Washington–Herrera v. Town of Greenburgh

• Decision Date: 19 December 2012
• Citation: 101 A.D.3d 986,2012 N.Y. Slip Op. 08720,956 N.Y.S.2d 487
• Parties: Alexander WASHINGTON–HERRERA, respondent, v. TOWN OF GREENBURGH, et al., defendants, Town of Greenburgh Sgt. Edward Olson, etc., appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 986

956 N.Y.S.2d 487

2012 N.Y. Slip Op. 08720

Alexander WASHINGTON–HERRERA, respondent,

v.TOWN OF GREENBURGH, et al., defendants,Town of Greenburgh Sgt. Edward Olson, etc., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 19, 2012.

Thomas J. Troetti, White Plains, N.Y., for appellant.

Young & Bartlett, LLP, White Plains, N.Y. (Francis X. Young and Nicole McErlean of counsel), for respondent.

ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for violation of civil and constitutional rights pursuant to 42 USC § 1983, the defendant Town of Greenburgh Sgt. Edward Olson appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered September 30, 2011, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Town of Greenburgh Sgt. Edward Olson for summary judgment dismissing the complaint insofar as asserted against him is granted.

On September 13, 2008, the plaintiff was arrested in his home pursuant to an arrest warrant on charges that he committed criminal mischief in the second degree, a class D felony ( seePenal Law § 145.10). The accusatory instrument that resulted in the issuance of the arrest warrant was based on signed statements from the plaintiff's girlfriend and the father of the plaintiff's girlfriend. Town of Greenburgh Sgt. Edward Olson (hereinafter Olson) was a member of the tactical team that, on orders of the chief of the Town of Greenburgh Police Department (hereinafter the police department), forcibly entered the plaintiff's home and effectuated the arrest. At the time of the plaintiff's arrest, the police department had received information that, inter alia, the plaintiff had been seen with a gun two days earlier, had threatened to shoot his girlfriend, was possibly holding his girlfriend hostage in his home, and kept three pit bulls in his home.

Following his arrest, the plaintiff was indicted on numerous charges, but was later acquitted on all counts. Thereafter, the plaintiff commenced this action against Olson, among others, asserting a cause of action pursuant to 42 USC § 1983 that alleged use of excessive force in violation of his rights under the Fourth Amendment to the United States Constitution, as well as state common-law causes of action sounding in assault and battery, false arrest, and false imprisonment, and causes of action sounding in malicious prosecution under both state law and pursuant to 42 USC § 1983. In an order entered September 30, 2011, the Supreme Court, inter alia, denied Olson's motion for summary judgment dismissing the complaint insofar as asserted against him. Olson appeals.

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” ( Rivera v. County of Nassau, 83 A.D.3d 1032, 1033, 922 N.Y.S.2d 168;see Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310,cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257). “A [42 USC] § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law” ( Weyant v. Okst, 101 F.3d 845, 852 [citation omitted] ).

Olson submitted evidence that “the plaintiff was arrested pursuant to a facially valid arrest warrant issued by a court having jurisdiction” ( Campbell v. County of Westchester, 80 A.D.3d 641, 641–642, 914 N.Y.S.2d 674). Accordingly, he established, prima facie, his entitlement to judgment as a matter of law dismissing the false arrest and false imprisonment causes of action by showing that the plaintiff's confinement was privileged ( id.;see Lyman v. Town of Amherst, 74 A.D.3d 1842, 903 N.Y.S.2d 626).

The plaintiff failed to raise a triable issue of fact in opposition. Contrary to the plaintiff's contention, the defendant was entitled to enter his home forcibly for the purpose of executing a felony arrest warrant founded on probable cause ( see Payton v. New York, 445 U.S. 573, 602–603, 100 S.Ct. 1371, 63 L.Ed.2d 639;People v. Gerecke, 34 A.D.3d 1260, 1261, 823 N.Y.S.2d 797;People v. Murray, 267 A.D.2d 492, 494, 700 N.Y.S.2d 240). “Where a warrant of arrest is issued by a court of competent jurisdiction, there is a presumption that the arrest was issued on probable cause” ( Lyman v. Town of Amherst, 74 A.D.3d at 1842, 903 N.Y.S.2d 626 [internal quotation marks omitted]; see Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283–284, 532 N.Y.S.2d 234, 528 N.E.2d 157;Broughton v. State of New York, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310), and the plaintiff did not rebut this presumption. Accordingly, Olson was entitled to summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against him.

“Generally, when there is an alleged unlawful arrest made pursuant to a valid warrant, the appropriate form of action is malicious prosecution, not false imprisonment” ( Williams v. City of Buffalo, 72 A.D.2d 952, 953, 422 N.Y.S.2d 241). “In order to prevail on a [42 USC] § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law” ( Manganiello v. City of New York, 612 F.3d 149, 160–161 [citations omitted] ). “The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” ( Broughton v. State of New York, 37 N.Y.2d at 457, 373 N.Y.S.2d 87, 335 N.E.2d 310).

“Once a suspect has been...