Holloway v. City of Rochester et al
Filing
46
DECISION & ORDER denying 45 Motion for Reconsideration. Signed by Hon. Marian W. Payson on 8/10/2012. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARY HOLLOWAY,
DECISION & ORDER
Plaintiff,
10-CV-6470P
v.
OFFICER DAVID JOSEPH,
Defendant.
On July 10, 2012, this Court denied plaintiff Mary Holloway’s motion for
summary judgment. (Docket # 43). Now pending before the Court is Holloway’s motion for
reconsideration of that decision. (Docket # 45). Specifically, Holloway again contends that there
was no probable cause for her arrest.
As I set forth in my bench decision on Holloway’s motion for summary judgment,
familiarity with which is assumed, Holloway asserted in her complaint claims for malicious
prosecution, false arrest and false imprisonment against Rochester Police Officer David Joseph
in connection with her arrest on September 6, 2007 for second degree harassment under New
York Penal Law § 246.26. (Docket # 44). Holloway’s arrest arose from a complaint from a
neighbor, James Ferguson, with whom she asserts she had been having an ongoing dispute.
Ferguson allegedly complained that Holloway had thrown a glass bottle at him from her vehicle.
I dismissed Holloway’s motion for summary judgment on the ground that she had not established
that Officer Joseph lacked probable cause to arrest her.
“The standard for granting [a motion to reconsider] is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked – matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)
(citations omitted). If the moving party presents no legal authority or facts that the court failed to
consider, then the motion to reconsider should be denied. Id. (“a motion to reconsider should not
be granted where the moving party seeks solely to relitigate an issue already decided”).
In asking the Court to reconsider, Holloway again challenges the existence of
probable cause for her arrest. (Docket # 45). Specifically, Holloway explains that Joseph
initially charged her under Section 240.26(3), but that the state court judge dismissed charges
against her under Section 240.26(1). Indeed, a review of the record reveals that in the original
criminal complaint, Holloway was charged under Section 240.26(3), but the order of dismissal
recites Section 240.26(1). (Compare Docket # 36 at 10 with Docket # 45 at 4). Accordingly,
Holloway argues that there was no probable cause for charges against her under the first
subsection of the statute.
As I stated in my earlier decision, in order to bring a claim for malicious
prosecution or false arrest under New York law, a plaintiff must prove, inter alia, that there was
no probable cause for her arrest. See, e.g., Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir.
2004); Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003). Probable cause exists when an
officer has knowledge of reasonably trustworthy information sufficient to warrant a person of
reasonable caution in the belief that an offense has been committed by the person to be arrested.”
Curley v. Vill. of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (internal quotation omitted). The
statute with which Holloway was charged reads:
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A person is guilty of harassment in the second degree when, with
intent to harass, annoy or alarm another person:
(1) He or she strikes, shoves, kicks or otherwise
subjects such other person to physical contact, or
attempts or threatens to do the same; or
(2) He or she follows a person in or about a public
place or places; or;
(3) He or she engages in a course of conduct or
repeatedly commits acts which alarm or seriously
annoy such other person and which serve no
legitimate purpose.
N.Y. Penal Law § 240.26 (emphasis provided).
Holloway contends that Joseph did not have probable cause under the first
subsection to believe that she had struck, shoved or kicked or otherwise subjected Ferguson to
physical contact, or threatened or attempted to engage in those acts. Here, Ferguson’s complaint
alleged that Holloway had thrown a glass bottle at him, but that the bottle had not struck him.
Under Section 240.26, physical contact need not be bodily contact. See, e.g., People v. DiBrino,
841 N.Y.S.2d 827 (Just. Ct. 2007) (throwing an envelope was sufficient to support harassment
charge under statute; “[d]irect bodily contact was not necessary”); People v. Carlson, 705
N.Y.S.2d 830, 835 (Crim. Ct. 1999) (spitting on victim was offensive physical contact).
Moreover, attempted physical contact is sufficient. See People v. Bartkow, 96 N.Y.2d 770, 772
(N.Y. 2001) (“[t]he crux of [harassment in the second degree] is the element of physical contact:
actual, attempted, or threatened”). In sum, I adhere to my view that Joseph had probable cause to
believe, based on the complaint, that Holloway had violated the statute, whether charged under
subsection (1) or (3).
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For the reasons stated above, I decline to reconsider my decision and Holloway’s
motion to reconsider (Docket # 45) is DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
August 10 , 2012
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