Shaw v. City of Rochester
| Citation | 200 A.D.3d 1551,161 N.Y.S.3d 536 |
| Decision Date | 23 December 2021 |
| Docket Number | 130,CA 20-00026 |
| Parties | Sharad SHAW, Plaintiff-Appellant, v. CITY OF ROCHESTER and Rochester Police Department, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
VAN HENRI WHITE, ROCHESTER, FOR PLAINTIFF-APPELLANT.
TIMOTHY R. CURTIN, CORPORATION COUNSEL, ROCHESTER (JOHN M. CAMPOLIETO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
It is hereby ORDERED that the judgment so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover damages for, inter alia, false arrest and false imprisonment and assault arising from his arrest following a report of an altercation at a recreation center. Supreme Court denied plaintiff's motion for partial summary judgment on his cause of action for false arrest and false imprisonment, and the matter proceeded to a jury trial. The court denied plaintiff's subsequent motion for a directed verdict with respect to the causes of action for false arrest and false imprisonment and assault and granted that part of defendants’ motion seeking a directed verdict with respect to the assault cause of action. The jury thereafter returned a verdict in favor of defendants on the false arrest and false imprisonment cause of action, and plaintiff now appeals from a judgment that, inter alia, dismissed the complaint upon the jury verdict. We affirm.
We note at the outset that plaintiff's appeal from the final judgment brings up for review the court's order denying his motion for partial summary judgment inasmuch as it constitutes a "non-final ... order which necessarily affects the final judgment" ( CPLR 5501 [a] [1] ; see Piotrowski v. McGuire Manor, Inc. , 117 A.D.3d 1390, 1390, 986 N.Y.S.2d 718 [4th Dept. 2014] ). Nevertheless, we reject plaintiff's contention that the court erred in denying that motion.
"With respect to a cause of action for false arrest or false imprisonment ..., the elements are that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged" ( D'Amico v. Correctional Med. Care, Inc. , 120 A.D.3d 956, 961, 991 N.Y.S.2d 687 [4th Dept. 2014] [internal quotation marks omitted]; see De Lourdes Torres v. Jones , 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ). Where, as here, "there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful" ( Broughton v. State of New York , 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ; see Tsachalis v. City of Mount Vernon , 293 A.D.2d 525, 525, 739 N.Y.S.2d 849 [2d Dept. 2002] ). Thus, "[t]he cases uniformly hold that where the arrest or imprisonment is extrajudicial ... it is not necessary to allege want of probable cause in a false imprisonment action" ( Broughton , 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; see D'Amico , 120 A.D.3d at 961, 991 N.Y.S.2d 687 ). "Indeed, the burden is on the defendant to prove the opposite" ( Broughton , 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; see Snead v. Bonnoil , 166 N.Y. 325, 328, 59 N.E. 899 [1901] ). "The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim" for false arrest and false imprisonment ( Martinez v. City of Schenectady , 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; see Broughton , 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 ).
Here, we conclude that, although plaintiff was arrested without a warrant, he was not entitled to summary judgment because defendants raised a triable issue of fact whether there was probable cause to support the arrest (see Hernandez v. Denny's Corp. , 177 A.D.3d 1372, 1374, 114 N.Y.S.3d 147 [4th Dept. 2019] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Plaintiff was arrested for obstructing governmental administration in the second degree, which occurs when a person "intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference" ( Penal Law § 195.05 ). "The interference must be in part at least, physical in nature ..., but criminal responsibility should attach to minimal interference set in motion to frustrate police activity" ( People v. Dumay , 23 N.Y.3d 518, 524, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] [internal quotation marks omitted]; see People v. Adair , 177 A.D.3d 1357, 1358, 114 N.Y.S.3d 543 [4th Dept. 2019], lv denied 34 N.Y.3d 1125, 118 N.Y.S.3d 503, 141 N.E.3d 459 [2020] ).
The evidence submitted by defendants in opposition to plaintiff's motion included the deposition testimony of the arresting officer, who testified that he responded to a report of a fight at a recreation center. Upon his arrival, a witness identified plaintiff, who was then walking away from the recreation center, as an individual who was involved in the fight; the officer was not aware at that time whether plaintiff had been an assailant in the fight. As the dissent concedes, the officer "approached" plaintiff to investigate plaintiff's involvement in the fight. The officer then stopped "[a]bout 4 to 6 feet" in front of plaintiff before plaintiff continued walking and made contact with him. The dissent emphasizes that the officer believed he had reasonable suspicion at that time, but that belief is irrelevant to the analysis here (see generally People v. Robinson , 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ).
Regardless of the officer's subjective belief, prior to plaintiff making contact with him, the arresting officer was exercising his common-law right of inquiry, which " ‘is activated by a founded suspicion that criminal activity is afoot’ " ( People v. Hollman , 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992], quoting People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; see People v. Moore , 6 N.Y.3d 496, 498-499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ). Furthermore, unlike the dissent, we read defendants’ opposition papers on the motion and their brief on appeal as arguing, if somewhat inarticulately, this contention: that the arresting officer was conducting a common-law inquiry when he attempted to speak with plaintiff in order to investigate plaintiff's role in the altercation at the recreation center. Accordingly, this contention is squarely presented for our review. We conclude that the officer's act of "stepping in front of [plaintiff] in an attempt to engage him was a continuation of the officer's own common-law right to inquire, not a seizure" ( Matter of Shariff H. , 123 A.D.3d 714, 716, 997 N.Y.S.2d 718 [2d Dept. 2014], lv denied 25 N.Y.3d 902, 2015 WL 1422878 [2015] ; see People v. Terry , 124 A.D.3d 409, 409-410, 999 N.Y.S.2d 419 [1st Dept. 2015], lv denied 25 N.Y.3d 993, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ; see generally People v. Bora , 83 N.Y.2d 531, 534-536, 611 N.Y.S.2d 796, 634 N.E.2d 168 [1994] ). Thus, the standard was not, as the dissent asserts, whether the officer had a sufficient quantum of knowledge at that point "to support a reasonable suspicion that plaintiff had committed a crime," but, rather, whether the officer had "a founded suspicion that criminal activity [wa]s present" ( De Bour , 40 N.Y.2d at 215, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see Moore , 6 N.Y.3d at 498-499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; Hollman , 79 N.Y.2d at 184-185, 581 N.Y.S.2d 619, 590 N.E.2d 204 ; People v. Benjamin , 51 N.Y.2d 267, 270, 434 N.Y.S.2d 144, 414 N.E.2d 645 [1980] ). Defendants met that standard by providing evidence that the arresting officer was aware that plaintiff had been involved in an altercation, despite the fact that the officer did not know whether plaintiff was the victim or the aggressor (see People v. Bachiller , 93 A.D.3d 1196, 1196, 940 N.Y.S.2d 368 [4th Dept. 2012], lv dismissed 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 [2012] ; People v. Chertok , 303 A.D.2d 519, 520, 758 N.Y.S.2d 77 [2d Dept. 2003] ; see generally Moore , 6 N.Y.3d at 497-498, 814 N.Y.S.2d 567, 847 N.E.2d 1141 ; People v. Dibble , 43 A.D.3d 1363, 1363-1364, 845 N.Y.S.2d 203 [4th Dept. 2007], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008] ).
Further, while "[a]n individual to whom a police officer addresses a question has a constitutional right not to respond" ( People v. Howard , 50 N.Y.2d 583, 586, 430 N.Y.S.2d 578, 408 N.E.2d 908 [1980], cert denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484 [1980] ), that person does not have the right to attempt to "walk through"—and thereby make physical contact with—the officer (see e.g. Adair , 177 A.D.3d at 1357-1358, 114 N.Y.S.3d 543 ). Here, the officer described plaintiff's physical contact as more than merely incidental and similar to the degree of contact that occurs when a moving basketball player makes contact with a stationary player in an attempt to occupy the same space "and the referee calls for a blocking foul." Defendants also submitted the criminal complaint filed against plaintiff, which likewise alleged that plaintiff's attempt to walk through the officer prompted the officer to arrest plaintiff for obstructing governmental administration in the second degree. Based on the above, we conclude that defendants raised a triable issue of fact whether there was probable cause to arrest plaintiff, and the court thus properly denied plaintiff's motion for partial summary judgment (see De Lourdes Torres , 26 N.Y.3d at 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; ...
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