whether she asked Brawer why he had not left the loft. (O'Keefe Dep. at 33). Moreover, the police found Brawer in the apartment only a short time after 10:00, and Brawer willingly opened the door when Officer O'Keefe arrived.
Defendants also argue that they had probable cause to arrest Brawer for violating the June 3rd Order of Protection under the New York City Police Department Patrol Guide, which requires officers to arrest an individual who has violated an order of protection. (See Patrol Guide § 110-38(5). The evidence before me, however, could support a finding that Brawer was arrested for refusing to leave the loft by 10:00, not because he was in Pinkins's presence in violation of the June 3rd Order of Protection. (See Hassett Dep. at 24 (stating that he would not have arrested Brawer if Brawer had been willing to leave the premises); O'Keefe Dep. at 34 (stating that she decided to arrest Brawer for criminal contempt because he failed to leave at time specified in court order); Vukov Dep. at 13 (stating that he and Hassett were shown "court paper" dealing with "the rights to the location or something to that effect" and that Brawer was "arrested for violating the order.")). Vukov also testified that he "believed it was a court order, not a regular order of protection." (Id. at 15).
Considering the totality of the circumstances, and drawing all inferences in favor of plaintiff, I hold that a reasonable jury could conclude that the officers did not have probable cause to believe that Brawer had intentionally violated the April 7th Order or that he had violated the June 3rd Order of Protection. Accordingly, defendants' motion for summary judgment with respect to counts 1 and 7 is denied.
b. Probable Cause for the July 20th Arrest
Defendants argue that they had probable cause to arrest plaintiff on July 20, 1993 for criminal contempt and for unlawfully evicting Pinkins. Under the Penal Law, a person is guilty of criminal contempt in the second degree if such person engages in "intentional disobedience or resistance to the lawful process or other mandate of a court." N.Y. Penal Law § 215.50(3) (McKinney 1988).
Considering the totality of circumstances surrounding the July 20th arrest, I hold that a reasonable jury could find that Carter and DelGrosso lacked probable cause to arrest Brawer on July 20, 1993. First, Carter and DelGrosso arrested Brawer five days after Carter and Warren had helped Pinkins gain access to the loft. Given that the situation had been remedied, it is unclear why Carter did not simply issue a summons, as recommended by the N.Y.P.D. Student's Guide. (See N.Y.P.D. Police Student's Guide - Law, Ch. 4, at 13 (providing that officers should issue summons instead of arresting where one charged with unlawful eviction has not prevented occupant from reentering premises)). Second, Carter and DelGrosso arrested Brawer at his place of work during business hours. As Pinkins had already gained access to the loft, there was no exigency requiring the officers to arrest Brawer at his place of employment and without obtaining a warrant.
In addition, Carter's statements regarding his attempts to contact Brawer to resolve the matter are inconsistent and conflict with plaintiff's deposition testimony. Carter testified at his deposition that he called Brawer at his home and called the office of Brawer's attorney and left messages on at least one answering machine (Carter Dep. at 70, 72) in an attempt "to alleviate the situation." (Id. at 68). Later in his deposition, Carter stated that he did in fact speak with either Brawer or with his attorney about having Brawer go to the 13th Precinct to discuss the situation. (Carter Dep. at 86). At the custody hearing in Supreme Court, however, Carter claimed that every time he called the attorney he got a busy signal. (See Transcript of Aug. 11, 1993 Custody Hearing at 433-34). Brawer testified at his deposition that he did not receive any telephone calls or messages from Detective Carter prior to July 20th, nor did he receive any messages from Carter at NBC Studios. (Brawer Dep. at 129).
In light of these disputed facts and the circumstances surrounding the July 27th arrest, a reasonable jury could find that Carter lacked probable cause and that Brawer was unlawfully arrested. Accordingly, the motion for summary judgment with respect to counts 3, 9, and 11 is denied.
5. Malicious Prosecution/Prosecution Without Probable Cause
Counts 2 and 5 assert section 1983 claims for malicious prosecution and prosecution without probable cause in violation of the 4th and 14th Amendments based on the charges filed in relation to the June 26th and July 20th arrests, respectively.
Counts 8 and 10 assert claims for malicious prosecution under state law based upon the charges stemming from the June 26th and July 20th arrests, respectively.
Malicious prosecution claims asserted under section 1983 are governed by state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (citing Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989)). To recover for malicious prosecution under New York law, plaintiff must show: (1) that the defendant commenced a criminal prosecution against him; (2) that the proceeding was terminated in plaintiff's favor; (3) that there was no probable cause to prosecute the plaintiff; and (4) that the proceeding was instituted with malice. Lowth, 82 F.3d at 571 (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (N.Y. 1983)); see Broughton, 373 N.Y.S.2d at 94.
Because Brawer has failed to submit any proof that the criminal proceedings based on the June 26th and July 20th arrests terminated in his favor, summary judgment is granted in favor of defendants with respect to these claims. See Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364, 2371 (1994); Singer, 63 F.3d at 118.
The only evidence in the record concerning the resolution of the criminal charges is the transcript from the proceedings on August 5, 1993 before Criminal Court Judge Harvey Glasser. Rather than showing that the charges terminated in Brawer's favor, however, this transcript merely indicates that the matters were transferred to Justice Friedman:
At this time, the People move to dismiss [the charges ensuing from the arrests of June 26 and July 20, 1993]. These matters are currently pending before Judge Friedman, and they're in the Supreme Court. They arise out of the divorce and custody proceedings. It is the People's position that this matter could be better dealt with before that Judge.
(See Def. Exh. Q). This evidence is insufficient to support a finding that the criminal charges were resolved on the merits in Brawer's favor. Therefore, summary judgment is granted with respect to counts 2, 5, 8, and 10.
6. Illegal Search and Seizure
Count 4 asserts a claim for illegal search and seizure based upon Carter's and Warren's entrance to the loft on July 15, 1993, when Pinkins showed Brawer's journal to Carter. Defendants argue that Brawer's claim for illegal search and seizure must be dismissed because Pinkins, a lawful tenant of the loft, invited Carter and Warren into the apartment. I agree.
It is well-settled that consent is an exception to the requirements of a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Consent may be obtained from a party who possesses common authority over the premises to be inspected. United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). Brawer maintains that Pinkins's consent was not sufficient to allow a search of the loft on Thursday, July 15, 1993, because Pinkins did not have the right to be in the loft on Thursdays pursuant to the April 7th Order. In his deposition, however, Brawer acknowledges that the April 7th Order expired on approximately June 26, 1993 and that Justice Friedman's July 1, 1993 custody order, which was to remain in effect until Labor Day, provided that neither Brawer nor Pinkins had the exclusive right to occupy the loft. (Brawer Dep. at 120-21; see July 1, 1993 Order P 3).
As Justice Friedman's July 1st Order gave Pinkins legal access to the loft, she was capable of consenting to the officers' entry and alleged search of the loft. Hence, the purported search and seizure was lawful and cannot give rise to liability under section 1983. Accordingly, count 4 must be dismissed.
7. Conspiracy Charge
In count 6, plaintiff alleges that the police officers conspired with Pinkins to deprive plaintiff of the custody of his children. Plaintiff may recover under section 1983 for a conspiracy to violate his constitutional rights where there has been an actual violation of his constitutional rights. Singer, 63 F.3d at 119 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)).
Because I have denied the motion for summary judgment with respect to plaintiff's section 1983 claims based upon arrest without probable cause, a reasonable jury could find that Brawer's constitutional rights were violated. In addition, despite Carter's testimony that he first met Pinkins when she went to the 13th Precinct on July 4, 1993, there is sufficient evidence for a reasonable jury to find that Carter and Warren conspired with Pinkins to deprive Brawer of his constitutional rights based upon the following incidents. First, Carter and Warren did not file a complaint against Pinkins for writing checks on Brawer's business account, despite the fact that she was not a signatory to that account. Second, after helping Pinkins regain access to the loft after Brawer had changed the locks, Carter and Warren accompanied her to her place of work at ABC studios, where she introduced them to various actors and actresses. Third, Carter arrested Brawer at his place of work five days after helping Pinkins change the locks. Because a reasonable jury could find that Pinkins and Carter had conspired to deprive Brawer of his constitutional rights in relation to the custody battle, the motion for summary judgment on the conspiracy claims against Carter and Warren is denied. Because there are no facts indicating that Officers O'Keefe, Greco, Rivera, DeJesus, Bailey, and DelGrosso and Sergeants Hassett and Vukov had any contact with Pinkins other than in relation to the June 26th and July 20th arrests, summary judgment is granted on count 6 in favor of those defendants.
8. Abuse of Process
Count 13 of the Amended Complaint asserts a state law claim for abuse of process against Detective Carter based on the July 20th arrest. Under New York law, abuse of process occurs when defendants (1) employ regularly issued legal process to compel performance or forbearance of some act, (2) with the intent to do harm without excuse or justification, (3) in order to obtain a collateral objective beyond the legitimate ends of the process. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (citing Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 468, 469 N.E.2d 1324 (N.Y. 1984)). Carter argues that summary judgment should be granted dismissing the abuse of process claim because there is no evidence that he arrested Brawer to obtain a collateral objective beyond the legitimate ends of process or that he misused process after plaintiff was arrested. I disagree.
It is true that "the pursuit of a collateral objective must occur after the process is issued; the mere act of issuing process does not give rise to a claim." Lopez v. City of New York, 901 F. Supp. 684, 691 (S.D.N.Y. 1995) (footnote and citation omitted). Here, Brawer has alleged that Carter arrested him and charged him with criminal contempt and unlawful eviction to interfere with the custody dispute between Brawer and Pinkins as a means of gaining favor with Pinkins. Drawing all reasonable inferences in favor of plaintiff, there is sufficient evidence for a rational jury to conclude that Carter arrested and prosecuted Brawer to obtain a collateral objective beyond the legitimate ends of process -- namely, the objective of currying favor with Pinkins. The evidence shows that Carter arrested Brawer without a warrant, at Brawer's place of work, five days after Carter knew that Pinkins had regained access to the loft. In addition, Carter had accompanied Pinkins to the loft to change the locks, and drove her to her place of work, where she introduced him to actors and other people involved in her soap opera. Finally, plaintiff has shown that the arrest interfered with his person, because he was held in prison overnight. The motion for summary judgment dismissing the abuse of process claim is denied.
9. Qualified Immunity
The police officer defendants argue that all of the claims against them should be dismissed under the doctrine of qualified immunity. "The doctrine of qualified immunity shields government employees acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their conduct violated clearly established rights of which an objectively reasonable official would have known." Lowth, 82 F.3d at 568-69 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). The right to be free from false arrest is clearly established. See Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995). Even where the rights were clearly established, a police officer will be accorded qualified immunity if, based on the facts known to the officer, it was objectively reasonable for the officer to believe that his or her actions did not violate plaintiff's clearly established constitutional rights. See id. (arresting officer entitled to qualified immunity where "either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.") (citation omitted).
Because the parties do not agree on the facts known to the officers who conducted the June 26th and the July 20th arrests and the circumstances surrounding those arrests, however, summary judgment is not appropriate. See Kaminsky v. Rosenblum, 929 F.2d 922, 927 (2d Cir. 1991) (where objective reasonableness of officers' action depends upon disputed facts, district court properly denied summary judgment); cf. Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498 U.S. 967, 112 L. Ed. 2d 414, 111 S. Ct. 431 (1990) (qualified immunity should be decided by court as matter of law when facts are undisputed).
With respect to the June 26th arrest, plaintiff and the arresting officers disagree as to his willingness to leave the loft. Given Brawer's testimony that he was willing to leave the loft, I cannot say that as a matter of law it was objectively reasonable for the officers to arrest Brawer. Likewise, based on the record before me, a reasonable jury could conclude that it was not objectively reasonable for Detectives Carter and DelGrosso to arrest Brawer at his place of business after they knew that Pinkins had gained entry to the loft. Accordingly, defendants' motion for summary judgment based on a qualified immunity defense is denied.
For the reasons set forth above, the motion for summary judgment is granted in full in favor of defendants Bailey, DeJesus, Rivera, and Reina for lack of personal involvement. Counts 5 and 10 are dismissed with respect to Detective Warren for lack of personal involvement. The City's motion for summary judgment dismissing count 11 is granted. The motion for summary judgment dismissing counts 1, 3, 7, 9, and 12 is denied. The motion for summary judgment dismissing the malicious prosecution claims contained in counts 2, 5, 8, and 10 is granted, as is the motion for summary judgment with respect to the illegal search and seizure claim contained in count 4. The motion for summary judgment with respect to count 6 is denied as to defendants Warren and Carter and granted with respect to the other defendants. Finally, the motion for summary judgment dismissing count 13, the abuse of process claim, is denied. Thus, counts 1, 3, 6, 7, 9, 12, and 13 remain to be tried, to the extent set forth above.
Dated: New York, New York
August 29, 1996
United States District Judge