Luna v City of New York

Luna v City of New York 2012 NY Slip Op 03371 Decided on May 1, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2012
Mazzarelli, J.P., Acosta, Renwick, Richter, JJ.
7507 308665/08

[*1]Hector Luna, Plaintiff-Respondent, The

v

City of New York, et al., Defendants-Appellants.




Michael A. Cardozo, Corporation Counsel, New York
(Mordecai Newman of counsel), for appellants.
Alexander J. Wulwick, New York, for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered March 21, 2011, which denied defendants' motion to dismiss the complaint or, in the alternative, for summary judgment dismissing the action, unanimously reversed, on the law, without costs, and the complaint dismissed in its entirety. The Clerk is directed to enter judgment accordingly.

The City defendants established their entitlement to summary judgment dismissing the claims for false arrest, false imprisonment, and malicious prosecution. The testimony of the police officers that plaintiff was positively identified by three witnesses based on a photo array, as well as the police records memorializing the identifications, established that plaintiff's arrest was supported by probable cause, and plaintiff's
opposition failed to raise a triable issue of fact (see Mendoza v City of New York, 90 AD3d 453 [2011]; Paredes v City of New York, 73 AD3d 465 [2010]). Plaintiff's remaining tort claims and claims pursuant to 42 USC § 1983 should also have been dismissed
(see Leftenant v City of New York, 70 AD3d 596, 597 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 1, 2012

CLERK