Opinion
2014-02-19
Tyrone WILLIAMS, respondent, v. CITY OF NEW YORK, appellant, et al., defendant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Janet L. Zaleon, and Keegan K. Staker of counsel), for appellant. Hill Rosenberg & Thurston, LLC, Brooklyn, N.Y. (Steven N. Feinman of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Janet L. Zaleon, and Keegan K. Staker of counsel), for appellant. Hill Rosenberg & Thurston, LLC, Brooklyn, N.Y. (Steven N. Feinman of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
In an action, inter alia, to recover damages for false imprisonment and malicious prosecution, the defendant City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated June 29, 2012, as denied those branches of its motion which were for summary judgment dismissing the causes of action alleging false imprisonment and malicious prosecution insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant City of New York which were for summary judgment dismissing the causes of action alleging false imprisonment and malicious prosecution insofar as asserted against it are granted.
“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” ( Rivera v. County of Nassau, 83 A.D.3d 1032, 1033, 922 N.Y.S.2d 168;see Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310,cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257). “The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim of false imprisonment or false arrest” ( Rivera v. County of Nassau, 83 A.D.3d at 1033, 922 N.Y.S.2d 168 [internal quotation marks omitted]; see Broughton v. State of New York, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310;Smith v. County of Nassau, 34 N.Y.2d 18, 23, 355 N.Y.S.2d 349, 311 N.E.2d 489).
Contrary to the Supreme Court's determination, the City of New York demonstrated its prima facie entitlement to judgment as a matter of law dismissing the plaintiff's false imprisonment claim. “ ‘Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest’ ” ( Rivera v. County of Nassau, 83 A.D.3d at 1033, 922 N.Y.S.2d 168, quoting People v. Bero, 139 A.D.2d 581, 584, 526 N.Y.S.2d 979;see Minott v. City of New York, 203 A.D.2d 265, 267, 609 N.Y.S.2d 334;Shapiro v. County of Nassau, 202 A.D.2d 358, 609 N.Y.S.2d 234). Here, the City established the existence of probable cause to arrest the defendant by presenting evidence that an identified citizen accused the plaintiff of a specific crime. The plaintiff failed to raise a triable issue of fact in opposition ( see Redmond v. City of White Plains, 77 A.D.3d 902, 902, 909 N.Y.S.2d 648). Accordingly, the Supreme Court should have granted that branch of the City's motion which was for summary judgment dismissing the false imprisonment cause of action.
“The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” ( Broughton v. State of New York, 37 N.Y.2d at 457, 373 N.Y.S.2d 87, 335 N.E.2d 310;see Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248). “Once a suspect has been indicted, ... the indictment creates a presumption of probable cause to believe that the suspect committed the crime” ( Chetrick v. Cohen, 52 A.D.3d 449, 450, 859 N.Y.S.2d 705;see Colon v. City of New York, 60 N.Y.2d at 82–83, 468 N.Y.S.2d 453, 455 N.E.2d 1248;Strange v. County of Westchester, 29 A.D.3d 676, 677, 815 N.Y.S.2d 155). “The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted in bad faith” ( Colon v. City of New York, 60 N.Y.2d at 82–83, 468 N.Y.S.2d 453, 455 N.E.2d 1248). Here, the City demonstrated its prima facie entitlement to judgment as a matter of law by showing that the plaintiff was indicted by a grand jury for the subject incident, thus creating a presumption of probable cause.
The plaintiff asserts that a fingerprint analysis report, which was prepared after the victim and the lead detective testified before the grand jury, exonerated him and rebutted the presumption of probable cause created by the grand jury indictment. Contrary to the plaintiff's contention, the fingerprint analysis report did not exonerate him, but instead constituted “conflicting evidence uncovered in the course of the police investigation” that was “relevant to the issue of whether guilt beyond a reasonable doubt could have been proven at a criminal trial, not to the initial determination of the existence of probable cause” ( Agront v. City of New York, 294 A.D.2d 189, 190, 741 N.Y.S.2d 691;see Lewis v. Caputo, 20 N.Y.3d 906, 907, 956 N.Y.S.2d 478, 980 N.E.2d 527;Medina v. City of New York, 102 A.D.3d 101, 107, 953 N.Y.S.2d 43;Carthens v. City of New York, 168 A.D.2d 408, 562 N.Y.S.2d 534;cf. Kemp v. Lynch, 275 A.D.2d 1024, 1025–1026, 713 N.Y.S.2d 790). The plaintiff's further contention that the lead detective withheld the report from the grand jury and the Kings County District Attorney's office (hereinafter the DA's office) is purely speculative ( see Strange v. County of Westchester, 29 A.D.3d at 676, 815 N.Y.S.2d 155), and the record does not support his contention that the criminal investigation was conducted in a manner which deviated so egregiously from proper police procedure as to indicate intentional or reckless action by the lead detective ( see Lee v. City of Mt. Vernon, 49 N.Y.2d 1041, 1042–1043, 429 N.Y.S.2d 557, 407 N.E.2d 404;cf. Haynes v. City of New York, 29 A.D.3d 521, 522–523, 815 N.Y.S.2d 143;Hernandez v. State of New York, 228 A.D.2d 902, 905, 644 N.Y.S.2d 380). Accordingly, the plaintiff failed to raise a triable issue of fact in opposition to the City's prima facie showing, and the City was entitled to summary judgment dismissing the malicious prosecution cause of action.
On appeal, the plaintiff also accuses the DA's office of wrongdoing in connection with his criminal proceeding. The plaintiff's contentions with respect to the DA's office, however, are not properly before this Court, as they are based on arguments and evidence provided for the first time in the plaintiff's surreply papers submitted to the Supreme Court ( see Sawyers v. Troisi, 95 A.D.3d 1293, 1294, 945 N.Y.S.2d 188;Lenox Hill Hosp. v. Government Empls. Ins. Co., 89 A.D.3d 905, 905, 932 N.Y.S.2d 705; Fotiadis v. Fotiadis, 18 A.D.3d 699, 700, 795 N.Y.S.2d 729). Moreover, the plaintiff withdrew all claims against the DA's office, leaving the City as the only remaining defendant in this case. The DA's office is an entity separate from the City ( see Narvaez v. City of New York, 83 A.D.3d 516, 517, 922 N.Y.S.2d 12;Leftenant v. City of New York, 70 A.D.3d 596, 597, 895 N.Y.S.2d 88;Warner v. City of New York, 57 A.D.3d 767, 768, 870 N.Y.S.2d 82). While “a 42 USC § 1983 claim may be maintained against the City for the conduct of the District Attorney's office, insofar as the District Attorney acted as a New York City policymaker” ( Johnson v. Kings County Dist. Attorney's Off., 308 A.D.2d 278, 296, 763 N.Y.S.2d 635;see Ramos v. City of New York, 285 A.D.2d 284, 303, 729 N.Y.S.2d 678), the plaintiff withdrew his 42 USC § 1983 claims against the City.
In light of our determination, we need not address the City's remaining contentions.