- September 13, 2019
Offices of Wale Mosaku, P.C., Brooklyn, NY, for appellant.
Hubbard & Reed LLP, New York, NY (Kenneth M. Katz, Daniel
H. Weiner, and Justin Ben-Asher of counsel), for respondents.
D. SCHEINKMAN, P.J. LEONARD B. AUSTIN SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for false arrest and
malicious prosecution, the plaintiff appeals from an order of
the Supreme Court, Kings County (Dawn Jimenez-Salta, J.),
dated February 15, 2017. The order granted the
defendants' motion for summary judgment dismissing the
that the order is affirmed, with costs.
plaintiff commenced this action, inter alia, to recover
damages for false arrest, false imprisonment, malicious
prosecution, and related causes of action pursuant to 42 USC
§ 1983, following his arrest for possession of a weapon.
The defendants moved for summary judgment dismissing the
complaint, and the Supreme Court granted the motion. The
cause to believe that a person committed a crime is a
complete defense to causes of action alleging false arrest
and malicious prosecution (see MacDonald v Town of
Greenburgh, 112 A.D.3d 586; Strange v County of
Westchester, 29 A.D.3d 676). The existence or absence of
probable cause becomes a question of law to be decided by the
court only where there is no real dispute as to the facts or
the proper inferences to be drawn surrounding the arrest
(see MacDonald v Town of Greenburgh, 112 A.D.3d at
586-587). Here, the evidence submitted by the defendants in
support of their motion established that the police received
information that a firearm had been brought to a hospital
room, which was under surveillance pursuant to an ongoing
investigation of an alleged gang-related homicide. The
defendant police officers responded to the hospital room and
found a group of individuals, which included the plaintiff,
visiting the occupant of that room. One of the individuals
was holding a bag containing a firearm. The defendant police
officers apprehended the individuals, including the
plaintiff. Such evidence conclusively established that the
police had probable cause to arrest the plaintiff for the
crime of criminal possession of a weapon in the second degree
(Penal Law § 265.03; see People v Price, 14
A.D.3d 718). The defendants thus established their prima
facie entitlement to summary judgment dismissing the causes
of action to recover damages for false arrest, false
imprisonment, and malicious prosecution, and the plaintiff
failed to raise a triable issue of fact in opposition
(see Gisondi v Town of Harrison, 72 N.Y.2d 280, 285;
Liotta v County of Suffolk, 157 A.D.3d 781, 782;
MacDonald v Town of Greenburgh, 112 A.D.3d at 586).
agree with the Supreme Court's determination to award
summary judgment dismissing the cause of action alleging
deprivation of the plaintiff's right to a fair trial,
since, in opposition to the defendants' prima facie
showing, the plaintiff failed to raise a triable issue of
fact as to whether the defendant police officers
intentionally falsified information or fabricated evidence
(see Bennett v Vidal, 267 F.Supp 3d 487, 498 [SD
NY]). Nor did the plaintiff raise a triable issue of fact to
defeat summary judgment dismissing the causes of action
alleging unlawful search and failure to intervene, as the
circumstances presented to the police permitted a lawful
search of the plaintiff (see Terry v Ohio, 392 U.S.
1, 25-26; People v Benjamin, 51 N.Y.2d 267, 271),
and there was no evidence that the reliance of one police
officer upon the information provided by another officer
violated the plaintiff's statutory or constitutional
rights (see Berg v Kelly, 897 F.3d 99, 113 [2d Cir];
Martinez v Simonetti, 202 F.3d 625, 634 [2d Cir]).
plaintiff's remaining contentions are without merit.
we agree with the determination of the Supreme Court to grant
the defendants' motion for summary ...