Thompson v. City of N.Y.

• Decision Date: 15 December 2015
• Parties: Floyd THOMPSON, Plaintiff(s), v. The CITY OF NEW YORK, the New York City Police Department, and P.O. DelCarpio, Defendant(s).
• Court: New York Supreme Court

50 Misc.3d 1037

23 N.Y.S.3d 839

Floyd THOMPSON, Plaintiff(s),

v.The CITY OF NEW YORK, the New York City Police Department, and P.O. DelCarpio, Defendant(s).

Supreme Court, Bronx County, New York.

Dec. 15, 2015.

Getz & Braverman, P.C., Counsel for Plaintiff.

New York City Law Dept., Counsel for Defendants.

MITCHELL J. DANZIGER, J.

In this action for, inter alia, alleged false arrest, false imprisonment, malicious prosecution, and violations of 42 U.S.C. § 1983, defendants move seeking an order granting them summary judgment pursuant to CPLR § 3212. Specifically, defendants aver that they are entitled to summary judgment with respect to (1) plaintiff's causes of action for false arrest, false imprisonment, and malicious prosecution insofar as the evidence establishes ample probable cause for his arrest; (2) plaintiff's cause of action for general negligence insofar as such claim, on these facts, is not cognizable under prevailing law; (3) plaintiff's cause of action for negligence in the supervision, hiring, and retention of defendant P.O. FELIX DEL CARPIO (Del Carpio) s/h/a P.O. DELCARPIO by defendants THE CITY OF NEW YORK (the City) and THE NEW YORK CITY POLICE DEPARTMENT (the NYPD) on grounds that the City and the NYPD admit that at all times, Del Carpio was acting within the scope of his employment with the City and the NYPD; and (4) plaintiff's cause of action pursuant to 42 U.S.C. § 1983 insofar as it is improperly pleaded. Plaintiff opposes the instant motion, arguing that extant questions of fact on the issue of probable cause preclude summary judgment in defendants' favor.

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

The instant action is for false arrest, false imprisonment, malicious prosecution, negligence, violations of 42 U.S.C. § 1983, and negligence in the supervision, hiring and retention of police officers. Within his complaint, plaintiff alleges that on July 4, 2009, he was falsely arrested, falsely imprisoned, and maliciously prosecuted by defendants, more specifically, Del Carpio—a police officer employed by the City and the NYPD—without probable cause, and charged with the crime of a Criminal Possession of a Forged Instrument in the First Degree (PL § 170.30). The complaint further alleges that in light of the foregoing, defendants were negligent in the performance of their duties, that at all times Del Carpio was duly employed by the City and the NYPD, and that the City and the NYPD were negligent in the Del Carpio's hiring, retention, and supervision. Lastly, plaintiff alleges that the City and the NYPD violated 42 U.S.C. § 1983 inasmuch as the foregoing conduct violated his rights under the United States Constitution and such conduct was part of a pattern, custom and practice either knowingly promulgated or implicitly allowed to exist.

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, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [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, 416 N.Y.S.2d 790, 390 N.E.2d 298 [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. Tallman, 278 A.D.2d 811, 811, 718 N.Y.S.2d 541 (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, 165 N.Y.S.2d 498, 144 N.E.2d 387 [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, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [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, 200 N.Y.S.2d 627, 167 N.E.2d 328 [1960] ).

False Arrest and False Imprisonment

Defendants' motion seeking summary judgment with respect to plaintiff's claims for false arrest and false imprisonment is denied. On this record, with respect to the foregoing causes of action, defendants fail to establish—beyond a factual dispute—that plaintiff's arrest was based on probable cause. Specifically, plaintiff's testimony controverts defendants' contention that the initial police conduct—to which his subsequent arrest was inextricably tied—was lawful. Thus, if credited, plaintiff's testimony negates probable cause to initially stop him, which is fatal to defendants' claim of qualified immunity for his subsequent arrest on grounds that he possessed counterfeit money.

Whenever an arrest and imprisonment arise without a warrant, the presumption is that such arrest and imprisonment were unlawful ( Smith v. County of Nassau, 34 N.Y.2d 18, 23, 355 N.Y.S.2d 349, 311 N.E.2d 489 [1974] ). A plaintiff seeking to establish a cause of action for false arrest and/or imprisonment must establish that (1) the defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged ( id. at 22, 355 N.Y.S.2d 349, 311 N.E.2d 489 ; Hernandez v. City of New York, 100 A.D.3d 433, 433, 953 N.Y.S.2d 199 [1st Dept.2012] ; Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; Broughton v. State, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975] ; Rivera v. County of Nassau, 83 A.D.3d 1032, 1033, 922 N.Y.S.2d 168 [2d Dept.2011] ). When confronted with such a claim and concomitant proof, the defendant can nevertheless prevail if he proves legal justification for the arrest and imprisonment, which "may be established by showing that the arrest was based on probable cause" ( Broughton, at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; Martinez, at 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 ; Rivera, at 1033, 922 N.Y.S.2d 168 ). While post-arrest judicial participation will not validate an unlawful arrest, evidence of a subsequent arraignment or indictment is, in fact, proof of the presence of probable cause at the time of the arrest ( Broughton, at 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; Hernandez, at 433–434, 953 N.Y.S.2d 199 ). Moreover, a conviction which survives appeal is also conclusive evidence that probable cause existed at the time of the arrest (id. ). Conversely, a subsequent dismissal, acquittal or reversal on appeal is proof tending to establish the absence of probable cause at the time of the arrest (id. ).

Probable cause, also defined as reasonable cause, exists

[w]here an officer, in good faith, believes that a person is

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