Opinion
No. 21107/12.
11-03-2014
Jean LEMITE, Plaintiff, v. The CITY OF NEW YORK, The New York City Police Department, Police Officer Luigi Viola and Police Officer Christopher Bivona, Defendants.
Neil A. Zirlin, Esq., Joseph T. Mullen, Jr. & Associates, for Plaintiff, Jean Lemite. George DellaRatta, III, Esq., Asst. Corporation Counsel, for Defendants, City of New York, New York City Police Department, Police Officer Luigi Viola, Police Officer Christopher Bivona.
Neil A. Zirlin, Esq., Joseph T. Mullen, Jr. & Associates, for Plaintiff, Jean Lemite.
George DellaRatta, III, Esq., Asst. Corporation Counsel, for Defendants, City of New York, New York City Police Department, Police Officer Luigi Viola, Police Officer Christopher Bivona.
Opinion
PHYLLIS ORLIKOFF FLUG, J.
Defendants, the City of New York, the New York City Police Department, Police Officer Luigi Viola and Police Officer Christopher Bivona, move inter alia for summary judgment, dismissing plaintiff's complaint as asserted against them.
This is an action to recover damages for inter alia civil rights violations arising out of plaintiff's allegedly false arrest on April 18, 2012 at or near the intersection of 160th Street and 76th Road, in the County of Queens, City and State of New York.
Specifically, plaintiff was charged with the offenses of resisting arrest and disturbing the peace. While the arrest report indicates that plaintiff was arrested for engaging in disorderly conduct at the location of his arrest, the officers testified that the disorderly conduct charge was actually for conduct that occurred at the initial stop of the vehicle several minutes prior, approximately three blocks away at the intersection of 75th Avenue and Parsons Boulevard.
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ...” (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 [1985] ). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ).
The existence of probable cause is a complete defense to a cause of action for false arrest and/or false imprisonment under both state and federal law (See Rodgers v. City of New York, 106 AD3d 1068, 1069 [2d Dept.2013] ; Whyte v. City of Yonkers, 36 AD3d 799 [2d Dept.2007] ).
To demonstrate the existence of probable cause for the charge of disorderly conduct, movants must show that, based on the totality of the circumstances, the officers had information sufficient to support a reasonable belief that plaintiff's conduct posed a significant risk to the public (See People v. Baker, 20 NY3d 354, 359–63 [2013] ).
“[I]solated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the public harm' mens rea necessary to support a disorderly conduct charge” (Id. at 363 ).
The evidence submitted by defendants in support of the motion, including inter alia the self-serving deposition testimony of the arresting officers, fails to demonstrate that plaintiff's conduct extended beyond just using such coarse language.
Specifically, Officers Bivona's testimony that he feared for his safety is completely belied by both officers testimony that they were safely in their vehicle at the time of plaintiff's outburst (See Baker, supra, at 362). Notably, neither officer testified that plaintiff's aggressive statements were accompanied by any menacing conduct (See id. )
In addition, Officer Bivona's testimony that plaintiff's behavior obstructed traffic and caused a young boy to stop and observe was not corroborated by Officer Viola. Indeed, Officer Viola's testimony that plaintiff's outburst was brief, lasting only a minute, raises doubt as to whether it was reasonable to believe plaintiff was posing a risk to the public (See Baker, supra, at 362).
The multiple other inconsistencies between the officers testimony, from what the officers said to plaintiff during the course of their interaction down to the number of passengers in the vehicle, raise credibility issues that are best left to be resolved by the trier of fact (See Scott v. Long Island Power Auth., 294 A.D.2d 348 [2d Dept.2002] ; see also Lawson v. Rutland Nursing Home, Inc., 65 AD3d 572, 573 [2d Dept.2009] ; Imamkhodjaev v. Kartvelishvili, 44 AD3d 619, 621 [2d Dept.2007] ).
As there exists clear disputes regarding the actual facts of this incident as well as the appropriate inferences to be drawn therefrom, summary judgment in not warranted (See Petrychenko v. Solovey, 99 AD3d 777, 780 [2d Dept.2012] ; Holland v. City of Poughkeepsie, 90 AD3d 841, 845 [2d Dept.2011] ).
Accordingly, defendants' motion is denied, in its entirety.