Opinion
350027/12
03-12-2015
DC, AN INFANT UNDER THE AGE OF 14 YEARS BY HER MOTHER AND NATURAL GUARDIAN AND MOTHER, LATICIA COXUM AND LATICIA COXUM; TC, AN INFANT OVER THE AGE OF 14 YEARS, BY HIS NATURAL GUARDIAN AND MOTHER, DIERDRE COXUM AND DIEDRE COXUM, Plaintiff(s), v. The City of New York, Defendant(s).
Plaintiffs' Counsel: Irom, Wittels, Freund, & Serra, PC Defendant's Counsel: New York City Law Department
Plaintiffs' Counsel: Irom, Wittels, Freund, & Serra, PC
Defendant's Counsel: New York City Law Department
Mitchell J. Danziger, J.
In this action, inter alia, for alleged false arrest, false imprisonment, and excessive force, defendant moves seeking an order granting it summary judgment, thereby dismissing the complaint. Saliently, defendant avers that insofar as plaintiffs DC and TC were arrested based on ample probable cause, summary judgment with respect to their claims for false arrest and false imprisonment is warranted. Moreover, defendant submits that insofar as neither DC nor TC sustained any physical injury, summary judgment over their claim for excessive force - pleaded herein as one for personal injuries - is warranted. Plaintiffs oppose the instant motion solely on grounds that extant questions of fact on the issue of probable cause preclude summary judgment in defendant's favor.
For the reasons that follow hereinafter, defendant's motion is hereby granted.
The instant action is for false arrest, false imprisonment, excessive force, and negligent hiring and the retention of police officers. Within their complaint, plaintiffs allege that on March 12, 2011, DC and TC, then infants, were falsely arrested, falsely imprisoned and injured while in front of 1663 Garfield Street, Bronx, NY (1663). Plaintiffs allege that on the aforementioned date, both DC and TC were arrested by members of the New York City Police Department (NYPD), which officers were acting within the scope of their employment with the defendant. Thereafter, DC and TC were taken to the 43rd Precinct where they were detained. As a result of the foregoing, plaintiffs alleged that DC and TC sustained injury. Plaintiffs LATICIA COXUM (Laticia), DC's mother, and DEIDRE COXUM (Deidre), TC's mother, assert derivative loss of services claims.
Defendant's motion is hereby granted insofar as the evidence tendered establishes, beyond any factual dispute, that DC and TC were arrested upon being positively identified by an individual who claimed that he had been assaulted and robbed by DC, TC and others. As such, the police officers employed by the municipal defendant effectuated the arrest based on ample probable cause. Moreover, to the extent that plaintiffs' claims for personal injuries can be deemed claims for excessive force, the evidence submitted establishes, again, beyond factual dispute, that neither DC nor TC had any force used against them and that at best the instant claim is premised on the manner in which they were handcuffed, which on this record, does not rise to an actionable claim for excessive force.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]).
Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied ( Stone v Goodson, 8 NY2d 8, 12 [1960]).Whenever an arrest and imprisonment arise without a warrant, the presumption is that such arrest and imprisonment were unlawful ( Smith v County of Nassau, 34 NY2d 18, 23 [1974]). A plaintiff seeking to establish a cause of action for false arrest and/or imprisonment must establish that (1) the defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged ( id. at 22; Hernandez v City of New York, 100 AD3d 433, 433 [1st Dept 2012]; Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State, 37 NY2d 451, 457 [1975]; Rivera v County of Nassau, 83 AD3d 1032, 1033 [2d Dept 2011]). When confronted with such a claim and concomitant proof, the defendant can nevertheless prevail if he proves legal justification for the arrest and imprisonment, which "may be established by showing that the arrest was based on probable cause" ( Broughton at 458; Martinez at 85; Rivera at 1033). While post-arrest judicial participation will not validate an unlawful arrest, evidence of a subsequent arraignment or indictment is, in fact, proof of the presence of probable cause at the time of the arrest ( Broughton at 457; Hernandez at 433-434). Moreover, a conviction which survives appeal is also conclusive evidence that probable cause existed at the time of the arrest ( id.). Conversely, a subsequent dismissal, acquittal or reversal on appeal is proof tending to establish the absence of probable cause at the time of the arrest ( id.).
Probable cause, also defined as reasonable cause, exists [w]here an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise (Smith at 24 [internal quotation marks omitted]). A review of CPL §70.10(2), which defines reasonable cause, evinces that provides that reasonable cause is established not only when there is belief that the arrestee has committed a felony, but when he has committed any offense under our Penal Law. Specifically, CPL § 70.10(2) states that [r]easonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.
Accordingly, what is required for an arrest is not "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" (Jenkins v City of New York, 2 AD3d 291, 292 [1st Dept 2003]; People v McRay,51 NY2d 594, 602 [1980] ["Probable cause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed." (Internal citations omitted)]).
It is exceedingly well settled that information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest (Minott v City of New York, 203 AD2d 265, 267 [2d Dept 1994]; see Mercado v City of New York, 269 AD2d 576, 576 [2d Dept 2000]; People v Lacen, 154 AD2d 398, 399 [2d Dept 1989]; People v Brown, 146 AD2d 793, 793 [2d Dept 1989]; People v Douglas, 138 AD2d 731, 732 [2d Dept 1988]; People v Starr, 221 AD2d 488, 489 [2d Dept 1995]). Thus, [u]nlike a paid or anonymous informant, an eyewitness-victim of a crime can provide probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated. In fact, an accusation against a specific individual from an identified citizen is presumed reliable ( People v Nichols , 156 AD2d 129, 130 [1st Dept 1989] [internal quotation marks omitted]; see People v Gonzalez , 138 AD2d 622, 623 [2d Dept 1988]). Similarly, provided there is some corroborating proof, a witness alleging that a crime was perpetrated against another gives the police sufficient probable cause to arrest the alleged perpetrator assailant ( People v Chipp , 75 NY2d 327, 339-340 [1990]; Agront v City of New York , 294 AD2d 189, 189-190 [1st Dept 2002]; People v Powell , 234 AD2d 397, 398 [2d Dept 1996]).
In Minott, the court granted municipal defendant's motion for summary judgment, thereby dismissing his causes of action for false arrest and false imprisonment finding that the police had ample probable cause to arrest him for forcible rape after "[t]he victim identified the plaintiff by name, physical description, and place of employment, and described, in detail, the events in question" (Minott at 267). Similarly, in Agront, the court granted the municipal defendant's motion for summary judgment, thereby dismissing plaintiff's claims for inter alia, false imprisonment on grounds that the statements of three eyewitnesses accusing plaintiff of a crime gave rise to sufficient probable cause to arrest him (id. at 189-190).
Even when there exists sufficient facts giving rise to probable cause "the failure to make further inquiry when a reasonable person would have done so may" negate the same and makes probable cause an issue of fact rather than one to be decided as a matter of law (Colon v City of New York, 60 NY2d 78, 82 [1983]; Carlton v Nassau County Police Dept., 306 AD2d 365, 366 [2d Dept 2003]). In Carlton, for example, the court held that the issue of probable cause could not be decided as a matter of law insofar as the allegations made against the plaintiff - that he left a restaurant without paying his bill - were disputed by the plaintiff such that further inquiry was required before his arrest (id. at 366). Significantly, however, a police officer need not conduct an exhaustive investigation prior to effectuating an arrest for which he has probable cause. Instead, faced with questionable facts on the issue of probable cause, an arresting officer need only obtain such facts and information as he could obtain by reasonable diligence, which would enable him to determine whether or not the plaintiff was probably guilty of the offense charged.
(Sweet v Smith, 42 AD 502, 509 [4th Dept 1899]). Thus in Sweet, the obligation to make further inquiry arose because defendant acted upon hearsay evidence in causing the plaintiff's arrest, [and] if such evidence could easily be tested and the truth ascertained, is one element, though not a conclusive one, in determining the question of probable cause. (id.).
Where the facts leading up to an arrest are undisputed, the existence of probable cause is an issue of law for the court to decide (Parkin v Cornell University, Inc., 78 NY2d 523, 529 [1991]; Burns v Eben, 40 NY 463, 466 [1869]; Wyllie v District Atty. of County of Kings, 2 AD3d 714, 718 [2d Dept 2003]; Brown v City of New York, 92 AD2d 15, 17 [1st Dept 1983]; Veras v Truth Verification, 83 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 947 [1982]).
It is well settled that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the Fourth Amendment" (Graham v Connor, 490 US 386, 396 [1989]). Thus, whether the force used in effectuating an arrest is excessive, must be analyzed under the Fourth Amendment and its standard of objective reasonableness (Rivera v City of New York, 40 AD3d 334, 341 [1st Dept 2007]; Ostrander v State of New York, 289 AD2d 463, 464 [2d Dept 2001]), and the reasonableness of an officer's use of force must be, therefore, be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" (Rivera at 341; Graham at 396; Koeiman v City of New York, 36 AD3d 451, 453 [1st Dept 2007]). Thus, determination of an excessive force claim requires consideration of all of the facts underlying the arrest, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers, and whether the suspect was actively resisting arrest ( Koeiman at 453; Vizzari v Hernandez, 1 AD3d 431, 432 [2d Dept 2003]). Accordingly, while generally, "[b]ecause of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide" ( Holland v City of Poughkeepsie, 90 AD3d 841, 844 [2d Dept 2011]; Harvey v Brandt, 254 AD2d 718, 718 [4th Dept 1998]), where the undisputed evidence demonstrates that the force used by police officers was objectively reasonable under the attendant circumstances, defendant should nevertheless be granted summary judgment ( Koeiman at 453 ["The evidence adduced at trial regarding the incident—principally the testimony of officers Mondello and Carson—demonstrated that the decedent, without provocation or justification, assaulted Officer Mondello, that decedent resisted Officer Mondello's efforts to restrain him, and that the officers used the amount of force they reasonably believed was necessary to subdue and handcuff the decedent. Moreover, the incident rapidly unfolded and required the officers to make a split-second decision regarding the amount of force to employ. Plaintiff submitted no evidence—expert or otherwise—demonstrating that the force used by the officers, judged from the perspective of a reasonable officer on the scene, was excessive." (internal citations omitted)]; Diederich v Nyack Hosp., 49 AD3d 491, 494 [2d Dept 2008] ["The Supreme Court should have granted that branch of the Orangetown defendants' motion which was for summary judgment dismissing the use of excessive force cause of action. In light of the circumstances of this case, including the absence of proof of injury, the defendants established that the police officer did not use excessive force in restraining the plaintiff, and the plaintiff failed to present any evidence otherwise."]).
With respect to allegations involving tight handcuffs, whether the use of handcuffs is reasonable and, thus, not actionable or excessive, hinges on whether 1) the handcuffs were unreasonably tight; 2) the defendants ignored the plaintiff's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists, if any (Lynch v. City of Mount Vernon, 567 FSupp2d 459, 468 [2d Cir 2008] [Even though handcuffs were tight, and made tighter after plaintiff complained, the fact that there was no injury to plaintiff's wrists was "fatal to the excessive force claim."]). The injury requirement is particularly important and often times dispositive (id. at 46 ["There is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort."]; Usavage v Port Authority of New York and New Jersey, 932 FSupp2d 575, 592 [SDNY 2013]).
In support of the instant motion, defendant submits the transcript of TC's deposition, wherein he testified, in pertinent part, as follows. On March 12, 2011, when TC was approximately 15 years old, he was arrested along with his cousin DC and two other friends. Late that afternoon, TC, DC - then thirteen - and Ephram - a 16 year old friend - left TC's apartment, located at 1663, to pick up Lily, Ephram's girlfriend. Jaden, then 15 years old, and Emerson, then 12 years old, also accompanied TC, DC, and Ephram as they walked to pick up Lily at PS 83 on Rhinelander Avenue. After picking up Lily, the group walked her home on Van Nest Avenue, and, thereafter, the group, minus Lily, went Back to TC's apartment. Upon arriving at the apartment, TC, DC, Ephram, and Emerson went back outside where they met Shaquetta and Wanasia, then 19 years old. As the group stood in front of 1663, they were approached by Fox, who offered to sell them a telephone. The group refused and, thereafter, the police arrived. Initially, only one police vehicle reported to the front of 1663, at which point, Fox went inside 1663. Then, between five and seven additional police vehicles arrived on the scene. At that point, the group was joined by Lloyd, another person who resided within 1663. The police officers exited their vehicles and began grabbing several members of the group. TC was grabbed by his belt, placed against a wall, searched, and subsequently handcuffed. DC was also handcuffed and placed inside one of the police vehicles as were Ephram and Lloyd. Upon arriving at the 43rd Precinct, TC was informed that he had been arrested for stealing someone's telephone. Ultimately, TC and DC's parents arrived, the police attempted to question TC, but his mother, refused to let him answer any questions. While in police custody, besides some bruising from the handcuffs, which cuffs were loosened upon his request, TC sustained no physical injuries.
Defendant also submits DC's deposition transcript, wherein, she testified, in accordance with the testimony given by TC. DC further testified, that when the police arrived at 1663 scene, she was grabbed by a female police officer, placed against a police car, searched and handcuffed. While in police custody the only physical injuries she sustained were bruises to her wrists and ankles from overly tight handcuffs and leg shackles. When she complained about the handcuffs being tight, they were immediately loosened.
Defendant submits Cindy Santiago's (Santiago) deposition transcript, wherein she testified, in pertinent part, as follows. On March 12, 2011, she was employed by the NYPD as a police officer assigned to the Razor Conditions Team (RCT). Her duties, as a member of the RCT included the identification of and making arrests for quality of life crimes. Sometime after 8PM, while within a marked police vehicle, operated by Gary Gordon (Gordon), also a police officer, she and Gordon were flagged down by Hugo Garcia (Garcia) while they were on East Tremont Avenue near White Plains Road. Garcia, who had a bruises to his face and appeared visibly nervous, indicated that he had just been assaulted and robbed by a group of teenagers. Specifically, he said that as he walked down the street, a group comprised of several males and one female with braids punched and kicked him, stealing his telephone. Garcia also indicated that one of the males in the group was on a scooter and that after the assault, they headed towards White Plains Road. Santiago asked Garcia to get into her vehicle, reported the incident to her command, and proceeded to canvass the area. While continuing to ask Garcia to reiterate the details of the assault, Santiago also indicated that Garcia should let her know if he saw the individuals who assaulted him. At some point, while driving down Garfield Street, Garcia indicated that the individuals who assaulted him were within a group of approximately 10 people standing in front of a building, one of which was on a scooter. Gordon, who was driving the police vehicle brought it to a stop near the group, and both he and Santiago exited the vehicle. Other police vehicles also arrived on the scene. Garcia identified four people within the group, alleging that they had assaulted and robbed him. These individuals, three males and one female, were searched, handcuffed, and arrested. The arrests were made solely because, Garcia indicated that these four individuals robbed and assaulted him. Two of the individuals arrested were DC and TC.
Based on the foregoing, since it is well settled that information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest (Mercado at 576; Lacen at 399; Brown at 793; Douglas at 732; Starr at 489; Minott at 267), here, based on the foregoing, defendant establishes prima facie entitlement to summary judgment with respect to plaintiffs' causes of action for false arrest and false imprisonment. Specifically, Santiago's testimony establishes that TC and DC were arrested after they were identified by Garcia, who flagged down Santiago, indicated that he had been assaulted, was visibly injured, claimed that he had been robbed of his telephone by a group of teens and, thereafter, positively and unequivocally identified DC and TC as two of the assailants.
Moreover, since it is equally well settled that allegations of excessive force premised on overly tight handcuffs require proof that 1) the handcuffs were unreasonably tight; 2) the defendants ignored the plaintiff's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists, if any (Lynch at 468), to the extent that plaintiffs' causes of action for personal injury can be construed as ones for excessive force for physical injuries caused by the handcuffs, the evidence proffered by defendant establishes that plaintiffs have no such cause of action. Here, both TC and DC testified, that while at some point during their arrest and detainment their handcuffs were overly tight, causing bruises, their complaints about the handcuffs nevertheless resulted in a loosening of the handcuffs. More importantly, since neither DC nor TC received any medical treatment for the bruising caused by the handcuffs and injury is particularly important and dispositive (id. at 46), it is clear that under these circumstances, the injuries alleged are insufficient to establish a cause of action for excessive force. Accordingly, defendant establishes prima facie entitlement to summary judgment on the issues of false arrest, false imprisonment, and excessive force.
Nothing submitted by plaintiffs raises an issue of fact sufficient to preclude summary judgment. While it is true, that even when there exist sufficient facts giving rise to probable cause, the failure to make further inquiry when a reasonable person would have done so may negate the same, thus, making probable cause an issue of fact rather than one to be decided as a matter of law ( Colon at 82; Carlton at 366). However, plaintiffs' contention that, here, because there were facts warranting further inquiry prior to the arrest, there are extant questions of fact on the issue of probable cause is unavailing. Specifically, plaintiffs contend that defendant's police officers should have made further inquiry prior to effectuating an arrest because (1) the arrest was effectuated at a location at odds with the location to which Garcia indicated that his attackers fled; (2) Garcia's description of his assailants was vague and speculative; (3) no phone was recovered from those arrested - which phone, Garcia alleges was stolen from him; and (4) the police officers made no attempt to inquire about the whereabouts of those arrested from the parents who were present at the scene.
None of the facts cited by plaintiffs are sufficient to raise an issue of fact on the issue of probable cause in that they did not impose an obligation upon the police officers to make further inquiry prior to making the instant arrest. To be sure, the obligation to make further inquiry prior to an arrest is only triggered when the facts giving rise to probable cause are divergent or questionable such that they cast doubt on whether probable cause exists to make an arrest in the first place (Carlton at 366 [where prior to arrest plaintiff denied that he had failed to pay the bill, which failure constituted the crime for which he was arrested]; Sweet at 508-509 [probable cause was an issue of fact for the jury where plaintiff's arrest was procured purely on hearsay and defendant did nothing prior to the arrest to ascertain the truth of the allegations asserted). Here, Garcia's assertion that he had been assaulted and robbed by TC and DC was unequivocal in that he pointed them out to Santiago and Gordon while they were amongst a group of almost 10 people. Thus, here, the facts constituting probable cause for the arrest were anything but divergent or questionable. Again, to the extent that information provided by an identified citizen accusing another the commission of a specific crime is sufficient to provide the police with probable cause to arrest (Mercado at 576; Lacen at 399; Brown at 793; Douglas at 732; Starr at 489; Minott at 267), the police officers were not required to make further inquiry.
Moreover, the facts alleged by plaintiffs, which should - as averred - have given the police officers pause, thereby warranting further inquiry did not, on this record, warrant any further inquiry. First, that the arrests were made at a location at variance with the direction in which Garcia indicated his assailants fled could not cast doubt on whether there existed probable cause to make an arrest. Such assertion strains logic since it presupposes that the assailants could not have doubled back after fleeing the scene of the crime. This is not a case, where the assailants were apprehended miles from the scene of the crime such that their presence, miles away shortly after the crime, could cast doubt on their involvement, thus, leading a reasonable officer to investigate further. Instead, the assailants were apprehended on Garfield Street, about one block from Mead Street and White Plains Road, the location of the alleged assault. Second, contrary to plaintiffs' assertion, Garcia's description of his assailants was detailed and consistent, indicating that one of the assailants had a scooter while another, a female, had braids. Moreover, that TC and DC - who Santiago indicated had braids - were arrested amongst a group of many people, which group also had a scooter in their possession, belies any claim that Garcia was unsure of who assaulted and robbed him. Third, that no phone was recovered from any of the plaintiffs cannot, as averred, cast doubt on whether the infant plaintiffs were the ones who assaulted and robbed Garcia. To conclude that the absence of stolen property on a person alleged to have committed a robbery when such person had ample time to dispose of the same somehow diminishes the extant probable cause provided by a victim's identification is absurd. Indeed such claim forces the illogical conclusion that people who commit robberies, generally hang around in very close proximity to the scene of the crime, and in possession of the very evidence that would incriminate them. Lastly, given Garcia's unequivocal identification of DC and TC, the failure to inquire as to their whereabouts prior to their arrest does not raise any issues of fact on the existence of probable cause. Significantly, even if the responses upon such inquiry had exonerated TC and DC - meaning, that it would have provided an alibi - given Garcia's positive identification an arrest would have nevertheless ensued.
To the extent that the loss of services claims asserted by Laticia and Deidre, like a loss of consortium claims, are derivative and dependent on TC and DC's right to recover for the incident alleged (Estabrook v Nacken, 264 AD 883, 883 [2d Dept 1942]; see Liff v Schildkrout, 49 NY2d 622, 632 [1980] ["Nor can it be said that a spouse's cause of action for loss of consortium exists in the common law independent of the injured spouse's right to maintain an action for injuries sustained."]), in granting summary judgment to defendant as to TC and DC's claims, these derivative claims must be dismissed by operation of law. Similarly, since a cause of action for negligent hiring and retention requires proof that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury alleged (Sheila C. at 129; Gomez v City of New York, 304 AD2d 374, 374-375 [1st Dept 2003] Bellere v Gerics, 304 AD2d 687, 688 [2d Dept 2003]), here, having concluded that defendant is entitled to summary judgment as to the claims for false arrest, false imprisonment, and excessive force - which is tantamount to a finding that the police did not engage in any actionable misconduct - dismissal of plaintiffs' claim for the negligent hiring and retention of the police officers involved must also be dismissed. Defendant's motion is, thus, granted. It is hereby
ORDERED that plaintiffs' complaint be dismissed, with prejudice. It is further
ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiffs within thirty (30) days hereof.
This constitutes this Court's decision and Order.
Dated : March 12, 2015
Bronx, New York
______________________________MITCHELL J. DANZIGER, J.S.C.