Luers v. City of N.Y.

205 A.D.3d 898

166 N.Y.S.3d 570 (Mem)

Erik LUERS, appellant,

v.CITY OF NEW YORK, et al., respondents.

2020–00916

Index No. 702331/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 25, 2022

May 18, 2022

Belovin Franzblau & Associates, PC, White Plains, NY (David A. Karlin of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Jonathan A. Popolow of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest, false imprisonment, battery, and civil rights violations pursuant to 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered January 8, 2020. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging false arrest, false imprisonment, and battery, and the cause of action alleging violations of 42 USC § 1983 insofar as asserted against the individual defendants, and denied the plaintiff's cross motion for summary judgment on the issue of liability on those causes of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging false arrest, false imprisonment, and battery, and the cause of action alleging violations of 42 USC § 1983 insofar as asserted against the individual defendants, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against the City of New York and two individual police officers, inter alia, to recover damages for false arrest, false imprisonment, battery, and civil rights violations pursuant to 42 USC § 1983 following an incident during which the plaintiff fell or was pushed to the ground, was handcuffed and searched, and was detained for approximately 15 to 20 minutes by the officers, who were patrolling the area in response to a surge in thefts from parked vehicles. The defendants moved for summary judgment dismissing the complaint. The plaintiff cross-moved for summary judgment on the issue of liability on the causes of action alleging false arrest, false imprisonment, and battery, and on the cause of action alleging violations of 42 USC § 1983 insofar as asserted against the individual defendants. The Supreme Court, among other things, granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging false arrest, false imprisonment, and battery, and the cause of action alleging violations of 42 USC § 1983 insofar as asserted against the individual defendants, and denied the plaintiff's cross motion, finding that the officers had probable cause to apprehend and detain the plaintiff. The plaintiff appeals.

"The elements of a cause of action alleging false imprisonment or false arrest are ‘that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged’ " ( Smith v. Village of Freeport Police Dept., 181 A.D.3d 625, 626, 121 N.Y.S.3d 274, quoting Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 ). "[A]n act of confinement is privileged if it stems from a lawful arrest supported by probable cause" ( De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ). Thus, "[t]he existence of probable cause constitutes a complete defense to a cause of action alleging false arrest" ( Macareno v. City of New York, 187 A.D.3d 1164, 1166, 133 N.Y.S.3d 282 [internal quotation marks omitted]). " ‘The existence or absence of probable cause becomes a question of law to be...