Gardner v City of New York

[*1] Gardner v City of New York 2006 NY Slip Op 51602(U) [12 Misc 3d 1197(A)] Decided on February 24, 2006 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2006
Supreme Court, Bronx County

Wayne Gardner, Plaintiff

against

City of New York; Det. Patrick Ahearn Of Bronx Narcotics Division, and Assistant District Attorney Matthew White, Defendants



24864/2004



APPEARANCES:

For Plaintiff

John R. DePaola Esq.

Papa DePaola and Brounstein

42-40 Bell Boulevard, Bayside, NY 11361

For Defendants

Deborah L. Rubino, Assistant Corporation Counsel

198 East 161st Street, Bronx, NY 10451

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues multiple defendants to recover damages sustained from his detention before and after criminal charges against him in Bronx County were dismissed. Defendant Bronx County Assistant District Attorney Matthew White moves to dismiss or for summary judgment dismissing the complaint against him, C.P.L.R. §§ 3211(a) and 3212(b), on the grounds of prosecutorial immunity, C.P.L.R. § 3211(a)(7), and a documentary defense. C.P.L.R. § 3211(a)(1). For the reasons explained below, the court denies defendant White's motion.

II.APPLICABLE STANDARDS

Upon a motion to dismiss the complaint based on C.P.L.R. § 3211(a)(1) or (7), the court may not rely on facts alleged by defendant to defeat the complaint unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations in the complaint. Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); Leon v. Martinez, 84 NY2d 83, 87-88 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 AD2d 128 (1st Dep't 2001); Ladenburg Thalmann & Co. v. Tim's Amusements, 275 AD2d 243, 246 (1st Dep't 2000). Dismissal of the complaint pursuant to C.P.L.R. § 3211(a)(1) requires documentary evidence that conclusively resolves all factual issues and establishes a defense as a matter of law. Baystone Equities v. Gerel Corp., 305 AD2d 260 (1st Dep't 2003); Robinson v. Robinson, 303 AD2d 234, 235 (1st Dep't 2003); Well v. Rambam, 300 AD2d 580, 581 (2d Dep't 2002); Sung v. Kyung Ip Hong, 254 AD2d 271, 272 (2d Dep't 1998). The court may dismiss a complaint pursuant to C.P.L.R. § 3211(a)(7) only if it completely fails to state a claim. Frank v. DaimlerChrysler Corp., 292 AD2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 AD2d 180, 183 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Goshen v. Mutual Life [*2]Ins. Co. of NY, 98 NY2d at 326; Cron v. Hargro Fabrics, 91 NY2d 362, 366 (1998); Sterling Fifth Assocs. v. Carpentille Corp., 9 AD3d 261 (1st Dep't 2004).

To obtain summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). If defendant satisfies this standard, the burden shifts to plaintiff to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Darby & Darby v. VSI Intl., 95 NY2d 308, 315 (2000); Judith M. v. Sisters of Charity Hosp., 93 NY2d 932, 933-34 (1999). In evaluating the evidence for purposes of defendant's motion, the court must accept plaintiff's version of the facts as true and construe the evidence in the light most favorable to plaintiff. J.E. v. Beth Israel Hosp., 295 AD2d 281, 283 (1st Dep't 2002); Cruz v. New York City Hous. Auth., 291 AD2d 223, 224 (1st Dep't 2002); Camadeo v. Leeds, 290 AD2d 355 (1st Dep't 2002); Maldonado v. Metropolitan Life Ins. Co., 289 AD2d 176 (1st Dep't 2001).

III.DEFENDANT WHITE'S DEFENSES TO LIABILITY

Assistant District Attorney White seeks dismissal of the complaint against him because documentary evidence shows plaintiff's claims against White lack merit, and he is absolutely immune from liability. Plaintiff contends that the complaint pleads a claim against White, from which he is not absolutely immune, for plaintiff's incarceration from the dismissal of the criminal action December 12, 2003, until his ultimate release from custody December 24, 2003.

White presents a transcript of the court proceedings dismissing the criminal action against plaintiff. At those proceedings, Assistant District Attorney Christopher McCormack, who appeared for White, the assigned Assistant District Attorney, advised the court the Grand Jury had dismissed the charges against plaintiff, moved for dismissal by the court, and asked that a "cut slip" be issued. Aff. of Deborah L. Rubino, Ex. C at 4. The court granted the motion, sealed the court file, and ordered: "Cut slip will be issued." Id. This evidence, however, fails to demonstrate whether White had a duty to follow up with that dismissal after the court granted McCormack's motion to dismiss and assure plaintiff's release or whether White or anyone on his behalf carried out that duty. The court's mandate to order the release of a person against whom a Grand Jury dismisses charges, C.P.L. § 190.75(2), does not address what duty White may have had. Thus White fails to present documentary evidence definitively establishing that plaintiff's claims against him lack merit. C.P.L.R. § 3211(a)(1). Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 (1st Dep't 2004); IMO Indus. v. Anderson Kill & Olick, 267 AD2d 10, 11 (1st Dep't 1999); Mayerhoff v. Timenides, 269 AD2d 369, 370 (2d Dep't 2000).

White further contends that the complaint fails to state a claim against him because he is protected by prosecutorial immunity. Absolute immunity shields a prosecutor when his acts involve judicial or quasi-judicial discretion. Arteaga v. State of New York, 72 NY2d 212, 216 (1988). In those instances, a prosecutor is absolutely immune from liability for civil claims arising from a criminal prosecution. Drakeford v. City of New York, 6 AD3d 302, 303 (1st Dep't 2004); Akande v. City of New York, 275 AD2d 671, 672 (1st Dep't 2000); Rodrigues v. City of New York, 193 AD2d 79, 86 (1st Dep't 1993); Covillion v. Town of New Windsor, 123 AD2d 763, 764 (2d Dep't 1986).

Only qualified immunity applies, however, when a prosecutor is not acting in that capacity, but instead is performing an investigative or administrative function. Hirschfeld v. City of New York, 253 AD2d 53, 59 (1st Dep't 1999); Johnson v. Kings County Dist. Attorney's Off., 308 AD2d 278, 285 (2d Dep't 2003). To determine whether a prosecutor's actions are protected by absolute or qualified immunity, the court must analyze the prosecutor's "functions and duties" and scope of discretion. Arteaga v. State of New York, 72 NY2d at 216.

The complaint alleges omissions by White only after dismissal of the criminal action against plaintiff, Rodrigues v. City of New York, 193 AD2d at 85, rather than during the course of the criminal prosecution. Hirschfeld v. City of New York, 253 AD2d at 59; Johnson v. Kings [*3]County Dist. Attorney's Off., 308 AD2d at 285. Since absolute immunity would not shield a prosecutor's unlawful acts in this instance, Arteaga v. State of New York, 72 NY2d at 221; Rodrigues v. City of New York, 193 AD2d at 86, and White presents no evidence that qualified immunity completely shields him as a matter of law from carrying out a duty to assure plaintiff's release after the dismissal of the criminal charges, dismissal of this action against White at this stage is unwarranted. C.P.L.R. §§ 3211(a)(7), 3212(b). Neither defendant White nor Assistant District Attorney McCormack has been deposed, to disclose if any actions were taken to assure plaintiff's release, nor anyone from the Bronx County District Attorney's Office, to disclose the Assistant District Attorneys' responsibilities. Given how critical this evidence is to plaintiff's claim against White and to White's entitlement to at least qualified immunity on these facts, the court denies White's motion whether treated as a motion to dismiss, C.P.L.R. § 3211(d); Peterson v. Spartan Ind., 33 NY2d 463, 466 (1974); Vasquez v. Heidelberg Harris, 265 AD2d 225 (1st Dep't 1999); Cerchia v. V.A. Mesa, 191 AD2d 377, 378 (1st Dep't 1993); Brown v. Rochester Gen. Hosp., 292 AD2d 855, 856 (4th Dep't 2002), or for summary judgment. C.P.L.R. § 3212(f); Billy v. Consolidated Mach. Tool Corp., 51 NY2d 152, 163-64 (1980); Fulton v. Allstate Ins. Co., 14 AD3d 380, 381 (1st Dep't 2005); Lewis v. Safety Disposal Sys. of Pa., Inc., 12 AD3d 324, 325 (1st Dep't 2004); DeCintio v. Lawrence Hosp., 299 AD2d 165, 166 (1st Dep't 2002).

DATED: February 24, 2006

_____________________________

LUCY BILLINGS, J.S.C.