Opinion
Index No. 31556/2017E Motion Sequence 2
06-16-2021
RAMON URENA and JONATHAN URENA-MARTINEZ, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT. NEW YORK CITY POLICE OFFICERS, "JOHN DOES 1-6" (NAMES TO BE FICTITIOUS AS THEY ARE CURRENTLY UNKNOWN), and 4040 CARPENTER REALTY, LLC, Defendants.
Unpublished Opinion
PRESENT: HON, THERESA M. CICCOTTO, Justice of the Supreme Court.
DECISION/ORDER
HON. THERESA M. CICCOTTO, JSC.
RECITATION, AS REQUIRED BY CPLR§ 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED...................................1 -2
ANSWERING AFFIDAVITS..............................................................................4-5.
REPLY AFFIDAVITS........................................................................................................
OTHER.................................................... (memo of law).....................................3.
UPON THE FOREGOING CITED PAPERS, THE COURT FINDS AS FOLLOWS:
Defendant 4040 Carpenter Realty, LLC (hereinafter, ''Carpenter"), moves for an Order pursuant to CPLR §3212, granting summary judgment and dismissing all claims against it. Plaintiffs' oppose.
Background :
Plaintiff Ramon Urena is the father of Plaintiff Jonathan Urena-Martinez. The instant case arises from an incident wherein Plaintiffs allege that on October 5, 2016, they were falsely imprisoned, falsely arrested, and assaulted in the hallway outside of apartment 2E at a building located at 4040 Carpenter Avenue, Bronx. New York.
Plaintiff Jonathan Urena was residing in apartment 3B in the same building at the time of the subject incident. Plaintiff Ramon testified that he was living in apartment 2E, the subject apartment. However, he admitted that he did not live in the subject apartment pursuant to a lease. He testified that a man, "Mario," and Mario's wife had a lease for the subject apartment and lived in the building. Plaintiff Ramon had met Mario and his wife via Ramon's niece. Prior to moving in the subject apartment, Ramon did not inform anyone employed by the building of his intention to move in.
When Mario and his wife were in the process of vacating the apartment, they did not produce any paperwork for Ramon to sign before he moved in. As such, Ramon moved in said apartment without any knowledge of when the lease expired. On the date of his arrest, October 5, 2016, he left the subject apartment to attend to some business. When he returned, he observed that there was glue in the door's lock. He and his son attempted to gain entry using a drill and screwdriver. The police were called and Plaintiffs were arrested based on a complaint presumed to be made by Mr. Balki Celaj, the Superintendent of the building.
Said criminal court complaint charged Plaintiffs with Possession of Burglar's Tools and Criminal Mischief. Said complaint alleges that on October 5, 2016, a specific police officer "observed defendants acting in concert, in that he responded to a report of a burglary' in progress and observed defendants to have in their custody and control, on the ground near their feet, one (1) drill, three (3) screwdrivers, one (1) drill bit, and one (1) wrench." Said complaint also states that the police officer "is informed by (redacted name), that (redacted name) observed defendants, via recorded video footage, using tools on the front door of apartment 2E. Deponent is further informed by informant that he observed damage to the aforementioned door, in that, the lock was bent, cave in and needs to be replaced" (Motion, Exh. "E").
Upon being released, Plaintiff Ramon could not regain access to his apartment. Consequently, on October 11, 2016, he brought an Emergency Order To Show Cause ("OSC"), "DIRECTING THE CORRECTION OF VIOLATIONS," in Housing Court claiming that the apartment did not contain a toilet or a bathroom sink. He also alleged that he did not have a new mailbox key. On November 17, 2016. he brought another OSC "DIRECTING THE CORRECTION OF VIOLATIONS and FOR A FINDING OF HARASSMENT and FOR A RESTRAINING ORDER." In same, he explained that he had been illegally locked out and gave a synopsis of his housing court appearances since his arrest. Ramon continued to live in apartment 2E for about sixteen months.
Housing Court Judge Enedina Pilar Sanchez issued a Decision/Order in response to the OSC dated on November 10, 2016, which stated in pertinent part:
" Petitioner is restored [to possession] forth with... After the respective parties and witnesses were sworn in and testimony given, this court finds that Petitioner (Ramon Urena) credibly testified that he was in possession since February 2016. The locks to the apartment were changed two times without the benefit of legal process. The first time, on or about October 5, 2016, the tenant of record filed an 'illegal lockout' petition. On October 7, 2016, the matter was settled and Respondent [ASC Properties] agreed to provide key [sic] to the apt. after 3:00 pm. When Petitioner returned to the apt. on or about Oct. 8, 2016. all his personal belongings were gone. In addition his bedroom door was removed and the bathroom sink and toilet were also removed. Petitioner filed an HP case seeking to have the bathroom sink and toilet restored. On or about Oct. 11, 2016, the locks were changed again and Petitioner filed this emergency order to show cause. Petitioner presented two credible witnesses. Respondent doesn't provide admissible documentary evidence corresponding to the relevant time frame nor testimony from credible witnesses. The alleged surrender on 10/21/16
occurred after the locks were changed and tampered [sic]. The first illegal lockout alleged to have occurred on 10/5/16 and after a court date of 10/7/16, the keys were returned. The second alleged illegal lockout occurred on or about October 11, 2016, which is the case before the court. ........Respondent to restore bathroom to its prior condition'' (Opp., Exh. "F").
In addition to claims of false arrest, assault and false imprisonment. Plaintiffs' also assert causes of action based on malicious prosecution and violations of 42 U.S.C.S. §§§1981, 1983 and 1985, as well as provisions of the New York City Administrative Code. Moreover, Plaintiffs make various negligence claims against Defendant 4040 Carpenter Realty, LLC.
Positions of the parties :
Defendant argues that Plaintiff's false arrest and false imprisonment causes of action necessitate dismissal. It argues that the First Department has determined that a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not generally be held liable for false arrest. It also argues that to prevail on either, a plaintiff must demonstrate that a Defendant intended to confine plaintiff, that they were conscious of the confinement, that they did not consent to the confinement and that the confinement was not privileged.
Moreover, to support a malicious prosecution claim, a plaintiff must demonstrate the initiation of a proceeding in favor of the plaintiff, lack of probable cause and malice. In order to initiate a criminal proceeding, it must be shown that the defendant did something more than merely report a crime to the police and cooperate in the ensuing investigation.
Defendant asserts that following a complaint of a possible burglary, upon arriving at the scene and personally witnessing Jonathan attempting to unlock the door with various tools that were observed, the police officers exercised their own judgment and arrested plaintiffs. As such, the aforementioned claims are devoid of merit.
Plaintiffs argue that Defendant has failed to respond to any discovery Orders and has failed to be produced for a deposition. They argue that "based on these failures, it is nearly impossible to oppose this motion. However, based upon the attached Exhibits, it will be clear that there exists questions of fact for a jury to decide as to whether the defendant intentionally lied to law enforcement, so that the plaintiffs would be arrested and charged with crimes. As such, defendant's motion should be denied or, in the alternative suspended until discovery is completed"' (Opp., p. 1, ¶2).
Conclusions of law :
The Court notes that Defendant refers to and relies on specific segments of Plaintiffs' deposition testimony, especially where same contradicts the allegations proffered in the Complaint and the instant papers.
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law'' (Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 306 [1st Dept. 2007], citing Winegrad v. New York Univ. Med. Ctr., 64 N.Y,2d 851, 853 [1985]; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325 [1986]). Once the proponent has proffered evidence establishing a prima facie showing, the burden then shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]: Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065,1067 11979]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a summary judgment motion (Zuckerman, 49 N.Y.2d at 562). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied (see Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]).
It is the duty of the court, not to test the sufficiency of the pleadings, but rather to go behind them to the very substance of the action and distinguish matters of law from matters of fact, material issues of fact from immaterial ones (see Wander v. Zeh, 45 Misc.2d 93, 94 [Sup. Ct. Albany Co. 1965], aff'd 26 A.D.2d 729 [3d Dept. 1966]). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied (see Gaines v. City of New York, 8 Misc.3d 968, 971, 2005 N.Y. Slip Op. 25246 (Sup. Ct., Bronx County, 2005); Rotuba Extruders v. Ceppos, 46 N.Y.2d at 231).
The Court notes that the First Department has expressed a tendency to deny summary judgment motions as premature, wherein discovery is incomplete, and particularly where depositions have yet to be conducted (see Guzman v. City of New York, 171 A.D.3d 653 [1st Dept. 2019]; Country-Wide Insurance Company v. Delacruz, 71 Misc.3d 247, 2021 N.Y. Slip Op. 21019 (Sup. Ct., New York County, 2021); Reid v. City of New York, 168 A.D.3d 447 [ 1st Dept. 2019]; Marabyan v. 511 W. 179 Realty Corp., 165 A.D.3d 581 [1st Dept. 2018]).
The Court agrees that discovery must take place before the merits of a motion for summary judgment may be considered.
Therefore, it is hereby:
ORDERED, that Defendant's motion for summary judgment is denied without prejudice, with leave to re-file after the completion of discovery; and it is further
ORDERED, that the parties shall complete all outstanding discovery within sixty (60) days from the date of this Order.
This constitutes the decision and Order of the Court.