(This is an example of opposition to the City of New York’s Motion to Dismiss a lawsuit where a lawfully parked woman was sound asleep but behind the wheel with the motor running to stay warm on a cold New York night. This lawsuit is pending in New York County.)
THE LAYTON LAW FIRM, PLLC by PAUL THOMAS LAYTON, affirms under the penalties of perjury and pursuant to CPLR 2106 that the following allegations are true and whre stated to be upon information and belief, that the allegations are believed to be true:
- I am the owner of The Layton Law Firm, PLLC and I am admitted to practice before the Courts of the State of New York.
- This affirmation is submitted in opposition to defendant THE CITY OF NEW YORK’s motion pursuant to CPLR 3211 to dismiss the complaint and/or in the alternative a motion to grant summary judgment pursuant to CPLR 3212.
- While there was nothing prohibiting the police from approaching to make inquiry of the Plaintiff, there was no probable cause for her arrest and prosecution; the Plaintiff was sound asleep and the officers who approached her, did so following numerous calls about a woman sleeping in her car; the arresting officer testified that he did not see her move the car; and, the Plaintiff testified that upon awakening she informed the Police Officers that she was waiting for friends to take a cab home; these facts create a triable issue of fact on the issue of probable cause for her arrest.
- If the arresting officer was making an arrest for what he anticipated was a future crime that had not occurred and, if accepting such expansive police powers is being urged upon this Court, then a seismic shift in police powers would be decided.
- Probable cause does not require proof beyond a reasonable doubt but it does require that a reasonably prudent and cautious person, under the circumstances believe an individual had committed a crime (not that they believe she may commit a crime in the future).
- Attempted driving while intoxicated or under the influence is not a crime in New York (cases cited infra).
- The law of New York is clear that for a valid intoxicated or impaired driver arrest there must be an intent to move the vehicle; the facts known to the officers did not establish an intent to move the vehicle as she was sound asleep with the car in park; no facts established that she had moved the vehicle when intoxicated.
- The defendant has the burden of proving legal justification or “privilege” as an affirmative defense; “privilege” is not present as it would be if some crime has been committed. See, Wallace Albany, 283 AD2d 872, 725 NYS2d 728 (3d Dept. 2001); Matter of William H., 264 AD2d 676, 695 NYS2d 98 (1st Dept. 1999). Because the commission of a crime is not supported by the facts the argument is frivolous; the defendant has not met its burden of proof.
- The malice element of Malicious Prosecution claim is established because an arrest without probable cause, circumstantially establishes “malice,” and is sufficiently established to defeat summary judgment where the Plaintiff testified that in response to her having asked “why” they were taking the actions she was met by the hostile and/or threatening non-responsive question: whether she was “talking back?”
- Additional facts which circumstantially evidence “actual malice” include the removal of Plaintiff’s vehicle from a legal parking spot by the police as well as its seizure for forfeiture.
- The Assault and Battery claims are predicated on unlawfully touching the Plaintiff when she was handcuffed as well as any physical contact with the plaintiff following the arrest; it is also supported by Plaintiff’s testimony indicative of fear which followed her being asked if she was “talking back” prompting her apology.
- Plaintiff’s negligent hiring, training and supervision claim does not fail under Karoon New York City Transit Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27, 29 (1st Dep’t 1997). Defendant’s pleadings are insufficient to support a dismissal of this claim and in any event, Karoon, supra, does not apply where the evidence indicates that there were supervisors on the scene for an arrest that lacked probable cause and where the officer who seized the Plaintiff’s legally parked vehicle for forfeiture was unable to provide an explanation for targeting the vehicle for forfeiture; in fact, the officer was not able to explain the procedures for vehicle seizures and/or forfeiture.
- Defendants’ contention that there is no evidence to support Plaintiff’s Verified Complaint is woefully contradicted by the record, as further evidenced in the argument section, infra. As such the Court must deny Defendants’ motions to dismiss the Complaint and for summary judgment in its entirety.
Legal Standards for Summary Judgment
- CPLR Rule 3212 provides that a motion for summary judgment shall be granted if upon all papers and proof submitted the cause of action or defenses shall be established sufficiently to warrant the Court as a matter of law and directing judgment in favor of any party. See CPLR R. 3212(b).
- The law is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.
- Failure to make such a showing requires denial of a motion, regardless of the sufficiency of the opposing papers. The movant must demonstrate that no triable issues of fact exist. Weingrad v. New York University Medical Center, 64 NY2d 851 (1985); Zuckerman City of New York, 49 NY2d 557 (1985).
- If a proponent of a summary judgment motion provides sufficient evidence in a non-conclusory form, the burden then shifts to the opponent to show by sufficient evidentiary proof the existence of a triable factual issue. Holbrook United Hospital Medical Center, 248 AD2d 358 (2nd Dep’t, 1998).
- Motions for summary judgment should be scrutinized carefully in the light most favorable to the opposing party. Robinson Strong Memorial Hospital, 98 AD2d 976 (4th Dep’t, 1983.)
- The court should not determine issues of credibility. Capelin Associates Globe MFG Corp., 34 NY2d 338 (1974).
- To obtain summary judgment, the movant must come forward with admissible evidence showing the lack of merit to his opponent’s cause of action. Gilbert Frank Corp. Federal Ins. Co., 70 NY2d 966 (1988).
- Where the moving party fails to conclusively demonstrate a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied regardless of the sufficiency of the opposing papers. See, County Oil Co., Inc. Bayview Owners Corp., 181 AD2d 809 (2d Dep’t, 1992); Downing v. Screiber, 176 AD2d 781 (2d Dep’t, 1991); Winegrad v. NYU Medical Center, 64 NY2d 851 (1985).
- Notably, when the movant does not meet its burden, the party opposing the motion for summary judgment is absolved of its duty to lay bare its proof and demonstrate triable issues of fact. Christiana Joyce Int’s, 198 AD2d 690 (3d Dep’t, 1993).
- Since a court is not authorized to try factual issues in a summary manner, its function on a motion for summary judgment is issue finding, not issue resolution. Dauman Displays, Inc. Masturzo, 168 AD2d 204 (1st Dep’t, 1990); Decision Concepts, Inc. v. Citibank, N.A., 91 AD2d 965 (1st Dep’t, 1983); Esteve v. Abad, 271 AD 725 (1st Dep’t, 1947).
- As the Court knows, the non-moving party’s pleadings and opposing papers must be accepted as true and the decision whether or not to grant summary judgment must be made on the version of the facts most favorable to the non-moving party. Creighton Milbauer, 191 AD2d 162 (1st Dep’t, 1993); Henderson v. City of New York, 178 AD2d 129 (1st Dep’t, 1991); McLaughlin v. Thaima Realty Corp., 161 AD2d 383 (1st Dep’t, 1990).
- Furthermore, the non-moving party is entitled to every favorable inference which can be fairly drawn from the papers, Chiarello Harold Sylvan, P.C., 161 AD2d 948 (1st Dep’t, 1988), and the Court must construe the evidence in the light most favorable to the non-moving party. Waldron v. Wild, 96 AD2d 190 (4th Dep’t, 1983); Weiss v. Garfield, 21 AD2d 156 (3d Dep’t, 1964).
- Summary judgment must be denied when there is any doubt as to the existence of a triable issue of fact or where such an issue is even arguable. Cohen Herbal Concepts, Inc., 100 AD2d 175 (1st Dep’t), aff’d, 63 NY2d 379 (1984); Gale v. Kessler, 93 AD2d 744 (1st Dep’t, 1983); Hollender v. Fred Cammann Productions, Inc., 78 AD2d 233 (1st Dep’t, 1980); Falk v. Goodman, 7 NY2d 87 (1959); Stillman v. Twentieth Century-Fox, Inc., 3 NY2d 395 (1957).
- Similarly, summary judgment must be denied where there exist questions of law which turn upon questions of fact. Meadowbrook National Bank of Freeport Ferkin, 303 NY 853 (1952). Additionally, if different inferences can be drawn from the facts, summary judgment is appropriately denied. Supan v. Michelfeld, 97 AD2d 755 (2d Dep’t, 1983).
- Under CPLR 3211(a) (7) a Complaint or cause of action must be dismissed where “the pleading fails to state a cause of action.”
- CPLR 3211(c) provides that either party may submit evidence that could properly be submitted on a motion for summary judgment and that the court may, after adequate notice, treat the motion as a motion for summary judgment.
- A motion under any of the grounds included under CPLR 3211(a) should be made at any time before service of a responsive pleading; however, a motion under CPLR 3211(a) (7) is permitted “at any subsequent time or in a later pleading, if one is permitted.”
Legal Standards for Dismissal under CPLR 3211 (a) (7)
- For purposes of deciding the motion to dismiss pursuant to CPLR 3211 (a) (7) this Court must assume the allegations in the Complaint are true. See, Campaign for Fiscal Equity, Inc. State, 86 NY2d 307, 631 NYS2d 565, (1995); the sole issue is whether the claims asserted by Plaintiff in the Verified Complaint state a cause of action. See, Glassman v. Zoref, 291 AD2d 430, 737 NYS2d 537 (2d Dept. 2002).
- Although a motion pursuant to CPLR 3211 (a)(7) may be made at any time; such a motion is looked upon with disfavor when made late in the proceedings because the purpose behind this motion is to dispose of issues early in the litigation.
- On date Police Officer Nicholas Castiello, Shield 22523 of the 6th Precinct responded, along with his partner to the vicinity of 168 Waverly Place because of 911 calls of a woman asleep in her parked vehicle; after finding the Plaintiff reclined and asleep in the driver’s seat of her soft top jeep with the windows closed and engine running for heat because it was cold outside, she was placed under arrest; At 3:30 A.M XX XX was arrested and charged with Operating a Motor Vehicle While Intoxicated –VTL Section 1192(2); Operating a Motor Vehicle While Intoxicated –VTL Section 1192(3); and Operating a Motor Vehicle While Impaired –VTL Section 1192(1).
- The Criminal Court Complaint was signed by Officer Castiello on March 1, 2014 at 6:00 P.M.
- On March 1, 2014, the Plaintiff was arraigned before a Judge of the Criminal Court of the City of New York. The Plaintiff was released from custody at her arraignment but because her vehicle had been seized and due to the fact that she resided outside of New York City, her appearance was excused the adjourned date of March 21, 2014. On March 21, 2014, a motion to dismiss was consented to by the District Attorney and the Court dismissed all charges.
- Notice of Claim/ State and Federal Claims
- Plaintiff’s Notice of Claim noticed the Comptroller and City of New York that the anticipated causes of action would be brought under New York State law for Negligence, Assault, Battery, False Arrest, False Imprisonment, Malicious Prosecution, Negligent Infliction of Emotional Distress (and under Section 11 of the NYS Constitution). The Notice of Claim also specified negligent hiring, employment and training of the officers involved in the claimant’s arrest.
- Federal tort claims under 42 USC Section 1983 for violation of the claimant’s civil rights as guaranteed by the Fourth, Fifth, and Sixth Amendments of the United States Constitution were noticed in the claim.
The time place and manner and the money amounts of the specified claims were included in the claim.
- Sworn testimony of Plaintiff at GML 50h hearing
- XX XX complied with all prerequisites for commencement of her State claims on August 11, 2004 when she was examined under oath at a hearing pursuant to General Municipal Law (“GML”) Section 50-h.
- XX XX had been drinking whiskey and beer from approximately 5:00 pm until approximately 12:30 am in Greenwich Village (GML 14); she ended up at the Stone Wall Inn (GML 12); she first noticed the police when she was inside of her Jeep Wrangler at approximately 3:30 am. (GML 11-12).
- She went to her vehicle to sleep to wait for someone (GML 14) and remained sleeping until she was awoken by the police. (GML 15).
- When asked about her intent for “later that evening” she testified: “My plan later in the evening was to take a cab back with my friends to their apartment to sleep over.”(GML 15).
- Ms. XX said that after she was awoken by police knocking on her car window they asked her if she knew what was going on and her reply to the police was that
“I told them that I was waiting for my friends to get off work so—and they were at work at the Stone Wall and I was going—I was waiting for them to get off and we were going to take a cab back home, but I just couldn’t stay in there anymore because I was tired and drunk.” (GML 16) (emphasis supplied)
- At the 50-h hearing Ms. XX identified the friend whose apartment she was going to stay with and that she was with friends at the Stonewall Inn. (GML 16).
- She had the car running because her Jeep was a soft top and it was cold outside; she had parked the car on Saturday in a spot on Waverly Place where the car could lawfully remain until Monday at 8:00 am (GML 17).
- XX was told to step out of the vehicle and instructed to perform a sobriety test; she was then told to turn around and place her hands behind her back; and, she was handcuffed and put in the police car (GML 18-19).
- Once inside the police car, Ms. XX called her friend Lawrence who was working at the Stonewall Inn; the officer took the phone from her after she managed to tell her friend that she was being arrested; the officer walked away with from the car with her phone (GML 20-21).
- Despite protesting that her car was legally parked, it was seized because the officer “had to.” Her question as to “why” he had to take it was met by asking her if she was “talking back.” (GML 22).
- At the precinct Ms. XX was handcuffed to a seat outside of a prisoner cell. (GML 27); she was transported by a police van to the main holding area. (GML 32) where she was photographed; she was finally brought to Court to see a Judge. (GML 33).
- XX XX remained in custody from the time of her arrest at 3:30 am until 9:30pm to 10 pm on Saturday, March 1, 2014.
- Damages include embarrassment; loss of her job; loss of her car for a month requiring her to move from her independent life in New Hampshire and to return to her mother’s home in Pennsylvania; legal fees for her criminal defense attorney; and, fees assessed on the car while it remained in police custody (GML 38-41)
The Sufficiency of the Pleadings and of the Evidence
- Verified Complaint
- The Plaintiff’s Verified Complaint contains four State tort claims: False Arrest/imprisonment with ancillary claims in the first cause of action for unlawful search and seizure; assault and battery; malicious prosecution; and, negligent hiring, training, supervision, and retention.
- Plaintiff alleged at Paragraph 4 of the Verified Complaint that:
At all times hereinafter mentioned, the police officers involved in the matters hereinafter alleged were acting in the scope of their employment as police officers with the Police Department of The City of New York (hereinafter “NYPD”).
- Defendant’s Answer
- The Defendant’s Answer at Paragraph 2 denies knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraphs inclusive of Paragraph “4” of Plaintiff’s Verified Complaint, supra); the Answer also denied knowledge or information sufficient to form a belief as to the allegations of Plaintiff’s Verified Complaint paragraphs “3-5, 21, 22, 23 inclusive.” In other words, the Answer denied knowledge or information sufficient to form a belief with respect to the truth of the employment of the police officers by the City of New York; the police officers acting within scope of employment; the police officers acting under color of law; and, that the confinement and/or constriction of plaintiff was “not otherwise privileged.”
- Deposition Testimony
- XX parked her car on Waverly Place before going out with her long term friend BB BB.
- Mel and Lawrence (who also worked at Stonewall) and XX planned to leave Manhattan together by taxi, once AA and BB finished working at the Stonewall Inn. (XX Dep 32). Last call at Stonewall (closing time) was 4:00 am and Mel and Lawrence finished their shift at about 5 am. (XX Dep 32-33).
- They started out at a bar called Julius and stayed a couple of hours before heading to the Stonewall Inn (XX dep at 32) where XX stayed until about 12:30-1 am when she left to go to her car and sleep.
- When asked by the attorney for the defendant “why were you going to your car to sleep?” it was “because I had to wait for my friends to get off because we were going back to their place and taking a cab. I couldn’t stay awake and drink anymore or hang out.” (XX Dep 32)
- She turned the car on after getting into the driver’s seat “[b]ecause it was cold out and I have a soft top Jeep. I wanted the heat on.” XX Dep at 33.
- Her intention when getting in the car was to sleep and she did sleep XX Dep 33-34).
- She was woken up by two uniformed cops knocking on her window. (XX Dep 34)
- She had been sleeping for “probably three to four hours.” (XX Dep 35)
- When she woke up she was asked to step out of the vehicle and she was asked if she knew what was going on and then handcuffed and put in the back of the police vehicle. (XX Dep 35)
- The Plaintiff testified to her conversation with the police at the location of her arrest as follows (XX Dep 35):
Q: Did you say anything to the police at that time?
A: I had asked why I was being arrested. I also made a phone call out of my pocket to Lawrence to let them know that I was being arrested. Then the cops took the phone and talked to him on the phone. They also asked what I was doing there. I had told them I was waiting for my friends to get off of work to go home.” (emphasis added)
- The police told her that they were there because they had received multiple calls about her sleeping in the car. (XX Dep at 37)
- Following her arraignment she was released and on March 21, 2014 the charges were dismissed by the District Attorney. (XX Dep at 46).
Deposition of Police Officer Nicholas Castiello
- Officer Castiello was one of the officers involved in the arrest of XX XX and was the arresting officer (Castiello Dep at 25); he joined the Police Department in 2012 (Castiello Dep 8); following his training at the Academy, he was assigned to the Manhattan South Impact/Midtown South and then to the 06th (Castiello Dep at 8, 13).
- This was Officer Castiello’s first DWI arrest. (Castiello Dep at 36).
- He reviewed paperwork before his deposition including the IDTU paperwork but was unable to recall what “IDTU” “stood for.” (Castiello Dep at 10) and believed that the paperwork is completed when “chemical testing of motor vehicles” are done for motor vehicle cases. (Castiello Dep at 11).
- He was the officer who drew up the arrest and complaint report in this matter. (Castiello Dep at 11)
- Officer Castiello had been working with Police Officer Vincent on the date of the arrest. (Castiello Dep at 12)
- Officer Castillo first testified that he received training regarding the laws for driving while intoxicated and driving while impaired at the Police Academy (Castiello Dep at 13) but that he did not recall receiving any written materials on DWI and, did not remember having any lectures on DWI; when asked what specific training he received on DWI, he testified that he could not remember and did not receive any training in DWI following the Academy (Castiello Dep at 15-16.)
- Regarding forfeiture or seizure of vehicles for DWI he was taught that “if the car is used in the act, the vehicle is—say someone is hurt through DWI, you voucher the car as arrest evidence.” (Castiello Dep at 17); the decision as to whether property will be seized for safekeeping or forfeiture is made by a supervisor, usually a Sergeant or a Lieutenant (Castiello Dep at 21).
- Castiello did not receive any instruction at the Academy on forfeiting vehicles in DWI cases; he did not know what factors would be considered in determining whether a vehicle is forfeited. (Castiello Dep at 21-22-23)
- Officer Castiello stated that to arrest a person he needed probable cause, meaning that he would need a reason to believe that the person committed a crime. (Castiello Dep at 24)
- He described March 1, 2014 as a cold day (Castiello Dep at 26).
- He arrived because of multiple calls that a female was sleeping in the car on the corner of Waverly and Grove Street (Castiello Dep at 26); the car was legally parked (Castiello Dep at 37).
- Office Casitello never saw Ms. XX driving the vehicle. (Castiello Dep at 27)
- From the time that the calls of a female sleeping in the car he never saw her moving the car and he testified that the car was parked. (Castiello Dep at 27).
- Both officers exited their vehicle and were able to see that Ms. XX was sleeping inside of the vehicle. (Castiello Dep at 28).
- Her seat was reclined back. (Castiello Dep at 29)
- The officers knocked on her window to try to wake her up and it took a little bit to wake her up, it was not immediately; she was “out.” Castiello Dep at 30)
- She opened the door and the officers asked her to step out of the vehicle; he asked her what was going on and what she was doing there; Officer Castiello was told that she was waiting for a friend who was a bartender at Stonewall across the way from where she was parked (Castiello Dep at 30-31) and that they were “going home.” (Castiello Dep at 32)
- Neither Police Officer Castiello nor his partner Officer Vincent went to the Stonewall to speak with the bartender and he could not explain why he did not go to Stonewall to check out her story (Castiello Dep at 31, 35)
- Before taking her to the 7th Precinct a Lieutenant arrived and Officer Castiello and Officer Vincent spoke with him; XX XX was handcuffed after the Lieutenant arrived; it was apparently the Lieutenant who directed that the car be removed “for safekeeping.” (Castiello Dep at 37-38); later at the 6th Precinct Officer Castiello prepared a PETS form where he put Plaintiff’s car “in” for forfeiture and a supervisor, Sgt. Cordez approved the forfeiture or may have made the decision to have the car forfeited. (Castiello Dep at 50-53)
- Once inside of the police vehicle, after she was in handcuffs, the Plaintiff managed to call her bartender friend AA who was at the Stonewall Inn; the phone was taken from her while she was on the call with AA; Officer Castiello did not remember speaking with the person on the other end of the phone or any of the details of that conversation. (Castiello Dep at 40-43).
- At the 6th Precinct, Officer Castiello spoke with the Plaintiff’s mother and informed her that the Plaintiff was parked and sleeping in the car. (Castiello Dep at 44-45)
- According to Officer Castiello, the basis for the arrest was that the Plaintiff was in the vehicle with the motor running and that she was intoxicated with the intent to drive home; Officer Castiello testified that the Plaintiff told him she intended to drive home. (Castiello Dep at 45); Plaintiff’s alleged statement is not reflected in any of the arrest paperwork; Officer Castiello admitted having no paperwork reflecting that Plaintiff told him she intended to drive; the IDTU paperwork (Exhibit “2”) completed by Officer Castiello indicates that the Plaintiff told him she was going “nowhere” (Castiello Dep at 56-57).
- Officer Castiello testified that whether or not the Plaintiff had “told him” that she intended to drive home (a key disputed fact) he believed he would still have had probable cause to make the arrest. See, Castiello Dep at 46:
Q: If she had not stated she had the intent to drive home, would you have still—would it have been your opinion that you still had probable cause to place her under arrest?
[DEFENSE COUNSEL]: Objection, you can answer.
Q: Why is that?
A: Because the car was running. She was occupying the vehicle. She was driving the vehicle.
- The intoxicated driver examination signed by Officer Castiello (See, Plaintiff’s Ex. 2 attached hereto) stated that when questioned about whether she was driving the vehicle the Plaintiff stated “no.” (Castiello Dep at 48).
- As to whether the acts were “discretionary” Officer Castiello did not know. (Castiello Dep at 62-63).
Police and court documents in evidence and 911 radio run
- Plaintiff’s evidence included: The Misdemeanor Complaint from the Criminal Court of the City of New York signed by Police Officer Castiello; IDTU paperwork.
- The printout of the 911 radio run is attached and indicates the receipt of calls regarding a woman sleeping in her car.
THERE WAS NO PROBABLE CAUSE AND QUESTIONS OF FACT EXIST MAKING DISMISSAL UNDER CPLR 3211(a)(7) and SUMMARY JUDGMENT UNAVAILABLE FOR THE FALSE ARREST and MALICIOUS PROSECUTION ACTIONS; THE AFFIRMATIVE DEFENSE OF “PRIVILEGE” IS WITHOUT MERIT
The lynchpin question presented is whether there was probable cause as a matter of law which on a motion for summary judgment made by the Defendant, must be determined by looking at the facts most favorable to the Plaintiff.
Probable cause exists “when the arresting officer has `knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.'” Colon v. New York, 60 NY2d 78, 468 NYS2d 453, 455 NE2d 1248 (1983); Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). Its existence depends upon the reasonable objective conclusion to be drawn from the facts known to the arresting officer and those working with him or her at the time of the arrest. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L.Ed.2d 769 (2003). As the Appellate Division recently stated in Cardoza v. City of New York, 2016 NY Slip Op 2766 – NY: Appellate Div., 1st Dept. 2016 “Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty” (Colon v City of New York, 60 NY2d 78, 82 ).
If a reasonable officer would not be able to come to the conclusion that the Plaintiff was engaged in the criminal act of driving while intoxicated or driving under the influence then probable cause was lacking.
Under the facts known to the police in this case it is clear that probable cause was lacking: Plaintiff was sound asleep, reclined in the driver’s seat; it was cold out and the engine was on for warmth; being sound asleep, she clearly had no intent of moving the vehicle. A purported future intent to drive home, testified to by Police Officer Castiello, is contradicted by both Plaintiff’s testimony and the sworn affidavit of the BB BB. Since this Court must decide a motion for summary judgment without making a credibility determination and must only determine if there is a factual dispute, which there clearly is (and the dispute must be resolved in favor of the Party opposing a motion for summary judgment) the Defendant’s motion must be denied.
The facts known to the police at the time of Plaintiff’s arrest were insufficient to establish probable cause that the Plaintiff had committed either driving under the influence or driving while impaired. Under the facts known to the arresting officers, numerous 911 calls were received of a woman sleeping in her vehicle prompting the officers to investigate (Castiello Dep at 26). Upon the officers arrival to the corner of Waverly and Grove Street the officer observed the car legally parked and significantly, he never saw the Plaintiff driving or moving the vehicle and transmission was ‘in park.’ (See, Castiello Dep at 26-27, 37)
Operation is required for probable cause to arrest for driving under the influence or while impaired. It is well-settled that, for purposes of VTL 1192, the concept of “operation” requires the intent to move the vehicle See, e.g. People v. O’Connor, 159 Misc. 2d 1072, __,607 N.Y.S.2d 856, 857 (Nassau Co. Dist. Ct 1994) (DWI charges dismissed where “defendant was seated behind the wheel of the vehicle with the motor running only for the purpose of helping the owner start the vehicle and without any intention of driving same”); People v. Dymond, 158 Misc, 2d 677, __, 601 N.Y.S.2d 1001, 1002 (Green Co. Ct 1993) (“case law establishes that the definition of ‘operates’ does include a mental state, namely, the intention to move the vehicle”); People v. Marriot, 37 A.D.2d 868, __325 N.Y.S.2d 177, 178 (3d Dep’t 1971) (a person operates a motor vehicle when he begins to use the mechanism of the automobile for the purpose of putting the automobile in motion even though he does not move it.) The point in Marriot, supra, is that absent an intent to put the vehicle in motion there is no crime; a sleeping person obviously lacks the intent of putting the car in motion.
The Pattern Criminal Jury instructions for Vehicle & Traffic Law Section 1192 (1) Driving While Ability Impaired by Alcohol; Section 1192 (2) Driving While Intoxicated; and, Section 1192 (3) Driving While Intoxicated, all make note that the instructions were revised in 2008 “to provide a clearer definition of ‘operates’ by removing the language ‘for the purpose of placing it in operation’ and replacing such language with ‘for the purpose of placing the vehicle in motion’ (see People v. Alamo, 34 NY2d 453, 458 (1974); People v. Marriott, 37 AD2d 868 (3d Dept. 1971); People v. O’Connor, 159 Misc2d 1072, 1074-1075 (Suffolk Dist. Ct. 1994); see also People v. Prescott, 95 NY2d 655, 662 (2001)”
Further clarification of the “operation” element of each of the charged offenses, the Pattern Criminal Jury Instructions instruct that “To OPERATE a motor vehicle means to drive it.” In the event that there is an issue as to operation the pattern instructions provide that
A person also OPERATES a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running. (emphasis added)
The right to be free from arrest without probable cause is well established. Under the circumstances known at the time that the officers placed Plaintiff under arrest there was clearly no probable cause; because she was sound asleep or “out” as Officer Castiello testified, she could not have intended to move the vehicle. Even if her future intention, as testified to by Officer Castiello, are to be believed and, were it not in dispute, as it is, none of the Vehicle and Traffic Law offenses for which she was arrested are applicable because there is no attempted Driving Under the Influence nor attempted Driving While Intoxicated under New York law. See, People v. Prescott, 95 NY2d 655, 745 NE2d 1000, 722 NYS2d 778 (2001).
Because the Plaintiff was sound asleep, the central pillar of criminal conduct and probable cause was lacking i.e. being behind the wheel with the motor running for the purpose of placing the vehicle in motion and no reasonable officer would have believed that there was probable cause to arrest the Plaintiff.
A police officer has acted in an objectively unreasonable manner “`when no officer of reasonable competence could have made the same choice in similar circumstances.'” Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997).
Summary judgment can only be granted on the basis of “privilege” if the Defendant can show that “no reasonable jury, viewing the evidence in the light most favorable to the [p]laintiff, could conclude that the defendant’s actions were objectively unreasonable in light of clearly established law.” Ford v. Moore, 237 F.3d 156, 162 (2d Cir.2001) and, as New York case law establishes that sleeping in a car in an intoxicated condition with the motor running is not operating a motor vehicle in violation of the criminal law, the arrest was unreasonable and lacking in probable cause.
The facts presented are not novel under New York case law and no claim of good faith is available. In People v. Edwards, 158 Misc. 2d 615, __601 N.Y.S.2d 539, 540 (Oswego City Ct 1993), the stipulated facts were that the defendant “was behind the steering wheel of the vehicle for the distinct the purpose of sleeping off his intoxicated condition” and that “while he was sitting behind the wheel and asleep his foot came in contact with the clutch pedal which caused the car to roll backwards into another vehicle. Under these circumstances the court held that:
[W]here an individual engages in conduct that was unintentional or at least could not be proved by direct testimony to be intentional it is the opinion of this Court that it would be impossible to determine that the person behind the wheel was guilty, beyond a reasonable doubt of operating a motor vehicle in violation of section 1192. For those reasons the charges of violation of section 1192(2) and 1192(3) are dismissed.
In Marriott, supra the police found the defendant asleep inside his car with the engine running slumped over the wheel with the lights on and intoxicated; when the police arrived they were unable to arouse the Marriot; they arrested him for driving while intoxicated. Mr. Marriot explained that he had not driven but had taken the train. He left his place of employment at about 3:10 P.M. and thereafter had dinner and some drinks with “a bunch of guys”. He returned to Rye at about 12 or 12:05 a.m., aware that he was unable to drive. He stated that he intended to find alternate means of returning home and started the motor of the vehicle solely to turn on the heater in an effort to keep warm. He thereafter fell asleep. The Appellate Division determined that because there was no intent to move the vehicle, the defendant was not guilty of driving under the influence or driving while impaired.
Of course, the issue is not proof beyond a reasonable doubt but probable cause and an examination of what the officers who arrested Plaintiff XX knew at the time she was arrested. Since the officers knew, had to know, that the element of “operation” of a motor vehicle did not exist, there was no probable cause.
The Plaintiff does not dispute that the police had a common law right to approach and inquire following the 911 calls that prompted the officers in this case to investigate. The 911 calls provided a lawful basis to approach and inquire -and even to wake the Plaintiff from her slumber to see if she was alright. Once the officers woke the Plaintiff, at most they were limited to either informing Plaintiff that she was prohibited from driving or even moving the vehicle; it would have been beyond their authority to have even instructed her to shut off the motor and to keep it off; likewise it would have been beyond their lawful power to have instructed her that she had to leave the car and wait for her friends elsewhere (there is a distinction between advice and police power –nothing would prohibit giving advice to leave the car or to crack the window open for safety while she slept).
If the arresting officer was making the arrest for what he anticipated was a future crime that had not occurred and, if accepting such expansive police powers is being urged upon this Court, then a seismic shift in police powers would be decided. No crime had been committed and the police action of arresting the Plaintiff lacked probable cause.
As already stated, there is a factual dispute as to what the Plaintiff said to the police after being awakened. This alone precludes granting summary judgment because her statement which, for the purpose of Defendant’s motion must be credited as truthful, raises a factual question which can only be resolved by a jury.
The defendant has the burden of proving legal justification or “privilege” as an affirmative defense; “Privilege” is not present as it would be if some crime had been committed. See, Wallace v. Albany, 283 AD2d 872, 725 NYS2d 728 (3d Dept. 2001); Matter of William H., 264 AD2d 676, 695 NYS2d 98 (1st Dept. 1999). Because no such argument is supported by the facts and the defendant has the burden of proof on this “affirmative defense,” the argument is frivolous
The affirmative defense of “privileged” is not identical with “qualified immunity” which in an action under 42 U.S.C. Section 1983 for a violation of the 4th Amendment right to be free from False Arrest provides that “arguable probable cause” will suffice to immunize an individually sued defendant. Even under the schema of a qualified immunity analysis however, it is well established that “summary judgment on qualified immunity grounds is not appropriate where there are facts in dispute that are material to a determination of reasonableness.” See, Graham et al v. City Of New York et al (08-CV-3518 (MKB); Felmine v. The City of New York et al, 2011 WL 4543268, at *10 (finding defendant officers were not entitled to qualified immunity on false arrest claim because, reading the disputed evidence in the light most favorable to plaintiff, it was not objectively reasonable to arrest plaintiff for simply being present at the chaotic fight scene. “As the Second Circuit noted this Term in Dancy v. McGinley, 15-140-cv (L); 15-1876-cv(CON); 15-1950-cv(XAP): “Arguable probable cause should not be misunderstood to mean almost probable cause.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (quotation marks omitted). “If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer.” Id.
The Court in Graham discussed and compared the Federal and State standards for according officers immunity for false arrest (and for assault and battery, see Point 2, infra):
The standard for determining whether police officers enjoy immunity for false arrest and assault and battery actions is the same under state law as it is under federal law. Gilliard v. City of New York, No. 10-CV-5187, 2013 WL 521529, at *12 & n.11 (E.D.N.Y. Feb. 11, 2013) (finding that “immunity doctrine [for state assault and battery claims] parallels federal qualified immunity jurisprudence”); Castro, 739 F. Supp. 2d at 178 & n.17 (E.D.N.Y. 2010) (noting that immunity under state assault and battery and federal excessive is the same); Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 401 (S.D.N.Y. 2009) (“[A]s is true of federal law, an officer’s entitlement to qualified immunity under New York law depends on the reasonableness of his actions. The only difference between the federal and state doctrines is that the reasonableness of an officer’s action is judged with references to state law and the state, not the federal, constitution.”); Delgado v. City of New York, 928 N.Y.S.2d 487, 495 (App. Div. 2011)
(stating that the proper analysis for a police officer performing a discretionary function is to establish “that it was objectively reasonable for the police officer involved to believe that his or her conduct was appropriate under the circumstances, or that officers of reasonable competence could disagree as to whether his or her conduct was proper”); Doyle v. Rondout Valley Cent. Sch. Dist., 770 N.Y.S.2d 480, 482 (App. Div. 2004) (“A government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). Defendants argue that they are entitled to immunity for the state law claims. However, since Defendants failed to meet the standard for immunity under federal law, they also fail to meet standard for immunity under New York State law.
“Privilege” is an affirmative defense and the Defendant has proffered no evidence to support a claim that “officers of reasonable competence could disagree as to whether his or her conduct was appropriate under the circumstances.” Accordingly, the privileged argument must fail.
In any event, once the officers learned that she was waiting for her friends inside of the Stonewall Inn to “go home” and certainly once Plaintiff was in the police car on the phone with her friend and one of the officers took the phone and spoke with the friend, if probable cause existed it dissipated.
Generally it is true that the failure to investigate will not vitiate probable cause. However, the test is whether a reasonable police officer under the circumstances would investigate and not turn a blind eye to readily available facts. Once on the phone the officers’ failure to ask “how” Plaintiff and her friends intended to go home was a failure of sufficient magnitude to vitiate probable cause. The officer who testified could simply not remember the conversation or if he had a conversation with the friend; however, he did know that the friends were available to speak with in the immediate vicinity but apparently chose to not inquire.
“Probable cause is not a necessary predicate for all contact between police and the citizenry in the course of a criminal investigation. (See United States v. Mendenhall, 446 U.S. 544, opn. of STEWART, J., in which REHNQUIST, J., joined.) It is settled that, under appropriate conditions, an officer may briefly detain and question a suspect in a public place on information not amounting to probable cause, for, until an actual arrest occurs, the Constitution [and the law in New York governing false arrest/imprisonment] demands only that the action of the police be justified at its inception and reasonably related in scope and intensity to the circumstances surrounding the encounter. (See People v. Cantor, 36 N.Y.2d 106, 111; Terry v. Ohio, 392 U.S. 1, 20)
Among the levels identified in DeBour (supra) and elsewhere (e.g., CPL 140.50(1); Brown v. Texas, 443 U.S. 47, supra) is the standard of “reasonable suspicion.” That term has been defined as denoting “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand” (People v Cantor, 36 N.Y.2d 106, 112-113, supra),
Clearly, a stop which is justified at its inception may be rendered unlawful by unwarranted police action taken as the confrontation progresses. (Terry v. Ohio, supra, p 18; Go-Bart Co. v. United States, 282 U.S. 344, 356-358; cf. People v Stewart, 41 N.Y.2d 65, 66-67.)
In this case, a permissible common law right of inquiry escalated into a full blown arrest unsupported by probable cause.
Finally, the tort of false arrest/false imprisonment under New York law is distinguished from the Constitutional tort which 42 USC Section 1983 proscribes. See, Posr v. Doherty, 944 F2d 91 (2d Cir. 1991). Broughton, supra described the state law tort which derives from the common law action for trespass and “protects the personal interest of freedom from restraint of movement.”
Plaintiff has adequately plead and sufficiently presented evidence of this cause of action.
PLAINTIFF’S CAUSE OF ACTION FOR MALICIOUS PROSECUTION IS NOT SUBJECT TO DISMISSAL OR SUMMARY JUDGMENT AS PROBABLE CAUSE FOR THE ARREST WAS LACKING; THE CHARGES WERE INITIATED BY THE ARRESTING OFFICER AND SUFFICIENT EVIDENCE OF MALICE HAS BEEN ESTABLISHED
“Under New York law, police officers can `initiate’ prosecution by filing charges or other accusatory instruments.”); Tretola v. D’Amico, No. 13-CV-5705, 2014 WL 2957523, at *7 (E.D.N.Y. July 1, 2014) “In malicious prosecution cases against police officers, plaintiffs have met this first element by showing that officers brought formal charges and had the person arraigned, or filled out complaining and corroborating affidavits, or swore to and signed a felony complaint.” The New York City Criminal Court Complaint in this matter was signed by one of the police officers who was the arresting officer. Recent cases decided by the Appellate Division First Department establish that when there are credibility issues such as disputes as to the events and/or omissions as to probable cause the Court will not speculate that a complete version of the facts were provided to the prosecutor –and will not trigger the rule that a presumption of probable cause will arise from the arraignment of the Plaintiff. In Mendez v. City of New York 2016 NY Slip Op 1586, 137 A.D.3d 468, 27 N.Y.S.3d 8 (First Dept. 2016) the Court noted that: “there are numerous factual questions concerning whether the police had the requisite probable cause to arrest plaintiff and initiate criminal proceedings. The omissions in the police paperwork and the various versions of events raise questions as to the credibility of the police account of what transpired. Further, the presumption of probable cause attaching upon an accused’s arraignment or indictment may be overcome by evidence that “the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or [that they have] otherwise acted in bad faith” (Maxwell v. City of New York, 156 A.D.2d 28, 34, 554 N.Y.S.2d 502 [1st Dept.1990] [internal quotation marks omitted] ). Since the police paperwork admittedly omitted mention of Detective Moreno’s observations, there is a question
[27 N.Y.S.3d 13] as to whether Shea’s testimony before the grand jury was a full and complete
statement of the facts.
The facts here establish that the police paperwork fails to mention that the Plaintiff was asleep
and instead refer to her as being “slouched” in the driver’s seat with the keys in the ignition and
the engine running; there is a failure to mention that the calls that brought them to the scene were
of a woman asleep in her vehicle and there is a failure to mention that the Plaintiff had called her
friends who were close by at the Stonewall Inn or that one of the police officers spoke to that
individual and what the contents of that conversation consisted. These facts certainly establish a
question of fact as to the “initiation” element of malicious prosecution.
In addressing the elements needed to establish malicious prosecution, the First Department in Cardoza v. City of New York, 2016 NY Slip Op 2766 recently explained the purpose behind the tort and, the elements necessary to sustain the claim. “The tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation[,] . . . [t]he essence [of which] is the perversion of proper legal procedures” (Broughton v State of New York, 37 NY2d 451, 457 , cert denied 423 US 929 ). To sustain a claim for malicious prosecution, a plaintiff must establish the following elements: (1) the initiation of a criminal proceeding against him or her, (2) termination of the proceeding in his or her favor, (3) lack of probable cause for the criminal proceeding, and (4) actual malice (id.; see also Torres v Police Officer Jones, ___ NY3d ___, 2016 NY Slip Op 01254 )
The reasons fully discussed in Point One, supra, establish that Plaintiff’s arrest lacked probable cause.
The absence of probable cause “raises an inference of malice sufficient for a claim of malicious prosecution to withstand summary judgment.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997). As recently noted by the First Department in Mendez v. City of N.Y., 2016 NY Slip Op 1586, 137 A.D.3d 468, 27 N.Y.S.3d 8 (N.Y. App. Div., 2016)
A jury may infer that a defendant acted with actual malice from the fact that there was no probable cause to arrest the plaintiff (see Martin v. City of Albany, 42 N.Y.2d 13, 17, 396 N.Y.S.2d 612, 364 N.E.2d 1304 ; Lundgren v. Margini, 30 A.D.3d 476, 477, 817 N.Y.S.2d 349 [2d Dept.2006] [error to grant motion for summary judgment dismissing malicious prosecution claim where triable issue of fact existed as to whether there was probable cause to arrest the plaintiff, noting that the lack of probable cause could support an inference of actual malice] ).
Under such circumstances, there is an issue of fact on the element of malice; see, Chimurenga v. City of N.Y., 45 F.Supp.2d 337, 343-344 (S.D.N.Y.1999) (finding that fact questions regarding probable cause and, by extension, malice precluded summary judgment for correction officers on malicious prosecution claims).
The facts of this case suffice to deny the motion to dismiss and for summary judgment whether malice is circumstantially inferable, due to a lack of probable cause under New York common law, and because proof of malice supported by the record.
PLAINTIFF’S HAS ESTABLISHED SUFFICIENT EVIDENCE FOR A JURY QUESTION ON HER CAUSE OF ACTION FOR ASSAULT AND BATTERY
As the arrest of the plaintiff was unlawful, a battery was committed when she was touched during that arrest. The degree of physical harm does not control when a handcuffing of a person happens during an unlawful arrest. (Since the arrest was unlawful, a technical assault and battery occurred when the claimant was handcuffed and forcibly placed in the State Police car. Budgar v State of New York, 98 Misc 2d 588, 592).
The following cases all hold that touching or handcuffing during an illegal arrest is sufficient to find that battery has been committed. Johnson v. Suffolk County Police Dep’t, 245 A.D.2d 340, 665 N.Y.S.2d 440, 440 (2d Dep’t 1997) held that a police officer committed a battery when he touched the plaintiff during an unlawful arrest; Nelson v. Town of Glenville, 220 A.D.2d 955, 633 N.Y.S.2d 222, 223 (3d Dep’t 1995) (affirming lower court’s directed verdict for false arrest and battery resulting from false arrest when officers made contact with minor as they attempted to gain entry into her father’s house to execute arrest warrant for her father, handcuffed minor, charged her with obstructing governmental administration, detained her for one hour at police station, and did not oppose motion to dismiss charges against minor); and, Pawloski v. State, 45 Misc.2d 933, 258 N.Y.S.2d 258, 265 (1965) (finding assault and battery arising out of false arrest where plaintiff “was touched by the State Police”).
Plaintiff’s cause of action was properly and sufficiently stated and the facts establish that summary judgment should not be granted on these claims.
PLAINTIFF’S HAS ESTABLISHED SUFFICIENT EVIDENCE FOR A JURY QUESTION ON HER CAUSE OF ACTION FOR NEGLIGENT TRAINING AND SUPERVISION
The Claim for Negligent Hiring, Screening, Retention, Supervision and Training,
Under the Laws of the State of New York
City liability for negligent hiring, screening, retention, supervision and training claims turn on several factors. Of course, under New York State law, if the employee was acting in the scope of employment then the State claim generally will not survive. As noted in Martinez v. County of Suffolk, 999 F. Supp. 2d 424 (Spatt, J. EDNY, 2014)
Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training.” Talavera v. Arbit, 18 A.D.3d 738, 795 N.Y.S.2d 708 (2d Dep’t 2005). “This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training.” Karoon v. New York City Transit Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27, 29 (1st Dep’t 1997) (emphasis added).
However, a jury question is raised, in this case, because this negligence claim is predicated upon the failures of the NYPD to have proper investigations and procedures to protect the Plaintiff from the named defendant police officers. These failures are in addition to the supervisory acts, for which evidence has been adduced, including the decisions by the Sergeants and Lieutenant.
Furthermore, negligence is a jury question properly pleaded and with a sufficient factual predicate to survive summary judgment, where, as here, there are failures to comply with mandatory rules of the (such as the failure to have made inquiry etc. See, Lubecki v. New York, 304 AD2d 224, 758 NYS2d 610 (1st Dept. 2003); Wyatt v. State, 176 AD574, 575 NYS2d 31 (1st Dept 2007); it also arises from the institutional custom or practice as alleged. See, Hunt v. State, 36 AD3d 511, 828 NYS2d 355 (1st Dept. 2007). Courts in New York have long recognized such claims. See, e.g., Haddock v. City of New York, 75 N.Y.2d 478, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990) (City could be held liable for negligently hiring a parks department employee who raped a child where employee had a history of violent offenses and, in hiring the employee, City failed to comply with its own hiring and screening procedures).
There are three elements of a negligent hiring claim. First, the employee must be unfit for employment. This determination is based on the nature of the job and the likelihood that the hiring of an unfit employee will cause harm to others. Second, the employer must have either actual or constructive knowledge of the employee’s unfitness. An employer may be held to possess constructive knowledge of the employee’s unfitness where it would have been disclosed by a reasonable inquiry or investigation. The third element of a negligent hiring claim is that the employer’s hiring of the unfit employee must be the cause of the third party’s injury.
The claim of negligent hiring or retention should go to the jury as there is a question of fact regarding whether the defendant City of New York used reasonable care in the employment, training and supervision of its employees to find out whether they were competent to do their work without danger or harm to others. As New York Pattern Jury Instruction PJI 2:240 states:
The duty of reasonable care has two aspects. An employer fails in this duty where it knows that an employee (is incompetent, has vicious propensities, has a bad disposition, is given to horseplay) and the employer fails to use reasonable care to correct or remove the employee. An employer also fails in the duty of reasonable care when it knows of facts that would lead a reasonably prudent person to conduct an investigation which could have uncovered the information about the employee and fails to do so.
As the Comment to PJI 2:240, at p. 698 notes:
The negligence of an employer under theories of negligent hiring and negligent retention is premised upon its having placed an employee in a position to cause foreseeable harm that the injured party most probably would have been spared had the employer used reasonable care in making its decision regarding the hiring and retention of the employee, Sheila v. Povich, 11 AD3d 120, 781 NYS2d 342 (1st Dept. 2004).
To prevail on a claim for negligent hiring, training, supervision, or retention, a plaintiff must prove that a municipality’s failure to properly train, hire, retain, or supervise its police officers in a relevant respect evidences a deliberate indifference to the rights of its inhabitants.” Henry-Lee v. City of New York, 746 F.Supp.2d 546, 566 (S.D.N.Y. 2010) (Chin, J.) (quoting Jackson v. City of New York, 192 A.D.2d 641, 596 N.Y.S.2d 457, 458 (N.Y.App.Div. 2d Dep’t 1993) (internal quotation marks omitted).
THERE IS NO NEED FOR THE COURT TO DISMISS CLAIMS UNDER 42 U.S.C. SECTION 1983 BECAUSE ALL CLAIMS ALLEGED BY PLAINTIFF ARE STATE TORTS
The Verified Complaint in this matter had not pleaded a claim under 42 U.S.C. Section 1983 and so it is unnecessary for this Court to address the issue.
WHEREFORE, for all of the foregoing reasons the Plaintiff respectfully requests that Defendant’s Motions to Dismiss pursuant to CPLR 3211(a)(7) and for Summary Judgment pursuant to CPLR 3212 be denied in their entirety and for such other and further relief as to this Court seems just and proper.
Dated: New York, New York
December 11, 2016 _______________________________________
THE LAYTON LAW FIRM, PLLC
by: Paul Thomas Layton, Esq.
Attorneys for Plaintiff(s)
OFFICE & PO ADDRESS
30 Vesey Street, Suite 1801
New York, New York 10007
Corporation Counsel of the City of New York
Attorneys for Defendant
The City of New York
100 Church Street
New York, New York 10007
 Mitchel v. City of New York, ___F3d__(2016), 2016 WL 631089 decided October 28, 2016 recently held “subjective malice” to be an element of a federal malicious prosecution claim; however, a Petition for Rehearing & Rehearing En Banc has been filed. (see, Case 14-767, Document 89, 11/14/2016). The Petition was filed because the decision “conflicts with this Circuit’s long-standing jurisprudence that malice may be inferred from a lack of probable cause.” The New York common law of malicious prosecution has “actual malice” as an element and a lack of probable cause is circumstantial proof of malice. Cardoza v. City of New York, 2016 NY Slip Op 2766 – NY: Appellate Div., 1st Dept. 2016
 The Plaintiff concedes that there is no claim made in the Complaint under 42 U.S.C. Section 1983 for civil rights violations.
 Evidence regarding damages is only minimally reviewed because the Defendant’s motions involve adequacy of the pleadings and liability.
 See, Affidavit of BB corroborating Plaintiff’s intention to take a cab home. .
 See, People v. DeBour, 40 N.Y.2d 210 where the Court of Appeals articulated four different levels of police-citizen contact. Level 1 deals with a police officer who has an objective credible reason to approach someone. If a police officer has such a reason, DeBour says he may approach that person to request information. Level 2 involves a founded suspicion regarding a person. If a police officer has a founded suspicion, he may engage that person in the common law right of inquiry. Level 3 deals with a police officer who has a reasonable suspicion regarding an individual. In such case, the police officer may forcibly stop such person and if the police officer is in fear of weapons, may frisk the person for such weapons. Level 4 deals with a police officer who has probable cause regarding a person. If a police officer has probable cause, he may arrest and search such person.