Lopez v. City of New York

• Decision Date: 17 October 1995
• Docket Number: No. 93 Civ. 6516 (LAK).,93 Civ. 6516 (LAK).
• Citation: 901 F. Supp. 684
• Court: U.S. District Court — Southern District of New York
• Parties: Margarita LOPEZ and Joyce Ravitz, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.

901 F. Supp. 684

Margarita LOPEZ and Joyce Ravitz, Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.

No. 93 Civ. 6516 (LAK).

United States District Court, S.D. New York.

October 13, 1995.

Order Denying Reconsideration October 17, 1995.

COPYRIGHT MATERIAL OMITTED

James I. Meyerson, New York City, for Plaintiffs.

Georgia Pestana, Sara Edelman, Assistant Corporation Counsel, Paul A. Crotty, Corporation Counsel of the City of New York, New York City, for Defendants.

KAPLAN, District Judge.

This is an action pursuant to 42 U.S.C. § 1983 and State law by two members of Community Board No. 3 ("CB3") against Luis Soler, the chairperson of the Board, Captain Guy R. Sino and Officer Tricia Fried of the New York City Police Department, and the City of New York. The gravamen of the complaint is that Soler caused Sino to arrest and maliciously prosecute the plaintiffs, that Fried subjected them to unlawful strip searches at the precinct house, and that the City is responsible on various theories. Defendants move for partial summary judgment dismissing the bulk of the complaint. Plaintiffs move for leave to amend in order to clarify certain of their contentions. The motion for leave to amend is unopposed and therefore granted and the proposed pleading deemed interposed. As the Third Amended Complaint does not materially alter any of the issues presented on this motion, the motion is treated as being directed to the Third Amended Complaint.

Facts

While certain of the details are in dispute, the overall context from which this action arises is not.

Plaintiffs Margarita Lopez and Joyce Ravitz both have been members of CB3, Lopez for most of the period since 1982 and Ravitz since 1991. Defendant Soler has been a member since 1986 and chairperson since 1992.

Meetings of CB3 typically began with a one-hour public session during which members of the public were permitted to speak briefly on a first-come-first-served basis provided they signed up in advance. The public session was followed by an executive session at which Board members discussed and voted upon various issues.

On June 22, 1993, CB3 held a meeting at which there was to be a discussion concerning a conversion of the "Glass House," an abandoned factory occupied by squatters, into low-income housing for people with AIDS. Soler, at least, was aware in advance that the issue might be controversial, and there was a significant police contingent present at the meeting.

The Glass House was discussed during the public meeting, which began at about 6:30 p.m. At about 7:30 p.m., Soler took the microphone from a speaker and called the public session to a close despite the presence at the microphone of three or four persons waiting to speak. At that point, squatters sitting toward the rear of the audience began to rush the stage, shouting comments to the general effect that the public session should continue. The police, who had been at the rear of the room, then descended to the front, forming a line in front of the stage and attempting to move the crowd out of the auditorium.

Matters spun somewhat out of control. The dais at which members of the executive board of CB3 sat was overturned. Some members of the audience stood up carrying signs with various squatter slogans. Others began yelling and shouting. Fire alarms went off. Lights were turned on and off. Stink bombs were thrown.

The parties disagree as to exactly what Lopez and Ravitz did amidst this furor. It is clear, however, that both were among eleven individuals arrested. Captain Sino was the arresting officer, and both claim that Soler directed Sino to arrest them.

When Lopez and Ravitz arrived at the police station, they were fingerprinted, photographed, asked to provide pedigree information, and, at various times, placed in a holding cell. Each was taken into a utility closet to be searched by Officer Fried, a female officer. Each was told to remove her outer clothing and to expose her undergarments. Officer Fried then searched plaintiffs' bodies in an allegedly intrusive and unjustified manner. Officer Fried conducted the searches pursuant to a policy authorizing searches of arrestees upon their arrival at the precinct. Plaintiffs later were issued Desk Appearance Tickets ("DATs") charging each of them with inciting riot and resisting arrest under N.Y. PENAL CODE §§ 240.08 and 205.30, Class A misdemeanors. Both plaintiffs were released at approximately 1 a.m. on June 23, 1993.

Subsequently, the District Attorney of New York County declined to prosecute the case, stating in a press release that prosecution was unwarranted because the charges could not be proven beyond a reasonable doubt.

Plaintiffs' Claims and the Motion

Plaintiffs claim that Soler held animosity toward them prior to the night of the riot at the CB3 meeting and that he had "vowed to get" Ravitz. They contend that the Board planned to hold an election for the chair position later that night and that Lopez and Ravitz did not support Soler. They assert that Soler would have lost the election had it been held on June 22, 1993 and that the termination of the meeting resulted in a post-ponement that served Soler's interests. They contend also that Soler directed the police to arrest them, despite the lack of any basis for such arrests.

The Third Amended Complaint contains thirteen causes of action. The first and second charge Soler and Sino with false arrest under State law and Section 1983, respectively. The third and fourth charge Soler with malicious prosecution, again respectively under State law and Section 1983. The fifth cause of action alleges that Soler's actions violated the First Amendment. The sixth and seventh are brought against Soler and assert that his actions intentionally inflicted emotional distress on the plaintiffs in violation of State law and Section 1983, respectively. The eighth and ninth causes of action allege malicious abuse of criminal process by Soler in violation of State law and Section 1983. The tenth cause of action seeks to hold the City responsible for the actions of the other defendants on the basis of respondeat superior. The eleventh cause of action is brought against Fried and charges that her searches of the plaintiffs violated Section 1983 and their Fourth Amendment rights. The twelfth and thirteenth causes, which were added by the Third Amended Complaint, seek to hold the City responsible for Fried's searches on respondeat superior and Monell grounds, respectively.

Defendants move for partial summary judgment dismissing the false arrest claims with respect to Soler, the malicious prosecution, abuse of process, and intentional infliction of emotional distress claims; and the unlawful search claim against Fried. The City's reply memorandum seeks dismissal of the recently added twelfth and thirteenth causes of action. Inasmuch as all parties have treated those issues as properly before the Court, the Court will consider them as well. The motion does not seek dismissal of the First Amendment claim against Soler, the false arrest claim against Sino, or the tenth cause of action against the City except insofar as the dismissal of the underlying claims against the alleged tortfeasors would require dismissal of that respondeat superior claim against the City.

Discussion

False Arrest

Defendants seek dismissal of the false arrest charges against Soler, arguing that Soler did not initiate the arrests.

A defendant who is not an arresting officer may be liable for false arrest if the defendant instigated an arrest by a police officer, knowing that there was no probable cause to believe that plaintiff committed a crime. However, if the officer decided, in the exercise of the officer's own discretion, to make the arrest, then a person providing information to the officer is not liable. Rosario v. Amalgamated Ladies Garment, Etc., 605 F.2d 1228, 1248 (2d Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); Donnelly v. Morace, 162 A.D.2d 247, 248, 556 N.Y.S.2d 605, 607 (1st Dept.1990); Smalls v. Board of Education, 114 Misc.2d 109, 117, 450 N.Y.S.2d 987, 992 (Civ.Ct. Queens Co.1982); cf. PROSSER AND KEETON ON TORTS § 11, at 52 (5th ed. 1984) (hereinafter PROSSER).

In seeking dismissal, defendants maintain that the arresting officer, Captain Sino, exercised his own discretion in deciding to arrest plaintiffs. Plaintiffs allege that they observed Soler direct Sino to make the arrest. Thus there is a material factual dispute and the Court denies summary judgment on this claim.

Malicious Prosecution

Plaintiffs' malicious prosecution claims under both Section 1983 and State law are directed against Soler. Plaintiffs accuse him of maliciously causing DATs to be issued to them without probable cause.

The elements of a malicious prosecution claim under New York law and Section 1983 are the same because the elements of a Section 1983 claim are borrowed from State law. Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir.1994). Plaintiffs must establish that: (1) the defendant commenced criminal proceedings against them; (2) the proceedings terminated in plaintiffs' favor; (3) no probable cause existed for the proceedings; and (4) the defendant acted with actual malice. Cook, 41 F.2d at 78; Russo v. State of New York, 672 F.2d 1014, 1018 (2d Cir.1982).

The first element of the malicious prosecution claim has been satisfied, as the issuance of a DAT qualifies as the commencement of a criminal proceeding for purposes of a malicious prosecution claim. Rosario, 605 F.2d at 1250; accord, Snead v. Aegis Security Inc., 105 A.D.2d 1059, 482 N.Y.S.2d 159 (4th Dept.1984). There plainly are disputed issues of fact as to the existence of probable cause and malice. Hence, the defendants are entitled to dismissal of the malicious prosecution claim only if the District Attorney's declination of prosecution constituted a favorable termination of the proceedings commenced by the issuance of the DATs.

The...