Opinion
17212 Index No. 154336/19 Case No. 2021–03466
01-31-2023
Michelle BERRIO, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, John and/or Jane Does 1, 2, 3, etc., Defendants.
Beldock Levine & Hoffman, LLP, New York (Deema Azizi of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Beldock Levine & Hoffman, LLP, New York (Deema Azizi of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Renwick, J.P., Webber, Singh, Rodriguez, Higgitt, JJ.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about June 16, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ cross motion to dismiss the claims for violations of the New York State Constitution, false imprisonment, defamation, slander per se, and liability under the doctrine of respondeat superior, unanimously affirmed, without costs.
Plaintiff's claim for false imprisonment is barred by the doctrine of collateral estoppel (see generally Buechel v. Bain, 97 N.Y.2d 295, 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001], cert denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ; Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979] ), as it has been determined in a prior federal action that defendants had probable cause to arrest and detain plaintiff (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; Gann v. City of New York, 197 A.D.3d 1035, 1036, 151 N.Y.S.3d 878 [1st Dept. 2021] ). "Where a federal court declines to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel can still bar those claims provided that the federal court decided issues identical to those raised by the plaintiff's state claims" ( Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 23, 987 N.Y.S.2d 338 [1st Dept. 2014] ). Here, contrary to plaintiff's contention, the federal court addressed, and rejected, plaintiff's argument that probable cause dissipated after the officers viewed the video footage of the assault (see Berrio v. City of New York, 2019 WL 1437585, *5, 2019 U.S. Dist LEXIS 55993 [S.D.N.Y., Mar. 29, 2019, No. 15–cv–09570 [ALC] ).
Plaintiff has no private right of action to recover damages for violations of the New York State Constitution, as the alleged wrongs could be redressed by her common-law claim for false imprisonment (see Martinez, 97 N.Y.2d at 83, 735 N.Y.S.2d 868, 761 N.E.2d 560 ; Lyles v. State of New York, 2 A.D.3d 694, 695, 770 N.Y.S.2d 81 [2d Dept. 2003], affd 3 N.Y.3d 396, 787 N.Y.S.2d 216, 820 N.E.2d 860 [2004] ).
Plaintiff failed to state claims for defamation and slander per se, as the alleged statements released to the media outlets that plaintiff had been arrested for a hate crime and would be arraigned were substantially true when they were made (see Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 94, 21 N.Y.S.3d 6 [1st Dept. 2015] ; Silverman v. Clark, 35 A.D.3d 1, 12, 822 N.Y.S.2d 9 [1st Dept. 2006] ). As alleged, at the time the statements were made, the victim had not yet recanted her identification of plaintiff as the assailant, and plaintiff was still in police custody.
Plaintiff's claim for respondeat superior liability against the City was properly dismissed, absent any surviving substantive causes of action (see Marshall v. Darrick E. Antell, MD, P.C., 147 A.D.3d 478, 47 N.Y.S.3d 275 [1st Dept. 2017] ).