Toenis v. Hommel
| Decision Date | 23 November 1977 |
| Citation | 399 N.Y.S.2d 723,59 A.D.2d 1000 |
| Parties | James E. TOENIS, an infant, by his parent and natural guardian, Helen Toenis, et al., Appellants, v. Francis J. HOMMEL et al., Defendants, and Town of Hunter, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Alex Wiltse, Jr., Catskill (Ralph C. Lewis, Jr., Catskill, of counsel), for appellants.
Anthony C. Bucca, Tannersville, for respondent.
Walter Heffernan, Windham, for defendants (no appearance on the appeal).
Before GREENBLOTT, J. P., and SWEENEY, MAIN, MIKOLL and HERLIHY, JJ.
MEMORANDUM DECISION.Appeal from an order of the Supreme Court at Special Term, entered October 29, 1976 in Greene County, which granted a motion by defendant, Town of Hunter, for summary judgment dismissing the complaint.
In this action for false arrest and false imprisonment, plaintiffs seek damages arising out of their arrest by the Town of Hunter Police Department on October 5, 1974 for criminal trespass in the third degree, a misdemeanor. They were arrested without a warrant by Police Officer Warren Knaust of the Town of Hunter Police Department on the complaint of defendants, Francis J. Hommel and Anna Beth Hommel, that plaintiffs had broken into their automobile.
The plaintiffs were arrested after the Hommels positively identified them as the individuals whom they had accosted in the automobile. The plaintiffs were released from custody several hours after their arrest when two other persons were charged with the crime.
When an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant (Smith v. County of Nassau, 34 N.Y.2d 18, 355 N.Y.S.2d 349, 311 N.E.2d 489). Section 140.10 of the Criminal Procedure Law provides that a police officer may arrest a person without a warrant when he has "reasonable cause" to believe such person has committed a crime. In Smith v. County of Nassau (supra, p. 25, 355 N.Y.S.2d p. 354, 311 N.E.2d p. 454), the Court of Appeals stated:
In many cases where the victim has made a "positive identification", the circumstances may be such as to warrant a court's finding of reasonable cause as a matter of law * * *.
In our view of this case the circumstances under which the "positive identification" was made supports the court's finding of reasonable cause as a matter of law. We must distinguish between the liability of a victim as opposed to the liability of the arresting...
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ROBERTS BY ROBERTS v. City of New York
...cause to make the arrest is determined by the Court, as a matter of law." Tepperman, 508 N.Y.S.2d at 146; Toenis v. Hommel, 59 A.D.2d 1000, 399 N.Y.S.2d 723 (3rd Dept.1977); see also Broadaway v. City of New York, 601 F.Supp. 624 (S.D.N.Y.1985). In this case, while the material facts appear......
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Tepperman v. New York City Transit Authority
...reasonable cause to make the arrest is determined by the Court, as a matter of law (Burns v. Erben, 40 N.Y. 463 (1869); Toenis v. Hommel, 59 A.D.2d 1000, 399 N.Y.S.2d 723 Freedman v. New York Society for Suppression of Vice, 248 App.Div. 517, 290 N.Y.S.2d 753 aff'd 274 N.Y. 559, 10 N.E.2d 5......
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Veras v. Truth Verification Corp.
...of probable or reasonable cause to make the arrest is for the court as a matter of law (Burns v. Erben, 40 N.Y. 463; Toenis v. Hommel, 59 A.D.2d 1000, 399 N.Y.S.2d 723; Freedman v. N. Y. Society for the Suppression of Vice, 248 App.Div. 517, 290 N.Y.S. 753, aff'd 274 N.Y. 559, 10 N.E.2d 550......
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Maxwell v. City of New York
... ... that the identification of plaintiff subsequently proved to be invalid does not vitiate the initial existence of probable cause to arrest (see Toenis v. Hommel, ... 9 A.D.2d 1000, 399 N.Y.S.2d 723), which can certainly be based upon a photographic identification (People v. Rhodes, 111 A.D.2d 194, ... ...