Perko v Town of Greenburgh

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Perko v Town of Greenburgh 2020 NY Slip Op 34875(U) June 2, 2020 Supreme Court, Westchester County Docket Number: Index No. 56777/2011 Judge: Terry Jane Ruderman 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. INDEX NO. 56777/2011 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 06/02/2020 _J - _J right of right appeals as of To statutory time time for appeals the· statutory commence the To commence (CPLR 5513[a]), 55 13(a]), you are advised advised to serve serve a copy copy you are (CPLR parties. upon all parties. of entry, of this order, with entry, upon notice of with notice this order, of YORK NEW YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW SUPREME COUNTY WESTCHEST ER COUNTY OF WESTCHESTER . -------------------------------------------------------------x --------------------------------------------------------------------------x PERKO, JANE PERKO, KENNETH SUSAN JANE PERKO, JR. and SUSAN KENNETH A. PERKO, ORDER and ORDER DECISION DECISION and Plaintiffs, Plaintiffs, Nos. 1 & 2 Motion Sequence Nos. Motion Sequence Index 56777/201 l . No. 56777/2011 Index No. -against-againstDEVITO, GH, ED DEVITO, THE TOWN TOWN OF GREENBUR GREENBURGH, THE #5, DOES #1 - #5, JOHN DOES JOSEPH DECARLO and JOHN JOSEPH DECARLO Defendants. Defendants. ______________________________________________________ ---------------x ------------------------------- ------------------------------·------x RUDERMAN, RUDERMAN , J. Police Officer motion by defendants The following following papers considered on the motion defendants Police Officer were considered papers were herein as sued herein DeCarlo, sued Joseph DeCarlo, Chief Joseph Edward sued herein Police Chief DeVito, and Police herein as Ed DeVito, DeVito, sued Edward DeVito, the judgment dismissing granting summary Joseph DeCarlo, order pursuant summary judgment dismissing the 3212 granting CPLR 3212 pursuant to CPLR DeCarlo, for an order Joseph Greenburgh for an defendant Town motion by defendant complaint as against against them (sequence 1); and Town of of Greenburgh and the motion them (sequence complaint against it complaint as against dismissing the complaint order pursuant CPLR 3212 3212 granting granting summary summary judgment judgment dismissing pursuant to CPLR order (sequence 2): (sequence Papers Papers A-- Y, and Exhibits A Notice of Motion Motion (seq (seq 1), Affirmation, and Affirmation, Exhibits Notice of Law of Law Memorandum Memorandum of Exhibits A - B Notice Motion (seq (seq 2), Affirmation, Affirmation, Exhibits of Motion Notice of Memorandum Exhibits 1 - 8, Memorandum Affirmation Opposition, Exhibits Affirmation in Opposition, Exhibit a of Law, Affidavit Affidavit in Opposition, Opposition, Exhibit of Exhibit U Reply (seq 1), Exhibit Affirmation (seq Reply Affirmation seq 2) Reply Affirmation{ Affirmation (seq Reply 1 [* 1] 1 of 20 Numbered Numbered 1 2 3 4 5 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 Background Background This arrest a,nd and related related claims claims arises arises out out of of the October October 11, 2010 2010 arrest arrest of of This action action for false arrest plaintiff Kenneth Perko, Perko, Jr. for the crime crime of of public public lewdness lewdness (Penal (Penal Law Law S§ 245.00). 245.00). plaintiff Kenneth Ir. ("Perko") ("Perko")! 1 for The arrest followed a radio radio dispatch reporting a man man doing doing y~rdwork yardwork naked naked from the waist waist down down arrest followed dispatch reporting New York, York, which which is the residence residence of of plaintiffs plaintiffs Kenneth Kenneth and at 325 Old Army Army Road Road in Scarsdale, Scarsdale, New ~ -( . . . Susan Perko. Officer_ De Vito, of of the Town Town of of Greenburgh Greenburgh Police Police Department, Department, testified testified that that when when Susan Perko. Officer,DeVito, he arrived arrived at plaintiffs' plaintiffs' property property in response response to the radio radio dispatch, dispatch, he observed observed Kenneth Kenneth Perko Perko using an electrical blower near near the roadway, roadway, and that that after after he exited exited his patrol patrol car he using electrical leaf leaf blower observed Kenneth Perko's Perko's scrotum penis. Officer Officer DeVito DeVito initially initially instructed instructed Perko Perko to "put observed Kenneth scrotum and penis. "put some pants," pants," but on some but when when Perko Perko declined declined to do so, asserting asserting that that he could could do as he pleased pleased on his own property property and that officer did not have own that the officer have the right right to enter enter his property, property, Officer Officer DeVito De Vito placed Perko arrest, charging charging him placed Perko under under arrest, him with with public public lewdness. lewdness. The Information The Information prepared prepared and signed signed by Officer Officer DeVito DeVito that that day states states the language language of of Penal Law S 245.00 245.00 as it then Penal Law§ then existed, existed, and then then described described the facts of of the charge: charge: "Count 1: A person person is guilty "Count guilty of of public public lewdness lewdness when when he intentionally intentionally exposes exposes the of his body body in a lewd lewd manner manner or commits commits any other other lewd lewd private or intimate intimate parts parts of private act (a) in a public public place, place, or (b) in private private premises premises under under circumstances circumstances in which which observed from either he may may readily readily be observed either a public public place place or from other other private private premises, premises, and with with intent intent that that he be so observed." observed." "To wit:. "To wit: On the above above listed listed time, time, date and location location said said defendant defendant did intentionally operate operate a leaf intentionally leaf blower blower nude nude below below the waist waist in public public view view of of this this officer." officer." Additional factual factual allegations allegations were were included included in the the Incident Incident Report Report prepared prepared that that day by Officer Officer Additional DeVito: De Vito: the "Perko" in the singular singular will will refer refer to plaintiff plaintiff Kenneth Kenneth A. Perko, Perko, Jr. References to "Perko" 1JReferences 2 [* 2] 2 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 ( ( " ... [the] undersigned undersigned responded to call at the intersection Army Rd and responded t9 intersection of of Old Old Army male naked waist down work. Whiteoak Whiteoak Ln on a report report of of a male naked from the waist down doing doi,ng lawn lawn work. On arrival undersigned observed listed offender using an electric leaf blower at arrival undersigned observed listed offender using electric leafblower waist down down with with his private/intimate private/intimate the edge edge of of his driveway driveway naked naked from the waist groin public view. view. Undersigned Undersigned exited offender that that groin area was in public exited vehicle vehicle to advise advise offender there was a call on his actions quickly advised advised undersigned undersigned that that he was was on his there actions he quickly property and was was free to do as he wanted. wanted. Offender under arrest own property Offender placed placed under arrest by undersigned and transported transpotied toGPD to GPD Headquarters Headquarters for pro~essing." pro(?essing." undersigned After processing, Perko was issued issued an appearance ticket and released released without without having having to post post bail. After processing, Perko was appearance ticket 2010, according Perko, an article article reporting reporting his arrest, with On October October 12, 12,2010, according to Perko, arrest, along along with another Scarsdale Inquirer; copy of page from another unrelated unrelated incident, incident, appeared appeared in the Scarsdale Inquirer; he submits submits a copy of a page a local local news news website, website, www.scarsdale10583.com. www.scarsdale I 0583 .com, apparently reproducing that that article apparently reproducing article (see Defendants' Exhibit Exhibit 0, NYSCEF Doc. No. No. 43). Defendants' 0, NYSCEFDoG. A Superceding Information was was filed on November November 17, 2010 2010 in Greenburgh Court, Superceding Information Greenburgh Town Town Court, ( . of Disorderly Disorderly Conduct Conduct in violation Penal Law Law §S240.20, 240.20, and replacing the adding a count adding count of violation of ofPerial and replacing charge Lewdness, aaBB misdemeanor, charge under under Penal Penal Law Law §S245.01, 245.01, the offense charge of of Public Public Lewdness, misdemeanor, to a charge offense of Exposure of Person, a violation. De Vito described in the Superceding Superceding of Exposure of a Person, violation. Ofiicer Officer DeVito described the events events ill Information as follows: Information follows: "The time and place intent to cause "The Defendant(s) Defendarit(s) at the above above date, time place did with with intent cause public inconvenience, alarm, and recklessly recklessly creating risk public inconvenience, and annoyance annoyance and alarrh, creating a risk thereof: hazardous or physically physically offensive offensive condition which thereof, create create a hazardous condition by any act aCt which serves no legitimate legitimate purpose. serves purpose. The Defendant(s) Defendant(s) appeared appeared ina in a public public place place while while private-or intimate'parts intimate· parts were were unclothed exposed. the private-or unclothed or exposed. "To above date, time time and place, while seated seated in a "To wit: Your Your deponent, deponent, at the above place, did while .marked Town of of Greenburgh Greenburgh Police defendant marked Town Police Car on Old Old Army Army Rd, observed observed the defendant Kenneth Perko standing atthe atthe end end of ofthe driveway at 325 Old Old Army Kenneth Perko standing the driveway Anny Rd using using an electric leaf leaf blower blower approximately approximately fivefeet fiveJeet from from the the roadway roadway of of 91d Old Army Army Rd, Rd, a . electric highway. He was was wearing wearing at-shirt a t-shirt and and was was nude nude from from the the waist waist down, down, with with . public public highway. exposed. Your Your deponent deponent got out out of ofthe patrol car, and and approac;hed approached the the his penis penis exposed. the patrol defendant, who who remained remained standing, standing, still still nude nude from from the the waist waist down. down. After After advising advising · defendant, defendant that that he was was naked naked from from the the waist waist down, down, the the defendant defendant told told your your the defendant 3 [* 3] 3 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 deponent was on his own property, and that pleased. He deponent that that he was own property, that he could could do as he pleased. continued your deponent while his genitalia continued to engage engage your deponent in conversation conversation while genitalia were were still being exposed. defendant was was engaging being exposed. At the time time the defendant engaging in the above above conduct conduct he was not not breasfeeding breasfeeding or entertaining play, exhibition Army entertaining in a play, exhibition or show. show. Old Army Road heavily trafficked trafficked thoroughfare, thoroughfare, located twenty yards yards Road is a heavily located approximately approximately twenty basis, there there are numerous from the entrance entrance to Edgemont Edgemont High High School. School. On a daily daily basis, numerous traffic which which pass pass by 325 Old school buses and and hundreds school buses hundreds of of cars as well as foot traffic Old Army Army Road." Road." On November November 18th, 2010 police obtained Asher, the 2010 the police obtained a statement statement from witness witness Diana Diana Asher, Perko on the the date individual who had originally police about individual who originally contacted contacted the police about her observations observations of of Perko date of of his arrest: "On Army Rd, on my way way home "On October October 11th, 2010 2010 I was was traveling traveling on Old Old Army home from observed a white clearing a yard on Old the store. I observed white male male approximately approximately 60 years years clearing Old Army Rd. He was was about medium build. end of Army about six feet tall with with a medium build. He was was at the end of a Army Road, White Oak Lane, Lane, which the entrance driveway driveway on Old Army Road, close close to White which is the entrance to Edgemont High School. was a woman who appeared Edgemont High School. There There was woman outside outside with with him him who appeared to helping him. I was realized that that he was was not not wearing wearing pants pants or be helping was surprised surprised when when I realized underwear. He was was naked naked from the waist waist down. my way way home home underwear. down. I continued continued on my became concerned and was was somewhat somewhat in a state state of of disbelief. disbelief. I became concerned about about the situation situation ifhe was and for the man man and his well being. being. I did not not know know if he needed needed help help and I was concerned people traveling traveling with could travel concerned that that children children or people with children children could travel by and see him. I turned turned around make sure I was mistaken in what around and drove drove by again again to make was not not mistaken what I saw. When When I drove saw the same the drove by the second second time time I saw same man man bending bending over over at the behind. He was was only from the waist view of waist and got a clear clear view of his naked naked behind. only a few feet from roadway called the police. police. I thought police roadway in clear clear sight. I went went home home and called thought the police should made aware thought he or the woman should be made aware of of what what he was doing doing and I also thought woman who was with with him him may may have have needed needed some help. A short while later received a who was some help. short while later I received phone call from from the Greenburgh that they they had had located phone Greenburgh Police Police informing informing me that located and arrested man. I was was a little surprised. police officer house a arrested the man. surprised. A police officer came came to my house few minutes drive by and see the man doing yard minutes later later and I told told him him that that I did drive man doing work down and that called to report work naked naked from the waist waist down that I was was the one one that that called report it. He asked me at that that time if I was statement and I told told him him I did asked time if was willing willing to provide provide a statement not want any further involvement. I was contacted contacted by Sgt. Powell Powell on not really really want further involvement. November 17,2010 and he spoke spoke with with me about about the arrest arrest and case. After After November 17, 2010 and speaking with with him him I did agree agree to provide statement about about what what I saw saw and and why why I speaking provide a statement called." called." non-jury trial trial on the criminal criminal charges charges was held held on January January 15, 15,2013, which Diana Diana A non-jury 2013, at which 4 [* 4] 4 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 Asher and Officer Vito testified. testified. After prosecution (but not the defense) Asher Officer De DeVito After the prosecution (but apparently apparently not defense) rested, rested, Perko made pursuant to Criminal Law section 290.10 for a trial order Perko made a motion motion pursuant Criminal Procedure Procedure Law section 290.10 order of of dismissal. Walter Rivera, I 3, 2013, denied dismissal. The trial court court (Hon. (Hon.Walter Rivera, J.), in an order order dated dated August August 13,2013, denied Perko's motion for atrial a trial order proceeded to make make factual and Perko's motion order of of dismissal, dismissal, and proceeded factual findings findings and concluded Perko was concluded that that Perko was guilty guilty of of the charges. charges. By an amended amended decision decision and order order dated dated ·. September vacated the findings but adhered adhered to the decision September 30, 2013, 2013, the court court vacated findings of of guilt, guilt, but decision denying denying both counts, directed that that the trial trial defendant's defendant's motion motion for foraa trial order order of of dismissal dismissal as to both counts, and directed continue future date. In a subsequent mistrial continue on a future subsequent order order dated dated June June 24, 2014, 2014, the Court Court granted granted a mistrial directed that new trial trial be held different Town Town Justice. Justice. After and directed that a new held before before a different After numerous numerous reschedulings of based on the unavailability unavailability of the People's People's witnesses, reschedulings of the retrial retrial based ofthe witnesses, by order order dated dated ) May 2017 the case was dismissed May 24, 2017 case was dismissed on speedy speedy trial grounds. grounds. The Present Present Action Action Kenneth Perko wife, Susan Perko, commenced this action Kenneth Perko and his wife, Susan Perko, commenced this action on October 11, 2011 by . October \ . service of a summons summons with the complaint complaint was 2012. It alleges ten service of with notice. notice. The was filed on April April 11, 2012. alleges ten trespass, 2) false arrest, battery and the use of of excessive causes causes of of action: action: 1) trespass, arrest, 3) battery excessive force, force, 4) false imprisonment, 5) defamati_on, tort - stalking," prosecution, 8) imprisonment, defamati,on, 6) "prima "prima facie tort stalking," ?)malicious 7) malicious prosecution, intentional infliction of behalf of plaintiff Susan intentional infliction of emotional emotional distress, distress, 9) a derivative derivative claim claim on behalf of plaintiff Susan Perko, 0) a purported purported derivative behalf of Perko. In addition Perko, and I10) derivative claim claim on behalf of Kenneth Kenneth Perko. addition to the foregoing allegations, plaintiffs allege that that at least least two unmarked vehicles from foregoing facts and allegations, plaintiffs allege unmarked police police vehicles Town of of Greenburgh Greenburgh conducted conducted surveillance surveillance of of plaintiffs' home beginning with the pre-dawn plaintiffs' home beginning with pre-dawn the Town hours of of October October 14,2010, 14,2010, and then then followed followed plaintiff Susan Perko's Perko's vehicle vehicle on trips trips to the hours plaintiff Susan the bank bank grocery store, store, causing causing plaintiffs. mental suffering, suffering, fear and insecurity insecurity in their their home. home. and grocery plaintiffs.mental 5 [* 5] 5 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 In considering motion for summary summary judgment, judgment, each each cause cause of of action action will will be considering defendants' defendants' motion (( addressed follows: addressed individually, individually, as follows: False Arrest and False False Imprisonment Imprisonment False Arrest Initially, "false arrest and false imprisonment imprisonment ... names for the same same tort" tort" Initially, "false arrest ... are two names (Holland Poughkeepsie, 90 AD3d AD3d 841, 844-845 844-845 [2d Dept Dept 2011 D. ]). "In order order to prevail prevail (Holland v City City of of Poughkeepsie, on a cause action seeking damages for false arrest, arrest, ... plaintiff must must prove prove that: (1) cause of of action seeking to recover recover damages .;. a plaintiff of the resulting resulting the defendant intended to confine confine the plaintiff; plaintiff; (2) the plaintiff plaintiff was was aware aware of defendant intended confinement; (3) the plaintiff consent to the confinement; confinement; and and (4) (4) the the confinement confinement was was confinement; plaintiff did not consent privileged" (Washington-Herrera of Greenburgh, l 01 AD 3d 986, 987-988 987-988 . not otherwise otherwise privileged" (Washington-'Herrera v Town of Greenburgh, 101 [2d Dept Rivera v County of Nassau, Nassau, 83 AD 3d 1032, 1033 [2d Dept Dept 2011]; 2011]; see Dept 2012], 2012], quoting quoting Rivera County of Broughton v State State of New York, 37 NY NY 2d 458 [1975], cert denied denied sub nom nom Schanbarger Schanbarger v Broughton of New [1975], cert Kellogg, 423 US 929 [1975]). Kellogg, [1975]). Importantly, probable cause to believe believe that that the plaintiff plaintiff committed committed a Penal Penal Law Law offense offense is Importantly, probable cause a complete of false arrest arrest (see Holland Holland v City of Poughkeepsie, Poughkeepsie, 90 AD3d AD3d at complete defem;e defen~e to a claim claim of City of Fortunato v City Netv York, York, 63 AD3d AD3d 880 [2d Dept Dept 2009]), 2009]), The The existence existence or 844-845; 844-845; Fortunato City of of New probable cause question of of law law to be decided decided by the the court court only only where where absence absence of of probable cause "becomes "becomes a question there proper inferences inferences to be drawn drawn therefrom" therefrom" (Fortunato there is no real dispute dispute as to the facts or the proper (Fortunato v City of of New [internal quotation New York, 63 AD3d AD3d at 880 [internal quotation marks marks omitted]). omitted]). "Probable cause cause to arrest "Probable arrest requires requires the existence existence of of facts and circumstances circumstances which, which, when viewed lead a reasonable reasonable person person possessing possessing the when viewed as a whole, whole, would would lead the same same expertise as the the arresting arresting officer officer to conclude conclude that that an offense offense has has been been or is being being expertise committed, and and that that the the defendant defendant committed committed or is committing committing that that offense. offense. A .committed, finding of of probable probable cause cause does does not, not, however, however, require require the the same same quantum quantum of of proof proof finding necessary to sustain sustain a conviction, conviction, or to establish establish a prima prima facie case. case. Rather, Rather, it need need necessary merely appear appear more more probable than not that that a crime crime has has taken taken place and that that the the merely probable than place and 6 [* 6] 6 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 arrested is its perpetrator. one arrested perpetrator. Moreover, Moreover, in determining determining whether whether a police police officer officer probable cause cause for an arrest, arrest, the emphasis has probable emphasis should should not not be narrowly narrowly focused focused on . ... single single factor, . . any ... factor, but but on an evaluation evaluation of of the totality totality of of circumstances, circumstances, which takes takes into account account 'the realities of everyday everyday life unfolding unfolding before before a trained trained which realities of officer who who has to confront, confront, on a daily daily basis, basis, similar similar incidents" incidents" officer (People 304, 306-307 Dept 2004] [internal citations and and quotation quotation marks marks (People v Wright, 8 AD3d AD3d 304, 306-307 [2d Dept [internal citations omitted]). omitted]). Although crime of of Public Although the the crime Public Lewdness Lewdness (Penal (Penal Law Law§~ 245.00), 245.00), with with which which Perko Perko was was charged at the time of his arrest, includes the arrest, includes the element element of of a lewd lewd act or a lewd lewd manner, manner, which which charged time of arguably was was not not established established by the circumstances, arguably circumstances, it is well well settled settled that that a police police offIcer's officer's "subjective reason [an]'arrest "subjective reason for making making [an] arrest need need not be the criminal criminal offense offense as to which which the known known provide probable probable cause" cause" (Devenpeck (Devenpeck v Alford, [2004]; see People facts provide Alford, 543 US 146, 146, 153 [2004]; People v Rodriguez,.84 AD3d 500,501 500, 501 [1st Dept2011]). Dept 2011]). The The facts known known to, and the the observations observations made made Rodriguez, 84 AD3d Officer De DeVito, sufficient to establish by, Officer Vito, were were sufficient establish probable probable cause cause that that Perko Perko was was committing committing the offense (Penal Law Law§~ 245.01) 245.01) in his presence. presence. That That offense offense is offense of of Exposure Exposure of of a Person Person (Penal committed when, certain inapplicable committed when, with with certain inapplicable exceptions, exceptions, the perpetrator perpetrator "appears "appears in a public public place place such a manner private or intimate his body manner that that the private intimate parts parts of ofhis body are unclothed unclothed or exposed." exposed." in such of Perko's arrest, Officer At the time time of Perko' s arrest, Officer DeVito De Vito had had a sufficient sufficient basis basis to conclude conclude that that the the private or intimate intimate parts parts of of Perko's Perko's body body were were being being exposed, exposed, at least least partially partially or intermittently, intermittently, private people who happened to pass to people who happened pass by. Importantly, Importantly, it is undisputed undisputed that that Perko Perko was was not not wearing wearing any pants or underwear pants underwear while while he was was using using a leaf leaf blower blower in his yard, yard, in proximity proximity to a public public road, road, where motorists motorists or other other passersby passersby could where could see him. Neither Neither plaintiffs' plaintiffs' assertions assertions that that Perko Perko was was wearing a t-shirt that that extended extended"at wearing at-shirt "at least least twelve twelve (12) inches inches below below his waist" waist" and and covered covered his genitals at all times, times, nor nor the submitted genitals submitted photographs photographs of of Perko Perko wearing wearing the the t-shirt t-shirt he was was wearing wearing 7 [* 7] 7 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 at the time of his arrest, create the existence existence of of a material material issue issue of of fact on the question question of of time of arrest, serve serve to create whether Officer De Vito had probable cause cause to make make the arrest. arrest. Both Both the the assertion assertion that that the whether Officer DeVito had probable bottom hist-shirt genitals at all times, times, and the photograph photograph showing showing the the t-shirt t-shirt bottom of of his t-shirt covered covered Perko's Perko's genitals covering genitals, fail to establish establish plaintiffs' plaintiffs' contention contention that that "his genitals were were not not visible visible [to covering his genitals, "his genitals of his t-shirt." t-shirt." They They merely merely establish, establish, at best, best, that that if if Perko Perko . Officer De Vito] below below the bottom bottom of ,Officer ~eVito] stood with the t-shirt t-shirt carefully arranged, his genitals genitals were were not not visible visible to an individual individual whose whose stood still, with carefully arranged, eyes were were at the height height of of the camera; they do not establish establish that that the the t-shirt t-shirt hung hung sufficiently sufficiently far camera; they below his genitals genitals to ensure ensure that below that a passing passing breeze breeze or a sideways sideways motion motion would would not result result in. in exposure. exposure. Nor do plaintiffs' plaintiffs' submissions preclude the possibility possibility that that a shorter shorter passerby, passerby, such such as a Nor submissions preclude child, view of of Perko' Perko'ss g~nitals: genitals'. Susan Perko's affidavit affidavit stating stating that that she child, could could be exposed exposed to a view Susan Perko's saw Office DeVito bend bend over front of of Perko, Perko, which which plaintiffs plaintiffs rely rely on to establish establish that that the Office DeVito over in front officer was unable officer unable to see Perko's Perko's genitals. genitals unless unless and until until he bent bent over, over, serves serves to establish establish that that possibility. The The purported purported dispute plaintiffs attempt attempt to create create as to exactly exactly when when and and how how Officer Officer possibility. dispute plaintiffs DeVito Perko's s genitals De Vito was was able able to see Perko' genitals does not not create create a material material issue issue of of fact as to whether whether Perko made observations that supported supported his determination determination that that, he had had probable probable cause cause to Perko properly properly made observations that make make an arrest. The requirement requirement that accused person's "in a public The that the accused person's appearance appearance be "in public place" place" is also Officer DeVito's DeVito's knowledge knowledge and and observations observations here. here. The The subtleties subtleties satisfied matter oflaw satisfied as a matter oflaw by Officer of determining determining when when an individual individual is situated situated "in "in a public public place" place" for purposes purposes of of the the Penal Penal Law Law of explored in People (78 NY2d NY2d 626 [1991] [1991]),), where where each each of.the·d~fendants ofthed~fendants was was People v McNamara McNamara (78 was explored charged with with public public lewdness lewdness for engaging engaging in a a sexual sexual act in a parked parked vehicle. vehicle. The The Court Court charged 8 [* 8] 8 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 clarified that the element place" was not established clarified that element of of "public "public place".was established merely merely by the charge charge that that the perpetrator was located located in "the vehicle parked parked at a stated but that that the perpetrator "the interior interior of of a vehicle stated address," address," but interior parked vehicle vehicle may become a "public place" if visible to a interior of of a parked may become "public place" if the car's interior interior is visible member passing public, public, and the vehicle likely would would be observed member of of the passing vehicle is situated situated where where it likely observed by such a person person (78 NY2d NY2d at 634). DeVito's testimony that Perko, 634). Here Here Officer Officer DeVito's testimony established established that Perko, private property, property, was was positioned positioned so as I~obe to be "visible . although although standing standing on his private "visible to a member member of of the passing public, public, and [was] situated place where.[he] passing situated in a place where.[he] likely likely would would be observed observed by such such a person" (id.). Any Any dispute Perko';" exact exact location person" dispute as to Perko's location in his driveway driveway and and yard yard is immaterial, immaterial, of his distance under any such since regardless of since regardless distance from from the street, street, which which varied, varied, under such circumstance circumstance he was toa passerby, "in such such a manner of his body was visible visible toa passerby, and "in manner that that the private private or intimate intimate parts parts of body [were] unclothed exposed." It is worth worth noting noting that "dashcarn" footage the police that the "dashcam" footage from the police car [were] unclothed or exposed." shows Perko standing near from, the street street as the officer officer approached. approached. shows Perko to h~lVebeen have been standing near to, and visible visible from, Defendants having established a prima showing that arresting officer officer had Defendants having established prima facie showing that the arresting had . probable cause to arrest arrest Perko Perko for Exposure Exposure ofa ofa Person, Person, and plaintiffs having failed failed to probable cause plaintiffs having demonstrate the existence existence of of any issue issue of of fact in that that regard, defendants are entitled entitled to the regard, defendants the demonstrate dismissal of of the causes causes of of action action for false arrest arrest and false imprisonment. dismissal imprisonment. Even if if this this Court Court concluded officer lacked lacked probable cause at the the time time of of concluded that that the the police police officer probable cause Even arrest, defendants defendants are protected qualified immunity, immunity, as long long as the the arresting arresting officer officer the arrest, protected by by qualified reasonably, albeit mistakenly, mistakenly, believed reasonably, albeit believed he had had probable probable cause cause (see Hunter Hunter v Bryant, Bryant, 502 US 224, 227 [1991 ]). but mistaken, beliefs as to the D. "Officers "Officers can can have have reasonable, reasonable, but mistaken, beliefs the facts establishing establishing the existence of of probable cause ... ... and in those those situations situations courts courts will will not hold hold that that they they have have existence probable cause v violated the Constitution" Constitution" ((Caldarola Calabrese, 298 F3d F3d 156, 162 [2d Cir Cir 2002], 2002], quoting quoting violated Caldarola vCalabrese, 9 [* 9] 9 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 Saucier Katz, 533 US 194,206 [2001] [internal quotation marks marks omitted]). omitted]). "Therefore, Saucier v Katz, 194,206 [2001] [internal quotation "Therefore, in situations where an officer may have have reasonably reasonably but mistakenly mistakenly concluded concluded that that probable probable cause cause situations where officer may existed, nonetheless entitled entitled to qualified qualified immunity" immunity" (Ca!daro!a existed, the officer officer is nonetheless (Caldarola v Calabrese, Calabrese, 298 F3d at 162). Plaintiffs argue that qualified immunity does does not not protect protect officers officers who who "plainly violate" the Plaintiffs argue that qualified immunity "plainly violate" rights of the arrested individual (Harlow Fitzgerald, 457 457 US 800,818 . constitutional constitutional rights of the arrested individual (Harlow v Fitzgerald, 800, 818 [1982]), [1982]), that the constitutional right that that was plainly plainly violated violated was was "the right to be free froin from and claim claim that constitutional right "the right arrest or prosecution prosecution in the the absence absence of of probable probable cause" cause" (citing (citing Riccuiti Riccuiti v New New York Auth., arrest York City City Tr. Tr. Auth., 124 F3d 123, 127 [2d Cir 1997]; of New Haven, Haven, 950 F2d F2d 864,870 [2d Cir Cir 1991]). 1997]; Golino Golino v City a/New 864, 870[2d 1991]). However, qualify as a plain plain violation violation of of a constitutional constitutional . However, the circumstances circumstances presented presented here do not qualify of probable probable cause cause does does not not support support a right; the relied-on right to be free from arrest arrest iIi in the absence absence of .. right; relied-on right finding liability if officer's probable probable cause cause assessment assessment was was reasonable, reasonable, finding of of civil civil liability if the error error in the officer's albeit mistaken. De Vito, having having heard heard a report report of of a man man naked naked from from the the waist waist albeit mistaken. Here, Here, Officer Officer DeVito, down, Perko, who who was visible visible from the road, road, to be clothed clothed in only only a shirt shirt down, and having having observed observed Perko, that did not extend past his genitals, genitals, and having having further further observed observed that that his genitals genitals were, were, it;l in .that extend far past fact, exposed, exposed, could could reasonably have concluded reasonably have concluded that that he had probable probable cause cause to make make an arrest, arrest, \\ even if if he was mistaken in his assessment assessment of of the circumstances circumstances or the applicable applicable provision provision of of the was mistaken Penal Penal Law. Malicious Prosecution Malicious Prosecution "The elements elements of of the the tort tort ofmalicious of malicious prosecution prosecution are: (1) the the commencement commencement or "The continuation of of a criminal criminal proceeding proceeding by the the defendant defendant against against the the plaintiff, plaintiff, (2) the the termination termination of of continuati?n the proceeding proceeding in favor favor of of the the accused, accused, (3) the absence absence of of probable probable cause cause :for for the the criminal criminal the 10 [* 10] 10 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 proceeding and (4) actual State o/New of New York, 37 NY2d NY2d at 457; 457; see proceeding actual malice" malice" (Broughton (Broughton v State Washington-Herrera Greenburgh, 101 AD 3d at 988). The previously~reached previously-reached Washington-Herrera v Town of o/Greenburgh, conclusion that the police probable cause cause for Perko's Perko's arrest, arrest, and the absence absence of of any basis basis to conclu~ion that police had probable find that cause dissipated dissipated thereafter, thereafter, requires requires the dismissal dismissal of of this this cause cause of of action action as that the probable probable. cause well. . Perko's arrest arrest and and M~reover, defendants defendants have have made made a prima prima facie showing showing that that Perko's Moreover, . of prosecution were were not motivated motivated by actual actual malice: malice: Such malice is defined, defined, in the the context context of prosecution Such malice malicious prosecution, as "a wrong or improper improper motive, motive, something something other other than than a desire desire to see the' the malicious prosecution, "a wrong ends Lourdes Torres Jones, 26 26 NY3d NY3d 742; 742, ,761, 761, quoting quoting Nardelli Nardelli v ends ofjustice of justice served" served" (De Lourdes Torres v Jones, Stamberg, 44 NY2d NY2d 500,503 Plaintiffs' contention contention in response, response, that that Officer Officer DeVito's DeVito's 8tamberg, 500, 503 [1978]). [1978]). Plaintiffs' of evidence,. evidence, cannot cannot succeed. succeed. They They have have malice misrepresentation or fal~ification falsification of malice is shown shown by his misrepresentation of evidence evidence that that would would establish establish an improper improper motive motive (see not shmvn shown the type of of falsification falsification of Colon New York, 60 NY2d NY2d 78,82 78, 82 [1983]). Colon v City of o/New York,?O [1983]). Plaintiffs' falsification claim claim relies relies substantially substantially on the suggestion suggestion that that DeVito De Vito lied lied when when Plaintiffs' falsification Perko's genitals genitals as he approached approached Perko. Perko. However, However, they they cannot cannot that he observed he asserted asserted that observed Perko's establish that DeVito DeVito was lying lying when when he made made that that statement. statement. The The observatIon observation cannot cannot be establish that disproved, disproved, and indeed, indeed, nothing nothing they they submitted submitted succeeds succeeds in doing doing so. Moreover, Moreover, the purported purported dispute exactly when dispute as to exactly when and and how how Officer Officer DeVito De Vito was was able able to see Perko's Perko's genitals genitals does does not' not create a material issue of of fact as to whether create material issue whether Perko Perko falsified falsified his observations observations so as to make make an unwarranted arrest. arrest. Rather, Rather, both both sides' sides' assertions assertions establish establish the legitimacy legitimacy of of the the arrest arrest based based on on unwarranted Perko'ss refusal refusal to put put on additional additional clothing. clothing. Perko' Part of of plaintiffs' plaintiffs' argument argument is that that Officer Officer DeVito's DeVito's malice malice is apparent apparent when when the the arrest arrest is Part 11 11 [* 11] 11 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 understood to have have been been prompted prompted not by Perko's Perko's lack lack of of clothing, clothing, but but by his lack lack of of obedience obedience understood directives. However, However, the the evolution evolution of of Officer Officer DeVito's De Vito's response response from his initial, initial, to the officer's officer's directives. more conciliatory eventual placement placement of of Perko Perko under under arrest arrest was was ultimately, ultimately, more conciliatory approach approach to his eventual legitimately prompted prompted by Perko's "put on some legitimately Perko's refusal refusal to "put some pants" pants" based based onhis on his (incorrect) (incorrect) asserted asserted belief that that he was was entitled dress exactly exactly as he chose chose while while on his own own property, property, and and that that the belief entitled to dress i police had no authority that situation irrespective of of whet whether parts of of his body body might might police authority in that situation - irrespective herinintimate tim ate parts be visible visible to members members of public. The assertion assertion that that Officer Officer DeVito De Vito "admitted" that he of the public. "admitted" that arrested Perko only only because because Perko Perko questioned questioned his his authority authority does does not establish establish an admission admission of of an . arrested Perko recognition that that he had had no other other options. options. improper motive; motive; it is merely improper merely a recognition extent plaintiffs plaintiffs point To the the extent point to disagreements disagreements from, or changes changes in, details details provided provided by Officer Vito in the course of the prosecution, prosecution, such as regarding regarding Perko's Perko's distance distance from from the Officer De DeVito course of street, nothing in any such constitutes the type type of of doctoring doctoring or falsehoods falsehoods that that could could street, nothing such deviations deviations constitutes a· finding malice. Indeed, Indeed, given given the radioed radioed information, information, which which Officer Officer DeVito DeVito was justify a' justify finding of of malice. merely confirming, dashcam footage footage showing showing Perko Perko near near to, and in view view of, the roadway, roadway, merely confirming, and and the dashcam nothing nothing in DeVito's De Vito's testimony testimony was suspect. suspect. Finally, Finally, Officer Officer DeVito's De Vito's initial initial choice choice ofa of a charge charge does not does not establish establish malice malice on his part; part; it merely merely illustrates illustrates the the usefulness usefulness of of subsequent subsequent legal review. review. Because nothing in plaintiffs' Because nothing plaintiffs' submissions submissions is is sufficient sufficient to create create a triable triable issue issue of of fact on the claim claim that that Officer Officer De DeVito acted with Vito acted with malice, malice, and because because the officer officer had had probable probable cause cause to make the the arrest, arrest, the the malicious malicious prosecution prosecution claim claim must must be dismissed. dismissed. make Trespass Trespass The cause cause of of action action for trespass trespass alleges alleges that that at the time time Officer Officer De DeVito entered upon upon the the The Vito entered 12 l [* 12] 12 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 Perkos' property despite officer stay off private property property in the Perkos' property despite Perko's Perko's instruction instruction that that the officer off of of his private absence probable cause cause to enter. Defendants Defendants argue that the cause must absence of of a warrant warrant or probable argue that cause of of action action must because Officer Vito was was privileged privileged to enter Perko's property. property. be dismissed dismissed because Officer De DeVito enter Perko's Significantly, this case warrantless intrusion intrusion or arrest arrest inside inside a home home or Significantly, case does does not involve involve a warrantless its "curti !age," in which person has a "legitimate People v "curtilage," which a person "legitimate expectation expectation of of privacy" privacy" (see People Theodore, Dept 2014], 2014], citing Florida v Jardines, Jardines, 569 US 1, 133 S Ct Theodore, 114 AD3d AD3d 814, 816 [2d Dept citing Florida 1409 [2013 ]). The area area in which which Perko was standing when he protested protested that that Officer De Vito was was [2013]). Perko was standing when Officer DeVito trespassing was viewable public, and could properly be entered the police police to make make a trespassing was viewable by the public, could properly entered by the warrant or the use legitimate legitimate inquiry inquiry or investigate investigate a complaint, complaint, in the absence absence of of a warrant use of of the emergency plaintiffs' premises premises based based on on a radio radio dispatch emergency doctrine doctrine (id.). Having Having arrived arrived at plaintiffs' dispatch call of of a man on the property, property, "naked having, upon upon arrival, arrival, perceived that Perko Perko was "naked to the waist," waist," and having, perceived that not wearing De Vito was authorized take reasonable reasonable steps steps to investigate investigate the the wearing pants, pants, Officer Officer DeVito authorized to take situation further. obligation to inquire inquire into the state of of mind mind of of the subject sq.bject individual, individual, situation further. He had had the obligation ensure that Perko was subjecting people passing by to inadvertent as well as to ensure that Perko was not not subjecting people passing inadvertent and unwanted unwanted glimpses of of his genitalia. genitalia. glimpses "The officer officer did not come come to the premises ... to make arrest. He had make an arrest. had responded responded "The premises ... to a call from [[aa neighbor] unusual [occurrence]. [occurrence]. What. .. action action neighbor] to investigate investigate an unusual What. .. would upon ascertaining ascertaining the cause cause was notdetenninab1e advance would be required required upon not determinable in advance by the police ... The The inquiry might result action, in succor succor for a person person or Of police ... inquiry might result in no action, persons withoutcrlminal causation, in a direction quiet persons in distress distress with with or without criminal causation, direction to quiet down, or in a criminal criminal arrest." arrest." down, (People v Gallmon, Gallmon, 19 NY2d 389,392 [1967]). [1967]). Once Once he came came to understand state of of (People NY2d 389,392 understand that that Perko's Perko's state semi-undress was was intentional, intentional, and that that Perko Perko was was unconcerned unconcerned with with the the possibility that semi-undress possibility that individuals who who happened happened to pass could be subjected subjected to a view view of of his his genif:alia, genit.alia, Officer Officer individuals pass by could 13 [* 13] 13 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 De Vito reasonably that he had had probable probable cause cause to make make an arrest. arrest. DeVito reasonably concluded concluded that At every stage in the the process, process, Officer Officer DeVito's De Vito's presence presence on plaintiffs' plaintiffs' property property was was ~At every stage supported privilege, and he may not not be,held be held liable liable for trespass. trespass. supported by proper proper authority authority and privilege, Battery and Use Use of Excessive Force Force Battery of Excessive Plaintiffs' cause Excessive Force'; Force" alleges alleges thatdespite that despite Perko's Perko' s Plaintiffs' cause of of action action for "Battery "Battery and Excessive having advised Officer Officer Devito Devito that that Perko Perko was was recovering recovering from hip replacement replacement surgery, surgery, the having advised officer forcefully placed placed Perko Perko in handcuffs handcuffs behind behind his back back and pushed pushed Perko Perko officer improperly improperly and forcefully toward and into the patrol patrol car. It is also alleged alleged that that the handcuffs handcuffs were were tightened tightened excessively, excessively, toward and that they caused bruising, soreness soreness and and stiffness stiffness in both both wrists,. wrists,. Defendaq.ts Defendants contend contend that that that they caused bruising, because Perko did not sustain injury, the claimed claimed use of of such such force is established established to have have because Perko sustain any injury, of action action should should be dismissed dismissed.. been de minimis, minimis, such that the cause cause of been such that of force by a police police office office making making an arrest arrest (see ·. The law provides for the the justifiable justifiable use of law provides Penal Law Law§S 35.30). police or peace peace officer, officer, having having a reasonable reasonable belief belief that that a person person has 35.30). "A "A police committed generally use such such physical physical force, short sh011 of of deadly deadly physical physical force, as committed an offense, offense, may generally believes necessary necessary to effect effect that that person's person's arrest" arrest" (William (William C. Donnino, Donnino, the officer officer reasonably reasonably believes of NY, NY, Penal Penal Law Law§S 35.00). 35.00). The The "right make Practice Commentary, Cons Laws Laws of Practice Commentary, McKinney's McKinney'sCons "right to make arrest... necessarily carries with of physical physical coercion coercion or'threat or'threat an arrest... necessarily carries with it the right right to use some some degree degree of _thereof effect it" (Graham (Graham v Connor, Connor, 490 US.386, [1989]). thereof to effect US.386, 396 [1989]). battery against against a police police officer officer based based on the officer's officer's conduct conduct in the the course course of of A claim claim for battery arrest requires requires the the plaintiff plaintiff to prove prove that that the the officer's officer's use of of force force was was "excessive "excessive or an arrest objectively unreasonable unreasonable under under the the circumstances" circumstances" (Holland (Holland v City City of of Poughkeepsie, AD3d objectively Poughkeepsie, 90 AD3d [2011]). "[T]he test test for whether whether a plaintiff plaintiff can can maintain maintain a ... ... cause cause of of action action for ... ... battery battery 841 (2011 ]). "[T]he 14 [* 14] 14 of 20 INDEX NO. 56777/2011 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 06/02/2020 is the exact test as the one useq used to analyze analyze a Fourth Fourth Amendment Amendment excessive excessive force claim" claim" exact same same test (Graham of New York, 928 F Supp 610,624 NY 2013]). 2013]). To prove prove a civil civil battery battery (Graham v City City o/New Supp 2d 610, 624 [ED NY claim against a police police officer, plaintiff is required required to show show that that the officer officer intentionally intentionally made made claim'against officer, ,aa plaintiff bodily contact, that the contact offensive and that that [the officer's] officer's] conduct conduct was was not not reasonable reasonable bodily contact, that contact was offensive , within the meaning meaning of Penal Law Law section section 35.30(1), 35.30(1 ), which which governs governs the use use of of force by law, law within of Penal enforcement of their their duties duties (see Nimely Nimely v,City v City o/New of New York, 414 414 F3d F3d 381,391 381,391 [2d enforcement in the course course of Cir 2005]; Johnson v Suffolk Suffolk County Police Dept., Dept., 245 AD2d340 AD 2d 340 [2d Dept Dept 1997]). 2005]; Johnson County Police 1997]). "Claims that enforcement personnel "Claims that law law enforcement personnel used used excessive excessive force in the' the co~rse course of of an arrest, arrest are analyzed under the Fourth Fourth Amendment Amendment and its standard standard of of objective objective reasonableness" reasonableness" analyzed under (Ostrander State of New York, 289 AD2d AD2d 463,464 463,464 [2d Dept Dept 2001]). 2001]). "The reasonableness ofa of a (Ostrander v State a/New "The reasonableness must bejudged be judged from the perspective perspective of of a reasonable reasonable officer officer on the scene, scene, particular particular use of of force must rather with the 20/20 vision of of hindsight" hindsight" (see Campagna Arleo, 25 AD3d AD3d 528,529 528, 529 [2d rather than than with 20/20 vision Campagna v Arleo, Dept 2006], Mazzariello v Town o/Cheektowaga, of Cheektowaga, 305 AD2d AD2d 1118, 1119 [4th Dept Dept Dept 2006]; quoting quoting Mazzariello 2003 ]). "Our Fourth Amendment Amendment jurisprudence jurisprudence has long long recognized recognized that that the right right to make make an 2003]). "Our Fourth arrest necessarily carries carries with with it the right right to use some some degree degree of of physical physical coercion coercion ... to effect effect arrest ... necessarily it," and "[n]ot push or shove shove ... violates violates the Fourth Fourth Amendment" Amendment" (Graham "[n]ot every every push (Graham v Connor, Connor, 490 Johnson v Glick, Cir 1973]). 1973]). US 386, 394-395, 394-395, 396 [1989]; [1989]; see Johnson Glick, 481 F. 2d 1028, 1033 [2d Cir ' The provided defendants in support support of of this this motion motion establishes establishes that that any push push The evidence evidence provided by defendants given to Perko .,or or shove shove given Perko by Officer Officer DeVito, De Vito, such as when when they they were were proceeding proceeding uphill uphill or into the police car, were were not not of of a nature nature that that would would violate violate the the applicable applicable reasonableness reasonableness standard. standard. Nor Nor police . . . anything submitted submitted by plaintiffs plaintiffs create create an issue issue of of fact oh on this this issue. issue. Indeed, Indeed, Perko Perko does anything acknowledged in his own own testimony testimony that that as he and OfficerDeVito Officer DeVito headed headed up up an incline they acknowledged incline as they 15 .' [* 15] 15 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 walked toward toward the police located about about 20 - 25 feet away, away, he slowed slowed down, down, at which which point walked police car located point Officer De DeVito him what what he termed termed an "isolated "isolated push" with one one of of his hands'to hands 'to Perko's Perko's Vito gave him push" with Officer back shoulder. No unreasonable force force is demonstrated. demonstrated. back or shoulder. No unreasonable "[I]n evaluating evaluating the reasonableness reasonableness of of handcuffing, handcuffing, a Court Court is to consider consider evidence evidence that: "[l]n handcuffs were were unreasonably tight; 2) the defendants defendants ignored ignored the the [plaintiffs]·pleas [plaintiffs].pleas that that the 1) the handcuffs unreasonably tight; handcuffs tight; and and 3) the degree degree of of injury injury to the wrists" wrists" (Lynch (Lynch ex rel rei Lynch of handcuffs were were too tight; Lynch v City of Mount Supp 2d 459, 468 [SD NY 2008]). "There "There is consensus consensus among among courts courts ~n ~n Mount Vernon, 567 F Supp NY 2008]). [Second] [C]ircuit [C]ircuit that that tight tight handcuffing handcuffing does does not constitute constitute excessive excessive force :unless .unless it causes causes the [Second] some injury injury beyond beyond temporary temporary discomfort" discomfort" (Lynch (Lynch v City City of of Mount Supp 2d at some Mount Vernon, 567 F Supp cases cited cited therein). therein). Those Those injuries injuries most most common common in handcuffing handcuffing cases cases which which satisfy satisfy 468, and cases "injury" requirement requirement are "scarring "scarring and and nerve nerve damage" damage" (Usavage (Usavage v Port of New York & the "injury" Port Auth. Auth. of New York New Supp 2d575, 2d575, 592 [SD NY 2013]). New Jersey, Jersey, 932 F Supp NY 2013]). Plaintiff asserts asserts no injuries injuries other other than than bruising, soreness and.stiffness and. stiffness in both wrists from Plaintiff bruising, soreness both wrists allegedly excessively excessively tight tight handcuffs, handcuffs, and he admitted admitted thatthere thatthere was was no permanent injury and permanent injury the allegedly that he did not not seek seek medical medical attention. attention. that claimed by plaintiffs level at which they could could create create an The facts as claimed plaintiffs fail to rise to the level which they issue of of fact requiring requiring trial trial of of plaintiffs' excessive force and battery claims. issue plaintiffs' excessive battery claims. Defamation Defamation complaint alleges alleges that that both Officer De DeVito Police Chief Chief DeCarlo DeCarlo "maliciously "maliciously The complaint both Officer Vito and and Police and/or with with reckless reckless disregard disregard ... published defamatory words words to the public; that and/or published false and defamatory public; to wit, that Perko had had appeared appeared on his front front lawn lawn 'naked 'naked from the waist waist down.'" down.'" It adds adds that that these these words words Perko were published members of of the press, were thereafter thereafter widely widely reported reported on the radio, radio, on were published to members press, and were 16 [* 16] 16 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 television, over over the internet television, internet and in newspapers. newspapers. "The elements elements of of a cause cause of of action action for defamation defamation are (a) a false statement statement that that terids to "The expose a person person to public public contempt,'hatred, contempt,'hatred, ridicule, expose ridicule, aversion, aversion, or disgrace, disgrace, (b) published published with~ut with~ut privilege or authorization authorization toa amounting to fault as judged judged by, ~t ~taa minimum, minimum, a privilege to a third third party, party, (c) (c) amounting , ' negligence standard, standard, and ((d) (Stone negligence d) either either causing causing special special harm harm or constituting constituting defamation defamation per per se" (Stone AD3d 1028, 1029 [2d Dept "the v Bloomberg Bloomberg L.P., L.P., 163 AD3d Dept 2018]). 2018]). CPLR CPLR 3016 3016 (a) requires requires that that "the particular words words complained complained of shall be set forth particular of shall forth in the complaint." complaint." Although the complaint complaint quotes Although quotes the complained-oflanguage, complained-of language, as CPLR3016 CPLR 3016 (a) requires, requires, defendants initially initially contend contend tfiat the complaint of the defendants complaint fails to specify specify the time, time, place place and and manner manner ofthe alleged false statement statement and identify as has been alleged identify to whom whom the statement statement was made, made, been required required by \ , \ ' 1993]). However, case law (see Arsenault Arsenault v Forquer, Forquer, 197 AD2d AD2d 554,556 554, 556 [2d Dept Dept 1993]). However, since since the complaint can be understood understood to contemplate of the Incident Incident Report Report to the complaint contemplate defendants' defendants' release release of media, this ground ground for summary summary judgment media, judgment is rejected, rejected, andthe and the court court turns turns to defendants' defendants' defense defense of truth, as well the'claims of privilege. of truth, well as the claims of privilege. Officer Vito's statement Incident Report Report was that that he had had responded responded to a radio radio Officer De DeVito's statement in his Incident dispatch call of of a man "naked from the waist dispatch man "naked waist down." down." That That statement statement is true true and accurate; accurate; he arrived such a reported reported call; nor nor is there there any basis basis to question question arrived at plaintiffs' plaintiffs' home home to investigate investigate such the contents contents of of the reported reported radio the radio dispatch, dispatch, given given Diana Diana Asher's Asher's statement statement asserting asserting that that she made such statement when absolute defense defense (see made such a statement when she called called the police. police. Truth Truth serves serves as an absolute Matovcik Matovcik v Times Beacon Beacon Record Record Newspapers, Newspapers, 46 AD3d AD3d 636, 638 [2d Dept Dept 2007]). 2007]). Moreover, Moreover, even had De DeVito been asserting asserfing his own even Vito been own observation observation rather rather than than repeating repeating the the words words of of the radio radio dispatcher, the statement statement that Perko was "naked from the waist dispatcher, that Perko was "naked waist down" down" ,sufficiently sufficiently conveyed conveyed the 17 [* 17] 17 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 substantial Kehm v Murtha, Murtha, 286 AD2d AD2d 421 [2d Dept Dept 2001]; 200 I]; ,Carter Carter v Visconti, Visconti, 233 substantial truth truth (see Kehm AD2d Love v Morrow Morrow & Co., 193 AD2d AD2d 586,588 586,588 [2d Dept Dept 1993]). 1993]). AD2d 473,474 473,474 [2d Dept Dept 1996]; 1996]; Love Accordingly, that they they have have an absolute absolute defense defense to the cause cause of of Accordingly, defendants defendants have have demonstrated demonstrated that action. action. Moreover, official police police incident incident reports reports to local local media media representatives representatives is a Moreover, the release release of of official privileged governmental function, which privilege privilege can be overcome overcome only only by proof proof in evidentiary evidentiary privilegedgovernmerital function, which •, that defendants acted with with malice malice (Cahill o.f Nassau, 17 AD3d AD3d 497 497 [2d Dept Dept form that defendants acted (Cahill v County County a/Nassau, 2005]; Grier Johnson, 232 A.D.2d A.D.2d 846, 848 [3d Dept Dept 1996]). 1996]). Nothing Nothing in plaintiffs' plaintiffs' verified verified Grier v Johnson, complaint or evidentiary evidentiary submissions submissions satisfies complaint satisfies that burden burden of of establishing establishing the existence existence of of an issue of of fact as to whether defendants acted whether defendants acted with with malice. malice. The simple simple inclusion inclusion of of the the words words issue "naked from the waist down" in these "naked waist down" these circumstances circumstances does not in itself itself permit permit an inference inference of of ) . malice malice sufficient sufficient to overcome overcome the privilege. privilege. of Emotional Emotional Distress Distress Intentional Infliction Infliction of Intentional "The tort [[of of intentional intentional infliction infliction of of emotional emotional distress] distress] has has four elements: elements: (i) extreme extreme " The tort outrageous conduct; conduct; (ii) intent and outrageous intent to cause, cause, or disregard disregard ofa of a substantial substantial probability probability of of causing, causing, severe emotional emotional distress; distress; (iii) a causal causal connection severe connection between between the conduct conduct and and injury; injury; and and (iv) severe emotional emotional distress" distress" (Howell (Howell v New [1993]). New 81 NY2dl15, NY2d 115, 121 [1993]). New York York severe New York Post Post Co., 81 sets a high high threshold threshold for conduct that is "extreme outrageous" enough enough to constitute constitute conduct that "extreme and outrageous" . intentional intentional infliction infliction of of emotional emotional distress (Murphy v American Corp., 58 NY2d distress (Murphy American Home Home Produ~ts Products C01p., NY2d 293, 303 [1983]) [1983]) . 293, of the the complaint's complaint's factual factual allegations allegations satisfy satisfy the high high threshold threshold for the the element element of of . None None of "extreme and outrageous outrageous conduct." conduct." Moreover, Moreover, nothing nothing in plaintiffs' plaintiffs' submission submission create create a.showing a showing "extreme 18 [* 18] 18 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 of of emotional emotional distress distress of of sufficient sufficient severity severity as could could create create a material material issue issue of of fact regarding regarding that that element element of of the tort. Stalking Prima Facie Facie TortTort -Stalking Prima prima facie tort The "cause "cause of of action action of of prima tort consist[ consist[ s] of of four elements: elements: (1) intentional intentional ·. infliction justification, (4) by an act infliction of of harm, harm, (2) causing causing special special damages, damages, (3) without without excuse excuse or justification, or series NY2d 113, 117 [1984]). series of of acts that that would would otherwise otherwise be lawful" lawful" (Curiano (Curiano v. Suozzi, Suozzi, 63 NY2d [1984]). under New New York Plains, 185 F The The cause cause of of action action is "disfavored "disfavored ... under York law" (Hall (Hall v City City of of White Plains, Supp NY 2002]). prima facie tort Supp 2d 293, 293, 304 - 305 305 [SD NY 2002]). "An "An element element of of a prima tort cause cause of of action action is that that the complaining party suffered specific and complaining party suffered specific and measurable measurable loss, which which requires requires an allegation allegation of of special LLC, 149 AD3d special damages" damages" (Goldman (Goldman v Citicore Citicore l1, LLC, AD3d 1042, 1045 [2d Dept Dept 2017] 2017] [emphasis [emphasis added] Neither "[n]onspecific added] [citations [citations omitted]). omitted]). Neither "[n]onspecific conclusory conclusory allegations" allegations" nor nor "round "round figures figures or a general pleading requirements Matherson v. general allegation allegation of of a dollar dollar amount" amount" even even meet meet the pleading requirements (see Matherson v. Marchello, 100 AD2d piaintiffs offer Marchello, AD2d 233,235 233,235 [2d Dept Dept 1984]). 1984]). Because Because piaintiffs offer no evidentiary evidentiary materials establishing establishing specific. specific. and and measurable measurable loss suffered suffered by them, them, but merely nonspecific nonspecific materials but merely conclusory allegations allegations of of extreme extreme mental mental suffering, suffering, the cause cause of of action action cannot cannot survive survive summary summary conclusory judgment. judgment. Derivative Derivative Claim Claim A cause cause of of action action to recover recover damages damages for loss of of consortium consortium is derivative, derivative, so that that primary causes dismissal dismissal of of the primary causes of of action action also necessitates necessitates dismissal dismissal of of the the related related loss loss of of consortium Paisley v Coin Device Corp., Holmes v consortium claim claim (see Paisley Coin Device Corp., 5 AD3d AD3d 748, 750 [2d Dept Dept 2004]; 2004]; Holmes ) City of New Rochelle, Rochelle, 190 AD2d of New AD2d 713, 714 [2d Dept Dept 1993]). 1993]). Finally, Finally, there there is no authority authority that that would bring a derivative based on his wife's would allow allow Kenneth Kenneth Perko Perko to bring derivative cause cause of of action action based wife's loss of of 19 [* 19] 19 of 20 FILED: WESTCHESTER COUNTY CLERK 06/04/2020 10:00 AM NYSCEF DOC. NO. 80 INDEX NO. 56777/2011 RECEIVED NYSCEF: 06/02/2020 consortium consortium claim. claim. Based Based upon upon the foregoing, foregoing, it is hereby hereby ORDERED judgment dismissing ORDERED that that defendants' defendants' motions motions for summary summary judgment dismissing the complaint complaint pursuant to CPLR pursuant CPLR 3212 3212 are granted, granted, the complaint complaint is dismissed dismissed in its entirety, entirety, and and the Clerk Clerk is directed directed to enterjudgment enter judgment accordingly. accordingly. This This constitutes constitutes the decision decision and order order of of the Court Court .. Dated: New York Dated: White White Plains, Plains, New York _2_, 2020 June June _2_, 2020 Appearances: Appearances: for Plaintiffs: Plaintiffs: Patrick Patrick L. Selvey, Selvey, Esq. Nicholas Goodman & Associates, Associates, PLLC PLLC Nicholas Goodman 333 Park Park Avenue Avenue South, South, Suite Suite 3a New York, NY 10010 New York, NY 10010 212-227-9003 212-227-9003 pselvey@ngoodmanlaw.com pselvey@ngoodmanlaw.com for defendants Vito and DeCarlo: defendants De DeVito DeCarlo: Thomas J. Troetti, Troetti, Esq. Thomas 305 Old Old Tarrytown Tarrytown Road Road NY 10603 White White Plains, Plains, NY 914-484-5642 914-484-5642 ttroetti@gmail.com ttroetti@gmail.com for defendant defendant Town Town of of Greenburgh: Greenburgh: Lauren Casparie, Casparie, Esq. Lauren Morris Morris Duffy Duffy Alonso Alonso & Faley Faley Greenwich Street, Street, 22nd 22nd Floor Floor 101 Greenwich New York, NY 10006 New York, NY 10006 212-766-1888 212-766-1888 Lcasparie@mdafny.com Lcasparie@mdafny.com 20 [* 20] 20 of 20

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