L.B. v D.H.

[*1] L.B. v D.H. 2012 NY Slip Op 50478(U) Decided on February 22, 2012 Supreme Court, New York County Gesmer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2012
Supreme Court, New York County

L.B., Plaintiff,

against

D.H., Defendant.



304723/08



Counsel for Plaintiff: Anthony M. Bramante, Brooklyn, New York

Counsel for Defendant: Francis X. Young, Young and Bartlett, LLP, White Plains, New York

Ellen Gesmer, J.

This is a divorce action into which a tort action (the Tort Action), originally brought in Westchester County by defendant D.H. (Husband) against plaintiff L.B. (Wife), was consolidated by order of this court dated July 20, 2010. The Wife moves for summary judgment dismissing the remaining two causes of action in the Tort Action. The Husband opposes the motion.

FACTS

The background facts of this matter are set forth in the order of this court dated February 7, 2011, and will not be repeated here, except as relevant to the instant motion.

On January 14, 2009, the Westchester County Family Court issued mutual temporary orders of protection directing each party to refrain from committing a family offense against the other (the Family Court TOPs).

It is undisputed that, as a result of a call from the Wife, three police officers were sent to the parties' former marital residence on April 15, 2009. The officers spoke separately to each of the parties (Transcript of deposition of Officer A.N. [A.N. EBT], 9/20/11 at 8:15-10:6). Officer A.N. , who completed and signed the incident report, spoke to the Husband (A.N. EBT, 9/20/11 at 14:9-16:11). Both Officer A.N. and the supervising officer, Sergeant R. , interviewed the Wife separately, compared the information they had each received from her, and compared the information received from her and received from the Husband (A.N. EBT, 9/20/11 at 35:4-21). They determined that what the Wife had told each of them was internally consistent (A.N. EBT, 9/20/11 at 42:4-18). They also determined that her description of the Husband having shoved her during an argument, causing her to lose her footing and fall on the landing of the stairway, which resulted in an abrasion on her elbow and fear for herself and her son, was consistent with what they observed (A.N. EBT, 9/20/11 at 19:16-20:10; 29:15-30:4; 38:5-8). They determined that the Husband had violated the Family Court TOP by committing a family offense, and arrested him (A.N. EBT, 9/20/11 at 18:5-22; 45:13-18; Transcript of Husband's deposition [H EBT], 7/11/11 at 57:10-20). The officers arrested the Husband based on their consideration of the totality of the circumstances (A.N. EBT, 9/20/11 at 28:14-19), and the supervising officer's determination that a crime had been committed (id. at 39:13-16; 44:15-45:11), without any urging by the Wife to make an arrest (Id. at 31:24-32:7; 35:19-36:3; 39:10-23). The Husband never heard the Wife tell [*2]the police to arrest him (H EBT, 7/11/11 at 57:6-9, 58:9-17). That evening, the Husband was charged with criminal contempt of the Family Court TOP (A.N. EBT, 9/20/11 at 18:9-11). On April 15, 2009, the Scarsdale Village Court issued a temporary order of protection against the Husband directing him to stay away from the Wife, based on the charge of criminal contempt in the first degree of the Family Court TOP (Penal L §215.51) (the Criminal TOP).

On November 23, 2009, the criminal proceeding against the Husband was dismissed, and the Criminal TOP was vacated. By order dated April 27, 2009, all Westchester County Family Court proceedings, including the family offense petitions, were consolidated with this divorce action. On November 20, 2009, the parties, their attorneys, and counsel for the children entered into a stipulation, which was so-ordered by the court (the Stipulation), in which they agreed, inter alia, to this court issuing one-year mutual orders of protection directing the parties to: (1) stay away from each other's homes, except for picking up or dropping off the children curbside for visits; (2) refrain from communicating with each other, except for emergencies involving the children; and (3) refrain from committing family offenses. This court issued final orders of protection pursuant to the Stipulation on December 18, 2009. Each of those expired by their own terms on December 17, 2010.

The Complaint in the Tort Action, filed on April 13, 2010, originally set forth four causes of action for false imprisonment, malicious prosecution, intentional infliction of emotional distress, and larceny. The Husband later withdrew his causes of action for larceny and intentional infliction of emotional distress. The remaining causes of action, for false imprisonment and malicious prosecution, were the subject of a motion to dismiss by the Wife, which was denied without prejudice by order of this court dated February 7, 2011.

ANALYSIS

Summary judgment is governed by CPLR §3212, which provides in subsection (b) that the proponent of a motion for summary judgment must show that "...the cause of action...has no merit." Once a party seeking summary judgment makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), the burden shifts to the party opposing summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman, supra at 562). Although the party opposing summary judgment is entitled to the benefit of every favorable inference that may be drawn from the pleadings, affidavits, and competing contentions of the parties (see Myers v Fir Cab Corp., 64 NY2d 806 [1985]), he also has the responsibility to "lay bare and reveal his proofs," demonstrating the viability of his claim by evidentiary proof in admissible form (Di Sabato v Soffes, 9 AD2d 297 [1st Dept 1959]; see also Zuckerman, supra at 562).

The elements of a cause of action for malicious prosecution are: (1) a criminal proceeding commenced against the plaintiff; (2) the absence of probable cause for its commencement; (3) a termination of the proceeding favorable to plaintiff; and (4) actual malice (see Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000], citing Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]).

The elements of a cause of action for false imprisonment are: (1) defendant instigated or [*3]participated in plaintiff's confinement; (2) plaintiff was conscious of, and did not consent to, his confinement; and (3) the confinement was not otherwise privileged (Martinez v City of Schenectady, 97 NY2d 78, 85 [2001], citing Broughton, supra at 458).

It is settled law in this state that a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

(Du Chateu v Metro-North Commuter R. Co., 253 AD2d 128, 130 [1st Dept 1999]; see also Levy v Grandone, 14 AD3d 660 [2d Dept 2005]; Donnelly v Nicotra, 55 AD3d 868 [2d Dept 2008]). Additionally, neither identifying plaintiff as the perpetrator of a crime, signing the summons or testifying at trial gives rise to tort liability (Du Chateu,14 AD3d at 131). Accordingly, probable cause to make the arrest is a complete defense to actions for false imprisonment and malicious prosecution (Broughton, supra; Gisondi v Town of Harrison, 72 NY2d 280 [1988]; Fortunato v City of New York, 63 AD3d 880 [2d Dept 2009]; Iorio v City of New York, 19 AD3d 452 [2d Dept 2005]; Quigley v City of Auburn, 267 AD2d 978, 979 [4th Dept 1999]). There is a rebuttable presumption that a warrantless arrest is unlawful (Smith v County of Nassau, 34 NY2d 18, 23 [1974]; Drayton v City of New York, 292 AD2d 182 [1st Dept 2002]), and the burden of proving justification for the arrest lies with the party instigating the arrest (Woodson v New York City Housing Auth., 10 NY2d 30, 33 [1961]). However, where, as here, the facts underlying the arrest are undisputed, the existence of probable cause to make the arrest is for the court to determine as a matter of law (Rawson v Leggett, 184 NY 504, 508 [1906]; Veras v Truth Verification Corp., 87 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 947 [1982]).

The gravamen of the Husband's causes of action for malicious prosecution and false arrest is his claim that the Wife falsely accused him of committing a family offense, and importuned the police to arrest him, which caused them to do so. However, I find that the Husband's arrest was made with probable cause, based on the undisputed facts, for three reasons. First, Officer A.N. testified at his deposition that the Wife did not insist that they arrest the Husband.

Second, Officer A.N.'s testimony makes it clear that the police arrested the Husband based on their determination made at the site, after considering the totality of the circumstances that there was probable cause to do so. In particular, they reviewed that the Family Court TOP and established that it was in effect; they interviewed both parties; and they observed the scene. Plaintiff's denial that he committed a crime, and even his later acquittal of the crime charged, as here, is irrelevant to the issue of whether there was probable cause for the arrest (Martinez, supra at 84-85; Quigley, supra at 979-980).[FN1]

Finally, the Husband testified that he never heard any conversations between the Wife [*4]and the police officers, and his claims that he was arrested at the Wife's insistence are based entirely on hearsay. He claimed at his deposition that a police officer told him that the Wife wanted him arrested, but did not remember which one told him this (H EBT, 7/11/11 at 58:18-59:1). While hearsay evidence of statements by an identified declarant in the form of a sworn affidavit can be sufficient to withstand a motion for summary judgment in certain circumstances (Schiffren v Kramer, 225 AD2d 757, 758 [2nd Dept 1996]), here, the Husband fails to identify anyone who will verify his allegations, fails to indicate how the person who allegedly told him of the Wife's statements acquired his or her knowledge, and fails to provide an affidavit by any such person. "Conclusory hearsay from unidentified sources is inadequate to defeat a motion for summary judgment" (Landisi v Beacon Community Dev. Agency, 180 AD2d 1000, 1002 [3d Dept 1992]; see also Polulia v Fidelity High Income Fund, 102 AD2d 720 [1st Dept 1984]; Siegel v Wank, 183 AD2d 158, 161 [3rd Dept 1992]). Furthermore, even if he could find a witness who would say that the Wife wanted him arrested, that would not establish that she overcame the free will and judgment of the officers to make an arrest (Du Chateu, supra; Levy v Grandone, supra; Donnelly, supra).

Since the Wife has shown that she has a complete defense to the Husband's remaining causes of action, and the Husband has failed to meet his burden to rebut the Wife's showing with evidence in admissible form raising issues of fact requiring a trial (see Zuckerman, 49 NY2d at 562; DiSabato v Soffes, 9 AD2d at 300), the motion for summary judgment dismissing the causes of action for false imprisonment and malicious prosecution is granted.

Accordingly it is hereby

ORDERED that the motion of plaintiff L.B. for summary judgment dismissing the only two remaining causes of action for false imprisonment and malicious prosecution in the tort Complaint filed by defendant D.H. , which matter was consolidated by this court with the parties' divorce action, is granted, and D.H.'s Tort Action is dismissed with costs and disbursements to L.B. as taxed by the Clerk upon submission of an appropriate bill of costs, and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the court.

Dated: February 22, 2012ENTER:

Hon. Ellen Gesmer, JSC Footnotes

Footnote 1:The Court of Appeals in Martinez also noted that "the absence of a conviction is not itself a favorable termination [for the purposes of malicious prosecution]. A termination is not favorable, for example, where a prosecution ends because of a compromise with the accused, or where the accused's own misconduct frustrates the prosecution's ability to proceed with the case" (Martinez, supra at 84).