The following e-filed documents, listed by NYSCEF document number (Motion 003) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132 were read on this motion to/for DISMISS. DECISION ORDER ON MOTION This action arises out of injuries allegedly sustained by plaintiff on March 8, 2018. Plaintiff alleges the following causes of action: assault, battery, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and discrimination pursuant to both the New York City Human Rights Law and the New York State Human Rights Law.1 Defendants the City of New York, Police Officer John A. Shapiro, and Police Officer Luigi Tirro (together, the City) now move for summary judgment in their favor seeking dismissal of all of plaintiff’s remaining claims. Plaintiff opposes and argues that numerous factual disputes exist that preclude an order granting summary judgment. I. Summary of Alleged Facts The action arises out of an incident that took place on March 8, 2018, when plaintiff Karl Ashanti (plaintiff), an attorney at Corporation Counsel (Corporation Counsel or the Law Department), was walking on Broadway towards Park Place in New York, NY toward his workplace. When plaintiff reached the corner of Park Place and Broadway, he observed defendant Police Officer Luigi Tirro (Officer Tirro) in the process of taping off the Broadway entrance to Park Place due to a falling ice condition, of which plaintiff was unaware. Plaintiff asked Officer Tirro permission to pass by the tape to walk to his job at the end of the block, on Church Street, and showed Officer Tirro his Corporation Counsel identification as proof of his employment. Officer Tirro allowed plaintiff to proceed. Plaintiff continued beyond the tape and stopped briefly at Dunkin Donuts halfway down the block before going to work. After exiting Dunkin Donuts, plaintiff continued to walk toward Church Street when he was stopped by Police Officer John A. Shapiro (Officer Shapiro). Plaintiff alleges that Officer Shapiro began shouting at plaintiff to turn around, whereupon plaintiff attempted to explain that Officer Tirro had given plaintiff permission to walk through the cordoned area. Plaintiff and Officer Shapiro disagree as to what next ensued. Plaintiff claims that he turned around and attempted to walk back from where he came pursuant to Officer Shapiro’s directive. See plaintiff’s EBT, NYSCEF doc. no. 112 at 50, lines 5-10. However, as he proceeded, plaintiff alleges that Officer Shapiro followed plaintiff and became more agitated. Id. at 51, lines 5-9. Plaintiff claims that Officer Shapiro began to shout at and shove plaintiff, and plaintiff attempted to back away from Officer Shapiro to avoid further physical contact and escalation of the situation. Id. at 48, lines 23-24; 52, lines 2-3; 71, lines 18-22. Conversely, Officer Shapiro testified that plaintiff continued walking West toward Church Street against police direction and toward the falling ice, that plaintiff physically delayed his arrest, argued with Officer Shapiro, and pushed against the officer. See Officer Shapiro EBT, NYSCEF doc. no. 115, at 104, lines 11-14; 114, line 18-115, line 7; 176, line 14-178, line 2; 178, lines 13-23; 188, lines 16-21. Officer Shapiro testified that following plaintiff’s conduct, he arrested plaintiff for obstruction of governmental administration in the second degree, resisting arrest, and harassment in the second degree. Following his arrest, plaintiff was suspended with pay while an investigation purportedly was conducted by Corporation Counsel. Following the investigation, Corporation Counsel determined that plaintiff violated the conditions of his employment on March 8, 2018 by improperly using his Law Department ID card to get past a police barricade. Corporation Counsel also appears to have based its determination on a separate incident that occured prior to plaintiff’s arrest, in which plaintiff had represented his wife in a case against a subsidiary of the City. Corporation Counsel offered plaintiff the option to resign in lieu of termination, which plaintiff accepted. Subsequently, the District Attorney’s office dismissed the obstruction of governmental administration and resisting arrest charges against plaintiff. Plaintiff’s remaining charge of harassment in the second degree was dismissed upon his acquittal following a one-day bench trial on August 14, 2018. Plaintiff now claims that he was falsely arrested and maliciously prosecuted, and that as a result of his arrest he was suspended and subsequently constructively terminated from his job as an Assistant Corporation Counsel. Plaintiff alleges that his constructive termination occurred because he is an African American male, and non-African American employees who had been arrested and charged with similarly severe or more egregious charges were not similarly immediately disciplined or terminated. II. Analysis It is a well-established principle that the “function of summary judgment is issue finding, not issue determination.” Assaf v. Ropog Cab Corp., 153 AD2d 520 (1st Dept 1989), quoting Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). As such, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. See Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985). Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of issues of fact. See Sillman, 3 NY2d at 404. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted. See Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dept 1990), citing Assaf, 153 AD2d at 521. If the existence of an issue of fact is even fairly debatable, summary judgment must be denied. See Stone v. Goodson, 8 NY2d 8, 12 (1960). a. False Arrest and False Imprisonment With respect to the allegations of false arrest and false imprisonment, the Court finds that genuine issues of material fact exist as to whether Officer Shapiro had probable cause to arrest plaintiff. To succeed on a claim for false arrest and false imprisonment, a plaintiff must show that: (1) the defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. See Broughton v. State of New York, 37 NY2d 451, 456 (1975). Probable cause to believe that a person committed a crime constitutes a complete defense to the claims of false arrest and unlawful imprisonment. See Marrero v. City of New York, 33 AD3d 556, 557 (1st Dept 2006). Probable cause also constitutes a defense to a malicious prosecution claim if the initial probable cause was present at the commencement of the prosecution. See Brown v. Sears Roebuck & Co., 297 AD2d 205, 211 (1st Dept 2002). An officer has probable cause to arrest if he or she knows facts and circumstances that would warrant a reasonably prudent person to believe that the suspect had committed or was committing a criminal offense. See Ricciuti v. N.Y.C. Transit Auth., 124 F 3d 123, 128 (2d Cir 1997); see also People v. Oden, 36 NY2d 382, 384 (1975). The determination as to the existence of probable cause is distinct from “whether guilt beyond a reasonable doubt could have been proven at a criminal trial.” Agront v. City of New York, 294 AD2d 189, 190 (1st Dept 2002) (citations omitted). The City argues that plaintiff’s claims for false arrest, false imprisonment, and malicious prosecution should be dismissed, because his arrest was based on probable cause. In support of its motion, the City submits, inter alia, the transcripts of the examinations before trial (EBTs) of plaintiff (NYSCEF doc. no. 73), Officer Shapiro (NYSCEF doc. no. 74), and Officer Tirro (NYSCEF doc. no 75). The City maintains that the testimony of Officers Shapiro and Tirro establishes that Officer Shapiro had probable cause to arrest plaintiff for obstruction of governmental administration2, disorderly conduct3, harassment in the second degree4, and resisting arrest5. Officer Shapiro testified that he repeatedly told plaintiff to turn around, plaintiff continued in the wrong direction despite Officer Shapiro’s directives, plaintiff made physical contact with Officer Shapiro, and plaintiff attempted to physically avoid arrest. See NYSCEF doc. no. 115 at 74, line 24-75, line 13; 164, line 19-165, line 3; 78 line 3-79, line 8; 207, lines 19-25; 104 lines 11-14; 114, lines 18-25. In opposition, plaintiff argues that factual disputes exist that preclude summary judgment, relying upon, inter alia, his EBT testimony (NYSCEF doc. no. 112) and surveillance video showing the encounter between plaintiff and Officer Shapiro (Exhibit I6). He testified that he was given express permission by Officer Tirro to proceed through the taped-off area of the sidewalk and that others walked through while his arrest took place. See plaintiff’s EBT, NYSCEF doc. no. 112 at 36, line 22-37, line 9. Plaintiff maintains that he never disobeyed any of Officer Shapiro’s demands and that he did not cross the street in order to get past Officer Shapiro. Id. at 42, lines 1-2; 47, line 25; 48, lines 1-5 Additionally, plaintiff asserts that he told Officer Shapiro that he was obeying him and would go back the way he came. Id. at 48, line 25-49, line 6. Therefore, plaintiff contends that there was no probable cause to arrest. With respect to the charges of harassment and resisting arrest, plaintiff maintains that he never pushed or initiated any physical contact with Officer Shapiro and that there is no evidence to support this allegation. Instead, plaintiff argues that the video recording of the incident shows Officer Shapiro pushing and grabbing plaintiff while he stood with his arms outstretched in a passive, non-aggressive position, holding his breakfast in one hand. Plaintiff further argues that there is no evidence that demonstrates that Officer Shapiro was obstructed from performing any function of his job or that any public inconvenience was caused as a result of plaintiff’s behavior. In fact, plaintiff claims that review of the surveillance video demonstrates that Officer Tirro and another police officer allowed most, if not all, people to pass through the taped-off area and that plaintiff did nothing to prevent Officer Shapiro from stopping them. Given the conflicting testimony of plaintiff and Officer Shapiro, it is clear that issues of fact preclude summary judgment on plaintiff’s claims of false arrest and false imprisonment. Plaintiff and Officer Shapiro testified differently as to, inter alia, what directives were given by Officer Shapiro, who instigated physical contact, whether plaintiff attempted to physically avoid arrest, and whether a public inconvenience or obstruction of government administration resulted. As such, whether or not Officer Shapiro had probable cause to arrest plaintiff requires, in large part, a credibility determination, which is not appropriately made on a summary judgment motion. See Hutchings v. Yuter, 108 AD3d 416, 417 (1st Dept 2013) (holding that “issues of credibility are not to be resolved on summary judgment”). On the record before the court and in light of the conflicting testimony, a determination cannot be made as a matter of law as to whether a reasonably prudent person would believe that plaintiff committed or was committing a criminal offense. See Ricciuti, 124 F 3d at 128; see also People v. Oden, 36 NY2d at 384. In fact, in its present form, the video surveillance appears to contradict at least some of the testimony of Officers Shapiro and Tirro, and further review at trial could shed light on exactly what occurred between plaintiff and Officer Shapiro on March 8, 2018. For the foregoing reasons, the City’s motion for summary judgment is denied with respect to plaintiff’s claims for false arrest and false imprisonment. b. Malicious Prosecution These same disputed issues of fact as to probable cause preclude the Court from finding, as a matter of law, that there was no malice in the arrest and prosecution of plaintiff. A malicious prosecution claim requires that plaintiff prove: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) a favorable termination of that proceeding; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice. See Broughton, 37 NY2d at 457. As previously determined herein (see Section II [a]), an issue of fact exists here as to whether probable cause existed at the time of the arrest is an issue of fact. The Court notes that, “it is long-settled that ‘the lack of probable cause may give rise to an inference of malice.’” Cameron v. City of New York, 598 F3d 50, 69 (2d Cir 2010) (citations omitted). Indeed, “[a]lthough probable cause and malice are independent elements of a malicious prosecution claim, a finder of fact may (but is not required to) infer malice from a lack of probable cause.” Vizcaino v. City of New York, 201 AD3d 538, 539 (1st Dept 2022). The City also argues that there was no actual malice in plaintiff’s prosecution because plaintiff and Officer Shapiro did not know each other prior to the incident, the video recording of the incident demonstrates the propriety of the interaction, and the judge overseeing the criminal trial declined to dismiss the charges prior to verdict. Contrary to the City’s position, the surveillance video does not demonstrate the propriety of the interaction, but, rather, as mentioned above, accomplishes the opposite effect. Review of the surveillance video seems to corroborate plaintiff’s position that Office Shapiro escalated the situation and instigated physical contact with plaintiff, who attempted to back away. See plaintiff’s Exhibit I (2); c.f. Duque v. City of New York, 2019 N.Y. Slip Op. 31837[U], 5 (Sup Ct, NY County 2019). Summary judgment is therefore denied with respect to the malicious prosecution claim. c. Intentional Infliction of Emotional Distress Plaintiff does not oppose dismissal of the intentional infliction of emotional distress claim. As such, plaintiff’s claim for intentional infliction of emotional distress is dismissed without opposition. See Disla v. Biggs, 191 AD3d 501, 503 (1st Dept 2021) (deeming claims not addressed by plaintiffs as abandoned). d. Assault and Battery The City further argues that plaintiff’s claims for assault and battery must be dismissed, because plaintiff was not put in imminent fear of injury, he suffered no physical injury, and his arrest was based on probable cause. An unlawful arrest generally constitutes assault and battery. See Rubio v. County of Suffolk, 01-CV-1806 (TCP), 2007 WL 2993830, at *4 (ED NY, Oct. 9, 2007). Accordingly, “any assault and battery claim that turns on the unlawfulness of the arrest,” will necessarily rise or fall with this Court’s decision on false arrest. Hilderbrandt v. City of New York, 2014 WL 4536736, *9 (ED NY, Sept. 11, 2014). As issues of fact remain as to whether plaintiff was unlawfully arrested, so too do issues of fact remain as to plaintiff’s assault and battery charge. Accordingly, summary judgment is denied with respect to plaintiff’s cause of action for assault and battery. e. Racial Discrimination Regarding plaintiff’s claims of racial discrimination, the Court finds that genuine issues of material fact exist as to whether plaintiff was subject to an adverse action and that the City’s actions occurred because of his race. Under the State Human Rights Law, Executive Law §290 (State HRL), plaintiffs must state a prima facie cause of action for employment discrimination by pleading that: (1) they are members of a protected class; (2) they are qualified to hold the position; (3) they suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 (2006) (internal citation omitted); see also Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 (2004). “The burden then shifts to the defendant to rebut plaintiffs’ prima facie case of discrimination with a legitimate reason for the firing…[upon which showing] the plaintiffs must show by a preponderance of the evidence that defendant’s reasons are pretextual.” Stephenson, 6 NY3d at 271 (internal citation omitted). While the analysis of pleading a discrimination claim under the City Human Rights Law, Administrative Code §8-101, et seq. (City HRL), follows the same four rubrics as the State HRL, the more liberal intent of the City HRL must be considered in evaluating the adequacy of a plaintiff’s claim. See Romanello v. Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884-885 (2013); Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 36-37 (1st Dept 2011); Local Law No. 85 (2005) of City of NY §7, amending Administrative Code §8-130 (declaring that the provisions of the City HRL “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws…have been so construed”). The City HRL applies a more lenient standard, wherein the plaintiff need “only show she was treated differently from others in a way that was more than trivial, insubstantial, or petty.” Dimitracopoulos v. City of New York, 26 F Supp 3d 200, 216 (ED NY 2014). However, the City HRL is not a “general civility code,” and a plaintiff must still show “that the conduct is caused by a discriminatory motive.” See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F 3d 102, 110 (2d Cir 2013). For purposes of this motion, the City does not dispute that plaintiff is a member of a protected class or was qualified to hold his position. However, the City does dispute that plaintiff sufficiently alleges that he was subjected to adverse employment actions under circumstances that give rise to an inference of discrimination. The City argues that plaintiff did not suffer an adverse action, because he chose to resign. The City also maintains that plaintiff cannot demonstrate that the City’s actions were motivated by discriminatory animus, aside from conclusory allegations. The City further notes that case law holds that an inference of discrimination does not exist where the decision-makers are of the same protected class as plaintiff, as here.7 Moreover, the City asserts that it has articulated legitimate, non-discriminatory reasons for its actions that cannot be shown to be a pretext for race discrimination (e.g. improper use of plaintiff’s Law Department ID and improper representation of plaintiff’s wife). Plaintiff argues that factual disputes preclude summary judgment on his racial discrimination claim. Plaintiff points out that his choice of resigning or being fired was constructive termination, which constitutes an adverse employment action, and that the cases cited by the City on such issue are inapposite. As proof of the City’s racial animus, plaintiff submits e-mail exchanges regarding treatment of similarly situated non-black colleagues8 who were arrested, but not terminated. See NYSCEF doc. no. 121. In contrast, plaintiff claims he was immediately suspended, banned from the Law Department premises, and disabled from accessing his work email and network. See NYSCEF doc. no. 111. Plaintiff also argues that the City’s proffered legitimate reasons for his termination are pretextual, because the hearing regarding his representation of his wife occurred well after his termination, and he did not use his Law Department ID for “personal advantage.”9 At the outset, the Court notes that in an employment discrimination matter, adverse action “may be shown by evidence that the employer gave the plaintiff the choice of resigning or being fired.” Green v. Town of E. Haven, 952 F3d 394, 404 (2d Cir 2020); see also Williams v. PMA Companies, Inc., 564 F Supp 3d 32, 48 (ND NY 2021). Therefore, the only issue that remains is whether the adverse action occurred under circumstances giving rise to an inference of discrimination. See Stephenson, 6 NY3d at 270; see also Forrest, 3 NY3d at 305. Plaintiff has produced comparator evidence, in the form of e-mails, of other individuals who were treated more favorably than plaintiff. These e-mails patently raise an issue of fact as to whether plaintiff was treated differently from other employees. As this is the City’s motion for summary judgment, the burden rests with the City to establish the absence of any material issues of fact. Although the e-mails (that were provided by the City in the course of discovery) do not establish the race of the comparators, the City did not annex to its reply any proof in its possession disputing that the race of plaintiff’s alleged comparators is different from his own. Regarding the racial classification of plaintiff’s’ supervisors, that they are the same as plaintiff may or may not weaken plaintiff’s claim, but in any case this fact does not serve to defeat it. See Kaiser v. Raoul’s Rest. Corp., 2012 NY Slip Op 31416(U) (Sup Ct, NY County 2012) (holding that “[t]he fact that a decision-maker belongs to the same protected class as plaintiff also weakens any inference of discrimination that could be drawn in the case”); see also Danzer v. Norden Sys., Inc., 151 F3d 50, 55 (2d Cir 1998) (“The proposition that people in a protected category cannot discriminate against their fellow class members is patently untenable”). Given the remedial purpose of the State and City HRL and the factual issues raised by plaintiff, summary judgment must be denied here. Viewing the facts in the light most favorable to plaintiff, as the Cout must, the City has failed to demonstrate the absence of genuine issues of material facts as to whether the City’s actions occurred because of plaintiff’s race or were pretextual and/or based on mixed motives. Therefore, the City’s motion for summary judgment on plaintiff’s discrimination claim is denied. f. Claims Against Officer Tirro The City also seeks dismissal of all claims against Officer Tirro, arguing that he is not a proper party because plaintiff discontinued his federal claim against Officer Tirro for failure to intervene, there is no equivalent state claim, and Officer Tirro never touched or arrested plaintiff. Plaintiff acknowledges that failure to intervene does not exist under New York State law. However, plaintiff alleges that Officer Tirro lied to Officer Shapiro about giving plaintiff permission to proceed beyond the police tape. Therefore, plaintiff argues that Officer Tirro used false evidence to establish an issue of fact as to the probable cause to arrest plaintiff, thereby becoming liable for plaintiff’s injuries. Plaintiff’s argument is unavailing. Neither plaintiff’s notice of claim nor the existing claims in his complaint contain any allegation that Officer Tirro provided false information to Officer Shapiro. As the claim against Officer Tirro for failure to intervene was discontinued, none of the remaining causes of action lie as against him. Officer Tirro is therefore not a proper party to this action, and all of the claims against him are dismissed. III. Conclusion The Court declines to dismiss plaintiff’s claims for false arrest, imprisonment, and malicious prosecution, given the numerous issues of fact as to whether there was probable cause to arrest plaintiff and whether there was actual malice. As plaintiff’s claims for assault and battery turn on the unlawfulness of his arrest, such claims also survive the City’s motion. Plaintiff’s intentional infliction of emotional distress claim is dismissed, without opposition. Further, there is no remaining cognizable claim against Officer Tirro. Finally, the Court denies that portion of the City’s motion seeking to dismiss plaintiff’s complaint for employment discrimination, as triable issues of fact exist here that preclude the granting of summary judgment. Accordingly, it is hereby ORDERED that defendant City of New York’s motion for summary judgment and dismissal is denied in part and granted in part, as follows: It is ORDERED that plaintiff’s claim for intentional infliction of emotional distress is dismissed without opposition; and it is further ORDERED that the part of the City’s motion seeking summary judgment and dismissal of plaintiff’s claims against individual defendant Officer Tirro is granted and the complaint is dismissed in its entirety as against said defendant only; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving parties shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: January 9, 2023
