Case 1:22-cv-05268 Document 1 Filed 09/03/22 Page 1 of 36 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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EVA Y. PENA
COMPLAINT

Plaintiff, JURY DEMAND

-against-

MACY'S INC.; ALEKSEY PREZENCHUK, as District

Director of Operations and Asset Protection; BRIAN SWII- 1,
as Asset Protection Manager; DIVINDRA PERSAUD, as
Asset Protection Manager; SAMANTHA NEWTON-HENRY,
as Asset Protective Detective, THE CITY OF YONKERS;
PATRICK CURTIS, as Lieutenant, Police Department City of
Yonkers; CHRISTINA ZENKEWICH, as Sergeant, Police
Department City of Yonkers and SHAWN MARTIN, as Police
Officer, Police Department City of Yonkers, each sued
individually and in their official capacities as employees of
Defendant MACY'S INC., or THE CITY OF YONKERS

Defendants'
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The Plaintiff EVA Y. PESTA through her attorney The Sanders Firm, P.C., files this federal

complaint against Defendants' MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN SWll- 1;

DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY; THE CITY OF YONKERS;

PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN MARTIN respectfully set forth

and allege that:

INTRODUCTION

This is an action for equitable relief and money damages on behalf of Plaintiff EVA Y.

PESTA, (hereinafter referred to as "Plaintiff') who was and is being deprived of her civil rights

because of Defendants' MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN SWll- I ;

DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY; THE CITY OF YONKERS;

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PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN MARTIN constitutional

violations.

Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of Defendant

MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.; ALEKSEY

PRELENCHUK; BRIAN SW11-1; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN falsely arrested her and is maliciously prosecuting her without having observed a crime

committed in their presence or probable cause in the Yonkers City Court which led the Police

Department City of New York (NYPD) to suspend, then modify her duties, fail to promote her to

the position of Lieutenant, Police Department City of New York with the recommendation to

terminate her employment.

JURISDICTION AND VENUE

1. The jurisdiction of this Court is invoked pursuant to 18 U.S.C. § 1965, 28 U.S.C. §§

1331, 1343 and 2202 to secure protection of and to redress deprivation of rights secured by:

a. the Civil Rights Act of 1866, 42 U.S.C. § 1981(a), (b), and (c)

b. the Civil Rights Act of 1866, 42 U.S.C. § 1982

c. the Civil Rights Act of 1871, 42 U.S.C. § 1983

d. the Civil Rights Act of 1871, 42 U.S.C. § 1985(3)

e. New York State Executive Law § 296(2)(a), and

f. New York Civil Rights Law § 40-c

2. The unlawful practices, violations of plaintiff's civil rights complained of herein

were committed within the Eastern and Southern Districts of New York.

PROCEDURAL REQUIREMENTS

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3. Plaintiff EVA Y. PENA has filed suit with this Court within the applicable statute of

limitations period.

4. Plaintiff EVA Y. PERA is not required to exhaust any administrative procedures

prior to suit under the Civil Rights Act of 1866 or 1871, New York State Executive Law § 296(2)(a)

or New York Civil Rights Law § 40-c.

PLAINTIFF

5. Plaintiff EVA Y. PERA is a female citizen of the United States of America, over

twenty-one (21) years of age and resident of Bronx County.

6. Plaintiff EVA Y. PENA self identifies as Dominican, consistent with the [2020

US Census] question [about race] is based on an individual identifies. The United States

recognizes race categories which include racial and national origins and sociocultural groups.

7. Plaintiff EVA Y. PENA is a seventeen (17) year veteran with the Police

Department City of New York, holds the rank of Sergeant and assigned to the Fleet Services

Division in Queens County.

8. Plaintiff EVA Y. PENA is a certified civil service applicant on the eligible list for

the position of Lieutenant, Police Department City of New York.

9. Plaintiff EVA Y. PENA alleges that since her arrest, the NYPD has canvassed the

eligible list and passed over her names several times without promoting her.

DEFENDANTS'

10. Defendant MACY'S INC., is an American Delaware holding company

headquartered in New York 151 West 34th Street New York, N.Y. 10001, and publicly traded on the

New York Stock Exchange as symbol M.

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11. Defendant ALEKSEY PREZENCHUK, as District Director of Operations and Asset

Protection.

12. Defendant BRIAN SWII- I, as Asset Protection Manager.

13. Defendant DIVINDRA PERSAUD, as Asset Protection Manager.

14. Defendant SAMANTHA NEWTON-HENRY, as Asset Protective Detective.

15. Defendant THE CITY OF YONKERS, is a municipal corporation organized under

the laws of the State of New York.

16. Defendant PATRICK CURTIS, as Lieutenant, Police Department City of Yonkers.

17. Defendant CHRISTINA ZENKEWICH, as Sergeant, Police Department City of

Yonkers.

18. Defendant SHAWN MARTIN, as Police Officer, Police Department City of

Yonkers.

BACKGROUND

Macy's Historical Treatment of its Non-White Customers

a. The 2005 OAG Memorandum Agreement

19. In 2005, the Office of the New York State Attorney General ("OAG") alleged that

Defendant MACY'S INC., has violated 42 U.S.C. §§ 1981 and 1982, New York Executive Law§

296, New York Civil Rights Law§ 40, and the common law doctrine regarding false

imprisonment.

20. The OAG alleged that Defendant MACY'S INC., loss prevention employees have

focused their attention on African-American and Hispanic customers and that the percentage of

non-whites among those arrested for shoplifting was far greater than the percentage of

Caucasians arrested for petit larceny either in its stores are located or at comparable retailers.

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21. Defendant MACY'S INC., denied the OAG' s allegations of wrongdoing or

liability.

22. However, on or about December 13, 2005, Defendant MACY'S INC., entered into

a court-ordered Memorandum Agreement with the OAG agreeing to adopt and implement a

number of measures to resolve all matters surrounding the OAG' s foregoing lawsuit against

them.

b. The 2013 OAG Assurance of Discontinuance AOD No.: 14-104

23. In 2013, the Office of the New York State Attorney General ("OAG") alleged that

Defendant MACY'S INC., has violated 42 U.S.C. §§ 1981 and 1982, New York Executive Law§

296, New York Civil Rights Law§ 40, and the common law doctrine regarding false

imprisonment.

24. The OAG alleged that Defendant MACY'S INC., loss prevention employees have

focused their attention on African-American and Hispanic customers and that the percentage of

non-whites among those arrested for shoplifting was far greater than the percentage of

Caucasians arrested for petit larceny either in its stores are located or at comparable retailers.

25. Defendant MACY'S INC., denied the OAG's allegations of wrongdoing or

liability.

26. However, on or about August 19, 2014, Defendant MACY'S INC., entered into an

Assurance of Discontinuance with the OAG agreeing to adopt and implement a number of

measures to resolve all matters surrounding the OAG's foregoing lawsuit against them.

Prior Court Actions and Injunctive Relief

a. Orellana I

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27. In Orellana v. Macy's Retail Holdings, Inc. 53. Misc. 3d 622, the Court granted

that plaintiffs motion for a preliminary injunction enjoining Defendant MACY'S INC., from

demanding, requesting, collecting, receiving, or accepting any payments in connection with

General Obligations Law § 11-105, from suspected shoplifters while they are detained in its

custody pursuant to General Business Law § 218, is granted and General Obligations Law § 11-

105.

28. The Orellana I Court noted, the legislative intent behind General Business Law §

218 and General Obligations Law § 11-105, ... show an intent to provide mercantile

establishments with a shield for the benefit of these establishments and the general public against

shoplifting. It is the manner in which this shield is being used that proves problematic.

29. The Orellana I Court noted, Defendant MACY'S INC., treads on a thin line

between permissible and impermissible behavior when it implements the power it has been given

under the statutes.

30. [Defendant MACY'S INC.] has taken the authority granted to it under General

Business Law § 218 to detain an individual for shoplifting, and has combined that with the

authority it is given under General Obligations Law § 11-105 to collect civil penalties from an

individual suspected of shoplifting.

31. These statutes as allegedly applied by [Defendant MACY'S INC.] are being used

as a double-edged sword, instead of a shield.

32. A suspected shoplifter is given no opportunity to otherwise object, have a hearing,

or receive guidance from counsel before signing a confession to shoplifting, and/or agreeing to

pay civil penalties because the civil penalties, are being demanded at the time the individual is

under detention by Defendant MACY'S INC.

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33. The Orellana I Court notes, a review of case law regarding a possible abuse of the

power granted to mercantile establishments under General Business Law § 218, show strikingly

similar patterns of suspected shoplifters signing "voluntary statements" to obtain their release

from the merchant's custody, the subsequent arrest of these suspected shoplifters, and the

voluntariness of these statements being brought into question. (Restrepo v Home Depot, U.S.A.,

Inc., 29 Misc 3d 1237[A], 958 N.Y.S.2d 648, 2010 NY Slip Op. 52185[U] [Sup. Ct., Queens

County 2010]).1

b. Orellana II

34. In Orellana v. Macy's Retail Holdings, Inc., 2018 U.S. Dist. LEXIS 114521

(S.D.N.Y. July 1, 2018), the Court recognized that the Orellana I injunction was still in place.

More importantly, the Court noted:

Section 218 of the New York General Business Law ("GBL § 218"), which codifies the

common-law "shopkeeper's privilege," provides that "[i]n any action for false arrest, false

imprisonment, unlawful detention . . . assault, trespass, or invasion of civil rights"

brought by an individual stopped at a retail establishment for investigation or questioning

concerning "ownership of any merchandise[,] . . . it shall be a defense to such action that

the person was detained in a reasonable manner and for not more than a reasonable time

to permit such investigation or questioning[,]" and that the person detaining the

individual "had reasonable grounds to believe that the person so detained was . . .

committing or attempting to commit larceny on such premises of such merchandise."

N.Y. Gen. Bus. Law § 218.

1 NOTE: I Shepardized Orellana I and the injunction was never vacated.

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35. The purpose of GBL § 218 is "to protect merchants from false arrest suits even

where the criminal actions are eventually dismissed," and to help "overcome the extreme

reluctance with which merchants . . . attempt to interfere with shop-lifters." Jacques v. Sears,

Roebuck & Co., 30 N.Y.2d 466, 472, 285 N.E.2d 871, 334 N.Y.S.2d 632 (1972) (internal

quotation marks omitted); see also Guion v. Associated Dry Goods Corp. (Lord & Taylor Div.),

56 A.D.2d 798, 798, 393 N.Y.S.2d 8 (1st Dep't 1977) ("[A]lthough store owners may not

proceed with abandon to rectify the problem [of shoplifting], they should not be deterred from

attempting to apprehend those responsible for the theft of merchandise."), affd, 43 N.Y.2d 876,

374 N.E.2d 364, 403 N.Y.S.2d 465 (1978).

36. Section 11-105 of the New York General Obligations Law ("GOL § 11-105")

provides, in relevant part, that "[a]n adult or emancipated minor who commits larceny against the

property of a mercantile establishment shall be civilly liable to the operator [thereof] in an

amount consisting of," (a) "the retail price of the merchandise if not recovered in a merchantable

condition," up to $1,500, and (b) "a penalty not to exceeded the greater of five times the retail

price of the merchandise," or $75, "provided, however, that in no event shall such penalty

exceed" $500. N.Y. Gen. Oblig. Law § 11-105(5), (6). Under the statute, "[t]he fact that an

operator of a mercantile establishment may bring an action against an individual as provided in

this section shall not limit the right of such merchant to demand, orally or in writing, that a

person who is liable for damages and penalties . . . remit the damages and penalties prior to the

commencement of any legal action." Id. § 11-105(8).

37. The Assembly and Senate bill jackets corresponding to GOL § 11-105's

enactment announce its purpose as "authoriz[ing] a merchant to institute a civil cause of action

for shoplifting violations instead of relying upon a District Attorney to institute a criminal cause

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of action for petty larceny." N.Y. Bill Jacket, S.B. 3916/A.B. 5783, 189th Leg., 1991 Sess., ch.

724, at 4-5 (1991). The bill jackets go on to describe GOL § 11-105's intended benefits as

follows:

The store owner will be authorized to recover damages against the shoplifter instead of

being forced to raise prices against the public. Therefore, the person committing the

crime will bear the expense of enforcement and litigation as opposed to having the public

at large pay higher prices for shoplifting losses and surveillance expenses. The criminal

courts will be relieved of prosecuting these cases. Further, this proposal will allow most

cases to be resolved through a civil case or [out] of court settlement. Accordingly,

teenagers and others who are caught will be allowed to resolve their shoplifting infraction

without being saddled with a criminal record. Id.; see also id. at 101 (Letter from Hon.

Eric N. Vitaliano, The Assembly, State of New York, to Hon. Elizabeth D. Moore,

Counsel to the Governor, State of New York (Sept. 3, 1991) (noting that retailers in states

that have enacted similar provisions "have not felt compelled to pursue criminal process

as the only way to stop the shoplifting crime wave")).

38. Finally, General Obligations Law § 11-105 (12), specifically notes, any

testimony or statements of the defendant or unemancipated minor child of the defendant or

any evidence derived from an attempt to reach a civil settlement or from a civil proceeding

brought under this section shall be inadmissible in any other court proceeding relating to

such larceny.

The False Arrest

39. Plaintiff EVA Y. PE&A alleges that without "waiving" her constitutional rights

under (Garrity v New Jersey, 385 US 493 [1967]) or Kastigar v. United States, 406 U.S. 441, 92

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S. Ct. 1653, 32 L. Ed. 2d 212 (1972), she will describe the following as evidenced in documents

(video files) maintained by the Office of the District Attorney, County of Westchester and

Defendant MACY'S INC.

40. Plaintiff EVA Y. PERA alleges on or about September 3, 2019, as a longtime

customer she entered Defendant MACY, INC., retail location inside of the Cross County Mall

800 Central Park Avenue, Suite No.: 1 Yonkers, N.Y. 10704.

41. Plaintiff EVA Y. PENA alleges that after shopping for a period of time, she

entered one of the fitting rooms.

42. Plaintiff EVA Y. PESTA alleges that unbeknownst to her at the time, Defendants'

MACY'S INC.; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY and

terminated Asset Protect Detective Anthony Gordon was surveilling her via video camera.

43. Plaintiff EVA Y. PEA alleges that unbeknownst to her at the time, Defendant

SAMANTHA NEWTON-HENRY dressed in street clothing followed her into the fitting room.

44. Plaintiff EVA Y. PERA alleges that after a period of time, she left the fitting room

and continued shopping.

45. Plaintiff EVA Y. PERA alleges that a short time later, Defendant SAMANTHA

NEWTON-HENRY can be seen leaving the fitting room.

46. Plaintiff EVA Y. PESTA alleges that after shopping for a period of time, she

entered one of the ladies' rooms.

47. Plaintiff EVA Y. PERA alleges that unbeknownst to her at the time, Defendants'

MACY'S INC.; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY and

terminated Asset Protect Detective Anthony Gordon continued surveilling her via video camera.

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48. Plaintiff EVA Y. PENA alleges that unbeknownst to her at the time, Defendant

SAMANTHA NEWTON-HENRY dressed in street clothing followed her into the ladies' room.

49. Plaintiff EVA Y. PENA alleges that after a period of time, she left the ladies' room

and continued shopping.

50. Plaintiff EVA Y. PENA alleges that a short time later, Defendant SAMANTHA

NEWTON-HENRY can be seen leaving the ladies' room.

51. Plaintiff EVA Y. PENA alleges that unbeknownst to her at the time, as

documented in Macy's Incident Report No.: C-1174271, prepared by Defendant SAMANTHA

NEWTON-HENRY, she, Defendants' BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA

NEWTON-HENRY and terminated Asset Protect Detective Anthony Gordon were communicated

information about Pena amongst themselves via the messaging system on their personal mobile

devices.

52. Plaintiff EVA Y. PENA alleges that unbeknownst to her at the time, as

documented in Macy's Incident Report No.: C-1174271, prepared by Defendant SAMANTHA

NEWTON-HENRY, she, Defendants' BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA

NEWTON-HENRY and terminated Asset Protect Detective Anthony Gordon created several lists

documenting articles of clothing viewed and carried into the fitting room.

53. Plaintiff EVA Y. PENA alleges that as she exited the location, Defendants'

MACY'S INC.; BRIAN SWIFT; DIVINDRA PERSAUD and SAMANTHA NEWTON-HENRY

stopped her from leaving the retail location by physically surrounding her.

54. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; BRIAN SW11-1;

DIVINDRA PERSAUD and SAMANTHA NEWTON-HENRY surrounded and escorted her to the

Loss Prevention Office. She was not free to leave.

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55. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; BRIAN SWIFT;

DIVINDRA PERSAUD and SAMANTHA NEWTON-HENRY lodged her inside of a holding cell.

56. Plaintiff EVA Y. PENA alleges that while inside the holding cell, Defendants'

MACY'S INC.; BRIAN SWIF I ; DIVINDRA PERSAUD and SAMANTHA NEWTON-HENRY

removed articles of clothing from her Louis Vuitton handbag.

57. Plaintiff EVA Y. PENA alleges that while inside the holding cell, Defendants'

MACY'S INC. and BRIAN SWIFT gave her unknown documents to complete but, never received

copies.

58. Plaintiff EVA Y. PENA alleges that after a period of time, Defendants' MACY'S

INC.; BRIAN SWIFT ; DIVINDRA PERSAUD and SAMANTHA NEWTON-HENRY notified

Defendant ALEKSEY PREZENCHUK regarding the alleged legal basis for the arrest.

59. Plaintiff EVA Y. PENA alleges that a short time later, Defendants' MACY'S

INC., and SAMANTHA NEWTON-HENRY notified Defendant THE CITY OF YONKERS and

the police responded.

60. Plaintiff EVA Y. PENA alleges that Defendant SHAWN MARTIN responded

along with his partner Police Officer Christopher Casareale.

61. Plaintiff EVA Y. PENA alleges that Defendant CHRISTINA ZENKEWICH as

Defendant SHAWN MARTIN'S police supervisor also responded.

62. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-HENRY

gave an official "false" statement on behalf of Defendant MACY, INC., to Defendant SHAWN

MARTIN as documented in Yonkers Police Department Incident Report No.: 19107715.

63. Plaintiff EVA Y. PENA alleges that the aforementioned report was prepared by

Defendant SHAWN MARTIN and witnessed by Defendant CHRISTINA ZENKEWICH.

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64. Plaintiff EVA Y. PESIA alleges that Defendant SAMANTHA NEWTON-

HENRY told Defendants' SHAWN MARTIN and CHRISTINA ZENKEWICH she observed a

female, later identified as Eva Petia (SA), select merchandise from the women's section and walk

into the fitting room with the merchandise in her hand.

65. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY told Defendants' SHAWN MARTIN and CHRISTINA ZENKEWICH that she

observed her walk out of the fitting room without the merchandise in her hand.

66. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY told Defendants' SHAWN MARTIN and CHRISTINA ZENKEWICH that she

observed Eva Pella (SA) pass all points of sale and at that time.

67. Plaintiff EVA Y. PE&A alleges that Defendant SAMANTHA NEWTON-

HENRY told Defendants' SHAWN MARTIN and CHRISTINA ZENKEWICH that she

approached Eva Pena (SA) and identified herself as Macy's Loss Prevention.

68. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY told Defendants' SHAWN MARTIN and CHRISTINA ZENKEWICH that she asked

Eva Pena (SA) to open her purse, at which time Eva Peiia (SA) opened her purse, revealing

the merchandise.

69. Plaintiff EVA Y. PESIA alleges that Defendant SAMANTHA NEWTON-

HENRY told Defendants' SHAWN MARTIN and CHRISTINA ZENKEWICH that she detained

Eva Pella (SA) without incident and contacted the police.

70. Plaintiff EVA Y. PESTA alleges that as documented in the aforementioned

Yonkers Police Department Incident Report, Defendants' SHAWN MARTIN and CHRISTINA

ZENKEWICH verified Pella' s employment with the NYPD.

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71. Plaintiff EVA Y. PENA alleges that as documented in the aforementioned

Yonkers Police Department Incident Report, Pefia told Defendants' SHAWN MARTIN and

CHRISTINA ZENKEWICH that she did not steal anything and was set-up.

72. Plaintiff EVA Y. PENA alleges that Police Officer Casareale refused to "take this

bag of shit!"

73. Plaintiff EVA Y. PENA alleges that despite her pleas, Defendants' SHAWN

MARTIN and CHRISTINA ZENKEWICH "intentionally" did not bother to "independently"

investigate her claims of innocence although (video files) maintained by Defendant MACY'S

INC., were readily available for instant review.

74. Plaintiff EVA Y. PENA alleges that the (video files) maintained by Defendant

MACY'S INC., would have established that Defendant SAMANTHA NEWTON-HENRY

"intentionally" made "false" representations to Defendants' SHAWN MARTIN and

CHRISTINA ZENKEWICH regarding her observations and interactions with Perla.

75. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-HENRY

intentionally "falsely" arrested her in contravention of the Orellana I injunction, where the Court

granted that Orellana's motion for a preliminary injunction enjoining Defendant MACY'S INC.,

from demanding, requesting, collecting, receiving, or accepting any payments in connection with

General Obligations Law § 11-105, from suspected shoplifters while they are in its custody

pursuant to General Business Law § 218.

76. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SW11-1 and DIVINDRA PERSAUD "intentionally" failed to ensure that

Defendant SAMANTHA NEWTON-HENRY DID NOT "falsely" arrest her in contravention of the

Orellana I injunction or contact the police in violation of the legislative intent of General

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Obligations Law § 11-105, General Business Law § 218 and General Obligations Law § 11-105

(12).

77. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-HENRY

DID NOT have "probable cause" or more pointedly, DID NOT observe any crime committed in

her presence to arrest Pena for petit larceny as charged in the Misdemeanor Information under

CPL § 140.30 See People v. Williams, 53 Misc.2d 1086.

78. Plaintiff EVA Y. PENA alleges that as noted in the secondary materials, "since

mere suspicion and surmise are not enough for a private person to make an arrest, the arrest of a

defendant by a store security guard who actually never saw defendant commit the crime of petit

larceny on mere reasoning and suspicion was illegal, notwithstanding the guard had observed

defendant take merchandise into fitting rooms and leave without returning the merchandise to the

racks and the merchandise was not found in the fitting rooms after defendant had left." CPL §

140.30.

79. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-

HENRY under the authority of Defendants' MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN

SWIFT and DIVINDRA PERSAUD "intentionally" gave "false" information to Defendant

SHAWN MARTIN and he "adopted" her false representations without "independently"

establishing her legal authority to arrest Perla arrest for petit larceny as charged in the

Misdemeanor Information under CPL § 140.30. See People v. Williams, 53 Misc.2d 1086.

80. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT and DIVINDRA PERSAUD "intentionally" failed to ensure that

Defendant SAMANTHA NEWTON-HENRY DID NOT "falsely' arrest Perla for petit larceny as

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charged in the Misdemeanor Information under CPL § 140.30. See People v. Williams, 53

Misc.2d 1086.

81. Plaintiff EVA Y. PENA alleges that Defendant CHRISTINA ZENKEWICH as

Defendant SHAWN MARTIN'S police supervisor, "intentionally" failed to ensure that he

"independently" determine that Defendant SAMANTHA NEWTON-HENRY had "probable

cause" or more pointedly, observed Pella commit the crime of petit larceny in her presence as

charged in the Misdemeanor Information under CPL § 140.30 See People v. Williams, 53

Misc.2d 1086.

82. Plaintiff EVA Y. PENA alleges that Defendant CHRISTINA ZENKEWICH

"intentionally" failed to "independently' determine that Defendant SAMANTHA NEWTON-

HENRY had "probable cause" or more pointedly, observed Perla commit the crime of petit

larceny in her presence as charged in the Misdemeanor Information under CPL § 140.30 See

People v. Williams, 53 Misc.2d 1086.

83. Plaintiff EVA Y. PENA alleges that despite Defendants' SHAWN MARTIN and

CHRISTINA ZENKEWICH "intentionally" failing to "independently" establish that Defendant

SAMANTHA NEWTON-HENRY had "probable cause" or more pointedly, observed Pella

commit the crime of petit larceny in her presence as charged in the Misdemeanor Information

under CPL § 140.30 See People v. Williams, 53 Misc.2d 1086, Pella was handcuffed by

Defendant SHAWN MARTIN and transported to Defendant THE CITY OF YONKERS Police

Headquarters for arrest processing.

84. Plaintiff EVA Y. PENA alleges that upon her arrival, Defendant PATRICK

CURTIS "intentionally" failed to "independently" establish that Defendant SAMANTHA

NEWTON-HENRY had "probable cause" or more pointedly, observed Pena commit the crime of

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petit larceny in her presence as charged in the Misdemeanor Information under CPL § 140.30

See People v. Williams, 53 Misc.2d 1086.

85. Plaintiff EVA Y. PEA alleges that Defendant PATRICK CURTIS

"intentionally" failed to interview Defendant SAMANTHA NEWTON-HENRY and

"independently" establish that she had "probable cause" or more pointedly, observed Pefia

commit the crime of petit larceny in her presence as charged in the Misdemeanor Information

under CPL § 140.30 See People v. Williams, 53 Misc.2d 1086.

86. Plaintiff EVA Y. PEN' A alleges that Defendant PATRICK CURTIS issued her a

Desk Appearance Ticket returnable to the Yonkers City Court on September 5, 2019.

The Criminal Prosecution

87. Plaintiff EVA Y. PENA alleges that without "waiving" her constitutional rights

under (Garrity v New Jersey, 385 US 493 [1967]) or Kastigar v. United States, 406 U.S. 441, 92

S. Ct. 1653, 32 L. Ed. 2d 212 (1972), she disclosed a portion of Defendant SAMANTHA

NEWTON-HENRY'S testimony during the NYPD Department Trial in the Matter of the

Disciplinary Proceedings against Sergeant Eva Y. Pefia, Case No.: 2019-21002.

88. Plaintiff EVA Y. PE&A alleges that on or about September 6, 2019, as evidenced

on an NYPD Worksheet regarding these matters, Defendant SHAWN MARTIN told Lieutenant

Karolina Wierzchowska of Housing Bureau Investigations that he "spoke with the Asset

Protection Officer (APO), who allowed him to view the CCTV footage associated with the

apprehension."

89. Plaintiff EVA Y. PESTA alleges that the aforementioned statement by Defendant

SHAWN MARTIN is either "true" or "false" and either version proves, as a former loyal

longtime customer of Defendant MACY'S INC., but for her race, in joint participation Defendants'

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MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN SWIF1; DIVINDRA PERSAUD;

SAMANTHA NEWTON-HENRY; THE CITY OF YONKERS; PATRICK CURTIS;

CHRISTINA ZENKEWICH and SHAWN MARTIN falsely arrested her and is maliciously

prosecuting her without having observed a crime committed in their presence or probable cause in

the Yonkers City Court which led the Police Department City of New York (NYPD) to suspend,

then modify her duties, fail to promote her to the position of Lieutenant, Police Department City of

New York with the recommendation to terminate her employment.

90. Plaintiff EVA Y. PESIA alleges that the video files are inconsistent with

Defendants' MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN SWIFI'; DIVINDRA

PERSAUD; SAMANTHA NEWTON-HENRY; THE CITY OF YONKERS; PATRICK CURTIS;

CHRISTINA ZENKEWICH and SHAWN MARTIN'S version of events.

91. Plaintiff EVA Y. PE&A alleges that on or about July 6, 2022, the NYPD

commenced the disciplinary trial against her in the Matter of the Police Department City of New

York v. Sergeant Eva Y. Pena Case No.: 2019-21002 before the Honorable Joshua Kleiman,

Assistant Deputy Commissioner — Trials. For the Department: Assistant Department Advocate

Penny Bluford-Garret, Esq. For the Respondent: Eric Sanders, Esq., of The Sanders Firm, P.C.

92. Plaintiff EVA Y. PESIA alleges that during Defendant SAMANTHA NEWTON-

HENRY'S direct and cross-examination, she disavowed the version as reported by Defendants'

SHAWN MARTIN and CHRISTINA ZENKEWICH and admitted she DID NOT see Petia

"conceal" anything in her Louis Vuitton bag in her presence or on camera and her actions are

based upon "assumptions." See NYPD Trial Transcript Pages 156 - 158, 178, 180, 209, 214 -

216, 222 - 223, 226, 228, 231, 246 - 250, 273 - 275.

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93. Plaintiff EVA Y. PENA alleges that therefore, Defendant SAMANTHA

NEWTON-HENRY DID NOT have "probable cause" or more pointedly, DID NOT observe any

crime committed in her presence to arrest Pefia for petit larceny as charged in the Misdemeanor

Information under CPL § 140.30 See People v. Williams, 53 Misc.2d 1086.

94. Plaintiff EVA Y. PENA alleges that therefore, establishing but for her race, in joint

participation Defendants' MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN SW11-1;

DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY; THE CITY OF YONKERS;

PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN MARTIN falsely arrested her and

is maliciously prosecuting her without having observed a crime committed in their presence or

probable cause in the Yonkers City Court which led the Police Department City of New York to

suspend, then modify her duties, fail to promote her to the position of Lieutenant, Police

Department City of New York with the recommendation to terminate her employment.

95. Plaintiff EVA Y. PENA alleges that on or about July 11, 2022, she provided the

Office of the District Attorney, County of Westchester with the entire transcript of the first day

of her disciplinary trial for the sole purpose of establishing that Defendant SAMANTHA

NEWTON-HENRY DID NOT have "probable cause" or more pointedly, DID NOT observe any

crime committed in her presence to arrest Petia for petit larceny as charged in the Misdemeanor

Information under CPL § 140.30 See People v. Williams, 53 Misc.2d 1086.

96. Plaintiff EVA Y. PENA alleges that since September 3, 2019, the Office of the

District Attorney, County of Westchester has "intentionally" failed to "independently" verify that

Defendant SAMANTHA NEWTON-HENRY DID NOT have "probable cause" or more

pointedly, DID NOT observe any crime committed in her presence to arrest Pena for petit

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larceny as charged in the Misdemeanor Information under CPL § 140.30 See People v. Williams,

53 Misc.2d 1086.

97. Plaintiff EVA Y. PER-A alleges that since July 11, 2022, the Office of the District

Attorney, County of Westchester "intentionally" disregarded the aforementioned info' iation

regarding its main witness Defendant SAMANTHA NEWTON-HENRY along with other legal

theories to avoid further violations of Perla' s constitutional rights.

98. Plaintiff EVA Y. PESTA alleges that since September 3, 2019, the singular focus

of the Office of the District Attorney, County of Westchester and the Yonkers City Court is for

her to accept an Adjournment in Contemplation of Dismissal (ACD) under CPL § 170.55, and

when she refuses, set a trial date instead of addressing her constitutional concerns.

99. Plaintiff EVA Y. PENA alleges that notwithstanding the fact that the criminal and

NYPD internal disciplinary prosecutions of Pella are "legally baseless," "unconstitutional" and in

violation of the Orellana I Order and General Obligations Law § 11-105 (12), in her defense, she

was able to establish through the cross-examination of Defendant SAMANTHA NEWTON-

HENRY that she was less than "credible."

100. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted to engaging in the same sort of "unconstitutional," "racial profiling," and other

unlawful "habit" evidence consistent with the violations contained in the 2005 OAG

Memorandum Agreement, the 2013 OAG Assurance of Discontinuance AOD No.: 14-104 and

the Orellana I Order.

101. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted she "never" observed her violate any laws yet, decided to follow her.

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102. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted there is "no" video evidence to support that she violated any laws.

103. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted she did not observe Pet-la "conceal" any merchandise nor is there "any" video

evidence to support "concealment."

104. Plaintiff EVA Y. PESTA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted she and other members of her team "intentionally" deleted text messages from

their "personal" cellular telephones regarding their observations and discussions of Pefia.

105. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted she and the other team members engage in similar "pattern and practices"

during other observations of other patrons.

106. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted she and terminated Macy's Loss Prevention Detective Anthony Gordon

"discarded" the inventory lists (exculpatory evidence) of clothing handled by Pena that was not

stolen.

107. Plaintiff EVA Y. PENA

A alleges that Defendant SAMANTHA NEWTON-

HENRY admitted she "intentionally" entered terminated Macy's Loss Prevention Detective

Anthony Gordon's name as a witness on the Macy's Statement of Admission yet, there is no

"credible" evidence he observed anything.

108. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-

HENRY admitted that she "assumed" Pena "concealed" items in her Louis Vuitton bag in direct

violation of General Business Law § 218, Criminal Procedure Law § 140.30 (1)(b)(Arrest

without a warrant; by any person; when and where authorized...for any offense (other than a

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felony) when the latter has in fact committed such offense in [her] presence and prevailing

Defendant MACY'S INC.'S, apprehension policies.

109. Plaintiff EVA Y. PERA alleges that Defendant SAMANTHA NEWTON-

HENRY even had the "audacity" to "tailor" her testimony to suggest that Sergeant Eva Y. Pala

signed the Macy's Statement of Admission, Retail Trespass Complaint Form, New York Civil

Demand Notice Prosecuted and the partially completed Personal Information Form.

110. Plaintiff EVA Y. PERA alleges that frankly, there is no "credible" video evidence

that Defendant SAMANTHA NEWTON-HENRY interacted with her in the holding cell much

less what documents if any she allegedly signed.

111. Plaintiff EVA Y. PERA alleges that on or about July 23, 2022, through counsel

sent the Office of the District Attorney, County of Westchester an email to Assistant District

Attorney Timothy O'Hara, Kristina Dushaj and ToniAnn Gagliardi regarding her legal positions.

112. Plaintiff EVA Y. PERA alleges that she respectfully disagrees that the People

may use a civil investigation provided for merchants under the GBL and GOL to support a

criminal investigation. Certainly, GOL 11-105(12) specifically precludes it. Assuming this

matter goes forward, the legal challenge would be a case of first impression.

113. Plaintiff EVA Y. PENA

- alleges that secondly, she will not turn over her

"compelled" department interview or the related investigations consistent with (Garrity v New

Jersey, 385 US 493 [1967]).

114. Plaintiff EVA Y. PERA alleges that in Garrity, the Court ruled that the threat of

removal from public office under the forfeiture-of-office statute to induce the petitioners to forgo

the privilege against self-incrimination secured by the Fourteenth Amendment rendered the

resulting statements involuntary and therefore inadmissible in the state criminal proceedings. Pp.

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496-500. Moreover, the choice given petitioners either to forfeit their jobs or to incriminate

themselves constituted coercion. Pp. 496-498. Also, whether there was a "waiver" is a federal

question. P. 498. Finally, where the choice is "between the rock and the whirlpool" (Frost

Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 593), the decision to "waive" one or the other

is made under duress. P. 498.

115. Plaintiff EVA Y. PENA alleges that therefore, under Garrity, she will not be

providing her "compelled" department interview or the related investigations. The Self-

Incrimination Clause prohibits the use and derivative use of "compelled" testimony in an

American criminal case against [Ms. Pena].

116. Plaintiff EVA Y. PESTA alleges that finally, Defendant SAMANTHA NEWTON-

HENRY or any other witness the People intends to call (at this point, Ms. Peria does not know

who the People intend to call other than Newton-Henry) who had substantial exposure to [Ms.

Pena's] "compelled" testimony, it is required under Kastigar v. United States, 406 U.S. 441, 92

S. Ct. 1653, 32 L. Ed. 2d 212 (1972), to prove, at a minimum, that the witness's review of the

"compelled" testimony did not shape, alter, or affect the evidence used by the government.

117. Plaintiff EVA Y. PERA alleges that more importantly, a bare, generalized denial

of taint from a witness who has materially altered his or her testimony after being substantially

exposed Ms. Pefia's "compelled testimony" is insufficient as a matter of law to sustain the

prosecution's burden of proof.

118. Plaintiff EVA Y. PERA alleges that thus far she knows that Defendant

SAMANTHA NEWTON-HENRY materially altered her testimony at the NYPD disciplinary

trial in the Matter of the Police Department City of New York v. Sergeant Eva Y. Pena after a

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two and one-half hour "prep period" with NYPD Assistant Department Advocate Penny M.

Bluford-Garrett.

119. Plaintiff EVA Y. PENA alleges that after Defendant SAMANTHA NEWTON-

HENRY was exposed to Ms. Perm's "compelled" department interview, she materially "tailored"

her testimony in an effort to support evidence of guilt against Ms. Peria.

120. Plaintiff EVA Y. PENA alleges that at this point, the People intend to use

Defendant SAMANTHA NEWTON-HENRY'S and potentially other witnesses' exposure to Ms.

Pena's "compelled" department interview and related investigations to support a criminal

prosecution against her in the Yonkers City Court.

121. Plaintiff EVA Y. PENA alleges that under Kastigar, the People are required to

prove, at a minimum that Newton-Henry and the other potential witnesses review of Ms. Pefia's

"compelled" testimony and related investigations did not shape, alter, or affect the evidence to be

used.

122. Plaintiff EVA Y. PENA alleges that here, Defendant SAMANTHA NEWTON-

HENRY'S account of events before exposure to Ms. Pena's "compelled" department interview

was significantly different, and less incriminating and her potential bare, generalized denial of

taint would be insufficient as a matter of law to sustain the People's burden of proof.

123. Plaintiff EVA Y. PENA alleges that her "compelled" department interview would

be "used" against [her] through evidence provided by Defendant SAMANTHA NEWTON-

HENRY a tainted witness, a key cooperator and prominent witness both at trial and other related

criminal proceedings.

124. Plaintiff EVA Y. PENA alleges that Defendant SAMANTHA NEWTON-

HENRY'S tainted testimony would be significant, because she provided the only first-hand

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eyewitness account that would refute Ms. Pena's central argument for acquittal, and therefore

would not be harmless beyond a reasonable doubt.

125. Plaintiff EVA Y. PE&A alleges that therefore; we can safely predict the People's

central witness Defendant SAMANTHA NEWTON-HENRY would be precluded under

Kastigar.

126. Plaintiff EVA Y. PERA alleges that as she previously suggested, the People State

of New York v. Eva Y. Pella must be immediately dismissed.

127. Plaintiff EVA Y. PESTA alleges again, the People "intentionally" ignored her

suggestion.

128. Plaintiff EVA Y. PESIA alleges that therefore; she intends to file a Motion to

Dismiss and in the alternative a Motion for a Kastigar Hearing to preclude the testimony of

Defendant SAMANTHA NEWTON-HENRY and the disclosure and use of the entire internal

NYPD internal investigation regarding these matters under Garrity.

129. Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIFi; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to term inate

her employment.

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VIOLATIONS AND CLAIMS ALLEGED

COUNT I
VIOLATION OF THE CONTRACT CLAUSE
Make and Enforce Contracts
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. § 1981

130. Plaintiff EVA Y. PERA re-alleges Paragraphs 1 through 129 and incorporates

them by reference as Paragraphs 1 through 129 of Count I of this Complaint.

131. Plaintiff EVA Y. PESTA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIM'; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN but for her race, "intentionally" interfered with her equal right to make and enforce

contracts, including the enjoyment of all benefits, privileges, terms, and conditions of a contractual

relationship as enjoyed by White citizens of the United States.

132. Plaintiff EVA Y. PE&A alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SW11-1; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

133. Plaintiff EVA Y. PENA alleges that because of Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-

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HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred

medical and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT II
VIOLATION OF THE CONTRACT CLAUSE
Protection Against Impairment
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. § 1981

134. Plaintiff EVA Y. PENA re-alleges Paragraphs 1 through 133 and incorporates

them by reference as Paragraphs 1 through 133 of Count II of this Complaint.

135. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN but for her race, "intentionally" interfered with her equal right to protect against

impairment by nongovernment discrimination and impairment under the color of State law as

enjoyed by White citizens of the United States.

136. Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIF I'; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

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position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

137. Plaintiff EVA Y. PENA alleges that because of Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWII-1; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred

medical and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT III
VIOLATION OF THE CONTRACT CLAUSE
Property Rights of Citizens
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. § 1982

138. Plaintiff EVA Y. PENA re-alleges Paragraphs 1 through 137 and incorporates

them by reference as Paragraphs 1 through 137 of Count III of this Complaint.

139. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN but for her race, "intentionally" interfered with her equal right as all citizens of the

United States, as is enjoyed by White citizens thereof to inherit, purchase, lease, sell, hold, and

convey personal property.

140. Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIFI; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

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SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

141. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred medical

and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT IV
VIOLATION OF THE FOURTH AMENDMENT
FALSE ARREST
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. § 1983

142. Plaintiff EVA Y. PENA re-alleges Paragraphs 1 through 141 and incorporates

them by reference as Paragraphs 1 through 141 of Count IV of this Complaint.

143. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN under color of law, personally interfered with and deprived her of her constitutional

rights.

144. Plaintiff EVA Y. PENA alleges that, as a founer loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

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ALEKSEY PREZENCHUK; BRIAN SWIF I ; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

145. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PRE/ENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred medical

and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT V
VIOLATION OF THE FOURTH AMENDMENT
MALICIOUS PROSECUTION
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. § 1983

146. Plaintiff EVA Y. PES1' A re-alleges Paragraphs 1 through 145 and incorporates

them by reference as Paragraphs 1 through 145 of Count V of this Complaint.

147. Plaintiff EVA Y. PESTA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIM'; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN under color of law, personally interfered with and deprived her of her constitutional

rights.

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148. Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIE, I ; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

149. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWII, I ; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred medical

and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT VI
MONELL CLAIM
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. § 1983

150. Plaintiff EVA Y. PENA re-alleges Paragraphs 1 through 149 and incorporates

them by reference as Paragraphs 1 through 149 of Count VI of this Complaint.

151. Plaintiff EVA Y. PENA alleges that Defendant THE CITY OF YONKERS

through its agents Defendants' PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN caused her injuries.

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152. Plaintiff EVA Y. PESTA alleges that Defendant THE CITY OF YONKERS

through its agents Defendants' PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN actions of implementing `official and un-official' policies of supporting false arrests

and malicious prosecutions of similarly situated individuals, but for their race, without having

observed a crime committed in their presence or probable cause in Yonkers City Court.

153. Plaintiff EVA Y. PENA alleges that Defendant THE CITY OF YONKERS

through its agents Defendants' PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN she suffered emotional distress, monetary damage, and incurred medical and legal

expenses, and out of pocket expenses for telephone, postage, and other costs of pursuing the

claims herein sustain damages.

COUNT VII
CONSPIRACY TO VIOLATE CIVIL RIGHTS
Depriving Persons of Rights or Privileges
IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. § 1985(3)

154. Plaintiff EVA Y. PESTA re-alleges Paragraphs 1 through 153 and incorporates

them by reference as Paragraphs 1 through 153 of Count VII of this Complaint.

155. Plaintiff EVA Y. PESTA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN under color of law, personally interfered with and deprived her of her constitutional

rights.

156. Plaintiff EVA Y. PESIA alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWII, I; DIVINDRA PERSAUD; SAMANTHA NEWTON-

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HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

157. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWII-4I ; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred medical

and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT VIII
VIOLATION OF EQUAL PROTECTION IN PUBLIC ACCOMODATIONS
IN VIOLATION OF
NEW YORK STATE EXECUTIVE LAW § 296

158. Plaintiff EVA Y. PENA re-alleges Paragraphs 1 through 157 and incorporates

them by reference as Paragraphs 1 through 157 of Count VIII of this Complaint.

159. Plaintiff EVA Y. PENA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFI ; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN but for her race, violated her equal protection rights in places of public accommodation

as a longtime customer of Defendant MACY, INC., particularly the retail location inside of the

Cross County Mall 800 Central Park Avenue, Suite No.: 1 Yonkers, N.Y. 10704.

160. Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of

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Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PA PRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

161. Plaintiff EVA Y. PESTA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred medical

and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

COUNT IX
VIOLATION OF EQUAL PROTECTION IN PUBLIC ACCOMODATIONS
IN VIOLATION OF
NEW YORK CIVIL RIGHTS LAW § 40-c

162. Plaintiff EVA Y. PERA re-alleges Paragraphs 1 through 161 and incorporates

them by reference as Paragraphs 1 through 161 of Count IX of this Complaint.

163. Plaintiff EVA Y. PESIA alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWI1, I ; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN but for her race, violated her equal protection rights in places of public accommodation

as a longtime customer of Defendant MACY, INC., particularly the retail location inside of the

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Cross County Mall 800 Central Park Avenue, Suite No.: 1 Yonkers, N.Y. 10704.

164. Plaintiff EVA Y. PENA alleges that, as a former loyal longtime customer of

Defendant MACY'S INC., but for her race, in joint participation Defendants' MACY'S INC.;

ALEKSEY PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-

HENRY; THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and

SHAWN MARTIN falsely arrested her and is maliciously prosecuting her without having observed

a crime committed in their presence or probable cause in the Yonkers City Court which led the

Police Department City of New York to suspend, then modify her duties, fail to promote her to the

position of Lieutenant, Police Department City of New York with the recommendation to terminate

her employment.

165. Plaintiff EVA Y. PE&A alleges that Defendants' MACY'S INC.; ALEKSEY

PREZENCHUK; BRIAN SWIFT; DIVINDRA PERSAUD; SAMANTHA NEWTON-HENRY;

THE CITY OF YONKERS; PATRICK CURTIS; CHRISTINA ZENKEWICH and SHAWN

MARTIN'S conduct she suffered emotional distress, monetary damage, and incurred medical

and legal expenses, and out of pocket expenses for telephone, postage, and other costs of

pursuing the claims herein.

JURY TRIAL

166. Plaintiff EVA Y. PESIA demands a trial by jury of all issues in this action that are

so triable.

PRAYER FOR RELIEF

Wherefore, Plaintiff EVA Y. PESIA demands compensatory and punitive damages from

Defendants' MACY'S INC.; ALEKSEY PREZENCHUK; BRIAN SWII, I ; DIVINDRA

PERSAUD; SAMANTHA NEWTON-HENRY; THE CITY OF YONKERS; PATRICK CURTIS;

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CHRISTINA ZENKEWICH and SHAWN MARTIN jointly and severally, in an amount to be

determined at trial, plus available statutory remedies, both legal and equitable, interests and

costs.

Dated: September 3, 2022

New York, N.Y.

spect ly submit

By:
Eric Sanders

Eric Sanders, Esq.

THE SANDERS FIRM, P.C.
30 Wall Street, 8th Floor
New York, N.Y. 10005
(212) 652-2782 (Business Telephone)
(212) 652-2783 (Facsimile)

Website: http://www.thesandersfirmpc.com

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