Motion-Secondary: Komanjo Cayruth v. City Of Mount Vernon, John Doe 1, John Doe 2, John Doe 3

On December 09, 2016 a Motion-Secondary was filed involving a dispute between Komanjo Cayruth, and City Of Mount Vernon, John Doe 1, John Doe 2, John Doe 3, for Torts - Other (Sexual Assault) in the District Court of Westchester County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

KOMANJO CAYRUTH,
Plaintiff(s),
Index No.: 68691/2016
-against-

CITY OF MOUNT VERNON, DETECTIVE CAMILO

ANTONINI, individually, OFFICER PETER VITELLI,

individually and DETECTIVE SERGEANT SEAN FEGAN,
individually,
Defendant(s).

MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT

Defendants'
Plaintiff submits the within Memorandum of Law in Opposition to the

Motion for Summary Judgment.

PRELIMINARY STATEMENT

Defendants'
The motion for summary judgment should be denied in its entirety because

(i)Defendants failed to establish a prima facie case that they did not violate Plaintiff's

constitutional rights, (ii)Plaintiff's proofs establish that he was falsely arrested and subjected to

an unconstitutional strip search, (iii) Defendants are not eligible for qualified immunity, (iv) The

City Of Mount Vernon is vicariously liable under State Law and (v) this case presents a classic

case of municipal liability under the Monell doctrine. Further, Plaintiff's proofs, at a minimum,

establish a triable issue of fact on whether Plaintiff's constitutional rights were violated by

Defendants'
actions.

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STATEMENT OF FACTS

On November 5, 2015, Komanjo Cayruth was lawfully standing near 118 East Prospect

in Mount Vernon, New York, when he was accosted by Defendant Camilo Antonini and

Defendant Peter Vitelli, two plainclothes officers who asked him if he was carrying anything

illegal. (Ex. 3, p 24, Ex. 5, p. 13, 14, 21, 22, Ex. 6, p. 14, 15). Mr. Cayruth told the defendants

that he was not, and the officers pushed him up against a nearby wall and asked him again. (Ex.

3, p 24). Again Mr. Cayruth answered no, at which point the officers handcuffed him, pushed

him against their unmarked police car, conducted a pat-down search without consent, and after

finding nothing on the pat down search, the officers, then placed him into the back of their car.

(Ex. 3, p 25-27).

On the way to the station, Mr. Cayruth was asked many times whether he was carrying

anything, and each time, he replied that he was not. (Ex. 3, p 26). He was brought to a police

station, where he declined to consent to any searches. (Ex. 3, p 34-35).

Sgt Fegan was the Supervisor for Vitelli and Antonini, and at the precinct, he authorized

the strip search of the Plaintiff. (Ex. 9, p. 11). The defendants took Mr. Cayruth into a small

room and subjected him to a forced strip search. (Ex. 3, p 35-37). After Mr. Cayruth's pants and

underwear were forcibly removed, the officers told him to face the wall, squat, and cough. (Ex.

3, p 39). His shoes and socks were removed and searched. (Ex. 3, p 39). When removing his

officers'
underwear, the hands came in contact with Mr. Cayruth's genitalia. (Ex. 3, p 1). Then,

after the officers searched the rest of his clothing, the clothes were returned and Mr. Cayruth was

allowed to leave. (Ex. 3, p 40). Nothing illegal was found on Mr. Cayruth's person, and he was

not charged with any crime. (Ex. 3, p 40).

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In response to a subsequent civilian complaint by Mr. Cayruth, the Defendants claimed

that the officers conducted the search based upon, a tip from a confidential informant. (Ex. 7).

Plaintiff, in this case, demanded allpolice investigation records which related to the Plaintiff's

detention and the Defendants were not able to provide any contemporaneous investigatory record

at all,let alone any contemporaneous records documenting that there actually was information

provided by a confidential informant. (Ex. 7, ¶ 9). In fact, the only documents that the

defendants could provide were their own self serving responses to Plaintiff's civilian complaint,

in which they had to justify their search of Plaintiff. (Ex. 7, ¶ 9).

While Defendants claim that they acted based upon information from a reliable

confidential informant, they acknowledged that the informant has prior to the Plaintiff's

detention, provided information, which turned out to be incorrect. (Ex. 5, p. 19). The information

allegedly provided by this confidential information was that he was somehow able to observe

that the Plaintiff, who was standing on a public sidewalk, had drugs in his groin and buttocks,

however, there was no claim that the informant observed the Plaintiff buy or sell any narcotics.

(Ex. 5, p. 19, 20).

In this case, Defendants improperly ask the Court to grant summary judgment, based

upon records which they reference, but have not attached to their motion, (Def Ex. F) and have

not provided in discovery. (Exs. 8, 10). Further, Defendants provided these documents directly to

the Court, without serving them on the undersigned and our office made a good faith attempt to

resolve this issue, however, defendants refused to provide the purported paperwork regarding the

informant to the Plaintiff's office but have submitted itto the Court in support of their summary

judgment motion. (Ex. 8).

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DISCUSSION

The proponent of a motion for summary judgment bears the initial burden of tendering

sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter

of law. Alvarez v. Prospect Hospital, 508 N.Y.S.2d 923 (1986). Upon a motion for summary

judgment, itis the defendant's burden to establish itsentitlement to summary judgment as a

matter of law by eliminating the existence of triable issues from the case. Alvarez, supra; see

also McFarland v. American Oxygen Co., 2010 N.Y. Misc. LEXIS 5214 (N.Y. Sup. Ct. 2010). A

defendant's failure to establish a prima facie case requires denial of a summary judgment motion

without regard to the adequacy of the plaintiff's proofs. Guzman v. Bowen, 46 A.D.3d 617 (2nd

Dept. 2007). Summary judgment is a drastic remedy and should not be granted where there is

any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223

(1978).

It iswell-settled that on a motion for summary judgment, the function of the court is to

determine whether issues of fact exist, not to resolve issues of fact or determine matters of

credibility. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997); Sillman v. Twentieth

Century-Fox, 3 N.Y.2d 395 (1957). The party opposing a motion for summary judgment is

entitled to every favorable inference that may be drawn from the pleadings, affidavits, and

competing contentions. Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385 (2nd Dept. 2003); see

also Akseizer v. Kramer, 265 A.D.2d 356 (2nd Dept. 1999). Indeed, the trialcourt is required to

opponents'
accept the contentions as true and resolve all inferences in the manner most favorable

to opponents. I lenderson v. City of New York, 178 A.D.2d 129, 130 (1st Dept. 1991); Gibson v.

American Export Isbrandtsen Lines, 125 A.D.2d 65, 74 (1st Dept. 1987). When the existence of

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a triable issue of fact is even arguable or debatable, summary judgment should be denied. Public

Adm'r Bronx County v. 488 E. 188 St. Realty Corp., 2012 N.Y. Misc. LEXIS 6537 (N.Y. Sup.

Ct. 2012); Stone v. Goodson, 8 N.Y.2d 8 (1960).

POINT I: DEFENDANTS IMPROPERLY RELY UPON HEARSAY, UNDISCLOSED
RECORDS AND INSUFFICIENT EVIDENCE TO SUPPORT THEIR
SUMMARY JUDGMENT MOTION

Defendants argue that there was probable cause to arrest and then strip search the

Plaintiff, but their motion predominantly relies on the out of court statement of an unidentified

individual. It isaxiomatic, that a summary judgment motion may not be supported by hearsay,

and even statements of those other than officers or parties contained in a police report are

inadmissible hearsay. Shaw v. Rosha Enters., Inc., 129 A.D.3d 1574, 1576 (4th Dept. 2015),

citing Huff v. Rodriguez, 45 A.D.3d 1430, 1432 (2007); see Brady v. Casilio, 93 A.D.3d 1190,

1191 (2012). Here, the defendants did not even produce police reports to support their motion,

rather they only provided rank hearsay from an unidentified individual.

Defendants'
Even more egregious motion relies on documents concerning an alleged

confidential informant "CI 462", which they filed under seal, but they did not serve on Plaintiffs

counsel. Moreover, even after Plaintiffs counsel demanded same be provided, Defendants

persisted in refusing to provide documents that they submitted to the Court, Ex Parte to support

their motion, but failed to serve upon the Plaintiff, as part of the Defendant's moving papers.

Defendants'
affirmation cites Exhibit F when making the claim that CI 462 was a proved reliable

informant, but the information was not provided in the exhibit, which contains mere references to

this information, nor was itotherwise produced in discovery. (Ex. 2, Def Ex. F reproduced as

Exhibit 10 herein). C.P.L.R. § 3212 requires that a summary judgment motion be supported by

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proof"
"available and it isaxiomatic that one moving for summary judgment must actually serve

their papers and supporting proofs upon their adversary. C.P.L.R. § 2212, 2214. C.P.L.R. § 2214

states in pertinent part that a notice of motion and supporting affidavits shall be served at least

eight days before the time at which the motion is noticed to be heard. Here Defendants are

improperly attempting to obtain summary judgment, based upon documents which were never

"served"
disclosed or in connection with the motion. Although the Court has determined that

certain information was confidential and did not have to be disclosed, that does not entitle the

Defendant to use the Order preventing disclosure to support a summary judgment motion

through Ex Parte proof. By analogy Courts have found that a claim of privilege is a shield and

must not be used as a sword. American Re-Insurance Co. v U.S. Fidelity & Guar. Co., 40 AD3d

486, 492 (2007). Where a party places the subject matter of a normally privileged

communication or document at issue, or, where invasion of the privilege is required to determine

the validity of the claim or defense and the application of the privilege would deprive the

adversary of vital information, fairness requires the finding of waiver. See G.D. Searle & Co. v

Pennie & Edmonds LLP., 308 AD2d 404 (1st Dept 2003); New York TRW Tit. Ins. Inc. v

Wade's Canadian Inn and Cocktail Lounge, Inc., 225 AD2d 863 [3d Dept 1996]; Bank Brussels

Lambert v Credit Lyonnais (Suisse SA), 210 FRD 506 [SDNY 2002]; Century Indem. Co. v.

Brooklyn Union Gas Co., 22 Misc. 3d 1109(A); United States v. Bilzerian, 926 F.2d 1285, 1292

(2d Cir. 1991). Here, itis fundamentally unfair to permit Defendants to rely on information to

support their motion, without making that information available to Plaintiff. Since the defendants

have failed to serve the documents on the Plaintiff, the Court should not permit the undisclosed

documents to be used to support the motion. By further analogy. in the criminal context, where a

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court keeps an informant's identity confidential, the case is dismissed where the case relies on

the informant's statement. The Court recognized in United States v. Robinson, 325 F.2d 391, (2d

Cir 1963), that where there was not sufficient evidence apart from the special agent's information

to justify arrest, the identity of the informant must be disclosed. In Roviaro v. United States, 353

U.S. 53, at 61, 77 S.Ct. 623, at 628, (1957), the Court said: "Most of the federal cases involving

(the limitation on the applicability of the informer's privilege which arises from the fundamental

requirements of fairness) have arisen where the legality of a search without a warrant is in issue

and the communications of an informer are claimed to establish probable cause. In these cases

the Government has been required to disclose the identity of the informant unless there was

sufficient evidence apart from his confidential communication"..On the other hand, if disclosure

is not forthcoming, or if the court finds lack of probable cause, the indictment should be

dismissed." Defendants'
United States v. Robinson, 325 F.2d 391, 393 (2d Cir 1963). Similarly,

refusal to offer CI 462 for deposition or even serve the records which they rely upon to make the

instant motion, should foreclose them from relying on CI 462's statement or any undisclosed

document to establish probable cause. Accordingly their motion should be denied on this ground

alone.

Defendants'
motion is further deficient because itlacks any affidavit from this supposed

confidential informant. C.P.L.R. § 3212(b) requires that a motion for summary judgment be

supported by an affidavit from a person having knowledge of the facts; and that the affidavit

must recite all the material facts. As such, summary judgment motions may not be supported by

affidavits which do not establish that the witness has personal knowledge. Haig v. Channing Co..

54 A.D.2d 992 (3d Dep't 1976). It isaxiomatic that a party's attorney "who lacks personal

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knowledge of the essential facts, is of no probative value and is insufficient to support an award

judgment."
of summary Peters v. City of New York, 799 N.Y.S.2d 163 [Sup, Kings 2004];

Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; Amaze Med.

Supply, Inc. v. Allstate Ins. Co., 787 N.Y.S.2d 675 [App Term, 2nd & 11th Jud Dists

2004]; Lupinsky v. Windham Constr. Corp., 293 A.D.2d 317 [1st Dept 2002]; Vista Surgical

Supplies, Inc. v. Utica Mut. Ins. Co., 7 Misc. 3d 833, 834-835 (Kings Civ. 2005). A

conclusory affidavit or an affidavit by an individual without personal knowledge of

the facts does not establish the proponent's prima facie burden. JMD Holding Corp. v. Cong. Fin.

Corp., 4 N.Y.3d 373, 384-385 (2005); Vermette v Kenworth Truck Co., 68 N.Y.2d 714, 506

N.Y.S.2d 313 [1986]. Likewise, where affiant offers an opinion based upon documents, the

documents themselves, must have a factual basis to support the stated conclusion. JMD Holding

Defendants'
Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373, 385 (2005). Here, the proofs are

insufficient to support a motion for summary judgment because they are not supported by an

affidavit from the supposed confidential but rather are supported the self-
informant, they by

serving uncorroborated claims of the Defendants, as to what some unidentified person said. This

defendants'
is clearly insufficient to establish the burden for summary judgment.

DEFENDANTS'
POINT II: PROOFS ARE INSUFFICIENT TO ESTABLISH THE
RELIABILITY OF THE ALLEGED CONFIDENTIAL INFORMANT

Even assuming arguendo that the Defendants did rely upon information provided by a

confidential informant, they have failed to establish that there was probable cause for the

Plaintiff s arrest and search. Even in the context where a warrant had been issued, (which is not

the case here), where probable cause is based on hearsay information, a court must weigh the

basis of the knowledge, as well as the credibility, reliability, and veracity of the informant. See,

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Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v. Johnson, 66 NY2d

398, 402; People v Landy. 59 NY2d 369, 375; People v. DiFalco, 80 N.Y.2d 693, 696, 610 (N.Y.

1993). The basis of knowledge component is distinct from the veracity component and must be

independently satisfied; this dimension requires that the information provided by the informant

be corroborated or confirmed through details sufficient in number and suggestive of, or directly

related to, the criminal activity informed about. Delgado v City of New York, 86 A.D.3d 502,

507 (N.Y.A.D. 1 Dep't 2011). In Delgado, the Court found a lack of corroboration of a drug

location, where the police failed to inquire concerning the occupants of the subject apartment,

failed to speak to the building superintendent, failed to conduct surveillance of the apartment,

made no attempt to conduct controlled buys from the apartment, and otherwise failed to

corroborate the information supplied. M. In relying on statements from an unidentified informant

in attempting to demonstrate probable cause, defendants impermissibly offer hearsay as

evidence, and then defendants go a step further and attempt to offer hearsay information as

undisputed fact. Plaintiff previously moved for a deposition of the informant and the motion was

denied. (Ex. 4). Therefore the informant's credibility, reliability, veracity, and basis of

knowledge therefore cannot be determined, and the Defendant's conclusory hearsay is

insufficient to establish probable cause as a matter of law.

Defendants argue that probable cause is demonstrated using the totality of circumstances

test articulated in Illinois v. Gates, 462 U.S. 231 (1983), however the facts of this case do not

even arguably meet this test. Both Detective Antonini and Officer Vitelli make conclusory and

unsupported assertions that CI 462 was "reliable". (Ex. 5 p. 16, Ex. 6 p. 10). However when the

government invokes a confidential informant in support of its assertion of probable cause, itdoes

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not suffice to provide 'a mere conclusory statement that gives the factfinder virtually no basis at

'
allfor making a judgment regarding probable cause Illinois v. Gates, 462 U.S. 213, 239, 103 S.

(1983)."
Ct. 2317 United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992). Here, there are no

objective facts offered to substantiate the assertion of reliability, such as how many of CI 462's

Defendants'
previous tips resulted in convictions. Moreover, assertions are belied by their own

admission that this particular CI, had in the past provided information that turned out to be

defendants'
inaccurate. Here, deposition testimony offered in support of this motion is wholly

conclusory and clearly tailored to meet the Aguilar-Spinelli standard, but lacking in any

defendants'
corroborating detail whatsoever. This in and of itself warrants denial of the motion.

Even if Defendants had demonstrated that CI 462 was reliable, this on its own would only

be one of the totality of circumstances in the Gates test. Where there is a tip from an informant

with a history of providing accurate information to the police the totality of circumstances still

necessarily includes corroboration by the police of significant aspects of that tip. lJnited States v.

Gonzalez, 441 Fed. Appx. 31, 35 (2d Cir. 2011). In analyzing this component, corroboration

means the traditional sort of independent corroboration by the police in checking out the truth of

the informant's tip through information obtained from a source other than the informant's

statement. Delgado v City of New York, 86 A.D.3d 502, 507 (1st Dept 2011); citing DiFalco, 80

Defendants'
NY2d at 698. Here, there was no such corroboration, and in fact, motion contains

description"
the troubling claim that they "were able to corroborate the informant's by finding

Plaintiff wearing a blue Mets cap and a jean jacket, even though itis undisputed that Plaintiff did

not in fact possess any narcotics and the defendants did not find any evidence of contraband

Defendants'
during their pat down search. Here, assertions amount to nothing more than some

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unidentified person said Plaintiff had drugs and since he could describe the plaintiffs clothing,

that meets the corroboration requirement. However, this is insufficient corroboration to

demonstrate probable cause as described in Gates.

Further, the circumstances surrounding the Plaintiffs arrest are so circumstantially

suspect, that they raise an issue of fact, in and of themselves, as to whether the defendants really

received information from an informant, or whether they improperly arrested the Plaintiff and

strip searched him based upon a hunch, and then fabricated that there was information from a

confidential informant to justify their actions. Here, Plaintiff's combined demands contained a

request for any memo entries, reports, notes, or witness statements which relate in any way to

Plaintiff's arrest on November 5, 2015 and in response, Defendants failed to produce any

contemporaneous document which documented that Plaintiff was arrested based upon

information provided by a confidential informant. In fact, the only record that was produced was

a report dated after the fact, on November 12, 2015, in response to Plaintiff's civilian complaint.

(Ex. 7, p 9-10). Defendant has not provided any contemporary record of the purported tip that led

to Plaintiff's arrest or any other contemporaneous police document which establishes that there

was information from a confidential informant, what information specifically was conveyed and

the basis for the informant's supposed knowledge. Detective Antonini testified that on November

5, 2015 at around 4:00 to 5:00 pm, he was just driving around the area in the vicinity of Prospect

Avenue, when he received a call from CI 462. (Ex. 5, p. 13-15). Officer Vitelli testified that on

the day in question they were driving around looking for narcotics activity. (Ex. 6, p. 7). Thus

since Plaintiff engaged in no drug activity whatsoever, there was nothing that Plaintiff did, which

could have led a confidential informant to believe Plaintiff had drugs. Moreover the complete

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lack of any contemporaneous record documenting that there was a tip from an informant,

combined with the fact that the firsttime the defendants documented that the Plaintiffs arrest and

search was based upon this supposed informant, was a week later, and only in response to

Plaintiff's civilian complaint. (Ex. 7). This conclusion is further compounded by the sheer

ludicrousy of the supposed tip. It issimply inconceivable, that an informant observed the

Plaintiff, hide heroin and crack in his groin and buttocks, while standing on a public sidewalk,

especially since there was allegedly no information that the informant saw the Plaintiff engage in

a narcotics buy or sale. The cumulative weight of the circumstantially suspect nature of this

claimed tip, along with the complete lack of any contemporaneously created documents, raise

inferences from which a reasonable juror could find that there was no tip from an informant and

"informant"
that the was invented to justify an otherwise improper arrest. At the very least, this

raises an issue of fact as to the existence of CI 462 and whether the Plaintiff was arrested and

searched based upon a tip from any informant, or whether this unidentified informant was

conjured up after the fact to provide a justification for the improper arrest and search.

POINT IH: PLAINTIFF'S PROOFS ESTABLISH THAT HE WAS FALSELY
ARRESTED

defendants'
It isundisputed that Plaintiff was arrested without a warrant and motion must

be denied because their proofs are insufficient to overcome the presumption that the arrest of

Plaintiff was unlawful. Where an arrest is made without a warrant, a presumption arises that the

Defendants'
plaintiffs arrest was unlawful and it isthe burden to rebut this presumption by

demonstrating that there was probable cause for the arrest. Jenkins v. City of New York, 478

F.3d 76, 88 (2d Cir. 2007); Little v. Massari, 526 F. Supp. 2d 371, 374 (E.D.N.Y. 2007); Jackson

v. City of New York, 29 F. Supp. 3d 161 (E.D.N.Y. 2014); Garrett v. City of New York, 2011

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U.S. Dist. LEXIS 109465 (S.D.N.Y 2011). It isthe defendant and not the Plaintiff who bears the

burden of proving that confinement was privileged. Hollender v. Trump Village Cooperative,

Inc, 58 NY2d 420, 425, 461 N.Y.S.2d 765 [1983]; Gonzalez v. State of New York, 110 AD2d

810 [1985]; Fernandez v. State of New York, 2002 NY Slip Op 50510[U]. Where an arrest is

made without a warrant, the defendant in a false arrest case bears the burden of proving probable

cause as an affirmative defense. Dinler v. City of New York, 2012 U.S. Dist. LEXIS 141851

(S.D.N.Y 2012); Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010); Broughton v. State,

37 N.Y.2d 451 (1975). A warrantless arrest is presumptively unlawful under New York law and

the plaintiff need not prove either malice or want of probable cause, rather, the defendant has the

burden of proving that the arrest was authorized under N.Y. Crim. Proc. Law § 140.10

cause,'
(McKinney 1981), which requires 'reasonable the equivalent of probable cause. See

Broughton v. State, 37 N.Y.2d 451, 457-58, 373 N.Y.S.2d 87, 94-95 cert. denied, 423 U.S. 929,

96 S. Ct. 277 (1975); Practice Commentary at 177. Proof of subjective good faith does not shield

arrest."
an officer from tort liability for an unlawful Raysor v. Port Authority of New York &

New Jersey, 768 F.2d 34, 40, 1985 (2d Cir. 1985). To demonstrate reasonable cause, defendants

information"
must show that they relied on "reasonably trustworthy in making the arrest. Penree

v. City of Utica, 2016 U.S. Dist. LEXIS 27668, *35. To meet that burden the defendant must

show that he had a quantum of evidence which amounted to more than a rumor, suspicion, or

even a strong reason to suspect. Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 265

(S.D.N.Y. 2002).

Defendants'
Here, for the reasons stated above, proofs are insufficient to establish

probable cause as a matter of law. Further, even if the Court were to find that Defendants

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established a prima facie case, Plaintiff's proofs show that there is at least a question of fact as to

whether his arrest was supported by probable cause, as Defendants information was not

trustworthy, since he provided erroneous information on prior occasions, as well as the instant

case and there was no corroboration whatsoever. (Ex. 3, p 40). Moreover, that there was no

Defendants'
probable case to support Plaintiff's arrest is borne out by the fact that the performed

a pat down search, found nothing indicative of contraband and even though they had no even

arguable corroboration that the Plaintiff possessed narcotics, they nevertheless proceeded to

arrest him, bring him to the precinct and strip search him, finding nothing. Here, even assuming

arguendo that the supposed tip provided reasonable cause for the initial pat down, having found

nothing, the defendants were not then privileged to continue to arrest the Plaintiff, as any

semblance of probable cause had dissipated.

Defendants erroneously rely on Bissinger v. City of N.Y., No. 06-CV-2325, 2007 WL

2826756, at *8 (S.D.N.Y. Sept. 24, 2007) for the proposition that Plaintiff cannot make out a

false arrest claim because according to the defendants, Plaintiff was not arrested. However, in

Bissinger, the Plaintiff had only been charged and sent a criminal summons, whereas here,

Plaintiff was handcuffed, placed into an unmarked police car, taken to a police station, and strip

searched. It isundisputed that a false arrest or false imprisonment occurs where (1) the defendant

intended to confine the Plaintiff; (2) plaintiff was conscious of the confinement; (3) the plaintiff

did not consent to the confinement; and (4) the confinement was not otherwise privileged". Of

Defendants'
these, the papers only argue issue (4), that the confinement was privileged by way

of probable cause. (Ex. 2). De Lourdes Torres v Jones, 26 N.Y.3d 742, 759 (2016); Donald v

Statc of New York, 17 NY3d 389, 394-395, 929 NYS2d 552 [2011] A plaintiff may bring suit

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for false arrest and imprisonment against one who has unlawfully robbed the plaintiff of his or

her "freedom from restraint of movement". De Lourdes, supra, citing Broughton v State of New

Y_ok, 37 NY2d 451, 456, 373 NYS2d 87 [1975], cert denied sub nom. Schanbarger v Kellogg,

423 US 929, 96 S Ct 277 [1975]; see Dan B. Dobbs et al., Torts § 41 [2d ed. 2011]. Here, the

Plaintiff's freedo

Case Info

Judge

Joan B Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

January 18, 2019

Case Filing Date

December 09, 2016

County

Parties

BUSHNELL, STEVEN JOSEPH Attorney for the Defendants
City of Mount Vernon Defendant
DIFIORE, ANTHONY J Attorney for the Defendants
John Doe 1 Defendant
John Doe 2 Defendant
John Doe 3 Defendant
JOSEPH, MICHAEL H Attorney for the Plaintiff
Komanjo Cayruth Plaintiff
LUNA-MOLE, ROSA Attorney for the Defendants
MATTHEW, LATOYA Attorney for the Plaintiff
NEEDHAM, DANIEL CHRISTIAN Attorney for the Plaintiff
QUINN, ANDREW CULLAN Attorney for the Defendants
SCHIEFFER, MATTHEW KELLY Attorney for the Defendants
DANIEL NAM Attorney
CRYSTAL CHUNG Attorney

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Motion-Secondary: Komanjo Cayruth v. City Of Mount Vernon, John Doe 1, John Doe 2, John Doe 3

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