DC v. City of N.Y.
| Decision Date | 12 March 2015 |
| Docket Number | No. 350027/12.,350027/12. |
| Citation | 13 N.Y.S.3d 849 (Table) |
| Parties | DC, An Infant Under the Age of 14 Years by her Mother and Natural Guardian and Mother, Laticia COXUM and Laticia Coxum; TC, An Infant Over the Age of 14 Years, by His Natural Guardian and Mother, Dierdre Coxum and Diedre Coxum, Plaintiff(s), v. The CITY OF NEW YORK, Defendant(s). |
| Court | New York Supreme Court |
Irom, Wittels, Freund, & Serra, PC, for Plaintiffs.
New York City Law Department, for Defendants.
In this action, inter alia, for alleged false arrest, false imprisonment, and excessive force, defendant moves seeking an order granting it summary judgment, thereby dismissing the complaint. Saliently, defendant avers that insofar as plaintiffs DC and TC were arrested based on ample probable cause, summary judgment with respect to their claims for false arrest and false imprisonment is warranted. Moreover, defendant submits that insofar as neither DC nor TC sustained any physical injury, summary judgment over their claim for excessive force-pleaded herein as one for personal injuries-is warranted. Plaintiffs oppose the instant motion solely on grounds that extant questions of fact on the issue of probable cause preclude summary judgment in defendant's favor.
For the reasons that follow hereinafter, defendant's motion is hereby granted.
The instant action is for false arrest, false imprisonment, excessive force, and negligent hiring and the retention of police officers. Within their complaint, plaintiffs allege that on March 12, 2011, DC and TC, then infants, were falsely arrested, falsely imprisoned and injured while in front of 1663 Garfield Street, Bronx, N.Y. (1663). Plaintiffs allege that on the aforementioned date, both DC and TC were arrested by members of the New York City Police Department (N.Y.PD), which officers were acting within the scope of their employment with the defendant. Thereafter, DC and TC were taken to the 43rd Precinct where they were detained. As a result of the foregoing, plaintiffs alleged that DC and TC sustained injury. Plaintiffs LATICIA COXUM (Laticia), DC's mother, and DEIDRE COXUM (Deidre), TC's mother, assert derivative loss of services claims.
Defendant's motion is hereby granted insofar as the evidence tendered establishes, beyond any factual dispute, that DC and TC were arrested upon being positively identified by an individual who claimed that he had been assaulted and robbed by DC, TC and others. As such, the police officers employed by the municipal defendant effectuated the arrest based on ample probable cause. Moreover, to the extent that plaintiffs' claims for personal injuries can be deemed claims for excessive force, the evidence submitted establishes, again, beyond factual dispute, that neither DC nor TC had any force used against them and that at best the instant claim is premised on the manner in which they were handcuffed, which on this record, does not rise to an actionable claim for excessive force.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005] ; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 A.D.2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009] ).
Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979] [internal citations omitted] ). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 A.D.2d 269, 270 [1st Dept 1999] ).Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 A.D.2d 811, 811 [4th Dept 2000] ),[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v. Blancato, 267 A.D.2d 152, 152 [1st Dept 1999] ; Perez v. Bronx Park Associates, 285 A.D.2d 402, 404 [1st Dept 2001] ). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [1960] ).Whenever an arrest and imprisonment arise without a warrant, the presumption is that such arrest and imprisonment were unlawful (Smith v. County of Nassau, 34 N.Y.2d 18, 23 [1974] ). A plaintiff seeking to establish a cause of action for false arrest and/or imprisonment must establish 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 (id. at 22 ; Hernandez v. City of New York, 100 AD3d 433, 433 [1st Dept 2012] ; Martinez v. City of Schenectady, 97 N.Y.2d 78, 85 [2001] ; Broughton v. State, 37 N.Y.2d 451, 457 [1975] ; Rivera v. County of Nassau, 83 AD3d 1032, 1033 [2d Dept 2011] ). When confronted with such a claim and concomitant proof, the defendant can nevertheless prevail if he proves legal justification for the arrest and imprisonment, which “may be established by showing that the arrest was based on probable cause” (Broughton at 458; Martinez at 85; Rivera at 1033). While post-arrest judicial participation will not validate an unlawful arrest, evidence of a subsequent arraignment or indictment is, in fact, proof of the presence of probable cause at the time of the arrest (Broughton at 457; Hernandez at 433–434). Moreover, a conviction which survives appeal is also conclusive evidence that probable cause existed at the time of the arrest (id. ). Conversely, a subsequent dismissal, acquittal or reversal on appeal is proof tending to establish the absence of probable cause at the time of the arrest (id. ).
Probable cause, also defined as reasonable cause, exists [w]here an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise (Smith at 24 [internal quotation marks omitted] ). A review of CPL § 70.10(2), which defines reasonable cause, evinces that provides that reasonable cause is established not only when there is belief that the arrestee has committed a felony, but when he has committed any offense under our Penal Law. Specifically, CPL § 70.10(2) states that [r]easonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.
Accordingly, what is required for an arrest is not “proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been ... committed” (Jenkins v. City of New York, 2 AD3d 291, 292 [1st Dept 2003] ; People v. McRay, 51 N.Y.2d 594, 602 [1980] ...
To continue reading
Request your trial