GONZALEZ v. CITY OF NEW YORK

303906/15.

2017 NY Slip Op 51000(U)

STEVEN GONZALEZ, Plaintiff(s), v. THE CITY OF NEW YORK, CITY OF NEW YORK POLICE OFFICER JOHN STOLTENBORG OF PATROL BOROUGH, SHIELD [REDACTED], TAX REG. [REDACTED], CITY OF NEW YORK SGT. BRIAN CLEMENTS OF PATROL BOROUGH BRONX, SHIELD [REDACTED], TAX REG. [REDACTED], AND OTHER NEW YORK CITY POLICE OFFICERS ON ARREST NO.B13640269 WHOSE NAMES ARE NOT KNOWN AT THIS TIME N/HA JOHN/JANE DOE I-IV., Defendant(s).

Supreme Court, Bronx County.


Attorney(s) appearing for the Case

John R. Depaola & Associates, Counsel for Plaintiff.

New York City Law Department, Counsel for Defendants.


BEN R. BARBATO, J.

In this action for common law malicious prosecution and violations of 42 USC § 1983 premised upon alleged excessive force, false arrest, false imprisonment, and malicious prosecution, defendants move seeking an order granting them summary judgment pursuant to CPLR § 32121. Defendants saliently aver that they are entitled to summary judgment with respect to plaintiff's causes of action sounding in false arrest, false imprisonment, and malicious prosecution insofar as the evidence establishes ample probable cause for plaintiff's arrest. Plaintiff opposes the instant motion, asserting that questions of fact with respect to the existence of probable cause preclude summary judgment on his remaining common law and federal law claims. Plaintiff also cross-moves seeking leave to amend his complaint to amplify his sixth cause of action sounding in a violations of 42 USC § 1983. Saliently, plaintiff seeks to amplify the cause of action as against the individually named defendants on grounds that discovery has yielded facts pertinent to the foregoing cause of action.

For the reasons that follow hereinafter, defendants' motion is granted and plaintiff's cross-motion is denied.

The instant action is for common law excessive force, false arrest, false imprisonment, malicious prosecution, negligence in the hiring and retention of police officers and for violations of 42 USC § 1983 premised on the foregoing common law causes of action and as aginst the municipal defendant for an injurious custom and practice. Within his complaint, plaintiff alleges that on June 9, 2013, in the vicinity of 178th Street and Webster Avenue, Bronx, NY, he was battered, falsely arrested and imprisoned, and thereafter, maliciously prosecuted by the defendants. Specifically, plaintiff interposes eight causes of action. The first and second causes of action sound in common law excessive force, wherein plaintiff alleges that on the foregoing date, defendants THE CITY OF NEW YORK (the City), POLICE OFFICER JOHN STOLTENBORG OF PATROL BOROUGH BRONX, SHIELD [REDACTED], TAX REG. [REDACTED] (Stoltenborg), and CITY OF NEW YORK SGT. BRIAN CLEMENTS OF PATROL BOROUGH BRONX, SHILED [REDACTED], TAX REG. [REDACTED] (Clements), without consent wrongfully touched, grabbed, handcuffed and seized plaintiff, causing him physical harm and placing plaintiff in imminent fear of physical harm. The third and fourth causes of action sound in common law false arrest and false imprisonment wherein plaintiff alleges that on the foregoing date and time defendants unlawfully arrested, detained, and imprisoned him without legal right or justification. The fifth cause of action sounds in common law malicious prosecution, wherein plaintiff alleges that defendants, maliciously and without probable cause, prosecuted him. The sixth cause of action alleges that defendants violated 42 USC § 1983 insofar as in battering, assaulting, falsely arresting and imprisoning him, and maliciously prosecuting plaintiff, defendants, acting under the color of law, violated the Fourth and Fourteenth Amendments to the United States Constitution. It is also alleged that the acts herein constitute a municipal custom and practice about which the City was aware. The seventh and eighth causes of action sound in negligent hiring, training and retention, wherein plaintiff alleges that the City was negligent in hiring training and retaining Stoletenborg and Clements, police officers employed by the City, and in failing to implement training and policies designed to prevent the acts alleged by plaintiff.

Defendants' motion seeking summary judgment with respect to the remaining causes of action — common law malicious prosecution and violations of 42 USC § 1983 premised on false arrest, false imprisonment, and malicious prosecution — is hereby granted. Significantly, on this record, defendants establish that plaintiff was arrested because there was ample cause to believe — based on complaints made to the police and observations made by Stoltenborg and Clements — that plaintiff violated PL § 265.03(3]) (Criminal Possession of a Weapon in the Second Degree). Thus, the absence of probable cause being an essential element to all the causes of action sought dismissed, defendants' motion must be granted. Based on the foregoing, plaintiff's cross-motion seeking to amend the complaint to amplify his sixth cause of action is denied as moot.

Defendants' Motion for Summary Judgment

Standard of Review

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 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [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 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 A.D.2d 634, 634 [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 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 A.D.3d 21, 25 [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). 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 [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 [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 Talman (278 A.D.2d 811, 811 [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 [1st Dept 1999]; Perez v Bronx Park Associates, 285 A.D.2d 402, 404 [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 [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 [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 [1960]).

False Arrest and False Imprisonment

Defendants' motion seeking summary judgment with respect to plaintiff's claim that defendants violated 42 USC § 1983 because they falsely arrest and falsely imprisoned him is granted. On this record, with respect to the foregoing cause of action, the record establishes that plaintiff was arrested for, inter alia, Criminal Possession of a Weapon in the Second Degree (PL § 265.03) based on detailed complaints by two eye witnesses and observations by Stoltenborg and/or Clements, indicating that plaintiff was in possession of a gun immediately prior to his arrest; which gun was recovered at or near plaintiff. To the extent that the version of the facts alleged by plaintiff might have exonerate him under the doctrine of temporary and lawful possession, such facts did not preclude his arrest.

Whenever an arrest and imprisonment arise without a warrant, the presumption is that such arrest2 and imprisonment were unlawful (Smith v County of Nassau, 34 N.Y.2d 18, 23 [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; Hernandez v City of New York, 100 A.D.3d 433, 433 [1st Dept 2012]; Martinez v City of Schenectady, 97 N.Y.2d 78, 85 [2001]; Broughton v State, 37 N.Y.2d 451, 457 [1975]; Rivera v County of Nassau, 83 A.D.3d 1032, 1033 [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; Martinez at 85; Rivera at 1033). 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; Hernandez at 433-434). 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 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

(Smith at 24 [internal quotation marks omitted]). A review of CPL §70.10(2), which defines reasonable cause, evinces that provides that reasonable cause is established not only when there is belief that the arrestee has committed a felony, but when he has committed any offense under our Penal Law. Specifically, CPL § 70.10(2) states that

[r]easonable 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.

Accordingly, what is required for an arrest is not "proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been . . . committed" (Jenkins v City of New York, 2 A.D.3d 291, 292 [1st Dept 2003]; People v McRay, 51 N.Y.2d 594, 602 [1980] ["Probable cause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed." (Internal citations omitted)]).

It is exceedingly well settled that

information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest

(Minott v City of New York, 203 A.D.2d 265, 267 [2d Dept 1994]; see Mercado v City of New York, 269 A.D.2d 576, 576 [2d Dept 2000]; People v Lacen, 154 A.D.2d 398, 399 [2d Dept 1989]; People v Brown, 146 A.D.2d 793, 793 [2d Dept 1989]; People v Douglas, 138 A.D.2d 731, 732 [2d Dept 1988]; People v Starr, 221 A.D.2d 488, 489 [2d Dept 1995]). Thus,

[u]nlike a paid or anonymous informant, an eyewitness-victim of a crime can provide probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated. In fact, an accusation against a specific individual from an identified citizen is presumed reliable

(People v Nichols, 156 A.D.2d 129, 130 [1st Dept 1989] [internal quotation marks omitted]; see People v Gonzalez, 138 A.D.2d 622, 623 [2d Dept 1988]). Similarly, provided there is some corroborating proof, a witness alleging that a crime was perpetrated against another gives the police sufficient probable cause to arrest the alleged perpetrator assailant (People v Chipp, 75 N.Y.2d 327, 339-340 [1990]; Agront v City of New York, 294 A.D.2d 189, 189-190 [1st Dept 2002]; People v Powell, 234 A.D.2d 397, 398 [2d Dept 1996]).

In Minott, the court granted municipal defendant's motion for summary judgment, thereby dismissing his causes of action for false arrest and false imprisonment finding that the police had ample probable cause to arrest him for forcible rape after "[t]he victim identified the plaintiff by name, physical description, and place of employment, and described, in detail, the events in question" (Minott at 267). Similarly, in Agront, the court granted the municipal defendant's motion for summary judgment, thereby dismissing plaintiff's claims for inter alia, false imprisonment on grounds that the statements of three eyewitnesses accusing plaintiff of a crime gave rise to sufficient probable cause to arrest him (id. at 189-190).

Even when there exists sufficient facts giving rise to probable cause "the failure to make further inquiry when a reasonable person would have done so may" negate the same and makes probable cause an issue of fact rather than one to be decided as a matter of law (Colon v City of New York, 60 N.Y.2d 78, 82 [1983]; Carlton v Nassau County Police Dept., 306 A.D.2d 365, 366 [2d Dept 2003]). In Carlton, for example, the court held that the issue of probable cause could not be decided as a matter of law insofar as the allegations made against the plaintiff — that he left a restaurant without paying his bill — were disputed by the plaintiff such that further inquiry was required before his arrest (id. at 366). Significantly, however, a police officer need not conduct an exhaustive investigation prior to effectuating an arrest for which he has probable cause. Instead, faced with questionable facts on the issue of probable cause, an arresting officer need only

obtain such facts and information as he could obtain by reasonable diligence, which would enable him to determine whether or not the plaintiff was probably guilty of the offense charged.

(Sweet v Smith, 42 A.D. 502, 509 [4th Dept 1899]). Thus in Sweet, the obligation to make further inquiry arose because

defendant acted upon hearsay evidence in causing the plaintiff's arrest, [and] if such evidence could easily be tested and the truth ascertained, is one element, though not a conclusive one, in determining the question of probable cause.

(id.).

Where the facts leading up to an arrest are undisputed, the existence of probable cause is an issue of law for the court to decide (Parkin v Cornell University, Inc., 78 N.Y.2d 523, 529 [1991]; Burns v Eben, 40 N.Y. 463, 466 [1869]; Wyllie v District Atty. of County of Kings, 2 A.D.3d 714, 718 [2d Dept 2003]; Brown v City of New York, 92 A.D.2d 15, 17 [1st Dept 1983]; Veras v Truth Verification, 83 A.D.2d 381, 384 [1st Dept 1982], affd 57 N.Y.2d 947 [1982]).

In support of their motion, defendants submit plaintiff's 50 hearing and deposition transcripts, which read together, establish the following: On June 9, 2013, at approximately 1AM, plaintiff was arrested outside premises located in the vicinity of 178th Street and Webster Avenue, Bronx, NY. Plaintiff had arrived at the foregoing location on June 8, 2013 at approximately 8PM with his sister Kaila Gonzalez (Kaila) and other members of his family. Plaintiff was wearing a white short-sleeved T-shirt with pink sleves. The premises housed several ballrooms on the second floor and plaintiff was there to attend a graduation party. Sometime after his arrival, as he stood in the hallway with several friends, someone from a group attending another party bumped into plaintiff. The individual who bumped plaintiff refused to apologize and plaintiff went back inside to the party. Thereafter, the party ended and plaintiff and several friends found themselves in the elevator. Kaila was not on the elevator at this point. While therein, the person who bumped into plaintiff earlier that evening and friends of that individual began to punch one of plaintiff's friends. One of the members of the other group then brandished a handgun. Plaintiff knocked the gun from that person's hand, picked it up from the floor and fearing for his safety, fled. Plaintiff then went down the stairs, holding the gun in his right hand, exited the building, walked 20 feet to a parked car and hid the gun behind one of the wheels. In order to hide the gun, plaintiff crouched down, low to the ground. When he initially exited the building, there were several people outside; some of them engaged in arguments. Plaintiff then went back and attempted to enter the building but couldn't because there were several fights taking place. As he stood outside the building, he felt a blow to his head and was immediately arrested by Stoltenborg, an undercover police officer. Plaintiff was told to get up against a gate, he was searched, handcuffed and then sat down. As this was transpiring, plaintiff noticed he was bleeding from his head. He also saw his sister who was speaking to the police officers on the scene. Plaintiff overheard his sister tell the police that plaintiff had done nothing wrong. Nevertheless, plaintiff was put into an unmarked police car, taken to precinct, finger printed and then taken to the hospital, where he received several staples to his head. Upon his initial arrival at the precinct, plaintiff saw Kaila, and learned that she had told the police the circumstances leading plaintiff to possess the gun. After returning to the precinct from the hospital, plaintiff also gave the police a written statement0 wherein he indicated the circumstances leading him to possess a gun. Plaintiff was nevertheless transported to the courthouse, arraigned and imprisoned until June 11, 2013, when he was released after posting bail. Plaintiff was charged with criminal possession of a weapon, which charge was ultimately dismissed, after an indictment.

Defendants also submit Soltenborg's deposition transcript wherein he testified, in pertinent part, as follows: On June 9, 2013, he was a police officer employed by the City's police department, assigned to the Anti-Crime Unit, and wearing plainclothes. At approximately, 3AM, while in an unmarked police car with his partner Brian Manning, he received a call requesting additional units at 1940 Webster Avenue, Bronx, NY. The call indicated that a large crowd was involved in a fight. Soltenrborg reported there and observed a fight, including an individual attempting to hit another with a Hookah pipe. Upon exiting his vehicle, the crowd scattered and Soltenborg received a call indicating that there was a man with a gun in the immediate area. The description indicated that the man in question was wearing a white T-shirt with pink sleeves. Soletenberg received the same complaint and description from people at the scene, including Esther Batista (Batista) and Emanuel Santana (Santana), a bouncer at the premises, which housed a ballroom. Soltenborg began to canvas the area in search of the person with the gun. About a block away, he saw plaintiff who was wearing a white t-shirt with pink sleeves. Soltenborg identified himself as an officer and asked plaintiff to stop. Soltenborg then noticed that plaintiff was bleeding from his head and asked him to sit. Immediately thereafter, Clements approached Soltenborg, telling him that he had just observed plaintiff crouching near a parked van. Soltenborg search the area near the van and recovered a gun. Plaintiff was arrested and taken back to the precinct. While at the precinct, plaintiff indicated that he had been in possession of the gun recovered by Soltenborg because he found it on the floor inside the ballroom. Plaintiff further stated that he hid the gun because he did not want anyone to get in trouble. Soltenberg spoke to the district attorney, executed the criminal complaint against plaintiff and testified before the grand jury which indicted plaintiff.

Defendants submit Clements' deposition transcript wherein he testified, in pertinent part, as follows: On June 9, 2013, Clements was a sergeant employed by the City's police department. He was assigned to the Patrol Borough Anti-Crime Unit At approximately 2:55AM, while on patrol in an unmarked vehicle, Clements received a call indicating that officers needed assistance at 1940 Webster Avenue. He along with an officer serving as Clements' driver reported to the foregoing location. Upon arrival, he observed a large crowd and an individual atop another. The person on top was stabbing the other. Clements and other officers asked the individuals to stop and they did. Thereafter, Clements was approached by someone indicating that there was a Hispanic man with a gun in the area and that he was wearing a pink shirt. Clements then saw plaintiff, who was wearing a pink shirt. Clements saw plaintiff crouch down near a car, pop back up and walk away towards other officers. Clements approached plaintiff and the officers, one of which was Stoltenborg. Clements told Stoltenborg that he had just seen plaintiff crouch down near a vehicle. Stoltenborg searched the area near the vehicle, recovering a gun. Plaintiff was then arrested.

Defendants submit a host of documents. Specifically, defendants submit a police complaint report indicating that plaintiff was arrested in front of 1940 Webster Avenue, Bronx, NY and charged with Criminal Possession of a Weapon in the Second Degree (PL § 265.03). The report lists Batista and Santana as complaining witnesses, listing their addresses therein. The report also indicates that in connection with the complaint, a 9MM semiautomatic pistol was recovered. Defendants submit an arrest report, which contains much of the information listed in the complaint report. The arrest report, lists Stoltenborg as the arresting officer and indicates that the basis for the arrest is that plaintiff was observed to be in possession of a loaded firearm. Defendants submit the criminal complaint signed by Stoltenborg, which indicates that plaintiff was being charged with, inter alia, violating PL § 265.03 because Celements saw plaintiff in possession of a handgun, which plaintiff, according to Clements, placed on the ground. Lastly, defendants submit an indictment dated October 9, 2013, which indicates that plaintiff was indicted by a grand jury for violating, inter alia, PL 265.03.

Based on the foregoing, defendants establish prima facie entitlement to summary judgment with respect to plaintiff's claim pursuant to 42 USC § 1983, insofar as premised on false arrest and false imprisonment.

Preliminarily, contrary to plaintiffs' assertion, all of the documentary evidence submitted by defendants is — while lacking the proper foundation — nevertheless admissible. As noted above, "[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" (Friends of Animals at 1067-1068 [internal citations omitted]). Here, while the documentary evidence submitted by defendants was exchanged through discovery, this is not a substitute for a proper foundation, the absence of which ordinarily precludes the Court from considering said evidence (Tougher Industries, Inc. v Dormitory Authority of State, 130 A.D.3d 1393, 1396 [3d Dept 2015] ["The mere fact that the email was originally produced by defendant during discovery does not, as plaintiff contends, alter that requirement," namely, that a foundation for the same's admissibility be laid.]).

Here, the records at issue are presumably business records and, thus, can generally be admitted for consideration at trial or on a motion upon a proper foundation — namely, that (1) the record be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 N.Y.2d 569, 579 [1986]). Significantly, here, where the documents submitted by defendants are mostly NYPD records, the same could have been admitted in evidence, and a business foundation laid had they simply borne a certification by some one from the NYPD reciting the elements of business records foundation (CPLR § 4518[c]; § 2307). Despite defendants' failure to lay the requisite foundation, the Court — as urged by defendants — nonetheless deems that the records submitted — mostly NYPD records memorializing plaintiffs' arrest — are sufficiently self-authenticating so as to warrant their admission in evidence for purposes of this motion absent the requisite foundation (Kennedy at n 4 ["No contention is made that the diaries are so patently trustworthy as to be self-authenticating, with no need from a qualifying witness."]; Niagara Frontier Tr. Metro Sys. v County of Erie, 212 A.D.2d 1027, 1027-1028 [4th Dept 1995] ["Supreme Court erred by refusing to consider, on Metro's motion for summary judgment, the financial statement of the Niagara Frontier Transportation Authority (NFTA), of which Metro is a subsidiary. The financial statement, introduced through the affidavit of Metro's chief financial officer, is a business record and so clearly so that it can be deemed self-authenticating. Moreover, defendant did not object to the court's consideration of the financial statement, but likewise relied upon it in support of its argument" (internal citations omitted).]). To be sure, virtually all the records submitted bear official NYPD insignias and indeed detail the facts underlying plaintiffs' arrest. Thus, there can be no doubt that these are official NYPD records, which are business records, and which are clearly self-authenticating3.

Substantively, defendants establish prima facie entitlement to summary judgment with respect to the false arrest and false imprisonment claims insofar as the evidence tendered establishes that plaintiff was arrested based on ample probable cause. Specifically he was arrested because he was observed by two witnesses with a gun and by a police officer who saw him deposit something under a car — that something, turning out to be a gun.

As discussed, above, whenever an arrest and imprisonment arises without a warrant, the presumption is that such arrest and imprisonment were unlawful (Smith at 23). Accordingly, when confronted with such a claim and concomitant proof, a 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; Martinez at 85; Rivera at 1033). Probable cause exists when "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 (Smith at 24 [internal quotation marks omitted]). Stated differently, probable cause exist when there is reasonable cause to believe that a person committed an offense under the penal law, meaning

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

(CPL § 70.10[2]). Additionally, it is well settled that information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest (Minott at 267; see Mercado at 576; Lacen at 399; Brown at 793; Douglas at 732; Starr at 489). 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; Hernandez at 433-434)

Here, read together, the testimony proffered in support of this motion makes it clear that plaintiff was arrested because, while wearing a white shirt with pink sleeves, he was observed carrying a loaded handgun at or near the 178th Street and Webster Avenue and because thereafter he was observed concealing that gun under a parked car. To be sure, plaintiff testified that he exited a premises at or near the foregoing location carrying a handgun. Upon exiting, he noticed several people outside the premises and proceeded to walk several feet while carrying the handgun. Thereafter, plaintiff crouched down to the ground near a vehicle, hiding the handgun behind a tire. Immediately thereafter, he was approached by the police, asked to sit, and arrested. Plaintiff's testimony was corroborated by Stoltenborg, who testified that he arrested plaintiff upon receiving a call and two eyewitness complaints about a man wearing plaintiff's who was carrying a gun in the area of the instant premises and because he recovered a gun from at or near a car which Clements indicated he had seen plaintiff crouching. Clements also corroborated plaintiff's testimony in that he testified that when he reported to the location herein, he was told that there was a Hispanic man with a gun in the area and that he was wearing a pink shirt. Clements then saw plaintiff, wearing a pink shirt, saw plaintiff crouch down near a car, pop back, up and walk away towards other officers. Clements testified that he conveyed the foregoing to Stoltenborg.

Since a person violates PL § 265.03(1)(b) when he "possesses a loaded firearm," the foregoing testimony establishes a violation of the foregoing statute and thus, ample probable cause for plaintiff's arrest. Significantly, here, all the testimony described above establishes that at the time of the arrest, the police knew that plaintiff had been in possession of a handgun, which turned out not to be his or one he could legally possess. To be sure, Stoltenborg arrested plaintiff based on the description provided to him by Batista and Santana, identifiable complainant eyewitnesses, both of whom described a man with a gun wearing a shirt matching plaintiff's and because Clements — a fellow police officer — saw plaintiff crouching at the location from which Stoltenborg then recovered a gun. Thus, Stoltenborg had reason to believe that plaintiff was guilty of a felony, [namely a violation of PL § 265.03,] and his belief rest[ed] on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise (Smith at 24). In addition, to the foregoing, plaintiff was thereafter indicted and, standing alone, the foregoing indictment by a grand jury on October 9, 2013 for the crime for which he was arrested establishes probable cause for arrest and is, thus, sufficient to meet defendants' burden on this motion (Broughton at 457; Hernandez at 433-434).

Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Saliently, plaintiff contends that he should not have been arrested because he testified that he came to possess the instant gun under circumstances entitling him to exoneration under the doctrine of temporary and lawful possession. Plaintiff contends that because Stoltenborg, at the scene and before plaintiff's arrest, was apprised by Kaila — plaintiff's sister — about facts falling within the ambit of temporary and lawful possession4, plaintiff committed no crime, and at the very least there is a question of fact as to whether there was probable cause to arrest him. This argument is unavailing.

As noted by plaintiff, when there exist sufficient facts giving rise to probable cause "the failure to make further inquiry when a reasonable person would have done so may" negate making probable cause an issue of fact rather than one to be decided as a matter of law (Colon at 82; Carlton at 366). This, however, does not mean that a police officer is required to engage in a pre-arrest investigation. Indeed, "the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they ha[ve] knowledge of the lead and the capacity to investigate it" (Gisondi v Town of Harrison, 72 N.Y.2d 280, 285 [1988]). Instead, faced with questionable facts on the issue of probable cause, an arresting officer need only

obtain such facts and information as he could obtain by reasonable diligence, which would enable him to determine whether or not the plaintiff was probably guilty of the offense charged.

(Sweet at 509). Stated diffrently

Probable cause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed

(McRay at 602 [internal citations omitted]).

Here, where plaintiff was arrested upon the identification of two eyewitness and the observations of two police officers, and upon the arrest yielded a weapon which plaintiff concedes he possessed and immediately prior to his arrest, probable cause to arrest was extant. Thus, defendants had reasonable cause to believe that plaintiff committed a crime and there was no question that the facts known to Stoltenborg at the time he arrested plaintiff were tantamount to a violation every element of the crime charged. On this record, then, at the time of plaintiff's arrest, there was no doubt that a crime had been committed and that plaintiff — identified by two witnesses and because portions of the crime was witnessed by an officer (Clements) — had committed said crime. Here, then, there were no facts requiring defendants to make a further inquiry. To be sure, unlike the plaintiff in Sweet, here, plaintiff was not arrested solely on hearsay nor could — contrary to plaintiff's assertion — the truth of the excuse proffered by Kaila be easily tested (id. at 509). Thus, probable cause to arrest has been established as a matter of law.

Significantly, what plaintiff urges is that defendants should have undertaken a pre-arrest investigation, which would have yielded plaintiff's entitlement to the defense of temporary lawful possession of a handgun such that he never would have been arrested. Plaintiff, thus, urges the Court to cast the defendants in the role of the prosecutor, the Court, and perhaps the jury. This of course, is contrary to well settled law. Simply put, plaintiff urges that the Court find that defendants' failure to credit information provided by a family member (Kaila) about the existence of a defense or to interview witnesses at the scene to ascertain the applicability of such defense — not the absence of any element of the crime charged — raises an issue as of fact with respect to probable cause. Again, "the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they ha[ve] knowledge of the lead and the capacity to investigate it" (Gisondi at 285 [1988]). Indeed the onus urged by plaintiff would impermissibly expand the duty imposed upon police officers requiring them to act as investigators and lawyers and make on the scene determinations about meritorious legal defenses. Taken to its logical conclusion, plaintiff's assertion would require that a police officer at the scene of a shooting conduct a pre-arrest investigation, determine if the suspect is entitled to justification defense, test the veracity of witnesses, and refuse to arrest a suspect despite clear evidence that the suspect shot someone. Clearly, this is not what the law requires and, thus, defendants' motion for summary judgment with respect to the claims of false arrest and false imprisonment is granted.

Malicious Prosecution

Defendants' motion seeking summary judgment with respect to plaintiff's claim for malicious prosecution is hereby granted insofar as defendants establish the existence of probable cause for the arrest and, therefore, the subsequent prosecution.

The tort of malicious prosecution5 provides protection from and provides redress for the initiation of unjustifiable litigation (Broughton at 457). However, since public policy favors bringing criminals to justice, the system must afford accusers room for benign misjudgments (Smith-Hunter v Harvey, 95 N.Y.2d 191, 195 [2000]). This, of course, fosters the long standing belief that the court system is open to all without fear of reprisal through the use of retaliatory lawsuits (Curiano v Suozzi, 63 N.Y.2d 113, 119 [1984]). Thus, a plaintiff asserting a cause of action for malicious prosecution must satisfy a heavy burden (Smith-Hunter at 195).

The essence of a cause of action for malicious prosecution is the perversion of proper legal procedures (Broughton at 457; Boose v City of Rochester, 71 A.D.2d 59, 65 [4th Dept 1979]). As such, a prior judicial proceeding is the sine qua non, of such cause of action (id. at 65). Simply stated, then, a cause of action for malicious prosecution is one where it is alleged that a legal proceeding was maliciously initiated "without probable cause for doing so which finally ends in failure" (Curiano at 118). The elements of the cause of action for malicious prosecution stemming from a prior criminal proceeding, all of which are required for recovery, are (1) the commencement or continuation of a prior criminal proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior criminal proceeding; and (4) actual malice (Cantalino v Danner, 96 N.Y.2d 391, 394 [2001]; Smith-Hunter at 195; Colon v City of New York, 60 N.Y.2d 78, 82 [1983]; Martin v City of Albany, 42 N.Y.2d 13, 16 [1977]; Broughton at 457; Heany v Purdy, 29 N.Y.2d 157, 159-160 [1971]). Actual malice can be inferred by the absence of probable cause to effectuate an arrest or by conduct that is reckless or grossly negligent (Fortunato v City of New York, 63 A.D.3d 880, 881 [2d Dept 2009]). Probable cause for the prosecution can be presumed if a criminal defendant is indicted by the grand jury, such presumption can be overcome, however, if "the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (Haynes v City of New York, 29 A.D.3d 521, 523 [2d Dept 2006]). The elements for a malicious prosecution cause of action based upon a prior civil action are identical except, that in addition to the foregoing, it must be proven that plaintiff sustained special damage or injury (The Purdue Frederick Company v Steadfast Insurance Company, 40 A.D.3d 285, 286 [1st Dept 2007]; Wilhelmina Models, Inc. v Fleischer, 19 A.D.3d 267, 269 [1st Dept 2005]; Honzawa v Honzawa, 268 A.D.2d 327, 329 [1st Dept 2000]. Generally, special damages mean that the prior action interfered with a plaintiff's person or property (Williams v Williams, 23 N.Y.2d 592, 604 [1969]; The Purdue Frederick Company at 286; Wilhelmina Models, Inc. at 269; Honzawa at 329) or proof of "concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 N.Y.2d 195, 205 [1999]).

Whether an action is terminated favorably so as to give rise to a cause of action for malicious prosecution depends on how the action was terminated. In Levy's Store, Inc. v Endicott-Johnson Corporation (272 N.Y. 155 [1936]), the court confronted with this very issue stated

[i]t is true that where a proceeding has been determined in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant, as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. Where, however, the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action. The underlying distinction which leads to these different rules is apparent. In one case, the termination of the proceeding is of such a character as establishes or fairly implies lack of a reasonable ground for the prosecution. In the other case, no such implication reasonably follows

(id. at 162; see also, Loeb v Teitelbaum, 77 A.D.2d 92, 100 [2d Dept. 1980]). Thus, a favorable termination on the merits and in favor of the accused or defendant in the prior action — since it implies lack of probable cause — satisfies the element of favorable termination in a cause of action for malicious prosecution, while a termination chargeable to the plaintiff or complainant in the prior action, such as settlement, withdrawal or discontinuance, does not (Levy's Store, Inc. at 162; Loeb at 100). In Pagliarulo v Pagliarulo (30 A.D.2d 840, 840 [2d Dept 1968]), the court held defendant's agreement to discontinue a prior action served to bar plaintiff's action for malicious prosecution insofar as discontinuance of the prior action against the plaintiff was not a favorable termination.

For purposes of malicious prosecution, probable cause means facts and circumstances which would lead a reasonably prudent person, in similar circumstances, to conclude that plaintiff was guilty of the acts alleged (Colon v. City of New York, 60 N.Y.2d 78, 82 [1983]; Munoz v City of New York, 18 N.Y.2d 6, 10 [1966]; Fink v Shawangunk Conservatory, Inc., 15 A.D.3d 754, 755 [3d Dept 2005]; Boose at 67). Whether there is probable cause to initiate a prosecution hinges on whether defendant's conduct at the time he/she commenced the prior proceeding would have led a reasonably prudent person to initiate the prior proceeding (Levy's Store, Inc. at 161; Loeb at 102; Kezer v Dwelle-Kaiser Company, 222 A.D. 350, 354 [4th Dept 1927]). When the facts regarding the existence of probable cause and the inferences to be drawn therefrom are undisputed, the existence of probable cause can be decided as a matter of law (Parkin v Cornell University, Inc., 78 N.Y.2d 523, 528-529 [1991]; Lundgren v Margini, 30 A.D.3d 476, 477 [2d Dept 2006]).

Here, as discussed above, defendants evidence establishes that there was ample probable cause to arrest plaintiffs for violating PL § 265.03 in that he possessed a firearm. Accordingly, since absence probable cause is essential to a claim of malicious prosecution (Cantalino at 394; Smith-Hunter at 195; Colon at 82; Martin at 16; Broughton at 457; Heany at 159-160), its existence precludes such claim. Since, here, probable cause exists as a matter of law, plaintiff cannot establish its absence and, therefore, cannot establish an essential element to that cause of action. Defendants, therefore, establish prima facie entitlement to summary judgment and, nothing submitted by plaintiff in opposition raises a question of fact sufficient to preclude summary judgment.

Plaintiff's Cross-Motion to Amend Complaint

Because defendant has not moved to dismiss the only remaining cause of action — excessive force under 42 USC § 1983 against Stoltenborg and Clements — for failing to state a cause of action, plaintiff's cross-motion to amend his complaint to amplify his sixth cause of action, wherein he pleads the same, is denied as moot. Clearly, defendants have conceded to the sufficiency of the pleadings as it relates to the remaining cause of action thereby obviating amplification of the same. It is hereby

ORDERED that with the exception of plaintiff's sixth cause of action, all other causes of action be hereby dismissed. It is further

ORDERED that the sixth cause of action be limited to one pursuant to 42 USC § 1983 solely against Stoltenborg and Clements and solely predicated on a claim that they used excessive force against plaintiff. It is further

ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

FootNotes


1. While defendants initially moved for dismissal of several causes of action as time-barred pursuant to CPLR § 3211(a)(5),because the complaint fails to state a cause of action pursuant to CPLR § 3211(a)(7), and for summary judgment pursuant to CPLR § 3212, plaintiff withdraws several causes of action, thereby rendering moot much of the relief sought. Thus, because plaintiff withdraws all state law claims except the one sounding in malicious prosecution, the court shall not address defendants' motion for dismissal pursuant to CPLR § 3211(a)(5) nor the portion of defendants' motion seeking summary judgment over plaintiff's state law claim claims against the municipal defendant for the negligent hiring and retention of the individual defendants. Similarly, insofar as plaintiff withdraws his 42 USC § 1983 claim against the municipal defendant, which comprises the sole basis for defendant's motion seeking dismissal for failure to state a cause of action, the Court shall not address the portion of defendants' motion seeking dismissal pursuant to CPLR § 3211(a)(7).
2. "A § 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. The existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983 [internal citations omitted]." (Weyant v Okst, 101 F.3d 845, 852 [2d Cir 1996]; Hygh v Jacobs, 961 F.2d 359, 366 [2d Cir 1992]). Thus, the bulk of this decision refers to prevailing State law.
3. Notably, even if the Court does not consider the instant records, summary judgment would nevertheless be warranted because the deposition transcripts submitted establish the presence of probable cause to arrest the plaintiff as a matter of law.
4. "In some circumstances, however, a person may possess an unlicensed or proscribed weapon and still not be guilty of a crime because of the innocent nature of the possession. This defense of `temporary and lawful' possession applies because as a matter of policy the conduct is not deemed criminal" (People v Almodovar, 62 N.Y.2d 126, 130 [1984]; People v La Pella, 272 N.Y. 81, 83 [1936]). A criminal defendant may not be guilty of unlawful possession of a weapon when the jury finds that he found the weapon shortly before his possession of it was discovered and he intended to turn it over to the authorities (Almodovar at 130). Significantly, when applicable, the forgoing defense negates both the criminal act of possession and the intent with which the act is undertaken when intent is an element of the crime (id.).
5. "The elements of false arrest and malicious prosecution under § 1983 are `substantially the same' as the elements under New York law. Therefore, the analysis of the state and the federal claims is identical. The pivotal issue in the present case is the presence, or absence, of probable cause for both the arrest and subsequent prosecution of Boyd. If there was probable cause for the arrest, then a false arrest claim will fail. Similarly, if there was probable cause for the prosecution, then no malicious prosecution claim can stand" (Boyd v City of New York, 336 F.3d 72, 75 [2d Cir 2003]). Thus, the Court decides this motion using prevailing State law.

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