Opinion
11-28-2017
Alvin DAVIDSON, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
RICHTER, J.P., KAPNICK, WEBBER, OING, SINGH, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered June 8, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the state and federal law claims of malicious prosecution, assault, battery, and excessive force, and denied plaintiff's motion for partial summary judgment on the federal law claims of illegal search and seizure, false arrest, false imprisonment, assault, and battery, unanimously affirmed, without costs.
Plaintiff testified that he found a bag containing a gun and that when he saw defendant Lt. Maloney walking towards him, he so informed the officer. Since "a search authorized by consent is wholly valid," plaintiff's claims of illegal search and seizure and false arrest must fail (see Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 [1973] ). The suppression of the gun following a Dunaway/Mapp hearing, at which plaintiff did not testify, is not dispositive since the doctrine of collateral estoppel is inapplicable here (see Jenkins v. City of New York, 478 F.3d 76, 85 [2d Cir.2007] ).
The malicious prosecution claims were correctly dismissed because plaintiff failed to show either lack of probable cause or malice (see Smith–Hunter v. Harvey, 95 N.Y.2d 191, 195, 712 N.Y.S.2d 438, 734 N.E.2d 750 [2000] ). Contrary to plaintiff's contention, the officers were not obligated to inform the grand jury of his claim that he had just found the gun (see Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285, 532 N.Y.S.2d 234, 528 N.E.2d 157 [1988] ; Abdul–Aziz v. City of New York, 56 A.D.3d 291, 293, 867 N.Y.S.2d 79 [1st Dept.2008], lv. denied 12 N.Y.3d 712, 2009 WL 1586935 [2009] ).
The claim of excessive force was correctly dismissed since plaintiff testified that the handcuffs were too tight, but he did not testify, or submit other evidence, that he sustained physical injury as a result (see Burgos–Lugo v. City of New York, 146 A.D.3d 660, 662, 47 N.Y.S.3d 3 [1st Dept.2017] ). For the same reason, coupled with the finding of probable cause for the arrest, the claims of assault and battery were correctly dismissed (see Mendez v. City of New York, 137 A.D.3d 468, 27 N.Y.S.3d 8 [1st Dept.2016] ).