Frank F. Villano, Plaintiff,
The Incorporated Village of Old Brookville, Defendant.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff Counsel: Steinberg, Fineo, Berger.
Def. Counsel: Milber, Makris, Plousadis.
Antonio I. Brandveen, J.
The defendant moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiff's verified complaint as there exists no triable issue of material fact with respect to the defendant's liability for the plaintiff's alleged injuries. The plaintiff cross moves for an order pursuant to CPLR 3025 (b) granting the plaintiff leave to amend the verified complaint to plead with further clarification the relationship between the defendant and the Old Brookville Police Department, and an order pursuant to CPLR 3212 granting summary judgment on the plaintiff's cause of action for false arrest and false imprisonment. Both parties oppose the other party's motion. The plaintiff seeks damages in the underlying action for personal and emotional injuries sustained on August 2, 2005, incident to the plaintiff's alleged false arrest and false imprisonment by the Old Brookville Police Department.
On August 2, 2005, the plaintiff resided with his wife at their home in Old Brockville. The couple were in the midst of a divorce, and the wife filed a petition in the Nassau County Family Court, under docket number 8265/05, dated July 29, 2005. The wife sought an order of protection against the plaintiff husband in that Family Court proceeding, and the Court issued an order of protection dated November 23, 2005, to wit ordering the plaintiff, date of birth January 1, 1942, to observe the following conditions of behavior: refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against the petitioner, date of birth December 5, 1961, wherever the petitioner may be; observe such other conditions as are necessary to further the purposes of protection: the respondent husband to stay away from the petitioner's bedroom. The Family Court directed the order of protection against the respondent husband remain in effect up to and including May 22, 2006. On August 2, 2005, at approximately 12:20 p.m.,
The attorney for the defendant states, in a supporting affidavit dated June 1, 2007, the defendant is entitled to summary judgment because none of the allegations contained in the plaintiff's verified complaint are directed at the defendant, The Incorporated Village of Old Brookville. The attorney for the defendant states, assuming arguendo, the Court construes the complaint to set forth a cause of action against the defendant, summary judgment is still warranted because the plaintiff's arrest was a civilian arrest effected by the plaintiff's wife pursuant to CPL 140.30 (1) (b), hence there is no conduct that can be attributed to the defendant or the Old Brookville Police Department for which they could be liable. The attorney for the defendant maintains, even if the arrest is deemed to have been effectuated by the Old Brookville Police Department, the arrest was made pursuant to probable cause which renders the plaintiff's claims for false arrest and false imprisonment insupportable, as a matter of law. The attorney for the defendant asserts, to the extent the plaintiff was arrested by the Old Brookville Police Department, CPL 140.30 (1) (b) affords the arresting officers complete immunity from suit. The attorney for the defendant avers the plaintiff's cause of action for intentional infliction of emotional distress must be dismissed because public policy bars such a claim against a governmental entity like the defendant.
The attorney for the plaintiff states, in an affirmation dated August 22, 2007, in support of the cross motion and in opposition to the defense motion, the Old Brookville Police Department improperly arrested the plaintiff without a warrant in violation of CPL 140.10 (1) (b) for the crime of allegedly violating a protective order that the Old Brookville Police Department knew or should have known was never served upon the plaintiff. The attorney for the plaintiff states, after the plaintiff's arrest and sometime during the plaintiff's wrongful confinement, the Old Brookville Police Department charged the plaintiff with the violation offense of harassment in the second degree, even though the Old Brookville Police Department knew the plaintiff had not committed the alleged violation in their presence as required by CPL 140.10 (1) (a). The attorney for the plaintiff asserts the plaintiff's arrest and confinement by the Old Brookville Police Department was in complete contravention of CPL 140.10 (1) (a) and (b), and the plaintiff's admitted assistance of the Old Brookville Police Department of the purported civilian arrest by the plaintiff's wife was improper under CPL 140.10 (1) (b).
The attorney for the defendant states, in a reply affidavit dated August 29, 2007, this affidavit is submitted in response to the plaintiff's opposition papers, further support of the defense motion for summary judgment pursuant to CPLR 3212, and in opposition to the plaintiff's cross motion for summary judgment which also seeks leave to file an amended complaint. The attorney for the defendant contends the plaintiff's assertion his arrest was unlawful regardless of who arrested him is a misapprehension of the relevance of the CPL sections completely ignoring the existence of probable cause which defeats any claims for false arrest and false imprisonment as a matter of law. The attorney for the defendant argues against the plaintiff's alternative contention that notwithstanding the existence of probable cause the defense motion should be denied because questions of fact allegedly exist with respect to an alleged coverup by the Old Brookville Police Department surrounding the arrest charges. The attorney for the defendant points out the plaintiff did not submit any evidence in support of self serving allegations against the Old Brookville Police Department. The attorney for the defendant maintains, even if the Court accepts as true the plaintiff's speculative accusations against the Old Brookville Police Department, summary judgment should still be granted in favor of the defendant because, as a matter of law, the legality of the arrest does not hinge upon whether probable cause existed for the specific offense invoked by the arresting police officer at the time of the arrest, but upon whether the facts known by the arresting officer objectively provided probable cause to make an arrest. The attorney for the defendant avers, even if the plaintiff originally was arrested for an offense other than Harassment in the Second Degree, and even if the charge was later changed, probable cause existed for an arrest such that the plaintiff's causes of action for false arrest and false imprisonment should be dismissed, as a matter of law. The attorney for the defendant argues the plaintiff has failed to raise a genuine issue of material fact necessary to overcome the defendant's prima facie showing of entitlement to summary judgment.
CPL 140.30 authorizes an arrest by a private person:" (1)(a) For a felony when the . [arrested person] has in fact committed such felony and (b) for any offense when . [the arrested person] has in fact committed such offense in his presence." Under CPL 1.20 and Penal Law 10.00(1) an offense "means conduct for which a sentence to a term of imprisonment or to a fine is provided" by statute, local law, ordinance, order, rule or regulation. A private detective has only the right of a private person with respect to arrest, Dohery v Lester, 4 Misc.2d 741, 159 N.Y.S.2d 219. A private citizen who makes an arrest does so at his/her peril and if the person arrested did not commit the crime, the private citizen who makes the arrest is liable despite probable cause, see White v Albany Medical Center Hospital, 151 A.D.2d 859, 542 N.Y.S.2d 834; Marks v Baltimore O. R. Co., 284 A.D. 251, 131 N.Y.S.2d 325; Jones v Freeman's Dairy, Inc., 283 A.D. 667, 127 N.Y.S.2d 200; De Silva v New York C. R. Co., 182 A.D. 497, 169 NYS 924; Sanders v Rolnick, 188 Misc. 627, 67 N.Y.S.2d 652, aff'd, 272 A.D. 803, 71 N.Y.S.2d 896, and neither good faith nor vindictiveness is relevant except on the issue of punitive damages, Gill v Montgomery Ward Co., 284 A.D. 36, 129 N.Y.S.2d 288; Sanders v Rolnick, supra . CPL 140.40(1) requires that the person arrested must, without unnecessary delay, be taken before a magistrate or delivered to a peace officer, and failure to do so will result in liability under the doctrine of trespass ab initio discussed below, Farina v Saratoga Harness Racing Assoc., 20 A.D.2d 750, 246 N.Y.S.2d 960; Seguin v Myers, 279 A.D. 690, 108 N.Y.S.2d 28; see Bass v State, 196 Misc. 177, 92 N.Y.S.2d 42.
Family Court Act 812 provides:
The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive ...