Lui Yi v. City of New York

In an action to recover damages, inter alia, for false arrest, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Price, J.), dated March 6, 1995, which granted the defendants’ cross motion for summary judgment dismissing the complaint and denied, as moot, the plaintiff’s motion to strike the defendants’ answer, and (2) an order of the same court dated April 17, 1995, which, in effect, denied his motion for leave to renew. Ordered that the orders are affirmed, with one bill of costs. It is well settled that if the defendant can establish the existence of probable cause for the plaintiff’s arrest, a cause of action to recover damages for false arrest does not lie (see, Holmes v City of New Rochelle, 190 AD2d 713, 714). On their cross motion for summary judgment, the defendants submitted, inter alia, the deposition testimony of the officer who arrested the plaintiff. Her testimony established that she arrested the plaintiff after observing him, at a drug-prone location, hand money to another man and receive from that man a paper envelope or packet commonly used in packaging cocaine. We agree that this testimony was sufficient to establish the existence of probable cause for the plaintiff’s arrest (see, People v McCray, 51 NY2d 594, 604; People v Schlaich, 218 AD2d 398), and the defendants’ prima facie entitlement to summary judgment. Further, since the plaintiff failed to submit sufficient evidence in opposition to the defendants’ cross motion to raise a triable question of fact on the issue of probable cause, the court properly granted the defendants’ motion for summary judgment, and the order dated March 6, 1995, should be affirmed. The order dated April 17, 1995, which, in effect, denied the plaintiff’s motion for leave to renew, also should be affirmed. The court correctly determined that the plaintiff failed to offer a valid excuse for his failure to submit the affidavit submitted in support of the motion for leave to renew in opposition to the defendants’ original cross motion for summary judgment (see, Gulledge v Adams, 108 AD2d 950). Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.