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Philippe Naim, Suzane Suissa-Naim, H.G.N., A Minor, By Her Parents and v. the City of New York; Police Department of the

July 17, 2012

PHILIPPE NAIM, SUZANE SUISSA-NAIM, H.G.N., A MINOR, BY HER PARENTS AND NATURAL GUARDIANS PHILIPPE NAIM AND SUZANE SUISSA-NAIM,
PLAINTIFFS,
v.
THE CITY OF NEW YORK; POLICE DEPARTMENT OF THE CITY OF NEW YORK; POLICE OFFICER HOWARD SLADE; SERGEANT JOSEPH DURANTE; POLICE OFFICER SHELDON RICHMOND; POLICE OFFICER RAYMOND HIGGENS; JOHN DOES 1-6, BEING TWO UNKNOWN OFFICERS OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK WHO ARRESTED PHILIPPE NAIM ON DECEMBER 18, 2009, DEFENDANT.



The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

On December 18, 2009, police officers, responding to a 911 call, entered plaintiffs' home and arrested plaintiff Philippe Naim ("Naim"). Pursuant to 28 U.S.C. § 1983, plaintiffs bring claims for false arrest, malicious prosecution, wrongful entry, and excessive force against the City of New York and four individual polices officers.*fn1

Currently before the Court is defendants' motion for summary judgment dismissing plaintiffs' claims in their entirety. For the reasons stated below, that motion is denied.

I.

The following facts are drawn from the parties' summary judgment submissions and are uncontested except where noted. On December 18, 2009, at approximately 10:20 p.m., Naim and his wife, plaintiff Suzane Suissa-Naim ("SuissaNaim"), were in their home in Brooklyn with their two daughters when an unidentified man began banging on the front door, threatening them and demanding to be let in. He was on the landing at the top of their front stoop, which consists of four concrete steps. One daughter, plaintiff H.G.N., called 911 to report that someone was attempting to break into the house.

The defendant police officers responded to the dispatcher's radio call of a burglary in progress. Shortly after the officers arrived, while they were on the sidewalk in front of the house attempting to communicate with the man on the stoop, Naim opened the front door and found himself "face to face" with the stranger. Naim Deposition, Ex. F to Declaration of Barry Myrvold, p. 80.2-6 ("Naim Dep."). According to Naim's account -- which differs from that of the officers -- the man took "one step" towards Naim, placing his foot "on the entryway," and Naim responded by pushing him backwards with one hand. Naim Dep. at 73-74. The man fell backwards over the banister and landed headfirst on the concrete sidewalk. He was knocked unconscious, sustained injuries to his neck and hand and required stitches on his thumb.

Instantly, at least two of the officers ran up the steps and pushed Naim into the house and onto the floor. During that process, Naim's head hit the floor; he alleges that one of the officers purposefully banged his head into the floor. Two of the officers held his legs while he was being handcuffed, another held his arms. Naim had a previous elbow injury and, as a result, he asked the police not to put the handcuffs on too tightly because his range of motion was limited. They told him to be quiet. Later, when Naim was in the police car, he complained that he was in pain, but the officers kept him handcuffed for 15 to 20 minutes following his arrest.

Naim was released at approximately 7:00 p.m. the following day. He was charged in a criminal complaint with assault in the third degree, reckless endangerment in the second degree, menacing in the third degree, and resisting arrest. On February 18, 2010, the charges were dismissed on the prosecution's motion because "the complaining witness [was] uncooperative." Feb. 18, 2010, Trans., Ex. R to Declaration of Barry Myrvold,

p. 3. Naim commenced this action on March 2, 2010.

II.

The Court will grant summary judgment where it "determines that there is no genuine issue of material fact to be tried." Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court must "resolve all ambiguities and credit all factual inferences that could be drawn" in the non-movant's favor. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir 2010).

A. False Arrest

Naim's first claim is for false arrest.*fn2 A § 1983 claim for false arrest grounded in the Fourth Amendment "is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). The plaintiff "must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Id. (citing Broughton v. State of New York, 335 N.E.2d 310, 314 (1975)). The parties dispute whether Naim's arrest was justified by probable cause, which provides "an absolute defense to a false arrest claim." Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006).

"[P]robable cause to arrest exists when the officers have 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." Weyant, 101 F.3d at 852. The presence of an exculpatory defense, such as justification, may "negate probable cause" if the arresting officers are aware of the facts underlying the defense. Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003). Defendants, as police officers, are entitled to qualified immunity if there was even "arguable probable cause," i.e. "if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable ...


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