19-4107-cv

Triolo v. Nassau County

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2021

(Argued: August 18, 2021 Decided: January 21, 2022)

Docket No. 19-4107-cv

DANIEL TRIOLO,

Plaintiff-Appellant,

v.

NASSAU COUNTY, DETECTIVE RICHARD C. LEE,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NEW YORK

Before: POOLER, CHIN, and LOHIER, Circuit Judges.

Appeal from an order of the United States District Court for the 

Eastern District of New York (Tomlinson, M.J.), denying in part and granting in
2

part defendants-appellees' renewed motion for judgment as a matter of law 

pursuant to Federal Rule of Civil Procedure 50(b). The district court vacated a 

jury verdict in favor of plaintiff-appellant and dismissed his false arrest claims 

against a Nassau County detective and Nassau County under 42 U.S.C. § 1983 

and New York state law. The district court upheld the jury's finding that the 

detective lacked probable cause to arrest plaintiff-appellant, but concluded that 

the detective was protected by qualified immunity. The court then dismissed the 

claims against Nassau County based on the detective's qualified immunity.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

JUDGE LOHIER CONCURS, in a separate opinion.

ANISH PATEL, Law Student, and JON ROMBERG (Mikayla 

R. Berliner, Christopher A. Dernbach, Kamille E. 

Perry, and Lauren E. Russo, Law Students, on the 

brief), Seton Hall University School of Law, 

Center for Social Justice, Newark, New Jersey, for 

Plaintiff-Appellant.

JACKIE L. GROSS, Nassau County Attorney (Robert F. 

Van der Waag, Deputy County Attorney and 

Samuel Weinstein, Law Student Intern, on the 

brief), Mineola, New York, for DefendantsAppellees.
3

CHIN, Circuit Judge:

On May 18, 2015, plaintiff-appellant Daniel Triolo ("Triolo") was 

arrested for an altercation involving members of his immediate family that 

occurred the day before. Defendant-appellee Richard C. Lee ("Lee"), a detective 

with the Nassau County Police Department, arrested Triolo without a warrant

based on a domestic incident report signed by Triolo's brother and mother. 

Triolo spent one night in jail and the charges against him were eventually 

dismissed.

On April 27, 2016, Triolo sued Lee for false arrest under 42 U.S.C. §

1983 and New York state law and defendant-appellee Nassau County (the 

"County"), Lee's employer, under a theory of respondeat superior. In December 

2018, after a four-day trial, the jury returned a verdict in favor of Triolo, finding 

that Lee did not have probable cause to arrest Triolo and awarding 

compensatory and punitive damages.

The district court vacated the jury's verdict and dismissed the claims 

against both defendants on the ground that, although the evidence supported the 

jury's finding that Lee did not have actual probable cause, Lee was entitled to 

qualified immunity because he had arguable probable cause as a matter of law. 
4

The district court also dismissed the claims against the County based on Lee's 

immunity. This appeal followed.

We AFFIRM in part, REVERSE in part, and REMAND.

BACKGROUND

"Because this appeal follows a jury verdict, we view the facts in the 

light most favorable to the prevailing party." MacDermid Printing Solutions LLC v. 

Cortron Corp., 833 F.3d 172, 178 n.1 (2d Cir. 2016) (reviewing denial of judgment 

as a matter of law). Here, while the parties disagree as to many of the facts, we 

view the facts in the light most favorable to Triolo. Id.

I. The Facts

A. The First Altercation

On May 15, 2015, Triolo's father passed away suddenly. Two days 

later, on May 17, 2015, around 2:10 p.m., Triolo arrived at his mother's house to 

check on her. He was accompanied by his wife, Debra. An altercation ensued

between Triolo and his brother, Stephen, and their mother, Patricia. 

The house smelled of marijuana. Triolo found Stephen inside and 

told him he should not be smoking marijuana in the house. In response, Stephen 

jumped up from his chair and started yelling and threatening Triolo. Both Triolo 
5

and Debra believed Stephen was under the influence of crack cocaine. Triolo 

yelled back at Stephen, but at no point did he grab, punch, or otherwise touch his 

brother. Nor did he yell at, threaten, grab, or push his mother.1 Debra believed 

Patricia was under the influence of alcohol or drugs, possibly Xanax given to her 

by her other son, Michael.

Patricia called 911 at 2:14 p.m. The 911 call report stated: "Female 

now on the line states her two sons are fighting" and "mom wants older son 

arrested. He threatened her." J. App'x at 92. The report did not state that 

anyone was harmed.

Three police officers arrived at Patricia's house in response to the 

call. By then, Triolo had left. Both Stephen and Patricia gave sworn statements 

to the officers. According to the police report, however, neither had visible 

injuries. 

Stephen's statement read: 

My mother invited my brother, Daniel, Triolo, to the house to 

play with the dog. Daniel entered the house, screaming 

where is he? I'm going to kill him. Out of my way. My 

1 According to Stephen, Triolo entered the house, grabbed his neck, and began 

punching him. He maintains that he was sober that day. Patricia claimed that Triolo 

grabbed her wrist in an attempt to take her phone away to prevent her from calling 911. 

Triolo denies touching his mother. Because Triolo prevailed at trial, we accept his 

version of events.
6

mother attempted to stop my brother Daniel from attacking 

me. Daniel grabbed my mother by her wrist and pushed her 

out of the way. Daniel then jumped on top of me while I was 

sitting on the chair watching TV and began to choke me with 

his both hands [sic]. I lost ability [sic] to breathe and saw stars. 

My brother Daniel again started to punch me by my face with 

his fist and spitting at me at the same time. I feel pain in my 

head area and pain on my left side body. I request an arrest. 

Daniel in the house stated to mother Patricia, I'm going to 

fucking kill you and I hate you fucking guts [sic]. I'm going to 

kill your son. Patricia is in fear for her safety and requested 

an arrest as well. 

J. App'x at 70-71. Patricia's statement read: 

My son Daniel entered my house, started to scream at me. I'm 

going to fucking kill you, and I hate your fucking guts. I'm 

going to kill your son. I attempted to stop my son from 

hurting Stephen. Daniel grabbed me by my wrist and pushed 

me out of the way. My wrists are hurting. I'm in a lot of pain. 

I request an arrest. I'm in fear for my safety. 

J. App'x at 72. The domestic incident report noted that there were "no visible 

injuries" and that no arrest was made because "no offense [was] committed." J.

App'x at 169, 173-77. 2 It also noted, however, that Triolo engaged in "punching, 

pushing, strangulation, and . . . choking." Id. at 174. After taking the statements 

and filling out the domestic incident report, the officers left the scene. At the 

precinct, a supervisor completed the domestic incident report and forwarded the 

2 The officer who completed the report testified that he marked "no offense 

committed" by mistake. 
7

case, including the domestic incident report and sworn statements, to Lee. When 

Lee received the case, he reviewed the domestic incident report and the sworn 

statements.3 

B. The Second Altercation

Triolo's father's wake was held on May 18, 2015, at 2:00 p.m. Shortly 

after Triolo and Debra arrived at the wake, a second altercation began. While 

Triolo sat in the front row of the funeral home room, Stephen and Michael 

approached and physically attacked him. Triolo and Debra left the wake shortly

after the altercation. 

C. The Arrest

Triolo and Debra returned home around 3:00 p.m. Debra then called 

police officers at Nassau County's eighth precinct to report the assault on her 

husband at the funeral home. Three or four officers arrived at the house in 

response to her call. 

While Debra was speaking with the responding officers, Lee and 

another officer arrived at the house in plainclothes and an unmarked vehicle. 

3 Lee testified that he called Stephen and Patricia the next day to confirm their 

statements. There is no evidence of these calls, however, and Triolo disputes that they 

occurred.
8

Lee approached the group, asked for Triolo, and immediately began to place him 

under arrest. Debra and Triolo were shocked, and Debra began to explain that 

Triolo was in fact the victim of an assault, not the aggressor. Lee responded that 

he was interested only in what happened the day before. Although Debra 

responded that she was with Triolo the day before and that he did not do 

anything, Lee rolled his eyes and appeared disinterested in what she had to say. 

He asked no questions. Lee handcuffed Triolo and walked him towards the 

unmarked car. 

At Debra's urging, officers from the eighth precinct then asked Lee 

to exit the car to speak with her. He did. In response to Debra's questions, Lee 

said that he did not know what Triolo was being charged with and that Debra 

would have to call the precinct to find out. Debra again expressed shock and 

explained that she was in the process of reporting an assault on her husband 

when Lee arrived. According to Debra, Lee responded that he "would never take 

that report because that's retaliation and that's tit-for-tat" and that anything she 

had to say "doesn't matter." J. App'x 64. Debra again explained that she was 

present during the assault the day before and had taken pictures the next

morning that showed that Triolo's dominant hand and other parts of his body 
9

had no marks on them -- proof that he had not assaulted anyone.4 Instead of 

asking follow up questions, Lee simply rolled his eyes again and walked away. 

The conversation lasted only a few minutes. Triolo was arrested around 3:40 

p.m.5 

D. The Release and Dismissal

Triolo was charged with: (1) criminal obstruction of breathing or 

blood circulation, in violation of New York Penal Law § 121.11, for choking 

Stephen; and (2) assault in the third degree under § 120.00, for grabbing his 

mother. He spent time in a precinct holding cell where he was handcuffed to a 

wall. He was then transported to Nassau University Medical Center to receive 

treatment for the shoulder injury he sustained during the altercation at the 

funeral home. After being held in a different location until the next morning, he 

was transported to criminal court and eventually released on bail. The criminal 

charges against Triolo were dismissed shortly thereafter. 

4 After Michael left Debra voice messages claiming that Triolo had been violent the 

previous day and indicating that the police were looking for him, Debra took pictures to 

disprove the false allegations. 

5 According to Lee, he had waited until the day after the alleged assault to arrest 

Triolo because he believed that would allow Triolo to attend his father's funeral. In fact, 

the funeral was on May 19, 2015, and Triolo was not able to attend because he was in 

custody. 
10

II. The Proceedings Below

On April 27, 2016, Triolo commenced this action against Lee and the 

County seeking damages for false arrest under federal and New York state law. 

Trial began on December 3, 2018. Before the case was submitted to the jury, Lee 

and the County moved for judgment as a matter of law. The district court 

denied the motion. 

On December 7, 2018, the jury returned a verdict in favor of Triolo 

on both the federal and state claims, finding that Lee did not have probable cause 

to arrest. The jury awarded Triolo "$150,000 in compensatory damages [against] 

the Defendants" and "$35,000 in punitive damages [against] Detective Lee." J. 

App'x at 180-81.

Lee and the County thereafter renewed their motion for judgment as 

a matter of law pursuant to Federal Rule of Civil Procedure 50(b). On November 

4, 2019, the district court denied the motion in part and granted it in part. The 

court upheld the jury's finding that there was no probable cause but dismissed

the claims against both defendants based on qualified immunity. The court held 

that, although "Lee did not have actual probable cause as a matter of law to 

arrest [Triolo] for criminal obstruction of breathing or third-degree assault, the 
11

record is clear enough for the Court to determine that Lee had arguable probable 

cause to arrest [Triolo] for these crimes." J. App'x at 23. 

As to probable cause, the court explained that the jury's verdict was 

supported by evidence sufficient to raise doubts about Stephen's and Patricia's 

truthfulness, including lack of any physical injury and their alleged intoxication,

as well as the domestic incident report, which indicated that no offense had been 

committed. As to qualified immunity, the court explained that the evidence did 

not cast so much doubt on the truthfulness of the statements that "no reasonable

officer could have determined that probable cause existed to arrest [Triolo] for 

criminal obstruction of breathing or third-degree assault." J. App'x at 195-96 

(internal quotation marks omitted). Thus, the court concluded that there was 

arguable probable cause to arrest Triolo and therefore Lee was entitled to 

qualified immunity. The court also dismissed the claims against the County, 

reasoning that the County was not liable because Lee was immune from liability 

and it was sued for Lee's conduct only under a theory of respondeat superior. This 

appeal followed.6 

6 On December 7, 2020, this Court appointed pro bono counsel for Triolo, directing 

counsel to brief "whether the jury award of punitive damages in this case is inconsistent 

with the district court's finding of arguable probable cause, and, if so, [whether] such 
12

STANDARD OF REVIEW

We review de novo a district court's decision on a motion for 

judgment as a matter of law under Federal Rule of Civil Procedure 50(b), 

"considering the evidence in the light most favorable to the non-moving party 

and giving that party the benefit of all reasonable inferences that the jury might 

have drawn in that party's favor from the evidence." Cangemi v. United States, 13 

F.4th 115, 135 (2d Cir. 2021) (cleaned up). In other words, we apply "the same 

standard that is required of the district court." Smalls v. Collins, 10 F.4th 117, 131 

(2d Cir. 2021) (internal quotation marks omitted). 

A district court may grant judgment as a matter of law only if it 

finds that "a reasonable jury would not have a legally sufficient evidentiary basis 

to find for the [nonmoving] party." Fed. R. Civ. P. 50(a)(1); see also Cangemi, 13 

F.4th at 136. We affirm the denial of a Rule 50(b) motion "unless there is such a 

complete absence of evidence supporting the verdict that the jury's findings 

could only have been the result of sheer surmise and conjecture, or the evidence 

in favor of the movant is so overwhelming that reasonable and fair minded 

persons could not arrive at a verdict against it." Ashley v. City of New York, 992

inconsistency invalidates the district court's finding, and any other issues counsel 

deems necessary." J. App'x at 203. 
13

F.3d 128, 138-39 (2d Cir. 2021) (cleaned up). The movant's burden is "particularly 

heavy" where, as here, the "jury has deliberated in the case and actually returned 

its verdict." Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).

DISCUSSION

On appeal, Triolo argues that the district court erred in vacating the 

jury's verdict and dismissing his false arrest claims against both Lee and the

County. We hold that the district court properly dismissed the claims against 

Lee but erred in dismissing the claims against the County. First, the jury's 

finding that Lee did not have probable cause was supported by the evidence. 

Second, Lee is nevertheless entitled to qualified immunity because he had 

arguable probable cause as a matter of law. Third, the County is vicariously 

liable for the compensatory damages against Lee under New York state law.

I. Probable Cause

The district court found that the record supported the jury's finding 

that Lee lacked probable cause to arrest Triolo. We agree.

Under both federal and New York state law, probable cause is a 

complete defense to a false arrest claim. See, e.g., Figueroa v. Mazza, 825 F.3d 89, 

99 (2d Cir. 2016) ("The existence of probable cause to arrest -- even for a crime 
14

other than the one identified by the arresting officer -- will defeat a claim of false 

arrest under the Fourth Amendment."); De Lourdes Torres v. Jones, 26 N.Y.3d 742, 

759 (2016) ("For purposes of the privilege element of a false arrest and 

imprisonment claim, an act of confinement is privileged if it stems from a lawful 

arrest supported by probable cause.").

To determine whether probable cause existed, we consider the 

totality of the circumstances, Jenkins v. City of New York, 478 F.3d 76, 90 (2d Cir. 

2007), reviewing "plainly exculpatory evidence alongside inculpatory evidence to 

ensure the court has a full sense of the evidence that led the officer to believe that 

there was probable cause to make an arrest," Stansbury v. Wertman, 721 F.3d 84, 

93 (2d Cir. 2013) (internal quotation marks omitted). In this analysis, we 

"consider those facts available to the officer at the time of the arrest and 

immediately before it," keeping in mind that "an officer may not disregard 

plainly exculpatory evidence." Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012)

(internal quotation marks omitted). "The significance of each of these factors 

may be enhanced or diminished by surrounding circumstances." Jenkins, 478 

F.3d at 90. 
15

Law enforcement officers have probable cause to arrest "when they 

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."

Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (internal quotation 

marks omitted); see also De Lourdes Torres, 26 N.Y.3d at 759 ("Probable cause 

consists of such facts and circumstances as would lead a reasonably prudent 

person in like circumstances to believe plaintiff guilty."). More specifically, "[a]n 

arresting officer advised of a crime by a person who claims to be the victim, and 

who has signed a complaint or information charging someone with the crime, 

has probable cause to effect an arrest absent circumstances that raise doubts as to 

the [alleged] victim's veracity." Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d 

Cir. 1995). The "veracity of the informant and the basis for the informant's 

knowledge are two important factors." Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 

2014) (internal quotation marks omitted).

Here, although Stephen and Patricia signed sworn statements 

attesting to the alleged assault, the jury reasonably found that Lee disregarded 

evidence that undermined their veracity. Neither Stephen nor Patricia had 
16

visible injuries after allegedly being grabbed, choked, or punched. No arrest was 

made on the day of the alleged assault, and the domestic incident report also 

indicated that "no offense [was] committed." Immediately before the arrest, 

Debra repeatedly told Lee that Triolo was the victim, not the aggressor, in the 

domestic dispute. In fact, she was already in the process of reporting Stephen's 

assault on her husband at the funeral home to police officers from her local 

precinct when Lee arrived at her home. She tried to show Lee photographic 

evidence in support of her claims to no avail. Lee showed no interest in Debra's 

photographs or her version of events, and he repeatedly rolled his eyes as she 

spoke. He did not ask any follow-up questions. Lee instead dismissed Debra's 

efforts, handcuffed Triolo, and left the scene. 

Faced with information that undermined the veracity of the alleged 

victims, Lee did not engage in further investigation to ensure the existence of 

probable cause. And although he had no duty to seek it out, Lee was not free to 

disregard the plainly exculpatory evidence that was presented to him. See 

Fabrikant, 691 F.3d at 214. Viewing the facts in the light most favorable to Triolo, 

we conclude that the trial evidence was sufficient for a reasonable jury to find

that "a person of reasonable caution" in Lee's position would have understood 
17

that he did not have reasonably trustworthy information to believe that Triolo 

committed a crime. See Hernandez, 939 F.3d at 199 (internal quotation marks 

omitted). In other words, we do not find "such a complete absence of evidence" 

supporting the jury's verdict that would require reversing the district court's 

denial of the Rule 50(b) motion. See Ashley, 992 F.3d at 138-39 (internal quotation 

marks omitted). Accordingly, we conclude that the district court properly 

upheld the jury's finding as to the absence of actual probable cause.

II. Qualified Immunity

Triolo argues that the district court improperly held that Lee was 

entitled to qualified immunity because the jury's award of punitive damages 

"necessarily precludes immunity under both federal and New York law." 

Appellant's Suppl. Br. at 28 n.5. We disagree. First, Lee is immune under federal 

law because he had arguable probable cause. Second, Lee is immune under New 

York state law because his actions were discretionary and not objectively 

unreasonable, and the record, even construed in Triolo's favor, does not establish 

bad faith.
18

A. Federal Law

Even where actual probable cause does not exist, an officer may be 

entitled to qualified immunity on a § 1983 false arrest claim if his actions were 

objectively reasonable or if "arguable probable cause" existed at the time of the 

arrest. Figueroa, 825 F.3d at 100; accord District of Columbia v. Wesby, 138 S. Ct. 577, 

591 (2018) ("Even assuming the officers lacked actual probable cause to arrest the 

partygoers, the officers are entitled to qualified immunity because they 

reasonably but mistakenly concluded that probable cause was present." (cleaned 

up)). A defendant has the burden of proving the affirmative defense of qualified 

immunity. See Gomez v. Toledo, 446 U.S. 635, 640-41 (1980).

"A police officer has arguable probable cause 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." Figueroa, 825 F.3d at 100 (internal quotation marks omitted). The 

question is "not whether the officer should have acted as he did." Id. Instead, it is 

"whether any reasonable officer, out of the wide range of reasonable people who 

enforce the laws in this country, could have determined that" probable cause 

existed. Id. Indeed, as the Supreme Court has repeatedly recognized, "qualified 
19

immunity protects all but the plainly incompetent or those who knowingly 

violate the law." Ziglar v. Abassi, 137 S. Ct 1843, 1867 (2017) (internal quotation 

marks omitted). Whether a particular officer falls into either of these categories 

turns on "whether it would have been clear to a reasonable officer that the 

alleged conduct was unlawful in the situation he confronted." Ziglar, 137 S. Ct. at 

1867 (internal quotation marks omitted). 

Although we have concluded that the jury reasonably found a lack 

of actual probable cause, we agree with the district court that Lee nonetheless 

had arguable probable cause to arrest Triolo.7 As explained above, Lee lacked 

actual probable cause because he ignored exculpatory evidence and information 

that undermined the veracity of the alleged victims. But that conclusion does not 

preclude a finding of arguable probable cause. On this record, even construed in 

the light most favorable to Triolo, it is not clear that no reasonable officer could 

have believed that probable cause existed. See Figueroa, 825 F.3d at 100. 

7 This Court has explained that "the distinction between reasonableness as a 

component of a Fourth Amendment violation and reasonableness as a component of an 

immunity defense" results in a situation where "an officer is protected in some 

circumstances even when he mistakenly concludes that probable cause is present when 

he reasonably believes that a reasonably prudent police officer would have acted even 

though a reasonably prudent police officer would not have acted." Oliveira v. Mayer, 23 

F.3d 642, 649 (2d Cir. 1994) (cleaned up).
20

The alleged victims signed a domestic incident report, alleging that 

Triolo choked, punched, grabbed, and injured them. Their accounts were 

consistent with each other's. And even though the lack of visible injuries 

arguably undermined their veracity, it is nonetheless possible that no visible 

injuries resulted from the alleged assault. Finally, although the report stated that 

no arrest was made on May 17, 2015, because "no offense [was] committed," a 

reasonable officer receiving this report could have concluded this was a mistake

because the form also plainly indicated that Triolo had engaged in punching, 

pushing, strangulation, and choking. 

Accordingly, although we do not conclude that the evidence in favor 

of defendants is "so overwhelming that reasonable and fair minded persons 

could not arrive at a verdict against" them to justify vacating the jury's finding of 

lack of actual probable cause, Ashley, 992 F.3d at 139 (cleaned up), we nonetheless 

conclude that Lee had arguable probable cause based on the domestic incident 

report and accompanying statements. Lee's actions, though wrong, were not so 

wrong that no reasonable officer, "out of the wide range of reasonable people 

who enforce the laws in this country, could have determined that the challenged 
21

action was lawful." See Figueroa, 825 F.3d at 100. As a result, Lee is entitled to 

qualified immunity with respect to the § 1983 claim.

B. New York State Law

New York law grants government officials qualified immunity on 

state law claims, including false arrest claims, if their actions entail "making 

decisions of a judicial nature," unless "there is bad faith or the action taken is 

without a reasonable basis." Arteaga v. State of New York, 72 N.Y.2d 212, 216 

(1988). In other words, New York immunity law requires both objective and 

subjective reasonableness. See Lore v. City of Syracuse, 670 F.3d 127, 166 (2d Cir. 

2012) ("In contrast to the federal standard, which is objectively reasonable 

reliance on existing law, the New York standard for entitlement to qualified 

immunity has both objective and subjective components." (internal citations and 

quotation marks omitted)).

As to the first prong, a decision is "of a judicial nature" if it "requires 

the application of governing rules to particular facts," or if it is "an exercise of 

reasoned judgment which could typically produce different acceptable results."

Arteaga, 72 N.Y.2d at 216-17 (cleaned up). Here, Lee's decision to arrest Triolo 

based on what he believed to be probable cause required the application of 
22

governing rules to facts. As explained above, that decision was not objectively 

unreasonable and could have produced different acceptable results. 

Accordingly, he satisfies the objective component.

As to the second prong, an officer cannot satisfy the subjective 

component "if there are undisturbed findings of bad faith" in the record. Lore, 

670 F.3d at 166 (internal quotation marks omitted). Triolo argues that the jury's 

award of punitive damages constitutes a finding of bad faith, which was not 

disturbed by the district court. We disagree. First, the jury's punitive damages 

award was, in fact, disturbed; it was vacated by the district court. Second, even 

though the jury awarded punitive damages, it did not necessarily find malice; 

the jury instruction allowed punitive damages for behavior done "wantonly" or 

"oppressively" as well. See J. App'x at 153. Third, even if the jury's award 

implied a finding of malice, the record does not support that finding.

The jury awarded $35,000 in punitive damages after it was 

instructed it could award punitive damages if it found Lee had made the arrest 

maliciously ("prompted or accompanied by ill-will or spite or grudge either 

toward the plaintiff individually or toward all persons in the group or category 

of which the injured person is a member"), wantonly ("in reckless or callous 
23

disregard of, or indifference to the rights of the injured person"), or oppressively 

("in a way or manner which injuries or damages or otherwise violates the rights 

of another person with unnecessary harshness or severity or by misuse or abuse 

of authority or power"). See J. App'x at 153. The jury did not specify which of 

these three alternatives described Lee's conduct. Even assuming the jury found 

that Lee acted maliciously, we agree with defendants that "there is not a scintilla 

of evidence that the detective actually had any malicious" intent. Appellees' 

Suppl. Br. at 22-23. 

The jury's award of punitive damages does indicate that it assessed 

the trial testimony and evidence to strongly favor Triolo. That said, there is no 

evidence in the record that Lee held any ill-will, spite, or other bad faith toward 

Triolo. Indeed, Lee had a domestic incident report, signed by two victims, which 

noted that Triolo had engaged in punching, pushing, strangulation, and choking. 

The only fact Triolo points to as showing bad faith is that Lee was not interested 

in hearing Debra's version of events while he was arresting Triolo. This alone is 

insufficient to support a finding of malice. Viewed in a light most favorable to 

Triolo, the record could only support a finding of callousness or indifference in 

making the arrest, and such a finding does not preclude the legal conclusion that 
24

Lee acted in subjective good faith. Accordingly, Lee satisfies both prongs of the 

New York immunity test and is immune from Triolo's state law false arrest 

claim.

III. Vicarious Liability

Next, Triolo argues that, even if Lee is entitled to qualified 

immunity, the County is still vicariously liable for Lee's wrongful conduct under 

New York law.8 Specifically, Triolo argues, "when an employee-officer commits 

an underlying violation, such as false arrest without probable cause, but is 

personally shielded by qualified immunity, the municipal employer, like any 

other principal under New York law, remains vicariously liable for its agent's 

conduct." Appellant's Suppl. Reply at 26-27. We agree. First, qualified 

immunity is an individual affirmative defense that does not protect

municipalities. Second, under New York law and basic agency principles, a 

municipal employer is vicariously liable for the wrongs of its employee, even 

8 Defendants argue that the County cannot be held vicariously liable for the claims 

against Lee under either federal or state law. Triolo, however, does not argue the 

County is vicariously liable under federal law. In any event, it is well established that 

under federal law, "a municipality cannot be held liable under § 1983 on a respondeat 

superior theory." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). The issue here is 

whether a municipal employer can be held vicariously liable for its employee's wrongs 

under New York law.
25

when the employee is individually immune, so long as the wrong was 

committed within the scope of employment. 

A. Municipal Immunity 

The County is not entitled to qualified immunity, and, despite 

defendants' contentions otherwise, Lee's immunity does not somehow transfer to 

his municipal employer. The Supreme Court has explicitly rejected the idea that 

municipalities are entitled to qualified immunity under federal law. See 

Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166–

67 (1993) ("[U]nlike various government officials, municipalities do not enjoy 

immunity from suit -- either absolute or qualified -- under § 1983."). Further, the 

justifications behind qualified immunity simply do not apply to municipalities. 

As the Supreme Court has explained, "the concern that the threat of personal

monetary liability will introduce an unwarranted and unconscionable 

consideration into the decisionmaking process" is "[a]t the heart" of the 

justification for qualified immunity. Owen v. City of Independence, 445 U.S. 622, 

655-56 (1980). 
26

We turn then to the issue of whether the County may be vicariously 

liable for damages caused by its employee under New York state law, even 

though that employee is entitled to individual immunity.

B. Respondeat Superior

The district court held that claims against a municipal employer 

must be dismissed when its employee is entitled to qualified immunity, 

regardless of whether that employee violated the law. We agree, as does Triolo, 

that a municipal employer cannot be vicariously liable in the absence of unlawful 

conduct. Here, however, Lee engaged in unlawful conduct when he arrested 

Triolo without probable cause. Thus, the question is whether a municipal 

employer can be held vicariously liable for its individually immune employee 

under New York state law when that employee has been found liable for an 

underlying wrong. It can.

New York law is clear that municipalities can be liable for the 

actions of police officers on false arrest claims under a theory of respondeat 

superior. See, e.g., Jones v. State of New York, 33 N.Y.2d 275, 279-80 (1973) ("A long 

line of cases has held the State or municipalities liable for the actions of their 

police officers in the line of duty.") (collecting cases). Indeed, this Court has so 
27

held. See, e.g., Ackerson v. City of White Plains, 702 F.3d 15, 22 (2d Cir. 2012) 

(holding that an officer's liability for a false arrest claim under New York law 

creates liability for the city "under a theory of respondeat superior"); see also

Williams v. City of White Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010) ("The 

remaining state law claim of assault and battery against the City of White Plains 

is alive due to the potential for vicarious liability for actions of its police officers 

as its employees.").

The next question is whether New York law categorically bars a 

principal's vicarious liability when an agent is individually immune. It does not. 

New York courts have addressed this question in the context of spousal and 

other immunities. See Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 255

(1928) ("The disability of wife or husband to maintain an action against the other 

for injuries to the person [given interspousal immunity] is not a disability to 

maintain a like action against the other's principal or master."); see also Rauch v. 

Jones, 4 N.Y.2d 592, 596 (1958) ("[T]he negligence of the employee having been 

established, liability [for the employer] ensued under the rule of respondeat 

superior. The employer, of course, could not avail itself of the personal immunity 

of the [employee]."). And although these cases are plainly distinguishable in that 
28

they did not involve municipal liability, they do support the conclusion that an 

agent's immunity is not a categorical bar to the principal's vicarious liability. 

Basic agency principles outlined in the Restatement (Second) of 

Agency (the "Restatement") provide similar guidance. See Restatement (Second) 

of Agency § 217. Section 217 of the Restatement states that an employer remains 

liable for its employee's wrongful conduct even when that employee is entitled to 

personal immunity from paying damages. Id. Moreover, comment b to § 217

explains that where "the agent acts in the scope of employment, the fact that the 

agent has an immunity from liability does not bar a civil action against the 

principal . . . . This result is in accordance with the rule stated in this Section and 

is the rule adopted in most of the states." Id. New York courts have relied on the 

Restatement, including section 217. See, e.g., Padlo v. Spoor, 422 N.Y.S.2d 895, 895

(4th Dep't 1979) (citing § 217(b)(ii)) 9; Winnick v. Kupperman Constr. Co., 287 

N.Y.S.2d 329, 332 (2d Dep't 1968) (citing comment b to § 217).10

9 Section 217(b)(ii) of the Restatement provides that "[t]he principal has no defense 

because of the fact that . . . the agent had an immunity from civil liability as to the act." 

Contrary to the concurrence's contention, we do not look to the Restatement "alone [to] 

settle[ ] an open question of New York law." Concurrence at 4. Rather, we look to the 

Restatement for guidance, and consider it together with the other principles of law set 

forth in the case law.

10 See also Guardian Life Ins. Co. of Am. v. Chem. Bank, 94 N.Y.2d 418, 422-43 (2000) 

(citing Restatement (Second) of Agency § 3 for the proposition that a broker who is not 
29

Lee was acting within the scope of employment when he arrested 

Triolo. Defendants do not directly respond to Triolo's argument that the County, 

just like any other principal-employer, has respondeat superior liability for its 

agent-employee's wrongdoing, even when that agent is entitled to personal 

immunity from damages. We see no reason why those basic agency principles 

would not apply here.

Undeniably, this analysis can become muddled when it incorporates 

caselaw involving no underlying violation. For example, in dismissing the 

claims against the County, the district court relied on a series of cases that did 

not involve an underlying wrong. In Boyler v. City of Lackawanna, 287 F. Supp. 3d 

a general agent of an insurance company may still be a special agent for the purpose of 

processing requests for policy loans and dividend withdrawals," and comment b to § 26 

for the proposition that "a principal and agent need not enter into a formal contract in 

order to create an agency relationship"); Sokoloff v. Harriman Ests. Dev. Corp., 96 N.Y.2d 

409, 416 (2001) (citing §§ 377, 403); Parlato v. Equitable Life Assur. Soc. of U.S., 749 

N.Y.S.2d 216, 220–21 (1st Dep't 2002) (citing §§ 261, 262, and 265 for the proposition that 

"a principal may be held liable in tort for the misuse by its agent of his apparent 

authority to defraud a third party who reasonably relies on the appearance of authority, 

even if the agent commits the fraud solely for his personal benefit, and to the detriment 

of the principal"); G.K. Alan Assoc., Inc. v. Lazzari, 840 N.Y.S. 2d 378, X (2d Dep't 2007) 

(citing §§ 1, 376, 416, 456, 469); Smalls v. Reliable Auto Serv., Inc., 612 N.Y.S.2d 674, 676 

(2d Dep't 1994) (citing § 272 for the proposition that "[a] principal is bound by notice to 

or knowledge of his or her agent in all matters within the scope of the agency, 

notwithstanding the fact that such information is never actually communicated to the 

principal"); Nelson v. Times Square Stores Corp., 487 N.Y.S. 2d 814, 816 (2d Dep't 1985) 

(Titone, J., concurring) (citing § 217).
30

308, 326 (W.D.N.Y. 2018), the court dismissed claims against officers and thus 

against the city as well because the "arrest was supported by probable cause." In 

Brown v. City of New York, the court held that there were "no unconstitutional 

actions by the City's employees." 2015 WL 427942, at *6 (E.D.N.Y. Feb. 2, 2015)

(citing Shapiro v. Kronfeld, 2004 WL 2698889, at *24 (S.D.N.Y. Nov. 24, 2004) 

(holding "there can be no imposition of vicarious liability in the absence of 

underlying liability")). In Hargroves v. City of New York, 2014 WL 1271024, at *4

(E.D.N.Y. Mar. 26, 2014), the court dismissed vicarious liability claims against the 

city because it found the officers acted objectively reasonably and thus there was 

"no underlying offense for which the City could be held vicariously liable." 

Lastly, in Fiedler v. Incandela, 222 F. Supp. 3d 141, 161-62, 169 (E.D.N.Y. 2016), the 

court held that "[t]he undisputed facts establish that probable cause existed to 

arrest Plaintiff," and "[h]aving concluded that the Individual Defendants are 

entitled to judgment as a matter of law with respect to Plaintiff's claims arising 

under New York law, the County Defendants are also entitled to judgment as a 

matter of law with respect to Plaintiff's claims for vicarious liability." Defendants 

similarly rely on cases that are distinguishable in that, unlike here, they do not 
31

involve underlying wrongful conduct. Of course, when there is no underlying 

liability, there can be no vicarious liability. 

In Kass v. City of New York, 864 F.3d 200 (2d Cir. 2017), we upheld the 

"dismiss[al of] Kass's state law false arrest claim against the City" because it was 

"based solely on his allegation that the City is responsible for any false arrest that 

was committed by the officers." Id. at 213-14. There, unlike here, we did not 

conclude that the arresting officer lacked probable cause. Indeed, in support of 

our holding in Kass, we cited Demoret v. Zegarelli, 451 F.3d 140, 152-53 (2d Cir. 

2006), where we held that the defendants were entitled to qualified immunity 

because the plaintiffs had not established an underlying violation of their equal 

protection rights. Then, when discussing the vicarious liability of the 

municipality, we stated:

Plaintiffs' allegations that the [municipality] is liable for a 

hostile work environment are based solely on the acts of [the 

individual defendants]. Plaintiffs' claims against the 

[municipality] are thus inextricably intertwined with their 

claims against the individual defendants. Because we have 

found as a matter of law that [the individual defendants] did 

not subject plaintiffs to a hostile work environment, 

defendants are entitled to summary judgment on plaintiffs' 

parallel state law causes of action.
32

Demoret, 451 F.3d at 153. In other words, because there was no underlying 

violation, there was no vicarious liability. Here, in contrast, a jury found that Lee 

lacked probable cause and therefore falsely arrested Triolo. Defendants cite no 

persuasive authority as to why the County, as Lee's employer, cannot be 

vicariously liable for the damages he caused in doing so.

In sum, the County remains vicariously liable under New York law

for the compensatory damages because (1) municipalities are not entitled to 

qualified immunity, (2) municipal employers may be vicariously liable on state 

law claims brought against their police officer employees, (3) a principal remains 

liable for damages caused by its agent, even when that agent is individually 

immune, and (4) Lee was acting within the scope of his employment when he 

arrested Triolo. Thus, even though Lee is shielded from personally paying for 

the damages he caused by falsely arresting Triolo, the County remains liable for 

those damages under New York state law.11

11 We understand our concurring colleague's reasons for preferring to certify this 

case to the New York Court of Appeals. But the case is almost six years old, and we 

disagree that "state law is so uncertain that we can make no reasonable prediction" on 

this issue. Concurrence at 3 (quoting DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005)). 

Needless to say, based on the principles and authorities discussed above, we are 

confident that our resolution of this case is "correct" and "makes good policy sense." Id. 

at 1.
33

CONCLUSION

For the reasons set forth above, we AFFIRM the district court's 

dismissal of the claims against Lee and REVERSE the district court's dismissal of 

the claims against the County, and REMAND for the entry of judgment in 

Triolo's favor against the County in the amount of $150,000 and for such other 

proceedings as may be appropriate.
1 LOHIER, Circuit Judge, concurring:

2 The central question in this appeal is whether a county, town, or city in 

3 New York State can be held liable under New York law for damages caused by 

4 its own officials, even when the officials themselves are entitled to individual 

5 immunity. While the question is straightforward, the answer is not. 

6 Nevertheless, the majority confidently holds that under New York law, the 

7 immunity enjoyed by the police officers here does not relieve the County of its 

8 vicarious municipal liability. As is evident from the fact that I concur, I think 

9 that answer may well be correct and certainly makes good policy sense. But the 

10 majority reaches the answer only by piecing together a tiny smattering of judicial

11 and non-judicial signals, recognizing, as we must, that New York courts have 

12 thus far been silent on the issue. 

13 Basic notions of federalism and deference to our state counterparts on 

14 matters uniquely within the province of state law compels us to act cautiously 

15 when wading into uncertain terrain of state law, so it would have been better, in 

16 my view, to certify to the New York Court of Appeals the difficult question in 

17 this case and ask for its guidance on the matter. See Penguin Grp. (USA) Inc. v. 

18 Am. Buddha, 609 F.3d 30, 41–43 (2d Cir. 2010). But the majority today has 

19 obviously opted not to do so. I write separately to explain why this is probably a 
2

1 mistake and why certification would have been preferable. I also write to make 

2 clear, however, that the decision to certify (or not to certify) is an institutional

3 one that represents our circuit’s only formal avenue to converse with our New 

4 York state court counterparts. 

5 I

6 We have long recognized that certification of questions of state law is “a 

7 valuable device for securing prompt and authoritative resolution of unsettled 

8 questions, . . . especially those that seem likely to recur and to have significance 

9 beyond the interests of the parties in a particular lawsuit.” Kidney v. Kolmar 

10 Lab’y, Inc., 808 F.2d 955, 957 (2d Cir. 1987). The Supreme Court itself has 

11 explained that certification can “save time, energy, and resources and helps build 

12 a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391 

13 (1974); see also Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1157 & n.4 

14 (2017) (Sotomayor, J., concurring) (recognizing the significance of a cooperative 

15 judicial federalism and discussing the benefits that certification has brought to 

16 our circuit). And our state court colleagues, including former Chief Judge Judith 

17 Kaye of the New York Court of Appeals, have also heralded the benefits of 

18 certification. See 70 N.Y.U. Annual Survey Am. L. 33, 33–34 (2014) (Chief Judge 
3

1 Kaye observing that “[t]he certification process, as it has been actively and 

2 vigorously employed by the Second Circuit, has done an enormous amount to 

3 bridge the gap between our state and federal court systems. I cannot remember a 

4 time in my own long career at the New York Bar that we have enjoyed such 

5 camaraderie, collegiality, and mutual respect.”)

6 In deciding whether or not to certify a question, we ask ourselves at least 

7 three questions. First, has the New York Court of Appeals squarely addressed 

8 the issue, and, if not, do other decisions of intermediate appellate courts give us 

9 sufficient guidance to predict with confidence how the Court of Appeals would 

10 resolve it? See 10 Ellicott Square Ct. Corp. v. Mountain Valley Indem. Co., 634 F.3d 

11 112, 125–26 (2d Cir. 2011); see also DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 

12 2005) (noting that certification is proper when “state law is so uncertain that we 

13 can make no reasonable prediction” about how the state’s highest court would 

14 decide the question). Second, is the question before us of “importance . . . to the 

15 state” and does its resolution “require value judgments and important public 

16 policy choices that the New York Court of Appeals is better situated than we to 

17 make”? 10 Ellicott Square Ct. Corp., 634 F.3d at 126 (citing Am. Buddha, 609 F.3d at 

18 42). And third, is the question “determinative of a claim before us”? Id.
4

1 (quotation marks omitted). The answer to each of those questions favors

2 certification here. 

3 As the majority appears to acknowledge, not a single New York court has

4 addressed whether, under New York law, a municipality derives immunity from

5 the qualified immunity of its officers and employees. See Majority Op. at 27–28. 

6 Confronted with such a blank judicial slate, the majority turns instead to the 

7 Restatement (Second) of Agency (the “Restatement”) to fill the gap. Although 

8 the Restatement is an invaluable and unparalleled legal resource and guide for 

9 federal and state courts, we have never before held that it alone settles an open 

10 question of New York law, without the benefit of state court decisions, and the 

11 majority does not suggest that the Court of Appeals has ever held itself bound by 

12 the Restatement in its entirety. In any event, the Restatement does not directly

13 answer the question of municipality liability and immunity that we consider.

14 The lack of compelling authority in this case should have prompted us to 

15 certify the question of municipal liability rather than speculate about how the 

16 Court of Appeals might answer the question. Our hastiness to answer it as a 

17 matter of first impression might be forgiven if the issue were a straightforward 

18 application of blackletter law. That is pretty obviously not the case. The issue is 
5

1 one of genuine importance, about which reasonable jurists might disagree; policy 

2 considerations favor both sides; it requires us to make certain value judgments 

3 and public policy choices on behalf of New York; and resolution of the issue will 

4 have significant repercussions on the careful balancing between fiscal 

5 considerations and accountability for the harms caused by police officers and 

6 other officials in New York. It is not clear, and I do not presume to know, how 

the Court of Appeals might weigh those considerations 7 1 or how it might regard 

8 any number of public policy reasons for distinguishing municipalities from

9 private employers, who clearly would be liable. See, e.g., Rauch v. Jones, 4 N.Y.2d 

10 592, 596 (1958). What is clear, though, is that we are not best positioned to decide 

11 what the answer to the question should be. As our colleague Judge Wesley, who 

12 formerly sat on the Court of Appeals, has put it, that court, not the Second 

13 Circuit, “is the umpire better suited to make this call.” Tantaros v. Fox News 

14 Network, LLC, 12 F.4th 135, 150 (2d Cir. 2021) (Wesley, J., dissenting). 

1 The third factor clearly weighs in favor of certification. Whether the County can be 

held vicariously liable under New York law is obviously dispositive of the question 

before us. If the New York Court of Appeals agrees with us, Triolo will prevail. If it 

disagrees, the County will be entirely immune from liability. 
6

1 II

2 All of the above counsels a more restrained approach than the majority 

3 adopts today. But I recognize that my colleagues in the majority have decided 

4 that they have enough to confidently answer the question that I would certify. I 

5 recognize, too, that certification in New York is (and was intended to be) an 

6 institutional process, not a decision that is subject to the whims or preferences of 

7 any individual judge. Although I might have preferred to certify, there is no 

8 institutional reason for me to dissent on that ground alone. Dissenting gets our 

9 Court nowhere, while concurring at least serves to mark our decision as one of 

10 interest for the New York Court of Appeals. Granted, this would have been a 

11 more difficult approach to take if I thought the result that the majority reaches 

12 was completely wrong. But forced to answer the question, I am persuaded by 

13 the majority’s reasoning as to what New York law might require. Municipal 

14 immunity has been, in my view, rightly criticized on the ground that “the torts of 

15 public employees are properly to be regarded, as in other cases of vicarious 

16 liability, as a cost of the administration of government and should be borne by 

17 the public.” Restatement (Second) of Torts § 895C cmt. D (1979). I have less 
7

1 confidence than the majority does, however, that the New York Court of Appeals 

2 would agree. 

3 * * *

4 For these reasons I concur.