Opinion
9105 Index 308500/10
04-25-2019
Raymond FLAVIN, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.
Law Office of Carl Sanders, New Rochelle (Carl A. Sanders of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Law Office of Carl Sanders, New Rochelle (Carl A. Sanders of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Tom, Kapnick, Moulton, JJ.
The claims for false arrest and false imprisonment were properly dismissed, since the officers' testimony and corroborating documentary evidence established prima facie probable cause for plaintiff's arrest and plaintiff failed to raise a triable issue of fact. Plaintiff's denials of having engaged in any criminal acts are contradicted by defendant's documentary evidence, including a report by an undercover officer that plaintiff sold drugs to him, the search warrant of his apartment arising from that transaction, and voucher paperwork showing that drugs were found on his person, and drugs, pre-recorded buy money, and a gun were found in his apartment (see Fowler v. City of New York, 156 A.D.3d 512, 67 N.Y.S.3d 171 [1st Dept. 2017], lv dismissed 31 N.Y.3d 1042, 76 N.Y.S.3d 504, 100 N.E.3d 843 [2018] ). Plaintiff's contention that the officers fabricated evidence is conclusory and insufficient to raise a triable issue of fact (see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 771, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ).
The court properly dismissed the malicious prosecution claim, as there was probable cause for the arrest and the absence of evidence that such probable cause dissipated between the arrest and commencement of criminal proceedings (see Brown v. City of New York, 60 N.Y.2d 893, 894–895, 470 N.Y.S.2d 571, 458 N.E.2d 1248 [1983] ; see also Broughton v. State of New York, 37 N.Y.2d 451, 457–458, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ).
Plaintiff failed to allege a claim for a civil rights violation under 42 USC § 1983, since he failed to set forth an official policy or custom of the City that caused the officers to violate his constitutional rights (see De Lourdes Torres, 26 N.Y.3d at 769, 27 N.Y.S.3d 468, 47 N.E.3d 747 ). At most, plaintiff has "alleged only a single instance of wrongful conduct by a municipal employee without authority to make decisions regarding official policy" ( Saidin v. Negron, 136 A.D.3d 458, 459, 24 N.Y.S.3d 504 [1st Dept. 2016], lv dismissed 28 N.Y.3d 1069, 43 N.Y.S.3d 253, 65 N.E.3d 1289 [2016] ).