Alexis v City of New York
Annotate this CaseDecided on July 16, 2007
Supreme Court, Kings County
Perezi Alexis, Plaintiff,
against
City of New York and THE NEW YORK POLICE DEPARTMENT and POLICE OFFICERS LAURA DeMAZZIE and JOHN DOES NOS. 1, 2 and 3, Defendants.
22136/02
Plaintiff was represented by Raphael F. Scotto, Esq. Defendants City of New York and the New York Police Department were represented by Christopher M. Bletsch, Esq. of the Corporation Counsel of the City of New York.
Jack M. Battaglia, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on Plaintiff's motion for an order, pursuant to a Decision and Order dated March 9, 2007, "striking paragraph 7 of the answer of the defendants," and for an order, pursuant to CPLR 3212, "granting summary judgment to the plaintiff":
-Notice of Motion
Affirmation in Support of Motion
Exhibits 1-4
-Affirmation in Opposition
Exhibits A-H
The Verified Complaint of plaintiff Perezi Alexis alleges three causes of action against the City of New York, the New York Police Department, and Police Officers Laura DeMazzie and John Does Nos. 1, 2 and 3. The First Cause of Action alleges false arrest, the Second Cause of Action alleges negligent retention, and the Third Cause of Action is understood by the parties as alleging malicious prosecution. All of the alleged causes of action arise from the arrest of Plaintiff on March 23, 2001, his detention until the next day, and his prosecution for a felony and traffic code violations.
The City has answered on its own behalf only, asserting among other Affirmative Defenses that the conduct of its police officers was "justified as being reasonably necessary, and were [*2]committed in good faith without malice and with probable cause." (See Answer, ¶ 7.) The officer sued as "Laura DeMazzie," whose actual name at the time was Sara Damizzi and is now Sara Tallaksen, was never served, nor has any other officer been served as a Doe defendant.
With a Decision and Order dated March 9, 2007, this Court determined a motion by Plaintiff for an order "striking the answer of the defendants (sic), precluding the defendants (sic) from calling any witness from testifying in the liability trial and granting summary judgment" to Plaintiff. (See Notice of Motion dated December 27, 2006.) In its Decision and Order, the Court noted that there had been virtually no discovery in the almost five years since the action was filed on June 10, 2002, and that it seemed from the history that the action was not a high priority for either party.
The City had failed to comply with disclosure orders dated February 26, 2003 and October 18, 2005. Plaintiff's inattention, on the other hand, resulted in the action being "marked off" three times. In compliance with a court order, Plaintiff filed his note of issue on November 8, 2006. This Court, in its March 9, 2007 Decision and Order, granted Plaintiff's motion only to the extent that the City was ordered to provide specified disclosure, no later than May 4, 2007, or have the Affirmative Defense alleged in paragraph 7 of its Answer striken.
Specifically, the City was ordered to "produce for examination officer Sara Damizzi, or the second officer who was involved in Plaintiff's arrest, or any other witness(es) the City intends to call at trial to testify on probable cause"; and to deliver copies of documents described in the February 26, 2003 disclosure order, including the "Arrest Report" and "On-line Booking Sheet," or provide an adequate explanation as to why it could not.
Contending that the City has failed to comply with the conditional order, Plaintiff now moves for an order striking the Affirmative Defense alleged in paragraph 7 of the Answer, and for summary judgment in its favor. Although not specified in the Notice of Motion, the rest of the moving papers make clear that Plaintiff is seeking summary judgment only on liability for false arrest and malicious prosecution.
The Court finds that the City did not timely comply with either aspect of the March 9 conditional order. As to the documents, the City did not comply until July 10, when it provided Plaintiff with a copy of the arrest report, the only document described in the 2003 disclosure order that was found in Criminal Court and NYPD records. The City maintains that it could not comply earlier because of Plaintiff's failure to provide an authorization for unsealing the appropriate files. The Court notes that there is no reference to a required authorization in the October 2005 disclosure order, and no evidence that it was specifically requested of Plaintiff before this Court's conditional order.
Highly more significant, however, is the City's failure to comply with the order to produce for examination before trial any witness that the City intended to call at trial in support of the alleged probable cause for the arrest. First, with respect to Officer Damizzi, the City advises that she is no longer employed by the NYPD, and that she has failed to respond to the City's efforts to [*3]communicate with her. The Court noted in its March 9 Decision and Order
that "[w]e are not told when [Officer Damizzi] left the City's employ, and, therefore, can only suspect that, had the City attempted to timely comply with the [2003 and 2005] disclosure
orders, she would have been available." The City has provided no further information in response to this motion.
The conditional order, moreover, did not limit the City to providing Officer Damizzi as its witness. Based upon pages from Officer Damizzi's memo book, which the City had at least since February 26, 2007 when it finally provided the pages to Plaintiff in compliance with the 2003 disclosure order, the City has identified two officers who apparently had some relationship to Plaintiff's arrest. A "P.O. Schwenk" was interviewed by counsel, but he says that he has no recollection of Plaintiff's arrest, and no longer has his memo book from 2001. A "Sgt. Fee" is apparently retired, and, although presumably receiving a City pension, no efforts to contact him are described.
The City appears to argue that it has not failed to comply with the March 9 conditional order because it has not identified "the second officer who was involved in Plaintiff's arrest." (See Affirmation in Opposition, ¶ 33.) According to counsel, "[t]he arrest paperwork does not mention any other officers involved, and the one officer listed in P.O. Damizzi's memo book who is still employed by the NYPD has no knowledge of this plaintiff or this arrest and does not have any memory of being involved in this incident." (Id.) In the absence, however, of any evidence to contradict Plaintiff's testimony that two officers were involved, one male and one female, and the appearance of two names in Officer Damizzi's memo book, the City's argument is disingenuous at best. Since it appears likely that Det. Schwenk was the second officer, despite his lack of recollection during a telephone conversation six years later (see id., ¶ 16), he should have been produced for examination. And Det. Schwenk's belief that Sgt. Fee is retired (see id.) is an insufficient basis for the City's failure to make any effort to locate him. In short, the Court disagrees that the City "has done everything in its power to identify and produce any officers involved in this arrest" (see id., ¶ 17.)
At oral argument, the City's counsel contended that the City had made adequate explanation for its failure to comply with the conditional order, and that at trial it could prove probable cause with the arrest report and pages from Officer Damizzi's memo book, by having them admitted into evidence as business or public records with the foundation testimony of a custodian. The short answer is that, if the City intended to offer such a witness at trial to testify on probable cause, that witness should have been produced for examination by Plaintiff no later than May 4 in compliance with the conditional order. In any event, as will appear, the evidentiary viability of the City's proposed probable cause showing is seriously questionable.
Upon the City's failure to comply with this Court's March 9 conditional order, the "conditional order became absolute." (See Lee v Arellano, 18 AD3d 620, 621 [2d Dept 2005].) "To avoid the adverse impact of the conditional order . . . , the [City] was required to demonstrate an excusable default and a meritorious defense." (See id.) Even if the Court were to find that the City [*4]has made sufficient excuse for its failure to comply with the conditional order, which it does not, the Court would still conclude, for the reasons articulated below, that the City has failed to demonstrate the merit of its defense of probable cause.
To the extent that Plaintiff's motion seeks summary judgment on liability on its causes of action for false arrest and malicious prosecution, it relies almost exclusively on Plaintiff's testimony at a hearing held pursuant to General Municipal Law § 50-h. Plaintiff testified that on March 23, 2001 he was driving a 1996 Lexus ES 300 recently purchased by his mother, when he was pulled over by two plainclothes police officers in an unmarked vehicle. Because he did not present to the officers documents satisfactory to them to establish the ownership and registration of the Lexus, he was arrested and imprisoned overnight. He was arraigned the next day, and charged with violation of Penal Law § 170.25, Criminal Possession of a Forged Instrument in the Second Degree, and two Vehicle and Traffic Law violations. After three additional court appearances, the charges were dismissed.
Plaintiff's testimony at the 50-h hearing is sufficient to establish prima facie that he is entitled to judgment as a matter of law on his cause of action for false arrest. "To establish a cause of action for false arrest, the plaintiff must show: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." (Gebbi v Gertz Div. of Allied Stores of NY, 94 AD2d 165, 169 [2d Dept 1983]; see also Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 458 [1975].) "Whenever there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful." (Id.) "[I]t is not necessary to allege want of probable cause . . . , the burden is on the defendant to prove the opposite." (Id.; see also Martinez v City of Schenectady, 97 NY2d at 85.) "Damages for false arrest are limited to the period between arrest and arraignment." (Rivera v City of New York, 40 AD3d 334, __ [1st Dept 2007].)
"Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty." (Id., at _ ; see also Smith v County of Nassau, 34 NY2d 18, 23-24 [1974].) "[O]nly probable cause existing at the time of the arrest will validate the arrest." (Broughton v State of New York, 37 NY2d at 458.) "[E]vidence of a subsequent arraignment or indictment is admissible as some proof of the presence of probable cause," but "evidence of a subsequent dismissal, acquittal or reversal on appeal would also be admissible to refute the affirmative defense of justification." (Id.)
Putting aside the striking of the City's affirmative defense of probable cause, and in further support of enforcement of the conditional order, the Court notes a paucity of admissible evidence to support a finding that there was probable cause for Plaintiff's arrest. The City points to the arrest report, which states: "At T/P/O deft was obs oper a motor veh, with a forged N.J. temp lic plate No. 967351K, and vehicle was not insured or registered (vehicle has two vin $ #'s." The arrest report is consistent with entries in Officer Damizzi's memo book suggesting that Plaintiff was arrested for a "forged NJ tag," "no ins./reg.", and "2 VIN #'s." [*5]
Neither the arrest report nor the pages from Officer Damizzi's memo book, however, are authenticated, certified, or otherwise rendered admissible in evidence as either a business record or public record. (See CPLR 4518 [a], [c].) Indeed, it may be that only Officer Damizzi can provide the foundation for admissibility of her memo book entries. (See Lodato v Greyhawk North America, LLC, 39 AD3d 494, 495 [2d Dept 2007].)
Perhaps more importantly, although an arrest record and memo book entries have been determined to be subject to disclosure in police misconduct cases (see Scott v County of Nassau, 42 Misc 2d 648, 650 [Sup Ct, Nassau County 1964]; Napier v City of New York, 19 Misc 2d 533, 534 [Sup Ct, Queens County 1959]), the Court has been unable to find any authority in New York supporting the admissibility of such documents as evidence of probable cause in the absence of any testimony by officers involved in the arrest. Courts in other states have questioned the reliability of arrest reports as evidence in police misconduct cases. (See Estate of Solomon v Shuell, 435 Mich 104, 132-33, 457 NW2d 669, 681-82 [Sup Ct 1990]; Ziemba v City of New Orleans, 411 So2d 697, 698-99 [La App 1982]; see also Cranwill v Donahue, 132 Ill App3d 873, 874-75, 478 NE2d 22, 23-24 [Ill App 1985].) The Federal Rules of Evidence preclude the admission in criminal cases of public records or reports of "matters observed by police officers and other law enforcement personnel." (See Federal Rule of Evidence 803 [8].)
In addition to these evidentiary hurdles, there is the conclusory nature of the cited entries in the arrest report and memo book. No factual basis is stated for any of the charges, including the most serious, relating to the "forged" temporary license plate. There is no reference, for example, to information obtained from the New York State Police Information Network computer. (See Moscatelli v City of Middletown, 252 AD2d 547, 547-48 [2d Dept 1998].) There is no basis on which to assess whether "a reasonably prudent person in like circumstances" would have believed Plaintiff guilty. (See Rivera v City of New York, 40 AD3d at __ .)
Other than the arrest report and memo book entries, all the City can point to as evidence of probable cause for Plaintiff's arrest is his testimony "that the charges were not dismissed . . . until the fourth [court] appearance, where he brought additional documentation that he did not have at the previous appearances." (See Affirmation in Opposition, ¶ 42 [emphasis in original].) The City argues, "If he did not have this paperwork at the time of his arrest, by his own testimony, the City had probable cause at the time of his arrest." (See id., ¶ 43.) But there is no evidence of the documentation that was presented to the arresting officer(s) at the scene, or of the documentation that was deemed by the court to warrant dismissal, or an explanation as to how any of it could have addressed the alleged "forged" temporary license plate that was the basis for the felony charge.
The City cannot and has not, therefore, provided evidence in admissible form sufficient to raise a triable issue and defeat Plaintiff's prima facie showing on his cause of action for false arrest. The elements of a cause of action for malicious prosecution are different, however, particularly as to probable cause, and Plaintiff fails to make a prima facie showing on that cause of action.
"To obtain recovery for malicious prosecution, a plaintiff must establish that a criminal [*6]proceeding was commenced, that it was terminated in favor of the accused, that it lacked
probable cause, and that the proceeding was brought out of malice." (Martinez v City of Schenectady, 97 NY2d at 84; see also Broughton v State of New York, 37 NY2d at 457.) In contrast to a cause of action for a warrantless arrest, where the police bear the burden of pleading and proving probable cause, the plaintiff asserting malicious prosecution bears the burden of establishing a lack of probable cause. Malice, in addition is a separate element of the cause of action, although "a jury may, but is not acquired to, infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding." (See Martin v City of Albany, 42 NY2d 13, 17-18 [1977].)
Here, Plaintiff produces no direct evidence of lack of probable cause or malice. His showing on these issues is essentially that "the dismissal [of the charges] is res judicata with regard to the existence of probable cause in this case." (See Affirmation and Memorandum of Law in Support of Motion, ¶ 10.) The contention is clearly incorrect as a matter of law, since lack of probable cause and malice are separate elements of the cause of action for malicious prosecution, in addition to a termination of the proceeding in the accused's favor, and under the circumstances here the contention is incorrect as a matter of fact. Like the City, Plaintiff fails to provide copies of any of the documents presented at the scene or those presented to the court when the case was dismissed. Plaintiff, moreover, ignores his several appearances in court when his documentation was deemed insufficient. The striking of the "Affirmative Defense" alleged in paragraph 7 of the City's Answer does not provide evidence available to satisfy Plaintiff's burden on this motion.
The Court notes, finally, that it has not overlooked or ignored the City's contentions that Plaintiff waived compliance with the 2003 and 2005 disclosure orders, and that its noncompliance with those orders or this Court's conditional order is not sufficiently willful and contumacious to warrant striking its Affirmative Defense. Those contentions are addressed in the March 9 Decision and Order or this one. Acceptance of the City's contentions would mean that there should be no consequence to its failure to comply with judicial orders, even though Plaintiff has been deprived of the opportunity to examine any witness who could testify to the probable cause for his arrest, detention and prosecution. The record on this and the previous motion allows no conclusion but that, had the City complied at the time with the 2003 and 2005 orders, there would be at least a transcript of the testimony of such a witness.
Plaintiff's motion is granted to the extent that the Affirmative Defense alleged in paragraph 7 of the City's Answer is deemed striken, and the City is determined to be liable to Plaintiff for false arrest; the motion is otherwise denied.
July 16, 2007____________________
Jack M. Battaglia
Justice, Supreme Court
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