Agostinelli v. City of N.Y.

Full title: Maria Agostinelli AND DANIEL RUMPH, Plaintiff(s), v. The City of New York…

Court: Supreme Court, Bronx County

Date published: Nov 17, 2015

2015 N.Y. Slip Op. 51646 (N.Y. Sup. Ct. 2015)

Opinion

302645/13

11-17-2015

Maria Agostinelli AND DANIEL RUMPH, Plaintiff(s), v. The City of New York AND THE NEW YORK CITY POLICE DEPARTMENT, Defendant(s).

Counsel for plaintiffs: Talkin, Muccigrosso & Associates Counsel for Defendants: New York City Law Department

Mitchell J. Danziger, J.

Counsel for plaintiffs: Talkin, Muccigrosso & Associates

Counsel for Defendants: New York City Law Department

Mitchell J. Danziger, J.

In this action for, inter alia, alleged false arrest, false imprisonment, malicious prosecution, and violations of 42 USC § 1983, defendants move seeking an order granting them summary judgment pursuant to CPLR § 3212 ¹ . Specifically, defendants aver that they are entitled to summary judgment with respect to (1) all claims asserted against defendant THE NEW YORK CITY POLICE DEPARTMENT (the NYPD) inasmuch as the NYPD is a non-suable legal entity; (2) plaintiffs' causes of action for false arrest, false imprisonment, and malicious prosecution insofar as the evidence establishes ample probable cause for plaintiffs' arrest; (3) plaintiffs' cause of action for general negligence insofar as such claim, on these facts, is not cognizable under prevailing law; (4) plaintiffs' cause of action pursuant to 42 USC § 1983 insofar as it is premised on a theory of respondeat superior and thus not actionable; and (5) plaintiffs' cause of action for negligence in the training, supervision, hiring, and retention of police officers by defendant THE CITY OF NEW YORK (the City) on grounds that the City admits that at all times those officers were acting within the scope of their employment.

1 Notably, in what appears to be an oversight, defendants fail to move for relief with respect to plaintiffs' cause of action for intentional infliction emotional distress. Nevertheless, upon a search of the record, the Court will, as discussed in detail herein, dismiss that cause of action.

With the exception of the portion of the motion seeking dismissal of the action against the NYPDP, plaintiffs oppose all other portions of defendants' motion ² . Specifically, plaintiffs aver that with respect to their claims for false arrest, false imprisonment, and malicious prosecution, questions of fact preclude summary judgment. Plaintiffs oppose the portion of the instant motion seeking dismissal of the claim pursuant to 42 USC § 1983 - conceding that as currently pled, the claim is not cognizable - on grounds that insofar they seek leave to amend their complaint to add Det. DiSimone (DiSimone) as a defendant - plaintiffs will ultimately have an actionable claim pursuant to Federal Law. Plaintiffs, without formally making a cross-motion, and without any argument in support of such relief, seek leave to amend their complaint to add DiSimone as a defendant. To the extent that the Court is inclined to consider plaintiffs' application to amend the complaint, defendants oppose such relief on grounds that this relief is sought after all discovery has been completed.

2 Notably, plaintiffs fail to oppose the portion of defendants' motion seeking dismissal of their claims for negligence by the City in the training, supervising, hiring, and retention of its police officers.

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

The instant action is for false arrest, false imprisonment, malicious prosecution, negligence, violations of 42 USC § 1983, negligence in the training, supervising, hiring and retention of police officers, and infliction of intentional emotional distress. Within their complaint, plaintiffs alleged that on February 10, 2012, while inside premises located at 774 Fox Street, Apt. 2-D, Bronx, NY, (774), they were falsely arrested and detained by defendants. Specifically, plaintiffs' assert eight causes of action. The first and second are for false arrest, wherein plaintiffs assert that while within 774, they were falsely arrested by police officers employed by the City without any justification. The third cause of action alleges that plaintiffs were detained and thereafter maliciously prosecuted by police officers employed by the City, absent probable cause to believe that plaintiffs had committed any illegal acts. The Fourth cause of action alleges that in arresting and detaining plaintiffs, the City was negligent. The fifth cause of action alleges that in arresting and detaining the plaintiffs, the City violated 42 USC § 1983, in that such conduct violated the Fourth and Fourteenth Amendments to the United States Constitution. The sixth cause of action alleges that the foregoing tortious acts were the result of the City's negligence in failing to properly train and supervise its police officers. The seventh cause of action similarly asserts that the foregoing tortious acts were the result of the City's negligence in hiring and retaining its police officers despite knowledge that they were unfit. The eighth cause of action asserts that the City's conduct was precipitated by a desire to inflict distress upon plaintiffs. As result of the foregoing, plaintiffs allege they sustained injury.

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 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 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 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 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 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 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 NY2d 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 AD2d 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 AD2d 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 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates , 285 AD2d 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 NY2d 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 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied ( Stone v Goodson , 8 NY2d 8, 12 [1960]). False Arrest and False Imprisonment Defendants' motion seeking summary judgment with respect to plaintiffs' claims for false arrest and false imprisonment is granted. On this record, with respect to the foregoing causes of action, defendants establish that plaintiffs were arrested for possession of heroin and contrary to plaintiffs' assertion, the record supports a finding that at the time of the arrest, plaintiffs constructively possessed the heroin. Thus, defendants establish the requisite probable cause to arrest plaintiffs as a matter of law.

It is well settled that "a government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" (Delgado v City of New York, 86 AD3d 502, 510 [1st Dept 2011] [internal quotation marks omitted]). Accordingly, probable cause to arrest and detain is extant when the police arrest and detain an individual within a premises pursuant to a valid search warrant (id. at 510 ["The lower court properly determined that only those police officers or other government agents who executed the no-knock warrant are entitled to qualified immunity. The officers who executed the warrant did so with the understanding that a valid search warrant had been issued."]; Mendoza v City of New York, 90 AD3d 453, 454 [1st Dept 2011]["No triable issue of fact exists as to whether the detention, arrest, or prosecution was supported by probable cause, given that the police found plaintiff in a state of undress on premises identified in a valid search warrant as a drug distribution point, and a controlled substance was recovered from those premises."]; Walczyk v Rio, 496 F3d 139, 155-156 [2d Cir 2007] ["Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause."]).

As the United States Supreme Court held, detention incident to a validly issued search warrant is warranted and "officers executing a search warrant for contraband have the authority to detain the occupants of the premises while a proper search is conducted" (Muehler v Mena, 544 US 93, 98 [2005]). Such detentions are appropriate, the court held because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. We made clear that the detention of an occupant is surely less intrusive than the search itself, and the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. Against this incremental intrusion, we posited three legitimate law enforcement interests that provide substantial justification for detaining an occupant: preventing flight in the event that incriminating evidence is found; minimizing the risk of harm to the officers; and facilitating the orderly completion of the search, as detainees' self-interest may induce them to open locked doors or locked containers to avoid the use of force (id. at 98 [internal citations and quotation marks omitted]).

Thus, with respect to search warrants, it is well settled that [w]here it appears that [a] Magistrate has conducted [] a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will, of itself, constitute a suitable makeweight when the warrant is challenged (People v Hanlon, 38 NY2d 549, 559 [1975]). Stated differently, where a search warrant has been issued after a court has had the opportunity to review the basis for its issuance, such as a personal examination of the informant providing the information, such warrant is presumed valid (People v Castillo, 80 NY2d 578, 585 [1992], cert denied 507 US 1033 [1993] ["a presumption of validity attached to the warrant given that a Magistrate had already reviewed the purported basis for the search and determined it to be valid"]; People v Allen, 209 AD2d 425, 425 [2d Dept 1994 ["Here, both citizen informants were identified by name in the police officer's affidavit that was submitted to the court that issued the warrant, and they were not anonymous, paid, or confidential informants."]). The presumption of validity is incident to the belief that in issuing a warrant, the issuing Magistrate has determined the existence of probable cause to search a premises and has done so after applying the law - statute and decisional law - to the facts before it (Hanlon at 559 ["The existence of probable cause is a determination solely for the Magistrate, not the affiant, and should only be made when probable cause has been demonstrated as a matter of fact in the manner prescribed by statute (CPL art 690) and decisional law."]).

When drugs or contraband are not found directly on a person's body, probable cause to arrest is nevertheless extant if such person is constructively in possession of such drugs or contraband (People v Manini, 79 NY2d 561, 573 [1992]). Thus, a person is charged with constructive possession of drugs or contraband when it is shown that such person "exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (id. at 573). For this reason it is also true that generally the owner, lessee, or occupant of a premises is deemed to be in control of a premises and thus charged with constructive possession of any contraband or drugs found therein (People v Tirado, 47 AD2d 193, 195 [1st Dept 1975], affd 38 NY2d 955 [1976]; People v David, 234 AD2d 787, 789 [3d Dept 1996] ["So viewed, the testimony previously outlined above was sufficient to demonstrate that defendant resided in and had control over the apartment where the contraband was found. Evidence of the frequency of defendant's presence in the apartment at various times of day and his appearances in a bathrobe, together with the evidence that he ate meals there and that a man's clothing was found in the bedroom, demonstrates that defendant was more than a mere occasional visitor to the apartment where his wife resided. Evidence that defendant used the apartment to meet with Wilson, accompanied Wilson into every room in the apartment, and transacted an exchange of cocaine for stolen goods with Wilson at the apartment demonstrates the level of defendant's control over the apartment. We conclude, therefore, that there was legally sufficient evidence of defendant's constructive possession of the contraband found in the apartment."]; People v Diaz, 220 AD2d 260 [1st Dept 1995] ["Where, as here, the evidence demonstrates that defendant owned, rented or had control over or a possessory interest in, the apartment where drugs were found, the evidence is legally sufficient to establish his constructive possession of such drugs."]; cf People v Headley, 143 AD2d 937, 938 [2d Dept 1988], affd 74 NY2d 858 [1989] [Court held that room presumption under PL § 220.25(2) did not apply to narcotics found in the kitchen of an apartment in which defendant was present, but in which he did not reside because "the People offered no proof that the respondents had any connection with the apartment, except their presence in the living room on the day in question, or as to how long the respondents had been in the apartment before the arrival of the police."]). Since the gravamen of any finding of constructive possession is control over the area from which contraband is seized, when the absence of control over the specific area where contraband is found is lacking, constructive possession by the owner, lessor, or occupant of a premises is negated ( People v Gatreaux-Perez, 31 AD3d 1209, 1210 [4th Dept 2006] ["The mere fact that defendant lived at the residence where the drugs were found is, without more, legally insufficient to establish that she exercised the requisite dominion or control over the drugs by a sufficient level of control over the area in which the drugs were found" (internal quotation marks omitted).]; US v Ortiz, 943 FSupp2d 447, 458 [SDNY 2013] ["With respect to Montañez, the government argues that because she was the registered tenant of the apartment where the gun was found, the officers had probable cause to arrest her based on a theory of constructive possession. In support of its position, the government cites four cases for the proposition that primary tenancy is sufficient to establish probable cause for constructive possession of contraband found in a residence. Those cases, however, are distinguishable from the instant matter on either legal or factual grounds. Here, by contrast, the officers discovered the gun inside the breast pocket of a man's coat located in a closed closet that Defendant had told officers housed his possessions. In addition, unlike Memoli, there is no allegation here that the Apartment was regularly used for criminal activity. Under these facts, a reasonable officer could not have concluded that there was probable cause to arrest Montañez for constructive possession of the gun" (internal citations omitted).]).

Similarly, it is well settled that "an otherwise unlawful detention is privileged where the confinement was by arrest under a valid process warrant issued by a court having jurisdiction" (Moulton v State, 114 AD3d 115, [3d Dept 2013] [internal quotation marks omitted)]; Nadal v City of New York, 105 AD3d 598, 598 [1st Dept 2013] ["Dismissal of the false arrest/imprisonment claim was proper where plaintiff was arrested for the shooting death of another pursuant to a facially valid arrest warrant, which is a complete defense to the cause of action."]; Washington-Herrera v Town of Greenburgh, 101 AD3d 986, 988 [2d Dept 2012]; Campbell v County of Westchester, 80 AD3d 641, 642 [2d Dept 2011]; Boose v City of Rochester, 71 AD2d 59, 66 [4th Dept 1979]). Thus, where a defendant establishes that an arrest was effectuated because of the existence of a facially valid arrest warrant issued by a court having jurisdiction, any claim for false arrest, false imprisonment must be dismissed (Washington-Herrera at 988; Campbell at 642). An arrest warrant is valid on its face when it follows the statutory form and the statute provides that the warrant shall contain either the name of the defendant to be arrested or, if such be unknown, any name or description by which he can be identified with reasonable certainty (Boose at 66). While an arrest premised on a facially valid warrant remains privileged even if it is later determined that the warrant should never have been issued (id.), a facially deficient warrant fails to establish probable cause for an arrest and, therefore, does not make the arrest privileged (Dabbs v State, 59 NY2d 213, 217-218 [1983]; Titus v Hill, 134 AD2d 911, 912 [4th Dept 1987]). In Dabbs, the Court of Appeals - in affirming a judgment in favor of the plaintiff - held that insofar as the warrant upon which plaintiff's arrest was premised did not contain his name, the warrant was facially defective in that it did not comply with CPL § 120.10(2), and, therefore, did not provide the police with the requisite probable cause to arrest and detain him (id. at 217-218). Similarly, in Titus, the court, in affirming the trial court's denial of defendant's motion for summary judgment held that an arrest warrant which was signed by county court judge, but which otherwise bore no indication of which local criminal court issued it, was facially invalid, and could not defeat an action for false arrest (id. at 912).

Whenever an arrest and imprisonment arise without a warrant, however, the presumption is that such arrest and imprisonment were unlawful (Smith v County of Nassau, 34 NY2d 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 AD3d 433, 433 [1st Dept 2012]; Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State, 37 NY2d 451, 457 [1975]; Rivera v County of Nassau, 83 AD3d 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 AD3d 291, 292 [1st Dept 2003]; People v McRay,51 NY2d 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)]).

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 NY2d 78, 82 [1983]; Carlton v Nassau County Police Dept., 306 AD2d 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 AD 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 NY2d 523, 529 [1991]; Burns v Eben, 40 NY 463, 466 [1869]; Wyllie v District Atty. of County of Kings, 2 AD3d 714, 718 [2d Dept 2003]; Brown v City of New York, 92 AD2d 15, 17 [1st Dept 1983]; Veras v Truth Verification, 83 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 947 [1982]).

In support of this motion, defendants submit plaintiff MARIA AGOSTINELLI's (Agostonelli), deposition transcript, wherein she testified, in pertinent part, as follows. On February 10, 2012, Agostonelli was arrested by members of the NYPD while within her apartment located at 774. Agsotonelli lived at 774 along with her husband, plaintiff DANIEL RUMPH (Rumph). On the foregoing, date at about 5AM, she was awoken by the sound of police officers within her apartment. The police then came into her bedroom, where she and Rumph had been sleeping and told her she was under arrest. Agostinelli's dog became excited by the commotion, forcing her to place him in the bathroom. She requested and was allowed to get dressed and as she was getting dressed, she heard someone indicate that they had found drugs in the livingroom of her apartment. She, along with Rumph, Tommy Booza (Booza), Tyrone Johnson (Johnson), and Darryl were then taken out her apartment and placed inside a van. After Agostinelli was placed in a van, she was taken to the precinct, fingerprinted and photographed and then to Central Booking where she was again fingerprinted and photographed. She came to learn that the police had recovered heroin from one the bags Booza kept in plaintiffs' livingroom. On the date in question, Booza and Johnson had slept at 774. Prior to this incident, Booza had been staying with plaintiffs for approximately eight months. Booza slept in plaintiffs' livingroom, on a mattress on the floor and kept his belongings - two bags - in a corner of the livingroom. Prior to this incident, Johnson would also periodically stay at plaintiffs' apartment and on the day in question had slept on the floor in the livingroom. Darryl was a friend of Rumph, who prior to this incident had come to plaintiffs' apartment to lend Rumph some money. 774 consisted of a kitchen, livingroom, one bedroom and a bathroom. The bedroom where plaintiffs slept was at the very end of the apartment adjacent to the bathroom. The bathroom was adjacent to the livingroom. Prior to this incident, plaintiffs would occasionally use the livingroom to watch movies with Booza and/or to eat dinner.

Defendants also submit Rumph's deposition transcript, wherein he testified, in pertinent part, as follows. On February 10, 2012, Rumph was arrested by members of the NYPD while within his apartment located at 774. Rumph lived at 774 along with his wife Agostinelli. On the foregoing, date at about 5AM, Rumph woke up and threw his keys out his bedroom window so Darryl, a friend, could come upstairs. Darryl came upstairs and was there to lend Rumph $35. Rumph and Darryl spoke in the hallway near his bedroom while Agostinelli slept therein. As Darryl opened the door to leave, several members of the NYPD came into the apartment, with guns drawn and shouting "police." Rumph then attempted to grab his dog, who had been in his bedroom with Agostinelli. The police indicated that they'd shoot the dog if it was not subdued. Thereafter, Agostinelli, who was then awake, put the dog in the bathroom. By this time, Booza, a friend who had spent the night and who had been staying with plaintiffs, and Johnson, another friend who also occasionally spent the night a plaintiffs' apartment, had woken up. The police sat everyone on the floor in the livingroom, including Agostinelli, who requested and was allowed to get dressed. The police then asked where the crack was and searched the apartment. Rumph then saw the police retrieve something from Booza's bag, which he believed to be heroin. Plaintiffs, Booza and Johnson had played spades in the livingroom. Rumph was handcuffed, and placed in a van. He was the taken to the precinct, finger printed and photographed and then to Central Booking where he was again finger printed and photograph. Booza slept in plaintiffs' livingroom on a mattress on the floor and kept his belongings - two bags - in a corner of the livingroom. 774 consisted of a kitchen, livingroom, one bedroom and a bathroom. The bedroom where plaintiffs slept was near the front door of the apartment adjacent to the bathroom. The bathroom was adjacent to the livingroom. The night prior to the aforementioned incident plaintiffs, Booza and Johnson played spades in plaintiffs' livingroom.

Defendants submit Anthony DiSimone's (DiSimone) deposition transcript, wherein he testified, in pertinent part, as follows. On February 10, 2012, DiSimone was a detective with the NYPD and was the officer who arrested plaintiffs. At that time, DiSimone had been a detective for eight years and was assigned to Bronx Narcotics. His responsibilities included the investigation of complaints involving narcotics and making any necessary arrests thereafter. Prior to February 10, 2012 DiSimone had been informed, either by 774's management or a confidential informant, that drugs were being sold from plaintiffs' apartment. He, therefore, had his informant make two controlled buys - for which DiSimone was present - using pre-recorded buy money. Thereafter, since information from this informant had been fruitful in the past, he applied and procured a search warrant for plaintiffs' apartment. Specifically, DiSimone, after appearing before Judge Duffy and apprising him of the results of the controlled buys, obtained a search warrant to search 774 for narcotics. DiSimone also performed computer checks to ascertain who resided in plaintiffs' apartment. On February 10, 2012, DiSimone along with other police officers executed the search warrant at 774. Specifically, at 7:10, they gained entry to plaintiffs' apartment as Darryl was exiting. Upon entering the apartment, an individual exited the bedroom, ran to the bathroom and threw heroin in the toilet. DiSimone and other officers placed plaintiffs, Booza, Johnson, and Darryl in handcuffs, and then, in order to preserve any evidence took them outside and placed them within a van. A search of the apartment - which was unkept - yielded heroin and marihuana in the livingroom as well as heroin recovered from the toilet. DiSimone also vouchered mail bearing plaintiff's address, which he wouldn't have vouchered had it not bore 774 as their address.

Lastly, defendants submit a host of documents, almost all of which were identfied and testified to by DiSimone at his deposition. The first, is a search warrant dated February 1, 2012, signed by judge Colleen Duffy and authorizing the search of 774 for, inter alia, heroin. The second are three complaint follow-up reports indicating that on three separate occasions, prior to February 1, 2012, DiSimone's informant made controlled buys at 774, each time purchasing heroin. The third is a property clerk's invoice dated February 10, 2012, evincing that upon a search of 774, DiSimone recovered, inter alia, 10 glassines of heroin from the livingroom inside 774. Lastly, defendants submit arrest reports for plaintiffs, which evince that on February 10, 2012, they were arrested while within 774 after the execution of a search yielded large quantities of a controlled substance warrant. The reports indicate that they were charged with a violation of, inter alia, PL § 220.16(1) - Criminal Possession of a Controlled Substance in the Third Degree, with intent to sell.

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 defendants aver that the documentary evidence submitted 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 AD3d 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 NY2d 569, 579 [1986]). Significantly, here, where the documents submitted by defendants are 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 nonetheless deems that the records submitted - 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 AD2d 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-authenticating ³ .The Court, also finds no merit to plaintiffs' contention that because defendants submit entire deposition transcripts - portions of which defendants do not rely - that the Court is precluded from considering any portions of those transcripts not relied upon by plaintiffs. First, notwithstanding that it is only persuasive authority, the case cited for the foregoing proposition Degaetano v JP Morgan Chase Bank, NA (39 Miscd3d 1211[A] [Sup Ct Orange County 2013]), does not stand for the assertion cited. Instead, in that case, the court precluded the use of a deposition transcript because they were "unsigned and there is [was] proof submitted that it was transmitted 60 days prior to the date of intended use" ( id. at *5). Second, to the extent that in this case, defendants submit unsigned deposition transcripts, the foregoing case doesn't preclude the this Court from considering it. After all it is well settled that pursuant to CPLR § 3116(a), any deposition transcripts are deemed signed, so long as they are provided to the witness who testified therein and who, thereafter, fails to return the same signed and with changes ( Zabari v The City of New York, 242 AD2d 15, 17 [1st Dept 1998]; Eldon Group America, Inc., v Equipex Industrial Products Corp., 236 AD2d 329, 329 [1st Dept 1997]). This is particularly true, where, as here, the accuracy of deposition transcripts is unchallenged and they are certified by the court reporter ( Franco v Rolling Frito-Lay Sales, Ltd., 103 AD3d 543, 543 [1st Dept 2013] ["The unsigned deposition transcripts submitted by defendants in support of their motion were admissible" (internal citations omitted).]; Sass v TMT Restoration Consultants Ltd., 100 AD3d 443 [1st Dept 2012] ["The motion court properly relied on plaintiff's unsigned deposition transcript since the transcript was certified by the reporter and plaintiff does not challenge its accuracy."]).

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 plaintiffs as a matter of law.

Based on the foregoing, defendants' evidence establishes prima facie entitlement to summary judgment. Specifically, since it is well settled that detention incident to a validly issued search warrant is appropriate and "officers executing a search warrant for contraband have the authority to detain the occupants of the premises while a proper search is conducted" (Muehler at 98), here, where DiSimone testified that he searched and detained plaintiffs after he procured a search warrant from Judge Duffy to search 774, the evidence establishes that defendants were lawfully within 774 and authorized to detain anyone found therein. DiSimone's testimony is further bolstered by defendants' submission of a warrant signed by Judge Duffy authorizing defendants to search 774 for heroin. Additionally, with regard to plaintiffs' arrest, defendants' evidence establishes that they had probable cause to arrest plaintiffs. To be sure, while an arrest and imprisonment arising without a warrant is presumed unlawful (Smith at 23), 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 of course, also defined as reasonable cause, exists "[w]here an officer, in good faith, believes that a person is guilty of a felony" (Smith at 24 [internal quotation marks omitted]), meaning when evidence or information . . . 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 § 710[2]).

Here, both plaintiffs testified that upon a search of 774, defendants discovered heroin therein. Specifically, Agostinelli testified that the heroin was discovered in the livingroom inside Booza's bag. Agostinelli testified that while Booza would normally sleep in the livingroom, plaintiffs nevertheless used the livingroom to watch television and eat. Rumph also testified that they had used the livingroom the night before the arrest to play spades. Furthermore, DiSimone testified that the heroin which he discovered and seized was found in the livingroom. The property vouchers also specify that 10 glassines of heroin were discovered in plaintiffs' livingroom within a bag. While it is true that the foregoing heroin was not discovered on plaintiffs' person, the facts herein establish that they nevertheless constructively possessed the same. As noted above, when drugs or contraband are not found directly on a person's body, probable cause to arrest is nevertheless extant if such person is constructively in possession of such drugs or contraband (Manini at 573 [1992]). Thus, a person is charged with constructive possession of drugs or contraband when it is shown that such person "exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (id. at 573). For this reason it is also true that generally the owner, lessee, or occupant of a premises is deemed to be in control of a premises and thus charged with constructive possession of any contraband or drugs found therein (Tirado at 195; David at 234; Diaz at 260; cf Headley at 938).

On this record, where the heroin was found in the livingroom, an area to which plaintiffs had access and indeed an area in the premises leased by them, it is beyond cavil that they constructively possessed the same. The facts here are completely inapposite to those in Ortiz (943 FSupp2d 447), a case relied upon by plaintiffs. While in that case the court concluded that more than mere tenancy was required to find constructive possession of contraband within a premises (id. at 448), here not only was a it clear that DiSimone knew that plainitffs were the tenants of record - as evinced by his decision to voucher mail bearing their address - but it is clear that they exercised control over the room where the drugs were found. Accordingly, here, plaintiffs were charged with violating PL § 220.16 (1) which states that "[a] person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses . . . a narcotic drug ⁴ with intent to sell it." Accordingly, the discovery of heroin in the livingroom - as discussed above - gave rise to an inference of constructive possession of the same, which based on the controlled buys executed by DiSimone's informant gave defendants sufficient causevc to believe that plaintiffs violated CPL § 220.16(1), thus giving them ample probable cause to arrest and imprison them.

4 PL § 220(7) defines a narcotic drug as substance listed within Schedule I(c) within PHL § 3306. Indeed PHL § 3306(Schedule I)(c)(11) lisst heroin as a controlled substance.

Accordingly, having established probable cause for plaintiffs arrest and subsequent imprisonment, defendants establish prima facie entitlement to summary judgment. Nothing submitted by plaintiffs - and indeed they submit no evidence - precludes summary judgment in defendants' favor with respect to the foregoing causes of action.

Malicious Prosecution

Defendants' motion seeking summary judgment with respect to plaintiffs' claim for malicious prosecution is hereby granted insofar as defendants establishes the existence of probable cause for the arrest and, therefore, the subsequent prosecution and thereby barring any claim for malicious prosecution.

The tort of malicious prosecution 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 NY2d 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 NY2d 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 AD2d 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 NY2d 391, 394 [2001]; Smith-Hunter at 195; Colon v City of New York, 60 NY2d 78, 82 [1983]; Martin v City of Albany, 42 NY2d 13, 16 [1977]; Broughton at 457; Heany v Purdy, 29 NY2d 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 AD3d 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 AD3d 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 AD3d 285, 286 [1st Dept 2007]; Wilhelmina Models, Inc. v Fleischer, 19 AD3d 267, 269 [1st Dept 2005]; Honzawa v Honzawa, 268 AD2d 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 NY2d 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 NY2d 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 NY 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 AD2d 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 AD2d 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 NY2d 78, 82 [1983]; Munoz v City of New York, 18 NY2d 6, 10 [1966]; Fink v Shawangunk Conservatory, Inc., 15 AD3d 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 AD 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 NY2d 523, 528-529 [1991]; Lundgren v Margini, 30 AD3d 476, 477 [2d Dept 2006]).

Here, as discussed above, defendants evidence establishes that there was ample probable cause to arrest plaintiffs for the heroin discovered in their livingroom within 774. 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 plaintiffs in opposition raises a question of fact sufficient to preclude summary judgment.

42 USC § 1983

Defendants' motion seeking summary judgment with respect to plaintiffs' cause of action pursuant to 42 USC § 1983 is granted insofar as it is premised on the their allegations of false arrest, false arrest, and malicious prosecution by defendants, and here, the existence of probable cause precludes recovery on that claim.It is well settled that any cause of action for false arrest and imprisonment pursuant to 42 USC § 1983, cannot survive if probable cause is established insofar as "[t]here can be no federal civil rights claim for false arrest where the arresting officer had probable cause" (Singer v Fulton County Sheriff, 63 F3d 110, 118 [2d Cir 1995]; Bernard v U.S., 25 F3d 98, 102 [2d Cir 1994] [probable cause a complete defense to a federal claim for false arrest]).

Here, for the reasons, discussed at length above, because defendants establish the existence of probable cause for plaintiffs' arrest, imprisonment, and prosecution as a matter of law, they are entitled to summary judgment on the claim pursuant to 42 USC § 1983 insofar as premised on the very same conduct.

Negligent Hiring, Retention, Training, and Supervision

Defendants' motion seeking summary judgment with respect to plaintiffs' claim for negligence in the hiring and retention by defendants of the officers alleged to have arrested them is granted insofar as here, where the evidence establishes no conduct by defendants' officers under which liability could be imputed, defendants cannot be liable under the foregoing theory.

Not to be confused with vicarious liability, an employer is liable under a claim that he negligently hired and/or retained and employee if the employer places the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee (Sheila C. v Povich, 11 AD3d 120, 129 [1st Dept 2004]; Detone v Bullit Courier Service, Inc., 140 AD2d 278, 279 [1st Dept 1988]). Thus, a cause of action for negligent hiring and retention requires proof that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury alleged (Sheila C. at 129; Gomez v City of New York, 304 AD2d 374, 374-375 [1st Dept 2003] Bellere v Gerics, 304 AD2d 687, 688 [2d Dept 2003]). With respect to negligent hiring, there is no common-law duty to institute specific hiring procedures unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 163 [2d Dept 1997] [Plaintiff's claim that defendant negligently hired employee who sexually assaulted him was dismissed when defendant established that the employee came with a letter of reference, it had no knowledge that the employee had sexual propensities, and had no reason to investigate further.]; Ghaffari at 343-344). Thus, a defendant will be liable for negligently hiring an employee and/or retaining him without any corrective action if the employer knows or should have known that the employee has or had a propensity - namely prior acts and/or behavior - for the sort of conduct which caused the injury alleged ( Ernest L. v Charlton School, 30 AD3d 649, 650-651 [3d Dept 2006] [Plaintiff's claim that defendant - a foster care agency - negligently retained an employee who sexually assaulted the plaintiff - a resident - dismissed when defendant established that it had no notice of its employee's sexual propensities prior to plaintiff's alleged assault.]; cf. Ghaffari at 344 [Court granted summary judgment in favor of defendant school dismissing plaintiff's claim for negligent hiring when Plaintiff - a student - who claimed that she was sexually assaulted by a teacher had could not controvert defendant's prima facie showing that it "had no knowledge of the teacher's propensity for sexual misconduct."]). A defendant is liable for negligently retaining an employee without any corrective action when the employer knows or should have known that the employee has a propensity - namely prior acts and/or behavior - for the sort of conduct which caused the injury alleged ( Ernest L. at 650-651).

Here, because the Court has granted defendants' motion for summary judgment with regard to plaintiff's claims for false arrest, false imprisonment, malicious prosecution, negligence and violations of 42 USC § 1983, defendants cannot be liable for the alleged negligent hiring and retention of any of the police officers who effectuated plaintiffs' arrest. To be sure, a cause of action for negligent hiring, retention, supervision, and training requires proof that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury alleged (Sheila C. at 129; Gomez at 374-375; Bellere at 688). Thus, this cause of action must be predicated upon actionable injurious conduct by a defendants' employee and about which defendants had prior notice. Here, where the Court has granted summary judgment with regard to all other claims for the acts of defendants' employee, it must, by operation of law, also grant summary judgment with regard to this cause of action.

Motion to Dismiss

To the extent that defendants seek summary judgment with respect to all claims asserted against the NYPD and plaintiffs' cause of action for general negligence, such motion is one for dismissal pursuant to CPLR § 3211(a)(7) and not summary judgment. In analyzing the latter claim - indeed plaintiffs' concede that dismissal of the former is warranted - the Court concludes that plaintiffs fail to state a cause of action and this portion of the motion is hereby granted.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366. In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (id.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.) The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."]).

CPLR § 3013, states that [s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. As such, a complaint must contain facts essential to give notice of a claim or defense (DiMauro v Metropolitan Suburban Bus Authority, 105 AD2d 236, 239 [2d Dept 1984]). Vague and conclusory allegations will not suffice (id.); Fowler v American Lawyer Media, Inc., 306 AD2d 113, 113 [1st Dept 2003]); Shariff v Murray, 33 AD3d 688 (2nd Dept. 2006); Stoianoff v Gahona, 248 AD2d 525, 526 [2d Dept 1998]). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted (Schuckman Realty, Inc. v Marine Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Chapter, Local No. 852, Civil Service Employees Association, Inc., 95 AD2d 800, 800 [2d Dept 1983]).

Claims Against the NYPD

Insofar as plaintiffs concede that the NYPD is a non-suable entity, defendants' motion to dismiss all claims against it is granted.

General Negligence Claim

Here, a review of plaintiffs' complaint evinces that in addition to his claims for false arrest, false imprisonment, and malicious prosecution, they also assert, within the fourth cause of action, a claim for negligence. Insofar as a plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles, but must proceed by way of the traditional remedies of false arrest and imprisonment (Antonious at 559-560; Santoro at 738), plaintiffs' cause of action for negligence must dismissed as it fails to state a cause of action.

Intentional Infliction of Emotional Distress

While defendants fail to seek dismissal of plaintiffs' eight cause of action sounding in the intentional infliction of emotional distress, a review of the pleadings warrants dismissal on grounds that as pleaded, plaintiffs fail to state that cause of action. Specifically, that claim is dismissed inasmuch as that claim is barred, where as here, plaintiffs have asserted causes of action for false arrest, false imprisonment, and malicious prosecution, they assert said claim against the City, and the acts alleged are insufficient as a matter of law.

To establish a cause of action for intentional infliction of emotional distress, it must be proven that (1) defendant committed extreme and outrageous conduct; (2) with the intent to cause, or the disregard of a substantial probability of causing, severe emotional distress; (3) that defendant's conduct caused the injury claimed; and (4) that plaintiff suffered severe emotional distress (Howell v New York Post Company, Inc., 81 NY2d 115, 121 [1993]). Similarly, a cause of action for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, "generally must be premised upon the breach of a duty owed to plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety" (Sheila C. v Povich, 11 AD3d 120, 130 [1st Dept 2004]; E.B. v Liberation Publications, Inc., 7 AD3d 566, 567 [2d Dept 2004]). Generally, whether the cause of action is one for intentional or negligent infliction of emotional distress, courts look at whether the conduct alleged is outrageous enough to warrant a finding that plaintiff has an actionable claim as a matter of law (id. at 130-131 ["Moreover, a cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by the defendants so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (internal quotation marks omitted)]; Howell at 121 ["The first element—outrageous conduct—serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that Tomlinson's claim of severe emotional distress is genuine."]; Dillon v City of New York, 261 AD2d 34, 41 [1st Dept 1999]). Conduct is extreme and outrageous when it is "outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Howell at 122; Sheila C. at 130-131). Thus, the majority of claims fail because the behavior alleged is almost never sufficiently outrageous (Howell at 122 ["Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous."]; Sheila C. at 131 ["In this matter, plaintiff's allegations that defendants suggested she act provocatively, and allowed her to be introduced to a purported rapist, with whom she had a later, voluntary meeting, well after she was no longer in the physical custody of defendants, simply does not rise to the level of conduct necessary to sustain either cause of action."]; Dillon at 41 ["Moreover, the alleged disparagement of plaintiffs' characters in this case simply does not rise to that standard."]). To survive dismissal, in any action alleging intentional or negligent infliction of emotional distress, the conduct alleged must be pleaded and must, on its face be sufficiently outrageous (Sheila C. at 131; Dillon at 41).

When the allegations comprising the claim for intentional infliction of emotional distress fall within the ambit of another cognizable cause of action, a cause of action for intentional infliction of emotional distress will not lie (Fischer v Maloney, 43 NY2d 553, 558 [1978] ["Indeed, it may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability, here malicious prosecution and abuse of process."]; Sweeney v Prisoners' Legal Services of New York, Inc., 146 AD2d 1, 7 [3d Dept 1989] ["Moreover, a cause of action for intentional infliction of emotional distress should not be entertained where the conduct complained of falls well within the ambit of other traditional tort liability." (internal quotation marks omitted); Afifi v City of New York, 104 AD3d 712, 713 [2d Dept 2013]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000]).

It is well settled that "public policy bars claims alleging intentional infliction of emotional distress against governmental entities." (Afifi at 713; Eckardt v City of White Plains, 87 AD3d 1049, 1051 [2d Dept 2011]; Ellison v City of New Rochelle, 62 AD3d 830, 833 [2d Dept 2009]; Lillian C. v Administration for Children's Services, 48 AD3d 316, 317 [1st Dept 2008]; Pezhman v City of New York, 47 AD3d 493, 494 [1st Dept 2008]).

Here, plaintiffs premise their cause of action for intentional and negligent infliction of emotional distress by incorporating by reference the portions of their complaint which assert that they were falsely arrested, falsely imprisoned, and maliciously prosecuted. These vague allegations certainly do not establish that defendants' conduct was "outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Howell at 121). Accordingly, dismissal is warranted for this reason alone. Dismissal is further warranted as against the City insofar as public policy bars claims alleging intentional infliction of emotional distress against governmental entities. Lastly, plaintiffs' cause of action for intentional infliction of emotional distress must also be dismissed insofar as their cause of action for intentional infliction of emotional distress falls within the ambit of their causes of action for false arrest, false imprisonment, assault, battery, and malicious prosecution.

To the extent that plaintiffs seek leave to amend their pleadings to add DiSimone as a defendant, this portion of the motion is denied insofar as such relief is not only sought without a cross-motion, but because in light of the foregoing, such relief is now moot. It is hereby ORDERED that plaintiffs' complaint be hereby dismissed with prejudice. 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.

Dated : November 17, 2015 Bronx, New York

______________________________MITCHELL J. DANZIGER, J.S.C.