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PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 42 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under 18 USC 1983, against the county, for violation of his right to a speedy trial:

We reject the County’s argument that it cannot be held liable pursuant to 42 USC § 1983 for the alleged misconduct of the office of the District Attorney. Where, as here, a complaint alleges a failure to train and supervise employees regarding legal obligations, “liability for the District Attorney’s actions in his role as a manager of the District Attorney’s office rests with the county” …  and a claim pursuant to 42 USC § 1983 may therefore be maintained against the County for the conduct of the District Attorney’s office insofar as the District Attorney acted as a County policymaker … . Moreover, here, the complaint sufficiently alleges that the District Attorney’s office failed to train and supervise its assistant district attorneys with respect to the constitutional speedy trial rights of the accused persons with whom they interacted, to the extent that they manifested deliberate indifference to those rights … . Victor v County of Suffolk, 2017 NY Slip Op 03796, 2nd Dept 5-10-17

CRIMINAL LAW (PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/CIVIL RIGHTS LAW (18 USC 1983) (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/MUNICIPAL LAW (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/SPEEDY TRIAL (CIVIL RIGHTS VIOLATION, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)

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HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED.

The Second Department determined the defendant city’s motion to set aside the verdict as a matter of law should have been granted (criteria explained). Plaintiff, a 72-year-old woman (who was not named in the search warrant) was handcuffed while the police searched her house. Plaintiff alleged she suffered anxiety-related symptoms but no physical injury. Only the excessive force cause of action went to the jury. The Second Department held that physical injury, not emotional injury, was required, and further held that qualified immunity applied to the act of placing her in handcuffs (which was deemed reasonable):

Here, although the plaintiff did not resist or attempt to flee, the actions of the officers were reasonable given that they had reason to believe that illegal drugs were being sold from the premises, and that a known drug dealer might be present. Under the circumstances, where the police were executing a search warrant to find illegal drugs and did not know who they might encounter or whether any occupants of the house might have weapons, it was reasonable for them to handcuff the plaintiff for a few minutes until they determined that she was not a threat, notwithstanding her age at the time of the incident. …

Furthermore, a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe … . Emotional pain and suffering cannot form the basis of an excessive force claim … . Here, the plaintiff failed to establish that she sustained any injury that resulted from the act of handcuffing her … . Boyd v City of New York, 2017 NY Slip Op 02619, 2nd Dept 4-5-17

CIVIL RIGHTS LAW (18 USC 1983) (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITYS MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/MUNICIPAL LAW (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/IMMUNITY  (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE  (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/POLICE (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/EXCESSIVE FORCE (POLICE, HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)

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THREE YEAR STATUTE OF LIMITATIONS FOR A FALSE ARREST CAUSE OF ACTION UNDER 42 USC 1983 BEGAN TO RUN UPON ARRAIGNMENT.

The First Department noted that the three year statute of limitations for a false arrest cause of action under 42 USC 1983 began to run upon arraignment:

The three-year limitations period on a section 1983 claim based on false arrest begins to run “when the alleged false imprisonment ends” — that is, when the arrestee becomes subject to the legal process such as being “bound over by a magistrate or arraigned on charges” … . Here, because plaintiff was arraigned on July 16, 2011, the limitations period on his section 1983 claim based on false arrest ended on July 16, 2014, approximately three months before plaintiff filed this action. Accordingly, the claim is time-barred. Cruz v City of New York, 2017 NY Slip Op 02386, 1st Dept 3-28-17

 

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PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS.

The Third Department, reversing Supreme Court, determined defendant property owners’ counterclaim should have been dismissed. Defendants, in the context of a zoning-violation action by the town, alleged fraud and a violation of civil rights by the town. With respect to municipal liability for civil rights violations in the zoning context, the court explained:

A government official may face civil liability if a party can prove that he or she was “depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws” (42 USC § 1983). With respect to zoning issues, “42 USC § 1983 protects against municipal actions that violate a property owner’s rights to due process, equal protection of the laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution” … . To state a cause of action, defendants must “allege that, without legal justification, they were deprived of a vested property interest, consisting of more than a mere expectation or hope of obtaining a permit or a variance” … . Further, a municipal body may face liability pursuant to 42 USC § 1983 only where the constitutional deprivation stems from an official municipal policy or custom … .

Here, defendants never had a permit to allow them to park more than four commercial vehicles on the property or to install fuel tanks to use in association with their commercial operations. Nor do they allege that they had a vested property interest in such a special use permit … . Moreover, defendants’ submissions fail to establish that the Planning Board’s discretionary determination to impose conditions on defendants’ special use permit “rose to the level of a constitutional violation, i.e., that they were so outrageously arbitrary as to constitute a gross abuse of governmental authority . . . that would support a claim pursuant to 42 USC § 1983” … . Even accepting as true that one Planning Board member stated that he wanted to “make an example” of defendants, defendants did not allege, nor does the record support a claim, that this motivation resulted from official municipal policy or custom … . Town of Tupper Lake v Sootbusters, LLC, 2017 NY Slip Op 01428, 3rd Dept 2-23-17

 

ZONING (PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)/MUNCIPAL LAW (ZONING, (PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)/CIVIL RIGHTS LAW (MUNICIPAL LAW, ZONING, PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS)

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UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBEL PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION.

The Third Department affirmed Supreme Court’s awards of damages (upon defendant’s default) for libel per se and abuse of process, as well as punitive damages and attorney’s fees. The Third Department determined the causes of action for intentional infliction of emotional distress and violation of privacy were not viable, and Supreme Court did not have the authority to issue an order of protection. Plaintiff alleged defendant had contacted his employers making false allegations and had initiated many actions against him raising issues already litigated. With respect to intentional infliction of emotional distress, violation of privacy, and the order of protection, the court explained:

A cause of action for intentional infliction of emotional distress should not be entertained “where the conduct complained of falls well within the ambit of other traditional tort liability” … . Here, plaintiff’s complaint incorporated his libel and abuse of process allegations as the basis for this cause of action. Because damages were awarded on those causes of action, the damages awarded on the cause of action for intentional infliction of emotional distress must be vacated.

A cause of action for violation of the right to privacy under Civil Rights Law §§ 50 and [*4]51 is “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … . Absent from the proof furnished by plaintiff was any indication that defendant sought to use his name or photograph “for advertising purposes or for the purposes of trade only” … . Therefore, Supreme Court should have determined that this was not a viable cause of action. …

Supreme Court can properly issue an order of protection in a matrimonial action under Domestic Relations Law §§ 240, 252 … ; here, no matrimonial action was pending. Although such an order is available under Family Ct Act article 8, the pleadings do not contain allegations of conduct that would constitute one of certain enumerated family offenses … . Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 3rd Dept 2-23-17

 

DEFAMATION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/LIBEL PER SE (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ABUSE OF PROCESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/PRIVACY, VIOLATION OF (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ORDER OF PROTECTION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)

COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the plaintiff’s complaint, alleging a violation of privacy under Civil Rights Law 50 and 51, stated a cause of action and should not have been dismissed. Plaintiff was convicted of the murder of his father and the attempted murder of his mother. The defendant made a film about the plaintiff and the crime which was aired nationally. Even films which purport to deal with factual, newsworthy events can violate the Civil Rights Law if the films are deemed to have fictionalized the events. The Third Department determined the allegations sufficiently supported plaintiff’s claim that the film was intended to be fictional to avoid dismissal at the pleading stage:

New York provides a limited statutory right of privacy. Pursuant to Civil Rights Law § 50, it is a misdemeanor when a firm or corporation “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such a person” … . Similarly, Civil Rights Law § 51 allows a plaintiff to “maintain an equitable action in the supreme court of this state against the [firm or corporation] so using his [or her] name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use” … . The Legislature intended for this statutory protection of privacy to be “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … , and these statutory provisions “do not apply to reports of newsworthy events or matters of public interest” … .

The scope of the newsworthiness exception to liability, however, must be construed in accordance with binding Court of Appeals precedent. The Court of Appeals has held that statutory liability applies to a materially and “substantially fictitious biography” … where a “knowing fictionalization” amounts to an “all-pervasive” use of imaginary incidents … and a biography that is “nothing more than [an] attempt[] to trade on the persona” of the plaintiff … . Porco v Lifetime Entertainment Servs., LLC, 2017 NY Slip Op 01421, 3rd Dept 2-23-17

CIVIL RIGHTS LAW (COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)/NEWSWORTHINESS EXCEPTION (CIVIL RIGHTS LAW, COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)

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ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT; THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT.

The Second Department determined Supreme Court properly dismissed a police officer’s article 78 proceeding seeking reimbursement of the cost of defending a civil rights lawsuit. During the civil rights suit, the officer admitted doing nothing when he learned the plaintiff could not have committed the crime for which he was arrested. The officer argued the applicable provision of the General Municipal Law was ambiguous and, read correctly, required the county to indemnify him. Although the Second Department found that the provision was in fact ambiguous and had not been interpreted correctly by the Nassau County Police Officer Indemnification Board, the Board had correctly held the statute did not allow indemnification of the officer:

The statute vests the [Nassau County Police Officer Indemnification] Board with the discretion to determine the issues of proper discharge of duties and scope of employment, limited only by judicial review of whether a denial of defense and indemnification is arbitrary and capricious … . Here, the Board’s determination that the petitioner was not acting within the scope of his employment was arbitrary and capricious … . However, its determination that the petitioner’s failure to notify anyone that an incarcerated arrestee could not possibly have committed the robbery for which he was charged was not “committed while in the proper discharge of his duties” was supported by the facts and was not arbitrary and capricious (General Municipal Law § 50-l…). A court “may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious” … . Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. Matter of Lemma v Nassau County Police Officer Indem. Bd., 2017 NY Slip Op 00649, 2nd Dept 2-1-17

MUNICIPAL LAW (ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)/POLICE OFFICERS (ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)/ADMINISTRATIVE LAW (POLICE OFFICERS, ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)/CIVIL RIGHTS (POLICE OFFICERS, ALTHOUGH THE ADMINISTRATIVE INTERPRETATION OF THE GENERAL MUNICIPAL LAW WAS WRONG, THE RULING WAS CORRECT, THE ARRESTING OFFICER WHO LEARNED THE SUSPECT COULD NOT HAVE COMMITTED THE CRIME, BUT SAID NOTHING, WAS NOT ENTITLED TO INDEMNIFICATION FOR COSTS OF DEFENDING THE RELATED CIVIL RIGHTS SUIT)

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TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD.

The Third Department, in a decision too detailed to be fairly summarized here, determined a town board of assessment review (BAR) is a quasi-judicial body and is therefore entitled to absolute immunity from suit. The Third Department further determined that causes of actions for civil rights violations (42 USC 1983) against two town assessors individually (stemming from allegedly discriminatory property tax assessments) can go forward:

Consistent with the provisions of RPTL 523, the Town was required to have a board of assessment review (see RPTL 523 [1] [a]), and its individual members, in turn, were required to attend mandated training (see RPTL 523 [1] [d]; [2]). Here, in accordance with its appointed duties, the BAR had a statutory obligation to “fix the place or places for the hearing of complaints in relation to assessments” (RPTL 525 [1]) and, on the date required by law, to “meet to hear complaints in relation to assessments” (RPTL 525 [2] [a]). Upon convening for the required hearing, the BAR could “administer oaths, take testimony and hear proofs in regard to any complaint and the assessment to which it relates” and, further, could “require the person whose real property is assessed, or his or her agent or representative, or any other person, to appear before [it] and be examined concerning such complaint, and to produce any papers relating to such assessment” (RPTL 525 [2] [a]). “Minutes of the examination of every person [so] examined” were required to “be taken and filed in the office of the . . . town clerk” (RPTL 525 [2] [a]), and the BAR thereafter was required to “determine the final assessed valuation or taxable assessed valuation . . . of the real property of each complainant” (RPTL 525 [3] [a]), “prepare and verify a statement showing the changes determined to be made by them in the assessments” and notify each complainant of its determination and the time within which to seek judicial review thereof (RPTL 525 [4]). In light of these statutory mandates, it is apparent that the BAR’s determinations constitute decisions of a quasi-judicial nature and, hence, the BAR (and its individual members) are entitled to absolute immunity … . * * *

… [S]uffice it to say that [defendants town assessors’] proof … fell short of establishing that the assessors valued plaintiff’s property in a nondiscriminatory fashion and, therefore, defendants failed to demonstrate their entitlement to summary judgment [on the violation of civil rights causes of action]. Corvetti v Town of Lake Pleasant, 2017 NY Slip Op 00227, 3rd Dept 1-12-17

 

REAL PROPERTY TAX LAW (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/MUNICIPAL LAW (REAL PROPERTY TAX LAW, TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/BOARD OF ASSESSMENT REVIEW (REAL PROPERTY TAX LAW, (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/IMMUNITY (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/CIVIL RIGHTS (42 USC 1983) (TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)/42 USC 1983 (REAL PROPERTY TAX LAW, TOWN BOARD OF ASSESSMENT REVIEW IS A QUASI-JUDICIAL BODY IMMUNE FROM SUIT, 42 USC 1983 CAUSES OF ACTION AGAINST TOWN ASSESSORS INDIVIDUALLY CAN GO FORWARD)

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FALSE ARREST AND 42 USC 1983 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, ARREST STEMMING FROM A WARRANT WAS PRIVILEGED.

The Second Department determined the city’s motion to dismiss the complaint as a matter of law, made at the close of plaintiff’s proof, should have been granted. Plaintiff was stopped by the police for urinating in public. Based on an outstanding warrant for plaintiff’s arrest, plaintiff was arrested and detained. After dismissal of the charges, plaintiff sued alleging false arrest and civil rights violations (42 USC 1983). Because plaintiff’s arrest was pursuant to a warrant, the arrest was privileged and could not form the basis of the false arrest and 42 USC 1983 causes of action:

To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational basis by which the jury could find for the plaintiff against the moving defendant … . The plaintiff’s evidence must be accepted as true, and the plaintiff is entitled to every favorable inference that can be reasonably drawn therefrom … .

Where the confinement or detention of an individual against his or her will is privileged, a cause of action alleging false arrest will not lie … . One instance in which the privilege applies is when the confinement is based on a facially valid arrest warrant, issued by a court having jurisdiction … .

Here, the plaintiff did not contest the fact that the warrant was facially valid, and was issued by a court of competent jurisdiction. Ali v City of New York, 2016 NY Slip Op 08490, Second Dept 12-22-16

MUNICIPAL LAW (FALSE ARREST AND 42 USC 1983 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, ARREST STEMMING FROM A WARRANT WAS PRIVILEGED)/CIVIL RIGHTS (FALSE ARREST AND 42 USC 1983 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, ARREST STEMMING FROM A WARRANT WAS PRIVILEGED)/FALSE ARREST (FALSE ARREST AND 42 USC 1983 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, ARREST STEMMING FROM A WARRANT WAS PRIVILEGED)/42 USC 1983 (FALSE ARREST AND 42 USC 1983 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, ARREST STEMMING FROM A WARRANT WAS PRIVILEGED)

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SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a concurring opinion, determined skin color is a valid basis for a Batson challenge to a peremptory strike. Here defense counsel challenged the prosecutor’s striking of a dark-colored Indian-American woman. The prosecutor did not provide a non-discriminatory reason for striking her:

Our State Constitution and Civil Rights Law plainly acknowledge that color is a “status that implicates equal protection concerns” … , and therefore a Batson challenge may be based on color. Discrimination on the basis of one’s skin color — or colorism — has been well researched and analyzed, demonstrating that “not all colors (or tones) are equal” … . Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity. That is why color must be distinguished from race. Today, we acknowledge color as a classification separate from race for Batson purposes, as it has already been acknowledged by our State Constitution and Civil Rights Law. Making this distinction is necessary to serve the purpose of Batson, which recognized that discrimination in the selection of jurors violates “a defendant’s right to equal protection because it denies him [or her] the protection that a trial by jury is intended to secure” … . People v Bridgeforth, 2016 NY Slip Op 08586, CtApp 12-22-16

CRIMINAL LAW (SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/JURORS (CRIMINAL LAW, SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/BATSON CHALLENGE (CRIMINAL LAW, SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/SKIN COLOR (SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)

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