Akande v. City of New York

Citation713 N.Y.S.2d 341,275 A.D.2d 671
PartiesTAYIBAT AKANDE et al., Appellants,<BR>v.<BR>CITY OF NEW YORK et al., Respondents.
Decision Date28 September 2000
CourtNew York Supreme Court Appellate Division

Concur — Sullivan, P.J., Williams, Ellerin, Wallach and Friedman, JJ.

After chemical testing, United States Customs determined that a package shipped from overseas contained heroin. The package was addressed to plaintiff Tayibat Akande's husband, Sikiru Akande, a co-plaintiff herein, who seeks derivative damages. On Friday, November 2, 1990, plaintiff, after accepting delivery of the package from a United States Postal Inspector posing as a mailman, was arrested by New York City police officers who obtained a search warrant based upon information supplied to them by the United States Customs. On November 3, 1990, the Police Department tested the package and determined that it did not contain any illegal substances. Plaintiff was arraigned at 9:00 P.M. on November 4, 1990, before the District Attorney's Office had learned of the results of Police Department's test, and then released from custody. The case was dismissed at plaintiff's next scheduled court appearance on December 11, 1990.

The above facts established, as a matter of law, that plaintiff's arrest was made with probable cause on the basis of credible information supplied by a reliable informant, namely, United States Customs, warranting the dismissal of the cause of action for false arrest without submission to the jury (see, Veras v Truth Verification Corp., 87 AD2d 381, affd 57 NY2d 947). There having been probable cause for the arrest, the cause of action for battery was also properly dismissed without submission to the jury absent any evidence that the force used to effect the arrest was excessive (cf., Jones v State of New York, 33 NY2d 275, 279-280).

Nor was there evidence of malice sufficient to support the jury's verdict in plaintiff's favor on her cause of action for malicious prosecution (see, Broughton v State of New York, 37 NY2d 451, 457). Malice cannot be inferred from the mere fact that the District Attorney's Office had not yet learned of the Police Department's laboratory test results by the time of plaintiff's arraignment the day after the test was performed. Absent any evidence as to when or to whom at the District Attorney's Office the police disclosed the test, the timeliness of the disclosure and the circumstances of how the District Attorney's Office learned of the test results, there is simply no basis for inferring that the police...

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5 cases
  • Cunningham v. U.S.
    • United States
    • U.S. District Court — Eastern District of New York
    • 23 Enero 2007
    ...See Bennett v. New York City Housing Authority, 245 A.D.2d 254, 255, 665 N.Y.S.2d 91 (2d Dep't 1997); Akande v. City of N.Y., 275 A.D.2d 671, 672, 713 N.Y.S.2d 341, 343 (1st Dep't 2000) (stating "[t]here having been probable cause for the arrest, the cause of action for battery was also pro......
  • Rodgers v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • 29 Mayo 2013
    ...33 A.D.3d 556, 557, 824 N.Y.S.2d 228;Grant v. Barnes & Noble, Inc., 284 A.D.2d 238, 239, 726 N.Y.S.2d 543;Akande v. City of New York, 275 A.D.2d 671, 672, 713 N.Y.S.2d 341). With regard to the second cause of action, which alleged malicious prosecution, the defendants demonstrated their pri......
  • Beach v. City of New York
    • United States
    • U.S. District Court — Southern District of New York
    • 28 Agosto 2023
    ... ... 05-CV-6237 (NRB), 2009 WL 3321014, ... at *1 n.2 (S.D.N.Y. Oct. 8, 2009). Dismissal of a battery ... claim is proper when “probable cause for the arrest ... [exists] ... absent any evidence that the force used to ... effect the arrest was excessive.” Akande v. City of ... N.Y. , 275 A.D.2d 671, 672, 713 N.Y.S.2d 341, 343 (2000) ...          As ... previously found, Defendants had probable cause to arrest ... Plaintiff, and lawfully used de minimis force against her to ... do so. Because probable cause is a ... ...
  • Rogers v. City Of New York
    • United States
    • New York Supreme Court — Appellate Division
    • 2 Abril 2019
    ...843 [2018] ; Harris v. City of New York, 153 A.D.3d 1333, 1335, 62 N.Y.S.3d 411 [2d Dept. 2017] ; Akande v. City of New York, 275 A.D.2d 671, 672, 713 N.Y.S.2d 341 [1st Dept. 2000] ).In view of the foregoing, we do not the reach the issue of qualified immunity for the individual police offi......
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