LEFTENANT v. CITY OF NEW YORK (2010)

Order, Supreme Court, Bronx County (Mary Ann Briganti-Hughes, J.), entered on or about May 5, 2009, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

 The complaint seeks damages for false arrest, wrongful imprisonment, malicious prosecution, violation of constitutional rights under 42 USC § 1983, and negligent hiring, training and supervision of police officers.   Although plaintiff's affidavit denied involvement in a drug transaction, it did not deny the essential facts as to what the officer testified he had observed, or that plaintiff did possess the specified drug paraphernalia and a sum of cash.   Inasmuch as the officer's observations established probable cause for arrest (see Lui Yi v. City of New York, 227 A.D.2d 453, 643 N.Y.S.2d 123 [1996] ), defendant had a complete defense to the claims of false arrest, false imprisonment and malicious prosecution (Batista v. City of New York, 15 A.D.3d 304, 790 N.Y.S.2d 445 [2005] ), notwithstanding the subsequent dismissal of the criminal charges (Arzeno v. Mack, 39 A.D.3d 341, 833 N.Y.S.2d 480 [2007] ).   The complaint fails to allege bad faith by the officers with respect to false arrest (id. at 342, 833 N.Y.S.2d 480), or actual malice with respect to malicious prosecution (Jenkins v. City of New York, 2 A.D.3d 291, 770 N.Y.S.2d 22 [2003] ).   The actions and statements of the District Attorney, whose office was nonetheless acting within the scope of its official duties (Arzeno, 39 A.D.3d at 342, 833 N.Y.S.2d 480), could not be imputed to the municipal defendant, an entirely different entity (see Warner v. City of New York, 57 A.D.3d 767, 768, 870 N.Y.S.2d 82 [2008] ).

 The claim asserted under 42 USC § 1983 must be dismissed for failure to allege that the challenged acts resulted from official municipal policy or custom (Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 690-691, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ).   And since the officers were acting within the scope of their employment, which plaintiff does not dispute, the claim of negligent hiring, training and supervision must also fail (Ashley v. City of New York, 7 A.D.3d 742, 779 N.Y.S.2d 502 [2004] ).