| Hernandez v City of New York |
| 2012 NY Slip Op 07414 [100 AD3d 433] |
| November 8, 2012 |
| Appellate Division, First Department |
| Felix Hernandez, Appellant, v City of New York,Respondent, et al., Defendants. |
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Michael A. Cardozo, Corporation Counsel, New York (Angela R. Cruz of counsel), forrespondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about June14, 2011, which, insofar as appealed from as limited by the briefs, granted the motion ofdefendant City of New York to vacate an order of the same court (Karen S. Smith, J.), entered onor about August 12, 2010, inter alia, directing the City to produce retired Police Officer AngelPagan for further deposition, and denied plaintiff's cross motion for partial summary judgment onthe issue of liability on his claims for false arrest and under 42 USC § 1983, and to strikethe City's answer and to preclude the City from using the deposition testimony of Pagan,unanimously modified, on the law, to the extent of granting, upon a search of the record,summary judgment dismissing the claims as against the City for false arrest, false imprisonment,malicious prosecution, and under 42 USC § 1983, and otherwise affirmed, without costs.
A plaintiff alleging a claim for false arrest or false imprisonment must show that thedefendant intended to confine the plaintiff, that the plaintiff was conscious of the confinementand did not consent to it, and that the confinement was not otherwise privileged (see Martinezv City of Schenectady, 97 NY2d 78, 85 [2001]; Marrero v City of New York, 33 AD3d 556 [1st Dept 2006]). "Theelements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) itstermination favorably to plaintiff, (3) lack of probable cause, and (4) malice" (Colon v City ofNew York, 60 NY2d 78, 82 [1983]). The existence of probable cause to arrest is a completedefense to such claims (see Marrero at 557; Brown v City of New York, 289AD2d 95 [1st Dept 2001]).
The motion court properly denied plaintiff's cross motion for summary judgment. Our searchof the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106,110-111 [1984]), requires dismissal of the claims against the City for false arrest, falseimprisonment, malicious prosecution and under 42 USC § 1983. Although plaintiff wasarrested in his home without a warrant, the grand jury's vote to indict plaintiff prior to the arrestand the subsequent [*2]indictment raised a presumption ofprobable cause, even though the indictment was subsequently dismissed (see Lawson v City of New York, 83AD3d 609 [1st Dept 2011], lv dismissed 19 NY3d 952 [2012]; Arzeno v Mack, 39 AD3d 341 [1stDept 2007]).
The record contains further evidence of probable cause: During an extensive investigation,plaintiff was identified as one of more than 20 participants in a heroin trafficking operation basedon, among other things, surveillance and wiretapping of a man using an apparent alias, whorepeatedly conversed and met with other suspects in connection with selling heroin; a driver'slicense recovered from this man stating plaintiff's name and address; and plaintiff's presence atthat address and physical resemblance to the suspect. Although plaintiff maintained that hisFourth Amendment rights were violated by the warrantless arrest in his home absent of exigentcircumstances, such an alleged constitutional violation does not negate the existence of probablecause (see People v Jones, 2 NY3d235, 243 [2004]).
Dismissal of the malicious prosecution claim is further warranted since there is no triableissue as to whether the prosecution was motivated by actual malice (see Nardelli vStamberg, 44 NY2d 500 [1978]; Arzeno, 39 AD3d at 342).
The court properly denied plaintiff's motion to strike the answer, since plaintiff failed toattach an affirmation of good faith (seeMolyneaux v City of New York, 64 AD3d 406 [1st Dept 2009]; 22 NYCRR 202.7 [a]).In any event, plaintiff failed to make a clear showing that defense counsel's conduct during adeposition, or failure to produce the deponent for further deposition, constituted willful,contumacious, or bad-faith conduct (seeDelgado v City of New York, 47 AD3d 550 [1st Dept 2008]). The court also properlydeclined to preclude the existing deposition testimony transcript, notwithstanding plaintiff'srepresentation that he contemplated further questioning (see Farmer v Nostrand Ave. Meat & Poultry, 37 AD3d 653 [2dDept 2007]; cf. Vera v Beth Israel Med. Ctr., 175 AD2d 716 [1st Dept 1991]). Moreover,the court providently exercised its discretion by declining to order the City to produce thedeponent for a further deposition (see CPLR 3116 [d]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ.