Mauricio v. City of New York

Full title: DOLORES MAURICIO and MARIA GRATINI, Plaintiffs, v. THE CITY OF NEW YORK…

Court: Supreme Court of the State of New York, New York County

Date published: Jun 8, 2010

2010 N.Y. Slip Op. 31445 (N.Y. Sup. Ct. 2010)

Opinion

117595/04.

June 8, 2010.

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: _________________________________________

Papers Numbered Notice of Motion and Affidavits Annexed .................................. 1 Answering Affidavits ..................................................... 2 Cross-Motion and Affidavits Annexed ...................................... Answering Affidavits to Cross-Motion ..................................... Replying Affidavits ...................................................... Exhibits .................................................................

Plaintiffs commenced the instant action to recover damages they allegedly sustained when they were falsely arrested on April 1, 2004. Defendants now move to dismiss the complaint, or, in the alternative, for summary judgment dismissing the complaint. For the reasons set forth below, defendants' motion is granted.

The relevant facts are as follows. On April 1, 2004, police officers entered the apartment of plaintiff Dolores Mauricio at 602 West 139^th Street in Manhattan pursuant to a valid search warrant. Ms. Mauricio fainted upon seeing the police officers and was taken to the hospital approximately 15 minutes after fainting, without regaining consciousness. The police officers handcuffed plaintiff Maria Gratini, Ms. Mauricio's daughter, who was also present, for approximately one hour while they searched the apartment. Upon concluding their search, they released Ms. Gratini and left the apartment. Plaintiffs commenced this action asserting claims for false arrest, false imprisonment, malicious prosecution, negligent hiring and retention and civil rights violations.

Defendants are entitled to summary judgment dismissing plaintiffs' claims for false imprisonment and false arrest because the detention of Ms. Gratini was privileged and, to the extent Ms. Mauricio was detained at all, her detention was also privileged. To make out a claim for false imprisonment or false arrest, plaintiff must establish that "the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement, and that the confinement was not otherwise privileged." Martinez v City of Schenectady, 97 N. Y.2d 78, 85 (2001); Johnson v Kings County District Attorney's Office, 308 A.D.2d 278, 286 (2^nd Dept 2003). Detention of an individual is "otherwise privileged" if there is probable cause for such detention. See Paulemond v City of New York, 11 Misc.3d 11 (2^nd Dept 2006) ( citing Lee v City of New York, 272 A.D.2d 586 (2000); Broughton v State of New York, 37 N.Y.2d 451 (1975)). Detention by the police pursuant to a facially valid search warrant establishes a presumption of probable cause. See id. In the instant case, that presumption applies as the police entered the home pursuant to an apparently valid search warrant. Plaintiffs fail to rebut that presumption. Although they assert their right to contest the propriety of the warrant, they fail to "demonstrate that the warrant was improperly procured." Id.; see Lee, 272 A.D.2d 586. They fail to substantively contest the propriety of the search warrant in any way.

Defendants are also entitled to summary judgment dismissing plaintiffs' claim for malicious prosecution as no criminal proceeding was ever initiated against plaintiffs. "The elements of an action for malicious prosecution are: (1) the initiation of a proceeding; (2) its termination favorably to plaintiff; (3) lack of probable cause; and (4) malice." Colon v City of New York, 60 N.Y.2d 78, 82 (1983). Without a showing that a criminal proceeding was ever initiated against plaintiffs, they cannot make out a cause of action for malicious prosecution.

Defendants are also entitled to summary judgment dismissing plaintiffs' § 1983 claims as probable cause is a complete defense to that action. See Molina v City of New York, 28 A.D.3d 372 (1^st Dept 2006); Carlton v Nassau County Police Dept., 306 A.D.2d 365 (2^nd Dept 2003) (citations omitted). In addition, plaintiffs fail to show that a violation of their constitutional rights resulted from a municipal custom or policy as required in order to establish a claim pursuant to 42 U.S.C. § 1983. See Monell v Department of Social Services of the City of New York, 436 U.S. 658, 694-95 (1978); Ricciuti v NYC Transit Auth., 941 F.2d 119, 122-23 (2^nd Cir. 1991). "Though this [requirement of a municipal custom or policy] does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation . . . a single incident alleged in a complaint . . . does not suffice to show a municipal policy. The inference that a policy existed may, however, be drawn from circumstantial proof . . ." Ricciuti, 941 F.2d at 122-23. In the instant case, plaintiffs fail to provide any evidence of a municipal custom or policy that resulted in the violation of their constitutional rights.

Finally, defendants' motion for summary judgment dismissing plaintiffs' claims for negligent retention and hiring are granted because, "where an employee is acting within the scope of his employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligence hiring or retention." Karoon v New York City Transit Auth., 241 A.D. 323 (1st Dept. 1997). Because it is undisputed that the police officers were acting within the scope of their employment, this principle applies.

Accordingly, defendants' motion is granted and plaintiffs' complaint is dismissed in its entirety. This constitutes the decision and order of the court.