In this action, plaintiff seeks to recover for personal injuries he sustained in connection with an incident which allegedly occurred on December 13, 1998, at approximately 11:00pm, when plaintiff was arrested. Defendants The City of New York (the "City") and New York City Police Department (the "NYPD") move for summary judgment in their favor dismissing plaintiff's causes of action alleging false arrest and false imprisonment, malicious prosecution, negligent hiring and retention, intentional infliction of emotional distress and civil rights violations. Plaintiff opposes the motion.

Issue is joined and this motion was brought more than 120 days after plaintiff filed notice of trial. Therefore, the motion is untimely (CPLR § 3212 [a]; Brill v. City of New York, 2 NY3d 648 [2004]). Indeed, this motion was made nearly a year and a half after notice of trial was filed. However, even if summary judgment relief was available, the motion would be denied. The Court's decision follows.

Many of the relevant material facts are not in dispute. On June 28, 2011, plaintiff testified as follows at his deposition. On Wednesday, December 16, 1998, at approximately 9:00 p.m. on Main Street in Roosevelt Island, plaintiff was on his way home from school after playing a basketball game and bumped into one of his friends and neighbor, Lamont Robinson. Together, they went to a diner to "grab a bite to eat." Plaintiff ordered his food and approximately five-ten minutes later, plaintiff was "bombarded" by ten public safety officers. Two of these officers grabbed him, "[o]ne of them put [his] arm behind [his] back, way up behind [his] back and cuffed [him]."

Plaintiff was removed from the restaurant and taken to the Public Safety Office ("PSO") across the street from the restaurant. "[T]here was nothing said [to him] about what [he] was being arrested for." Plaintiff waited at the PSO for approximately thirty minutes and was thereafter released to the NYPD. NYPD police officers then brought plaintiff to the precinct on 68th Street and Lexington Avenue and he was placed in a holding cell. Plaintiff was held at the precinct for about five hours. He "just sat in a corner on the floor. Curled up, scared to death. [He] was smacked in the back of [his] head. [He] was told if [he] was to tell [he] would get [his] behind wooped (sic) worse than what happened." Plaintiff was transported between precincts due to overcrowding. During transport, plaintiff asked the police officers "[w]hat did I do?" and he was never given any information.

Plaintiff was then transported to Central Booking. At Central Booking, plaintiff was in a holding cell for approximately 24 hours. Plaintiff was fingerprinted. Plaintiff was then transported to Rikers Island and was searched again. Plaintiff returned to Court approximately six days later, was arraigned on two felony charges: Attempted Robbery in the First Degree and Attempted Robbery in the Second Degree (PL 110/160.15 [3] and PL 110/160.10 [1], respectively) and was then released. Plaintiff testified as follows concerning his physical injuries:

Q: Did you suffer any physical injuries as a result of the arrest?

A: Did I, yeah. I lost my childhood you could say, this is a physical injury.

Q: Let's start with physical injuries?

A: No.

Q: Any physical injuries?

A: No.

Q: Did you see any doctors as a result of this arrest?

A: No.

With regards to pain and suffering, plaintiff testified as follows:

Q: Are you suffering any symptoms of mental anguish today?

A: Not very so much today. Maybe then, yeah.

Q: Can you describe what you were feeling then?

A: I wasn't mentally disturbed like I wanted to hurt myself or anything at that point, but it was just, I guess it was more emotional than it was mental for me.

Q: Did you ever see any kind of specialist for mental health issues?

A: No. I don't know if you consider that mental but I guess I didn't want to be around them. I didn't want to be around my friends. I didn't want to be around anybody.

Plaintiff has submitted an affidavit in opposition to the motion, wherein he states, inter alia, that he was arrested and imprisoned "without explanation", he was assaulted while in the NYPD holding cell, he was "in fear for my life" and he "felt completely helpless", and that he was held in Central Booking for 48 hours. Plaintiff details his time at Rikers Island, describing it as an "ordeal." Plaintiff returned to Court twice after his arraignment. On the second date, approximately seven months after his arrest, the criminal case was dismissed. Plaintiff explains that this entire experience was very difficult, especially in light of the fact that he was seventeen years old at the time.

Police Officer Richard Providence, who is now a Detective, arrested plaintiff and submitted a criminal affidavit as part of the criminal complaint which was filed by the District Attorney. In his affidavit, Officer Providence testified as follows:

[I am] informed by an informant known to the District Attorney's Office, that defendant and an unapprehended male approached informant at [580 Main Street, Roosevelt Island], [*2]that the unapprehended male hit informant over the head with a bottle and then both defendant and the unapprehended male reached to informant's pockets. [I am] further informed that when informant screamed for help, defendant and the male fled. [I am] further informed that informant suffered substantial pain and injury from the above-stated incident, to wit, profuse bleeding and a gash to the head which required 12 stitches at Astoria General Hospital.

On September 14, 2012, Officer Providence testified as follows at his deposition.

A: Yes, it would.

Q: When informed by an informant of potential facts or circumstances that gave rise to a crime, what, at that point in December of 1998, would be the procedure that you would utilize to investigate that crime?

A: Could you as me that question again?

Q: Sure. As it stated in the first sentence [referring to the Criminal Affidavit, Exhibit F] that you were informed by an informant that some circumstances happened what would be the first steps that you would take related to that, in terms of investigation and what you've been told by the informant?

Q: Well, if somebody said, "I saw it happen,' what would you do in that circumstance, first?

A: You'd have to be specific as to what the crime is.

Q: Well, let's deal with attempted robbery.

A: As it pertains to what I'm reading here, the informant appears to be the victim.

Q: And what happens in that circumstance?

A: In that circumstance, the victim — it depends on what the informant or victim is telling me. If he says "I was robbed" or "Someone tried to rob me, and that's the guy over there,' then that person would be detained and we would, you know, try to hash out the facts of that.

Officer Providence further testified that if he is informed of an allegation of attempted robbery that had occurred not right in front of him, he would perform an arrest and take the next step of the identification process: a line-up or photo array. Otherwise, Officer Providence testified that he did not remember the underlying incident or plaintiff.

Defendants raise the following arguments. The case against defendant NYPD must be dismissed because "agencies of the City of New York are not entities amenable to suit." Defendants maintain that they have established probable cause for plaintiff's arrest, and therefore, the false arrest, false imprisonment and malicious prosecution claims should be dismissed. Defendants contend that plaintiff's causes of action for negligent hiring, retention and supervision and intentional infliction of emotional distress must be dismissed because they are not viable. Finally, defendants maintain that plaintiff's alleged constitutional torts claim must be dismissed because it is not "specifically pled" or "sufficiently pled."

Plaintiff argues that the defendants have not met their burden of establish probable cause, because there are many triable issue of fact and Officer Providence's testimony lacks probative value since he has no independent recollection of this arrest and used a criminal affidavit as the basis for his deposition testimony.

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR § 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]); Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Only if it meets this burden, will it then shift to the party opposing summary judgment who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action (Zuckerman v. City of New York, supra). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]). When only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing (Hindes v. Weisz, 303 AD2d 459 [2d Dept 2003]).

As for defendants' claim that they have established probable cause for the underlying arrest as a matter of law, that claim must be rejected on the merits. Probable cause is a complete defense to an action for false arrest and false imprisonment (see Morel v. Crimaldi, 683 NYS2d [*3]22 [1st Dept 1998]. CPL § 140.10 [1] provides that "a police officer may arrest a person for: [b] a crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." Reasonable cause is further defined at CPL § 70.10 [2] as follows:

"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances 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. Except as otherwise provided for in this chapter, such apparently reliable evidence may include or consist of hearsay.

Plaintiff was charged with violating PL § 110/160.15 [3] and PL § 110/160.10 [1].

Here, as plaintiff correctly points out, there are several triable issues of fact which preclude summary judgment, namely, [1] who is the informant? and [2] what steps did the police take to identify plaintiff as the perpetrator of the crimes he was ultimately charged with? Defendants argue that "[a]t the time of plaintiff's arrest, Officer Providence had good-faith belief, based on the information relayed by the victim informant to the [PSO] which dispatched the NYPD, that the plaintiff was the perpetrator that forcibly stole property from the victim informant by use of a dangerous weapon." However, defendants have not provided any evidence which supports this legal conclusion. Officer Providence does not remember the underlying incident. On this record, there is no witness testimony regarding the underlying event which would establish probable cause. Without such information, a reasonable person could conclude that plaintiff's warrant-less arrest was without probable cause.

It is unclear why the informant was not named in the accusatory instrument. A complaint that contains allegations made on information provided by someone other than the deponent must name the source of the deponent's allegations (see People v Hussain, 25 Misc 3d 1245(A) [Sup Ct, Bx Co 2009] citing People v. James, 4 NY2d 482 [1958]). Even if the informant was named, "while information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest, the failure to make further inquiry when a reasonable person would have done so may be evidence of lack of probable cause" (Carlton v. Nassau County Police Dept., 306 AD2d 365 [2d Dept 2003] [internal citations omitted]).

Further, there was no evidence presented in support of a positive identification of the plaintiff. Indeed, there is no information about what efforts were made by the NYPD to verify whether or not plaintiff attempted to rob the informant. The Plaintiff was held for six days in what he describes as an ordeal. He was charged with a felony instrument which contained hearsay.

In light of the multitude of genuine issues of fact, defendants have wholly failed to establish probable cause as a matter of law. Therefore, the motion to for summary judgment dismissing plaintiff's false arrest, false imprisonment and malicious prosecution claims would be denied on the merits, even if the motion was timely.

As for defendants' remaining arguments, the Court declines to address them, since the motion is untimely, and defendants have not demonstrated good cause of bringing the instant motion nearly a year and a half after notice of trial was filed untimely (CPLR § 3212 [a]; Brill v. City of New York, 2 NY3d 648 [2004]).

Accordingly, the motion is denied in its entirety.

In accordance herewith, it is hereby:

ORDERED that defendants' motion for summary judgment is denied in its entirety.

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the decision and order of the Court.

Hon. Lynn R. Kotler, J.C.C.