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Hinds v. City of New York

Sup Ct, New York County

August 8, 2013

RUSSELL HINDS, Plaintiff,
v.
THE CITY OF NEW YORK, and THE NEW YORK CITY POLICE DEPARTMENT, Defendants. Index No. 400284/2011

Unpublished Opinion

DECISION/ORDER

HON. KATHRYN E. FREED, JUDGE

RECITATION, AS REQUIRED BY CPLR§2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.

PAPERS

NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED ...................

......1-2 ..........

ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED...............

.....

ANSWERING AFFIDAVITS. ................................................................

........4 ... ........

REPLYING AFFIDAVITS.....................................................

...........

EXHIBITS .................................................................................

.............

OTHER .............. (A mended Cross-Motion) ............................................

......3 ...........

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:

Plaintiff moves for an Order pursuant to CPLR§ 3212, granting summary judgment upon the grounds that there are no triable issues of fact regarding the liability of defendant The City of New York and The New York City Police Department, ("collectively known as "the City"). The City cross-moves for an Order pursuant to CPLR§ 3211, dismissing the Complaint and/or pursuant to CPLR§ 3212 for summary judgment.

After a review of the papers presented, all relevant statutes and case law, the Court denies both the motion and cross-motion.

Factual and procedural background:

According to plaintiff, on May 6, 2009, at or near John Street and Broadway in New York County, he was standing in line at a news stand, awaiting his turn to purchase a lottery ticket when two males approached him from behind and asked him what he had in his pocket. Plaintiff did not respond. When he was asked the same question a second time, he responded that he had nothing in his pocket. Plaintiff then realized that these males were in fact police officers, despite the fact that they had failed to display their respective badges. When plaintiff asked to see a supervisor, the males handcuffed him and proceeded to pat him down, including reaching into his pockets. As a crowd began to form, the officers took plaintiff across the street to continue searching him. Upon searching his pockets, they found and removed a wallet and a pen.

While still handcuffed, the police officers flicked plaintiff in the face with money removed from his wallet, asking him if said money was his. They spoke to him in an "aggressive tone" and were being "physically rough" with him. Some minutes later, a squad car arrived and transported plaintiff to the precinct wherein the arresting officers proceeded to search his backpack. They discovered plaintiffs work knife, a pair of goggles and a pair of ear plugs inside. Plaintiff alleges that at the time of his arrest, he was employed by KSW Services as a steam fitter, and his duties in that capacity included installing heating systems and heating pipes. He used the knife as a tool to perform said duties. Once plaintiffs knife was recovered, he was placed in a holding cell for approximately four to five hours before being transported to Central Booking. Plaintiff was charged with one count of Criminal Possession of a Weapon, and one count of Resisting Arrest. He was arraigned and released at 2:45 p.m., the following day. On December 10, 2009, said charges were ultimately dismissed when plaintiff was offered and accepted an Adjournment in Contemplation of Dismissal ("ACD"). It is important to note that in his Verified Complaint, plaintiff alleges that the charges were dismissed on June 9, 2010, which was when the ACD was dismissed and the matter, presumably, sealed.

According to the City, after the arresting officers, P.O. Emmanuel De Jesus and P.O. David Poggiolo, approached plaintiff to inquire about what appeared to be a gravity knife clip hanging from the outside of the small pocket of his carpenter's pants. When they asked him what was in his pocket two times, plaintiff responded both times, "It don't matter what I have in my pocket. You're not getting to it." P.O. De Jesus testified that when he attempted to frisk the side of plaintiff s pants wherein the gravity knife clip appeared to be, plaintiff shoved his hand away, and began calling out to a developing crowd, to help him. Thereafter, plaintiff served an untimely notice of claim on or about February 19, 2010, alleging actions for false arrest, false imprisonment, and violation of due process and constitutional rights emanating from his May 6, 2009 arrest. Plaintiff appeared for a General Municipal Law §50-h hearing on April 13, 2010. He then commenced the instant action on or about October 13, 2010 via service of a Summons and Complaint.

Positions of the parties:

Plaintiff argues that he was arrested without a warrant, and because the "frisk" merely turned up a wallet and pen, no probable cause existed to place him under arrest. He argues that when an arrest is made without a warrant, a presumption arises that it was unlawful, and the burden of proving justification is assumed by defendant. Additionally, plaintiff argues that he has sufficiently established all the elements to establish and sustain a claim for false imprisonment in his complaint. Therefore, summary judgment is warranted because there are no issues of material fact.

The City responds that plaintiffs claims of false arrest and false imprisonment necessitate dismissal because his notice of claim was untimely, in that it was not filed within the statutorily mandated 90 days pursuant to GML§ 50-e (1)(a). The City argues that plaintiff also failed to attempt to serve a late notice of claim. It also argues that a cause of action for false arrest and/or false imprisonment accrues when a claimant is released from custody. Thus, since plaintiff was released on May 7, 2009, he was required to file a notice of claim by August 5, 2009, which he failed to ...


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