BATISTA v. CITY OF NEW YORK (2005)

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered June 11, 2003, which, inter alia, granted in part and denied in part defendants' motion for summary judgment, and directed plaintiff Norman Batista to answer certain questions as to which he had asserted his Fifth Amendment rights at his deposition, but denied defendants' request to compel answers to certain other questions, unanimously modified, on the law, defendants' summary judgment motion granted to the further extent of dismissing plaintiffs' claims for false arrest and imprisonment, and malicious prosecution, and Batista directed to answer defendants' deposition questions to the extent indicated herein, and otherwise affirmed, without costs.

 Since the record discloses that there was probable cause for Mr. Batista's arrest, his claims for false arrest and imprisonment and malicious prosecution should have been dismissed (see Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283, 532 N.Y.S.2d 234, 528 N.E.2d 157 [1988];  Grant v. Barnes & Noble, 284 A.D.2d 238, 726 N.Y.S.2d 543 [2001] ).   Batista was observed entering a known drug location at which a confidential informant had purchased drugs on three separate occasions, the latest only recently.   Batista was escorted inside by a man fitting the confidential informant's description of the “doorman” evidently assigned to watch the front entrance for the seller.   When the police, in the course of executing the search warrant issued for the location, announced their presence outside the door to the apartment to which Batista had been admitted, they heard “running” and “scurrying” inside, and when they attempted to ram the door, they found that it was fortified by a length of wood.   Upon entering the apartment, the officers noted that it was practically unfurnished and did not appear lived in, further supporting the inference that it was a drug-selling location.   Under these circumstances, the police were entitled to infer that Batista's presence at the apartment was for the purpose of trafficking in narcotics and, accordingly, that he either had committed or was committing a crime (see People v. Graham, 211 A.D.2d 55, 58-59, 626 N.Y.S.2d 95 [1995], lv. denied 86 N.Y.2d 795, 632 N.Y.S.2d 508, 656 N.E.2d 607 [1995] ).   This was a sufficient predicate for Batista's arrest;  proof to sustain a criminal conviction was not required (People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985];  People v. Graham, supra, 211 A.D.2d at 58, 626 N.Y.S.2d 95).

The court properly dismissed the claim for failure to provide necessary medical attention, since plaintiffs failed to notify defendant City of the claim in accordance with General Municipal Law § 50-e.   Plaintiffs' general claims for violations of civil rights and intentional infliction of emotional distress were insufficient to alert the City as to this claim (see Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 484 N.Y.S.2d 533, 473 N.E.2d 761 [1984];   O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ).   Nor was Batista's General Municipal Law § 50-h hearing testimony sufficient to provide the required notice.   In any event, plaintiffs have not moved to amend their notice of claim, and the time to do so has expired (see General Municipal Law § 50-i[1][c];  cf. Perez v. City of New York, 228 A.D.2d 164, 644 N.Y.S.2d 170 [1996] ).

 Plaintiffs may not maintain the instant action while denying defendants information material and necessary to their defense by invoking the Fifth Amendment privilege against self-incrimination (see Laverne v. Incorporated. Vil. of Laurel Hollow, 18 N.Y.2d 635, 638, 272 N.Y.S.2d 780, 219 N.E.2d 294 [1966], appeal dismissed 386 U.S. 682, 87 S.Ct. 1324, 18 L.Ed.2d 403 [1967];  Federal Chandros v. Silverite Constr. Co., 167 A.D.2d 315, 562 N.Y.S.2d 64 [1990], appeal dismissed and lv. denied 77 N.Y.2d 893, 568 N.Y.S.2d 910, 571 N.E.2d 80 [1991] ).   Defendants' deposition questions in the three areas the motion court identified as protected by the privilege are relevant to the defense (see CPLR 3101[a];  Laverne v. Incorporated Vil. of Laurel Hollow, supra ), but only insofar as the information sought by defendants' questions relate to Polanco, the person who was arrested with Batista.   Thus, the court improvidently exercised its discretion when it limited the scope of defendants' questions by prohibiting inquiry into these areas, to the extent the answers would relate to Polanco.   Should plaintiff continue to invoke his Fifth Amendment right against self-incrimination, he does so at the risk of having his complaint dismissed (see Laverne v. Incorporated Vil. of Laurel Hollow, supra;  Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574 [1958], affd. 7 A.D.2d 995, 183 N.Y.S.2d 868 [1959], affd. 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 [1959];  Federal Chandros v. Silverite Constr. Co., supra;  Miller v. United Parcel Serv., 143 A.D.2d 820, 533 N.Y.S.2d 117 [1988] ).