Garcia v City of New York

[*1] Garcia v City of New York 2018 NY Slip Op 50682(U) Decided on April 27, 2018 Supreme Court, Bronx County Brigantti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2018
Supreme Court, Bronx County

Michael Garcia, Plaintiff,

against

The City of New York, et als., Defendants.



20030/2014



Attorney for Defendants:
Zachary W. Carter
Corporation Counsel of the City of New York
(Frank A. DeLuccia, Esq.)

Attorney for Plaintiff:
Law Office of Sean H. Rooney
(Sean H. Rooney, Esq.)
Mary Ann Brigantti, J.

The following papers numbered 1 to 5 read on the below motion noticed on June 30, 2017 and duly submitted on the Part IA15 Motion calendar of December 13, 2017:

Papers Submitted/Numbered

Defs.' Notice of Motion, Exhibits 1, 2

Pl's Opposition, Exhibits 3, 4

Defs.' Aff. In Reply 5

Upon the foregoing papers, the defendant City of New York ("Defendant") moves for an order (1) pursuant to CPLR 3212, granting summary judgment to Defendant and dismissing the plaintiff's claim for malicious prosecution under state law and pursuant to 42 U.S.C. §1983; (2) pursuant to CPLR 3212, granting summary judgment to Defendant and dismissing the plaintiff's claims for false arrest and false imprisonment pursuant to 42 U.S.C. §1983; (3) pursuant to CPLR 3212, granting summary judgment to Defendant and dismissing the plaintiff's claims for excessive force pursuant to 42 U.S.C. §1983; (4) pursuant to CPLR 3212, granting summary judgment to Defendant and dismissing the plaintiff's federal claims under 42 U.S.C. §1983 as against Defendant; (5) pursuant to CPLR 3215(c), 1024, and 306-b, dismissing the plaintiff's complaint in its entirety as against defendant Police Officer "John Doe" (fictitious name, real name unknown); (6) pursuant to CPLR 3211(a)(7) and 3212, granting summary judgment to Defendant and dismissing plaintiff's federal claims pursuant to 42 U.S.C. §1983, and (7) for such other and further relief as this Court deems just and proper. The plaintiff Michael Garcia [*2]("Plaintiff") opposes the motion.

I. Background

This matter arises out of an alleged false arrest and malicious prosecution of Plaintiff which occurred on May 1, 2012, in the vicinity of Allerton Avenue and Williamsbridge Road in the Bronx, New York. On that date at around 8:15 PM, Plaintiff and his cousin, nonparty Christopher Rodriguez ("Rodriguez") left Plaintiff's residence at 788 Arnow Avenue to go running in the area. Before leaving the house, Plaintiff changed into jogging clothes which consisted of track pants, sneakers, and a short-sleeved shirt. Rodriguez was wearing similar jogging clothes. Plaintiff and Rodriguez walked to the Bronx River Parkway and jogged towards Pelham Parkway, and then to the intersection of Pelham Parkway and Williamsbridge Road. At that point they stopped running and began to walk back home in the direction of Arnow Avenue.

When Plaintiff and Rodriguez reached the intersection of Allerton Avenue and Williamsbridge Road, Plaintiff observed police vehicles in the area. One vehicle slowly drove by him as he continued to walk. Plaintiff walked another 200 feet before an officer jumped out of the vehicle and told him and his cousin to stop. Plaintiff asked the officer what was the problem, and the officer responded "shut up." The officer then allegedly dug through Plaintiff's pockets without telling him anything else. There was nothing in Plaintiff's pockets. Plaintiff testified that some time later, another young man was walking down the street in the opposite direction. Police grabbed him as well and made him stand next to Plaintiff and Rodriguez. Plaintiff testified that after watching the police officers talk amongst themselves, the officers came over and placed him in handcuffs. Rodriguez was not handcuffed. Plaintiff was then put into a police vehicle and transported to the 49th Precinct, where he was fingerprinted and placed into a holding cell. Plaintiff continued to ask why he was being arrested, and he was told nothing. At the precinct, Plaintiff was interviewed by a detective. The detective allegedly told Plaintiff to write everything down on a piece of paper and then left the room. When he returned and Plaintiff handed him the piece of paper, the detective tore it up and threw it in the garbage without reading it, and told Plaintiff that they were going to put him through the "system," and that he should not worry, to let the judge handle it, and that they were going to dismiss the case. Plaintiff was then taken to Central Booking where he remained for approximately 24 hours. He was then taken before a Judge and released on his own recognizance. Plaintiff stated that he had to stay home from work after that for two days due to extreme anxiety. He had to retain a private attorney and he made five court appearances before the criminal proceedings against him were ultimately dismissed.

In an affidavit submitted in opposition to this motion, Rodriguez states that he asked an officer why Plaintiff was being arrested and "who says that he did anything." The officer said that the person in a nearby police car just "identified" Plaintiff, and the officer pointed to a police car that was at least 40 feet away. Rodriguez states that the vehicle was too far for anyone in the vehicle to clearly identify himself or Plaintiff, the vehicle never came closer at any point, and that it was dark outside and there were only a few street lights in the area. Rodriguez tried to tell police that Plaintiff was with him the whole night, but police told him to "shut up" and to walk away.

In support of this motion, Defendant submits arrest reports that were allegedly drafted by arresting officer P.O. Pablo Morales ("Morales"). At approximately 9:08PM on May 1, 2012, [*3]complaining victim "C.X." stated to police that as he approached the entrance of a building located at 2307 Pearsall Avenue in the Bronx, he was grabbed by the "above perp" (noted to be Plaintiff). The victim stated that the "perp" along with another individual grabbed him and hit him in the head with a hard object. The "perps" then removed the victim's wallet, cell phone, and money from his person. According to the other arrest report, at approximately 9:22 PM that same evening, another complaining victim "E.C." was in the vicinity of Mace Avenue and Esplande walking towards the train when he observed the "above perp" (noted to be Plaintiff) and another "perp" watching him. E.C. states that he was then grabbed around his neck from behind by Plaintiff and the "perp" pressed a hard object into his head. The victim began to struggle and the perp then struck him on the head causing a laceration to his right eye and bleeding. The victim stated that Plaintiff along with another individual then took his cell phone and wallet and ran off.

Morales testified that he was on duty the night of this incident. While on patrol, a description was transmitted over the radio alerting units in the area of two robberies that had just taken place on Mace Avenue and Esplanade, as well as Allterton and Pearsall Avenues, perpetrated by two Hispanic males wearing jogging clothes. Shortly thereafter, Morales was informed that two males fitting the description provided by the complaining victims were stopped in the general vicinity where the robberies occurred. Morales learned that a "show up" identification procedure was performed, in which both victims were transported in separate vehicles to the location where Plaintiff was stopped in order to identify whether the police had stopped the correct individuals. Morales understood that the both of the victims positively identified Plaintiff as one of the perpetrators of the robberies. Plaintiff was then placed under arrest. Morales testified that he spoke with the victims in the hours following Plaintiff's arrest and the next day. On May 2, 2012, complaining victim E.C. completed and signed a sworn criminal affidavit describing the alleged robbery, and charging Plaintiff as one of the culprits. Morales testified that at no point did either other complaining victims waver as to their identification of Plaintiff as one of the perpetrators of the two robberies. The charges against Plaintiff were later dismissed.

Defendant now moves for summary judgment. Defendant alleges that since Plaintiff was positively identified by complaining victims, there was probable cause to effectuate the arrest, detainment, and prosecution. Accordingly, to the extent it can be determined that Plaintiff asserts causes of action for false arrest and false imprisonment pursuant to 42 U.S.C. §1983, those claims must be dismissed. Furthermore, since there was probable cause for the criminal proceedings, because a complaining witness and not Defendant initiated those proceedings, and because there is no evidence of actual malice, Plaintiff's malicious prosecution claim must be dismissed. Defendant further alleges that any federal claims under 42 U.S.C. §1983 asserted against it must be dismissed because such claims cannot be maintained against a municipality under a theory of respondeat superior, and Plaintiff has otherwise failed to adequately plead a cause of action for municipal liability under 42 U.S.C. §1983. Finally, Plaintiff's claim against Police Officer " John Doe" must be dismissed because Plaintiff failed to undertake the procedures outlined in the CPLR that are required when attempting to name such an entity.

Plaintiff opposes the motion and argues that the facts and circumstances surrounding this incident raise issues of fact as to whether there was probable cause to arrest and prosecute [*4]Plaintiff. Plaintiff argues that the description of the alleged perpetrators as "two Hispanic males wearing jogging clothes" was too general considering that the area consisted of a large male Hispanic population, and the arrest area was near a public park where people would be jogging or wearing jogging clothes. Thus, the initial stop of Plaintiff was unjustified and egregious on the part of the officers. Plaintiff also notes that neither of the victims were asked or stated that they had a good look at the perpetrators, and they likely did not get a good look at the perpetrators considering the manner in which the robberies occurred. Furthermore, only one of the victims signed a criminal complaint. Plaintiff also notes that Morales only arrived at the scene after Plaintiff was arrested and the "show up" procedure allegedly took place, thus he cannot establish that this procedure was properly conducted. Plaintiff also alleges that there are triable issues of fact as to whether the officers acted in an egregious manner in conducting the "show up" identification, since it was dark out at the time, the victims allegedly identified Plaintiff while sitting in a police vehicle located at least 40 feet away, both Plaintiff and Rodriguez were searched and nothing was found on their persons. Moreover, Plaintiff was positively identified as a perpetrator while his cousin was not, a third individual who walked onto the scene coming from a completely different direction was also arrested for the alleged robberies, Morales only spoke with the victims for the first time after Plaintiff was arrested, and Morales never asked the victims whether they got a good look at the perpetrators of the robbery or about their level of certainty regarding their identification of Plaintiff. In addition, Plaintiff contends that Defendant "initiated" this criminal prosecution, and that Defendant failed to demonstrate the absence of any actual malice associated with this prosecution.

Defendant's reply contentions are addressed infra if necessary.

II. Standard of Review

CPLR 3212 Standard

To be entitled to the "drastic" remedy of summary judgment, the moving party "must make 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 from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).

CPLR 3211(a)(7) Standard

On a motion to dismiss pursuant to this section of the CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. [*5]DaimlerChrysler Corp., 292 AD2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (See Stendig, Inc. v. Thom Rock Realty Co., 163 AD2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 AD2d 205 [1st Dept. 1997][on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026). The court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory"(Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The motion should be denied if, from the pleading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 AD2d 98 [1st Dept. 1992]).

III. Applicable Law and Analysis

By decision and order dated April 22, 2014, Supreme Court, Bronx County (Danizger, J.), granted the Defendant's motion to dismiss without opposition, and dismissed all of Plaintiff's causes of action except for the fifth cause of action (claims related to 42 U.S.C. §1983), and the sixth cause of action (malicious prosecution), pursuant to CPLR 3211(a)(5) and General Municipal Law §50-e and 50-i. Plaintiff has failed to substantively oppose Defendant's present motion insofar as it seeks dismissal of claims against Police Officer "John Doe." Defendant has demonstrated that the action against "John Doe" must be dismissed because Plaintiff did not ascertain the identity of that defendant and serve him or her within 120 days after this action was commenced (see Tucker v. Lorieo, 291 AD2d 261 [1st Dept. 2002]; CPLR 306-b). Thus, the lone remaining viable defendant in this action is Defendant, a municipality.

Defendant has also demonstrated its entitlement to dismissal of any claims made under 42 U.S.C. §1983. A municipality cannot be held liable for violations of 42 U.S.C. §1983 under a theory of respondeat superior or vicarious liability (see Ramos v. City of New York, 285 AD2d 284, 302 [1st Dept. 2001], citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 [1989]; Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 [1978]). Furthermore, while a municipality may be exposed to §1983 liability if "a municipal employee acts in violation of a person's Federal civil rights pursuant to a municipal policy or custom," Plaintiff's complaint only contains boilerplate, conclusory assertions of such a policy or custom that are insufficient to state a cause of action (Santos v. New York City, 847 F. Supp. 2d 573 [S.D.NY 2012]; see Ashcroft v. Iqbal, 556 U.S. 662 [2009]). Plaintiff has failed to substantively oppose either of these branches of Defendant's motion, thus all of Plaintiff's causes of action against Defendant made under 42 U.S.C. §1983 are dismissed.

In light of the foregoing, the only remaining viable claim is Plaintiff's sixth cause of action — his state-law claim for malicious prosecution against Defendant-municipality. To prevail on a claim of malicious prosecution, a plaintiff must establish the following four elements: " (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice (Mendez v. City of New York, 137 AD3d 468, 471 [1st Dept. 2016]; citing Broughton v. State of New York, 37 NY2d 451, [*6]457 [1975], cert. den. sub. nom. Schanbarger v. Kellogg, 423 U.S. 929 [1975]). A plaintiff asserting such a claim has a "heavy burden," and the failure to prove even one of these elements is fatal to the entire claim (see Moorhouse v. Standard, New York, 124 AD3d 1 [1st Dept. 2014], citing Brown v. Sears Roebuck & Co., 297 AD2d 205, 208 [1st Dept. 2002]).

Defendant first alleges that it cannot be liable for malicious prosecution because it did not commence or continue criminal proceedings against Plaintiff, because a complaining witness, and not employees of Defendant, signed Plaintiff's criminal complaint. This contention is unavailing. While it is true that "[a] criminal complaint is commenced by the filing of "an accusatory instrument," "...a person who does not file a complaint commencing a criminal proceeding may be found to have instituted the proceeding for malicious prosecution purposes when the person plays an active role in the initiation and continuation of criminal proceedings against plaintiff" (Mazza v. City of New York, No. 98-CV-2343 [E.D.NY, 1999]; NY CPL §100.05). In this case, Morales testified that he spoke to the alleged victims and the assistant district attorney "to draw up a case" (Morales EBT at p34), which indicates that Defendant's employees indeed played an active role in initiating the criminal prosecution (see, e.g., Higgins v. City of New York, 144 AD3d 511, 516 [1st Dept. 2016]; citing Bermudez v. City of New York, 790 F.3d 368 [2nd Cir. 2015]; see also Ramos v. City of New York, 285 AD2d 284, 299-300 [1st Dept. 2001]).

The next issue to be determined is whether Plaintiff's criminal proceeding was supported by probable cause. In order to establish probable cause, a defendant must merely provide "information sufficient to support a reasonable belief that an offense has been ... committed" and "proof beyond a reasonable doubt" is not required (see Marrero v. City of New York, 33 AD3d 556 [1st Dept. 2006], quoting People v. Bigelow, 66 NY2d 417, 423 [1985]). Generally, an accusation against a specific individual of a specific crime from an identified citizen is presumed to be reliable, and is sufficient to establish probable cause (see Medina v. City of New York, 102 AD3d 101, 103-104 [1st Dept. 2012][internal citations omitted]; see People v. Taylor, 61 AD3d 537 [1st Dept. 2009]; Williams v. City of New York, 114 AD3d 852 [2nd Dept. 2014]).

In this matter, Defendant failed to carry its initial burden of demonstrating the existence of probable cause to arrest Plaintiff in the first place, thus precluding entry of summary judgment on his malicious prosecution claims. In the context of a malicious prosecution claim, a party may establish a lack of probable cause by showing that there was no probable cause for the arrest in the first place (see generally Cardoza v. City of New York, 139 AD3d 151, 162 [1st Dept. 2016], citing Brown v. Sears Roebuck & Co., 297 AD2d 205, 211 [1st Dept. 2002]). Defendant here failed to submit admissible evidence from an individual with personal knowledge as to the facts and circumstances surrounding Plaintiff's initial stop and arrest, or any identification procedure allegedly carried out by officers at the scene. Morales did not arrive at the scene or speak to the alleged victims until after Plaintiff was already arrested. Morales heard a general description of the perpetrators over his police radio, but he had no personal knowledge as to who gave that information to police. While Morales understood that a "show up" identification procedure had taken place, he was not present during this procedure and thus he could not speak to what had actually occurred or whether the procedure was properly performed. Morales does not dispute that at the time Plaintiff was arrested, he was searched and nothing was found. In addition, Plaintiff's deposition testimony annexed to the moving papers makes no reference to a "show up" [*7]identification procedure, as Plaintiff states that shortly after he was stopped, the officers spoke amongst themselves, and then they handcuffed him (Pl. EBT at 45). The officers did not tell him why he was being arrested (id. at 50). Rodriguez states in his affidavit that the police car allegedly containing the identifying citizen was some 40-feet away from himself and Plaintiff, and lighting conditions were dark at the time of the arrest. Defendants thus failed to demonstrate that Plaintiff's arrest, made without a warrant, was supported by an accusation from an identified citizen. "When an arrest is made without a warrant and justification for the arrest has not been demonstrated, the 'absence of probable cause' element is satisfied for the malicious prosecution claim" (see Fotrunato v. City of New York, 63 AD3d 880, 881 [2nd Dept. 2009], citing Broughton, 37 NY2d at 458). Furthermore, the fact that one of the alleged victims signed a criminal complaint against Plaintiff does not serve to validate an allegedly unlawful initial arrest (see Broughton v. State, 37 NY2d at 458).

With respect to the element of a malice, a plaintiff need not "prove that the defendant was motivated by spite or hatred..." and "it may be proven by circumstantial evidence.. and depends 'upon inferences to be reasonably drawn from the surrounding facts and circumstances'" (see Cardoza v. City of New York, 139 AD3d at 164, quoting Nardelli v. Stamberg, 44 NY2d 500, 502-503 [1978], and Martin v. City of Albany, 42 NY2d 13, 17 [1977]). "Actual malice may also be inferred by the total lack of probable cause," and "a jury may, but is not required to, infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding" (id., quoting Martin, 42 NY2d at 17; 2A NY PJI3d 3:50.4 at 520 [2016]). Here, because Defendants failed to eliminate all issues of fact as to whether the initial arrest was supported by probable cause, or whether or not the "show up" procedure and circumstances surrounding Plaintiff's arrest comported with usual police practice (cf. Medina, at 106, quoting Lee v. City of Mount Vernon, 49 NY2d 1041, 1043 [1980]). Accordingly, an inference of malice may be drawn from these circumstances, thus summary judgment on Plaintiffs malicious prosecution claim must be denied (see Mendez v. City of New York, 137 AD3d 468, 471 [1st Dept. 2016]).

IV. Conclusion

Accordingly, it is hereby

ORDERED, that Defendant's motion is granted to the extent that Plaintiff's claims against the City predicated upon alleged violations of 42 U.S.C. §1983 are dismissed, and it is further,

ORDERED, that Defendant's motion is granted to the extent that all of Plaintiff's claims against "Police Officer 'John Doe' (fictitious name, real name unknown)," are dismissed, and it is further,

ORDERED, that Defendant's motion, insofar as it seeks dismissal of Plaintiff's state law malicious prosecution claim (sixth cause of action), is denied.

This constitutes the Decision and Order of this Court.

Dated: 4/27/2018
_________________________________
Hon. Mary Ann Brigantti, J.S.C.