| Cicci v Chemung County |
| 2014 NY Slip Op 08277 [122 AD3d 1181] |
| November 26, 2014 |
| Appellate Division, Third Department |
[*1]
| Frank A. Cicci, Appellant, v Chemung County et al.,Respondents. |
Schlather, Stumbar, Parks & Salk, LLP, Ithaca (David M. Parks of counsel), forappellant.
Hiscock & Barclay, LLP, Elmira (Jeremy J. Hourihan of counsel), for ChemungCounty and others, respondents.
Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for Village of ElmiraHeights and others, respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (O'Shea, J.), enteredDecember 4, 2012 in Chemung County, which, among other things, granted defendants'motion for summary judgment dismissing the complaint.
Ryan Evans called 911 to report that his mother was in a vehicle with an intoxicatedindividual, Nicholas Cicci. During the course of the call, Cicci threatened to shoot anyresponding police, which Evans relayed to the 911 operator. Defendant Richard L.Matthews Jr., a Chemung County Sheriff's Deputy, was the first officer to respond and,by such time, Cicci was standing in the yard of the home where he resided with hisparents, including plaintiff, his father. Evans was still at the scene and confirmed toMatthews that Cicci was the person threatening to shoot police. As Matthews approachedand spoke to Cicci, he observed that Cicci was visibly upset, cursing at him and his angerescalating. Matthews obtained Cicci's permission to search him for weapons, but beforehe reached the area where a gun would typically be located, Cicci suddenly shoved orstruck Matthews and attempted to flee to the house. Matthews informed Cicci that he wasunder arrest and directed him to stop, which Cicci did not do.
Matthews pursued Cicci to the back door of the house where Cicci entered and [*2]apparently locked or otherwise blocked the door. Two localpolice officers, defendants David J. Noonan and Steven Pickering, had arrived to assistin the situation. Matthews and the two officers forced their way into plaintiff's house toarrest Cicci. Plaintiff was reportedly yelling at the police and allegedly physicallyinterfered with the arrest of Cicci, resulting in plaintiff's arrest. Although not clear fromthe record, it appears that most, if not all, criminal charges against plaintiff wereeventually dismissed. He commenced this action alleging, among other things, battery,trespass and a claim under 42 USC § 1983 based upon the warrantless entryinto his home. Defendants moved for summary judgment dismissing the complaint andplaintiff cross-moved for partial summary judgment. Supreme Court granted defendants'motion and dismissed the complaint. Plaintiff appeals.
Plaintiff argues that it was error to dismiss the causes of action premised upon thewarrantless entry into his home. We are unpersuaded. Police officers performing theirgovernmental duty are entitled to qualified immunity "as long as their actions did notviolate the plaintiff's clearly established legal rights" (Colao v Mills, 39 AD3d 1048, 1050 [2007]; see Baez vCity of Amsterdam, 245 AD2d 705, 706-707 [1997], lv denied 91 NY2d 810[1998]). "[A] warrantless search is per se unreasonable and violative of the 4thAmendment unless it falls within a few enumerated exceptions" (Colao v Mills, 3 AD3d702, 704 [2004]). Initially, we note that where, as here, an individual is arrestedoutside a home for conduct witnessed by an officer (i.e., Cicci suddenly shoving orstriking Matthews during a permitted search), the individual "may not [then] thwart anotherwise proper arrest . . . by escaping into his [or her] residence" (People v Wheatley, 55 AD3d947, 948 [2008], lv denied 11 NY3d 931 [2009] [internal quotation marksand citation omitted]). Moreover, defendants submitted sufficient unrebutted proof toestablish the exigent circumstances exception for a warrantless entry (see generally People vMcBride, 14 NY3d 440, 445 [2010], cert denied 562 US &mdash, 131 SCt 327 [2010]; Colao v Mills, 39 AD3d at 1051). Proof in such regard includedthe reported statements that Cicci planned to shoot police, the identification of Cicci atthe scene and confirming that he had made such threats, Matthews' observation of Cicci'shighly agitated state and apparent intoxication, Cicci's physical action stoppingMatthews' search when nearing the area where weapons would normally be concealed,and his immediate flight to a place from which he could safely carry out his threat againstresponding officers as well as procure a weapon if he did not already have one.
We do, however, find a factual issue regarding plaintiff's cause of action allegingbattery by Noonan and Pickering. A battery occurs where a defendant "intentionallyengage[s] in offensive bodily contact without plaintiff's consent" (Guntlow v Barbera, 76 AD3d760, 766 [2010], appeal dismissed 15 NY3d 906 [2010]; see Goff vClarke, 302 AD2d 725, 726 [2003]). Plaintiff testified at his deposition that he wasabout to fall asleep when his dog started barking and he became aware that somethingwas transpiring outside his home. As he walked toward a window, Cicci—his sonwho resided there—suddenly came in the back door and locked it. Immediatelythereafter, individuals began breaking in that door. Plaintiff claimed that he did not knowit was the police until the three officers entered his house. According to plaintiff, once hesaw that the police had entered, he backed five or six feet away from them and inquiredof the police in a loud voice as to what they were doing. Plaintiff recalled that Noonanand Pickering—who had been summoned to assist Matthews—responded,"we don't know why we are here." Plaintiff then observed Matthews use a taser on Cicci.As plaintiff was still standing away from the police and looking at his wife, Pickeringtased plaintiff in the back. Noonan also used a taser on him. Although the policeportrayed a much different version of events in which plaintiff physically interfered withtheir attempt to arrest Cicci, nonetheless, viewing the evidence most favorably to thenonmovant (see e.g. Vega vRestani Constr. Corp., 18 NY3d 499, 503 [2012]), an issue of fact exists as toplaintiff's battery claim against Noonan and Pickering (see Guntlow v [*3]Barbera, 76 AD3d at 766).
The remaining issues have been considered and are unavailing.
Peters, P.J., Garry, Rose and Lynch, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted defendants' motion forsummary judgment dismissing the first cause of action alleging battery againstdefendants David J. Noonan and Steven Pickering; motion denied to said extent; and, asso modified, affirmed.