Taussi v City of New York

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Taussi v City of New York 2019 NY Slip Op 32535(U) July 15, 2019 Supreme Court, Richmond County Docket Number: 150359/2015 Judge: Thomas P. Aliotta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RICHMOND COUNTY CLERK 07/16/2019 09:38 AM NYSCEF DOC. NO. 90 INDEX NO. 150359/2015 RECEIVED NYSCEF: 07/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND: PART C2 ---------------------------------------------------------------------)( ERAN TAUSSI, Plaintiff, DECISION AND ORDER -againstTHE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER MICHAEL USTICK, TAJC ID NO 948518 OF THE 121 ST PRECINCT, in his personal and official capacity, ALL POLICE OFFICERS INVOLVED IN THE INCIDENTS CLAIMED HEREIN, AND ALL SUPERVISORY POLICE OFFICERS VESTED AND CHARGED WITH COMMANDING AUTHORITY OVER THE POLICE OFFICERS AS CLAIMED HEREIN, all in their individual and official capacity, Index No.: Motion No.: 150359/2015 1870-003 Defendants. ---------------------------------------------------------------------)( The following papers numbered "l" through "3" were marked submitted on the 5th day of June 2019: Notice of Motion for Leave to Reargue By Plaintiff, with Supporting Papers and Exhibits (dated April 29, 2019) ..................................................................................................... 1 Affirmation in Opposition By Defendants the City of New York and Police Officer Michael Ustick, with Supporting Papers and Exhibits (dated May 29, 2019) ....................................................................................................... 2 Reply Affirmation (dated June 4, 2019) ......................................................................................................... 3 Upon the foregoing papers, Plaintiffs motion for leave to reargue is denied. Taussi v. City 150359/2015 Page 1 of3 1 of 3 [*FILED: 2] RICHMOND COUNTY CLERK 07/16/2019 09:38 AM NYSCEF DOC. NO. 90 INDEX NO. 150359/2015 RECEIVED NYSCEF: 07/16/2019 The facts of this matter are set forth in the Court's Decision and Order dated April 1, 2019. Therein, the motion for summary judgment by defendants, City of New York and Police Officer Michael Ustick, was granted as to plaintiffs claims of false arrest, false imprisonment and negligence. The Court did not dismiss plaintiffs claims of assault and battery. A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion (CPLR 2221 [d][2]). While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided (see Williams v. Abiomed, Inc., _AD3d_, 2019 NY Slip Op 4990 [2nd Dept 2019]). Here, in support of his motion for leave to reargue, rather that point out matters of fact or law allegedly overlooked or misapprehended, plaintiff merely sought to restate his earlier arguments pertaining to the non-party affidavit of his former spouse (see Williams v. Abiomed, Inc., _AD3d_, 2019 NY Slip Op 4990 [2nd Dept 2019]). In the prior decision and order, the Court had considered the affidavit of Plaintiffs former spouse, Ms. Shari Bobchin. In this regard, the following facts were not disputed by Ms. Bobchin: (1) an order of protection had been previously issued against the plaintiff; (2) Plaintiff was loitering in the vicinity of her house; (3) Plaintiff contacted the police officers alleging that Ms. Bobchin had stolen his vehicle and upon their arrival, informed the police officers that a restraining order was in effect against him; and (4) Plaintiff appeared belligerent towards the police officers while he was being questioned about the subject vehicle (see Defendants' Exhibit "F'', Affidavit of Shari Bobchin). In fact, the statements made in Ms. Bobchin's affidavit correspond with the deposition testimony Taussi v. City 150359/2015 Page 2 of3 2 of 3 [*FILED: 3] RICHMOND COUNTY CLERK 07/16/2019 09:38 AM NYSCEF DOC. NO. 90 INDEX NO. 150359/2015 RECEIVED NYSCEF: 07/16/2019 of Police Officer Ustick. Under these circumstances, the Court determined that Ms. Bobchin's statement that she "did not call the police and ask that [Plaintiff] be arrested", sworn to 15 months post-incident, was insufficient to counter defendant's showing that probable cause existed at the time of the arrest (see Silverstein v. New York City Police Dept, 167 AD3d 961, 963 [2nd Dept 2018]). Accordingly, it is hereby ORDERED that plaintiff's motion for leave to reargue is denied; and it is further ORDERED that the parties report to the SCMP Part located at 18 Richmond Terrace, Staten Island, NY Room 114 on July 23, 2019 at 9:30 AM. for a pre-trial conference; and it is further ORDERED that the Clerk shall mark his records accordingly. Dated: July /J:- 2019 ENTER, HON. THOMAS P. ALIOTTA, J.S.C. Taussi v. City 150359/2015 Page 3 of3 3 of 3

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