Opinion
108553/2002.
Decided June 5, 2009.
Paul H. Schietroma, P.C., One Penn Plaza, Suite 5315, New York, NY, for Plaintiff.
Michael A. Cardozo, Corporation Counsel, New York, NY, for Defendant City of New York.
In this action to recover damages for personal injuries, defendant the City of New York (the "City") moves to dismiss the complaint pursuant to CPLR § 3211, or in the alternative moves for summary judgment in favor of the City pursuant to CPLR § 3212.
On October 9, 2001 Plaintiff Jose Jimenez ("Jimenez"), a Spanish-speaking laborer for a construction and demolition company, was leaving the World Trade Center site ("WTC site") after he worked an overnight shift, when he was stopped at a police checkpoint at Greenwich Street and Chambers Street in New York City. At the checkpoint, Jimenez was stopped by New York City Police Officer Brian Gore ("Gore"), who searched his bag and belongings. Gore found a number of items in Jimenez's possession, including a respirator, personal effects, as well as multiple pairs of pants, work boots and gloves in new condition, with tags still attached (the "new items").
Jimenez brought the respirator and personal effects with him to the WTC site. The new items were given to him by Red Cross volunteers at the WTC site. Gore, upon seeing the new items in Jimenez's bag believed Jimenez to have stolen them. Gore acknowledged that Red Cross volunteers were distributing items to rescue workers, but that as a laborer Jimenez would not be permitted to leave the WTC site with these items.
Jimenez testified at his deposition that Gore never asked him how he came to possess the new items, nor did Gore attempt to communicate to him in Spanish, his primary language. Jimenez explained that other workers who were leaving the WTC site at the same time also had their bags searched and their items examined, but he was the only one detained. At his deposition Gore stated that he would have arrested any other non-rescue worker leaving the site with similar donated items, but admitted that Jimenez was his only arrest.
Jimenez was arrested on October 9, 2001, charged with criminal possession of stolen property in the fifth degree, and detained until his arraignment, approximately ten hours later. On January 7, 2002, after a representative from the Red Cross accompanied Jimenez to court to explain that the Red Cross had given Jimenez these items, the criminal case against Jimenez was dismissed.
Jimenez served a notice of claim on the City on or around January 22, 2002 (the "notice of claim"). Jimenez commenced this action with the filing of a summons and complaint on April 26, 2002. The complaint alleges causes of action for false arrest, malicious prosecution, constitutional torts and loss of services. The City denies all material allegations of the complaint, and asserts two affirmative defenses including assumption of risk and limited liability pursuant to CPLR 1601.
The City now moves pursuant to CPLR 3211 dismissing the complaint, and in the alternative pursuant to CPLR 3212 for summary judgment dismissing the complaint. The City argues that the claims are time barred, that Gore had probable cause to arrest Jimenez, and that Jimenez fails to plead a cause of action for a civil rights violation with requisite specificity. Jimenez argues that the City failed to raise the timeliness of the notice of claim and the probable cause justification in its Answer, thereby waiving these affirmative defenses. Jimenez further argues that the police lacked probable cause, and that he adequately pleaded the cause of action for civil rights violations.
Discussion
In support of its motions to dismiss, the City argues that the cause of action for false arrest is time barred because Jimenez failed timely to file a notice of claim. Pursuant to General Municipal Law ("Gen. Mun. Law") § 50-e(1), in an action against a municipality seeking to recover damages for personal injury or property damages, claimant must serve a notice of claim against the municipality within ninety days after the claim arises. Nunez v. City of New York, 307 AD2d 218, 219 (1st Dep't 2003). "[A] court may grant the claimant leave to file a late notice of claim within one year and 90 days of accrual." Nunez, 307 AD2d at 219 (citing Gen. Mun. Law § 50-e(5); Pierson v. City of New York, 56 NY2d 950 (1982)). A timely notice of claim is required to proceed against a municipality, and cannot be waived. Kroin v. City of New York, 210 AD2d 95, 96 (1st Dep't 1994) (municipality may not waive requirements as to matter or time of service of notice of claim). An "untimely notice of claim, served without leave of court, is a nullity." Wollins v. New York City Board of Education, 8 AD3d 30 (1st Dep't 2004).
Jimenez's false arrest claim accrued on October 9, 2001, the date he was released from custody. Nunez, 307 AD2d at 219; Roche v. Village of Tarrytown, 309 AD2d 842, 843 (2d Dep't 2003). Therefore, the notice of claim must have been filed within 90 days of October 9, 2001, making the January 22, 2002 notice of claim late by about two weeks. As Jimenez has not sought leave to file a late notice of claim, and the time to do so has elapsed, Gen .Mun. Law § 50-e (5); Nunez, 307 AD2d at 219, Jimenez's false arrest cause of action must be dismissed. See, e.g., Tucci v. County of Nassau, 50 AD2d 945, 946 (2d Dep't 1975) (cause of action for false arrest properly dismissed where notice of claim untimely).
Despite Jimenez's argument to the contrary, the City did not waive its late notice of claim defense by failing to raise it as an affirmative defense. A plaintiff's failure to comply with the notice of claim requirements is a condition precedent to suit, and as such is part of the plaintiff's substantive cause of action. The municipality is not required to raise it as an affirmative defense to preserve it. Badgett v. New York City Health and Hospitals Corp., 227 AD2d 127, 128 (1st Dep't 1996) (defendant under no duty to raise plaintiff's failure to properly serve notice of claim as an affirmative defense). Failure to comply with the notice of claim requirements may be raised at any time. Reaves v. City of New York, 177 AD2d 437 (1st Dep't 1991).Accordingly, as Jimenez failed timely to file a notice of claim for his false arrest cause of action, the City's motion to dismiss Jimenez's first cause of action for false arrest is granted.
The notice of claim is timely as to the malicious prosecution claim, which accrued on January 7, 2002, the date the criminal proceeding ended in Jimenez's favor. Ragland v. New York City Housing Authority, 201 AD2d 7, 9 (2d Dep't 1994). A notice of claim is unnecessary for claims premised on 42 U.S.C. § 1983, as "[t]he notice of claim requirements of General Municipal Law § 50-e do not apply to Federal civil rights claims brought pursuant to 42 USC § 1983." Zwecker v. Clinch, 279 AD2d 572, 574 (2d Dep't 2001).
The City also moves for summary judgment dismissing the remainder of the complaint. A party moving for summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman v. City of New York, 49 NY2d 557 (1980).
In his second cause of action Jimenez alleges a claim for malicious prosecution. To prevail on a claim for malicious prosecution, Jimenez must prove four elements: (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) actual malice." Colon v. City of New York, 60 NY2d 78, 82 (1983); Maxwell v. City of New York, 156 AD2d 28, 33 (1st Dep't 1990). Plaintiff must make out all four elements to successfully establish a claim for malicious prosecution. Maskantz v. Hayes, 832 NYS2d 566, 568 (1st Dep't 2007).
Jimenez has sufficiently alleged and supported the first two elements of his malicious prosecution claim. As to the third, the City fails to establish as a matter of law that there was probable cause to arrest Jimenez. In a case, such as this, where there is an arrest without a warrant, the police officer "has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful." Broughton v. State of New York, 37 NY 451, 458 (1975). The defendant then has the burden of proving legal justification — or the existence of probable cause for arrest — as an affirmative defense.
The City's failure to plead probable cause as an affirmative defense does not result in a waiver of the defense. The City's motion papers made clear that it was moving for summary judgment on the basis probable cause, thereby alerting Jimenez to the defense and giving him ample opportunity to respond. See Molina v. City of New York , 28 AD3d 372 (1st Dep't 2006) (where probable cause not pleaded as an affirmative defense summary judgment based on existence of probable cause permissible because plaintiffs were on notice that existence of probable cause would be argued); M.J. Williams Corp. v. Roma Fragrances and Cosmetics, Ltd., 121 AD2d 278, 279 (1st Dep't 1986) (summary judgment may be granted on defense not pleaded as an affirmative defense in the Answer "if there is no surprise or prejudice to the opposing party").
"Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty. A party may act with probable cause even though mistaken, for a mistake of fact . . . may be consistent with probable cause if the party acted reasonably under the circumstances in good faith. Conversely, the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause." Colon v. City of New York, 60 NY2d 78, 82 (1983) (citations omitted).
In support of its motion for summary judgment, the City submits an attorney affirmation annexing supporting documents, including Jimenez's deposition testimony, Gore's deposition testimony and police records. This evidence shows that there is a question of fact as to whether Gore had probable cause to arrest Jimenez upon exiting the WTC site with the new items. Jimenez testified that the Red Cross donated items and supplies to all workers at the WTC site, including laborers like himself. As he was leaving the WTC site, he observed several other workers who were also stopped and their bags and possession examined. However, Jimenez testified that all the others subsequently had their items returned and were allowed to leave the WTC site. Jimenez was the only one whose items were not returned, and who was arrested.
The City also submits copies of newspaper articles. As these constitute improper hearsay, the Court will disregard them. Young v. Fleary, 226 AD2d 454, 455 (2d Dep't 1996) (newspaper articles submitted on summary judgment motion constitute inadmissible hearsay).
Gore testified at his deposition that it was his belief that items donated to workers at the WTC site were only for "rescue workers," a group which he believes to included workers from state agencies, as well as firemen and police from out of state, but which did not include laborers, such as Jimenez. Gore could not remember how he learned of this policy; he could not name the person who told him the policy, or remember a document he read which stated the policy.
Gore further explained that because the donated items were for rescue workers only, he would arrest anyone who was not a rescue worker who attempted to leave the WTC site with the donated items. However, Gore also testified that he did not arrest anyone else for leaving the WTC site with donated items. Gore testified he would have arrested non-rescue worker for leaving with donated items, regardless of how many, but then also stated that his decision to arrest or not would depend on the "total amount of items" in any person's possession.
Jimenez also explained how he was humiliated, cursed at and ridiculed by Gore and other police officers. Jimenez describes more than one occurrence where police officers cursed at him. He also testified that when he was placed in a cell, he began to cry. While he was crying, Jimenez explained, Gore brought over another police officer to look at him and laugh. Gore, however, denies have cursed at or ridiculed Jimenez in any way.
Moreover, when Gore found Jimenez in possession of the new items, he did not investigate how Jimenez came to possess the items, and whether or not he was properly taking them from the WTC site. Jimenez testified that no one asked him how he received the items, and that no police officer asked the Red Cross if they had provided Jimenez with the items. Gore admitted that he was aware that Jimenez was not a native English speaker, and that he spoke "Hispanic," yet failed to find a Spanish speaker to assist him in communicating with Jimenez at the WTC site. "Failure to make inquiry of plaintiff or further inquiry about [him] when a reasonable man would have done so may be evidence of a lack of probable cause." Boose v. City of Rochester, 71 AD2d 59, 68 (4th Dep't 1979); Colon, 60 NY2d at 82.
Finally, Gore's testimony about his decision to arrest Jimenez is at odds with Jimenez's account of what lead up to his arrest. The existence of probable cause can be decided as a matter of law only "where the facts leading up to an arrest and inferences to be drawn therefrom are not in dispute." Parkin v. Cornell University, 78 NY2d 523, 529 (1991). Where, as here, "the plaintiff's deposition testimony gave an account of the occurrences preceding his arrest which was different from the account given by the [City], and was sufficient to raise a triable issue of fact as to whether the [City] acted with probable cause" the City fails to establish prima facie entitlement to judgment as a matter of law. Diederich v. Nyack Hospital , 49 AD3d 491 , 493 (2d Dep't 2008).
As to the fourth element of the claim for malicious prosecution, the City also fails to establish as a matter of law that there is no question of fact as to actual malice. "While lack of probable cause to institute a criminal proceeding and actual proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue. Actual malice is seldom established by direct evidence of an ulterior motive on the part of the prosecutor." Martin v. City of Albany, 42 NY2d 13, 17 (1977); Maxwell v. City of New York, 156 AD2d 28, 34 (1st Dep't 1990). "[A] finding that there was no probable cause for the plaintiff's arrest could support an inference of actual malice." Lundgren v. Margini , 30 AD3d 476 , 477 (2d Dep't 2006). While actual malice can be inferred from a lack of probable cause, this is not a question of law to be decided by the Court on a motion for summary judgment. See Family Media, Inc. v. Printronic Corp. of America, Inc., 140 AD2d 151, 152 (1st Dep't 1988) (issue of malice present a question of fact that cannot be resolved on a motion for summary judgment); Ellman v. McCarty, 70 AD2d 150, 156 (2d Dep't 1979) ("Whether malice is to be inferred from evidence showing lack of probable cause is a question of fact for a jury").
Based upon all of the foregoing, the Court finds that the City has failed to show entitlement to dismissal of the second cause of action for malicious prosecution as a matter of law.
In the third cause of action Jimenez alleges that the police officers involved in Jimenez's arrest and prosecution violated Jimenez's due process rights under the Fourteenth Amendment and 42 U.S.C. § 1983. "A cause of action under 42 U.S.C. § 1983 exists where the evidence demonstrates that an individual has suffered a deprivation of rights as a result of an official policy or custom, and must be pleaded with specific allegations of fact." Leung v. City of New York, 216 AD2d 10, 11 (1st Dep't 1995).
Here, Jimenez fails to plead a cause of action pursuant to § 1983 with the requisite specificity. In alleging this cause of action, Jimenez's complaint merely summarizes the allegations for false arrest and malicious prosecution, and broadly asserts that the City, as a matter of policy and practice, failed to supervise and train its police officers. Jimenez fails to allege the existence of a specific official policy or custom, or how such a custom or policy led to the deprivation of Jimenez's rights. Without factual allegations that the City had a specific policy or custom which caused Gore to violate Jimenez's civil rights, the 42 U.S.C. § 1983 cause of action must be dismissed. Leung, 216 AD2d at 11 (where the complaint "does not plead facts showing that a specific custom or policy instituted by defendants caused civil rights violations . . . [the] cause of action fails for that reason alone"); R.A.C. Group v. Bd. of Ed. of City of New York, 295 AD2d 489, 490 (2d Dep't 2002); Howe v. Village of Trumansburg, 199 AD2d 749, 751 (3d Dep't 1993).
Neither the City nor Jimenez address the remaining fourth cause of action, for loss of services asserted by Amada Franco ("Franco"), Jimenez's wife. As it is the City's burden to make out a prima facie case for dismissal of the loss of services cause of action and the City has failed to address the claim at all, the City's motion for summary judgment dismissing the fourth cause of action is denied.
In accordance with the foregoing, it is
ORDERED that defendant the City of New York's motion to dismiss plaintiff Jose Jimenez's complaint as to the first cause of action for false arrest is granted; and it is further
ORDERED that defendant the City of New York's motion for summary judgment to dismiss plaintiff Jose Jimenez's complaint as to the second cause of action for malicious prosecution is denied;
ORDERED that defendant the City of New York's motion for summary judgment to dismiss plaintiff Jose Jimenez's third cause of action for violation of 42 U.S.C. § 1983 is granted; and it is further
ORDERED that defendant City of New York's motion for summary judgment to dismiss the fourth cause of action for loss of services is denied.
This constitutes the Decision and Order of the Court.