Guntlow v. Barbera

• Citation: 907 N.Y.S.2d 86,76 A.D.3d 760
• Parties: Pauline GUNTLOW, Appellant, v. Marc BARBERA et al., Respondents, et al., Defendant.
• Decision Date: 19 August 2010
• Court: New York Supreme Court Appellate Division

907 N.Y.S.2d 86
76 A.D.3d 760

Pauline GUNTLOW, Appellant,
v.
Marc BARBERA et al., Respondents, et al., Defendant.

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

Aug. 19, 2010.

907 N.Y.S.2d 89

Costello, Shea & Gaffney, L.L.P., New York City (Yanique L. Burke of counsel), for appellant.

Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), for Marc Barbera, respondent.

Rehfuss, Liguori & Associates, P.C., Latham (Jessica A. McClung of counsel), for City of Albany and others, respondents.

Before: MERCURE, J.P., SPAIN, LAHTINEN, MALONE JR. and KAVANAGH, JJ.

MERCURE, J.P.

76 A.D.3d 761

Appeal from an order of the Supreme Court (Connolly, J.), entered April 28, 2009 in Albany County, which granted motions by defendants Marc Barbera, City of Albany, Albany Police Department, Anthony Ryan and Anthony Battuello for summary judgment dismissing the complaint against them.

In July 2006, plaintiff, who was then 68 years old, attended an American Idol concert at the Pepsi Arena, located in the City of Albany. Defendant Marc Barbera, a state trooper who was also attending the concert, had plaintiff escorted from her seat by security and arrested after plaintiff allegedly struck his wife, Alisha Barbera. According to plaintiff, Alisha Barbera and her four-year-old daughter stood up during the concert and thereby obstructed plaintiff's view. Plaintiff contends that Alisha Barbera and her daughter were the only persons standing, and that she merely tapped Alisha Barbera on the shoulder and asked her to sit down. Plaintiff further averred that when she informed the security guards that she had not assaulted anyone, Marc Barbera began "scream[ing] in [her] face" that she had "assaulted his wife," and then flipped open his wallet and told plaintiff that he was a state trooper. Officers from defendant Albany Police Department arrived, including defendants Anthony Ryan and Anthony Battuello, and plaintiff was placed under arrest for harassment in the second degree and endangering the welfare of a child. Plaintiff was taken to an Albany Police Department precinct, where her arrest was processed. She was then shackled to a bench until the concert was over, at which point she was taken back to the Pepsi Arena.

Subsequently, the Albany County District Attorney moved to dismiss the charges against plaintiff in the interest of justice due to the failure of Alisha Barbera to cooperate and "based on the facts and circumstances of [the] case." That motion was granted. Plaintiff then commenced this action alleging negligence, false arrest or imprisonment, assault and battery, malicious

76 A.D.3d 762

prosecution, and claims under 42 USC §§ 1983 and 1985. Supreme Court granted motions by Marc Barbera, Ryan, Battuello, the City and its police department (hereinafter collectively referred to as defendants) for summary judgment dismissing the complaint against them, prompting this appeal. We now modify and reinstate plaintiff's cause of action for deprivation of civil rights under 42 USC § 1983 against Marc Barbera, Ryan and Battuello, and the causes of action for false arrest or imprisonment, assault and battery and malicious prosecution against defendants.¹

907 N.Y.S.2d 90

The elements of a cause of action for false arrest or imprisonment are (1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged ( see Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001]; Broughton v. State of New York, 37 N.Y.2d 451, 456-457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ). An arrest made extrajudicially-that is, without a warrant-is presumptively unlawful, but "[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim" ( Martinez v. City of Schenectady, 97 N.Y.2d at 85, 735 N.Y.S.2d 868, 761 N.E.2d 560, citing Broughton v. State of New York, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310; see Downs v. Town of Guilderland, 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264 [2010]; Wallace v. City of Albany, 283 A.D.2d 872, 873, 725 N.Y.S.2d 728 [2001]; Saunders v. County of Washington, 255 A.D.2d 788, 789, 680 N.Y.S.2d 743 [1998] ). "Probable cause exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed" ( People v. Terry, 2 A.D.3d 977, 978, 768 N.Y.S.2d 516 [2003], lv. denied 2 N.Y.3d 746, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004] [internal quotation marks and citation omitted]; accord. People v. Bell, 5 A.D.3d 858, 859, 773 N.Y.S.2d 491 [2004]; see

76 A.D.3d 763

Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983] ). Whether probable cause existed for an arrest may be decided as a matter of law only where the facts leading to the arrest and the proper inferences to be drawn therefrom are not in dispute ( see Diederich v. Nyack Hosp., 49 A.D.3d 491, 493, 854 N.Y.S.2d 411 [2008], lv. dismissed and denied 11 N.Y.3d 862, 872 N.Y.S.2d 67, 900 N.E.2d 549 [2008]; Orminski v. Village of Lake Placid, 268 A.D.2d 780, 781, 702 N.Y.S.2d 181 [2000] ).

Contrary to the argument of Ryan, Battuello, the City and its police department, probable cause was not established as a matter of law under the Aguilar-Spinelli doctrine. That doctrine provides that "probable cause for a warrantless arrest may be supplied, in whole or in part, through hearsay information [that] satisfies the two-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted" ( People v. Bell, 5 A.D.3d at 859, 773 N.Y.S.2d 491 [internal quotation marks and citations omitted]; see People v. Ketcham, 93 N.Y.2d 416, 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999]; see also Carlton v. Nassau County Police Dept., 306 A.D.2d at 366, 761 N.Y.S.2d 98; Orminski v. Village of Lake Placid, 268 A.D.2d at 781, 702 N.Y.S.2d 181). Nevertheless, "the failure to make a further

907 N.Y.S.2d 91

inquiry when a reasonable person would have done so may be evidence of lack of probable cause" ( Colon v. City of New York, 60 N.Y.2d at 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248; see Carlton v. Nassau County Police Dept., 306 A.D.2d at 366, 761 N.Y.S.2d 98). As these defendants acknowledge, if the information imparted "constitutes [no] more than unsubstantiated rumor, unfounded accusation or conclusory characterization," it will not meet the Aguilar-Spinelli test even if supplied by a reliable informant ( People v. Ketcham, 93 N.Y.2d at 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238).² Moreover, while the "fellow officer rule" permits an arresting officer to act at the direction of another officer "provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest" ( People v. Ramirez-Portoreal, 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] [internal quotation marks and citation omitted] ), probable cause is not established by "unsubstantiated hearsay communication-even when transmitted by a fellow officer" ( People v. Ketcham, 93 N.Y.2d at 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238).

76 A.D.3d 764

Defendants assert that Marc Barbera, Ryan and Battuello had probable cause to arrest plaintiff on charges of harassment in the second degree and endangering the welfare of a child.³ In our view, however, the parties' sharply divergent accounts of the arrest created questions of fact regarding the existence of probable cause. Plaintiff indicated that she merely tapped Alisha Barbera on the shoulder and politely asked her to sit down-conduct that would not fall within the purview of Penal Law § 240.26(1) ( see People v. Bartkow, 96 N.Y.2d 770, 772, 725 N.Y.S.2d 589, 749 N.E.2d 158 [2001] )-while Alisha Barbera testified that plaintiff screamed at her to sit down and then struck her in the lower rib area of her right side. Marc Barbera indicated that he saw plaintiff hit his wife in the ribs and that plaintiff became aggressive and began flailing her arms when he turned to talk to her. One of the two independent eyewitnesses to the incident, however, indicated that plaintiff pushed her hand down on Alisha Barbera's shoulder and that Marc Barbera did not witness the event but was informed of it by his wife. The other eyewitness indicated that plaintiff struck Alisha Barbera with an open hand, but could not state where plaintiff struck her. Both eyewitnesses stated that after either Alisha Barbera or Marc Barbera had a verbal altercation with plaintiff, Marc Barbera left and Alisha

907 N.Y.S.2d 92

Barbera told them that plaintiff was in trouble and would be arrested because Marc Barbera is a state trooper. Plaintiff also testified that she did not react when Marc Barbera turned around to talk to her because she could not hear him.

In addition, we note that Marc Barbera, Ryan and Battuello were not in agreement in their deposition testimony regarding who made the decision to arrest plaintiff. Marc Barbera indicated that he made the decision to arrest plaintiff and informed her that she was under arrest; despite his argument before us that the Albany police did not arrest plaintiff, but merely "processed the arrest" made by Marc Barbera, Ryan testified that he made the ultimate decision to arrest plaintiff; Battuello stated that although Ryan instructed him to arrest plaintiff, the Albany police were merely facilitating the arrest because Marc Barbera had actually arrested plaintiff. Furthermore, assuming without deciding that they made the decision to arrest plaintiff, there is conflicting evidence regarding whether

76 A.D.3d 765

Ryan and Battuello simply relied upon unsubstantiated statements of Marc Barbera that would not meet the Aguilar-Spinelli test. Ryan testified that he decided to arrest plaintiff not based upon...