Opinion
13220 Index No. 300538/14 Case No. 2019-5410
02-25-2021
Ralph BERRY, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent, Detective Shane Rogers et al., Defendants.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Melanie West of counsel), for respondent.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Melanie West of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Kennedy, Scarpulla, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about April 24, 2019, which, insofar as appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the causes of action for false arrest and malicious prosecution as against defendants City of New York and Detective Shane Rogers, unanimously affirmed, without costs.
The identification of plaintiff by the victim in two photo arrays furnished probable cause for plaintiff's arrest for murder, robbery and weapons possession ( People v. Lamont, 59 A.D.3d 203, 873 N.Y.S.2d 38 [1st Dept. 2009], lv denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 [2009] ; People v. Higgins, 178 A.D.2d 199, 577 N.Y.S.2d 269 [1st Dept. 1991], lv denied 80 N.Y.2d 832, 587 N.Y.S.2d 916, 600 N.E.2d 643 [1992] ). The existence of probable cause defeats plaintiff's false arrest and malicious prosecution claims ( Cintron v. City of New York, 180 A.D.3d 602, 604, 121 N.Y.S.3d 11 [1st Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7502529 [2020] ; see Roberts v. City of New York, 171 A.D.3d 139, 146, 97 N.Y.S.3d 3 [1st Dept. 2019], affd 34 N.Y.3d 991, 114 N.Y.S.3d 42, 137 N.E.3d 497 [2019] ).
Plaintiff's attempt to defeat summary judgment by reframing his false arrest claim as a claim based on a warrantless arrest in his home is unavailing since he did not plead that theory of liability in his notice of claim or complaint (see Price v. City of New York, 172 A.D.3d 625, 628–29, 103 N.Y.S.3d 31 [1st Dept. 2019], appeal dismissed 34 N.Y.3d 989, 113 N.Y.S.3d 6, 136 N.E.3d 752 [2019] ; Atkins v. Beth Abraham Health Servs., 133 A.D.3d 491, 20 N.Y.S.3d 33 [1st Dept. 2015] ). In any event, the existence of probable cause defeats a false arrest claim based on violation of Fourth Amendment rights or lack of a warrant (see Santos v. City of New York, 161 A.D.3d 509, 509, 77 N.Y.S.3d 354 [1st Dept. 2018] ; Semmig v. Charlack, 143 A.D.3d 802, 803, 39 N.Y.S.3d 72 [2d Dept. 2016] ).
Plaintiff failed to raise an issue of fact as to his malicious prosecution claim. Probable cause was not dissipated by evidence linking the murder weapon to another arrestee and DNA and fingerprint evidence linking that arrestee to the scene of the crime. There is no evidence that the police deviated egregiously from proper investigative procedures (see Ramos v. City of New York, 285 A.D.2d 284, 300, 729 N.Y.S.2d 678 [1st Dept. 2001] ; Hernandez v. State of New York, 228 A.D.2d 902, 905, 644 N.Y.S.2d 380 [3d Dept. 1996] ). Moreover, plaintiff failed to show that the victim's identification of him as the perpetrator was a conspiracy between the victim and the police and that his indictment by a grand jury was the result of fraud, perjury or the suppression of evidence (see Lee v. City of Mount Vernon, 49 N.Y.2d 1041, 429 N.Y.S.2d 557, 407 N.E.2d 404 [1980] ).