Opinion
16519/07
10-03-2011
Daniel Rivera, Plaintiff, v. The City of New York and "John Does 1-10", Defendants.
Plaintiff was represented by Emil J. Sanchez, Esq. Friedman, Khafif & Sanchez LLP. Defendant was represented by Shannon Karla Esq. Michael A. Cardozo, Corporation Counsel for the City of New York Brooklyn NY.
Plaintiff was represented by Emil J. Sanchez, Esq. Friedman, Khafif & Sanchez LLP.
Defendant was represented by Shannon Karla Esq. Michael A. Cardozo, Corporation Counsel for the City of New York Brooklyn NY.
Sylvia G. Ash, J.
After oral argument and upon the foregoing papers, Defendants, the City of New York and "John Does" police officers whose names are not yet known or identified (collectively the "City"), move for an Order, pursuant to CPLR §3212, granting them summary judgment dismissing Plaintiff's Complaint. Plaintiff opposes. For the reasons set forth below, the City's motion is GRANTED.
Background
This is an action for personal injuries sustained by Plaintiff, Daniel Rivera, when he was arrested on two separate occasions: first on July 31, 2004, and again on December 3, 2005 in Bronx, New York. According to the City's papers for the instant motion, the first arrest was based on allegations of sexual assault made by Luz Soto, a foster child who used to live next door to Plaintiff. On July 31, 2004, two police officers and a worker from Administration for Children's Services ("ACS") arrived at Plaintiff's apartment and questioned Plaintiff's three daughters regarding said allegations. It is Plaintiff's position that one of his daughters, Christina, told the officers that Luz Soto's allegations were untrue. That day, Plaintiff was arrested and arraigned on charges of forcible touching and endangering the welfare of a minor. A Grand Jury indicted Plaintiff in September 2004. Plaintiff had a trial on these charges and was acquitted on May 10, 2006.
On December 3, 2005, Plaintiff was again arrested. However, this time, the complaining witness was Plaintiff's daughter, Danielle Rivera. According to the testimony of Detective Delgado, in November 2005, the police received a report from ACS sent from St. Barnabas Hospital that Danielle claimed Plaintiff sexually abused her (Det. Delgado Transcript, 13-14). On December 2, 2005, Detective Delgado met with Danielle who told him that she was raped by Plaintiff on November 13, 2005, and over a period of time since she was ten years old (Id. at 17-18). At the time of the complaint, Danielle was fifteen years old. That same day, Detective Delgado set up a meeting for Danielle to speak to the District Attorney's Office ("DA's Office") who thereafter approved Plaintiff's arrest.
On December 9, 2005, Plaintiff testified before a Grand Jury. On December 12, 2005, he was indicted on charges of rape, sexual conduct and endangering the welfare of a minor. Plaintiff had a trial by jury on these charges and was acquitted on November 17, 2006.
For each arrest, Plaintiff alleges the following: false arrest and imprisonment; malicious prosecution; failure to exercise proper supervision/care/control; excessive force; failure to allow Plaintiff to receive proper and timely medical attention; negligent hiring, training and retention; and violation of Plaintiff's civil rights pursuant to 42 USC §1983.
Plaintiff served a Notice of Claim upon the City related to the July 31, 2004 arrest on July 26, 2006. With regards to the December 3, 2005 arrest, Plaintiff served a Notice of Claim on December 6, 2006. The Summons and Complaint were filed on May 8, 2007.
Parties' Contentions
The City argues that it is entitled to summary judgment because (1) Plaintiff's causes of action for false arrest and imprisonment related to the first arrest are statutorily barred pursuant to General Municipal Law §50-e ("GML") for failure to timely file a Notice of Claim; (2) additionally, probable cause exists for both arrests entitling the City to dismissal for the false arrest and imprisonment and malicious prosecution causes of action; (3) Plaintiff's claims of excessive force are without merit because only the minium amount of force necessary was used to effectuate his arrest; (4) Plaintiff's claims for negligent hiring must be dismissed because all of the police officers' alleged malfeasance took place within the scope of their employment; and (5) Plaintiff's remaining causes of action are not supported by credible evidence.
The City contends that police had probable cause to arrest Plaintiff both times based on the respective identified citizen complaints of Luz Soto and Danielle Rivera. The City further argues that probable cause existed based on the Grand Jury indictments.
In addition to having probable cause, the City argues that Plaintiff's claims for malicious prosecution must fail because he has not proven actual malice for either prosecution. The actual malice standard requires more than a showing of simple negligence by police in conducting their investigations, a burden the City contends that Plaintiff cannot sustain.
In response to these arguments, Plaintiff contends there was a lack of probable cause because the City conducted their case without making a reasonable inquiry into the veracity of the charges made by Luz Soto and Danielle Rivera. Plaintiff points to the deposition testimonies of Detectives Delgado and Perez arguing that said detectives were unable to show or recall whether background checks had been conducted on Plaintiff, whether a rape kit had been done on Danielle, and whether they had obtained any prior information from ACS, such as medical examination results, prior to his arrest.
In addition, Plaintiff contends that the presumption of probable cause created by the Grand Jury indictments is rebutted because the City coerced Plaintiff's other daughter, Christina Rivera, into falsely testifying against her father by threatening to place her in a mental ward. In support, Plaintiff offers the Affidavit of Christina which states, among other things, that she told police that Luz Soto's accusations were untrue and that the DA's Office coerced her into testifying against her father.
With respect to Plaintiff's claims for excessive force, the City argues that the only force used to place Plaintiff under arrest was placing him in handcuffs, which, as a matter of law, does not rise to the level of excessive force. In response, Plaintiff argues that during the second arrest, he was handcuffed in the interrogation room for two hours without being told that he was under arrest, which is sufficient to raise a triable issue of fact defeating summary judgment.
Lastly, Plaintiff argues that the instant motion is untimely because it was submitted more than 120 days from the filing of the Note of Issue, which was filed on July 15, 2010.
Discussion
As a preliminary matter, contrary to Plaintiff's contention, the Court finds that the instant motion for summary judgment was timely made. A motion is made when notice of motion is served (CPLR §2211). In accordance with this rule, the City's motion for summary judgment was made on November 12, 2010, as evidenced by the Affidavit of Service, when it was served, by mail, on Plaintiff's counsel and was thus timely (see Steisel v Golden Reef Diner, 67 AD3d 670, 670 [2d Dept 2009]; Cruz v New York City Hous. Auth., 62 AD3d 643, 643 [2d Dept 2009]). Summary Judgment Standard
The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
False Arrest and Imprisonment
As the City correctly asserts, Plaintiff's false arrest and imprisonment cause of action stemming from the first arrest is statutorily barred pursuant to GML §50-e for Plaintiff's failure to timely file a Notice of Claim (Davidson v Bronx Municipal Hospital, 64 NY2d 59 [Ct App 1984]). Since Plaintiff was released from custody on August 9, 2004, he was required to file his Notice of Claim by November 8, 2004 (see Matter of Bush v City of New York, 76 AD3d 628 [2d Dept 2010]; Roche v Village of Tarrytown, 309 AD2d 842, 843 [2d Dept 2003]). However, Plaintiff filed his Notice of Claim on or about July 26, 2006, without leave of Court to file a late Notice. Thus, the July 26th Notice of Claim is a nullity (see Friedman v City of New York, 19 AD3d 542, 543 [2d Dept 2005]), and said cause of action is dismissed.
In addition, the Court finds that Plaintiff's false arrest claim would still fail because there was probable cause to arrest Plaintiff on July 31, 2004. Probable cause is a complete defense to an action alleging false arrest or imprisonment whether brought under state law or 42 USC §1983 (Carlton v Nassau County Police Dep't, 306 AD2d 365, 366 [2d Dept 2003]). Probable cause exists when "an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010]). Generally, information provided by an identified citizen accusing another individual of a specific crime is sufficient to provide the police with probable cause to arrest (Carlton, 306 AD2d at 366).
Here, the City showed that police officers arrested Plaintiff based on specific allegations of sexual abuse made by Plaintiff's neighbor, Luz Soto. In response, Plaintiff failed to raise a triable issue of fact. The fact that Plaintiff's daughter, Christina, refuted the allegations against her father when questioned by police does not extinguish the existence of probable cause at the time of arrest. Conflicting evidence is relevant only to the issue of whether guilt beyond a reasonable doubt can be proven at a criminal trial (Sylvester v City of New York, 2009 NY Slip Op 51193U). Probable cause depends on probabilities, not certainties (see People v Sanders, 79 AD2d 688, 690 [2d Dept 1980]). In addition, Plaintiff's own self-serving statement in his Affidavit that he learned, during his trial in May 2006, that Luz Soto had told a female officer that she was not touched by Plaintiff before his arrest is also insufficient to raise a triable issue of fact.
Similarly, the Court finds that there was also probable cause to arrest Plaintiff on December 3, 2005. The City showed that police officers arrested Plaintiff based on specific allegations of rape and continuous sexual abuse made by Plaintiff's daughter, Danielle. In addition to the initial fact-finding conducted by Detective Delgado, Assistant District Attorney Joanna Hernandez interviewed Danielle and subsequently gave her approval to arrest Plaintiff (Det. Delgado Transcript, 20-21).
Plaintiff argues that Detective Delgado's failure to conduct a background check on Plaintiff, to determine whether a rape kit had been done on Danielle, and to consult with ACS regarding Danielle's case should defeat the City's motion for summary judgment. Plaintiff points to the fact that, in August 2004, after Plaintiff was first arrested, Danielle was medically examined for sexual abuse and the doctor's findings were inconsistent with a pattern of chronic sexual trauma. It is Plaintiff's position that the police should have inquired into this readily available medical information before arresting Plaintiff.
The Court does not agree. While the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause (Carlton, 306 AD2d at 366), Plaintiff presents no evidence to establish that the police or the DA's office should have been alerted to the necessity of delving further into Danielle's story. Information from an identified citizen is accorded a high level of reliability and is presumed to be reliable (Babalola v City of New York, 847 NYS2d 895, *3 [2d Dept 2007]). Neither the police nor the Assistant District Attorney were confronted with any reason to doubt Danielle's credibility and Plaintiff presents no evidence why police should not have relied on the veracity of her statements.
Again, probable cause requires only information sufficient to support a reasonable belief that an offense has been committed (see People v Bigelow, 66 NY2d 417 [1985]; Reape v City of New York, 66 AD3d 755 [2d Dept 2009]). The arrest need not be supported by information and knowledge which excludes all possibilities of innocence and points to guilt beyond a reasonable doubt (see People v Sanders, 79 AD2d 688, 690 [2d Dept 1980]). The Court finds that there was sufficient probable cause to arrest Plaintiff based on Danielle's detailed allegations and the fact-finding conducted by the police and the DA's office.
Accordingly, Plaintiff's false arrest and imprisonment causes of action are dismissed.
Malicious Prosecution
In order to prevail on a claim for malicious prosecution, the plaintiff must prove four elements: (1) that a criminal proceeding was commenced, (2) that it was terminated in favor of the accused, (3) the absence of probable cause, and (4) that the proceeding was brought out of actual malice (Smith-Hunter v Harvey, 95 NY2d 191 [2000]; Broughton v State of New York, 37 NY2d 451 [1975], cert. denied sub nom., Schanbarger v Kellogg, 423 US 929 [2000]; Fortunato v City of New York , 63 AD3d 880 [2d Dept 2009]; Diederich v Nyack Hosp., 4 AD3d 491 [2d Dept 2008]).
Where the defendants have probable cause to believe that a plaintiff committed the underlying crime, it is a complete defense to a claim of malicious prosecution and a plaintiff will not prevail (see Fortunato v City of New York, 63 AD3d 880 [2d Dept 2009]). Furthermore, it is well-established that a Grand Jury indictment creates a presumption of probable cause which may be overcome only by evidence establishing that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith(Colon v New York, 60 NY2d 78 [Ct App 1983]; Williams v City of New York, 40 AD3d 847 [2d Dept 2007]; O'Donnell v County of Nassau, 7 AD3d 590 [2d Dept 2004]).
Here, the Court finds that Plaintiff's evidence fails to rebut the presumption of probable cause created by each Grand Jury indictment.
With regard to the first arrest, the Grand Jury indicted Plaintiff in September 2004. The only evidence offered by Plaintiff in rebuttal of the presumption of probable cause is the Affidavit of Christina. While Christina states therein that she was coerced by the Assistant District Attorney and ACS workers to testify falsely against her father, she explicitly states that she was coerced to testify in May 2006, during Plaintiff's trial, which ultimately ended in Plaintiff's acquittal. Plaintiff presents no evidence linking the Grand Jury indictment with any bad-faith conduct by Defendants. Without any evidence that the indictment was produced by conduct undertaken in bad-faith by the police or the DA, Plaintiff failed to rebut the presumption of probable cause that existed for commencing the criminal proceeding against him.
Plaintiff's cause of action for malicious prosecution based on the second arrest must also fail. On December 12, 2005, Plaintiff was indicted by the Grand Jury on charges of rape, sexual conduct and endangering the welfare of a minor. In an attempt to argue that probable cause was lacking, Plaintiff again argues that police failed to conduct a reasonable investigation into the charges and alleges that police withheld exculpatory evidence in bad faith. However, there is absolutely no support in the record for the latter allegation and the failure to investigate an alleged victim's medical records is not equivalent to withholding exculpatory evidence.
What Plaintiff essentially alleges against Defendants is negligent investigation or prosecution of a crime which New York does not recognize (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4h Dept 2005]). The police are not required to follow every lead that may produce evidence beneficial to the accused (Hernandez v State, 228 AD2d 902, 904 [3d Dept 1996]). Only where police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures may the presumption of probable cause be overcome (see id.).
Plaintiff has failed to show a reckless disregard for procedures here. The evidence shows that Danielle gave both the police and the ADA a detailed and consistent account of repeated sexual molestation by her father. There was no reason for them to believe that Danielle was not telling the truth. As stated previously by the Court, Plaintiff presents no evidence why the police, ACS workers or the ADA should have questioned the reliability of Danielle's story. Therefore, it cannot be said that the police's failure to conduct a thorough background check on the alleged victim by culling her old medical records before arresting or prosecuting Plaintiff constitutes an egregious deviation from proper police conduct.
Furthermore, contrary to Plaintiff's assertion, the acquittal of all charges based on the first arrest does not negate probable cause for the second criminal proceeding. The two criminal proceedings were based on two different alleged victims. Plaintiff fails to explain what bearing the first acquittal as to Luz has on the allegations made by Danielle.
Accordingly, Plaintiff's causes of action for malicious prosecution are also dismissed.
Failure to Exercise Proper Supervision
This cause of action must be dismissed. Plaintiff provides absolutely no evidence that he was injured while in custody. Nor is there any evidence that the City's supervision of Plaintiff was improper. Plaintiff's contentions here are without merit.
Excessive Force
Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness (Ostrander v State, 289 AD2d 463, 464 [2d Dept 2001]). The 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 v City of New York, 36 AD3d 451, 453 [1st Dept 2007]).
Plaintiff's sole ground for alleging excessive force is that, on December 3, 2005, Plaintiff was handcuffed while in police custody for two hours without being explicitly told that he was under arrest. As a matter of law, this does not rise to the level of excessive force in any conceivable way. Accordingly, this cause of action is dismissed.
Failure to Allow Plaintiff to Receive Proper and Timely Medical Care
This cause of action is also dismissed. Although not explicitly stated, it appears that the Plaintiff is asserting a cause of action for inadequate medical care in violation of the Eighth Amendment proscription against the infliction of cruel and unusual punishment. To prevail on a claim of inadequate medical care, a plaintiff must demonstrate that prison officials acted in a manner sufficiently harmful to show deliberate indifference to serious medical needs (Matter of Shomo v Zon, 35 AD3d 1227 [4th Dept 2006]).
Plaintiff fails to allege that he was deprived of necessary medical attention or that he was denied medical attention when he requested it. The City showed that Plaintiff was screened by a medical team at central booking and that he received medical treatment for eye and skin irritations that he developed while incarcerated. There is absolutely no indication or evidence to establish that Defendants were deliberately indifferent to Plaintiff's medical needs. Accordingly, this cause of action is dismissed.
Negligent Hiring and Training
Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and the plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention (Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]).
Here, the City concedes that the individual officers were acting within the scope of their employment at all times relevant to this action. Thus, Plaintiff may not maintain his action for negligent training, supervision, control, instruction and employment as a separate, distinct cause of action. This cause of action is therefore dismissed.
42 USC §1983Upon this Court's finding that police had probable cause to arrest and prosecute Plaintiff on both occasions, and the failure of Plaintiff to allege that an official municipal policy or custom deprived him of any constitutional right, Plaintiff's claims asserted under 42 USC §1983 must also be dismissed (see Monell v Dep't of Soc. Servs., 436 US 658 [1978]).
Based on the foregoing, the City's motion for summary judgment is GRANTED in its entirety.
This constitutes the Decision and Order of the Court.
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SYLVIA G. ASH, J.S.C.