Opinion
2019–13292 Index No. 4173/10
04-19-2023
James WILLIAMS, respondent, v. COUNTY OF SUFFOLK, et al., appellants, et al., defendants.
Dennis M. Cohen, County Attorney, Hauppauge, NY (Diana T. Bishop of counsel), for appellants County of Suffolk, Suffolk County Police Department, and Everett P. Wehr, Jr. Joseph A. Solow, Hauppauge, NY, for appellant Lisa Molinelli. MargolinBesunder LLP, Islandia, NY (Linda U. Margolin of counsel), for respondent.
Dennis M. Cohen, County Attorney, Hauppauge, NY (Diana T. Bishop of counsel), for appellants County of Suffolk, Suffolk County Police Department, and Everett P. Wehr, Jr.
Joseph A. Solow, Hauppauge, NY, for appellant Lisa Molinelli.
MargolinBesunder LLP, Islandia, NY (Linda U. Margolin of counsel), for respondent.
MARK C. DILLON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for false arrest, malicious prosecution, and civil rights violations pursuant to 42 USC § 1983, the defendants County of Suffolk, Suffolk County Police Department, and Everett P. Wehr, Jr., appeal, and the defendant Lisa Molinelli separately appeals, from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated October 1, 2019. The order, insofar as appealed from by the defendants County of Suffolk, Suffolk County Police Department, and Everett P. Wehr, Jr., denied their motion for summary judgment dismissing the complaint insofar as asserted against them. The order, insofar as appealed from by the defendant Lisa Molinelli, in effect, denied her request to search the record and award her summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
On December 15, 2008, the plaintiff was arrested and charged with assault in the second degree in connection with an altercation which occurred on the night of Halloween 2008 outside of the home of the defendant Lisa Molinelli, when multiple assailants allegedly assaulted Molinelli's husband. Molinelli identified the plaintiff as one of the assailants from a photograph in her brother's high school yearbook, and subsequently identified the plaintiff in a photo array and signed a written statement to that effect. The charge against the plaintiff was subsequently dismissed on motion of the Suffolk County District Attorney's Office, after the plaintiff provided an alibi for the night in question.
The plaintiff commenced this action against Molinelli and the defendants County of Suffolk, Suffolk County Police Department, and Police Officer Everett P. Wehr, Jr. (hereinafter collectively the County defendants), to recover damages for false arrest and civil rights violations pursuant to 42 USC § 1983 against the County defendants and for malicious prosecution against all the defendants. The County defendants moved for summary judgment dismissing the complaint insofar as asserted against them, arguing, among other things, that Wehr had probable cause to arrest the plaintiff based on Molinelli's identification, and that the plaintiff's claims against them were barred by absolute governmental immunity. Molinelli submitted papers requesting that the Supreme Court search the record and award her summary judgment dismissing the complaint insofar as asserted against her, on the ground that the underlying criminal proceeding did not terminate in the plaintiff's favor on a basis not inconsistent with innocence. In an order dated October 1, 2019, the court, among other things, denied the County defendants’ motion and, in effect, denied Molinelli's request. The County defendants appeal, and Molinelli separately appeals. "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 Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283, 532 N.Y.S.2d 234, 528 N.E.2d 157 ; Ball v. Miller, 164 A.D.3d 728, 729, 83 N.Y.S.3d 169 ), "including causes of action asserted pursuant to 42 USC § 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 ; see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759–762, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; Williams v. City of New York, 153 A.D.3d 1301, 1303, 62 N.Y.S.3d 401 ). Where, as here, an arrest is made without a warrant, a presumption arises that it was unlawful, and the defendant has the burden of proving justification (see Broughton v. State of New York, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; Cayruth v. City of Mount Vernon, 188 A.D.3d 1139, 1140, 132 N.Y.S.3d 851 ). "Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" ( De Lourdes Torres v. Jones, 26 N.Y.3d at 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 [internal quotation marks omitted]; see Jones v. City of New York, 206 A.D.3d 635, 638, 169 N.Y.S.3d 662 ). "The existence or absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest" ( MacDonald v. Town of Greenburgh, 112 A.D.3d 586, 586–587, 976 N.Y.S.2d 189 ; see Petrychenko v. Solovey, 99 A.D.3d 777, 780, 952 N.Y.S.2d 575 ).
"As a general rule, information from an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest" ( Petrychenko v. Solovey, 99 A.D.3d at 780, 952 N.Y.S.2d 575 [internal quotation marks omitted]; see Silverstein v. New York City Police Dept., 167 A.D.3d 961, 963, 90 N.Y.S.3d 230 ; Batten v. City of New York, 133 A.D.3d 803, 805, 20 N.Y.S.3d 160 ). "Indeed, probable cause is established ‘absent materially impeaching circumstances,’ where ‘the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator’ " ( Jones v. City of New York, 206 A.D.3d at 638, 169 N.Y.S.3d 662, quoting Medina v. City of New York, 102 A.D.3d 101, 104, 953 N.Y.S.2d 43 ; see Rapuzzi v. City of New York, 186 A.D.3d 1548, 1549, 131 N.Y.S.3d 76 ). "The question is whether the police are aware of materially impeaching circumstances or grounds for questioning the complainant's credibility" ( Medina v. City of New York, 102 A.D.3d at 104, 953 N.Y.S.2d 43 [internal quotation marks omitted]). "[T]he failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause" ( Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 ; see Fortunato v. City of New York, 63 A.D.3d 880, 880, 882 N.Y.S.2d 195 ; Fausto v. City of New York, 17 A.D.3d 520, 521–522, 793 N.Y.S.2d 165 ).
Here, the County defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that Molinelli identified the plaintiff in a photo array as the individual who allegedly hit her husband in the head with a full beer can (see Jones v. City of New York, 206 A.D.3d at 639, 169 N.Y.S.3d 662 ; Berry v. City of New York, 191 A.D.3d 589, 589, 143 N.Y.S.3d 34 ). However, in opposition, the plaintiff submitted a transcript of the deposition testimony of one of the people involved in the altercation, in which that witness recanted his prior written statement to the police that the plaintiff was present during the altercation and further testified that such information had been provided to him by Wehr during an interrogation. The witness also acknowledged while testifying that he had sent a text message to the plaintiff in which he stated that he had told Wehr that the plaintiff was "not even there and had no involvement at all." Viewing the evidence in the light most favorable to the plaintiff (see De Lourdes Torres v. Jones, 26 N.Y.3d at 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 ), this evidence raised a triable issue of fact as to whether Wehr was aware of "materially impeaching circumstances" which would cause a reasonable person to make further inquiry before arresting the plaintiff ( Medina v. City of New York, 102 A.D.3d at 104, 953 N.Y.S.2d 43 [internal quotation marks omitted]; see Fortunato v. City of New York, 63 A.D.3d at 880, 882 N.Y.S.2d 195 ; Fausto v. City of New York, 17 A.D.3d at 521–522, 793 N.Y.S.2d 165 ; Carlton v. Nassau County Police Dept., 306 A.D.2d 365, 366, 761 N.Y.S.2d 98 ). Although Wehr disputed the account of the witness's interrogation, this merely presented an issue of credibility which could not be resolved on a motion for summary judgment (see Webster v. City of New York, 181 A.D.3d 756, 757–758, 117 N.Y.S.3d 860 ).
Contrary to the County defendants’ contention, the plaintiff's claims against them are not barred by the absolute governmental immunity applicable to certain negligence claims against a municipality (see Jones v. State of New York, 33 N.Y.2d 275, 279–280, 352 N.Y.S.2d 169, 307 N.E.2d 236 ; Jones v. City of New York, 206 A.D.3d at 639, 169 N.Y.S.3d 662 ; Price v. City of New York, 172 A.D.3d 625, 628, 103 N.Y.S.3d 31 ; cf. Kovit v. Estate of Hallums, 4 N.Y.3d 499, 506, 797 N.Y.S.2d 20, 829 N.E.2d 1188 ; Farrago v. County of Suffolk, 151 A.D.3d 935, 936, 54 N.Y.S.3d 168 ).
Accordingly, the Supreme Court properly denied the County defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.
"[A] court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court" ( Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 ). As Molinelli's request that the Supreme Court search the record and award her summary judgment dismissing the complaint insofar as asserted against her was based upon an issue that was not a subject of the motion before the court, the Supreme Court properly, in effect, denied Molinelli's request for such relief (see Zhigue v. Lexington Landmark Props., LLC, 183 A.D.3d 854, 855–856, 124 N.Y.S.3d 391 ; Galasso, Langione & Botter, LLP v. Galasso, 176 A.D.3d 1184, 1185, 109 N.Y.S.3d 660 ).
DILLON, J.P., RIVERA, MALTESE and VOUTSINAS, JJ., concur.