GAGLIANO v. COUNTY OF NASSAU (2006)

In an action to recover damages for use of excessive force, false arrest, and malicious prosecution under 42 USC § 1983, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered February 6, 2004, which, upon the granting of the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the plaintiff's evidence, dismissed the complaint.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the first cause of action to recover damages for false arrest;  as so modified, the judgment is affirmed, without costs or disbursements, the first cause of action to recover damages for false arrest is reinstated, that branch of the motion pursuant to CPLR 4401 which was for judgment as a matter of law with respect to that cause of action is denied, the first cause of action is severed, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on that cause of action.

 The Supreme Court properly dismissed the plaintiff's second and third causes of action to recover damages for use of excessive force and malicious prosecution.   In light of the circumstances of this case, including the absence of proof of injury, the police did not use excessive force in restraining the plaintiff, and the plaintiff failed to present any evidence otherwise (see Knight v. Caldwell, 970 F.2d 1430, 1432 [5th Cir.], cert. denied 507 U.S. 926, 113 S.Ct. 1298, 122 L.Ed.2d 688;  Higgins v. City of Oneonta, 208 A.D.2d 1067, 1070-1071, 617 N.Y.S.2d 566).

 To establish a cause of action to recover damages for malicious prosecution a plaintiff must show “(1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice” (Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248).   The judicial determination made after a probable cause hearing in the underlying criminal proceeding that the police had probable cause to arrest the plaintiff bars his cause of action to recover damages for malicious prosecution (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 501-504, 478 N.Y.S.2d 823, 467 N.E.2d 487;  Janendo v. Town of New Paltz Police Dept., 211 A.D.2d 894, 621 N.Y.S.2d 175;  Hugar v. Nigro, 207 A.D.2d 954, 616 N.Y.S.2d 833).

 However, the Supreme Court erred in dismissing the plaintiff's first cause of action to recover damages for false arrest.   In an action to recover damages for false arrest based on a warrantless arrest, the defendant has the burden of proving legal justification or probable cause as an affirmative defense (see Broughton v. State of New York, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257;  Dioguardi v. City of New Rochelle, 179 A.D.2d 798, 578 N.Y.S.2d 660).   In this case, it is uncontroverted that the plaintiff was arrested without a warrant.   Additionally, contrary to the defendants' contention, there is no so-called “prima facie rule” or presumption of probable cause arising from “[a]fter the fact judicial participation” (Broughton v. State of New York, supra at 456, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310), such as the Mapp hearing (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), held in the plaintiff's underlying criminal case, in a false arrest cause of action.   Furthermore, viewing the evidence in the light most favorable to the plaintiff, accepting all of his evidence as true, and resolving all credibility issues and inferences in his favor, it cannot be said that there was no rational process by which the trier of fact could have found for the plaintiff (see CPLR 4401;  Long Is. Sound, LLC v. O'Brien & Gere Engrs., 25 A.D.3d 668, 811 N.Y.S.2d 722).   Consequently, the Supreme Court erred in dismissing, at the close of the plaintiff's case, the first cause of action to recover damages for false arrest.