The following papers read on this motion:Notice of Motion and Affidavits XMemorandum of Law in Support of Motion XAffirmation in Opposition XReply Affirmation N/A The plaintiff initiated this action sounding in violation of Fourth Amendment under 42 USC §1983, false arrest, malicious prosecution, assault, negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent supervision. The plaintiff’s allegations arise from her arrest which occurred on December 29, 2013 for violating an existing order of protection against the plaintiff which provided, in pertinent part, that the plaintiff stay away from her cousin, Melinda Ferraro, as well as her home, or wherever she may be, in addition to direct or indirect contact.Upon the defendant’s submissions, and it is undisputed herein, the plaintiff’s claims, with the exception of malicious prosecution, are time-barred.It is well established that a claim under 42 USC §1983 must allege that a constitutional violation of a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers, well settled as to constitute a custom or usage with the force of law. (Pendleton v. City of NY, 44 AD3d 733). In order to demonstrate that law enforcement used excessive force in effectuating an arrest, a plaintiff must demonstrate that the arresting officer’s actions were objectively unreasonable. (Holland v. City of Poughkeepsie, 90 AD3d 841). An officers’ conduct is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (Ostrander v. State of NY, 289 AD2d 463). It has been held that the mere routine of handcuffing a suspect or arrestee does not establish a cognizable excessive force claim., (Usavage v. Port Authority of New York and New Jersey, 932 F.Supp.2d 575), and property damage does not constitute an injury. (Gagliano v. County of Nassau, 31 AD3d 375). “In analyzing an excess force claim under the Fourth Amendment, the reasonableness question is whether the officers’ action were objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” (Usavage, supra). “A de minimis use of force by police in effectuating an arrest will rarely suffice to state a claim for excessive force under the Fourth Amendment.” (Usavage, supra).In the context of malicious prosecution and false arrest claims,” [p]robable cause requires only information sufficient to support a reasonable belief that an offense has been committed.” (Reape v. City of N.Y., 66 AD3d 755; CPL §140.10(1)). A person is guilty of criminal contempt in the second degree under Penal Law §2150.50(3) when engaged in the “[i]ntentional disobedience or resistance to the lawful process or other mandate of a court,” and under Family Court Act §168(1), an order of protection constitutes authority for a police officer to take into custody a person who reasonably appears to have violated the terms of that order. (Dioguardi v. City of New Rochelle, 179 AD2d 798).Here, the plaintiff admitted to driving past her cousin’s house in violation of the court order, testified that she called her attorney to advise her attorney that she drove past her cousin’s house, and also testified “Yes, my attorney said that she was aware that I drove down that block and I saw [the Cousin].” The plaintiff was placed under arrest for violating the order of protection the next day at her home, was handcuffed and transported to the 7th Precinct, where she was placed in a holding cell, searched and fingerprinted, and later that day, arraigned and released on her own recognizance. The plaintiff received an adjournment in contemplation of dismissal. (“ACOD”). The plaintiff’s claim that the police officers “ripped” open her front door in and of itself is insufficient to warrant plaintiff’s claim of excessive force, malicious prosecution, false arrest, or a violation of plaintiff’s Fourth Amendment rights pursuant to 42 USC §1983. Additionally, the absence of a conviction is not in and of itself a favorable determination. (Martinez v. City of Schenectady, 97 NY2d 78). It has been held that an ACOD generally does not constitute a favorable determination as it leaves open the question of the accused’s guilt. (Smith-Hunter v. Harvey, 95 NY2d 191).Accordingly, in light of the foregoing, the defendant’s motion is granted and therefore, the plaintiff’s action is dismissed.Dated: August 20, 2018
