Opinion
20839/13
04-28-2015
Frank Perciaccanto, Plaintiff(s), v. City of New York, DETECTIVE ARIEL ORTIZ, POLICE OFFICER JOHN DOE, AND POLICE OFFICER JOHN ROE, Defendant(s).
In this action for, inter alia, alleged false arrest, false imprisonment, and excessive force, defendants move seeking an order granting them summary judgment pursuant to CPLR § 3212 with respect to some of plaintiff's causes of action and/or dismissal pursuant to CPLR § 3211(a)(7) for failure to state of a cause of action as to others. Specifically, defendants aver that they are entitled to summary judgment with respect to (1) plaintiff's causes of action for false arrest, false imprisonment, and malicious prosecution insofar as, saliently, plaintiff's arrest, imprisonment, and subsequent prosecution were supported by probable cause; (2) plaintiff's cause of action for assault and battery inasmuch as the evidence demonstrates that it stems from the use of handcuffs, which use didn't cause any injury; (3) plaintiff's cause of action for an unlawful strip search inasmuch as even if the same occurred there was sufficient probable cause for the same; (4) plaintiff's cause of action for abuse of process inasmuch as the arrest alleged was based on probable cause and, thus, was not in furtherance of a collateral objective nor improper purpose. Defendants further aver that because plaintiff fails to state a cause of action, they are entitled to dismissal of (1) plaintiff's cause of action for negligence insofar as no such cause of action lies, where as here, the conduct alleged falls within the ambit of claims for false arrest and false imprisonment; (2) plaintiff's cause of action for negligent hiring, retention and training of defendant DETECTIVE ARIEL ORTIZ (Ortiz) insofar as in answering for him no such cause of action against defendant THE CITY OF NEW YORK (the City) lies; (3) plaintiff's cause of action pursuant to 42 USC § 1983 insofar as the complaint is bereft of specific facts constituting the claim.
Plaintiff opposes some, but not all of the prongs of defendants' motion. Specifically, plaintiff opposes the portion of defendants' motion seeking summary judgment with respect to his claims for false arrest, false imprisonment and malicious prosecution on grounds that defendants' own evidence establishes that plaintiff committed no crime, let alone the ones with which he was charged, such that extant questions of fact on the issue of probable cause preclude prima facie entitlement to summary judgment. With respect to his cause of action for malicious prosecution, plaintiff avers that the version of the evidence demonstrating the absence of probable cause to arrest him gives rise to an inference of malice such that extant questions of fact on this element merits denial of the portion of the motion seeking summary judgment on the foregoing cause of action. Plaintiff, conceding that he has no independent cause of action for unlawful strip search, nevertheless argues that such act - performed without probable cause - constitutes battery, such that questions of fact preclude summary judgment on plaintiff's claim for battery. Lastly, plaintiff opposes the portion of defendants' motion seeking dismissal of his claim for negligent hiring, retention, and training insofar as defendants, within their answer, did not admit that Ortiz was acting within the scope of his employment with the City.
For the reasons that follow hereinafter, defendants' motion is granted, in part.
The instant action is for false arrest, false imprisonment, excessive force, negligent hiring and the retention of police officers, abuse of process, and violations of 42 USC § 1983. Within his complaint, plaintiff alleges that on July 19, 2012, he was assaulted, battered, detained and arrested in the vicinity of 194 East 194th Street, Bronx, NY by Ortiz, a police officer acting within the scope of his employment with the New York City Police Department (NYPD) and the City. Plaintiff also alleges that he was subsequently charged with, inter alia, Criminal Possession of a Controlled Substance in the Seventh Degree, imprisoned and prosecuted. Based on the foregoing, plaintiff interposes seven causes of action. The first alleges that insofar as there existed no probable cause for his arrest, he was falsely arrested and imprisoned by defendants. The second, alleges that insofar as probable cause for the criminal proceeding commenced against him was lacking, he was maliciously prosecuted by defendants. The third alleges that insofar as defendants pushed, handcuffed and strip-searched him, absent probable or reasonable cause, plaintiff was assaulted and battered by defendants. The fourth alleges that in arresting, battering, assaulting, imprisoning, and prosecuting plaintiff, defendants were negligent. The fifth alleges that insofar as the City failed to exercise due care in hiring, retaining and training Ortiz, it was negligent in the hiring, retention and training of its personnel. The sixth alleges that because plaintiff was arrested without justification and for an ulterior motive, defendants abused the legal process. Lastly, plaintiff alleges that defendants, in arresting, battering, assaulting, imprisoning, and prosecuting plaintiff, deprived him of his rights under the United States Constitution, thereby, violating 42 USC § 1983.
Defendants' Motion for Summary Judgment
Defendants' motion for summary judgment with respect to plaintiff's causes of action for false arrest and false imprisonment is hereby denied insofar as the very evidence submitted in support of the motion raises questions of fact on whether there was probable cause to arrest plaintiff. Thus, on these causes of action defendants fail to establish prima facie entitlement to summary judgment.
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)]).
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]).
Here, in support of the instant motion defendants submit Ortiz' deposition transcript, wherein he testified in pertinent part, as follows. On July 9, 2012, Ortiz, who at the time was a detective investigator with the NYPD, arrested plaintiff during a buy-and-bust operation. Ortiz had been employed by the NYPD since July 2003 and in 2012 was assigned to Bronx Narcotics. On the date in question, Ortiz was part of a field team conducting a buy-and-bust operation in the Bronx, and more specifically, near East 194th Street and Marion Avenue. The team consisted of approximately 10 detectives, three of which were undercover. At approximately 1:50, while Ortiz sat in an unmarked police vehicle with Sergeant Ovando (Ovando), he received notification that Undercover Officer 119 (C0119) had made a narcotics sale to two white males. C0119 also conveyed a description of the clothing which the individuals were wearing. Ortiz and Ovando, who were parked about a block away from where plaintiff was arrested, drove there, approached plaintiff and another individual, identified themselves and placed plaintiff and the other individual under arrest. Never having personally observed the sale or plaintiff prior to his arrest, Ortiz arrested plaintiff and the other individual solely based on the sale of marijuana to C0119, as conveyed to Ortiz by him. Plaintiff was also arrested because upon his arrest, plaintiff was searched and found to possess nine pills believed to be Oxycodone, which pills were found in a ziplock bag. More specifically, Ortiz testified that plaintiff was arrested for Criminal Possession of a Controlled Substance in the Third Degree, namely the Oxycodone, and Criminal Sale of a Controlled Substance in the Fourth Degree, for the sale of marijuana. While at his deposition, Ortiz had no recollection of what description of plaintiff was conveyed to him on the date of the instant arrest, he testified that the arrest was based on the description provided to him by C0119 and the fact that plaintiff matched the same. Similarly, while at his deposition, Ortiz had no independent recollection of whether prerecorded buy money was recovered from plaintiff subsequent to his arrest, he testified that the Expense Report for the operation indicated that prerecorded buy money was recovered. Lastly, testifying about the importance of having the undercover officers identify an arrestee subsequent to a controlled buy, Ortiz had no independent recollection as to whether plaintiff was so identified, but upon reviewing the OCCB Buy Report, Ortiz testified that plaintiff was identified by the undercover officers five minutes after his arrest.
Defendants also submit an affidavit from Detective Hudson Constantine (Constantine), who states, in pertinent part, as follows. On July 9, 2012, while a detective with the NYPD, he was involved in a buy-and-bust operation within the confines of the 46th and 50th precincts. Constantine was assigned to work undercover and designated as C0119. At approximately 1:50pm he and another undercover officer (C0240) approached two individuals and engaged in a narcotics related conversion. C0240 asked one of the individuals, designated as JD White - a white male who was wearing a white/gray shirt, gray shorts, and black sneakers - for narcotics. C0240 then handed JD White $40 in prerecorded buy money and JD White handed C0119 four ziplock bags containing what C0119 believed to be marijuana. As this transpired another individual, designated as JD Black - a white male wearing a black t-shirt/tanktop, blue jeans, and black sneakers - was within arms length, all the while turning his head in multiple directions, appearing nervous, and observing the streets. It appeared to C0119 that JD Black was a lookout. After the transaction was concluded, C0119 shook hands with JD White and JD Black, walked away and notified the field team of the transaction, giving them a description of JD White and JD Black. The field team then detained two individuals, which individuals were JD White and JD Black, the prerecorded buy money was recovered from JD White, and C0119 positively identified them as those who sold him the marijuana. JD Black was later identified as the plaintiff. Ortiz was the officer who made the arrest.
Defendants also submit a copy of plaintiff's arrest report, which indicates that he was arrested on July 9, 2012 because he and another sold marijuana to an undercover officer in exchange for prerecorded buy money. The report also indicates that plaintiff was further arrested because he was in possession of a controlled substance. Plaintiff, according to the report, was a white male wearing blue jeans, a black t-short/tanktop, and black sneakers. The report further indicates that Ortiz was the arresting officer and that he was charged with violating PL § 220.16(1), namely Criminal Possession of a Controlled Substance in the Third Degree and PL § 221.40, namely Criminal Sale of Marihuana in the Fourth Degree. The report also indicates that plaintiff was not subjected to a strip search.
Defendants also submit the transcripts of plaintiff's 50-h hearing and deposition, wherein, collectively, he testified, in pertinent part, as follows. On July 9, 2012, while with his friend Christopher Tiru (Tiru), he was arrested near Marion Avenue and its intersection with Sedgewick Avenue. Plaintiff testified that he had just exited a grocery store near the aforementioned location after having just purchased water. It was his intent to go to the gym with Tiru, which gym was located on West 225th Street. As such, he testified that he was wearing a white t-shirt, windbreaker pants, and sneakers. Upon exiting the store, he and Tiru traveled 15 feet and were approached by several men with their guns drawn. While the men were not in uniform, they quickly identified themselves as police officers. Plaintiff and Tiru were searched and a bottle of Oxycodone was retrieved from plaintiff's pocket. Plaintiff was taking Oxycodone for pain and the bottle where the pills were housed bore a valid prescription. Plaintiff was handcuffed, transported to the precinct and told he was being charged with the possession and sale of marijuana. At the precinct he was subjected to a strip search. Specifically, he was asked to undress, squat, spread his butt cheeks, and cough. He was not otherwise touched in an inappropriate way and further testified that his claims of excessive force stemmed from the fact that his handcuffs were tight. Despite complaints about the handcuffs, nothing was done for him. As a result of the handcuffs being too tight, plaintiff experienced pain, which dissipated the next day. On the date he was arrested, plaintiff did not possess marijuana, he did not sell anyone the same, nor did he act as a lookout. Plaintiff did not observe Tiru with any marijuana either. While in police custody, plaintiff was never hit, pushed, or shoved.
Based on the foregoing - the very evidence submitted by defendants in support of the instant motion - it is clear that there exist sharp questions of fact precluding summary judgment in defendants' favor on plaintiff's causes of action for false arrest and false imprisonment. Accordingly, defendants' fail to establish prima facie entitlement to summary judgment with respect to those causes of action.
As discussed, above, whenever an arrest and imprisonment arise without a warrant, the presumption is that such arrest and imprisonment were unlawful (Smith at 23). Accordingly, when confronted with such a claim and concomitant proof, a 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). Probable cause exists when "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]). Sated differently, probable cause exist when there is reasonable cause to believe that a person committed an offense under the penal law, meaning 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 (CPL § 70.10[2]).
Here, defendants' version of the events - meaning Ortiz' and C0119's version of the events underlying plaintiff's arrest - fail to establish that plaintiff committed the crime for which he was initially arrested, namely Criminal Sale of Marihuana in the Fourth Degree (PL § 221.40), such that with defendants' very own facts, at least on this record, there was no probable cause to arrest him. To be sure, a person commits the crime of Criminal Sale of Marihuana in the Fourth Degree when "he knowingly and unlawfully sells marihuana" (PL § 221.40). Here, however, the facts proffered for plaintiff's arrest, namely those within C0119's affidavit, establish that while plaintiff was present during a drug transaction he did not actually engage in the sale of marijuana. Indeed, C0119 stated that he gave the prerecorded buy money to Tiru and that it was Tiru who gave him the marijuana in exchange. Thus, the evidence establishes that Tiru and not plaintiff violated PL §221.40. To the extent that defendants seek to establish that plaintiff's arrest was premised on ample probable cause by asserting that he was a lookout who, thus, facilitated, aided and abetted Tiru in a drug transaction, such argument is unavailing. While it is certainly true that acting as a lookout, meaning engaging in behavior thereby furthering a drug sale by ensuring that the sale is not interrupted and that the buyer and seller are not apprehended is a crime (People v Lopez, 200 AD2d 525, 525 [1st Dept 1994]; People v Fuentes, 246 AD2d 474, 474 [1st Dept 1998]; People v Coulter, 240 AD2d 756, 757 [2d Dept1997]); People Suarez, 162 AD2d 301 [1st Dept.1990]). Here, assuming, arguendo, that C0119's affidavit establishes that plaintiff's behavior was tantamount to acting as a lookout, such that he violated PL § 20.00 ("When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."), insofar as he was not charged with such offense, defendants cannot now claim that it was the basis of his arrest. Had defendant been charged for violating PL § 20.00, then perhaps C0119's version of the events might establish the requisite probable cause for the arrest on those grounds.
Notwithstanding the foregoing, defendants fail to establish prima facie entitlement to summary judgment insofar as plaintiff's divergent version of the facts sufficiently negate the existence of any probable cause for his arrest. It is well settled that summary disposition of any claim for false arrest and false imprisonment is limited to those cases where the facts leading up to an arrest are undisputed (Parkin at 529; Burns at 466; Wyllie at 718; Brown at 17; Veras at 384). Here, plaintiff not only testified that neither he nor Tiru were involved in any drug transaction prior to his arrest, he also gave testimony disputing that the clothing he was wearing when arrested matched the clothing wore by the lookout C0119 alleged was involved in a drug transaction. Thus, this is not a situation where the facts merely diverge as to the interpretation of factually consistent behavior. Instead, in this case, plaintiff's testimony establishes that not only did he not engage in the behavior alleged to have precipitated his arrest, he further disputes that he was wearing the clothing alleged by the defendants ( Diederich v Nyack Hosp., 49 AD3d 491, 493 [2d Dept 2008] ["Here, the Orangetown defendants did not establish their prima facie entitlement to judgment as a matter of law, as the plaintiff's deposition testimony gave an account of the occurrences preceding his arrest which was different from the account given by the Orangetown defendants, and was sufficient to raise a triable issue of fact as to whether the Orangetown defendants acted with probable cause."]; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 718 [2d Dept 2003] ["Here, the plaintiff's grand jury testimony gave a different account of the occurrences preceding her arrest, and was sufficient to raise triable issues of fact whether the State defendants acted with probable cause."]; cf. Hernandez v City of Rochester, 260 FSupp2d 599, 611 [WDNY 2003] [Defendant granted summary judgment because while plaintiff attributed an innocent, noncriminal purpose for otherwise unchallenged behavior, "[e]ven assuming the truth of plaintiff's account of what happened, he was walking and talking with Ocasio in the same manner as the other individuals whom Bernabei had seen during the preceding twenty minutes, in what reasonably appeared to him to be likely drug deals. That provided a basis at least to detain plaintiff for questioning."]).
For reasons that should be obvious, defendants also fail to establish probable cause for plaintiff's arrest on grounds that he violated PL § 220.16(1), namely Criminal Possession of a Controlled Substance in the Third Degree, which crime was premised on plaintiff's possession of Oxycodone. Notwithstanding the sharp questions of fact on this issue, as raised by plaintiff's testimony indicating that these pills were housed in a bottle bearing a valid prescription such that he had a right to have them, by Ortiz' own account, these pills were discovered after plaintiff was searched incident to the arrest on the marijuana charge. If as noted above, on this record, there was no probable cause to arrest the plaintiff for selling marijuana, the pills were, thus, discovered incident to an unlawful arrest, which would preclude a search of plaintiff and an arrest for anything found on him .
"Under well-established exclusionary rule principles, where police have engaged in unlawful activity—here, by arresting defendant without probable cause—evidence which is a result of the exploitation of that illegality is subject to suppression as the fruit of the poisonous tree unless one of the recognized exceptions to the exclusionary rule is applicable" (People v Small, 110 AD3d 1138, 1140 [3d Dept 2013] [internal quotation marks omitted]["defendant's arrest was unlawful, [and thus,] defendant is correct that the court erred in failing to suppress the cocaine seized from him at the police station as the fruit of that arrest"]; see also People v Gethers, 86 NY2d 159, 161-162 [1995] [Generally, when the police have acted illegally, evidence which has been come at by exploitation of that illegality should be suppressed . . . In this case, we conclude that none of the exceptions is applicable, and the general rule controls: the identification of defendant, made by Officer Rye immediately following the illegal arrest and detention of defendant, was a product of the illegality and, therefore, should have been suppressed." (internal citations and quotation marks omitted)]). This doctrine must, by implication preclude the finding of probable cause when, as here, a defendant is charged with a crime as a result of a search premised on an arrest, which arrest is determined to be devoid of probable cause.
Defendants' motion seeking summary judgment with respect to plaintiff's cause of action for malicious prosecution is hereby denied insofar as based on the foregoing, the very evidence submitted raises questions of fact on whether there was probable cause for the initiation of plaintiff's prosecution, such that defendants fail to establish prima facie entitlement to summary judgment on plaintiff's cause of action for malicious prosecution.The tort of malicious prosecution provides protection from and provides redress for the initiation of unjustifiable litigation (Broughton at 457). However, since public policy favors bringing criminals to justice, the system must afford accusers room for benign misjudgments ( Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). This, of course, fosters the long standing belief that the court system is open to all without fear of reprisal through the use of retaliatory lawsuits ( Curiano v Suozzi, 63 NY2d 113, 119 [1984]). Thus, a plaintiff asserting a cause of action for malicious prosecution must satisfy a heavy burden ( Smith-Hunter at 195).
The essence of a cause of action for malicious prosecution is the perversion of proper legal procedures (Broughton at 457; Boose v City of Rochester, 71 AD2d 59, 65 [4th Dept 1979]). As such, a prior judicial proceeding is the sine qua non, of such cause of action (id. at 65). Simply stated, then, a cause of action for malicious prosecution is one where it is alleged that a legal proceeding was maliciously initiated "without probable cause for doing so which finally ends in failure" (Curiano at 118). The elements of the cause of action for malicious prosecution stemming from a prior criminal proceeding, all of which are required for recovery, are (1) the commencement or continuation of a prior criminal proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior criminal proceeding; and (4) actual malice (Cantalino v Danner, 96 NY2d 391, 394 [2001]; Smith-Hunter at 195; Colon v City of New York, 60 NY2d 78, 82 [1983]; Martin v City of Albany, 42 NY2d 13, 16 [1977]; Broughton at 457; Heany v Purdy, 29 NY2d 157, 159-160 [1971]). The elements for a malicious prosecution cause of action based upon a prior civil action are identical except, that in addition to the foregoing, it must be proven that plaintiff sustained special damage or injury (The Purdue Frederick Company v Steadfast Insurance Company, 40 AD3d 285, 286 [1st Dept 2007]; Wilhelmina Models, Inc. v Fleischer, 19 AD3d 267, 269 [1st Dept 2005]; Honzawa v Honzawa, 268 AD2d 327, 329 [1st Dept 2000]. Generally, special damages mean that the prior action interfered with a plaintiff's person or property (Williams v Williams, 23 NY2d 592, 604 [1969]; The Purdue Frederick Company at 286; Wilhelmina Models, Inc. at 269; Honzawa at 329) or proof of "concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 NY2d 195, 205 [1999]).
Whether an action is terminated favorably so as to give rise to a cause of action for malicious prosecution depends on how the action was terminated. In Levy's Store, Inc. v Endicott-Johnson Corporation (272 NY 155 [1936]), the court confronted with this very issue stated [i]t is true that where a proceeding has been determined in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant, as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. Where, however, the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action. The underlying distinction which leads to these different rules is apparent. In one case, the termination of the proceeding is of such a character as establishes or fairly implies lack of a reasonable ground for the prosecution. In the other case, no such implication reasonably follows (id. at 162; see also, Loeb v Teitelbaum, 77 AD2d 92, 100 [2d Dept. 1980]). Thus, a favorable termination on the merits and in favor of the accused or defendant in the prior action - since it implies lack of probable cause - satisfies the element of favorable termination in a cause of action for malicious prosecution, while a termination chargeable to the plaintiff or complainant in the prior action, such as settlement, withdrawal or discontinuance, does not (Levy's Store, Inc. at 162; Loeb at 100). In Pagliarulo v Pagliarulo (30 AD2d 840, 840 [2d Dept 1968]), the court held defendant's agreement to discontinue a prior action served to bar plaintiff's action for malicious prosecution insofar as discontinuance of the prior action against the plaintiff was not a favorable termination.
For purposes of malicious prosecution, probable cause means facts and circumstances which would lead a reasonably prudent person, in similar circumstances, to conclude that plaintiff was guilty of the acts alleged (Colon v. City of New York, 60 NY2d 78, 82 [1983]; Munoz v City of New York, 18 NY2d 6, 10 [1966]; Fink v Shawangunk Conservatory, Inc., 15 AD3d 754, 755 [3d Dept 2005]; Boose at 67). Whether there is probable cause to initiate a prosecution hinges on whether defendant's conduct at the time he/she commenced the prior proceeding would have led a reasonably prudent person to initiate the prior proceeding ( Levy's Store, Inc. at 161; Loeb at 102; Kezer v Dwelle-Kaiser Company, 222 AD 350, 354 [4th Dept 1927]). When the facts regarding the existence of probable cause and the inferences to be drawn therefrom are undisputed, the existence of probable cause can be decided as a matter of law ( Parkin v Cornell University, Inc., 78 NY2d 523, 528-529 [1991]; Lundgren v Margini, 30 AD3d 476, 477 [2d Dept 2006]).
Here, for the very same reasons warranting denial of defendants' motion with respect to plaintiff's claims for false arrest and false imprisonment - namely, extant and sharp questions of fact on the issue of probable cause - defendants' motion must be denied. Saliently, insofar as defendants' own version of the events fails to establish that plaintiff violated PL § 221.40 - Criminal Sale of Marihuana in the Fourth Degree, requiring proof that a person "knowingly and unlawfully sells marihuana" (PL § 221.40) - defendants' fail to establish that the ensuing prosecution based on the foregoing crime was based on probable cause. As noted above, the facts proffered for plaintiff's arrest, as described by C0119 within his affidavit, establish that while plaintiff was present during a drug transaction he did not actually engage in the sale of marijuana, and that it was Tiru, plaintiff's friend, who purportedly did so. This, and plaintiff's own version of the events denying that he sold anyone any marijuana and that the pills for which he was also arrested were lawfully his precludes prima facie entitlement to summary judgment on the claim for malicious prosecution.
Defendants' motion seeking summary judgment for plaintiff's cause of action for assault and battery is hereby granted to the extent that plaintiff premises the same on injuries caused by tight handcuffing. Such act, on this record, was not tantamount to excessive force as a matter of law. To the extent that plaintiff's cause of action for unlawful strip search is pleaded as one for battery, extant questions fact preclude summary judgment on this claim insofar as plaintiff testified that he was subjected to a visual strip search and the record is devoid of any probable cause to perform such search.
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 468 ["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]).
It is well settled that for purposes of a strip search, the mere fact that someone has been arrested and taken into custody "does not justify police intrusion into a person's body" (People v Hall, 10 NY3d 303, 307 [2008]). Thus, it is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to the next level required for a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity and the visual inspection must be conducted reasonably. If an object is visually detected or other information provides probable cause that an object is hidden inside the arrestee's body, Schmerber dictates that a warrant be obtained before conducting a body cavity search unless an emergency situation exists. Under our decision in More, the removal of an object protruding from a body cavity, regardless of whether any insertion into the body cavity is necessary, is subject to the Schmerber rule and cannot be accomplished without a warrant unless exigent circumstances reasonably prevent the police from seeking prior judicial authorization. (id. at 310-311). Stated differently, visual and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests and are not permitted under a police department's blanket policy that subjects all persons suspected of certain crimes to these procedures (id. at 311). Instead, there must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (id.).
Here, to the extent that plaintiff premises a portion of his excessive force claim on the tightness of the handcuffs placed on him, he testified that he suffered no significant injury as a result of the same. Since when the use of handcuffs does not result in any significant injury, there can be no claim of excessive force (Lynch at 468; Usavage at 592), here, defendants establish prima facie entitlement to summary judgment to the extent such claim is premised on the use of handcuffs. Indeed, plaintiff testified that the pain he felt as a result of the handcuffs resolved itself the very next day. Nothing submitted by plaintiff in opposition raises a triable issue of fact on this claim sufficient to preclude summary judgment.
To the extent that plaintiff premises his excessive force claim on an unlawful strip search, defendants' motion seeking summary judgment with respect to the same must be denied insofar as defendants' own evidence raises an issue of fact with respect to whether the same occurred and whether it was warranted. While defendants' own documentary evidence - namely, the arrest report - indicates that plaintiff was not stripped searched while in defendants' custody, plaintiff testified that he was subjected to a visual strip search. Specifically, plaintiff testified that he was asked to take off all his clothes and asked to squat and spread his butt cheeks. Because, visual cavity inspections and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests and must instead be based on particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (Hall at 310-311), here, where the defendants evidence fails to establish probable cause for plaintiff's arrest, in that nothing submitted establishes that he sold marijuana as charged, it is clear that on this record, defendants fail to establish probable cause for a visual strip search. Thus, this portion of defendants' motion must be denied.
Defendants' motion seeking summary judgment with regard to plaintiff's cause of action for abuse of process is granted insofar as the evidence submitted by defendants establishes that they were solely involved with plaintiff's arrest and nothing evinces that they were involved with the subsequent prosecution so as pervert it to achieve a collateral purposes.
The gravamen of an abuse of process claim is the perversion of process, lawfully issued, to accomplish a purpose not consonant with the nature of the process employed (Board of Education of Farmingdale Union Free School District v Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397, 400 [1975]). To the extent that public policy mandates open access to the courts for the redress of wrongs while concomitantly penalizing those who manipulate proper legal process to achieve a collateral advantage, a cause of action for abuse of process lies not for the commencement of an action -i.e., malicious prosecution - but for the perversion of the process after it is commenced (id. at 400; Pagliarulo v Pagliarulo, 30 AD2d 840, 840 [2d Dept 1968]).
In order to prevail on a cause of action for abuse of process it must be demonstrated that defendant (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; and (3) that the process was perverted to obtain a collateral advantage (Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Board of Education of Farmingdale Union Free School District at 403; Panish v Steinberg, 32 AD3d 383, 383 [2d Dept 2006]. In addition, it must also be demonstrated that the process unlawfully interfered with plaintiff's person or property (Curiano at 116; Williams v Williams, 23 NY2d 592, 596 [1969]; Walentas v Johnes, 257 AD2d 352, 354 [1st Dept 1999]). Actions generally giving rise to an abuse of process claim, by virtue of their interference with person and property, are actions for attachment, execution, garnishment, sequestration, arrest, criminal prosecution, and the issuance of a subpoena (Williams, 23 NY2d 592, 596 n 1; Hauser v Bartow, 273 NY 370, 378 [1937]).
Here, the evidence proffered by defendants establish that while they arrested plaintiff and initiated his prosecution, they were not involved in the perversion of that process so as to obtain a collateral advantage. Ortiz testified that he did in fact arrest plaintiff, signed the criminal court complaint and spoke to the Assistant District Attorney assigned to the action. To the extent that a cause of action for abuse of process lies not for the commencement of an action - i.e., malicious prosecution - but for the perversion of the process after it is commenced (Board of Education of Farmingdale Union Free School District at 400 Pagliarulo, at 840), the foregoing evidence establishes that Ortiz did nothing to pervert plaintiff's prosecution for a collateral advantage. Thus, defendants establish prima facie entitlement to summary judgment on this issue and nothing submitted by plaintiff raises an issue of fact sufficient to warrant denial of this portion of defendants' motion.
Motion to Dismiss
Defendants' motion to dismiss plaintiff's cause of action for general negligence is hereby granted insofar as the law does not recognize such a cause of action where as here, such action falls within the ambit of plaintiff's causes of action for false arrest and false imprisonment.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366. In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (id.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.) The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action ( Leon v Martinez, 84 NY2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."]).
CPLR § 3013, states that [s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.
As such, a complaint must contain facts essential to give notice of a claim or defense (DiMauro v Metropolitan Suburban Bus Authority, 105 AD2d 236, 239 [2d Dept 1984]). Vague and conclusory allegations will not suffice (id.); Fowler v American Lawyer Media, Inc., 306 AD2d 113, 113 [1st Dept 2003]); Shariff v Murray, 33 AD3d 688 (2nd Dept. 2006); Stoianoff v Gahona, 248 AD2d 525, 526 [2d Dept 1998]). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted (Schuckman Realty, Inc. v Marine Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Chapter, Local No. 852, Civil Service Employees Association, Inc., 95 AD2d 800, 800 [2d Dept 1983]).
It is well settled that in this State, in cases alleging police misconduct, the law does not recognize a cause of action for general negligence, negligent investigation (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 284-285 [2d Dept 2003]). Accordingly, a plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles of negligence ... but must proceed by way of the traditional remedies of false arrest and imprisonment (Antonious v Muhammad, 250 AD2d 559, 559-560 [2d Dept 1998] [internal quotation marks omitted]; Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007]). Accordingly, a cause of action sounding in false arrest, imprisonment or malicious prosecution must be pled as such and the failure to do so warrants dismissal (Medina at 108 ["The cause of action alleging negligence, including negligent hiring, retention, and training, must be dismissed because no cause of action for negligent investigation lies in New York."]; Johnson at 285 [Court dismissed plaintiff's claim for negligent investigation on grounds that no such claim was cognizable under New York State law.]).
Here, a review of plaintiff's complaint evinces that in addition to his claims for false arrest, false imprisonment, and malicious prosecution, he also asserts, within his fourth cause of action, a claim for negligence. Insofar as a plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles, but must proceed by way of the traditional remedies of false arrest and imprisonment (Antonious at 559-560; Santoro at 738), his cause of action for negligence must dismissed as it fails to state a cause of action.
Defendants' motion seeking dismissal of plaintiff's cause of action - his fifth - for negligent hiring, training, and retention of Ortiz is granted inasmuch as the City has admitted that Ortiz was acting under the scope of his employment with the City at the time of the acts alleged.
It is well settled that a claim for negligent hiring, retention, and training will be dismissed when an employer concedes that the acts alleged to have been perpetrated by the employee were within the scope of that employee's employment (Karoon v New York City Tr. Auth., 241 AD2d 323, 324 [1st Dept 1997]; Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]). Thus, "[g]enerally, where an employee is acting within the scope of his or her 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 negligent hiring or retention" (Karoon at 324).
Here, contrary to plaintiff's assertion, the City, within its amended answer dated July 3, 2013, wherein they answered for Ortiz, admitted, albeit by failing to deny (CPLR §3018[a[), that with respect to plaintiff's claims within paragraph four of his complaint, Ortiz was acting within the scope of his employment with the City. Thus, plaintiff's cause of action for negligent hiring, training and retention cannot stand ( Karoon at 324).
Defendants motion seeking dismissal of plaintiff's cause of action pursuant to 42 USC § 1983 - his seventh cause of action - is granted insofar as he fails to plead the existence of a municipal custom and practice as the cause of the acts alleged and his resulting injuries.
Pursuant to 42 USC § 1983 [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress
Thus, a person has a private right of action under 42 USC § 1983 against an individual who, acting under color of law, violates federal constitutional or statutory rights (Delgado v City of New York, 86 AD3d 502, 511 [1st Dept 2011] ["A complaint alleging gratuitous or excessive use of force by a police officer states a cause of action under the statute (42 USC § 1983) against that officer."]; Morgan v City of New York, 32 AD3d 912, 914-915 [2d Dept 2006] ["The complaint states a cause of action for violation of the decedent's Fourth Amendment rights pursuant to 42 USC § 1983, alleging both an unreasonable seizure and confinement of the person in the absence of probable cause."]). However, when plaintiff asserts a cause of action against an individual defendant pursuant 42 USC § 1983 alleging that he was acting in his official capacity, plaintiff must then establish more than a violation of a constitutional right, he must also establish the existence of (1) an official policy or custom that (2) caused him to be subjected to (3) a denial of that constitutional right (Linen v County of Rensselaer, 274 AD2d 911, 913 [3d Dept 2000]; Howe v Village of Trumansburg, 199 AD2d 749, 751 [3d Dept 1993). Stated differently, "where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims [those against the individual defendant] are tantamount to claims against the municipality itself" (Vargas v City of New York, 105 AD3d 834, 837 [2d Dept 2013]; see Rosen & Bardunias v County of Westchester, 228 AD2d 487, 488 [2d Dept 1996] ["An action against a government official in his official capacity is functionally equivalent to an action against the municipality."]) Similarly, as established by Monell v Department of Social Services of City of New York (436 US 658 [1977]), a municipality bears liability under 42 USC § 1983 only where the action by its agent "is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" (Monell at 690).
Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 person, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official decision making channels (id. [internal quotation marks omitted]). Accordingly, municipal liability under 42 USC § 1983 only lies if the municipal policy or custom actually caused the constitutional tort and not merely because the municipality employs a tortfeasor who perpetrated a constitutional tort (id. at 691). In other words, causation is an essential element to municipal liability and, thus, no municipal liability will lie under 42 USC § 1983 solely on a theory of respondeat superior (id.). Moreover, since [a] cause of action under 42 USC § 1983 exists where the evidence demonstrates that an individual has suffered a deprivation of rights as a result of an official policy or custom, and must be pleaded with specific allegations of fact Pang Hung Leung v City of New York, 216 AD2d 10, 11 [1st Dept 1995 (internal citations omitted)]), broad and conclusory statements, and the wholesale failure to allege facts of the offending conduct alleged, are insufficient to state a claim under section 1983 ( id.). Accordingly, a motion to dismiss for failure to state a cause of action under 42 USC § 1983 should be granted where the complaint fails to plead the existence of an official policy or custom which deprived him of a constitutional right in violation of 42 USC § 1983 ( Liu v New York City Police Dept., 216 AD2d 67, 68 [1st Dept 1995]), or when the complaint fails to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of which caused the constitutional tort alleged ( Vargas at 837; Cozzani v County of Suffolk, 84 AD3d 1147, 1147 (2d Dept 2011] ["Although the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced.]; R.A.C. Group, Inc. v Board of Educ. of City of New York, 295 AD2d 489, 490 [2d Dept 2002] ["because the plaintiffs failed to plead the existence of a specific policy or custom which deprived them of a constitutional right in violation of 42 USC § 1983, that cause of action must be dismissed as well."]; Bryant v City of New York, 188 AD2d 445, 446 [2d Dept 1992] ["Given the complete absence of any factual allegations in the complaint regarding the alleged "policies" of the municipal defendants which led to the officers' conduct, or evidencing their approval or "ratification" of this conduct, the plaintiffs' causes of action against these defendants pursuant to 42 USC § 1983 were properly dismissed"]).
Here, a review of plaintiff's seventh cause of action evinces that while he premises his claim on a violation of 42 USC § 1983, he utterly fails to plead the existence of an official policy or custom which deprived him of a constitutional right in violation of 42 USC § 1983 (Liu at 68). This is not only fatal to his claim against the City, but inasmuch as defendants admit that Ortiz was acting within the scope of his employment, also fatal to plaintiff's claim against Ortiz (Linen at 913; Howe at 751; Vargas at 837; Rosen & Bardunias at 488). It is hereby
ORDERED that plaintiff's cause of actions for negligence (fourth cause of action); negligent hiring, training, and retention (fifth cause of action); abuse of process (sixth cause of action); and violation of 42 USC § 1983 (seventh cause of action) be hereby dismissed with prejudice. It is further
ORDERED plaintiff's cause of action for assault and battery (third cause of action) be limited to allegations that he was strip searched. It is further
ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.
Dated : April 28, 2015
Bronx, New York
______________________________
MITCHELL J. DANZIGER, J.S.C.