Holian v. City of Long Beach

• Decision Date: 03 August 2021
• Docket Number: Index 612490/18
• Citation: 2021 NY Slip Op 33298 (U)
• Court: New York Supreme Court
• Parties: KEVIN HOLIAN and DEBRA HOLIAN, Plaintiffs, v. CITY OF LONG BEACH, CITYOF LONG BEACH POLICE DEPARTMENT, MICHAEL TANGNEY, and POLICE OFFICER KRAMER, Defendants. Motion Seq, Nos. 001 & 002

2021 NY Slip Op 33298(U)

KEVIN HOLIAN and DEBRA HOLIAN, Plaintiffs,
v.
CITY OF LONG BEACH, CITYOF LONG BEACH POLICE DEPARTMENT, MICHAEL TANGNEY, and POLICE OFFICER KRAMER, Defendants.

Motion Seq, Nos. 001 & 002

Index No. 612490/18

Supreme Court, Nassau County

August 3, 2021

Unpublished Opinion

Submission Date: 3/25/21

HON. ROBERT A, MCDONALD JUSTICE

The following papers read on this motion:: NYSCEF Doc. Nos.

Notice of Motion (Seq. 001).............................. 18

Affirmation in Support with Exhibits................ 19, 20

Notice of Cross Motion, with Affirmation and Affidavit in Support (Seq. 002) and Opposition to Motion (Seq 001).................. 23

Supporting Exhibits................. 24- 35

Reply Affirmation (Seq. 001) and Affirmation in Opposition (Seq. 002)..............................., .., 36

Reply Affirmation (Seq. No. 002)......, ............ 37

Relief Requested

Defendants move this Court for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing the instant action (seq. 001). Plaintiffs cross-move for an order granting leave to amend their notice of claim pursuant to General Municipal Law § 50-e(6) to add a claim for loss of consortium on behalf of plaintiff Debra Holian (seq.0Q2).The parties submit respective reply affirmations.

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Background

The plaintiffs initiated this action to recover for personal injuries sustained on December 19, 2017, when an incident occurred between plaintiff Kevin Holian and defendant Michael Tangney, At the time, Mr. Tangney was employed as commissioner of the Long Beach Police Department. The plaintiffs allege that, while Mr. Tangney was driving an unmarked civilian vehicle behind Mr. Holian's vehicle, Mr. Tangney began honking and yelling m what appeared to be a fit of road rage. Mr. Holian pulled his vehicle over, exited the vehicle and approached the vehicle, at which point lie claims Mr. Tangney threatened to shoot him unless he returned to his vehicle. Mr. Holian further claims that when he reached for his drivers license and registration, Mr, Tangney punched him in the face. Mr. Tangney then called Police Officer Kramer, who issued Mr. Holian a summons for failing to stop at a stop sign. The plaintiffs allege that Officer Kramer initially denied the presence of Mr. Tangney at the scene as well as the presence of blood on Mr. Holian's face.

An article was ultimately published about the above incident M Newsday, wherein Mr, Tangney responded to these allegations by saying "I will be vindicated and I hope [Mr. Holian] is prosecuted for filing a false statement."

Mr. Holian was ultimately found "not guilty" of the traffic infraction following a trial, where both he and Mr. Tangney testified, The plaintiffs allege causes of action sounding in assault and battery, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, negligent infliction of emotional distress, civil rights violations pursuant to 42 USG § 1983, negligent hiring and retention, municipal liability, defamation, and loss of consortium.

Summary Judgment Standard

It is well established that the proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of Tact (Alvarez v. Prospect Hosp., 68 N.Y.2d320; Winegrad v. New York Univ. Med. Ctr,, 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557). Only if the burden is met does it shift to the opposing party to proffer evidence in admissible form raising a triable issue of fact (Alvarez, supra; Zuckerman, supra).

The court's function on this motion for summary judgment is issue finding rather than issue determination (S/Z/maw v. Twentieth Century Fox Film Corp., 165 N.YS.2d 498). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Roiuba Extruders v. Ceppos, 413 N.Y.S.2d 141). Thus, when the existence of a an issue Of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 200N.Y.S.2d 627). The role of the court is to determine if bonafide issues of fact exist, and not toresolve issues of credibility (Gaither v. Saga Corp. , 203 A.D.2d.239; Black v. Chittenden, 69 N.Y.2d 665), Evidence must be viewed in the light most favorable to the nonmoving party

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(Gonzalez v. Metropolitan Life Insurance Company, 269 A, D_f2d. 495), The nonmoving party's evidence must be accepted as true and the nonmoving party is entitled to every favorable inference which can reasonably be drawn from the evidence (Wong v. Tang, 2A.D.3d 840; Farrukh v. Board of Education of the City of New York, 227 A.D.2d 440).

As a preliminary matter, the plaintiffs consent to the dismissal of their claims against the City of Long Beach Police Department.

Assault and Battery - First Cause of Action

"To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact" (Cayruth v. City of Mount Vernon 188 A.D.3d 1139, quoting Cotter v, Summit Sec. Servs., Inc., 14 A.D.3d475). "To recover damages for battery, aplaintiff must prove that there was bodily contact, made with intent, and offensive in nature" (Cayruth, supra, quoting Cotter, supra).

While the defendants seek dismissal of the plaintiffs' complaint in its entirety, no specific argument is set forth with regard to plaintiffs' first cause Of action sounding in assault and battery. Given the allegations that Mr; Tangney threatened to shoot Mr: Holian before proceeding to punch him in the face, the defendants are not entitled to judgment as a matter of law with regard to these claims (see Cayruth, supra; see also Winegrad, supra).

False Imprisonment- Second Cause of Action

To prevail on a cause of action to recover damages for false arrest or imprisonment, the plaintiff must demonstrate that the defendant intended to confine me plaintiff, that the plaintiff was conscious of the confinement, that the plaintiff did not consent to the confinement and that the confinement was not privileged" (Shaw v. City of New York, 139 A.D.3d 698, quoting Torres v. Jones, 26 N.Y.3d 742; see also Bernard v. United States, 25 F.3d 98).

The defendants argue that the mere service of a traffic summons did not restrict Mr, Holian freedom and that traffic tickets are not a seizure under the Fourth Amendment. As such, the defendants argue the plaintiffs' allegations therefore cannot form the basis for a false arrest cause of action (see Santoro v. Town of Smithtown, 40 A.D.3d 736). However, as noted by the plaintiffs in their opposition papers, a stop is a limited seizure (see People v. Harrisori, :57 N.Y.2d 470). Further, the circumstances here involve more than "the mere...