Opinion
183 Index No. 20015/15 Case No. 2022-02633
08-03-2023
Marsha SIBBLIES, Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Respondents, "John Does 1-5", Defendants.
Benno & Associates, P.C., New York (Ameer Benno of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Benno & Associates, P.C., New York (Ameer Benno of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Manzanet–Daniels, J.P., Singh, Moulton, Rodriguez, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered February 16, 2023, which granted defendants’ motion for summary judgment dismissing the state and federal malicious prosecution and federal denial of fair trial claims, unanimously modified, on the law, to deny the motion as to the state and federal malicious prosecution claims based on assault and harassment charges, to reinstate those claims against defendants other than defendant Sgt. Lawrence Donnelly, sued herein as Sgt. Lawrence Donnel, and otherwise affirmed, without costs.
The present civil action arises out of plaintiff's arrest and prosecution following her alleged failure to produce identification during a traffic stop for an illegal left turn. In the underlying criminal prosecution, plaintiff was charged with second- and third-degree assault, resisting arrest, obstructing governmental administration, and harassment. Before trial, the People dismissed the single felony charge for second-degree assault and went to trial on a misdemeanor information containing the remaining charges. The arresting officers and plaintiff testified at trial, and the jury acquitted plaintiff of harassment and third-degree assault but convicted her of resisting arrest and obstructing governmental administration. Plaintiff's conviction was ultimately overturned by the Court of Appeals for violation of her right to a speedy trial pursuant to CPL 30.30 ( People v. Sibblies, 22 N.Y.3d 1174, 985 N.Y.S.2d 474, 8 N.E.3d 852 [2014] ).
Supreme Court granted summary judgment to defendants, dismissing plaintiff's complaint in its entirety. Supreme Court found that plaintiff's malicious prosecution claims failed because plaintiff could not show a favorable termination of the criminal proceedings. Supreme Court further found that plaintiff did not provide any evidence to substantiate her claim for deprivation of a right to fair trial.
Defendants established prima facie that there was probable cause to prosecute for resisting arrest and obstructing government administration. Conviction at trial, even if overturned on appeal, creates a presumption of the existence of probable cause in the underlying criminal proceeding (see Passucci v. Home Depot, Inc., 67 A.D.3d 1470, 1471, 889 N.Y.S.2d 353 [4th Dept. 2009], lv denied 72 A.D.3d 1658, 899 N.Y.S.2d 722 [4th Dept. 2010] ; Goddard v. Daly, 295 A.D.2d 314, 315, 744 N.Y.S.2d 330 [2d Dept. 2002] ; Savino v. City of New York, 331 F.3d 63, 73 [2d Cir.2003] ). To overcome this presumption, plaintiff must show "perjury, fraud, suppression of evidence, or other police conduct undertaken in bad faith" ( Colon v. City of New York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983] ). Although their testimony varies as to some details, plaintiff's account of her arrest is broadly similar to the account given by the arresting officers. Crediting plaintiff's testimony, the minor conflicts between plaintiff's and defendants’ accounts of the arrest do not show that defendants’ accounts were fraudulent or perjurious (see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 771, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ; Savino, 331 F.3d at 74–75 ; compare Boyd v. City of New York, 336 F.3d 72, 77 [2d Cir.2003] [finding issue of fact because, accepting the plaintiff's account as true, the case went "beyond a simple conflict of stories or mistaken memories"]). Because the defendants had probable cause, we need not reach the issue of favorable termination as to these charges (see e.g. Colon, 60 N.Y.2d at 82–84, 468 N.Y.S.2d 453, 455 N.E.2d 1248 ).
Defendants do not contend that probable cause existed as to the charges for harassment or assault and, as to plaintiff's state claim based on these charges, we reject defendants’ argument that probable cause for any charge defeats probable cause as to all charges. This conclusion does not follow from the decisions on which defendants rely (see De Lourdes Torres, 26 N.Y.3d at 761, 27 N.Y.S.3d 468, 47 N.E.3d 747 ["the plaintiff in a malicious prosecution action must also establish at trial the absence of probable cause to believe that he or she committed the charged crimes"]; Engel v. CBS, Inc., 93 N.Y.2d 195, 204, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999] [when the defendant had instituted a civil action against the plaintiff, the plaintiff was required to "prove an entire lack of probable cause in the prior proceeding"]; Perryman v. Village of Saranac Lake, 41 A.D.3d 1080, 1082, 839 N.Y.S.2d 290 [3d Dept. 2007] [finding that the plaintiff could not sue for malicious prosecution over civil action, where some causes of action in civil suit had potential merit]). Under defendants’ reasoning, prosecutors would potentially have carte blanche to bring far more serious charges without sufficient evidentiary support.
With respect to favorable termination under state law, acquittal by a jury is not inconsistent with innocence (see Smith–Hunter v. Harvey, 95 N.Y.2d 191, 195–196, 712 N.Y.S.2d 438, 734 N.E.2d 750 [2000] ), and defendants do not argue that plaintiff's charges were dismissed for any reason meriting exception to the general rule (see id. at 196–197, 712 N.Y.S.2d 438, 734 N.E.2d 750 [noting, e.g. compromise, including adjournment in contemplation of dismissal, mercy, and dismissal in the interest of justice]). Finally, we accept defendants’ concession that plaintiff's federal malicious prosecution claim based on the assault and harassment charges should be reinstated.
Accordingly, the malicious prosecution claims are reinstated as to the assault and harassment charges, except as against defendant Donnelly. Plaintiff does not show that Donnelly was personally involved in arresting her or in supplying the allegedly false information to the prosecutor (see De Lourdes Torres, 26 N.Y.3d at 760–761, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 [2d Cir.2001] ; Black v. Coughlin, 76 F.3d 72, 74 [2d Cir.1996] ).
The court also correctly dismissed plaintiff's federal denial of fair trial claim. Here, the difference in testimony between plaintiff and defendants does not show that the officers fabricated their account of plaintiff's arrest (see Garnett v. Undercover Officer C0039, 838 F.3d 265, 274–275 [2d Cir.2016] ). Thus, plaintiff failed to raise a triable issue of fact as to whether she had been deprived of a fair trial (see Bennett v. Vidal, 267 F.Supp.3d 487, 498 [S.D.N.Y.2017] ).
We have considered the parties’ remaining contentions and find them unavailing.