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Plaintiff failed to raise a triable issue


This is an action for personal injuries sustained by Plaintiff, when he was under arrest on two separate occasions. According to the City’s papers for the instant motion, the first arrest was based on allegations of sexual assault made by a foster child who used to live next door to Plaintiff. In July 31, 2004, two police officers and a worker from Children’s Services arrived at Plaintiff’s apartment and questioned Plaintiff’s three daughters regarding said allegations. It is Plaintiff’s position that one of his daughters told the officers that the allegations were untrue. That day, Plaintiff was arrested and arraigned on charges of forcible touching and endangering the welfare of a minor. A Grand Jury indicted Plaintiff in September 2004. Plaintiff had a trial on these criminal charges and was acquitted in May 2006.

A Nassau Sex Crimes attorney said that in December 2005, Plaintiff was again arrested. However, this time, the complaining witness was Plaintiff’s daughter. According to the testimony of a Detective, in November 2005, the police received a report from the Children Services sent from a Hospital that the daughter claimed Plaintiff sexually abused her. Thereafter, Detective met with the daughter who told him that she was raped by Plaintiff in November 2005, and over a period of time since she was ten years old. At the time of the complaint, she was fifteen years old. That same day, the Detective set up a meeting for the daughter to speak to the District Attorney’s Office (“DA’s Office”) who thereafter approved Plaintiff’s arrest.

Thereafter, Plaintiff testified before a Grand Jury. In December 2005, he was indicted on charges of rape, sexual conduct and endangering the welfare of a minor. Plaintiff had a trial by jury on these charges and was acquitted in November 2006.

For each arrest, Plaintiff alleges the following: false arrest and imprisonment; malicious prosecution; failure to exercise proper supervision/care/control; excessive force; failure to allow Plaintiff to receive proper and timely medical attention; negligent hiring, training and retention; and violation of Plaintiff’s civil rights pursuant to 42 USC §1983.

As a preliminary matter, contrary to Plaintiff’s contention, the Court finds that the instant motion for summary judgment was timely made. A motion is made when notice of motion is served. In accordance with this rule, the City’s motion for summary judgment was made, as evidenced by the Affidavit of Service, when it was served, by mail, on Plaintiff’s counsel and was thus timely.

The moving party on a motion for summary judgment has the burden of demonstrating “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial.

As the City correctly asserts, Plaintiff’s false arrest and imprisonment cause of action stemming from the first arrest is statutorily barred pursuant to GML §50-e for Plaintiff’s failure to timely file a Notice of Claim. Since Plaintiff was released from custody, he was required to file his Notice of Claim. However, Plaintiff filed his Notice of Claim, without leave of Court to file a late Notice. Thus, the Notice of Claim is a nullity, and said cause of action is dismissed.

In addition, the Court finds that Plaintiff’s false arrest claim would still fail because there was probable cause to arrest Plaintiff on July 31, 2004. Probable cause is a complete defense to an action alleging false arrest or imprisonment whether brought under state law. Probable cause exists when “an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed”. Generally, information provided by an identified citizen accusing another individual of a specific crime is sufficient to provide the police with probable cause to arrest.

Here, the City showed that police officers arrested Plaintiff based on specific allegations of sexual abuse made by Plaintiff’s neighbor. In response, Plaintiff failed to raise a triable issue of fact. The fact that Plaintiff’s daughter refuted the allegations against her father when questioned by police does not extinguish the existence of probable cause at the time of arrest. Conflicting evidence is relevant only to the issue of whether guilt beyond a reasonable doubt can be proven at a criminal trial. Probable cause depends on probabilities, not certainties. In addition, Plaintiff’s own self-serving statement in his Affidavit that he learned, during his trial in May 2006, that the neighbor had told a female officer that she was not touched by Plaintiff before his arrest is also insufficient to raise a triable issue of fact.

Similarly, the Court finds that there was also probable cause to arrest Plaintiff. The City showed that police officers arrested Plaintiff based on specific allegations of rape and continuous sexual abuse made by Plaintiff’s daughter. In addition to the initial fact-finding conducted by Detective, Assistant District Attorney interviewed the daughter and subsequently gave her approval to arrest Plaintiff.

Plaintiff argues that the Detective’s failure to conduct a background check on Plaintiff, to determine whether a rape kit had been done on the daughter, and to consult with the Children’s Services regarding daughter’s case should defeat the City’s motion for summary judgment.

The Court does not agree. While the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause, Plaintiff presents no evidence to establish that the police or the DA’s office should have been alerted to the necessity of delving further into daughter’s story. Information from an identified citizen is accorded a high level of reliability and is presumed to be reliable. Neither the police nor the Assistant District Attorney were confronted with any reason to doubt daughter’s credibility and Plaintiff presents no evidence why police should not have relied on the veracity of her statements.

Accordingly, Plaintiff’s false arrest and imprisonment causes of action are dismissed.

In order to prevail on a claim for malicious prosecution, the plaintiff must prove four elements: (1) that a criminal proceeding was commenced, (2) that it was terminated in favor of the accused, (3) the absence of probable cause, and (4) that the proceeding was brought out of actual malice.

Where the defendants have probable cause to believe that a plaintiff committed the underlying crime, it is a complete defense to a claim of malicious prosecution and a plaintiff will not prevail. Furthermore, it is well-established that a Grand Jury indictment creates a presumption of probable cause which may be overcome only by evidence establishing that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.

Here, the Court finds that Plaintiff’s evidence fails to rebut the presumption of probable cause created by each Grand Jury indictment. Furthermore, contrary to Plaintiff’s assertion, the acquittal of all charges based on the first arrest does not negate probable cause for the second criminal proceeding. The two criminal proceedings were based on two different alleged victims. Plaintiff fails to explain what bearing the first acquittal as to Luz has on the allegations made by Danielle.

Accordingly, Plaintiff’s causes of action for malicious prosecution are also dismissed.

Sexual abuse cases can ruin the future of the helpless victim. Here in Stephen Bilkis and Associates, we help these victims to vindicate their rights when they were abused. Consult our Nassau County Sexual Abuse attorneys and they will render their advice on how to enforce your rights through court action. We also have Nassau County Rape lawyers who will file the complaint in courts of justice so that the assailant will be formally charged for the acts committed.

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