Wilson v. City of New York

2017 NY Slip Op 1475, 147 A.D.3d 664, 46 N.Y.S.3d 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 2017
• Docket: 3212 302005/12
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered September 21, 2015, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the false arrest, false imprisonment, assault, and battery claims, and denied plaintiff’s motion for partial summary judgment on the false arrest and false imprisonment claims, unanimously affirmed, without costs.

Defendants established prima facie that the arresting officer had probable cause to arrest plaintiff for criminal trespass in the third degree (Penal Law § 140.10 [a]). The theater manager had reported to the police that plaintiff and others in her group were smoking marijuana and engaging in disruptive behavior, and had refused the manager’s repeated directives to leave the theater. Upon entering the theater, the officer detected the odor of marijuana. He watched the group refuse to leave when, at his behest, the manager asked again (see People v Bigelow, 66 NY2d 417 [1985]). Plaintiff failed to raise an issue of fact; indeed, her version of the events alone supports a finding of probable cause for her arrest for criminal trespass.

Plaintiff offered no competent proof to show that the officer’s allegedly excessive force was unreasonable in the face of her active resistance to arrest (see Koeiman v City of New York, 36 AD3d 451 [1st Dept 2007], lv denied 8 NY3d 814 [2007]). Plaintiff also failed to show that she suffered compensable injury.

We have considered plaintiff’s remaining arguments and find them unavailing.

Concur — Sweeny, J.P., Andrias, Manzanet-Daniels, Gische and Webber, JJ.