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PLAINTIFF WAS ELIGIBLE FOR RELEASE FROM JAIL PURSUANT TO CPL 180.80 BUT WAS KEPT INCARCERATED FOR AN ADDITIONAL 2 1/2 MONTHS; PLAINTIFF’S FALSE IMPRISONMENT AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined plaintiff’s causes of action for false imprisonment and negligence should not have been dismissed. Plaintiff sued the town because he was not released from custody pursuant to Criminal Procedure Law 180.80:

CPL 180.80 “requires the release of individuals being held in pretrial detention pending action of a Grand Jury after 120 or 144 hours of custody unless, among other neutralizing circumstances, an indictment has been voted” … . * * *

The allegation that the defendant detained the plaintiff for an additional 2½ months after it was required to release him pursuant to CPL 180.80 is a very serious one. This Court notes that the defendant does not deny this allegation outright, but instead attempts to shift blame to the plaintiff for what would, if true, be its own grievous error. McKay v Town of Southampton, 2023 NY Slip Op 04664, Second Dept 9-20-23

Practice Point: Here the plaintiff was not released from jail when he was eligible for release pursuant to CPL 180.80. His lawsuit against the town for false imprisonment and negligence should not have been dismissed.

 

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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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PLAINTIFF WAS DETAINED BY DEFENDANT HOME DEPOT’S EMPLOYEE BASED ON A FALSE ALLEGATION AND WAS SUBSEQUENTLY ARRESTED; PLAINTIFF’S VERDICT ON HIS BATTERY AND FALSE IMPRISONMENT CAUSES OF ACTION UPHELD (SECOND DEPT). ​

The Second Department upheld a jury verdict (reducing it however) in favor of plaintiff who was detained in defendant Home Depot’s store by a Home Depot employee based upon the false allegation plaintiff had assaulted a woman. Plaintiff was detained until the police arrived and then arrested. Plaintiff was a court attorney and was seeking a judicial nomination. Plaintiff was awarded $1.8 million, which the Second Department reduced to $500,000:

The jury, after a trial on the issue of liability, returned a verdict in favor of the plaintiff and against the defendants on the causes of action alleging battery and false imprisonment. …

… False arrest and false imprisonment are two different names for the same common-law tort … . The elements of the tort are intent to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not otherwise privileged … . “Probable cause is a complete defense to an action alleging . . . false imprisonment” … .

The fact that the police had probable cause to detain the plaintiff based on what Marrugo [the Home Depot employee] told them does not mean that Marrugo had probable cause to detain the plaintiff. Although a civilian complainant generally cannot be found liable for false imprisonment merely for providing information to the police which turns out to be wrong … , a private person can be liable for false imprisonment for actively participating in the arrest such as “‘importuning the authorities to act'” … . The record indicates that the plaintiff would not have been arrested but for Marrugo’s detention of him, and importuning the police to arrest him. Marrugo instigated the arrest, making the police his agents in confining the plaintiff … . Marrugo did so based upon false information that the plaintiff assaulted the female customer with a shopping cart. Wieder v Home Depot U.S.A., Inc., 2022 NY Slip Op 04830, Second Dept 8-3-22

Practice Point: Here a Home Depot employee detained plaintiff until the police arrived based on the false allegation he had assaulted a woman. Plaintiff sued Home Depot and the verdict in plaintiff’s favor was upheld.

 

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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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THE FALSE IMPRISONMENT CAUSE OF ACTION WAS UNTIMELY BECAUSE IT ACCRUED WHEN DEFENDANT WAS RELEASED UPON ARRAIGNMENT, NOT WHEN HE WAS RELEASED UPON COMPLETION OF HIS SENTENCE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined that the false imprisonment cause of action was untimely because it accrued when plaintiff was released upon arraignment, not when he was released after completing his sentence:

Contrary to the motion court’s finding, the statute of limitations began to run not on the date on which plaintiff was released from incarceration, having completed his sentence, but on the date of his arraignment, when he was released on his own recognizance … . False imprisonment consists of detention without legal process and ends once the accused is held pursuant to legal process, such as arraignment … . Plaintiff’s incarceration following his conviction is not part of his false imprisonment claim and thus is not relevant to determining the date of expiration of the limitations period for the claim. Butler v City of New York, 2022 NY Slip Op 00810, First Dept 2-8-22

 

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

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

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

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

 

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

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

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

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

 

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