This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 21
Maria De Lourdes Torres,
            Appellant,
        v.
Police Officer Jones, et al.,
            Defendants,
City of New York,
            Respondent.
(And Another Action.)




          David H. Perecman, for appellant.
          Devin Slack, for respondents.
          New York State Trial Lawyers Association, amicus
curiae.




ABDUS-SALAAM, J.:
          In a false arrest action under federal and state law,
evidence that the defendant police officers arrested the
plaintiff without probable cause, after inventing a patently
false confession, may establish the officers' liability for
detaining the plaintiff without any lawful privilege.   Evidence

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                                 - 2 -                        No. 21

that the officers forwarded the false confession to prosecutors
can satisfy the commencement element of a malicious prosecution
cause of action, and the proof of the absence of probable cause
for the prosecution and the police's transmission of the
fabricated evidence can overcome the presumption of probable
cause arising from a grand jury's indictment of the plaintiff.
The same proof can support an inference that the police acted
with actual malice in commencing the prosecution.    Applying these
principles to the consolidated appeals now before us, we hold
that the courts below improperly granted summary judgment to the
individual defendants on plaintiff's false arrest and malicious
prosecution claims under New York common law and 42 USC § 1983.
We further conclude that, although plaintiff maintains triable
state law claims against defendants the City of New York and the
New York City Police Department, the lower courts properly
granted summary judgment to those governmental entities on
plaintiff's claims under 42 USC § 1983 in accordance with Monell
v New York City Dept. of Social Servs. (436 US 658 [1978]) and
its progeny.
                                  I.
                                   A
          On the night of September 24, 2002, Einstein Romeo
Acuna's son found Acuna's dead body in front of the doorway to
the apartment that they shared in Queens.    Acuna's son called the
police and reported the death.    As later recounted by the


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individual defendants in their depositions in the instant civil
actions, defendants Detective Michael McEntee and Detective
Daniel Corey responded to the scene.    There, the detectives saw
Acuna's naked corpse in a pool of blood in the hallway in front
of Acuna's apartment.    Evidently, Acuna had been stabbed
repeatedly.1   The detectives went inside the apartment, in which
there were no signs of forced entry.    As the detectives examined
the apartment, they observed some blood stains on the walls of
the interior hallway, dining area and kitchen.    However, the
majority of the blood at the scene had pooled near the entrance
to the apartment.    Additionally, the police found some blood in a
nearby stairwell.
            Detective Corey, defendant Detective Erik Hendricks and
other officers canvassed the building for suspects, but found
none.    Corey and Hendricks interviewed Acuna's neighbors about
the crime, and some of the neighbors reported that they had heard
screaming and someone falling to the floor in the hallway.2

     1
        On the day after the crime, the Office of the Chief
Medical Examiner (OCME) completed an autopsy report, in which the
medical examiner determined that Acuna had over 20 stab wounds,
including some that were between five and seven inches deep.
With the exception of Detective Corey's deposition testimony, the
record does not indicate whether or when the detectives learned
of the autopsy results. At his deposition in the eventual civil
action here, Detective Corey revealed that he had become aware of
the autopsy results at some unspecified point in time.
     2
        In opposition to defendants' summary judgment motion in
the instant civil actions, plaintiff submitted a police report
indicating that a neighbor had told the detectives that, on the
night of the crime, the neighbor had heard footsteps on the roof.

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Meanwhile, another detective assigned to the case, defendant Irma
Santiago, contacted Acuna's sister-in-law, who stated that she
had spoken to Acuna via telephone at about 7:30 p.m. on the night
of his death.   This information placed Acuna's time of death at
approximately 8:00 p.m.
          On a return trip to the apartment on or shortly after
the date of the crime, Detective McEntee discovered a woman's
crucifix necklace on the nightstand in Acuna's bedroom.    When
interviewed by the police, however, Acuna's relatives essentially
stated that, to their knowledge, Acuna did not have a girlfriend.
Additionally, Acuna's family and neighbors did not identify
anyone who had a motive to murder Acuna.
                                  B
          According to the police witnesses' testimony at a
suppression hearing in the criminal prosecution that led to the
instant lawsuit, developments following the police's initial
investigation led them to contact plaintiff Maria De Lourdes
Torres.   Specifically, Detectives Santiago and McEntee eventually
learned that Acuna's telephone records showed that, on the day of
the murder, someone had called Acuna's cellular telephone from a
telephone located at plaintiff's residence.   The records further
reflected that Acuna had repeatedly received calls from that
telephone on various occasions.
          On October 11, 2002, Detective McEntee went to the
apartment.   There, McEntee met the couple who owned the


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apartment, and in response to his inquiries, they said that they
did not know Acuna and had not called him.    The couple further
explained that, besides themselves, only plaintiff, who rented a
room from them, could have accessed the telephone in the
apartment.    Soon thereafter, McEntee spoke to plaintiff in the
presence of the apartment owners.    Displaying a photograph of
Acuna, McEntee asked plaintiff whether she knew the man in the
photograph, and she claimed that she did not know him.
          The police did not find plaintiff's denials convincing,
and so on the night of October 25, 2002, Detectives Hendricks and
Santiago went to plaintiff's apartment.    Santiago asked plaintiff
whether she knew Acuna, and plaintiff denied that she knew him.
When Santiago told plaintiff that telephone records showed that
someone had called Acuna from her apartment, plaintiff claimed
that she had not called him.    Given that this interview occurred
in the presence of the owners of the apartment, Santiago became
concerned that plaintiff was reluctant to give candid answers to
her questions in front of them.    Accordingly, Santiago asked
plaintiff if she would come to the local police precinct, and
plaintiff agreed to accompany Santiago there.
          At the precinct, Santiago and Hendricks asked plaintiff
again whether she knew Acuna and had telephoned him on the day of
the murder.    About 15 minutes into this conversation, Santiago
showed Acuna's telephone records to plaintiff, at which point she
acknowledged that she knew Acuna.    Plaintiff stated that she had


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previously lied about calling Acuna on the day of the crime
because she had used the telephone in her apartment to make the
calls, which the owners had forbidden her to do, and she did not
want to admit her unauthorized use of the telephone in their
presence.   After receiving this explanation, Santiago permitted
plaintiff to leave.
            In early November 2002, the police contacted plaintiff
and asked her whether she would submit to a polygraph
examination, and she replied that she would.   At about 7:00 a.m.
on November 8, 2002, Detective Santiago and defendant Detective
Denitor Guerra picked up plaintiff at her home and transported
her to the precinct, where they arrived at about 7:30 a.m.
Plaintiff waited in a room with the detectives for almost two
hours, during which time the detectives did not question her.
Detectives Santiago, Guerra and Hendricks then took plaintiff to
the District Attorney's Office.   There, at about 9:30 a.m.,
plaintiff signed a consent form and agreed to take the polygraph
test, and the detectives sat with her while they waited for a few
hours for the polygraph device to be available and ready for use.
At about 12:30 p.m., defendant Lieutenant Vilardi, the Deputy
Chief Investigator at the District Attorney's Office,
administered the polygraph examination, and Santiago and Vilardi
asked plaintiff questions relating to Acuna's murder, repeating
each question multiple times and in Spanish.   The examination
lasted about 40 minutes.


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           After the examination, the detectives took plaintiff
out for lunch.    At about 4:30 or 5:00 p.m., they brought
plaintiff back to the precinct and placed her in an interview
room, and Santiago and Guerra periodically stayed in the room
with plaintiff.    At about 11:30 p.m., Santiago read Miranda
warnings to plaintiff in Spanish, and on a form, plaintiff
indicated that she understood each Miranda right.     Santiago
questioned plaintiff about Acuna's murder, and Detective Corey
periodically entered the room, though he did not participate in
the questioning of plaintiff.    From approximately 1:00 a.m. to
1:45 a.m., plaintiff confessed to murdering Acuna in self-
defense.   Plaintiff asked Santiago to write down her confession,
and Santiago complied, generating a three-page written version of
plaintiff's statement in Spanish.     Plaintiff signed the
statement.
           Next, the detectives requested permission to search
plaintiff's room, and plaintiff signed a consent form authorizing
the search.   Later that morning, Detective Corey searched the
room.   Corey recovered the clothes that, according to plaintiff's
statement, she had worn during the murder.     Corey also found a
knife in the room.    The police arrested Torres for Acuna's
murder.
                                  C
           The District Attorney's Office convened a grand jury in
this case, and in January 2003, the grand jury returned an


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indictment charging plaintiff with two counts of murder in the
second degree (see Penal Law §§ 125.25 [1]; 125.25 [2]) and one
count of criminal possession of a weapon in the fourth degree
(see Penal Law § 265.01 [2]).   Subsequently, plaintiff filed an
omnibus motion for, among other things, dismissal of the
indictment and suppression of her statement to the police and of
the evidence recovered from her room.
          In February 2003, while plaintiff's omnibus motion was
pending, OCME completed preliminary forensic testing on the blood
found in Acuna's apartment.   The test results indicated that the
blood belonged to Acuna and two unknown males.   At that time,
OCME had not compared plaintiff's DNA to the DNA present in the
blood in Acuna's apartment.   The record does not reveal whether
the investigating detectives learned of the preliminary DNA test
results during the criminal proceedings against plaintiff.
          At a Huntley/Mapp hearing following an in camera
inspection of the grand jury minutes, in summer 2003 prosecutors
presented the testimony of Detectives Santiago, Corey and
McEntee, as well as the testimony of Lieutenant Vilardi.    Those
witnesses described their interactions with plaintiff on October
11, October 25, November 8 and November 9, 2002, in essentially
the manner set forth above.   At the close of the hearing, Supreme
Court denied plaintiff's suppression motion.
          Meanwhile, in January 2004, OCME completed its
comparison of plaintiff's DNA to the DNA in the blood samples


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taken from Acuna's apartment, and the results showed that
plaintiff's DNA was not present in the blood samples.     The record
does not indicate whether the detectives learned about these test
results during the criminal proceedings against plaintiff.
           After Supreme Court denied plaintiff's suppression
motion, plaintiff moved to reopen the suppression hearing and
call Detectives Guerra and Hendricks to testify at the reopened
hearing.   Supreme Court granted plaintiff's application to reopen
the suppression hearing, and at the reopened hearing, Detectives
Guerra and Hendricks testified to their roles in the
investigation as recounted above.     Crediting their testimony,
Supreme Court again denied plaintiff's suppression motion.
           In January 2007, the District Attorney's Office moved
to dismiss the charges against plaintiff, and the court granted
the motion.
                                  D
           In September 2007, plaintiff commenced the first of the
instant civil rights actions by filing a complaint in Supreme
Court against the City of New York (the City) and several police
officers involved in the investigation of Acuna's murder,
including Lieutenant Vilardi and Detectives Santiago, Guerra,
Hendricks, Corey and McEntee.   In the complaint, plaintiff
asserted a cause of action against the City and the individual
defendants for violation of 42 USC § 1983, a cause of action
against the City for negligent supervision and a cause of action


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against the individual defendants for wanton, wilful and reckless
conduct.   Plaintiff maintained, inter alia, that the City had
negligently failed to supervise the officers who wrongfully
suspected her of killing Acuna and had negligently furthered her
wrongful arrest and prosecution.   Only the City answered in the
first action.   Plaintiff did not serve any of the other
defendants and unsuccessfully sought an extension of time in
which to do so.
           Thereafter, plaintiff commenced the second lawsuit by
filing a complaint against the New York City Police Department
(NYPD), Lieutenant Vilardi and Detectives Santiago, Guerra,
Hendricks and Corey.   In that complaint, plaintiff asserted
causes of action for: defendants' denial of plaintiff's
constitutional rights to due process and equal protection in
violation of 42 USC § 1981; the individual defendants' unlawful
detention of her in violation of 42 USC § 1983; the NYPD's
pattern and practice of improper treatment of arrestees in
violation of 42 USC § 1983; the NYPD's failure to supervise the
individual defendants who improperly arrested plaintiff in
violation of 42 USC § 1983; defendants' unlawful malicious
prosecution of plaintiff under the common law; defendants'
unlawful false arrest and imprisonment of plaintiff under the
common law; and defendants' improper conduct warranting punitive
damages.   Plaintiff successfully served the City and Detectives
Santiago, Guerra and Hendricks with the summons and complaint in


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                               - 11 -                         No. 21

the second action; consequently, the City's attorney appeared and
answered on behalf of the NYPD and those detectives in that
action.
                                  E
            Detectives McEntee, Santiago, Corey and Hendricks were
deposed in these actions.3
            At their depositions, the detectives gave an account of
the disputed events that was mostly consistent with the
prosecution witnesses' testimony at the suppression hearing.
However, while the detectives' suppression hearing testimony
covered primarily their interactions with plaintiff, their
deposition testimony recounted their investigation at the crime
scene and the other developments in the investigation summarized
above.    And, the detectives provided new details about their
discussions with plaintiff on November 8 and November 9, 2002.
            According to their deposition testimony, just prior to
the polygraph examination on November 8, 2002, Detective McEntee
showed plaintiff a crime scene photograph of Acuna and asked her
to confirm that she knew Acuna.    Upon seeing the picture,
plaintiff cried out, but she immediately returned to a state of
calm in a manner that struck McEntee as "[c]old blooded."



     3
        Immediately prior to the start of Corey's deposition,
counsel for the City acknowledged on the record that he
represented Corey and appeared on Corey's behalf "without any
jurisdictional defenses or anything like that or statute of
limitations."

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Following the polygraph examination, Lieutenant Vilardi informed
Santiago that the results were "[i]nconsistent, that it was like
she was lying."   Vilardi told Detective Corey, however, that the
results were "inconclusive."
          After the polygraph examination and a lunch break, at
about 11:30 p.m., the detectives interrogated plaintiff as
described at the suppression hearing.      At some point during the
interrogation, the interviewing detectives told Detective Corey
that defendant was crying and claiming that she had accidentally
killed Acuna.   At around that time, plaintiff orally confessed to
her interrogators that she had killed Acuna in self-defense, and
Santiago wrote versions of that statement in English and Spanish.
According to her paperwork, Santiago finished writing the
statement at about 4:45 a.m., not at 1:45 a.m. as she had
suggested in her hearing testimony.
          The English-language version of the statement declared
that plaintiff had met Acuna two years before the murder.
According to the statement, they started a friendship that later
became a sexual relationship.    One day during the week prior to
the date of the murder, plaintiff was having sex with Acuna, and
he demanded that she remove her crucifix necklace while they were
engaging in this intimate activity.      She complied and left the
necklace in his bedroom.   Later that week, plaintiff called Acuna
to ask him to return the necklace, and although they made various
plans for its return later that week, those plans fell through.


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          Regarding the day of the murder, plaintiff's written
statement said:
          "The following day, Tuesday, I called him
          again it was around 12:30 or 1:00 in the
          afternoon and he asked me if I liked the way
          he made love to me. We talked a little bit,
          and he told me it was okay to visit him
          because his son was working and he was going
          to be home alone. I bath[ed], dressed and
          fixed myself up so I could go and visit him.
          When I arrived at his house he asked me why
          it took so long. Immediately I went to his
          bedroom, and he removed my clothing and I
          didn't resist. He made love to me. . . . I
          was laying on his bed and he immediately
          asked me to pass him a condom, and he
          commence[d] to remove his shorts. . . . After
          we had sex, he grabbed my clothes and threw
          them at me, and he stated, 'Get dress[ed]',
          and [he] told me I had to leave." (emphasis
          added).
          Following this explanation of the origin of the
confrontation between plaintiff and Acuna, the statement
continued:
          "I didn't want to leave, but he insisted that
          I leave, and he continued pulling me and I
          resisted. He pulled me all the way from the
          bedroom to the front door. I tried to resist
          him, but he grabbed me by my hair and
          clothing and pushed me out. I pushed the
          door again and reentered. . . . I asked him
          what's happening, and he said there were
          people coming to paint and he didn't want
          them to see me there. . . . I asked him are
          they going to be males or females, why is
          there so much rush for me to leave. He
          smirked like he was making fun of me, and he
          repeated again 'leave now'. He then began
          pulling me harder and he slapped me and began
          grabbing me by my clothing and pulled me to
          the area by the dining area. He was grabbing
          me very hard by the hair, and grabbed it and
          slammed my head against the wall, and
          continued slapping me on the face. I wasn't

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            defending myself, but he kept hitting me and
            I defended myself. . . . He dragged me to the
            kitchen and at this point I was looking to
            defend myself. I had to defend my life, he
            was hitting very hard. I was losing my mind
            and saw everything dark. . . At this moment I
            couldn't see anything. I don't know where I
            grabbed the knife from, I only knew that I
            had to defend myself. I had the knife in my
            hand, I thought he would get scared, but he
            didn't. He continued to grab my hair,
            pulling my head forward. I went forward
            towards him, and I had the knife in my hand
            and I stabbed him I don't know how many
            times. Possibly more than two times. I at
            this moment, I lose sense of time. I saw
            blood coming from his chest. I was seeing
            everything dark and my head was dizzy. I
            didn't see if he fell to the floor. I ran
            towards the front door and left. I got on
            the elevator, and the elevator stopped on the
            third floor. A white female got onto the
            elevator, and I had my hair loose and I tried
            to hide my face with my hair. I don't know
            what I did with the knife, I can't remember
            where I got rid of it. At no moment did I
            want to do him any harm or hurt him, but he
            hurt me so hard that I had to defend myself."
            (emphases added).


After making this statement, plaintiff consented to a search of
her room.    The detectives arrested plaintiff.
            The police found a knife and some clothes in
plaintiff's room, but there was no blood on those items or
anywhere in her residence.    At some point after plaintiff's
statement and arrest, because plaintiff had claimed in her oral
statement that she believed some sheet rock had been broken when
Acuna slammed her head into the kitchen wall of his apartment, a
detective went back to the apartment to check the kitchen wall


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for signs of damage.   The detective found no dents in the wall
and reported as much to Detective Corey.   The police also asked
some of Acuna's neighbors whether they had seen plaintiff in the
elevator on the night of the crime, and none of them had.
          "Years later," the District Attorney's Office told
Corey that the DNA of one male other than Acuna had been found in
the blood samples recovered from the scene of the crime.
Otherwise, Corey never saw any lab reports or DNA test results.
At their depositions, Detectives McEntee and Corey were
questioned about whether NYPD supervisors encouraged swift
arrests in homicide cases.   McEntee testified that the NYPD
considered the number of cases closed by arrest as one factor
among many in a detective's performance evaluation.   Corey
testified that his superiors did not pressure him in any way to
resolve the investigation of Acuna's murder.
                                 F
          At her deposition, plaintiff described her own
background, explaining that she was an undocumented Mexican
immigrant who sold flowers on Roosevelt Avenue in Queens, that
she spoke some English but was far more fluent in Spanish and
that she had only an elementary school education.   About a year
before Acuna's death, plaintiff met him while she was selling
flowers, and she started a friendship with him which, after a
couple of weeks, became a sexual relationship.
          According to plaintiff, when the detectives interviewed


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her on October 11, 2002, she told Detective McEntee that she did
not know Acuna.    Plaintiff hid her relationship with Acuna
because she was afraid to reveal that, in the course of that
relationship, she had called him from her apartment in violation
of her landlords' directive not to use the telephone there.
Additionally, plaintiff had difficulty recognizing Acuna in the
photograph displayed by McEntee because Acuna did not have a
beard in that photograph, as he did for the entire period in
which they had known each other.
          On October 25, 2002, plaintiff initially concealed from
Detectives Santiago and Hendricks her familiarity with Acuna and
her phone calls to him, but she did so only because she spoke to
those detectives in the presence of the couple from whom she
rented a room and did not want to divulge her unauthorized use of
their telephone.    Following that initial conversation, plaintiff
willingly accompanied the detectives to the precinct, and she
acknowledged her connection to Acuna.    After her arrival at the
precinct, the detectives took plaintiff to an interview room, and
they placed Acuna's bloody clothes and photographs of the grisly
scene of his murder on a table in the room.    The detectives asked
plaintiff whether she was afraid, and she answered that she was
scared because she had "never seen anything like that."    The
detectives asserted that plaintiff was scared because she had
committed the murder, but she denied this.    The detectives told
her that her "conscience wo[uld]n't leave [her] alone


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afterwards," and they left her alone in the interview room with
the clothes and crime scene photographs, causing her to cringe in
the corner of the room for the next hour.    The detectives then
returned to the room and told plaintiff that she could leave, but
that she should not depart the country because they would contact
her again.   Plaintiff left the precinct.
           On November 8, 2002, plaintiff agreed to take a
polygraph examination, and Detectives Santiago, Guerra and
Hendricks drove her to the precinct. There, the detectives
interrogated her for three to five hours, again displaying the
bloody clothes and the photographs.    Santiago told her that she
"had to" claim that she had killed Acuna in self-defense.
Santiago directed plaintiff to claim that Acuna had grabbed her
by the hair and thrown her against the wall.    Santiago also
accused plaintiff of killing Acuna out of jealousy, saying that
"if [she] had done it to accept it" so that Santiago would help
her.   Santiago reiterated that Santiago would tell plaintiff what
to say so that Santiago could help her, but plaintiff continued
to deny that she had killed Acuna.     The detectives left plaintiff
alone in the room, and she started to cry.
           Later that day, Santiago returned to the interview room
and started writing something on a piece of paper.    Santiago told
plaintiff to write that she had committed the crime, but
plaintiff refused and insisted on her innocence.    Santiago next
told plaintiff to "say that it was in self-defense."    Santiago


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presented plaintiff with a written statement to this effect, but
plaintiff refused to sign it.    Santiago asserted that signing the
statement was "for [plaintiff's] good" and that Santiago "would
let [her] go" if she signed it.    Subsequently, raising her voice,
Santiago told plaintiff that it was her fault that Santiago
"didn't go sleep with her son," adding that Santiago would soon
make "a definite decision."
           At that point, another detective entered the room.
This detective offered plaintiff food and soothingly informed her
that if she signed the statement, that would help her.   The
detective pointed out that the statement would indicate that she
had acted "in self-defense and that is what many women did."     The
detectives repeated that plaintiff could leave if she signed the
statement, and she finally signed it in the early hours of
November 9 because Detective Santiago "made [her] sign that
paper."   At some point, Santiago sought to videotape her
interview with plaintiff, but plaintiff refused to be taped.
           After plaintiff signed the confession drafted by
Detective Santiago, the detectives placed her in a holding cell.
Santiago offered plaintiff her business card and said that
plaintiff should call her if plaintiff wanted the advice of a
mother.   Thereafter, the police took plaintiff to the jail at
Riker's Island, where she remained for the duration of the
criminal proceedings against her.




                                - 18 -
                                - 19 -                        No. 21

                                  G
           After discovery, defendants moved for summary judgment
dismissing the complaints in both actions.   In support of the
motion, defendants asserted, inter alia, that the detectives'
deposition testimony and other evidence established that they had
lawfully arrested plaintiff based on her suspicious conduct,
including her voluntary confession that she had murdered Acuna.
Defendants also argued that they had demonstrated their
entitlement to judgment as a matter of law on the probable cause
and malice elements of plaintiff's false arrest and mprosecution
claims.   And, defendants maintained that plaintiff had neither
pleaded nor proven that the City had a custom or practice of
committing constitutional violations that could render it liable
under 42 USC § 1983.   Additionally, defendants argued that
plaintiff had abandoned her claims against the individual
defendants on whose behalf the City had not interposed an answer
because she had failed to seek entry of a default judgment
against them within one year.
           Plaintiff opposed defendants' motion, asserting that
the detectives' testimony did not conclusively establish that
they had probable cause to arrest her and that her testimony
created a triable issue of fact as to whether they had improperly
relied on her false confession to justify the arrest.   In
opposition to the City's claim that no City policy or practice
had caused any violation of plaintiff's constitutional rights,
plaintiff submitted an affidavit from an expert witness, Evrard

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Williams, a former NYPD homicide detective who last served in
1985.   Williams opined that the detectives had coerced plaintiff
into confessing by promising that they would release her for
doing so, and he maintained that the detectives must have taken
such action "because of a strong policy that was pervasive
throughout the police department to quickly investigate and close
out investigations so that statistically it would appear that the
police department was quickly solving crimes, particularly
homicides."   In support of plaintiff's claim that the City and
the NYPD had a policy of pressuring police officers to make
arrests without probable cause, she also cited Detective
McEntee's testimony that police officials evaluated each
detective's performance based in part on the number of cases the
detective has closed via arrest.
           In a short form order filed in the first action on
August 10, 2012, Supreme Court dismissed plaintiff's claims
against all of the individual defendants as abandoned, and it
dismissed the complaint against the City on the merits.
Plaintiff appealed the August 10 order to the Appellate Division.
Evidently, judgment was never entered in the first action.
           In a short form order filed in the second action on
August 9, 2012, Supreme Court dismissed plaintiff's claims
against Lieutenant Vilardi and Detective Corey as abandoned, and
it dismissed her claims for malicious prosecution, false arrest,
violations of 42 USC § 1981 and violations of 42 USC § 1983 on


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the merits.   On November 30, 2012, Supreme Court, relying on the
August 9 order, entered judgment dismissing the complaint against
defendants in the second action.       Plaintiff appealed from both
the August 9 order and the November 30 judgment.       The Appellate
Division consolidated plaintiff's appeals in both actions.
          The Appellate Division unanimously affirmed the August
10 order and the November 30 judgment dismissing the complaints
in both actions, and it dismissed the appeal from the August 9
order in the second action on the ground that the issues raised
in that appeal had been brought up for review and considered on
the appeal from the November 30 judgment (see Torres v Jones, 120
AD3d 572, 572-575 [2d Dept 2014]).       On the merits, the Appellate
Division held that defendants had made a prima facie showing of
entitlement to summary judgment on all of plaintiff's claims, and
it ruled that plaintiff had failed to rebut defendants' showing
with proof sufficient to demonstrate the existence of any triable
issue of fact (see id. at 574-575).       We granted plaintiff leave
to appeal, and we now modify the Appellate Division's order.
                               II.
                                   A
          Under the common law, a plaintiff may bring suit for
false arrest and imprisonment against one who has unlawfully
robbed the plaintiff of his or her "freedom from restraint of
movement" (Broughton v State of New York, 37 NY2d 451, 456
[1975], cert denied sub nom Schanbarger v Kellogg, 423 US 929


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                              - 22 -                           No. 21

[1975]; see Dobbs' Law of Torts § 41 [2d ed. 2011]).   To prevail
on such a cause of action, the plaintiff must demonstrate that
the defendant intended to confine the plaintiff, that the
plaintiff was conscious of the confinement, that the plaintiff
did not consent to the confinement and that the confinement was
not privileged (see Donald v State of New York, 17 NY3d 389,
394-395 [2011]; Martinez v City of Schenectady, 97 NY2d 78, 85
[2001]; Parvi v City of Kingston, 41 NY2d 553, 556 [1977]).     For
purposes of the privilege element of a false arrest and
imprisonment claim, an act of confinement is privileged if it
stems from a lawful arrest supported by probable cause (see
Gisondi v Town of Harrison, 72 NY2d 280, 283 [1988]; Broughton,
37 NY2d at 458; see also Fortunato v City of New York, 63 AD3d
880, 880 [2d Dept 2009]).   "Probable cause consists of such facts
and circumstances as would lead a reasonably prudent person in
like circumstances to believe plaintiff guilty" (Colon v City of
New York, 60 NY2d 78, 82 [1983]).   "Probable cause does not
require proof sufficient to warrant a conviction beyond a
reasonable doubt but merely information sufficient to support a
reasonable belief that an offense has been or is being committed"
by the suspected individual, and probable cause must be judged
under the totality of the circumstances (People v Bigelow, 66
NY2d 417, 423 [1985]).
          The common law also recognizes a cause of action for
the separate tort of malicious prosecution, which protects the


                              - 22 -
                             - 23 -                           No. 21

plaintiff's distinct "interest of freedom from unjustifiable
litigation" (Broughton, 37 NY2d at 457).    "The elements of the
tort of malicious prosecution are: (1) the commencement or
continuation of a criminal proceeding by the defendant against
the plaintiff, (2) the termination of the proceeding in favor of
the accused, (3) the absence of probable cause for the criminal
proceeding and (4) actual malice" (id. at 457; see Smith-Hunter v
Harvey, 95 NY2d 191, 195 [2000]; Martinez, 97 NY2d at 84; Thaule
v Krekeler, 81 NY 428, 433 [1880]).   Thus, while false arrest and
malicious prosecution are "kindred actions" insofar as they often
aim to provide recompense for illegal law enforcement activities,
each action "protects a different personal interest and is
composed of different elements" (Broughton, 37 NY2d at 456; see
Marks v Townsend, 97 NY 590, 597-598 [1885]).    And, the unique
elements of malicious prosecution typically present a greater
obstacle to recovery than the elements of false arrest; as we
have said, "The law [ ] places a heavy burden on malicious
prosecution plaintiffs" (Smith-Hunter, 95 NY2d at 195; see Munoz
v City of New York, 18 NY2d 6, 9 [1966]).
          We have "never elaborated on how a plaintiff in a
malicious prosecution case demonstrates that the defendant
commenced or continued the underlying criminal proceeding"
(Grucci v Grucci, 20 NY3d 893, 896 n [2012]).    But, by suggesting
that a defendant other than a public prosecutor may be liable for
supplying false information to the prosecutor in substantial


                             - 23 -
                              - 24 -                          No. 21

furtherance of a criminal action against the plaintiff, we have
implicitly recognized that such conduct may, depending on the
circumstances, constitute the commencement or continuation of the
prosecution (see Colon, 60 NY2d at 82 [noting that proof
establishing "that the police witnesses" have falsified evidence
may create liability for malicious prosecution]; see also
Hopkinson v Lehigh V. R. Co., 249 NY 296, 300-301 [1928] [noting
that the falsification of evidence and presentation of that
evidence to the prosecutor can constitute commencement of a
prosecution]).   Relevant Appellate Division decisions are to the
same effect (see Ramos v City of New York, 285 AD2d 284, 298-299
[1st Dept 2001]; cf. Defilippo v County of Nassau, 183 AD2d 695,
696 [2d Dept 1992]).   Similarly, in other jurisdictions, the rule
is that the defendant commences the prosecution of the plaintiff
if the defendant demands in bad faith that the public prosecutor
initiate the criminal action or supplies the prosecutor with
falsified evidence that the defendant knows or should know will
cause the prosecutor to prosecute the plaintiff (see Zenik v
O'Brien, 137 Conn 592, 596 [Conn 1951]; Szczesniak v CJC Auto
Parts, Inc., 21 NE3d 486, 491 [Ill App Ct 2014]; Macintosh v
Interface Group Massachusetts-Comm, 9 Mass L Rep 408 [Mass Sup Ct
1999]; Lester v Buchanen, 112 Nev 1426, 1429 [Nev 1996]; Bradley
v Gen. Accident Ins. Co., 2001 PA Super 172 at 8 [Pa Super Ct
2001]).
          Just as in the false arrest context, the plaintiff in a


                              - 24 -
                              - 25 -                          No. 21

malicious prosecution action must also establish at trial the
absence of probable cause to believe that he or she committed the
charged crimes, but this element operates differently in the
malicious prosecution context because "[o]nce a suspect has been
indicted, [ ] the law holds that the Grand Jury action creates a
presumption of probable cause" (Colon, 60 NY2d at 78; see Grucci,
20 NY3d at 898; Lee v City of Mt. Vernon, 49 NY2d 1041, 1043
[1980]).   Generally, the plaintiff cannot rebut the presumption
of probable cause with evidence merely indicating that the
authorities acquired information that, depending on the
inferences one might choose to draw, might have fallen somewhat
shy of establishing probable cause (see Colon, 60 NY2d at 83).
And, even if the plaintiff shows a sufficiently serious lack of
cause for the prosecution and rebuts the presumption at trial, he
or she still must prove to the satisfaction of the jury that the
defendant acted with malice, i.e., that the defendant "must have
commenced the prior criminal proceeding due to a wrong or
improper motive, something other than a desire to see the ends of
justice served" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]).
           Although burdensome, these barriers to a malicious
prosecution plaintiff's recovery are not insurmountable, and in
some instances, the plaintiff can simultaneously rebut the
presumption of probable cause and satisfy the malice element by
demonstrating that the evidence of guilt relied upon by the
defendant was so scant that the prosecution was entirely baseless


                              - 25 -
                              - 26 -                          No. 21

and maliciously instituted.   In that sense, "[w]hile lack of
probable cause to institute a criminal proceeding and proof of
actual malice are independent and indispensable elements of a
malicious prosecution action, the absence of probable cause does
bear on the malice issue," and "probable cause to initiate a
criminal proceeding may be so totally lacking as to reasonably
permit an inference that the proceeding was maliciously
instituted" (Martin v Albany, 42 NY2d 13, 17 [1977]; see Thaule,
81 NY at 434).   Moreover, in the alternative, the plaintiff may
show malice and overcome the presumption of probable cause with
proof that the defendant falsified evidence in bad faith and
that, without the falsified evidence, the authorities' suspicion
of the plaintiff would not have fully ripened into probable cause
(see Hopkinson, 249 NY at 300; cf. Gisondi, 72 NY2d at 284-285).
Thus, we have observed that, in the context of a malicious
prosecution suit against the police, the presumption may be
overcome "by evidence establishing that the police witnesses have
not made a complete and full statement of facts . . . to the
District Attorney, that they have misrepresented or falsified
evidence, that they have withheld evidence or otherwise acted in
bad faith" (Colon, 60 NY2d at 82-83).
          The foregoing elements and considerations also impact a
plaintiff's parallel claims under 42 USC § 1983, which authorizes
the plaintiff to sue government agents for unlawful arrest and
malicious prosecution in violation of the laws and constitution


                              - 26 -
                             - 27 -                           No. 21

of the United States (see 42 USC § 1983; Albright v Oliver, 510
US 266, 270-275 [1994] [opinion of Rehnquist, C.J.]; Lennon v
Miller, 66 F3d 416, 423-425 [2d Cir 1995]; cf. Rehberg v Paulk,
__US__, 132 S Ct 1497, 1507-1508 [2012]).   Indeed, the elements
of those causes of action under the federal statute are
substantially the same as the elements of the comparable state
common-law claims, and they are evaluated in much the same way
(see Simpson v City of New York, 793 F3d 259, 265 [2d Cir 2015];
Weyant v Okst, 101 F3d 845, 852 [2d Cir 1996]; Manganiello v City
of New York, 612 F3d 149, 160-161 [2d Cir 2010]; see also Paulos
v City of New York, 122 AD3d 815, 817 [2d Dept 2014]).    However,
as will be discussed in detail hereinafter, the government itself
cannot be liable for false arrest or malicious prosecution under
42 USC § 1983 unless an official government policy, custom or
widespread practice caused the violation of the plaintiff's
constitutional rights (Monell, 436 US at 694, 701; City of Canton
v Harris, 489 US 378, 385 [1989]).
          Considering the aforementioned law in the context of a
summary judgment motion, the defendant moving for summary
judgment must establish a defense to the plaintiff's malicious
prosecution and false arrest claims as a matter of law by
submitting sufficient evidence to eliminate any material issues
of fact (see CPLR 3212 [b]; Nomura Asset Capital Corp. v
Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015];
Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833


                             - 27 -
                               - 28 -                        No. 21

[2014]; see also MacDonald v Town of Greenburgh, 112 AD3d 586,
586-587 [2d Dept 2013]).    On such a motion, the facts must be
viewed in the light most favorable to the plaintiff, and every
available inference must be drawn in the plaintiff's favor (see
Jacobsen, 22 NY3d at 833; William J. Jenack Estate Appraisers &
Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]).    "Once
[the movant's prima facie] showing has been made, however, the
burden shifts to the party opposing the motion for summary
judgment to produce evidentiary proof in admissible form
sufficient to establish the existence of material issues of fact
which require a trial of the action" (Alvarez v Prospect Hosp.,
68 NY2d 320, 324 [1986]; see Vega v Restani Construction Corp.,
18 NY3d 499, 503 [2012]).    Under this summary judgment standard,
even if the jury at a trial could, or likely would, decline to
draw inferences favorable to the plaintiff on issues of probable
cause and malice, the court on a summary judgment motion must
indulge all available inferences of the absence of probable cause
and the existence of malice.
                                 B
          The law outlined above reveals that the lower courts
here improperly granted summary judgment to defendants on
plaintiff's common-law false arrest and malicious prosecution
claims, and it forecloses judgment as a matter of law in favor of
the individual defendants on plaintiff's claims under 42 USC §




                               - 28 -
                              - 29 -                          No. 21

1983.4   When viewed in combination with other evidence and in the
light most favorable to her, plaintiff's deposition testimony
raised triable questions of fact regarding whether the detectives
unlawfully arrested her for Acuna's murder without probable
cause, improperly commenced the prosecution against her and
participated in the prosecution out of malice.
           With respect to plaintiff's false arrest claims, the
evidence of the information known to the detectives prior to her
arrest, excluding her alleged confession on November 9, 2002, did
not conclusively demonstrate that the detectives had probable
cause to arrest her as a matter of law.   To be sure, based on the
detectives' discovery of plaintiff's necklace in Acuna's bedroom,
her phone calls to him, and her admission on October 25, 2002,
that she knew him, the detectives had ample reason to believe
that she and Acuna were acquaintances or friends.   Additionally,
since Acuna's corpse was unclothed, the detectives may have had
some reason to believe that he had died shortly after having sex
with or undressing in the presence of such an acquaintance, as
opposed to a stranger.   Plaintiff also initially lied to the



     4
        In this context, the individual defendants are Detectives
Corey, Guerra, Hendricks and Santiago, as the instant lawsuits
were dismissed against the remaining named individual defendants
on procedural grounds. Additionally, while the nisi prius court
removed Corey from the case based on plaintiff's failure to enter
a default judgment against him, the court's decision in that
respect was erroneous for reasons that will be discussed later in
this opinion. Thus, plaintiff's claims against the detectives
remain viable only against Corey, Guerra, Hendricks and Santiago.

                              - 29 -
                             - 30 -                          No. 21

detectives by claiming that she had neither known nor called
Acuna, which naturally engendered some suspicion that she was
covering up her relationship with him because she felt it might
make her an object of suspicion.   But, while the detectives might
have had reasonable cause to believe that plaintiff had an
amicable relationship with Acuna and that he might have died
under intimate conditions, those circumstances did not give them
a reasonable belief that she, as opposed to some other friend or
acquaintance of Acuna, was his sexual partner and had killed him
(see generally People v Anderson, 46 AD2d 150, 151-153 [4th Dept
1974] [police illegally arrested defendant simply because he was
a member of a group of the victim's friends and acquaintances]).5
          The proof of Lieutenant Vilardi's assessment of
plaintiff's performance during the polygraph examination, as
formed at the time of plaintiff's interrogation and conveyed to
Detective Santiago, did not eliminate any possible factual
dispute regarding whether the test results raised the detectives'

     5
        Based on plaintiff's counsel's questioning of Detective
Santiago at her deposition, it appears that Santiago testified
before the grand jury that, on October 25, 2002, plaintiff had
admitted to her that plaintiff and Acuna had a sexual
relationship. However, at the deposition, Santiago's
recollection of that grand jury testimony was not refreshed.
Furthermore, defendants did not cite this portion of Santiago's
grand jury testimony, or even the excerpt of the deposition in
which she was asked about it, in support of their summary
judgment motion, nor did they argue that Santiago had been aware
of plaintiff's sexual relationship with Acuna prior to her
confession. As a result, defendants' current argument to that
effect is unpreserved (see generally Toure v Avis Rent a Car
Sys., 98 NY2d 345, 351 n3 [2002]).

                             - 30 -
                             - 31 -                          No. 21

suspicion to the level of probable cause.   As far as the record
shows, Vilardi merely told Detective Santiago that plaintiff had
lied about unspecified matters, and he told Detective Corey that
the polygraph test results were "inconclusive."   Therefore, when
viewed in the light most favorable to plaintiff, the evidence of
the preliminary results of the polygraph examination at most
exhibited plaintiff's willingness to lie to the police in general
and not her concealment of her commission of the murder (cf.
Livers v Schenck, 700 F3d 340, 358 [8th Cir 2012] ["a reasonable
officer who knew of the polygraph examination's flaws would not
reasonably have believed he had probable cause to arrest" the
suspect]).6
          Crediting plaintiff's testimony for purposes of summary
judgment, a triable issue of fact exists as to whether the
confession increased the detectives' suspicion to the level of
probable cause, for by her account, they invented a false
confession and forced her to sign it.   In that regard, plaintiff
testified that, on November 8 and into November 9, Detectives
Guerra and Santiago wore down her resistance to their demands
that she confess to the murder over an extended period of time.
In fact, if a jury were to credit all of plaintiff's testimony


     6
        In this respect, Lieutenant Vilardi's more specific
report about the polygraph results, which was drafted days after
plaintiff's arrest and cited by defendants in their summary
judgment motion, does not eliminate all triable issues of fact
regarding the conclusions reached by Vilardi and the detectives
at the time of the arrest, rather than thereafter.

                             - 31 -
                               - 32 -                         No. 21

and part of the detectives' testimony, the jurors could find that
the detectives questioned her for around 21 hours and that,
during at least 11 of those hours, plaintiff did not feel free to
leave.    Throughout that period, Santiago told plaintiff that she
"had to" confess to killing Acuna, positing alternative theories
of plaintiff's motive by suggesting that she had killed him in
self-defense or out of jealousy.    From the early stages of the
interview, Santiago insinuated details of the crime that ended up
in the confession, including the written confession's allegation
that plaintiff had stabbed Acuna after he slammed her head into a
wall.    As Santiago continued to insist that plaintiff admit her
guilt throughout the interview at the police precinct, Santiago
also declared that Santiago would tell plaintiff what she should
say so that Santiago could help her.    Implicitly threatening to
make an imminent "definite decision" to arrest her, Santiago made
plaintiff fear that she would soon be imprisoned if she did not
confess.
            In the later stages of the interrogation, Santiago
alone wrote out the confession, without plaintiff's input, and
then urged plaintiff to sign it, saying it was for her own good.
Eventually, Santiago and Guerra took turns requesting and
demanding that plaintiff sign the statement.    Finally, after the
detectives repeatedly promised plaintiff that they would let her




                               - 32 -
                               - 33 -                         No. 21

go if she signed the statement, she relented and signed it.7
Clearly, this account of the detectives' interview with
plaintiff, which must be credited on a summary judgment motion,
established that plaintiff's confession was false, for Detective
Santiago allegedly invented the entire contents of the confession
herself, drafted the confession and then used a combination of
deceptive assurances and implicit threats to pressure plaintiff
into signing the statement.8
          Beyond the tactics described by plaintiff, the
detectives' own familiarity with the evidence in the case should
have given them pause about the reliability of the statement they
purportedly drafted for plaintiff to sign.   The confession


     7
        Whether certain interrogation practices are legally
permissible is to be decided on a case-by-case basis. All we
decide here is that plaintiff's account of the impact of the
detectives' interrogation techniques on her decision to sign the
confession contributed to triable issues of fact in connection
with her false arrest and malicious prosecution claims.
     8
        In relying on plaintiff's testimony that she signed the
confession only in response to the detectives' lengthy
interrogation of her and their commanding and cajoling her to
confess, we do not decide on summary judgment that the evidence
is legally insufficient to support a fact finder's conclusion
that the police had probable cause to arrest plaintiff based upon
the confession, nor do we opine that the confession was
involuntarily made as a matter of law. Indeed, as we explain
later in this opinion, plaintiff, like defendants, has not
established entitlement to judgment as a matter of law. At
bottom, our decision here is grounded on the long-established
principle that "where it is demonstrated that there is a dispute
about . . . the inferences to be drawn by a reasonable person
from the facts which led to the [arrest or] prosecution, the
uniform rule has been to require there be a factual resolution at
a trial" (Munoz, 18 NY2d at 11).

                               - 33 -
                              - 34 -                          No. 21

claimed that plaintiff had sex with Acuna using a condom, that
she had stabbed Acuna in the kitchen and that she had run out of
the apartment to the elevator.   But the detectives never found a
condom or wrapper in the apartment, there was not much blood in
the kitchen and the blood trail from the apartment suggested that
the killer had fled down the stairs rather than into the
elevator.   Accordingly, when viewed in the light most favorable
to plaintiff, the inconsistencies between the crime scene
evidence and the confession, as well as plaintiff's account of
the detectives' invention of the confession, revealed that the
detectives knew that the confession was false and that therefore
it could not have reasonably contributed to their suspicion of
plaintiff at all.   Thus, the evidence gave rise to a triable
issue of fact as to whether the detectives falsified plaintiff's
confession and brazenly arrested her without even arguable
probable cause, and defendants were not entitled to summary
judgment on her false arrest claim (cf. Warney v State of New
York, 16 NY3d 428, 435-436 [2011] [where plaintiff alleged in a
suit under the Court of Claims Act that the police used threats
and coercive tactics to prompt him to falsely confess to a crime
and include a few true details in the confession, dismissal of
his claim that the police's misconduct in eliciting the false
confession and causing his wrongful conviction was improper]).9

     9
       Aside from an oblique reference to the issue in their
brief, defendants do not directly assert that the suppression
court's ruling on the voluntariness of plaintiff's confession

                              - 34 -
                             - 35 -                           No. 21

          Turning to plaintiff's malicious prosecution claims,
the evidence that the detectives falsified plaintiff's confession
and provided the confession to the District Attorney's Office for
use in the prosecution of plaintiff created a triable issue of
fact on the commencement element of malicious prosecution.
Because it is undisputed that the detectives who participated in
the creation of the confession also had it sent to the District
Attorney's Office, those detectives knew or should have known
that their submission of the plaintiff's unequivocal admission to
killing Acuna would cause prosecutors to bring a criminal
proceeding against plaintiff, and consequently, the detectives'
role in commencing the prosecution, coupled with plaintiff's
testimony about the falsity of the confession, yielded a triable
issue of fact on the commencement element of her malicious
prosecution claim.
          Additionally, the proof recounted above, from which the
falsification of evidence and the absence of probable cause could
be inferred, produced a triable issue of fact regarding whether
probable cause supported plaintiff's prosecution.   Because
evidence that a police officer lacked probable cause to believe
that the plaintiff committed a crime and provided a falsified
confession to prosecutors can rebut the presumption of probable



should entirely estop plaintiff from asserting that her
confession was involuntary and false. And, defendants did not
preserve such a claim below. Under these circumstances, we
decline to address any collateral estoppel issues in this case.

                             - 35 -
                             - 36 -                            No. 21

cause arising from an indictment (see Colon, 60 NY2d at 82-83),
the evidence here that the detectives did not have probable cause
to believe that plaintiff had killed Acuna, made a fake
confession, attributed the confession to plaintiff and gave it to
prosecutors could, if credited, overcome the presumption of
probable cause arising from plaintiff's indictment.    And, since
evidence of bad faith conduct in an infirm prosecution can also
support an inference of malice (see Hopkinson, 249 NY at 300),
this evidence further generated a triable issue of fact as to
whether the detectives maliciously commenced the criminal
proceedings against plaintiff.   Thus, for the foregoing reasons,
we hold that the courts below erred in granting summary judgment
to all defendants on plaintiff's state law claims and to the
individual defendants on her claims under 42 USC § 1983.
                                 C
          While plaintiff maintains triable claims against the
individual defendants under federal law, the same is not true of
her federal civil rights claims against the City and the NYPD.
As previously noted, plaintiff can proceed to trial against the
governmental defendants on her claims under 42 USC § 1983 only if
the record discloses a triable issue of fact as to whether an
official policy or custom of the City government itself caused
the detectives to violate her constitutional rights.   Under
Monell v New York City Dept. of Social Servs. (436 US 658) and
its progeny, "[o]fficial municipal policy includes the decisions


                             - 36 -
                              - 37 -                          No. 21

of a government's lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law" (Connick v Thompson, 563 US
51, 61 [2011]; see Simpson v New York City Transit Authority, 112
AD2d 89, 91 [1st Dept 1985], affd 66 NY2d 1010 [1985]).   Stated
differently, the existence of such a policy may be shown by proof
that the municipality had a custom or practice that was both
widespread and reflected a deliberate indifference to its
citizens' constitutional rights (see id. at 60-62; Bd. of the
County Comm'rs of Bryan Cnty., Okla. v Brown, 520 US 397, 403-407
[1997]; Oklahoma City v Tuttle, 471 US 808, 819-823 [1985]; Jones
v Town of East Haven, 691 F3d 72, 80 [2d Cir 2012]).
Furthermore, to render the City liable under section 1983, the
City's custom or practice had to be the "moving force" behind
plaintiff's constitutional injury (Brown, 520 US at 404; see
Surprenant v Rivas, 424 F3d 5, 19 n6 [1st Cir 2005]).
          Here, the evidence does not support an inference that
the City and the NYPD had a widespread custom of arresting people
in violation of their constitutional rights, nor is there any
proof that such a policy caused the allegedly wrongful arrest and
prosecution of plaintiff.   On this subject, plaintiff points to
only two pieces of evidence that purportedly expose the existence
of a municipal policy or practice of making unfounded arrests:
(1) the testimony of her expert witness, Evrard Williams, who
last served on the police force in the 1980s, that he believed


                              - 37 -
                              - 38 -                          No. 21

that police officials regularly pressured detectives to quickly
close homicide cases by making arrests, even without probable
cause; and (2) Detective McEntee's testimony that, as part of the
NYPD performance evaluation process, the department considered a
detective's record of closing cases with arrests.   But those
pieces of evidence fail to create a triable issue of fact on the
official policy element of plaintiff's federal claims against the
City.
          Notably, plaintiff's expert offered no factual support,
beyond his recitation of plaintiff's account of her arrest, for
his belief that the NYPD had a policy of pressuring police
officers to quickly arrest homicide suspects, nor could his
familiarity with NYPD policy during the 1980s have supplied an
adequate basis for his unsubstantiated opinion about any policy
in effect at the time of plaintiff's arrest decades later.    In
addition, although Detective McEntee testified that NYPD
supervisors generally took a detective's case closure rate into
account in analyzing his or her performance, the NYPD's practice
of incentivizing arrests via a multi-factor evaluation does not
in itself amount to a practice of promoting arrests without
probable cause.   Moreover, even if plaintiff had established the
existence of a municipal practice of promoting arrests without
probable cause in homicide cases, neither Williams nor McEntee
alleged facts establishing that any particular policy in effect
at the time of plaintiff's arrest was the cause of the


                              - 38 -
                             - 39 -                           No. 21

detectives' decision to arrest her.   Therefore, on this record,
there is no triable issue of fact as to whether an official City
policy caused the police to unlawfully arrest plaintiff, and the
lower courts properly granted summary judgment to the City and
the NYPD on plaintiff's claims under 42 USC § 1983.
                                D
          On a final note, while we agree with plaintiff that the
courts below improperly granted summary judgment to the
individual defendants on her claims, we reject her argument that
the detectives' suppression hearing testimony that her confession
was voluntary, as opposed to their transmission of the sham
confession to the prosecutors in the first instance, may on its
own result in liability for the commencement or continuation of
the prosecution for purposes of her malicious prosecution claims.
As a matter of historically-rooted public policy, a witness
cannot be liable for malicious prosecution based on his or her
false testimony at a trial or pretrial proceeding, such as a
grand jury proceeding (see Rehberg, 132 S Ct at 1510; Briscoe v
Lahue, 460 US 325, 329-336 [1983]; see also Dobbs' Law of Torts §
587 [2d ed. 2011]), and courts have extended this rule to
eliminate liability arising from a police officer's false
testimony at a suppression hearing (see Curtis v Bembenek, 48 F3d
281, 284 [7th Cir 1995]; Daloia v Rose, 849 F2d 74, 76 [2d Cir
1988]; Holt v Castaneda, 832 F2d 123, 124-125 [9th Cir 1987]).
Drawing on the same underlying body of common law, we have


                             - 39 -
                             - 40 -                           No. 21

recognized the need to shield grand jury witnesses from liability
for defamation based on their testimony, and we have generally
observed that public officials would be unduly deterred from the
full and frank discharge of their duties were their false
statements, made in the course of their official functions or in
judicial proceedings, to become the source of civil liability
(see Toker v Pollak, 44 NY2d 211, 219-220 [1978]; see also Pecue
v West, 233 NY 316, 319-320 [1922]).    On the other hand, there
may well be cases in which a witness's improper act of testifying
in itself is such an appalling betrayal of justice, and such an
abuse of the immunity that ordinarily attaches to testimony, that
the immunity must yield.
          However, here, while the testimony may not serve as a
separate act of commencement or continuation, it is relevant
evidence that the officers had a malicious state of mind in
creating and transmitting the falsified confession.    The test is
"whether the plaintiff can make out the elements of his [or her]
§ 1983 claim without resorting to the . . . testimony.    If the
claim exists independently of the . . . testimony, it is not
'based on' that testimony . . . [c]onversely, if the claim
requires the . . . testimony, the defendant enjoys absolute
immunity" (Coggins v Buonora, 776 F3d 108, 113 [2d Cir 2015],
cert denied, 135 S Ct 2335 [2015]).    Given the strong public
policy against liability based on testimony in judicial
proceedings, the detectives here should not, at least on this


                             - 40 -
                              - 41 -                          No. 21

record, be subjected to potential liability for their testimony
at the suppression hearing alone.   But because plaintiff relies
on evidence independent of the suppression hearing testimony, the
detectives may not invoke absolute immunity.10
          In addition, our decision to vitiate the grant of
summary judgment to defendants does not imply that plaintiff is
entitled to summary judgment or should necessarily win at trial
on her claims.   The evidence simply discloses triable issues of
fact that must be resolved by the jury rather than by the court
as a matter of law (see Munoz, 18 NY2d at 11; see also Hyman v
New York C. R. Co., 240 NY 137, 143 [1925]).     At trial, the jury
remains free to infer the presence or absence of the elements of
false arrest and malicious prosecution from this evidence as it



     10
        In Colon v New York (60 NY2d 78), we suggested that a
police officer might be liable for hiding material exculpatory
evidence from, or providing false evidence to, "either . . . the
Grand Jury or . . . the District Attorney" (id. at 82-83
[emphasis added]). But, in making this observation, we did not
rule that a police officer's testimony per se, as distinct from
his or her provision of fabricated evidence to the prosecuting
authority in a manner designed to commence the prosecution in the
first instance, is generally an appropriate basis in itself for
liability for malicious prosecution. Rather, our comment was
consistent with the rule of immunity applicable to a "complaining
witness" under the common law. Indeed, as the Supreme Court of
the United States recently explained, the common law has long
regarded a person who instigates a prosecution as the
"complaining witness" and hence permits a suit against that
person based on his or her non-testimonial conduct in commencing
the prosecution, but common-law principles nonetheless cloak a
witness in the grand jury, including a law enforcement agent who
acts as a "complaining witness," with immunity in connection with
his or her testimony (see Rehberg, 132 S Ct at 1502-1510).

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                               - 42 -                          No. 21

sees fit, and it can reach different conclusions regarding
distinct elements based on the same body of evidence.
            Further, our decision does not signal that every
allegation of the falsification of material evidence is a
talisman shielding a plaintiff from summary judgment.    It remains
the law that a plaintiff's vague and conclusory assertions that
the police fabricated evidence are insufficient to enable false
arrest and malicious prosecution claims to survive a summary
judgment motion (see Phillips v City of Syracuse, 84 AD2d 957,
957 [4th Dept 1981], affd 57 NY2d 996 [1982]).    But, where, as
here, the plaintiff provides detailed sworn testimony about the
police's creation and dissemination of critical fabricated
evidence and the remaining proof does not eliminate all questions
as to probable cause, the defendant officers cannot win summary
judgment.
            Lastly, as defendants do not dispute, Supreme Court
erroneously dismissed plaintiff's claims against Detective Corey
on the ground that she failed to timely request a default
judgment against Corey based on his failure to answer in these
actions.    At the start of Corey's deposition, counsel for the
City stated that he represented Corey in the actions and waived
all jurisdictional defenses on the detective's behalf.    As a
practical matter, then, Corey appeared in this action and, in any
event, unequivocally waived any right to dismissal that he might
have had, including his right to dismissal upon plaintiff's


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                              - 43 -                          No. 21

failure to timely seek a default judgment under CPLR 3215 (c).
In light of counsel's declarations, plaintiff's evident desire to
continue the actions against all defendants and the City's
inability to identify any reason to strictly enforce the statute
against plaintiff, Supreme Court improperly dismissed plaintiff's
claims against Corey, which should be reinstated (see generally
HSBC USA v Lugo, 127 AD3d 502, 503 [1st Dept 2015]; Myers v
Slutsky, 139 AD2d 709, 710 [2d Dept 1988]; cf. Perricone v City
of New York, 62 NY2d 661, 663 [1984]).
                                 III.
           The evidence in this case raises triable issues of fact
regarding plaintiff's common-law false arrest and malicious
prosecution causes of action against only Detectives Corey,
Santiago, Guerra and Hendricks, as well as the governmental
defendants, thereby enabling her to proceed to trial on those
claims.   Likewise, the record reveals the existence of triable
issues of fact on plaintiff's federal civil rights claims against
the aforementioned detectives.    Thus, defendants' motion for
summary judgment on those claims should have been denied.
However, since the record is devoid of proof that an official
City policy resulted in the allegedly wrongful arrest and
prosecution of plaintiff, the courts below properly granted
summary judgment to the governmental defendants on plaintiff's
claims under 42 USC § 1983.   Finally, beyond the dismissal of
plaintiff's 42 USC § 1983 claims against the City on Monell


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                                - 44 -                           No. 21

grounds, it is undisputed that the lower courts properly
dismissed plaintiff's other claims in the first action, and hence
the Appellate Division's affirmance of Supreme Court's August 10,
2012 order should not be disturbed.       Accordingly, the order of
the Appellate Division should be modified, without costs, in
accordance with this opinion, and as so modified, affirmed.
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *    *
Order modified, without costs, in accordance with the opinion
herein and, as so modified, affirmed. Opinion by Judge
Abdus-Salaam. Judges Pigott, Rivera, Stein and Fahey concur.
Chief Judge DiFiore and Judge Garcia took no part.

Decided February 23, 2016




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