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THE NYPD IS A DEPARTMENT OF THE CITY AND CANNOT BE SEPARATELY SUED; THE 42 USC 1983 CIVIL RIGHTS VIOLATION CAUSE OF ACTION WAS NOT SUPPORTED BY SUFFICIENT ALLEGATIONS OF AN UNCONSTITUTIONAL CITY CUSTOM OR POLICY; THE OTHER CAUSES OF ACTION AGAINST THE CITY FALL BECAUSE THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST AND THE FORCE USED BY THE POLICE WAS NOT EXCESSIVE UNDER THE CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 42 USC 1983 violation-of-civil rights, negligence, assault and battery, excessive force, false arrest and false imprisonment causes of action against the New York Police Department (NYPD) and New York City (City) should have been dismissed. Plaintiff was shot when, in the midst of a psychotic episode, she approached the police with a knife. She was indicted, tried and found not responsible by reason of mental disease or defect. The court noted that the NYPD is a department of the City and cannot be sued separately. The court also noted the 1983 action against the City failed to state a cause action because no city policy or custom was identified as violating plaintiff’s constitutional rights:

To hold a municipality liable under 42 USC § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . * * *

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against the City. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment … , including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law … . Brown v City of New York, 2021 NY Slip Op 01743, Second Dept 3-24-21

 

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SOCIAL SERVICES LAW ARTICLE 11 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE INAPPROPRIATE USE OF PHYSICAL RESTRAINTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined the Social Services Law did not create a private right of action for the inappropriate use of physical restraints. The complaint alleged infant plaintiff, a person with special needs, was injured by the hospital defendants:

[The] causes of action alleged assault, battery, false imprisonment, negligent hiring, supervision, and retention, violation of a section of Social Services Law article 11, violation of Civil Rights Law § 79-n, and negligence. The two causes of action alleging violation of Social Services Law article 11 were the fifth and sixth causes of action. In these causes of action, the plaintiffs alleged that the defendants committed physical abuse and deliberate inappropriate use of physical restraints as defined in Social Services Law § 493(4)(b). * * *

A legislative intent to create a private right of action for alleged violation of article 11 of the Social Services Law is not fairly implied in these statutory provisions and their legislative history. Finding such a private right of action would be inconsistent with the legislative scheme. The Protection of People with Special Needs Act, generally, and article 11 of the Social Services Law, specifically, “already contain[ ] substantial enforcement mechanisms”… . These mechanisms in the Act include the creation of the Justice Center, the “central agency responsible for managing and overseeing the incident reporting system, and for imposing or delegating corrective action” … . These mechanisms in article 11 include the maintenance of a statewide vulnerable persons’ central register to accept, investigate, and respond to allegations of abuse or neglect; the delineation of possible findings and consequences in connection with an investigation of abuse or neglect allegations, along with procedures for amending and appealing substantiated abuse or neglect reports; and the maintenance of a register of subjects found to have a substantiated category one abuse or neglect case. The substantial enforcement mechanisms “indicat[e] that the legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . Joseph v Nyack Hosp., 2020 NY Slip Op 07042, Second Dept 11-25-20

 

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UNDER THE AGUILAR-SPINELLI ANALYSIS, THERE ARE QUESTIONS OF FACT ABOUT WHETHER THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST; THE CITY’S MOTION FOR SUMMARY JUDGMENT ON THE 42 USC 1983, FALSE ARREST, ASSAULT AND BATTERY CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment on the 42 USC 1983, false arrest, assault and battery causes of action should not have been granted. Under the Aguilar-Spinelli analysis, there were questions of fact about the existence of probable cause for plaintiff’s arrest:

“The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest, including a cause of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that is the federal-law equivalent of a state common-law false arrest cause of action” … . “However, [w]hen an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant” … . Where the arrest was made without a prior judicial determination of probable cause, and where the arresting officer’s alleged probable cause is based on hearsay, probable cause is properly evaluated under the Aguilar-Spinelli test … . Under the Aguilar-Spinelli rule, where, as here, probable cause is predicated upon the hearsay statement of an informant, the proponent of the hearsay statement “must demonstrate that the informant is reliable and that the informant had a sufficient basis for his or her knowledge” … . Here the defendants failed to eliminate triable issues of fact as to the existence of probable cause for the arrest. The existence of triable issues of fact with respect to whether the police evaluations at issue, such as the evaluation of probable cause to arrest and requisite suspicion to perform a strip search, were objectively reasonable precludes an award of summary judgment … on the ground of qualified immunity … .

“To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . A claim predicated on assault and battery may be based upon contact during an unlawful arrest … . Here, the defendants’ failure to establish, prima facie, that the plaintiff’s arrest was lawful precluded an award of summary judgment dismissing the sixth cause of action, which alleged assault and battery … . Cayruth v City of Mount Vernon, 2020 NY Slip Op 07027, Second Dept 11-25-20

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR ASSAULT, BATTERY AND VIOLATION OF 42 USC 1983 AGAINST POLICE OFFICERS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated causes of action against police officers for assault, battery and violation of 42 USC 1983:

The allegations in the complaint, as amplified by the notice of claim, which must be liberally construed when determining a CPLR 3211(a)(7) motion … sufficiently set forth a claim for assault and battery. Plaintiff alleged that he was assaulted and battered by police during his arrest and suffered injuries that required hospital treatment. Plaintiff specified the location of the assault and stated that defendants committed the assault and battery knowingly, that the arrest was without probable cause and that he was not ultimately charged with a crime. Moreover, in the notice of claim, plaintiff alleged that he was “grabbed, had his arms twisted and forcefully handcuffed,” that he was physically abused and that he did not resist arrest.

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “A valid claim for battery exists where a person intentionally touches another without that person’s consent” … .

… [A] party may allege assault and battery as the basis for a suit under 42 USC § 1983 … . Corcoran v City of New York, 2020 NY Slip Op 05133, First Dept 9-29-20

 

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MOTHER’S APPLICATION TO CHANGE THE CHILD’S NAME BY ADDING MOTHER’S LAST NAME TO FATHER’S LAST NAME (HYPHENATED) WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined mother’s application to add her last name to the father’s last name for the child (hyphenated) was properly granted. Mother and father are separated and mother has sole custody. Having both last names will facilitate dealing with the child’s medical care:

Pursuant to Civil Rights Law article 6, an application to change a child’s name shall be granted as long as the court is satisfied that the petition is true, there is no reasonable objection to the proposed name change by the opposing party and the child’s interests will be substantially promoted by the change (see Civil Rights Law § 63 …). The evidence at the hearing demonstrated that the mother is the primary legal and physical custodian of the child, with the father having parenting time with the child every other weekend for a four-hour time period. The mother testified that the child suffers from a medical condition that requires frequent visits with medical providers and, because she does not presently share her surname with the child, this fact regularly presents confusion and difficultly when dealing not only with the child’s medical and insurance providers, but also with the child’s school, pharmacy and the various foundations where she has applied for grants pertaining to the child’s diagnosis. Moreover, the child recently started kindergarten, is “very curious” and has asked the mother numerous questions regarding his family, indicating a preference for his name to reflect both the mother’s and father’s family names. To that end, the mother indicated that she is not seeking to eliminate the father’s surname, but simply to add her surname to create a hyphenated last name that includes both the mother’s and the father’s surnames. Matter of Noah ZZ. (Amanda YY.–Ramon ZZ.), 2020 NY Slip Op 05007, Third Dept 9-17-20

 

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PRISON INMATE’S COMPLAINT ALLEGING DENIAL OF ACCESS TO THE COURTS IN VIOLATION OF 42 USC 1983 DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION; PLAINTIFF ALLEGED THE FAILURE TO PRESERVE CERTAIN VIDEO RECORDINGS BUT DID NOT ALLEGE HOW SAID FAILURE HINDERED HIS ACCESS TO THE COURTS (THIRD DEPT).

The Third Department determined plaintiff, a prison inmate, did not state a cause of action under 42 USC 1983 alleging denial of his right to access to the courts. Defendant had requested video recordings concerning the law library and the delivery of legal mail:

“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused ‘actual injury,’ . . . i.e., took or was responsible for actions that ‘hindered [a plaintiff’s] efforts to pursue a legal claim'” … . In his complaint, plaintiff merely alleges that defendant refused to preserve video recordings of the facility law library on May 2, 2015 and of the mail delivery on May 18, 2015. Plaintiff does not describe what the recordings would show, what legal mail was involved or how defendant’s alleged actions in preventing the preservation of the videos from those two days hindered his opportunity to pursue a legal claim. In light of defendant’s vague and conclusory allegations regarding any actual injury, he has failed to state a cause of action for being denied access to the courts and dismissal of his claim on this ground is proper … . Johnson v Bernier, 2020 NY Slip Op 04894, Third Dept 9-3-20

 

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A VIOLATION OF THE RIGHT OF PRIVACY CAUSE OF ACTION ALLEGING USE OF A PERSON’S IMAGE IN ADVERTISING IS PURELY STATUTORY (CIVIL RIGHTS LAW 50 AND 51); THERE IS NO COMMON-LAW RIGHT OF PUBLICITY IN NEW YORK (SECOND DEPT).

The Second Department determined the complaint stated causes of action for violation of the right of privacy by the alleged use of plaintiff’s likeness in an advertising campaign. The Second Department, disagreeing with Supreme Court, held the cause of action alleging a purported common-law fight of publicity should have been dismissed because the right of privacy is exclusively statutory in New York:

We agree with the Supreme Court’s determination denying those branches of the defendant’s motion which were to dismiss the first and second causes of action, alleging violations of the plaintiff’s right of privacy and the related right of publicity, respectively, under Civil Rights Law §§ 50 and 51. Civil Rights Law § 50 prohibits “[a] person, firm or corporation” from using “for advertising purposes . . . the name, portrait or picture of any living person without having first obtained the written consent of such person.” “A name, portrait or picture is used for advertising purposes’ if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service” … . Here, accepting the plaintiff’s allegations as true, which we must … , whether or not the subject image constituted a work of art, the first and second causes of action state cognizable causes of action under Civil Rights Law §§ 50 and 51 as they allege, inter alia, that the defendant used the plaintiff’s portrait, image, and likeness as Phantom Knoet in an advertising campaign, which included promotional merchandise to promote the defendant’s financial services and products … .

However, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the third cause of action, alleging a violation of a purported common-law right of publicity based on the defendant’s misappropriation of the plaintiff’s property right in her image and that of her persona Phantom Knoet. As the right of publicity is encompassed under the Civil Rights Law as an aspect of the right of privacy, which is exclusively statutory, there is no common-law right of publicity … . Darden v OneUnited Bank, 2020 NY Slip Op 04291, Second Dept 6-29-20

 

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42 USC 1983 CAUSES OF ACTION AGAINST THE SHERIFF AND UNDERSHERIFF IN THEIR OFFICIAL CAPACITIES STEMMING FROM THE SUICIDE OF PLAINTIFFS’ DECEDENT IN THE ERIE COUNTY JAIL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the 42 USC 1983 causes of action against the sheriff and undersheriff in their official capacities, stemming from plaintiffs’ decedent’s suicide in the Erie County Jail, should not have been dismissed:

We agree with plaintiffs that in state court they can assert a section 1983 cause of action against a sheriff or undersheriff in his or her official capacity. Until 1989, New York Constitution, article XIII, section 13 (a) stated that counties could not be made responsible for acts of sheriffs. Although that provision was removed via amendment in 1989, that amendment merely granted counties the ability to assume liability if the they chose to do so … . Erie County has not passed any legislation assuming such responsibility and, as a result, cannot be responsible for the acts of the Sheriff or Undersheriff … . We thus conclude that the Sheriff and the Undersheriff are the proper defendants for the section 1983 cause of action.

“The gravamen of the cause of action pursuant to 42 USC § 1983 is deprivation of property without due process of law. The essential elements of the cause of action are conduct committed by a person acting under color of state law, which deprived the plaintiff of rights, privileges, or immunities secured . . . by the Constitution or laws of the United States’ ” … . The Sheriff has a duty to “ensure that inmates receive adequate food, clothing, shelter, and medical care, and [to] take reasonable measures to guarantee the safety of the inmates’ ” … . Here, plaintiffs’ allegations that the Sheriff and Undersheriff failed to take measures to ensure the safety of the inmates from suicide are sufficient to state a viable cause of action under section 1983 … . Freeland v Erie County, 2020 NY Slip Op 04244 Fourth Dept 7-24-20

 

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PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION AGAINST A NEIGHBOR FOR TRESPASS, PRIVATE NUISANCE, AND VIOLATION OF THE CIVIL RIGHTS LAW; THE MOTION FOR A PRELIMINARY INJUNCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for a preliminary injunction in this dispute between neighbors should have been granted. Plaintiff alleged the neighbor repeatedly damaged and defaced plaintiff’s property and installed a surveillance camera aimed at plaintiff’s property. The Fourth Department went through the elements required for issuance of a preliminary injunction and described the proof offered in support of the trespass, private nuisance and Civil Rights Law causes of action:

Plaintiff’s supplemental affidavit and photographs submitted in support of the motion demonstrate that Nichols repeatedly drove across her lawn and blew snow with his snowblower onto the side of plaintiff’s house, allegedly causing damage to her awning and fence. Both events were intentional invasions of plaintiff’s interest in the exclusive possession of her land. Furthermore, although “an action for trespass over the lands of one property owner may not be maintained where the purported trespasser has acquired an easement of way over the land in question” … , plaintiff established that the acts allegedly committed by Nichols on the easement exceeded the scope of the easement and did not constitute a reasonable use of his interest in the easement … . Thus, plaintiff demonstrated a likelihood of success on the merits of her trespass claim. …

The evidence submitted by plaintiff established that Nichols drove across plaintiff’s lawn, used a snowblower to blow snow onto her house, tampered with and removed her property markers, parked his vehicle so as to obstruct plaintiff’s driveway, drove on the freshly paved driveway and left tire tracks in the asphalt, and repeatedly painted a white line across the driveway. That conduct exceeds the scope of the easement and may fairly be characterized as a substantial interference with plaintiff’s use and enjoyment of her property. Thus, plaintiff demonstrated a likelihood of success on the merits of her private nuisance claim.

Plaintiff’s affidavit and video evidence also submitted on the motion demonstrate that Nichols threatened to install a “150-foot night vision camera” in his backyard and to point it directly into plaintiff’s backyard and at her living room. As Nichols installed the surveillance camera, he stated to plaintiff, “It’s gonna look right in your fucking living room! . . . You’re on camera bitch! . . . Smile for the camera bitch!” Thus, plaintiff also demonstrated a likelihood of success on the merits of her claim under Civil Rights Law § 52-a. Cangemi v Yeager, 2020 NY Slip Op 04023, Fourth Dept 7-17-20

 

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CAUSES OF ACTION FOR WRONGFUL EVICTION AND TRESPASS WERE PROPERLY ALLEGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against all but two of the defendants should have been dismissed. Defendant alleged she had an arrangement with the landlord which allowed her to stay in the basement of the premises rent-free in exchange for maintenance of the property. When the landlord died, the landlord’s wife (Brigitte) changed the locks. The Second Department held that the causes of action for wrongful eviction against the landlord’s wife and estate, and the trespass against the landlord’s wife, were sufficiently alleged. However, the causes of action for nuisance, invasion of privacy (Civil Rights Law), and false arrest were not sufficiently alleged. The court also noted that there is no civil cause of action for harassment in New York:

… [T]he plaintiff’s allegation that she performed maintenance on the building in exchange for the exclusive use and possession of the basement, yard, and two closets, and that this arrangement continued following the expiration of the lease … , indicated that a month-to-month tenancy was created and was in effect for as long as she remained in possession of the premises (see Real Property Law § 232-c …), which, according to the complaint, was until March 2017, when she allegedly was wrongfully evicted from the premises. The plaintiff’s allegation that in March 2017, Brigitte changed the locks on the door of the building and refused to provide keys to the plaintiff and permitted her entry into the basement through the cellar door only in response to the plaintiff contacting the police in May 2017, suggests that Brigitte, in effect, acting as agent for the estate, resorted to self-help measures to evict the plaintiff from the premises (see RPAPL 711, 853 …). The complaint, therefore, adequately stated a cause of action alleging wrongful eviction against Brigitte and the estate … . …

The plaintiff’s allegation that … Brigitte entered the basement and yard whenever she wanted for no reason and disturbed the plaintiff’s personal property in the basement sufficiently stated a cause of action alleging trespass … . Trec v Cazares, 2020 NY Slip Op 03941, Second Dept 7-15-20

 

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