Opinion
No. 703164/12.
09-22-2014
Bruce SHAW, Plaintiff, v. CITY OF NEW YORK and “John Doe” (Name Being Fictitious and Unknown Representing those of the Police Officers/Assailants), Defendants.
Scott Baron and Associates, Attorney for Plaintiff, Bruce Shaw. Pamela Cullington, Esq., Asst. Corporation Counsel, Attorney for Defendant, City of New York.
Scott Baron and Associates, Attorney for Plaintiff, Bruce Shaw.
Pamela Cullington, Esq., Asst. Corporation Counsel, Attorney for Defendant, City of New York.
Opinion
PHYLLIS ORLIKOFF FLUG, J.
Defendant, the City of New York (hereinafter “City”), moves inter alia for summary judgment, dismissing plaintiff's complaint as asserted against it.
This is an action to recover damages for inter alia civil rights violations arising out of plaintiff's allegedly false arrest on October 5, 2011 at the intersection of 99th Avenue and 193rd Street, in the County of Queens, City and State of New York.
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ...” (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 [1985] ). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ).
The existence of probable cause is a complete defense to any cause of action for false arrest, false imprisonment, and/or malicious prosecution (See Whyte v. City of Yonkers, 36 AD3d 799 [2d Dept.2007] ; see also Rodgers v. City of New York, 106 AD3d 1068, 1069 [2d Dept.2013] ; Reape v. City of New York, 66 AD3d 755, 756 [2d Dept.2009] ).
To demonstrate the existence of probable cause movant must show that, based on the totality of the circumstances, the officers had information sufficient to support a reasonable belief that an offense has been committed (See Marrero v. City of New York, 33 AD3d 556, 557 [1st Dept.2006] ; see also Redmond v. City of White Plains, 77 AD3d 902 [2d Dept.2010] ).
Information provided by an identified citizen accusing another individual of a specific crime is generally sufficient to provide the police with probable cause to arrest (See Williams v. City of New York, 114 AD3d 852, 853 [2d Dept.2014] ; Rivera v. County of Nassau, 83 AD3d 1032, 1033 [2d Dept.2011] ). The City submits inter alia the deposition testimony of Officer Powell, that he received a radio call for a robbery that took place ten minutes before he passed plaintiff's vehicle, that plaintiff's vehicle matched the description of the vehicle used in the robbery, that plaintiff did not stop for approximately 25 blocks after he had activated his lights and sirens to pull plaintiff's vehicle over, that he was informed by another officer at the scene that the victim of the robbery positively identified plaintiff and the passenger in his vehicle as the robbers, and that he found the victim's wallet, license and credit cards in the backseat of plaintiff's vehicle (See Martinez v. City of Schenectady, 97 N.Y.2d 78, 84 [2001] ; see also Rivera, supra, at 1034; Batista v. City of New York, 15 AD3d 304, 305 [1st Dept.2005] ).
In opposition, plaintiff fails to raise a triable issue of fact. Plaintiff's contentions that defendants' motion is premature is wholly without merit. As the motion was not made until after preliminary and compliance conferences were held and plaintiff filed his note of issue, it is clear plaintiff has been afforded a reasonable opportunity to conduct discovery (Cf. Valdivia v. Consolidated Resistance Co. of Am., Inc., 54 AD3d 753, 755 [2d Dept.2008] ; Amico v. Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785 [2d Dept.2007] ; Fazio v. Brandywine Realty Trust, 29 AD3d 939, 940 [2d Dept.2006] ).
Although the motion was made only four days after new defendants were added, and plaintiff has not yet deposed two of the newly added defendants, plaintiff did depose one of the newly added defendants prior to naming him as an individual party to the lawsuit, and fails to offer any explanation as to why the defendants were not similarly deposed prior to being individually named as defendants (Cf. Williams v. City of New York, 40 AD3d 847, 849–50 [2d Dept.2007] ).
However, the probable cause that existed at the time of the arrest terminated upon the grand jury's finding of no true bill (See Sankar v. City of New York, 867 F.Supp.2d 297, 311 [E.D.NY 2012] ; Phillips v. DeAngelis, 571 F.Supp.2d 347, 356 [N.D.NY 2008] ). Defendant has failed to demonstrate any cause to continue to detain plaintiff for an additional two days after the grand jury's finding.
Defendants, however, have established their entitlement to dismissal of plaintiff's causes of action for the violation of his constitutional rights pursuant to 42 U.S.C. § 1983.
To state a cause of action for constitutional violations pursuant to 42 U.S.C. § 1983, a plaintiff must plead the existence of an official policy or custom that caused the plaintiff to be subjected to a denial of a constitutional right (Monell v. Department of Social Services of New York City, 436 U.S. 658 [1978] ).
Neither the notice of claim nor the complaint contain any factual allegations regarding such a custom or policy. Moreover, as it is well settled that a plaintiff cannot raise a new theory of liability not raised in the complaint or notice of claim to defeat summary judgment, plaintiff's claim, raised for the first time in opposition to the motion, that the City's “No Plea Policy” violated his constitutional rights, is insufficient (See Crew v. Town of Beekman, 105 AD3d 799, 800–01 [2d Dept.2013] ; Rumyacheva v. City of New York, 36 AD3d 790, 790–91 [2d Dept.2007] ).
Accordingly, defendant's motion is granted to the extent that plaintiff's causes of action for false arrest, malicious prosecution, 42 U.S.C. § 1983 constitutional violations, negligent infliction of emotional distress and intentional infliction of emotional distress are dismissed as asserted against the City of New York.
The parties shall appear for the October 20, 2014 conference in the Trial Scheduling Part with respect to plaintiff's cause of for false imprisonment following the grand jury's finding of no true bill.