“Plaintiffs moved to dismiss the indictment on the grounds that, inter alia, the prosecution violated the nurse plaintiffs’ Thirteenth Amendment rights and Vinluan’s First Amendment rights. ( Id. ¶ 94.) Their motion was denied by the state trial court judge on September 27, 2007. ( Id. ¶ 95.) Plaintiffs thereafter filed an application for a writ of prohibition with the Appellate Division, which stayed all proceedings pending a determination on plaintiffs’ petition. ( Id. ¶¶ 96-97.)”

“In their petition, plaintiffs argued that the prosecution against them was “not a proper proceeding because it contravenes the Thirteenth Amendment proscription against involuntary servitude by seeking to impose criminal sanctions upon the nurses for resigning their positions, and attempts to punish Vinluan for exercising his First Amendment right of free speech in providing the nurses with legal advice.” Vinluan, 873 N.Y.S.2d at 78.”

 

“Thus, where plaintiffs were alleging violations of their First and Thirteenth Amendment rights, prohibition was an available remedy because if the court determined that “the prosecution impermissibly infringe[d] upon these constitutional rights, the act of prosecuting [plaintiffs] would be an excess in power, rather than a mere error of law.” Vinluan, 873 N.Y.S.2d at 78.”

“As a threshold matter, defendants are correct that a grand jury indictment does give rise to a presumption of probable cause for purposes of a malicious prosecution claim. See Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994). However, a showing of “fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith” can overcome this presumption. Id. (citation omitted); see also Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 421 (S.D.N.Y. 2002) (“An indictment by a grand jury creates a presumption of probable cause that can only be overcome by establishing that the indictment itself was procured by `fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'” (quoting Bernard, 25 F.3d at 104)).”

“Where the perjury was alleged to have been committed by a civilian witness, a plaintiff must show that “the prosecuting authorities were complicit in the perjury” in order to overcome the presumption. Watson v. Grady, No. 09-cv-3055 (KMK), 2010 WL 3835047, at *9 (S.D.N.Y. Sept. 30, 2010) (internal quotation marks omitted). According to the Amended Complaint, the Grand Jury indicted plaintiffs based upon falsified evidence and testimony that was presented to the Grand Jury after the County defendants had been provided with significant exculpatory evidence regarding plaintiffs’ conduct.”

“Plaintiffs also allege that the Sentosa defendants and the County defendants agreed to present this false evidence to the Grand Jury in order to procure the indictment of plaintiffs, despite the fact that defendants knew or should have known that plaintiffs could not be constitutionally prosecuted for their conduct. These allegations, taken as true for purposes of this motion, are sufficient to overcome the presumption of probable cause that the Grand Jury indictment might otherwise afford. Thus, the County defendants’ motion to dismiss plaintiffs’ claims because of the existence of probable cause is denied. Anilao v. Spota 774 F. Supp. 2d 457 (E.D.N.Y. 2011)”