| Washington-Herrera v Town of Greenburgh |
| 2012 NY Slip Op 08720 [101 AD3d 986] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Alexander Washington-Herrera, Respondent, v Town ofGreenburgh et al., Defendants, and Edward Olson, Appellant. |
—[*1] Young & Bartlett, LLP, White Plains, N.Y. (Francis X. Young and Nicole McErlean ofcounsel), for respondent.
In an action, inter alia, to recover damages for violation of civil and constitutional rightspursuant to 42 USC § 1983, the defendant Town of Greenburgh Sgt. Edward Olsonappeals, as limited by his brief, from so much of an order of the Supreme Court, WestchesterCounty (Giacomo, J.), entered September 30, 2011, as denied his motion for summary judgmentdismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Town of Greenburgh Sgt. Edward Olson for summary judgmentdismissing the complaint insofar as asserted against him is granted.
On September 13, 2008, the plaintiff was arrested in his home pursuant to an arrest warranton charges that he committed criminal mischief in the second degree, a class D felony (seePenal Law § 145.10). The accusatory instrument that resulted in the issuance of thearrest warrant was based on signed statements from the plaintiff's girlfriend and the father of theplaintiff's girlfriend. Town of Greenburgh Sgt. Edward Olson (hereinafter Olson) was a memberof the tactical team that, on orders of the chief of the Town of Greenburgh Police Department(hereinafter the police department), forcibly entered the plaintiff's home and effectuated thearrest. At the time of the plaintiff's arrest, the police department had received information that,inter alia, the plaintiff had been seen with a gun two days earlier, had threatened to shoot hisgirlfriend, was possibly holding his girlfriend hostage in his home, and kept three pit bulls in hishome.
Following his arrest, the plaintiff was indicted on numerous charges, but was later acquittedon all counts. Thereafter, the plaintiff commenced this action against Olson, among others,asserting a cause of action pursuant to 42 USC § 1983 that alleged use of excessive forcein violation of his rights under the Fourth Amendment to the United States Constitution, as wellas state common-law causes of action sounding in assault and battery, false arrest, and falseimprisonment, [*2]and causes of action sounding in maliciousprosecution under both state law and pursuant to 42 USC § 1983. In an order enteredSeptember 30, 2011, the Supreme Court, inter alia, denied Olson's motion for summary judgmentdismissing the complaint insofar as asserted against him. Olson appeals.
"In order to prevail on a cause of action seeking to recover damages for false arrest orimprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2)the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to theconfinement; and (4) the confinement was not otherwise privileged" (Rivera v County of Nassau, 83 AD3d1032, 1033 [2011]; see Broughton v State of New York, 37 NY2d 451, 456 [1975],cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). "A [42 USC] §1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be freefrom unreasonable seizures, including arrest without probable cause, is substantially the same asa claim for false arrest under New York law" (Weyant v Okst, 101 F3d 845, 852 [1996][citation omitted]).
Olson submitted evidence that "the plaintiff was arrested pursuant to a facially valid arrestwarrant issued by a court having jurisdiction" (Campbell v County of Westchester, 80 AD3d 641, 641-642[2011]). Accordingly, he established, prima facie, his entitlement to judgment as a matter of lawdismissing the false arrest and false imprisonment causes of action by showing that the plaintiff'sconfinement was privileged (id.;see Lyman v Town of Amherst, 74 AD3d 1842 [2010]).
The plaintiff failed to raise a triable issue of fact in opposition. Contrary to the plaintiff'scontention, the defendant was entitled to enter his home forcibly for the purpose of executing afelony arrest warrant founded on probable cause (see Payton v New York, 445 US 573,602-603 [1980]; People v Gerecke,34 AD3d 1260, 1261 [2006]; People v Murray, 267 AD2d 492, 494 [1999]). "Wherea warrant of arrest is issued by a court of competent jurisdiction, there is a presumption that thearrest was issued on probable cause" (Lyman v Town of Amherst, 74 AD3d at 1842[internal quotation marks omitted]; see Gisondi v Town of Harrison, 72 NY2d 280,283-284 [1988]; Broughton v State of New York, 37 NY2d at 458), and the plaintiff didnot rebut this presumption. Accordingly, Olson was entitled to summary judgment dismissing thefalse arrest and false imprisonment causes of action insofar as asserted against him.
"Generally, when there is an alleged unlawful arrest made pursuant to a valid warrant, theappropriate form of action is malicious prosecution, not false imprisonment" (Williams v Cityof Buffalo, 72 AD2d 952, 953 [1979]). "In order to prevail on a [42 USC] § 1983claim against a state actor for malicious prosecution, a plaintiff must show a violation of hisrights under the Fourth Amendment, and must establish the elements of a malicious prosecutionclaim under state law" (Manganiello v City of New York, 612 F3d 149, 160-161 [2010][citations omitted]). "The elements of the tort of malicious prosecution are: (1) thecommencement or continuation of a criminal proceeding by the defendant against the plaintiff,(2) the termination of the proceeding in favor of the accused, (3) the absence of probable causefor the criminal proceeding and (4) actual malice" (Broughton v State of New York, 37NY2d at 457).
"Once a suspect has been indicted . . . the indictment creates a presumption ofprobable cause to believe that the suspect committed the crime. This presumption may beovercome only by evidence establishing that the police witnesses have not made a complete andfull statement of facts either to the Grand Jury or to the District Attorney, that they havemisrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted inbad faith" (Chetrick v Cohen, 52AD3d 449, 450 [2008] [citations and internal quotation marks omitted]). Here, Olsondemonstrated his prima facie entitlement to judgment as a matter of law by showing that theplaintiff was indicted by a grand jury for the subject incident, thus creating a presumption ofprobable cause (id.; see Strangev County of Westchester, 29 AD3d 676, 676-677 [2006]). In opposition, the plaintifffailed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted thatbranch of Olson's motion which was for summary judgment dismissing both of the causes ofaction alleging malicious prosecution insofar as asserted against him.[*3]
"A claim that a law enforcement official used excessiveforce during the course of an arrest, investigatory stop, or other seizure of the person is to beanalyzed under the objective reasonableness standard of the Fourth Amendment. Thereasonableness of a particular use of force must be judged from the perspective of a reasonableofficer on the scene, rather than with the 20/20 vision of hindsight" (Campagna v Arleo, 25 AD3d 528,529 [2006] [citations and internal quotation marks omitted]).
Olson established that a different police officer engaged in certain of the acts complained ofby the plaintiff, that the plaintiff could not identify which officer allegedly slammed him againsta mirror and against a wall, that the plaintiff, in any event, sustained no injuries as a result ofbeing slammed against a mirror, and that the sole use of force that can properly be attributed toOlson was reasonable and did not result in any injury to the plaintiff. Accordingly, Olsonestablished his prima facie entitlement to judgment as a matter of law dismissing the cause ofaction predicated on an alleged use of excessive force insofar as asserted against him (see Diederich v Nyack Hosp., 49 AD3d491, 494 [2008]; Gagliano vCounty of Nassau, 31 AD3d 375, 376 [2006]; Higgins v City of Oneonta, 208AD2d 1067, 1070-1071 [1994]; cf. Matter of Scully v Safir, 282 AD2d 305, 305-306[2001]). The plaintiff failed to raise a triable issue of fact in opposition.
The branches of Olson's motion which were for summary judgment dismissing the causes ofaction alleging common-law assault and battery should similarly have been granted under thecircumstances of this case (see Wyllie vDistrict Attorney of County of Kings, 2 AD3d 714, 718-719 [2003]).
In light of our determination, we need not reach the parties' contentions regarding Olson'sclaim of entitlement to qualified immunity (see Foley v County of Suffolk, 80 AD3d 658, 660 [2011]).
The plaintiff's remaining contentions are without merit. Florio, J.P., Leventhal, Austin andCohen, JJ., concur.