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22-504

Malarczyk v. Lovgren

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 21st day of November, two thousand twenty-three.

PRESENT: RAYMOND J. LOHIER, JR.,

WILLIAM J. NARDINI,

BETH ROBINSON,

Circuit Judges.

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ROBERT MALARCZYK,

Plaintiff-Appellant,

v. No. 22-504

TROOPER ERIC P. LOVGREN, sued 

both in their individual capacity and 

official capacity as a Trooper with the 

New York State Police, TROOPER 

BRIAN C. DIPASQUALE, sued both 

in their individual capacity and 

official capacity as a Trooper with the 
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New York State Police, JOHN DOE 

OFFICERS 1-5, their true names and 

identities presently unknown, acting 

in both their Official and Unofficial 

capacities,

Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT: ADRIENNE B. KOCH (Joshua 

David Riegel, on the brief), 

Katsky Korins LLP, New York, 

NY 

FOR DEFENDANTS-APPELLEES: FRANK BRADY (Barbara D. 

Underwood, Solicitor General, 

Andrea Oser, Deputy Solicitor 

General, on the brief), Assistant 

Solicitor General of Counsel, 

for Letitia James, Attorney 

General, New York State 

Office of the Attorney General, 

Albany, NY

Appeal from a judgment of the United States District Court for the 

Northern District of New York (David N. Hurd, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff-Appellant Robert Malarczyk appeals from a judgment of the 

United States District Court for the Northern District of New York (Hurd, J.)
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granting summary judgment in favor of Defendants-Appellees Trooper Eric P. 

Lovgren and Trooper Brian C. DiPasquale (collectively, the “Troopers”). On 

appeal, Malarczyk argues that the District Court erred by: (1) deeming 

undisputed the facts asserted in the Troopers’ statement submitted pursuant to 

Rule 56.1 of the Local Rules of Practice of the United States District Court for the 

Northern District of New York (“Local Rule 56.1”), and (2) granting summary 

judgment in favor of the Troopers and dismissing his malicious prosecution

claim under 42 U.S.C. § 1983. We assume the parties’ familiarity with the 

underlying facts and the record of prior proceedings, to which we refer only as 

necessary to explain our decision to affirm.

“A district court has broad discretion to determine whether to overlook a 

party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., 258 

F.3d 62, 73 (2d Cir. 2001). We therefore review that determination for abuse of 

discretion. “We review [a] district court’s grant of summary judgment de novo,

construing the evidence in the light most favorable to the non-moving party.” Id.

at 69. 

Malarczyk first asserts that the District Court should not have accepted the 

Troopers’ Local Rule 56.1 statements as either undisputed or admitted. Local 
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Rule 56.1 states, in relevant part, that the party opposing summary judgment 

must file a “response [that] mirror[s] the movant’s Statement of Material Facts by 

admitting and/or denying each of the movant’s assertions in a short and concise 

statement, in matching numbered paragraphs. Each denial shall set forth a 

specific citation to the record where the factual issue arises.” N.D.N.Y. L.R. 

56.1(b) (2021 ed.). Local Rule 56.1 further provides that a district court “may 

deem admitted any properly supported facts set forth in the Statement of 

Material Facts that the opposing party does not specifically controvert.” Id. 

Here, Malarczyk, who was represented by counsel, did not comply with 

Local Rule 56.1 because his Local Rule 56.1 statement failed to admit or deny the 

Troopers’ proffered facts in “matching numbered paragraphs” and, with respect 

to the essential material facts, did not provide citations showing that there was a 

disputed material fact.1 And even though the Troopers pointed out Malarczyk’s 

non-compliance with Local Rule 56.1 in their reply in support of their motion for 

summary judgment, Malarczyk did not attempt to remedy it. Under those 

circumstances, the District Court acted within its discretion when it deemed 

1 Malarczyk concedes that his Rule 56.1 statement “did not comply with the 

Rule’s requirement that it respond point-by-point to the Troopers’ statement 

with references to record evidence showing that their factual assertions were 

disputed.” Appellant’s Br. 23–24. 
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admitted the facts asserted in the Troopers’ Local Rule 56.1 statement because 

they were not specifically controverted by Malarczyk in the manner demanded 

by Local Rule 56.1. See T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir.

2009); Fed. R. Civ. P. 56(e)(2). Accordingly, we review the District Court’s 

summary judgment decision based on the facts set forth in the Troopers’ Rule 

56.1 statement, which were deemed admitted, as well as any properly supported 

facts offered by Malarczyk that the District Court considered in its decision.

Malarczyk next challenges the dismissal of his malicious prosecution 

claim. To succeed on a claim for malicious prosecution, a claimant must show

that “there was no probable cause for the proceeding.” Droz v. McCadden, 580 

F.3d 106, 109 (2d Cir. 2009). “Probable cause to prosecute is a complete defense 

to a claim of malicious prosecution . . . [but] “such probable cause must be shown 

as to each crime charged in the underlying criminal action.” Kee v. City of New 

York, 12 F.4th 150, 166 (2d Cir. 2021) (citation omitted). Probable cause exists

when “the arresting officers have 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.” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016)
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(cleaned up). If probable cause existed at the time of an arrest, it continues to 

exist at the time of prosecution unless it is undermined “by the discovery of 

some intervening fact.” Kinzer v. Jackson, 316 F.3d 139, 144 (2d Cir. 2003). 

We agree with the District Court that probable cause existed to support 

Malarczyk’s prosecution. Malarczyk was charged with: (1) driving while 

intoxicated; (2) running a red light; (3) consuming or possessing alcohol in a 

motor vehicle; and (4) moving unsafely from a lane. According to the record, 

when Lovgren arrived on the scene, DiPasquale told Lovgren that he observed 

Malarczyk run a red light, fail to maintain his lane while driving, and throw 

away a beer can that fell out of the driver’s side door of Malarczyk’s car and

spilled liquid onto the ground. Lovgren was entitled to rely on DiPasquale’s

statements to determine whether probable cause existed. See Martinez v. 

Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (noting that “when making a probable 

cause determination,” officers are “entitled to rely on the allegations of fellow 

police officers”). Lovgren then personally observed the beer can and

Malarczyk’s bloodshot eyes, smelled alcohol on Malarczyk’s breath, and 

confirmed that Malarczyk had driven the car. In light of these facts, probable 

cause existed at the time of Malarczyk’s arrest for each of the charges against 
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him. Furthermore, probable cause continued to exist at the time of Malarczyk’s 

prosecution because Malarczyk failed to point to the “discovery of some 

intervening fact” that undermined the probable cause that existed at the time of 

his arrest. See Kinzer, 316 F.3d at 144. Accordingly, the District Court did not err 

in granting summary judgment in favor of the Troopers and dismissing 

Malarczyk’s malicious prosecution claim. 

We have considered Malarczyk’s remaining arguments and conclude that 

they are without merit. For the foregoing reasons, the judgment of the District 

Court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court