Plaintiff commenced the instant action by filing a summons with complaint against Defendants, City of New York, Police Officer Corey Green and NYPD Officers John and Jane Doe 1 through 10. Plaintiff brings nine (9) claims: (i) unlawful stop, search and seizure; (ii) false arrest/imprisonment; (iii) malicious abuse of process; (iv) unreasonable force; (v) failure to intervene; (vi) assault & battery; (vii) deprivation of federal rights (28 USC § 1983); (viii) negligent hiring, training, supervision, or retention; and (ix) municipal liability for the aforesaid claims. Defendants interposed an Amended Answer and asserted numerous affirmative defenses along with a denial of most of the Plaintiff's allegations. Both parties submitted to depositions and thereafter Plaintiff filed a Note of Issue and Defendant moved by Notice of Motion for Dismissal and Summary Judgment dismissing the action.

On or about February 14, 2018, Plaintiff arrived at the Gansevoort Hotel with his friend to drop his friend off at the hotel. (Def. Ex. F at 20-23). Plaintiff's car was stationary in front of a no parking zone when he dropped off his friend. (Pl. affm. ¶ 10; see also Def Ex. I). After his [*2]friend exited the vehicle with his belongings, Plaintiff "sat there for like five minutes" because he was "on [his] phone." (Def. Ex. F at 23-24).

At this time, Defendant-Officer Corey Green was nearby on patrol in the area in an unmarked police vehicle and plain clothes. (Def. Ex. G at 23-25; Def. Ex. F at 23-24). Upon seeing Plaintiff's car stationary in front of the hotel's no standing zone and Plainitf beginning to drive away, Defendant effectuated a stop of Plaintiff's vehicle. (Def. Ex. G at 30, 37; Def. Ex. F at 23-24). After pulling over Plaintiff, Defendant exited his vehicle and approached Plaintiff's vehicle. (Id.). Upon approaching the vehicle, Defendant requested Plaintiff's driver's license and Plaintiff lowered his window. (Def. Ex. G at 37-38; Def Ex. F at 24-25) Upon lowering his window, Defendant-Officer Green explains he smelled what he perceived to be "crystal meth." (Def. Ex. G at 38). Plaintiff was then asked to exit his vehicle, which he did without resistance. (Def. Ex. G at 41; Def Ex. F at 24-25).

Upon Plaintiff's exit from the vehicle, Defendant observed a loose Xanax pill on the car's dashboard. (Def. Ex. G at 41-42; see also, Def. Ex. K, L, P). Defendant then conducted a search of the vehicle and recovered a pipe with "residue." (Id.). At his deposition, Defendant does not recall where in the car he found the pipe; however, in his affidavit in support of the criminal information Defendant swore "I took one pipe containing methamphetamine residue from the driver's side floor." (Def. Ex. G at 43, compare, Def. Ex. K). Plaintiff generally denies any contraband in his vehicle and stated at deposition he did not recall if any contraband was recovered from his car. (Def. Ex. F at 29-30; Pl. Counter Statement of Facts ¶ 8; Pl. affm. ¶ 11).

In addition to contraband, Defendant claims Plaintiff handed him his wallet and therein, Defendant found a fake identification card and fake credit card (Pl. Ex. F at 25; Pl. Ex. G at 41-42).

Plaintiff was thereafter placed under arrest; he was handcuffed and placed in the back of a police vehicle. (Complaint ¶ 24; Def. Ex. F at 19-20; Def Ex. G at 23, 26, 30). Plaintiff was then brought to the precinct where he was photographed, finger-printed, and searched. (Def. Ex. G at 30-31). Plaintiff was then charged with possession of a forged instrument in the second degree (Penal Law § 170.25) and possession of a controlled substance in the seventh degree (Penal Law § 220.03).

Throughout the Plaintiff's encounter with the officers in this incident, no one hit him, struck him, or kicked him—no force was used by the officers to effectuate the arrest of the Plaintiff. (Def Exhibit F at 31-32). The Plaintiff did not suffer any kind of physical injuries as a result of this incident (Def Exhibit F, at 36).

Ultimately, the criminal complaint filed against Plaintiff was dismissed on speedy trial grounds. (Def. Ex. O).

Motion to Dismiss Standard

CPLR 3211 (a) (7)

On a CPLR 3211 (a) (7) motion to dismiss, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] ["Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail"] [citation omitted]). However, "allegations [*3]consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (David v Hack, 97 AD3d 437, 438 [1st Dept 2012] [internal quotation marks and citation omitted]). Likewise, "dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017] [citation omitted]).

Summary Judgment Standard

The proponent of a summary judgment motion has the initial burden of establishing a prima facie showing that it is entitled to summary judgment as a matter of law, providing sufficient evidence that no material issues of triable fact exist (Trustees of Columbia Univ. in the City of NY v D'Agostino Supermarkets, Inc., 36 NY3d 69, 74 [2020]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once this burden has been met, the burden shifts to the opposing party to

"produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [it] rests [its] claim or [to] demonstrate acceptable excuse for [its] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]).

The function of the summary judgment procedure is "issue-finding," not "issue-determination" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012] [internal quotation marks and citation omitted]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Stukas v Streiter, 83 AD3d 18, 23 [2d Dept 2011] [internal quotation marks and citation omitted]). When considering a motion for summary judgment, the "facts must be viewed in the light most favorable to the non-moving party" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014] [internal quotation marks and citation omitted]; De Lourdes Torres, 26 NY3d at 763).

A. Plaintiff's state law claims

Defendants argue that plaintiff's state law tort claims should be dismissed as untimely because plaintiff failed to serve his notice of claim within 90 days and to file the summons and complaint within one year and 90 days after the accrual of his claims as provided by New York's General Municipal Law § 50-e (1) (a) and General Municipal Law § 50-i (1), respectively. Defendants assert that since plaintiff was arrested on February 14, 2018, his time to serve a notice of claim expired on May 16, 2018, at the very latest. Plaintiff served the notice of claim on January 16, 2019—eight months after the latest alleged expiration date. Defendants also insist that the action is time-barred because plaintiff filed the summons and complaint on January 17, 2020, seven months after the alleged expiration of the statute of limitations.

Plaintiff objects and argues that a notice of claim is not required to pursue constitutional causes of action under 42 USC § 1983 or civil rights actions pursuant to the New York State Constitution. Additionally, plaintiff maintains that his 42 USC § 1983 claims brought in New York's state court are not time-bared because they are subject to New York's general personal [*4]injury statute of limitations, which is three years under CPLR § 215 (5).

Plaintiff also challenges defendants' assertion that plaintiff's claim for malicious abuse of process accrued when the criminal complaint was signed and, instead, argues that this cause of action accrued when the prosecution of the claim was terminated in his favor. Plaintiff insists that this cause of action is timely, where the notice of claim was served on January 16, 2019, and the complaint was filed on January 17, 2020, because the criminal case underlying the instant action was dismissed on October 31, 2019.

Further, plaintiff concedes that he omitted the malicious prosecution claim from the complaint as defendants point out in a footnote (NYSCEF Doc No. 13, affirmation of defendants' counsel at 8, n 5).^[FN1] Nonetheless, plaintiff maintains that he properly pleaded a cause of action for malicious prosecution because he interposed the claim in his notice of claim; identified the relevant state and federal provisions in the complaint; and alleged the elements of malicious prosecution under the third cause of action labeled "Malicious Abuse of Process." Plaintiff also argues that malicious abuse of process and malicious prosecution claims are interchangeable. Plaintiff insists that for these reasons a cause of action for malicious prosecution can be discerned from the four corners of the complaint.

i. Malicious prosecution claim

As an initial matter, the court rejects plaintiff's argument that he properly interposed a malicious prosecution claim. To state a cause of action for malicious prosecution, "a plaintiff must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). The elements of a cause of action for malicious abuse of process, on the other hand, consist of "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 [1984] [citation omitted]). The causes of action for malicious prosecution and malicious abuse of process, while sometimes conflated, are two distinct causes of action with distinguishable elements (Taylor v City of New York, 2022 WL 744037, *20, 2022 US Dist LEXIS 43520, *56 [SDNY, Mar. 11, 2022, No. 19 Civ. 6754 (KPF)] [reasoning that while the "torts of abuse of process and malicious prosecution are closely related . . . there is a key distinction" in that malicious prosecution concerns the improper issuance of process, whereas "the gist of abuse of process is the improper use of process after it is regularly issued"] [internal quotation marks and citation omitted]; Bright View Trading Co., Inc. v Park, 2004 WL 2071976, *5 [SD NY Sept. 16, 2004, 03 CIV. 2330 (HB)] ["Unlike a malicious prosecution claim, abuse of process does not require a prior favorable determination . . ."]; Metromedia, Inc. v Mandel, 21 AD2d 219, 222 [1st Dept 1964], affd 15 NY2d 616 [1964] ["The distinctive nature of an action for malicious abuse of process, as compared with an action for malicious prosecution, is that it lies for the improper use of process after it has been issued, not for maliciously causing process to issue"] [internal quotation marks and citation omitted]).

Looking at the four corners of the complaint (Guggenheimer, 309 AD2d at 275) and [*5]according plaintiff "the benefit of every possible favorable inference," (Taxi Tours Inc. v Go New York Tours, Inc., 41 NY3d 991, 993 [2024]), plaintiff has not stated a cause of action for malicious prosecution because he failed to plead an essential element of a malicious prosecution claim—that the criminal proceeding terminated in his favor. Further, plaintiff simply failed to include a claim for malicious prosecution, and none of the enumerated causes of action taken as a whole sufficiently state the elements of this claim.

Moreover, plaintiff pleaded that defendants "lied in the subsequent investigation in order to obtain collateral objectives outside the legitimate ends of the legal process" (NYSCEF Doc No. 1, complaint, ¶ 1). The collateral objective element is "the crux of a malicious abuse of process claim" (Taylor v City of New York, 2022 WL 744037, at *20 [SD NY, Mar. 11, 2022, 19 CIV. 6754 (KPF)] [citations omitted]). Plaintiff enumerated a cause of action for malicious abuse of process in the complaint, including the crucial collateral objective element. Accordingly, plaintiff has adequately stated a claim for malicious abuse of process but failed to make out a claim for malicious prosecution. Since the elements of the federal and state causes of action for malicious prosecution are substantially the same and the analysis is identical, plaintiff has also failed to state a cause of action for malicious prosecution pursuant to 42 USC §1983 (Crawford v City of New York, 477 Fed Appx 777, 779 [2d Cir 2012]; citing Boyd v City of New York, 336 F3d 72, 75 [2d Cir 2003]; see Gonzalez v Hahl, 850 Fed Appx 127, 128 [2d Cir 2021]).

ii. Notice of claim

General Municipal Law § 50-i (1) (a), provides, in relevant part, that

"[n]o action . . . shall be prosecuted or maintained against a city . . . for personal injury . . . alleged to have been sustained by reason of the negligence or wrongful act of such city . . . or of any officer, agent or employee thereof . . . unless . . . a notice of claim shall have been made and served upon the city" (id.). Under General Municipal Law § 50-e, the Notice of Claim must be served "within ninety days after the claim arises" (id.).

The Notice of Claim requirement is a condition precedent for bringing a personal injury action against a municipality (Hardy, 164 F3d at 794; Evans v City of New York, 2023 WL 2574994, at *6 [SD NY 2023]). As such, "[n]otice of claim requirements are construed strictly by New York state courts . . . [and] [f]ailure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action" (Hardy v New York City Health & Hosp. Corp., 164 F3d 789, 793-794 [2d Cir 1999] [internal quotation marks and citations omitted]; Rich v New York, 21 CIV. 3835 (AT), 2022 WL 992885, at *9 [SDNY Mar. 31, 2022]; Clark, 2018 WL 4372671 at *5).

Actions against the City of New York "to recover for Federal and State civil rights violations are not subject to notice of claim requirements in General Municipal Law § 50-i" (Liu v NY City Police Dept, 216 AD2d 67, 69 [1st Dept 1995] [plaintiff alleged "that the revocation of his pistol license was discriminatorily based on his Chinese national origin. . ."], cert denied 517 US 1167 [1996]; see Felder v Casey, 487 US 131, 140 [1988]. However, "the requirement applies to torts, including constitutional torts, asserted against the City" (Clark v City of New York, 2018 WL 4372671, at *5 [SD NY 2018]; Pratt v Indian Riv Central School Dist, 803 F Supp 2d 135, 146 [ND NY 2011] ["[N]otice-of-claim provisions of the General Municipal Law § 50—i are applicable to a cause of action for 'constitutional torts' in violation of the New York [*6]State Constitution" [citation omitted]). The courts have consistently dismissed state law claims for false arrest; false imprisonment; assault; battery; illegal search and seizure; excessive force; failure to intervene; malicious prosecution; malicious abuse of process; and negligent hiring, retention, training, and supervision as untimely where the notice of claim was served more than ninety days from date accrual of the claim (Jaime v City of New York, 41 NY3d 531, 543 [2024]; Ortiz v City of New York, 199 AD3d 422 [1st Dept 2021]; Guillen v City of New York, 2023 WL 2561574, at *13 [SD NY 2023]; Chepilko v City of New York, 2022 WL 4554961, at *3 [SD NY 2022]; Minus v Spillane, 2019 WL 6498258, at *3 [SD NY 2019]; Matthews v City of New York, 889 F Supp 2d 418, 449 [ED NY 2012]).

Here, plaintiff's claims for false arrest and false imprisonment accrued upon his release from custody on February 15, 2018 (see Bumbury v City of New York, 62 AD3d 621, 621 [1st Dept 2009]; Nunez v City of New York, 307 AD2d 218, 219 [1st Dept 2003]; Jones v City of New York, 2016 WL 1322443, at *5 [SD NY 2016]); whereas his claims for unlawful search and seizure; excessive force; assault and battery; negligent hiring, training, retention and supervision; and failure to intervene accrued when he was arrested on February 14, 2018 (Jorge v City of New York, 220 AD3d 593, 593 [1st Dept 2023] [claim for assault accrued at the time of the arrest]; McQueen v City of New York, 209 AD3d 469, 470 [1st Dept 2022] [negligent hiring and supervision claims accrued on the date of the arrest]; Roundtree v City of New York, 2018 WL 443751, at *3 [SD NY 2018] [claim for failure to intervene accrued when it occurred]; McClanahan v Kelly, 2014 WL 1317612, at *4 [SD NY 2014] [claim for unlawful search and excessive force accrued when plaintiff was subjected to an unlawful search and excessive force]; Singleton v City of New York, 632 F2d 185, 191 [2d Cir 1980] ["[A] claim for assault accrues at the time of the assault . . . "]; Steiner v City of New York, 920 F Supp 333, 342 [ED NY 1996] ["New York General Municipal Law § 50—e applies to supplemental state claims in § 1983 actions."] [citation omitted]).

Plaintiff does not contest that the latest possible date to serve a notice of claim for these state claims was May 16, 2018, and that he served his Notice of Claim more than ninety days after these actions accrued. For this reason and the reasons stated above, his state tort claims for false arrest and false imprisonment; unlawful search and seizure; excessive force; assault and battery; negligent hiring, training, retention and supervision; and failure to intervene are dismissed.

Addressing plaintiff's malicious abuse of process claim, this cause of action accrues when "the last of the [underlying] proceedings . . . [is] concluded" (Sanchez v Ehrlich, 2018 WL 2084147, at *9 [SD NY 2018], citing Benyo v Sikorjak, 50 AD3d 1074, 1077 [2d Dept 2008]; Torpey v Biagini, 2020 NY Slip Op 31878 [U], * 9 [Sup Ct, Orange County 2020] ["Upon the vacation or termination of the abused process — if not sooner but certainly no later — the plaintiff's cause of action for abuse of process accrued."]; Dobies v Brefka, 263 AD2d 721, 723 [3d Dept 1999] [holding that although the Court of Appeals has held in the context of a Court of Claims Act § 10 action that for an abuse of process claim to accrue, there is no need to await the termination of the action in the plaintiff's favor, the abuse of process claim in Dobies would not have been actionable until the proceeding ended because plaintiff would not have been able to claim he sustained an unjustified injury until the proceeding was over]).

Here, plaintiff's claim malicious abuse of process accrued, if at all, when the complaint against plaintiff was dismissed on October 31, 2018, since plaintiff would not have been able to claim he was unjustifiably harmed until the criminal matter concluded. Thus, plaintiff's state [*7]claim for malicious abuse of process is not time-barred by the untimely service of the Notice of Claim and cannot be dismissed on this ground (see Ferrick v City of New York, 111 AD2d 113, 114 [1st Dept 1985] [deeming a premature Notice of Claim supporting a malicious prosecution claim timely to avoid "exalt[ing] form over substance"]).

iii. Statute of limitations

Under the General Municipal Law, state law claims "against municipalities and their employees must be 'commenced within one year and ninety days after the happening of the event upon which the claim is based'" (Columna v City of New York, 2022 WL 767103, at *7 [SD NY 2022], citing General Municipal Law 50-i [1] [c]; Roland v City of New York, 2024 WL 2832691, at *14 [SD NY 2024]; Elliott v City of New York, 723 F Supp 3d 249, 260 [SD NY 2024]; Minus v Spillane, 2019 WL 6498258, at *3 [SDNY 2019] [citation omitted]; see Rentas v Ruffin, 816 F3d 214, 226 [2d Cir 2016]).^[FN2] The statute of limitations for these actions is strictly construed (Galloway v New York City Police Dept., 7 AD3d 444 [1st Dept 2004]).

Despite plaintiff's contentions, the three-year statute of limitations pursuant to 42 USC § 1983 does not apply to plaintiff's state law tort claims. Here, plaintiff filed the complaint on January 17, 2020, seven months after the statute of limitations expired in his state claims for false arrest and false imprisonment; unlawful search and seizure; unreasonable force; assault and battery; negligent hiring, training, retention and supervision; and failure to intervene. For this reason, these claims are dismissed for the additional reason that they are time-barred by the applicable statute of limitations.

However, plaintiff's claim for malicious abuse of process prosecution is not subject to dismissal on this basis because the statute of limitation for these claims did not expire until January 31, 2020.

iv. Summary Judgment

To the extent any state law claims survive the notice of claim, statute of limitations, and failure to state a claim issues, they must be dismissed as Defendants are entitled to summary judgment. Similarly, Plaintiff's federal claims must also be dismissed as Defendants are entitled to summary judgment.

Plaintiff alleges claims against the Defendants of, inter alia, false arrest, malicious abuse of process, deprivation of rights, and unlawful stop, search, and seizure against Defendants in connection with his arrest and the search of his vehicle.

As it relates to false arrest, deprivation of rights, and unlawful, stop, search and seizure, the Fourth Amendment of the US Constitution provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The warrant requirement is rather limited under contemporary jurisprudence as the [*8]presence of probable cause, in most scenarios, excepts an officer's need for a warrant to effectuate a stop (a/k/a seizure) or search. It is well settled that, where an officer observes an individual commit a traffic violation, they are permitted to make a stop of the vehicle. (See e.g., Jimenez v City of Cohoes Police Dep't, 2024 US App LEXIS 8608, 2024 WL 1551149 [2d Cir 2024][Holding the district court did not err in concluding that plaintiff failed to state a § 1983 claim and false arrest claim based on the vehicle stop because the officer observed plaintiff committed a traffic violation; thus the subsequent traffic stop and arrest did not violate plaintiff's rights under the Fourth Amendment]).

Under New York Law, in order to establish a claim for false arrest and false imprisonment, a plaintiff must prove the following four elements: (1) the defendant intended to confine him/her; (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 (Broughton v. State of New York, 37 NY2d 451, 456 [(1975]). The elements of a claim of false arrest under § 1983 "are substantially the same as the elements of a false arrest claim under New York law." (Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Probable cause constitutes a complete defense to a claim of false arrest under both § 1983 and New York law.

Probable cause is "not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" by the person to be arrested (People v. McRay, 51 NY2d 594, 602 [1980][citations omitted]).

Here, Plaintiff did in fact commit a traffic violation, as he himself admits he stood idle in the no parking zone in front of the hotel. The Rules of New York City section 4-08 provides, in pertinent part, "When parking is prohibited by signs or rules, no person shall stop a vehicle, attended or unattended, except temporarily for the purpose of and while expeditiously receiving or discharging passengers or loading of unloading property to or from the curb." (34 RCNY § 4-08[A][4]). While Plaintiff's counsel argues that this is a minor crime, that is of no import in the analysis. The Courts have routinely held that arrests and or stops made on the basis of traffic infractions — even if State Law precludes the arrest for such a violation — do not violate a constitutional right. (See United States v Bernancet, 724 F3d 269, 276-277 [2d Cir 2013]). Here, the officers observed Plaintiff's car sit idle for at least five minutes by his own admission after his friend left and thus after he was "discharging passengers." This direct observation of a traffic infraction supplied Defendants with probable cause necessary to stop Defendant's vehicle.

Following the stop, it is undisputed that Defendants then approached Plaintiff's vehicle. Upon arriving at Plaintiff's vehicle, it is undisputed that his window was at least cracked open. Defendants claim to have smelled narcotics from the window of the vehicle and Plaintiff denies same. Further, Defendants claim that in "plain view" there was a Xanax tablet on the car's dashboard. Plaintiff submits a general denial. His denials as to both the smell of narcotics and the placement of the Xanax tablet do not suffice to create a triable issue of fact necessary to escape summary judgment. (Redmond v City of White Plains, 77 AD3d 902, 902 [2d Dept 2010]).

In Redmond, the Second Department affirmed the Supreme Court's award of summary judgment, stating "the appellant failed to raise a triable issue of fact. The few, minor discrepancies in the parties' accounts of the events which he cites were insufficient for this [*9]purpose." (Id.). Here, like Redmond, there are "minor discrepancies" between the parties' accounts; however, these discrepancies are not sufficient to resist summary judgment because Plaintiff did not produce any evidence to support the inference that there was a triable issue as to either the odor of contraband or the presence of a Xanax tablet on his dashboard. Indeed, at his deposition, Plaintiff claimed he could not recall if anything was recovered from his vehicle. The failure to recall does not create an issue of fact sufficient to resist summary judgment. (See e.g., Kowalyk v Wal-Mart Stores, Inc., 187 AD3d 1539, 1540 [4th Dept 2020]["Defendant's claimed inability to recall the circumstances of the accident 'is not affirmative proof that the event did not happen . . . [and is] thus insufficient to create an issue of fact.'"] citing, Baviso v Doldan, 175 AD3d 891, 893 [4th Dept 2019]["Gray's testimony about her inability to recall the happening of an event is not affirmative proof that the event did not happen. Gray's testimony that she did not recall Sarah Doldan's warning was thus insufficient to create an issue of fact."]).

Upon seeing the "loose" Xanax tablet in plain view and the odor of contraband, the officers had probable cause to conduct a search of the entire vehicle including compartments pursuant to the "automobile exception." The "automobile exception" provides, "that police officers may conduct a warrantless search of a motor vehicle without violating the Fourth Amendment when the officers have probable cause to believe that a vehicle contains contraband." (United States v Arbalarz, 1999 US Dist LEXIS 16883, at*16, 1999 WL 980172 [SDNY 1999]; see also, United States v Johns, 469 US 478 [1985]). Further, "plain odor" may justify a warrantless search of a container. (See United States v. Haley, 669 F.2d 201, 203-204, n. 3 [4d Cir 1982] cert. denied, 457 U.S. 1117 [1982]). Accordingly, both independently and collectively the "loose" Xanax tablet on the dashboard and odor of contraband triggered the automobile exception such that the Defendants were acting constitutionally when they searched Plaintiff's vehicle as both the tablet on the dashboard and the odor supplied probable cause to believe that there was contraband in the vehicle. After the search, Defendants recovered and vouchered a "pipe with residue." All of these factors demonstrate there was sufficient probable cause to arrest Plaintiff for both possession of a controlled substance and his stop.

While the Plaintiff asserts he was not the only one in the vehicle to show that there did not exist probable cause to arrest him for the drug related offenses, this argument is unavailing. First, the evidence shows that Plaintiff was exercising dominion and control over the vehicle when it was stopped and the contraband was recovered. (See Brown v Sears Roebuck & Co., 297 AD2d 205, n.5 [1st Dept 2002]["Plaintiff's argument that probable cause was lacking since no evidence existed of his "actual possession" of the computer to support the larceny and stolen property charges is also rejected. Plaintiff's possession of the computer and credit card number for purposes of these crimes was sufficiently shown by his exercising dominion or control over them during the subject transaction."]). Further, the argument presupposes that independent probable cause is needed for an arrest of every offense — this would turn well-settled law on its head. (Harris v City of New York, 2017 US Dist LEXIS 206293, at *15 [SDNY 2017]["Officers need not have probable cause for the specific offense with which a plaintiff was charged; a false arrest claim fails if there was probable cause to arrest the plaintiff for any offense."] citing, Davenpeck v Alford, 543 US 146 [2004][Rejecting the "closely related offense" argument for probable cause]; see also, Jaegly v Couch, 439 F3d 149 [2d Cir 2006]).

Thus, the Plaintiff cannot assert any claims of unlawful search or seizure, as the search and seizure were lawful and reasonable, or false arrest as the police had probable cause for the arrest and charge (see Marreor v City of New York, 33 AD3d 556, 557 [1st Dept [*10]2006]["Moreover, the existence of probable cause to arrest, which is the dispositive issue herein, constitutes a complete defense to the claims of false arrest and unlawful imprisonment."]).

As for Plaintiff's cause of action for malicious abuse of process, it must be dismissed because Plaintiff "'cannot demonstrate the elements of abuse of process' without 'relying on an inference from a [purported] lack of probable cause.'" (Carwell v. City of NY, No.21-CV-480 (VEC), 2023 U.S. Dist. LEXIS 13822, at *9 [SDNY Jan. 26, 2023]). Even affording the Plaintiff's claim the greatest latitude, it essentially relies heavily "on an inference from a [purported] lack of probable cause."

Accordingly, the claims for false arrest, false imprisonment, and unlawful stop, search and seizure, deprivation of federal rights, and malicious abuse of process are dismissed.^[FN3]

Turning to the claim of negligent hiring, training, supervision, or retention, it is well-settled that, "where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training" (S.W. v Catskill Regional Med. Ctr., 211 AD3d 890, 891 [2d Dept 2022]). Here, the evidence on this motion firmly establishes Defendant Green was operating within the scope of his employment. As undisputed, Defendant was working for law enforcement officer on patrol when the stop and arrest were made. While his "beat" may have been looking for felonies such as robberies, that does not negate the fact that Defendant was working as a police officer patrolling when he observed Plaintiff's traffic violation that lead to the arrest and prosecution in this matter.

The only exception to this rule is where "the injured plaintiff seeks punitive damages from the employer based upon alleged gross negligence in the hiring or retention of the employee." (Talavera v Arbit, 18 AD3d 738, 738-739 [2d Dept 2005]). Here, there is no allegation of gross negligence in the Complaint, nor is there any facts produced that would create a triable issue of fact as to gross negligence. Accordingly, this claim is also dismissed.

As to the claims of unreasonable force and assault and battery, "Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness." (Broome v City of New York, 2018 NY Misc LEXIS 2450, at *24-25 [Sup Ct, NY County 2018] citing Combs v City New York, 130 AD3d 862, 864 [2d Dept 2015]; see also, Shamir v City of New York, 804 F3d 553, 556 [2d Cir 2015]["[T]he use of excessive force renders a seizure of the person unreasonable and for that reason violates the Fourth Amendment."]). Notably, "a de minimis use of force will rarely suffice to state a Constitutional claim." (Romano v. Howarth, 998 F.2d 101 [2d Cir 1993]).

Defendant argues the use of handcuffs alone does not support an unreasonable use of force or assault and battery claim in the instance of a lawful arrest. Plaintiff argues that there are issues of fact as to use of force — this Court disagrees. The Plaintiff's deposition is devoid of any mention of any use of force except for him being handcuffed, and even in such an explanation he does not raise any issues that the use of handcuffs was excessive or required any more force than one would need in the usual cause of effectuating a lawful arrest.

"A police officer [ . . . ] in the course of effecting [ . . . ] an arrest [ . . . ] of a person whom he or she reasonably believes to have committed an offense, may use physical force when [*11]and to the extent he or she reasonably believes such to be necessary to effect the arrest[.]"(NY Penal Law § 35.30). "The only physical force alleged is the use of handcuffs in the course of arresting the plaintiff. The use of handcuffs for the purpose of effecting an arrest is reasonable as a matter of law." (Christian v City of New York, 2021 NY Misc LEXIS 43267, at *9-10 [Sup Ct, Bx County 2021] citing Esmont v. City of NY, 371 F. Supp. 2d 202, 214-15 [E.D.NY 2005]). Since the City defendants had probable cause for the arrest and used only reasonable force in effectuating the arrest with the use of handcuffs, Defendants are entitled to summary judgment. Accordingly, the claims for unreasonable force and assault and battery are dismissed.

On a claim for failure to intervene, a plaintiff must allege "evidence that the reliance of one police officer upon the information provided by another officer violated the plaintiff's statutory or constitutional rights" (see Braxton v City of New York, 178 AD3d 1000, 1002, 115 N.Y.S.3d 408 [2d Dept 2019]). "A non-intervening police officer becomes liable when 'such failure permitted fellow officers to violate ... clearly established statutory or constitutional rights of which a reasonable person would have known'" (Berg v Kelly, 897 F3d 99, 113 [2d Cir 2018][internal citations omitted]). A police officer "'has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers'" (Ricciuti v NYC Transit Authority, 124 F3d at 129 [2d Cir 1997][internal citation omitted]).

Here, as discussed above, the Plaintiff's arrest was not a violation of his rights. The Officers had probable cause to effectuate the stop, search, and arrest based upon the facts described above. Accordingly, Plaintiff, as a matter of law, cannot show a failure to intervene because there was no constitutional right that was violated that would create the "affirmative duty" upon other officer's to intervene. Further, Plaintiff has not named more than office on the face of his complaint. Thus, this claim is also dismissed.

Finally, as to the Monell claim for municipal liability, to hold a municipality liable under section 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy (see Monell v New York City Dept. of Social Servs., 436 US 658, 694 [1978]; see also Vargas v City of New York, 105 AD3d 834 [2d Dept 2013]). Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself (see Dwares v City of New York, 985 F2d 94, 100 [2d Cir. 1993]).

Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of arresting people without probable cause or fabricating evidence. Rather, Plaintiff merely makes conclusory allegations without any detailed factual support, which is plainly insufficient (see Ashcroft v. Iqbal, 129 S. Ct. 1937 [2009]). In any event, as discussed above, there was no violation of Plaintiff's Constitutional rights as there was probable cause to arrest him. Accordingly, this claim must also be dismissed.

For the reasons stated above, Defendant is entitled to summary judgment and, accordingly it is hereby:

ORDERED, that Defendants' Motion for Dismissal and Summary Judgment is GRANTED; and it is further

ORDERED, that Plaintiff's Complaint is DISMISSED WITH PREJUDICE; and it is further

ORDERED, that Clerk is directed to enter judgment in favor of Defendants.

This constitutes a Decision and Order of this Court.