| Breytman v Olinville Realty, LLC |
| 2007 NY Slip Op 10495 [46 AD3d 484] |
| December 27, 2007 |
| Appellate Division, First Department |
| Alexander Breytman, Respondent, v Olinville Realty, LLC,et al., Appellants. Alexander Breytman, Appellant, v City of New York et al.,Respondents. |
—[*1] Alexander Breytman, appellant/respondent pro se. Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal of counsel),for respondents.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered March 28, 2007,which, to the extent appealed and cross-appealed from, granted so much of the cross motion ofdefendants Olinville Realty, LLC, Weiner Realty, LLC, Pinnacle Bronx, LLC, and Anthony Mota(the non-City defendants) for summary judgment dismissing the cause of action for maliciousprosecution and denied so much of the cross motion for summary judgment dismissing the causeof action for false arrest, and which, sua sponte, dismissed plaintiff's complaint againstdefendants City of New York, New York City Police Department and Detective Argiento (theCity defendants), unanimously modified, on the law, to grant summary judgment dismissingplaintiff's cause of action for false arrest against the non-City defendants, and otherwise affirmed,without costs. The Clerk is directed to enter judgment in favor of the non-City defendantsdismissing the complaint as against them.
The fact that discovery had not yet been completed did not bar the court from granting thenon-City defendants' cross motion for summary judgment on the malicious prosecution cause ofaction (Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026 [1983]). Neitherplaintiff nor his attorney indicated that additional discovery was needed to oppose the crossmotion, and even on appeal, plaintiff fails to specify what further discovery he is seeking (seeAuerbach v Bennett, [*2]47 NY2d 619, 636 [1979]). Thecourt was also not obliged to deny the non-City defendants' cross motion where they failed toinclude a copy of the pleadings since the record evidence establishes that when plaintiff moved toconsolidate his case against the City defendants with his case against the non-City defendants, heprovided a copy of the pleadings (seeWelch v Hauck, 18 AD3d 1096, 1098 [2005], lv denied 5 NY3d 708 [2005]).Furthermore, the court had the authority to award summary judgment to the City defendants eventhough they had not moved for such relief (see CPLR 3212 [b]).
Dismissal of plaintiff's malicious prosecution claim against both the City and non-Citydefendants was appropriate. The criminal proceeding against plaintiff was dismissed at thePeople's request because they did not believe they could meet their burden at trial, and thus, thefinal disposition "did not involve the merits and did not indicate his innocence" (Slatkin v Lancer Litho PackagingCorp., 33 AD3d 421, 422 [2006]). The non-City defendants should also have beengranted summary judgment dismissing the false arrest claim against them because "a civiliancomplainant, by merely seeking police assistance or furnishing information to law enforcementauthorities who are then free to exercise their own judgment as to whether an arrest should bemade and criminal charges filed, will not be held liable for false arrest" (Du Chateau vMetro-North Commuter R.R. Co., 253 AD2d 128, 131 [1999]; see also Courtman v Hudson Val.Bank, 37 AD3d 181 [2007]). Plaintiff's argument that the non-City defendants may haveacted more culpably than the record suggests is based on speculation and not sufficient to raise atriable issue (see Grant v Barnes & Noble, 284 AD2d 238 [2001]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Friedman, Nardelli and Catterson, JJ.