| Leftenant v City of New York |
| 2010 NY Slip Op 01590 [70 AD3d 596] |
| February 25, 2010 |
| Appellate Division, First Department |
| Ashon Leftenant, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for respondent.
Order, Supreme Court, Bronx County (Mary Ann Briganti-Hughes, J.), entered on or aboutMay 5, 2009, which granted defendant's motion to dismiss the complaint, unanimously affirmed,without costs.
The complaint seeks damages for false arrest, wrongful imprisonment, maliciousprosecution, violation of constitutional rights under 42 USC § 1983, and negligent hiring,training and supervision of police officers. Although plaintiff's affidavit denied involvement in adrug transaction, it did not deny the essential facts as to what the officer testified he hadobserved, or that plaintiff did possess the specified drug paraphernalia and a sum of cash.Inasmuch as the officer's observations established probable cause for arrest (see Lui Yi vCity of New York, 227 AD2d 453 [1996]), defendant had a complete defense to the claimsof false arrest, false imprisonment and malicious prosecution (Batista v City of New York, 15 AD3d304 [2005]), notwithstanding the subsequent dismissal of the criminal charges (Arzeno v Mack, 39 AD3d 341[2007]). The complaint fails to allege bad faith by the officers with respect to false arrest(id. at 342), or actual malice with respect to malicious prosecution (Jenkins v City of New York, 2 AD3d291 [2003]). The actions and statements of the District Attorney, whose office wasnonetheless acting within the scope of its official duties (Arzeno, 39 AD3d at 342), couldnot be imputed to the municipal defendant, an entirely different entity (see Warner v City of New York, 57AD3d 767, 768 [2008]).
The claim asserted under 42 USC § 1983 must be dismissed for failure to allege thatthe challenged acts resulted from official municipal policy or custom (Monell v New YorkCity Dept. of Social Servs., 436 US 658, 690-691 [1978]). And since the officers wereacting within [*2]the scope of their employment, which plaintiffdoes not dispute, the claim of negligent hiring, training and supervision must also fail (Ashley v City of New York, 7 AD3d742 [2004]). Concur—Andrias, J.P., Saxe, Sweeny and Freedman, JJ.