DECISION AND ORDER

In this action for alleged personal injuries arising from, inter alia, plaintiff's false arrest, malicious prosecution, and violations of 42 USC § 1983 ^[FN1], defendants move seeking an order pursuant to CPLR § 3212 granting them summary judgment with respect to plaintiff's remaining claims. With respect to plaintiff's claim under both state and federal law for false arrest and imprisonment, defendants assert that summary judgment is warranted insofar as they had probable cause to arrest plaintiff. With regard to plaintiff's state and federal claims for excessive force, defendants aver that insofar as the force used was objectively reasonable, they are entitled to summary judgment. Defendants also contend that insofar as they answered for all the individual defendants, plaintiff's cause of action for negligent hiring and retention of the individual defendants is barred. Plaintiff opposes the instant motion asserting that insofar as discovery is incomplete, the instant motion must be denied as premature. Additionally, plaintiff opposes the instant motion on grounds that questions of fact as to her causes of actions preclude summary judgment. Plaintiff does not oppose the portion of defendants motion seeking summary judgment on her negligent hiring and retention claim and, in fact, withdraws this claim.

For the reasons that follow hereinafter, defendants' motion is denied.

The instant action is for alleged personal injuries. Within her complaint, plaintiff alleges that on October 16, 2012, she was falsely arrested, falsely imprisoned, assaulted and maliciously prosecuted by the defendants. Specifically, plaintiff alleges that within the Concourse Plaza Multiplex on East 161st Street, Bronx, NY, she was falsely, arrested, assaulted, and then falsely imprisoned and maliciously prosecuted by defendants P.O. MARIA BRITO OF THE 44TH PCT., TAX #948694 (Brito), P.O. DELAROSA NELSON OF THE 44TH PCT ., TAX #948857 (Nelson), and P.O. WILFREDO BENITEZ OF THE 44TH PCT., TAX No.947459 (Benitez), all [*2]of whom were police officers employed by defendant THE CITY OF NEW YORK (the City). Plaintiff alleges that as a result of defendants actions, she suffered injuries.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005] Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in [*3]opposition to the motion present issues for trial

Preliminarily, the Court finds unavailing plaintiff's contention that the instant motion ought to be denied as premature pursuant to CPLR § 3212(f). As will be discussed below, although depositions have not yet been held, defendants have exchanged significant documentary discovery. More importantly, the evidence critical to defeating the instant motion - namely plaintiff's version of the events alleged - lies squarely with her and, not as argued, with the defendants, the proponents of the instant motion.

Pursuant to CPLR § 3212(f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist but are unavailable to the opposing party. Denial is particularly warranted when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party (Franklin National Bank of Long Island v De Giacomo, 20 AD2d 797, 297 [2d Dept 1964] De France v Oestrike, 8 AD2d 735, 735-736 [2d Dept 1959] Blue Bird Coach Lines, Inc. v 107 Delaware Avenue, N.V., Inc, 125 AD2d 971, 971 [4th Dept 1986]). However, when the information necessary to oppose the instant motion, is wholly within the control of the party opposing summary judgment and could be produced via sworn affidavits, denial of a motion for summary judgment pursuant to CPLR § 3212(f), will be denied (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999).

A party claiming ignorance of facts critical to the defeat a motion for summary judgment is only entitled to further discovery and denial of a motion for summary judgment if he or she demonstrates that reasonable attempts were made to discover facts which, as the opposing party claims, would give rise to a triable issue of fact (Sasson v Setina Manufacturing Company, Inc., 26 AD3d 487, 488 [2d Dept 2006] Cruz v Otis Elevator Company, 238 AD2d 540, 540 [2d Dept 1997]). Implicit in this rationale is that the proponent of further discovery must identify facts, which would give rise to triable issues of fact. This is because, a court cannot condone fishing expeditions and as such "[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" (Sasson at 501). Thus, additional discovery, should not be ordered, where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence (Frith v Affordable Homes of America, Inc., 253 AD2d 536, 537 [2d Dept 1998]).

Notwithstanding the foregoing, CPLR § 3212(f) mandates denial of a motion for summary judgment when a motion for summary judgment is patently premature, meaning when it is made prior to the preliminary conference, if no discovery has been exchanged (Gao v City of New York, 29 AD3d 449, 449 [1st Dept 2006] Bradley v Ibex Construction, LLC, 22 AD3d 380, 380-381 [1st Dept 2005] McGlynn v. Palace Co., 262 AD2d 116, 117 [1st Dept 1999]). Under [*4]these circumstances, the proponent seeking denial of a motion as premature, need not demonstrate what discovery is sought, that the same will lead to discovery of triable issues of fact or the efforts to obtain the same have been undertaken (id.). In Bradley, the court denied plaintiff's motion for summary judgment as premature, when the same was made prior to the preliminary conference (Bradley at 380). In McGlynn, the court denied plaintiff's motion seeking summary judgment, when the same was made after the preliminary conference but before defendant had obtained any discovery whatsoever (McGlynn at 117).

Here, as will be discussed in detail below, plaintiff's testimony at her 50-h hearing, a copy of which was provided to her raises material issues of fact sufficient to defeat defendants' motion. Accordingly, CPLR § 3212(f), does not warrant denial of this motion.

Notwithstanding the foregoing, defendants motion must be denied insofar as the evidence tendered with respect to her false arrest and false imprisonment claims fails to establish that her arrest was privileged. Similarly, with respect to her claim for excessive force, defendants' own evidence fails to establish that the force used against plaintiff was objectively reasonable.

False Arrest and Imprisonment

Whenever an arrest and imprisonment arise without a warrant, the presumption is that such arrest and imprisonment were unlawful (Smith v County of Nassau, 34 NY2d 18, 23 [1974]). A plaintiff seeking to establish a cause of action for false arrest and/or imprisonment must establish that (1) the defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged (id. at 22; Hernandez v City of New York, 100 AD3d 433, 433 [1st Dept 2012] Martinez v City of Schenectady, 97 NY2d 78, 85 [2001] Broughton v State, 37 NY2d 451, 457 [1975] Rivera v County of Nassau, 83 AD3d 1032, 1033 [2d Dept 2011]). When confronted with such a claim and concomitant proof, the defendant can nevertheless prevail if he proves legal justification for the arrest and imprisonment, which "may be established by showing that the arrest was based on probable cause" (Broughton at 458; Martinez at 85; Rivera at 1033). While post-arrest judicial participation will not validate an unlawful arrest, evidence of a subsequent arraignment or indictment is, in fact, proof of the presence of probable cause at the time of the arrest (Broughton at 457; Hernandez at 433-434). Moreover, a conviction which survives appeal is also conclusive evidence that probable cause existed at the time of the arrest (id.). Conversely, a subsequent dismissal, acquittal or reversal on appeal is proof tending to establish the absence of probable cause at the time of the arrest (id.).

Probable cause, also defined as reasonable cause, exists

[w]here an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise

[r]easonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances [*5]which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

Where the facts leading up to an arrest are undisputed, the existence of probable cause is an issue of law for the court to decide (Parkin v Cornell University, Inc., 78 NY2d 523, 529 [1991] Burns v Eben, 40 NY 463, 466 [1869] Wyllie v District Atty. of County of Kings, 2 AD3d 714, 718 [2d Dept 2003] Brown v City of New York, 92 AD2d 15, 17 [1st Dept 1983] Veras v Truth Verification, 83 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 947 [1982]).

Here, plaintiff's 50-h transcript, submitted by defendants in support their motion, establishes that on July 26, 2011, plaintiff, her brother, and her boyfriend, were watching a movie at a movie theater, when her brother, who was bipolar and who had not taken his medication, became excited and made excessive noise. As a result, two police officers and a security guard approached plaintiff's brother, tapped him on the shoulder, and asked him to lower his voice. Plaintiff, her brother, and her boyfriend were asked by the police officers to step outside, which they did. Once there, her brother began to yell at the police officers. The police called for back-up and immediately began to hit plaintiff's brother. Plaintiff, in shock that her brother was being beaten and in an effort to save him, grabbed one of the police officers. Plaintiff was then thrown to the ground by the police officers. And was, thereafter, punched and kicked several times. She was then handcuffed and while handcuffed, hit several more times by the police officers.

To the extent that plaintiff testified that she was arrested merely for trying to prevent the police from hurting her bother and was thereafter taken into police custody, her testimony establishes a prima facie case of false of arrest and imprisonment (Smith at 22; Hernandez at 433; Martinez at 85; Broughton at 457; Rivera at 1033). Based on the foregoing, defendants - to defeat the claims of false arrest and imprisonment, and to establish prima facie entitlement to summary judgment on these claims - must prove legal justification for the arrest and imprisonment, namely that the arrest was premised on probable cause (Broughton at 458; Martinez at 85; Rivera at 1033). Here, nothing submitted by defendants establishes that plaintiff was arrested because defendants had "[r]easonable cause to believe that. . . [she] committed an offense" (CPL § 70.10[2]). Instead, defendants, using both admissible and inadmissable ^[FN2] [*6]evidence merely invite the Court to conclude that plaintiff's decision to grab a police officer is tantamount to a crime, which crime, established the requisite probable cause for her arrest.

Defendants fall short of the mark. The burden to establish probable cause for the arrest is solely defendants' (Broughton at 458; Martinez at 85; Rivera at 1033) and where, as here, probable cause is premised on plaintiff's commission of a crime defendants must demonstrate which crime was committed and why plaintiff's acts amount to the same. Beyond establishing that plaintiff did in fact grab a police officer prior to her arrest, nothing submitted by defendants establishes that grabbing a police officer is in it of itself a crime. While whether this constitutes a crime might very well be obvious, the Court cannot endeavor to reach such a conclusion in the absence of evidence. To that end, defendants fail to point to the section of the Penal Law making plaintiff's actions a crime. Nor do defendants provide evidence that plaintiff was in fact arrested because she grabbed a police officer, thereby linking plaintiff's actions to the reason for her arrest.

Excessive Force

Defendants' motion for summary judgment with respect to plaintiff's claim for excessive force is denied insofar as defendants' evidence, rather than establishing that force used to arrest plaintiff was reasonable, instead evinces that the police used force which a jury could conclude is in excess of that required to arrest plaintiff and bring her into custody.

It is well settled that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the Fourth Amendment" (Graham v Connor, 490 US 386, 396 [1989]). Thus, whether the force used in effectuating an arrest is excessive, must be analyzed under the Fourth Amendment and its standard of objective reasonableness (Rivera v City of New York, 40 AD3d 334, 341 [1st Dept 2007] Ostrander v State of New York, 289 AD2d 463, 464 [2d Dept 2001]), and the reasonableness of an officer's use of force must be, therefore, be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" (Rivera at 341; Graham at 396; Koeiman v City of New York, 36 AD3d 451, 453 [1st Dept 2007]). Thus, determination of an excessive force claim requires consideration of all of the facts underlying the arrest, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers, and whether the suspect was actively resisting arrest (Koeiman at 453; Vizzari v Hernandez, 1 AD3d 431, 432 [2d Dept 2003]). Accordingly, while generally, "b]ecause of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide" (Holland v City of Poughkeepsie, 90 AD3d 841, 844 [2d Dept 2011] Harvey v Brandt, 254 AD2d 718, 718 [4th Dept 1998]), where the undisputed evidence demonstrates that the force used by police officers was objectively reasonable under the attendant circumstances, defendant should nevertheless be granted summary judgment (Koeiman at 453 ["The evidence adduced at trial regarding the incident—principally the testimony of officers Mondello and Carson—demonstrated that the decedent, without provocation or justification, assaulted Officer Mondello, that decedent resisted Officer Mondello's efforts to restrain him, and that the officers used the amount of force they reasonably believed was necessary to subdue and handcuff the decedent. Moreover, the incident rapidly unfolded and required the officers to make [*7]a split-second decision regarding the amount of force to employ. Plaintiff submitted no evidence—expert or otherwise—demonstrating that the force used by the officers, judged from the perspective of a reasonable officer on the scene, was excessive." (internal citations omitted)] Diederich v Nyack Hosp., 49 AD3d 491, 494 [2d Dept 2008] ["The Supreme Court should have granted that branch of the Orangetown defendants' motion which was for summary judgment dismissing the use of excessive force cause of action. In light of the circumstances of this case, including the absence of proof of injury, the defendants established that the police officer did not use excessive force in restraining the plaintiff, and the plaintiff failed to present any evidence otherwise."]).

Here, as noted above, plaintiff's 50-h testimony establishes that she was beaten not only before she was arrested, but also after she was in handcuffs. Specifically, plaintiff testified that after she was handcuffed, she was hit "[m]ore than five times." Thus, while summary judgment in favor of a defendant is warranted when the undisputed evidence demonstrates that the force used by police officers was objectively reasonable under the attendant circumstances (Koeiman at 453; Diederich at 494), here, absent any proof either justifying the use of force alleged before and after plaintiff was handcuffed or denying that such force was, in fact, used, defendants' fail to establish that the force used was reasonable and therefore not excessive. Defendants' thus fail to establish prima facie entitlement to summary judgment with respect to plaintiff's excessive force claim.

To the extent that plaintiff withdraws her negligent hiring and retention claim, that potion of defendants' motion seeking summary judgment as to that claim is denied as moot.

Insofar as the defendants did not sustain their prima facie burden, the adequacy of the plaintiff's papers submitted in opposition need not be considered (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ["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. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (internal citation and quotation marks omitted)] 6014 Eleventh Ave. Realty, LLC v 6014 AH, LLC, 114 AD3d 661, 661 [2d Dept 2014]). It is hereby

ORDERED that the plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendants within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : April 9, 2014

Bronx, New York

______________________________MITCHELL J. DANZIGER, J.S.C.