Nasca v. Sgro

• Decision Date: 01 July 2015
• Docket Number: 2013-04626
• Citation: 130 A.D.3d 588,13 N.Y.S.3d 188,2015 N.Y. Slip Op. 05650
• Parties: Dean NASCA, appellant, v. Christina SGRO, et al., respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 588

13 N.Y.S.3d 188

2015 N.Y. Slip Op. 05650

Dean NASCA, appellant

v.Christina SGRO, et al., respondents.

2013-04626

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

July 1, 2015.

Dean Nasca, Bayport, N.Y., appellant pro se.

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for respondents Christina Sgro and County of Suffolk.

Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for respondent Thomas Niblock.

Brand Glick & Brand, P.C., Garden City, N.Y. (Andrew B. Federman of counsel), for respondent Walter Jankowski.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover damages for false arrest, abuse of process, and defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated February 22, 2013, as granted those branches of the motion of the defendants Christina Sgro, Charles Roe, Joseph Faby, Vanessa Logan, and the County of Suffolk, and the separate motion of the defendant Thomas Niblock, which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action, denied his cross motion pursuant to CPLR 3215(a) for leave to enter a default judgment against the defendant Walter Jankowski, and directed him to accept the late answer of Walter Jankowski.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 A.D.3d 901, 901–902, 998 N.Y.S.2d 107 ; Carillo v. Stony Brook Univ., 119 A.D.3d 508, 508–509, 987 N.Y.S.2d 868 ). “The test of the sufficiency of a pleading is ‘whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments' ” (V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723, 964 N.Y.S.2d 563, quoting Pace v. Perk, 81 A.D.2d 444, 449, 440 N.Y.S.2d 710 [internal quotation marks omitted] ).

“A court is, of course, permitted to consider evidentiary material ... in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ” (Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ), and, if it does so, “the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” (id. at 1181–1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). “Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” (Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 A.D.3d at 902, 998 N.Y.S.2d 107 [internal quotation marks omitted]; see Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682, 941 N.Y.S.2d 675 ). “Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d at 683, 941 N.Y.S.2d 675 [internal quotation marks omitted]; see Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 ).

Applying the above principles, the Supreme Court properly granted those branches of the motion of the defendants Christina Sgro, Police Officer Charles Roe, Police Officer Joseph Faby, Police Officer Vanessa Logan, and County of Suffolk, and the separate motion of the defendant Thomas Niblock (hereinafter collectively the movants) which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action.

“A plaintiff cannot prevail on causes of action based upon false arrest [and] false imprisonment ... if the arresting officers had probable cause to believe that [the plaintiff] committed the underlying offense” (Whyte v. City of Yonkers, 36 A.D.3d 799, 799, 828 N.Y.S.2d 218 ). Probable cause to believe that a person committed a crime is a complete defense to a cause of action alleging false arrest or false imprisonment, whether asserted under state law or 42 U.S.C. § 1983 (see Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283, 532 N.Y.S.2d 234, 528 N.E.2d 157 ; Paulos v. City of New York, 122 A.D.3d 815, 817, 997 N.Y.S.2d 452 ; Holland v. City of Poughkeepsie, 90 A.D.3d 841, 845, 935 N.Y.S.2d 583 ; Fortunato v. City of New York, 63 A.D.3d 880, 880, 882 N.Y.S.2d 195 ; Carlton v. Nassau County Police Dept., 306 A.D.2d 365, 366, 761 N.Y.S.2d 98 ). “Probable cause requires only information sufficient to support a reasonable belief that an offense has been committed” (Reape v. City of New York, 66 A.D.3d 755, 756, 886 N.Y.S.2d 357 ), and “[g]enerally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest” (Iorio v. City of New York, 19 A.D.3d 452, 453, 798 N.Y.S.2d 437 [internal quotation marks omitted]; see Paulos v. City of New York, 122 A.D.3d at 817, 997 N.Y.S.2d 452 ; People v. Read, 74 A.D.3d 1245, 1246, 904 N.Y.S.2d 147 ). Here, the complaint, along with attached exhibits, including Sgro's statement that she had an order of protection directing the plaintiff to stay away from her, a copy of the order of protection, and Niblock's statement that he had observed the plaintiff approach within a few feet of Sgro, conclusively established that the police officers had probable cause to arrest the plaintiff for the crime of criminal contempt in the second...