| Martin v Rosenzweig |
| 2010 NY Slip Op 00772 [70 AD3d 1112] |
| February 4, 2010 |
| Appellate Division, Third Department |
| Robert Charles Martin, Respondent, v H.J. Rosenzweig Jr.,Individually and as a Member of the Town of Colonie Police Department, et al.,Appellants. |
—[*1] John A. Della Ratta, Schenectady, for respondent.
Stein, J. Appeal from an order of the Supreme Court (Devine, J.), entered March 13, 2009 inAlbany County, which, among other things, denied defendants' motion for partial summaryjudgment dismissing the complaint.
Plaintiff commenced this action to recover alleged damages arising out of an incident thatoccurred one evening in June 2005. Plaintiff alleges that defendant H.J. Rosenzweig Jr. and fourother police officers employed by the police department in the Town of Colonie, Albany Countynegligently and unlawfully entered his apartment and fired at him with a Taser gun, after whichplaintiff was arrested on charges of obstructing governmental administration in the seconddegree and resisting arrest. Following a hearing, Colonie Town Court made adetermination—which plaintiff did not appeal—that probable cause existed forRosenzweig and the other officers to enter the apartment. Over one year later, plaintiff acceptedthe People's offer of an adjournment of both charges in contemplation of [*2]dismissal (hereinafter ACOD).
Plaintiff commenced this action[FN1]during the pendency of the criminal action. Defendants moved for partial summary judgmentdismissing plaintiff's causes of action sounding in false imprisonment, false arrest, unlawfulentry and violation of 42 USC § 1983 and plaintiff cross-moved for summary judgment.Supreme Court denied both the motion and the cross motion, but dismissed the causes of actionalleging intentional torts[FN2]as time–barred. Defendants now appeal Supreme Court's denial of the remainder of theirmotion, contending that Town Court's probable cause determination in the criminal actionprecludes plaintiff from relitigating that issue and, therefore, plaintiff's 42 USC § 1983claim cannot stand.[FN3]We agree.
The doctrine of collateral estoppel "precludes a party from relitigating in a subsequent actionor proceeding an issue clearly raised in a prior action or proceeding and decided against thatparty . . . whether or not the tribunals or causes of action are the same" (Ryan vNew York Tel. Co., 62 NY2d 494, 500 [1984]). A demonstration that the police acted withprobable cause is an affirmative defense to a claim for false imprisonment (see Martinez vCity of Schenectady, 276 AD2d 993, 995 [2000], affd 97 NY2d 78 [2001]).Likewise, the sufficiency of plaintiff's 42 USC § 1983 cause of action will be assessed bywhether probable cause for plaintiff's arrest and detention existed (see id.).
Inasmuch as defendants have established that the identity of the issue before Town Court and[*3]in the instant action is the same (see Ryan v New YorkTel. Co., 62 NY2d at 500) and that such issue was decided in Town Court adversely toplaintiff, in order to prevent the preclusive effect of collateral estoppel, the burden shifted toplaintiff to demonstrate the absence of a full and fair opportunity to litigate the issue of probablecause in Town Court (see id. at 501-502; De Cicco v Madison County, 300AD2d 706, 707-708 [2002]; Larsen v Schultz, 280 AD2d 839, 840 [2001];Samhammer v Home Mut. Ins. Co. of Binghamton, 120 AD2d 59, 62 [1986]). "Relevantfactors in determining whether there has been a full and fair opportunity include: 'the nature ofthe forum and the importance of the claim in the prior litigation, the incentive and initiative tolitigate and the actual extent of litigation, the competence and expertise of counsel, theavailability of new evidence, the differences in the applicable law and the foreseeability of futurelitigation' " (Samhammer v Home Mut. Ins. Co. of Binghamton, 120 AD2d at 62,quoting Ryan v New York Tel. Co., 62 NY2d at 501).
Here, the issue of probable cause was of great significance in the criminal action and,therefore, plaintiff had ample incentive to litigate it. In addition, plaintiff had competent counselwho zealously represented him at the probable cause hearing (and who also represented plaintiffin this civil action) and this action was clearly foreseeable, as it was commenced during thependency of the criminal action. Plaintiff does not contend that new evidence is available or thatthere are differences in the law applicable to the two actions. Rather, plaintiff's argument that hewas deprived of a full and fair opportunity to litigate Town Court's determination that probablecause existed is based on the fact that, once he accepted the ACOD, there was no opportunity forappellate review.
We are unpersuaded. Since plaintiff clearly made a voluntary choice to accept an ACOD insettlement of the charges against him, rather than pursue his right to trial and, ultimately, to anappeal of the probable cause determination, he is precluded from relitigating that determination(see Janendo v Town of New Paltz Police Dept., 211 AD2d 894, 899 [1995]). Thus,plaintiff cannot meet his evidentiary burden with respect to the 42 USC § 1983 cause ofaction and Supreme Court should have granted defendants' motion dismissing that cause ofaction.
Cardona, P.J., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as denied defendants' motionfor partial summary judgment dismissing the 42 USC § 1983 cause of action; motiongranted to that extent and said cause of action dismissed; and, as so modified, affirmed.
Footnote 1: Plaintiff's complaint sets forthsix causes of action. The first two causes of action were against Rosenzweig for assault andnegligence. Although the complaint is inartfully drafted, it appears that the remaining fourcauses of action against defendant Town of Colonie allege negligence and violation of 42 USC§ 1983 based upon, among other things, false arrest, false imprisonment and unlawfulentry by the officers.
Footnote 2: These include the first cause ofaction against Rosenzweig for assault and the fourth cause of action against the Town, whichappears to be premised on false arrest/false imprisonment.
Footnote 3: After Supreme Court's decision,the only surviving causes of action were the second cause of action against Rosenzweig (fornegligence) and the first, second and third causes of action against the Town (for negligence andviolation of 42 USC § 1983). We note that defendants did not request summary judgmentdismissing plaintiff's negligence causes of action. To the extent that defendants' argument thatplaintiff's claims of false arrest, false imprisonment and unlawful entry—which weredismissed on other grounds—are also barred by collateral estoppel is still viable, wewould apply the same analysis as we do herein with respect to the 42 USC § 1983 claim.