Combs v. City of N.Y.

• Decision Date: 22 July 2015
• Docket Number: 2013-05957
• Citation: 2015 NY Slip Op 06209
• Parties: Ralph S. Combs, appellant-respondent, v. City of New York, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

2015 NY Slip Op 06209

Ralph S. Combs, appellant-respondent, v. City of New York, et al., respondents-appellants.

2013-05957

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Decided on July 22, 2015

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

ROBERT J. MILLER

SYLVIA O. HINDS-RADIX, JJ.

(Index No. 500037/06)

Bader Yakaitis & Nonnenmacher, LLP, New York, N.Y. (John J. Nonnenmacher of counsel), for appellant-respondent.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Margaret G. King, and Yvette A. Rosario of counsel), for respondents-appellants.

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest, use of excessive force, and civil rights violations pursuant to 42 USC § 1983, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Landicino, J.), dated April 4, 2013, as denied that branch of his motion which was for summary judgment on the issue of liability on the cause of action alleging false arrest, and granted that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging civil rights violations pursuant to 42 USC § 1983, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their cross motion which were for summary judgment dismissing the causes of action alleging false arrest and use of excessive force.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging civil rights violations pursuant to 42 USC § 1983 insofar as asserted against the defendant Detective Robert Johnson, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff was arrested by the defendant Detective Robert Johnson after the plaintiff allegedly sold narcotics to an undercover police officer (hereinafter the undercover officer) during a "buy and bust" operation. The defendant was arraigned on charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees. The arraignment charges were dismissed and sealed approximately one month later.

The defendant then commenced this action against the City of New York, the New York City Police Department (hereinafter the NYPD), and Detective Johnson to recover damages, inter alia, for false arrest, excessive use of force, and civil rights violations pursuant to 42 USC § 1983. The plaintiff moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging false arrest. The defendants cross-moved, among other things, for summary judgment dismissing the causes of action alleging false arrest, excessive use of force, and civil rightsviolations pursuant to 42 USC § 1983. The Supreme Court denied the aforementioned branch of the plaintiff's motion and granted only that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging civil rights violations pursuant to 42 USC § 1983.

The Supreme Court properly determined that neither the defendants nor the plaintiff was entitled to summary judgment with respect to the cause of action alleging false arrest. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest (see Gisondi v Town of Harrison, 72 NY2d 280, 283; Paulos v City of New York, 122 AD3d 815, 817; Rakidjian v County of Suffolk, 28 AD3d 734, 735). "However, probable cause is a question of law, to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn therefrom" (Fausto v City of New York, 17 AD3d 520, 521; see Fortunato v City of New York, 63 AD3d 880).

Here, the defendants met their initial burden of demonstrating their entitlement to judgment as a matter of law dismissing the cause of action alleging false arrest by establishing, prima facie, that there was probable cause for the plaintiff's arrest through the deposition testimony of Detective Johnson, the arresting officer. Probable cause for a warrantless arrest may be established through hearsay evidence that satisfies the two-pronged Aguilar-Spinelli test (see Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108; People v Ketcham, 93 NY2d 416, 420; People v Oglesby, 121 AD3d 818, 819). That two-part test is met by demonstrating "the reliability of the hearsay informant and the basis of the informant's knowledge" (People v Ketcham, 93 NY2d at 420; People v Oglesby, 121 AD3d at 819). Where "the hearsay informant is a police officer who imparts to fellow officers information gathered while personally participating in or observing an undercover drug transaction" both prongs of that test are generally satisfied (People v Ketcham, 93 NY2d at 420; see People v Washington, 87 NY2d 945, 946-947; People v Petralia, 62 NY2d 47, 51-52; People v Oglesby, 121 AD3d at 820; People v Green, 13 AD3d 646).

Here, Detective Johnson testified that, after receiving a communication from the undercover officer to the effect that the undercover officer had purchased drugs from an individual matching a particular description at a particular location, Detective Johnson arrested the defendant, who matched the description, in proximity to that location. Accordingly, the defendants demonstrated, prima facie, based solely on Detective Johnson's testimony, that Detective Johnson had probable cause to arrest the defendant (see People v Ketcham, 93 NY2d at 420; People v Washington, 87 NY2d at 946-947; People v Petralia, 62 NY2d at 51-52; People v Oglesby, 121 AD3d at 820; People v Green, 13 AD3d 646).

However, in opposition, the plaintiff raised triable issues of fact as to whether there was probable cause for his arrest. Among other things, he raised triable issues of fact as to whether the undercover officer actually participated in a drug transaction as he described in the communication to Detective Johnson (see generally People v Petralia, 62 NY2d at 52 [recognizing that there may be cases when the evidence raises "substantial issues relating to the validity of the arrest," thus warranting evidence from the undercover officer]). Contrary to the defendants' suggestion, " an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest'" (People v Petralia, 62 NY2d at 51, quoting Whiteley v Warden, Wyo. State Penitentiary, 401 US 560, 568). Accordingly, that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging false arrest was properly denied. Further,...