Roosevelt
Terry, Plaintiff,
against
Metro-North Commuter Railroad, METROPOLITAN
TRANSPORTATION AUTHORITY, POLICE OFFICER ADAM JUTZE, and THE
CITY OF NEW YORK, Defendants.
|
155553/13
For plaintiff:
Richard J. Katz, LLP
By: Richard J. Katz, Esq.
80 Broad St
New York, New York 10004
212-233-1515
For defendants:
James B. Henly, Esq., General Counsel Metro-North Commuter
Railroad
By: Jesse A. Raye, Esq.
347 Madison Ave 19th Fl
New York, New York 10017
212-340-2538
Michael D. Stallman, J.
In this action, defendants Metro-North Commuter Railroad (Metro-North),
Metropolitan Transportation Authority (MTA), and Officer Adam Jutze move for
summary judgment dismissing the plaintiff's complaint as against them. Plaintiff opposes
the motion.
BACKGROUND
Plaintiff alleges that, on February 25, 2010, he was wrongfully arrested for
possession of explosives in front of the Metro-North station located at 101 East 125th
Street and Park Avenue. On March 9, 2010 a grand jury indicted plaintiff on one count
of criminal possession of a weapon in the first degree. (Penal Law § 265.04.)
According to plaintiff's records, on March 1, 2012, all charges were dismissed against
plaintiff, and on June 19, 2012, plaintiff was released from custody. (See Katz
Opp. Affirm. ¶ 15.) According to defendants' records, all charges were dismissed
against plaintiff on June 19, 2012. (Raye Affirm. ¶ 13, Ex. A.) Plaintiff brings this
[*2]action alleging violations of federal civil rights and
other state tort claims, sounding in (1) "wrongful arrest"; (2) "wrongful detainment and
imprisonment"; (3) negligent performance of duties; (4) negligent hiring, training, and
supervision; (5) "false and illegal imprisonment"; (6) negligent and malicious
investigation; and (7) malicious prosecution. (See Katz Opp. Affirm. Ex. B
[Complaint].) In a decision dated February 25, 2014, this Court dismissed the action as
against the City of New York.
The remaining defendants, MTA, Metro-North and Officer Jutze, move for
summary judgment on the grounds that there was probable cause for plaintiff's arrest,
plaintiff's claims are barred by applicable statute of limitations, defendants are not liable
for the actions of the District Attorney or the Department of Corrections. Defendant
Metro-North moves for summary judgment on the additional ground that it is a separate
entity from MTA and was not involved in plaintiff's arrest. Defendant Officer Jutze
moves for summary judgment on the additional ground that he has qualified immunity
from prosecution. Defendants also seek costs arguing that they have "incurred significant
expense, including the cost of preparation of this motion, for which the [d]efendants are
entitled to compensation." (Raye Affirm. ¶ 50.)
Plaintiff opposes the motion, arguing that there was no probable cause for
the arrest and the claims are not time-barred. Plaintiff argues that even if there was
probable cause to arrest, probable cause dissipated once a latent fingerprint on the
package was later identified as belonging to non-party Ronald Brito, who admitted under
questioning on February 28, 2012 that he built the alleged bomb, and then was arrested
and charged with criminal possession of a weapon in the third degree. (See Raye
Affirm. Ex. D.) Plaintiff also argues that defendants' cross claim for costs has no
merit.DISCUSSION
"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 demonstrate
the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d
320, 324 [1986].) If the movant fails to make such a showing, the motion must be
denied. (Id.) "Where the
moving party has demonstrated its entitlement to summary judgment, the
party opposing the motion must demonstrate by admissible evidence the existence of a
factual issue requiring a trial of the action or tender an acceptable excuse for his failure
to do so." (Zuckerman v City of New York, 49 NY2d 557, 560 [1980].)
Defendants have demonstrated prima facie entitlement to summary
judgment. Plaintiff's causes of action for false arrest, unlawful imprisonment, and
malicious prosecution must be dismissed because there was probable cause to arrest
plaintiff. Probable cause is a defense that completely defeats a claim for false or unlawful
arrest or imprisonment, and the claim of malicious prosecution also fails because of the
existence of probable cause. (See Arzeno v Mack, 39 AD3d 341, 341- 342 [1st Dept
2007].)
"[T]he arrest in question was based upon such grounds as would induce an
ordinarily prudent and cautious person, under the circumstances, to believe that plaintiff
had committed the [crime]' as a matter of law and the facts leading up to the arrest, and
the inferences to be drawn therefrom, were not in dispute." (Agront v City of New
York, 294 AD2d 189, 189 [1st Dept 2002] [internal citations omitted].) Here,
surveillance video from February 25, 2010 undisputedly shows plaintiff in a wheelchair
entering the station located at 101 East 125th Street with a package on his lap and
leaving the package in the waiting room area. (See Raye Affirm. Ex. A, C.)
Officer Keith Flood of the MTA police department inspected the package and found
[*3]that it contained material for making explosives,
which Bomb Squad Sgt. Coughlin confirmed. (See Raye Affirm. Ex. A.) As a
result of a canvas of the surrounding area, Officer Jutze found the plaintiff who fit the
description on the surveillance video. (See id.) Plaintiff was arrested and detained
for criminal possession of a weapon in the first degree. (See Raye Affirm Ex. A,
B at 19-20).
Moreover, on March 9, 2010 a grand jury indicted plaintiff. (See
Raye Affirm. Ex. A.) A grand jury indictment creates a presumption of probable
cause for plaintiff's continued prosecution and pretrial detention. (See Gisondi v
Town of Harrison, 72 NY2d 280, 284 [1988]; Abdul-Aziz v City of New York, 56 AD3d 291, 293 [1st
Dept 2008].) However, the presumption is rebuttable "by evidence that the indictment
was the product of fraud, perjury, the suppression of evidence by the police or other
police conduct undertaken in bad faith." (Marshall v Sullivan, 105 F3d 47, 55 [2d
Cir. 1996]; see also Abdul-Aziz, 56 AD3d at 293.) Here, plaintiff has failed to
rebut the presumption. "Inasmuch as there was probable cause for plaintiff's arrest, which
was not dissipated by events between the time of the arrest and the commencement of the
criminal proceeding, plaintiff's claim for malicious prosecution must also fail."
(Agront, 294 AD2d at 190.) Dismissal of charges is not a concession that an
arrest was made without probable cause. (See Colon v City of New York, 60
NY2d 78, 84 [1983].) "In any investigation [officers] are likely to encounter
discrepancies . . . . These matters may impair their ability to prove guilt beyond a
reasonable doubt at trial, but they generally have little bearing at preliminary stages
where the only relevant concern is whether there is sufficient evidence to show probable
cause to believe the defendant committed the crime." (Gisondi, 72 NY2d at 285.)
"Probable cause can exist even where it is based on mistaken information, so long as the
arresting officer acted reasonably and in good faith in relying on that information."
(Bernard v U.S., 25 F3d 98, 102 [2d Cir. 1994].) Here, there was sufficient
evidence to show probable cause on February 25, 2010 when plaintiff was arrested and
on March 9, 2010 when plaintiff was indicted by the grand jury, and plaintiff was
released once later evidence showed that there was no longer any reason to continue
prosecution against him. Moreover, defendants are not liable for the actions of the
District Attorney. "A [] complainant . . . furnishing information to law enforcement
authorities who are then free to exercise their own judgment as to whether an arrest
should be made and criminal charges filed, will not be held liable for false arrest or
malicious prosecution. Nor does identifying . . . the perpetrator of the crime, signing the
summons or testifying at trial give rise to tort liability." (Du Chateau v Metro-North
Commuter R.R. Co., 253 AD2d 128, 131 [1st Dept 1999] [internal citations
omitted].)
Plaintiff's civil rights claims must also be dismissed because there was
probable cause for the arrest. (See Grant v Barnes & Noble, 284 AD2d 238,
239 [1st Dept 2001] ["Since plaintiffs' 42 USC § 1983 causes for violation of their
civil rights are predicated exclusively on their legally untenable claims for false arrest
and malicious prosecution, the 42 USC § 1983 causes are also untenable and should
also have been dismissed."]; Singer v Fulton County Sheriff, 63 F3d 110, 119 [2d
Cir. 1995] [finding, "[t]here can be no federal civil rights claim for false arrest where the
arresting officer had probable cause"]; Rivera v City of New York, 2011 NY
Misc LEXIS 4629, 2011 WL 4537020,* 7 [Sup Ct, Kings County, Oct. 3, 2011, Index
No. 16519/07] [dismissing federal civil rights negligent hiring and retention claims
because police had probable cause to arrest and prosecute plaintiff].)
Plaintiff's causes of action of negligent investigation, negligent hiring,
training and supervision and all other negligence claims must also
be dismissed "because no cause of action for negligent investigation lies in
New York." (Medina v City of
New York, 102 AD3d 101, 108 [1st Dept 2012].) "It is well settled that New
York courts do not recognize claims for negligent or malicious investigation. A plaintiff
seeking damages for an injury resulting from a wrongful arrest and detention may not
recover under broad principles of negligence *** but must proceed by way of the
traditional remedies of false arrest and imprisonment." (Johnson v Kings County Dist.
Attorney's Off., 308 AD2d 278, 284-285 [2d Dept 2003] [internal quotation marks
omitted].) Moreover, "where an employee is acting within the scope of his or her
employment, thereby rendering the employer liable for any damages caused by the
employee's negligence under a theory of respondeat superior, no claim may proceed
against the employer for negligent hiring or retention." (Karoon v New York City Tr.
Auth., 241 AD2d 323, 324 [1st Dept 1997].) Here, it is undisputed that Officer Jutze
was acting within the scope of his employment.
Plaintiff has not raised any triable question of fact sufficient to defeat
defendants' motion for summary judgment, therefore defendants' motion is granted.
Finally, defendants' cross claim for costs is denied, to the extent that
defendants are seeking costs of their motion. (CPLR 8202). Plaintiff's claims are not
manifestly frivolous and unless a statute or contract shifts costs to the non-prevailing
party, each side bears its own costs. (See 22 NYCRR 130-1.1; Coby Elecs. Co., Ltd. v Toshiba
Corp., 108 AD3d 419, 421 [1st Dept 2013] ["[T]he prevailing party . . . is not
entitled to attorneys' fees and costs, as there is no statute, agreement or court rule
authorizing that award."])
The Court need not address plaintiff's or defendants' remaining
contentions.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendants Metro-North,
MTA, and Officer Jutze is granted and the complaint is dismissed in its entirety as
against said defendants, with costs and disbursements to said defendants as taxed by the
Clerk of the Court, and all cross claims against these defendants are dismissed and the
Clerk is directed to enter judgment accordingly in favor of said defendants; and it is
further
ORDERED that defendants' cross claim for costs is denied.
Dated: October 22, 2014
New York, New York
ENTER:
/s/
J.S.C.