| Donnelly v Nicotra |
| 2008 NY Slip Op 08290 [55 AD3d 868] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Derek Donnelly et al., Appellants-Respondents, v FortunatoNicotra et al., Respondents-Appellants. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for private nuisance and malicious prosecution, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, NassauCounty (Winslow, J.), entered August 17, 2007, as granted that branch of the defendants' motionwhich was for summary judgment dismissing the cause of action alleging malicious prosecution, and thedefendants cross-appeal, as limited by their brief, from so much of the same order as denied thatbranch of their motion which was for summary judgment dismissing the cause of action alleging privatenuisance.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
The defendants established their prima facie entitlement to judgment as a matter of law dismissingthe cause of action alleging malicious prosecution by presenting evidence that they did no more thanfurnish information to law enforcement authorities. "[A] civilian complainant, by merely seeking policeassistance or furnishing information to law enforcement authorities who are then free to exercise theirown judgment as to whether an arrest should be made and criminal charges filed, will not be held liablefor false arrest or malicious prosecution" (Levy v Grandone, 14 AD3d 660, 661 [2005] [citation and internalquotation marks omitted]; see Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d128, 131 [1999]). In opposition to the defendants' prima facie showing, the plaintiffs [*2]failed to raise a triable issue of fact as to whether the defendants "playedan active role in the prosecution, such as giving advice and encouragement or importuning theauthorities to act" (Mesiti v Wegman, 307 AD2d 339, 340 [2003] [internal quotation marksomitted]; see Williams v Amin, 52 AD3d823 [2008]; Levy v Grandone, 14 AD3d at 661-662; Wasilewicz v Village of Monroe PoliceDept., 3 AD3d 561, 562 [2004]; Du Chateau v Metro-North Commuter R.R. Co.,253 AD2d at 131). Therefore, the Supreme Court properly granted that branch of the defendants'motion which was for summary judgment dismissing the cause of action alleging malicious prosecution.
"The elements of a private nuisance cause of action are '(1) an interference substantial in nature, (2)intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoyland, (5) caused by another's conduct in acting or failure to act' " (JP Morgan Chase Bank v Whitmore, 41 AD3d 433, 434 [2007],quoting Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]). Here,the plaintiffs' submissions in opposition to the defendants' prima facie showing of their entitlement tosummary judgment, including the affidavit of the plaintiff Derek Donnelly and the affidavit of theplaintiffs' engineering expert, raised triable issues of fact with respect to the reasonableness of thedefendants' activities and the degree of interference with the plaintiffs' use and enjoyment of their land.Therefore, the Supreme Court properly denied that branch of the defendants' motion which was forsummary judgment dismissing the cause of action alleging private nuisance (see Futerfas vShultis, 209 AD2d 761, 763 [1994]; Murray v Young, 97 AD2d 958 [1983]). Fisher,J.P., Covello, McCarthy and Leventhal, JJ., concur.