New York Family Law Blog
The defendant moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff’s verified complaint as there exists no triable issue of material fact with respect to the defendant’s liability for the plaintiff’s alleged injuries. The plaintiff cross moves for an order pursuant to CPLR 3025 (b) granting the plaintiff leave to amend the verified complaint to plead with further clarification the relationship between the defendant and the Old Brookville Police Department, and an order pursuant to CPLR 3212 granting summary judgment on the plaintiff’s cause of action for false arrest and false imprisonment. Both parties oppose the other party’s motion. The plaintiff seeks damages in the underlying action for personal and emotional injuries sustained on August 2, 2005, incident to the plaintiff’s alleged false arrest and false imprisonment by the Old Brookville Police Department.
On August 2, 2005, the plaintiff resided with his wife at their home in Old Brockville. The couple were in the midst of a divorce, and the wife filed a petition in the Nassau County Family Court, under docket number 8265/05, dated July 29, 2005. The wife sought an order of protection against the plaintiff husband in that Family Court proceeding, and the Court issued an order of protection dated November 23, 2005, to wit ordering the plaintiff, date of birth January 1, 1942, to observe the following conditions of behavior: refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against the petitioner, date of birth December 5, 1961, wherever the petitioner may be; observe such other conditions as are necessary to further the purposes of protection: the respondent husband to stay away from the petitioner’s bedroom. The Family Court directed the order of protection against the respondent husband remain in effect up to and including May 22, 2006. On August 2, 2005, at approximately 12:20 p.m.
The attorney for the defendant states, in a supporting affidavit dated June 1, 2007, the defendant is entitled to summary judgment because none of the allegations contained in the plaintiff’s verified complaint are directed at the defendant, The Incorporated Village of Old Brookville. The attorney for the defendant states, assuming arguendo, the Court construes the complaint to set forth a cause of action against the defendant, summary judgment is still warranted because the plaintiff’s arrest was a civilian arrest effected by the plaintiff’s wife pursuant to CPL § 140.30 (1) (b), hence there is no conduct that can be attributed to the defendant or the Old Brookville Police Department for which they could be liable. The attorney for the defendant maintains, even if the arrest is deemed to have been effectuated by the Old Brookville Police Department, the arrest was made pursuant to probable cause which renders the plaintiff’s claims for false arrest and false imprisonment insupportable, as a matter of law. The attorney for the defendant asserts, to the extent the plaintiff was arrested by the Old Brookville Police Department, CPL § 140.30 (1) (b) affords the arresting officers complete immunity from suit. The attorney for the defendant avers the plaintiff’s cause of action for intentional infliction of emotional distress must be dismissed because public policy bars such a claim against a governmental entity like the defendant.
The attorney for the plaintiff states, in an affirmation dated August 22, 2007, in support of the cross motion and in opposition to the defense motion, the Old Brookville Police Department improperly arrested the plaintiff without a warrant in violation of CPL § 140.10 (1) (b) for the crime of allegedly violating a protective order that the Old Brookville Police Department knew or should have known was never served upon the plaintiff. The attorney for the plaintiff states, after the plaintiff’s arrest and sometime during the plaintiff’s wrongful confinement, the Old Brookville Police Department charged the plaintiff with the violation offense of harassment in the second degree, even though the Old Brookville Police Department knew the plaintiff had not committed the alleged violation in their presence as required by CPL § 140.10 (1) (a). The attorney for the plaintiff asserts the plaintiff’s arrest and confinement by the Old Brookville Police Department was in complete contravention of CPL § 140.10 (1) (a) and (b), and the plaintiff’s admitted assistance of the Old Brookville Police Department of the purported civilian arrest by the plaintiff’s wife was improper under CPL § 140.10 (1) (b).
The attorney for the defendant states, in a reply affidavit dated August 29, 2007, this affidavit is submitted in response to the plaintiff’s opposition papers, further support of the defense motion for summary judgment pursuant to CPLR 3212, and in opposition to the plaintiff’s cross motion for summary judgment which also seeks leave to file an amended complaint. The attorney for the defendant contends the plaintiff’s assertion his arrest was unlawful regardless of who arrested him is a misapprehension of the relevance of the CPL sections completely ignoring the existence of probable cause which defeats any claims for false arrest and false imprisonment as a matter of law. The attorney for the defendant argues against the plaintiff’s alternative contention that notwithstanding the existence of probable cause the defense motion should be denied because questions of fact allegedly exist with respect to an alleged coverup by the Old Brookville Police Department surrounding the arrest charges.
The attorney for the defendant points out the plaintiff did not submit any evidence in support of self serving allegations against the Old Brookville Police Department. The attorney for the defendant maintains, even if the Court accepts as true the plaintiff’s speculative accusations against the Old Brookville Police Department, summary judgment should still be granted in favor of the defendant because, as a matter of law, the legality of the arrest does not hinge upon whether probable cause existed for the specific offense invoked by the arresting police officer at the time of the arrest, but upon whether the facts known by the arresting officer objectively provided probable cause to make an arrest. The attorney for the defendant avers, even if the plaintiff originally was arrested for an offense other than Harassment in the Second Degree, and even if the charge was later changed, probable cause existed for an arrest such that the plaintiff’s causes of action for false arrest and false imprisonment should be dismissed, as a matter of law. The attorney for the defendant argues the plaintiff has failed to raise a genuine issue of material fact necessary to overcome the defendant’s prima facie showing of entitlement to summary judgment.
CPL 140.30 authorizes an arrest by a private person: “(1)(a) For a felony when the [arrested person] has in fact committed such felony and (b) for any offense when [the arrested person] has in fact committed such offense in his presence.” Under CPL 1.20 and Penal Law § 10.00(1) an offense” means conduct for which a sentence to a term of imprisonment or to a fine is provided” by statute, local law, ordinance, order, rule or regulation. A private detective has only the right of a private person with respect to arrest, Dohery v. Lester, a private citizen who makes an arrest does so at his/her peril and if the person arrested did not commit the crime, the private citizen who makes the arrest is liable despite probable cause, and neither good faith nor vindictiveness is relevant except on the issue of punitive damages, Gill v. Montgomery Ward & Co., requires that the person arrested must, without unnecessary delay, be taken before a magistrate or delivered to a peace officer, and failure to do so will result in liability under the doctrine of trespass ab initio discussed below.
Commentaries Family Court Act § 812 provides: The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.
Penal Law § 240.26 (3) provides: A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. Harassment in the second degree is a violation.
The action for false imprisonment is derived from the ancient common-law action of trespass and protects the personal interest of freedom from restraint of movement. Whenever a person unlawfully obstructs or deprives another of his freedom to choose his own location, that person will be liable for that interference. To establish this cause of action the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged. The great weight of authority, including New York, recognizes the rule that neither actual malice nor want of probable cause is an essential element of an action for false imprisonment. This is in direct contrast with the elements comprising a malicious prosecution action.
The tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation. The essence of malicious prosecution is the perversion of proper legal procedures. Thus, it has been held that some sort of prior judicial proceeding is the Sine qua non of a cause of action in malicious prosecution. Such a judicial proceeding may be either an evaluation by a Magistrate of an affidavit supporting an arrest warrant application, or an arraignment or an indictment by a Grand Jury. The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice. Where the plaintiff institutes a malicious prosecution action he must plead the lack of probable cause. A contrary rule would be against public policy as tending to discourage prosecutions for crime or the vindication of civil rights. Despite the clear and fundamental differences between malicious prosecution and false imprisonment, the concepts are easily intermingled in the arrest situation Broughton v. State.
CPL § 140.30 provides: 1. Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence; 2. Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.
CPL § 140.35 provides: 1. A person may arrest another person for an offense pursuant to section 140.30 at any hour of any day or night. 2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical. 3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.
CPL § 140.40 provides: 1. A person making an arrest pursuant to section 140.30 must without unnecessary delay deliver or attempt to deliver the person arrested to the custody of an appropriate police officer, as defined in subdivision five. For such purpose, he may solicit the aid of any police officer and the latter, if he is not himself an appropriate police officer, must assist in delivering the arrested person to an appropriate officer. If the arrest is for a felony, the appropriate police officer must, upon receiving custody of the arrested person, perform all recording, fingerprinting and other preliminary police duties required in the particular case. In any case, the appropriate police officer, upon receiving custody of the arrested person, except as otherwise provided in subdivisions two and three, must bring him, on behalf of the arresting person, before an appropriate local criminal court, as defined in subdivision five, and the arresting person must without unnecessary delay file an appropriate accusatory instrument with such court.
CPL § 140.10 (1) provides: Subject to the provisions of subdivision two, a police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and (b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.
CPL § 140.10 (2) provides: A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when: (a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area; and (b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him in any county in which he apprehends him.
And, CPL § 140.10 (4) provides, in pertinent part: Notwithstanding any other provisions of this section, a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that: (b) a duly served order of protection or special order of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter is in effect, or an order of which the respondent or defendant has actual knowledge because he or she was present in court when such order was issued, where the order appears to have been issued by a court of competent jurisdiction of this or another state, territorial or tribal jurisdiction; and (i) Such order directs that the respondent or defendant stay away from persons on whose behalf the order of protection or special order of conditions has been issued and the respondent or defendant committed an act or acts in violation of such “stay away” provision of such order; or (ii) The respondent or defendant commits a family offense as defined in subdivision one of section eight hundred twelve of the family court act or subdivision one of section 530.11 of this chapter in violation of such order of protection or special order of conditions…No cause of action for damages shall arise in favor of any person by reason of any arrest made by a police officer pursuant to this subdivision, except as provided in sections seventeen and eighteen of the public officers law and sections fifty-k, fifty-l, fifty-m and fifty-n of the general municipal law, as appropriate.
When an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant.
CPL § 140.10 provides, in pertinent: 1. Subject to the provisions of subdivision two, a police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and (b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise. 2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when: (a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area; and (b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him in any county in which he apprehends him.
CPLR 3212 provides, in pertinent: (a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. (b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant committed or is committing that offense. While probable cause for a warrantless arrest may be supplied, in whole or in part, by hearsay information, the two components of the Aguilar/Spinelli test—(1) that the informant has some basis of knowledge for the information transmitted to the police, and (2) that the informant is reliable—must be demonstrated.
Although “probable cause may be supplied, in whole or part, through hearsay information”, where the police rely upon secondhand information provided by an informant, the Aguilar-Spinelli rule requires a demonstration that the informant had some basis of knowledge for the information given to the police, and that the informant is reliable.
It is well settled that information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.
We also point out that there are adequate safeguards against the rendition of false information. The affidavit, such as was submitted by the informer, on its face, contained a warning that the giving of a false statement constituted a violation of the Penal Law. The averments made by the informant were then declarations against his penal interest. The threat of possible prosecution in this case was not an empty gesture, as the police had the informant’s name and address, and could track the informer down if necessary. Nor is criminal punishment the only sanction that might be imposed. An informer may be subject to civil damages for malicious prosecution where he furnishes false information causing a person’s premises to be unlawfully searched.
People v. Hicks, under the facts and circumstances of this case, this Court finds the officer had probable cause to arrest the defendant, but it was the plaintiff’s spouse who effected the arrest albeit the police assisted.
As to the cross motion, CPLR 3025 (b) provides, in pertinent: A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.
However, this Court has carefully reviewed and considered all of the submission of the parties on the motion and cross motion. This Court finds there exists no triable issue of material fact with respect to the defendant’s liability for the plaintiff’s alleged injuries.
It is well settled that a plaintiff cannot prevail on causes of action based upon false arrest, false imprisonment, and malicious prosecution against police officers if the police officers had probable cause to believe that the plaintiff committed the underlying crime. “Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest”.
Accordingly, the motion is granted, and the cross motion is denied.