Sylvester v City of New York

[*1] Sylvester v City of New York 2009 NY Slip Op 51193(U) [23 Misc 3d 1139(A)] Decided on June 4, 2009 Supreme Court, New York County Scarpulla, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2009
Supreme Court, New York County

Desrene Sylvester, Barbara Kelvin, and Dylan Kelvin, Plaintiffs,

against

The City of New York, Police Officer Charise Woods, Police Officers John/Jane Does No.1 Through #10, T.J. Maxx Dept. Store, and Kelvin Thames, Defendants.



106800/03



Appearances:

For Plaintiff :

The Law Office of Tina Kansas

By Tina Kansas

305 Broadway, Suite 305

New York, New York 10007

212-732-6282

For Defendants New York City and

Police Officer Charise Woods:

Corporation Counsel

By William A. Grey

100 Church Street, 4th Floor

New York, New York 10007

212-788-0303

Saliann Scarpulla, J.

In this action to recover damages for a personal injury flowing from an alleged false arrest, plaintiffs move pursuant to CPLR 3126 for preclusion of certain unnamed witnesses from testifying at trial, and to strike defendants' answer. Defendants the City of New York and police officer Charisse Woods (hereinafter collectively "the City") cross-move for summary judgment dismissing the complaint in its entirety pursuant to CPLR 3212.

In their complaint, plaintiffs Desrene Sylvester ("Sylvester") and Barbara Kelvin ("Kelvin") allege that on April 12, 2002, they went shopping in Manhattan together with [*2]Kelvin's four-year-old son Dylan. After plaintiffs exited the T.J. Maxx store at the corner of the 18th Street and Sixth Avenue and stepped on the down escalator, several security guards from T.J. Maxx stopped and detained plaintiffs on the balcony of the lower floor.

The T.J. Maxx security guards demanded that plaintiffs return to the store, but Sylvester and Kelvin refused to go anywhere without first calling the police. Shortly, two male police officers arrived and asked plaintiffs to go back in the store. Neither plaintiffs nor the City know the identity of these police officers. When plaintiffs went back into the T.J. Maxx store, they were taken to the detention room. The security guards removed the contents of their bags and spoke to the police officers.

Two additional female police officers then arrived, police officers Charisse Woods and Catherine Weissheier. These officers talked to both plaintiffs and the security guards and reviewed the proffered receipts. After taking down a written statement from Roy Seal, a security guard (City Affirm. Ex. G), officers Woods and Weissheier arrested plaintiffs.

Plaintiffs were held in police custody overnight and released next morning following arraignment. Each was charged with criminal possession of stolen property in the fifth degree under Penal Law §165.40, and with petit larceny under §155.25, both class A misdemeanors. After several appearances in court, the prosecution dismissed the criminal charges on the merits, and the record was subsequently sealed.

Plaintiffs commenced this action on April 10, 2003. In their complaint, plaintiffs allege causes of action for assault and battery, false arrest and imprisonment, violation of plaintiffs' civil rights under 42 U.S.C. § 1983, malicious prosecution, intentional infliction of emotional distress, grossly negligent infliction of emotional distress, negligent hiring or retention of unfit police officers, negligent training, instruction and supervision of police officers, and negligent establishment of procedures, rules and regulations for police officers and police employees. The City answered the complaint and denied all material allegations.The City now moves to dismiss the action. The City alleges that Woods and Weissheier had probable cause for arresting Kelvin and Sylvester and, therefore, may not be held liable for false arrest or malicious prosecution. The City further alleges that plaintiffs have failed to plead or submit evidence to raise an issue of fact concerning the remaining claims in the complaint.

Discussion

Under CPLR 3212[b], summary judgment "shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." To warrant a court's directing judgment as a matter of law, it must clearly appear that no material issue is presented for trial. Daliendo v Johnson, 147 AD2d 312, 317 (2nd Dep't 1989).

The crux of plaintiffs' complaint against the City is the causes of action for false arrest/imprisonment and malicious prosecution. Claims of false imprisonment and malicious prosecution do not lie where the defendants had probable cause for the [*3]plaintiff's arrest. See e.g., Grant v Barnes & Noble, Inc., 284 AD2d 238, 239 (1st Dep't 2001). Probable cause involves such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that plaintiff had committed a crime for which he or she was arrested. Smith v County of Nassau, 34 NY2d 18, 24 (1974).

Courts have consistently held that probable cause exists where the police rely on the information given to them by an identified citizen. See Grant v. Barnes & Noble, Inc. 284 AD2d 238 (police had probable cause for arrest when relying on eyewitness identification of plaintiff as crime perpetrator); Akande v City of New York 275 AD2d 671 (1st Dep't 2000) (police had probable cause to arrest when relying on information supplied by a customs agent); Kramer v City of New York, 173 AD2d 155, 156 (1st Dep't 1991) (probable cause for arrest existed when police relied upon statements made by complaining witness that plaintiffs stole her purse); Ben-Zaken v City of New Rochelle, 273 AD2d 426 (2d Dep't 2000); (police had probable cause for arrest when relying on witness statements that plaintiff took property without permission).

Here, the City has shown that the police arrested Sylvester and Kelvin based on the information provided to them by T.J. Maxx's security guards. At the time of the arrest on April 12, 2002, T.J. Maxx security guard Troy R. Seal made out a written statement in which he stated that he personally saw Sylvester take T.J. Maxx merchandise and leave the store with it without paying. This witness statement provided the police with probable cause as a matter of law for the subsequent arrest.

The mere fact that the first two police officers did not speak with plaintiffs at the time of the initial detention does not undermine probable cause or indicate bad faith. It is undisputed that the first two male police officers were not the arresting officers and simply detained plaintiffs and took them to a back room in the store. The two subsequent female police officers, Woods and Weissheier, did all of the investigative groundwork, which included talking to plaintiffs, looking at their receipts, and taking Seal's statement. Plaintiffs have not offered any precedent to support a proposition that probable cause can be developed only by the officers that first appear at the scene.

Plaintiffs argue that because Weissheier and/or Woods did not look carefully enough at all of plaintiffs receipts (which were not from T.J. Maxx) they arrested plaintiffs without probable cause. Although at the time of the arrest and prosecution, there may have been some conflicting evidence of plaintiff's guilt, investigative imprecision does not negate the existence of probable cause. See Akande v City of New York, 275 AD2d 671, 672 (1st Dep't 2000) (finding probable cause where the arrest was based on credible information, supplied by the U.S. Customs, that a mailed packaged tested positive for narcotics, which later turned out to be incorrect); see also Morel v Crimaldi, 256 AD2d 188, 189 (1st Dep't 1998) (granting summary judgment where GEICO acted routinely and truthfully in responding to a police inquiry that the insurer was the true owner of the vehicle and that no one else had been authorized to operate it, although the plaintiff had a claim of right to the vehicle); Kracht v Town of Newburgh, [*4]245 AD2d 424, 425 (1st Dep't 1997) (granting summary judgment where the police reasonably relied on the mistaken written complaint that plaintiff was a trespasser). Moreover, the existence of some exonerating evidence at the time of the arrest and prosecution does not negate the existence of probable cause because the conflicting evidence is relevant only to the issue of whether guilt beyond a reasonable doubt could have been proven at a criminal trial. Agront v City of New York, 294 AD2d 189, 190 (1st Dep't 2002); see also Brown v City of New York, 92 AD2d 15, 19-20 (1st Dep't 1983).

Finally, the fact that the criminal complaint against plaintiffs was later dismissed does not raise an issue of fact as to the existence of probable cause. In Akande, Morel, and Kracht, summary judgment was granted in the face of dismissal by the prosecution of all criminal charges, because the standard of probable cause is much less demanding than the burden of proof in a criminal trial. See Agront v City of New York, 294 AD2d 189, 190 (1st Dep't 2002).

As the City has shown in its submissions that the police officers had probable cause as a matter of law for plaintiffs' arrest and prosecution, the City is entitled to summary judgment dismissing plaintiffs' second and fourth causes of action for false arrest/imprisonment and malicious prosecution.

In their first cause of action plaintiffs' allege a claim for assault and battery. This cause of action is based solely upon the allegations that "Sylvester and B. Kelvin were physically restrained, put into tightly adjusted handcuffs, and forcibly taken to patrol cars."

To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact. To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent.

While the existence of probable cause to effect an arrest does not bar causes of action sounding in assault and battery based on excessive force, there must be some evidence of force exercised in excess of what is inherent in an arrest. See Freeman v Port Authority of New York and New Jersey, 243 AD2d 409, 410-11 (1st Dep't 1997). Here, plaintiffs do not allege any force beyond what is normally attendant to an arrest. Nor do plaintiffs, in their depositions or in their affidavits submitted in opposition to the summary judgment motion, raise a material issue of fact showing that the police officers threatened the use or actually used excessive force in the execution of plaintiffs' arrest and subsequent detention. Accordingly, plaintiffs' first cause of action for assault and battery against the City is also dismissed.

Plaintiffs third cause of action for violations of their civil rights under 42 U.S.C. § 1983 is based entirely on their false arrest/imprisonment, malicious prosecution, assault, and battery causes of action. As the Court is dismissing these causes of action, the third cause of action for violation of plaintiffs's civil rights must also be dismissed. [*5]

Plaintiffs also fail to make out their fifth and sixth causes for intentional and grossly negligent infliction of emotional distress. The tort of intentional infliction of emotional distress requires the following four elements: (1) extreme and outrageous conduct, measured by the reasonable bounds of decency tolerated by society, (2) intent to cause or disregard of a substantial probability of causing severe emotional distress, (3) a causal connection between the conduct and injury; and (4) severe emotional distress. Howell v New York Post Co., Inc., 81 NY2d 115, 121 (1993). Public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity. See Wyllie v District Attorney of County of Kings et al., 2 AD3d 714, 720 (2nd Dep't 2003). In addition, plaintiffs have not submitted any evidence to raise a triable issue as to whether the police officers' conduct was sufficiently extreme or outrageous. The undisputed evidence shows that the police officers acted upon an eyewitness statement in arresting plaintiffs for theft.The emotional distress plaintiffs experienced is inherent in any police arrest and detention and does not sustain a claim of intentional infliction of emotional distress. See Wyllie, 2 AD3d at 720.Negligent infliction of emotional distress is premised upon a breach of duty which unreasonably endangers the plaintiff's physical safety. See Bovsun v Sanperi, 61 NY2d 219, 236-39 (1984). Because the City did not owe plaintiffs any special duty, this cause of action fails as a matter of law. See Lauer v City of New York, 95 NY2d 95, 113 (2000) (holding that absent a special relationship, no duty is owed); see also Scheuer v City of New York, 10 AD3d 272, 274 (1st Dep't 2004).Plaintiffs' remaining causes of action against the City sound in negligent hiring and training (the ninth, tenth and eleventh causes of action). The Court dismisses these causes of action as well because they are predicated solely upon police actions incidental to, and inherent in, a lawful arrest and prosecution based upon probable cause. Moreover, plaintiffs have not raised an issue of fact as to whether City police officers in general, or the police officers effectuating their arrests, were improperly or negligently hired or trained.

The City has shown that it may not be held liable to plaintiffs on any of the causes of action alleged, therefore the Court dismisses the complaint in its entirety against the City. Because the Court grants the City's cross-motion for summary judgment, plaintiffs' motion to exclude from trial the testimony of two initial unidentified police officers and to strike the City's answer is denied as moot.

In accordance with the foregoing, it is

ORDERED that the cross-motion of defendants the City of New York and Police Officer Charise Woods to dismiss the complaint against them is granted and the Clerk of the Court is directed to sever and dismiss the action and any cross-claims pled against defendants City of New York and Police Officer Charise Woods; and it is further

ORDERED that plaintiffs' motion to exclude from trial the testimony of two initial unidentified police officers and to strike the City's answer is denied as moot; and it is further [*6]

ORDERED that the action shall continue under this index number against defendants T.J. Maxx Department Store and Kelvin Thames; and it is further

ORDERED that defendant City of New York shall serve a copy of this order within twenty (20) days upon the Trial Support Office (60 Centre Street, Room 158) and, upon such

service, the Trial Support Office shall reassign this action to a non-City General IAS Part inasmuch as the City is no longer a defendant.

This constitutes the decision and order of the Court.

Dated:New York, New York

June 4, 2009

E N T E R:



Hon. Saliann Scarpulla, J.S.C.