Rodgers v. City of N.Y.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: 106 A.D.3d 1068,966 N.Y.S.2d 466,2013 N.Y. Slip Op. 03826
• Parties: Charles RODGERS, appellant, v. CITY OF NEW YORK, et al., respondents.
• Decision Date: 29 May 2013

106 A.D.3d 1068
966 N.Y.S.2d 466
2013 N.Y. Slip Op. 03826

Charles RODGERS, appellant,
v.
CITY OF NEW YORK, et al., respondents.

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

May 29, 2013.

[966 N.Y.S.2d 468]

Rothstein Law, PLLC, New York, N.Y. (Eric E. Rothstein of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Scott Shorr of counsel), for respondents.

REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

[106 A.D.3d 1068]In an action, inter alia, to recover damages for false arrest and malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated January 27, 2012, as granted those branches of the defendants' motion which were for summary judgment dismissing the first, second, third, fourth, fifth, seventh, eighth, and tenth causes of action.

[106 A.D.3d 1069]ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendants, the City of New York, the New York City Police Department (hereinafter the NYCPD; hereinafter together the City defendants), and Paul C. Parsekian, an NYCPD detective, alleging 11 causes of action seeking damages for false arrest, false imprisonment, malicious prosecution, assault and battery, negligence, and various civil rights violations pursuant to 42 USC § 1983, stemming from murder charges brought against the plaintiff, of which he was acquitted. In particular, the plaintiff alleged that the investigating detective failed to properly investigate the crime and disclose exculpatory evidence to him, the prosecutor, and the grand jury that indicted him. The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint on the grounds that there was probable cause for the plaintiff's arrest and prosecution based upon the identification of the plaintiff by two witnesses, and that the plaintiff's assertion that disclosure of the exculpatory evidence to the grand jury would have materially influenced its investigation was speculative. The plaintiff appeals, contending that there are triable issues of fact precluding summary judgment.

Probable cause to believe that a person committed a crime is a complete defense to an action alleging false arrest or false imprisonment, whether brought under state law or 42 USC § 1983 ( see Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283, 532 N.Y.S.2d 234, 528 N.E.2d 157;Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310;Fortunato v. City of New York, 63 A.D.3d 880, 880, 882 N.Y.S.2d 195;

[966 N.Y.S.2d 469]

Carlton v. Nassau County Police Dept., 306 A.D.2d 365, 366, 761 N.Y.S.2d 98). Here, the defendants established the absence of a triable issue of fact as to whether the police had probable cause to arrest and detain the plaintiff, in that he had been identified as the perpetrator by two witnesses ( see Iorio v. City of New York, 19 A.D.3d 452, 798 N.Y.S.2d 437). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action, which alleged false arrest and false imprisonment. The Supreme Court also properly granted those branches of the defendants' motion which were to dismiss the third cause of action, which alleged assault, and the fourth cause of action, which alleged battery. Although assault and battery causes of action may be based on contact during an unlawful arrest ( see Wyllie v. District Attorney of County of Kings, 2 A.D.3d 714, 718, 770 N.Y.S.2d 110;Johnson v. Suffolk County Police Dept., 245 A.D.2d 340, 341, 665 N.Y.S.2d 440), here the defendants established that the plaintiff's arrest was lawful because it was supported [106 A.D.3d 1070]by probable cause, and the assault and battery causes of action are not based on allegations of excessive force ( see Marrero v. City of New York, 33 A.D.3d 556, 557, 824 N.Y.S.2d 228;Grant v. Barnes & Noble, Inc., 284 A.D.2d 238, 239, 726 N.Y.S.2d 543;Akande v. City of New York, 275 A.D.2d 671, 672, 713 N.Y.S.2d 341).

With regard to the second cause of action, which alleged malicious prosecution, the defendants demonstrated their prima facie entitlement judgment as a matter of law by showing that the plaintiff was indicted by a grand jury for the subject incident, thus creating a presumption of probable cause ( see O'Donnell v. County of Nassau, 7 A.D.3d 590, 592, 775 N.Y.S.2d 902). In opposition, the plaintiff failed to raise triable issues of fact as to this presumption and as to whether the prosecution was motivated by actual malice ( see Nardelli v. Stamberg, 44 N.Y.2d 500, 406 N.Y.S.2d 443, 377 N.E.2d 975;Washington–Herrera v. Town of Greenburgh, 101 A.D.3d 986, 956 N.Y.S.2d 487;Hernandez v. City of New York, 100 A.D.3d 433, 434, 953 N.Y.S.2d 199).

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the fifth cause of action, which alleged intentional and negligent infliction of...