Opinion
10-12-2016
Heidelind M. SEMMIG, respondent, v. Sandy CHARLACK, et al., defendants, County of Suffolk, et al., appellants.
Dennis M. Brown, County Attorney, Hauppauge, NY (James A. Squicciarini of counsel), for appellants County of Suffolk and Police Officer James F. Dolan. Patricia Rooney, P.C., Lindenhurst, NY, for appellant Sergeant Fred Lipsky. James Cammarata, Oyster Bay, NY, for respondent.
Dennis M. Brown, County Attorney, Hauppauge, NY (James A. Squicciarini of counsel), for appellants County of Suffolk and Police Officer James F. Dolan.
Patricia Rooney, P.C., Lindenhurst, NY, for appellant Sergeant Fred Lipsky.
James Cammarata, Oyster Bay, NY, for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for false arrest and malicious prosecution, the defendants County of Suffolk and Police Officer James F. Dolan appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated January 16, 2014, as denied those branches of their motion which were for summary judgment dismissing the causes of action to recover damages for false arrest and malicious prosecution insofar as asserted against them, and dismissing the causes of action to recover damages for civil rights violations pursuant to 42 U.S.C. § 1983 insofar as asserted against the defendant Police Officer James F. Dolan, and the defendant Sergeant Fred Lipsky separately appeals, as limited by his brief, from so much of the same order as denied those branches of his separate motion which were for summary judgment dismissing the causes of action to recover damages for false arrest, malicious prosecution, and civil rights violations pursuant to 42 U.S.C. § 1983 insofar as asserted against him.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants County of Suffolk and Police Officer James F. Dolan, and the separate motion of the defendant Sergeant Fred Lipsky, which were for summary judgment dismissing the cause of action to recover damages for malicious prosecution insofar as asserted against each of them, and substituting therefor provisions granting those branches of the separate motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In this action against, among others, the defendants County of Suffolk, Police Officer James F. Dolan, and Sergeant Fred Lipsky (hereinafter collectively the appellants), the plaintiff seeks to recover damages arising from an allegedly unlawful entry into her home, unlawful arrest, and malicious prosecution of her. The Supreme Court, among other things, denied those branches of the motion of the County and Dolan, and the separate motion of Lipsky, which were for summary judgment dismissing the causes of action to recover damages for false arrest and malicious prosecution insofar as asserted against each of them, and dismissing the causes of action to recover damages for civil rights violations pursuant to 42 U.S.C. § 1983 insofar as asserted against Dolan and Lipsky.
The Supreme Court properly denied those branches of the appellants' separate motions which were for summary judgment dismissing the false arrest cause of action insofar as asserted against each of them. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest (see Batten v. City of New York, 133 A.D.3d 803, 805, 20 N.Y.S.3d 160 ; Paulos v. City of New York, 122 A.D.3d 815, 817, 997 N.Y.S.2d 452 ; see also De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ), including a cause of action asserted pursuant to 42 U.S.C. § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that is the federal-law equivalent of a state common-law false arrest cause of action (see Betts v. Shearman, 751 F.3d 78, 82 [2d Cir.] ; see also Jenkins v. City of
New York, 478 F.3d 76, 84 [2d Cir.] ). “Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty” (Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 ; see Batten v. City of New York, 133 A.D.3d at 805, 20 N.Y.S.3d 160 ; Sirlin v. Town of New Castle, 35 A.D.3d 713, 714–715, 826 N.Y.S.2d 676 ; Jenks v. State of New York, 213 A.D.2d 513, 514, 623 N.Y.S.2d 916 ). Moreover, probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn therefrom (see Parkin v. Cornell Univ., 78 N.Y.2d 523, 529, 577 N.Y.S.2d 227, 583 N.E.2d 939 ; Fausto v. City of New York, 17 A.D.3d 520, 793 N.Y.S.2d 165 ). Here, the evidence submitted by the appellants in support of their separate motions failed to eliminate triable issues of fact as to whether the arresting police officers had probable cause to arrest the plaintiff.
Similarly, as there are triable issues of fact as to whether it was objectively reasonable for the police officers to believe that exigent circumstances existed to justify their warrantless entry into the plaintiff's home and whether the officers acted with probable cause in arresting the plaintiff, the Supreme Court properly denied summary judgment on the issue of qualified immunity (see Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 ; Diederich v. Nyack Hosp., 49 A.D.3d 491, 493, 854 N.Y.S.2d 411 ; Sirlin v. Town of New Castle, 35 A.D.3d 713, 826 N.Y.S.2d 676 ; Kubik v. New York State Dept. of Social Servs., 278 A.D.2d 644, 719 N.Y.S.2d 130 ).
However, the appellants established their prima facie entitlement to judgment as a matter of law dismissing the malicious prosecution cause of action insofar as asserted against each of them by demonstrating that the underlying criminal proceeding was not terminated in favor of the plaintiff (see MacFawn v. Kresler, 88 N.Y.2d 859, 860, 644 N.Y.S.2d 486, 666 N.E.2d 1359 ; Avgush v. Town of Yorktown, 35 A.D.3d 331, 824 N.Y.S.2d 735 ; De Cicco v. Madison County, 300 A.D.2d 706, 750 N.Y.S.2d 371 ; Ellsworth v. City of Gloversville, 269 A.D.2d 654, 703 N.Y.S.2d 294 ). The underlying criminal proceeding in this matter was terminated as a result of the facial insufficiency of the criminal information and not on the merits of the matter (see MacFawn v. Kresler, 88 N.Y.2d at 860, 644 N.Y.S.2d 486, 666 N.E.2d 1359 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted those branches of the appellants' separate motions which were for summary judgment dismissing the malicious prosecution cause of action insofar as asserted against each of them (see MacFawn v. Kresler, 88 N.Y.2d at 860, 644 N.Y.S.2d 486, 666 N.E.2d 1359 ; Avgush v. Town of Yorktown, 35 A.D.3d at 331, 824 N.Y.S.2d 735 ; Cahill v. County of Nassau, 17 A.D.3d 497, 793 N.Y.S.2d 190 ; Tzambazis v. City of New York, 291 A.D.2d 397, 736 N.Y.S.2d 911 ).