Berry v. Marchinkowski (137 F. Supp. 3d 495, 2015)

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Pro se Plaintiff Robert D. Berry (“Plaintiff’ or “Berry”) brings this Action against Defendants Investigator Stanley Marchin-kowski (“Marchinkowski”) and Detective Charles Locke (“Locke”) under 42 U.S.C. § 1983, alleging that Defendants falsely arrested and maliciously prosecuted him. Before the Court are Marchinkowski’s and Locke’s Motions for Summaiy Judgment. (Dkt. Nos. 126, 135.) For the reasons explained herein, Defendants’ Motions for Summary Judgment are granted.

I. Background

A. Factual Background

1. Plaintiff’s, Contracting Business

Plaintiff was the owner and president of Independent Construction Services (“ICS”), a construction company. (Def. Locke’s Rule 56.1 Statement (“Locke’s 56.1”) ¶ 1 (Dkt. No. 127); Aff. of David L. Posner (“Posner Aff.”) Ex. X (Robert Berry Deposition Transcript) (“Berry Tr.”) - 23-24, 40-41 (Dkt. No. 129).) ICS would occasionally hire contract workers, including Plaintiffs brother, Joseph Berry, and Gerrit Dodge. (Locke’s 56.1 ¶ 2; Berry Tr. 140-41.)

-Plaintiff obtained workers’ compensation insurance for ICS through the New York State Insurance Fund (“NYSIF”). (Locke’s 56.1 ¶3; Def. Stanley Marchin-kowski’s Statement Pursuant to Local Civ. R. 56.1(a) (“Marchinkowski’s 56.1”) ¶¶ 1-4 (Dkt. No. 137); Berry Tr. 63-68.) Plaintiff was unable to pay the premiums for the insurance, went into arrears, and coverage was canceled on November 22, 2004. (Locke’s 56.1 ¶4; Marchinkowski’s 56.1 ¶ 4; Berry Tr. 63-69.) Approximately three weeks before coverage was canceled, Plaintiff was sent a notice informing him that the insurance policy would be canceled as of November 22, 2004 unless he paid the amount in arrears, and that he would be ineligible to receive further policies from NYSIF until he paid the amount in arrears. (Marchinkowski’s 56.1 ¶ 5; Posner Aff. Ex. B (Notice, of Cancellation) (informing Berry that “[t]o prevent [his] policy from being cancelled, [he] must pay the amount due before 12:01 a.m. on the effective date of the cancellation” and that “[a]n employer, whose policy of insurance has been cancelled by the State Insurance Fund for non-payment of premium, is ineligible to contract a subsequent policy of insurance with the State Insurance Fund while the billed premium on the cancelled policy remains uncollected.” (internal quotation marks omitted)); .Berry Tr. 67-69 (confirming he received this notice),) Plaintiff claims he did not pay any of the money he owed because he could not afford to do so. (Berry Tr. 67-69.)

In July 2005, Plaintiff “prepared an estimate for a large renovation project” at the home of his friend Lisa Alexander (“Alexander”), which would cost $83,400. (See Locke’s 56.1 ¶ 5; Marchinkowski’s 56.1 ¶¶ 6, 26; Berry Tr. 83-85; Posner Aff. Ex.C (July 5, 2005 Berry Estimate for Alexander).) The estimate was on 'Plaintiffs letterhead, and provided the following contact information: “Washington Hollow Plaza Suite 11-126, Salt Point, New York 12578;” “OFFICE/FAX (845) 677-8768;” “CELL (845) 527-6759.” (Posner Aff. Ex. C (July 5, 2005 Berry Estimate for Alexander).) At the time he prepared the estimate, Plaintiff did not have workers’ compensation insurance, but' he claims that he did not believe it would be necessary since he thought that Alexander could get the insurance policy for the project. (Berry Tr. 84-87.) However, Alexander’s home was in the City of Beacon, which required that “proof of compensation insurance be submitted in order to obtain a building permit.” (Locke’s 56.1 ¶ 6;" Berry Tr. 88.)

2. Transfer of ICS Ownership to Janet Berry

In August 2005, Plaintiff transferred his shares in ICS to his mother, Janet Berry. (Locke’s 56.1 1Í7; Marchinkowski’s 56.1 ¶ 7; Posner Aff. Ex. Y (Deposition of Janet Berry) (“Janet Berry Tr.”) 5, 28-29.) Janet Berry worked primarily doing administrative office work at a retirement community, did not have prior business or construction experience, and did not give any consideration for the transfer of stock. (See Locke’s 56,1 ¶¶ 8-9; Marchinkowski’s 56.1 ¶ 8; Janet Berry Tr. 20-22, 31-36, 77-79.) She accepted the transfer because she did not want her “boys to be out of work and because Robert was not able to at that time get his own insurance.” (Locke’s 56.1 ¶ 10 (internal quotation marks omitted); Janet Berry Tr. 36 (“Q: So why did Mr.- Berry transfer the[] [stock] • to you? A: Because the business—I did not want to see either one of my boys out of work and because he- was not able to, at that point, get the insurance I asked him if it would be possible for me to take over the- company and pay the insurance.”).) Plaintiff “acknowledges that the transfer of the stock, to his mother was so that ICS could get workers’ compensation insurance for, the Alexander renovation project.” (Locke’s 56.1 ¶ 11; see also Berry Tr. 89 (“Q: So that transfer happened so that ICS could get Worker’s Compensation insurance for the Alexander Project, correct? A: Yes.”); Janet Berry Tr. 70-71 (“Q; ... And, you chose to do it because you needed proof of ownership? A: That’s correct. Q: And, you needed proof of ownership to be able to submit the application to NYSIF in your name as the owner; correct? A: That’s correct. Q: And the application had to be in your name because Mr. Berry had an outstanding .balance with NYSIF; right? A: He couldn’t get.insuranee obviously because of the outstanding balance.”).)

Plaintiff “remained the President of ICS after the transfer of stock ownership to his mother and his duties remained the same.” (Locke’s 56.1 ¶ 12; see also Berry Tr. 94-95.) Indeed, Plaintiff and his mother did not discuss Janet Berry’s responsibilities with the company, and Janet’s responsibilities before and after the transfer were the same: writing contracts and estimates based on information provided to her by Plaintiff. (Janet Berry Tr. 39, 85-86; see also Locke’s 56.1 ¶¶ 13-14; Janet Berry Tr. 98 (“Q: You weren’t going to work at this company? A: No. Q: You weren’t going to make any money at this company; correct? A: That’s correct. Q: This was a vessel so your sons could work, it was their business, correct, or Robert’s • business and he employed your other son; correct? A: Yes.”).)

Approximately two weeks after being transferred ownership of ICS, on September 1, 2005, Janet Berry went with Plaintiff to the Whalen Insurance Agency to apply for workers’ compensation insurance for ICS. (Locke’s 56.1 ¶ 15; Berry Tr. 95-100.) They met with insurance agent Leslie Brussel-Smith (“Brussel-Smith”), (Locke’s 56.1 ¶ 17; Posner Aff. Ex. F (Statement of Leslie Brussel-Smith); see also Berry Tr. 95-96), who advised them that there might be problems with the application because of Plaintiffs involvement in ICS and his outstanding financial obligations to NYSIF, (Locke’s 56.1 ¶ 19; Berry Tr. 101-02; Posner Aff. Ex. F (Statement of .Leslie Brussel-Smith)). There is some dispute about who said and did what. In December 2006, Brussel-Smith provided a sworn statement to -the Dutchess County Sheriffs Office, which stated:

I told them that there would be potential problems with the application > due to Robert’s financial obligation to the New York State Insurance Fund and the fact that his mother is now applying for Insurance. I told him that due to these issues I believed that the application would be declined, but he insisted that it be submitted. '

(Posner Aff. Ex. F (Statement of Leslie Brussel-Smith).) Plaintiff, however, testified that he did not ask Brussel-Smith to submit the application despite the potential problem, that he did not insist that the application be submitted, that Brussel-Smith just submitted the application, and that while Brussel-Smith stated that there might be a problem with it, she did not tell him that she thought it would be denied. (Berry Tr. 102^-04.) Similarly, Janet Berry testified that she recalled Brussel-Smith saying “something like, ‘this might not go through,’ ” not that she believed it would be denied, and that she “[did] not recall [Plaintiff] insisting on anything.” (Janet Berry Tr. 54-55.) More generally, Plaintiff testified that, while he was present during the meeting between his mother and Brussel-Smith,'he was not paying attention to what was said and the information for the application was provided by his mother, not him. (Berry Tr. 107-11.)

The application ultimately submitted on behalf of Janet Berry (and Plaintiff) contained several misstatements. First, the application listed the date of incorporation of ICS as August 8, 2005, and stated that ICS had been in existence for one month, (Marehinkowski’s 56.1 ¶ 10; Posner Aff. Ex. E (Janet Berry’s Application for New York Workers’ Compensation and Employers’ Liability Insurance), at 4); however, ICS was incorporated in May 1997, (Mar-ehinkowski’s 561 ¶ 10; Berry Tr. 37, 108 (testifying that he 'incorporated ICS' in May 1997)). Additionally, the application asked, “HAVE YOU EVER BEEN INSURED IN THE NEW YORK STATE INSURANCE FUND?” and instructed that

You must answer “YES” if you or any person who directly or indirectly owns or controls or is the president, vice president, secretary or treasurer of [ICS] either directly or indirectly owns or controls or is president, vice president, secretary or treasurer of an employer that has had a workers’ compensation policy with the State Insurance Fund that was cancelled, or directly or indirectly owned or controlled or was president, vice president, secretary or treasurer of an employer at the time that employer’s workers’ compensation insurance policy with the State Insurance Fund was cancelled. The Workers’ Compensation Law prohibits any person from contracting for a subsequent policy with the State Insurance Fund while the billed premium on such a cancelled policy remains uncollected.

(Posner Aff. Ex. E (Janet Berry’s Application for New York Workers’ Compensation and Employers’ Liability Insurance), at 3.) In response to this question, the b.ox for “no” was checked. (Id.) In his deposition, Plaintiff admitted that the statement was incorrect. (Berry Tr. 109-10.)

The application was rejected one week after its submission by letter received on September 12, 2005, because of ICS’s indebtedness to NYSIF and Plaintiffs involvement in ICS. (Locke’s 56.1 ¶ 20, 22; see also Berry Tr. 95-104,116; Janet Berry Tr. 49-57; Posner Aff. Ex. F (Statement of Leslie Brussel-Smith); Posner Aff. Ex. H (Rejection Letter dated September 7,.2005) (stating “[w]e are unable to provide you with a quote or insurance at this time because of the following reason^);- Pursuant to Section 93 of the Workers’ Compensation Law, our records indicate that you owe premium on the ... policy,” and indicating that Robert D. Berry owed $25,332.75 on policy number 13526512).)

3. Desormier Contractors

Marcia Rose (“Rose”), whose maiden name is Desormier, was Plaintiffs live-in girlfriend at the time of the events in question. (Locke’s 56.1 ¶ 23; Marchinkow-ski’s 561 ¶ 12; Berry Tr. 7, 14 (stating that he lives with Rose and that they began dating in 2004 or 2005 and that they began living together full-time in approximately 2006); Janet Berry Tr. 81 (stating that, by the time of the deposition, Rose and Plaintiff had lived together for seven to eight years); Dep. of Marcia Rose (“Rose Tr.”) 234 (testifying that, at the time Rose formed Desormier Contractors, she was living with Plaintiff); see also Rose Tr. 9 (testifying that Desormier is Rose’s maiden name, Rose is her married name, and that though she is no longer married she never changed her name back).) After Janet Berry’s insurance application was denied, Plaintiff and Janet Berry, in the presence of Rose, discussed the fact that Plaintiff would have to cancel the contract with Alexander because he did not have Insurance coverage. (Locke’s 56.1 ¶ 24; Berry Tr. 121-23; ‘Janet Berry Tr. 106-07.) Plaintiff claims that Rose then asked if she could open her own' business. (Berry Tr. 123; Janet Berry Tr. 106-07.) Plaintiff contends that the idea behind opening her own business was that Rose, who -was also Mends with Alexander, could take over the Alexander contract, and then Berry could work for Rose. (Marchinkowski’s 56.1 ¶ 14; Locke’s 56.1 ¶¶ 25-26; Berry Tr. 124, 249, 269; see also Rose Tr. 64, 72, 79, 122.) Plaintiff emphasizes that Rose wanted to open the business as an opportunity for her to “make a little extra money.” (Robert D. Berry’s Opp’n to Charles Locke’s Mem. of Law in Supp. of Summ. J. (“Pl.’s Mem. in Opp’n to Locke”) 6 (Dkt. No. 145) (internal quotation marks omitted); see also Rose Tr. 62.)

. On September 14, 2005, a day before Desormier filed a d/b/a certificate with the Dutchess County Clerk, and two days after receiving the letter denying his mother’s insurance application, Plaintiff and Rose went to the Whalen Agency and met with Brussel-Smith to apply for workers’ compensation insurance. (Locke’s . 56.Í ¶¶ 35, 41; Marchinkowski’s 56.1 ¶ 16; Berry Tr. 129-31; Rose Tr. 75-76; Posner Aff. Ex. J (Marcia Rose NYSIF Application); Deck of Stanley Marchinkowski (“Marchinkowski Deck”) Ex. D (Application Cover Letter) (Dkt. No. 141); see also Posner Aff. Ex. 0 (Desormier Contractors Business Certificate dated September 15, 2005).) Rose’s application, like Janet Berry’s application, checked the box “no” to the question, “HAVE YOU EVER BEEN INSURANCE FUND?” (Posner Aff. Ex. J (Marcia Rose NYSIF Application), at 3.) That application, like Janet Berry’s, contained the instruction:

You must answer ‘YES” if you or any person who directly or indirectly owns or controls or is the president, vice president, secretary or treasurer of [Desor-mier Contracting] either directly or. indirectly owns or controls or is president, vice president, secretary or treasurer of an employer that has had a workers’ compensation policy with the State Insurance Fund that was cancelled, or directly or indirectly owned or- controlled or was president, vice president, secretary or treasurer of an employer at the time that employer’s workers’ compensation insurance policy with the State Insurance Fund was cancelled. The Workers’ Compensation Law prohibits any person from contracting for a subsequent policy with the State Insurance Fund while the billed premium on such a cancelled policy remains uncollected.

(Id. at 3.) Like Janet Berry, Rose answered “no” to that question. (Id.) Rose paid the $1,000 deposit with a check from her personal account, (Marchinkowski’s 56.1 ¶ 19; Rose Tr. 84), but Plaintiff reimbursed Rose for the $1,000. (Marchinkow-ski’s 56.1 ¶ 19; Rose Tr. 85.) NSYIF granted Desormier’s application for insurance by letter dated September 23, 2005. (Marchinkowski’s 56.1 ¶ 20; Locke’s 56.1 ¶ 35; Rose Tr. 85-86; Posner Aff. Ex. K (Approval Letter Addressed to Marcie Rose d/b/a Desormier Contracting).)

On September 26, 2005, Plaintiff filled out and submitted a building permit application to the City of Beacon for the Alexander project, relying on the proof of insurance for Desormier Contracting. (Marchinkowski’s 56.1 ¶ 21; Berry Tr. 134-35; Marchinkowski Deck Ex. F (Building Permit Application).) In his permit application. Berry estimated the cost of the project to be $83,000 plus fees of $460, which was almost identical to the estimate of $83,400 provided to Alexander on July 5, 2005. (See Marchinkowski Deck Ex. F (Building Permit Application), at unnumbered 2; Posner Aff. Ex. C (July 5, 2005 Berry Estimate for Alexander).) Berry then drafted a scope of work for the Alexander project on Desor-mier’s letterhead, which provided for the completion of the same work as did the July 5 estimate prepared by Berry. (Marchinkowski’s 56.1 ¶ 22; Rose Tr. 123-24.)

The Alexander project, which was managed by Plaintiff, was the only project undertaken by Desormier Contracting. (Locke’s 56.1 ¶43; Marchinkowski’s 56.1 ¶23; Berry Tr. 141; Rose Tr. 120-22.) The project began in September 2005 and was completed roughly in March or April of 2006. (Marchinkowski’s 56.1 ¶ 23; see also Berry Tr. 139,144-45; Rose. Tr. 131.) Desormier was in business for the same period, as it was formed in September 2005, and went out of business in April 2006. (Marchinkowski’s 56.1 IT 24; Rose Tr. 41-42; 60-61.)

At the time of the formation of Desormier Contractors, Rose had no prior experience in business or construction. (Locke’s 56.1 ¶ 28; Rose Tr. 59-60.) She made no investment in the business, and the business did not purchase any equipment or supplies, but rather used those belonging to Plaintiff, free of charge. (Locke’s 56.1 ¶ 30-31; Marchinkowski’s 56.1 ¶ 31; Rose Tr. 93-94, 236.) Desormier Contractors only used workers who had previously worked for Plaintiff or ICS. (Locke’s 56.1 ¶ 33; Marchinkowski’s 56.1 ¶ 31; Berry Tr. 140-41,145; Rose Tr. 112-44.) Desor-mier’s letterhead, designed by Plaintiff, contained Plaintiff’s name and his cell phone number, but not the name or cell phone number of Rose; additionally, the office and fax number listed were thé same as those previously listed for Plaintiff’s business and corresponded to an empty apartment in Plaintiff’s parents’ home. (Marchinkowski’s 56.1 ¶ 30; Rose Tr. 95-97, 126-128; 136-37; Marchinkowski Decl. Ex. F (Building Permit Application); Pos-ner Aff. Ex. P (Desormier’s Scope of Work for Alexander) (stating, as part of the letterhead, Desormier Contractors, Robert D. Berry, Office/Fax: (845) 677-8768, Cell (845) 527-6759); Posner Aff. Ex. C (July 5, 2005 Berry Estimate for Alexander) (stating, as part of the létterhead, Robert D. Berry, Office/Fax (845) 677-8768, Cell (845) 527-6759).) Plaintiff’s name was on Desormier Contractors’ checking account, and the bank' statements were sent ■ to Plaintiff’s personal PO Box. (Locke’s 56.1 ¶ 34; Marchinkowski’s 56.1 ¶ 29; Rose Tr. 99-100, 173-76.) Plaintiff paid personal obligations' from Desormier’s account, such as child support tó his ex-wife, rent payments to his ex-wife’s landlord, and payments to his personal attorney. (Locke’s 56.1 ¶ 53; Marchinkowski’s 56.1 ¶ 33; Berry Tr. 270-72; Rose Tr. 182-84, 187-88.) Furthermore, Plaintiff continued to use the account after the company went out of business. (Marchinkowski’s 56.1 ¶ 33; Berry Tr. 170-71.) Desormier’s records were kept by Berry in the same ledger book he previously used for ICS. (Mar-chinkowski’s 56.1 ¶ 32; Berry. Tr. 161-64, Rose Tr. 169,192-94.) Rose had no duties or responsibilities in connection with De-sormier; Plaintiff operated the business and his responsibilities with respect to De-sormier were the same as those when he operated his own company. (Marchinkow-ski’s 56.1 ¶ 28; Berry Tr. 142, 269; Rose Tr. 81,111-12,175-176, 243-45.)

4. The Froman Project

On or around September 7, 2005, before Desormier was formed, Plaintiff was hired by Ann Froman (“Froman”) and her husband Rodney P. Silvernail (“Silvernail”) to build an art studio for Froman. (Marchin-kowski’s 56.1 ¶ 27; Berry Tr. 145-46; Marchinkowski Deck Ex. I (Typed Sworn Statement of Rodney Silvernail).) When Plaintiff learned that he would need workers’ compensation insurance, he suggested that Froman hire Desormier.so that he could do the work as its employee, although Plaintiff admits he did not work on the project as part of Desormier. (Mar-chinkowski’s 56.1 ¶27; Berry Tr. 145-49; see also Rose Tr. 136 (“Q: Did Desormier Contractors ever work on any project for Ann Froman? A: No.”).) Froman agreed, and Berry provided her with proof of insurance for the Froman project, listing Desormier as the policyholder.. (Mar-chinkowski’s 56.1 ¶ 27; Marchinkowski Deck Ex. G (Certificate of Workers’ Compensation Insurance).)

Froman arid Silvernail both provided sworn handwritten statemerits to the police in 2006, which were later typed, with some changes, and signed again. Silver-nail’s typed statement, which he signed on October 31, 2006, states the following:

I hired Robert Berry as an employee and he worked for me for about 4 months. During the time Robert Berry worked for me I had a conversation with him about another project, the construction of an art studio for my wife Ann Froman. Robert Berry agreed to due [sic] the project but I told him he would need his own workers comp insurance. Robert told me he now had insurance under I.CiS. and had me make payment to him for the remainder of the spec house work to that name. The insurance I was then told changed to Marcie Rose Deso[r]mier Contracting. Robert Berry told me he could not get the insurance in his name due to the bad debit [sic]. I didn’t pay attention or question the fact that the certificate was in the name of Desormier Contracting. The art studio was my wife’s project. I fired Robert Berry about this same time due to the quality of work he had performed on my spec home. No work was ever performed on my wife’s studio even, though Robert Berry cashed the checks totaling $15,000.00 (fifteen thousand dollars). My wife has contacted the New York State Attorney General’s office and was sent a packet of forms to fill out and return as of this time my wife has not returned the forms.

(Marchinkowski Deck Ex. I (Sworn Statement of Rodney Silvernail).) Silvemail’s handwritten statement, which he signed on October 20, 2006, contained the same material facts as his typed statement. The handwritten statement states:

I became acquainted with Robert Berry through his brother, Joe Berry. Joe stated that his brother Robert Berry was out of work. I am a contractor in northern Dutchess County and needed a worker to help me complete a house I was budding. I hired Robert Berry as an employee in August at 2005, at first I was looking for a person with his own comp coverage. Mr. Berry stated that he was a contractor but did not have insurance at that time due.to cancellation due to bad debit [sic], I hired Robert Berry and he worked for about four months, firing him in October 2005. He was fired for not completing work and doing work that was not up to code. During the period of time Robert Berry worked for me I had a conversation with him regarding another project, the construction of the Ann Froman Studios which [unintelligible] my wife Ann Fro-man. Robert Berry agreed to do the project. I advised him he needed to show me proof of insurance, he told me he had insurance under I.C.S. which changed to Marcie Rose DBA Desormier Contracting. He told me he. could not get the insurance due to his bad debit [sic] in his own name and would get it in his mothers [sic] name. I didn’t pay attention that the certificate of Insurance was in the name of Desormier Contracting. The project Ann Froman Studio’s [sic] was my wife’s- project for which my wife wrote checks totaling $15,000.00. No work was performed on the project but Robert Berry cashed the checks. My wife has since contacted the New York State Attorney General Office [sic] to assist with recovery of the funds. The New York State Attorney’s General’s Office [sic] to this date has only sent my wife a packet of paperwork to be filled out and returned. My wife has not done this as of this time.

(Robert D. Berry’s Opp’n to Stanley Mar-chinkowski’s Mem. of Law in Supp. of Summ. J. (“PL’s Mem. in Opp’n to Mar-chinkowski”) Ex. L (Handwritten Sworn Statement of Rodney Silvernail) (Dkt. No. 143).) Froman’s typed statement, signed on October 31, 2006, stated: ' f

I became acquainted with Robert Berry through my husband Rodney Silvernail. Robert Berry was working for my husband finishing work on a spec house. Robert Berry was going to be hired to build my art studio when he was finished working on the spec house. On September 7, 2005 I gave Mr. Berry a check for $10,000.00 (Ten Thousand Dollars) as a deposit for the projéet. I then gave' Mr. Berry an additional check for $5,000.00 (Five thousand Dollars) on September 27, 2005 toward the project. Robert Berry supplied an insurance certificate to show he had the proper coverage to due [sic] the project this was needed because he would not be an employee but would be the contractor on this job. Shortly after Robert Berry received the money my husband became dissatisfied with his work on the spec home and was fired. Robert Berry never returned the money I paid him for the art studio. Robert Berry did however place a mechanics lien- for $15,000.00 (Fifteen Thousand Dollars) on the spec house that he had worked on for my husband.

(Pl.’s Mem. in Opp’n to Marchinkowski Ex. O, at unnumbered 3.) Her handwritten statement, signed on October 20, stated:

I got to know Robert Berry through my husband Rodney Silvernail. He was working for my husband (Rodney Silver-nail) building a ho[u]se. He was going to be hired to build my art studio when he was finished building the house. As -a deposit to get Mr. Robert Berry to build my art studio I gave him a check on Sept. 7, 2005 for $10,000 and another check on September 27, 2005 for $5,000. Shortly after I wrote the checks to Mr. Robert B[e]rry ihy husband became dissatisfied with Mr. Robert Btejrry’s work he was doing on his house project. My husband- then fired Mr. Robert B[e]rry. Mr. Robert B[e]rry never returned the money I paid him for the art studio. Mr. B[e]rry then put a mechanics lien on the house he was building for my husband. Mr. Robert B[e]rry did not actually build the house. It was a modular home and he assisted i[n] finishing it.

(Id. at unnumbered 1.)

5. Marehinkowski’s Investigation

In February 2006, Russell DeForest (“DeForest”), a NYSIF auditor, conducted a routine audit of Desormier. (Marchin-kowski’s 56.1 ¶ 37; Berry Tr, 152-54; Marchinkowski Decl. ¶5.) DeForest had previously conducted an audit of Berry in connection with his prior policy. (Mar-chinkowski’s 56.1 ¶ 38; Berry Tr. 154; Marchinkowski Deck ¶6 & Exs. M, O.) Plaintiff met with DeForest on behalf of Desormier in February and October 2006 in connection with the audit of Desormier. (Marchinkowski’s 56.1 ¶¶ 34, 37; Berry Tr. 152-56; Marchinkowski Deck ¶ 6.) Plaintiff supplied Desormier’s books and records to DeForest, even though the company was supposed to be run by Rose. (See Marchin-kowski’s 56.1 ¶ 35; Berry Tr. 152-56.)

After his meetings with Plaintiff, DeForest made a fraud referral. (Marchinkow-ski’s 56.1 IT 40; see also Marchinkowski Decl. Ex. B (Division of Confidential Investigations Investigation Request).) That referral stated:

Robert Berry’s SIF ¡policy was cancelled 11/22/04 and he ow[e]s SIF $24,000. It now appears as if he is doing business under [Desormier’s policy]. Invoices are in the nam[e] of Robert Berry. Payments are made td R. Berry Desor-mier Contracting. Marcie Rose is Robert Berry’s girlfriend. They live together at 55 Front St. Robert Berry is paid as casual labor by Marcie Rose.”

(Marchinkowski Decl. Ex. B (Division of Confidential Investigations Investigation Request).) This investigation was assigned to Marchinkowski in or around April 2006. (Marchinkowski’s 56.1 ¶41; Marchinkowski Decl. ¶¶ 3-4 (explaining that cases are randomly assigned between the three investigators in Albany and that he was assigned to investigate the Berry fraud referral).) . .

Marchinkowski looked up Plaintiffs and Desormier’s policies in the NYSIF database, and saw that there were outstanding balances on both policies. (Marchinkow-ski’s 56.1 ¶ 42; 'Marchinkowski Decl. ¶ 9; see also Marchinkowski Decl. Ex. C (Printouts from the NYSIF System).) Marchin-kowski also determined the following: that Desormier’s application listed the company’s address as 55-Front Street, the same address that Plaintiff lived at, that Desor-mier’s application denied having previous coverage, and that Desormier’s application was submitted by. the same agency that submitted Plaintiffs application: ■ (Mar-chinkowski’s 56.1 ¶¶ 43-45; Marchinkow-ski Decl. ¶¶ 10-12.)

Marchinkowski also reviewed documents provided to DeForest during the audit. (Marchinkowski’s 56.1 ¶ 46;. Marchinkow-ski Decl. ¶ 13; Ex. F (attaching the documents provided during the audit).) In particular, in reviewing the documents, Marchinkowski noted that: (1) the July 5, 2005 Alexander estimate was on Plaintiffs letterhead; (2) the building permit application dated September 26, 2005 listed De-sormier as the contractor and was submitted by Plaintiff; and (3) that the scope of work for the Alexander project dated September 29, 2005 was on letterhead of De-sormier Contractors/Robert D. Berry. (Marchinkowski’s 56.1 ¶ 46; Marchinkow-ski Decl. ¶ 14.) Additionally, Marchinkow-ski noted the similarities between the letterhead used for the July 5 estimate and the September 29 scope of work for the Alexander project, noting that the office/fax and cell phone numbers were the same, that Berry had. previously identified the fax number as belonging to ICS, and that Berry was the only name listed on Desormier’s letterhead, despite Rose stating that she was the sole proprietor of Desormier. (See Marchinkowski’s 56.1 ¶¶ 48-49; Marchinkowski Deck- ¶¶ 15-17.). Marchinkowski also checked to see if NY-SIF had issued other Certificates of Insurance for Desormier, and learned that another certificate had been issued to Fro-man. (Marchinkowski’s 56.1 ¶ 50; Mar-chinkowski Decl. ¶ 18; Marchinkowski Decl. Ex. G (Certificate of Workers’ Compensation Insurance).)

In October 2006, Marchinkowski interviewed Froman and Silvernail, who told Marchinkowski that at first Plaintiff stated that he had insurance through his company, ICS, but later informed Silvernail that the policy had been changed to Marcie Rose/Desormier Contracting because he had been unable to obtain insurance coverage in his own name due to the “bad debit”; Silvernail also signed statements to that effect, which statements are reproduced above. (See Marchinkowski’s 56,1 ¶¶ 51-52; Marchinkowski Decl. ¶¶ 19-22.) Additionally, approximately ten days later, Froman and Silvernail called Marchinkow-ski because they wanted to make minor changes to their prior statements, which resulted in the typed statements, also reproduced above. ■ (See Marchinkowski’s 56.1 ¶ 52; Marchinkowski Decl. ¶ 22.)

Marchinkowski attempted to get a statement from Alexander, but she was uncooperative. (Marchinkowski’s 56.1 ¶ 53; Marchinkowski Decl. ¶ 23.) However, Alexander did tell Marchinkowski that' Berry had problems obtaining insurance coverage and that he ultimately used someone else to get the necessary policy. (Marchinkowski’s 56.1 ¶ 53;' Marchinkow-ski Deck IT 23.)' Marchinkowski then referred the case to the Dutchess County Sheriff’s Office. (Marchinkowski’s 56.1 ¶57; Marchinkowski Deck ¶29.) Mar-chinkowski- summarized his findings up until that point, collected a list of potential witnesses, and prepared a binder containing the evidence. (Marchinkowski’s 56.1 ¶¶ 57, 59; Marchinkowski Deck ¶¶ 29, 31; Marchinkowski Deck Exs. M (summary), N (potential witness list), P (table of contents of binder of evidence).)

6. Marchinkowski’s and Locke’s Investigation '

Marchinkowski presented the information he collected to Locke, and they decided to interview Rose. (Marchinkowski’s 56.1 ¶ 60; Marchinkowski Deck ¶ 32.) On December 7, 2006, Locke and Marchinkow-ski went to Rose’s place of business. (Marchinkowski’s 56.1 ¶ 61; Marchinkow-ski Deck ¶ 33.) After asking her some questions, they asked her to come to the Sheriffs Office for an interview; she agreed and followed in her own car. (Marchinkowski’s 56.1 ¶ 61; Marchinkow-ski Deck ¶ 33.) Upon arrival, Locke informed Rose of her Miranda rights, and she signed a Miranda waiver. (Marchin-kowski’s 56.1 ¶ 62; Marchinkowski Deck ¶ 34; Marchinkowski Deck Ex. R (Rose’s Miranda Waiver)). Rose was interviewed with a Dutchess County Sherriff s Office (“DCSO”) secretary in the room, who provided a typed statement based on the interview. (Marchinkowski’s 56.1 ¶ 66; Marchinkowski Deck ¶ 38.) Rose was shown the statement and asked to review it for accuracy; Rose signed both pages, and, did not, indicate that any part of the statement was inaccurate or ask to make any changes. (Marchinkowski’s 56.1 ¶ 66; Marchinkowski Deck ¶ 38.) Rose’s signed statement provided:

My boyfriend Robert Berry is a residential contractor. He previously had a company named I.C.S, Independent Construction Services, Inc., which is no longer in business. On 04/15/03 he then took out a Workers Compensation policy with the NYS Insurance Fund, brokered through the George T. Whalen Insurance Agency. There came a point in time when his insurance was cancelled for bad debt, premium owed to the NYS Insurance Fund in the approximate amount of $24,000. Robert Berry then attempted to have his mother, Janet Berry, take out a policy with the NYS Insurance Fund for him because he was unable to due to premium owed to the NYS Insurance Fund. He could not acquire insurance while there was a balance due. The George. T. Whalen Insurance Company did not accept that policy, because the names were the same. Robert then .discussed with me taking out the policy in my name to avoid being turned down for the policy from the NYS Insurance Fund. I agreed.

On September 14, 2005, my boyfriend Robert Berry and I went to the George T. Whalen Insurance Agency on Franklin Avenue in Millbrook NY to file the paperwork that was necessary to take out a Workers Compensation policy for the company he decided to call “Desor-mier Contracting, Marcia Rose DBA”. He decided to use the name “Desormier” because that was my maiden name. The purpose of the insurance was for work to be covered while Robert engaged in residential carpentry work. The policy was granted and Robert Berry used that insurance coverage to obtain and continue to do work in residential carpentry.

I know for a fact that that insurance coverage was used by Robert Berry to file with the City of Beacon for him to be able to conduct a restoration of the Alexander residence at [redacted].

I never had any active participation in the company whatsoever such as estimates, billing, actual physical labor, or scheduling appointments. I knew the only reason my name was needed to take out the policy was that Robert Berry was unable to use his name due to the previous monies owed.

The actual business address for the De-sormier Contacting business was located on 1103 Chestnut Ridge Road, Dover, NY (Town of Washington).

(Marchinkowski Deck Ex. S (Rose Signed Statement).) Much of Plaintiffs Opposition to the Motions focuses on the conduct that occurred during the interview of Rose. Plaintiff, pointing to evidence in Rose’s deposition and in her affidavit, claims that the statement she made was coerced and untrue. (Pl.’s Mem. in Opp’n to Locke 8.)

On October 16, 2012, Rose swore an affidavit providing information regarding the statement she gave the police in 2006. Rose averred, in relevant part:

On December 7, 2006, I signed a statement written by Detective Charles Locke, who advised me of my rights, which contained information not true to the questions asked of me. At the time of the questioning, I felt comfortable answering any and all questions that might be presented to me, so I did not see the need for a lawyer. After the initial general information was taken and basic questions of my name and address, where I worked and who my boyfriend was, both Mr. Marchinkowski and Mr. Locke began to ask questions regarding my business “Desormier Contractors”. At this time a binder was laid before me and was opened to my Insurance Application. When asked if the signature was mine, I told the[m] “yes”. I was then asked other questions regarding the genuineness of my business. I tried to tell both of them that the business was mine and that Robert Berry worked for me. [Neither of them just wouldn’t have it.

They told me that because I had a full time job at The Fountains at Millbrook, that there was no way I could own a Construction Company or run one. I repeated I only owned it and that Robert Berry managed it.

After many inquiries pertaining to the legitimacy of Desormier Contractors, which I attested to all of, they just wouldn’t accept the truth. They also kept stating throughout the questioning “Did you know he went bankrupt?” I told them yes, but what does that have to do with me?

After about 45 minutes of questions, I noticed the time was about 2:00 PM and I asked “what’s going to happen to me?” I was told I was going to be brought back in and fingerprinted and booked. I told them my son was going to be home soon and I needed to be there. It was at that point it was told to me that maybe I should think about, my son. Interpreting that as a threat, I signed what they wanted so I could leave.

Despite my original statement, I tried to contact the Bar Association on retracting my statement but had no luck. I then waited until Robert Berry’s trial to make my statement, but he was denied a trial.

(Pl.’s Mem. in Opp’n to Marchinkowski Ex. S2 (Aff. of Marcia Rose (“Rose Aff.”)).)

Rose provided a further description of the questioning during her deposition; In particular, Rose stated the following in her deposition, regarding the signed statement reproduced above:

Q. Did you in fact read every page of that statement?

A. No, I did not.

Q. You didn’t?

A. No.

Q. Why not?

A. Because this—I signed this paper, but I did not say these things.

' Q. I’m simply asking if you read the statement before you signed it.

A. I didn’t.

* * *

Q. If you turn back to the first page, at the top of the statement it says Detective Lock[e] advised you of your various rights, correct?

A. Yes.

Q. Did he in fact advise you of your various rights?

A. Yes.

Q. Including your right to remain silent?

A. Yes.

Q. And your right to an attorney?

A. Yes.

Q. This statement was made in December 2006, right?

A. Yes.

Q. You now claim it,, was coerced, right?

A. Yes.

Q. ... Can you explain why you thought you were being coerced?

A. Because when Detective Lock[e] and Marchinkowski came to my place of employment, they had interviewed me and had a notebook with different things, my application, and the Lisa Alexander job, and asked me if those were my signatures, and I said, ‘Yes.” And he asked me, you know, other questions, what did I—

Q. Who is “he”?

A. Both the detective and Marchinkow-ski, just different random questions. ■

* * *

A. The detective—Marchinkowski and Lock[e], they wanted me to go to the Dutchess County Sheriffs Office to give a statement, and I agreed.

* * *

Q. Did you read this statement before you signed it?

A. Out of nervousness, I did not.

Q. Okay. And why were you nervous?

A. Because the questions from when I was at my place of employment to the Dutchess County Sheriffs office, it changed.

Q. How did it change?

A. The detective and the investigator, you know, asked if I owned a business, and I said yes. And they said, “How could you? You already have a full-time job.” And he asked me the name of my business, and what I named it, and I said “Desormier.” The questions were different from when I was at the Fountains.

Q. And because they were asking you about Desormier, you felt nervous?

A. Not in the beginning.

Q., So why did you become nervous?

A. Because he was—because Detective Loek[e] and Marchinkowski were saying, “How could you own a business? You have a full-time job. ‘Don’t you work weekends?”

Q. And because they said, “Don’t you work weekends,” you were so nervous that you signed a statement you hadn’t read?

A. I felt very intimidated, yes.

Q. What did they say that made you feel so intimidated?

A. They asked me questions, and I answered them. But it just seemed like the answers I was giving them, they weren’t having it. They were just saying, “No, no.”

Q. And you found “No, no” to be intimidating?

A. Yes.

Q. Did they say anything else that you found intimidating?

A. Yes. He was asking me things from here, and I said, “What is going to hap7 pen to me?” Like I—I didn’t think, that I did anything wrong, but they made me feel like I did. I told them what I did to open á business,

Q. Okay.

A. And I said that .1 went and got insurance, I got a DBA, I opened a checking account, and they—•Marchin-kowski and Lock[e], were like, • “No.”

Q. “No” is why you felt threatened?

A. Yes.

Q. Anything else they said that made you feel intimidated and nervous?

A, Yes. I had. said, you know, “What’s going to happen to me? And he said, ‘You have a son to think about.” He said, ‘You’re going to be fingerprinted and booked.” And I just wanted to get the heck out of there, and I signed the statement. I never looked at it, never.

Q. Except for when you signed both pages? ■

A. I just signed, I just signed my name. I never read this over.

(Rose Tr. 197-202.)

Later, Rose stated that she did hot know why she never asked for a lawyer, (id. at 205-06), that she never called the Dutchess County Sheriffs Office to correct the statement, (id. at 204-05), but that she called the bar association in Poughkeepsie, (id. at 204). Additionally, during the deposition, counsel for Marchinkowski went through the statement with Rose, paragraph by paragraph. (Id. 206-11.) Rose stated that the sentence “I know for a fact that insurance coverage was used by Robert Berry to file with the City of Beacon for him to be able to conduct a restoration of the Alexander residence” was false because it was used by her, though she acknowledged that Berry did work on the Alexander project, and that the statement that the actual business address was 1103 Chestnut Ridge Road was false, as it was 55 Front Street, but acknowledged that everything else in the, statement was accurate. (Id.)

Prior to their interview with Rose, Mar-chinkowski and Locke were unaware that Janet Berry had submitted an application to NYSIF in an attempt to get workers’ compensation insurance. . (Marchinkow-ski’s 56.1 ¶ 67; Marchinkowski Decl. ¶ 40.) Following the interview with Rose, they confirmed this piece of information by calling the insurance agency that submitted Janet Berry’s NYSIF application, at which point they learned that the same insurance agent, Brussel-Smith, submitted the applications, supposedly on behalf of Janet Berry and Desormier. (Marchinkowski’s 56.1 ¶ 67; Marchinkowski Decl. ¶¶ 40-41.), At that point, Locke called the District Attorney’s (“DA”) Office, and Locke stated that the DA’s office had authorized the prosecution of Plaintiff. (Marchinkowski’s 56.1 ¶ 69; Marchinkowski Deck ¶¶ 42-43.) On December 12, 2006, Brussel-Smith came to the DCSO for an interview, and provided the statement discussed above. (See Mar-chinkowski’s 56.1 ¶ 70; Marchinkowski Deck ¶ 44.)

7. Plaintiffs Arrest and Prosecution

Plaintiff was charged with (1) grand larceny in the third degree, in violation of N.Y. Penal Law § 155.35, (2) offering a false instrument for filing, in violation of N.Y. Penal Law § 175.35, and (3) committing a fraudulent practice, in violation of N.Y. Workers Compensation Law § 114(3). (Marchinkowski’s 56.1 ¶ 72; Marchinkowski Deck Ex. V (Felony Complaint).) The felony complaint was signed by Locke on December 3, 2006, and stated:

The facts upon which this Felony Complaint is based are as follows:

The said defendant, Robert D. Berry, on September 14, 2005, at the aforesaid location, with intent to defraud and benefit himself did wrongfully withhold twenty-four thousand four hundred twenty-nine dollars and forty-six cents ($24,429.46) as insurance premiums from the New York State Insurance Fund. TO WIT: the said defendant Robert D. Berry did knowingly cause a fraudulent application for workers compensation insurance to be filed through the New York State Insurance Fund by using the George T. Whalen Insurance Agency as a broker to obtain this insurance. Deponent further states that the said defendant by means of concealing information did obtain a benefit and by soliciting another to file the fraudulent application to obtain insurance when in fact the defendant knew he was the true owner of the business and was unable to obtain insurance through the New York state Insurance Fund due to $24,429.46 in past unpaid premium.

The foregoing factual allegations are based upon personal knowledge of the complainant and upon information and belief, the sources of complainant’s information and belief being, depositions of Richard Morrison, Ann Froman, Rodney Silvernail, Russell DeForest, voluntary statement of Marcia Rose, applications of insurance by Robert Berry and Marcia Rose, audits conducted by the New York State Insurance Fund, written estimates of “Desormier Contracting” written by Robert Berry, banking records of “Desormier Contracting,[”] and investigation by Stan Marchinkow-ski of the New York State Insurance Fund and the Dutchess County Sheriffs Office.

(Marchinkowski Deck Ex. V (Felony Complaint).)

On December 13, 2006, Berry turned himself in to Locke. (Marchinkowski’s 56.1 ¶ 72; Marchinkowski Deck ¶ 45.) Marchinkowski had no involvement in the case after the arrest and arraignment; he did not communicate with the District Attorney’s Office (“DA’s Office”), attend or provide testimony at any criminal proceedings, or participate in the prosecution in any other way. (Marchinkowski’s 56.1 ¶ 75; see also Marchinkowski Deck ¶ 45; Berry Tr. 260, 273-74.) Similarly, Locke had no interaction with Plaintiff after the arrest, nor did he testify at grand jury proceedings or any preliminary hearings or trial, or consult with the DA’s Office regarding Plaintiffs criminal case. (Locke’s 56.1 ¶¶ 66-68; Aff. of Charles Locke ¶ 15 (Dkt. No. 130); Berry Tr. 273-74.) Neither Defendant played a role in plea negotiations. (Locke’s 56.1 ¶ 77; Aff. of Edward Whitesell (“Whitesell Aff.”) ¶ 21 (Dkt. No. 131).)

Plaintiff was represented by four attorneys during his criminal case: Ronald Tomlins, Brittany Kilpatrick, William Ten-dy, and Rudolph Russo, of the Public Defender’s Office. (See Marchinkowski’s 56.1 ¶ 76; Berry Tr. 253-59; "Whitesell Aff. ¶¶ 5-11.) In April 2007, a grand jury waiver was filed by Mr. Russo, meaning that counsel for Plaintiff was insisting that Plaintiff wanted to waive his right to a preliminary hearing and have his case referred to the grand jury under NY Criminal Procedure Law (“N.Y.C.P.L.”) § 180.30. (See Marchinkowski’s 56.1 ¶ 77; Whitesell Aff. ¶ 11; Whitesell Aff. Ex. E, at unnumbered 2 (Letter from Ronald R. Tomlins to Judge Priscoe (Apr. 24, 2007)).) Normally, when a court receives a so-called § 180.30 waiver, it is divested of jurisdiction and the DA’s Office must present to the Grand Jury within a year or the case is subject to dismissal. See N.Y.Crim. Proc. Law § 180.30. (See also Whitesell Aff. ¶ 14.) The DA’s Office did not know about the waiver, and the DA’s Office engaged in plea negotiations through the summer of 2008 with Plaintiffs other lawyers. (Marchinkowski’s 56.1 ¶¶ 76-77; Locke’s 56.1 ¶ 71; Berry Tr. 253-58 (stating that he had been presented with a plea deal by his lawyer in the summer of 2008); Whitesell Aff. ¶¶6-13 (discussing the plea negotiations).) Up until July 2008, the DA’s Office and defense attorneys Mr. Tendy and Ms.' Kilpa-trick agreed to a series of adjournments in order to allow the parties to continue plea negotiations. (Locke’s 56.1 ¶ 72-73; Whitesell Aff. ¶ 14.) However, in July 2008, Plaintiffs then-attorney, Mr. Russo, advised the state court and the DA’s Office that the waiver had been filed in April 2007, and in January 2009, the criminal case was dismissed under to N.Y. C.P.L. § 180.85(3), as it was not presented to the Grand Jury within twelve months of arraignment. (Marchinkowski’s 56.1 ¶¶77-78; Locke’s 56,1 ¶¶ 72, 78; Posner Aff. Ex. W .(Decision and Order Terminating Prosecution).). ..See also N.Y.Crim. Proc. Law § 180.85(2)-(3).

The DA’s Office did not make a conscious decision to decline to present in a timely fashion, nor did the DA’s Office come to believe there was -not probable cause to prosecute. (Locke’s 56.1 ¶¶75-76; Whitesell Aff. ¶¶ 16,19.)

8. Plaintiffs Bankruptcy Proceeding

Plaintiff filed for bankruptcy in June 2006, and his debt was’ discharged iii a Chapter 7 bankruptcy proceeding on September 12, 2006. (See PL’s Mem. in Opp’n to Marchinkowski Ex. D (Discharge of Debtor).) Included on the list of creditors were the Dutchess County Sheriff-Civil, 150 North Hamilton St. PO Box 389, Poughkeepsie, NY 12601 and New York State Ins. Fund, PO Box 4788, Syracuse, NY 13221-4788. (Id. at 34-35.) In his Opposition, Plaintiff asserts that his prosecution was an “attempt to circumvent Bankruptcy proceedings.” ■ (Pl.’s Mem. in Opp’n to Marchinkowski 14.) He asserts that Defendants knew about the bankruptcy. (Id.) As evidence of this, he points to the fact that Dutchess County Sheriffs office and the NYSIF were served in relation to his bankruptcy proceeding. (See id. (citations omitted).) Additionally, Plaintiff submitted an Affidavit signed by Rose, dated October 16, 2012. That Affidavit states: “[Marchinkowski and Locke] also kept stating throughout the questioning.‘Did you know he went bankrupt?’” (PL’s Mem. in Opp’n to Marchinkowski Ex, S2 (Rose Aff.).) However, contrary to Plaintiff’s contention, (See PL’s.Mem. in Opp’n to Marchinkowski 12-13), this was undercut by Rose’s deposition testimony. That evidence indicates that Defendants were not asking Rose about the bankruptcy proceeding, but rather were asking her about the $24,000 Plaintiff owed NYSIF.

Q. You say they kept throughout questioning asking, “Did you know he went bankrupt?”, right?

A. Yes, they said that a lot too.

Q. Both of them?

A. Yes.

Q. What did they say?

A. They said, “Do you know about the twenty-four thousand?” And I saw in a notebook, and it was circled, and I said, ‘Yes, I did know about it, but it didn’t have anything to do with me,” but I did know.

Q. So they asked you if you knew that he owed NYSIF twenty-four thousand dollars?

A. Yes.

Q. What does that have to do with the bankruptcy?

A. It doesn’t have anything to do with the bankruptcy.

Q. So what did they ask you about a bankruptcy?

A. They just asked me if I knew about the twenty-four thousand.

(Rose Tr. 213-14.) Additionally, Plaintiff asserts in his Memorandum that “Detective Locke was told personally by Robert Berry that he had filed bankruptcy, and his response was ‘I didn’t care and just wanted to get this over and get on with his day.’ ” (PL’s Mem. in Opp’n to Loeke at 9-10; see also id. at 16 (“Robert Berry called immediately (being approximately 4:30 pm) and spoke to the detective. Detective. Lock[e] demanded that he come to the station and turn himself in. Robert Berry asked him why and the detective stated for Grand Larceny of $24,000.00 to the New York State Insurance Fund. Robert responded with T went bankrupt.’ Detective Locke was not interested in any explanations regarding Mr. Berry’s innocence.”).)

In reply, Marchinkowski disputes his knowledge of the bankruptcy at the time of the investigation, noting that the investigation commenced in April 2006, before Plaintiff filed for bankruptcy, that Mar-chinkowski testified that he did not know about the bankruptcy, and that the notice of Bankruptcy was sent to Syracuse, but Marehinkowski’s office is in Albany. (Reply Mem. of Law in Further Supp.- of Def. Stanley Marchinkowski’s Mot. for Summ. J. (“Marchinkowski’s Reply”) 18-19 (Dkt. No. 153); see also Marchinkowski Decl. ¶¶ 2, 4; Aff. of Robert Berry (“Berry Aff. in Opp’n to Marchinkowski”) Ex. 4 (Dep. Tr. of Stanley Marchinkowski (“Marchin-kowski Tr.”)), at. 18, 71, 73-75 (Dkt. No.-144).) Similarly, Locke responds that he did not have notice of the bankruptcy proceeding because the notification was sent to the Civil Division of the Dutchess County Sheriffs Office, which has a different computer system than the criminal division. (Charles Locke’s Reply Mem. of Law in Supp. of Summ. J. (“Locke’s Reply”) 5 (Dkt. No. 151); Aff. of Robert Berry (“Berry Aff. in Opp’n to Locke”) Ex. 3 (Dep. Tr. of Charles Locke (“Locke Tr.”)), at 40-41 (Dkt. No. 146).).

B. Procedural Background

Plaintiff filed suit in New York Supreme Court, County of Dutchess in April 2009, and Defendants removed to federal court on April 30, 2009. (Dkt. No. 1.) Plaintiff filed a Verified Complaint on June 8, 2009, which Complaint asserted claims against the Village of Millbrook, .the Dutchess County District Attorney’s Office, the NY-SIF, the Daily Freeman, and John and/or Jane Doe. (Dkt. No. 4.) On November 7, 2009, Plaintiff voluntarily dismissed NY-SIF from the case, (Dkt. No. 27.) On January 27, 2010, Plaintiff filed a Motion for Leave to File an Amended Complaint, which added Marchinkowski arid Locke as Defendants. (Dkt.Nos.30, 34.) By Opinion dated September 29, 2010, the Court granted Plaintiff pérmission to file his Amended Complaint with the' proposed § 1983 claims against Locke and Marchiri-kowski, but without his proposed defamation. claims, (Dkt. No. 40), and Plaintiff filed his Amended Complaint, (Dkt. No. 41). On December 14, 2010, Plaintiff voluntarily dismissed his claims against the Daily Freeman. (Dkt. No. 59.) On December 17, 2010, Plaintiff filed a Second Amended Verified Complaint, (Dkt. No. 57), and on September 26, 2011, the Court dismissed that Complaint on Motions of the Village of Millbrook and the Dutchess County District Attorney’s Office, (Dkt. No, 63). Finally, Plaintiff filed a Third Amended Complaint on November 4, 2011, (Dkt. No. 65), and the Court dismissed Plaintiffs claims. against" the Village of Millbrook with prejudice," substituted Dutchess County for the Dutchess County District Attorney’s Office, and dismissed the claims against Dutchess County without prejudice, (Dkt. No. 87), leaving only the . claims against Marchinkowski and Locke remaining.

After the close of discovery and with the permission of the Court, on July 25, 2014, Locke filed a Motion for Summary Judgment and .accompanying papers, (Dkt. Nos. 126-34), as-did-Marchinkowski, (Dkt. Nos,-135-42). Plaintiff filed his Opposition, to both Motions on August 27,- 2014. (Dkt. Nos. 143-47, 150.) Locke filed his Reply on September 18, 2014, (Dkt. No. 151), and Marchinkowski did the same on September 19, 2014/ (Dkt. Nos. 153-54). On July 13, 2015, the Court ordered the Parties to submit supplemental briefing on the issue of whether Defendants had arguable probable cause for each of the three charges brought against Plaintiff, (Dkt. No. 156), which the Parties submitted on July 20, 2015, (Dkt. Nos. 157, 159, 162, 163).

II. Discussion

A. Materials Considered in Deciding this Motion

When ruling on a motion for summary judgment, a district court should only consider evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir.1998). “[W]here a party relies on affidavits ... to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.’” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.2012) (quoting Fed.R.Civ.P. 56(c)(4)) (citing Fed.R.Evid. 602); see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (“Rule 56 requires a motion for summary judgment to be supported with affidavits based on personal knowledge.”); Baity v. Kralik, 51 F.Supp.3d 414, 419-20, 421 (S.D.N.Y.2014) (disregarding “statements not based on [the] [p]laintiff s personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge.” (internal quotation marks omitted)); Zigmund v. Foster, 106 F.Supp.2d 352, 356 (D.Conn.2000) (noting that “[a]n affidavit in which the plaintiff merely restates the conclusory allegations of the complaint” is insufficient to support a motion for summary judgment). Furthermore, “a pro se party’s bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for, summary judgment.” Perez v. de la Cruz, No. 09-CV-264, 2013 WL 2641432, at *7 (S.D.N.Y. June 12, 2013) (alteration, italics, and internal quotation marks omitted); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (“The non-moving party may not rely on conclu-sory allegations or unsubstantiated speculation.”); Alzawahra v. Albany Med. Ctr., No. 11-CV-227, 2012 WL 5386565, at *1 (N.D.N.Y. Nov. 1, 2012) (“In this regard, a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials asserted in the pleadings, or on conclusory allegations or unsubstantiated speculation.” (citation and internal quotation marks omitted)), aff'd, 546 Fed.Appx. 53 (2d Cir.2013). Therefore, the Court disregards factual allegations asserted in Plaintiffs Memorandum of Law that are not supported by admissible evidence. See Mitchell v. Igoe, No. 06-CV-186, 2009 WL 3165659, at *8 (N.D.N.Y. Sept. 25, 2009) (“Statements contained within a memorandum ... without proper evidentiary support, do not constitute competent evidence upon which a court may base its ruling upon a motion for summary judgment.” (citing Commerce & Indus. Ins. Co. v. Vulcraft, Inc., No. 97-CV-2578, 1998 WL 823055, *11 (S.D.N.Y. Nov. 20, 1998)), aff'd, 407 Fed.Appx. 536 (2d Cir.2011); Caracciola v. City of New York, No. 95-CV-3896, 1999 WL 144481, at *4 (S.D.N.Y. Mar. 17, 1999) (“In opposition to this summary judgment motion, plaintiffs have proffered a three-page memorandum of law and their attorney’s affirm.ation, neither of which constitutes admissible evidence as contemplated by Fed.R.Civ.P. 56(e).”)). For example, Plaintiff asserts, without citation:

As per defenses allegations that Ms. Rose never had any active participation in the company whatsoever is an intentional misrepresentation of fact. All testimony has depicted Ms. Rose as the legitimate owner of Desormier Contractors and in no way was fraudulent or a scheme for Robert Berry to avoid his financial responsibilities to the' New York State Insurance Fund.

(Pl.’s Mem. in Opp’n to Locke 9.) Additionally, Plaintiff asserts, also -without citation:

Desormier Contracting was never a Front Company or was set up to defraud the New York State Insurance Fund. Desormier Contractors was set up by Ms. Rose on her own accord, followed the rules for registering it with the Count, properly applied for insurance, filed her Income Tax for the year, and completed Ms. Alexander’s project. No crimes were ever committed by Ms. Rose, Robert D. Berry or Ms. Janet Berry.

(Id. at 13.)

B. Standard of Review

Summary judgment is , appropriate where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmov-ing party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence'sufficient to raise a genuine issue of fact for trial'in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motio