Opinion
11126 Index 306656/14
02-25-2020
Abdiana SUERO, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, NYPD Officers sued herein as John/Jane Doe I–V, Defendants.
Sim & DePaola, LLP, Bayside (Sang J. Sim of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondents.
Sim & DePaola, LLP, Bayside (Sang J. Sim of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondents.
Gische, J.P., Mazzarelli, Moulton, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about July 13, 2018, which granted The City defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established prima facie entitlement to judgment as a matter of law by submitting evidence that defendant police officers had probable cause to arrest plaintiff on a theory of constructive possession. Such is a complete defense to plaintiff's claims of false arrest, false imprisonment and malicious prosecution (see Hunter v. City of New York, 169 A.D.3d 603, 95 N.Y.S.3d 41 [1st Dept. 2019] ).
In opposition, plaintiff failed to raise an issue of fact. The evidence shows that she was discovered asleep, in a state of undress, in an apartment identified in a valid search warrant as a drug distribution point (see Walker v. City of New York, 148 A.D.3d 469, 470, 50 N.Y.S.3d 320 [1st Dept. 2017] ; Mendoza v. City of New York, 90 A.D.3d 453, 933 N.Y.S.2d 863 [1st Dept. 2011] ). Contraband was in open view in the apartment and readily accessible to her (see Brown v. City of New York, 170 A.D.3d 596, 96 N.Y.S.3d 577 [1st Dept. 2019] ). The excessive force claim was also properly dismissed since plaintiff claims no physical injury (see Davidson v. City of New York, 155 A.D.3d 544, 65 N.Y.S.3d 520 [1st Dept. 2017] ).
We have considered plaintiff's remaining arguments and find them unavailing.