| Rodgers v City of New York |
| 2013 NY Slip Op 03826 [106 AD3d 1068] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Charles Rodgers, Appellant, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andScott Shorr of counsel), for respondents.
In an action, inter alia, to recover damages for false arrest and malicious prosecution,the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Kings County (Ash, J.), dated January 27, 2012, as granted those branches of thedefendants' motion which were for summary judgment dismissing the first, second, third,fourth, fifth, seventh, eighth, and tenth causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendants, the City of New York,the New York City Police Department (hereinafter the NYCPD; hereinafter together theCity defendants), and Paul C. Parsekian, an NYCPD detective, alleging 11 causes ofaction seeking damages for false arrest, false imprisonment, malicious prosecution,assault and battery, negligence, and various civil rights violations pursuant to 42 USC§ 1983, stemming from murder charges brought against the plaintiff, of which hewas acquitted. In particular, the plaintiff alleged that the investigating detective failed toproperly investigate the crime and disclose exculpatory evidence to him, the prosecutor,and the grand jury that indicted him. The Supreme Court granted the defendants' motionfor summary judgment dismissing the complaint on the grounds that there was probablecause for the plaintiff's arrest and prosecution based upon the identification of theplaintiff by two witnesses, and that the plaintiff's assertion that disclosure of theexculpatory evidence to the grand jury would have materially influenced its investigationwas speculative. The plaintiff appeals, contending that there are triable issues of factprecluding summary judgment.
Probable cause to believe that a person committed a crime is a complete defense toan action alleging false arrest or false imprisonment, whether brought under state law or42 USC § 1983 (see Gisondi v Town of Harrison, 72 NY2d 280, 283[1988]; Broughton v State of New York, 37 NY2d 451, 457 [1975]; Fortunato v City of New York,63 AD3d 880, 880 [2009]; Carlton v Nassau County Police Dept., 306AD2d 365, 366 [2003]). Here, the defendants established the absence of a triable issue offact as to whether the police had probable cause to arrest and detain the plaintiff, in thathe had been identified as the perpetrator by two witnesses (see Iorio v City of New York,19 AD3d 452 [2005]). Accordingly, the [*2]Supreme Court properly granted that branch of thedefendants' motion which was for summary judgment dismissing the first cause of action,which alleged false arrest and false imprisonment. The Supreme Court also properlygranted those branches of the defendants' motion which were to dismiss the third causeof action, which alleged assault, and the fourth cause of action, which alleged battery.Although assault and battery causes of action may be based on contact during anunlawful arrest (see Wyllie vDistrict Attorney of County of Kings, 2 AD3d 714, 718 [2003]; Johnson vSuffolk County Police Dept., 245 AD2d 340, 341 [1997]), here the defendantsestablished that the plaintiff's arrest was lawful because it was supported by probablecause, and the assault and battery causes of action are not based on allegations ofexcessive force (see Marrero vCity of New York, 33 AD3d 556, 557 [2006]; Grant v Barnes & Noble,284 AD2d 238, 239 [2001]; Akande v City of New York, 275 AD2d 671, 672[2000]).
With regard to the second cause of action, which alleged malicious prosecution, thedefendants demonstrated their prima facie entitlement judgment as a matter of law byshowing that the plaintiff was indicted by a grand jury for the subject incident, thuscreating a presumption of probable cause (see O'Donnell v County of Nassau, 7 AD3d 590, 592[2004]). In opposition, the plaintiff failed to raise triable issues of fact as to thispresumption and as to whether the prosecution was motivated by actual malice (seeNardelli v Stamberg, 44 NY2d 500 [1978]; Washington-Herrera v Town of Greenburgh, 101 AD3d986 [2012]; Hernandez vCity of New York, 100 AD3d 433, 434 [2012]).
The defendants established their prima facie entitlement to judgment as a matter oflaw dismissing the fifth cause of action, which alleged intentional and negligentinfliction of emotional distress, since the evidence submitted by the defendantsdemonstrated that the occurrences surrounding the plaintiff's arrest, detention, andprosecution did not rise to the level of extreme or outrageous conduct necessary tosustain such causes of action (see Freihofer v Hearst Corp., 65 NY2d 135, 143[1985]; Wyllie v DistrictAttorney of County of Kings, 2 AD3d 714, 720 [2003]; Liranzo v NewYork City Health & Hosps. Corp., 300 AD2d 548, 548 [2002]; Burrell vInternational Assn. of Firefighters, 216 AD2d 346 [1995]; Murphy v County ofNassau, 203 AD2d 339, 341 [1994]). Moreover, those causes of action wereduplicative of the causes of action alleging false arrest and false imprisonment, maliciousprosecution, and assault and battery (see Fischer v Maloney, 43 NY2d 553, 558[1978]; Leonard vReinhardt, 20 AD3d 510 [2005]). Furthermore, " '[p]ublic policy bars claims forintentional infliction of emotional distress against a governmental entity' " (Ellison v City of NewRochelle, 62 AD3d 830, 833 [2009], quoting Liranzo v New York CityHealth & Hosps. Corp., 300 AD2d at 548; see Eckardt v City of White Plains, 87 AD3d 1049, 1051[2011]; Wyllie v District Attorney of County of Kings, 2 AD3d at 720). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court properly grantedthat branch of the defendants' motion which was for summary judgment dismissing thefifth cause of action (seeLeonard v Reinhardt, 20 AD3d 510 [2005]).
The seventh cause of action alleged civil rights violations under 42 USC §1983, based upon the unreasonable search and seizure of the plaintiff's person, undercolor of state law, by Parsekian and other unidentified police officers in violation of theplaintiff's Fourth Amendment rights, and the deprivation of liberty in the absence of dueprocess, under color of state law, in violation of his Fourteenth Amendment rights. Thestatute provides that "[e]very person who, under color of any statute, ordinance,regulation, custom, or usage . . . subjects, or causes to be subjected, anycitizen of the United States . . . to the deprivation of any rights, privileges,or immunities secured by the Constitution and laws, shall be liable to the party injured"(42 USC § 1983; see Eckardt v City of White Plains, 87 AD3d at1051-1052; Hudson Val. Mar.,Inc. v Town of Cortlandt, 79 AD3d 700, 703 [2010]). Under 42 USC §1983, a party may pursue a civil claim for damages and injunctive relief against anyperson who acts under color of state law to deprive that party of a constitutional right (see Wilner v Village ofRoslyn, 99 AD3d 702 [2012]; Holland v City of Poughkeepsie, 90 AD3d 841, 846[2011]). Here, because the plaintiff's arrest and prosecution were supported by probablecause, there has been no unreasonable seizure of the plaintiff's person in violation of theFourth Amendment and, thus, the Supreme Court properly granted that branch of thedefendants' motion which was to dismiss so much of the seventh cause of action asasserted civil rights violations under 42 USC § 1983 against Parsekian and otherpolice officers (seeWashington-Herrera v Town of Greenburgh, 101 AD3d 986 [2012]; Wilner v Village of Roslyn, 99AD3d 702 [2012]). Furthermore, "[a] municipality is not liable under 42 [*3]USC § 1983 for an injury inflicted solely by itsemployees or agents" (Hudson Val. Mar., Inc. v Town of Cortlandt, 79 AD3d at703; see Monell v New York City Dept. of Social Servs., 436 US 658, 694[1978]), or "solely upon the doctrine of respondeat superior or vicarious liability"(Lopez v Shaughnessy, 260 AD2d 551, 552 [1999]; see Connick vThompson, 563 US —, —, 131 S Ct 1350, 1360 [2011]; Holland vCity of Poughkeepsie, 90 AD3d at 847; Eckardt v City of White Plains, 87AD3d at 1052). Thus, to the extent that the seventh cause of action sought to imposevicarious liability on the City defendants for the actions of Parsekian and other policeofficers pursuant to 42 USC § 1983, the City defendants were entitled to summaryjudgment dismissing that portion of the cause of action.
The eighth cause of action alleged civil rights violations under 42 USC § 1983based upon the City defendants' failure to properly hire, train, supervise, and disciplineits police officers. "A 42 USC § 1983 action may lie against a municipality if theplaintiff shows that the action that is alleged to be unconstitutional either implement[s] orexecute[s] a policy statement, ordinance, regulation, or decision officially adopted andpromulgated by that body's officers or has occurred pursuant to a practice so permanentand well settled as to constitute a custom or usage with the force of law" (Maio v Kralik, 70 AD3d1, 10-11 [2009] [internal quotation marks and citations omitted]; see Bassett v City of Rye, 69AD3d 667, 668 [2010]; Johnson v Kings County Dist. Attorney's Off., 308AD2d 278, 293 [2003]). A municipality may be held liable under 42 USC § 1983for its failure to train or adequately supervise its employees "only where the failure totrain amounts to deliberate indifference to the rights of persons with whom the policecome into contact" (Canton v Harris, 489 US 378, 388 [1989]; see Connick vThompson, 563 US at —, 131 S Ct at 1360). Here, the City defendantsestablished their prima facie entitlement to judgment as a matter of law dismissing theeighth cause of action by demonstrating that the plaintiff's arrest and the criminal chargesbrought against him, which the plaintiff alleged violated his rights under 42 USC §1983, did not result from the implementation of a policy, regulation, or custom of theCity defendants (see HudsonVal. Mar., Inc. v Town of Cortlandt, 79 AD3d 700 [2010]; Ellison v City of NewRochelle, 62 AD3d 830 [2009]). In opposition, the plaintiff failed to raise atriable issue of fact as to the existence of any such relevant policy, regulation, or custom(see Ellison v City of New Rochelle, 62 AD3d at 833; Serpa v County ofNassau, 280 AD2d 596 [2001]). Accordingly, the Supreme Court properly grantedthat branch of the defendants' motion which was for summary judgment dismissing theeighth cause of action.
The defendants demonstrated their prima facie entitlement to judgment as a matter oflaw dismissing the tenth cause of action, which alleged a violation of the plaintiff'sFourteenth Amendment rights to due process of law and a fair trial based upon allegedviolations of Brady v Maryland (373 US 83 [1963]), by showing that the plaintiffwas acquitted after trial (see Ambrose v City of New York, 623 F Supp 2d 454,471 [SD NY 2009]). In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted that branch of the defendants' motionwhich was for summary judgment dismissing the tenth cause of action. Rivera, J.P.,Dillon, Roman and Cohen, JJ., concur.