Rondon v Rondon
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Rondon v Rondon 2012 NY Slip Op 31703(U) June 20, 2012 Supreme Court, New York County Docket Number: 105291/99 Judge: Barbara Jaffe 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] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 4 INDEX NO. Index Number : 105291/1999 RONDON, ORLANDO vs. CITY OF NEW YORK SEQUENCE NUMBER : 002 MOTION DATE MOTION SEQ. NO. DISMISS MOTION CAL. NO. - .. were read on this motion to/for The followlng papere, numbered 1 to PAPER5 NUMBERED Notlce of Motion/ Order to Show Cause Answering Affidavits - Affldavlta - Exhlblts ... - Exhlbhs 2 3 Rsplylng Affidrvtta Cbss-Motion: I 0 Yes e4 No Upon the foregoing papers, it is ordered that this motlon FILED JUN 26 2012 RECEIVED JUN 2 8 2012 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 SUBMIT ORDER/JUDG. 0 REFERENCE 0 SETTLE ORDER /JUDG. [* 2] Index No. 105291199 Plaintiff, Motion date.: Motion seq. no.: 3/20/12 00 1 -against- DECISION AIVD ORDER THE CITY OF NEW YORK, NEW Y O N CITY POLICE DEPARTMENT, DETECTIVE HAROLD HERNANDEZ, INDIVIDUALLY AND I HIS N OFFICIAL CAPACITY AND VARIOUS OTHER UNNAMED MEMBERS OF THE NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, NEW YORK COUNTY CLERK'S OFFICE For plaintiff: Richard K.Harshman, Esq. Richard K. Hershman, PLLC 49 W. 37'St., ThF1. New York, NY 10018 212-391-7721 For defendants: Michael Nacchio, ACC Michael A. Cardozo Corporation Counsel 100 Church St., ' F1. 4 New York, NY 10007 2 12-788-0627 By notice of motion dated November 10,2011, defendants City of New 31 ,New York City Police Department (NYPD), and Detective Harold Hernandez (collectively, City) move %,v4 pursuant to CPLR 32 1 1(a)(7) andor 32 12 for an order summarily dismissing the complaint against them. Plaintiff opposes. Jo&2 4ps %04 s dF %q ' In this action, plaintiff sues defendants for false mestlfalse imprisonment and malicious prosecution based on the following undisputed facts: 1) 2) On February 26, 1998, three individuals invaded the apartment of Dr. and Mrs. Kessler; On February 27, 1998, during a photo identification, the Kesslers identified plaintiff as one of the perpetrators; sopp Zp D OIpZ co(-'eypA - c/ [* 3] 3) 4) 5) On March 5 , 1998, plaintiff was arrested and the Kesslers identified him in a lineup; On March 9, 1998, the Kesslers recanted and withdrew their identification of plaintiff before they testified before the grand jury; and On March 20, 1998, plaintiff was released from custody. (Affirmation of Richard K. Hershman, Esq., dated Feb. 2,2012 [Hershman Aff.]). On March 11, 1998, plaintiffs criminal defense attorney waived plaintiffs rights to be released timely pursuant to Criminal Procedure Law 180.80 until March 20, 1998. (Affirmation of Andrew Lucas, ACC, dated Oct. 2,201 1, Exh. H3 [Lucas Aff.]). At an examination before trial held on March 3 1,201 1 Hernandez testified, as pertinent , here, that after the Kesslers s photo identification of plaintiff, it was Hernandez s professional opinion that based on plaintiffs prior crimes, he did not fit the modus operandi of someone who would have committed the type of crime at issue, but he didn t have any information to prove or disprove that [plaintiffl w s not involved in this crime, that a search conducted of plaintiff s a apartment did not yield any results, and that he told his supervisor that his gut feeling told him \ that plaintiff was not involved in the crime but his supervisor reminded him that they had two positive identifications by the Kesslers. As nothing further developed between plaintiffs arrest and the grand jury proceeding, Hernandez told the assigned District Attorney (ADA) of his feeling that plaintiff was not involved. The ADA then met wt the Kesslers who told her that ih they were pretty sure that plaintiff was not the perpetrator. The ADA then told Hernandez to continue the investigation and try to gather other leads and they would wait for results of the fingerprints taken of plaintiff. No leads were developed and the case was closed. (Lucas Aff., Exh. G). As plaintiff concedes that there was probable cause for his arrest based on the Kesslers s 2 [* 4] identification of him and that his false arrest claim must thus be dismissed, the only issue remaining is whether plaintiff may maintain his false imprisonment and malicious prosecution claims. Plaintiff contends that once the Kesslers recanted and as Hernandez s investigation led him to believe that plaintiff was innocent, there was no probable cause to continue his imprisonment or prosecution, and alleges that Hernandez andor the NYPD acted with malice or bad faith in failing to inform the DA of plaintiffs possible innocence. (Hershman Me). City argues that they may not be held liable for plaintiffs continued incarceration after the Kesslers recanted as it had no power to release plaintiff &om custody and Hernandez told the ADA the results of his investigation and thereafter had no duty or liability related to the ADA s decision to keep plaintiff in custody. City also observes that plaintiff consented to his continued incarceration until March 20, 1998 by waiving his 180.80 rights, and that plaintiff failed to name Hernandez personally in his notice of claim, thus mandating the dismissal of his state law claims against Hernandez. City asserts that plaintiff s federal claims against it must be dismissed absent \ any allegation or proof that it engaged in a pattern or practice that deprived plaintiff of his constitutional rights, and that his federal claims against Hernandez must be dismissed as he is entitled to qualified immunity. (Lucas Aff.). Absent any evidence that Hernandez lied to the ADA about the results of his investigation or withheld any relevant information, neither he nor City may be held liable for the ADA s decision to continue plaintiff s prosecution and thus his claim for malicious prosecution must be dismissed. (See Romeo Y County o Oneida, 135 AD2d 1099 [4*Dept 19871 [City not liable for f plaintiffs continued incarceration as the police have no power to release a suspect who is confined and charged pursuant to lawful process and could only be held liable if police officer 3 [* 5] made false statements to or failed to completely disclose facts to district attorney]; see also Le$enant v City ofNew York,70 AD3d 596 [ l H Dept 20101 [District Attorney's actions could not be imputed to City]; Roche v ViZ. ofTarrytown, 309 AD2d 842 [2d Dept 20031 [as county's officers only arrested plaintiff and district attorney, rather than county, prosecuted him, malicious prosecution claim against county dismissed]). Moreover, having consented to his continued incarceration for the additional 11 days, plaintiff's claim for false imprisonment fails. (See Romeo, 135 AD2d at 1099 [as plaintiff's criminal attorney failed to request release or dismissal and plaintiff consented to three-week delay in holding preliminary hearing, county could not be held liable for plaintiff's continued confinement]). In any event, as plaintiff conceded that there was probable cause for his arrest, his malicious prosecution and false imprisonment claims may not be maintained. (Leftenant, 70 AD3d at 596; Batista v City o New York, 15 AD3d 304 [ l m Dept 20051). I also observe that f plaintiff has not opposed City's arguments pertaining to the dismissal of his federal claims or his h state law claims against Hernandez. Accordingly, it is hereby ORDERED, that defendants City of New York, New York City Police Department, and Detective Harold Hernandez's motion for summary judgment is granted and the complaint is dismissed w t costs and disbursements to defendants, and the clerk is directed to enter judgment ih accordingly. FILED ENTER: 26 2M2 NEWYORK COUNTY CLERK'S OFFICE ' DATED: ~- June 20,2012 New York, New York 4 ; Barbara Jaffe, JS
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