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Jarrett MELENDEZ, Jose Melendez and Sarah Santiago, By Their Mother and Natural Guardian, Leslie Melendez, and Leslie Melendez, Individually, and Edwin Santiago, Plaintiffs, v. The CITY OF NEW YORK, The New York City Police Department, Police Officer Peter Rubin, Police Officer Trevor L. White, Police Officers Ferlie I. Fox, Police Officer Melvin Thomas and John Doe Police Officers 1-10 of the 83rd Precinct, Defendants.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Notice of Motion with Accompanying Affidavits and Exhibits 1
Affirmation in Opposition with Accompanying Affidavits and Exhibits 2
Affirmation in Reply to Plaintiff's
Opposition to City's Motion for Summary Judgment 3
This case raises the issue of whether summary judgment dismissing a complaint can be granted on false arrest and imprisonment claims when there is an inconsistency in deposition testimony as to how the police identified the plaintiff as the perpetrator of a crime, and where the plaintiff and defendant offer disparate accounts on the events preceding the arrest. The second issue is whether a plaintiff can prevail on a malicious prosecution claim when he received an adjournment in contemplation of dismissal (“ACD”) prior to dismissal. The third issue is whether plaintiffs can make a viable claim for negligent infliction of emotional distress when they concurrently assert claims for the intentional torts of assault and battery. The fourth issue is whether a plaintiff can prevail on a claim for intentional infliction of emotional distress where the conduct complained of falls within the ambit of a traditional tort. The fifth issue is whether the discharge of pepper spray during an arrest which makes contact with bystanders per se constitutes the torts of assault and battery.
Plaintiffs Edwin Santiago (“Santiago”) and Leslie Melendez and her children, Jarrett Melendez, Jose Melendez and Sarah Santiago (“plaintiffs”) collectively brought this action against defendants City of New York, NYC Police Department, Police Officers Peter Rubin, Trevor L. White, Ferlie I. Fox, Melvin Thomas and John Doe Police Officers O.'s 1-10 of the 83rd Precinct of the New York City Police Department (“defendant” or “City”) for negligent infliction of emotional distress, false arrest, false imprisonment, abuse of process, malicious prosecution, assault and battery, abuse of authority, negligence in hiring and supervising, and violation of civil rights pursuant to 42 U.S.C. § 1983.1 Santiago claims that on July 3, 2010, he was falsely identified as the perpetrator of a bat assault; police officers forcibly entered his premises without probable cause, or an arrest or search warrant; sprayed mace on him without provocation; falsely arrested him without resistance; and then used excessive force during and after the arrest. The other plaintiffs claim that during Santiago's arrest process, the police officers indiscriminately sprayed them with mace, and that they suffered eye injuries and emotional distress.
The New York City Police Department Arrest Report (“Arrest Report”) indicates that Santiago was charged with assaulting and causing personal injury to a police officer, obstructing governmental administration, criminal mischief with intent to damage property, resisting arrest, and disorderly conduct; i.e., fighting or violent behavior. The complaint avers that the charges against Santiago, which included obstruction of justice and assault of a police officer, were still pending in the Criminal Court of Kings County, at the time the action was commenced. The charges resulted in an adjournment in contemplation of dismissal (“ACD”), and were ultimately dismissed on February 6, 2012.
The City moves for summary judgment dismissing the complaint. It first argues that the false arrest, false imprisonment, and 42 U.S.C. § 1983 claims should be dismissed because there was probable cause for the arrest, based upon an identified civilian complaint, and it therefore has qualified immunity. It also argues that the malicious prosecution claim should be dismissed on the same basis and because no actual malice was shown. Since P.O. Fox did not participate in Santiago's arrest, defendant contends that the 42 U.S.C. § 1983 claim against her, in particular, must be dismissed. The City then argues that the negligent hiring and retention claims should be dismissed because the police officers involved acted within the scope of their employment, and that it cannot be held liable under 42 U.S.C. § 1983 on a respondeat superior theory, citing Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 694-95 (1978). The City also contends that plaintiffs do not demonstrate that the alleged violation of their constitutional rights was caused by an official police policy or custom. The City further argues that the claims for negligent and intentional infliction of emotional distress should be dismissed because public policy bars such claims against a governmental entity. Finally, the City contends that Jarrett Melendez's and Sarah Santiago's claims for assault and battery must be dismissed because they did not demonstrate that any police officer intended to inflict offensive contact upon them and because they did not identify the officer who pepper sprayed them. Ironically, the City does not move to dismiss Edwin Santiago's assault and battery claims based upon pepper spray.
Defendant, as the proponent of summary judgment, has the burden of establishing a defense to plaintiff's false arrest and imprisonment claims as a matter of law by submitting sufficient evidence to eliminate any material issues of fact. CPLR § 3212(b); De Lourdes Torres v. Jones, 26 NY3d 742, 762-763 (2016). This burden is heavy one, and on a summary judgment motion, facts must be viewed in the light most favorable to the non-movant. Williams v. Beemiller, Inc., 159 AD3d 148, 152 (4th Dept. 2018). An undisputed defense in a sworn affidavit submitted by the proponent may satisfy this heavy burden. Koch v. Haven-Busch Co., 341 N.Y.S.2d 865, 866 (2d Dept. 1973)
To prevail on a cause of action for false arrest and imprisonment, plaintiff must demonstrate that defendant intended to confine him, that plaintiff was conscious of the confinement and did not consent to it, and that such confinement was not privileged. De Lourdes Torres, supra, 26 NY3d at 759; Gill v. City of New York, 146 AD3d 939, 941 (2d Dept. 2017). Confinement is privileged if it stems from a lawful arrest supported by probable cause. Jones, supra, 26 NY3d at 759. Probable cause means that there is information sufficient to support a police officer's reasonable belief that the person to be arrested committed a crime. People v. Guthrie, 25 NY3d 130, 133 (2015); Smith v. County of Nassau, 34 NY2d 18, 23-24 (1974); Tiburcio v. City of New York, 2017 NY Slip Op 32183(U), 2017 NY Misc. LEXIS 3938, *4 (Sup. Ct. Bronx Co. 2017).
In general, information provided by an identified person accusing another of a specific crime is legally sufficient to give a police officer probable cause to arrest the accused. Williams v. City of New York, 114 AD3d 852, 853 (2d Dept. 2014). However, differences between a plaintiff's and defendant's accounts as to the occurrences preceding the arrest may raise a triable issue of fact as to probable cause. Mendez v. City of New York, 137 AD3d 468, 470 (1st Dept. 2016); MacDonald v. Town of Greenburgh, 112 AD3d 586, 587 (2d Dept. 2013); Diederich v. Nyack Hosp., 49 AD3d 491, 493 (2d Dept. 2008). A court may not weigh the credibility of witnesses on a motion for summary judgment. Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011); Lipschutz v. Kiderman, 76 AD3d 178, 186 (2d Dept. 2010).
The City's motion to dismiss is denied with respect to Santiago's false arrest and imprisonment claims against the individual police officers because it failed to submit sufficient evidence to eliminate any issues of fact with respect probable cause. The City's probable cause defense for disorderly conduct rests solely on its argument that an identified civilian's complaint furnished probable cause and led to Santiago's arrest. However, there are inconsistencies in the deposition testimony as to how the police identified Santiago as the assailant and why he was arrested. P.O. White testified at his deposition that upon his arrival at the subject location, the victim identified a group of “two to three” people involved in the bat assault who ran into building located at 50 Stanhope Street (the “building”), but Santiago was not among them. On the other hand, P.O. Fox testified at her deposition that right after the incident, the victim pointed to Santiago as the perpetrator of the assault, and that he was standing alone. This inconsistency raises an issue of fact for the jury as to whether the officers properly identified Santiago and had probable cause to arrest him for disorderly conduct.
This Court is perplexed that despite deposition testimony from P.O.'s White and Fox that Santiago punched White in the eye, the City does not proffer this testimony as a basis for its probable cause defense. In any event, the City tacitly admits that there is an issue of fact concerning whether Santiago hit P.O. White, and this issue therefore must proceed to trial.
The City's motion to dismiss the malicious prosecution claim is granted. To prevail on this claim, plaintiff must establish that (1) a criminal proceeding was initiated, (2) the proceeding terminated in his favor, (3) there was a lack of probable cause, and that (4) the proceeding was brought out of “actual malice.” Cantalino v. Danner, 96 NY2d 391, 394 (2001); Batten v. City of New York, 133 AD3d 803, 805 (2'd Dept. 2015). Santiago's malicious prosecution claim fails because there is no indication that the criminal proceedings against him terminated in his favor. The fact that Santiago received an ACD prior to dismissal further supports this Court's finding that the criminal action against him was not “terminated in his favor.” See, Brown v. City of New York, 2017 NY Slip Op 51061(U), 2017 NY Misc. LEXIS 3171, *29 (Sup. Ct. Bx. Co. 2017) (Where plaintiffs case was dismissed following ACD, there could be “no claim for malicious prosecution as a matter of law”). An ACD is a “species of plea bargaining” and is only granted by the court with the consent of the prosecutor and defendant. Hollender v. Trump Village Cooperative, Inc., 84 AD2d 574, 575 (2d Dept. 1981). It is “emphatically not a determination on the merits” and does not qualify as a favorable termination. Smith-Hunter v. Harvey, 95 NY2d 191, 196-197 (2000); In re Edwin L., 88 NY2d 593, 601 (1996); In re Marie B., 62 NY2d 352, 359 (1984).
The City's motion to dismiss the causes of action alleging that it violated 42 U.S.C. § 1983 is granted. The City cannot be liable under 42 USC § 1983 unless an official government policy, custom or widespread practice caused plaintiff's constitutional rights to be violated. De Lourdes Torres, supra, 26 NY3d at 762; Broome v. City of New York, 2018 NY Slip Op 31237(U), 2018 NY Misc. LEXIS 2450, *28-29 (Sup. Ct. NY Co. 2018). Official municipal policy includes the “decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011); Monell v. New York City Dept. of Social Servs. 436 U.S. 658, 694 (1978). Plaintiff must also demonstrate that the City's “deliberate conduct” was the “moving force” behind plaintiff's alleged constitutional injuries. Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997). A single incident of “objectionable conduct” fails to “establish the existence of policy or custom for § 1983 purposes.” Simpson v. New York City Transit Authority, 66 NY2d 1010, 1012 (1985); Bouet v. City of New York, 125 AD3d 539, 541 (1st Dept. 2015).
While plaintiffs broadly allege that City and the NYC Police Department had a “policy, practice or custom which encouraged or permitted its police officers” to engage in “abuses of police authority,” they fail to present any evidence of a City policy or custom that caused their injuries. Edwin Santiago's one allegation that proper protocol was not followed with respect to who filled out the police forms following his arrest does not evince a municipal policy which caused his injuries, as it occurred subsequent to the incident. Furthermore, plaintiffs' claims also fail because they raise only instance of objectionable conduct.
Santiago's 42 U.S.C. § 1983 claim for false arrest against the individual Officers, White and Fox, which is based on his Fourth Amendment right to be free from unreasonable seizures, including being arrested without probable cause, is substantially the same as a claim for false arrest under New York law. De Lourdes Torres, supra, 26 NY3d at 747; Washington-Herrera v. Town of Greenburgh, 101 AD3d 986, 988 (2d Dept. 2012). Since there are issues of fact as to probable cause, the motion to dismiss Santiago's 42 U.S.C. § 1983 claim is denied as against the two individual arresting officers.
The City's motion to dismiss the claim for negligent hiring and retention is also granted. No claim may proceed against the City for its negligent hiring, retention, supervision or training when the torts allegedly committed by its employees occurred while they were acting within the scope of their employment. The City, as the employer, is liable for such torts under the theory of respondeat superior. Acosta v. City of New York, 153 AD3d 765, 767 (2d Dept. 2017); Eckardt v. City of White Plains, 87 AD3d 1049, 1051 (2d Dept. 2011). Here, it is undisputed that the police officers' alleged torts occurred during the arrest and detention of Santiago and that their actions were performed in the scope of their employment with the City. Plaintiffs do not even assert that the police officers acted in the way alleged for personal reasons. Accordingly, plaintiffs may not maintain a cause of action for negligent hiring and supervision.
The City's motion to dismiss the claim for intentional infliction of emotional distress is granted because public policy bars claims for this tort against a governmental entity. Afifi v. City of New York, 104 AD3d 712, 713 (2d Dept. 2013); Eckardt v. City of White Plains, 87 AD3d 1049, 1051 (2d Dept. 2011). To prevail on a claim for intentional infliction of emotional distress against the remaining defendants, the complaint must allege conduct that was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ․ and [was] utterly intolerable in a civilized society.” Borawski v. Abulafia, 117 AD3d 662, 664 (2d Dept. 2014); Baumann v. Hanover Community Bank, 100 AD3d 814, 816-817 (2d Dept. 2012). When a defendant's conduct constitutes one of the traditional torts, including assault and battery, and the conduct was not intended only to cause extreme emotional distress to the victim, the tort of intentional infliction of emotional distress will not lie. Fischer v. Maloney, 43 NY2d 553, 557 (1978); Butler v. Delaware Otsego Corp., 203 AD2d 783, 784-785 (1st Dept. 2004); Butler v. Delaware Otsego Corp., 203 AD2d 783, 784-785 (3d Dept. 1994). Since the complained of conduct falls within the traditional torts of assault and battery, plaintiffs' claim for intentional infliction of emotional distress fails. This Court further finds that plaintiffs' negligent and intentional infliction of emotional distress claims are subsumed by their assault and battery claims since they are based on the same conduct; i.e., the police officers' allegedly unreasonable use of force and any resulting emotional damage. Caravalho v. City of New York, 2016 U.S. Dist. LEXIS 44280, *75-76 (S.D.NY 2016). Accordingly, the motion of P.O.'s Rubin, White, Fox, and Melvin Thomas to dismiss the claim for intentional infliction of emotional distress is granted.
To prevail on a claim for negligent infliction of emotional distress, the mental injury must be a “direct, rather than consequential” breach of a duty of care owed to the plaintiff, and the claim must possess “some guarantee of genuineness.” Taggart v. Costabile, 131 AD3d 243, 253 (2d Dept. 2015); Baumann v. Hanover Community Bank, 100 AD3d 814, 816-817 (2d Dept. 2012). Claims which involve the mishandling of a corpse, transmission of false information that a parent or child died, and negligent exposure to HIV possess “some guarantee of genuineness.” Ornstein v. New York City Health & Hosps. Corp., 10 NY3d 1,6 (2008), Taggart, supra, 131 AD3d at 253. The primary factor in these cases is the negligently-caused psychological trauma. Ornstein, supra, 10 NY3d at 1. A claim for negligent infliction of emotional distress fails where no allegations of negligence appear in the pleadings. Daluise v. Sottile, 40 AD3d 801, 803 (2d Dept. 2007). Plaintiffs' causes of action for assault and battery, which are intentional torts, are plainly irreconcilable with their negligent infliction of emotional distress claim. See, Lui v. Wong, 2017 NY Slip Op 31703(U), 2017 NY Misc. LEXIS 3084, *5 (Sup. Ct. NY Co. 2017). See also, Barreto v. Kotaj, 46 Misc 3d 47, 48 (App. Term 1st Dept. 2014) (“Once intentional offensive contact has been established, the actor is liable for assault and not negligence, inasmuch as there is no such thing as a negligent assault”). Accordingly, defendants' motion to dismiss the claim for negligent infliction of emotional distress is granted.
The City's motion to dismiss plaintiffs' Jarrett Melendez and Sarah Santiago claims for assault and battery against P.O.'s Rubin and Thomas is granted since their claims are based solely on being sprayed indiscriminately with pepper spray and the resultant damages, and there is no evidence that P.O. Rubin or P.O. Thomas used pepper spray or were present at the location when the other police officers discharged pepper spray. See, Universal Calvary Church v. City of New York, 2000 U.S. Dist. LEXIS 17037, *47 (S.D.NY 2000) (Summary judgment granted to defendant police officers because there was no evidence that they discharged pepper spray or were present at the site when the police officers discharged pepper spray).
However, there is evidence that both P.O.'s White and Fox discharged pepper spray at the subject location. P.O. White admitted in his deposition testimony that he “applied” pepper spray on Edwin Santiago and that there was a male standing behind him, and Edwin Santiago testified that both White and the female police officer with him (P.O. Fox) discharged pepper spray. P.O. Fox testified at her deposition that she was particularly careful not to spray anyone with pepper spray at the subject location since a child was present. This testimony was inconsistent with Edwin Santiago's testimony, thus raising an issue of fact for the jury as to whether P.O. Fox discharged pepper spray.
Since the City did not move for summary judgment on Edwin Santiago's claim that P.O.'s White and Fox committed assault and battery against him by spraying pepper spray, the only remaining issue is whether P.O. White's admitted use and P.O. Fox's alleged use of pepper spray constituted an assault and battery against the rest of the plaintiffs. To prevail on a cause of action for assault a plaintiff must allege “intentional physical conduct” placing him “in imminent apprehension of harmful contact.” Gabriel v. Scheriff, 115 AD3d 791, 792 (2d Dept. 2014); Gould v. Rempel, 99 AD3d 759, 760 (2d Dept. 2012); Bastein v. Sotto, 299 AD2d 432, 433 (2d Dept. 2002). To establish a claim for battery, plaintiff must prove that 1) there was bodily contact, 2) the contact was offensive, and 3) the defendant intended to make the contact without plaintiff's consent. Siegell v. Herricks Union Free School Dist., 7 AD3d 607, 609 (2d Dept. 2004); Johnson v. Suffolk County Police Dep't, 245 AD2d 340, 341 (2d Dept. 1997). “Intent” is defined in this context to mean “intent to cause a bodily contact that a reasonable person would find offensive;” not that the perpetrator intended to cause harm. Maines v. Cronomer Valley Fire Dept., Inc., 50 NY2d 535, 546 (1980); Masters v. Becker, 22 AD2d 118, 120 (2d Dept. 1964).
The mere act of spraying mace does not necessarily constitute an act of assault or battery because the NYPD Patrol Guide Procedure Number 221-07 (“P.G. 221-07”) authorizes the use of pepper spray by police officers under the following circumstances: 1) to gain or maintain control of individuals actively resisting arrest or lawful custody or exhibiting active aggression; 2) to prevent individuals from injuring themselves, police officers, or others; or 3) where the physical presence and/or verbal commands of the police are not effective in overcoming physical resistance. To determine whether the police officers' discharge of pepper spray constituted an assault and battery, a court must inquire whether it was “objectively reasonable under the circumstances to effect control over claimant.” See, Moore v. City of New York, 68 AD3d 946, 947 (2d Dept. 2009) (Claims that law enforcement personnel used excessive force during arrest analyzed under Fourth Amendment and its standard of objective reasonableness); Passino v. State, 260 AD2d 915, 916 (3rd Dept. 1999), app. denied, 93 NY2d 814 (1999) (claim for damages resulting from being pepper sprayed properly dismissed because claimant was agitated and belligerent during the lawful arrest for driving while intoxicated to the extent that he refused to remove his hands from his pockets to be handcuffed, and because trooper followed State Police policy governing use of force in using pepper spray).
Here, there is an issue of fact as to whether P.O. White admitted use and P.O. Fox's alleged discharge of pepper spray was reasonable under the circumstances. On the one hand, P.O.'s White and Fox each testified separately that Edwin Santiago exhibited active aggression and resistance to arrest when he, without provocation, initially punched P.O. White in his eye, which would have justified their use of pepper spray to effect control of him. Plaintiffs, on the other hand, claim that Santiago did not punch P.O. White and was compliant at all times with the officers' commands, and that they were sprayed indiscriminately and unreasonably with pepper spray without any provocation. Since the reasonableness of utilizing the pepper spray on Edwin Santiago is at issue, it inevitably follows that Jarrett Melendez's and Sarah Santiago's claims for assault and battery due to their being pepper sprayed indiscriminately must go to trial.
In sum, this case raises triable issues of fact regarding Edwin Santiago's false arrest and imprisonment claims under state law as against all the defendants, and under federal law, as against P.O.'s White and Fox. Since defendants have not moved to dismiss Edwin Santiago's, Jose Melendez's and Leslie Melendez's claims against P.O.'s Rubin, White, Fox, and Thomas for assault and battery, violation of civil rights under 42 U.S.C. § 1983, and abuse of authority, they shall proceed to trial on those claims as well. Jarrett Melendez's and Sarah Santiago's assault and battery claims against P.O.'s White and Fox shall also go to trial.
However, defendants are granted summary judgment dismissing Jarrett Melendez's and Sarah Santiago's claims against P.O.'s Rubin and Thomas for assault and battery. The City is also granted summary judgment dismissing all of plaintiffs' Monell claims under 42 U.S.C. § 1983, and their claims for intentional and negligent infliction of emotional distress and negligent hiring and supervision, and Edwin Santiago's malicious prosecution claim. This constitutes the Decision and Order of the Court.
1. For sake of brevity, this decision does not parse out the particular claims that each plaintiff makes against the defendants.
Katherine A. Levine, J.
Response sent, thank you
Docket No: 31432/2010
Decided: January 04, 2019
Court: Supreme Court, Kings County, New York.
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