Frank A. v. Chemung Cnty.

• Decision Date: 26 November 2014
• Docket Number: 518063
• Citation: 997 N.Y.S.2d 790,122 A.D.3d 1181,2014 N.Y. Slip Op. 08277
• Parties: Frank A. CICCI, Appellant, v. CHEMUNG COUNTY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 1181

997 N.Y.S.2d 790

2014 N.Y. Slip Op. 08277

Frank A. CICCI, Appellant

v.CHEMUNG COUNTY et al., Respondents.

518063

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

Nov. 26, 2014.

Schlather, Stumbar, Parks & Salk, LLP, Ithaca (David M. Parks of counsel), for appellant.

Hiscock & Barclay, LLP, Elmira (Jeremy J. Hourihan of counsel), for Chemung County and others, respondents.

Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for Village of Elmira Heights and others, respondents.

Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and LYNCH, JJ.

Opinion

LAHTINEN, J.

Appeal from an order of the Supreme Court (O'Shea, J.), entered December 4, 2012 in Chemung County, which, among other things, granted defendants' motion for summary judgment dismissing the complaint.

Ryan Evans called 911 to report that his mother was in a vehicle with an intoxicated individual, Nicholas Cicci. During the course of the call, Cicci threatened to shoot any responding police, which Evans relayed to the 911 operator. Defendant Richard L. Matthews Jr., a Chemung County Sheriff's Deputy, was the first officer to respond and, by such time, Cicci was standing in the yard of the home where he resided with his parents, including plaintiff, his father. Evans was still at the scene and confirmed to Matthews that Cicci was the person threatening to shoot police. As Matthews approached and spoke to Cicci, he observed that Cicci was visibly upset, cursing at him and his anger escalating. Matthews obtained Cicci's permission to search him for weapons, but before he reached the area where a gun would typically be located, Cicci suddenly shoved or struck Matthews and attempted to flee to the house. Matthews informed Cicci that he was under arrest and directed him to stop, which Cicci did not do.

Matthews pursued Cicci to the back door of the house where Cicci entered and apparently locked or otherwise blocked the door. Two local police officers, defendants David J. Noonan and Steven Pickering, had arrived to assist in the situation. Matthews and the two officers forced their way into plaintiff's house to arrest Cicci. Plaintiff was reportedly yelling at the police and allegedly physically interfered with the arrest of Cicci, resulting in plaintiff's arrest. Although not clear from the record, it appears that most, if not all, criminal charges against plaintiff were eventually dismissed. He commenced this action alleging, among other things, battery, trespass and a claim under 42 U.S.C. § 1983 based upon the warrantless entry into his home. Defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for partial summary judgment. Supreme Court granted defendants' motion and dismissed the complaint. Plaintiff appeals.

Plaintiff argues that it was error to dismiss the causes of action premised upon the warrantless entry into his home. We are unpersuaded. Police officers performing their governmental duty are entitled to qualified immunity “as long as their actions did not violate the plaintiff's clearly established legal rights” (Colao v. Mills, 39 A.D.3d 1048, 1050, 834 N.Y.S.2d 375 [2007] ; see Baez v. City of Amsterdam, 245 A.D.2d 705, 706–707, 666 N.Y.S.2d 312 [1997], lv. denied 91 N.Y.2d 810, 671 N.Y.S.2d 714, 694 N.E.2d 883 [1998] ). “[A] warrantless search is per se unreasonable and violative of the 4th Amendment unless it falls within a few enumerated exceptions” (Colao v. Mills, 3 A.D.3d 702, 704, 770 N.Y.S.2d 474 [2004] ). Initially, we note that where, as here, an individual is arrested outside a home for conduct witnessed by an officer (i.e., Cicci suddenly shoving or striking Matthews during a permitted search), the individual “may not [then] thwart [an] otherwise proper arrest ... by escaping into his [or her] residence” (People v. Wheatley, 55 A.D.3d 947, 948, 865 N.Y.S.2d 381 [2008], lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009] [internal quotation marks and citation omitted] ). Moreover, defendants submitted sufficient unrebutted proof to establish the exigent circumstances exception for a warrantless entry (see generally People v. McBride, 14 N.Y.3d 440, 445, 902 N.Y.S.2d 830, 928 N.E.2d 1027 [2010], cert. denied 562 U.S. 931, 131 S.Ct. 327, 178 L.Ed.2d 212 [2010] ; Colao v. Mills, 39 A.D.3d at 1051, 834 N.Y.S.2d 375 ). Proof in such regard included the reported statements that Cicci planned to shoot police, the identification of Cicci at the scene and confirming that he had made such threats, Matthews' observation of Cicci's highly agitated state and apparent intoxication, Cicci's physical action stopping Matthews' search when nearing the area where weapons would normally be concealed, and his immediate flight to a place from which he could safely carry out his threat against responding officers as well as procure a weapon if he did not already have one.

We do, however, find a factual issue regarding plaintif...