Opinion
10-25-2016
Angela M. BOYD, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Robert Dembia, P.C., New York (Robert Dembia of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Max O. McCann of counsel), for respondents.
Robert Dembia, P.C., New York (Robert Dembia of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Max O. McCann of counsel), for respondents.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered April 1, 2015, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's motion for partial summary judgment on her claim for false arrest and imprisonment, unanimously affirmed, without costs.Plaintiff cannot prevail on her false arrest and imprisonment claim, because her confinement was privileged (De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ). The police had probable cause to arrest plaintiff based on: the three controlled drug buys out of her first floor apartment, including from a woman matching her physical description; utilities records showing that the basement where the contraband was found was not a separate apartment; and the fact that the police actually found drugs and drug paraphernalia in the basement when executing a search warrant (id. ). Further, plaintiff had constructive possession of the contraband, because she had dominion and control over the basement apartment, which she could access from her first floor apartment without a key (People v. Diaz, 24 N.Y.3d 1187, 1190, 3 N.Y.S.3d 745, 27 N.E.3d 459 [2015] ; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ).
Plaintiff provides no compelling basis to challenge the presumed validity of the search warrant (People v. Calise, 256 A.D.2d 64, 65, 682 N.Y.S.2d 149 [1st Dept.1998], lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097 [1999] ).
Because the City conceded that the police were acting within the scope of their employment, plaintiff may not proceed with her claim for negligent hiring and retention (Gonzalez v. City of New York, 133 A.D.3d 65, 67–68, 17 N.Y.S.3d 12 [1st Dept.2015] ; Sugarman v. Equinox Holding, Inc., 73 A.D.3d 654, 655, 901 N.Y.S.2d 615 [1st Dept.2010] ).
We have considered plaintiff's remaining contentions and find them unavailing.
TOM, J.P., MAZZARELLI, RICHTER, MANZANET–DANIELS, WEBBER, JJ., concur.