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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

 

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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

 

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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))

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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))

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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:

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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))

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QUESTIONS OF FACT HAD BEEN RAISED IN PLAINTIFF’S MALICIOUS PROSECUTION AND FALSE ARREST ACTIONS AGAINST POLICE OFFICERS, DEFENSE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing (modifying) the Appellate Division, determined questions of fact precluded summary judgment dismissing the complaint against police officers alleging, inter alia, false arrest and malicious prosecution. Plaintiff had been arrested and indicted for murder after signing a confession. The charges were eventually dismissed by the prosecutor. In her civil suit, plaintiff alleged the confession was essentially written by the police and she signed it only after she was subjected to hours of intense interrogation. The Court of Appeals concluded a question of fact had been raised whether the police had probable cause to arrest. The court noted that if the police pass false information on to the prosecutor, the “commencement or continuation of a criminal proceeding” element of malicious prosecution has been satisfied (with respect to the police officers). The absence of probable cause also bears on the “actual malice” element of malicious prosecution:

 

We have “never elaborated on how a plaintiff in a malicious prosecution case demonstrates that the defendant commenced or continued the underlying criminal proceeding” … . But, by suggesting that a defendant other than a public prosecutor may be liable for supplying false information to the prosecutor in substantial furtherance of a criminal action against the plaintiff, we have implicitly recognized that such conduct may, depending on the circumstances, constitute the commencement or continuation of the prosecution … . * * *

Just as in the false arrest context, the plaintiff in a malicious prosecution action must also establish at trial the absence of probable cause to believe that he or she committed the charged crimes, but this element operates differently in the malicious prosecution context because “[o]nce a suspect has been indicted, [ ] the law holds that the Grand Jury action creates a presumption of probable cause” … . Generally, the plaintiff cannot rebut the presumption of probable cause with evidence merely indicating that the authorities acquired information that, depending on the inferences one might choose to draw, might have fallen somewhat shy of establishing probable cause … . And, even if the plaintiff shows a sufficiently serious lack of cause for the prosecution and rebuts the presumption at trial, he or she still must prove to the satisfaction of the jury that the defendant acted with malice, i.e., that the defendant “must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served” … .

… [I]n some instances, the plaintiff can simultaneously rebut the presumption of probable cause and satisfy the malice element by demonstrating that the evidence of guilt relied upon by the defendant was so scant that the prosecution was entirely baseless and maliciously instituted. In that sense, “[w]hile lack of probable cause to institute a criminal proceeding and proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue,” and “probable cause to initiate a criminal proceeding may be so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted” … . Moreover, in the alternative, the plaintiff may show malice and overcome the presumption of probable cause with proof that the defendant falsified evidence in bad faith and that, without the falsified evidence, the authorities’ suspicion of the plaintiff would not have fully ripened into probable cause … . Thus, we have observed that, in the context of a malicious prosecution suit against the police, the presumption may be overcome “by evidence establishing that the police witnesses have not made a complete and full statement of facts . . . to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith” … . De Lourdes Torres v Jones, 2016 NY Slip Op 01254, CtApp 2-23-16

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)/STATUTE OF LIMITATIONS (DEFENSE MAY BE RAISED FOR THE FIRST TIME IN ANSWER TO AN AMENDED COMPLAINT)/RELATION-BACK DOCTRINE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)

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False Arrest and False Imprisonment Causes of Action Properly Dismissed—City Demonstrated Police Had Probable Cause to Arrest Based Upon a Complaint by an Identified Citizen

The Second Department determined plaintiff’s complaint alleging false arrest and false imprisonment was properly dismissed, finding the city demonstrated the police had probable cause to arrest the plaintiff based upon allegations made by an identified complainant. Although accused of a shooting by the alleged victim, plaintiff was never indicted. Discrepancies in statements made by the alleged victim of the shooting did not negate the existence of probable cause to arrest:

To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged … . Where, as here, an arrest is made without a warrant, “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim” … . “Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed” … .

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging false arrest and false imprisonment by submitting evidence demonstrating that the police had probable cause to arrest the plaintiff. “[I]nformation provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest” … . The defendants’ submissions established that the complainant, an identified citizen, claimed that he was shot in the back and identified the plaintiff as the person who shot him. The arresting detective testified at his deposition that he observed the complainant’s gunshot wound and recovered a bloody T-shirt with a bullet hole from him. The defendants’ submissions demonstrated that the complainant identified the plaintiff as the shooter by name, provided the police with a physical description of him, and identified the plaintiff as the shooter in a photograph, all prior to the plaintiff’s arrest … . Nolasco v City of New York, 2015 NY Slip Op 06663, 2nd Dept 8-26-15

 

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Re: False Arrest and False Imprisonment—Allegations Sufficient to Survive Motion to Dismiss for Failure to State a Cause Action

The Fourth Department determined plaintiff’s causes of action for false arrest and false imprisonment properly survived a motion to dismiss for failure to state a cause of action: “

Although liability for false arrest and false imprisonment generally will not be imposed where a civilian complainant merely furnishes information to law enforcement authorities rather than taking ” an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act’ . . . with the intent that [the] plaintiff be confined” …, we conclude that the complaint and plaintiff’s submissions in opposition to defendant’s motion here sufficiently allege that defendant’s employees made false statements to investigators with the intent of having plaintiff be arrested and confined … . Harrison v Samaritan Med. Ctr., 2015 NY Slip Op 03971, 4th Dept 5-8-15

 

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Mall Security Guards Did Not Actively Participate in Arrest of Plaintiff But Rather Acted at the Behest of the Police—False Arrest, False Imprisonment and Malicious Prosecution Causes of Action Against the Mall Should Have Been Dismissed

The Fourth Department determined the causes of action against a mall for false arrest, false imprisonment and malicious prosecution should have been dismissed.  The court determined the mall personnel (security guards) did not actively cause the plaintiff to be arrested, but rather were instructed to act by the police:

…[T]he causes of action for false arrest and false imprisonment are synonymous …, and our analysis treats them as such. We agree with the Mall defendants that the court erred in denying that part of their motion concerning those causes of action. In order to establish liability therefor on the part of the Mall defendants, plaintiff is required to prove, inter alia, that the Mall defendants ” took an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act’ “… . Here, however, the Mall defendants met their initial burden on their motion of establishing as a matter of law that their security guard did not take the requisite “active role” in arresting plaintiff. Contrary to plaintiff’s contention, the record establishes that the security guard handcuffed plaintiff only at the direction of a Town of Greece police officer (hereafter, police officer), who informed plaintiff that she was under arrest … .

…[T]he court erred in denying that part of their motion seeking dismissal of the cause of action for malicious prosecution. In order to hold the Mall defendants liable for that tort, plaintiff is required to prove, inter alia, “the commencement . . . of a criminal proceeding by the [Mall] defendant[s] against” her … . To establish that element, plaintiff would have to prove that the Mall defendants “affirmatively induced the [police] officer to act,” for example, by “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 [police] officer [was] not acting of his own volition” … . We conclude in this case, however, that the Mall defendants met their initial burden on their motion of establishing that they did not commence a criminal proceeding against plaintiff inasmuch as the security guard did not affirmatively induce the police officer to act to the point where the police officer was not acting of his own volition. Indeed, the record establishes that the police officer observed the altercation, and acted of his own volition in directing the security guard to handcuff plaintiff and in informing plaintiff that she was under arrest. Washington v Town of Greece, 2015 NY Slip Op 02661, 4th Dept 3-27-15

 

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Deeply Divided Court Reverses Plaintiff’s Malicious Prosecution-False Arrest Verdict and Orders a New Trial/Error Not to Allow Unredacted Autopsy Report Into Evidence/The Nature of the Evidence Necessary to Demonstrate Probable Cause to Arrest Was the Core of the Disagreement Among the Justices

The First Department, over a two-justice dissent, reversed a plaintiff’s verdict and ordered a new trial.  Plaintiff’s baby died a few weeks after birth.  The medical examiner concluded that the baby died of malnutrition that was not due to a detectable defect in her digestive system.  The plaintiff was charged with the baby’s death, but the charges were dropped about a month later. Plaintiff sued the city, alleging malicious prosecution and false arrest.  Both causes of action require a finding that the police did not have probable cause to arrest.  The probable cause determination was left to the jury (which concluded the police did not have probable cause).  The majority decided it was reversible error not to admit the full autopsy report, including the redacted conclusion that the “manner of death” had been “homicide (parental neglect).”  The dissent vehemently argued that the arresting officer had enough information, both from the autopsy report and his investigation, to conclude that the baby had been adequately fed and that, therefore, the jury’s finding the officer did not have probable cause to arrest was supported by the evidence. The concurring decision vehemently disagreed with the dissent, arguing that the arresting officer had probable cause as a matter of law:

From the concurrence:

“Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent person in believing that the offense has been committed” … . “The evidence necessary to establish probable cause to justify an arrest need not be sufficient to warrant a conviction” … . And, as previously discussed, conflicting evidence as to guilt or innocence, and discrepancies in the case being built against the arrested person, while relevant to the prosecution’s ability to prove guilt beyond a reasonable doubt at trial, are not relevant to the determination of whether there was probable cause for an arrest … . Further, “when the facts and circumstances are undisputed, when only one inference [concerning probable cause] can reasonably be drawn therefrom and when there is no problem as to credibility . . . , the issue as to whether they amount to probable cause is a question of law” … . Since there is no dispute about either (1) plaintiff’s status as the infant’s sole custodian, (2) the contents of the autopsy report, or (3) the detective’s reliance upon the autopsy report in making the arrest and initiating the subsequently aborted prosecution, probable cause for plaintiff’s arrest and prosecution existed as a matter of law. It follows that this case should not have been submitted to the jury and that the City’s motion for judgment notwithstanding the verdict should have been granted. * * *

From the dissent:

The evidence demonstrated that notwithstanding the conclusion in the autopsy report that the child died of malnutrition, the detective testified that two medical professionals who viewed the child’s body saw no apparent signs of neglect or abuse, found food in the child’s stomach, and concluded that she appeared to be well fed. Thus, there was no indication that plaintiff had either intentionally, recklessly or negligently starved the infant. The jury reasonably could have found that, at the time of arrest, there was no basis for a prudent person to believe that an offense had been committed. That is, that the mother did not act recklessly or negligently in feeding the child and/or not realizing that the child was malnourished, or did not in fact commit any offense whatsoever. * * * … [T]he contents of the report along with the other evidence did not provide probable cause to believe that a crime had been committed. Moreover, under the circumstances of this case, it cannot be said that “it was reasonable, as a matter of law,” for the detective to discredit plaintiff’s account. Cheeks v City of New York, 2014 NY Slip Op 08764, 1st Dept 12-16-14

 

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