Rivera v. County of Nassau

• Decision Date: 26 April 2011
• Parties: Ruben E. RIVERA, Jr., appellant,v.COUNTY OF NASSAU, et al., respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1032

922 N.Y.S.2d 168

2011 N.Y. Slip Op. 03574

Ruben E. RIVERA, Jr., appellant,

v.COUNTY OF NASSAU, et al., respondents.

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

April 26, 2011.

Joelson & Rochkind, New York, N.Y. (Geofrey Liu of counsel), for appellant.John Ciampoli, County Attorney, Mineola, N.Y. (Brian M. Libert and Dennis J. Saffran of counsel; Nicholas De Meo on the brief), for respondents County of Nassau, Nassau County Police Department, and Detective John J. Ash.Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John J. Nicolini of counsel), for respondent Walter Amend.DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for false arrest and malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated December 17, 2009, which granted the motion of the defendants County of Nassau, Nassau County Police Department, and Detective John J. Ash, and the separate motion of the defendant Walter Amend, for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

After the plaintiff was evicted from an apartment owned by the defendant Walter Amend, Amend and his family allegedly received threatening telephone calls. Amend claimed to have recognized the plaintiff's voice, and he filed a complaint with the defendant Nassau County Police Department. The plaintiff was arrested, and a criminal accusatory instrument was filed, but the charges were dismissed after it was learned that the voice on the only call that had been recorded was not that of the plaintiff. The plaintiff then commenced this action, seeking to recover damages, inter alia, for false arrest and malicious prosecution, against the County of Nassau, the Nassau County Police Department, Detective John J. Ash (hereinafter collectively the County defendants), and Amend. After discovery, the County defendants and Amend separately moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted both motions, the plaintiff appeals, and we affirm.

In order to prevail on a cause of action seeking to recover damages for malicious prosecution, a plaintiff must establish that (1) a criminal proceeding was commenced; (2) it was terminated in favor of the accused; (3) it lacked probable cause; and (4) it was commenced out of actual malice ( see Cantalino v. Danner, 96 N.Y.2d 391, 394, 729 N.Y.S.2d 405, 754 N.E.2d 164; Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257; Baker v. City of New York, 44 A.D.3d 977, 979, 845 N.Y.S.2d 799). “Generally, 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” ( People v. Bero, 139 A.D.2d 581, 584, 526 N.Y.S.2d 979; see People v. Read, 74 A.D.3d 1245, 1246, 904 N.Y.S.2d 147). In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged ( see Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560; N.Y. PJI 3:5, Comment). “The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim” of false imprisonment or false arrest ( Martinez v. City of Schenectady, 97 N.Y.2d at 85, 735 N.Y.S.2d 868, 761 N.E.2d 560; see Broughton v. State of New York, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310). In order to hold a civilian defendant liable for false arrest, the plaintiff must establish that that defendant did not merely report a crime to the police or participate in the prosecution, but actively importuned the police to make an arrest without “reasonable cause [to believe] in the plaintiff's culpability” ( DeFilippo v. County of Nassau, 183 A.D.2d 695, 696–697, 583 N.Y.S.2d 283; see Grinnell v. Weston, 95 App.Div. 454, 459, 88 N.Y.S. 781; cf. Brown v. Nassau County, 306 A.D.2d 303, 760 N.Y.S.2d 655).

Here, the County defendants established their prima facie entitlement to judgment as a matter of law on the causes of action alleging malicious prosecution and false arrest insofar as asserted against them by submitting evidence that they acted upon information provided by a known citizen informant that provided them with probable cause to arrest the plaintiff ( see Martinez v. City of Schenectady, 97 N.Y.2d at 85, 735 N.Y.S.2d 868, 761...