| De Lourdes Torres v Jones |
| 2014 NY Slip Op 05784 [120 AD3d 572] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Maria De Lourdes Torres, Appellant, v PoliceOfficer Jones et al., Defendants, and City of New York, Respondent. (Action No. 1.)Maria De Lourdes Torres, Appellant, v New York City Police Department et al.,Respondents, et al., Defendants. (Action No. 2.) |
The Perecman Firm, PLLC, New York, N.Y. (David H. Perecman and Peter D.Rigelhaupt of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Margaret G. King andFaye Lubinof of counsel), for respondents.
In two related actions, inter alia, to recover damages for violation of civil andconstitutional rights pursuant to 42 USC § 1983, false arrest, and maliciousprosecution, the plaintiff appeals (1), as limited by her brief, from so much of an order ofthe Supreme Court, Queens County (Kerrigan, J.), entered August 10, 2012, as grantedthe motion of the defendant City of New York for summary judgment dismissing thecomplaint in action No. 1 insofar as asserted against it, (2), as limited by her brief, fromso much of an order of the same court entered August 9, 2012, as granted the motion ofthe defendants New York City Police Department, Irma Santiago, Denitor Guerra, andErik Hendriks for summary judgment dismissing the complaint in action No. 2 insofar asasserted against them, and (3) from a judgment of the same court entered November 30,2012, which, upon the order entered August 9, 2012, is in favor of the defendants NewYork City Police Department, Irma Santiago, Denitor Guerra, and Erik Hendriks andagainst her dismissing the complaint in action No. 2 insofar as asserted against them.
Ordered that the appeal from the order entered August 9, 2012, is dismissed; and it isfurther,
Ordered that the order entered August 10, 2012, is affirmed insofar as appealed from;and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
[*2] The appeal from the intermediate order entered August9, 2012, must be dismissed because the right of direct appeal therefrom terminated withthe entry of judgment in action No. 2 (see Matter of Aho, 39 NY2d 241, 248[1976]). The issues raised on the appeal from that order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a][1]).
The plaintiff commenced action No. 1 against, among others, the City of New Yorkand police detectives Irma Santiago, Denitor Guerra, and Erik Hendriks, asserting acause of action pursuant to 42 USC § 1983 to recover damages forviolations of her civil and constitutional rights under color of state law. She also asserteda cause of action to recover damages for false arrest and false imprisonment against thosedefendants, and a cause of action to recover damages against the City for negligenttraining and supervision of its police officers. The plaintiff thereafter commenced actionNo. 2 against, among others, the New York City Police Department (hereinafter theNYPD), Santiago, Guerra, and Hendriks, asserting causes of action against thempursuant to 42 USC § 1981 to recover damages for the impairment of herright to the equal benefit of laws enacted for the security of persons and property,pursuant to 42 USC § 1983 to recover damages for violation of her rightsunder the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United StatesConstitution, and to recover damages for malicious prosecution, abuse of process, falsearrest, and false imprisonment.
The City moved for summary judgment dismissing the complaint insofar as assertedagainst it in action No. 1. The City, on behalf of the NYDP, moved, together withSantiago, Guerra, and Hendriks (hereinafter collectively the movants), for summaryjudgment dismissing the complaint in action No. 2 insofar as asserted against them. TheSupreme Court granted the motions.
The movants made a prima facie showing of entitlement to judgment as a matter oflaw dismissing the causes of action to recover damages for false arrest and falseimprisonment insofar as asserted against them in both action No. 1 and action No. 2 byestablishing that there was probable cause for the plaintiff's arrest (see MacDonald v Town ofGreenburgh, 112 AD3d 586 [2013]). The plaintiff failed to raise a triable issueof fact in opposition to that showing (see Chetrick v Cohen, 52 AD3d 449, 450 [2008]).
Moreover, a grand jury's indictment of the plaintiff subsequent to her arrest gave riseto a presumption of probable cause to prosecute the plaintiff, which established themovants' prima facie entitlement to judgment as a matter of law dismissing the maliciousprosecution cause of action insofar as asserted against them in action No. 2 (see Rodgers v City of NewYork, 106 AD3d 1068, 1070 [2013]). The plaintiff failed to overcome thatpresumption with a showing that "the conduct of the police deviated so egregiously fromacceptable police activity as to demonstrate an intentional or reckless disregard forproper procedures, or, alternatively, by presenting evidence of fraud, perjury orsuppression of evidence by the police" (Harris v State of New York, 302 AD2d716, 717 [2003] [internal quotation marks and citations omitted]). Furthermore, theplaintiff also failed to raise a triable issue of fact in opposition to the movants' primafacie showing that her arrest and prosecution were not motivated by actual malice,defined, in the context of actions to recover damages for malicious prosecution, as "awrong or improper motive, something other than a desire to see the ends of justiceserved" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]).
The causes of action asserted pursuant to 42 USC § 1983 against theindividual movants to recover damages for violation of the plaintiff's civil andconstitutional rights are premised primarily on the plaintiff's contention that she wassubject to an unreasonable seizure of her person because the seizure was effected in theabsence of probable cause. Like the state common-law causes of action to recoverdamages for false arrest and malicious prosecution, those causes of action are subject todismissal based on the determination that the arrest and prosecution of the plaintiff weresupported by probable cause (see Rodgers v City of New York, 106 AD3d at1071). As an additional ground for dismissal of the cause of action in action No. 1alleging the violation of the plaintiff's civil and constitutional rights pursuant to 42 USC§ 1983 insofar as asserted against the City, and the cause of action in actionNo. 2 alleging "municipal liability" against the NYPD, the City and the NYPDestablished their prima facie entitlement to judgment as a matter of law by demonstratingthat the criminal charges brought against the plaintiff did not arise [*3]from the implementation or application of an unlawful orunconstitutional municipal policy, regulation, custom, or practice (see Monell v NewYork City Dept. of Social Servs., 436 US 658, 694 [1978]; Pendleton v City of New York,44 AD3d 733, 736 [2007]). Apart from the conclusory assertions of her expert, theplaintiff offered no evidence of the existence of any policy or custom, or a determinationby a policy-making official that resulted in a violation of her rights and, therefore, shedid not raise a triable issue of fact (see Brogdon v City of New Rochelle, 200 FSupp 2d 411, 427 [SD NY 2002]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court correctly granted the motions for summaryjudgment dismissing the complaints in action Nos. 1 and 2 insofar as asserted against themovants. Eng, P.J., Leventhal, Lott and Roman, JJ., concur.