Snow v. Schreier

193 A.D.3d 1346

147 N.Y.S.3d 274

Shenna SNOW, Plaintiff-Respondent,

v.Rochester Police Officer Christopher SCHREIER and Rochester Police Officer T. Wassinger, Defendants-Appellants.

316.1

CA 20-00651

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

Entered: April 30, 2021

TIMOTHY R. CURTIN, CORPORATION COUNSEL, ROCHESTER (CHRISTOPHER S. NOONE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion seeking summary judgment dismissing the first cause of action and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she suffered when defendants arrested her at a restaurant following a dispute between plaintiff and members of the restaurant's staff. The record establishes that plaintiff purchased food from the restaurant but became upset and confronted the staff at length after concluding that she had been given the wrong order and incorrect change. The restaurant staff called the police. Defendants responded and, upon their arrival, ordered plaintiff to leave the restaurant as requested by its staff. Defendants then spoke with plaintiff outside; according to defendants, plaintiff was still upset and refused to leave the storefront. Defendants then attempted to handcuff plaintiff and, while moving her hands behind her back, broke plaintiff's arm.

Plaintiff's amended complaint asserted causes of action for false arrest in violation of 42 USC § 1983, use of excessive force in violation of 42 USC § 1983, battery, and assault, as well as a claim for punitive damages. Defendants moved for summary judgment dismissing the amended complaint. Supreme Court denied the motion except insofar as it sought dismissal of the punitive damages claim. Defendants appeal.

We agree with defendants that the court erred in denying their motion with respect to the first cause of action, for false arrest, and we therefore modify the order accordingly. 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 v. South Nassau Hosp. , 172 A.D.3d 1318, 1320, 102 N.Y.S.3d 80 [2d Dept. 2019] ). "[T]he existence of probable cause is an absolute defense to a false arrest claim" ( Jaegly v. Couch , 439 F.3d 149, 152 [2d Cir. 2006] ). This is so even if probable cause exists with respect to an offense other than the one actually invoked at the time of arrest (see Devenpeck v. Alford , 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 [2004] ; see generally Brown v. Hoffman , 122 A.D.3d 1149, 1150, 997 N.Y.S.2d 767 [3d Dept. 2014] ). Here, although plaintiff lawfully entered the restaurant premises as a customer, her license to remain was revoked when she was asked to leave after she began arguing with the staff. When plaintiff refused to leave the restaurant property at the request of its staff, she committed a trespass (see People v. Sylvester , 52 Misc. 3d 144[A], 2016 N.Y. Slip Op. 51286[U], *1, 2016 WL 4815338 [App. Term 2016], lv denied 28 N.Y.3d 1075, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016] ; People v. Seabrook , 46 Misc. 3d 152[A], 2015 N.Y. Slip Op. 50338[U], *1, 2015 WL 1257871 [App. Term 2015], lv denied 26 N.Y.3d 1112, 26 N.Y.S.3d 770, 47 N.E.3d 100 [2016] ; see generally People v. Leonard , 62 N.Y.2d 404, 408, 477 N.Y.S.2d 111, 465 N.E.2d 831 [1984] ; People v. Licata , 28 N.Y.2d 113, 117, 320 N.Y.S.2d 53, 268 N.E.2d 787 [1971] ). Inasmuch as plaintiff committed an ongoing trespass in defendants’ presence (see CPL 140.10 [1] [a] ), defendants had probable cause to arrest plaintiff for that violation (see Durand , 172 A.D.3d at 1318, 1320, 102 N.Y.S.3d 80 ; Downs v. Town of Guilderland , 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264 [3d Dept. 2010], appeal dismissed 15 N.Y.3d 742, 906 N.Y.S.2d 804, 933 N.E.2d 203 [2010] ).

We reject defendants’ further contention that the court erred in denying the motion with respect to the cause of action for use of excessive force. "Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness" ( Bridenbaker v. City of Buffalo , 137 A.D.3d 1729, 1730, 28 N.Y.S.3d 545 [4th Dept. 2016] [internal quotation marks omitted]; see Jones v. Parmley , 465 F.3d 46, 61 [2d Cir. 2006] ). "The test of reasonableness under the Fourth Amendment ‘requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to evade arrest by flight’ " ( People v. Smith , 95 A.D.3d 21, 26, 940 N.Y.S.2d 373 [4th Dept. 2012], quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 [1989] ). "The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force...