Opinion
2013-04-23
Louis NADAL, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Ginsberg & Wolf, P.C., New York (Robert M. Ginsberg of counsel), for appellant. Allen & Overy LLP, New York (Molly Spieczny of counsel), for respondents.
Ginsberg & Wolf, P.C., New York (Robert M. Ginsberg of counsel), for appellant. Allen & Overy LLP, New York (Molly Spieczny of counsel), for respondents.
GONZALEZ, P.J., SWEENY, DeGRASSE, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered June 20, 2012, which granted defendants' motion for summary judgment dismissing the causes of action alleging false arrest/imprisonment and malicious prosecution, unanimously affirmed, without costs.
Dismissal of the false arrest/imprisonment claim was proper where plaintiff was arrested for the shooting death of another pursuant to a facially valid arrest warrant, which is a complete defense to the cause of action ( see Marrero v. City of New York, 33 A.D.3d 556, 557, 824 N.Y.S.2d 228 [1st Dept. 2006] ). Moreover, plaintiff was indicted by a grand jury, which creates a presumption that probable cause existed ( see Colon v. City of New York, 60 N.Y.2d 78, 82–83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983];Lawson v. City of New York, 83 A.D.3d 609, 610, 922 N.Y.S.2d 54 [1st Dept. 2011], lv. dismissed19 N.Y.3d 952, 950 N.Y.S.2d 99, 973 N.E.2d 197 [2012] ), and the fact that plaintiff was ultimately acquitted after trial does not negate the existence of probable cause ( see Jenkins v. City of New York, 2 A.D.3d 291, 292, 770 N.Y.S.2d 22 [1st Dept. 2003] ). Plaintiff's argument that one of the witnesses was coerced to change her testimony is unsupported by the record and, thus is inadequate to rebut the presumption of probable cause afforded by the indictment ( see Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248).
It is further noted that at plaintiff's second criminal trial, the trial court found that probable cause existed, and therefore, plaintiff is collaterally estopped from attempting to relitigate that issue ( see Martin v. Rosenzweig, 70 A.D.3d 1112, 1113–1114, 894 N.Y.S.2d 228 [3d Dept. 2010]; Velaire v. City of Schenectady, 235 A.D.2d 647, 648–649, 651 N.Y.S.2d 735 [3d Dept. 1997], lv. denied89 N.Y.2d 816, 659 N.Y.S.2d 857, 681 N.E.2d 1304 [1997] ).
The existence of probable cause is also fatal to plaintiff's claim for malicious prosecution ( see Shapiro v. County of Nassau, 202 A.D.2d 358, 609 N.Y.S.2d 234 [1st Dept. 1994], lv. denied83 N.Y.2d 760, 616 N.Y.S.2d 15, 639 N.E.2d 755 [1994] ). The claim is also deficient in light of plaintiff's failure to show that the criminal proceeding against him was “brought out of actual malice” ( Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001];see Shapiro at 358, 609 N.Y.S.2d 234).
We have considered plaintiff's remaining arguments, including that he is entitled to an award of punitive damages in light of defendants' improper actions, and find them unavailing.
Motion seeking recusal denied.