Weston received a different account of the events in question. The driver Karen Wu averred that upon approaching the cross walk in question she observed four males including the Plaintiff entering the cross walk. She wrongly assumed the males were going to yield to her, and as she proceeded through the intersection the Plaintiff jumped in front of car, bracing his hands on the front of the car. Ms. Wu alleges the Plaintiff then swung a bag of bottles at the car, putting a dent in the hood. She further stated that Plaintiff's acquaintances then surrounded the car and began shouting obscenities at her and the two female passengers in the car. Ms. Wu claims she feared for her safety which is why she left the intersection. The statements collected by Officer Weston from the passengers in the car corroborated Ms. Wu's story. Officer Weston inspected the car and noted three dents in the hood.
Generally, where facts are undisputed the question of probable cause is a question of law. See id. at 852. Here, while the precise facts of the underlying incident are hotly in dispute, the facts available to Officer Weston in making his decision to arrest the Plaintiff are undisputed. In such cases, probable cause may be decided as a matter of law. See Kruppenbacher v. Mazzeo, 744 F. Supp. 402, 407 (N.D.N.Y. 1990), Collom v. Village of Freeport, 691 F. Supp. 637, 640 (E.D.N.Y. 1988); Coleman v. City of New York, 182 A.D.2d 200, 203-04, 588 N.Y.S.2d 539, 542 (1st Dep't 1992); Kramer v. City of New York, 173 A.D.2d 155, 156, 569 N.Y.S.2d 67, 68-69 (1st Dep't 1991). Even when an arresting officer is faced with competing accounts from different eyewitnesses, an officer is entitled to make an arrest based on believing the testimony of one side or the other, as long as there is eyewitness testimony to support every element of the offense. See id., Collom, 691 F. Supp. at 640, Kramer, 173 A.D.2d 155-56, 569 N.Y.S.2d 67.
Here, Officer Weston was faced with a difficult situation because the two competing groups of eyewitness accounts implicated either the Plaintiff or Karen Wu in criminal conduct. Nevertheless, the statements provided by Karen Wu and the passengers in her car provided sworn testimony implicating the Plaintiff on each the elements of Criminal Mischief in the Fourth Degree. Accordingly, Officer Weston was entitled to rely on this testimony as probable cause to file a criminal information and arrest the Plaintiff. See Kruppenbacher, 744 F. Supp. at 407; Collom, 691 F. Supp. at 640; Kramer, 173 A.D.2d 155-56, 569 N.Y.S.2d 67. Thus, Plaintiff's false arrest claims must be dismissed.
Plaintiff's common law claims of assault are based on allegations of "verbal abuse" and threatening conduct by Officer Weston. Plaintiff alleges that after he was arrested at the Ithaca Police Station, he was directed to move his car from a police department lot to another lot nearby. Plaintiff alleges that Officer Weston followed him outside and while he was getting into his car Officer Weston placed his hand on his gun belt several times and exclaimed "If you try to leave, I will hunt you down." (Compl. at P 27). In order to maintain an action for assault in New York, a plaintiff must prove that the defendant's conduct placed the plaintiff in imminent apprehension of harmful or offensive contact. See Hassan v. Marriott Corp., 663 N.Y.S.2d 558 (1st Dept. 1997); Hayes v. Schultz, 150 A.D.2d 522, 523, 541 N.Y.S.2d 115 (2d Dep't 1989). The Court finds that Plaintiff's allegations, even if true, fail to state a claim for assault because no reasonable juror could find that Officer Weston's comments conveyed an imminent or reasonable threat of harmful contact. See Carroll v. New York Property Insurance Underwriting Association, 88 A.D.2d 527, 450 N.Y.S.2d 21, 22 (1st Dep't 1982) (holding that a threat alone cannot constitute an assault).
D. Intentional Infliction of Emotional Distress
Finally, Plaintiff alleges that his arrest, his three hour detention, and the "verbal abuse" that he suffered at the hands of Officer Weston was extreme, outrageous, and unjustified and therefore constituted intentional infliction of emotional distress.
In order to support a claim for intentional infliction of emotional distress ("IIED"), plaintiff must plead and prove conduct which is so extreme and outrageous that it "transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Shapiro v. County of Nassau, 202 A.D.2d 358, 609 N.Y.S.2d 234, 235 (1st Dep't 1994) (citing Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985)). New York courts routinely grant summary judgment on IIED claims premised on arrests which do not present facts that rise to this rigorous standard. See id., Murphy v. County of Nassau, 203 A.D.2d 339, 341, 609 N.Y.S.2d 940, 941 (2d Dep't 1994); Malanga v. Sears, Roebuck & Co., 109 A.D.2d 1054, 1055, 487 N.Y.S.2d 194, 195 (4th Dep't 1985); Russo v. Village of Port Chester, 198 A.D.2d 408, 603 N.Y.S.2d 582; see also Willner v. Town of Hempstead, 977 F. Supp. 182, 195 (E.D.N.Y. 1997); Collom, 691 F. Supp. at 641. As stated, the Court finds that the Plaintiff's arrest itself was lawful, and thus cannot be the basis of an IIED claim. Furthermore, the smattering of arguably discourteous behavior on the part of the police officers involved, even it true, clearly does not rise to the level of conduct even approaching the atrocity required for an actionable IIED claim. See e.g. Moye v. Gary, 595 F. Supp. 738, 739-40 (S.D.N.Y. 1986); Kovich v. Manhattan Life Ins. Co., 640 F. Supp. 134, 135-36 (S.D.N.Y. 1986); Brink's Inc. v. City of New York, 533 F. Supp. 1123, 1125 (S.D.N.Y. 1982); Navarro v. Fed. Paper Board Co., 185 A.D.2d 590, 591, 593-94, 586 N.Y.S.2d 381, 382, 384 (3rd Dep't 1992); Leibowitz v. Bank of Leumi Trust Co. of New York, 152 A.D.2d 169, 181-82, 548 N.Y.S.2d 513, 521 (2d Dep't 1989). Accordingly, Plaintiff's IIED claim is dismissed.
The Court having considered the arguments of the parties, the entire record, and the applicable law, finds that the Defendants are entitled to summary judgment for the foregoing reasons. Therefore, it is hereby
ORDERED that the Defendants' motion for summary judgment is GRANTED as to Plaintiff's remaining claims and Plaintiff's cross-motion to compel and for sanctions is DENIED as moot. It is further
ORDERED that the Plaintiff's complaint is DISMISSED in its entirety.
IT IS SO ORDERED.
Dated: February 9, 1998
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge