Rochel Wong v. The City of New York

1

2021 NY Slip Op 33119(U)

Rochel Wong, Plaintiff, v. The City of New York, Police Officer Kyle Young, Police Officer Ivan Villanueva, and John and Jane Does - Police Officers as yet unidentified, Defendants.

Index No. 712139/20

Supreme Court, Queens County

December 13, 2021

Unpublished Opinion

Motion Date: 11/8/21

Present: HONORABLE KEVIN J. KERRIGAN, Justice

HONORABLE KEVIN J. KERRIGAN, JUSTICE

The following papers numbered E37-E66 & E68-E72 read on this motion by defendants for summary judgment.

Papers Numbered

Notice of Motion-Affirmation-Exhibits................ E37-66

Affirmation in Opposition-Exhibits................... E68-71

Reply E72

Upon the foregoing papers it is ordered that the motion is decided as follows:

The Court is issuing an amended order based on a letter received via the NYSCEF system from counsel for plaintiff dated December 10, 2021, which included, inter alia, a stipulation entered by counsel for plaintiff and defendants, dated December 6, 2021, apprising the Court that the plaintiff's cause of action one and plaintiff s cause of action seven as to claims of assault and battery and excessive force should not be dismissed, as so stated both the in plaintiff's pleadings and defendants' pleadings.

Motion by defendants the City of New York ("City"), Police Officer Kyle Young (PO Young"), Police Officer Ivan Villanueva ("PO Villanueva") for an order pursuant to CPLR §3212 (a) seeking summary judgment dismissing the complaint is granted to the extent that plaintiff s state and federal claims for false arrest and false imprisonment state claims for negligent hiring and retention, state claim of negligent and intentional infliction of emotional distress, a state claim of malicious prosecution are dismissed and plaintiff s state assault and battery and Federal excessive force claims are not dismissed.

This is an action for personal injuries allegedly sustained by plaintiff as a result of her interaction with police on July 25, 2015, at 141-11185th Street, County of Queens, the ("Premises") .

The portion of City's motion to dismiss the plaintiff's causes of action for negligent hiring and retention intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution is granted without opposition.

In support of the motion defendants submit, inter alia, the pleadings, the affirmation of their attorney, transcripts of the examination before trial ("EBT") of PO Young and PO Villanueva and the certificate of disposition from Queens Criminal Court, for docket number CR-036766-15QN.

In opposition to the motion plaintiff submits the affirmation of her attorney and the transcript of her examination before trial, dated February 15, 2018, and the certificate of disposition from Queens Criminal Court, for docket number CR-036766-15QN.

Plaintiff states in her opposition that plaintiff "does not oppose the portion of the motion which seeks to dismiss the causes of action for negligent hiring and retention, intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution.

Plaintiff avers that there exist questions of fact that preclude the dismissal of plaintiff's claims for false arrest/ false imprisonment and the individual officer's liability.

Plaintiff's assertion that defendants have failed to submit evidence in admissible form asserting that the EBT transcripts, as unsigned by defendants, is without merit.

While the EBT transcripts are unsigned, they are certified by the reporter who recorded the testimony, their accuracy is not challenged by the testifying witness who is a party to the action and has submitted the transcript in support of their motion. Further, the unsigned but certified deposition of the defendant are admissible under CPLR 3116 (a), since the transcript was submitted by the party deponent himself and therefore, was adopted as accurate by the deponent (See E.W. v City of New York, 2020 N.Y. A.D. 142, 2d Dept. [2020]).

The remaining branches of defendants' motion for dismissal of the claims for false arrest, false imprisonment and the individual officer's liability is granted.

The City contends that it is entitled to summary judgment because there was probable cause for the arrest for both Obstruction of Governmental Administration and Disorderly Conduct. The Court agrees.

Section 195.05 of the Penal Law states, in pertinent part: A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved...

Section 240.20 (6) of the Penal Law states: A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: (6) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse...

It is undisputed that on July 25, 2015, plaintiff was present at the Premises, which is not the home of plaintiff, when several uniformed police were heard and seen by plaintiff from a distance, telling people gathered there to leave, dispersing the crowd of people from the Premises and the area appurtenant to the Premises. Plaintiff by her EBT testimony stated that, at a distance from the Premises she could see and hear the police disbursing the people at the Premises and that, nevertheless, she and her husband continued to go to the Premises. Plaintiff also testified that she was instructed by the uniformed police several times to leave the Premises, then instructed to leave the lawn adjacent to the Premises and then instructed to leave the sidewalk at the Premises. It was only after repeated instruction by police to leave the area where police were disbursing the crowd, and plaintiff's refusal to comply with police instructions, did police officers then requested her identification.

PO Villanueva testified that he asked plaintiff for her identification in order to get plaintiff to comply with the police instructions to leave the area of the Premises or to issue a summons to plaintiff.

Plaintiff testified at her EBT that she did not comply with the police officer's request for her identification, but challenged the police officers request for her identification.

PO Villanueva testified that he again asked plaintiff for her identification in order to get plaintiff to comply with the police instructions to leave the area of the Premises or to issue a summons to plaintiff.

Plaintiff was arrested and arraigned on these, and several other charges.

Defendants met their initial burden on the motion by establishing that they had probable cause to arrest plaintiff, and plaintiff failed to raise a triable issue of fact in opposition (See Durand...