Sosa v. City of N.Y., 300547/13.

• Decision Date: 22 December 2015
• Docket Number: No. 300547/13.,300547/13.
• Parties: Mike SOSA and Lixdania Perez, Plaintiff(s), v. The CITY OF NEW YORK, Manish Sharma, Danny Bermeo, and Dervent Williams, Defendant(s).
• Court: New York Supreme Court

28 N.Y.S.3d 650 (Table)

Mike SOSA and Lixdania Perez, Plaintiff(s),
v.
The CITY OF NEW YORK, Manish Sharma, Danny Bermeo, and Dervent Williams, Defendant(s).

No. 300547/13.

Supreme Court, Bronx County, New York.

Dec. 22, 2015.

Sivin & Miller, Counsel for Plaintiff.

New York City Law Department, Counsel for Defendants.

MITCHELL J. DANZIGER, J.

In this action for alleged false arrest, false imprisonment, malicious prosecution, and negligence in the hiring, training, and retention of police officers, defendants move seeking an order pursuant to CPLR § 3212(1) granting defendants THE CITY OF NEW YORK (the City) and defendant MANISH SHARMA (Sharma) summary judgment with respect to plaintiffs' state law claim for malicious prosecution on grounds there was never any cognizable criminal proceeding instituted against plaintiffs; (2) granting the City summary judgment with respect to plaintiffs' state law claim for negligence by the City in its hiring, training and retention of Sharma on grounds that the City, in interposing an answer for Sharma has conceded that at all relevant times, he was acting under the scope of his employment with the City; (3) granting defendants summary judgment with respect to plaintiffs' claims pursuant to 42 USC § 1983 insofar as premised on their alleged malicious prosecution of plaintiffs on the same ground identified above; (4) granting the City summary judgment with respect plaintiffs' claim pursuant to 42 USC § 1983 insofar as premised on the City's negligence in hiring, training and retention of the individually named police officers on the same ground identified above¹ . The City also moves for an order pursuant to CPLR § 3211(a)(7) dismissing plaintiffs' claim against the City pursuant to 42 USC § 1983 insofar as the same is premised on an alleged municipal custom and practice alleged to have caused plaintiffs' injury. With respect to the foregoing claim, the City argues that the complaint fails to state a cause of action. Plaintiffs oppose the instant motion, in part, to the extent it seeks to dismissal of plaintiffs' state claim against the City and Sharma for malicious prosecution and their identical claim against all defendants pursuant to 42 USC § 1983. With respect to the foregoing claims, plaintiffs aver that insofar as they are premised on alleged malicious prosecution, defendants did in fact initiate a criminal proceeding against them as matter of prevailing law.

For the reasons that follow hereinafter, defendants' motion is granted, in part.²

The instant action is for false arrest, false imprisonment, malicious prosecution, violations of 42 USC § 1983, and negligence in the hiring, training, and retention of police officers. Within the amended complaint, plaintiffs allege that on January 21, 2012, within premises known as 755 Southern Boulevard, Bronx, NY, plaintiffs were arrested imprisoned and subsequently prosecuted by defendants. Insofar as defendants had no probable cause to arrest plaintiffs, the complaint alleges that plaintiffs were falsely arrested and falsely imprisoned by Sharma and defendants DANNY BERMEO (Bermeo) and DERVENT WILLIAMS³ (Williams), all of whom were police officers employed by the City and acting within the scope of their employment. Plaintiffs further allege that inasmuch as defendants issued a desk appearance ticket, with malicious intent and absent probable cause, defendants' maliciously prosecuted them. Plaintiffs allege that the City was negligent in hiring, training and retaining Sharma, Bermeo, and Williams and also allege that their arrest, imprisonment, and prosecution violated 42 USC § 1983 insofar as the foregoing violated their rights under the Fourth Amendment to the United States Constitution.

Defendants' motion seeking summary judgment with respect to plaintiffs' claim for malicious prosecution is hereby denied insofar as defendants' own evidence establishes that defendants did in fact initiate a cognizable criminal proceeding against them and that the same was terminated favorably in plaintiffs' favor (the only basis upon which defendants' seek dismissal of this claim). Accordingly, defendants fail to establish prima facie entitlement to summary judgment.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 A.D.3d 637, 638, 792 N.Y.S.2d 177 [2d Dept 2005] ; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634, 757 N.Y.S.2d 594 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 A.D.2d 387, 388, 724 N.Y.S.2d 46 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 A.D.3d 21, 25, 884 N.Y.S.2d 417 [1st Dept 2009] ).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case.

(Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979] [internal citations omitted] ). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 A.D.2d 269, 270, 690 N.Y.S.2d 545 [1st Dept 1999] ).

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 A.D.2d 811, 811 [4th Dept 2000] ),

[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

(see also Yaziciyan v. Blancato, 267 A.D.2d 152, 152, 700 N.Y.S.2d 22 [1st Dept 1999] ; Perez v. Bronx Park Associates, 285 A.D.2d 402, 404, 728 N.Y.S.2d 33 [1st Dept 2001] ). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [1960] ).

The tort of malicious prosecution provides protection from and provides redress for the initiation of unjustifiable litigation (Broughton at 457). However, since public policy favors bringing criminals to justice, the system must afford accusers room for benign misjudgments (Smith–Hunter v. Harvey, 95 N.Y.2d 191, 195 [2000] ). This, of course, fosters the long standing belief that the court system is open to all without fear of reprisal through the use of retaliatory lawsuits (Curiano v. Suozzi, 63 N.Y.2d 113, 119 [1984] ). Thus, a plaintiff asserting a cause of action for malicious prosecution must satisfy a heavy burden (Smith–Hunter at 195, 712 N.Y.S.2d 438, 734 N.E.2d 750 ).

The essence of a cause of action for malicious prosecution is the perversion of proper legal procedures (Broughton at 457; Boose v. City of Rochester, 71 A.D.2d 59, 65, 421 N.Y.S.2d 740 [4th Dept 1979] ). As such, a prior judicial proceeding...