Opinion
2005-10116.
Decided March 28, 2008.
Andrew P. Fleming, Esq., Appearing for Plaintiff.
Timothy A. Ball, Esq., Corporation Counsel, Appearing for Defendants, City of Buffalo, City of Buffalo Police Department, Salavatore Valvo, in his individual and official capacities as Detective and Secretary of the Sex Offense Squad for the City of Buffalo.
Archangelo J. Petricca, Esq., Appearing for Defendant, Heather Kacala.
The City of Buffalo, City of Buffalo Police Department, Salvatore Valvo, Detective (hereinafter referred to as the "City" defendants) and Heather Kacala have all moved for summary judgment. Plaintiffs have opposed the motions.
The plaintiffs' complaint alleges 11 causes of action. The eleventh cause of action is a derivative claim on behalf of plaintiff Amy Nwora . Causes of action first through eighth relate only to the City defendants; the ninth cause of action relates to Detective Valvo and defendant Kacala and the tenth cause of action relates only to defendant Kacala for abuse of process.
This action arises out of an alleged incident on October 23, 2002. At the time defendant Kacala was a student at Erie Community College and was in a physical education class in which plaintiff Alexander Nwora was the instructor. Ms. Kacala alleged a sexual assault occurred on that date in Mr. Nwora's office. The incident was investigated by Detective Salvatore Valvo. Proof, in addition to Kacala's sworn statement, included semen from Mr. Nwora located on a rug in the bathroom of Mr. Nwora's office at ECC.
In approximately May of 2004 there was a grand jury indictment of Mr. Nwora for sexual abuse in the first degree. A criminal trial was held in December of 2005 and Mr. Nwora was found not guilty. The instant proceeding was then commenced alleging claims for false arrest, malicious prosecution, false imprisonment and constitutional claims against the City defendants as well as claims against the City for failure to properly train and supervise their detectives and police officers.
The defendant Kacala brought a civil action against Nwora as well other defendants in or around January of 2003 which forms the basis for Nwora's abuse of process claim against her.
Between the competing lawsuits as well as the criminal charges it would be fair to say that whether the alleged incident occurred or not is in serious dispute as between the parties.
Defendant Kacala's Motion for Summary Judgment
There are two claims against Defendant Kacala, one for malicious prosecution and the other for abuse of process.
There are four elements to a claim for malicious prosecution: (1) the initiation of a criminal proceeding by the defendant against the plaintiff; (2) termination of the proceeding in favor of the accused; (3) lack of probable cause; and (4) malice. Failure to establish any one of these elements defeats the entire claim [See, Hoyt v City of New York, 284 AD2d 501 (2d Dept. 2001), Brown v. Sears Roebuck Co., 297 AD2d 205 (1st Dept. 2002)].
The first two elements have been met in this case. Criminal proceedings were initiated by defendant Kacala against the plaintiff and the proceedings ended with a not guilty verdict in favor of Mr. Nwora. The next two elements which need to be met are probable cause and malice. As clearly stated in Brown v. Sears Roebuck Co., supra at 209, "a probable cause finding as to one entity does not compel such a finding as to the other where the facts and circumstances known to each defendant may be different."
Facts known to the defendant Kacala would clearly be different than facts known to the City defendants. If the alleged incident did not happen she would be one of only two people who would have first hand knowledge as to whether or not it occurred. This can not be resolved on summary judgment. If the incident did not happen it would be false information provided by the defendant Kacala which contributed to the City defendants' decision to present the case to the Grand Jury which eventually led to an indictment.
The abuse of process claim similarly can not be dismissed. Kacala initiated a civil claim, which, if the plaintiff's claims are true that the incident did not occur, could be the basis for an abuse of process claim. Therefore, the motion of the defendant Kacala is in all respects denied.
The Motion of the City Defendants
As part of their motion for summary judgment the City defendants have set forth the sworn complaint of the defendant Kacala (exhibit F), the Grand Jury indictment (exhibit G) and sworn deposition testimony of Detective Salvatore Valvo (exhibit H). The City seeks dismissal of all claims.
First addressing the false arrest claim, the plaintiff was not arrested until after the Grand Jury indictment. Although he went for questioning shortly before the incident the plaintiff has not claimed that this is any type of "arrest" as he went voluntarily and understood he could leave at any time. The basis of the claim for false imprisonment is different from a malicious prosecution claim in that it does not require actual malice or a showing of lack of probable cause for the arrest. In Broughton v State of New York, 37 NY2d 451 (1975), the court upheld findings of false imprisonment where the court found there was a "presumptive unlawfulness of the warrantless arrests coupled with the plaintiff's evidence of intentional, unprivileged, nonconsensual confinement by the defendants . . . sufficient to establish the tort of false imprisonment." Broughton at 459.
In this case there is no warrantless arrest. The only arrest is after indictment. Further, if false arrest is established, damages are measured only to the time of arraignment or indictment, whichever occurs first. Since the plaintiff in this case was not arrested until indictment occurred by a Grand Jury this claim against the City defendants cannot be maintained. As noted by the Court of Appeals in Broughton, "the reason for this rule is that an action for false imprisonment redresses the violation of plaintiff's freedom of movement and not freedom from unjustifiable litigation, therefore attorney's fees are not proximate after arraignment or indictment and hence not recoverable". Id at 459. Therefore plaintiffs' first and third causes of action for false arrest and false imprisonment must be dismissed.
As previously stated there are four elements to the malicious prosecution claim. As with the claim against Kacala, the initiation of criminal proceedings and the termination in favor of the plaintiff Nwora are undisputed. The issue presented is whether the City defendants had probable cause to arrest the plaintiff. Where there is no real dispute as to the facts or the proper inferences to be drawn from such facts, the issue of probable cause is a question of law to be decided by the court. Parkin v Cornell University, 78 N.Y2d 523 (1991).
Plaintiffs argue a question of fact exists due to the failure of defendant Valvo to present potentially exculpatory evidence to the Grand Jury and the lack of investigation for potential exculpatory evidence.Exculpatory evidence may go to whether or not guilt can be proven beyond a reasonable doubt at a criminal trial, but for purposes of determining whether there is probable cause the City of Buffalo Police Department had a sworn statement from Heather Kacala indicating a crime had occurred (exhibit F) as well as the statement she provided to Erie Community College regarding her claim against Mr. Nwora (exhibit E).
The plaintiffs make much of the fact that the City defendants failed to follow up on potential exculpatory evidence by failing to take a DNA sample from Mrs. Nwora at the time they removed carpeting from Mr. Nwora's office. The plaintiffs claim the presence of
Mrs. Nwora's DNA would explain the presence of Mr. Nwora's semen and DNA on the carpet sample taken from his office other than the alleged encounter with defendant Kacala.
While discrepancies encountered by the police in their investigations "may impair their ability to prove guilt beyond a reasonable doubt at trial, . . . they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime" Gisondi v Town of Harrison, 72 NY2d 280, 285, (1988). The issue is whether there was sufficient evidence to show probable cause to believe Alexander Nwora committed a crime. (See, San George v Eden Central School System , 6 AD3d 1139 (4th Dept. 2004).
As noted earlier in Brown v Sears Roebuck and Co., 297 AD2d 205, the probable cause finding as to one entity does not compel such a finding as to another where the facts and circumstances known to each defendant may be different. In this instance the City of Buffalo through their police department and detective were relying on the veracity of statements made to them by defendant Kacala.
The court finds the evidence submitted in support of the motion establishes the police were acting reasonably under the circumstances and in good faith and therefore the malicious prosecution and constitutional claims must be dismissed.
Further, since the failure to properly train and supervise causes of action are predicated on plaintiffs' claims for false arrest and false imprisonment those claims are also untenable and are dismissed despite the lack of evidence submitted in support of the motion to show proper training of the officers. (See, Grant v Barnes Noble Inc. 284 AD2d 238 (1st Dept. 2001)).
Therefore, it is hereby
ORDERED the motion of the defendant Kacala is denied in all respects; and it is further
ORDERED the motions of the City defendants are granted in all respects.
This constitutes the Decision and Order of this Court. Submission of an Order by the parties is not necessary. The mailing of a date stamped copy of this Decision and Order by the Court to counsel shall not constitute notice of entry.