Vargas v. City of N.Y.

CourtUnited States State Supreme Court (New York)
Writing for the CourtJAMES E. D'AUGUSTE, J.
Citation56 N.Y.S.3d 438,56 Misc.3d 523
Decision Date11 April 2017
Parties Walter VARGAS, Plaintiff, v. The CITY OF NEW YORK, Defendant.

56 Misc.3d 523
56 N.Y.S.3d 438

Walter VARGAS, Plaintiff,
The CITY OF NEW YORK, Defendant.

Supreme Court, New York County, New York.

April 11, 2017.

56 N.Y.S.3d 440

Lincoln Square Legal Services, Inc., Fordham University School of Law, New York City (Martha Rayner of counsel), for plaintiff.

Zachary W. Carter, Corporation Counsel, New York City (Kate McMahon of counsel), for defendant.


Plaintiff Walter Vargas ("Vargas") and defendant The City of New York ("City") move and cross-move, respectively, for summary judgment. For the reasons set forth herein, Vargas' motion is denied and the City's cross-motion is granted.

Factual and Procedural Background

The undisputed facts, as relevant to this motion, are as follows: On September 21, 2010, Vargas was stopped by New York City Police Department ("NYPD") Officers Brian Buith and Gurvinde Singh (collectively, "the officers") for a transit offense. The officers directly observed Vargas pass between two cars on a moving subway train in violation of 21 NYCRR 1050.9(d), an offense punishable by "criminal prosecution in the criminal court of the City of New York" and up to ten days in jail (21 NYCRR 1050.10(a) ). The officers immediately approached Vargas, informed him that he was not permitted to walk through the end doors of a subway car to change cars, asked for his identification, to which he responded by producing a valid New York State driver's license on the train, and ordered him to get off the subway at the next stop. The officers then escorted Vargas to the mezzanine area of the subway station. Officer Singh remained with Vargas while Officer Buith went up to the street level to make a phone call to his precinct in order to determine if he had any active warrants or was a transit recidivist via a single record check, pursuant to an NYPD policy contained in a Transit Bureau Roll Call Training Memo dated December 16, 2009 (the "Policy"). See Porter Aff. Ex. 7.

Upon calling his base, Officer Buith received a 10–18 response, which meant, as indicated in the Policy, discussed infra, that Vargas either had an open warrant or was a transit recidivist because he had previously been convicted of a transit-related offense. Vargas was then handcuffed and arrested, during which time the officers observed him drop a marijuana cigarette to the ground and step on it. Officer Buith then searched Vargas' person. Approximately six minutes elapsed from the time the officers observed Vargas illegally walk through subway cars on the moving train until the time he was handcuffed. Vargas was charged with Unsafe Riding in Restricted Areas Within the Transit Authority (New York City Transit Authority Regulation ("TAR") Section 1050.9(d) (21 NYCRR 1050.9(d) )), Criminal Possession of Marijuana (New York Penal Law ("PL") Section 221.10(1) ) and Tampering with Physical Evidence (PL Section 215.40(2)). Vargas was arraigned on September 22, 2010 at New York City Criminal Court. On April 13, 2011, Vargas pled guilty to Disorderly Conduct in violation of PL Section 240.20, was sentenced to four days of community service, and paid a $120.00 mandatory surcharge.

56 N.Y.S.3d 441

The Policy states that "all persons stopped for [transit offense] violations will be the subject of a '10–75W' name check via radio. Arrests of rule violators will be predicated on any of the following factors, resulting in a 10–18 response by the Communications Division." Porter Aff. Ex. 7 (emphasis omitted). The Policy provides that individuals who commit a transit offense are subject to formal arrest if they have an active warrant or they are classified as a transit recidivist (a 10–18 response).1 Id. A "transit recidivist" was defined by the Policy in force at the time of Vargas' arrest as an individual who: (1) received five or more transit offenses ("TABs")2 within a 24–month period, (2) had any prior arrest for any offense in the transit system, (3) had any prior felony arrest in New York City, or (4) had an active warrant. Porter Aff. Ex. 7.3 Further, the Policy stated that "[t]he absence of a predicate factor does not prohibit the arrest of an individual who cannot be issued a TAB/NOV due to a lack of identification or the failure to verify the same." Porter Aff. Ex. 7.4 Based upon the Policy, any individual who committed a TAB violation, violated the NYCRR, or committed fare evasion with an aggravating factor5 must be arrested, but could be given a desk appearance ticket ("DAT"), if eligible. Porter Aff. Ex. 7. The only individuals to whom NYPD officers were required to give a summons were individuals committing fare evasion.6

On December 1, 2011, Vargas commenced this action against the City and Officers Buith and Singh.7 In the first amended complaint, Vargas alleged the facts above and further claimed, inter alia, that "the police practice, in response to minor subway infractions, of moving subway passengers beyond the platform and extending the duration of detention beyond that which is reasonably necessary to issue a warning or summons after passengers

56 N.Y.S.3d 442

provide a valid form of identification, is unconstitutional." Rayner Aff. Ex. B, ¶ 34. Vargas alleged that by wrongfully detaining him "for a minor subway infraction" in order to check his criminal record, and subsequently arresting him, the City violated Article I, Section 12 of the New York State Constitution ("State Constitution").

Vargas now moves for an order, (1) pursuant to CPLR 3212, seeking summary judgment; (2) pursuant to CPLR 3001 and 3014, for a declaration that the following NYPD policies and practices violate Article I, Section 12 of the State Constitution : (a) moving a subway passenger who has committed a transit offense beyond the subway platform and extending the limited stop beyond the time necessary to issue a ticket or warning, after valid identification is produced; (b) extending the duration and scope of a limited stop of a transit offender, after valid identification is produced, for the purpose of conducting an investigation of the passenger's transit ticket and arrest history; and (c) requiring a full custodial arrest of subway passengers who commit transit offenses based solely on the passenger having transit ticket or arrest history that falls within the NYPD's criteria for designation as a "transit recidivist;" (3) an award of damages that will fully compensate him for his loss of constitutional rights, as well as the humiliation, embarrassment, and emotional distress suffered due to the City's alleged unlawful policy and practice in an amount to be determined at trial; and (4) an award of reasonable attorneys' fees, costs, and expenses incurred in prosecuting this action. The City cross-moves for an order, pursuant to CPLR 3212, seeking summary judgment dismissing all claims pled in the amended complaint.


Although Vargas contends that his rights under Article I, Section 12 of the State Constitution were violated when the City, through the actions of its officers, arrested him, the officers' actions complied in all respects with the State Constitution. The Court's analysis follows.

Probable Cause

The officers had probable cause to arrest Vargas.8 New York Criminal Procedure Law ("CPL") Section 140.10(1)(a) provides the authority for a police officer to arrest an individual without a warrant for "[a]ny offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence." The term "reasonable cause" has been equated with "probable cause." People v. Lombardi, 18 A.D.2d 177, 180, 239 N.Y.S.2d 161 (2d Dep't 1963), aff'd, 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306 (1963).9 Here, Officers Buith and Singh directly observed Vargas pass between two cars of a moving subway train in violation of 21 NYCRR 1050.9(d), which states, in pertinent

56 N.Y.S.3d 443

part, that "[n]o person may use the end doors of a subway car to pass from one subway car to another except in an emergency or when directed to do so by an authority conductor or a New York City police officer." In this instance, there was no ongoing emergency at the time that Vargas passed through the subway cars, nor was he directed to pass through the cars by a police officer or any transit authority conductor. Notably, both state and federal courts that have examined the issue have uniformly held that officers who observe an individual violating 21 NYCRR 1050.9(d) have both authority and probable cause to arrest said person.10 Accordingly, Officers Buith and Singh had probable cause to arrest Vargas when they personally viewed him committing a transit offense in violation of 21 NYCRR 1050.9(d).

Permissibility of Running a Record Check

Vargas' argument that his rights under the State Constitution were violated when the officers extended the stop of a subway passenger for a violation of 21 NYCRR 1050.9(d) in order to investigate the potential existence of outstanding warrants as well as his arrest history after having provided them with valid identification is without...

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