Delgado v. City of N.Y.

• Decision Date: 27 September 2016
• Parties: Sandra DELGADO, etc., et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents, New York City Police Department, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 46
38 N.Y.S.3d 129
2016 N.Y. Slip Op. 06185

Sandra DELGADO, etc., et al., Plaintiffs–Appellants,
v.
The CITY OF NEW YORK, et al., Defendants–Respondents,

New York City Police Department, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 27, 2016.

38 N.Y.S.3d 130

Law Offices of Arnold E. DiJoseph, P.C., New York (Arnold E. DiJosephand Mitchel Ashleyof counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzoand Deborah A. Brennerof counsel), for the City of New York, respondent.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Patrick J. Lawlessof counsel), for New York City Housing Authority, New York City Housing Police Department and Nicholas Witkowich, respondents.

Ronald P. Berman, New York, for Brian Washington, respondent.

DAVID FRIEDMAN, J.P., ROLANDO T. ACOSTA, DAVID B. SAXE, JUDITH J. GISCHE, TROY K. WEBBER, JJ.

ACOSTA, J.

144 A.D.3d 47

This case gives us the opportunity to emphasize that when an issue is specifically decided on a motion for summary judgment, that determination is the law of the case. As such, the trial court, as well as the parties, are bound by it "absent a showing of subsequent evidence or change of law" (Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept.2012]). Applying this rule to the case at hand, we specifically found in Delgado v. City of New York , 86 A.D.3d 502, 508, 928 N.Y.S.2d 487 (1st Dept.2011)(Delgado I ), that the no-knock search warrant at issue was not valid.

144 A.D.3d 48

Thus, the trial court was bound by that determination absent the introduction of subsequent evidence to show otherwise. The evidence that was introduced at trial on the validity of the warrant, however, was not significantly different from what was previously before the court on the motion for summary judgment. Accordingly, the trial court erred in deeming the warrant valid and granting defendants' motion for a directed verdict in their favor.

This action arises from the execution of a "no knock" search warrant at the Delgado plaintiffs' NYC Housing Authority (NYCHA) apartment in the Bronx sometime after midnight. Plaintiff mother and her six children were sleeping in their two-bedroom apartment when a team of about 12 officers knocked down the door and entered the apartment. The warrant was issued on May 19, 1994, based on an affidavit prepared by police officer Robert Masiello. Massiello based his assertions upon information provided by a confidential informant, alleged to be known to him, who stated that s/he had been inside the apartment for purposes of obtaining vials of crack to sell on the street. The informant gave Massiello instructions on how to get to the apartment. S/he told Masiello that s/he last visited the apartment the night before and that while in the apartment, "Green Eyes," a light skinned Hispanic man about five feet eight inches tall, took a brown bag from the bedroom, went to the kitchen and removed a "row of vials." The informant also saw additional vials of crack and saw Green Eyes remove a "9 millimeter automatic tech" and a "9 semi-automatic machine pistol" from the bedroom and place them on the kitchen table.

The same date the warrant was issued, defendant police officer Brian Washington completed a follow up report on his debriefing of the informant, and noted that the informant stated that a Hispanic woman, known as "Shorty," and a small female infant also resided in the apartment, which had two bedrooms facing the back of the building. When the search warrant was executed, neither Green Eyes nor Shorty was found in the apartment. This action for personal injury and property damage ensued.

38 N.Y.S.3d 131

This is the second time this case has come up for our review. In Delgado I, this Court was "disquieted by the manner in which the search was executed. Upon entering the apartment, the police encountered not 'Green Eyes' and 'Shorty' with an infant, as described by the informant, but plaintiff mother and

144 A.D.3d 49

her six sleeping children. At that point, a reasonable police officer should have realized that an error had been made" (id. at 510, 928 N.Y.S.2d 487). Instead, the officers pushed some of the plaintiffs down to the ground and placed guns to their heads, handcuffed all of the occupants except for the two youngest, and held them "in the hallway ... for three hours while the officers searched the apartment, overturning furniture, slashing sofas and mattresses, and destroying property in the bedrooms including the children's posters and baseball cards" (id. at 505–506, 928 N.Y.S.2d 487).

The Court also modified the order (Patricia Williams, J.), entered June 13, 2008, which, among other things, had granted so much of defendants' summary judgment motions as sought dismissal of the complaint against the individual officers who merely executed the warrant, on the ground of qualified immunity, but held that such protection did not apply to defendants Nicholas Witkowich and Brian Washington, the officers who initiated the issuance of the search warrant (id. at 510, 928 N.Y.S.2d 487). This Court modified the order to the extent of dismissing the action against defendant "James" Masiello, who had been improperly named, since "Robert" Masiello was the officer involved in obtaining the search warrant, and dismissing the 42 U.S.C. § 1983claim against NYCHA (id. at 511, 928 N.Y.S.2d 487).

In affirming so much of the order as denied the defendants' motions to dismiss the complaint, this Court found that the police had not satisfied either of the two prongs of the Aguilar–Spinelli test (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964]; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969]), for evaluating hearsay information provided by an undisclosed informant (Delgado I, 86 A.D.3d at 507–509, 928 N.Y.S.2d 487). "The police had no basis to believe that the [informant] was reliable ... [H]e had never before provided information leading to an arrest" (id. at 508, 928 N.Y.S.2d 487).

The Court found that "[o]n this record, ... we cannot state that the informant's statements were sufficiently contrary to his or her penal interest so as to establish reliability under the first prong of Aguilar–Spinelli " (id. [citation omitted] ). This Court further found that "no corroborative verification whatsoever was performed by the police prior to issuance of the warrant" (id. at 509, 928 N.Y.S.2d 487). This Court also noted that the record did not indicate whether "the officers conducted an investigation to corroborate the information ... prior to seeking a search warrant" (id. at 504, 928 N.Y.S.2d 487).

This Court also found that the second prong of Aguilar–Spinelli, "the informant's basis of knowledge, was never

144 A.D.3d 50

established by corroborative details of such quantity and quality as to be indicative of criminality" (id. at 509, 928 N.Y.S.2d 487[citation omitted] ).

In finding that Witcowich and Washington, who initiated the issuance of the search warrant, were not entitled to qualified immunity, this Court found that they "did little, if anything, to establish the reliability of the [informant] or the information supplied by him or her (id. at 510, 928 N.Y.S.2d 487).

Prior to trial, plaintiffs moved, in limine, to preclude defendants from arguing or presenting evidence indicating that they

38 N.Y.S.3d 132

had a sufficient basis for obtaining or executing the search warrant, on the ground that this Court had already found that the warrant was not properly issued, which determination was the "law of the case." That motion was denied.

The case proceeded to trial, where evidence regarding the issuance of the warrant was introduced. Specifically, the trial evidence included testimony that an assistant district attorney had interviewed the confidential informant and prepared Officer Masiello's affidavit, which was used to obtain the warrant, testimony that the informant appeared before, and was likely questioned by, the court, prior to the issuance of the warrant, and testimony that surveillance and a controlled buy were not feasible and testimony that the informant's statement as to purchasing drugs with intent to sell them implicated him in a more serious crime than that for which he had been arrested.

At the close of evidence, the court granted the City, NYCHA, Witkowwich and Washington's motions for a directed verdict, stating that it could not "apply a law [or decision] that [it thought was] incorrect" [referring to Delgado I ], and that Delgado I was decided "in a vacuum." We now reverse.

In Delgado I, we specifically concluded that the no-knock search warrant was not valid. Our conclusion was not "obiter dictum," as the dissent contends.

We did not find that defendants failed to establish a prima facie case as to the validity of the warrant or that there were issues of fact regarding the issue.¹ As such, our...