772 n. 5 (1983); see
also United States v. Cruz, 834 F.2d 47, 51 (2d Cir. 1987). They, in
turn, informed Wilson of their findings. Since on a motion for summary
judgment all inferences must be drawn in favor of the non-moving party, I
must assume that Wilson was also aware of what Brooks witnessed. Since
all three allowed her testimony to be excluded from the grand jury, they
are not entitled to a presumption of probable cause created by the
indictment. As discussed above, without the presumption, there are
genuine issues of fact with respect to probable cause and qualified
immunity that the jury must resolve at trial.
Malicious Abuse of Process
"In New York, a malicious abuse of process claim lies against a defendant
who (1) employs regularly issued legal process to compel performance or
forbearance of some act (2) with intent to do harm without excuse of
justification, and (3) in order to obtain a collateral objective that is
outside the legitimate ends of the process." Cook, 41 F.3d at 80. Malicious
abuse of criminal process also supports liability under § 1983.
Id. Here, plaintiff was arrested, indicted and made to stand trial. See
id. (arrest and arraignment of plaintiff for collateral purpose supported
abuse of process claim). Plaintiff also alleges a collateral purpose for
his prosecution — to prevent embarrassment to the City from media
reports of plaintiff's huge overtime earnings. A reasonable jury could
infer from the timing of defendants' actions that the overtime issue was
the motivating factor in the prosecution. Further, although abuse of
process, unlike malicious prosecution, does not require that probable
cause be lacking, McMullen v. Michigan Home Furnishing Corp., 230 N.Y.S.
508, 509-10 (City Ct. 1928); see also 86 N.Y.Jur.2d, § 134, at 381, a
lack of probable cause creates an inference of malice, supporting the
collateral objective element. As discussed above, plaintiff has raised
genuine issues of fact with respect to probable cause.
Remaining State Claims
Plaintiff also asserts claims for defamation, intentional infliction of
emotional distress, negligence and violations of the New York State
Constitution. Summary judgment is granted as to each of those claims.
Plaintiff alleges that the City and the DOI defamed him by issuing the
June 27, 1996 press release, which announced that he had been arrested
and charged with the theft of the ring. It is undisputed that plaintiff
was arrested and charged, and, therefore, he cannot prove the falsity of
the statement. See Prozeralik v. Capital Cities, 82 N.Y.2d 466, 473 (N Y
1993) ("a plaintiff in a defamation action has the burden of showing the
falsity of the factual assertions").
Plaintiff's claim for intentional infliction of emotional distress is
without merit. Under New York law, "[o]ne who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress." Fischer v.
Maloney, 43 N.Y.2d 553, 557 (N.Y. 1978) (quoting Restatement (Second) of
Torts § 46(1) (1965)). In addition, New York courts have required
that the conduct in question be "especially calculated to cause" harm.
See Green v. Leibowitz, 500 N.Y.S.2d 146, 148 (2d Dep't 1986). If a
defendant's primary purpose was to advance some other interest and the
harm to the plaintiff was incidental, then liability for intentional
infliction of emotional distress does not attach. See Rooney v. Witco
Corp., 722 F. Supp. 1040,
1045 (S.D.N.Y. 1989) (citing O'Rourke v.
Pawling Savings Bank, 444 N.Y.S.2d 471, 472 (2d Dep't 1981)). Plaintiff,
himself, argues that defendants actions were intended to prevent
embarrassment to the city from reports of plaintiff's overtime earnings.
Analyzing the facts in the light most favorable to the plaintiff, no
reasonable jury could find that defendants' conduct was designed only to
cause harm to plaintiff.
Plaintiff's negligence claim also fails as a matter of law. "Under New
York law, a plaintiff may not recover under general negligence principles
for a claim that law enforcement officers failed to exercise the
appropriate degree of care in effecting an arrest or initiating a
prosecution." Bernard, 25 F.3d at 102 (citing Boose v. Rochester,
421 N.Y.S.2d 740, 744 (4th Dept. 1979)).
Plaintiff also alleges violations of Sections 6 and 12 of Article I of
the New York State Constitution. The New York Constitution, however, does
not provide a private right of action for claims that are remediable
under 42 U.S.C. § 1983 or other state laws. Remley v. State,
665 N.Y.S.2d 1005, 1008-1009 (Ct. Cl. 1997); Coakley v. Jaffe,
49 F. Supp.2d 615, 628-29 (S.D.N Y 1999). Since any violations of
Sections 6 and 12 would be actionable under § 1983, the state
constitutional claims must be dismissed.
A municipality can found liable under § 1983 only where the
violation of constitutional rights resulted from a municipal policy or
custom. Monell v. Department of Social Services, 436 U.S. 658, 690-92
(1978). The burden is on the plaintiff to establish the existence of a
policy or custom as the basis for municipal liability. See Vippolis v.
Village of Haversttraw, 768 F.2d 40, 44 (2d Cir. 1985). Plaintiff argues
that he was arrested and prosecuted pursuant to the City's formal policy
to reduce excessive overtime. There is no evidence, however, that the
formal policy included or provided for prosecution of large overtime
earners without probable cause. Accordingly, the essential causal link
between the formal policy and the alleged violation of plaintiff's
constitutional rights is absent. See City of Canton v. Harris,
489 U.S. 378, 385 (1989) ("[O]ur first inquiry in any case alleging
municipal liability under § 1983 is the question whether there is a
direct causal link between a municipal policy or custom and the alleged
However, plaintiff also presents evidence that Wilson, the Commissioner
of DOI, was involved in the investigation and influenced the District
Attorney's office to authorize plaintiff's arrest. Plaintiff argues that
a jury could infer that the DOI, through Wilson, Sturcken and Perez,
pursued the criminal investigation against plaintiff to stop plaintiff
from earning overtime. As Commissioner of the DOI, Wilson has broad
powers "to make any study or investigation which in his opinion may be in
the best interests of the city, including but not limited to
investigations of the affairs, functions, accounts, methods, personnel or
efficiency of any agency." N.Y. Chart. § 803(b). His jurisdiction
extends "to any officer [or] employee of the city." Id. at § 803(d).
With respect to investigations of wrongdoing or corruption by City
employees, it would appear that he is the final policy making authority,
and his actions represent official policy. See, e.g., Jeffes v. Barnes,
208 F.3d 49 (2d Cir. 2000). Whether his conduct caused the alleged
deprivations of plaintiff's right is an issue of fact for the jury. Id.
at 61. However, since the parties have not directly addressed the issue
of whether the Commissioner of the DOI is a final policy-making
authority, I reserve decision pending further briefing.
For the foregoing reasons, defendants' motion for summary judgment is
granted in part and denied in part. Summary judgment is granted to all
defendants on the claims of defamation, negligence, intentional infliction
of emotional distress, and violation of the New York Constitution. Summary
judgment is also granted to defendants Gargan, Dowd, Brooks, Bartholomew
and Baner only with respect to the claims of false arrest.
Decision is reserved with respect to plaintiff's claims against the
City of New York under 42 U.S.C. § 1983, and the parties are directed
to deliver to chambers, no later than November 15, 2001, memoranda on
the issue of whether the Commissioner of the DOI, Howard Wilson, is a
final policy making authority such that his actions may subject the City
to liability under § 1983. The motion is denied with respect to all