing any misconduct by Thomsen. Pl. 56.1 Stmt. ¶ 147; see also IPS Invest. Notes at ECF pages 84-85, 86-87; Kane Dep. Tr. at 14:13-18:4, 48:15-54:24. Nor did any other observer corroborate Kefalas's claim that after the zoo trip the children "all began to play with themselves." Kane Dep. Tr. at 32:2-3. Moreover, Kefalas knew that IPS was investigating, and knew - because Kane told her so on June 5, 2014 - that the school had been "unable to corroborate any of these allegations." Id. at 79:25-81:12.

The parties vigorously dispute whether Kefalas's charges were corroborated, after she called the SCR, by the statements that Thomsen made to Det. Gomez and ADA Ferrarri. Those statements may be admissible at trial, where the truth of Kefalas's charges will be in issue. On summary judgment, however, the issue is not whether defendant's report was true; it is whether she is entitled to statutory immunity for making it. Evidence going to facts that she could not have known when she called the SCR on June 11 cannot be relevant to her good faith on that date. See Thomsen, 2016 WL 590235, at *13 (Thomsen's statements to the NYPD "cannot retroactively absolve Kefalas of the bad faith and malicious intent with which she allegedly brought her reports to IPS and the NYPD"). Nor could such evidence bear on whether she had reasonable cause for her charges at the time she made them. See generally Quezada v. Bakraqi, 2017 WL 4286646, at *7 (S.D.N.Y. Sept. 7, 2017) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)) ("In evaluating probable cause, the court is to 'consider the facts available to the officer at the time of the arrest.'"), report and recommendation adopted, 2017 WL 4296787 (S.D.N.Y. Sept. 26, 2017).

Kefalas also knew that her cellphone videos - which she recorded over many days in the Blue Room, sent to her father, but refused to show to IPS - did not "show anything suspicious." Kefalas Texts at ECF page 2. Her father explicitly advised her, on May 30 and again on June 2, 2014, not to tell IPS about the videos. Id. at ECF pages 7-9. She followed that advice, even though it ultimately cost her her job.

It is possible, of course, that notwithstanding the apparent brazenness of the conduct that Kefalas described, see, e.g., Kefalas Texts at ECF pages 16-17 (telling her father that Thomsen "is still doing it now," under Finkelstein's gaze, leaving defendant "speechless" and "short of breath"), she was the only adult who noticed it. It is also possible, at least in theory, that - as Kefalas repeatedly suggested to her father and the NYPD - Baraie, Weitz, Finkelstein, and Green all saw the same misconduct that she saw, but chose to conceal it in order to protect their jobs and/or the reputation of IPS. See Kefalas Texts at ECF page 6 ("they are covering up everything"); Kefalas Dep. Tr. at 187:7-188:8 (Kefalas feared that IPS "would try to cover it up" because "they saw the children as checks, money checks," and she "wasn't certain" that school administrators would "care" if children were being molested). Similarly, it is possible that, due to the surreptitious nature of defendant's attempt to obtain evidence, she was simply unable to capture, on video, that which she saw in plain view on multiple occasions in the parties' shared workplace. The finder of fact at trial might also credit defendant's explanation that she was reluctant to show the videos to Kane because she had lost faith in the IPS investigation, see Gomez Dep. Tr. at 120:5-11 (Kefalas told the NYPD that "she didn't feel comfortable providing Paul Kane with any of the recordings that she had because she didn't trust that they would conduct a proper investigation"), rather than because they showed innocent conduct.

But these are questions for trial. Where, as here, the record contains evidence from which a jury could infer that Kefalas did not see any inappropriate conduct by Thomsen - and where she had no basis for making her report other than what she herself witnessed him do - summary judgment would be inappropriate. See Biondo, 66 A.D.3d at 727, 888 N.Y.S.2d at 77 (where school employees called child abuse hotline based on witnessing allegedly abusive interaction between plaintiff mother and her two-year-old child, but there was conflicting testimony as to what took place during that interaction, "the Supreme Court properly determined that there are triable issues of fact as to whether the defendant school district employees had reasonable cause to suspect possible child abuse").

C. Questions of Fact Exists as to Good Faith

The record also contains evidence sufficient to raise a triable issue of fact as to whether Kefalas made her report in good faith. Once again, defendant's presentation of the applicable legal principles is somewhat overstated. At this stage of the case, plaintiff need not "demonstrat[e] that the alleged defamatory statements were known to be false." Def. Mem. at 7 (quoting Breen v. Leonard, 198 A.D.2d 392, 393, 604 N.Y.S. 2d 169 (2d Dep't 1993)). In order to defeat summary judgment, plaintiff need only point to evidence from which a jury could conclude that Kefalas acted with "willful misconduct," N.Y. Soc. Serv. Law § 419, "gross negligence," id., "actual malice," see Miller, 82 A.D.2d at 913, 440 N.Y.S.2d at 692, or "ill will." Id. While all of these tests include "subjective mens rea elements," Treistman v. Greene, 2017 WL 5201555, at *3 (N.D.N.Y. Nov. 9, 2017), direct evidence of the defendant's internal mental state is not required. See, e.g., Stratakis, 308 A.D.2d 397 at 398, 764 N.Y.S.2d at 432 (summary judgment denied where evidence of a "strained relationship" and "verbal confrontations" between plaintiff and defendant was sufficient to suggest that defendant's report may have been retaliatory); Hachmann, 29 A.D.3d at 953, 818 N.Y.S.2d at 104 (summary judgment denied where plaintiff father raised an "issue of fact as to malice" by alleging that he threatened to complain to school superintendent shortly before defendant school principal called child protective services to report father).

Breen did not arise under the Act, and consequently did not involve any analysis of the good faith standard set forth in § 419. The defendant in Breen was a pediatrician who wrote an allegedly libelous letter about the plaintiff midwife to the hospital where she practiced, resulting in the termination of her privileges. At deposition, the pediatrician admitted that part of his letter was factually false, and that he had "never made an effort to ascertain the correctness" of another portion. 198 A.D.2d at 393. Noting that in libel cases "malice may be shown by demonstrating that the alleged defamatory statements were known to be false at the time of publication," id. the appellate court held that a jury "could infer malice" from the facts admitted at deposition, and reversed the trial court's grant of summary judgment to the defendant. Id. at 394.

Plaintiff has met his burden. To begin with, there is conflicting evidence - as discussed above - as to whether Kefalas actually saw Thomsen engage in any of the behavior of which she accused him. That evidence goes to Kefalas's good faith as well as to the existence of reasonable cause. See Biondo, 66 A.D.3d at 727, 888 N.Y.S.2d at 77. Moreover, Kefalas's inconsistent accounts of Thomsen's conduct at the zoo on May 22, and at IPS on June 3, 2014, could help persuade a jury that her statements as to those events were fabricated, thus raising broader questions as to her credibility.

There is also evidence that, even before she was fired, Kefalas was nursing multiple grievances against IPS personnel. She admits that she had a "strained and, at times, difficult relationship with Ms. Baraie and other IPS employees such as Mona Green." Def. Reply Mem. at 9. In fact, she appears to have had "strained" and "difficult" relationships with all of her Blue Room co-workers. Baraie, Weitz and Thomsen "were all friends," leaving Kefalas "an outsider." Pl. 56.1 Stmt. ¶ 77. This was clear even to Det. Gomez, who testified, "It was obvious, based on what Ms. Kefalas communicated, that the other teachers weren't friendly with her and that she seemed to be kind of out-casted." Gomez Dep. Tr. at 100:9-13; see also id. at 111:19-112:7. In addition, as Gomez noted, there was "a lot of conflict" between Kefalas "and the other teachers." Id. at 99:9-15.

This may have been an understatement. It is undisputed that, by the time she first accused Thomsen of sexual misconduct, Kefalas had been feuding with Baraie for months. She made multiple reports about Baraie to IPS administrators, including allegations about professionally inappropriate wardrobe choices, see Kefalas Dep. Tr. at 69:16-70:10 (Baraie wore "very short" skirts), and sexually inappropriate conduct, see Kane Dep. Tr. at 199:3-7 (Kefalas complained that Baraie "like[d] to hit on fathers in the room" and "flirt with all of the male administration"). Kefalas also made secret audio recordings of Baraie, which she later played for Det. Gomez. Pl. 56.1 Stmt. ¶ 69; Kefalas Dep. Tr. at 75:4-77:7; Gomez Dep. Tr. at 36:12-37:15. According to Baraie, the relationship between the two assistant teachers got even worse after April 16, 2014, when Director Cohen offered Kefalas a "floater" position for the 2014-15 school year, which could be considered a demotion. Baraie Dep. Tr. at 36:18-37:4; see also Def. Reply Mem. Ex. 2. From that point forward, "[t]here was always a conflict, always." Baraie Dep. Tr. at at 44:6-7.

When head teacher Weitz was interviewed by CAO Kane, she too stated that defendant's behavior changed after she was offered the floater position; that Kefalas became "rebellious"; and that Weitz approached Green several times "requesting a mediation." IPS Invest. Notes at ECF page 82; see also Kane Dep. Tr. at 61:25-63:19.

Kefalas also held a low opinion of head teacher Weitz, who was the subject of at least one of her complaints, see Kefalas Dep. Tr. at 310:5-12 (defendant "may have said" that Weitz "cannot handle the role of head teacher"), and whom she characterized as incompetent. See id. at 266:7-8 (Weitz "wasn't even capable of opening a ketchup bottle"). Moreover, Weitz signed Kefalas's May 14, 2014 performance review, which noted that Kefalas needed to improve her working relationship with team members, and reported that there were "some times" when Kefalas "said inappropriate things" to parents. (expletive deleted)'t Teacher Rev. dated May 14, 2014, at ECF pages 67-68. Kefalas told her father that the review contained "gross accusations," "[o]n Gillian's behalf btw," Kefalas Texts at ECF page 16, and added that she could not have said inappropriate things to parents because "they didn't allow me to talk during [parent] conferences because I was Greek." Id. at ECF page 12.

Defendant points out, correctly, that there is no direct evidence in the summary judgment record showing personal animus between Kefalas and Thomsen predating her initial reports (made to her father, by text) of inappropriate conduct by Thomsen. Def. Reply Mem. at 9. In those texts, however, Kefalas frequently linked Baraie and Thomsen, characterizing Baraie's conduct in terms at least as stong as those she used for Thomsen himself. For example, on May 22, 2014, Kefalas texted, "They belong in prison Sarah and the other one [male]," followed by, "She is not well I am wondering how she is walking free." Kefalas Texts at ECF pages 3-4 (emphases added). Defendant's father replied, "let her break to get arrested." Id. at ECF page 4 (emphasis added). In later texts, Kefalas described Baraie and Thomsen as a "team" and expressed resentment when she saw that team being unfairly (in her view) favored by Green and other IPS administrators. She also bridled at Green's effort, on May 29, 2014, to redirect Kefalas's focus while in the classroom. See Kefalas Dep. at 151:12-24.

The record includes texts between Kefalas and her father from May 19 through June 5, 2014. A few of those texts - for example, Kefalas's repeated references to Thomsen as "the fat one" - suggest some level of dislike or disdain unrelated to the alleged misconduct at issue in this action. The parties' summary judgment papers do not indicate whether any earlier texts exist - or were produced - that would shed light on this question.

The next day, Green removed Kefalas from the Blue Room (albeit temporarily), prompting defendant to send the following texts to her father:

So Mona [Green] was accusing me to the other teachers
That I am the problem
And that Sarah and Malthe are a super team?
And she took me out?
The bitch
Kefalas Texts at ECF page 6. In response, Vassilios Kefalas advised defendant to report Thomsen's conduct to Green. In the same text, he expressly told her not to mention her video evidence but instead, if asked, to say "that the head teacher and Sarah should have witnessed it but they are not doing anything about it." Id. at ECF page 7. "Then Mona will have the responsibility.. When you tell her send me email exactly what you said so that we have evidence.." Id. That evening, Kefalas first reported her allegations concerning Thomsen to IPS. Def. 56.1 Stmt. ¶¶ 20-21, 41; Pl. 56.1 Stmt. ¶¶ 58, 81.
From this evidence, a juror could rationally infer that Kefalas desired to tarnish the reputation of Baraie and Weitz in Green's eyes - and that she (and her father) saw her accusations against Thomsen as a way of accomplishing that goal, while also saddling Green with the "responsibility" for any failure of oversight in the Blue Room. Some of defendant's later texts appear consistent with that narrative. For example, on June 4, 2014, Kefalas complained to her father that "[e]veryone is laughing . . . apparently with me," to which he responded, "laughs best the last one," Kefalas Texts at ECF page 23, once again suggesting that some element of score-settling may have been in play. Clearly the strength of Kefalas's dislike for Baraie had not abated. That same day, defendant called Baraie a "(expletive deleted) animal" and claimed that "she was always jealous of me!" Id. at ECF page 27.

The following day - June 5, 2014 - Kefalas was told that IPS had been unable to corroborate her allegations, see Kane Dep. Tr. at 79:25-81:12, but steadfastly refused to let Kane see the video evidence that she had created, leading to her termination. A jury could infer from this conduct that Kefalas recognized that her videos did not in fact show any misconduct, notwithstanding her assertion to IPS that she had "evidence . . . that would show that the children were unsafe." Id. at 68:19-24; see also IPS Invest. Notes at ECF page 83.

Finally, it is undisputed that, although Kefalas was well aware of her obligations as a mandated reporter, knew that Thomsen was teaching in the IPS summer camp program, and had insisted as recently as June 4, 2014, that he be immediately removed from the classroom, she did not call the SCR until after she was fired, and then waited another week, until June 11, 2014, to make the call. From this evidence a juror could conclude that defendant was considerably less concerned about the safety of the children than she had represented. Alternatively - as Judge Cote noted when ruling on defendants' motions to dismiss - these facts could support the inference that Kefalas "made her report to the NYPD in retaliation for the termination of her employment." Thomsen, 2016 WL 590235, at *12.

Kefalas fully appreciated the impact that a sex abuse scandal could have on IPS. Indeed, she testified that she did not trust IPS to investigate her claims because "I thought they would try to cover it up." Kefalas Dep. Tr. at 187:11-12. See also id. at 187:17-18 ("Because they - they saw the children as checks, money checks."). --------

Again, it is entirely possible that the finder of of fact will draw a different conclusion. As Kefalas notes in her briefs, she has consistently maintained that she accused Thomsen - first to IPS, and then to law enforcement authorities - because she genuinely believed he was engaging in sexual misconduct with multiple preschoolers. Again, however, that is a question for the jury. See Rossignol v. Silvernail, 185 A.D.2d 497, 500, 586 N.Y.S.2d 343 (3d Dep't 1992) (upholding jury verdict "that defendants did not act in good faith in making the child abuse complaints"). As Judge Cote noted when denying Kefalas's motion to dismiss, the complaint "specifically alleges facts that support Thomsen's allegation that Kefalas intentionally and in bad faith filed false reports against him." Thomsen, 2016 WL 590235, at *12. Most of those allegations are now supported by evidence. Moreover, discovery has revealed additional evidence - such as Kefalas's inconsistent accounts of what she saw at the zoo and on June 3, 2014 - that could also be used to rebut the presumption of good faith furnished by N.Y. Soc. Serv. Law § 419.

IV. CONCLUSION

For the foregoing reasons, defendant's motion for summary judgment is DENIED. The Clerk of Court is respectfully directed to close Dkt. No. 146. Counsel shall appear for a trial setting conference on April 26, 2018, at 11:00 a.m., and shall be fully informed as to the availability of their clients and anticipated witnesses for trial from July through September, 2018. Dated: New York, New York

March 26, 2018

SO ORDERED.

/s/ _________
BARBARA MOSES
United States Magistrate Judge​

 

27-årige Malthe Thomsen er død

20 January 2019

Malthe Thomsen, der blev anklaget for krænkelser af børn i USA og senere renset, er død af en blodprop. Malthe Thomsen, der blev anklaget for krænkelser af børnehavebørn i New York og senere renset i sagen, er død af en blodprop i hjertet i en alder af 27 år. Det skriver DR. Malthe Thomsens mor fortæller til DR, at han blev fundet død i lørdags på sit værelse på filmhøjskolen European Film College i Ebeltoft. »Han var så meget mere end et offer fra sagen i New York både før, under og efter. Vi skylder ham, at han skal tales ...

https://politiken.dk/indland/art7007600/27-årige-Malthe-Thomsen-er-død

 

Some other links to coverage in Danish media, Google Translate is your friend if you don't read dansk:

• https://www.dr.dk/nyheder/indland/m...nklager-om-overgreb-fundet-doed-27-aar-gammel
• https://hsfo.dk/indland/27-aarige-Malthe-Thomsen-er-doed/artikel/208717
• https://ekstrabladet.dk/112/malthe-thomsen-doed-som-27-aarig/7494823
• http://nyheder.tv2.dk/samfund/2019-01-29-malthe-thomsen-er-doed-han-blev-27-aar-gammel
• https://www.bt.dk/samfund/malthe-thomsen-fundet-doed-af-blodprop