The opinion of the court was delivered by: Saxe, J.
Medina v City of New York
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 25, 2012
Luis A. Gonzalez,P.J. David B. Saxe John W. Sweeny, Jr. Rolando T. Acosta Dianne T. Renwick, JJ.
Defendants appeal from the order of the Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 14, 2011, which, denied their motion for summary judgment dismissing the complaint. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt and Pamela Seider Dolgow of counsel), for appellants. Law Office of Jay H. Tanenbaum, New York (Laurence S. Warshaw of counsel), for respondents. SAXE, J.
Plaintiff Stephan Villanueva Medina commenced this action against the City of New York, the New York City Police Department, and arresting officer Sgt. Matthew Reilly, claiming false arrest, false imprisonment, and related causes of action, following his acquittal on charges of sexual abuse in the second degree and endangering the welfare of a child. Plaintiff was arrested based on his 11-year-old niece's assertions to the police that on the night of September 21, 2002, while she was sleeping next to her cousin, plaintiff's daughter, in plaintiff's home, she awoke to find plaintiff lifting up her shirt and touching her breast.
The 11-year-old complainant was taken to the 45th precinct of the NYPD by her mother, plaintiff's sister-in-law, on September 22, 2002, and gave an officer on duty her description of what had happened. Because plaintiff was employed by the Police Department as an auto mechanic, the Internal Affairs Bureau was called into the investigation. Lieutenant Thomas Maldon, Sergeant Matthew Reilly and Sergeant Carmen Martinez, all from IAB, reported to the precinct and took over the questioning of the complainant. Based on the information they obtained from her, with the authorization of IAB executive officer Raymond King, they arrested plaintiff at his home that night. He was suspended from his job without pay, and his name was placed on a watch list.
Plaintiff was acquitted of the criminal charges after a non-jury trial. The judge explained that while he could see no reason that the child, who seemed to be normal and well adjusted, would make up this story, he could see no reason for a married uncle with two children of his own to want to touch the breast of an 11-year old who was his god-daughter and who had slept over hundreds of times before. He concluded that the charges were not proved beyond a reasonable doubt.
Plaintiff then commenced this action, alleging false arrest, false imprisonment, and malicious prosecution, as well as negligence, violation of his civil rights, and defamation.
Defendants' motion for summary judgment was based on the contention that the undisputed submitted evidence established as a matter of law that the police had probable cause to arrest plaintiff, and that therefore his false arrest, false imprisonment, malicious prosecution, and related claims must be dismissed. In opposition, plaintiff offered an expert's assertion that the manner in which the police handled the investigation was improper, and argued that therefore an issue of fact was presented as to whether probable cause was established. The motion court denied summary judgment, finding an issue of fact as to whether the police had probable cause for plaintiff's arrest.
Where, as here, an arrest is made without a warrant, "a presumption arises that it was unlawful, and [defendants have] the burden of proving that ... the arrest was based on probable cause" (Williams v Moore, 197 AD2d 511, 513-514 [2d Dept 1993]). To establish as a matter of law that the police in the present matter had probable cause, the People rely on the general rule that "an eyewitness-victim of a crime can provide probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated [citation omitted]. In fact, an accusation against a specific individual from an identified citizen is presumed reliable" (People v Nichols, 156 AD2d 129, 130 [1st Dept 1989] [internal quotation marks omitted], lv denied 76 NY2d 740 ; see also Shapiro v County of Nassau, 202 AD2d 358 [1st Dept 1994], lv denied 83 NY2d 760 ; Kramer v City of New York, 173 AD2d 155 [1st Dept 1991], lv denied 78 NY2d 857 ).
However, the fact that an identified citizen accused an individual who was known to her of a specific crime, while generally sufficient to establish probable cause, does not necessarily establish it. The rule is actually somewhat less absolute: "Probable cause is established absent materially impeaching circumstances, where, as here, the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator" (People v Gonzalez, 138 AD2d 622, 623 [2d Dept 1988] [emphasis added], lv denied 71 NY2d ...