Opinion
2015-05831, Index No. 20416/12.
09-13-2017
Clifton WILLIAMS, appellant, v. CITY OF NEW YORK, et al., respondents.
Miller & Miller, Brooklyn, N.Y. (Andrew R. Miller of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr and Kathy Chang Park of counsel), for respondents.
Miller & Miller, Brooklyn, N.Y. (Andrew R. Miller of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr and Kathy Chang Park of counsel), for respondents.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action, inter alia, to recover damages for false arrest and malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered May 7, 2015, as granted those branches of the defendants' motion which were for summary judgment dismissing the state common-law causes of action alleging false arrest, false imprisonment, and malicious prosecution, and the cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' motion which were for summary judgment dismissing the state common-law cause of action alleging malicious prosecution and the cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On April 23, 2008, the plaintiff was arrested by the New York City Police Department and detained at Rikers Island after a single eyewitness identified him as a shooter involved in a gunfight in South Jamaica, Queens. The eyewitness identified the plaintiff in both a statement to a detective and in testimony before a grand jury. The plaintiff was indicted on charges of criminal possession of a weapon in the second degree (two counts) and related crimes.
On December 11, 2009, after almost 20 months in jail, the plaintiff was released on his own recognizance. On June 30, 2010, the People moved to dismiss the charges against him because they were unable to locate the eyewitness after the eyewitness testified at the grand jury. On July 28, 2010, the charges were dismissed.
In September 2011, the plaintiff commenced this action against the City of New York and Detective Michael Failla of the New York City Police Department, asserting, inter alia, state common-law causes of action alleging false arrest, false imprisonment, and malicious prosecution, as well as a cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983.
The defendants moved for summary judgment dismissing the complaint. Among other things, the defendants argued that the state common-law causes of action alleging false arrest, false imprisonment, and malicious prosecution, and the cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983 must be dismissed because the eyewitness's identification statement to police and his grand jury testimony provided the defendants with probable cause to arrest, detain, and prosecute the plaintiff.
In opposition, the plaintiff submitted a sworn affidavit from the eyewitness, dated September 9, 2011. The eyewitness averred that his statement and grand jury testimony had been fabricated and that this fabrication resulted from coercion by the police and an unnamed assistant district attorney (hereinafter ADA).
The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint in its entirety, concluding that the defendants established, prima facie, their entitlement to judgment as a matter of law and that the plaintiff failed to raise a triable issue of fact as to whether they lacked probable cause for his arrest, detention, and prosecution. As pertinent to this appeal, the court concluded that the eyewitness's affidavit improperly raised a new theory of liability and, in any event, was insufficient because it presented feigned issues of fact. The court's determination left unresolved certain alternative contentions raised by the defendants in support of their summary judgment motion.
The plaintiff appeals from so much of the order as granted those branches of the defendants' motion which were for summary judgment dismissing the state common-law causes of action alleging false arrest, false imprisonment, and malicious prosecution, and the cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983. We modify.
"The existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution" ( Paulos v. City of New York, 122 A.D.3d 815, 817, 997 N.Y.S.2d 452 ; see Shaw v. City of New York, 139 A.D.3d 698, 699, 31 N.Y.S.3d 155 ; Batten v. City of New York, 133 A.D.3d 803, 805, 20 N.Y.S.3d 160 ), and this includes "causes of action asserted pursuant to 42 U.S.C. § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that are the federal-law equivalents of state common-law false arrest and malicious prosecution causes of action" ( Paulos v. City of New York, 122 A.D.3d at 817, 997 N.Y.S.2d 452, citing, inter alia, Betts v. Shearman, 751 F.3d 78, 82 [2d Cir.] ). While an indictment creates a presumption of probable cause, such presumption may be overcome by evidence establishing either " ‘that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures' " ( Blake v. City of New York, 148 A.D.3d 1101, 1107, 51 N.Y.S.3d 540, quoting De Lourdes Torres v. Jones, 120 A.D.3d 572, 574, 992 N.Y.S.2d 39, mod. 26 N.Y.3d 742, 27 N.Y.S.3d 468, 47 N.E.3d 747 ), or "that the indictment was produced by fraud, perjury, the 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 ; see Washington–Herrera v. Town of Greenburgh, 101 A.D.3d 986, 989, 956 N.Y.S.2d 487 ; O'Donnell v. County of Nassau, 7 A.D.3d 590, 591, 775 N.Y.S.2d 902 ).
Here, contrary to the Supreme Court's determination, the eyewitness's affidavit did not raise a new theory of liability (see generally Mezger v. Wyndham Homes, Inc., 81 A.D.3d 795, 796, 916 N.Y.S.2d 641 ). The complaint alleged that the defendants arrested, detained, and prosecuted the plaintiff without probable cause and that they knew that the criminal complaint contained falsehoods. The eyewitness's affidavit, rather than raising a new theory of liability, supported these allegations by asserting that police and an ADA coerced the eyewitness to make a false identification of the plaintiff. Therefore, the court erred in concluding that the affidavit impermissibly asserted a new theory of liability for the first time in opposition to the defendants' summary judgment motion (cf. Hubbard v. City of New York, 84 A.D.3d 1313, 1314, 924 N.Y.S.2d 533 ; Araujo v. Brooklyn Martial Arts Academy, 304 A.D.2d 779, 780, 758 N.Y.S.2d 401 ; Winters v. St. Vincent's Med. Ctr. of Richmond, 273 A.D.2d 465, 711 N.Y.S.2d 892 ).
Further, contrary to the Supreme Court's determination, the eyewitness's affidavit did not present feigned issues of fact. The eyewitness did not give any prior testimony in this action (cf. Paulos v. City of New York, 122 A.D.3d at 817, 997 N.Y.S.2d 452 ; Capasso v. Capasso, 84 A.D.3d 997, 998, 923 N.Y.S.2d 199 ). Moreover, his affidavit did not contradict the plaintiff's prior testimony, including the plaintiff's deposition testimony that the eyewitness was "scared" when the police talked to him about the shooting. Accordingly, the court erred in determining that the affidavit presented feigned issues of fact (cf. Paulos v. City of New York, 122 A.D.3d at 817, 997 N.Y.S.2d 452 ; Keizer v. SCO Family of Servs., 120 A.D.3d 475, 477, 991 N.Y.S.2d 103 ).
Considering all the evidence, including the eyewitness's affidavit, in the light most favorable to the plaintiff (see Santelises v. Town of Huntington, 124 A.D.3d 863, 865, 2 N.Y.S.3d 574 ), we conclude that he raised a triable issue of fact as to whether the defendants had probable cause to arrest, detain, and prosecute him. Specifically, the eyewitness's affidavit raised an issue of fact as to whether the police and the ADA coerced a false identification of the plaintiff or otherwise acted in bad faith (see Colon v. City of New York, 60 N.Y.2d at 82–83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 ; cf. Paulos v. City of New York, 122 A.D.3d at 817, 997 N.Y.S.2d 452 ).
The defendants also assert several alternative grounds for affirmance that the Supreme Court did not address because of its erroneous determination that the eyewitness's affidavit failed to raise a triable issue of fact regarding probable cause (see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ; Smith v. New York City Hous. Auth., 124 A.D.3d 625, 626, 1 N.Y.S.3d 296 ).
Contrary to the defendants' contention, in opposition to their prima facie showing, the plaintiff raised a triable issue of fact as to whether Detective Failla's evaluation of probable cause was objectively reasonable, thus precluding an award of summary judgment in Detective Failla's favor on the ground of qualified immunity (see Holland v. City of Poughkeepsie, 90 A.D.3d 841, 845–846, 935 N.Y.S.2d 583 ; Doyle v. Rondout Val. Cent. School Dist., 3 A.D.3d 669, 671, 770 N.Y.S.2d 480 ).
The defendants' contention that the state common-law causes of action alleging false arrest, false imprisonment, and malicious prosecution must be dismissed insofar as asserted against Detective Failla because the plaintiff failed to name him in the notice of claim is unavailing. A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality (see General Municipal Law § 50–e[1][a] ; Se Dae Yang v. New York City Health & Hosps. Corp., 140 A.D.3d 1051, 1052, 35 N.Y.S.3d 350 ). The purpose underlying the notice of claim requirement is to provide a municipality with sufficient information to enable it to promptly investigate the claim and ascertain its potential exposure to liability (see Brown v. City of New
York, 95 N.Y.2d 389, 393–394, 718 N.Y.S.2d 4, 740 N.E.2d 1078 ). General Municipal Law § 50–e(2) sets forth the criteria for the contents of a notice of claim. While we acknowledge a split in appellate authority on the issue, we have held that the plain language of General Municipal Law § 50–e(2) does not require a notice of claim to "[list] the names of the individuals who allegedly committed the wrongdoing" ( Blake v. City of New York, 148 A.D.3d at 1106, 51 N.Y.S.3d 540 ; compare Pierce v. Hickey, 129 A.D.3d 1287, 1289, 11 N.Y.S.3d 321, with Alvarez v. City of New York, 134 A.D.3d 599, 22 N.Y.S.3d 362, and Tannenbaum v. City of New York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4 ).
However, the defendants correctly contend that they were entitled to dismissal of the state common-law causes of action alleging false arrest and false imprisonment on the ground that they are time-barred. General Municipal Law § 50–i(1)(c) provides, in pertinent part, that no personal injury action shall be prosecuted or maintained against a city unless it is commenced within one year and 90 days after the happening of the event upon which the claim is based. Although causes of action to recover damages for intentional torts, such as false arrest and false imprisonment, are generally subject to a one-year period of limitations (see CPLR 215[3] ), intentional tort causes of action asserted against municipal defendants must be commenced within the one–year–and–90–day statute of limitations contained in General Municipal Law § 50–i, which "takes precedence over the one-year period of limitations provided for in CPLR 215" ( Estate of Adkins v. County of Nassau, 141 A.D.2d 603, 603, 529 N.Y.S.2d 524 ; see Bosone v. County of Suffolk, 274 A.D.2d 532, 533, 712 N.Y.S.2d 128 ; Wright v. City of Newburgh, 259 A.D.2d 485, 486, 686 N.Y.S.2d 74 ; see also Ruggiero v. Phillips, 292 A.D.2d 41, 44, 739 N.Y.S.2d 797 ). Here, the state common-law causes of action alleging false arrest and false imprisonment accrued upon the plaintiff's release from confinement at Rikers Island on December 11, 2009 (see Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 891, 6 N.Y.S.3d 78 ; Bellissimo v. Mitchell, 122 A.D.3d 560, 560, 995 N.Y.S.2d 603 ). The plaintiff did not file and serve his complaint until September 20, 2011. This was well beyond the one–year–and–90–day statute of limitations (see Bellissimo v. Mitchell, 122 A.D.3d at 560, 995 N.Y.S.2d 603 ; Bonanno v. City of Rye, 280 A.D.2d 630, 721 N.Y.S.2d 98 ; Smith v. City of New York, 388 F.Supp.2d 179, 184 [S.D.N.Y.] ; cf. Clark v. City of Ithaca, 235 A.D.2d 746, 652 N.Y.S.2d 819 ).
However, unlike the state common-law causes of action alleging false arrest and false imprisonment, the state common-law cause of action alleging malicious prosecution was not time-barred because the statute of limitations for that cause of action did not begin to run until the favorable termination of the underlying criminal proceeding on July 28, 2010 (see Williams v. CVS Pharmacy, Inc., 126 A.D.3d at 891, 6 N.Y.S.3d 78 ). The cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983 is not time-barred because the statute of limitations for a cause of action pursuant to 42 U.S.C. § 1983 is three years (see Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 ; Rimany v. Town of
Dover, 72 A.D.3d 918, 921, 904 N.Y.S.2d 422 ), and the cause of action "accrues when the plaintiff knows or has reason to know of the injury which is the basis of his or her action" ( Rimany v. Town of Dover, 72 A.D.3d at 921, 904 N.Y.S.2d 422 ; see Pearl v. City of Long Beach, 296 F.3d 76, 80 [2d Cir.] ; see also Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 ). Here, the causes of action alleging civil rights violations pursuant to 42 U.S.C. § 1983 accrued, at the earliest, on December 11, 2009, less than two years prior to the commencement of this action.
The defendants' contention that the plaintiff failed to file a timely notice of claim (see General Municipal Law § 50–e[1][a] ) is improperly raised for the first time on appeal, and therefore, is not properly before this Court (see Johnson v. City of New York, 148 A.D.3d 1126, 1127, 50 N.Y.S.3d 461 ; Robles v. Brooklyn Queens Nursing Home, Inc., 131 A.D.3d 1032, 1033, 16 N.Y.S.3d 275 ).
Accordingly, those branches of the defendants' motion which were for summary judgment dismissing the state common-law causes of action alleging false arrest and false imprisonment were properly granted, but on grounds different than those relied upon by the Supreme Court, and those branches which were for summary judgment dismissing the state common-law cause of action alleging malicious prosecution and the cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983 should have been denied.