Opinion
5475 Index 301299/13
01-18-2018
Olyn PHIN, Plaintiff–Respondent, v. CITY OF NEW YORK, et al., Defendants–Appellants.
Zachary W. Carter, Corporation Counsel, New York (Max McCann of counsel), for appellants. Pollack, Pollack Isaac & DeCicco, LLP, New York (Michael H. Zhu of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Max McCann of counsel), for appellants.
Pollack, Pollack Isaac & DeCicco, LLP, New York (Michael H. Zhu of counsel), for respondent.
Acosta, P.J., Sweeny, Gische, Andrias, Gesmer, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about April 12, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The evidence shows that plaintiff resided in and was the leaseholder of an apartment where contraband was discovered pursuant to a search warrant. Plaintiff's residence and tenancy established her dominion and control over the apartment, and thus placed her in constructive possession of the contraband found therein (see People v. Diaz, 24 N.Y.3d 1187, 1190, 27 N.E.3d 459 [2015] ; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ). This is so despite the fact that her children's father had access to the apartment and also admitted and was charged with possession of the same contraband, since "[p]ossession if joint is no less possession" ( People v. Tirado, 38 N.Y.2d 955, 956, 384 N.Y.S.2d 151, 348 N.E.2d 608 [1976] ). This is also true despite the fact that plaintiff was not in the apartment when the search warrant was executed and the contraband discovered (see Boyd v. City of New York, 143 A.D.3d 609, 39 N.Y.S.3d 757 [1st Dept. 2016] ; People v. Hines, 278 A.D.2d 849, 717 N.Y.S.2d 443 [4th Dept. 2000], affd 97 N.Y.2d 56, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001] ). Plaintiff's possession of the contraband, in turn, gave rise to probable cause for her arrest. Nor does the record show that there were any material changes in fact to undermine the probable cause between her arrest and the filing of charges against her (see Brown v. City of New York, 60 N.Y.2d 893, 894–895, 470 N.Y.S.2d 571, 458 N.E.2d 1248 [1983] ). There is no evidence in the record sufficient to overcome the presumption of validity in the search warrant which led to the discovery of the contraband (see People v. Calise, 256 A.D.2d 64, 65, 682 N.Y.S.2d 149 [1st Dept. 1998], lv denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097 [1999] ).
The existence of probable cause constitutes a complete defense to plaintiff's state claims (see Nadal v. City of New York, 105 A.D.3d 598, 964 N.Y.S.2d 100 [1st Dept. 2012], lv denied 21 N.Y.3d 861, 971 N.Y.S.2d 751, 994 N.E.2d 842 [2013] ; Lawson v. City of New York, 83 A.D.3d 609, 922 N.Y.S.2d 54 [1st Dept. 2011], lv dismissed 19 N.Y.3d 952, 950 N.Y.S.2d 99, 973 N.E.2d 197 [2012] ), and federal claims for false arrest, false imprisonment, and malicious prosecution (see Brown v. City of New York, 289 A.D.2d 95, 735 N.Y.S.2d 21 [1st Dept. 2001] ; Manganiello v. City of New York, 612 F.3d 149, 161–162 [2d Cir. 2010] ).
The existence of probable cause likewise defeats any claim for the same acts based on a lesser showing of negligence (see Boose v. City of Rochester, 71 A.D.2d 59, 62, 421 N.Y.S.2d 740 [4th Dept. 1979] ; Garcia v. Bloomberg, 2015 WL 5444122, *4, 2015 U.S. Dist LEXIS 123407 [S.D.N.Y.2015], affd 662 Fed.Appx. 50 [2d Cir. 2016], cert denied ––– U.S. ––––, 137 S.Ct. 2266, 198 L.Ed.2d 699 [2017] ).
There is no evidence to support any claim for use of excessive force in effecting her arrest.