Summary
holding that a guilty plea establishes probable cause for a prosecution, which is "a complete defense to plaintiff's claims of . . . malicious prosecution"
Summary of this case from Wilkov v. Ameriprise Fin. Servs., Inc.Opinion
2014-03-6
Albert GARCIA, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, Sgt. Robert Dello Iacono, etc., et al., Defendants.
Koehler & Isaacs LLP, New York (Raymond J. Aab of counsel), for appellant. Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondents.
Koehler & Isaacs LLP, New York (Raymond J. Aab of counsel), for appellant. Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 29, 2012, which granted the motion of defendants City of New York, Police Officer John Florio and Detective Joseph Dietrich for summary judgment dismissing the complaint in its entirety, and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about September 19, 2008, denying plaintiff's motion to extend his time to serve Sergeant Dello Iacono, Captain Raddy and Detective DeSimone, unanimously dismissed, without costs, as untimely.
Plaintiff failed to rebut the presumption of probable cause raised by the grand jury indictment ( see Lawson v. City of New York, 83 A.D.3d 609, 922 N.Y.S.2d 54 [1st Dept.2011],lv. dismissed19 N.Y.3d 952, 950 N.Y.S.2d 99, 973 N.E.2d 197 [2012];Jenkins v. City of New York, 2 A.D.3d 291, 292, 770 N.Y.S.2d 22 [1st Dept.2003] ). The existence of probable cause constitutes a “complete defense” to plaintiff's claims of false arrest, false imprisonment, and malicious prosecution under state law (Lawson at 609, 922 N.Y.S.2d 54) and his claim under 42 USC § 1983 ( see Brown v. City of New York, 289 A.D.2d 95, 735 N.Y.S.2d 21 [1st Dept.2001];Weyant v. Okst, 101 F.3d 845, 852 [2d Cir.1996] ). Plaintiff failed to raise any triable issue of fact that the written and videotaped confessions which constituted the key evidence supporting the indictment were coerced ( see CPL 60.45[2][a], 60.45[2][b]; People v. Hernandez, 25 A.D.3d 377, 378–379, 806 N.Y.S.2d 589 [1st Dept.2006],lv. denied6 N.Y.3d 834, 814 N.Y.S.2d 82, 847 N.E.2d 379 [2006];People v. Lang, 226 A.D.2d 245, 641 N.Y.S.2d 258 [1st Dept.1996], lv. denied88 N.Y.2d 967, 647 N.Y.S.2d 721, 670 N.E.2d 1353 [1996] ).
The motion court also correctly held that plaintiff failed to establish a claim for municipal liability under 42 USC § 1983 ( see Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ). Plaintiff failed to establish any municipal pattern and practice sufficient to support such a claim, and failed to show that supervisory police officials were grossly negligent or otherwise acted with “deliberate indifference” to plaintiff's rights ( see Prowisor v. Bon–Ton, Inc., 426 F.Supp.2d 165, 174 [S.D.N.Y.2006],affd. 232 Fed.Appx. 26, 2007 WL 1233595 [2d Cir.2007]; Pendleton v. City of New York, 44 A.D.3d 733, 843 N.Y.S.2d 648 [2d Dept.2007] ).
The motion court did not err in dismissing the complaint against defendants Dello Iacono, Raddy and DeSimone for failure to timely serve process ( seeCPLR 306–b), and against defendant Peters who had defaulted, on account of plaintiff's failure to timely move for a default judgment ( seeCPLR 3215 [c] ). Plaintiff's appeal from the September 19, 2008 order denying his motion for an extension of time to effect service on those officers was not timely taken and is not properly before the Court.
We have considered plaintiff's remaining contentions and find them unavailing. SAXE, J.P., MOSKOWITZ, DeGRASSE, FEINMAN, CLARK, JJ., concur.