| Ellison v City of New Rochelle |
| 2009 NY Slip Op 04025 [62 AD3d 830] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Brandon Ellison, Respondent, v City of New Rochelle etal., Appellants, et al., Defendants. |
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In an action, inter alia, to recover damages for civil rights violations pursuant to 42 USC§ 1983, the defendants City of New Rochelle, New Rochelle Police Department, andPolice Officer Fernandez appeal from an order of the Supreme Court, Westchester County(Lefkowitz, J.), entered May 27, 2008, which denied the defendants' motion for summaryjudgment dismissing the complaint.
Ordered that the appeal by the defendant Police Officer Fernandez from so much of the orderas denied that branch of the motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant John Doe Police Officers is dismissed, without costs ordisbursements, as he is not aggrieved by that portion of the order (see CPLR 5511); andit is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthose branches of the motion which were for summary judgment dismissing the second, third,fifth, and seventh causes of action, and substituting therefor a provision granting those branchesof the motion, (2) by deleting the provision thereof denying those branches of the motion whichwere for summary judgment dismissing so much of the first and fourth causes of action asalleged unlawful seizure of the plaintiff, and substituting therefor a provision granting thosebranches of the motion, and (3) by deleting the provision thereof denying that branch of themotion which was for summary judgment dismissing the sixth cause of action insofar as assertedagainst the defendants City of New Rochelle and New Rochelle Police Department, andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed, without costs or [*2]disbursements.
The plaintiff alleged, inter alia, that the defendants City of New Rochelle and New RochellePolice Department (hereinafter the City defendants), and the defendants Police OfficerFernandez and John Doe Police Officers (hereinafter the individual officers), violated his civilrights in the course of a street encounter where he was stopped and searched. The plaintiffalleged that the search included the pulling of his undershorts away from his body, in both thefront and the rear, shining a flashlight on his genitalia, and physical contact with his buttocks.
The defendants established that a police investigation and information provided by aninformant provided the officers with probable cause to believe that the plaintiff had beeninvolved in an attempt to sell a controlled substance and was leaving the apartment of thepotential buyer in possession of a controlled substance at the time he was stopped and searched.The defendants established the lawfulness of the stop and seizure of the plaintiff (see People v Vega, 56 AD3d 578,579 [2008]). As there was a legal justification for the seizure of the plaintiff, the defendants alsoestablished their prima facie entitlement to judgment as a matter of law dismissing the seventhcause of action, which alleged false imprisonment, and so much of the first and fourth causes ofaction as alleged unlawful seizure of the plaintiff (see Maldonado v City of New York, 60 AD3d 822 [2009]; cf. Lynn v State of New York, 33AD3d 673, 674 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact.Neither the fact that the search did not disclose any contraband, nor the fact that the plaintiff wasnot arrested, altered the lawfulness of the stop or the seizure of his person for the duration of theencounter with the police.
The defendants established their prima facie entitlement to judgment as a matter of law onthe issue of the search of the person of the plaintiff. However, the plaintiff raised a triable issueof fact as to whether the alleged scope of that search was unreasonable under the circumstances(see generally People v Hall, 10NY3d 303 [2008]; People vMitchell, 2 AD3d 145, 148 [2003]; see also Illinois v Lafayette, 462 US 640,645 [1983]). Accordingly, the Supreme Court correctly denied those branches of the defendants'motion which were for summary judgment dismissing so much of the first and fourth causes ofaction as alleged that the plaintiff was subjected to an unreasonable search.
The defendants established their prima facie entitlement to judgment as a matter of lawdismissing the second cause of action, which alleged common-law assault and battery, throughproof that the notice of claim filed by the plaintiff did not mention those claims (seeGeneral Municipal Law § 50-e; Rosen & Bardunias v County of Westchester,158 AD2d 679 [1990]). In opposition, the plaintiff failed to raise a triable issue of fact.
The City defendants established their prima facie entitlement to judgment as a matter of lawdismissing so much of the complaint as alleged that they, as opposed to the individual officers,violated 42 USC § 1983. "For a cause of action pursuant to 42 USC § 1983 to lieagainst a municipality, the action that is alleged to be unconstitutional must implement[ ]orexecute[ ] a policy statement, ordinance, regulation, or decision officially adopted andpromulgated by that body's officers or have occurred pursuant to a practice so permanent andwell settled as to constitute a "custom or usage" with the force of law" (Pendleton v City of New York, 44AD3d 733, 736 [2007] [citations omitted]). "[A] municipality can be found liable under 42USC § 1983 for deprivation of constitutional rights only where the municipality itselfcauses the constitutional violation at issue" (Johnson v Kings County Dist. Attorney's Off.,308 AD2d 278, 293 [2003]). In opposition, the plaintiff failed to raise a triable issue of factas to the existence of any such relevant policy, regulation, or [*3]custom (see R.A.C. Group v Board of Educ. of City of N.Y.,295 AD2d 489 [2002]; Serpa v County of Nassau, 280 AD2d 596 [2001]).
The City defendants established their prima facie entitlement to judgment as a matter of lawdismissing the third cause of action, which alleged negligent training and supervision of theofficers, through proof of the absence of any claim or evidence of "deliberate indifference" to therights of the plaintiff, a necessary element of that cause of action (Johnson v Kings CountyDist. Attorney's Off., 308 AD2d at 293; see Canton v Harris, 489 US 378 [1989]). Inopposition, the plaintiff failed to raise a triable issue of fact.
The City defendants also were entitled to summary judgment dismissing the sixth cause ofaction, as "[p]ublic policy bars claims for intentional infliction of emotional distress against agovernmental entity" (Liranzo v New York City Health & Hosps. Corp., 300 AD2d 548,548 [2002]; see Ralin v City of NewYork, 44 AD3d 838, 839 [2007]; Mooney v City of New York, 27 AD3d 535 [2006]).
The appellants' remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andLeventhal, JJ., concur.