| Williams v City of New York |
| 2014 NY Slip Op 01165 [114 AD3d 852] |
| February 19, 2014 |
| Appellate Division, Second Department |
| Tyrone Williams, Respondent, v City of NewYork, Appellant, et al., Defendant. |
—[*1] Hill Rosenberg & Thurston, LLC, Brooklyn, N.Y. (Steven N. Feinman of counsel),for respondent.
In an action, inter alia, to recover damages for false imprisonment and maliciousprosecution, the defendant City of New York appeals, as limited by its brief, from somuch of an order of the Supreme Court, Kings County (Velasquez, J.), dated June 29,2012, as denied those branches of its motion which were for summary judgmentdismissing the causes of action alleging false imprisonment and malicious prosecutioninsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the motion of the defendant City of New York which were forsummary judgment dismissing the causes of action alleging false imprisonment andmalicious prosecution insofar as asserted against it are granted.
"In order to prevail on a cause of action seeking to recover damages for false arrestor imprisonment, a plaintiff must prove that: (1) the defendant intended to confine theplaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did notconsent to the confinement; and (4) the confinement was not otherwise privileged" (Rivera v County of Nassau, 83AD3d 1032, 1033 [2011]; see Broughton v State of New York, 37 NY2d451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US929 [1975]). "The existence of probable cause serves as a legal justification for the arrestand an affirmative defense to the claim of false imprisonment or false arrest" (Riverav County of Nassau, 83 AD3d at 1033 [internal quotation marks omitted]; seeBroughton v State of New York, 37 NY2d at 458; Smith v County ofNassau, 34 NY2d 18, 23 [1974]).
Contrary to the Supreme Court's determination, the City of New York demonstratedits prima facie entitlement to judgment as a matter of law dismissing the plaintiff's falseimprisonment claim. " 'Generally, information provided by an identified citizen accusinganother individual of a specific crime is legally sufficient to provide the police withprobable cause to arrest' " (Rivera v County of Nassau, 83 AD3d at 1033,quoting People v Bero, 139 AD2d 581, 584 [1988]; see Minott v City of NewYork, 203 AD2d 265, 267 [1994]; Shapiro v County of Nassau, 202 AD2d358 [1994]). Here, the City established the existence of probable cause to arrest thedefendant by presenting evidence that an identified citizen accused the plaintiff of aspecific crime. The plaintiff failed to raise a triable issue of fact in opposition (see Redmond v City of WhitePlains, 77 AD3d 902, 902 [2010]). [*2]Accordingly, the Supreme Court should have granted thatbranch of the City's motion which was for summary judgment dismissing the falseimprisonment cause of action.
"The elements of the tort of malicious prosecution are: (1) the commencement orcontinuation of a criminal proceeding by the defendant against the plaintiff, (2) thetermination 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 NewYork, 37 NY2d at 457; see Colon v City of New York, 60 NY2d 78, 82[1983]). "Once a suspect has been indicted, . . . the indictment creates apresumption of probable cause to believe that the suspect committed the crime" (Chetrick v Cohen, 52 AD3d449, 450 [2008]; see Colon v City of New York, 60 NY2d at 82-83; Strange v County ofWestchester, 29 AD3d 676, 677 [2006]). "The presumption may be overcomeonly by evidence establishing that the police witnesses have not made a complete and fullstatement 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 otherwiseacted in bad faith" (Colon v City of New York, 60 NY2d at 82-83). Here, theCity demonstrated its prima facie entitlement to judgment as a matter of law by showingthat the plaintiff was indicted by a grand jury for the subject incident, thus creating apresumption of probable cause.
The plaintiff asserts that a fingerprint analysis report, which was prepared after thevictim and the lead detective testified before the grand jury, exonerated him and rebuttedthe presumption of probable cause created by the grand jury indictment. Contrary to theplaintiff's contention, the fingerprint analysis report did not exonerate him, but insteadconstituted "conflicting evidence uncovered in the course of the police investigation" thatwas "relevant to the issue of whether guilt beyond a reasonable doubt could have beenproven at a criminal trial, not to the initial determination of the existence of probablecause" (Agront v City of New York, 294 AD2d 189, 190 [2002]; see Lewis v Caputo, 20 NY3d906, 907 [2012]; Medina vCity of New York, 102 AD3d 101, 107 [2012]; Carthens v City of NewYork, 168 AD2d 408 [1990]; cf. Kemp v Lynch, 275 AD2d 1024,1025-1026 [2000]). The plaintiff's further contention that the lead detective withheld thereport from the grand jury and the Kings County District Attorney's office (hereinafterthe DA's office) is purely speculative (see Strange v County of Westchester, 29AD3d at 676), and the record does not support his contention that the criminalinvestigation was conducted in a manner which deviated so egregiously from properpolice procedure as to indicate intentional or reckless action by the lead detective (seeLee v City of Mount Vernon, 49 NY2d 1041, 1042-1043 [1980]; cf. Haynes v City of NewYork, 29 AD3d 521, 522-523 [2006]; Hernandez v State of New York,228 AD2d 902, 905 [1996]). Accordingly, the plaintiff failed to raise a triable issue offact in opposition to the City's prima facie showing, and the City was entitled to summaryjudgment dismissing the malicious prosecution cause of action.
On appeal, the plaintiff also accuses the DA's office of wrongdoing in connectionwith his criminal proceeding. The plaintiff's contentions with respect to the DA's office,however, are not properly before this Court, as they are based on arguments and evidenceprovided for the first time in the plaintiff's surreply papers submitted to the SupremeCourt (see Sawyers vTroisi, 95 AD3d 1293, 1294 [2012]; Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d905, 905 [2011]; Fotiadis vFotiadis, 18 AD3d 699, 700 [2005]). Moreover, the plaintiff withdrew all claimsagainst the DA's office, leaving the City as the only remaining defendant in this case. TheDA's office is an entity separate from the City (see Narvaez v City of New York, 83 AD3d 516, 517[2011]; Leftenant v City of NewYork, 70 AD3d 596, 597 [2010]; Warner v City of New York, 57 AD3d 767, 768 [2008]).While "a 42 USC § 1983 claim may be maintained against the City for the conductof the District Attorney's office, insofar as the District Attorney acted as a New York Citypolicymaker" (Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278,296 [2003]; see Ramos v City of New York, 285 AD2d 284, 303 [2001]), theplaintiff withdrew his 42 USC § 1983 claims against the City.
In light of our determination, we need not address the City's remaining contentions.Rivera, J.P., Leventhal, Hall and Roman, JJ., concur.