Motion-Secondary: Carl Knight v. The New York State Police, The New York Police Department, The Office Of Court Administration

On June 14, 2019 a Motion-Secondary was filed involving a dispute between Carl Knight, and The New York Police Department, The New York State Police, The Office Of Court Administration, for Torts - Other (false arrest, etc.) in the District Court of Orange County.

Preview
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE

CARL KNIGHT,
AFFIRMATION IN SUPPORT
Plaintiff,
- against -
Index No: EF00467 4-2019
File No: 2019-062505
THE NEV/ YORK STATE POLICE; THE NEV/ YORK
Assigned Judge: Hon. Milligram
POLICE DEPARTMENT, and THE OFFICE OF COURT
ADMINISTRATION,
Return Date: February 28,2020
Defendants.

DENNIS J. RYAN, an admitted attorney licensed to practice in New York and an

Assistant Corporation Counsel of the City of New York affirms the truth of the following under

the penalties of perjury pursuant to CPLR $ 2106, upon information and belief based upon the

records in the office of said Corporation Counsel:

1. This affirmation is submitted by defendant, THE CITY OF NEV/ YORK

S/[I/A "THE NEW YORK POLICE DEPARTMENT" (hereinafter "Defendants," "NYPD," or

"the City"), in support of its motion: (l) for an Order pursuant to CPLR $ 3211(a)(7) dismissing

Plaintiff Carl Knight's complaint for failing to state a cause of action; (2) for an Order pursuant

to CPLR $ 3211(aX5) dismissing Plaintiff's false arrest and false imprisonment claims, as these

causes of action are time-barred by the statute of limitations; and (3) for such other and further

relief as this Court may deem just and proper.

PRELIMINARY STATEMENT

2. On August 27,2019, Defendants, "The New York State Police" and "The

Office of Court Administration" filed a motion to dismiss Plaintiff's complaint. On November

13, 2019, the Hon. Elaine Slobod issued a decision dismissing Plaintiff's claims as to those

1 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

defendants. As such, Defendants, "The New York State Police" (hereinafter, "NYSP") and, "The

Office of Court Administration" (hereinafter, *OCA"), are no longer parties to the instant action.

A copy of this Order is annexed hereto as, Exhibit A.

3. Plaintiff brought this action to recover damages for claims of false arrest,

false imprisonment, and malicious prosecution stemming from his arrest by members of the New

York State Police Department on September 23,20181 in the vicinity of Route 32, Town of

Newburgh, County of Orange, New York. See Plaintiff's Summons and Complaint. annexed

hereto as Exhibit B - pg. 4,1124. Plaintiff was arrested on an outstanding bench warrant and a

charge of Criminal Possession of a Controlled Substance in the Third Degree with intent to sell,

Penal Law ("P.L.") $ 220.16. See Exhibit B- pg. 4,1127.411 charges against Plaintiff were later

dismissed. Id. at pg. 7- 1148.

4. Specifically, Plaintiff alleges that: (1) he was falsely arrested and

unlawfully confined by defendants and (2) that he was maliciously prosecuted as a result of this

anest. Id.- pg. 8-10,9[J[ 49-66.

5. The City now moves to dismiss Plaintiff's complaint in its entirety on the

grounds that: (l) Plaintiff has failed to state a cause of action, as the New York City Police

Department is a non-cognizable, non-suable entity as a matter of law, (2) Plaintiff's claims for

false arrest and false imprisonment must be dismissed as a matter of law as to the NYPD because

these claims are time-barred by the statute of limitations, and (3) even accepting all of the facts

of the complaint in the light most favorable to the Plaintiff, he fails to allege a cause of action

against the New York City Police Department.

t
Note: The Plaintiff appears to have erroneously stated this date of incident to be September23,2018, despite the
other exhibitsshowing the actual date of incident to be September 23,2017 .

-2-

2 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

6. Should the Court grant the City's motion this case will be disposed of in

its entirety.

PROCEDURAL HISTORY

7. On or about July 24, 2018, Plaintiff served the New York City

Comptroller a Notice of Claim via USPS Certified Mail. A copy of Plaintiff's Notice of Claim

and mailing envelope are attached hereto as, Exhibit C.

8. On or about July 30, 2018, the New York City Comptroller received

Plaintiff's Notice of Claim. See Receiving stamp on pg. 3 of Exhibit C.

9. On June 14, 2019, Plaintiff commenced an action against THE NEW

YORK STATE POLICE, THE NEW YORK POLICE DEPARTMENT, and THE OFFICE OF

COURT ADMINISTRATION, by filing a Summons and Verified Complaint and purchasing

Index Number 8F004614-2019. See Exhibit B. On September 27 ,2019, Defendants joined issue

by service of its Verified Answer, Combined Demands, and Cross-Claims. Within that, the City

asserted various defenses including the statute of limitations, Plaintiff's failure to state a cause of

action, the NYPD's non-suable status, and failure to allege a prima facie case. A copy of the

Answer is attached hereto as, Exhibit D.

10. On or about September 12, 2019, the City received a Summons and

Complaint (Exhibit B) for the instant action. The exact date or form of service is unknown, as no

Affidavit of Service was filed with the Court, as required under CPLR $ 308(b).

11. On or about November 13,2019, the Hon. Elaine Slobod issued a decision

on the New York State Atforney General's motion dismissing Plaintiff's claims as to all other

defendants, leaving the New York City Police Deparlment as the sole defendant remaining

a
J-

3 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

12. On January 22,2020, the City and Plaintiff's counsel appeared before this

honorable Court, where a Preliminary Conference in this matter was held.

ARGUMENT

POINT I
THE COMPLAINT SHOULD BE DISMISSED AS
AGAINST THE NEW YORK CITY POLICE
DEPARTMENT AS IT IS A NON.SUABLE
AGENCY OF THE CITY OF NEW YORK

13. The New York City Charter provides that, "[a]ll actions and proceedings

for the recovery of penalties for the violation of any law shall be brought in the name of the City

of New York and not in that of any agency, except where otherwise provided by law." New York

City Charter $ 396. Thus, the New York City Police Department, as an agency of The City of

New York, is not a suable entity because it lacks an independent legal existence. Jo)¡ner-El v.

Giammarella, 2OIO U.S. Dist. LEXIS 40417 (S.D.N.Y. 2010) (NYPD is a non-suable entity);

Vasquez v. City of New York, 2000 U.S. Dist. LEXIS 8887, *14 (S.D.N.Y. 2000) ("Under the

City Charter, New York City agencies such as the NYPD are organizational subdivisions of the

City of New York lacking independent legal existence, and therefore, cannot be sued under

$1983." [internal citations omitted]); East Coast Novelt]¡ Co v. Cit]¡ of New York, 781 F. Supp.

999, *1010 (S.D.N.Y. l9g2)("As an agency of the City, the Police Department is not a suable

entity").

14. Additionally, coufts have continuously held that the NYPD is a non-suable

entity. See gg Ali v Cit)¡ of New York,2OIl N.Y. Misc. LEXIS 2167 (Sup. Ct. N.Y. Co. 2011)

(NYPD entitled to dismissal of plaintiff's complaint in its entirety as it is a non-suable entity);

see also Jenkins v. Cit)¡ of New York, 478 F3d 76, 93 (2d Cir. 2007) (NYPD is a non-suable

-4-

4 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

entity). Simpson v. Citlr of New York,2014WL273858, at xl (Sup. Ct., N.Y. Co.2014),

Alvarez v. Cit)¡ of New York, 134 A.D.3d 599,600 (1st Dep't 2015) (Sweeny, J., concuning)

(dismissing claims "against the NYPD on the ground that it is a 'non-suable entity"'); Ç4gi4l¿

NY _ÇitJ_ PSiLice Dept. .2014 NY Slip O¡r 3 135 IIL]l [Su¡r Ct, l]ronx County 20141) (tlismissing all

clainls against the NYPD cn glouncls thal. insofar NYPD is nof. a sualile entily ûre complaint

lÌrilecl to state ä c¿luse ol action).

15. In the instant action, Plaintiff has named, "The New York Police

Department," along with the other state agency defendants, neglecting to actually name the City

of New York. Since the City of New York is not named and the NYPD cannot be sued as a

separate entity, the Court must dismiss this action as to the NYPD. This defense was raised in the

City's Answer. See Exhibit D - pg. 8, \t 12-14. This alone is sufficient to dismiss Plaintiff's

complaint, as it is well-established in case law.

16. Accordingly, Plaintiff's complaint should be dismissed in its entirety

against the New York City Police Department.

POINT II
PLAINTIFF DID NOT TIMELY SERVE A
NOTICE OF CLAIM AS REOUIRED BY GML
$ 50-e AND PLAINTIFF'S CLAIMS FOR
FALSE ARREST AND FALSE
IMRPISONMENT AGAINST DEFENDANT
NYPD MUST BE DISMISSED

11. To bring a tort action against a municipality in the State of New York,

plaintiffs must first serve a notice of claim with the municipality, "within ninety days after the

claim arises," though plaintiffs may apply to the court for leave to serve a late notice of claim.

See GML $ 50-e. As filing a notice of claim is a condition precedent to commencement of an

action against a municipality, failure to file a notice of claim is grounds for dismissal of all state

-5-

5 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

law causes of action. See GML $ 50-e(1Xa); see also Natoli v Bd. of Educ., 217 A.D.9l5 ,9r5

(2nd Dep't 1950) (holding that even failure to allege in plaintiff's complaint that a notice of

claim was filed is grounds for dismissal of state law causes of action). Courts may only grant

leave to serve a late notice of claim if the application is made within one year and ninety days

after the cause of action accrued. Pierson v. New York, 56 N.Y.2d 950, 954 (N.Y. 1982).

Furthermore, notices of claim served outside of the GML $ 50-e ninety day time limit without

leave of court are nullities. Wollins v. N.Y.C. Bd. of Educ., I A.D.3d 30, 31 (N.Y.App. Div. lst

Dep't 2004) (holding that the petitioner's three days late notice of claim, served without leave of

Court, was a nullity). When a notice of claim is served more than one year and ninety days after

the accrual of the cause of action, courts lack authority to grant a plaintiff leave to serve a late

notice of claim. Pierson v. N ew York. 56 N.Y.2d at955

18. In the instant case, Plaintiff failed a late Notice of Claim without leave of

Court. Accordingly, Plaintiff's state law causes of action of false arrest and false imprisonment

must be dismissed for failure to comply with GML $ 50-e. The complaint in this action fails to

mention that a Notice of Claim was even filed, much less a timely one, as Natoli notes is

required. See Natoli at 915; see also G.M.L. $ 50-e. Furthermore, because more than one year

and ninety days have passed since the accrual of these causes of action, the court is without

discretion to grant a petition to file a late Notice of Claim should plaintiff choose to do so. As

such, the relevant causes of action should be dismissed with prejudice.

Point III
PLAINTIFF DID NOT TIMELY SERVE A
SUMMONS AND COMPLAINT AS
REOUIRED BY GML $ sO.i AND AS SUCH
PLAINTIFF'S STATE LAW CLAIMS FOR
F'AI,SE ARRE,ST AND FALSE
IMPRISONMENT AGAINST DEFENDANT
CITY MUST BE DISMISSED
-6-

6 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

L9. In the State of New York, any state tort action against a municipality must

be commenced within one year and ninety days of the accrual of the cause of action. As General

Municipal Law $ 50-i states in relevant part:

No action or special proceeding shall be prosecuted
or maintained against a city, county, town, village,
fire district or school district. . . unless . . . (c) the
action or special proceeding shall be commenced
within one year and ninety days after the happening
of the event upon which the claim is based ....

General Municipal Law g 50-i.

20. It is well-settled that the statute of limitations is strictly construed, and that

courts must dismiss actions when a plaintiff commences the action more than one year and

ninety days after accrual. See. e.g. Gallowa)¡ v. New York Cit)¡ Police Department, 7 A.D.3d

444 (lst Dep't 2004) (affirming the Supreme Court's dismissal where notice of claim was timely

but no complaint was filed or served on the City of New York within one year and ninety days

after accrual of the cause of action). Moreover, "no court shall extend the time limited by law for

the commencement of an action." CPLR $ 201.

21. In the instant case, Plaintiff's state law causes of action for false arrest and

false imprisonment accrued on September 23, 20172, when Plaintiff was arrested by members of

the NYSP, as in an ordinary negligence action, "the date of the injury is the benchmark for

determining the accrual of a cause of action." Blanco v. American Telephone and Telesraph

Compan)¡, 90 N.Y.2d 757,767 (1997); see also Plummer v. New York City Health & Hosp

Cotp., 98 N.Y.2d 263 (2002) (a tort claim govemed by G.M.L. $ 50 e "accrues on the date of the

2
As noted supra,Plaintiff's date of incident appears to be September 23,2017, as noted in his Noticeof Claim
(Exhibit C), with the September 23,2018 date of incident in\24 of his complaint (Exhibit B) being a
typographical error. Furthermore, his Notice of Claim in this action appears to have been filed before the
typographical date of September 23,20 I 8 appearing in his complaint.

-7 -

7 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

alleged wrongful act."). Thus, the one-year ninety-day statute of limitations set out in GML $

50-i for Plaintiff's state law causes of action for false arrest and false imprisonment expired on

December 22,2018. Plaintiff did not commence the instant litigation by filing a Summons with

Endorsed Complaint until June 14,2019. See Exhibit B. Thus, Plaintiff did not commence his

lawsuit until approximately I year and almost nine months after his causes of action for false

arrest and false imprisonment arose, which is outside of the applicable limitations period of one

year and ninety days. Plaintiff's action for false anest and false imprisonment is therefore time

baned, and this court should dismiss the instant litigation for untimeliness and failure to comply

with GML $ 50-i.

POINT IV

THE COURT SHOULD DISMISS PLAINTIFF'S
CAUSE OF ACTION FOR MALICIOUS
PROSECUTION UNDER STATE LAW BECAUSE
PLAINTIFF FAILS TO DEMONSTRATE ACTUAL
MALICE IN PLAINTIFF'S PROSECUTION AS TO
THE NEW YORK CITY POLICE DEPARTMENT.

22. In order to establish a claim for malicious prosecution, plaintiff must

prove the following four elements: (1) the commencement or continuation of a criminal

proceeding by the defendant against the plaintiff ; (2) the termination of the proceeding in the

favor of the accused; (3) the absence of probable cause for the criminal proceeding; and (4)

actual malice. Broughton v. State of New York, 37 N.Y.2d 451, 457 (1975). It is the plaintiff's

burden to prove all of these elements, and a failure to prove any one of the elements is fatal to

plaintiff's Cause of Action for malicious prosecution. See Hollender v. Trump Villaee Co-op.,

Inc., 58 N.Y.2d 420, 461 (1983); Martin v. Alban]¡, 42 N.Y.2d 13 (1977). It is well-settled that

in malicious prosecution cases, if the police had probable cause to anest, a plaintiff must show

that facts emerged following the arrest to vitiate probable cause for the prosecution. Drummond

-8-

8 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

v. Castro, 522 F.Supp.2d 667, 678 (S.D.N.Y. 2007). The actual malice prong of a malicious

prosecution claim need not be reached if probable cause for the plaintiff's prosecution has been

established, as the plaintiff must prove all four required elements for a Cause of Action for

malicious prosecution.

A. Plaintiff Cannot Demonst(ate Actual Malice For His Prosecution

23. Actual malice "[m]eans that the defendant must have commenced the prior

criminal proceeding due to a wrong or improper motive, something other than a desire to see the

ends of justice served." Nardelli v. Stamberg,44 N.Y.2d 500, 502-503 (1978). Actual malice

has been described as "conscious falsity." Munoz v. Cit)¡ of New York, l8 N.Y.2d 6,9 (1966).

24. There is no cause of action for negligent investigation in New York, and

the actual malice standard is a significantly higher threshold then simple negligence by police

officers in the conducting of their investigations. Russ v. State Emplo)¡ees Credit Union, 298

A.D.zd 791 (3d Dept. 2OO2); Co)¡ne v. State of New York, 120 A.D.zd 769, 770 (3d Dept.

1986). Rather, the standard requires a showing that the conduct of the police was so egregiously

separated from the acceptable police activity as to demonstrate an intentional and reckless

disregard for proper police procedure. Lee v. Cit)¡ of Mt. Vernon, 49 N.Y.2d 1041 (1980);

Gisondi, 72 N.Y.2d at285.

25. In the instant case, plaintiff has not discovered and cannot offer any

evidence that the NYPD officer he references in J[ 30,35-37 of his complaint (Exhibit B) was

compelled by a wrong or improper motive when he properly conducted a thorough search to

determine whether the warrant plaintiff was arrested on was still valid and in effect. Therefore,

plaintiff has failed to demonstrate actual malice for his prosecution as it relates to the NYPD.

Plaintiff has failed in his complaint to even demonstrate how the NYPD's subsequent

-9 -

9 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

notification to the NYSP that the warrant was no longer valid would support any theory by which

the NYPD would be liable for any resulting prosecution or detention, which were separate and

apart from that warrant. To continue his case under such a theory would be a punitive measure

when, in fact, the NYPD showed the utmost due diligence by promptly reporting back to the

NYSP that the underlying warrant was no longer valid. Because plaintiff cannot demonstrate

actual malice on part of the City, his state cause of action for malicious prosecution must be

dismissed as a matter of law.

B. There was Probable Cause to Prosecute Plaintiff as He Was Indicted

26. Furthermore, according to the plaintiff's complaint, after the NYPD

promptly notified the NYSP that they did not wish to extradite or hold him based on the nature of

the warrant's status, the Plaintiff was subsequently held, arraigned, indicted, and detained, none

of which was under any direction of the New York City Police Department. See Exhibit B pg. 6.

It is clear that any resulting or continued prosecution by the Orange County District Attorney's

Office or the NYSP would have no bearing or relevance on the liability of the NYPD after the

NYPD promptly informed them they did not wish to have him held on the wamant.

27. Even if the Court were to find that the NYPD would remain liable for the

resulting prosecution under any other theory, it is well settled that an indictment creates a

presumption of probable cause for the purpose of a malicious prosecution claim. De Lourdes

Torres, 26 N.Y.3d 742; cíting Colon v. New York, 60 N.Y.2d78,455 N.E.2d 1248 (1983); See

Grucci v. Grucci, 20 N.Y.3d 893, 981 N.E.2d 248 (2012>; Savino v. Cit)¡ of New York, 331 F.3d

63 (2d Cir. 2003); Obilo v. Citv Univ. of New York, 01 CV 5118 (DGT),2003 U.S. Dist. LEXIS

2886, at *35 (E.D.N.Y. Feb. 28, 2003). "In New York, a grand jury is authorized to vote to

indict when it finds that 'the evidence before it is legally sufficient to establish that the defendant

-10-

10 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

committed an offense, . . . and competent and admissible evidence before it provides reasonable

cause to believe that such person committed such offense." Bro v. Cit of New

200 F. Supp. 2d 4ll,42l (S.D.N.Y. 2002) (citing N.Y. CnIu. PRoc. Law $ 190.65 (McKinney

1993)). The conclusive presumption of probable cause "based on a grand jury indictment is 'so

strong that it may only be overcomeby evidenc¿ demonstrating that the Defendants engaged in

fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith."'

Broqdon,200 F. Supp.2dat42l (citing Bernard v. United States,25F.3d 98, 104 (2dCir.

1994)) (emphasis added). See also De Lourdes Torres 26 N.Y.3d 142 (holding that the

presumption may be overcome "by evidence establishing that the police witnesses have not made

a complete and full statement of facts . . . to the District Attomey, that they have misrepresented

or falsified evidence, that they have withheld evidence or otherwise acted in bad faith.") Rivas

v. Suffolk Count)¡, 326 F. Supp. 2d 355, 363 (E.D.N .Y . 2004) (holding that "in the absence of

any evidence that the Defendants - or any other officers or prosecutors - acted in bad faith or

gave perjured evidence before the grand jury or without any other exculpable evidence, or

documentary evidence of any kind, no reasonable juror could find that [the plaintiffl could

overcome the presumption of probable cause that arises from the indictment").

28. Further, once a criminal defendant is arraigned, any further criminal

proceeding is effectuated at the discretion of the District Attorney's Office, which is an entity

completely independent of any municipal defendants. The NYPD is a separate entity from the

Orange County District Attomey's Office, just as it is from the City's district attorneys' offices.

See Brown v. Cit)¡ of New York, 60 N.Y.2d 897, 898 (1983); Matter of Saccioccio v. Lange, 194

A.D.2d 794 (2d Dept. 1993). The actions and statements of the District Attorney's Office -
whose office was nonetheless acting within the scope of its official duties - cannot be imputed to

- 1l -

11 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

the municipal defendants in this action, as the District Attomey's Office is an entirely different

entity in an entirely different jurisdiction. Leftenant v. City of New York, 70 A.D.3d 596 (lst

Dept.2010).

29. Here, the Plaintiff was indicted by a grand jury in Orange County. See

Exhibit B- pg. 6, 9[ 39. As such, there is a presumption that there was sufficient probable cause

to prosecute the Plaintiff in this matter for the purposes of a malicious prosecution claim.

C. The NYPD Did Not Initiate Plaintiff's Prosecution

30. It is clear from Plaintiff's complaint that the NYPD did not initiate the

Plaintiff's prosecution, since the NYSP and the Orange County District Attorney's Office elected

to continue prosecuting Plaintiff, despite the NYPD promptly notifying the NYSP that they did

not intend to extradite for the erroneous bench warrant.

31. The federal courts have interpreted and applied well-settled state case law

on this very topic. In cases of police misconduct, where charges of malicious prosecution are

leveled at a police officer, "a malicious-prosecution claim cannot stand if the decision made by

the prosecutor to bring criminal charges was independent of any pressure exerted by the police"

Hartman v Moore, 547 U.S. 250,253, (2006); Alcantara v Citl¡ of New York, 646 F.Supp.zd

449, 457 (SDNY 2009). This is because there is a presumption that a prosecutor exercises

independent judgment in deciding whether to initiate and continue a criminal proceeding. See

Alcantara at 458. Thus, to establish that a police officer initiated the persecution, the misconduct

alleged must be more than merely reporting a crime, or giving testimony; it must be established

that the police officer influenced the prosecutor's decision to prosecute. See Espada v Schneider,

522 F.Supp .2d 544,553 (S.D.N .Y. 2007) ["Though an officer's corroboration of the facts alleged

in the complaint has been held to create a triable issue of fact as to the initiation element

-12-

12 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

of malicious prosecution, we are concemed with the application of such a rigid rule of causation

in this case because Officer Schneider's actions are consistent with merely reporting the results

of his investigation and acting at the behest of the prosecuting attorney. Espada has not come

forward with any compelling proof of active and purposive conduct on the part of Officer

Schneider, such as encouraging or importuning the prosecutor to act, such a claim is not

actionable" (intemal citations omitted).1.

32. In this case, even accepting all of the Plaintiff's allegations as true, the

NYPD did not initiate or continue the Plaintiff's prosecution. In Mazza v. City of New York, the

Court noted that, "[u]nder New York law, '[a] criminal action is commenced by the filing of an

accusatory instrument with a criminal court."' Mazza v. City of New York,1999 U.S. Dist.

LEXIS 13192, 17-18 (E.D.N.Y. July 13, 1999) (citing N.Y. Crim. Proc. Law $ 100.05).

Moreover, the District Attorney's Office exercised independent judgment in deciding to initiate

the prosecution against plaintiff. See Hartman v. Moore, 547 U.S. 250,253 (2006)l Alcantara at

457.The NYPD did not file any of the accusatory instruments in connection with this case.

33. Since plaintiff's complaint fails to demonstrate how the NYPD showed

any malice in this case or how it initiated the prosecution of the Plaintiff, the NYPD in this

action cannot be held liable for the discretionary actions of the Orange District Attorney's

Office. Furthermore, plaintiff was indicted, which creates a presumption of probable cause for

the purposes of a malicious prosecution claim. As such, this Court should dismiss plaintiff's

claim for Malicious Prosecution.

CONCLUSION

34. The City respectfully requests this complaint be dismissed in its entirety

with prejudice.

-t3-

13 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

35. Plaintiff has failed to state a cause of action in his complaint, as the NYPD

is a non-co gnizable,non-suable entity. Furthermore, Plaintiff's claims for false arrest and false

imprisonment must be dismissed, as these causes of action are time-barred by the statute of

limitations with Plaintiff's late filing of the Notice of Claim and his Summons and Complaint.

Finally, even accepting all facts in Plaintiff's complaint as true, Plaintiff has failed to make a

showing in his complaint of any malice shown by the NYPD or involvement in Plaintiff's

subsequent prosecution, thus warranting dismissing of his malicious prosecution claim for failing

to state a cause of action.

36. The City respectfully requests an Order pursuant to CPLR $ 3211(aX7)

dismissing Plaintiff Carl Knight's complaint for failing to state a cause of action, for an Order

pursuant to CPLR $ 3211(aX5) dismissing Plaintiff's false arrest and false imprisonment claims,

as these causes of action are time-barred by the statute of limitations, and (3) for such other and

further relief as this Court may deem just and proper.

\ryIIEREFORE, the City respectfully requests that its motion to dismiss be granted in its

entirety, and for such other and further relief as is deemed necessary, just and proper.

fSignature Page to Followl

-L4-

14 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

Dated: Bronx, New York
February 4,2020

JAMES E. JOHNSON
Corporation Counsel
Attorney for the Defendant
THE CITY OF NEW YORK S/IVA "The New
York Police Department"
100 Church Street
New York, New York 10007
Tel: (718) 620-135

By:
J.
Assistant Counsel

BY E.F'ILING

JAMIE T. FERRARA
Ferrara Law
Attorney for Plaintiff Knight
211 Main Street
Goshen, NY 10924

-15-

15 of 16
FILED: ORANGE COUNTY CLERK 02/04/2020 11:14 AM INDEX NO. EF004674-2019
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/04/2020

Index No. EF00467 4-2019
SUPREME COURT OF THE STATE OF NEV/ YORK
COUNTY OF ORANGE
CARL KNIGHT,

Plaintiff
- against -

Case Info

Judge

Sandra B Sciortino Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

February 04, 2020

Case Filing Date

June 14, 2019

County

Parties

ABISSI, HEATHER MARIE Attorney for the Defendants
Carl Knight Plaintiff
Counsel, Corporation Attorney for the Defendants
FERRARA, JAMIE T. Attorney for the Plaintiff
MCGUIRE, MILDRED A. Attorney for the Defendants
RUBINSTEIN, HEATHER REBECCA Attorney for the Defendants
RYAN, DENNIS JAMES Attorney for the Defendants
The New York Police Department Defendant
The New York State Police Defendant
The Office of Court Administration Defendant
JAMIE TARALLO Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Carl Knight v. The New York State Police, The New York Police Department, The Office Of Court Administration

Preview

Related Topics

Case Info

Parties