Preview:

[*1]


Decided on March 17, 2010
Supreme Court, Queens County

261592006

Plaintiff's attorney:
Albert A. Gaudelli, Esq.
16 Tennis Place
Forest Hills, New York 11375
Defendant's attorney:
Michael A. Cardozo

Corporation Counsel
89-17 Sutphin Boulevard
Jamaica, New York 11435
By: Stephen S. Kim, Esq., Assistant Corporation Counsel
Phyllis Orlikoff Flug, J.
This is an action to recover money damages for personal injuries allegedly sustained by the plaintiff on November 18, 2005, when he was arrested for the crimes of Public Lewdness and Exposure of a Person. The plaintiff testified at a 50-h hearing that he was employed as a teacher for the Board of Education at Cardozo High School in Queens, New York. On November 18, 2005, the plaintiff was arrested at his residence. It was alleged when he was arrested that on October 20, 2005 at 4:00 P.M., the plaintiff, while driving a "black BMW" had exposed himself to two Cardozo High School students while they were riding a public bus. The complainants did not report the incident at the time of its occurrence. It was not until the complainants noticed the [*2]plaintiff at school one month later that they then reported it to a Dean at Cardozo High School. The school then contacted the police about the incident. The police came to the plaintiff's house at approximately 4:00 P.M. and the plaintiff was taken to the police station. The plaintiff told the police that he did not own a black BMW and showed them his car registration. Additionally, the records in the police file indicate that the plaintiff does not own rent or have access to a black BMW. Furthermore, the plaintiff lived within walking distance of the school and did not take a car to school. The plaintiff was placed in the lineup and informed by police that at least one of the complainants had identified him. The plaintiff testified that he was arrested at 11:00 P.M. that night. The plaintiff was released from custody at 6:00 P.M. on November 19, 2009. In January, another man was arrested for performing similar acts against students at Cardozo High School while driving a BMW. It also came to light that the complainants were uncertain about the time of the incident and eventually alleged that the incident occurred between 1:30 P.M. and 1:50 P.M. The charges against the plaintiff were dismissed five months later. The plaintiff has now brought causes of action for False Arrest and Malicious Prosecution.
The defendant Detective Wallace testified at an examination before trial. He testified that he was assigned this investigation on November 16, 2005. Detective Wallace began his investigation by interviewing the two complainants who were students at Cardozo High School. They informed Detective Wallace that they recognized the plaintiff as a teacher at their school who they believed had exposed himself to them on October 20, 2005. They said that at the time of the incident, they were riding in the back of a bus when a black BMW pulled up next to them and the driver exposed himself to them. They described the perpetrator as a white male with a goatee. According to Detective Wallace, the reason the two complainants did not come forward at the time of the incident was because they did not think the incident was a big deal. Detective Wallace testified that after interviewing the complainants, he contacted the school's principal on November 18, 2005. The principal told him that the plaintiff had left the school and gone home. Detective Wallace testified that prior to the arrest of the plaintiff, he did not investigate the plaintiff's whereabouts at the time of the alleged incident or whether the complainants had ever made similar allegations in the past. Detective Wallace then went to the plaintiff's residence and spoke with the plaintiff and the plaintiff volunteered to come back to the precinct. At the precinct, Detective Wallace conducted a lineup. Each of the complainants viewed the lineup separately and both identified the plaintiff as the perpetrator. Detective Wallace testified that after the lineup, the plaintiff was arrested.
On a motion for summary judgment, the movant must offer sufficient evidence to establish its prima facie entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). A showing of probable cause constitutes a complete defense to a cause of action for false arrest (Fausto v City of New York, 17 AD3d 520 [2005]). Since the plaintiff was arrested without a warrant, the defendants have the burden to prove the arrest was done with probable cause lies with the defendant (see Smith v County of Nassau, 34 NY2d 18 [1974]). The existence or absence of probable cause becomes a question of law which can be decided by the court only where there is not a real dispute as to the facts or the proper inferences that may be drawn from those facts (Fausto, 17 AD3d at 521). While a witness's identification [*3]of a suspect will often be sufficient to establish probable cause, the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause (Forunato v City of New York, 63 AD3d 880 [2009]; Carlton v Nassau County Police Dept., 306 AD2d 365 [2003]). Here, the identification of the plaintiff by the complainants was not reliable. The lineup was not performed until the complainants concluded that the plaintiff, someone who they recognized and had since seen on multiple occasions, was the perpetrator. Additionally, the alleged act occurred while the complainants were in a moving bus and the alleged perpetrator was in a moving vehicle, and the lineup was performed a month after the alleged incident. Therefore, the reliability and accuracy of the lineup is questionable. Inasmuch as there exists issues of fact as to whether there was probable cause to arrest the plaintiff, the branch of the summary judgment motion to dismiss the cause of action for false arrest is denied.
The four elements required to establish a cause of action for malicious prosecution are (1) the commencement or continuation of a criminal proceeding; (2) the termination of the proceeding in favor of the accused; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice (Broughton v State of New York, 37 NY2d 451 [1975]). Malice for the purpose of a malicious prosecution claim can be shown by proof that probable cause was lacking or the conduct was recklessly or grossly negligent (Fortunato, 63 AD3d at 881; Haynes v City of New York, 29 AD3d 521 [2006]). Here, there are issues of fact as to whether there was probable cause to arrest the plaintiff and whether malice can be inferred from the actions and conduct of the defendant Detective Wallace. Therefore, the branch of the motion for summary judgment to dismiss the malicious prosecution claim is denied.
The defendants' argument that claims against Detective Wallace must be dismissed because he was not identified in the Notice of Claim is without merit. Inasmuch as the Notice of Claim detailed the dates, times, precinct and rank of the individuals involved, sufficient notice was given.
Accordingly, the summary judgment motion is denied.
Dated: March 17, 2010

J.S.C.

Download 2010_50463.pdf

New York Law