15-1806-cv 

Laboy v. County of Ontario, N.Y., et al. 

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

9th day of September, two thousand sixteen. 

Present: ROSEMARY S. POOLER, 

 BARRINGTON D. PARKER, 

 DEBRA ANN LIVINGSTON, 

 Circuit Judges. 

_____________________________________________________ 

JUAN A. LABOY, 

 Plaintiff-Appellant, 

 v. 15-1806-cv 

COUNTY OF ONTARIO, NEW YORK, OFFICE OF SHERIFF, COUNTY OF ONTARIO, 

SHERIFF PHILIP C. PROVERO, individually and in his official capacity, DEPUTY REBECCA 

EDINGTON, individually and in her official capacity, DEPUTY NATHAN BOWERMAN, 

individually and in his official capacity, DEPUTY PATRICK J. FITZGERALD, individually and 

in his official capacity, and JASON M. HOUSEL, 

 Defendants-Appellees. 

_____________________________________________________ 

 

Appearing for Appellant: David M. Abbatoy, Rochester, NY 
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Appearing for Appellee: Lea T. Nacca, Assistant County Attorney (Michael G. Reinhardt, 

Assistant County Attorney, on the brief), Ontario County 

Attorney’s Office, Canandaigua, NY 

Appeal from the United States District Court for the Western District of New York (Wolford, J.) 

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in 

part, VACATED in part, and REMANDED for further proceedings. 

 Appellant Juan A. Laboy appeals from the May 5, 2015 judgment of the United States 

District Court for the Western District of New York (Wolford, J.) granting Appellees’ motion to 

dismiss and denying Laboy’s motion for partial summary judgment. We assume the parties’ 

familiarity with the underlying facts, procedural history, and specification of issues for review. 

 On August 1, 2010, Laboy was arrested for and charged with harassment in the second 

degree, a violation under New York Penal Law § 240.26. During his arrest, Laboy got into a 

physical altercation with the arresting Deputy Sheriff. Accordingly, deputies in the Office of 

Sheriff for Ontario County subsequently accused Laboy of assault in the second degree under 

New York Penal Law § 120.05(3); obstructing governmental administration in the second degree 

under New York Penal Law § 195.05; and resisting arrest under New York Penal Law § 205.30. 

On September 1, 2010, an Ontario County Grand Jury indicted Laboy on all of these charges, on 

the ground that Laboy forcibly resisted his arrest for harassment in the second degree. Laboy was 

subsequently tried before a jury and convicted on all charges. 

 On February 14, 2014, the Appellate Division for the Fourth Department reversed 

Laboy’s conviction and dismissed the indictment. Under New York State Law, harassment in the 

second degree is a violation. Under Section 140.10(1)(a)(5) of the New York Criminal Procedure 

Law, an individual may not be arrested by an officer unless that officer had reasonable cause to 

believe that the individual committed the violation in her presence. In this case, the Deputy 

Sheriff who arrested Laboy had not witnessed the conduct giving rise to the charge for 

harassment in the second degree, and, accordingly, the Appellate Division held that “[b]ecause 

the arrest was not authorized at its inception, the evidence is legally insufficient to support the 

conviction of assault, obstructing governmental administration, and resisting arrest, and reversal 

therefore [was] required.” People v. Laboy, 980 N.Y.S.2d 215, 216 (4th Dep’t 2014). 

Laboy then commenced this action by filing a complaint for three claims for relief against 

defendants-appellees: (1) “42 USC § 1983 – Malicious Prosecution in Violation of the Fourth, 

Fifth, and Fourteenth Amendments;” (2) “42 USC § 1983 – Violation of Fourth Amendment 

Rights to Be Free From Excessive Force and Unlawful Arrest;” and (3) “Violation of 42 USC § 

1983 – Deliberately Indifferent Policies, Practices, Customs, Training, and Supervision in 

Violation of the Fourth, Fifth, and Fourteenth Amendments.” App’x at 49-56. In its thorough 

opinion, the district court granted defendants’ motion to dismiss. 

We review de novo a district court’s dismissal pursuant to Federal Rule of Civil 

Procedure 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the 
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complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chase Grp. All. 

LLC v. City of N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation marks 

omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (internal quotation marks omitted). “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.” Id.

The district court properly dismissed Laboy’s malicious prosecution claim. To determine 

whether a Section 1983 plaintiff has sufficiently pleaded malicious prosecution, the court 

“borrow[s] the elements of the underlying malicious prosecution from state law.” Washington v. 

Cty. of Rockland, 373 F.3d 310, 315 (2d Cir. 2004). “Under New York law, ‘[t]he elements of an 

action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination 

favorably to plaintiff, (3) lack of probable cause, and (4) malice.’” Savino v. City of N.Y., 331 

F.3d 63, 72 (2d Cir. 2003) (alteration in original) (quoting Colon v. City of N.Y., 455 N.E.2d 

1248, 1250 (N.Y. 1983)). The district court found that Laboy failed to allege facts sufficient to 

support an inference that he could satisfy the second, third, and fourth elements of a malicious 

prosecution claim. We agree. 

The New York Court of Appeals has held that a prosecution terminates in favor of the 

accused when “the proceeding cannot be brought again,” such that “there can be no further 

proceeding upon the complaint or indictment, and no further prosecution of the alleged offense,” 

Smith-Hunter v. Harvey, 734 N.E.2d 750, 753 (N.Y. 2000), or when “a judicial determination of 

the accused’s innocence on the merits of the action has been made,” Ward v. Silverberg, 652 

N.E.2d 914, 914 (N.Y. 1995). When an arrest is dismissed on the grounds of legal insufficiency, 

such as failure to comply with N.Y. Crim. Prop. Law § 140.10, rather than pure innocence, 

courts have found that there was not a termination in favor of the plaintiff. See Carrillos v. Inc. 

Vill. of Hempstead, 87 F. Supp. 3d 357, 380 (E.D.N.Y. 2015) (“It is well settled that a dismissal 

for facial insufficiency is inadequate to constitute a favorable termination for the purposes of 

plaintiffs malicious prosecution claim.”); MacFawn v. Kresler, 666 N.E.2d 1359, 1359-60 (N.Y. 

1996) (holding that plaintiff failed to state claim for malicious prosecution where the court did 

not reach the merits and the question of plaintiff’s guilt or innocence, but instead dismissed case 

on procedural grounds); Hollender v. Trump Vil. Coop. Inc., 448 N.E.2d 432, 435 (N.Y. 1983) 

(“[I]t is only when the final disposition is such as to indicate innocence that this burden [of 

favorable termination] is met.”) (alterations and internal quotation marks omitted). 

Laboy also failed to allege sufficient facts to support his allegation of a lack of probable 

cause. The existence of a grand jury indictment creates a presumption of probable cause, 

Manganiello v. City of N.Y., 612 F.3d 149, 161-62 (2d Cir. 2010); Savino, 331 F.3d at 72, and 

Laboy concedes he was indicted. Thus, Laboy can only sustain his action for malicious 

prosecution if he can rebut this presumption by showing evidence that the indictment was 

“procured by ‘fraud, perjury, the suppression of evidence or other police conduct undertaken in 

bad faith.’” Savino, 331 F.3d at 72 (quoting Colon, 455 N.E.2d at 1251). The technical error with 

Laboy’s arrest does not constitute “fraud, perjury, suppression of evidence, or other bad faith 

conduct necessary” to rebut the presumption of probable cause created by the grand jury 

indictment. 
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Finally, Laboy did not allege facts sufficient to support a finding of malice. A showing of 

malice requires sufficient allegations “that the defendant . . . commenced the criminal proceeding 

due to a wrong or improper motive, something other than a desire to see the ends of justice 

served.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996); see also Pinsky v. 

Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (“The element of malice implicates an evil or unlawful 

purpose.”). Laboy acknowledges that the deputies were dispatched to his residence in response to 

a complaint of physical abuse by his girlfriend. And Laboy alleged no other facts that would 

support a finding that the criminal proceeding was commenced due to a “wrong or improper 

motive.” 

The district court also properly dismissed Laboy’s false arrest claim because it is timebarred. The statute of limitations for a Section 1983 claim of false arrest is three years. See 

Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 331 (2d Cir. 1997). Unless otherwise tolled, 

a Section 1983 claim for false arrest in New York will accrue on the date of the alleged false 

arrest. Laboy was indicted on the charges against him on September 1, 2010, and the case was in 

discovery by October 2010. Laboy’s claim for false arrest accrued at the latest by September 

2010, more than three years before he filed his federal complaint on February 25, 2014. Contrary 

to Laboy’s argument, the statute of limitations was not tolled while Laboy was in prison. See 

N.Y. Civ. Rights Law § 79(2). 

 We vacate, however, the dismissal of Laboy’s Monell claim. See Monell v. Dep’t of 

Social Servs., 436 U.S. 658 (1978). Although the initial complaint was insufficient to state a 

claim, the proposed amended complaint added allegations that may plausibly suggest that the 

County had a policy or custom, which County officials knew about and approved, of depriving 

arrestees of their constitutional rights. See Payton v. New York, 445 U.S. 573 (1980). Although 

the district court briefly considered the plausibility of a stand-alone Payton claim as pleaded in 

Laboy’s initial complaint, see Special App’x at 25 n.3, the district court had no opportunity to 

consider a Patyon-based Monell claim. Accordingly, we remand to the district court to 

determine, in the first instance, whether such a claim is plausible, would have been timely made, 

and, if so, to permit Laboy to amend his complaint. See Fed. R. Civ. P. 15(a). 

We have considered the remainder of Laboy’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED in part, VACATED in 

part, and REMANDED for further proceedings in accordance with this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk