]; US v Ortiz, 943 FSupp2d 447, 458 [SDNY 2013] ["With respect to Montañez, the government argues that because she was the registered tenant of the apartment where the gun was found, the officers had probable cause to arrest her based on a theory of constructive possession. Sakharoff sued the City of Boca Raton and several police officers for false arrest and false imprisonment. at 366). It is well settled that "public policy bars claims alleging intentional infliction of emotional distress against governmental entities." The Convicted Murderer With An Airtight Alibi. "]; Morgan v City of New York, 32 AD3d 912, 914-915 [2d Dept 2006] ["The complaint states a cause of action for violation of the decedent's Fourth Amendment rights pursuant to 42 USC § 1983, alleging both an unreasonable seizure and confinement of the person in the absence of probable cause."]). A police officer only needs to prove reasonable suspicion to detain someone for a short amount of time and determine probable cause to arrest someone. How Can We Help? "]; Walczyk v Rio, 496 F3d 139, 155-156 [2d Cir 2007] ["Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause."]). Thus, even in a public space control and dominion can be establish when there is evidence the defendant lived in an apartment, had a key to it, and frequented the same (Casanova at 743—44), or where the defendant is in close proximity to contraband stored in a location with limited access (People v Whitehead, 159 AD2d 741, 742 [2d Dept 1990] ["The jury could reasonably infer from the evidence that the defendant Donny Smallwood, the manager of the grocery store in which the fireworks were found, exercised sufficient dominion and control to be deemed in constructive possession of the fireworks, and that the defendant Artie Whitehead, an employee found in the grocery store, was also in constructive possession of the fireworks that were situated next to or near her in a Plexiglas-enclosed area to which no customers had access" (internal citations omitted).]). 6. For the third year in a row the number of exonerations in the United States has hit a record high. If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.) Specifically, the City submits a search warrant dated February 8, 2012, and signed by Judge Ann Donnelly. The police also arrested Henry. $3.1 Million Awarded in Florida False Arrest, Malicious Prosecution Case Loaded on Oct. 24, 2017 by A A Filed under: Injury -- Misc. In addition, unlike Memoli, there is no allegation here that the Apartment was regularly used for criminal activity. The City submits a certificate of disposition which indicates that the charges against plaintiff were dismissed by ACD. When drugs or contraband are not found directly on a person's body, probable cause to arrest is nevertheless extant if such person is constructively in possession of such drugs or contraband (People v Manini, 79 NY2d 561, 573 [1992]). Here, while the complaint pleads all the requisite elements of a negligent training and supervision claim, the City, by counsel, concedes "that the involved police officers were acting within the scope their employment when they arrested plaintiff." SASCHA WILSON. . Michael Overd is accusing Avon and Somerset police of assault, false imprisonment, malicious prosecution, misfeasance in a public office and violating his human rights. Thus, a person has a private right of action under 42 USC § 1983 against an individual who, acting under color of law, violates federal constitutional or statutory rights (Delgado v City of New York, 86 AD3d 502, 511 [1st Dept 2011] ["A complaint alleging gratuitous or excessive use of force by a police officer states a cause of action under the statute (42 USC § 1983) against that officer. Man jailed for two years before inconsistencies were found in a search warrant. False Imprisonment Charges. "]; Sweeney v Prisoners' Legal Services of New York, Inc., 146 AD2d 1, 7 [3d Dept 1989] ["Moreover, a cause of action for intentional infliction of emotional distress should not be entertained where the conduct complained of falls well within the ambit of other traditional tort liability." He thereafter searched other stations therein, finding more marijuana within unlocked drawers. In detective shows, giving a character an airtight alibi … Legal Background. 2. The elements of the cause of action for malicious prosecution stemming from a prior criminal proceeding, all of which are required for recovery, are (1) the commencement or continuation of a prior criminal proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior criminal proceeding; and (4) actual malice (Cantalino v Danner, 96 NY2d 391, 394 [2001]; Smith-Hunter at 195; Colon v City of New York, 60 NY2d 78, 82 [1983]; Martin v City of Albany, 42 NY2d 13, 16 [1977]; Broughton at 457; Heany v Purdy, 29 NY2d 157, 159-160 [1971]). Plaintiff's cause of action pursuant to 42 USC 1988 is hereby dismissed insofar as it is premised on the already dismissed federal claims. It is well settled that in this State, in cases alleging police misconduct, the law does not recognize a cause of action for general negligence or negligent investigation (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Johnson v Kings County Dist. The instant action is for false arrest, false imprisonment, malicious prosecution, [*2]negligence in the hiring, training, and retention of police officers, negligence, intentional and negligent infliction of emotional distress, and violations of 42 USC § 1981, § 1983, § 1985, and § 1988. False imprisonment cannot occur in a kidnapping situation because the person has been removed to a new area. The eight cause of action alleges that in engaging in the foregoing acts, the City violated 42 USC § 1985(3) in that it conspired to violate plaintiff's rights under the United States Constitution. Specifically, the locker and drawers at each station were provided by plaintiff and they did not lock. False imprisonment includes both a behavior and a mental element. A TORT (a civil wrong) that consists of an unlawful restraint of an individual's personal liberty or freedom of movement by another purporting to act according to the law.. As noted by the Court of Appeals. Similarly, it is well settled that "an otherwise unlawful detention is privileged where the confinement was by arrest under a valid process warrant issued by a court having jurisdiction" (Moulton v State, 114 AD3d 115, [3d Dept 2013] [internal quotation marks omitted)]; Nadal v City of New York, 105 AD3d 598, 598 [1st Dept 2013] ["Dismissal of the false arrest/imprisonment claim was proper where plaintiff was arrested for the shooting death of another pursuant to a facially valid arrest warrant, which is a complete defense to the cause of action. Additionally, however, plaintiff's claim under 42 USC § 1988 is only incident to her federal claims - provided she prevails at trial - and thus, not, in it of itself, a separate cause of action. CASE EVALUATION FORM *Required. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. 2017 NY Slip Op 51061(U) We conclude, therefore, that there was legally sufficient evidence of defendant's constructive possession of the contraband found in the apartment. This illegal confinement violates an individual’s right to be free from restraint, and may give the victim a claim in civil court, in addition to any criminal charges which may apply. It is well settled that "a government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" (Delgado v City of New York, 86 AD3d 502, 510 [1st Dept 2011] [internal quotation marks omitted]). The City's motion to dismiss plaintiff's claim pursuant to 42 USC § 1981 is granted insofar as no such cause of action lies, where as here, plaintiff's 42 USC § 1983 has been dismissed. According to the girl’s parents, she had been home with her family all weekend, and began acting bizarrely after church on Sunday. A search of the locker at plaintiff's station yielded no drugs, but plaintiff was handcuffed arrested nonetheless. In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."]). The state you live in usually determines the definition of false imprisonment. Those cases, however, are distinguishable from the instant matter on either legal or factual grounds. False imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or the restrained person's permission. Because the confidential informant had indicated that marijuana was stored in one of the cans atop one of the stations on the right side therein, Roberts grabbed a pledge bottle from said location. However, false imprisonment is often tacked onto kidnapping charges depending on the specifics of the case which can effectively lengthen a sentence. ]; Nasca v Sgro, 101 AD3d 963, 963-965 [2d Dept 2012] [same]). As there was the issue of a warrant of arrest at the instance of a justice of the peace (in that capacity exercising the powers of a magistrate), no claim for false imprisonment could be sustained. Accordingly, plaintiff fails to state a cause of action against the City under 42 USC § 1983 (Cozzani at 1147 ["Although the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced. The police searched the upstairs area of the premises and then searched Alexander and the locker at Thomas' station. This case involves a claim for false imprisonment. The City's motion seeking to dismiss plaintiff's cause of action pursuant to 42 USC § 1983 is granted insofar as the complaint fails to state a cause of action. Instead, faced with questionable facts on the issue of probable cause, an arresting officer need only. a direct conflict in the evidence,18 is extended to cases where the trial court should have directed a verdict in the first instance. While it is often argued that in cases alleging a violation of 42 USC § 1983 any motion to dismiss should be decided under the federal pleading standards, particularly those promulgated by Ashcroft v Iqbal (556 US 662, 678 [2009]), it is well settled that even after Ashcroft, this State's courts have consistently applied the standards promulgated by New York State case law when confronted with a motion seeking dismissal of a cause of action pursuant to 42 USC § 1983, on grounds that the complaint fails to state a cause of action (Vargas v City of New York, 105 AD3d 834, 834-837 [2d Dept. Significantly, beyond asserting that the acts that befell her were the result of a municipal custom and practice, plaintiff never once pleads a specific and prior example of the same. This constitutes this Court's decision and Order. The relevant facts of Pegg, taken directly from the case, are as follows: Evidence of the frequency of defendant's presence in the apartment at various times of day and his appearances in a bathrobe, together with the evidence that he ate meals there and that a man's clothing was found in the bedroom, demonstrates that defendant was more than a mere occasional visitor to the apartment where his wife resided. "]; Dillon v City of New York, 261 AD2d 34, 41 [1st Dept 1999]). Significantly, the arrest of all employees therein was premised on Roberts' belief that they all had access to the areas from which the marijuana was recovered. Anthony Morgan, who was released by the police without being charged, filed a claim in the San Fernando High Court through his attorney Kevin Ratiram, for wrongful arrest and false imprisonment. Auth., 241 AD2d 323, 324 [1st Dept 1997]; Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]). Anthony Morgan, who was released by the police without being charged, filed a claim in the San Fernando High Court through his attorney Kevin Ratiram, for wrongful arrest and false imprisonment. Here, a review of plaintiff's complaint and specifically, her seventh cause of action premised on a violation of 42 USC § 1983, evinces that she fails to plead specific facts establishing that her arrest, imprisonment, and prosecution was the result of a municipal custom or practice so as to state a cause of action pursuant to 42 USC § 1983. On December 11, 1996, Debra McCann and two of her children-Jillian, then 16, and Jonathan, then 12-were shopping at the Wal-Mart store in Bangor, Maine. The Attorney General v Kakoma (1975) ZR 273 approved. Since, here, probable cause exists as a matter of law, plaintiff cannot establish its absence and, therefore, cannot establish an essential element to that cause of action. City to pay over $55,000 to settle false imprisonment case. Such detentions are appropriate, the court held, Thus, with respect to search warrants, it is well settled that. Generally, whether the cause of action is one for intentional or negligent infliction of emotional distress, courts look at whether the conduct alleged is outrageous enough to warrant a finding that plaintiff has an actionable [*14]claim as a matter of law (id. Months after the incident, Mrs A sued the hospital for false imprisonment. The police announced themselves and indicated that they had a warrant. It is well settled that 42 USC § 1981, which states that. Specifically, plaintiff must provide some factual basis supporting a meeting of the minds, such as that defendants entered into an agreement, express or tacit, to achieve the unlawful end; plaintiff must also provide some details of time and place and the alleged effects of the conspiracy (internal citations and quotation marks omitted)]). For the reasons that follow hereinafter, the City's motion is granted. The seventh cause of action alleges that in arresting and detaining plaintiff, the City violated 42 USC § 1983, in that such conduct violated the Fourth and Fourteenth Amendments to the United States Constitution. The ninth cause of action seeks attorneys fees under 42 USC § 1988. Moreover, while an arrest and imprisonment arising without a warrant is presumed unlawful (Smith at 23), when confronted with such a claim and concomitant proof, a defendant can nevertheless prevail if he proves legal justification for the arrest and imprisonment, which "may be established by showing that the arrest was based on probable cause" (Broughton at 458; Martinez at 85; Rivera at 1033). In 2002, Elizabeth Smart disappeared from her family home. Significantly, plaintiff fails to appreciate that despite her assertions about her lack of control over the other stations at her salon, constructive possession is an objective standard to be applied based on the perception of access to the location where contraband is discovered. This can involve the use of force, unlawful restraint, bodily injury, traveling a substantial distance, and crossing state borders. Texas Police S.W.A.T. at 22; Hernandez v City of New York, 100 AD3d 433, 433 [1st Dept 2012]; Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State, 37 NY2d 451, 457 [1975]; Rivera v County of Nassau, 83 AD3d 1032, 1033 [2d Dept 2011]). What City / County Are Charges in? v Liberation Publications, Inc., 7 AD3d 566, 567 [2d Dept 2004]). The City therefore, establishes prima facie entitlement to summary judgment and, nothing submitted by plaintiff in opposition raises a question of fact sufficient to preclude summary judgment. Here, having dismissed all of plaintiff's federal claims, dismissal of any claim pursuant to 42 USC § 1988 is warranted for this reason alone. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). Specifically, the confidential informant bought marijuana from a male within 2603 on two separate occasions. Security guards can briefly detain someone in a store or other facility if they can demonstrate probable cause for shoplifting or another crime. The elements for a malicious prosecution cause of action based upon a prior civil action are identical except, that in addition to the foregoing, it must be proven that plaintiff sustained special damage or injury (The Purdue Frederick Company v Steadfast Insurance Company, 40 AD3d 285, 286 [1st Dept 2007]; Wilhelmina Models, Inc. v Fleischer, 19 AD3d 267, 269 [1st Dept 2005]; Honzawa v Honzawa, 268 AD2d 327, 329 [1st Dept 2000]. In Carlton, for example, the court held that the issue of probable cause could not be decided as a matter of law insofar as the allegations made against the plaintiff - that he left a restaurant without paying his bill - were disputed by the plaintiff such that further inquiry was required before his arrest (id. 42 USC §1988 provides for awards of attorney fees to a prevailing party in any action "[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title" (42 USC § 1988[b]). In an action for false imprisonment it is necessary for the plaintiff to prove nothing but the imprisonment itself; it is then for the defendant to discharge the onus of justifying it. Thus, where a defendant establishes that an arrest was effectuated because of the existence of a facially valid arrest warrant issued by a court having jurisdiction, any claim for false arrest, false imprisonment must be dismissed (Washington-Herrera at 988; Campbell at 642). The City's motion seeking to dismiss plaintiff's claims for intentional and negligent infliction of emotional distress is granted insofar as no such causes of action can be asserted against the City. imprisonment, and malicious prosecution.14 Defendants addressed case law providing a warrant is presumptively valid unless the affiant knowingly, deliberately, or with reckless disregard for the truth, made false statements or omissions creating a falsehood, and the statements/omissions 2013] [In granting defendants' motion seeking to dismiss plaintiff's claim pursuant to 42 USC § 1983 for failure to state a cause of action, the court applied the standards promulgated by CPLR § 3211(a)(7) and the case law interpreting it. The warrant authorizes a search for marijuana within 2603. Reading the complaint liberally, beyond the boiler plate language that unnamed officers "separately and in concert conspired for purposes of depriving . David Andrews, formerly of Beaver Falls, had his federal suit dismissed and then reinstated. Significantly, plaintiff fails to sufficiently cite to specific instances of the alleged municipal custom and practice alleged and on which this cause of action is premised. The City submits several documents. v Tierney, 25 AD3d 319, 320 [1st Dept 2006] ["Petitioner's conspiracy and 42 USC § 1983 claims lack allegations sufficient to show a scheme to undermine its First Amendment right to petition the Commission. It is well settled that a claim for negligent hiring, retention, and training will be dismissed when an employer concedes that the acts alleged to have been perpetrated by the employee were within the scope of that employee's employment (Karoon v New York City Tr. However. For this reason it is also true that generally the owner, lessee, or occupant of a premises is deemed to be in control of a premises and thus charged with constructive possession of any contraband or drugs found therein (People v Tirado, 47 AD2d 193, 195 [1st Dept 1975], affd 38 NY2d 955 [1976]; People v David, 234 AD2d 787, 789 [3d Dept 1996] ["So viewed, the testimony previously outlined above was sufficient to demonstrate that defendant resided in and had control over the apartment where the contraband was found. The City further agues that (1) plaintiff's cause of action for the negligent hiring, training and retention of police officers fails to state a cause of action because the City admits that the officers involved were acting within the scope of their employment with the City; (2) plaintiff's causes of action for intentional and negligent infliction of emotional distress fail to state cause action because such claims are barred against the City; (3) plaintiff's cause of action pursuant to 42 USC § 1983 fails to state a cause of action in that no specific municipal custom and practice is pleaded; (4) because plaintiff's cause of action pursuant to 42 USC § 1981 requires a viable 42 USC § 1983 claim, the complaint fails to state a cause of action pursuant to 42 USC § 1981;[FN2] Menu . Probable cause for the prosecution can be presumed if a criminal defendant is indicted by the grand jury, such presumption can be overcome, however, if "the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (Haynes v City of New York, 29 AD3d 521, 523 [2d Dept 2006]). Los Angeles will pay $5.2 million to end a legal battle with a man whose murder conviction was tossed out.. On the foregoing date, plaintiff was weaving a customer's hair and Clinton Alexander (Alexander) - barber who worked therein - Kerry Ann Henry (Henry) - a stylist who worked therein- and another customer were present within 2603. The third cause of action alleges that in arresting and detaining plaintiff, the City was negligent. The City's motion seeking summary judgment with respect to plaintiff's claims of false arrest and false imprisonment is granted. By way of background, the plaintiff testified that she was employed by the defendant bank as a Card Administration Officer in the Electronic Banking Department. Within her complaint, plaintiff alleges that on February 16, 2012, while inside premises located at 2603 Webster Avenue, Bronx, NY, (2603), she was falsely arrested and detained by defendants. New numbers on the wrongly convicted. Attorney's Off., 308 AD2d 278, 284-285 [2d Dept 2003]). Moreover, where, as here, plaintiff's case was dismissed by ACD, there can be no claim for malicious prosecution as a matter of law. When the allegations forming the basis of a claim pursuant to 42 USC 1985(3) are vague, conclusory and fail to offer sufficient detail about the agreement between the alleged conspirators, dismissal is warranted (Nocro, Ltd. v Russell, 94 AD3d 894, 895 [2d Dept 2012] ["Finally, the Supreme Court properly concluded that the appellant failed to state a cause of action under the fourteenth cause of action alleging conspiracy, in effect, pursuant to 42 USC § 1985(3). For marijuana within 2603, so that false imprisonment when he commits an of. Trial court should have directed a verdict in the United states has hit a record high,. United states has hit a record high the Fourth Degree ( PL § 221.15 ) when 's claims of imprisonment. For shoplifting or another crime considerations in a gang murder prosecution all the individuals therein new York law! Accordingly, dismissal is further warranted as against the City submits a search warrant had been issued years, separate. 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