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AFTER A DIVORCE PLAINTIFF SUED THE EX-WIFE AND HER ATTORNEYS ALLEGING FALSE ARREST, MALICIOUS PROSECUTION, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF JUDICIARY LAW 487; THOSE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the false arrest, malicious prosecution, intentional infliction of emotional distress and Judiciary Law 487 causes of action against defendant attorneys should have dismissed for failure to state causes of action:

The plaintiff and the defendant Janet P. Lezama were married … . … Lezama commenced an action for a divorce … in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC … . After the divorce … , the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” … [P]laintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff. * * *

“To be held liable for false arrest, [a civilian] 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, to be held liable for malicious prosecution, it must be shown that the 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” … . * * *

With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court … . Tueme v Lezama, 2023 NY Slip Op 03036, Second Dept 6-7-23

Practice Point: The complaint did not state causes of action for false arrest, malicious prosecution, intentional infliction of emotional distress or violation of Judiciary Law 487, criteria explained.

 

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PETITIONER DID NOT DEMONSTRATE THE COUNTY HAD TIMELY KNOWLEDGE OF THE FACTS UNDERLYING THE FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION; THEREFORE PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner should not have been granted leave to serve a late notice of claim in this false imprisonment/malicious prosecution action because petitioner did not demonstrate the municipality had timely notice of the potential lawsuit:

… [T]he petitioner failed to establish that the respondents acquired actual knowledge of the essential facts constituting his claims within 90 day after the claims arose or a reasonable time thereafter … . Moreover, the petitioner’s ignorance of the law was not a reasonable excuse for his failure to serve a timely notice of claim … . Finally, the petitioner failed to come forward with “some evidence or plausible argument” that the respondents will not be substantially prejudiced in maintaining a defense … . The conclusory assertion of the petitioner’s counsel in an affirmation in support of the petition that the respondents were “not prejudiced in any manner by this delay” was inadequate to satisfy the petitioner’s minimal initial burden with respect to this factor … . Matter of Pil-Yong Yoo v County of Suffolk, 2023 NY Slip Op 02008, Second Dept 4-19-23

Practice Point: Here the petitioner did not demonstrate the county had timely knowledge of the facts underlying the false imprisonment and malicious prosecution causes of action. Therefore petitioner should not have been granted leave to file a late notice of claim.

 

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PROBABLE CAUSE FOR ARREST IS A COMPLETE DEFENSE TO CAUSES OF ACTION FOR FALSE ARREST, FALSE IMPRISONMENT AND BATTERY STEMMING FROM THE ARREST (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court noted that probable cause for arrest is a complete defendant to causes of action for false arrest, false imprisonment and battery association with the arrest:

The Supreme Court should have granted those branches of the municipal defendants’ motion which were for summary judgment dismissing the seventh, eighth, and ninth causes of action, alleging false arrest, false imprisonment, and assault and battery insofar as asserted against them. The existence of probable cause constitutes a complete defense to causes of action alleging false arrest and false imprisonment … . The existence of probable cause is also a complete defense to a cause of action alleging assault and battery based solely on bodily contact during an allegedly unlawful arrest … . Farquharson v United Parcel Serv., 2022 NY Slip Op 01007, Second Dept 2-16-22

 

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FALSE ARREST AND FALSE IMPRISONMENT COMPLAINT PROPERLY DISMISSED AFTER A DEFENSE VERDICT; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over an extensive two-justice dissent, determined the false arrest and false imprisonment action was properly dismissed after a defense verdict at trial. The police were informed that plaintiff, who was walking away, was involved in an altercation. The officer stood in front of plaintiff to inquire. The plaintiff did not respond and walked into the officer. The officer then made a warrantless arrest for obstruction of justice:

We conclude that the officer’s act of “stepping in front of [plaintiff] in an attempt to engage him was a continuation of the officer’s own common-law right to inquire, not a seizure” … . …

… [W]hile “[a]n individual to whom a police officer addresses a question has a constitutional right not to respond” … , that person does not have the right to attempt to “walk through”—and thereby make physical contact with—the officer … . * * *

From the dissent:

… [T]he officer was not authorized to forcibly stop plaintiff and lacked probable cause to arrest plaintiff for obstructing governmental administration in the second degree for plaintiff’s purported obstruction of such an unauthorized forcible stop. Shaw v City of Rochester, 2021 NY Slip Op 07346, Fourth Dept 12-23-21

 

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PETITIONER ALLEGED HIS ARREST WARRANT WAS BASED UPON FALSE ATTESTATIONS AND SOUGHT TO FILE A LATE NOTICE OF CLAIM ALLEGING FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION; THE CITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE ACTION BY VIRTUE OF THE CITY-PERSONNEL’S INVOLVEMENT IN DRAFTING THE WARRANT AND SUBSEQUENT REPORTS; THE REQUEST TO FILE A LATE NOTICE WAS PROPERLY GRANTED (FIRST DEPT). ​

The First Department, over a dissent, determined the petition seeking leave to file a late notice of claim against the respondent City of New York in this false arrest, false imprisonment and malicious prosecution action was properly granted. The main issue was whether the city had timely notice of the claim, and therefore was not prejudiced by the delay. Petitioner alleged the arrest warrant was based upon false information. The First Department noted it was not following its prior 2021 decision:

Respondent’s agents procured the allegedly false warrant upon attestations as to probable cause, executed the allegedly false arrest, and generated the reports pertaining thereto; the prosecutor would have had access to those same records and examined same in connection with preparing its opposition to defendant’s motions and in preparing more generally for trial. Indeed, personnel from the special narcotics prosecutor were present during the arrest. Under these circumstances, “knowledge of the essential facts constituting the claims within the statutory period can be imputed to the City” … . …

Pursuant to investigatory procedures, the officers, agents, assistant district attorneys, and investigators who were involved in petitioner’s arrest, detention, and prosecution were required to contemporaneously record factual details, including those related to any probable cause determination, so that the District Attorney’s Office might properly evaluate the merits of a potential criminal prosecution and draft an accusatory instrument.  …

While the mere existence of a report under certain circumstances might be insufficient to impute actual knowledge, here those reports were generated by those very persons who engaged in execution of the allegedly false arrest warrant and whose conduct forms the basis of petitioner’s suit. To the extent Matter of Singleton v City of New York (198 AD3d 498 [1st Dept 2021]) differs, we decline to follow it. If we are to depart from settled principle, we should do so explicitly and not on the basis of a one-paragraph memorandum opinion that does not cite or discuss the relevant precedent let alone express an intent to overrule it. Matter of Orozco v City of New York, 2021 NY Slip Op 07066, First Dept 12-16-21

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THE 1ST DEPARTMENT, OVERRULING PRECEDENT AND JOINING THE OTHER DEPARTMENTS, DETERMINED INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED IN A NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Scarpulla, determined municipal employees need not be named in a notice of claim. Plaintiff brought negligence, false arrest and false imprisonment causes of action against NYC alleging inhumane treatment by officers at Rikers Island:

The City moved to dismiss plaintiff’s complaint against the NYPD defendants, arguing that plaintiff failed to satisfy General Municipal Law § 50-e because he did not serve a notice of claim that named the NYPD defendants or John/Jane Doe placeholders … . * * *

Upon additional review of the reasoning of our own precedents, the reasoning of … relevant decisions of our sister departments, and reexamination of General Municipal Law § 50-e (2), we now join our sister departments in holding that § 50-e does not mandate the naming of individual municipal employees in a notice of claim. …

… [I]t is well settled that a notice of claim is sufficient so long as it includes enough information to enable the municipal defendant to investigate a plaintiff’s allegations, and “[n]othing more may be required” … . Providing the municipal defendant with the statutorily required elements of the nature of the claim, the time, place and manner in which the claim arose, and the alleged injury, without additionally naming the individual municipal employees involved, does not prevent the municipal defendant from adequately investigating the claim. Armed with the statutorily required information, the municipal defendant is in at least as good a position as the plaintiff to identify and interview the individual municipal employees involved in the claim. Wiggins v City of New York, 2021 NY Slip Op 06335, First Dept 11-16-21

 

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THERE WAS PROBABLE CAUSE TO ARREST PLANTIFF FOR TRESPASS AFTER SHE WAS ASKED TO LEAVE THE RESTAURANT BY RESTAURANT STAFF; THEREFORE PLAINTIFF’S FALSE ARREST CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department determined plaintiff’s cause of action for false arrest should have been dismissed in this excessive-force, civil-rights-violation action against two police officers. Plaintiff got into an argument with restaurant staff and was asked to leave by the staff, who then called the police. The police broke plaintiff’s arm when attempting to handcuff her. The excessive force, civil-rights-violation causes of action properly survived defendants’ summary judgment motions. But there was probable cause to arrest plaintiff for trespass, requiring dismissal of the false arrest cause of action:

“[T]he existence of probable cause is an absolute defense to a false arrest claim” … . This is so even if probable cause exists with respect to an offense other than the one actually invoked at the time of arrest … . Here, although plaintiff lawfully entered the restaurant premises as a customer, her license to remain was revoked when she was asked to leave after she began arguing with the staff. When plaintiff refused to leave the restaurant property at the request of its staff, she committed a trespass … . Inasmuch as plaintiff committed an ongoing trespass in defendants’ presence (see CPL 140.10 [1] [a]), defendants had probable cause to arrest plaintiff for that violation … . Snow v Rochester Police Officer Christopher Schreier, 2021 NY Slip Op 02638, Fourth Dept 4-30-21

 

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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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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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DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST FOR THE CHARGED CRIMES OR FOR ANY UNCHARGED CRIMES; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this false arrest, false imprisonment, malicious prosecution, assault and battery action should not have been granted because defendants did not demonstrate as a matter of law that there was probable cause for plaintiff’s arrest. When plaintiff flagged down the police he told the police he had been shot and had the drug dealer’s weapon on his person which he immediately surrendered:

… [D]efendants failed to establish prima facie that they had probable cause to arrest plaintiff for criminal possession of a weapon or firearm … , which is the lynchpin to plaintiff’s claims for false arrest, false imprisonment, malicious prosecution, assault and battery … , as well as the arresting officer’s entitlement to qualified immunity … . While “the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it” … , plaintiff’s claim that he temporarily lawfully possessed the gun at issue after an alleged altercation with a drug dealer who attempted to rob him was not merely a lead. Rather, as soon as plaintiff flagged down the officers, he told them that he had been shot and volunteered that he had the drug dealer’s gun on his person, which he immediately surrendered.

Assuming, without deciding, that defendants could meet their prima facie burden by identifying probable cause to arrest plaintiff for an uncharged crime or offense … , they failed to do so. Specifically, defendants have not established probable cause to arrest plaintiff for trespass … , since there is no evidence that plaintiff knowingly entered or remained unlawfully in the basement where his altercation with the drug dealer took place. Nor did they establish probable cause to arrest plaintiff for attempted criminal possession of marijuana … or attempted unlawful possession of marijuana in the first degree … , since there is no evidence as to the quantity of marijuana that plaintiff allegedly attempted to possess. Finally, defendants failed to establish prima facie probable cause to arrest and detain plaintiff to the extent that they did for attempted unlawful possession of marijuana in the second degree … , since, had they so charged him, they only would have been permitted to issue a desk appearance ticket … . Idelfonso v City of New York, 2020 NY Slip Op 05854, First Dept 10-20-20

 

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