Reiner v. City of N.Y.
| Decision Date | 02 May 2013 |
| Docket Number | Seq. No.: 003,Index No.: 111462/209 |
| Parties | ROBERT REINER, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOHN MCKIERNAN, POLICE OFFCIER JOHN DOE, POLICE OFFICER JOHN ROE, Defendants. |
| Court | New York Supreme Court |
RECITATION, AS REQUIRED BY CPLR §2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
Defendants move pursuant to CPLR§ 3212 and CPLR§ 3211(a)(7), for dismissal of plaintiff's complaint. Plaintiff opposes.
After a review of the papers presented, all relevant statutes and case law, the Court grants the motion.
Factual and procedural background:
Plaintiff seeks damages for injuries he allegedly sustained, emanating from his arrest onMarch 26, 2009, wherein he was charged with one count of Penal Law §250.45(1), "Unlawful Surveillance in the Second Degree, a Class E felony. A person is guilty of this, when "[f]or his or her own, or another person's amusement, entertainment or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, a person dressing, or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's consent."
The arrest was based on the presence of a hidden camera attached to a light bulb in a bathroom located in his office, in the County of New York. On May 1, 2009, this charge was subsequently dismissed upon motion of the New York County District Attorney . Consequently, plaintiff served a Notice of Claim on the City on May 12, 2009. A Summons and Complaint was served on the City on August 12, 2009. Issue was joined via the City's Answer on August 16, 2009. The City served an Amended Answer on December 14, 2009, answering for P.O. John McKiernan. Plaintiff is alleging false arrest, false imprisonment, malicious prosecution, violation of 42 USC § 1983, libel and slander.
According to plaintiff, he is a clinical psychologist and the Founder and Executive Director of "Behavioral Associates," a group of mental health specialists. Behavioral Associates operates on the first floor of 114 East 90th Street, a building where plaintiff also resides. The practice treats approximately 350 patients, with plaintiff conducting intake interviews of prospective clients. Behavioral Associates has eleven offices, a central waiting room and a bathroom, located off the waiting room, across from one office and next to another. The bathroom is accessible to employees as well as patients. Plaintiff works three days per week, and during his absence, other professionalsutilize his office.
On March 26, 2009, during a session with a patient, his secretary contacted him over the intercom, stating, Plaintiff asserts that said patient was calling the police because the patient found what he thought was a surveillance camera, which appeared to be inside a light bulb, attached to the ceiling in the bathroom. At the time of his arrest, plaintiff had recently purchased a second suite of offices on the same floor as his office. A corridor was in the process of being constructed to connect the two suites, both of which were also undergoing extensive renovations. Due to the continuous construction, office doors were kept open when offices were not in use.
Plaintiff had brought a floodlight camera from his house in Bedford, to his office because he was in need of a new "decoder box," a device that converts images to images comprehensible to humans, without which the floodlight camera does not function. He asserts that he had left the floodlight camera on his desk, and intended to order a new decoder box from Brickhouse Security, the company from which he bought the floodlight camera. The floodlight camera is essentially a closed circuit television system, which transmits its signal solely to a designated monitor. In order for the floodlight to work as intended, a camera, decoder, RCA cable and monitor must be present. Because plaintiff did not have these items at his office, no images that the floodlight camera could have otherwise transmitted could be viewed, broadcast, or stored in any way at the time of plaintiff s arrest.
On March 26, 2009, at 12:06 p.m., P.O. McKiernan was in his patrol car when he received a radio call for a "radio camera in the bathroom." In response, he proceeded to plaintiff's office. Upon his arrival, he spoke with the complainant, Doug Galfand, on the street outside the office.Upon speaking with a very upset Mr. Gelfand, P.O. McKiernan was "unsure" whether a crime had actually been committed and believed that he had responded to an unusual situation that "needed to be investigated" (McKiernan EBT test. pp. 70-72). Once inside Behavioral Associates, P.O. McKiernan observed a floodlight camera on the receptionist's counter. It appeared to be a normal floodlight. However, when he picked it up to examine it closely, it appeared to have a lens. P.O. McKiernan was not aware that there was a camera inside the light bulb.
Plaintiff informed P.O. McKiernan that the camera belonged to him and that he utilized it to observed his children when they were in the swimming pool at his home in Westchester. He also advised P.O. McKiernan that he did not place said floodlight camera in the bathroom to observe people using the toilet. Plaintiff offered to show P.O. McKiernan why the floodlight camera was unable to work, but P.O. McKiernan refused to permit plaintiff to do so.
According to the affidavit P.O. McKiernan submitted in support of a search warrant subsequent to plaintiff's arrest, he stated in pertinent part that complainant Mr. Gelfand informed him that he had "observed a light bulb with a camera inside of it screwed into a fixture directly above the toilet." Mr. Gelfand also informed P.O. McKiernan that he had "removed said light bulb from the fixture and observed that it had a hidden camera in it." At his deposition, P.O. McKiernan testified that he believed Mr. Gelfand was telling the truth (Exhibit "I" at 68). He also testified that the light bulb did not look normal because it "had some sort of lens in the bulb that didn't belong there, that didn't belong in a normal floodlight for a normal bathroom" (Id. at 94).
Positions of the parties:
Defendant City proffers several arguments in support of its motion to dismiss. First, it argues that plaintiff's action for false arrest and false imprisonment necessitate dismissal because plaintiff'sarrest was based on probable cause. It also argues that probable cause is a complete defense to an action for false arrest. The City further argues that since probable cause requires in pertinent part "information that would lead a reasonable person who possesses the same expertise as the officer to conclude under the circumstances, that a crime is being or was committed" (People v. McRay, 51 N.Y.2d 594, 602 [1980]), then "finding a hidden camera that was attached to a light bulb in a bathroom with a view of the area where people will urinate is absolutely sufficient probable cause to lead a reasonable person to believe that the crime of unlawful surveillance had been committed by the owner of the camera and director of the business where this camera was located" (Baumrin Aff. ¶ 17)).
Plaintiff argues that defendants failed to establish a prima facie showing of their entitlement to summary judgment on his causes of action for false arrest and malicious prosecution because the very evidence upon which they rely upon in support of their motion, raises triable issues of fact on elements to both causes of action. Plaintiff argues that the issue of probable cause is one that must be decided by the court where there is no real dispute as to the facts or proper inferences to be drawn from such facts. However, where there is conflicting evidence, from which reasonable persons might draw different inferences, the question is one more properly reserved for a jury.
Plaintiff also argues that the evidence that defendants submitted raises a triable issue of fact as to whether P.O. McKiernan had probable cause to arrest plaintiff, in that in his deposition, plaintiff gave an exculpatory explanation for the presence of the floodlight camera in his bathroom and P.O. McKiernan failed to conduct an adequate investigation prior to arresting plaintiff. It is important to note that in his Affirmation in Opposition, plaintiff argues the issue of probable cause extensively, but fails to address the specifics of some of defendants' several arguments.
"The proponent of a summary judgment motion must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a...
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