& Record, LLP, Bayside (Sang J. Sim of counsel), for
Zachary W. Carter, Corporation Counsel, New York (Susan
Paulson of counsel), for respondents.
Mazzarelli, J.P., Saxe, Moskowitz, Kahn, Gesmer, JJ.
Supreme Court, New York County (Frank P. Nervo, J.), entered
on or about July 7, 2015, which, to the extent appealed from,
granted defendants' motion for summary judgment to the
extent of dismissing plaintiff's state and federal claims
for malicious prosecution and his federal claims for assault,
battery, and excessive force; denied defendants' motion
for summary judgment on plaintiff's federal false arrest,
false imprisonment, and illegal search and seizure claims;
and denied plaintiff's cross motion for summary judgment
on his federal claims for assault, battery, false arrest,
false imprisonment, and illegal search and seizure,
unanimously modified, on the law, to deny defendants'
motion as to plaintiff's federal assault and battery
claims, and otherwise affirmed, without costs.
appeal, we address cross motions for summary judgment in a
civil rights action arising out of plaintiff's arrest and
the resulting narcotics possession prosecution, which was
ultimately dismissed. The motion court denied plaintiff's
cross motion for summary judgment in its entirety, denied
defendants' summary judgment motion on plaintiff's
claims for false arrest, false imprisonment, and illegal
search and seizure, and granted defendants' summary
judgment motion on all of plaintiff's other state and
federal claims . We affirm all of the motion
court's order,  except to the extent of reinstating
plaintiff's federal claims for assault and battery.
motion court correctly concluded that an issue of fact
regarding probable cause for plaintiff's search, seizure,
and arrest precluded summary judgment for any party on the
federal claims of false arrest, false imprisonment, and
illegal search and seizure. The indictment is some evidence
that the arresting officer had probable cause to arrest
plaintiff (see Broughton v State of New York, 37
N.Y.2d 451, 458 , cert denied sub nom. Schanbarger
v Kellogg, 423 U.S. 929');">423 U.S. 929 ). However, the evidence
was suppressed, the indictment was dismissed, and the
testimony conflicts as to what the officer observed in the
moments preceding his interaction with and subsequent arrest
of plaintiff. "Given these factual disputes and the
variety of inferences that could be drawn from them, the
issue of probable cause could not be resolved as a matter of
law..." (Parkin v Cornell Univ., 78 N.Y.2d 523,
530 ). Accordingly, all parties' summary judgment
motions on these claims were properly denied.
the issue of fact regarding probable cause should have led to
the denial of not only plaintiff's but also
defendants' summary judgment motion on plaintiff's
federal assault and battery claims. This Court has held that
"[an] issue of fact as to probable cause for [an] arrest
precludes summary dismissal of [an] assault and battery
claim" (Mendez v City of New York, 137 A.D.3d
468, 471 [1st Dept 2016], citing Johnson v Suffolk County
Police Dept., 245 A.D.2d 340, 341 [2d Dept 1997]).
Accordingly, we modify the motion court's order to the
extent of reversing its dismissal of plaintiff's federal
assault and battery claims and reinstating them.
plaintiff's remaining claims, we affirm their dismissal
by the motion court . The motion court properly dismissed
plaintiff's federal excessive force claim because,
although he complained that his handcuffs were too tight,
there is no evidence of injury (see Lynch v City of Mount
Vernon, 567 F.Supp.2d 459, 468 [SD NY 2008]).
Plaintiff's state malicious prosecution claim against the
City and his federal malicious prosecution claim against the
individual defendants were properly dismissed because there
is no evidence of actual malice. The record does not
demonstrate that defendants " commenced the prior
criminal proceeding due to a wrong or improper motive,
something other than a desire to see the ends of justice
served'" (Du Chateau v Metro-North Commuter R.R.
Co., 253 A.D.2d 128, 132 [1st Dept 1999], quoting
Nardelli v Stamberg, 44 N.Y.2d 500, 503 ).
considered plaintiff's remaining arguments and find them
 Before this motion practice, the parties
stipulated to dismissal of several of plaintiff's
original claims against the City of New York. In their
appellate briefs, the parties agree that the only claims that
survived the stipulation were plaintiff's federal
excessive force, assault, battery, malicious prosecution,
false arrest, false imprisonment, and illegal search and
seizure claims against the individual defendants under 42 USC
§ 1983, and, plaintiff's state law malicious
prosecution claim against the City of New York. These claims
were the subject of the parties' cross motions for
 Although only plaintiff appeals from the
motion court's order on that issue, defendants have asked
us to exercise our power to search the record and grant their
motion for summary judgment on plaintiff's false arrest,
false imprisonment, and illegal search and seizure claims
(see Merritt Hill Vineyards v Windy Hgts. Vineyard,
61 N.Y.2d 106, 110-111 ).
 The parties argued the issue of a
purported strip search claim by plaintiff in their briefs.
However, plaintiff only alleged illegal strip search in his
bill of particulars and in his claim for negligent
supervision against the City which he voluntarily dismissed
by stipulation. The motion court never explicitly ruled upon
an illegal strip search claim although it referred to
plaintiff being strip searched at a federal facility when it
granted summary judgment to defendants on plaintiff's
assault and battery claims. We decline to address this
purported illegal strip search claim because it was not
properly pleaded against these defendants by plaintiff.
Alternatively, were we to address it, we would conclude that