Sheehan v. City of New York

Full title: JOHN SHEEHAN, Plaintiff, v. THE CITY OF NEW YORK and THE NEW YORK CITY…

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

Date published: Apr 13, 2011

2011 N.Y. Slip Op. 30982 (N.Y. Sup. Ct. 2011)

Opinion

108535/2009.

April 13, 2011.

DECISION/ORDER

CYNTHIA S. KERN, Judge.Page 2

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

1 2 3 4

Papers Numbered Notice of Motion and Affidavits Annexed ..................... ______ Answering Affidavits ........................................ ______ Replying Affidavits ......................................... ______ Exhibits .................................................... ______

Plaintiff commenced the instant action to recover damages he allegedly sustained when he was arrested on April 1, 2004. Defendants now move to dismiss the complaint, or, in the alternative, for summary judgment dismissing plaintiff's claims for false arrest, false imprisonment, malicious prosecution and violation of federal civil rights under 42 U.S.C. § 1983. For the reasons set forth below, defendants' motion is granted in part and denied in part.

The relevant facts are as follows. It is undisputed that on May 1, 2008, plaintiff was driving north on the West Side Highway when a police car behind him activated its lights and sirens. Not thinking he had done anything wrong, plaintiff drove for eight to ten blocks before pulling over. Defendant police officer Paul Aguello approached plaintiff's vehicle and asked him to step out of the car, which plaintiff did. Plaintiff asked why he had been stopped and Officer Aguello responded that he had pulled him over for speeding. Officer Aguello asked plaintiff to take a breathalyzer test at least twice but plaintiff refused. Officer Aguello then attempted to handcuff plaintiff. Plaintiff moved his right hand onto the hood of the police car and a physical altercation between plaintiff, Office Aguello and the other police officer present, Ignazio Selvaggio, ensued. The officers eventually handcuffed plaintiff and brought him to the 28^th precinct where he again refused to take a breathalyzer test. Where the parties' versions diverge is regarding whether or not plaintiff was speeding and the surrounding details. Plaintiff denies speeding and says his speed was "in the thirties" although he did not look at the speedometer. In contrast, both police officers involved claim that plaintiff was speeding but give different accounts of when they first saw plaintiff's vehicle and how they determined that he was speeding. Defendant Officer Aguello testified that he was parked on a side street when plaintiff's car approached in the right lane of 12^th Avenue. He states that he made a visual assessment of plaintiff's speed and then used a laser detector to measure plaintiff's speed. Defendant Officer Selvaggio testified that the police car was on 12^th Avenue when plaintiff's car passed them on the right. He testified that neither he nor Detective Aguello used a laser detector in assessing plaintiff's speed.

Defendants are not entitled to summary judgment dismissing plaintiff's claims for false imprisonment and false arrest because there are questions of material fact as to whether the police officers had probable cause to stop and then arrest plaintiff. Probable cause is a complete defense to an action for false arrest. See Morel v Crimaldi, 683 N.Y.S.2d 22, 24 (2^nd Dept 1998). The differing accounts of when the police officers saw plaintiff's-vehicle and how they assessed its speed raise questions of fact as to whether they had probable cause to stop his car.

Nor are defendants entitled to summary judgment dismissing plaintiffs' claim for malicious prosecution because plaintiff is unable to raise any issue of fact as to whether defendants acted maliciously. "The elements of an action for malicious prosecution are: (1) the initiation of a proceeding; (2) its termination favorably to plaintiff; (3) lack of probable cause; and (4) malice." Colon v City of New York, 60 N.Y.2d 78, 82 (1983). Lack of probable cause can support an inference of actual malice. See Lundgren v Margini, 30 A.D.3d 476, 477 (2^nd Dept 2006). Where there is a question of fact as to probable cause, as here, there is therefore necessarily a question of fact as to whether there was malice. See id. In addition, there is a question as to whether malice could be inferred from the conduct of the police officers involved. See Fortunato v City of New York, 63 A.D.3d 880, 881 (2^nd Dept 2009).

Defendants are entitled to summary judgment dismissing plaintiff's § 1983 claims because he fails to show that a violation of their constitutional rights resulted from a municipal custom or policy as required in order to establish a claim pursuant to 42 U.S.C. § 1983. See Monell v Department of Social Services of the City of New York, 436 U.S. 658, 694-95 (1978); Ricciuti v NYC Transit Auth., 941 F.2d 119, 122-23 (2^nd Cir. 1991). "Though this [requirement of a municipal custom or policy] does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation . . . a single incident alleged in a complaint . . . does not suffice to show a municipal policy. The inference that a policy existed may, however, be drawn from circumstantial proof . . ." Ricciuti, 941 F.2d at 122-23. In the instant case, plaintiff fails to provide any evidence of a municipal custom or policy that resulted in the violation of his constitutional rights.

Accordingly, defendants' motion is granted to the extent that plaintiff's cause of action pursuant to 42 U.S.C. § 1983 is dismissed. The remainder of defendants' motion is denied. This constitutes the decision and order of the court.