Plaintiff, Daniel Gonsalves, moves inter alia for leave to amend his complaint to substitute named defendant Police Officer John Doe, with the name of the actual police officer involved in the events leading to this action. Defendants, the City of New York and Police Officer Chris Gloeckner, separately move inter alia for summary judgment, dismissing plaintiff's complaint as asserted against them.

This is an action to recover damages for injuries allegedly sustained by plaintiff on March 15, 2011 when he was arrested at 81-01 Hammels Boulevard, in the County of Queens, City and State of New York.

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) ) .

Contrary to defendants' contention, the deposition testimony of plaintiff Daniel Gonsalves and the deposition testimony of Police Officer Chris Gloeckner demonstrate that there is, in fact, a dispute as to the facts.

Specifically, while plaintiff testified that the description provided to Officer Gloeckner, which he overheard, stated that the suspect was wearing a red leather jacket, black pants, and had braids, Officer Gloeckner testified that the description he received was of a black male in his early 20s wearing a red sweatshirt and baseball hat.

At the time of his arrest, slightly less than fifty minutes after the subject crime had taken place, plaintiff was wearing a red sweatshirt and did not have braids in his hair.

The issues of fact regarding the description of the suspect received by the officers clearly [*2]prevent a determination of probable cause as a matter of law.

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) ) , the discrepancies between plaintiff's appearance and the description of the suspect as alleged by plaintiff can hardly be said to be minor, particularly in light of the fact that the description failed to include information regarding the suspects height, weight or build and that nearly an hour had passed since the crime was committed (See People v. Waters, 259 AD2d 642, 643-44 (2d Dept. 1999) ; People v. White, 117 AD2d 127, 131-32 (2d Dept. 1986) ) .

Contrary to defendants' contention, the actions of plaintiff in running down the stairs and being "nervous" when confronted by the Officers are not sufficiently indicative of criminal activity so as to establish probable cause for plaintiff's arrest (See Waters, supra, at 644) . Finally, as plaintiff was arrested prior to his identification by a confidential informant, the identification itself fails to demonstrate probable cause for the arrest.

In light of the failure to demonstrate the existence of probable cause as a matter of law, defendants' have likewise failed to establish their entitlement to dismissal of plaintiff's cause of action for malicious prosecution (See Fortunato v. City of New York, 63 AD3d 880, 881 (2d Dept. 2009) ) .

Defendants contend that the individual officers are nevertheless entitled to qualified immunity because their determination that probable cause existed was objectively reasonable. However, in addition to the lack of probable cause, plaintiff further alleges that the officers fabricated evidence against the defendant. Under the totality of the circumstances, defendants have failed to demonstrate their entitlement to qualified immunity on the ground that it was objectively reasonable for them to believe their conduct did not violate plaintiff's constitutional rights.

As plaintiff's complaint only alleges causes of action for false arrest and malicious prosecution, defendants' motion is moot to the extent it seeks to dismiss any other causes of action that have not been plead.

A pleading may be freely amended where there is no prejudice to the opposing party (CPLR 3025 (b) ; see Edenwald Contracting Co. v. City of New York, 60 NY2d 957, 959 (1983) ; Aronov v. Regency Gardens Apt. Corp., 15 AD3d 513 (2d Dept. 2005) ) .

Contrary to defendants' contentions, they would not be prejudiced by the delay. The proposed defendant merely replaces the "John Doe" defendant and defendants cannot claim to be surprised that plaintiff would seek to substitute a properly named defendant for the fictitious one. Moreover, as the proposed defendant has already been deposed, the amendment will not cause any prejudicial delay in the proceedings.

Moreover, contrary to defendant's contentions, the proposed added cause of action for "denial [*3]of right to a fair trial" is supported by evidence and not patently without merit.

Accordingly, defendants' motion is denied, in its entirety.

Plaintiff's motion is granted to the extent that plaintiff is directed to serve and file a supplemental summons and amended complaint on defendant Police Officer Daniel O'Rourke no later than September 12, 2014.

Plaintiff is further directed to serve a copy of this Order with Notice of Entry on all parties and file the same with the Queens County Clerk Office.

Plaintiff is further directed to file proof of service of the supplemental summons and amended complaint on each defendant sought to be added.

Upon receipt of proper service of the supplemental summons and amended complaint on all newly added defendants, the County Clerk is directed to amend the caption to reflect the newly added defendants as follows: