Paulos v. City of N.Y.

• Decision Date: 19 November 2014
• Citation: 122 A.D.3d 815,997 N.Y.S.2d 452,2014 N.Y. Slip Op. 07994
• Parties: Abraham PAULOS, respondent, v. CITY OF NEW YORK, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 815
997 N.Y.S.2d 452
2014 N.Y. Slip Op. 07994

Abraham PAULOS, respondent
v.
CITY OF NEW YORK, et al., appellants, et al., defendants.

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

Nov. 19, 2014.

997 N.Y.S.2d 453

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Rachel Donohue, and Karen M. Griffin of counsel), for appellants.

Ilissa Brownstein, New York, N.Y. and Jacobs and Hazan LLP, New York, N.Y. (David M. Hazan of counsel), for respondent (one brief filed).

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

Opinion

122 A.D.3d 815

In an action, inter alia, to recover damages for false arrest, for malicious prosecution, and pursuant to 42 U.S.C. § 1983 for the deprivation of federal constitutional rights under color of state law, the defendants City of New York, Police Officer Paul Montefusco, and Police Officer Cotson appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated June 21, 2013, as denied those branches of their motion which were for summary judgment dismissing, insofar as asserted against them, the causes of action to recover damages for malicious prosecution

997 N.Y.S.2d 454

and pursuant to 42 U.S.C. § 1983 for the deprivation, under color of state law, of the plaintiff's Fourth Amendment right to be free from the unreasonable seizure of his person, arising from his arrest and prosecution, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 1024 and 3025(b) for leave

122 A.D.3d 816

to amend the complaint to substitute Police Officer Cotson as a party defendant in place of Police Officer John Doe # 1.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the appellants' motion which were for summary judgment dismissing, insofar as asserted against them, the causes of action to recover damages for malicious prosecution and pursuant to 42 U.S.C. § 1983 for the deprivation, under color of state law, of the plaintiff's Fourth Amendment right to be free from the unreasonable seizure of his person, arising from his arrest and prosecution, are granted, and that branch of the plaintiff's cross motion which was pursuant to CPLR 1024 and 3025(b) for leave to amend the complaint to substitute Police Officer Cotson as a party defendant in place of Police Officer John Doe # 1 is denied as academic.

The plaintiff commenced this action, inter alia, to recover damages under federal and New York law for false arrest, false imprisonment, malicious prosecution, and the deprivation of federal constitutional rights in connection with his arrest for robbery during the early morning hours of October 23, 2010. The appellants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff's arrest and detention were supported by probable cause, relying on a transcript of the testimony given by the plaintiff at a hearing conducted pursuant to General Municipal Law § 50–h and an affidavit of the arresting officer. Those submissions revealed that, at approximately 2:30 a.m. on the date in question, the victim of an alleged robbery approached two police officers who were on patrol in their police car, and informed them that he had just been assaulted and robbed by three assailants. The victim, who was bleeding from the mouth, told the officers that the robbers had walked away in a specific direction. The victim then proceeded in that direction on foot, with the officers following in their vehicle. The officers soon...