Okunubi v. City of N.Y.

• Decision Date: 18 September 2013
• Citation: 109 A.D.3d 888,971 N.Y.S.2d 338,2013 N.Y. Slip Op. 05886
• Parties: Jayde OKUNUBI, appellant, v. CITY OF NEW YORK, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 888

971 N.Y.S.2d 338

2013 N.Y. Slip Op. 05886

Jayde OKUNUBI, appellant,

v.CITY OF NEW YORK, respondent, et al., defendants.

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

Sept. 18, 2013.

K.C. Okoli, P.C., New York, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Sharyn Rootenberg of counsel; Jared Kraminitz on the brief), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action to recover damages for false arrest and malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), dated May 24, 2011, as, upon the granting of the application of the defendant City of New York, in effect, pursuant to CPLR 4401 for judgment as a matter of law, is in favor of that defendant and against the plaintiff dismissing the complaint insofar as asserted against that defendant.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the City of New York, to recover damages for false arrest and malicious prosecution. The underlying arrest and criminal prosecution involved an alleged assault and harassment. At the start of the trial in this action, prior to the presentation of any evidence, the City made an application, in effect, pursuant to CPLR 4401 for judgment as a matter of law based upon certain admissions made by the plaintiff, through his counsel. It was admitted, among other things, that the victim of the alleged crimes made an in-person identification of the plaintiff to police officers, which led to the plaintiff's immediate arrest. On the basis of these admissions, the Supreme Court determined that the police, as a matter of law, had probable cause to arrest the plaintiff, and thus, the court granted the City's CPLR 4401 application.

An application for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions ( seeCPLR 4401). The grant of such an application prior to the close of the opposing party's case is generally disfavored ( see Kamanou v. Bert, 94 A.D.3d 704, 941 N.Y.S.2d 260;De Vito v. Katsch, 157 A.D.2d 413, 416–417, 556 N.Y.S.2d 649). However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants” ( Beshay v. Eberhart L.P. No. 1, 69 A.D.3d 779, 781, 893 N.Y.S.2d 242;see Ballantyne v. City of New York, 19 A.D.3d 440, 797 N.Y.S.2d 506;Schomaker v. Pecoraro, 237 A.D.2d 424, 425–26, 654 N.Y.S.2d 830;see also Hoffman House, N.Y. v. Foote, 172 N.Y. 348, 350, 65 N.E. 169;Hardy v. State of New York, 294 A.D.2d 400, 401, 742 N.Y.S.2d 346;Fuller v. New York City Bd. of Educ., 206 A.D.2d 452, 453, 614 N.Y.S.2d 557;De Vito v. Katsch, 157 A.D.2d at 416–417, 556 N.Y.S.2d 649).

Here, prior to the presentation of evidence, the plaintiff's counsel made certain admissions and statements of fact which demonstrated, as a matter of law, that the police had probable cause to arrest the plaintiff. Probable cause to believe that a person committed a crime is a complete defense to causes of action alleging false arrest and malicious prosecution ( see Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560;Fortunato v. City of New York, 63 A.D.3d 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;Grieco v. Nassau County Police Dept., 266 A.D.2d 262, 263, 698 N.Y.S.2d 261). “As a general rule, information from an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest” ( Petrychenko v. Solovey, 99 A.D.3d 777, 780, 952 N.Y.S.2d 575 [internal citation and quotation marks omitted]; see Rivera v. County of Nassau, 83 A.D.3d 1032, 1033, 922 N.Y.S.2d 168;People v. Read, 74 A.D.3d 1245, 1246, 904 N.Y.S.2d 147). “[A]n eyewitness victim of a crime can provide probable cause for the arrest of her assailant despite the fact that her...