| Watson v City of Jamestown |
| 2008 NY Slip Op 09231 [56 AD3d 1289] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| Michael J. Watson, Appellant, v City of Jamestown et al.,Respondents. |
—[*1] Marilyn Fiore-Nieves, Jamestown, for defendants-respondents.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, J.),entered October 4, 2007 in an action for, inter alia, defamation. The order granted defendants'motion for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, an officer with the Jamestown Police Department (Department),was questioned by the Federal Bureau of Investigation (FBI) in connection with its investigationof a missing woman with whom plaintiff had a relationship. The FBI reported to the Departmentthat its investigation revealed that plaintiff had been stalking women. The Department launchedan internal investigation and, after receiving statements from three women, prepared a warrant toarrest plaintiff on charges of stalking, harassment, and official misconduct. The warrant wassigned by a City Court Judge and, on the day on which plaintiff was arrested, the Departmentheld a press conference concerning the charges. Plaintiff was subsequently indicted, and CountyCourt granted that part of his omnibus motion seeking to dismiss seven counts of the indictment.On a prior appeal, we modified that order and reinstated one of those counts (People vWatson, 32 AD3d 1199 [2006], lv denied 7 NY3d 929 [2006]).
Plaintiff commenced this action alleging, inter alia, defamation, abuse of process, maliciousprosecution, and the violation of his civil rights. We conclude that Supreme Court properlygranted defendants' motion for summary judgment dismissing the complaint.
With respect to the cause of action for defamation, we reject the contention of plaintiff [*2]that he was defamed by certain comments made by the individualdefendants at the press conference. "A public official may not recover damages for defamationunless the official proves that the offending false statement was made with actualmalice—that is, with knowledge that it was false or with reckless disregard of whether itwas false or not" (Freeman v Johnston, 84 NY2d 52, 56 [1994] [internal quotation marksomitted], cert denied 513 US 1016 [1994]; see New York Times Co. v Sullivan,376 US 254, 279-280 [1964]). Defendants established their entitlement to judgment as a matterof law with respect to that cause of action by demonstrating that the remarks that allegedlydefamed plaintiff were true with the exception of one remark that was a misstatement but was notmade with malice. Plaintiff failed to raise a triable issue of fact (see Kasachkoff v City ofNew York, 68 NY2d 654, 657 [1986]).
With respect to the cause of action for abuse of process, plaintiff contends that the arrestwarrant was used by defendants to gain an advantage at the civil service hearing conducted toterminate him as a police officer. "Abuse of process has three essential elements: (1) regularlyissued process, either civil or criminal, (2) an intent to do harm without excuse or justification,and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano vSuozzi, 63 NY2d 113, 116 [1984]; see Berisic v Winckelman, 40 AD3d 561, 562[2007]; Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 288-289 [2003]).Defendants met their initial burden by establishing that, in seeking the warrant, they did notintend to harm plaintiff without excuse or justification. In addition, they established that they didnot use process to gain an advantage at the civil service hearing. Rather, they established thatthey had sought the warrant based upon the sworn statements given by three women to theDepartment. In opposition to the motion, plaintiff submitted the affidavits of two of thosewomen, each of whom indicated that she never requested that criminal charges be broughtagainst plaintiff. Those women, however, did not refute the statements given by them to theDepartment, and we note that they were not required to request that criminal charges be broughtagainst plaintiff, nor was it necessary for the Department to obtain their consent to do so.Plaintiff thus failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
With respect to the cause of action for malicious prosecution, "a plaintiff must establish thata criminal proceeding was commenced, that it was terminated in favor of the accused, that itlacked probable cause, and that the proceeding was brought out of actual malice" (Martinez vCity of Schenectady, 97 NY2d 78, 84 [2001]; see Diederich v Nyack Hosp., 49AD3d 491, 493 [2008]; Weiss v Hotung, 26 AD3d 855, 856 [2006]). Defendantsestablished in support of their motion that, after two of the individual defendants prepared theapplication for an arrest warrant, it was signed by a City Court Judge. The determination of thatCity Court Judge that the police had probable cause to arrest plaintiff bars the cause of action formalicious prosecution (see Diederich, 49 AD3d at 493-494). In addition, defendantsestablished that the criminal proceeding has not been terminated in plaintiff's favor, althoughseveral of the charges have been dismissed, and that the charges were not made with malice.Plaintiff failed to raise a triable issue of fact (see generally Zuckerman, 49 NY2d at 562).
With respect to the cause of action alleging the violation of plaintiff's civil rights, plaintiffcontends that he was arrested without probable cause in violation of his Fourth Amendmentrights. We agree with defendants that they are entitled to qualified immunity with respect toplaintiff's arrest inasmuch as it was "objectively reasonable for the defendants to have believedthat their conduct as related to the plaintiff was lawful under the circumstances" (Colao vMills, 39 AD3d 1048, 1050 [2007]; see Anderson v Creighton, 483 US 635, 638-639[1987]; Malley v Briggs, 475 US 335, 343-344 [1986]).
We have considered plaintiff's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Martoche, Centra, Lunn and Gorski, JJ.