Opinion
No. 155553/13.
10-22-2014
Roosevelt TERRY, Plaintiff, v. METRO–NORTH COMMUTER RAILROAD, Metropolitan Transportation Authority, Police Officer Adam Jutze, and The City of New York, Defendants.
Richard J. Katz, LLP, by: Richard J. Katz, Esq., New York, NY, for plaintiff. James B. Henly, Esq., General Counsel Metro–North Commuter Railroad, by: Jesse A. Raye, Esq., New York, NY, for defendants.
Richard J. Katz, LLP, by: Richard J. Katz, Esq., New York, NY, for plaintiff.
James B. Henly, Esq., General Counsel Metro–North Commuter Railroad, by: Jesse A. Raye, Esq., New York, NY, for defendants.
Opinion
MICHAEL D. STALLMAN, J.
In this action, defendants Metro–North Commuter Railroad (Metro–North), Metropolitan Transportation Authority (MTA), and Officer Adam Jutze move for summary judgment dismissing the plaintiff's complaint as against them. Plaintiff opposes the motion.
BACKGROUND
Plaintiff alleges that, on February 25, 2010, he was wrongfully arrested for possession of explosives in front of the Metro–North station located at 101 East 125th Street and Park Avenue. On March 9, 2010 a grand jury indicted plaintiff on one count of criminal possession of a weapon in the first degree. (Penal Law § 265.04.) According to plaintiff's records, on March 1, 2012, all charges were dismissed against plaintiff, and on June 19, 2012, plaintiff was released from custody. (See Katz Opp. Affirm. ¶ 15.) According to defendants' records, all charges were dismissed against plaintiff on June 19, 2012. (Raye Affirm. ¶ 13, Ex. A.) Plaintiff brings this action alleging violations of federal civil rights and other state tort claims, sounding in (1) “wrongful arrest”; (2) “wrongful detainment and imprisonment”; (3) negligent performance of duties; (4) negligent hiring, training, and supervision; (5) “false and illegal imprisonment”; (6) negligent and malicious investigation; and (7) malicious prosecution. (See Katz Opp. Affirm. Ex. B [Complaint].) In a decision dated February 25, 2014, this Court dismissed the action as against the City of New York.
The remaining defendants, MTA, Metro–North and Officer Jutze, move for summary judgment on the grounds that there was probable cause for plaintiff's arrest, plaintiff's claims are barred by applicable statute of limitations, defendants are not liable for the actions of the District Attorney or the Department of Corrections. Defendant Metro–North moves for summary judgment on the additional ground that it is a separate entity from MTA and was not involved in plaintiff's arrest. Defendant Officer Jutze moves for summary judgment on the additional ground that he has qualified immunity from prosecution. Defendants also seek costs arguing that they have “incurred significant expense, including the cost of preparation of this motion, for which the [d]efendants are entitled to compensation .” (Raye Affirm. ¶ 50.)
Plaintiff opposes the motion, arguing that there was no probable cause for the arrest and the claims are not time-barred. Plaintiff argues that even if there was probable cause to arrest, probable cause dissipated once a latent fingerprint on the package was later identified as belonging to non-party Ronald Brito, who admitted under questioning on February 28, 2012 that he built the alleged bomb, and then was arrested and charged with criminal possession of a weapon in the third degree. (See Raye Affirm. Ex. D.) Plaintiff also argues that defendants' cross claim for costs has no merit.
DISCUSSION
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986].) If the movant fails to make such a showing, the motion must be denied. (Id. ) “Where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so.” (Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980].)
Defendants have demonstrated prima facie entitlement to summary judgment. Plaintiff's causes of action for false arrest, unlawful imprisonment, and malicious prosecution must be dismissed because there was probable cause to arrest plaintiff. Probable cause is a defense that completely defeats a claim for false or unlawful arrest or imprisonment, and the claim of malicious prosecution also fails because of the existence of probable cause. (See Arzeno v. Mack, 39 AD3d 341, 341–342 [1st Dept 2007].)
“[T]he arrest in question was based upon such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that plaintiff had committed the [crime]' as a matter of law and the facts leading up to the arrest, and the inferences to be drawn therefrom, were not in dispute.” (Agront v.. City of New York, 294 A.D.2d 189, 189 [1st Dept 2002] [internal citations omitted].) Here, surveillance video from February 25, 2010 undisputedly shows plaintiff in a wheelchair entering the station located at 101 East 125th Street with a package on his lap and leaving the package in the waiting room area. (See Raye Affirm. Ex. A, C.) Officer Keith Flood of the MTA police department inspected the package and found that it contained material for making explosives, which Bomb Squad Sgt. Coughlin confirmed. (See Raye Affirm. Ex. A.) As a result of a canvas of the surrounding area, Officer Jutze found the plaintiff who fit the description on the surveillance video. (See id. ) Plaintiff was arrested and detained for criminal possession of a weapon in the first degree. (See Raye Affirm Ex. A, B at 19–20).
Moreover, on March 9, 2010 a grand jury indicted plaintiff. (See Raye Affirm. Ex. A.) A grand jury indictment creates a presumption of probable cause for plaintiff's continued prosecution and pretrial detention. (See Gisondi v. Town of Harrison, 72 N.Y.2d 280, 284 [1988] ; Abdul–Aziz v. City of New York, 56 AD3d 291, 293 [1st Dept 2008].) However, the presumption is rebuttable “by evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the police or other police conduct undertaken in bad faith.” (Marshall v. Sullivan, 105 F3d 47, 55 [2d Cir.1996] ; see also Abdul–Aziz, 56 Ad3d at 293.) Here, plaintiff has failed to rebut the presumption. “Inasmuch as there was probable cause for plaintiff's arrest, which was not dissipated by events between the time of the arrest and the commencement of the criminal proceeding, plaintiff's claim for malicious prosecution must also fail.” (Agront, 294 A.D.2d at 190.) Dismissal of charges is not a concession that an arrest was made without probable cause. (See Colon v. City of New York, 60 N.Y.2d 78, 84 [1983].) “In any investigation [officers] are likely to encounter discrepancies.... These matters may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime.” (Gisondi, 72 N.Y.2d at 285.) “Probable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information.” (Bernard v. U.S., 25 F3d 98, 102 [2d Cir.1994].) Here, there was sufficient evidence to show probable cause on February 25, 2010 when plaintiff was arrested and on March 9, 2010 when plaintiff was indicted by the grand jury, and plaintiff was released once later evidence showed that there was no longer any reason to continue prosecution against him. Moreover, defendants are not liable for the actions of the District Attorney. “A [ ] complainant ... furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution. Nor does identifying ... the perpetrator of the crime, signing the summons or testifying at trial give rise to tort liability.” (Du Chateau v. Metro–North Commuter R.R. Co., 253 A.D.2d 128, 131 [1st Dept 1999] [internal citations omitted].)
Plaintiff's civil rights claims must also be dismissed because there was probable cause for the arrest. (See Grant v. Barnes & Noble, 284 A.D.2d 238, 239 [1st Dept 2001] [“Since plaintiffs' 42 USC § 1983 causes for violation of their civil rights are predicated exclusively on their legally untenable claims for false arrest and malicious prosecution, the 42 USC § 1983 causes are also untenable and should also have been dismissed.”]; Singer v. Fulton County Sheriff, 63 F3d 110, 119 [2d Cir.1995] [finding, “[t]here can be no federal civil rights claim for false arrest where the arresting officer had probable cause”]; Rivera v. City of New York, 2011 N.Y. Misc. LEXIS 4629, 2011 WL 4537020,* 7 [Sup Ct, Kings County, Oct. 3, 2011, Index No. 16519/07] [dismissing federal civil rights negligent hiring and retention claims because police had probable cause to arrest and prosecute plaintiff].)
Plaintiff's causes of action of negligent investigation, negligent hiring, training and supervision and all other negligence claims must also be dismissed “because no cause of action for negligent investigation lies in New York.” (Medina v. City of New York, 102 AD3d 101, 108 [1st Dept 2012].) “It is well settled that New York courts do not recognize claims for negligent or malicious investigation. A plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad principles of negligence * * * but must proceed by way of the traditional remedies of false arrest and imprisonment.” (Johnson v. Kings County Dist. Attorney's Off., 308 A.D.2d 278, 284–285 [2d Dept 2003] [internal quotation marks omitted].) Moreover, “where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention.” (Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 324 [1st Dept 1997].) Here, it is undisputed that Officer Jutze was acting within the scope of his employment.
Plaintiff has not raised any triable question of fact sufficient to defeat defendants' motion for summary judgment, therefore defendants' motion is granted.
Finally, defendants' cross claim for costs is denied, to the extent that defendants are seeking costs of their motion. (CPLR 8202 ). Plaintiff's claims are not manifestly frivolous and unless a statute or contract shifts costs to the non-prevailing party, each side bears its own costs. (See 22 NYCRR 130–1.1 ; Coby Elecs. Co., Ltd. v. Toshiba Corp., 108 AD3d 419, 421 [1st Dept 2013] [“[T]he prevailing party ... is not entitled to attorneys' fees and costs, as there is no statute, agreement or court rule authorizing that award.”] )
The Court need not address plaintiff's or defendants' remaining contentions.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendants Metro–North, MTA, and Officer Jutze is granted and the complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and all cross claims against these defendants are dismissed and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further
ORDERED that defendants' cross claim for costs is denied.