Opinion
No. 08–30581.
2013-02-25
Lucas X. SANTANA, Plaintiffs, v. COUNTY OF SUFFOLK, Suffolk County Police Department, Police Officer John G. Williams, Police Officer Sean C. Walsh, and John Does # 1–6, names being fictitious and said persons being unknown members of the Suffolk County Police Department, Defendants.
Mark E. Alter, Esq., Mineola, attorney for plaintiff. Dennis Cohen, Esq., Suffolk County Attorney, Hauppauge, attorney for defendants.
Mark E. Alter, Esq., Mineola, attorney for plaintiff. Dennis Cohen, Esq., Suffolk County Attorney, Hauppauge, attorney for defendants.
RALPH T. GAZZILLO, J.
Upon the following papers numbered 1 to 18 read on this motion and cross motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (003) 1–7; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 8–14 (no affidavit of service); Replying Affidavits and supporting papers 15–16; Other 17–18; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (003) by the defendants, County of Suffolk, Suffolk County Police Department, and Police Officers Sean C. Walsh and John G. Williams, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint is granted and the complaint is dismissed.
In this action, the plaintiff, Lucas X. Santana, seeks damages for personal injuries sustained on October 28, 2005 at about 11:50 a .m. The plaintiff alleges that he was lawfully at, or in the vicinity of the premises known as 192 Strong Street in Brentwood, New York, when several police officers, including Officers Sean C. Walsh and John G. Williams, responded to the location. The plaintiff alleges that the defendants negligently, recklessly, and intentionally, without warning or probable cause, forcibly attacked and assaulted him, and used excessive physical force. The plaintiff further alleges that the officers struck him with their police vehicle, causing him to sustain multiple broken bones, lacerations, trauma, and pain. Causes of action are premised upon assault, battery, negligent hiring, negligence, non-negligent contact with a police vehicle, use of excessive force, negligent manipulation of a broken limb, and intentional refusal to render aid and medical attention. The plaintiff also seeks punitive damages. As a result of the foregoing, the plaintiff claims to have sustained, inter alia, a fracture of the right femur requiring internal fixation on October 28, 2005; fracture of the right hip; fracture of the right ankle requiring open reduction internal fixation; displaced segmental fracture of the medial malleolus of the right ankle; fracture of the lateral malleolus of the right ankle; and sequellae relative thereto.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979];Sillman v. Twentieth Century–Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957] ). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. N.Y.U. Medical Center, supra ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980] ). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v. Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981] ).
In support of this motion, the moving defendants have submitted, inter alia, an attorney's affirmation; copies of the summons and complaint, answer, and plaintiff's verified bill of particulars; copies of the unsigned but certified transcript of the examination before trial of Lucas X. Santana dated July 31, 2007 (Zalot v. Zieba, 81 AD3d 935, 917 N.Y.S.2d 285 [2d Dept 2011] ); signed and certified transcripts of the examination before trial of Sean Walsh dated August 19, 2010, and continuation dated April 1, 2011; and the unsigned transcript of John Williams dated November 16, 2010 which is considered as adopted as accurate by the moving defendant (Ashif v. Won Ok Lee, 57 AD3d 700, 868 N.Y.S.2d 906 [2d Dept 2008] ). In opposing this application, the plaintiff has submitted, inter alia, an attorney's affirmation; plaintiff's affidavit; various photographs which are not authenticated; signed and certified copy of the transcript of the examination before trial of George Englehart dated July 12, 2011; an uncertified copy of a the MV 104 Police Report which is not in admissible form; and plaintiff's transcript of his examination before trial.
Sgt. George Englehart testified that he was called by Officer Walsh on October 28, 2005 as standard procedure when an officer is involved in a police vehicle accident. He responded to the scene on Strong Street, Brentwood and saw the subject police vehicle parked on Strong Street with Santana sitting sideways in the back seat with his legs out the door. When he spoke to Officer Walsh at the scene, Walsh advised him of the pursuit of the plaintiff who was fleeing arrest, and that Santana suddenly changed direction and ran into the side of the police vehicle at the front quarter panel, driver's side. When Englehardt attempted to speak to Santana, he did not respond to him, although he was conscious. Englehart did not remember if he spoke to Officer Williams. He did not observe any damage to the police vehicle.
Officer John Williams testified to the effect that he is employed as an officer with the Suffolk County Police Department, and graduated from the police academy in 2002. On October 28, 2005, he was working 7:00 a.m. to 3:00 p.m. and was a passenger in the police car being operated by Sean Walsh. Sometime prior to 11:50 a.m., he and Sean Walsh discussed Lucas Santana. Walsh stated that he was advised by Detective Jensen, that if they saw Ricardo Shepherd, he was good to go for an arrest. Ricardo Shepherd was the name that Lucas Santana used as an alias. Several days prior to October 28, 2005, while on routine patrol, Williams came into contact with Santana at Timberline Park when Santana's vehicle was the only vehicle parked in the parking lot, other than Sargent Rowen's vehicle. Rowen was trying to get information about the Santana vehicle as he believed the vehicle had switched license plates. When he spoke to Santana, Santana told him his name was Ricardo Sheperd. Rowen told Santana to take the car home. No arrest was made.
Williams continued that on October 28, 2005 at about 11:50 a.m., he and Walsh were heading to another call when Officer Walsh saw Santana on Jewel Street, where Santana had parked his car in the residential area. He first saw Santana on the south side of Jewel Street in the street, standing and talking with two males. They stopped about six feet from the three men. Since Williams was in the passenger seat of the police vehicle, the three individuals were to his right. Officer Walsh called Santana over to the patrol car, and Santana came to the passenger side of their vehicle and leaned into the patrol car window. Officer Walsh told him to get into the back of the patrol car and told him “we'll get your car.” Officer Williams testified that he then got out of the patrol vehicle, and told Santana that he was under arrest. Santana said he would wait for the paper work to come through and started walking backward west to the east side of Jewel Street. He again told Santana that he was under arrest, and Santana started running north across the street. He told Santana to stop running, and after a chase, he finally arrested Santana at the west side of 192 Strong Street.
Williams continued that during the chase, Officer Walsh followed Santana with the patrol car, passed Williams on Strong Street, and went down about three or four houses, and caught up to Santana. He heard the patrol car engine revving, and was about ten to fifteen feet in back of Santana. Santana came off the property at 192 Strong Street, a few feet into the road as he was running in a northeasterly direction, and ran into the police vehicle which was traveling straight on Strong Street, about two to three feet off the curb. There was only one contact between Santana and the police vehicle and it happened very fast. The front quarter panel of the driver's side of the police vehicle behind the wheel well by the front tire, and Santana's right leg made contact. Santana moved to the west (left) as a result of the impact, and landed on the grass at 192 Strong Street. Williams testified that it appeared that Santana ran into the side of the patrol car as Santana stepped off the property and was heading northeast on Strong Street. Officer Walsh then moved the police car to the left to the end of the property at 192 Strong Street, by the fence, and came to a quick stop. Williams ran up to Santana and heard moaning. He told Santana that he shouldn't have run. Santana told him he thought his leg was broken. Williams put handcuffs on Santana. Walsh got out of the car and approached them. Walsh then moved the patrol car into the road east of where they were by backing up in the same direction as he pulled it in, just that it was in reverse. Williams was standing next to Santana when Walsh moved the vehicle. There was never a struggle with Santana in making the arrest. Williams stated that Officer Walsh did not kick Santana in the leg. A few minutes after the impact, he and Walsh lifted Santana into the patrol car because Santana complained of leg pain. He noticed blood coming from Santana's ankle. Walsh called their supervisor and an ambulance. About a minute or two after the chase, he saw the two males who had been with Santana approaching from a couple hundred feet away. He told them to turn around but they kept coming, so he told them again to turn around. They stopped walking and turned around. Williams testified that he and Walsh did not draw firearms at any time.
Sean Walsh testified to the effect that he has been a Suffolk County police officer since 2001. He had met Lucas Santana, known as Ricardo Sheperd, two or three days prior to October 28, 2005, when a sergeant was impounding Santana's vehicle in Brentwood at a 7–Eleven because the engine (VIN) numbers in Santana's vehicle were crossed out. Walsh was the driver of a patrol vehicle when Santana came up to him and asked him not to impound his car, just to give him tickets and let him go. This indicated to Walsh that Santana was the owner of the car. The day after the car was impounded, Detective Jensen called him and reported that the engine in Santana's vehicle was stolen and to arrest Lucas Santana (Ricardo Sheperd). He looked around the Timberline Road neighborhood for Santana in his sector car with Officer Williams as he had previously arrested Santana's friend, Leon Tinto, in the area of that address. He believed Tinto's mother owned the house on Timberline Road. He did not find Santana (Sheperd) that day.
Walsh testified that on October 28, 2005, he was on duty in a patrol car, and although he usually worked with Michael Molloy, on the day of the incident, John Williams filled in for the day. Walsh continued that on October 28, 2005, at about 11:45 a.m., after completing several calls, he drove eastbound onto Jewel Street, Brentwood, in response to a backup call for Central Islip. En route to that call, he encountered Santana standing near a car on Jewel Street about ten feet from his sector car, with more than one individual, so he slowed and stopped, just east of Strong Street, and west behind Santana. Santana walked to the passenger side of the patrol car and spoke to Officer Williams who told him that they wanted to give him his car back and to go to the precinct with them, or the car would be impounded. With that, Walsh testified, Santana fled in a westbound direction on Jewel Street. Officer Williams exited the car, on foot, on the south side of Jewel Street, in chase of Santana, and called to Santana to stop, that he was under arrest. Walsh then shut the car door and drove in reverse westbound down Jewel Street. Santana, after running fast about a half to three-quarters of a block on the south side of Jewel Street, made a left onto Strong Street. He could see Santana through his rear-view mirror, to his right side, but Santana then veered across the street northbound close to the intersection with Strong Street, and turned right onto Strong Street, followed by Officer Williams who was in pursuit of Santana on foot.
Walsh continued that when he came to that intersection on Jewel Street, he stopped and turned north onto Strong Street, traveling more to the left side of the street as he accelerated. Santana was a few (three) houses down at 192 Strong Street, on the left (west side) of Strong, running across the grass in the front yard. Officer Williams was running about twenty feet behind Santana. The contact with Santana's leg occurred at 192 Strong Street to the left front of the police vehicle, near the front-left wheel well area, while the patrol car was still parallel on the road and Santana came off the lawn onto Strong Road. After the contact, his vehicle traveled about ten or fifteen to twenty feet onto the front lawn at 192 Strong Street, because, when the impact occurred, he jerked the wheel to the left a quarter to a half turn, jumped a small curb, and skidded northwest across the lawn to the north side of the property where there was a green, four-foot chain-link fence. He lost sight of Santana about a half second after the impact after Santana fell to the left onto the lawn, about five to six feet from the curb. Walsh testified that there was only one impact with Santana and the police vehicle. Officer Williams came running up to the left side of Santana, telling Santana, who was on his stomach, to put his hands behind his back and that he was under arrest. Williams, assisted by Walsh, then handcuffed Santana while Santana was on the ground on his side.
Walsh testified that about one minute later, he moved his patrol car off the front lawn onto Strong Street by backing up from the fence, which the front of his vehicle touched as it stopped, and he stopped a few feet from Officer Williams and Santana. They thereafter lifted Williams under his arms and placed him into the patrol vehicle, leaving him seated in the rear, with his legs outside the vehicle as they noticed that Santana had blood coming down his pants from his leg. They did not render any aid or treatment and called for assistance. He continued that he knew of no witnesses to the incident other than Officer Williams, but he did see a group of males at the intersection of Jewel and Strong afterwards coming toward them. Officer Williams yelled to them not to approach. At no time did either he or Officer Williams have their guns drawn. Walsh continued that after this, he encountered Santana again when he was arrested for criminal sale of a controlled substance.
Lucas Santana avers that on October 28, 2005, he was struck by a Suffolk County Police vehicle on the front lawn at 192 Strong Street, Brentwood. Santana testified that previously he had been convicted of a crime, but did not recall why, or what lead to his arrest, and did not know what crime. He could not recall if he had prior arrests or convictions. At a prior time, he was at Timberline Park, in a parked car when the police approached him. He gave the name of Ricardo Shepard to the officer, which is the name of his friend who lives in North Carolina. He did not have a registration for the vehicle, and was told to bring the car to 191 Timberline Drive where he was living, and to leave it there. After that, his friend Mario used the car, got pulled over, and the car was impounded at a 7–Eleven. He went there and spoke to the police officers who told him the car was being impounded for improper plates, insurance, and verification of the VIN. He could not recall if he used the name Ricardo Shepard on other occasions, but it was the same officer who spoke to him earlier.
About three days later, at the time of his arrest on October 28, 2005, he pulled over while driving, got out of his vehicle, and flagged the police down as he heard the day before from his friend, Leon Tinto, that the police were looking for him, asking for Ricardo Shepard. On October 28, 2005, he did not have a valid driver's license and was driving his friend, Eric Alarcon's car. He left his friend Leon Tinto's home on Timberline and went out driving, looking for the police. His friends, Jessie and Eric, were with him. While he was driving on Jewel Street, he saw the police were behind him. He parked on Jewel Street and got out of his car. The police stopped and turned into the street before Strong. He was standing by the back of the left side of his vehicle, and he asked the police why they were looking for him. One of the officers present had been present when his vehicle was impounded at the 7–Eleven.
Santana testified that they asked him if he wanted his car back, he told them yes, and they told him to come with them to the precinct. He told them that the car wasn't at the precinct, and they said, “So you don't want to come to the precinct to get your car back?” He told them no. The other officer got out of the car and tried to grab him but made no contact, which was when he started running toward the back of the police car on Jewel Street toward Strong, because he was scared. The officer who was a passenger started to chase him on foot. The officer driver reversed the police car to get to the front end of the street where he was running. He saw a fence and a house with a front yard, and ran on the lawn to jump over the fence. As he reached it, he heard a roar from an engine, turned to look over his shoulder, and was struck in the “butt area” and leg on his right side, below his hip and above the knee, by the front driver's side toward the driver's side light and bumper of the police vehicle. When he fell to the ground, the driver's side front tire ran over his right leg and ankle. He stated he screamed in pain and told the officer his leg was broken, and that the officer, whom he could not identify, kicked him in the leg. He testified that he did not feel the officer kick his leg, but his friends told him that the officer did. He was handcuffed and lifted to the police car, “after the officers fixed his leg.” He did not see them “fix his leg” and testified that his friends told him the officers did. He heard an unidentified officer say, “I should beat your face in.” Thereafter, other officers came and an ambulance arrived.
Santana stated that prior to his admission to the hospital, he had not been told that he was arrested for possession of stolen property, forgery, resisting arrest, and an improper VIN. He testified that the stolen property consisted of a motor, transmission, and rims. He believed the stolen motor was the motor that was in his car which had been impounded, but he did not know the motor was stolen. He testified that he traded his old car and $500.00 for the subject car from Jason Anderson in North Carolina, and drove it to New York to stay with Leon Tinto. He was not licensed in either North Carolina or New York, as his licenses were suspended due to lack of insurance, but he kept driving and kept getting tickets. As a result of this arrest, he testified that he entered into a plea bargain agreement and pleaded guilty to possession of stolen property, resisting arrest, and forgery. He was to receive five years probation.
Based upon the foregoing, it is determined that the moving defendants have established prima facie entitlement to summary dismissing the complaint as to all causes of action premised on either negligence or intentional acts in that the evidentiary submissions establish that the defendants neither intentionally nor negligently caused the plaintiff's injury, and that the plaintiff's actions were the sole proximate cause of his injuries. Giving the plaintiff the most favorable inferences to be drawn from the record, it is determined that the plaintiff has failed to raise a triable issue of fact to preclude summary judgment from being granted either on the issue of negligence, intentional acts, or proximate cause of the injuries claimed by the plaintiff.
In Parvi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161 [1977], the court set forth a determination based upon whether the defendant's actions were foreseeable and whether the defendant was placed in a position of danger, and whether due care was exhibited by the defendants with regard to the negligence causes of action. However, that decision involved the issue concerning when “[O]ne who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor' charge or (b) the actor's discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him.” In distinguishing the facts in the instant action from the foregoing action, it is determined that the plaintiff, Santana, was not helpless and was not inadequately able to protect himself, and that aid was not discontinued leaving him in a worse position than he was in when he was told he was being arrested. Instead, once told that he was being arrested, the plaintiff chose to flee from the police officers who were performing their duty.
In Moore v. County of Suffolk, 11 AD3d 591, 783 N.Y.S.2d 72 [2d Dept 2004], the injured party, by his own admission, sustained personal injuries as he fled from the police to avoid arrest for the possession of controlled substances, and was struck by a police car as he crossed in front of it. The court determined that the County defendants made a prima facie showing of entitlement to judgment as a matter of law as the plaintiff's injuries resulted directly from his resisting arrest in violation of N.Y. Penal Law § 205.30, and plaintiff was not entitled to recover for his loss. In the instant action, the plaintiff fled from being arrested in violation of N.Y. Penal Law § 205.30 and sustained personal injuries, thus he is not entitled to recover for his injuries. Here, the evidentiary submissions establish that while the plaintiff was fleeing from arrest by the two police officers, he heard the engine of the police vehicle and turned to look back and made contact with the front driver's side of the police vehicle which was on the roadway. The plaintiff has submitted only conclusory and unsupported assertions that the police vehicle struck him. Although the plaintiff averred that his friends witnessed the incident, the plaintiff has not submitted any witness statements to raise a triable issue of fact concerning whether the police car struck him or he ran into the vehicle.
In Manning v. Brown, 91 N.Y.2d 116, 667 N.Y.S.2d 336 [1997], when the plaintiffs stole a car, went for a joyride, and struck a telephone pole, it was determined that the plaintiffs were not entitled to recovery for personal injuries. The Court of Appeals held that where a plaintiff has engaged in unlawful conduct, the courts will not entertain lawsuits if the plaintiff's conduct constitutes a serious violation of the law, and the injuries for which the plaintiff seeks recovery are the direct result of that violation. In Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201 [1984] the Court of Appeals held that when the plaintiff's injury is a direct result of his knowing and intentional participation in a criminal act, he cannot seek compensation for the loss if the criminal act is judged to be so serious an offense as to warrant denial of recovery. It continued that the doctrine that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to find any claim upon his own iniquity, or to acquire property by his own crime, is alive and well in New York despite the enactment of the comparative fault statute. In the instant action, Santana admitted that he fled from the police on October 28, 2005 to avoid being arrested for those charges involving his possession of a vehicle with a stolen motor, along with the other charges. Thereafter, he plead guilty to resisting arrest, receipt of stolen property, and forgery, and he is precluded from recovery for his injuries.
It is further noted that in Palella, III v. State of New York, 141 A.D.2d 999, 530 N.Y.S.2d 650 [3d Dept 1988], the Appellate Division held that the claimant, a minor passenger on a joy ride with other minors, while being pursued by a State Trooper who lost sight of the car at one point in the chase, and then found the car overturned, could not recover for the claimed injuries. The court noted that it was proper for the State Trooper to initiate pursuit of the stolen vehicle and to maintain pursuit given the erratic manner in which the claimant's vehicle was being operated. Because the claimant failed to raise any factual inference of reckless disregard for the safety of others on the part of the State Trooper, the state was entitled to summary judgment dismissing the complaint. Likewise, in the instant action, the plaintiff has failed to raise any factual inference of reckless disregard for the safety of the plaintiff or departure from proper pursuit procedure. Officer Walsh was in pursuit with his squad car to capture the fleeing plaintiff who tried to avoid arrest and ran into the side of the police vehicle as he turned his head to look when he heard the vehicle approaching. Except for the plaintiff's conclusory statement, unsupported by evidentiary proof from witnesses whom he claims witnessed the incident, the plaintiff has failed to raise a triable issue of fact to preclude summary judgment as to any negligent departures from the standard of care and procedure by the defendants ( see also Esposito v. The County of Suffolk, N.Y. Slip Op 30910U, [Sup.Ct., Suffolk County 2008]. Thus, the causes of action premised on alleged negligent departures by the defendants are dismissed.
Additionally, the plaintiff has not raised a factual issue by affidavit or other evidentiary proof as to the alleged negligent manipulation of a broken limb and intentional refusal to render aid and medical attention. The plaintiff has not set forth what care and treatment, if any, the officers should have given to render medical aid and attention to him, or that he was left worse off for their failure to treat his injuries. The testimony supports that Santana was lifted off the ground by the officers as they were holding him under his arms and lifting him to place him into the police car positioned several feet away. The ambulance promptly arrived and gave aid to the plaintiff. No proof as to the injuries sustained as a result of the alleged failures has been submitted by the plaintiff in opposition to the motion. Nor has plaintiff established any affirmative action taken by the defendants to manipulate his leg other than removing him from the ground to the police car. Santana's claims that the officers manipulated his leg and that they failed to render aid and treatment are contradictory and conclusory and unsupported by evidentiary submissions. Santana has not raised a factual issue to demonstrate that he was worse off due to the alleged failures of the officers to render aid and treatment or because they allegedly manipulated his leg. Thus, the cause of action for damages resulting therefrom is also dismissed.
It is noted in Esposito v. The County of Suffolk, supra, that the plaintiff commenced an action to recover for personal injuries, inter alia, allegedly sustained after he fled the scene of a traffic stop and his motorcycle was thereafter struck by a police patrol car that was pursing him. The plaintiff alleged that after the collision, as he was lying on the ground, he was kicked in the body and head by Suffolk County police officers present at the scene of the arrest. As in the instant action, in addition to other causes of action, the plaintiff alleged causes of action premised upon assault, battery and excessive force. In Esposito, the court found triable issues of fact to preclude summary judgment based upon the parties' testimonies. The court set forth that the right to make an arrest or an investigatory stop necessarily includes the right to use some degree of physical coercion or threat to effect the arrest or stop. It continued the claim that law enforcement officers used excessive force in the course of making an arrest must be analyzed under the Fourth Amendment's “objective reasonableness standard” wherein reasonableness of the officer's use of force to effect the seizure of an individual must be judged from the perspective of a reasonable police officer at the scene of the incident, not with the vision of 20/20 hindsight, and must take into consideration the facts and circumstances in the particular case.
Any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. The standard of reasonableness contemplates and permits a flexible set of escalating police responses, provided only that they remain reasonably related in scope and intensity to the information the officer initially has ( see People v. Finlayson, 76 A.D.2d 670, 431 N.Y.S.2d 839 [2d Dept 1980] ). In the instant action, the events were fast-moving as the plaintiff suddenly fled to avoid being arrested. Officers Walsh and Williams testified as to the pursuit, and it has not been demonstrated that their actions were unreasonably related in scope and intensity to the information the officers had, that is, to arrest him on the aforementioned charges. It is determined that they did not use excessive force, or intentionally cause injury to the plaintiff, or engage in assault and battery, or in any way strike or kick the plaintiff. The officers testified to what measures they employed during the pursuit and thereafter. Civil assault is an intentional placing of another person in apprehension of imminent harmful or offensive contact ( see Higgins v. Hamilton, 18 AD3d 436, 794 N.Y.S.2d 421 [2d Dept 2005]. Physical injury is not required to recover for an assault, as an assault may occur “without the striking of a blow or other physical contact' (Brown v. Yaspan, 256 AD 991, 10 N.Y.S.2d 502 [2d Dept 1939]. Civil battery is an intentional wrongful physical contact with another person without consent (Fugazy v. Corbetta, 34 AD3d 728, 825 N.Y.S.2d 120 [2d Dept 2006] ). While the plaintiff alleges that the defendants attempted to grab him as he was fleeing, it is determined that the officer's action was not unreasonably related to the plaintiff's attempt to flee arrest.
The plaintiff testified that his friends told him he was being kicked while he was on the ground, although he did not remember that he was kicked by the officers, despite being conscious and awake. Conspicuously missing are any affidavits from the plaintiff's friends in support of his claim that he was kicked by the police officers, as they were the sole source of his claim that he was kicked by the officers. The plaintiff has not presented evidentiary proof of assault or battery, and of excessive force in opposition to the motion. Thus, he has not raised a triable factual issue to preclude summary judgment dismissing those causes of action premised upon the alleged intentional conduct of the defendants and use of excessive force. Moreover, his affidavit stating that he was kicked by an officer, and his testimony that he did not know he was kicked, are contradictory and unsubstantiated. No evidentiary proof has been submitted to demonstrate that the officers deviated from procedure or policy in arresting and pursuing Santana, and that they did not act as reasonable police officers would under the facts and circumstances in this action.
Plaintiff's allegations that the officers used excessive force, or engaged in assault and battery are speculative at best and unsupported by the record. No intentional conduct with regard to the plaintiff being struck by the police vehicle has been demonstrated by the plaintiff to preclude summary judgment from being granted to the defendants. The evidentiary proof establishes that the plaintiff's injuries were caused by his own criminal activities in the moments immediately preceding his making contact with the front side of the police vehicle during his flight from the police. There is no evidence that the plaintiff was intentionally injured by the police or that they acted outrageously or recklessly. Thus, those causes of action premised upon intentional conduct, use of excessive force, or outrageous conduct are dismissed.
The plaintiff has not raised a factual issue or a basis to demonstrate how the County was negligent in the hiring, training, and supervision of Officers Walsh and Williams, who went through the required training, and both of whom had several years experience working in the field. There has been no evidentiary proof submitted to raise a factual issue that Officers Walsh and Williams deviated from, or failed to follow standard procedures in effectuating the arrest of the plaintiff who was fleeing to avoid arrest for his criminal activities. Thus, plaintiff's cause of action premised upon Suffolk County and Suffolk County Police Department's alleged negligent in hiring, training, and supervision of these officers is dismissed.
Based upon the foregoing, all the causes of action are dismissed, thus plaintiff's claim for punitive damages must fail as well. A demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action ( Racanova v. Equitable Life Assur. Soc. of U.S. 83 N.Y.2d 603, 612 N.Y.S.2d 339 [1994] ). Demand for punitive damages does not amount to a separate cause of action (Lee Mfg. v. Chemical Bank, 186 A.D.2d 548, 588 N.Y.S.2d 408 [2d Dept 1992] ) and there can be no separate cause of action for punitive damages ( Goldstein v. Winard, 51 AD3d 569, 569 N.Y.S.2d 425 [1st Dept 2008] ). Absent a valid claim for compensatory damages, there can be no claim for punitive damages ( Hubbell v. Trans World Life Ins. Co. of New York, 70 A.D.2d 949, 430 N.Y.S.2d 589, 50 N.Y.2d 899 [2d Dept 1979] ). Here there is no valid claim for compensatory damages as all causes of action have been dismissed, and thus, it is determined that the cause of action for punitive damages, standing alone, must fail based upon the dismissal of all the causes of action asserted in the complaint.
Accordingly, motion (003) is granted and the complaint is dismissed in its entirety.