DEARIE, District Judge:
This case arises from a turbulent landlord-tenant dispute that resulted in two allegedly false reports to the police against the landlord, and the landlord's arrests in August and November 2006. Karlene White ("White"), a tenant living on the first floor of plaintiff's home, filed false reports with the New York City Police Department ("NYPD") resulting in plaintiff's arrest and prosecution, and the ultimate dismissal of assault, harassment, and contempt of court charges. Plaintiff now brings an assortment of federal and state law claims against White, police officers involved in both arrests, an assistant district attorney assigned to the case, and other related defendants primarily for false arrest and malicious prosecution, in addition to a roster of other claims.
This case ultimately boils down to whether, in effectuating an arrest and commencing a prosecution, a police officer may rely solely on the uncorroborated report
At the time of the allegations giving rise to the instant action, plaintiff owned a two-family home in Queens, New York where she resided with her husband and children on the second floor while leasing out the first floor apartment. In approximately December 2005, plaintiff and her husband entered into a one-year lease with White. This landlord-tenant relationship was uneventful until approximately April 2006 when plaintiff observed individuals routinely dropping off children at White's apartment and also discovered a flyer in the neighborhood advertising White's apartment as a daycare center. Plaintiff's husband retained a lawyer, who, on May 2, 2006, mailed a cease-and-desist letter to White. White stopped paying rent in April 2006. In August 2006, plaintiff retained a law firm to initiate eviction proceedings against White. White voluntarily vacated the apartment in January 2007.
The undisputed facts underlying the August arrest are as follows. At approximately 1:00 a.m. on August 24, 2006, White phoned 911 to report an assault in progress. Ostrowski and Galli (collectively the "August arresting officers") among other officers named and unnamed responded to the call.
Thereafter, plaintiff's daughter informed her that police were at her home. Upon walking into her dining room, plaintiff was placed under arrest. The arrest was effectuated by Ostrowski with the approval of his supervisor on site, Galli. Neither plaintiff nor any of her family members
At some point thereafter, Ostrowski filed a sworn complaint, charging plaintiff with assault and harassment in the second degree. Def. Exh. F. at 1-2, Ostrowski Sworn Complaint. White also signed an affidavit attesting to the truth of Ostrowski's sworn complaint. Def. Exh. F. at 3, White Affidavit. Plaintiff was transferred to Queens County Central Booking where she arrived between approximately 2;00 and 3.00 a.m. the morning of August 24, 2006, and was arraigned at 8:30 p.m. that evening. In addition to setting bail, the Queens County Criminal Court issued a Temporary Order of Protection ("TRO"), which ordered plaintiff to stay away from White's person and residence and refrain from assaulting, menacing, threatening, intimidating, harassing, or otherwise committing a criminal offense against her.
These aforementioned facts are not in dispute. The primary points of contention center on whether White was actually injured, whether the August arresting officers observed any of White's claimed injuries, and whether the officers conducted any investigation prior to arrest beyond interviewing White. Defendants submit that at least Officer Ostrowski observed "visible injuries" on White; that EMS was contacted by White and responded to her complaints; and that Ostrowski interviewed EMS workers to corroborate White's claimed injuries. See Def. Mem. at 6; Def. R. 56.1 ¶ 7. Furthermore, defendants proffer that after the arrest, White told Ostrowski that she was later treated at a hospital for injuries consistent with her report. Def. R. 56.1 ¶ 8.
Plaintiff counters, however, that neither Ostrowski nor any other officers "personally observed" White's claimed injuries, but instead took White at her word, solely reporting and responding to what White stated. Pl. R. 56.1 ¶ 6. Neither one of Ostrowski's contemporaneous reports — his initial report or sworn complaint — indicates that he, or any other officer, actually observed White's injuries, or includes any notation of White's injuries beyond what White herself reported.
On November 21, 2006, White again contacted the NYPD, this time to report that plaintiff had allegedly thrown garbage through White's window. Officers Patrick Agugliaro ("Agugliaro") and Eric Ortega ("Ortega") (collectively the "November arresting officers") responded to the call, spoke with both White and plaintiff, and subsequently departed the scene without making any arrests. White then went to the 103rd police precinct and produced the TRO, which had been issued in August and renewed since. Later that night, the same two officers returned to speak with plaintiff and requested that plaintiff produce the TRO. After doing as requested, the officers arrested plaintiff for criminal contempt in the second degree and harassment in the second degree. Plaintiff was again brought to the 103rd Precinct, where she remained until 4 a.m. on November 22, 2006. Plaintiff was then brought to central booking and released on her own recognizance at 9:00 p.m. that night. Agugliaro filed a sworn complaint in the matter.
On December 18, 2006, the charges resulting from the August arrest were presented to the grand jury by Assistant District Attorney Harris Liolis ("ADA Liolis"). Ostrowski testified before the grand jury. The grand jury dismissed all charges against plaintiff relating to the August arrest. Plaintiff's charges stemming from the November arrest were adjourned in contemplation of dismissal pursuant to N.Y. C.P.L. § 170.55, and dismissed six months later.
Summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure "is warranted when, after construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in its favor, there is no genuine issue as to any material fact." Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "It is the movants' burden to show that no genuine factual dispute exists ... [and] where the movant `fail[s] to fulfill its initial burden' of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied, `even if no opposing evidentiary matter is presented.'" Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d Cir.2003) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). If the movant does carry its burden, the party opposing summary judgment must set forth evidence demonstrating a genuine issue for trial, and may not rely only on allegations in its pleadings. Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir.2006), "[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996).
"A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (internal citations omitted). Under New York law, the elements of false arrest are: "`(1) the defendant intended to confine [the plaintiff], (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.'" Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (quoting Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (N.Y. 1975)) (emphasis added). Probable cause "is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Weyant, 101 F.3d at 852 (internal quotations and citations omitted). The only element contested in the instant action is whether the August and November arresting officers had probable cause and thus were "privileged to make an arrest." Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir.2003).
Plaintiff brings a claim for false arrest under Section 1983 against the August arresting
"An officer has probable cause to arrest when in possession of facts sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense." Ricciuti v. New York City Trans. Authority, 124 F.3d 123, 128 (2d Cir.1997). In evaluating probable cause, the Court looks to the totality of the circumstances and, mindful that hindsight is always twenty-twenty, only "consider[s] the facts available to the officer at the time of the arrest." Id. Thus "[p]robable cause may ... exist where the officer has relied on mistaken information, so long as it was reasonable for him to rely on it." Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.2010) (emphasis added). "However, the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause." Id. (internal quotations omitted); see also Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) ("[A]n officer may not disregard plainly exculpatory evidence."). Although information furnished to police by a person who claims to be a victim of a crime generally "suffices to establish probable cause," Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir.1994), this presumption of victim reliability only survives in the "absen[ce][of] circumstances that raise doubts as to the victim's veracity," Singer, 63 F.3d at 119.
Prior to arrest, at least Officer Ostrowski was aware of the contentious relationship that existed between White and plaintiff. Prior relationships, such as this, which "give[] rise to a motive for a false accusation" are "[t]he most common situation in which ... doubts arise" as to the veracity of the complaining witness.
The August Arresting Officers should have investigated further but did not. Counter to what defendants argue, Ostrowski and Galli were "not absolutely privileged to arrest upon a charge by any
Moreover, genuine issues of material fact exist as to whether the August arresting officers actually observed any injuries consistent with White's claim that plaintiff scalded her with hot water. This is troubling. In factually similar `he-said-she-said' assault matters, the Second Circuit routinely relies, in significant part, on the undisputed fact that prior to arrest, officers observed injuries consistent with a victim's complaint. See, e.g., Jocks, 316 F.3d at 137 (affirming district court's grant of judgment as a matter of law where officer "had before him ... the statement of a fellow police officer that he had been assaulted and [police officer's] obvious injuries.") (emphasis added); Curley v. Vill. of Suffern, 268 F.3d 65, 69-70 (2d Cir.2001) (affirming grant of summary judgment where, during interview with plaintiff, apparent victim of barroom brawl came up with "blood on his lip," identified plaintiff as the one who hit him, and plaintiff admitted that he struck one of the victims) (emphasis added); Ricciuti, 124 F.3d at 128 ("[Officer was] approached by a visibly injured [victim], who produced a corrections officer badge, stated that he had been attacked without provocation, and identified [plaintiff] as his assailant.... [Plaintiff] did not deny causing [victim's] injuries.") (emphasis added).
Here, however, defendants have not offered sufficient admissible evidence to refute the possibility that none of the arresting officers personally observed White's injuries, if she even had any to begin with. As already discussed at length, supra Part I.B., Ostrowski's contemporaneous reports indicate only that White reported her injuries to him, not that he personally observed them, and his reports lack any indication that he, or any other officer, interviewed EMS prior to or after arrest. White's subsequent visit to the hospital and filing of the sworn affidavit is immaterial to the issue of probable cause to arrest. Even assuming White did visit the hospital, a fact that is in dispute, these events occurred subsequent to arrest and thus have no bearing on the probable cause analysis, which looks to facts known to an officer at the time of arrest. See, e.g., Daniels v. City of New York, No. 03 Civ. 0809(GEL), 2003 WL 22510379, at *3 n. 4 (S.D.N.Y. Nov. 5, 2003) (Lynch, J.) ("The fact that [the victim] swore out a complaint against plaintiff on the following day is irrelevant to the probable cause analysis. It cannot support a finding of probable cause, because it occurred after the arrest."). Given the known prior contentious relationship between White and plaintiff combined with the seriousness of the alleged assault, the lack of any observable injuries, if proven, could lead a reasonable juror to conclude that the officers lacked probable cause to arrest plaintiff.
Where, as here, genuine issues of material fact exist on the issue of whether there was probable cause to arrest, the question is "properly presented to the jury," and the Court will not usurp their fact finding role. Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir.1994). The Court declines to afford the August arresting officers the shield of qualified immunity for substantially the same reason: The qualified immunity analysis is inextricably linked to the scope of the officers' pre-arrest investigation, whether the officers actually observed any injuries consistent with White's complaint, or conducted any interviews with EMS prior to arrest, all genuine and
For the foregoing reasons, defendants' motion for summary judgment is denied as to the August arresting officers for plaintiff's false arrest claim arising out of the August arrest.
Although plaintiff's false arrest claim under Section 1983 survives as to Ostrowski and Galli, summary judgment is granted to the extent plaintiff attributes her August false arrest to the City of New York or Commissioner Kelly. First, municipal liability cannot be predicated only upon the isolated unconstitutional acts of individual officers. See City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) ("If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability."). Second, to the extent that plaintiff's claim against the City is premised upon the City's alleged failure to adequately train the August arresting officers, "[t]he mere fact that [plaintiff] was falsely arrested, without more, does not show that the City's training program is inadequate. A training program is not inadequate merely because a few of its graduates deviate from what they were taught." Jenkins v. City of New York, 478 F.3d 76, 95 (2d Cir.2007). As to Commissioner Kelly, plaintiff has not set forth any evidence, admissible or not, to show personal involvement, a necessary element to any claim under Section 1983. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010). Likewise, plaintiff has not set forth admissible evidence to hold Kelly accountable in his supervisory capacity. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997) (setting forth potential categories of supervisory liability under Section 1983).
Summary judgment is, therefore, granted as to the City of New York and Commissioner Kelly for the August claim of false arrest.
Plaintiff additionally brings a claim for false arrest under Section 1983 against the November arresting officers, Agugliaro and Ortega, the City of New York, and Commissioner Kelly. Plaintiff argues that the November arresting officers improperly and unconstitutionally relied solely upon the existence of a TRO without probable cause to believe that plaintiff had violated the TRO before effectuating the arrest. See Opp. Mem. at 10-14. For the reasons set forth below, however, this claim fails because even under the plaintiff's version of events, the officers did have probable cause to arrest plaintiff for contempt in the second degree for violating a valid TRO. See Drummond, 522 F.Supp.2d at 673 ("[E]ven where factual disputes exist, a § 1983 claim may fail if the plaintiff's version of events establishes the existence of probable cause to arrest.").
The bases for this conclusion are straightforward. In New York, "the crime of criminal contempt in the second degree requires that (1) a valid protective order existed, (2) the defendant knew about that order, and (3) the defendant intended to violate the order." Carthew v. Cnty. of Suffolk, 709 F.Supp.2d 188, 198 (E.D.N.Y. 2010) (Bianco, J.) (citing N.Y. Penal L. § 215.50(3)). In this case, there is no dispute that a valid TRO existed at the time of arrest, which ordered plaintiff to "[s]tay away [White] and/or from the ... home of [White]." See Nov. 21, 2006 TRO. There
Because no constitutional violation resulted from the November arrest, the court need not reach the issue of qualified immunity. Singer, 63 F.3d at 118. ("[Where] there [i]s probable cause for the arrest, [that] conclusion ... subsumes the issue of immunity."). For the same reason, the Court dismisses all claims against The City of New York and Commissioner Kelly. See Farid, 593 F.3d at 249 (declining to reach the issue of supervisory liability under Section 1983 where no underlying constitutional violation was shown).
For the foregoing reasons, summary judgment is granted as to all defendants for the November claim of false arrest.
Plaintiff brings claims for malicious prosecution pursuant to Section 1983 against all named defendants stemming from both the August and November arrests. The elements of a malicious prosecution claim brought under Section 1983 parallel those under state law. "[U]nder New York law, a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Manganiello, 612 F.3d at 161 (internal quotations and citations omitted). "[T]o prevail on a § 1983 claim against a state actor for malicious prosecution," however, "a plaintiff must [also] show a violation of his rights under the Fourth Amendment," Id. at 160-61, which requires "that [a] seizure resulted from the initiation or pendency of judicial proceedings." Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.1997).
As an initial matter, the Court can easily dispense with several groundless claims and improper parties.
First, "under New York law, an adjournment in contemplation of dismissal... is not a favorable termination...." Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir.2002) (internal quotations and citations omitted). Accordingly, summary judgment is granted as to all claims for malicious prosecution arising from the November arrest against all defendants.
Second, with regard to plaintiff's malicious prosecution claims arising from the August arrest, summary judgment is granted as to Galli — as opposed to Ostrowski, who did more than just arrest plaintiff — because an arrest alone "cannot serve as the predicate deprivation of liberty" required under the Fourth Amendment for Section 1983 malicious prosecution claims as "it occurred prior to [plaintiffs] arraignment and without a warrant, and therefore was not pursuant to legal process." Singer, 63 F.3d at 117 (internal quotations omitted). For the same reasons described, supra Part II. B.1.b.iii, neither the City of New York nor Commissioner Kelly may be held liable for the isolated discretionary actions of a lone officer — Ostrowski — and thus summary judgment is granted as to any municipal and supervisory malicious prosecution claims. Summary judgment is also granted as to named defendants, Sergeants Joseph Langan and O'Brien, whose only liability for malicious prosecution is premised on the bare allegation in plaintiff's complaint, insufficient to survive summary judgment, that these defendants "approved and encouraged the filing of the complaint report relating to the August 24, 2006 false arrest." Compl. ¶ 47.
Third, summary judgment is granted as to ADA Liolis and DA Brown, in both their individual and official capacities for their alleged role in prosecuting the charges resulting from the August arrest.
Accordingly, the sole remaining claim for malicious prosecution is against Officer Ostrowski in his individual capacity, relating
As an initial matter, plaintiff's detention at Riker's Island following her arraignment was more than an adequate "deprivation of liberty ... pursuant to legal process" for Fourth Amendment purposes. Singer, 63 F.3d at 117 (internal quotations omitted).
Turning to the elements of the state law tort of malicious prosecution, first, a reasonable juror could find that Officer Ostrowski "initiat[ed] or continu[ed]... a criminal proceeding against plaintiff." Manganiello, 612 F.3d at 161. Ostrowski's signing of the sworn criminal complaint alone is sufficient to satisfy this element. Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir.1994) ("[D]efendants swore out an accusatory instrument, which would appear under New York law to satisfy the requirement that the defendants initiated a criminal proceeding against [plaintiffs]."); Ricciuti, 124 F.3d at 130 ("[N]o one disputes that [the officer] started the assault prosecution by filing the charges of second-degree assault."). While it is true that "the chain of causation," between the actions of an officer and the claim of malicious prosecution "is broken by the intervening exercise of independent judgment," Townes v. City of New York, 176 F.3d 138, 147 (2d Cir.1999), this `break' does not occur until after plaintiff has been formally charged — in this case until after the grand jury would have returned an indictment. See Bernard v. United States, 25 F.3d 98, 104 (2d Cir.1994) ("Once the grand jury indicted [plaintiff], control of the prosecution passed to the prosecutor and was no longer within the agent's authority."). Ostrowski not only filed the initial charge, but also testified before the grand jury "based in part on documents he brought for the purpose of having the plaintiff indicted." Compl. ¶ 54.
Second, the grand jury's dismissal of the charges arising from plaintiffs August arrest was a favorable termination. See Phillips v. DeAngelis, 571 F.Supp.2d 347, 356 (N.D.N.Y.2008) ("The return of No True Bill by a grand jury is a termination in the plaintiff's favor.").
Third, although a closer call, genuine issues of material fact exist as to whether Officer Ostrowski had probable cause to sign the sworn complaint and testify before the grand jury. In short, the "sparse factual record ... when viewed most favorably to the [plaintiff], does not eliminate the possibility that the defendant[] initiated the criminal proceeding without probable cause." Rounseville, 13 F.3d at 630.
The determination of probable cause to prosecute is distinct from probable cause to arrest, see Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir.2003), and "is assessed in light of the facts known or reasonably believed at the time the prosecution was initiated, as opposed to at the time of the arrest." Carson v. Lewis, 35 F.Supp.2d 250, 263 (E.D.N.Y.1999) (Seybert, J.). The Court must, therefore, assess the existence of probable cause in light of Ostrowski's knowledge at the time he filed the sworn complaint and then later testified before the grand jury. While the Court's determination that genuine issues of material fact exist regarding probable cause to arrest may not be dispositive of probable cause to prosecute, these disputed
Prior to filing the sworn complaint soon after arrest, Ostrowski was in possession of at least two additional facts not known to him when he arrested plaintiff: (1) that White would be filing her own sworn affidavit affirming that the facts contained in Ostrowski's complaint were true and (2) that White had informed Ostrowski that she "was treated at a local queens county hospital for [her] ... injuries." ECF Docket #38, Exh. 7 at 1. In addition, by the time Ostrowski testified before the grand jury, a valid TRO was in force against plaintiff. Nevertheless, if a juror were to conclude that Ostrowski had not in fact observed any visible injuries and/or had not spoken with any one from EMS prior to the August arrest, a juror could also reasonably conclude that these new, post-arrest facts known to Ostrowski were insufficient to make out probable cause to prosecute. This is especially true in the absence of evidence that Ostrowksi conducted further inquiry, for example, to confirm that White had actually visited the hospital or to request hospital records to corroborate White's claimed injuries. See Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (N.Y.1983) (holding that in analyzing a claim for malicious prosecution, "the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause."); cf. Reynolds v. City of New York, No. 04 Civ. 6540(SHS), 2005 WL 2861601, at *4 (S.D.N.Y. Oct. 31, 2005) (Stein, J.) (granting summary judgment where plaintiffs failed to "adduce[] any evidence that facts had come into [the officers'] knowledge that would cause them to believe that the charges against the [plaintiffs'] were groundless" and "hospital records listed injuries consistent with [victim]'s account of assault....") (internal quotations omitted).
Lastly, lack of probable cause to initiate a prosecution is evidence of "actual malice." Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir.1996) ("In most cases, the lack of probable cause — while not dispositive — `tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.'") (quoting Conkey v. State, 74 A.D.2d 998, 427 N.Y.S.2d 330, 332 (1980)). Where, as here, the Court "find[s] an issue of material fact as to probable cause, the element of malice also becomes an issue of material fact as well." Boyd, 336 F.3d at 78; see also Rounseville, 13 F.3d at 631 ("[The] conclusion that the lack of probable cause presents a jury question likewise suggests that the existence of malice cannot be resolved through summary judgment."). Moreover, where there is a genuine issue of material fact as to whether probable cause was "so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted," Martin v. City of Albany, 42 N.Y.2d 13, 17, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (N.Y.1977), the Court cannot grant a defendant qualified immunity.
Defendants' motion for summary judgment as to Officer Ostrowski on plaintiff's malicious prosecution claim is, therefore, denied.
Plaintiff brings a Section 1985 claim, alleging that all of the defendants "conspired" to deprive her of her constitutional rights. Such a conspiracy, however, "must... be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators'
Plaintiff's Section 1985 claim can, and must be, dismissed on the sole ground that plaintiff has set forth no proof — beyond stating, in conclusory fashion, that plaintiff is a "member[] of the South Asian community" and part of "the class of individuals who are subject to [TRO]s." Compl. ¶ 78-79 — to suggest that any alleged actions by any defendants alone or in tandem were the product of "discriminatory animus." Summary judgment, therefore, is granted as to plaintiff's Section 1985 claim against all defendants.
Because two of plaintiff's federal law claims survive and plaintiff's state law claims "are so related to claims in the action within [the Court's federal question] jurisdiction that they form part of the same case or controversy under Article
As previously stated, the federal elements of false arrest and malicious prosecution are substantially the same as their New York state law counterparts. Likewise, where "the record plainly reveals the existence of genuine issues of material fact relating to the qualified immunity defense [for plaintiff's federal law claims,] ... New York courts are no different in this regard." Jones v. Parmley, 465 F.3d 46, 64 (2d Cir.2006). Accordingly, for the same reasons discussed, supra Part II.B.1. & 2., summary judgment as to plaintiff's state law false arrest and malicious prosecution claims is granted in part, and denied in part as to Ostrowski and Galli consistent with the Court's ruling on the federal claims, with one exception: municipal liability survives under plaintiff's state law claims,
Unlike claims brought pursuant to Section 1983, under New York state law, municipalities may be held vicariously liable for false arrest and malicious prosecution under a theory of respondeat superior. Williams v. City of White Plains, 718 F.Supp.2d 374, 381 (S.D.N.Y.2010) (Young, J.). This applies even to discretionary actions by police officers where, as here, genuine issues of material fact exist as to whether there was probable cause for arrest. Lubecki v. City of New York, 304 A.D.2d 224, 758 N.Y.S.2d 610, 617 (2003). Accordingly, summary judgment is denied with respect to plaintiff's state law false arrest and malicious prosecution claims against defendant City of New York.
Plaintiff claims that the August and November arresting officers' touching of plaintiff in order to effectuate arrest constituted battery. To establish the tort of battery under New York law, plaintiff must show, inter alia, "intentional wrongful physical contact with another person without consent." Girden v. Sandals Intern., 262 F.3d 195, 203 (2d Cir. 2001). "If an arrest is determined to be unlawful, any use of force against a plaintiff
Plaintiff's state law claim for intentional infliction of emotional distress must be dismissed with respect to all of the defendants for two primary reasons. First, there is no genuine issue of material fact as to whether any of the defendants' conduct was sufficiently "extreme and outrageous." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996). While the allegations against defendant White may in fact meet this rigorous standard, none of the city defendants' actions do, no matter how flawed they may be proven to be. Second, "under New York law, [n]o intentional infliction of emotional distress claim will lie where the conduct underlying the claim falls within the ambit of traditional tort liability." Munoz v. City of New York. No. 04 Civ. 1105(JGK), 2008 WL 464236, at *8 (S.D.N.Y. Feb. 20, 2008) (Koeltl, J.) (internal quotations omitted) (alteration in original). Here, plaintiff's claim for intentional infliction of emotional distress is subsumed by her state law tort claims for false arrest, malicious prosecution, and battery, all resting on the same set of facts.
Accordingly, summary judgment is granted as to all defendants on plaintiffs claim for intentional infliction of emotional distress.
For all of the foregoing reasons, defendants' motion for summary judgment is granted in part and denied in part.
With regard to the federal law claims, summary judgment is denied as to plaintiff's actions for (1) false arrest against Officer Ostrowski and Lieutenant Galli in their individual capacities and (2) malicious prosecution against Officer Ostrowski in his individual capacity. Summary judgment is granted with regard to all of plaintiff's federal law claims against the City of New York and all other named defendants, except for White, in their individual and official capacities.
