| Baker v City of New York |
| 2007 NY Slip Op 08171 [44 AD3d 977] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Leroy Baker, Respondent, v City of New York et al.,Appellants, et al., Defendants. |
—[*1] Cozen O'Connor, New York, N.Y. (Edward Hayum of counsel), for appellant Dan Berman. Gary M. Darche, Kew Gardens, N.Y., for respondent.
In an action, inter alia, to recover damages for malicious prosecution and abuse of processarising from the arrest of the plaintiff on two separate charges, the defendant Dan Bermanappeals, as limited by his brief, from (1) so much of an order of the Supreme Court, QueensCounty (Elliot, J.), dated January 27, 2006, as denied that branch of his motion which was forsummary judgment dismissing the cause of action alleging malicious prosecution insofar asasserted against him, and (2) so much of an order of the same court dated June 15, 2006, as, uponreargument, adhered to the original determination, and the defendant City of New Yorkseparately appeals, as limited by its brief, from so much of the order dated January 27, 2006, asdenied that branch of its motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause ofaction alleging malicious prosecution insofar as asserted against it.
Ordered that the appeal by the defendant Dan Berman from so much of the order datedJanuary 27, 2006, as denied that branch of his motion which was for summary judgment [*2]dismissing the cause of action alleging malicious prosecutioninsofar as asserted against him is dismissed, as that portion of the order was superseded by theorder dated June 15, 2006, made upon reargument; and it is further,
Ordered that the order dated January 27, 2006 is reversed insofar as appealed from by thedefendant City of New York, on the law, and that branch of the motion of the defendant City ofNew York which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action allegingmalicious prosecution insofar as asserted against it is granted; and it is further,
Ordered that the order dated June 15, 2006 is reversed insofar as appealed from, on the law,upon reargument, so much of the order dated January 27, 2006, as denied that branch of themotion of the defendant Dan Berman which was for summary judgment dismissing the cause ofaction alleging malicious prosecution insofar as asserted against him is vacated, and that branchof the motion is granted; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The plaintiff was employed by the defendant North Shore Towers Apartments Incorporated(hereinafter North Shore). The defendant Dan Berman lived in an apartment at North Shore. InApril 2001 the plaintiff performed maintenance work in Berman's apartment on two separateoccasions, eight days apart. A few hours after the plaintiff left the Berman apartment on thesecond occasion, Berman noticed that two watches and a pair of sun glasses were missing from adresser drawer in his bedroom. Berman reported the loss of the watches and sun glasses to thesecurity director of North Shore, who in turn contacted the police. The police investigated thereport and Berman signed a complaint alleging that the plaintiff committed petit larceny. Afterthe police investigation and their consultation with the Office of the District Attorney, QueensCounty, the plaintiff was arrested on May 15, 2001, charged with petit larceny, and given anappearance ticket.
Some six days after his arrest on the petit larceny charge, the plaintiff left a message onBerman's telephone answering machine. The message was to the effect that Berman had theplaintiff arrested and that the plaintiff was going to sue Berman and cause Berman "double" thepain the plaintiff had experienced as a result of his arrest. Berman again contacted the police, adetective listened to the tape, Berman signed a complaint, and the plaintiff was arrested on May30, 2001 and charged with aggravated harassment.
On April 12, 2002 the two charges against the plaintiff were dismissed on speedy trialgrounds pursuant to CPL 30.30. The plaintiff commenced this action, alleging, inter alia,malicious prosecution and abuse of process. Berman and North Shore moved for summaryjudgment and the City moved for dismissal of the complaint pursuant to CPLR 3211 (a) (7). TheSupreme Court awarded summary judgment to North Shore dismissing all causes of actioninsofar as asserted against it. The court awarded summary judgment to Berman dismissing theabuse of process cause of action and dismissed that cause of action insofar as asserted against theCity. The Supreme Court found that there was a triable issue of fact with respect to whether therewas probable cause for the plaintiff's arrest as to both charges, and therefore denied that branchof Berman's motion which was for summary judgment dismissing the cause of action to recoverdamages for malicious prosecution and denied that branch of the City's motion which was todismiss that cause of action. The City and Berman separately appeal.[*3]
"In order to recover for malicious prosecution, a plaintiffmust establish four elements: that a criminal proceeding was commenced; that it was terminatedin favor of the accused; that it lacked probable cause; and that the proceeding was brought out ofactual malice" (Cantalino v Danner, 96 NY2d 391, 394 [2001]). A failure to establish anyone of those elements results in the defeat of the plaintiff's cause of action (see Brown v SearsRoebuck & Co., 297 AD2d 205 [2002]).
Berman established his entitlement to summary judgment with regard to the element ofactual malice. "Generally, a civilian defendant who merely furnishes information to lawenforcement authorities who are then free to exercise their own independent judgment as towhether an arrest will be made and criminal charges filed will not be held liable for maliciousprosecution" (Lupski v County of Nassau, 32 AD3d 997, 998 [2006]). The plaintiff failedto raise a triable issue of fact as to whether Berman in any way played an active role in theprosecution of the charges by giving advice or encouragement to the police or in importuningthem to make the arrests. He also failed to allege that, or in any way raise a triable issue of fact asto whether, Berman gave false information to the police, with knowledge that the informationwas false at the time the information was provided, or in any other way allege that Berman actedwith actual malice. A civilian complainant who neither knowingly provides false information norplays an active role in the prosecution cannot be held liable for malicious prosecution (seeLupski v County of Nassau, 32 AD3d 997 [2006]; Kochis v Revco Pharmacy, 9AD3d 449 [2004]; Wasilewicz v Village of Monroe Police Dept., 3 AD3d 561 [2004]).Thus, while the plaintiff's opposition to Berman's motion was sufficient to establish that thecriminal proceedings were terminated in his favor (see Smith-Hunter v Harvey, 95 NY2d191 [2000]), his opposition was insufficient to defeat Berman's motion for summary judgmentwith regard to the element of actual malice.
Berman also established his entitlement to summary judgment with regard to the element ofprobable cause. "Probable cause requires only information sufficient to support a reasonablebelief that an offense has been committed by the plaintiff (see People v Bigelow, 66NY2d 417 [1985])" (Burns v City of New York, 17 AD3d 305 [2005]). "Generally,information provided by an identified citizen accusing another individual of a specific crime islegally sufficient to provide the police with probable cause to arrest (People v Bero, 139AD2d 581, 584 [1988])" (Iorio v City of New York, 19 AD3d 452, 453 [2005]). In thiscase, there is no real dispute as to the facts that were alleged in support of the criminalcomplaints. The plaintiff's opposition to Berman's motion focuses on the circumstancessurrounding the initial maintenance visit by the plaintiff to the Berman apartment in April 2001,rather than the visit eight days later, after which Berman learned that the property was missingand the allegations of theft were made. The plaintiff's assertions as to the existence of an earlieropportunity for the property to have been stolen by another or to have been lost in transit fromFlorida, would have had some relevance if the theft charge had been tried; those assertions do notin any way detract from the facts that were alleged and which provided the bases for the arrests ofthe plaintiff. As there is no real dispute as to those facts, there was probable cause for the arrestof the plaintiff, as a matter of law, on both occasions (cf. Lundgren v Margini, 30 AD3d476 [2006]).
With regard to the motion by the City pursuant to CPLR 3211 (a) (7), "the facts as alleged inthe complaint must be accepted as true, the plaintiff is accorded the benefit of every possiblefavorable inference, and the court's function is to determine only whether the facts as alleged fitwithin any cognizable legal theory" (Lupski v County of Nassau, 32 AD3d 997 [2006]).The plaintiff's complaint merely asserts that the charge of petit larceny was false and makes onlyconclusory assertions as to the alleged motives of the defendants. The plaintiff does not [*4]allege any facts sufficient to rise to the level of actual malice, "i.e.some deliberate act punctuated with awareness of 'conscious falsity' " (Santoro v Town ofSmithtown, 40 AD3d 736, 738 [2007] [citations omitted]). Moreover, there are no assertionsthat the police officers acted with an awareness of conscious falsity. Accordingly, the City wasentitled to dismissal of the complaint pursuant to CPLR 3211 (a) (7), as the complaint fails toallege facts sufficient to rise to the level of actual malice. Crane, J.P., Florio, Covello andAngiolillo, JJ., concur.