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False Arrest: Guntlow v. Barbera

By: Daily Record Staff//August 25, 2010

False Arrest: Guntlow v. Barbera

By: Daily Record Staff//August 25, 2010

Appellate Division, Third Department

False Arrest

Guntlow v. Barbera
Appealed from Supreme Court, Albany County

Background: The appeal is from a trial court order that granted motions by the defendants — Marc Barbera, the City of Albany, Albany Police Department, Anthony Ryan and Anthony Battuello — for summary judgment dismissing the complaint against them. In July 2006, the plaintiff, then 68 years old, attended an American Idol concert at the Pepsi Arena in the City of Albany. Defendant Marc Barbera, a state trooper who also attended the concert, had the plaintiff escorted from her seat by security and arrested after the plaintiff allegedly struck his wife, Alisha Barbera. According to the plaintiff, Alisha Barbera and her 4-year-old daughter stood up during the concert, thereby obstructing plaintiff’s view. The plaintiff contends Alisha Barbera and her daughter were the only persons standing, and that she merely tapped Alisha Barbera on the shoulder and asked her to sit down. The plaintiff further averred that when she informed the security guards that she had not assaulted anyone, Marc Barbera began “scream[ing] in [her] face,” saying she had “assaulted his wife,” before flipping open his wallet and informing the plaintiff that he was a state trooper. Officers from the defendant Albany Police Department arrived, including Anthony Ryan and Anthony Battuello, and the plaintiff was placed under arrest for harassment in the second degree and endangerment of the welfare of a child. The plaintiff was taken to an Albany Police Department precinct, where her arrest was processed, then was shackled to a bench until the concert was over, at which point she was taken back to the Pepsi Arena. The Albany County District Attorney moved to dismiss the charges against the plaintiff in the interest of justice due to Alisha Barbera’s failure to cooperate and “based on the facts and circumstances of [the] case.” That motion was granted. The plaintiff then brought action alleging negligence, false arrest or imprisonment, assault and battery, malicious prosecution and claims under 42 USC §§1983 and 1985. The supreme court granted motions by Marc Barbera, Ryan, Battuello, the city and its police department for summary judgment dismissing the complaint against them, prompting the appeal.

Ruling: The court modifies and reinstates the plaintiff’s cause of action for deprivation of civil rights under 42 USC §1983 against Marc Barbera, Ryan and Battuello, and the causes of action for false arrest or imprisonment, assault and battery and malicious prosecution against the defendants. The parties’ sharply divergent accounts of the arrest create questions of fact regarding the existence of probable cause. The plaintiff indicated that she merely tapped Alisha Barbera on the shoulder and politely asked her to sit down, which does not fall within the purview of Penal Law §240.26(1). The court also notes that Marc Barbera, Ryan and Battuello’s deposition testimony does not agree on who made the decision to arrest the plaintiff. The extent of the inquiry and whether Ryan actually relied on the information obtained and arrested plaintiff, as opposed to merely acquiescing in Marc Barbera’s request that the Albany police arrest the plaintiff, are called into question by Alisha Barbera’s testimony and that of the eyewitnesses, who uniformly denied that the plaintiff struck Alisha Barbera’s face.

Yanique L. Burke of Costello, Shea & Gaffney LLP for the appellant; Julie M. Sheridan, assistant New York State Attorney General, for respondent Marc Barbera; Jessica A. McClung of Rehfuss, Liguori & Associates PC for the City of Albany

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