Opinion
Index No. 510572/2017
11-14-2023
Owolabi Salis, Plaintiff, v. The City Of New York, THE NEW YORK CITY POLICE DEPARTMENT, AND POLICE OFFICER "JOHN DOE," FIRST AND LAST NAMES BEING FICTITIOUS, Defendants.
Unpublished Opinion
HON. GINA ABADI J.S.C.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers/NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 107 - 133
Opposing Affidavits (Affirmations) 135 - 150, 151
Reply Affidavits (Affirmations)
Other (Amended Answer) 7
Upon the foregoing cited papers and after oral argument in this action brought by Owolabi Salis ("Salis") against the City of New York, individually and sued herein as the New York City Police Department ("NYPD" and, collectively with the NYPD, the "City"), the Decision/Order/ Judgment on this motion is as follows:
The City moves, motion sequence five, for an order, pursuant to CPLR § 3211(a)(7), CPLR § 3212(b), and, in effect (and where applicable), CPLR § 3211(a)(5), dismissing Salis's: (1) state-law claims as untimely and for failure to allege such claims in his notice of claim; (2) federal-law civil-rights claims as improperly plead; (3) complaint in its entirety for failure to allege any act or omission on the part of the City; (4) malicious prosecution claim on the grounds that: (a) his indictment has created a presumption of probable cause for his arrest, which presumption has not been rebutted; and (b) the involved prosecutors are immune from suit in initiating and pursuing the state's criminal case against him; (5) defamation claim, inasmuch as the underlying press release was truthful; (6) emotional distress claim on the grounds that: (a) to the extent such claim refers to the intentional infliction of emotional distress, such claim may not be maintained against the City; and (b) to the extent, such claim refers to the negligent infliction of emotional distress, such claim fails for lack of breach of duty of care and lack of physical injury; (7) official misconduct claim, inasmuch as all the NYPD police officers were acting within the scope of their employment when lawfully effectuating his arrest; (8) claim of "acting beyond authority to damage [so in the original]" as duplicative of his defamation and malicious prosecution claims, and further as not being a recognizable claim; and (9) claim of "abuse of process to damage [so in the original]" on the grounds of: (a) the justification for Salis's criminal prosecution; and (b) his failure to allege any improper collateral objective therein.
Background
In 2014, Salis, a since-disbarred attorney, was indicted by a New York County Grand Jury, charging him with a scheme to defraud, grand larceny, attempted grand larceny, and falsifying business records under Indictment No. 2624/14 (the "indictment"). The indictment alleged that Salis falsely told his clients that they were eligible for immigration status and benefits when they were not, charged them extra fees, and filed fraudulent immigration petitions on their behalf. Because Salis allegedly used the mail system to execute his alleged scheme to defraud, his conduct also allegedly constituted the federal crime of mail fraud.
Thereafter, on July 24, 2014, a team of the Department of Homeland Security ("DHS") Special Agents and the NYPD officers, acting in accordance with a warrant, arrested Salis at one of his homes in Brooklyn, New York, and, pursuant to a warrant, seized various electronics and files from his home office. In connection with Salis's arrest and the unsealing of the indictment, New York County District Attorney's Office (the "DA's Office") issued a press release, entitled "Indictment #2624/2014[;] Statement of Facts" (the "press release"). NYSCEF Doc No. 137. On the same day, July 24, 2014, Salis was arraigned and remanded to custody. He remained in custody until August 4, 2014 when he was released on $250,000 bail. On March 24, 2016, Salis was acquitted of all charges following a three-week jury trial in New York County Supreme Court.
Subsequently, the DA's Office included a press-release summary in its 2014 annual report under the heading "Notable Immigration Scams and Cases of 2014..." See New York County District Attorney's Office, Annual Report, Highlights from 2014, at page 49, available at https://www.manhattanda.org/wp-content/uploads/2018/02/Annual-Report-for-2014-File.pdf (last accessed Oct. 31, 2023). "[M]aterial derived from official government websites may be the subject of judicial notice." Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 A.D.3d 13, 20 (2d Dept 2009).
On September 10, 2019, Salis commenced an action in the federal district court against Kevin McAleenan, in his official capacity as the then-Acting Secretary of the DHS (the "federal court action"). Therein, Salis alleged that McAleenan violated: (1) his Fifth Amendment double-jeopardy protections; (2) his civil rights under 42 USC § 1983; and (3) the Paperwork Reduction Act by requiring him to file Form G-28 ("Notice of Entry of Appearance as Attorney or Accredited Representative") with his clients' immigration petitions. On motion of defendant as McAleenan's successor in title, the federal action was dismissed in 2021 for lack of subject-matter jurisdiction. See Salis v Mayorkas, 2021 WL 972319 (EDNY 2021), affd 2021 WL 6425204 (2d Cir 2021), cert denied 142 S.Ct. 1231 (2022).
Meanwhile, in December 2016, the New York field office of the U.S. Citizenship and Immigration Services (the "USCIS") requested that the DHS seek disciplinary sanctions against Salis, on the grounds that he had engaged in unethical and unprofessional conduct, such as filing frivolous immigration petitions and charging clients unnecessary fees. In January 2017, the DHS referred the USCIS concerns to the Attorney Grievance Committee (the "AGC") of the Appellate Division, First Department (the "Appellate Division"), for investigation and, if appropriate, discipline. Thereafter, the AGC prepared and filed a petition charging Salis with violations of multiple rules of the New York Rules of Professional Conduct. In 2019, the Appellate Division appointed a Referee to hold a hearing on the charges. After motion practice and extensive delays caused by the intervening COVID-19 pandemic, the Referee sustained all charges and recommended that Salis be disbarred. Thereafter, AGC moved to confirm the Referee's liability findings, together with his recommendation to disbar Salis. By per curiam opinion, dated November 29, 2022, the Appellate Division confirmed the Referee's findings, noting (as relevant herein) that Salis "over an eight-year period, submitted 1,185 fraudulent and frivolous I-360 petitions, only one of which was granted." Matter of Salis, 212 A.D.3d 7, 9 (1st Dept 2022). As the sanction for his professional misconduct, the Appellate Division disbarred Salis from the practice of law (the "disbarment order"). By motion decision, dated January 26, 2023, the Appellate Division denied Salis's motion for an order vacating or amending the disbarment order. See Matter of Salis, 2023 NY Slip Op 61024(U) (1st Dept 2023). By motion decision, dated September 14, 2023, the Court of Appeals denied Salis's leave to appeal from the disbarment order. See Matter of Salis, 40 N.Y.3d 965 (2023).
On March 10, 2023, Salis commenced another action in the federal district court, this time against (among others) the AGC attorneys, New York State Attorney General's Office, and United States Attorney General's Office (see Salis v Dopico, et al., 1:23-cv-01816 (EDNY). As of the date of this decision/order/judgment, a motion to dismiss the Dopico action for lack of subject-matter jurisdiction is pending.
In defiance of the disbarment order, Salis allegedly continued practicing law. According to the press release by the Kings County District Attorney's Office, dated August 21, 2023: (1) "[Salis] violated the [disbarment] order and continued to operate a law office [in Brooklyn, New York,] while advertising 'Salis Law P.C.' online"; (2) "[Salis] also allegedly continued to represent previous clients, the vast majority of whom spoke Spanish, and took money from them for various legal services pertaining to their immigration status without ever telling them that he had been disbarred and without advising them to get a new lawyer"; (3) "[f]ollowing a search of [Salis's] office on March 7, 2023, nine of his clients, all of whom were from the Dominican Republic, alleged that the defendant stole from them money in amounts ranging from $8,000 to $800"; and (4) "[Salis] was arraigned [August 21, 2023] before [a] Brooklyn Supreme Court Justice... on an indictment [IND-74471-23/001] in which he is charged with third-degree and fourth-degree grand larceny, second-degree criminal contempt, first-degree scheme to defraud, first-degree immigrant assistance services fraud and the unlawful practice of the law," and "was released without bail." As of the date of this decision/order/ judgment, the criminal case against Salis under IND-74471-23/001 is pending.
See http://www.brooklynda.org/2023/08/21/disbarred-crown-heights-lawyer-indicted-for-allegedly-providing-immigration-services-without-law-license (last accessed Oct. 31, 2023).
The Instant Action
On June 13, 2016, Salis served the City's Comptroller's Office with a notice of claim stemming from his state-law prosecution under the indictment. His claim, which he asserted arose on March 24, 2016 (which was the day of his acquittal), was predicated on:
"Prosecutor[ial] Misconduct, Misrepresentation of Facts, Malicious Prosecution Without an Adequate Basis to Achieve an Improper Purpose Other Tha[n] to Seek Justice. Damage to Reputation by the Prosecutor. Abuse of the Legal Process to Harass [Salis]. Misuse and Abuse of the Great Power and Authority of the People. Civil Rights Violations. Violations of Constitutional Rights of [Salis]." NYSCEF Doc No. 110.
On September 2, 2016, Salis was examined in accordance with General Municipal Law § 50-h. NYSCEF Doc No. 111.
On May 27, 2017, Salis commenced the instant action against the City. His prolix, 127-paragraph complaint asserts eight claims (as quoted verbatim from his complaint): (1) "Malicious Prosecution"; (2) "Civil and Bill of Rights Violations"; (3) "Unlawful Arrest and Search"; (4) "Defamation of Character"; (5) "Emotional Distress"; (6) "Official Misconduct Design[ed] to Damage"; (7) "Acting Beyond Authority to Damage"; and (8) "Abuse of Process to Damage." NYSCEF Doc Nos. 3 and 112. By amended answer, dated July 14, 2017, the City joined issue. NYSCEF Doc No. 7.
See Summons, dated May 27, 2027; Verified Complaint, dated May 27, 2017 and sworn to May 30, 2017. NYSCEF Doc Nos. 3 and 112.
On August 23, 2023, the City served the instant motion to dismiss and for summary judgment. On October 5 and again on October 10, 2023, Salis opposed by way of his affidavits with annexed exhibits. On October 25, 2023, the Court heard oral argument, reserving decision on the City's motion.
Discussion
Affording Salis as a pro se litigant some leeway in the presentation of his case, the Court has grouped his eight claims (which were "concocted by the whimsical stroke of a pleader's pen" ) into six well-established, easily recognizable categories: (1) malicious prosecution; (2) false arrest/false imprisonment; (3) abuse of process; (4) 42 USC § 1983-civil rights violations; (5) defamation; and (6) emotional distress. Considering that the City joined issue and that Salis gave extensive sworn testimony at his § 50-h hearing, the Court has analyzed each category of his claims under either the summary judgment or the statute of limitations standards of review, as applicable, subject to the following caveat: The fact that Salis was acquitted at the criminal trial - "a jury decision that could have been based on any number of factors about which [the Court] cannot now speculate" - may not "be used retrospectively to guide [the Court's] analysis of these relevant inquiries for the civil case." Roberts v City of NY, 171 A.D.3d 139, 145 (1st Dept 2019), affd 34 N.Y.3d 991 (2019), rearg denied 34 N.Y.3d 1150 (2020).
"[A]lthough courts will routinely afford pro se litigants," such as Salis, "some latitude, a litigant's decision to proceed without counsel does not confer any greater rights than those afforded to other litigants." Mirzoeff v Nagar, 52 A.D.3d 789, 789 (2d Dept 2008) (internal quotation marks omitted).
Quoting Rickard v Rickard, 428 S.W.2d 919, 926 (Mo App 1968).
To drive this point home, the Court of Appeals expounded in Reed v State, 78 N.Y.2d 1, 7-8 (1991), that:
"An acquittal of criminal charges is not equivalent to a finding of innocence. On the contrary, an acquittal on any basis which does not involve the defendant bearing part of the burden of proof merely stands for the proposition that the People have failed to meet the higher standard of proof required at the criminal proceeding. An acquittal may prevent relitigation of issues necessarily resolved in the defendant's favor at a subsequent criminal proceeding because that higher standard of proof applies at the subsequent proceeding. However, where the subsequent proceeding is a civil one, involving a lower standard than proof beyond a reasonable doubt, an acquittal is not proof of innocence" (internal quotations marks and citations omitted; emphasis added).
Malicious Prosecution. "The elements of an action for [common-law] malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice." Colon v City of NY, 60 N.Y.2d 78, 82 (1983), rearg denied 61 N.Y.2d 670 (1983). "Once a suspect has been indicted..., the law holds that the Grand Jury action creates a presumption of probable cause." Id. "The rule is founded upon the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly." Id. "The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Id. at 82-83. "If plaintiff is to succeed in his [or her] malicious prosecution action after he [or she] has been indicted, he [or she] must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id. at 83. Here, because Salis's prosecution was followed by a Grand Jury indictment, the City has demonstrated its prima facie entitlement to judgment as a matter of law dismissing the malicious prosecution claim. In opposition, Salis has failed to raise a triable issue of fact. See Roberts, 171 A.D.3d at 150; Rodgers v City of NY, 106 A.D.3d 1068, 1070 (2d Dept 2013), affd 21 N.Y.3d 864 (2013); see generally DelGrosso v McCann, 203 A.D.3d 596, 597 (1st Dept 2022) ("because the absence of probable cause is an element of a claim for malicious prosecution, the existence of probable cause mandates the dismissal of any such claim"). Further, "a prosecutor is entitled to absolute immunity for actions taken within the scope of his or her official duties in initiating and pursuing a criminal prosecution and in presenting the People's case." Spinner v County of Nassau, 103 A.D.3d 875, 877 (2d Dept 2013). Here, all of the acts/omissions by the DA's Office complained of by Salis (e.g., the alleged withholding of material evidence, the alleged failure to thoroughly investigate the matter, and the alleged forwarding to the ASC of information warranting further investigation) "were intimately associated with the judicial phase of the criminal process, and were performed by the prosecutor in a quasi-judicial capacity." Brenner v Rockland County, 67 A.D.2d 901, 901 (2d Dept 1979), lv denied 47 N.Y.2d 705 (1979); see also Spinner, 103 A.D.3d at 877.
The partial abrogation of Rodgers on other grounds by Taggart v Costabile, 131 A.D.3d 243, 254 (2d Dept 2015), is not relevant to the principal (and still-valid) holding for which it is cited herein.
False Arrest/False Imprisonment. "New York State common-law claims for false arrest and false imprisonment accrue on the date that the plaintiff is released from custody." McQueen v City of NY, 209 A.D.3d 469, 470 (1st Dept 2022). Here, Salis's claim for common-law false arrest and false imprisonment accrued on August 4, 2014, which was the date of his release from custody. Such claim is time-barred because he neither filed his notice of claim within 90 days thereof (see General Municipal Law § 50-e [1] [a]), nor commenced this action within one year and 90 days thereof (see General Municipal Law § 50-i [1]). See McQueen, 209 A.D.3d at 470. Moreover, Salis's notice of claim (as quoted in full above) is defective, insofar as it contains no allegations, either direct or indirect, which would have put the City on notice regarding his claim of false arrest and/or false imprisonment that he later raised in his complaint. See Barkley v Lisbon Cent. School Dist., - A.D.3d -, 2023 NY Slip Op 05297, *1-2 (3d Dept 2023); Scott v City of NY, 40 A.D.3d 408, 410 (1st Dept 2007). In view of the foregoing, the Court need not reach the City's alternative/additional arguments.
Salis's subsequent testimony at the 50-h hearing "cannot be used to substantively change the nature of the claim or the theory of liability," as was set forth in his earlier notice of claim. See Washington v City of NY, 190 A.D.3d 1009, 1011 (2d Dept 2021).
Abuse of Process. "Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective." Curiano v Suozzi, 63 N.Y.2d 113, 116 (1984). Further, "there must be an unlawful interference with one's person or property under color of process in order that action for abuse of process may lie." Williams v Williams, 23 N.Y.2d 592, 596 (1969) (footnote omitted). Here, the record presents no triable issue as to Salis's claim alleging abuse of process, inasmuch as the undisputed facts fail to show that the DA's Office commenced the criminal proceeding against him with "an intent to do harm without excuse or justification" and "to "obtain [any] collateral objective." See Sperling v Amoachi, 191 A.D.3d 913, 915 (2d Dept 2021) (internal quotation marks omitted); Ben-Zaken v City of New Rochelle, 273 A.D.2d 426, 427 (2d Dept 2000).
42 USC § 1983-Civil Rights Violations. "Pursuant to 42 USC § 1983, a plaintiff may maintain an action against governmental actors for, inter alia, false arrest and malicious prosecution in violation of the law and Constitution of the United States." Crooks v City of NY, 189 A.D.3d 769, 771 (2d Dept 2020). "The elements of false arrest and malicious prosecution under the federal statute are substantially the same as the elements of the comparable state common-law claims." Id. "However, the government itself cannot be liable for false arrest or malicious prosecution under 42 USC § 1983 unless an official government policy, custom or widespread practice caused the violation of the plaintiff's constitutional rights." Id. (internal quotation marks omitted; emphasis added). Here, in opposition to the City's prima facie showing of entitlement to judgment as a matter of law, Salis has failed to raise a triable issue of fact as to whether the allegedly unconstitutional actions against him resulted from an official policy, regulation, or custom of the City or the NYPD. See Combs v City of NY, 130 A.D.3d 862, 865 (2d Dept 2015); see also Rapuzzi v City of NY, 186 A.D.3d 1548, 1550 (2d Dept 2020). Moreover, the verdict acquitting Salis of the criminal charges negates any alleged violation of his Brady v Maryland (373 U.S. 83 [1963]) rights and extinguishes any § 1983 due process claim that might arise from the alleged suppression of exculpatory evidence. See Ambrose v City of NY, 623 F.Supp.2d 454, 471 (SDNY 2009).
Defamation. "Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation." Thomas H. v Paul B., 18 N.Y.3d 580, 584 (2012) (emphasis added). Because the falsity of the complained-of statement is an element of the defamation claim, its truth is an absolute defense. See Maun v Edgemont at Tarrytown Condominium, 156 A.D.3d 873, 875 (2d Dept 2017). Here, inasmuch as no triable issue of fact exists as to the veracity of the DA's Office press release (which merely summarized the indictment), the defamation claim is subject to dismissal. See Moorhouse v Standard, NY, 124 A.D.3d 1, 12 (1st Dept 2014). Furthermore, the DA's Office press release is protected from litigation under Civil Rights Law § 74 as "a fair and true report of [a] judicial proceeding." See Akpinar v Moran, 83 A.D.3d 458, 459 (1st Dept 2011), lv denied 17 N.Y.3d 707 (2011); Fishof v Abady, 280 A.D.2d 417, 417-418 (1st Dept 2001).
"Further, there was no requirement that the [DA's Office press release] report [Salis's] side of the controversy. Since the [press release] did not produce a different effect on a reader than would a report containing the precise truth, [it] satisfied the requirements of Civil Rights Law § 74, and [was] absolutely privileged." Cholowsky v Civiletti, 69 A.D.3d 110, 115 (2d Dept 2009) (internal citations omitted).
Emotional Distress. Silas's remaining claim for emotional distress is subject to dismissal as duplicative of his other claims because such claim alleges no new facts and seeks no distinct damages from his other claims. See Leonard v Reinhardt, 20 A.D.3d 510 (2d Dept 2005); Harrington v Atia, 48 Misc.3d 132 (A), 2015 NY Slip Op 51054(U), *2 (App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2015); see also Perez v Violence Intervention Program, 116 A.D.3d 601, 602 (1st Dept 2014), lv denied 25 N.Y.3d 915 (2015). Furthermore, "[p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity." Liranzo v New York City Health & Hosps. Corp., 300 A.D.2d 548, 548 (2d Dept 2002).
The Court has considered the parties' remaining arguments and found them unavailing.
Conclusion
Accordingly, it is
ORDERED AND ADJUDGED that the City's motion, sequence five, is granted, and Salis's verified complaint, dated May 27, 2017 and sworn to May 30, 2017 (NYSCEF Doc Nos. 3 and 112), is dismissed in its entirety as against the City with prejudice; and it is further
ORDERED AND ADJUDGED that the remainder of Salis's complaint as against the defendant Police Officer "John Doe," First and Last Names Being Fictitious, is dismissed on the merits by the Court, sua sponte, pursuant to CPLR § 1021, with prejudice; and it is further
ORDERED that the Note of Issue conference, currently scheduled for May 3, 2024, is canceled; and it is further
ORDERED that the City's Corporation Counsel is directed to electronically serve a copy of this Decision/Order/Judgment on Salis and to electronically file an affidavit of service thereof with the Kings County Clerk.
The foregoing constitutes the Decision/Order/Judgment of this Court.