Defendant, the City of New York (hereinafter "City") moves inter alia for summary judgment, dismissing plaintiff's complaint as asserted against it.

This is an action to recover damages for injuries allegedly sustained by plaintiff on February 7, 2012 when he was arrested at or near the intersection of 90th Street and 188th Street, in the County of Queens, City and State of New York. Following the arrest, plaintiff was charged with Robbery in the First and Second Degrees and Assault in the Second Degree for forcibly taking the property of Rance Pacquette while displaying a firearm.On a motion for summary judgment, the proponent "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 . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

The existence of probable cause is a complete defense to a cause of action for false arrest and/or false imprisonment under both state and federal law (See Rodgers v. City of New York, 106 AD3d 1068, 1069 [2d Dept. 2013]). However, whether probable cause existed is ordinarily a question of fact that cannot be decided as a matter of law unless there is no real dispute as to the facts and the appropriate inferences to be drawn therefrom (See Petrychenko v. Solovey, 99 AD3d 777, 780 [2d Dept. 2012] Holland v. City of Poughkeepsie, 90 AD3d 841, 845 [2d Dept. 2011]).

The evidence submitted in support of and in opposition to the motion demonstrate the existence of triable issues of fact regarding the appropriate inferences to be drawn from the circumstances surrounding the plaintiff's arrest.

Notably, defendant fails to submit any deposition testimony or affidavit from the arresting officer and offers only the testimony of Officer Powell, who met with the victim shortly after the crime.

Officer Powell testified that plaintiff was arrested by other officers based on the description provided in a 911 call, specifically, that the suspect was a black male wearing a skully, jacket and glasses and plaintiff's temporal and physical proximity to the site of the robbery. Plaintiff was arrested approximately half an hour after the robbery, three to four blocks away. Plaintiff confirmed at his deposition testimony that he was wearing a "sleeveless coat" and a "sweater" hat at the time of his arrest.

While the minor discrepancies between plaintiff's appearance and the description of the suspect contained in the 911 call does not vitiate a finding of probable cause on its own (see People v. Jackson, 282 AD2d 473, 473-74 [2d Dept. 2001]), under the circumstances herein, whether the arresting officer had probable cause to arrest the plaintiff given these discrepancies and the absence of any information regarding the color of the suspect's clothing, the suspect's age, height, weight and build, and in light of the fact that half an hour had passed since the robbery presents a question of fact (See Petrychenko, supra at 781; Sital v. City of New York, 60 AD3d 465, 466 [1st Dept. 2009] see also People v. Bradshaw, 76 AD3d 566, 571-72 [2d Dept. 2010] People v. Waters, 259 AD2d 642, 643-44 [2d Dept. 1999] People v. White, 117 AD2d 127, 131-32 [2d Dept. 1986]).

However, plaintiff's fifth cause of action for negligence resulting in the subject arrest fails to state a cognizable cause of action separate and distinct from plaintiff's causes of action for false arrest, false imprisonment and deprivation of civil rights(See Carlton v. Nassau County Police Dep't, 306 AD2d 365, 366 [2d Dept. 2003]).

In addition, plaintiff's sixth cause of action for negligent hiring, training, supervising, controlling, disciplining, testing and screening must also be dismissed as defendant herein is alleged to be liable for its employee's negligence under a theory of respondeat superior and plaintiff fails to allege that defendant was grossly negligent (See Quiroz v. Zottola, 96 AD3d 1035, 1037 [2d Dept. 2012] Watson v. Strack, 5 AD3d 1067, 1068 [4th Dept. 2004]).

Accordingly, the motion is granted to the extent that plaintiff's fifth and sixth causes of action are dismissed as asserted against defendant, the City of New York, only.

The motion is denied in all other respects.

May 28, 2014____________________