Opinion
9225 Index 303264/14
05-07-2019
Luis TIBURCIO, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Raskin & Kremins, LLP, New York (Rhonda Katz of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondents.
Raskin & Kremins, LLP, New York (Rhonda Katz of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondents.
Renwick, J.P., Richter, Tom, Kapnick, Kern, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about September 21, 2017, which, in this action alleging, inter alia, false arrest, false imprisonment, malicious prosecution and violation of constitutional rights under 42 USC § 1983, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant Officer Martinez's observations of plaintiff spray painting the gate of a church, the recovery of the same color spray paint from his person, and the existence of paint on plaintiff's hand established probable cause for the arrest, and thus provided defendants a complete defense to the claims of false arrest, false imprisonment and malicious prosecution (see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759–761, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ; Batista v. City of New York, 15 A.D.3d 304, 790 N.Y.S.2d 445 [2005] ), notwithstanding the subsequent dismissal of the criminal charges (see Arzeno v. Mack, 39 A.D.3d 341, 833 N.Y.S.2d 480 [2007] ). Plaintiff failed to establish bad faith by the officers with respect to false arrest, or actual malice with respect to malicious prosecution (see Jenkins v. City of New York, 2 A.D.3d 291, 770 N.Y.S.2d 22 [1st Dept. 2003] ). Plaintiff's claims of assault and battery are also not viable since the act of handcuffing plaintiff pursuant to a lawful arrest was entirely reasonable (see Fowler v. City of New York, 156 A.D.3d 512, 67 N.Y.S.3d 171 [1st Dept. 2017], lv dismissed 31 N.Y.3d 1042, 76 N.Y.S.3d 504, 100 N.E.3d 843 [2018] ).Furthermore, the existence of probable cause to arrest and prosecute plaintiff entitled Officer Martinez to qualified immunity under the circumstances (see e.g. Amore v. Novarro, 624 F.3d 522 [2d Cir. 2010] ).We have considered plaintiff's remaining arguments and find them unavailing.