Brown v. City of N.Y.

Full title: Nadine Brown, Plaintiff(s), v. The City of New York, NEW YORK CITY POLICE…

Court: Supreme Court, Bronx County

Date published: Aug 25, 2017

2017 N.Y. Slip Op. 51061 (N.Y. Sup. Ct. 2017)

Opinion

303170/13

08-25-2017

Nadine Brown, Plaintiff(s), v. The City of New York, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOHAN AND JANE DOES No.1-4, Defendant(s).

Counsel for Plaintiff: Nazrali Law Firm Counsel for Defendants: New York City Law Department

Ben Barbato, J.

Counsel for Plaintiff: Nazrali Law Firm Counsel for Defendants: New York City Law Department Ben Barbato, J.

In this action for, inter a ¹ lia, alleged false arrest, false imprisonment, malicious prosecution, and violations of 42 USC § 1983, defendant THE CITY OF NEW YORK (the City) moves seeking an order granting it summary judgment pursuant to CPLR § 3212 and dismissal pursuant to CPLR § 3211(a)(7). Specifically, the City avers that it is entitled to summary judgment with respect to (1) plaintiff's causes of action for false arrest and false imprisonment inasmuch as there was ample probable cause to arrest her; and (2) plaintiff's cause of action for malicious prosecution insofar as she received an Adjournment in Contemplation of Dismissal (ACD) for the charges lodged upon the instant arrest, there was no determination on the merits. The City further agues that (1) plaintiff's cause of action for the negligent hiring, training and retention of police officers fails to state a cause of action because the City admits that the officers involved were acting within the scope of their employment with the City; (2) plaintiff's causes of action for intentional and negligent infliction of emotional distress fail to state cause action because such claims are barred against the City; (3) plaintiff's cause of action pursuant to 42 USC § 1983 fails to state a cause of action in that no specific municipal custom and practice is pleaded; (4) because plaintiff's cause of action pursuant to 42 USC § 1981 requires a viable 42 USC § 1983 claim, the complaint fails to state a cause of action pursuant to 42 USC § 1981;² and (5) plaintiffs' cause of action for general negligence fails to state a cause of action insofar as such claim, on these facts, is not cognizable under prevailing law. Plaintiff opposes the instant motion solely asserting that questions of fact with regard to whether there was probable cause to arrest plaintiff preclude summary judgment with respect to all claims asserted.³

1 While plaintiff opposes dismissal of her alleged cause of action for battery, a review of the complaint finds it bereft of such a claim.

2 The City fails to clearly assert arguments in support of its motion seeking dismissal of plaintiff's causes of action pursuant to 42 USC § 1985 and § 1988. However, upon a search of the record, it is clear that the complaint fails to state a cause of action thereunder and those causes of action are also dismissed.

3 Notably, plaintiff fails to expressly oppose the portion of the City's motion seeking dismissal of her state law negligence and negligent hiring, training and retention claims as well as her federal claims insofar as they fail state a cause of action.

For the reasons that follow hereinafter, the City's motion is granted.

The instant action is for false arrest, false imprisonment, malicious prosecution, negligence in the hiring, training, and retention of police officers, negligence, intentional and negligent infliction of emotional distress, and violations of 42 USC § 1981, § 1983, § 1985, and § 1988. Within her complaint, plaintiff alleges that on February 16, 2012, while inside premises located at 2603 Webster Avenue, Bronx, NY, (2603), she was falsely arrested and detained by defendants. Plaintiff asserts 10 causes of action. The first is for false arrest and false imprisonment, wherein plaintiff asserts that while within 2603, her place of business, she was falsely arrested and imprisoned by police officers employed by the City without any justification. The second 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 and in negligently hiring and retaining them despite knowledge that they had committed similar acts. The third cause of action alleges that in arresting and detaining plaintiff, the City was negligent. The fourth cause of action alleges that plaintiff was maliciously prosecuted by police officers employed by the City absent probable cause to believe that plaintiff had committed any illegal acts. The fifth and sixth causes of action allege that based on the foregoing acts, the City intentionally and negligently inflicted emotional distress upon plaintiff. The seventh cause of action alleges that in arresting and detaining plaintiff, the City violated 42 USC § 1983, in that such conduct violated the Fourth and Fourteenth Amendments to the United States Constitution. The eight cause of action alleges that in engaging in the foregoing acts, the City violated 42 USC § 1985(3) in that it conspired to violate plaintiff's rights under the United States Constitution. The ninth cause of action seeks attorneys fees under 42 USC § 1988. The tenth cause of action alleges that plaintiff's arrest was solely precipitated by race and that as such, the City violated 42 USC § 1981.

Summary Judgment

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

The City's motion seeking summary judgment with respect to plaintiff's claims of false arrest and false imprisonment is granted. On this record, with respect to the foregoing causes of action, the City establishes that plaintiff was arrested for constructive possession of marijuana after the lawful execution of a warrant which yielded marijuana from an unlocked locker immediately next to the location where plaintiff worked and within a premises which she leased.

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).]). The analysis relative to constructive possession is no different with respect to a location deemed a public space, where the relevant inquiry is dominion and control over the location where contraband is found (People v Perez, 125 AD2d 236, 237—38 [1st Dept 1986] ["Where a gun is found in an area occupied by several people and where no one individual could be said to have dominion and control of the weapon, the People have a heavy burden in establishing constructive possession. To establish constructive possession in this situation, it must be established that defendant had dominion and control over the area where the gun was found or admitted owning or using the gun" (internal citation and quotation marks omitted)]; People v Vastola, 70 AD2d 918, 918 [2d Dept 1979]; People v Casanova, 117 AD2d 742, 743 [2d Dept 1986]). Thus, even in a public space control and dominion can be establish when there is evidence the defendant lived in an apartment, had a key to it, and frequented the same (Casanova at 743—44), or where the defendant is in close proximity to contraband stored in a location with limited access (People v Whitehead, 159 AD2d 741, 742 [2d Dept 1990] ["The jury could reasonably infer from the evidence that the defendant Donny Smallwood, the manager of the grocery store in which the fireworks were found, exercised sufficient dominion and control to be deemed in constructive possession of the fireworks, and that the defendant Artie Whitehead, an employee found in the grocery store, was also in constructive possession of the fireworks that were situated next to or near her in a Plexiglas-enclosed area to which no customers had access" (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, the City submits plaintiff's 50-h and deposition transcripts wherein she testified, in pertinent part, as follows. On February 16, 2012, at approximately 3PM, plaintiff was at work within 2603 - a salon which she owned. Plaintiff leased the space and in turn rented stations to other hair stylists. On the foregoing date, plaintiff was weaving a customer's hair and Clinton Alexander (Alexander) - barber who worked therein - Kerry Ann Henry (Henry) - a stylist who worked therein- and another customer were present within 2603. At some point, while Henry was sitting at her station and Alexander was sitting at Raymond Thomas (Thomas) station - another barber who leased a station from plaintiff - three police officers entered the premises. The police announced themselves and indicated that they had a warrant. The police searched the upstairs area of the premises and then searched Alexander and the locker at Thomas' station. An officer retrieved a bag from the locker, which plaintiff later learned contained marijuana. The officers then proceeded to handcuff and arrest Alexander. The officers then searched the locker at Alexander's station recovering a similar bag, which plaintiff subsequently learned also contained marijuana. A search of the locker at plaintiff's station yielded no drugs, but plaintiff was handcuffed arrested nonetheless. The police also arrested Henry. One customer was searched and both were let go. Thereafter, plaintiff was transported to the 52nd precinct, processed and then transported to Central Booking. She was charged with possession of marijuana and remained in custody until February 18th. The charges against plaintiff were ultimately dismissed. With respect to 2603, the same contained six stations, only four of which were in use in February. While plaintiff did not employ the occupants of the stations, she did rent the space to them and did provide them with all the furniture thereat. Specifically, the locker and drawers at each station were provided by plaintiff and they did not lock. Plaintiff's station was adjacent to Alexander's station on the right upon entering 2603 while Henry and Thomas' station were on the left.

The City submits David Roberts' (Roberts) deposition transcript wherein he testified, in pertinent, part as follows: In February 2012, he was a detective assigned to the New York City Police Department's Bronx Narcotics Unit. On February 16, 2012, he along with several other police officers executed a search warrant at 2603, a barber shop. The warrant was obtained on February 8, 2012 upon information from a confidential informant that marijuana was purchased from within 2603. Specifically, the confidential informant bought marijuana from a male within 2603 on two separate occasions. On February 16, 2012, Roberts entered 2603 after other officers had secured all the individuals therein. Because the confidential informant had indicated that marijuana was stored in one of the cans atop one of the stations on the right side therein, Roberts grabbed a pledge bottle from said location. He removed the bottom and found several bags of marijuana. He thereafter searched other stations therein, finding more marijuana within unlocked drawers. Roberts then asked Brown, Alexander and Henry whether they worked therein and whether the marijuana belonged to then. He was informed that all three worked therein but no one took ownership of the marijuana. As a result, and because the marijuana was found in areas to which everybody had access, Roberts arrested all three of the foregoing people.

The City submits several documents. Specifically, the City submits a search warrant dated February 8, 2012, and signed by Judge Ann Donnelly. The warrant authorizes a search for marijuana within 2603. The City submits an arrest report indicating that on February 16, 2012, plaintiff was arrested and charged with, inter alia, Criminal Possession of a Marijuana in the Fourth Degree (PL § 221.15) upon the execution of a search warrant at 2603 and because plaintiff had control and custody of the marijuana. The City submits a certificate of disposition which indicates that the charges against plaintiff were dismissed by ACD.

Based on the foregoing, the City establishes prima facie entitlement to summary judgment on plaintiff's causes of action for false arrest and false imprisonment. As noted above, 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 (Castillo at 585; Allen at 425). 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 at 98). Moreover, 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, Roberts testified that the police entered 2603 after obtaining a search warrant premised on proof - two controlled buys of marijuana - that drugs were being sold therein. Roberts testified that upon entering the premises and searching the same, he found large quantities of marijuana within unlocked drawers in several of the styling stations therein. After inquiries about ownership of the marijuana proved fruitless, he ascertained that plaintiff, Alexander and Henry were employed within the premises and arrested them. Significantly, the arrest of all employees therein was premised on Roberts' belief that they all had access to the areas from which the marijuana was recovered. Beyond testifying that she had no knowledge about the presence or marijuana within her premises, her testimony corroborates the foregoing portions of Roberts testimony.

Since a person is guilty of Criminal Possession of Marihuana in the Fourth Degree (PL § 221.15) when

he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces,

here, upon discovering large quantities of marijuana within 2603, Roberts had ample probable cause to believe that plaintiff violated the foregoing statute, among others; the violation of which she was charged. Notably, while the marijuana was not found on plaintiff's person, such fact does not avail her nor diminish the probable cause for her arrest. 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). Here, while plaintiff testified that the people working within her establishment were independent contractors, each with their own station, she also testified that she provided the lockers and drawers where the marijuana was discovered, that those lockers were not locked, and that the stations where the lockers were located were adjacent to one another and to her station. Thus, as in Diaz (220 AD2d 260), "[w]here, as here, the evidence demonstrates that [plaintiff] owned, rented or had control over or a possessory interest in, the [premises] where drugs were found, the evidence is legally sufficient to establish [her] constructive possession of such drugs" id. at 260-261). In fact, while the instant premises was - as urged by plaintiff - a public space - the record establishes that she constructively possessed the marijuana nonetheless. Indeed, the analysis relative to constructive possession is no different with respect a location deemed a public space, where the relevant inquiry is still just dominion and control over the location where contraband is found (Perez at 237—38; Vastola at 918; Casanova at 743). Thus, even in a public space, control and dominion is established when, as here, there is evidence that plaintiff occupied the premises, had a key to it, and frequented the same (Casanova at 743—44), or where, as here, plaintiff was in close proximity to contraband stored in a location with limited access (Whitehead at 742). To be sure, while the instant premises is open to the public, it cannot be credibly argued that plaintiff who sat next to the stations where the marijuana was found, did not have control and dominion of that area. Indeed, on this record, the only logical inference is that while this was a public space, only those employed therein had access to the drawers and lockers herein insofar as they were part and parcel of the stations and, thus, non public spaces within the premises.

Nothing submitted by plaintiff in opposition raises an issue of fact with respect to probable cause so as to preclude summary judgment. In fact, in her affidavit, submitted in opposition to the instant motion, plaintiff confirms that marijuana was recovered from Alexanders station, which was immediately next to hers, thereby bolstering this Court's and Roberts' conclusion that she constructively possessed the same. Significantly, plaintiff fails to appreciate that despite her assertions about her lack of control over the other stations at her salon, constructive possession is an objective standard to be applied based on the perception of access to the location where contraband is discovered. Were this not the case it would obviate the need for the doctrine. After all constructive possession is a substitute for actual possession and applied in cases such as this one, where a person denies ownership of contraband recovered at or near his/her location (see Tirado at 195; David at 789; Diaz at 260-261).

Malicious Prosecution

The City's motion seeking summary judgment with respect to plaintiff's claim of malicious prosecution is hereby granted insofar as defendants establish the existence of probable cause for the arrest and, therefore, the subsequent prosecution, thereby barring any claim for malicious prosecution. Moreover, where, as here, plaintiff's case was dismissed by ACD, there can be no claim for malicious prosecution as a matter of law.

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]).

It is well settled that because an "adjournment in contemplation of dismissal, being as unadjudicative of innocence as it was of guilt, by its very nature operate[s] to bar recovery [for malicious prosecution]" (Hollender v Trump Vil. Co-op., Inc., 58 NY2d 420, 426 [1983]; Eke v City of New York, 116 AD3d 403, 404 [1st Dept 2014]; Witcher v Children's Tel. Workshop, 187 AD2d 292, 294 [1st Dept 1992]).

Here, as discussed above, the City establishes that there was ample probable cause to arrest plaintiff for the marijuana found within 2603. Accordingly, since the 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. Moreover, since here, the City establishes that the criminal action against plaintiff was dismissed by ACD, an action for malicious prosecution is barred (Hollender at 426; Eke at 404; Witcher at 294). The City therefore, establishes prima facie entitlement to summary judgment and, nothing submitted by plaintiff in opposition raises a question of fact sufficient to preclude summary judgment. Motion to Dismiss

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]).

42 USC § 1983

The City's motion seeking to dismiss plaintiff's cause of action pursuant to 42 USC § 1983 is granted insofar as the complaint fails to state a cause of action. Significantly, plaintiff fails to sufficiently cite to specific instances of the alleged municipal custom and practice alleged and on which this cause of action is premised.

While it is often argued that in cases alleging a violation of 42 USC § 1983 any motion to dismiss should be decided under the federal pleading standards, particularly those promulgated by Ashcroft v Iqbal (556 US 662, 678 [2009]), it is well settled that even after Ashcroft, this State's courts have consistently applied the standards promulgated by New York State case law when confronted with a motion seeking dismissal of a cause of action pursuant to 42 USC § 1983, on grounds that the complaint fails to state a cause of action (Vargas v City of New York, 105 AD3d 834, 834-837 [2d Dept. 2013] [In granting defendants' motion seeking to dismiss plaintiff's claim pursuant to 42 USC § 1983 for failure to state a cause of action, the court applied the standards promulgated by CPLR § 3211(a)(7) and the case law interpreting it.]; Nasca v Sgro, 101 AD3d 963, 963-965 [2d Dept 2012] [same]).

Pursuant to 42 USC § 1983

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

Thus, a person has a private right of action under 42 USC § 1983 against an individual who, acting under color of law, violates federal constitutional or statutory rights (Delgado v City of New York, 86 AD3d 502, 511 [1st Dept 2011] ["A complaint alleging gratuitous or excessive use of force by a police officer states a cause of action under the statute (42 USC § 1983) against that officer."]; Morgan v City of New York, 32 AD3d 912, 914-915 [2d Dept 2006] ["The complaint states a cause of action for violation of the decedent's Fourth Amendment rights pursuant to 42 USC § 1983, alleging both an unreasonable seizure and confinement of the person in the absence of probable cause."]). However, when plaintiff asserts a cause of action against an individual defendant pursuant 42 USC § 1983 alleging that he was acting in his official capacity, plaintiff must then establish more than a violation of a constitutional right, he must also establish the existence of (1) an official policy or custom that (2) caused him to be subjected to (3) a denial of that constitutional right (Linen v County of Rensselaer, 274 AD2d 911, 913 [3d Dept 2000]; Howe v Village of Trumansburg, 199 AD2d 749, 751 [3d Dept 1993). Stated differently, "where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims [those against the individual defendant] are tantamount to claims against the municipality itself" (Vargas v City of New York, 105 AD3d 834, 837 [2d Dept 2013]; see Rosen & Bardunias v County of Westchester, 228 AD2d 487, 488 [2d Dept 1996] ["An action against a government official in his official capacity is functionally equivalent to an action against the municipality."])

Similarly, as established by Monell v Department of Social Services of City of New York (436 US 658 [1977]), a municipality bears liability under 42 USC § 1983 only where the action by its agent "is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" (Monell at 690).

Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 person, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's

official decision making channels

(id. [internal quotation marks omitted]). Accordingly, municipal liability under 42 USC § 1983 only lies if the municipal policy or custom actually caused the constitutional tort and not merely because the municipality employs a tortfeasor who perpetrated a constitutional tort (id. at 691). In other words, causation is an essential element to municipal liability and, thus, no municipal liability will lie under 42 USC § 1983 solely on a theory of respondeat superior (id.). Moreover, since

[a] cause of action under 42 USC § 1983 exists where the evidence demonstrates that an individual has suffered a deprivation of rights as a result of an official policy or custom, and must be pleaded with specific allegations of fact

Pang Hung Leung v City of New York, 216 AD2d 10, 11 [1st Dept 1995 (internal citations omitted)]), broad and conclusory statements, and the wholesale failure to allege facts of the offending conduct alleged, are insufficient to state a claim under section 1983 (id.). Accordingly, a motion to dismiss for failure to state a cause of action under 42 USC § 1983 should be granted where the complaint fails to plead the existence of an official policy or custom which deprived him of a constitutional right in violation of 42 USC § 1983 (Liu v New York City Police Dept., 216 AD2d 67, 68 [1st Dept 1995]), or when the complaint fails to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of which caused the constitutional tort alleged (Vargas at 837; Cozzani v County of Suffolk, 84 AD3d 1147, 1147 (2d Dept 2011] ["Although the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced.]; R.A.C. Group, Inc. v Board of Educ. of City of New York, 295 AD2d 489, 490 [2d Dept 2002] ["because the plaintiffs failed to plead the existence of a specific policy or custom which deprived them of a constitutional right in violation of 42 USC § 1983, that cause of action must be dismissed as well."]; Bryant v City of New York, 188 AD2d 445, 446 [2d Dept 1992] ["Given the complete absence of any factual allegations in the complaint regarding the alleged "policies" of the municipal defendants which led to the officers' conduct, or evidencing their approval or "ratification" of this conduct, the plaintiffs' causes of action against these defendants pursuant to 42 USC § 1983 were properly dismissed"]).

Here, a review of plaintiff's complaint and specifically, her seventh cause of action premised on a violation of 42 USC § 1983, evinces that she fails to plead specific facts establishing that her arrest, imprisonment, and prosecution was the result of a municipal custom or practice so as to state a cause of action pursuant to 42 USC § 1983. Significantly, beyond asserting that the acts that befell her were the result of a municipal custom and practice, plaintiff never once pleads a specific and prior example of the same.

These broad and sweeping conclusions lack the factual specificity required by law. Accordingly, plaintiff fails to state a cause of action against the City under 42 USC § 1983 (Cozzani at 1147 ["Although the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced.]; Bryant at 446 ["Given the complete absence of any factual allegations in the complaint regarding the alleged "policies" of the municipal defendants which led to the officers' conduct, or evidencing their approval or "ratification" of this conduct, the plaintiffs' causes of action against these defendants pursuant to 42 USC § 1983 were properly dismissed"]).

Similarly, insofar as plaintiff alleges that the individual and unnamed police officers violated 42 USC § 1983 while acting within the scope of their employment, her claims against individual officers are only viable if she sufficiently pleads a claim pursuant to 42 USC § 1983 against the City (Vargas at 837). Here, having failed to plead a viable 42 USC § 1983 claim against the City also fails to state a cause of action pursuant to 42 USC § 1983 against the individual officers (Vargas at 837).

42 USC 1985

The City's motion seeking to dismiss plaintiff's cause of action premised on a violation of 42 USC § 1985(3) is granted insofar as the vague and conclusory assertions in her complaint are legally insufficient.

In order to state a cause of action under 42 USC §1985(3), the complaint must allege that defendants (1) conspired or did go in disguise on the highway or on the premises of another; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) that one or more of the conspirators did, or caused to be done, any act in furtherance of the object of the conspiracy; (4) whereby another was; (5) injured in his person or property or; (6) deprived of having and exercising any right or privilege of a citizen of the United States (Griffin v. Breckenridge, 403 US 88, 102-103 [1971]). More succinctly,

[a] valid claim of conspiracy under § 1983 to violate a complainant's constitutional rights must contain allegations of (1) a conspiracy itself, plus (2) actual deprivation of constitutional rights. A violated constitutional right is a natural prerequisite to a claim of conspiracy to violate such right

Romer v Morgenthau, 119 FSupp2d 346, 363 [SDNY 2000]).

When the allegations forming the basis of a claim pursuant to 42 USC 1985(3) are vague, conclusory and fail to offer sufficient detail about the agreement between the alleged conspirators, dismissal is warranted (Nocro, Ltd. v Russell, 94 AD3d 894, 895 [2d Dept 2012] ["Finally, the Supreme Court properly concluded that the appellant failed to state a cause of action under the fourteenth cause of action alleging conspiracy, in effect, pursuant to 42 USC § 1985(3). The appellants' contentions regarding conspiracy are vague and conclusory, and fail to offer sufficient factual details regarding an agreement among the respondents/defendants to deprive the appellant of property in the absence of due process of law, the equal protection of the laws, or privileges and immunities secured to the appellant by the laws and the Constitution of the United States."]; Landmark West! v Tierney, 25 AD3d 319, 320 [1st Dept 2006] ["Petitioner's conspiracy and 42 USC § 1983 claims lack allegations sufficient to show a scheme to undermine its First Amendment right to petition the Commission."]; Scarfone v Village of Ossining, 23 AD3d 540, 541 [2d Dept 2005] ["The plaintiff's speculative and conclusory allegations that Civil Service Employees Association (hereinafter CSEA) and Michael J. Duffy acted in concert with the Village and its agents to deprive the plaintiff of her constitutional rights, and that they conspired with the Village to deprive her of her constitutional rights, without factual allegations or other support, were insufficient to state causes of action pursuant to 42 USC § 1983."]; Ford v Snashall, 285 AD2d 881, 882 [3d Dept 2001] ["[a] claim for conspiracy to violate civil rights requires a detailed fact pleading and a complaint containing only conclusory, vague and general allegations of a conspiracy to deprive a person of constitutional rights cannot withstand a dismissal motion. Since plaintiff failed to substantiate his fourth and fifth causes of action with detailed factual information concerning the alleged conspiracy, these claims were properly dismissed" (internal citations and quotation marks omitted)]; Romer at 363 ["To withstand a motion to dismiss, the conspiracy claim must contain more than conclusory, vague or general allegations of conspiracy to deprive a person of constitutional rights. Specifically, plaintiff must provide some factual basis supporting a meeting of the minds, such as that defendants entered into an agreement, express or tacit, to achieve the unlawful end; plaintiff must also provide some details of time and place and the alleged effects of the conspiracy (internal citations and quotation marks omitted)]).

Reading the complaint liberally, beyond the boiler plate language that unnamed officers "separately and in concert conspired for purposes of depriving . . . Plaintiff of the equal protection of the laws," she pleads no concrete facts regarding the conspiracy alleged. Therefore, she fails to plead a cause of action thereunder (Romer at 363).

42 USC § 1981

The City's motion to dismiss plaintiff's claim pursuant to 42 USC § 1981 is granted insofar as no such cause of action lies, where as here, plaintiff's 42 USC § 1983 has been dismissed.

It is well settled that 42 USC § 1981, which states that

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other[,]

does not create an independent right action against a State (Brown v State, 89 NY2d 172, 185 [1986]; Jett v Dallas Independent School Dist., 491 US 701, 735 [1989]; Ortiz v City of New York, 755 FSupp2d 399, 402 [EDNY 2010]). Instead,

the express action at law provided by §1983 for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor

(Jett at 735). Stated differently, absent a viable cause of action against a State actor under 42 USC § 1983, there can no be claim against the State pursuant to 42 USC § 1981.

Here, where plaintiff's cause of action pursuant to 42 USC § 1983 has been dismissed, her cause of action 42 USC § 1981 must also be dismissed.

42 USC § 1988

Plaintiff's cause of action pursuant to 42 USC 1988 is hereby dismissed insofar as it is premised on the already dismissed federal claims.

42 USC §1988 provides for awards of attorney fees to a prevailing party in any action "[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title" (42 USC § 1988[b]). However,

attorney's fees [cannot] fairly be characterized as an element of relief indistinguishable from other elements . . . [because] [u]nlike other judicial relief, the attorney's fees allowed under § 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial

(White v New Hampshire Dept. of Employment Sec., 455 US 445, 451-452 [1982]).

Here, having dismissed all of plaintiff's federal claims, dismissal of any claim pursuant to 42 USC § 1988 is warranted for this reason alone. Additionally, however, plaintiff's claim under 42 USC § 1988 is only incident to her federal claims - provided she prevails at trial - and thus, not, in it of itself, a separate cause of action. Thus, dismissal is warranted for this additional reason.

Emotional Distress

The City's motion seeking to dismiss plaintiff's claims for intentional and negligent infliction of emotional distress is granted insofar as no such causes of action can be asserted against the City.

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, plaintiff premises her cause of action for intentional and negligent infliction of emotional distress on being 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, plaintiff's cause of action for intentional infliction of emotional distress must also be dismissed insofar as he cause of action for intentional infliction of emotional distress falls within the ambit of her causes of action for false arrest, false imprisonment, and malicious prosecution. Negligent Hiring, Retention, Training, and Supervision

The City's motion seeking dismissal of plaintiff's claim for negligence in the hiring and retention by the City of the officers alleged to have arrested her is granted insofar as here, where the City admits that its officers were, at all times acting within the scope of their employment with the City, this cause of action is barred.

It is well settled that a claim for negligent hiring, retention, and training will be dismissed when an employer concedes that the acts alleged to have been perpetrated by the employee were within the scope of that employee's employment (Karoon v New York City Tr. Auth., 241 AD2d 323, 324 [1st Dept 1997]; Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]). Thus, "[g]enerally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention" (Karoon at 324).

Here, while the complaint pleads all the requisite elements of a negligent training and supervision claim, the City, by counsel, concedes "that the involved police officers were acting within the scope their employment when they arrested plaintiff." Accordingly, the cause of action for negligent hiring, training, and retention must be dismissed (Karoon at 324; Medina at 108; Ashley at 743).

General Negligence

The City's motion seeking dismissal of plaintiff's claim for negligence is granted insofar as no such cause of action lies, where as here, the claims fall within the ambit of a false arrest claim.

It is well settled that in this State, in cases alleging police misconduct, the law does not recognize a cause of action for general negligence or negligent investigation (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 284-285 [2d Dept 2003]). Accordingly,

a plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles of negligence ... but must proceed by way of the traditional remedies of false arrest and imprisonment

(Antonious v Muhammad, 250 AD2d 559, 559-560 [2d Dept 1998] [internal quotation marks omitted]; Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007]). Accordingly, a cause of action sounding in false arrest, imprisonment or malicious prosecution must be pled as such and the failure to do so warrants dismissal (Medina at 108 ["The cause of action alleging negligence, including negligent hiring, retention, and training, must be dismissed because no cause of action for negligent investigation lies in New York."]; Johnson at 285 [Court dismissed plaintiff's claim for negligent investigation on grounds that no such claim was cognizable under New York State law.]). It is hereby ORDERED that plaintiff's complaint be hereby dismissed with prejudice. It is further

ORDERED that the City 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 : August 25, 2017 Bronx, New York ______________________________ Ben Barbato, J.S.C.