Miller v County of Nassau

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Miller v County of Nassau 2012 NY Slip Op 30765(U) March 18, 2012 Sup Ct, Nassau County Docket Number: 2444/09 Judge: Antonio I. Brandveen Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ..................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANDVEEN 1. S. C. TRIAL / IAS PART 29 MARK H. MILLER NASSAU COUNTY Plaintiff Index No. 2444/09 against Motion Sequence No. 001 002 003 THE COUNTY OF NASSAU and THE NASSAU COUNTY POLICE DEPARTMENT Defendants. The following papers having been read on this motion: Notice of Motion , Affidavits , & Exhibits Answering Affidavits Replying Affidavits Briefs: Plaintiffs / Petitioner 1. 2. 3 s. . Defendant' s / Respondent's The defendants County of Nassau and the Nassau County Police Deparment move , in motion sequence one , pursuant to CPLR 312 4 and 3 \26 to dismiss the complaint for the plaintiffs failure to provide discovery for over two years , or in the alternative to preclude the plaintiff from offering at trial any evidence concerning information requested by the defendants , and not provided by the plaintiff, or in the alternative pursuant to CPLR 3124 to compel the plaintiff to provide full and complete responses to the defendants ' discovery demands within 15 days and for the plaintiff to appear within 10 days for a deposition. The pro se plaintiff attorney opposes the motion. The Second Department holds: While the nature and degree of the penalty to be imposed on a motion pursuant to [* 2] CPLR 3126 is a matter of the Supreme Court' s discretion (see, Espinal v City of New York 264 AD2d 806; Soto v City of Long Beach , 197 AD2d 615 616), striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is wilful , contuacious , or in bad faith" Hil Farm v Reed 272 AD2d 282) 298 A.D.2d 446 , 748 N. S.2d 767 (2d Dept , 2002). Penafiel v. Puretz, (Birch This Court determines the defense meets its burden under CPLR 3124 and 3126 by showing the plaintiff failed to comply with the October 12 2010 preliminar conference order and stipulation discovery demands and compliance orders and that noncompliance by the plaintiff was wilful contuacious and in bad faith. The plaintiff fails to present a reasonable excuse for the noncompliance. The Cour finds the plaintiff has not complied with discovery demands and orders. Moreover , the Court determines the plaintiff has not supplied a verified supplemental bil of particulars required by the October 12 2010 preliminary conference order and stipulation , and he has not shown a reasonable excuse for that noncompliance. The Court can consider and determine the parties ' summary judgment motions without the discovery and the verified supplemental bil of particulars. The plaintiff moves , in motion sequence two , pursuant to CPLR 3112 (e) for partial summary judgment onliabilty regarding the first cause of action claiming false imprisonment and false arrest , and to set the matter down for an inquest. The plaintiff contends there are no triable issues of material facts. The defense opposes this plaintiff motion. The defendants cross move , in motion sequence three , pursuant to CPLR 3112 (e) for summary judgment on the ground there is no triable issue of fact. The plaintiff opposes this defense cross motion. The underlying action seeks to recover damages for false arest and false imprisonment arising from a February 11 2008 incident. The parties proffer a February 8 , 2008 temporary order Page 2 of 9 [* 3] of protection issued under Nassau County Family Court docket number 0- 01364- 08 in a family offense proceeding entitled Teresa Miler against Mark H. Miler , the plaintiff in this instant action. A Family Court Judge entered that temporar order of protection on a Family Court Act Article 8 petition fied that same day. The order temporar order of protection , which was effective until February 13 2008 , ordered Mark H. Miler to stay away from Teresa Miler wherever she may be except for visitation , curbside pickup and drop off with police assistance , Mark H. Miler to stay away from Teresa Miler wherever she may be except for visitation , until 5 P. M. on Friday, February 8 , 2008 until Sunday, February 10 2008 , curbside pickup and drop off with police assistance and refrain from assault , stalking, harassment , aggravated harassment , menacing, reckless endangerment , disorderly conduct , intimidation, threats or any criminal offense against Teresa Miler. The Family Cour Judge advised Mark H. Miler in Cour of the issuance and contents of the order, and personally served Mark H. Miler with that February 8 2008 temporary order of protection in Court. The temporary order of protection states The Family Cour Act provides that presentation of a copy of this order of protection to any police officer or peace officer acting pursuant to his or her special duties shall authorize , and sometimes require , such offcer to arrest a person who is alleged to have violated its terms and to bring him or her before the cour to face penalties authorized by law. The plaintiff proffers an October 11 , 2010 verified bil of particulars. It states the plaintiff was arrested on February 11 2008, at approximately 8:30 A.M. , at the southwest corner of Camp Avenue and Merrick Avenue , Merrick New York. The plaintiff states, in an August 15 , 2011 affdavit , he went there , as a routine matter , to pick up his children s school assignments from the main office of the Camp Avenue School. The defendants proffer the police domestic incident report of Police Officer Vincent E. Polera , who responded to the scene , and Police Sergeant Page 3 of 9 [* 4] reviewed Officer Polera s report that same day. Officer Polera reported he spoke to Teresa Miler a teacher who gave him the February 8 , 2008 temporar order of protection , and Mark H. Miler at the scene , and obtained statements from both parties. Offcer Polera checked the registry, and found the February 8 , 2008 temporary order of protection issued under Nassau County Family Cour docket number 0- 01364- 08 for Mark H. Miler to stay away from Teresa Miler. Offcer Polera concluded he had probable cause to arrest Mark H. Miler for a violation of Penal Law 9 215. 50 (3), Criminal Contempt , and placed Mark H. ' Miler into custody for a violation February 8 , 2008 temporar order of protection. The defendants also of the proffer a September 2011 affidavit by Officer Polera, who details the incident he observed following a radio call from police communication , to wit 911 to respond to a domestic incident at Camp Avenue School which is located in the First Precinct in Nassau County. He also states a second patrol car operated Officer Costello also responded to the scene , and both offcers made several phone calls to the Records Bureau to verify the validity of the February 8 , 2008 temporary order of protection. The defendants also proffer a February 11 , 2008 supporting deposition regarding the incident signed by Teresa Miler , the February 11 , 2008 , 11 :58 A.M. computerized police case report generated from Officer Polera and the plaintiffs May 6 , 2008 notice of claim to the defendants. The Second Department holds: It is well-settled that in the absence of any concrete indication of criminality, a police officer may approach a private citizen on the street for the purpose of investigation if he can point to specific and articulable facts which warrant the (People v. DeBour 40 N. Y.2d 210 , 223 , 386 N. Y.S.2d 375 , 352 N. intrusion 562; see also, People v. Carrasquilo 54 N. 2d 248 252-253 445 N. Y.S.2d 97 429 N. 2d 775; People v. Howard 50 N. 2d 583 , 430 N. Y.S.2d 578 , 408 N. 449 U.S. 1023 , 101 S. Ct. 590 66 LEd.2d 484) 908 , cert. denied People v. Tollver 145 A.D. 2d 660 , 662, 536 N. Y.S. 2d 483 (2d Dept , 1988). The Court of Appeals stated: Page 4 of 9 [* 5] In passing on whether there was probable cause for an arrest , we consistently have made it plain that the basis for such a belief must not only be reasonable , but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or (People v. De Bour 40 N. Y.2d 210 216 386 N. innocence wil not suffice 375 352 N. 2d 562 supra; People v. Corrado 22 N. Y.2d 308 292 N. S.2d 648 239 N. E.2d 526; La Fave Street Encounters " and the Constitution: Terr, , 73-75). In making such a Sibron, Peters , and Beyond , 67 Mich. L.Rev. , we must also bear in mind that " (i)n dealing with probable cause * * * judgment we deal with probabilties. These are not technical; they are ,the factual and practical considerations of everyday life on which reasonable and prudent men, not legal 338 U. S. 160 , 175 69 S. Ct. 1302 technicians , act" (Brinegar v. United States, 1310 , 93 L.Ed. 1879). People v. Carrasquilo 54 N. Y.2d 248 , 254 , 429 N. E.2d 775 (1981). The Second Departent also holds: "A statement of a complainant , an identified citizen, is assumed to have veracity and is sufficient to People v. Boykin 187 A.D.2d 661 590 N.Y.S. Sanders 239 A.D. 2d 528 , 658 N.Y.S. 2d 958; 261; People v. Cotton 143 A.D.2d 680 , 532 N. 1245- 1246 904 N. (see Peoplev. establis? probable cause for arrest 2d 911" (People v. Read 74 A.D.3d 1245 S.2d 147 (2d Dept , 2010)). The Cour of Appeals stated: In enacting Family Court Act 9 168 , the Legislature intended to encourage police involvement in domestic matters , an area in which the police traditionally have (see, e.g., Bruno v Codd 47 NY2d 582 590; exhibited a reluctance to intervene Besharov , Practice Commentar, McKinney s Cons Laws of NY , Book 29A Family Ct Act 9 168 , pp 131- 132)... By its terms , section 168 provides that a certificate of protection " shall constitute authority" for a peace officer to take into custody one who reasonably appears to have violated the order. As such , it broadens the circumstances under which a peace officer may take a person into custody beyond those enumerated in Article 140 of the Criminal Procedure Law supra. at p 13l)... The order evinces a (Besharov , Practice Commentary, preincident legislative and judicial determination that its holder should be accorded a reasonable degree of protection from a particular individual. It is presumptive evidence that the individual whose conduct is proscribed has already been found by a cour to be a dangerous or violent person and that violations of the order s terms should be treated seriously. Sorichetti v City of New York 65 N. Y.2d The defendants establish a prima facie 461 469- 470 492 N. 2d 591 (1985). showing they are entitled to summary judgment as a matter of law regarding false arrest and false imprisonment. There is no requirement the violation of the Page 5 of 9 [* 6] February 8, 2008 temporary order of protection be wilful or intentional for an arrest and detention under Family Court Act 9 168. In opposition, the plaintiff fails to show there are any triable issues of fact regarding false arrest or unlawfl imprisonment. Moreover , the plaintiff does not allege any (see Baker v. City of facts sufficient to rise to the level of false arrest or unlawfl,1mprisonment New York 44 A.D.3d 977 , 845 N. Y.S. 2d 799 (2d Dept, 2007)). The defense shows evidence Offcer Polera conducted an inquiry call. Both parties voluntarily spoke with the offcer. Mark H. Miler in response to the 911 The defendants show reasonable cause for s arrest existed , under the circumstances known to Officer Polera and the information Officer Polera had before making that arrest. Those things were such as to lead a reasonably prudent person to believe a crime had been committed , and Mark H. Miler was the person who committed it. The defendants show Offcer Polera executed a lawfl arrest based on the totality of the circumstances , to wit the information given to him by the complainant , an identified citizen , and the valid February 8 , 2008 temporary order of protection with Mark H. Miler present there in violation of it (see CPL 9 140. 10; see also generally Dunaway v. New York 442 U. S. 200 , 99 S. Ct. 2248 , 60 L.Ed. 2d 824 (1979)). Since the arrest was made with probable cause it was lawfl even though Mark H. Miler was not convicted for a violation of Penal Law 9 215. 50 (3), Criminal Contempt for which he was arested (see Moscatell v City of Middletown 252 A.D. 2d 547 , 675 N. Y.S.2d 639 (2d Dept , 1998)). The Court finds the motion and ' cross motion can be determined notwithstanding the plaintiff s contention probable cause must be plead as an affirmative defense. The defense answer alleged it was a lawfl arrest which pleads probable cause for consideration by the Cour (see Rizzi v Sussman 9 A. 2d 961 , 195 N. S.2d 672 (2d Dept , 1959)). The defense shows evidence the defendants did not falsely imprisoned Mark H. Miler. Page 6 of 9 [* 7] ithout the right to do so confine Mark The defense shows Officer Polera did not intentionally and H. Miler. The defense shows Mark H. Miler was detained in a reasonable manner and for no more than a reasonable period of time to permit investigation. . There is no allegation by the plaintiff of any physical force nor excessive or uneasonable force other than a vague claim of " unwanted physical contact." Penal Law 9 35. 30 (1) provides: A police officer or a peace officer , in the course of effecting or attempting to effect an arrest , or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense , may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest. Moreover , the defendants make aprimafacie showing they are entitled to summar judgment as a matter of law regarding the second cause of action for assault. Because the plaintiff fails to produce evidence in admissible form to demonstrate the existence of an issue of fact as to assault and he offers no explanation for his failure to come forward with such evidence , the defense motion for summar judgment should have been granted. In opposition , the plaintiff fails to show there are any triable issues of fact regarding assault. Moreover , the plaintiff does not allege any (see Baker v. City of New York 44 A. D . 3d 977 , 845 facts sufficient to rise to the level of assault Y.S.2d 799 (2d Dept , 2007)). The defendants make a prima facie showing they are entitled to summary judgment as a matter of law regarding the third cause of action for negligence. The Appellate Division held in an analogous claim: Contrary to the plaintiffs contention , we further find that the complaint fails to state a legally cognizable cause of action for recovery sounding in negligence. At bar the plaintiff seeks damages for the injury occasioned to him because of the defendants ' negligence in filing a second paternity petition against him , which allegedly resulted in his wrongful arrest and detention. However, a plaintiff seeking damages for an injury resulting from a wrongful arrest and detention "' may not recover under broad general principles of negligence ... but must proceed by way of Page 7 of 9 [* 8] (Stalteri v County of see also, Monroe 107 AD2d 1071 citing Boose v City of Rochester 71 AD2d 59; 198 AD2d 408). Moreover , as a matter of public Russo v Vilage of Port Chester policy, there is no cause of action in the State of New York sounding in negligent Coyne v State of prosecution (see, Pandolfo v u'A. Cable Sys. 171 AD2d 1013; New York 120 AD2d 769, 770) the traditional remedies of false arrest and imprisonment'" 204 A. Secard v Department of Social Servs. of County of Nassau,' 2d 425 426- 427 612 Y.S. 2d 167 (2d Dept , 1994). (see New York State does not recognize negligence claims predicated on a criminal prosecution . Santoro v. Town of Smithtown 40 A. 3d 736 835 N. Y.S.2d 658 (2d Dept , 2007. )). In opposition, the plaintiff fails to show a triable issue of fact. Moreover , the plaintiff does not allege any facts suffcient to rise to the level of negligence 977 845 N. (see Baker v. City of New York 44 A. S.2d 799 (2d Dept , 2007)). The defendants make a prima facie showing they are entitled to summary judgment as a matter oflaw regarding the fourth cause of action for denial of due process. The Appellate Division holds: A cause of action under 42 USC 9 1983 exists where the evidence demonstrates that an individual has suffered a deprivation of rights as a result of an official policy 80 NY2d 752), and must (Carattini v Grinker 178AD2d 307 Iv denied or custom (Alfaro Motors v Ward 814 F2d 883 be pleaded with specific allegations of fact 887). Plaintiffs broad and conc1usory statements , coupled with his failure to allege facts of the alleged offending conduct , are insuffcient to state a claim under section 1983. Moreover , the amended complaint does not plead facts showing that a specific custom or policy instituted by defendants caused civil rights violations , and (Carattini vGrinker, supra. thus his cause of action fails for that reason alone. Pang Hung Leung v City of New York 216 A. 2d to , 11 627 N. S.2d 369(lst Dept , 1995). In opposition , the plaintiff fails to show a triable issue of fact. Moreover , the plaintiff does not allege any facts sufficient to rise to the level of a denial of due process (see Baker v. City of New York 44 A.D. 3d 977 , 845 N. Y.S. 2d 799 (2d Dept , 2007)). In addition , this cause of action is' ambiguous because the plaintiff alleges the arrest , imprisonment and prosecution were based on an order of protection which had never been served upon him , however the plaintiffs prosecution and Page 8 of 9 [* 9] imprisonment was based upon a Nassau County District Court information not a Family Cour order of protection. Accordingly, the defense motion , in motion sequence one , seeking discovery is now moot and is denied. The plaintiff motion , in motion sequence two , for parial summary judgment is denied. The defendants ' cross motion , in motion sequence three is granted , in motion sequence three , for summary judgment is granted and the complaint is dismissed. So ordered. Dated: March 18, 2012 ENTER: J. S. C. ENTF; FINAL DISPOSITION MAR 2 2 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE Page 9 of 9

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