Opinion
2018–11173 Index No.500900/15
03-04-2020
Tisheo BURNS, Appellant, v. CITY OF NEW YORK, et al., Respondents, et al., Defendant.
Getz & Braverman, P.C., Bronx, N.Y. (Michael I. Braverman of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and Antonella Karlin of counsel), for respondents.
Getz & Braverman, P.C., Bronx, N.Y. (Michael I. Braverman of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and Antonella Karlin of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for false arrest, malicious prosecution, and pursuant to 42 USC § 1983 for the deprivation of federal constitutional rights under color of state law, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated July 5, 2018. The order, insofar as appealed from, granted those branches of the motion of the defendants City of New York, William J. Bratton, D. Andrea, and Nicholas Muro which were for summary judgment dismissing the causes of action to recover damages for false arrest, malicious prosecution, and pursuant to 42 USC § 1983 for deprivation of federal constitutional rights under color of state law insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for false arrest, malicious prosecution, and the deprivation of federal constitutional rights in connection with his arrest and prosecution for petit larceny. The defendants City of New York, William J. Bratton, D. Andrea, and Nicholas Muro (hereinafter collectively the City defendants) moved for summary judgment dismissing the complaint insofar as asserted against them, inter alia, on the ground that the plaintiff's arrest and prosecution were supported by probable cause, relying on a transcript of the deposition testimony of Police Officer Nicholas Muro and a transcript of the General Municipal Law § 50–h hearing testimony of the plaintiff.
Muro testified that, at approximately 2:40 a.m., on April 4, 2014, he observed the plaintiff, together with another individual, facing a United States Postal Service mailbox on the corner of Ashford Street and New Lots Avenue in Brooklyn. The plaintiff's hands were inside the mailbox "where the opening of the mailbox would be, where the door to place mail in would be." As Muro and his partner approached the plaintiff, the plaintiff abruptly walked away. After the officers commanded him to stop, the defendant speedily walked away. After apprehending the plaintiff, the officers returned to the mailbox and discovered a white shoelace hanging from the opening of the mailbox, which was tied to a container that was inside the mailbox. Several pieces of mail were stuck to a sticky substance that was on the container. The officers arrested the plaintiff. The plaintiff testified at the General Municipal Law § 50–h hearing that he was walking to his car when more than 4 or 5 police vehicles pulled up, and more than 10 police officers got out of the vehicles, stopped and searched him, and arrested him without any explanation. The plaintiff was subsequently taken to Central Booking and released after a day and a half. After two court appearances, the charges against him were dismissed on July 17, 2014.
The existence of probable cause constitutes a complete defense to causes of action alleging false arrest and malicious prosecution (see Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283, 532 N.Y.S.2d 234, 528 N.E.2d 157 ; Williams v. City of New York, 153 A.D.3d 1301, 1302, 62 N.Y.S.3d 401 ; Shaw v. City of New York, 139 A.D.3d 698, 699, 31 N.Y.S.3d 155 ; Batten v. City of New York, 133 A.D.3d 803, 805, 20 N.Y.S.3d 160 ), including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of federal constitutional rights under color of state law when they are the federal law equivalents of state common-law false arrest and malicious prosecution causes of action (see Betts v. Shearman, 751 F.3d 78, 82 [2d Cir.] ; Williams v. City of New York, 153 A.D.3d at 1302–1303, 62 N.Y.S.3d 401 ; Paulos v. City of New York, 122 A.D.3d 815, 817, 997 N.Y.S.2d 452 ). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been [committed] or is being committed by the suspected individual, and probable cause must be judged under the totality of the circumstances" ( De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 [internal quotation marks omitted]; see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ). Muro's deposition testimony established that he had a reasonable suspicion to believe that criminal activity was at hand, justifying the plaintiff's initial detention (see CPL 140.50 ; People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 ; People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Smith, 168 A.D.3d 885, 91 N.Y.S.3d 463 ; People v. Black, 239 A.D.2d 593, 594, 658 N.Y.S.2d 994 ). Muro's testimony further established that once the police officers temporarily detained the plaintiff, they possessed probable cause to arrest him based upon the discovery of the shoelace and sticky container, upon which mail was attached, hanging inside the mailbox (see People v. Smith, 168 A.D.3d at 885–886, 91 N.Y.S.3d 463 ; People v. Steinberg, 255 A.D.2d 609, 610, 683 N.Y.S.2d 270 ; People v. Hernandez, 77 A.D.2d 548, 549, 430 N.Y.S.2d 611 ). The City defendants' evidence submitted in support of their motion was sufficient to establish their prima facie entitlement to judgment as a matter of law (see Wilson v. City of New York, 161 A.D.3d 1212, 1217, 78 N.Y.S.3d 363 ). The plaintiff's conclusory and self-serving affidavit submitted in opposition to the City defendants' motion was insufficient to raise a triable issue of fact on the issue of probable cause (see generally Leftenant v. City of New York, 70 A.D.3d 596, 597, 895 N.Y.S.2d 88 ). Accordingly, we agree with the Supreme Court's determination granting those branches of the City defendants' motion which were for summary judgment dismissing the causes of action to recover damages for false arrest, malicious prosecution, and pursuant to 42 USC § 1983 for deprivation of federal constitutional rights under color of state law insofar as asserted against them.
BALKIN, J.P., LEVENTHAL, MILLER and CHRISTOPHER, JJ., concur.