Opinion
5213 Index 300368/14
12-14-2017
Larell FOWLER, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Elina Druker of counsel), for respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Elina Druker of counsel), for respondents.
Friedman, J.P., Kahn, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered May 27, 2016, which, inter alia, granted defendants' motion for summary judgment dismissing plaintiffs' claims for false arrest, false imprisonment and malicious prosecution, and under 42 USC § 1983, and part of plaintiffs' excessive force and assault and battery claims, unanimously affirmed, without costs.
There is no dispute that the vehicle being operated by plaintiff Fowler had illegal tint to its windows, making the initial stop legal (see People v. Robinson, 103 A.D.3d 421, 959 N.Y.S.2d 188 [1st Dept. 2013], lv denied 20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013] ). The odor of marijuana emanating from the vehicle, in and of itself, provided probable cause to arrest plaintiffs and search the vehicle ( id. ). Moreover, the officers' observations of a marijuana cigarette in plain view provided independent probable cause to search the vehicle (see People v. Cruz, 7 A.D.3d 335, 777 N.Y.S.2d 66 [1st Dept. 2004], lv denied 3 N.Y.3d 671, 784 N.Y.S.2d 10, 817 N.E.2d 828 [2004] ). Plaintiffs' denials are unsupported by the record, which contains the voucher paperwork for the marijuana cigarette located in the vehicle, as well as substantial amounts of other contraband located in false bottom soda cans (see Shields v. City of New York, 141 A.D.3d 421, 422, 35 N.Y.S.3d 330 [1st Dept. 2016] ; Cheeks v. City of New York, 123 A.D.3d 532, 546, 998 N.Y.S.2d 847 [1st Dept. 2014] ). Defendants' showing of probable cause defeats plaintiffs' claims of false arrest, false imprisonment, and malicious prosecution (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; Singer v. Fulton County Sheriff, 63 F.3d 110, 118 [2d Cir.1995], cert denied 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 [1996] ), as well as the claims alleging assault and battery relating to the handcuffing of plaintiffs (see Ostrander v. State of New York, 289 A.D.2d 463, 735 N.Y.S.2d 163 [2d Dept. 2001] ).
The motion court also properly dismissed plaintiffs' claims pursuant to 42 USC § 1983. Plaintiffs' allegations of individual participation in every action attributed to the group do not "allege particular facts indicating that each of the individual defendants [were] personally involved in the deprivation of ... plaintiffs' constitutional rights" ( Shelton v New York State Liquor Auth., 61 A.D.3d 1145, 1148, 878 N.Y.S.2d 212 [3d Dept. 2009] [internal quotation marks and brackets omitted] ). In particular, plaintiffs' allegations of joint and several liability are legally insufficient, as there is no vicarious liability between individual police officers in a section 1983 claim (see Smith v. Michigan, 256 F.Supp.2d 704, 712 [E.D. Mich.2003] ; see also Higgins v. City of New York, 144 A.D.3d 511, 515, 43 N.Y.S.3d 1 [1st Dept. 2016] ).