Opinion
2014-03-19
Timoteu FAKOYA, respondent, v. CITY OF NEW YORK, et al., appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel), for appellants. David H. Gendelman, New York, N.Y. (Gary E. Divis of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel), for appellants. David H. Gendelman, New York, N.Y. (Gary E. Divis of counsel), for respondent.
In an action, inter alia, to recover damages for false arrest, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated November 1, 2011, as granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging false arrest.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff was arrested without an arrest warrant, based upon evidence obtained from an illegal search of his apartment. “In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” ( Rivera v. County of Nassau, 83 A.D.3d 1032,1033, 922 N.Y.S.2d 168;see Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310,cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257;Lynn v. State of New York, 33 A.D.3d 673, 822 N.Y.S.2d 600). “ ‘The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim’ ” ( Lynn v. State of New York, 33 A.D.3d at 764, 822 N.Y.S.2d 616, quoting Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560).
When an arrest is made without a warrant, a presumption arises that it was unlawful, and a defendant must then show that a factual question exists as to whether the arrest was based on probable cause ( see Broughton v. State of New York, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310;Lynn v. State of New York, 33 A.D.3d at 674, 822 N.Y.S.2d 600). Evidence which is illegally obtained in violation of a plaintiff's rights may not be used to establish probable cause ( see Gantt v. County of Nassau, 234 A.D.2d 338, 339, 651 N.Y.S.2d 541;Ostrover v. City of New York, 192 A.D.2d 115, 118, 600 N.Y.S.2d 243;Levine v. State of New York, 4 Misc.3d 1021[A], 2004 N.Y. Slip Op. 50989[U][Ct.Cl];Blanchfield v. State of New York, 104 Misc.2d 21, 27, 427 N.Y.S.2d 682 [Ct.Cl] ).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by showing that his arrest was made without a warrant ( cf. Petrychenko v. Solovey, 99 A.D.3d 777, 952 N.Y.S.2d 575). In opposition, the defendants failed to raise a triable issue of fact.
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging false arrest. RIVERA, J.P., LOTT, ROMAN and HINDS–RADIX, JJ., concur.