17-2300-cv 

Tuccillo v. County of Nassau 

 

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 

25th day of May, two thousand eighteen. 

Present: ROSEMARY S. POOLER, 

 RAYMOND J. LOHIER, JR., 

 Circuit Judges. 

 RICHARD J. SULLIVAN,1

 District Judge. 

_____________________________________________________ 

ROY S. TUCCILLO, 

 Plaintiff-Appellant, 

 v. 17-2300-cv 

COUNTY OF NASSAU, NASSAU COUNTY POLICE 

DEPARTMENT, DETECTIVE JOHN R. CAPECE, in his 

individual and official capacity, DETECTIVE DONALD 

BITTNER, in his individual and official capacity, 

POLICE OFFICER WILLARD S. GOMES, in his 

individual and official capacity, POLICE OFFICERS 

JOHN DOE 1-10, in their official and individual 

capacities, NASSAU COUNTY OFFICE OF THE 

DISTRICT ATTORNEY, 

 Defendants-Appellees, 

 

1

 Judge Richard J. Sullivan, United States District Court for the Southern District of New York, 

sitting by designation. 
2 

RICHARD TOBIN, 

 

 Defendant.2

_____________________________________________________ 

 

Appearing for Appellant: Richard Michael Langone, Garden City, N.Y. 

Appearing for Appellees: Christi M. Kunzig, Deputy County Attorney (Robert F. Van der 

Waag, Appeals Bureau Chief, Deputy County Attorney, on the 

brief), for Jared A. Kasschau, Nassau County Attorney, Mineola, 

N.Y. 

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

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is REVERSED. 

 Plaintiff-Appellant Roy Tuccillo appeals from a June 29, 2017 judgment entered by the 

United States District Court for the Eastern District of New York (Wexler, J.), dismissing his 

civil rights suit, brought after his arrest following a road rage incident. The district court ruled 

from the bench at the close of evidence following three days of trial testimony. We assume the 

parties’ familiarity with the underlying facts, procedural history, and specification of issues for 

review. 

 We review de novo a district court’s decision to grant judgment as a matter of law at the 

close of trial, without submitting the case to the jury. See Cash v. Cty. of Erie, 654 F.3d 324, 

332-33 (2d Cir. 2011). Such a judgment is only appropriate if, “viewed in the light most 

favorable to the nonmoving party, the evidence is such that, without weighing the credibility of 

the witnesses or otherwise considering the weight of the evidence, there can be but one 

conclusion as to the verdict that reasonable [persons] could have reached.” Leopold v. Baccarat, 

Inc., 174 F.3d 261, 267 (2d Cir. 1999) (internal quotation marks); see also Fed. R. Civ. P. 50(a).

 

 As relevant here, Tuccillo brought Section 1983 and state law claims, false arrest, 

malicious prosecution, and abuse of process. His federal and state law claims have substantially 

the same elements, and thus we consider them together. See Jenkins v. City of New York, 478 

F.3d 76, 84 (2d Cir. 2007) (false arrest); Dufort v. City of New York, 874 F.3d 338, 350 (2d Cir. 

2017) (malicious prosecution); Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (abuse of 

process). Further, each might be defeated by a finding of probable cause. “The existence of 

probable cause to arrest constitutes justification and is a complete defense to an action for false 

arrest.” Jenkins, 478 F.3d at 84 (internal quotation marks omitted). Similarly, absence of 

probable cause for prosecution is an element of a malicious prosecution claim, and thus probable 

cause provides a complete defense to that claim as well. See Dufort, 874 F.3d at 351. However, 

we are careful to note that “[t]he existence ... of probable cause in a malicious prosecution suit is 

... determined ... as of the time prosecution is commenced.” Rothstein v. Carriere, 373 F.3d 275, 

292 (2d Cir. 2004). Further, “[t]he probable cause standard in the malicious prosecution context 

 

2

 The Clerk is respectfully directed to amend the caption as above. 
3 

is slightly higher than the standard for false arrest cases.” Stansbury v. Wertman, 721 F.3d 84, 95 

(2d Cir. 2013). In Mangino v. Inc. Vill. of Patchogue, we noted that “[t]here has been 

considerable confusion within our Circuit regarding whether probable cause is a complete 

defense to a claim of abuse of process under New York law,” but declined to resolve the 

question. 808 F.3d 951, 958 (2d Cir. 2015). New York state courts have subsequently held that 

probable cause will defeat an abuse of process claim under at least some circumstances. See 

Shields v. City of New York, 35 N.Y.S.3d 330, 331 (1st Dep’t 2016).

 Here, the district court reasoned that authorities had probable cause to assert Tuccillo, but 

made this decision by improperly weighing the credibility of the witnesses. Specifically, the 

district court reasoned that Tuccillo and Tobin, the other man involved in the road rage incident, 

were both “liars,” while accepting an arresting officer’s testimony regarding his description of 

how he decided to arrest Tuccillo at the scene. These were prototypical credibility 

determinations, and, as a result, should have been made by the jury. See Leopold, 174 F.3d at 

267. Nor do we see an independent basis to find probable cause as a matter of law. The jury 

might well have discounted testimony from the officers, and found that they were improperly 

biased to arrest Tuccillo after Tobin called a police chief he knew, and had the chief speak with 

an officer at the scene. The jury might further have found that the officers failed to take a 

statement from a witness at the scene, who corroborated Tuccillo’s story, because of this bias. 

On this record, the question of probable cause to arrest should have gone to the jury. See Mitchell 

v. City of New York, 841 F.3d 72, 77-78 (2d Cir. 2016) (jury properly decides question of 

probable cause where officer may have based arrest on “unreasonable” view of the facts that was 

formed without “serious efforts” to investigate). 

 Accordingly, the judgment of the district court hereby is REVERSED and REMANDED 

for further proceedings not inconsistent with this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk