| Guntlow v Barbera |
| 2010 NY Slip Op 06444 [76 AD3d 760] |
| August 19, 2010 |
| Appellate Division, Third Department |
| Pauline Guntlow, Appellant, v Marc Barbera et al., Respondents, etal., Defendant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), for MarcBarbera, respondent. Rehfuss, Liguori & Associates, P.C., Latham (Jessica A. McClung of counsel), for City ofAlbany and others, respondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Connolly, J.), entered April 28,2009 in Albany County, which granted motions by defendants Marc Barbera, City of Albany,Albany Police Department, Anthony Ryan and Anthony Battuello for summary judgmentdismissing the complaint against them.
In July 2006, plaintiff, who was then 68 years old, attended an American Idol concert at thePepsi Arena, located in the City of Albany. Defendant Marc Barbera, a state trooper who wasalso attending the concert, had plaintiff escorted from her seat by security and arrested afterplaintiff allegedly struck his wife, Alisha Barbera. According to plaintiff, Alisha Barbera and herfour-year-old daughter stood up during the concert and thereby obstructed plaintiff's view.Plaintiff contends that Alisha Barbera and her daughter were the only persons standing, and thatshe merely tapped Alisha Barbera on the shoulder and asked her to sit down. Plaintiff furtheraverred that when she informed the security guards that she had not assaulted anyone, Marc[*2]Barbera began "scream[ing] in [her] face" that she had"assaulted his wife," and then flipped open his wallet and told plaintiff that he was a statetrooper. Officers from defendant Albany Police Department arrived, including defendantsAnthony Ryan and Anthony Battuello, and plaintiff was placed under arrest for harassment in thesecond degree and endangering the welfare of a child. Plaintiff was taken to an Albany PoliceDepartment precinct, where her arrest was processed. She was then shackled to a bench until theconcert was over, at which point she was taken back to the Pepsi Arena.
Subsequently, the Albany County District Attorney moved to dismiss the charges againstplaintiff in the interest of justice due to the failure of Alisha Barbera to cooperate and "based onthe facts and circumstances of [the] case." That motion was granted. Plaintiff then commencedthis action alleging negligence, false arrest or imprisonment, assault and battery, maliciousprosecution, and claims under 42 USC §§ 1983 and 1985. Supreme Court grantedmotions by Marc Barbera, Ryan, Battuello, the City and its police department (hereinaftercollectively referred to as defendants) for summary judgment dismissing the complaint againstthem, prompting this appeal. We now modify and reinstate plaintiff's cause of action fordeprivation of civil rights under 42 USC § 1983 against Marc Barbera, Ryan andBattuello, and the causes of action for false arrest or imprisonment, assault and battery andmalicious prosecution against defendants.[FN1]
The elements of a cause of action for false arrest or imprisonment are (1) an intentionalconfinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and(4) that was not otherwise privileged (see Martinez v City of Schenectady, 97 NY2d 78,85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], certdenied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). An arrest madeextrajudicially—that is, without a warrant—is presumptively unlawful, but "[t]heexistence of probable cause serves as a legal justification for the arrest and an [*3]affirmative defense to the claim" (Martinez v City ofSchenectady, 97 NY2d at 85, citing Broughton v State of New York, 37 NY2d at458; see Downs v Town ofGuilderland, 70 AD3d 1228, 1232 [2010]; Wallace v City of Albany, 283 AD2d872, 873 [2001]; Saunders v County of Washington, 255 AD2d 788, 789 [1998])."Probable cause exists when an officer has knowledge of facts and circumstances sufficient tosupport a reasonable belief that an offense has been or is being committed" (People v Terry, 2 AD3d 977, 978[2003] [internal quotation marks and citations omitted], lv denied 2 NY3d 746 [2004];accord People v Bell, 5 AD3d858, 859 [2004]; see Colon v City of New York, 60 NY2d 78, 82 [1983]). Whetherprobable cause existed for an arrest may be decided as a matter of law only where the factsleading to the arrest and the proper inferences to be drawn therefrom are not in dispute (see Diederich v Nyack Hosp., 49AD3d 491, 493 [2008], lv dismissed and denied 11 NY3d 862 [2008]; Orminskiv Village of Lake Placid, 268 AD2d 780, 781 [2000]).
Contrary to the argument of Ryan, Battuello, the City and its police department, probablecause was not established as a matter of law under the Aguilar-Spinelli doctrine. Thatdoctrine provides that "probable cause for a warrantless arrest may be supplied, in whole or part,through hearsay information . . . [that] satisfies the two-partAguilar-Spinelli test requiring a showing that the informant is reliable and has a basis ofknowledge for the information imparted" (People v Bell, 5 AD3d at 859 [internalquotation marks and citations omitted]; see People v Ketcham, 93 NY2d 416, 420[1999]; see also Carlton v Nassau County Police Dept., 306 AD2d at 366; Orminskiv Village of Lake Placid, 268 AD2d at 781). Nevertheless, "the failure to make a furtherinquiry when a reasonable person would have done so may be evidence of lack of probablecause" (Colon v City of New York, 60 NY2d at 82; see Carlton v Nassau CountyPolice Dept., 306 AD2d at 366). As these defendants acknowledge, if the informationimparted "constitutes [no] more than unsubstantiated rumor, unfounded accusation or conclusorycharacterization," it will not meet the Aguilar-Spinelli test even if supplied by a reliableinformant (People v Ketcham, 93 NY2d at 420).[FN2]Moreover, while the "fellow officer rule" permits an arresting officer to act at the direction ofanother officer "provided that the police as a whole were in possession of information sufficientto constitute probable cause to make the arrest" (People v Ramirez-Portoreal, 88 NY2d99, 113 [1996] [internal quotation marks and citation omitted]), probable cause is not establishedby "unsubstantiated hearsay communication—even when transmitted by a fellow officer"(People v Ketcham, 93 NY2d at 420).[*4]
Defendants assert that Marc Barbera, Ryan and Battuellohad probable cause to arrest plaintiff on charges of harassment in the second degree andendangering the welfare of a child.[FN3]In our view, however, the parties' sharply divergent accounts of the arrest created questions offact regarding the existence of probable cause. Plaintiff indicated that she merely tapped AlishaBarbera on the shoulder and politely asked her to sit down—conduct that would not fallwithin the purview of Penal Law § 240.26 (1) (see People v Bartkow, 96 NY2d770, 772 [2001])—while Alisha Barbera testified that plaintiff screamed at her to sit downand then struck her in the lower rib area of her right side. Marc Barbera indicated that he sawplaintiff hit his wife in the ribs and that plaintiff became aggressive and began flailing her armswhen he turned to talk to her. One of the two independent eyewitnesses to the incident, however,indicated that plaintiff pushed her hand down on Alisha Barbera's shoulder and that MarcBarbera did not witness the event but was informed of it by his wife. The other eyewitnessindicated that plaintiff struck Alisha Barbera with an open hand, but could not state whereplaintiff struck her. Both eyewitnesses stated that after either Alisha Barbera or Marc Barberahad a verbal altercation with plaintiff, Marc Barbera left and Alisha Barbera told them thatplaintiff was in trouble and would be arrested because Marc Barbera is a state trooper. Plaintiffalso testified that she did not react when Marc Barbera turned around to talk to her because shecould not hear him.
In addition, we note that Marc Barbera, Ryan and Battuello were not in agreement in theirdeposition testimony regarding who made the decision to arrest plaintiff. Marc Barbera indicatedthat he made the decision to arrest plaintiff and informed her that she was under arrest; despitehis argument before us that the Albany police did not arrest plaintiff, but merely "processed thearrest" made by Marc Barbera, Ryan testified that he made the ultimate decision to arrestplaintiff; Battuello stated that although Ryan instructed him to arrest plaintiff, the Albany policewere merely facilitating the arrest because Marc Barbera had actually arrested plaintiff.Furthermore, assuming without deciding that they made the decision to arrest plaintiff, there isconflicting evidence regarding whether Ryan and Battuello simply relied upon unsubstantiatedstatements of Marc Barbera that would not meet the Aguilar-Spinelli test. Ryan testifiedthat he decided to arrest plaintiff not based upon Marc Barbera's potentially unfounded,conclusory accusations, but after witnessing a slap mark on Alisha Barbera's face and, uponfurther inquiry, being told by her and eyewitnesses that plaintiff slapped her in the face. Theextent of that inquiry and whether Ryan, in fact, relied upon the information obtained therebyand arrested plaintiff—as opposed to merely acquiescing in Marc Barbera's request thatthe Albany police arrest plaintiff—are called into question by the testimony of AlishaBarbera and the eyewitnesses uniformly denying that plaintiff struck Alisha Barbera'sface.[FN4]Under these [*5]circumstances, it cannot be said that, as a matterof law, there was probable cause to arrest plaintiff and, thus, her claims of false arrest orimprisonment should not have been dismissed. Moreover, her claim of deprivation of civil rightsunder 42 USC § 1983 should not have been dismissed against Marc Barbera, Ryan andBattuello (see Diederich v Nyack Hosp., 49 AD3d at 493; Carlton v Nassau CountyPolice Dept., 306 AD2d at 366; see also Rossi v City of Amsterdam, 274 AD2d 874,877 [2000], supra; cf. Lynn vState of New York, 33 AD3d 673, 674-675 [2006]).
Similarly, we conclude that plaintiff raised a triable issue of fact on her claim of maliciousprosecution. The tort of malicious prosecution has four elements: "that a criminal proceedingwas commenced; that it was terminated in favor of the accused; that it lacked probable cause;and that the proceeding was brought out of actual malice" (Cantalino v Danner, 96 NY2d391, 394 [2001]; see Broughton v State of New York, 37 NY2d at 457). As noted above,plaintiff has raised triable issues of fact regarding probable cause. Regarding the remainingelements in dispute on the malicious prosecution claim, we conclude that the dismissal of theprior criminal proceeding in the interest of justice based upon Alisha Barbera's failure tocooperate and the circumstances of the case constituted a termination in plaintiff's favor becauseit was not inconsistent with her innocence (see Cantalino v Danner, 96 NY2d at 396-397;Hankins v Great Atl. & Pac. Tea Co., 208 AD2d 111, 114-116 [1995]; but seeMacLeay v Arden Hill Hosp., 164 AD2d 228, 230-231 [1990], lv denied 77 NY2d806 [1991]). Furthermore, "malice may be inferred if the defendant has acted with a reckless orgrossly negligent disregard of the [plaintiff's] rights" (Harris v State of New York, 302AD2d 716, 717 [2003] [citations omitted]), and we conclude that the evidence set forth abovegives rise to questions of fact on the issue of malice, as well as probable cause.
To succeed on their motions for summary judgment on plaintiff's assault and battery claim,defendants were required to demonstrate, respectively, that Marc Barbera, Ryan and Battuellodid not intentionally place plaintiff in apprehension of imminent harmful or offensive contact,and did not intentionally engage in offensive bodily contact without plaintiff's consent (seeGoff v Clarke, 302 AD2d 725, 726 [2003]; Bastein v Sotto, 299 AD2d 432, 433[2002]; Zgraggen v Wilsey, 200 AD2d 818, 819 [1994]). In light of plaintiff's testimonyregarding the shackle placed around her ankle until the end of the concert, as well as that withrespect to Marc [*6]Barbera's aggressive and intimidatingconduct toward her after security guards removed her from her seat, we conclude that triableissues of fact exist on her assault and battery claims, as well.[FN5]Finally, we reject the argument of Marc Barbera, Ryan and Battuello that they were entitled tosummary judgment dismissing the complaint under the doctrine of qualified immunity inasmuchas they failed to establish, as a matter of law, that "it was objectively reasonable for [them] tobelieve that [their] conduct was appropriate under the circumstances, or that officers ofreasonable competence could disagree as to whether [their] conduct was proper" (Baez v Cityof Amsterdam, 245 AD2d 705, 706-707 [1997], lv denied 91 NY2d 810 [1998]; see Hayes v City of Amsterdam, 2AD3d 1139, 1141 [2003]; Rossi v City of Amsterdam, 274 AD2d at 877).
Spain and Lahtinen, JJ., concur.
Kavanagh, J. (dissenting in part and concurring in part). In our view, defendants AnthonyRyan and Anthony Battuello have established as a matter of law that they had probable cause toarrest plaintiff after being informed by four different individuals that plaintiff, withoutprovocation, struck Alisha Barbera with her hand while attending a concert at the PepsiArena.[FN1]In addition, no evidence has been presented that these two City of Albany police officers actedwith malice or mistreated plaintiff in any way after she was taken into custody and while she wasbeing processed in connection with her arrest. While Ryan and Battuello may have had otheroptions to pursue in response to the complaint made against plaintiff, and even if we were toagree that something other than arresting plaintiff would have been more appropriate or evenmore reasonable, this does not negate the legality of their actions in placing plaintiff under arrest.For these reasons, we believe that all of plaintiff's claims against these officers were properlydismissed and Supreme Court's order granting summary judgment in their favor should beaffirmed.[FN2]
While the witnesses, to some extent, differ in their recollection of certain particularsregarding the incident, important facts critical to Ryan and Battuello's position on their motionfor summary judgment are not in dispute. In that regard, it is unrefuted that upon learning that anassault had allegedly occurred inside the arena, Ryan conducted a preliminary investigation and,during that investigation, spoke with four individuals—Alisha Barbera, her husband,defendant Marc Barbera, and two bystanders seated in the area where the incident took place. Allof these individuals stated that plaintiff, without provocation, struck Alisha Barbera with herhand while she was standing with her four-year-old daughter watching the concert.[FN3]Moreover, these individuals, including the two bystanders, were interviewed shortly after thealtercation occurred, and in addition to telling the police that they had observed the incident, theyeach readily identified themselves, provided contact information and fully cooperated in theofficial investigation. In such a circumstance, it has been held to be "well settled that informationprovided by an identified citizen accusing another individual of a specific crime is legallysufficient to provide the police with probable cause to arrest" (People v Newton, 180AD2d 764 [1992]; see People v Bailey, 295 AD2d 758, 759 [2002], lv denied 99NY2d 533 [2002]; see also People vShulman, 6 NY3d 1, 25 [2005], cert denied 547 US 1043 [2006]). This isparticularly true of the information provided to Ryan by the two bystanders, neither of whomwere in any way connected to the parties involved in this dispute or had any interest in itsoutcome. In addition, what they told Ryan regarding what had transpired between AlishaBarbera and plaintiff was "more than unsubstantiated rumor, unfounded accusation or conclusorycharacterization" (People v Ketcham, 93 NY2d 416, 420 [1999]). Their statementsrepresented fact-based accounts of what transpired from two disinterested eyewitnesses who, inRyan's words, "were able to corroborate the victim's version of [the] events."
While the majority relies on the Aguilar-Spinelli test to claim that a question of factexists as to whether the information Ryan received during his investigation was reliable, the factis that this standard has been held to be inapplicable to testimony obtained from private citizenswho have no interest or ulterior motive that could raise concerns about their credibility (seePeople v Taylor, 73 NY2d 683, 688 [1989]; People v Hicks, 38 NY2d 90, 93 [1975];People v Walker, 244 AD2d 796, 797 [1997]; People v Mink, 237 AD2d 664,666 [1997]; People v David, 234 AD2d 787, 787-788 [1996], lv denied 89 NY2d1034 [1997]; People v Doyle, 222 AD2d 875, 875 [1995], lv denied 88 NY2d878 [1996]). In fact, this Court has found that testimony coming from an identified citizen is"presumed to be personally reliable" (People v Bahr, 35 AD3d 909, 911 [2006] [citation omitted], lvdenied 8 NY3d 919 [2007]; see People v Parris, 83 NY2d 342, 350 [1994];People v Hetrick, 80 NY2d 344, 349 [1992]), and that such eyewitness accounts are, bythemselves, sufficient to establish probable cause to "support a warrantless arrest" (People vBailey, 295 AD2d at 759; see People v Bourdon, 258 AD2d 810, 811 [1999], lvdenied 93 NY2d 897 [1999]; People v David, 234 AD2d at 788; People vRenaudette, 185 AD2d 450, 451 [1992], lv denied 81 NY2d 846 [1993]). As theCourt of Appeals has repeatedly held, where a private citizen "provides the authorities withinformation as to observed criminal activity . . . with no expectation of privategain," the two-prong Aguilar-Spinelli test is not required for such a witness to be deemedreliable (People v Hicks, 38 NY2d at 94; see People v Chipp, 75 NY2d 327, 340[1990]; see also People v Brito, 59AD3d 1000, 1000 [2009], lv denied 12 NY3d 814 [2009]; People v Banks, 14 AD3d 726,727 [2005], lv denied 4 NY3d 851 [2005]; People v Rivenburgh, 1 AD3d 696, 699 [2003], lv denied 1NY3d 579 [2003]; People v Bailey, 295 AD2d at 759; People v Cantre, 95 AD2d522, 526 [1983], affd 65 NY2d 790 [1985]).
Undoubtedly, as the majority argues, questions exist as to who actually made this arrest,where on her body Alisha Barbera was struck by plaintiff, and even what role, if any, herhusband's status as a state trooper played in the decision to place plaintiff under arrest. But giventhat the issue to be decided here is whether probable cause existed for plaintiff's arrest, and whenconsidered in connection with evidence that is unrefuted and not in dispute, these questions arelargely irrelevant. For example, since this is Ryan and Battuello's motion, we must assume, forreasons previously stated, that they, and not Marc Barbera, made this arrest.[FN4]And while Ryan may have—at some point in this investigation—mistakenlyconcluded that Alisha Barbera was struck by plaintiff in the face as opposed to the rib cage orshoulder, that discrepancy, on these facts, is not so significant as to create a question of fact as towhether he had probable cause to make this arrest (see Paredes v City of New York, 73 AD3d 465, 465 [2010];Wallace v City of Albany, 283 AD2d 872, 873 [2001]; see also People vJohnson, 245 AD2d 112, 112-113 [1997], lv denied 91 NY2d 1008 [1998]). This isespecially true because, while the witnesses may differ as to where on her body Alisha Barberawas struck, there is no dispute among them that plaintiff struck her and did so with a criminalintent. Moreover, Ryan clearly did not simply rely on Marc Barbera's statement to conclude thatprobable cause existed for plaintiff's arrest. It is unrefuted that, in addition to Marc Barbera'sstatement, Ryan obtained credible information from other sources—including twodisinterested witnesses—that confirmed Alisha Barbera's claim that plaintiff, withoutprovocation, struck her and this information provided him with an independent basis upon whichto make this arrest (see Wallace v City of Albany, 283 AD2d at 874).
Because Ryan and Battuello had probable cause to place plaintiff under arrest, herconstitutional claim brought pursuant to 42 USC § 1983 (see Martin v Rosenzweig, 70 AD3d1112, 1113 [2010]; Payne v Countyof Sullivan, 12 AD3d 807, 808 [2004]), as well as her claims of false arrest andmalicious prosecution (see Martinez v City of Schenectady, 97 NY2d 78, 85[*7][2001]; Cantalino v Danner, 96 NY2d 391, 394 [2001]; Britt v Monachino, 73 AD3d 1462[2010]; Leftenant v City of NewYork, 70 AD3d 596, 597 [2010]), were properly dismissed by Supreme Court.Moreover, both officers claim—and plaintiff confirms—that excessive force wasnot used after she was taken into custody, and that, aside from being shackled while seated on abench with other prisoners at police headquarters, plaintiff was not subjected to any otherphysical restraint. As such, plaintiff's claim alleging assault and battery for conduct that occurredwhile at police headquarters was also properly dismissed (see Marrero v City of New York, 33 AD3d 556, 557 [2006]). Forthese reasons, Supreme Court's order dismissing plaintiff's causes of action against Ryan andBattuello should be affirmed. Malone Jr., J., concurs.
Ordered that the order is modified, on the law, without costs, by reversing so much thereofas granted the motions for summary judgment dismissing (1) that part of the first cause of actionalleging a violation of 42 USC § 1983 against defendants Marc Barbera, Anthony Ryanand Anthony Battuello, and (2) the third, fourth and fifth causes of action; motions denied to saidextent; and, as so modified, affirmed.
Footnote 1: Supreme Court properlydismissed plaintiff's sixth cause of action alleging negligence, her second cause of actionalleging municipal liability under 42 USC § 1983 and that portion of her first cause ofaction alleging conspiracy under 42 USC § 1985. Plaintiff's claim for negligentinvestigation does not set forth a cause of action separate from those for false arrest andmalicious prosecution (see Carlton v Nassau County Police Dept., 306 AD2d 365, 366[2003]; Lorensen v State of New York, 249 AD2d 762, 763 n 2 [1998], lv denied92 NY2d 807 [1998]; Heath v State of New York, 229 AD2d 912, 912 [1996]).Inasmuch as her section 1983 claim against the City of Albany and its police department ispredicated upon a theory of respondeat superior, rather than a demonstration that any policy orcustom of the City or the police department caused the alleged deprivation of her constitutionalrights, that claim must fail (see Rossi v City of Amsterdam, 274 AD2d 874, 877-878[2000]; Ellsworth v City of Gloversville, 269 AD2d 654, 657 [2000]; see alsoThomas v Roach, 165 F3d 137, 145-146 [1999]). Finally, plaintiff failed to allege thatdefendants acted with the necessary racial or class-based discriminatory animus to support aconspiracy claim under 42 USC § 1985 (3) (see Thomas v Roach, 165 F3d at 147).
Footnote 2: As the parties recognize, theAguilar-Spinelli test is relevant with respect to Ryan and Battuello inasmuch as they"had no direct knowledge of the information" relied upon in arresting plaintiff (People vHicks, 38 NY2d 90, 93 [1975]). Under the particular circumstances of this case, MarcBarbera cannot be characterized—as the dissent would have it—as merely an"average citizen who provide[d] the authorities with information as to observed criminal activity. . . with no expectation of private gain" (id. at 94). Furthermore, there arequestions of fact regarding whether Ryan and Battuello actually arrested plaintiff and, if so,whether they relied upon Marc Barbera's statements rather than the statements of the nonpartyindependent witnesses in concluding that there was probable cause, as explained below.
Footnote 3: As relevant here, "[a] person isguilty of harassment in the second degree when, with intent to harass, annoy or alarm anotherperson . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other personto physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1]).Endangering the welfare of a child is defined as "knowingly act[ing] in a manner likely to beinjurious to the physical, mental or moral welfare of a child less than [17] years old" (Penal Law§ 260.10 [1]).
Footnote 4: The dissent errs in stating thatthe critical facts as they apply to Ryan and Battuello are not in dispute and that, for purposes oftheir summary judgment motion, we must assume that Ryan and Battuello made the decision toarrest plaintiff. The dissent fails to view the evidence in the light most favorable to plaintiff, thenonmoving party, as is required on this appeal from an order granting defendants' motions forsummary judgment dismissing the complaint (see e.g. Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931,932 [2007]; Crosland v New York City Tr. Auth., 68 NY2d 165, 168 n 2 [1986]). Inaddition, the analysis of the dissent, which is predicated on an assumption that Ryan andBattuello made the decision to arrest plaintiff, ignores the inconsistent testimony of Ryan andBattuello on that point. As explained above, Ryan indicated that he made the decision to arrestplaintiff after witnessing slap marks on Alisha Barbera's face; Battuello indicated that it wasMarc Barbera who actually arrested plaintiff.
Footnote 5: Given the existence of questionsof fact regarding probable cause, it is irrelevant that plaintiff confirmed the claims of Ryan andBattuello that excessive force was not used.
Footnote 1: While claiming that we arefailing "to view the evidence in a light most favorable to plaintiff," the majority does notdeny—as it cannot—that by assuming that Ryan and Battuello made this arrest, weare drawing the only inference that can be made on this issue that is both favorable to plaintiffand adverse to the legal interest of these defendants. This is made manifest by the fact that onappeal Ryan takes the position—contrary to our assumption—that it was defendantMarc Barbera, an off-duty state trooper, who made the arrest and that he and Battuello merelyprocessed it. If we were to conclude that Marc Barbera made this arrest—the only otherconclusion that could be made on this issue—then many, if not all of plaintiff's claimsagainst Ryan and Battuello and, in particular, her claim that they falsely arrested her, would, onthat fact alone, have to be dismissed.
Footnote 2: Because questions of fact existas to the credibility of Marc Barbera and, in particular, his assertion that he personally observedhis wife being assaulted, we agree with the majority's resolution of his motion for summaryjudgment.
Footnote 3: In pretrial depositions givenalmost two years after the incident, Alisha Barbera testified that plaintiff hit her with an openhand in the "rib area of my right side." Marc Barbera recalled seeing plaintiff strike his wife "onthe side, just missing my daughter." A bystander testified to hearing plaintiff yell "at the womanand her daughter to sit down and she struck the woman, then her daughter." Her companion, whowas seated next to plaintiff, testified that she observed plaintiff get "mad and hit the little girl andhit the mother (indicating) to push them down and said 'sit down, sit down' to each of them." Shefurther testified that Alisha Barbera was struck "like near [her] shoulder. I wouldn't say face, butin that area, the general shoulder area pushing [her] down."
Footnote 4: Battuello necessarily relied onthe information developed by Ryan in his investigation for the determination that probable causeexisted for plaintiff's arrest (see People v Ramirez-Portoreal, 88 NY2d 99, 113 [1996];People v Perez, 47 AD3d1071, 1072 [2008]; People vWhitehead, 23 AD3d 695, 696 [2005], lv denied 6 NY3d 840 [2006]).