Campagna v. Arleo

• Decision Date: 10 January 2006
• Docket Number: 2003-04086.
• Citation: 25 A.D.3d 528,2006 NY Slip Op 00137,807 N.Y.S.2d 629
• Parties: ANTHONY CAMPAGNA et al., Respondents, v. JULIE ARLEO et al., Defendants, and RUTH PEREZ et al., Appellants.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 528

807 N.Y.S.2d 629

2006 NY Slip Op 00137

ANTHONY CAMPAGNA et al., Respondents, v. JULIE ARLEO et al., Defendants, and RUTH PEREZ et al., Appellants.

2003-04086.

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 10, 2006.

In an action, inter alia, to recover damages for personal injuries, the defendants Ruth Perez, Christina Perez, and Sabrina Perez appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), entered March 27, 2003, as denied their motion for leave to amend their answer to assert various counterclaims and granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability pursuant to General Municipal Law § 205-e.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs, Nassau County Police Officers, commenced this action, inter alia, to recover damages for personal injuries sustained by them when, in the course of their duties, they responded to the home of the defendant Justine Arleo to investigate a complaint that a "loud and unruly party" was taking place. The plaintiffs also alleged a cause of action pursuant to General Municipal Law § 205-e. The defendants Ruth Perez, Christina Perez, and Sabrina Perez (hereinafter the defendants) served an answer dated April 12, 2001. Thereafter, the defendants moved for leave to amend their answer to include various counterclaims pursuant to 42 USC § 1983 including, inter alia, false arrest, false imprisonment, and excessive use of force. The plaintiffs cross-moved, among other things, for summary judgment on the issue of liability pursuant to General Municipal Law § 205-e. The Supreme Court denied the defendants' motion and granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability pursuant to General Municipal Law § 205-e.

The Supreme Court properly denied the defendants' motion for leave to amend their answer to assert various counterclaims pursuant to 42 USC § 1983. The allegations of the proposed amendment were palpably insufficient to state causes of action for false arrest and false imprisonment. The plaintiffs had probable cause to believe that the defendants committed the underlying crimes (see Wasilewicz v Village of Monroe Police Dept., 3 AD3d 561, 562 [2004]).

Similarly, the allegations of the proposed amendment were palpably insufficient to state a cause of action for use of excessive force. "A claim that a law enforcement official used excessive force during the course of an arrest, investigatory stop, or other `seizure' of the person is to be analyzed under the `objective reasonableness' standard of the Fourth Amendment" (Vizzari v Hernandez, 1 AD3d 431, 432 [2003], quoting US Const 4th Amend; Graham v Connor, 490 US 386, 388 [1989]). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" (Mazzariello v Town of Cheektowaga, 305 AD2d 1118, 1119 [2003], quoting Graham v Connor, supra at 396). Here, the defendant Ruth Perez pleaded guilty to obstructing governmental administration in the second degree and admitted that she physically struggled with the police during her arrest. The defendants Sabrina Perez and Christina Perez pleaded guilty to disorderly conduct. Further, aside from two affidavits of nonparty witnesses which the Supreme Court properly declined to consider (see Concetto v Pedalino, 308 AD2d 470, 470-471 [2003]), there was no evidence of any injury to the defendants.

Moreover, the Supreme Court properly granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability pursuant to General Municipal Law § 205-e. In order "[t]o make out a claim under section 205-e, a plaintiff must `[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm'" (Williams v City of New York, 2 NY3d 352, 363 [2004] quoting Giuffrida v Citibank Corp., 100 NY2d 72, 79 [2003]). The plaintiffs satisfied this standard, and in opposition the defendants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]).

The defendants' remaining contentions are without merit.

Smith, Rivera and Skelos, JJ., concur.

Fisher, J., concurs in part and dissents in part and votes to modify the order appealed from by deleting the provision thereof granting that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability pursuant to General Municipal Law § 205-e, and substituting therefor a provision denying that branch of the cross motion; as so modified, votes to affirm, with the following memorandum, in which Florio, J.P., concurs:

I respectfully disagree with the majority's conclusion that that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability under General Municipal Law § 205-e should have been granted. As the majority correctly points out, recovery under that section requires a showing, inter alia, of "the manner in which the [police officer] was injured" (Williams v City of New York, 2 NY3d 352, 363 [2004]). Here, apart from a copy of the pleadings and an unverified bill of particulars, the only evidence offered by the plaintiffs in support of their cross motion was a transcript of the defendant Ruth Perez's plea allocution in connection with a single charge of obstructing governmental...