Campagna v. Arleo

Fisher, J.,

concurs in part and dissents in part and votes to modify the order appealed from by deleting the provision thereof granting that branch of the plaintiffs’ cross motion which was for summary judgment on the issue of liability pursuant to General Municipal Law § 205-e, and substituting therefor a provision denying that branch of the cross motion; as so modified, votes to affirm, with the following memorandum, in which Florio, J.E, concurs:

I respectfully disagree with the majority’s conclusion that that branch of the plaintiffs’ cross motion which was for summary judgment on the issue of liability under General Municipal Law § 205-e should have been granted. As the majority correctly points out, recovery under that section requires a showing, inter alia, of “the manner in which the [police officer] was injured” (Williams v City of New York, 2 NY3d 352, 363 [2004]). Here, apart from a copy of the pleadings and an unverified bill of particulars, the only evidence offered by the plaintiffs in support of their cross motion was a transcript of the defendant Ruth Perez’s plea allocution in connection with a single charge of obstructing governmental administration in the second degree, and a computer printout indicating that two of Ms. Perez’s daughters, the defendants Sabrina Perez and Christina Perez, pleaded guilty to disorderly conduct. Notably absent from the record was any competent evidence establishing precisely how, and by whom, any of the plaintiffs allegedly were injured, and whether such injuries “occurred directly or indirectly as a result of” the defendants’ failure to comply with *531the statutes they pleaded guilty to having violated (General Municipal Law § 205-e [emphasis added]). Without such evidence, the plaintiffs could not establish their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Therefore, in my view, the cross motion should have been denied regardless of the sufficiency of the defendants’ opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Moreover, although I agree with the majority’s disposition of the defendants’ motion for leave to file a proposed amended answer to assert various counterclaims, I do so on grounds different from those relied upon by the majority. The proposed counterclaims alleged violations of 42 USC § 1983 based on several different theories. To the extent they asserted claims based on theories of false arrest and false imprisonment, they were unquestionably barred by the defendants’ respective guilty pleas (see Keyes v City of Albany, 594 F Supp 1147, 1155 [1984]; cf. Zwecker v Clinch, 279 AD2d 572, 573 [2001]; Bennett v New York City Hous. Auth., 245 AD2d 254 [1997]). On the other hand, to the extent the proposed counterclaims alleged that the plaintiffs used excessive force in making the arrests, they are not so barred. “The elementary requirements of a use of force rule under § 1983 must be that it neither permits ‘brutal police conduct’ nor allows such ‘application of undue force’ that the police conduct ‘shocks the conscience’ ” (Jones v Marshall, 528 F2d 132, 139 [1975] [citations omitted]). The fact that police have probable cause to arrest an individual who later pleads guilty to the offense for which he or she is arrested does not establish that the arresting officers did not use excessive force in making the arrest. Thus, the defendants’ pleas of guilt do not immunize the plaintiffs from proposed counterclaims alleging excessive force (see Keyes v City of Albany, supra at 1154-1155). Indeed, this Court has held that the existence of probable cause for an arrest “does not bar causes of action sounding in assault and battery based on the use of excessive force” (Bennett v New York City Hous. Auth., supra at 255).

Nevertheless, I concur with the majority’s ultimate conclusion that all of the proposed counterclaims in this case were “palpably insufficient,” because the defendants failed to attach as exhibits to their motion any properly verified amended pleading or affidavit making out a prima facie basis for the proposed counterclaims (see Mohan v Hollander, 303 AD2d 473, 474 [2003]; Morgan v Prospect Park Assoc. Holdings, 251 AD2d 306 [1998]).