| Lawson v City of New York |
| 2011 NY Slip Op 03342 [83 AD3d 609] |
| April 28, 2011 |
| Appellate Division, First Department |
| Ana Lawson, Respondent-Appellant, v City of New Yorket al., Appellants-Respondents. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered April 5, 2010, which, inthis action alleging, inter alia, false arrest, unlawful imprisonment and malicious prosecution,denied plaintiff's motion for partial summary judgment on the issue of liability and denieddefendants' cross motion for summary judgment dismissing the complaint, unanimouslymodified, on the law, to grant the cross motion, and otherwise affirmed, without costs. The Clerkis directed to enter judgment in favor of defendants dismissing the complaint.
Defendant Police Department arrested plaintiff without a warrant and charged her withcriminal possession of a controlled substance in the first and third degrees. Although the lack of awarrant raised a presumption of a lack of probable cause for her arrest and imprisonment (seeBroughton v State of New York, 37 NY2d 451, 458 [1975], cert denied sub nom.Schanbarger v Kellogg, 423 US 929 [1975]), defendants established that no triable issue offact exists as to whether there was probable cause to arrest plaintiff, thereby providing a completedefense to plaintiff's claims (see Arzenov Mack, 39 AD3d 341 [2007];Marrero v City of New York, 33 AD3d 556, 557 [2006]). Defendants demonstrated thatit was undisputed that the police identified plaintiff based on a reliable confidential informant;the police recovered narcotics and paraphernalia in an apartment bedroom near plaintiff'sclothing and other possessions; and plaintiff admitted that she had been storing her belongingsand staying in the apartment for days. Plaintiff's argument that she did not actually reside in theapartment does not demonstrate a lack of probable cause (see People v Mayo, 59 AD3d 250, 254-255 [2009], affd 13NY3d 767 [2009]).
Furthermore, the subsequent indictment of plaintiff raised a presumption of probable causefor purposes of plaintiff's claims, and plaintiff failed to raise a triable issue of fact to rebut thispresumption (see Colon v City of New York, 60 NY2d 78, 82-83 [1983]). The dismissalof the indictment upon the People's motion, based on the conclusion that the evidence againstplaintiff was too weak to establish guilt beyond a reasonable doubt in light of her son'sconfession that he solely possessed and intended to sell the narcotics recovered by police, doesnot negate the finding of probable cause (id. at 84).[*2]
We have considered plaintiff's remaining arguments andfind them unavailing. Concur—Gonzalez, P.J., Sweeny, Moskowitz, Acosta andManzanet-Daniels, JJ.