O'Brien v Town of Yorktown
Annotate this CaseDecided on April 24, 2015
Supreme Court, Westchester County
John J. O'Brien, Plaintiff,
against
Town of Yorktown, TERRENCE MURPHY, COUNTY OF WESTCHESTER, ASHLEY ALIMONTI and John Does 1-10 being fictitious names of persons not known to plaintiff but who participated in the arrest imprisonment and prosecution of the plaintiff, Defendants.
56501-2013
Joan B. Lefkowitz, J.
The following papers (e-filed documents 69-81, 84-86) were read on (1) the E-filed motion by the defendant, Town of Yorktown, for an order granting summary judgment dismissing the complaint insofar as it asserts a cause of action against it; and (2) the cross-motion of plaintiff for an order granting leave to amend its notice of claim.
Notice of Motion, Affirmation (Exhibits A-F)
Memorandum of Law
Notice of Cross-Motion, Affirmation (Exhibits 1-6)
Memorandum of Law
Reply Affirmation (Town of Yorktown)
Memorandum of Law (Town of Yorktown)
Upon reading the foregoing papers it is
ORDERED the motion is granted and the complaint is dismissed insofar as it asserts a cause of action against the defendant, Town of Yorktown; and it is further
ORDERED the cross-motion is denied; and it is further
ORDERED the matter is scheduled for an appearance on May 19, 2015, at 9:15 a.m. in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, 111 Martin Luther King Boulevard, White Plains, New York, to schedule an inquest as to the defendant, Ashley Alimonti.
On April 28, 2012, the defendant, Ashley Alimonti, accused the plaintiff of twice groping her at a restaurant owned by the defendant, Terrence Murphy. Alimonti's mother called the police soon after the second incident. The police arrived and retained plaintiff in a nearby parking lot. Alimonti then identified plaintiff as her assailant. Upon Alimonti's identification of plaintiff the Town of Yorktown Police Department arrested plaintiff without a warrant and charged him with Forcible Touching in violation of Penal Law 130.52. The charges against the plaintiff were thereafter dismissed in the Town of Yorktown Justice Court.
Plaintiff commenced this action asserting a cause of action for false arrest against the defendants, Town of Yorktown and Alimonti; a cause of action for false imprisonment against the defendant, Town of Yorktown; a cause of action for negligence against the Town of Yorktown; a cause of action against for malicious prosecution against the defendants, Town of Yorktown, County of Westchester and Alimonti; and a cause of action for defamation against Murphy. By prior orders the court dismissed the action against the defendants, County of Westchester and Murphy, granted a default judgment against the defendant, Alimonti, and deferred the assessment of damages against her pending the disposition of the action against the other defendants.
Following the completion of discovery the defendant, Town of Yorktown, moves for an order granting it summary judgment dismissing the complaint against it.
The complaint alleges four causes of action against the Town of Yorktown: false arrest, false imprisonment, malicious prosecution and negligence.
"A plaintiff cannot prevail on causes of action to recover damages for false arrest, false imprisonment, and malicious prosecution against police officers if the police officers had probable cause to believe that the plaintiff committed the underlying crime. Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" (Iorio v City of New York, 19 AD3d 452, 454 (2d Dept 2005] [internal quotation marks and citations omitted]). "Although a witness's identification of a suspect generally may be sufficient to establish probable cause, failure to make further inquiry when a reasonable person would have done so may be evidence of lack of probable cause. The existence of absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the inferences to be drawn therefrom" (Fortunato v City of New York, 63 AD3d 880, 880 [2d Dept 2009] [internal quotation marks and citation omitted]). "[W]here the facts giving rise to the arrest are undisputed, whether or not the arrest was based on probable cause is for the court to decide as a matter of law" (Kramer v City of New York, 173 AD2d 155, 156 [1st Dept 1991]).
Here the defendant, Town of Yorktown, established as a matter of law that it had probable cause to arrest plaintiff by demonstrating that the defendant, Ashley Alimonti, identified plaintiff as the person who groped her in the restaurant. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's claim that Alimonti was an untrustworthy witness because she was intoxicated is unsupported by evidence in the record. Plaintiff testified at deposition that he did not know who had accused him of the crime. Accordingly, he had no evidence on which to base his opinion as to the state of Alimonti's sobriety. In any event, the affidavit of an investigating and arresting police officer states that Alimonti did not appear intoxicated. Finally, the police did not come into possession of the restaurant's surveillance video until the morning following plaintiff's arrest. Since the defendant, Town of Yorktown, established as a matter of law that its police officers had probable cause to arrest plaintiff, the causes of action against the Town of Yorktown alleging false arrest, false imprisonment and malicious prosecution are dismissed (Iorio, supra; Paulos v City of New York, 122 AD3d 815 [2d Dept 2014]; Okunubi v City of New York, 109 AD3d 888 [2d Dept 2013]; Rodgers v City of New York, 106 AD3d 1068 [2d Dept 2013]).
Plaintiff also alleges a cause of action for negligence against the defendant, Town of Yorktown, stating "[t]he Yorktown Police Department breached [its] duty by failing to release plaintiff from confinement when a $10,000 bail bond was tendered." The Town of Yorktown established its entitlement to judgment as a matter of law dismissing the negligence cause of action by demonstrating that it held plaintiff until he was arraigned that morning, that at arraignment the court set bail at $10,000 bond or $5,000 cash, and that plaintiff was released when plaintiff's father posted bail. In opposition, plaintiff failed to raise a triable issue of fact.
The cross-motion to amend the notice of claim is denied because the amended claim is without merit. The defendant, Town of Yorktown, established as a matter of law that it did not interfere with plaintiff's ability to obtain his release on bail.
E N T E R,
Dated: White Plains, New York
April 24, 2015_________________________________
HON. JOAN B. LEFKOWITZ, J.S.C.
Via E-filing to the attorneys of record
Via U.S. Mail to:
ASHLEY ALIMONTI
101 Cedar Hill Road
Wappingers Falls, NY 12590
ASHLEY ALIMONTI
8 Church Street, Apt. M
Carmel, NY 10512
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