Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Denman, P.J., Lawton, Wesley, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court should have granted in part defendant's motion for summary judgment and dismissed plaintiff's causes of action alleging false imprisonment and, to the extent that it is predicated on false imprisonment, violation of civil rights. The absence of probable cause is a necessary element of those causes of action (see, Coffey v. Town of Wheatland, 135 A.D.2d 1125, 1126). The administrative determination that plaintiff violated the Vehicle and Traffic Law necessarily determined that defendant's arrest and detention of plaintiff were supported by probable cause (see, Ryan v. New York Tel. Co., 62 N.Y.2d 494, 501-504; Coffey v. Town of Wheatland, supra; Feinberg v. Saks Co., 83 A.D.2d 952, 953, mod on other grounds 56 N.Y.2d 206). Plaintiff is collaterally estopped from relitigating that issue. The entire complaint should not be dismissed, however, because plaintiff's unrefuted allegations support a cause of action for violation of civil rights based on defendant's use of excessive force and mental and physical battery of plaintiff (see, Zanghi v. Incorporated Vil. of Old Brookville, 752 F.2d 42, 47).
We modify Supreme Court's order by granting in part defendant's motion for summary judgment and dismissing plaintiff's cause of action for false imprisonment and that portion of plaintiff's cause of action for violation of civil rights predicated on false imprisonment.