Tepperman v. New York City Transit Authority

• Decision Date: 30 October 1986
• Citation: 508 N.Y.S.2d 142,133 Misc.2d 788
• Parties: Elliot TEPPERMAN, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.
• Court: New York City Court

Page 142

508 N.Y.S.2d 142

133 Misc.2d 788

Elliot TEPPERMAN, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.

Civil Court of the City of New York,

New York County, Special Term,

Part 1.

Oct. 30, 1986.

Fuchsberg & Fuchsberg, New York City, for plaintiff.

William E. Rosa, New York City Transit Authority, Brooklyn, for defendants.

NORMAN C. RYP, Judge.

A. ISSUE

If a "Dashing Dan" becomes a "Thrashing Man" LIRR train commuter, can the New York City Transit Police, twenty days later, arrest first--ask questions later on a fellow traveler's complaint with warrantless false arrest impunity? No way!

Whether New York City's transit Authority Police, as a matter of law, sustains an unpleaded affirmative defense of legal justification (or labelled "reasonable grounds," "reasonable cause" or "probable cause") wrranting summary judgment against a false arrest suit of a train commuter, arrested for assault without a warrant, or prior inquiry, twenty days after a train fight, based solely on a co-commuter's notarized statement and positive identification. An issue of first impression that finds such "railroading" procedurally and substantively unwarranted!

B. PROCEDURAL HISTORY AND FACTS

Defendants, New York City Transit Authority ("N.Y.C.T.A."), Thomas R. Lawson, James Bergen, Gerard B. Connelly ("NYCTA-Police Officer and Sergeant," respectively, each sued herein under first name "JOHN") move, under CPLR-3212, for summary judgment dismissing the complaint based upon reasonable and probable cause by an independent witness' positive identification. Plaintiff, Elliot Tepperman, in opposition, argues there are material triable issues of fact concerning defendant's probable cause at the time of the arrest, warranting, at least, denial of defendant's CPLR-3212 summary judgment motion.

N.Y.C.T.A.'s CPLR-3212 motion is denied nor is summary judgment in favor of plaintiff warranted for existing material trial issues of fact. See, Zuckerman v. The City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980); Smith v. County of Nassau, 34 N.Y.2d 18, 23, 355 N.Y.S.2d 349, 311 N.E.2d 489 (1974); Merritt Hill Vineyards v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 111, 472 N.Y.S.2d 592, 460 N.E.2d 1077 (1984).

Plaintiff, Elliot Tepperman, seeks to recover $1,000,000 for personal injuries (physical and mental distress--alleging two (2) causes of action--false arrest and negligence--for $500,000 each) resulting from the alleged warrantless false arrest by defendants, as N.Y.C.T.A. Police Officers and supervising Sergeant. Defendants' answers interposed general denials and, as an affirmative defense in diminution of damages, plaintiff's culpable conduct.

The arrest, for assault in the third degree (Penal Law § 120.00--class "A" misdemeanor), occurred on January 12, 1982 at about 8:35 A.M. on the Independent ("IND") Subway Lines.

The facts and circumstances of the Wednesday, December 23, 1981 underlying incident are substantially controverted by plaintiff and complainant. It does appear uncontroverted that on December 23, 1981, plaintiff, who resided in Lido Beach, Long Island, New York, then 46, 6 feet 2 inches and 240 pounds, a construction project director, and complainant, then 25, an accountant, who resided in Oceanside, Long Island, New York, were fellow passengers in LIRR train No. 819, car No. 9681 (third car from the front) which plaintiff boarded at 7:40 A.M. at Island Park and complainant boarded at 7:47 A.M. at Oceanside, New York. Plaintiff and three (3) other men sat in a "four seater" (i.e. 2 seats facing each other) four (4) seats in front of complainant. Following the original incident reported by complainant to the N.Y.C.T.A. (at 8:52 A.M. via P.O.K. Greene), the NYCTA offered medical aid to complainant, who had no visible injuries and refused same (9:20 A.M., preferring to see his own doctor pp. 12-13] ).

According to plaintiff, he was riding with three other men "I go to work with" (DX-D, p. 39, 1. 11-12), when within the first twenty minutes after plaintiff entrained (7:40 A.M.) and while "having a discussion with my friends" (PX-D, p. 41, 1. 15) complainant "was yelling at us to keep quiet and shut up" (DX-D, p. 39, 1. 8-9). Plaintiff then told complainant to "keep quiet" (DX-D, p. 42, 1. 17); complainant again told plaintiff "to shut up" (DX-D, p. 42, 1. 18-20); plaintiff said "Nothing at that point." (DX-D, p. 42, 1. 22). When train No. 819 stopped in Pennsylvania Station, plaintiff reached for his coat and there were words exchanged between plaintiff and complainant about "shutting up." Then, according to plaintiff, complainant "lowered his head and pushed" plaintiff "back four seats right into the seat I was sitting with full force with his head buried in my stomach" (DX-D, pp. 43-4, lines 24-25, 2). Plaintiff deposed that he "tried to push him out of my stomach; take his head out of there" by "pushing against his shoulder with both arms" (DX-D p 44, lines 12-3). Then, plaintiff testified "the other people in the part I was sitting ... pulled him off and said to him, 'Why don't we leave the train before another incident occurs?' " (PX-D, p. 44, 1. 22-24). Then plaintiff and complainant detrained (PX-D, p. 45, 46 1. 3-4). Plaintiff denied ever personally or seeing anyone else punch complainant although plaintiff was "pushing him pretty hard" (PX-D, p. 45 1. 7-13).

According to complainant's controverted version as set forth in his N.Y.C.T.A. statement dated December 23, 1981 (DX-F, pp. 11-12), after occupying a seat, a group of four (4) white male adults were engaged in a card game, became loud and unruly, with continuous use of profanity by one male card player, all to the annoyance of other subject train No. 819, car No. 9681 passengers. Complainant's N.Y.C.T.A. statement further avers this continued for almost an hour (7:45-8:45 A.M.) when subject train entered the tunnel to Pennsylvania Station, New York when complainant asked one of the boisterous card players to "be quiet." The latter arose from his seat and replied: "Shut your mouth faggot or I'll put your head in your asshole" and stuck the point of his umbrella to one (1) inch of his face, adding "I ought to take your head off," then sat down and continued with the game. As the subject train pulled into, but before stopping, at Pennsylvania Station, the above card player-passenger, got out of his seat and with a clenched fist, punched complainant in the face and body. In self-protection and fearing further aggression complainant tackled his assailant, whose friend restrained complainant and separated the combatants, advising his friend, "You better get the hell out of here." Complainant later described his assailants as both male white, 40 years; one 6 feet, one inch (1"') tall with salt and pepper hair; the second 5 feet, eleven (11"') inches tall, weighing 150-160 pounds (See DX-F, p. 2).

C. APPLICABLE LAW

In a false arrest action while the lack of legal justification is an essential element (Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 502, 478 N.Y.S.2d 823, 467 N.E.2d 487, ) there is a rebuttable presumption that an arrest and imprisonment without a warrant is unlawful (Smith v. County of Nassau, 34 N.Y.2d 18, 23, 355 N.Y.S.2d 349, 311 N.E.2d 489 ). The defendant (arresting agency) has the burden of proving legal justification as an affirmative defense but precluded from doing so under a general denial. Broughton v. State of New York, 37 N.Y.2d 451, 457-8, 373 N.Y.S.2d 87, 335 N.E.2d 310 (Wachtler, J.) cert. den. sub nom Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975); Woodson v. New York City Housing Authority, 10 N.Y.2d 30, 33, 217 N.Y.S.2d 31, 176 N.E.2d 57 (1961); Parvi v. City of Kingston, 41 N.Y.2d 553, 557, 394 N.Y.S.2d 161, 362 N.E.2d 960 (1977); Restatement, Torts § 35; Marks v. Townsend, 97 N.Y. 590 (1885); Snead v. Bennoil, 166 N.Y. 325, 59 N.E. 899 (1901). Proof of good faith does not negate such tort liability though it may mitigate damages. Broughton v. State of New York, 37 N.Y.2d supra at 458-459, 373 N.Y.S.2d 87, 335 N.E.2d 310; Smith v. County of Nassau, 34 N.Y.2d supra at 23-24, 355 N.Y.S.2d 349, 311 N.E.2d 489. Legal justification is established by showing the arrest is based upon probable cause. Broughton v. State of New York, 34 N.Y.2d supra at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310; see also Raysor v. Port Authority of N.Y. & N.J., 768 F.2d 34, 40 (2d Cir.1985), cert. den. 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). In this context the terms "reasonable cause," "reasonable grounds" and "probable cause" are properly used interchangeably. Veras v. Truth Verification Corp., 87 A.D.2d 381, 451 N.Y.S.2d 761 (1st Dep't) affirmed, 57 N.Y.2d 947, 457 N.Y.S.2d 241, 443 N.E.2d 489 (1982).

Reasonable or probable cause varies depending upon the vagaries of each case, so that a tight narrow definition is of no aid. People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263 (1963), cert. den. 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964). In People v. Coffey, Chief Judge Desmond quoted the C.J.S. summary of caselaw: "Where an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances to believe likewise, he has such probable cause for his belief as will justify him in arresting without a warrant." (See 6-A, C.J.S., Arrest § 22.) This agrees with New York's applicable statutes.

CPL 70.10 (subd. 2) provides:

" 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in...