No. 11CIV3207AMDRLM, 2016 WL 324959 (E.D.N.Y. Jan. 26, 2016), aff'd sub nom. Nickey v. Carboine, 682 Fed.Appx. 78 (2d Cir. 2017).
. In such circumstances, the claim survives only if a plaintiff's case fits one of two exceptions: (a) the officer “continued to take an active part in the proceedings, beyond participation as [a] mere witness[], by insisting on or urging the continuation of what [he or she] knew to be a groundless prosecution, ” or (b) the officer, after “initiating or procuring the charges in good faith, ” subsequently “learn[ed] that the accused is innocent” and “fail[ed] to take reasonable steps to correct the record.” Nickey v. City of New York, 2013 WL 5447510, at *8 (E.D.N.Y. Sept. 27, 2013), on reconsideration in part sub nom. Nickey v. Coward, 2016 WL 324959 (E.D.N.Y. Jan. 26, 2016), aff'd sub nom. Nickey v. Carboine, 682 Fed. App'x 78 (2d Cir. 2017); Restatement (Third) of Torts: Liab. for Econ. Harm § 21 cmt. e (Am. L. Inst. 2020); see Burt v. Aleman, 2008 WL 1927371, at *5 n.3 (E.D.N.Y. Apr. 30, 2008).
See Jackson v. County of Nassau, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) (an administrative arm of a municipality lacks the capacity to be sued); Nickey v. Coward, 2016 WL 324959, at *3 (E.D.N.Y. Jan. 26, 2016), aff'd sub nom. Nickey v. Carboine, 682 F. App'x 78 (2d Cir. 2017) (arguments not made in opposition to summary judgment motion deemed abandoned). B. First Amendment Claims
However, Plaintiffs "may not rely on conclusory allegations or unsubstantiated speculation" in their opposition. Nickey v. Carboine, 682 F. App'x 78, 79 (2d Cir. 2017) (summary order) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). Defendants need not offer evidence to show there is no genuine dispute of material fact on all of Plaintiffs' claims.
"Following Rehberg, a plaintiff may not be able to rebut the presumption of probable cause by relying on a police officer's perjurious testimony before the grand jury." Adamou v. Doyle, 12 Civ. 7789 (ALC), 2017 WL 1230541, at *3 (S.D.N.Y. Jan. 12, 2017) (citing Nickey v. City of New York, 11 Civ. 3207 (RRM), 2013 WL 5447510, at *7 (E.D.N.Y. Sept. 27, 2013) (holding that after Rehberg, "plaintiffs can no longer base malicious prosecution claims solely on the theory that an officer lied to the grand jury or use an officer's grand jury testimony to rebut the probable cause presumption"), on reconsideration in part sub nom. Nickey v. Coward, 2016 WL 324959 (E.D.N.Y. Jan. 26, 2016), aff'd sub nom. Nickey v. Carboine, 682 F. App'x 78 (2d Cir. 2017)); Carr v. City of New York, 11 Civ. 6982 (SAS), 2013 WL 1732343, at *4 (S.D.N.Y. Apr. 19, 2013) ("[A] plaintiff can no longer overcome this presumption by alleging that a police officer committed perjury before the grand jury[,] as officers are entitled to absolute immunity for their testimony in that forum."). Immunity for testimony before the grand jury does not extend to matters external to the grand jury.