Upon the foregoing papers, the motion for partial summary judgment is granted to the extent indicated.

This is an action to recover damages for false arrest and false imprisonment, as well as alleged violations of plaintiff's civil rights pursuant to 42 USC §1983. To the extent relevant, plaintiff alleges that he was falsely arrested and assaulted by members of the New York City Police Department (hereinafter "NYPD") on May 11, 2000 at approximately 3:00 a.m. following a bar room fight during which plaintiff is alleged to have stabbed an off-duty police officer.

Following his arrest, plaintiff was indicted on May 19, 2000 for the attempted murder of the off-duty officer, in addition to twelve other charges including Assault in the First Degree and Operating a Motor Vehicle While Under the Influence of Alcohol (see City's Exhibit "E" , Indictment Number 159/2000; see also Transcript of Plaintiff's General Municipal Law §50-h Hearing, p 52). After a jury trial, plaintiff was convicted of the crime of Operating a Motor Vehicle While Under the Influence of Alcohol and sentenced to a three-year period of probation (see City's Exhibit "G" Certificate of Disposition). However, he was acquitted of all the remaining charges.

On or about August 9, 2000, plaintiff filed a notice of claim against the City and the NYPD alleging, inter alia, negligence, assault, false arrest, false imprisonment, negligent hiring and negligent training (see City's Exhibit "A"). Plaintiff then commenced this action by the filing of a [*2]summons and complaint naming the City and individual police officers, Bray and Vega, as defendants. In his Verified Complaint, plaintiff asserts five causes of action: (1) negligent assault and battery; (2) intentional assault and battery; (3) excessive use of force and false imprisonment under 42 USC §1983; (4) negligent supervision; and (5) negligent training (see City's Exhibit "C"). The "Second" cause of action is asserted against the individual defendants only, while the others are asserted against each of the defendants (id.).

At his General Municipal Law §50-h Hearing, plaintiff testified that on May 11, 2000, he and a friend, Michael Dolorosa, had just left the scene of a bar fight at a nightclub known as "Eclipse" on Staten Island (see Transcript of Plaintiff's General Municipal Law §50-h Hearing, p 9). When asked about the extent of his involvement, plaintiff would only admit that he had "swung back" at a bouncer (id. at 16-17). After they left the nightclub, plaintiff drove himself to his home in Dolorosa's vehicle, after which the latter assumed control of the vehicle (id. at 20-22). Immediately thereafter, plaintiff received a telephone call from the friend indicating that he had been involved in a car accident (id. at 22). Plaintiff walked over to meet Michael at or near the scene of the occurrence (id. at 24-26), at which point both men were approached by a police car. While Michael apparently ran off, plaintiff was told to get down on his knees (id. at 25-26). Plaintiff maintains that after being handcuffed, a police officer "hit [him] with a flashlight across [his] face" and, in effect, accused him of "lik[ing] to stab cops" (id. at 28). Plaintiff further claims that then "there were three or four [officers]... [who proceeded to] drag [him] in[to a] back... yard... [where he was] hit... and... kick[ed]" (id. at 31). He recalled being taken back to the nightclub to be identified, after which he was "pulled... out of the car and another officer ... hit [plaintiff] in the mouth" (id. at 37). Plaintiff was subsequently taken to the 122nd precinct and then to the hospital, where he claimed that he was treated and released back into police custody with a broken elbow (id. at 41-47). He was then booked at the 120th precinct, where he alleged that officers were "spitting in [his] face". Plaintiff was held overnight and brought before a judge the next morning (id. at 47). Plaintiff was ultimately indicted for, e.g., the attempted murder of a police officer and, he believed, 14 other crimes (id. at 52), but was acquitted at trial "on all counts except DWI" (id. at 53).

At his deposition, P.O. Kenneth Bray testified that on the date of the incident, he and his partner, P.O. Louis Vega, received a radio call regarding the report of a bar fight (see EBT of P.O. Kenneth Bray, p 18), and providing them with a description of a vehicle that had just been seen leaving the scene (id. at 19). However, when they received a subsequent notification about a single-car accident, they "started responding to the vehicle accident" (id.). Finding "nobody at the car", the officer had "started to canvas" when he saw two males walking up the street (id. at 20-21). At this point, the officers "put over the radio that [they] possibly had two suspects that fit the [broadcast] description" (id. at 30). After P.O. Bray directed the men to "stop", the two men started to run and he and his partner gave chase (id. at 25, 58). The witness caught up with plaintiff in the back of a house, pulled out his weapon and ordered plaintiff to get on the ground (id. at 27-28). Plaintiff eventually laid flat on his stomach and started to yell "stop hitting me" while the witness was waiting for other police officers to arrive and provide assistance (id. at 29, 32, 38-39, 59). The witness denied striking, hitting, kicking or punching plaintiff, and also denied witnessing any such conduct on the part of the other police officers (id. at 32, 37-38, 41, 50, 52, 61-63). The witness further stated that while escorting plaintiff to the front of the house, the latter "broke loose and jumped into [the] bushes" (id. at 38). After plaintiff was re-apprehended, the officers received a radio run from their superiors to return plaintiff to the nightclub in question so that a witness could verify whether plaintiff was "the right guy" (id. at 47-48). After the witness confirmed that plaintiff had been involved in the fight, the officers were given a "thumbs up" and plaintiff was brought to the 122nd precinct (id.). At this point, plaintiff asked for an ambulance to receive treatment for injuries which the police officer believed had been sustained in the car accident (id. at 42). When asked about the vehicle involved in the car accident, the witness stated that it was "totally destroyed" (id. at 53). [*3]

In moving for partial summary judgment, the City argues that (1) plaintiff failed to file a notice of claim naming the individual defendants, Police Officers Kenneth Bray and Louis Vega; (2) plaintiff's subsequent conviction for DUI established probable cause for his arrest, thereby necessitating the dismissal of the federal and state law claims based upon false arrest and false imprisonment; (3) any claim against the City premised upon negligent training and/or supervision was extinguished when the City interposed an answer admitting that Police Officers Bray and Vega were acting within the scope of their employment; (4) plaintiff's allegations of a section 1983 violation against the City must be dismissed for failure to state a Monell^[FN1] claim; or (5) in the alternative, that there is no evidence of a custom, policy or practice on the part of the City which caused a denial of plaintiff's constitutional rights.

"General Municipal Law §50-e makes unauthorized an action against individuals who have not been named in a notice of claim thus warranting dismissal of the state claims" against Police Officers Bray and Vega (Tannenbaum v. City of New York, 30 AD3d 357, 358 [1st Dept 2006][citations omitted] accord Cleghorne v. City of New York, 99 AD3d 443, 446 [1st Dept 2012] but see Goodwin v. Pretorius, 105 AD3d 207 [4th Dept 2013]). However, since the notice requirements of this statute apply only to state law causes of action for, e.g., tort and negligence, it is not applicable to plaintiff's section 1983 causes of actions for, e.g., false imprisonment (see Mompoint v. City of New York, 299 AD2d 527 [2nd Dept 2002]). Accordingly, only the "First" and "Second" causes of action for assault and battery are subject to dismissal as a result of this omission.^[FN2]

In order to prevail upon a cause of action to recover damages for false arrest or false imprisonment^[FN3], a plaintiff must prove that (1) defendant intended to confine the plaintiff; (2) plaintiff was aware of the resulting confinement; (3) plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged (see Washington-Herrera v. Town of Greenburgh, 101 AD3d 986, 987 [2nd Dept 2012]). Thus, a plaintiff cannot prevail on a cause of action based on false arrest or false imprisonment if the arresting officers had probable cause to believe that he or she committed the underlying offense (see Petrychenko v. Solovey, 99 AD3d 777, 780 [2nd Dept 2012]). Moreover, it has been held that probable cause to believe that a person has committed a crime is a complete defense to any action alleging false arrest or false imprisonment, whether brought under state law or 42 USC §1983 (see Rodgers v. City of New York, 106 AD3d 1068, 1069 [2nd Dept 2013]). [*4]

In this state, where a warrant of arrest has been issued by a court of competent jurisdiction, there is a presumption that any subsequent arrest is based upon probable cause (see Washington-Herrera v. Town of Greenburgh, 101 AD3d at 987). However, when an arrest is made, as here, without a warrant, a presumption of unlawfulness arises that a defendant moving for summary judgment must rebut (see Petrychenko v. Solovey, 99 AD3d 777 at 780). In general, the presence or absence of probable cause is said to present a question of fact for a jury to decide (see Holland v. City of Poughkeepsie, 90 AD3d at 845).

Nevertheless, the subsequent indictment of a person arrested without a warrant has been held to give rise to a presumption of probable cause that may be overcome only by evidence establishing that (1) the police witnesses have not made a complete and full statement of facts either to the Grand Jury or the District Attorney; (2) they have misrepresented or falsified evidence; or (3) they have withheld evidence or otherwise acted in bad faith (see Washington-Herrera v. Town of Greenburgh, 101 AD3d at 989).

Here, plaintiff's indictment (and conviction) are sufficient to establish defendants' prima facie right to dismissal of the causes of action for false arrest and/or imprisonment, which plaintiff has failed to overcome (id.). Accordingly, that branch of defendants' motion which is for summary judgment dismissing these causes of action must also be granted (cf. Davis v. City of New York, 100 AD3d 822, 823 [2nd Dept 2012]). The foregoing notwithstanding, so much of defendants' motion as seeks the dismissal of plaintiff's cause of action predicated on the officers' purported excessive use of force under 42 USC §1983 cannot be decided as a matter of law.

It is well established that the claim that a law enforcement official used excessive force during the course of an arrest, investigatory stop, or other seizure of a person is to be analyzed under the objective reasonableness standard of the Fourth Amendment (see Washington-Herrera v. Town of Greenburgh, 101 AD3d at 989), i.e., that the reasonableness of the particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight (id.). The principle thus recognized is that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving (see Holland v. City of Poughkeepsie, 90 AD3d at 844). In this context, the analysis to be performed is said to require "a careful balancing of the nature and quality of the [particular] intrusion on the individual's Fourth Amendment interest against the countervailing governmental interest at stake" (id. [internal quotation marks omitted]). Because of the sharp conflict in the versions of the events at bar and its intensely factual nature, the question of how much force was used and whether it was reasonable under the circumstances can only be decided by a jury vested with the power of resolving matters of credibility (id. at 844). If found to be objectively reasonable, the officers' actions are privileged under the doctrine of governmental function immunity (see e.g. Valdez v. City of New York, 18 NY3d 69 [2011]). Moreover, unlike the other claims made under section 1983, a municipality may be held vicariously liable for the use of excessive force by its employees while acting within the scope of their employment (see Holland v. City of Poughkeepsie, 90 AD3d at 844). Accordingly, so much of defendants' motion as seeks the dismissal of that part of plaintiff's "Third" cause of action as alleges the excessive use of force is denied.

However, the balance of the City motion must be granted.

To the extent that plaintiff seeks to impose liability upon the City for the other purported violations of plaintiff's civil rights by Police Officers Bray and Vega (see 42 USC §1983), it is familiar law that a municipality cannot be held liable for an injury inflicted by its employees or agents based solely on the doctrine of, e.g., respondeat superior (see Rodgers v. City of New York, 106 AD3d at 1071) in the absence of proof of the existence of an official policy or custom on the part [*5]of a municipal defendant that caused the claimant to be subjected to a denial of his or her civil rights (see Bassett v. City of Rye, 104 AD3d 889, 890-891 [2nd Dept 2013]). In other words, in order to prevail upon an action against a municipality under 42 USC §1983, a plaintiff must be able to demonstrate that the action alleged to be unconstitutional represents the implementation or execution of a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, or which has occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force of law (see Rodgers v. City of New York, 106 AD3d at 1071-1072; Bassett v. City of Rye, 104 AD3d at 891). While such a municipal custom or policy can be shown, e.g., by establishing that an official who is the final policy maker directly committed or commanded the civil rights violation (see Bassett v. City of Rye, 104 AD3d at 891), no such proof has been presented to this Court.

Based on the foregoing, the City has established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff's arrest and prosecution in alleged violation of his rights under 42 USC §1983 were not the result of the implementation of any policy, regulation or custom on the part of the City. In opposition, plaintiff has failed to provide any evidence sufficient to raise a triable issue that the acts which allegedly deprived him of his civil rights were performed pursuant to any such express or implied policy or custom (see Bah v. City of New York, 108 AD3d 646, 647 [2nd Dept 2013] Ellison v. City of New Rochelle, 62 AD3d 830, 833 [2nd Dept 2009] cf. Bassett v. City of Rye, 104 AD3d at 891).

Finally, while a municipality may be held liable under 42 USC §1983 for its failure to adequately train or supervise its employees, this result is only possible where "the failure to train amounts to [a] deliberate indifference to the rights of persons with whom the police come into contact" (see Rodgers v. City of New York, 106 AD3d at 1071-1072 [internal quotations marks omitted]). Here, again, the City established its prima facie entitlement to judgment as a matter of law dismissing plaintiff's causes of action for negligent training and supervision of Police Officers Bray and Vega by demonstrating the lack of any evidence of its deliberate indifference to the rights of the plaintiff (see Ellison v. City of New Rochelle, 62 AD3d at 833). In opposition, the plaintiff has failed to raise a triable issue of fact.

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted to the extent that the "First", "Second", "Fourth" and "Fifth" causes of action alleged in Plaintiff's Verified Complaint are hereby severed and dismissed; and it is further

ORDERED that the action shall continue as to only so much of plaintiff's "Third" cause of action as alleges the use of excessive force in violation of 42 USC §1983; and it is further

ORDERED that the balance of plaintiff's "Third" cause of action alleging false imprisonment is severed and dismissed; and it is further

ORDERED that the Clerk shall enter judgment and mark his records accordingly.

ENTER,

___/s/______________________

Hon. Thomas P. Aliotta

J.S.C.

DATED: March 5, 2014