New York Supreme and/or Appellate Courts Appellate Division, First Department
February 26, 2013
MICHAEL CHENKIN, PLAINTIFF-APPELLANT, THE
CITY OF NEW YORK, DEFENDANT-RESPONDENT.
Chenkin v City of New York
Decided on February 26, 2013
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.
Tom, J.P., Saxe, Moskowitz, Abdus-Salaam, Gische, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 6, 2011, which granted defendant's motion to dismiss the complaint, and denied plaintiff's motion for leave to amend the complaint, unanimously affirmed, without costs.
The dismissal of plaintiff's state tort claims was proper, either because those claims were not included in the notice of claim, because they were untimely or because the facts alleged failed to state a cause of action. Plaintiff's cause of action under 42 USC § 1983 (see Monell v Department of Social Servs. of the City of New York, 436 US 658, 690 ), based on a claimed policy under which the police automatically arrest the accused in domestic disputes regardless of whether the criminal conduct of which they are accused is "trivial," was also properly dismissed. While a notice of claim is not a prerequisite for such a claim (see Wanczowski v City of New York, 186 AD2d 397 [1st Dept 1992]), the allegations failed to state a viable § 1983 claim. The police are authorized to make arrests upon reasonable cause to believe that the person being arrested has committed a misdemeanor constituting a family offense (see CPL 140.10[c]), and plaintiff's arrest fell within these parameters.
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 26, 2013
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