| Paulos v City of New York |
| 2014 NY Slip Op 07994 [122 AD3d 815] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| Abraham Paulos, Respondent, v City of NewYork et al., Appellants, et al., Defendants. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo,Rachel Donohue, and Karen M. Griffin of counsel), for appellants.
Ilissa Brownstein, New York, N.Y. and Jacobs and Hazan LLP, New York,N.Y. (David M. Hazan of counsel), for respondent (one brief filed).
In an action, inter alia, to recover damages for false arrest, for malicious prosecution,and pursuant to 42 USC § 1983 for the deprivation of federal constitutionalrights under color of state law, the defendants City of New York, Police Officer PaulMontefusco, and Police Officer Cotson appeal, as limited by their brief, from so much ofan order of the Supreme Court, Kings County (Ash, J.), dated June 21, 2013, as deniedthose branches of their motion which were for summary judgment dismissing, insofar asasserted against them, the causes of action to recover damages for malicious prosecutionand pursuant to 42 USC § 1983 for the deprivation, under color of statelaw, of the plaintiff's Fourth Amendment right to be free from the unreasonable seizureof his person, arising from his arrest and prosecution, and granted that branch of theplaintiff's cross motion which was pursuant to CPLR 1024 and 3025 (b) for leave toamend the complaint to substitute Police Officer Cotson as a party defendant in place ofPolice Officer John Doe #1.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,those branches of the appellants' motion which were for summary judgment dismissing,insofar as asserted against them, the causes of action to recover damages for maliciousprosecution and pursuant to 42 USC § 1983 for the deprivation, under colorof state law, of the plaintiff's Fourth Amendment right to be free from the unreasonableseizure of his person, arising from his arrest and prosecution, are granted, and that branchof the plaintiff's cross motion which was pursuant to CPLR 1024 and 3025 (b) for leaveto amend the complaint to substitute Police Officer Cotson as a party defendant in placeof Police Officer John Doe #1 is denied as academic.
The plaintiff commenced this action, inter alia, to recover damages under federal andNew York law for false arrest, false imprisonment, malicious prosecution, and thedeprivation of federal constitutional rights in connection with his arrest for robberyduring the early morning hours of October 23, 2010. The appellants moved for summaryjudgment dismissing the complaint insofar as asserted against them on the ground thatthe plaintiff's arrest and detention were supported by probable cause, relying on atranscript of the testimony given by the plaintiff at a hearing conducted pursuant toGeneral Municipal Law § 50-h and an affidavit of the arresting officer.Those submissions revealed that, at approximately 2:30 a.m. on the date in question, thevictim of an alleged robbery approached two police officers who were on patrol in theirpolice car, and informed [*2]them that he had just beenassaulted and robbed by three assailants. The victim, who was bleeding from the mouth,told the officers that the robbers had walked away in a specific direction. The victim thenproceeded in that direction on foot, with the officers following in their vehicle. Theofficers soon came upon the victim standing on the sidewalk with the plaintiff. Thevictim was demanding that the plaintiff return money that the plaintiff allegedly stolefrom the victim. The plaintiff testified at the General Municipal Law § 50-hhearing that the victim looked like a homeless person. After the officers exited theirvehicle and approached the men, the victim repeatedly and emphatically identified theplaintiff as one of the robbers. Upon questioning by the officers, the plaintiff denied anyinvolvement in the crime, and stated that he had been walking home from his job at anearby restaurant, where he had worked until 2:00 a.m. In view of the identification bythe victim and the injury that he had suffered, the officers placed the plaintiff underarrest. Afterward, the plaintiff was questioned by a detective at a police station.Following his subsequent arraignment, he was held overnight and then released on bail.He appeared in court several days later, and the charges against him were dismissedapproximately six months after the arrest.
The existence of probable cause constitutes a complete defense to causes of actionalleging false arrest, false imprisonment, and malicious prosecution (see Gisondi vTown of Harrison, 72 NY2d 280, 283, 284 [1988]; Holland v City ofPoughkeepsie, 90 AD3d 841, 845 [2011]; Reape v City of New York, 66 AD3d 755, 756 [2009]),including causes of action asserted pursuant to 42 USC § 1983 to recoverdamages for the deprivation of Fourth Amendment rights under color of state law that arethe federal-law equivalents of state common-law false arrest and malicious prosecutioncauses of action (see Betts v Shearman, 751 F3d 78, 82 [2014]; see alsoJenkins v City of New York, 478 F3d 76, 84 [2007] [false arrest]; Jocks vTavernier, 316 F3d 128, 136 [2003] [malicious prosecution]; Janetka v Dabe,892 F2d 187, 189 [1989] [malicious prosecution]). Generally, probable cause isestablished where an identified crime victim "communicates to the arresting officerinformation affording a credible ground for believing the offense was committed andidentifies the accused as the perpetrator" (People v Read, 74 AD3d 1245, 1246 [2010]; see Iorio v City of New York,19 AD3d 452, 453 [2005]; People v Sanders, 239 AD2d 528 [1997];Kramer v City of New York, 173 AD2d 155, 156 [1991]).
The appellants demonstrated their prima facie entitlement to judgment as a matter oflaw by establishing the existence of probable cause for the plaintiff's arrest. Indeed, thevictim sought out the police, had a physical injury corroborating his account of therobbery, and identified the plaintiff as one of the perpetrators. In response, the plaintifffailed to raise a triable issue of fact. While he asserted that the victim's physicalappearance and attire were like those of a homeless person, these facts did not undermineeither the victim's credibility, or the existence of probable cause for the arrest. Moreover,the new factual allegations raised by the plaintiff for the first time in his affidavit inopposition to the motion differed so dramatically from the account of the incident that heprovided at his hearing pursuant to General Municipal Law § 50-h that theyconstituted what appear to be feigned issues of fact designed to avoid the consequencesof his earlier testimony and, thus, were insufficient to defeat the motion (see Capasso v Capasso, 84AD3d 997, 998 [2011]; Rodriguez v Trakansook, 67 AD3d 768, 769 [2009]; Jaffe v New York City Tr.Auth., 52 AD3d 784 [2008]; Karwowski v New York City Tr. Auth., 44 AD3d 826, 827[2007]). In any event, those new allegations failed to raise a triable issue of fact, since theessential facts underlying the arrest were undisputed and, viewed objectively (see People v Reid, 104 AD3d58, 61 [2013], lv granted 21 NY3d 1008 [2013]; People v Cooper, 38 AD3d678, 679 [2007]), support a finding of probable cause as a matter of law.
Furthermore, the plaintiff failed to demonstrate that relevant evidence wasexclusively within the appellants' knowledge such that further discovery was necessaryfor him to properly oppose the motion for summary judgment (see Cocco v City of New York,114 AD3d 617 [2014]; Mehra v Nayak, 103 AD3d 857, 861 [2013]).
Accordingly, the Supreme Court erred in denying those branches of the appellants'motion which were for summary judgment dismissing, insofar as asserted against them,the causes of action to recover damages for common-law malicious prosecution andpursuant to 42 USC § 1983 to recover damages for the deprivation, undercolor of state law, of the plaintiff's Fourth Amendment right to be free from theunreasonable seizure of his person, arising from his arrest and prosecution. Since theSupreme Court has already directed the dismissal of the other causes of action assertedby [*3]the plaintiff, that branch of the plaintiff's crossmotion which was for leave to amend the caption to substitute Police Officer Cotson as aparty defendant in place of Police Officer John Doe #1 should have been denied asacademic.
In view of the foregoing, we do not reach the appellants' remaining contention.Mastro, J.P., Hall, Roman and Maltese, JJ., concur.