Corse v. Carthage
| Decision Date | 27 December 2021 |
| Docket Number | 601867/20,Seq. No. 4 |
| Citation | 2021 NY Slip Op 33723 (U) |
| Parties | ERICK CORSE, Plaintiff(s), v. RUSSELL CARTHAGE, ET AL, Defendant(s). |
| Court | New York Supreme Court |
Unpublished Opinion
The following numbered papers read on this motion by defendants The County of Nassau, The Nassau County Department of Social Services, and Nassau County Police Department for summary judgment.
NUMBERED
Notice of Motion-Affidavits-Exhibits..............................
EF 55 - 69
Answering Affidavits-Exhibits........................................
EF 84 - 86
Upon the foregoing cited papers, and after Microsoft Teams conference, it is ordered that the motion by defendant The County of Nassau ("County"), The Nassau County Department of Social Services ("NCDSS"), and Nassau County Police Department ("NCPD")(collectively "Nassau Defendants") for summary judgment, is determined as follows:
Plaintiff commenced this action to recover for injuries he allegedly sustained on April 8, 2019, when he was assaulted by defendant Russell Carthage at the premises located at 186 East Pennywood Avenue, Freeport, New York (the "Premises"). Plaintiff was a resident at a shelter known as Inspiration House that is operated by defendant HDDIC, Inc. ("HDDIC") at the Premises, though it is unclear whether plaintiff was permitted to be at the Premises at the time of the altercation. Carthage was a maintenance worker employed by HDDIC. Following the altercation plaintiff was arrested by the NCPD based upon a complaint by Carthage, which action was ultimately dismissed on June 4 2019. The Nassau Defendants now move for summary judgment on the issue of liability.
Initially the Court notes that defendants NCPD and NCDSS are merely administrative arms of the municipality of the County, do not have a separate legal identity apart from the County, and therefore cannot be sued (see Panchitkaew v Nassau County Police Dept., 2018 WL 3193214, *3, 2018 U.S. Dist LEXIS 108395, *6 [ED NY, June 27, 2018, No. 18-CV-00956 (JMA)(SIL)]; Rose v County of Nassau, 904 F.Supp.2d 244, 247 [EDNY 2012]). Thus, NCPD and NCDSS are entitled to judgment as a matter of law dismissing the causes of action asserted against them, and of the Nassau Defendants, only the County remains.
The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; see also Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). Only when the movant satisfies its prima facie burden will the burden shift to the opponent "to lay bare his or her proof and demonstrate the existence of triable issues of fact" (Alvarez, 68 N.Y.2d at 324; see also Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Chance v Felder, 33 A.D.3d 645, 645-646 [2006]).
In support, the County submits, among other things, the deposition testimony of plaintiff, and Russell Bramwell Executive Director of HDDIC, and Steven Abruzzo, a detective with the NCPD. The County also relies upon a written statement signed by Carthage, which it states in reply was inadvertently not attached as an exhibit to the motion. However, the existence of the statement and relevant quotations from it were included in the Statements of Material Facts pursuant to 22 NYCRR § 202.8-g, and admitted by plaintiff in his Counter Statement of Facts, and the statement was submitted and relied upon by both plaintiff in opposition and the County in reply. In light of the Court's interest in making determinations on the merits and of judicial economy, the statement will be considered.
Plaintiff's first and second causes of action are for negligence and negligent hiring, supervision, and retention. Plaintiff alleges that the County had a duty to protect tenants at the Premises from being attacked by Carthage, that it should have had notice of Carthage's violent propensities, and that it failed to properly interview and investigate Carthage before hiring him. As it is undisputed that Carthage was an employee of HDDIC which operated Inspiration House, and not employed by the County, plaintiff's negligence cause of action, and cause of action for negligent hiring supervision, and retention against the County must be dismissed.
Similarly, plaintiff s third cause of action for negligent infliction of emotional distress must also be dismissed. Plaintiff alleges that the County had a duty to protect tenants from harm and risk of injury at the premises by their employees. Since the County did not employ Carthage or operate Inspiration House, it did not owe a duty to plaintiff, and in the absence of a breach of duty, the cause of action for negligent infliction of emotional distress must fail (see Sacino v Warwick Vol. Cent. School Dist., 138 A.D.3d 717, 719 [2016]).
The next claim asserted against the County is plaintiff s eighth cause of action for respondeat superior. The doctrine of respondeat superior renders an employer vicariously liable for a tort committed by its employee while acting within the scope of employment (see Chuchuca v Chuchuca, 67 A.D.3d 948, 949 [2009]). As Carthage was not in the employ of the County, plaintiffs respondeat superior claim is also dismissed.
Plaintiffs ninth and tenth causes of action claim false arrest and malicious prosecution. The elements of a cause of action for false arrest or false imprisonment are: (1) defendant intended to confine plaintiff; (2) plaintiff was aware of the resulting confinement; (3) plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged (see Rivera v County of Nassau, 83 A.D.3d 1032, 1033 [2011]). The elements of a cause of action for malicious prosecution are: (1) commencement of a criminal proceeding; (2) termination in favor of the accused; (3) the absence of probable cause; and (4) the action was commenced out of actual malice (see Id).
The existence of probable cause is a complete defense to claims of false arrest, false imprisonment, and malicious prosecution (see Martinez v City of Schenectady, 97 N.Y.2d 78, 85 [2001]; Paulos v City of New York, 122 A.D.3d 815, 817 [2014]). Probable cause does not require proof sufficient to warrant a conviction but merely sufficient information to support a reasonable belief that an offense has been committed by the suspected individual (see Shaw v City of New York, 139 A.D.3d 698, 699 [2016]). Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest (see Id; Nasca v Sgro, 130 A.D.3d 588, 589 [2015]). A victim's report is insufficient only if there are materially impeaching circumstances which would cause a reasonable person to inquire further (see Silverstein v New York City Police Dept., 167 A.D.3d 961, 963 [2018]). Mere denial by the accused does not constitute materially impeaching circumstances or grounds for questioning the complainant's credibility so as to raise a question of fact as to probable cause (see Medina v City of New York, 102 A.D.3d 101, 105 [2012]).
Here the County established its entitlement to judgment as a matter of law on the causes of action alleging false arrest and malicious prosecution. The record shows the police were summoned to Inspiration House as a result of the altercation. Carthage was interviewed and signed a statement that plaintiff pulled a razor blade out and slashed him, and that he punched plaintiff for fear of further injury to himself. Carthage had a cut on his finger corroborating his account of the altercation, identified plaintiff as the perpetrator, and asked that he be arrested. This information, provided by an identified citizen accusing another individual of a specific crime, is...
To continue reading
Request your trial