Zweifach v City of New York

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Zweifach v City of New York 2011 NY Slip Op 33133(U) December 1, 2011 Supreme Court, New York County Docket Number: 115896/08 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. SCANNED ON 121512011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YQRK COUNTY The following papers, numbered 1 t o were read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause .- Affidavits .. Answering Affidavits - Exhibits - Exhibits - --- ... ~ c v) Y 2 0 2 w K Q Replying Affidavits C ross-M otion : &-?.fl No Upon the foregoing papers, It Is ordered that this motion DE6 05 201% NEW YOIjk COUNTY CLERKS OFFICE J.S.C. Fy FINAL DISPOSITION appropriate: I DONOTPOST Check one: Check if SUBMIT ORDER/JUDG. NON-hNA~~fSPOSlTlON r7 REFERENCE 0 SETTLE ORDER /JUDG. [* 2] Index No. 115896/08 Plaintiff, Motion Subm.: Motion Seq. No.: 9/13/11 002 -against- DECISION & ORDER CITY OF NEW YOKK, For City: NEW YORK 1,ynn M. I x o p o l d , CLERK'S OFFICE ~ ~ Michael A. Cardozo Corporation Counsel 100 Church St. Ncw York, NY 10007 2 12-442-0398 For plaintiff: Ronald Safiiicr, Esq. 110 Wall St., 1 l t hF1. New York, NY 10005 2 12-6 19-4030 By notice of motion datcd May 27, 201 1, plaintiff movcs pursuant to CPLR 3212 lor an order granting hiin summary judgment as 10 liahility and scheduling an immediate trial on damages. City opposes and, by notice of cross motion dated June 24,201 1, moves pursuant to CPLR 32 12 for an order suiiiinarily dismissing the complaint against it. I. I3ACKC;ROUND On August 16, 2008, plaintiff was arrestcd and charged with possessing marijuana, which may be disposcd by an adjournment in contemplation of dismissal (AC'D) pursuant to Criminal Procedure Law 5 170.56. (Affirmation of Ronald Saffner, Esq., dated May 27,201 1 [Saffner Aft.]). On April 17, 2008, a New York City Police Departmcnt (NYPD) sergcant filled out a Fugitive Alfidavit, stating therein that plaintiff had been charged in New Jersey with violating probation and forging an instrument and that a warrant had been issued against hiin there; the [* 3] affidavit sets forth thc name and telephone number o f a contact person in New Jcrsey. (Saffner Aff., Exh. ¬3). The warrant is dated December 10, 2003 and provides that a Ruben Zweifach, living at 21 10 Arthur Avenue, Bronx, New York, violated probation as ordered by the Superior Court in Bergeii County, New Jerscy. (Saffner Aft., Exh. A). When plaintiflwas arraigned on April 17, 2008, plaintiff's attorney requested an ACD at which point the Assistant District Attorney (ADA) stated that plaintiff had a fugitive warrant from New Jerscy. The court lheii issued an ACD for plaintiffs marijuana charge but upon plaintiffs execution of an extradition waiver, remanded him to custody until August30,2008. (Affirmation of Lynn M. Leopold, ACC, datcd June 24,201 1 [Leopold Aff.], Gxh. H). On April 29, 2008, plaintifl was released from custody. (Affidavit of Sanmiguel Zweifach, dated May 27, 20 11). On May 29,2008, plaintiff scrved City with a notice of claim in which he asserted a claim for false imprisonment on the ground that he had not been released from custody aftcr completion of a pending criminal case and was retained in custody for 13 days without legal basis. (Leopold Aff., Exh. A). On Septcniber 25, 2008, plaintiff testified at a 50-h hearing, as pci-tinent hcre, that after his arrest his attorney infornied him that he would be offered an ACD but thal when he appeared before the criminal court judge, he was told that he was going to be held in custody pursuant to the New Jersey warrant. Plaintiff told his attorney that a mistake had been made, but his attorney advised him to sign an extradition waiver in order to bc released from custody earlier. On April 30, 2008, when plaintiff again appeared before the judge, an ADA told the judge that a mistake had been made and thc warrant did not apply to plaintiff. ( I d , Exh. E. ) 2 [* 4] On or about October 12, 2008, plaintiff served City with his summons and complaint, in which he alleged claiiiis for negligence and violations of his state and federal civil and coiistitutional rights. (Id,,Exh. C). On or about Decernbcr 26, 2008, City served its answer. ( I d , Exh. D). At an cxaniination before trial held on January 13, 2010, Edward Beurnier, a NYI D dctective, testificd that 011 August 16, 2008 he arrested plaintiff for posscssioii of marijuana, a R misdeincanor. He did not check to see if any warrants had been issued for plaintiff as plaintifl s arrest was a standard misdemeanor arrest and it was not standard opcrating procedure to check for warrants in such a situation. (Id,,Exh. G). 11. CON1 ENTIONLTS Plaintiff alleges that City negligently failed to ascertain or invcstigate whether the warrant had been issued agaiiist hini, asserting that it is clear froin thc face of the warrant that it referred to someone elsc. (Saffner Aff.). City contcnds that as the decision to remand plaintiff to custody for the warrant was made by the criminal court judge and/or District Attorney s ofGce aiid not by any City employee, it cannot be hcld liable for false imprisonment. It also denies that there is a claim for iicgligeiit investigation uiidcr New York Statc law or that plaintiff may inaintaiii such a claim absent asserting saine in his noticc of claim, and asscrts that plaintill s federal claims are conclusory and insufficient. (Leopold Aff,), In opposition, plaintiff maintains that the NYPD was required to verify whethcr a warrant had been issued against hini and failed to do so, and observes that the judge s decision to rcrnand hiin was based upoil NYPD s hilure. Plaintiff also c l a i m that the allegations in his notice of 3 [* 5] claim sufficiently set Cortli his claim against City. (Affirmation of Roiiald Saffner, Esq., dated July 18,201 1). In reply, City reiterates its prior arguments. (Reply hfiiniiation, dated Aug. 3, 201 1). 111. ANALYSIS The proponent of a suminary judgment rnotioii must make a prima facic showing of enlitlemcnt to judgincnt as a matter of law, tendering suliicient evidence to eliminatc any material issues of fact from the casc. (Winegrad v New York Univ.Med, O r . , 64 NY2d 85 1, 853 [1985]; Zuckerman v Ciiy qfNew Yurk, 49 NY2d 557, 562 [ 19303). Ilthis burden is not met, suminai-y judgment must be denied, regardless of the sufficieiicy of plairitiff s opposition papers. (Winepad, 64 NY2d 85 1, 853). When the moving party has demonstrated entitlement to summary judgment, the burden of proof shifts to thc opposing party which must demonstrate by admissible evidence the existencc of a factual issue requiring trial, (Alvi~rez Prospect Hosp., 68 NY2d 320, 324 [1986]; v Zuckerman, 49 NY2d 557, 562). The opposing party must lay bare its evidence (Silberlsiein, Awad Ce Miklos 1.1 Chruon, 304 AD2d 8 17, 8 1 8 [ 1 st Dept 20031); unsubstantiated allegations or asscrtions are insufficient. (Zcickerman, 49 NY2d 557, 562). While there may be no cognizable claim for negligent investigation, Ihe allegations underlying plaintill s claim are appropriately interposed in his false imprisonment claim. (Gunllow 11 Harheru, 76 AD3d 760 [3d Dept 20 lo], lv denied 15 NY3d 906; S u n t i u p v City of Rochesler, 19 AD3d 1061 [4th Dept ZOOS], lv denied 5 NY3d 71 0; ,/ohnso~ King.r County Disl. v Attorney s Off, 308 AD2d 278 [2d Dept 20031). Tlic elements of a false imprisonnient claim arc that: (1) the defendant intended to 4 [* 6] coniine the plaintiff, (2) the plaintiff was conscious of the confinemcnt, (3) the plaintiff did not conscnt to the coiifincnient, and (4) the coniineinent was not othcnvise privileged. (Rivera v C ity q f N w York, 40 AD3d 334, 341 [lqt Dept 20071). A coniinemcnt is privileged whcn made pursuant to an arrest under valid process or warrant issued by a court with appropriate jurisdiction. (Duvis v C ity OfSyracuse, 66 NY2d 840 119851). Flowever, when a warrant may be applicable to two or more persons, the arresting oflicer is rcquired 10 exercise reasonable care in assuring that he has arrested the pcrson intendcd to be apprehended uiidcr the warrant. (Id at 842; see nZ.m C mz v City qfNew Yo& 33 AD3d 394 [l Dept 20061 [evidence supported jury s finding that City failed to exercise reasonable care in ascertaining that plaintiff was person intended to be apprehcnded under bench warrant as City Department of Criminal Justice failed to respond to fingerprint inquiry, plaintiffs personal information differed froin that of fugitive to whom warrant actually applied, plaintiff provided ini oimation that was not checked, and photograph of fugitive not checked]; Doumhiu v ( ily of New York, 285 AD2d 623 [2d Dept 200 I ] [evidence that Aintrak police officers did not use reasonable care in arresting plaintiff as his appearance did not match description on warrant]). Here, as the warrant did not reflect plaintiffs cxact naim and it was thus not obvious from the facc of it that it applied to plaintiff, the NYPD was required to cxercise rcasonablc care in ascertaining that plaintiff was identilied as the person intendcd to be apprehended undcr the warrant. However, neither party offers any evidcnce or cxplanation as to why the NYPD concluded that the warrant applied to plaintii i or what investigation, if any, it conducted. Thus, it cannot yet be determined whether City employees acted or did not act with reasonable care in [* 7] determining that plaintil'r was the person to whom the warrant applied, and, thcrefore, iicither party has establishcd that no triable issues rcmain. (See Dennis v State c~f'hitlwY w k , 96 AD2d 1 143 [41h llept I9831 [whcthcr o f h e r s exercised due diligence in arresting plaintiff pursuant to warrant prcsented triable issue of fact]; Williams 17 City of'BzlfSalo, 72 AD2d 952 [4IhDept 19791, lv denied 49 NY2d 799 [ I 9801 [detcrniination of due diligence generallyjury issuc]). Morcover, while City contends that the decision to remand plaintilf was made by the court andor the ADA, it does not address thc fugitive affidavit filled out by an NYPD cmployee, which information was apparently conveyed to thc court and the ADA. Thus, therc is evidence that a City employee provided information linking plaintiff to the warrant, which the court then relied on in deciding to remand plaintiff. Finally, as plaintiff does not oppose dismissal of his federal claims, they are dismissed. IV. CONCLUSION Accordingly, it is hereby ORDERED, that plaintiff's motion for summary judgment is denied; and it is further ORDERED, that dcfendant's motion for summary judgmcnt is granted only to the extent of dismissing plaintiffs fcderal claims. ENTER: DATED: December 1,20 11 New York, New York 6

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