Smolian v. Port Auth. of N.Y. & N.J.

• Decision Date: 13 May 2015
• Docket Number: 2012-11249
• Citation: 2015 N.Y. Slip Op. 04113,128 A.D.3d 796,9 N.Y.S.3d 329
• Parties: Nicholas SMOLIAN, appellant, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 796

9 N.Y.S.3d 329

2015 N.Y. Slip Op. 04113

Nicholas SMOLIAN, appellant

v.PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., respondents, et al., defendants.

2012-11249

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

May 13, 2015.

Solomon Rosengarten, Brooklyn, N.Y., for appellant.

James M. Begley, New York, N.Y. (Megan Lee of counsel), for respondents Port Authority of New York and New Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz.

Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg, Kenneth R. Larywon, and Jacqueline D. Berger of counsel), for respondent Jamaica Hospital and Medical Center.

Gordon & Silber, New York, N.Y. (Eldar Mayouhas and Andrew B. Kaufman of counsel), for respondent Jamaica Psychiatric Services.

Ivone, Devine & Jensen, LLP, Lake Success, N.Y. (Robert Devine of counsel), for respondent Franck Paul.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Opinion

In an action, inter alia, to recover damages for false arrest and assault and battery, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered September 13, 2012, which granted the motion of the defendants Port Authority of New York and New Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz for summary judgment dismissing the complaint and the supplemental complaint insofar as asserted against the defendant Port Authority of New York and New Jersey and the complaint insofar as asserted against the defendants Anthony Croce, Daniel Francis, and Rafael Ruiz, the separate motion of the defendant Jamaica Hospital and Medical Center for summary judgment dismissing the complaint and the supplemental complaint insofar as asserted against it, and the separate motions of the defendant Jamaica Psychiatric Services and the defendant Franck Paul for summary judgment dismissing the supplemental complaint insofar as asserted against each of them.

ORDERED that the notice of appeal is deemed to be a notice of appeal by the plaintiff (see Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864 ); and it is further,

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting those branches of the motion of the defendants Port Authority of New York and New Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz which were for summary judgment dismissing the causes of action alleging false arrest and assault and battery insofar as asserted against the defendant Port Authority of New York and New Jersey, and substituting therefor a provision denying those branches of the motion, (2) by deleting the provisions thereof granting those branches of the motion of the defendants Port Authority of New York and New Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz which were for summary judgment dismissing the complaint insofar as asserted against the defendants Anthony Croce, Daniel Francis, and Rafael Ruiz, and substituting therefor a provision denying those branches of the motion, and (3) by deleting the provisions thereof granting those branches of the separate motion of the defendant Jamaica Hospital and Medical Center which were for summary judgment dismissing the causes of action alleging that it is vicariously liable for the alleged medical malpractice of the defendant Franck Paul, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff, payable by the defendants Port Authority of New York and New Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz and the defendant Jamaica Hospital and Medical Center, appearing separately and filing separate briefs, and one bill of costs to the defendant Jamaica Psychiatric Services and the defendant Franck Paul, payable by the plaintiff.

On October 12, 2003, the plaintiff was at a parking garage at John F. Kennedy International Airport (hereinafter the airport) to scout out a suitable location from which he could watch the Concorde supersonic transport airplane make one of its final departures. He had with him various papers and diagrams pertaining to areas of the airport that were open to viewing by the public. After a security guard deemed him to be “suspicious,” police officers employed by the defendant Port Authority of New York and New Jersey (hereinafter the Port Authority), including the defendants Anthony Croce, Daniel Francis, and Rafael Ruiz (hereinafter collectively the individual Port Authority police officers), arrived at the parking garage and, with the plaintiff's consent, searched his shoulder bag and reviewed his papers. The plaintiff testified at his deposition that, although he told Croce and Croce's supervisor that he was there to watch planes, he was handcuffed and transported to the Port Authority police station located at the airport. On appeal, the Port Authority did not dispute that the plaintiff had not committed any crimes.

The Port Authority police contacted the Joint Terrorism Task Force of the Federal Bureau of Investigation (hereinafter the FBI) and the New York City Police Department, as well as the FBI proper. It was eventually determined that the plaintiff did not pose a threat to national security, and those entities did not intend to respond to the situation. Nonetheless, the Port Authority Police Department contacted emergency medical technicians (hereinafter EMTs), based on the theory that the plaintiff was an emotionally disturbed person. Accordingly, EMTs Christina Lijo and Genesia Santiago arrived at the Port Authority police station, and transported the plaintiff to the defendant Jamaica Hospital and Medical Center (hereinafter JHMC) against his will, accompanied by a Port Authority police officer. While at JHMC, the plaintiff was evaluated by the defendant Franck Paul, a psychiatrist. Paul determined that the plaintiff was suffering from bipolar disorder

, and directed the forcible injection of a tranquilizer into the plaintiff, as well as the drawing of blood from the plaintiff. The plaintiff was kept overnight involuntarily in JHMC's emergency room and was discharged the following morning by a different psychiatrist.

As is relevant to this appeal, in a complaint dated September 27, 2004, the plaintiff asserted several causes of action against the Port Authority, the individual Port Authority police officers, and JHMC. In a supplemental complaint dated October 5, 2006, the plaintiff asserted causes of action against the Port Authority, JHMC, Paul, and Jamaica Psychiatric Services (hereinafter JPS), Paul's employer. In an order dated September 6, 2012, the Supreme Court granted the separate motions of the Port Authority and the individual Port Authority police officers, JHMC, Paul, and JPS for summary judgment dismissing the complaint and, insofar as relevant, the supplemental complaint, insofar as asserted against each of them, concluding, inter alia, that the Port Authority police officers had probable cause to arrest the plaintiff, that Paul did not engage in medical malpractice when he involuntarily confined the plaintiff to the emergency room overnight, and that many of the plaintiff's causes of action were barred by the applicable statutes of limitations. The plaintiff appeals.

Initially, the plaintiff contends that the Supreme Court erred in awarding summary judgment to the Port Authority and the individual Port Authority police officers dismissing the causes of action to recover damages for false arrest and assault and battery insofar as asserted against them. We agree. Although “[p]robable 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 ” (Rodgers v. City of New York, 106 A.D.3d 1068, 1069, 966 N.Y.S.2d 466 ; see Wasilewicz v. Village of Monroe Police Dept., 3 A.D.3d 561, 562, 771 N.Y.S.2d 170 ), here, the submissions of the Port Authority and the individual Port Authority police officers revealed the existence of triable issues of fact as to whether the plaintiff's arrest was based on probable cause (see MacDonald v. Town of Greenburgh, 112 A.D.3d 586, 587, 976 N.Y.S.2d 189 ; Carlton v. Nassau County Police Dept., 306 A.D.2d 365, 365–366, 761 N.Y.S.2d 98 ). Indeed, it is not clear what crime the plaintiff could have been arrested for.

The Port Authority contends that, even if the record is devoid of any reference to what crime the plaintiff was thought to have committed, the plaintiff's arrest was lawful by virtue of Mental Hygiene Law § 9.41. That provision states, in relevant part, that “[a]ny peace officer, when acting pursuant to his [or her] special duties, or police officer who is a member of the state...