Ashanti v. The City of New York

• Citation: 2023 NY Slip Op 30078 (U)
• Decision Date: 09 January 2023
• Docket Number: Index No. 155062/2019,Motion Seq. No. 003
• Parties: KARL ASHANTI, Plaintiff, v. THE CITY OF NEW YORK, P.O. JOHN A. SHAPIRO, P.O LUIGI TIRRO, POLICE OFFICERS JOHN DOE Defendant.
• Court: United States State Supreme Court (New York)

2023 NY Slip Op 30078(U)

KARL ASHANTI, Plaintiff,
v.
THE CITY OF NEW YORK, P.O. JOHN A. SHAPIRO, P.O LUIGI TIRRO, POLICE OFFICERS JOHN DOE Defendant.

Index No. 155062/2019, Motion Seq. No. 003

Supreme Court, New York County

January 9, 2023

Unpublished Opinion

MOTION DATE 03/29/2022

PRESENT: HON. LESLIE A. STROTH, JUSTICE

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DECISION + ORDER ON MOTION

LESLIE A. STROTH, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 003) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132 were read on this motion to/for DISMISS.

This action arises out of injuries allegedly sustained by plaintiff on March 8, 2018. Plaintiff alleges the following causes of action: assault, battery, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and discrimination pursuant to both the New York City Human Rights Law and the New York State Human Rights Law.^[1]

Defendants the City of New York, Police Officer John A. Shapiro, and Police Officer Luigi Tirro (together, the City) now move for summary judgment in their favor seeking dismissal of all of plaintiff s remaining claims. Plaintiff opposes and argues that numerous factual disputes exist that preclude an order granting summary judgment.

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I. Summary of Alleged Facts

The action arises out of an incident that took place on March 8, 2018, when plaintiff Karl Ashanti (plaintiff), an attorney at Corporation Counsel (Corporation Counsel or the Law Department), was walking on Broadway towards Park Place in New York, NY toward his workplace. When plaintiff reached the comer of Park Place and Broadway, he observed defendant Police Officer Luigi Tirro (Officer Tirro) in the process of taping off the Broadway entrance to Park Place due to a falling ice condition, of which plaintiff was unaware. Plaintiff asked Officer Tirro permission to pass by the tape to walk to his job at the end of the block, on Church Street, and showed Officer Tirro his Corporation Counsel identification as proof of his employment. Officer Tirro allowed plaintiff to proceed. .

Plaintiff continued beyond the tape and stopped briefly at Dunkin Donuts halfway down the block before going to work. After exiting Dunkin Donuts, plaintiff continued to walk toward Church Street when he was stopped by Police Officer John A. Shapiro (Officer Shapiro). Plaintiff alleges that Officer Shapiro began shouting at plaintiff to turn around, whereupon plaintiff attempted to explain that Officer Tirro had given plaintiff permission to walk through the cordoned area. '

Plaintiff and Officer Shapiro disagree as to what next ensued. Plaintiff claims that he turned around and attempted to walk back from where he came pursuant to Officer Shapiro's directive. See plaintiffs EBT, NYSCEF doc. no. 112 at 50, lines 5-10. However, as he proceeded, plaintiff alleges that Officer Shapiro followed plaintiff and became more agitated. Id. at 51, lines 5-9. Plaintiff claims that Officer Shapiro began to shout at and shove plaintiff, and plaintiff attempted to back away from Officer Shapiro to avoid further physical contact and escalation of the situation. Id. at 48, lines 23-24; 52, lines 2-3; 71, lines 18-22.

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Conversely, Officer Shapiro testified that plaintiff continued walking West toward Church Street against police direction and toward the falling ice, that plaintiff physically delayed his arrest, argued with Officer Shapiro, and pushed against the officer. See Officer Shapiro EBT, NYSCEF doc. no. 115, at 104, lines 11-14; 114, line 18 - 115, line 7; 176, line 14 - 178, line 2; 178, lines 13-23; 188, lines 16-21. Officer Shapiro testified that following plaintiffs conduct, he arrested plaintiff for obstruction of governmental administration in the second degree, resisting arrest, and harassment in the second degree. "

Following his arrest, plaintiff was suspended with pay while an investigation purportedly was conducted by Corporation Counsel. Following the investigation, Corporation Counsel determined that plaintiff violated the conditions of his employment on March 8, 2018 by improperly using his Law Department ID card to get past a police barricade. Corporation Counsel also appears to have based its determination on a separate incident that occured prior to plaintiffs arrest, in which plaintiff had represented his wife in a case against a subsidiary of the City. Corporation Counsel offered plaintiff the option to resign in lieu of termination, which plaintiff accepted.

Subsequently, the District Attorney's office dismissed the obstruction of governmental administration and resisting arrest charges against plaintiff. Plaintiffs remaining charge of harassment in the second degree was dismissed upon his acquittal following a one-day bench trial on August 14, 2018.

Plaintiff now claims that he was falsely arrested and maliciously prosecuted, and that as a result of his arrest he was suspended and subsequently constructively terminated from his job as an Assistant Corporation Counsel. Plaintiff alleges that his constructive termination occurred because he is an African American male, and non-African American employees who had been

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arrested and charged with similarly severe or more egregious charges were hot similarly immediately disciplined or terminated.

IL Analysis

It is a well-established principle that the "function of summary judgment is issue finding, not issue determination." Assaf v Ropog Cab Corp., 153 A.D.2d 520 (1st Dept-1989), quoting Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). As such, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. See Alvarez v Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v New York University Medical Center, 64 N.Y.2d 851 (1985). .

Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of issues of fact. See Sillman, 3 N.Y.2d at 404. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted. See Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1 st Dept 1990), citing Assaf 153 A.D.2d at 521. If the existence of an issue of fact is even fairly debatable, summary judgment must be denied. See Stone v Goodson, 8 N.Y.2d 8, 12 (1960).

a. False Arrest and False Imprisonment

With respect to the allegations of false arrest and false imprisonment, the Court finds that genuine issues of material fact exist as to whether Officer Shapiro had probable cause to arrest plaintiff. To succeed on a claim for false arrest and false imprisonment, a plaintiff must show that: (1) the defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. See Broughton v State of New York, 37 N.Y.2d 451, 456 (1975).

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Probable cause to believe that a person committed a crime constitutes a complete defense to the claims of false arrest and unlawful imprisonment. See Marrero v City of New York, 33 A.D.3d 556, 557 (1st Dept 2006). Probable cause also constitutes a defense to a malicious prosecution claim if the initial probable cause was present at the commencement of the prosecution. See Brown v Sears Roebuck &Co., 297 A.D.2d 205, 211 (1st Dept 2002).

An officer has probable cause to arrest if he or she knows facts and circumstances that would warrant a reasonably prudent person to believe that the suspect had committed or was committing a criminal offense. See Ricciuti v N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir 1997); see also People v Oden, 36 N.Y.2d 382, 384 (1975). The determination as to the existence of probable cause is distinct from "whether guilt beyond a reasonable doubt could have been proven at a criminal trial." Agront v City of New York, 294 A.D.2d 189, 190 (1st Dept 2002) (citations omitted).

The City argues that plaintiffs claims for false arrest, false imprisonment, and malicious prosecution should be dismissed, because his arrest was based on probable cause. In support of its . motion, the City submits, inter alia, the transcripts of the examinations before trial (EBTs) of plaintiff (NYSCEF doc. no. 73), Officer Shapiro (NYSCEF doc. no. 74), and Officer Tirro (NYSCEF doc. no 75). The City maintains that the testimony of Officers Shapiro and Tirro establishes that Officer Shapiro had probable cause to arrest plaintiff for obstruction of

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governmental administration^[2], disorderly conduct^[3], harassment in the second degree^[4], and resisting arrest^[5]. Officer Shapiro testified that he repeatedly told plaintiff to turn around, plaintiff continued in the wrong direction despite Officer Shapiro's directives, plaintiff made physical contact with Officer Shapiro, and plaintiff attempted to physically avoid arrest. See NYSCEF doc. no. 115 at 74, line 24 - 75, line 13; 164, line 19 - 165, line 3; 78 line 3 - 79, line 8; 207, lines 19- 25; 104 lines 11-14; 114, lines 18-25.

In opposition, plaintiff argues that factual disputes exist that preclude summary judgment, relying upon, inter alia, his EBT testimony (NYSCEF doc. no. 112) and surveillance video-showing the encounter between plaintiff and Officer Shapiro (Exhibit I^[6]). He testified that he was given express permission by Officer Tirro to proceed through the taped-off area of the sidewalk and that others walked through while his arrest took place. See plaintiffs EBT, NYSCEF doc. no. 112 at 36, line 22- 37, line 9....