Opinion
No. 115426/07.
2010-08-12
Dianna ROBINSON, Plaintiff, v. The CITY OF NEW YORK, and P.O. Michael McNerney, Defendants.
Burns & Harris, Esqs. New York, for Plaintiff. Corporation Counsel, New York, for Defendants.
Burns & Harris, Esqs. New York, for Plaintiff. Corporation Counsel, New York, for Defendants.
LOUIS B. YORK, J.
This is an action to recover money damages for personal injuries arising from claims of a false arrest and imprisonment, malicious prosecution, assault and battery and a cause of action under 42 USC § 1983for a deprivation of her constitutional rights. A bench trial was held on March 8 and 9, 2010. This is the decision after the trial.
Finding of Facts
Plaintiff was exiting from her garage at 149th Street and Seventh Avenue. Her garage exits at the northbound corner of Seventh Avenue. Traffic moves in both a northbound and southbound direction separated by an island divider. Plaintiff proceeded northbound coming to the intersection where she turned left to proceed southbound on Seventh Avenue. In doing so, she abruptly cut off the police vehicle of Officer McNerney. He and the other officer in the vehicle followed her a short distance and pulled her over. He asked for her driver's license and registration, which she delivered to him, asking what she had done wrong. He responded that he would tell her later on. He went back to his vehicle, checked out the information in the documents and returned. He then informed her that he was giving her a summons for making an illegal U-turn. Apparently, the illegal U-turn was based on interfering with the right of traffic. Getting out of her car she began to shout a torrent of curse words at the officers and refused to get back into her vehicle. She jumped on the officers' vehicle, while challenging them to arrest her. They arrested her and tried to get her into their vehicle, and when that was unsuccessful, they tried to get her into a police van that came by. After much struggling, she went into the police sedan. While the struggle was going on, a crowd gathered and she shouted at them to help her as these bleepedy-bleep white officers were manhandling a black woman. The situation became tense and they managed to drive away unscathed.
After a brief stay in the hospital resulting from a bad headache and her revelation that she was a diabetic, the plaintiff was returned to the lockup and eventually arraigned where she was charged with, inter alia, obstruction of governmental administration and resisting arrest. After several adjournments, the charges were dismissed. It is unclear whether the dismissal was based on the DA's unpreparedness or the failure of necessary witnesses to appear. The plaintiff was the only one to testify as to her last appearance and no documentary evidence was produced to establish the basis for the dismissal.
The charge of an illegal U-turn was also dismissed. Once again, no documents explaining the dismissal were produced, and plaintiff was the only one to appear at the hearing.
The Court notes that annexed to defendant City's post-trial memorandum was Exhibit A, excerpts from the plaintiff's deposition. This deposition was not introduced as an exhibit at trial, and the excerpts contained in it were not read at trial as shown by defendant's failure to point to any place in the trial transcript where this information was read to the jury. If, in fact, this information was read to the jury, there would be no need for Exhibit A. Defendant would merely cite the place in the trial transcript where these matters appear. Accordingly, the Court will not consider the information appearing in Exhibit A as it is black-letter law that items dehors the record are not to be considered.
Decision
The Court finds that there was probable cause for the initial stop and subsequent arrest and brief imprisonment. The defendant police officer had a good-faith basis for believing there was a traffic infraction when his vehicle was cut off, as well as the subsequent arrest resulting from plaintiff's obstreperous and abusive behavior. The police officer, based on the facts before him, had a reasonable belief that an offense was being committed, and the Court finds there was probable cause for the officer's action (People v. State of New York v. Smith, 44 N.Y.2d 613, 622, 407 N.Y.S.2d 462 [1978] ). The presence of probable cause, also defeats the claim for malicious prosecution (Whyte v. City of Yonkers, 36 AD3d 799, 828 N.Y.S.2d 218 [2d Dept 2007] ). As the Supreme Court held in Texas v. Brown, 460 U.S. 730, 742 [1983] probable cause, is a flexible standard that does not require that the officer be right in his determination, but that his common-sense determination be correct.
As there was probable cause for defendant's actions and the Court determines that no excessive force was used in the arrest and imprisonment of the plaintiff, all of plaintiff's state and federal claims are dismissed.
I have considered the plaintiff's remaining claims and find them to be without merit.
Order
Accordingly, it is
ORDERED and ADJUDGED that judgment is awarded in favor of the defendants and against the plaintiff dismissing this action without costs and disbursements.