False Arrest Archives - New York Appellate Digest

Civil Procedure, Evidence, False Arrest, Malicious Prosecution

TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, vacating the plaintiff’s judgment and ordering a new trial in this false arrest and malicious prosecution action, determined that the testimony of the defense witness who identified plaintiff as fleeing the scene of a crime should not have been precluded. The name and address of the witness had been provided to plaintiff four years before the trial and the fact that she had since moved and did not want to disclose her new address to any party was not something the defense could control. In addition, the jury was given no guidance on the criteria for an alleged wrongful stop of the plaintiff by police (reasonable suspicion, not probable cause), despite the questions concerning the stop on the special verdict sheet:

The trial court improvidently exercised its discretion in precluding testimony from the witness who identified plaintiff to the police as an individual she had seen fleeing the scene of a crime. Defendants satisfied their discovery obligation by providing the witness’s last known address and telephone number during discovery, more than four years before trial. Thus, there could have been no surprise or prejudice warranting the preclusion … . While the witness subsequently moved, she declined to disclose her new address to any parties to the suit, a factor defendants could not control … . As defendants did not know her new address, they had no obligation under CPLR 3101(h). Nor should defendants have been sanctioned for the fact that the wtness did not wish to discuss the case with plaintiff’s counsel when counsel called her. Notably, plaintiff’s counsel did not attempt to contact the witness until two months before trial and did not attempt to obtain a nonparty deposition of the witness during discovery. Defendant offered to have the witness further confirm these facts, under oath and outside the presence of the jury. Under these circumstances, the trial court improvidently exercised its discretion in ordering a hearing at which defendants’ trial attorney would be subject to questioning by plaintiff’s trial attorney, and precluding the witness’s testimony when defense counsel declined to participate in such a hearing. Given that the witness would have offered highly relevant and non-cumulative trial testimony, the error was not harmless … .

It was error to include on the special verdict sheet a questions as to a wrongful stop (Terry v Ohio, 392 US 1 [1968]), because there was no charge given instructing the jury on the legal standard that must be applied in resolving those claims. The jury was never told that a stop is improper if the detaining officer does not have “reasonable suspicion” that the detainee committed a crime, which is less demanding than the “probable cause” standard applicable to the malicious prosecution claims … . That the jury sent a note requesting clarification on the question indicated its awareness of the lack of guidance …. . Onilude v City of New York, 2019 NY Slip Op 08925, First Dept 12-12-19

December 12, 2019/by Bruce Freeman

Corporation Law, Employment Law, False Arrest, Malicious Prosecution

FALSE ARREST AND MALICIOUS PROSECUTION ACTIONS AGAINST THE RESTAURANT FRANCHISOR PROPERLY DISMISSED IN THE ABSENCE OF EVIDENCE OF CONTROL OVER THE DAY TO DAY OPERATION OF THE RESTAURANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this false arrest and malicious prosecution action, determined plaintiff’s motion for summary judgment should not have been granted because the video evidence raised questions of fact. The court noted that the action against the franchisor, Denny’s, where the confrontation between plaintiff and the restaurant security guards took place, was properly dismissed:

… [T]he court properly granted that part of the cross motion seeking summary judgment dismissing the complaint against Denny’s. ” The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee’ ” … . Defendants established that Denny’s did not exercise control over the day-to-day operations of its franchisee or specifically maintain control over the security of the restaurant, and plaintiff failed to raise a triable issue of fact with respect thereto … . Hernandez v Denny’s Corp., 2019 NY Slip Op 08302, Fourth Dept 11-15-19

November 15, 2019/by Bruce Freeman

Civil Procedure, False Arrest, Malicious Prosecution

COMPLAINT DID NOT STATE CAUSES OF ACTION FOR FALSE ARREST AND MALICIOUS PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint did not state causes of action for false arrest and malicious prosecution:

“A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution” … . “To be held liable for false arrest, the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition” … . “Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act” … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . Here, the plaintiff’s complaint and his affidavit in opposition to the motion merely alleged that the defendants provided false information to the police, and therefore, did not establish that the plaintiff has a cause of action to recover damages for malicious prosecution or false arrest against the defendants … . Williston v Jack Resnick & Sons, Inc., 2019 NY Slip Op 08247, Second Dept 11-13-19

November 13, 2019/by Bruce Freeman

False Arrest, Malicious Prosecution

DEFENDANT WAS ACQUITTED OF MURDER AFTER IMPRISONMENT FOR TWO AND A HALF YEARS; HIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION WAS PROPERLY DISMISSED AT THE SUMMARY JUDGMENT STAGE; TWO-JUDGE DISSENT ARGUED CONTESTED FACTS REQUIRED A TRIAL (CT APP).

The Court of Appeals, in a one-sentence memorandum decision, over a two-judge dissenting opinion, determined that the defendants’ motion for summary judgment in this false arrest/malicious prosecution case was properly granted. The dissenters argued contested facts required a trial:

The order of the Appellate Division should be affirmed, with costs. Plaintiff failed to raise any material, triable issue of fact with respect to whether probable cause for his arrest and prosecution was lacking, or as to whether the police acted with actual malice (see generally De Lourdes Torres v Jones, 26 NY3d 742 [2016]).

From the dissent:

A jury acquitted plaintiff Wayne Roberts of murder in the second degree and related charges. He then sued the City of New York, the City Police Department and various police officers for, amongst other claims, false arrest and malicious prosecution. In his complaint, plaintiff asserted that he was wrongfully accused and imprisoned for two and half years, and maliciously prosecuted despite the lack of probable cause to arrest and legal justification to pursue his criminal prosecution. He claimed defendants acted with malice and in bad faith, in deliberate indifference to his rights. * * *

Where, as here, conflicting evidence creates one or more material issues of fact, those issues “must be resolved by the jury rather than by the court as a matter of law” (De Lourdes Torres, 26 NY3d at 771). The decision in this Court and the majority decision below both defy this basic principle. Roberts v City of New York, 2019 NY Slip Op 07713, CtApp 10-29-19

October 29, 2019/by Bruce Freeman

Appeals, Court of Claims, Evidence, False Arrest, False Imprisonment, Malicious Prosecution

VALID EVIDENTIARY ISSUES WERE NOTICED BY APPELLATE COUNSEL BUT WERE NOT ADDRESSED AT TRIAL, THE STATE’S VERDICT IN THIS MALICIOUS PROSECUTION, FALSE ARREST AND UNLAWFUL IMPRISONMENT ACTION AFFIRMED (THIRD DEPT).

The Third Department, noting the validity of questions raised about the evidence that claimant sold the drugs, affirmed the verdict in favor of the state in this malicious prosecution, false arrest and unlawful imprisonment action. The evidentiary issues were noticed and raised by appellate counsel, but were not raised in the Court of Claims:

If taken at face value, this evidence would validate claimant’s testimony that he did not sell drugs to the informant and that defendant should have known as much. Critically important, however, is the fact that this timing discrepancy was never addressed at claimant’s criminal trial or the subject bench trial before the Court of Claims, and appears only to have been discerned by claimant’s counsel in his appellate brief. Defendant points out in its brief that it was unable to verify when the audio recording began because it did not have the original compact disc. The discrepancy between the commencement of the audio recording and the taking of the photographs is a matter of minutes at best. Missing from this record is any testimony expressly validating the timing as to when the audio recording began. Had this discrepancy been called to the attention of the Court of Claims, corresponding testimony could have been entertained … . As such, on this record, we decline to disturb the credibility determination made by the Court of Claims. Jenkins v State of New York, 2019 NY Slip Op 02932, Third Dept 4-18-19

April 18, 2019/by Bruce Freeman

False Arrest, Malicious Prosecution

PLAINTIFF WAS ARRESTED AND CHARGED WITH MURDER IN 2002 AND ACQUITTED IN 2006, CHALLENGES TO THE PROBABLE CAUSE TO ARREST AND THE PROPRIETY OF THE PROSECUTION DEEMED SPECULATIVE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined defendants’ motion for summary judgment was properly granted. The opinion is fact-specific and cannot be fairly summarized here. Plaintiff was arrested and charged with murder in 2002 and was acquitted in 2006:

Certain facts pertinent to the shooting are undisputed. For the subsequent civil action, plaintiff’s strategy has focused on disputing the identification of him as the shooter. The record, including numerous police reports and statements by witnesses, reflects that the shooting outside of a well attended social event caused significant confusion as witnesses were alerted from various vantage points while many attendees remained inside. Some participants in a physical confrontation preceding the shooting apparently had not been invited and likely were unknown by attendees. Nevertheless, plaintiff’s various attempts to dispute his identification as well as disparage the credibility of police and identification witnesses do not withstand a close analysis with respect to establishing the requisite elements of the civil claims. When the speculative challenges to probable cause and the propriety of the prosecution are cleared away, we are left with a record of the criminal investigation and prosecution that is factually compelling, warranting dismissal of the civil claims relevant to this appeal. Roberts v City of New York, 2019 NY Slip Op 02177, First Dept 3-21-19

March 21, 2019/by Bruce Freeman

Battery, Civil Procedure, Civil Rights Law, False Arrest, False Imprisonment, Malicious Prosecution, Municipal Law

NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for permission to file a late notice of claim should not have been granted. After criminal charges were dismissed, eight months after the deadline for filing a notice of claim, petitioner sought to bring an action alleging violations of 42 USC 1983, false arrest, false imprisonment, assault, battery, and malicious prosecution. The Second Department found that a notice of claim is not required for the 42 USC 1983 action, the statute of limitations had expired on the assault and battery actions, reports documenting an investigation did not provide the city with timely notice of the essential facts of the claim, the excuse for the delay was not reasonable, and petitioner did not show the city was not prejudiced by the delay:

The branch of the petition which sought leave to serve a late notice of claim to assert, pursuant to 42 USC § 1983, violations of the petitioner’s federal civil and constitutional rights, should have been denied as unnecessary… . Such a claim is not subject to the State statutory notice of claim requirement … . …

We disagree with the Supreme Court’s conclusion that the City acquired actual knowledge of the essential facts constituting the relevant state law claims within 90 days after they arose or a reasonable time thereafter. Actual knowledge could not be readily inferred from two reports dated June 18, 2015, documenting an internal investigation conducted by the police department to determine how a firearm was allegedly carried into, and concealed within, the station house, that “a potentially actionable wrong had been committed by the [City]” against the plaintiff … . Moreover, the mere alleged existence of other police reports and records, without evidence of their content, and the involvement of the City’s police officers in the alleged incident, without more, were insufficient to impute actual knowledge to the City … .

We also disagree with the Supreme Court’s conclusion that the petitioner presented a reasonable excuse for his failure to serve a timely notice of claim. The petitioner’s incarceration did not constitute such an excuse, since the relevant state law claims did not accrue, and the petitioner’s time to serve a notice of claim did not begin to run, until he was released from custody … . Matter of Nicholson v City of New York, 2018 NY Slip Op 08134, Second Dept 11-28-18

MUNICIPAL LAW (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/42 USC 1983 (NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/FALSE ARREST (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/FALSE IMPRISONMENT (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ASSAULT (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BATTERY (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))//MALICIOUS PROSECUTION (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

November 28, 2018/by Bruce Freeman

False Arrest, False Imprisonment, Malicious Prosecution, Municipal Law

POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER’S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT

The Second Department determined the petition to file a late notice of claim in this false arrest, false imprisonment and malicious prosecution action was properly denied. The police report association with petitioner's arrest did not provide notice of the claims to the city and that allegation that petitioner's assigned counsel did not timely inform him of the notice of claim requirement was not an adequate excuse:

… [T]he involvement of a City police officer in arresting the petitioner did not, without more, establish that the City acquired actual knowledge of the essential facts constituting the petitioner's claims of false arrest, false imprisonment, and malicious prosecution within 90 days following their accrual or a reasonable time thereafter… . In addition, the contents of the arrest report and the certificate of disposition, submitted by the petitioner in support of his application, were insufficient to impute actual knowledge to the City of the facts underlying his claims … . Further, the petitioner failed to establish that the delay in serving a notice of claim and seeking leave to serve such notice would not substantially prejudice the City in maintaining its defense on the merits with respect to those claims … . Matter of Islam v City of New York, 2018 NY Slip Op 05763, Second Dept 8-15-18

MUNICIPAL LAW (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/FALSE ARREST (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/FALSE IMPRISONMENT (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MALICIOUS PROSECUTION (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

August 15, 2018/by Bruce Freeman

False Arrest, False Imprisonment, Malicious Prosecution, Municipal Law

THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s false arrest, false imprisonment and malicious prosecution causes of action should have been dismissed. Drugs were found in her apartment when a search warrant was executed in her absence. Her children’s father pleaded guilt to possession of the drugs. The First Department determined there was probable cause for her arrest under the theory of constructive possession of the drugs:

The evidence shows that plaintiff resided in and was the leaseholder of an apartment where contraband was discovered pursuant to a search warrant. Plaintiff’s residence and tenancy established her dominion and control over the apartment, and thus placed her in constructive possession of the contraband found therein … . This is so despite the fact that her children’s father had access to the apartment and also admitted and was charged with possession of the same contraband, since “[p]ossession if joint is no less possession” … . This is also true despite the fact that plaintiff was not in the apartment when the search warrant was executed and the contraband discovered … . Plaintiff’s possession of the contraband, in turn, gave rise to probable cause for her arrest. Nor does the record show that there were any material changes in fact to undermine the probable cause between her arrest and the filing of charges against her … . There is no evidence in the record sufficient to overcome the presumption of validity in the search warrant which led to the discovery of the contraband … .

The existence of probable cause constitutes a complete defense to plaintiff’s state claims … and federal claims for false arrest, false imprisonment, and malicious prosecution … . Phin v City of New York, 2018 NY Slip Op 00333, First Dept 1-18-18

FALSE ARREST (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/FALSE IMPRISONMENT (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MALICIOUS PROSECUTION (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (FALSE ARREST, FALSE IMPRISONMENT, MALICIOUS PROSECUTION (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

January 18, 2018/by CurlyHost

Civil Rights Law, False Arrest, Municipal Law

Criteria for 1983 Action Against Municipality Based On Policy or Custom

n reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

… [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of “(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right” … . “For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers'” …, or have occurred pursuant to a practice “so permanent and well settled as to constitute a custom or usage’ with the force of law” … .

“A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff’s rights” … . Liability for a violation of 42 USC § 1983 may be predicated on “a single act, as long as it is the act of an official authorized to decide policy in that area” … . Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13

March 27, 2017/by Bruce Freeman