Fischetti v City of New York

[*1] Fischetti v City of New York 2018 NY Slip Op 51737(U) Decided on November 2, 2018 Supreme Court, Queens County Hart, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2018
Supreme Court, Queens County

Bianca Fischetti, which the city misspelled Bianca Fishetti, Plaintiff(s),

against

The City of New York, NEW YORK CITY POLICE DETECTIVE MICHAEL CENTRONE OF NARCOTICS BOROUGH QUEENS, TAX REG. 917404, THE INVESTIGATING NYPD OFFICER ON THE WARRANT UNDER DOCKET No. 2015QN030429 N/H/A JOHN/JANE DOE I, THE TACTICAL TEAM SERGEANT ON SAID ARREST N/H/A JOHN/JANE DOE II, OTHER NYPD OFFICERS ON SAID ARREST WHOSE NAMES ARE NOT KNOWN AT THER TIME N/H/A JOHN/JANE DOE III-V AS IT PERTAINS TO THE INCIDENT ON JUNE 19, 2015 AND NO OTHER DATE, Defendant(s).



4518/2016
Ernest F. Hart, J.

The following papers numbered 1 to 8 read on this motion by Defendants THE CITY OF NEW YORK, NEW YORK CITY POLICE DETECTIVE MICHAEL CENTRONE OF NARCOTICS BOROUGH QUEENS, TAX REG. 917404, THE INVESTIGATING NYPD OFFICER ON THE WARRANT UNDER DOCKET #2015QN030429 N/H/A JOHN/JANE DOE I, THE TACTICAL TEAM SERGEANT ON SAID ARREST N/H/A JOHN/JANE DOE II, OTHER NYPD OFFICERS ON SAID ARREST WHOSE NAMES ARE NOT KNOWN AT THER TIME N/H/A JOHN/JANE DOE III-V AS IT PERTAINS TO THE INCIDENT ON [*2]JUNE 19, 2015 AND NO OTHER DATE, for an Order, pursuant to CPLR 3211(a)(7), partially dismissing Plaintiff's Complaint, and pursuant to CPLR §3212, granting summary judgment and dismissing the Complaint in its entirety.

PAPERS

NUMBERED

Notice of Motion-Affidavits-Exhibits 1 - 3

Answering Affidavits-Exhibits 4 - 6

Replying Affidavits 7 - 8

Upon the foregoing papers, it is ordered that the motion by THE CITY OF NEW YORK, NEW YORK CITY POLICE DETECTIVE MICHAEL CENTRONE OF NARCOTICS BOROUGH QUEENS, TAX REG. 917404, THE INVESTIGATING NYPD OFFICER ON THE WARRANT UNDER DOCKET #2015QN030429 N/H/A JOHN/JANE DOE I, THE TACTICAL TEAM SERGEANT ON SAID ARREST N/H/A JOHN/JANE DOE II, OTHER NYPD OFFICERS ON SAID ARREST WHOSE NAMES ARE NOT KNOWN AT THER TIME N/H/A JOHN/JANE DOE III-V AS IT PERTAINS TO THE INCIDENT ON JUNE 19, 2015 AND NO OTHER DATE, for an Order, pursuant to CPLR §3211(a)(7), partially dismissing Plaintiff's Complaint, and pursuant to CPLR §3212, granting summary judgment and dismissing the Complaint in its entirety, is determined as follows:

This is an action to recover damages arising from the arrest of Plaintiff on June 19, 2015. Plaintiff was arrested at the apartment belonging to Christopher Battaglia at 97-55 Eckford Avenue, Ozone Park, Queens, New York. Plaintiff testified that she "mainly" stayed at the subject apartment on weekends over the course of the previous two and a half years, given her ongoing romantic relationship with Mr. Battaglia. The arrest stemmed from the execution of a search warrant at the subject premises on June 19, 2015 at approximately 5:15 A.M. by Detective Centrone and other police officers. Upon execution of the search warrant, Detective Centrone recovered 3.84 grams of cocaine in the apartment. Plaintiff and Mr. Battaglia were subsequently arrested for Criminal Possession of Controlled Substance in the Third Degree, in violation of Penal Law §220.16(1); Criminally Using Drug Using Drug Paraphernalia in the Second Degree, in violation of Penal Law §220.50(3); and Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law §220.03.

Plaintiff and Mr. Battaglia were taken to the precinct where Mr. Battaglia admitted to the police that the contraband recovered was his and his alone. Plaintiff alleges that she was held in police custody for approximately fourteen (14) hours following her arrest. She also alleged that the handcuffs to her wrists were applied in "an excessively tight manner causing several black and blues." On June 19, 2015, the same day as her arrest, Plaintiff accepted an Adjournment in Contemplation of Dismissal ("ACD") at her arraignment.

Plaintiff's complaint alleges six (6) causes of action. The first cause of action alleges [*3]assault by the Defendants. The second cause of action alleges unlawful arrest. The third cause of action alleges unlawful imprisonment as to the unnamed defendants. The fourth cause of action alleges a 42 U.S.C. §1983 claim alleging excessive force. The fifth cause of action alleges negligent hiring and retention by the Defendant CITY and its failure to train and adequately supervise its police officers. The sixth cause of action alleges that Defendant CITY was negligent because it knew or should have known of the bad disposition of the Defendants NEW YORK CITY POLICE DETECTIVE MICHALE CENTRONE OF NARCOTICS BOROUGH QUEENS, TAX REG. 91704, THE INVESTIGATING NYPD OFFICER ON THE WARRANT UNDER DOCKET #2015QN030429 N/H/A JOHN/JANE DOE I, THE TACTICAL TEAM SERGEANT ON SAID ARREST N/H/A JOHN/JANE DOE II, OTHER NYPD OFFICERS ON SAID ARREST WHOSE NAMES ARE NOT KNOWN AT THE TIME N/H/A JOHN/JANE DOE III-V AS IT PERTAINS TO THE INCIDENT ON JUNE 19, 2015 AND NO OTHER DATE, or had knowledge of the facts that would put a reasonably prudent employer on inquiry concerning their bad disposition and the fact that these officers were not suitable for hire.

Defendants THE CITY OF NEW YORK and NEW YORK CITY POLICE DETECTIVE MICHAEL CENTRONE OF NACOTICS BOROUGH QUEENS, TAX REG. 917404 ("CITY") seek summary judgment dismissing Plaintiff's causes of action alleging false arrest and false imprisonment, as probable cause existed for the arrest and detainment of Plaintiff due to Plaintiff's constructive possession of narcotics and narcotics paraphernalia. Defendant CITY also seeks summary judgment dismissing the Plaintiff's causes of action alleging assault, battery and excessive force, as any force utilized by the involved police officer was reasonable and de minimus. Defendant CITY seeks summary judgment dismissing Plaintiff's claims of negligent hiring, training, retention, monitoring, retraining, promoting, and supervision on the ground that Detective Centrone acted within the scope of his employment. In the alternative, Defendant CITY seeks summary judgment as to Detective Centrone and dismissing Plaintiff's complaint in its entirety under the doctrine of qualified immunity. Defendant CITY also moves to dismiss Plaintiff's complaint in its entirety as against unnamed Defendants THE INVESTIGATING NYPD OFFICER ON THE WARRANT UNDER DOCKET #2015QN030429 N/H/A JOHN/JANE DOE I, THE TACTICAL TEAM SERGEANT ON SAID ARREST N/H/A JOHN/JANE DOE II, OTHER NYPD OFFICERS ON SAID ARREST WHOSE NAMES ARE NOT KNOWN AT THE TIME N/H/A JOHN/JANE DOE III-V AS IT PERTAINS TO THE INCIDENT ON JUNE 19, 2015 AND NO OTHER DATE.

The Court notes that the Plaintiff has withdrawn her negligent hiring and retention claims against the defendants and all claims against all unnamed defendants. Therefore, the Court will not address these claims.

Plaintiff filed a Notice of Claim on or about September 16, 2015. On or about April 15, 2016, Plaintiff commenced this action by filing a Summons and Verified Complaint. Defendant CITY joined issue by serving a Verified Answer on or about May 6, 2016. An Amended Answer was then served by Defendant CITY on behalf of Detective Centrone on June 27, 2016. Plaintiff served a Verified Bill of Particulars on or about May 11, 2016. Discovery demands were made and responses to said demands were served. Plaintiff filed a Note of Issue and Certificate of Readiness on or about October 23, 2017.

With respect to the motions for summary judgment, the proponent of a summary judgment motion bears the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Thus, a defendant seeking summary judgment must establish its prima facie entitlement to judgment in its favor as a matter of law by affirmatively demonstrating, its merits of its defense (Mondello v. DiStefano, 16 AD3d 637 [2005]).

As to Plaintiff's claims against the individual defendants for civil rights violations pursuant to 42 U.S.C. §1983, police officers are entitled to qualified immunity, which may be invoked to protect them from suit under §1983 if it is established that there was probable cause for the arrest and detention (see Scheuer v. Rhodes, 416 U.S. 232 [1974]).

In this case, there was a clear showing of probable cause to arrest Plaintiff and, therefore, it was objectively reasonable for defendants to believe that they were acting in a manner that did not violate Plaintiff's constitutional rights. The totality of the circumstances establishes that it was reasonable for Detective Centrone to believe that Plaintiff had control over the apartment. Since probable cause was established, it was the burden of plaintiff to disprove defendants' entitlement to qualified immunity (see Kravits v. Police Dept. Of the City of Hudson, 285 AD2d 716 [3d Dep't 2001]). Plaintiff has failed to meet her burden. Accordingly, Defendants' motion for summary judgment to dismiss Plaintiff's causes of action against the individual movants based upon 42 U.S.C. § 1983 is granted.(see Martinez v. City of Schenectady, 97 NY2d 78 [2001]; Zientek v. State of New York, 222 AD2d 1041 [4th Dept. 1995]).

The only vehicle for an individual to seek a civil remedy for violations of constitutional rights committed under color of any statute, ordinance, regulation, custom or usage of any State is a claim brought pursuant to 42 U.S.C. §1983 (see generally, Manti v New York City Transit Auth., 165 AD2d 373 [1st Dep't 1991]). With respect to plaintiff's causes of action against Defendant CITY under 42 U.S.C. §1983, a municipality may only be found liable under §1983 where plaintiff specifically pleads and proves an official policy or custom that causes plaintiff to be subjected to a denial of a constitutional right (see Monell v. Department of Social Services, 436 U.S. 658 [1978]). A municipality cannot be held liable under a theory of respondeat superior for the unconstitutional acts of its employees, but may be found liable under §1983 "only where the municipality itself causes the constitutional violation at issue. In other words, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under §1983" (Johnson v. King County District Attorney's Office, 308 AD2d 278, 293 [2d Dep't 2003], quoting Monell, supra, at 694).

Regardless of whether this Monell claim was properly pled, there is no showing that plaintiff's arrest and detention was the result of an unconstitutional policy or similarly unconstitutional conduct. The existence of probable cause for the arrest and detention of plaintiff immunizes the City against a claim brought pursuant to §1983 (see Martinez v. City of Schenectady, 97 NY2d 78 [2001]). The record sufficiently establishes that there was probable cause to arrest and detain plaintiff.

To the extent that Plaintiff is making a §1983 claim, those claims are dismissed as Plaintiff failed to establish her prima facie case. To establish a 42 U.S.C. §1983 claim against a municipality, a plaintiff must specifically plead and prove three elements: (1) an official policy or custom that (2) causes plaintiff to be subjected to (3) a denial of a constitutional right. (see Monell, 436 U.S. at 658; see also Batitsta v. Rodriguez, 702 F.2d 393 (2d Cir. 1984). Liability may only be imposed on a municipality when the conduct complained of "implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officer." Monell, 436 U.S. at 690. Moreover, a single incident generally will not suffice to raise an inference of a custom or policy. (See City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985)). As Plaintiff has failed to allege specific facts that show a particular policy leading to the alleged civil rights violation, Plaintiff's §1983 claim against Defendant CITY is dismissed. (See Leung v. City of New York, 216 AD2d 10 (1st Dept. 1995))("A cause of action under 42 USC 51983 exists where the evidence demonstrates that an individual has suffered a deprivation of rights as a result of an official policy or custom...and must be pleaded with specific allegations of fact"). Plaintiff's Complaint alleges a single incident and does not particularize a specific policy of the government which is discriminatory.

As to the Plaintiff's claim of unlawful imprisonment, a finding of probable cause operates as a complete defense to an action alleging false imprisonment, whether brought under State law or §1983 (see Carlton v. Nassau County Police Dept., 306 AD2d 365 [2nd Dept. 2003]). It is well established that a search warrant requires probable cause in order to be valid and executed. Thus, it is clear that there was probable cause for Plaintiff's detainment.

As to the claims of assault and battery, this Court notes that the existence of probable cause does not bar causes of action for assault and battery based upon the use of excessive force (see Bennett v. NYC Housing Authority, 245 AD2d 254 [2nd Dept 1997]). As to the battery claim asserted on behalf of the Plaintiff, Defendants are entitled to summary judgment, since there was no showing of physical contact other than when she was placed in handcuffs, which was done without resistance.

It is well established that the claim that a law enforcement official used excessive force during the course of an arrest, investigatory stop, or other seizure of a person is to be analyzed under the objective reasonableness standard of the Fourth Amendment (see Washington-Herrera v. Town of Greenburgh, 101 AD3d at 989), i.e., that the reasonableness of the particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight (id.). The principle thus recognized is that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving (see Holland v. City of Poughkeepsie, 90 AD3d at 844). In this context, the analysis to be performed is said to require "a careful balancing of the nature and quality of the [particular] intrusion on the [*4]individual's Fourth Amendment interest against the countervailing governmental interest at stake" (id. [internal quotation marks omitted]). If found to be objectively reasonable, the officers' actions are privileged under the doctrine of governmental function immunity (see e.g. Valdez v. City of New York, 18 NY3d 69 [2011]). This Court finds Detective Centrone's actions at the time of the arrest to be objectively reasonable. Therefore, Plaintiff's cause of action against Defendant CITY on the ground of excessive force is dismissed.

This constitutes the decision and order of the court.

Dated: November 2, 2018

ERNEST F. HART, J.S.C.