Opinion
15567 Index No. 156555/14 Case No. 2021–03357
03-24-2022
Joseph DELGROSSO, Plaintiff–Appellant, v. Susan MCCANN et al., Defendants, City of New York et al., Defendants–Respondents.
Tumelty & Spier, LLP, New York (John P. Tumelty of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondents.
Tumelty & Spier, LLP, New York (John P. Tumelty of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondents.
Gische, J.P., Mazzarelli, Friedman, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered February 16, 2021, which, to the extent appealed from as limited by the briefs, granted defendants City of New York, Police Officer Evelio Fernandez, and Detective Thomas McLauglin's motion for summary judgment dismissing the false arrest and imprisonment and malicious prosecution claims as against them, unanimously affirmed, without costs.
Probable cause is a complete defense to an unlawful arrest and imprisonment claim ( Gann v. City of New York, 197 A.D.3d 1035, 1036, 151 N.Y.S.3d 878 [1st Dept. 2021] ; Roberts v. City of New York, 171 A.D.3d 139, 97 N.Y.S.3d 3 [1st Dept. 2019], affd 34 N.Y.3d 991, 114 N.Y.S.3d 42, 137 N.E.3d 497 [2019] ). Similarly, because the absence of probable cause is an element of a claim for malicious prosecution, the existence of probable cause mandates the dismissal of any such claim ( Roberts v. City of New York, 171 A.D.3d at 146, 97 N.Y.S.3d 3 ). The court properly dismissed the false arrest, false imprisonment, and malicious prosecution claims against the moving defendants in this case because probable cause for plaintiff's arrest was established as a matter of law.
Probable cause existed based on the victim's account to the police stating that plaintiff had thrown a chemical at her, her visible burn injuries, and the statement of the victim's neighbor placing plaintiff near the scene of the crime ( People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; Medina v. City of New York, 102 A.D.3d 101, 103, 953 N.Y.S.2d 43 [1st Dept. 2012] ). In addition, at the time of this incident, there was an outstanding order of protection directing plaintiff to stay away from the victim, which indicated that plaintiff had already been found to be a danger to the victim (see People v. Espinosa, 46 A.D.3d 311, 312, 847 N.Y.S.2d 525 [1st Dept. 2007] ). Plaintiff failed to establish any issue of fact that negated a finding of probable cause. Moreover, plaintiff failed to overcome the presumption of probable cause created by the grand jury indictment against him ( Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983] ).