| Warner v City of New York |
| 2008 NY Slip Op 09986 [57 AD3d 767] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Colin Warner, Also Known as Collins Hillary Warner, et al.,Appellants-Respondents, v City of New York et al.,Respondents-Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Cathy J.Neustein, and Janet L. Zaleon of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for malicious prosecution, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.),dated May 4, 2007, as denied that branch of their motion which was for summary judgment on theissue of liability, and the defendants cross-appeal, as limited by their brief, from so much of the sameorder as denied that branch of their cross motion which was for a protective order with respect to thedeposition of the defendant Walter Crowe.
Ordered that the order dated May 4, 2007 is affirmed insofar as appealed and cross-appealedfrom, without costs or disbursements.
After serving 21 years of a sentence of 15 years' to life imprisonment based on a judgment of theSupreme Court, Kings County (Murray, J.), rendered June 17, 1982, convicting him of murder in thesecond degree, upon a jury verdict, the plaintiff Colin Warner, also known as Collins Hillary Warner(hereinafter the plaintiff) moved pursuant to CPL 440.10 to vacate the judgment of conviction. Thedefendant Kings County District Attorney's Office (hereinafter Kings County DA) joined in theplaintiff's motion and separately moved to dismiss the indictment. In an order dated January 31, 2001the Supreme Court, Kings County (Leventhal, J.), granted the motion, vacated the judgment ofconviction, and dismissed the indictment. Thereafter, the plaintiff and his wife Catherine CharlesWarner, suing derivatively (hereinafter together the plaintiffs), brought this action, inter alia, to recoverdamages for malicious prosecution. After joinder of issue, the plaintiffs moved, among other things, forsummary judgment on the issue of liability, and the defendants cross-moved, inter alia, to dismiss thecomplaint insofar as asserted against the defendants Kings County DA and Walter Crowe, theAssistant District Attorney who had [*2]prosecuted the case against theplaintiff, on the ground of absolute immunity, and for a protective order with respect to the deposition ofCrowe. In an order dated May 4, 2007 the Supreme Court denied that branch of the plaintiffs' motionwhich was for summary judgment on the issue of liability, granted that branch of the defendants' motionwhich was to dismiss the complaint insofar as asserted against the defendants Kings County DA andCrowe, and denied that branch of the defendants' motion which was for a protective order with respectto the deposition of Crowe. The plaintiffs appeal from so much of the order as denied that branch oftheir motion which was for summary judgment on the issue of liability and the defendants' cross-appealfrom so much of the order as denied that branch of their motion which was for a protective order.
The Supreme Court properly determined that the plaintiffs failed to demonstrate their prima facieentitlement to judgment as a matter of law. Contrary to the plaintiffs' contention, the defendants City ofNew York, New York City Police Department, and Detective Joel Wasser (hereinafter collectively theCity defendants), none of whom appeared in the criminal action, are not deemed to have admitted thatthe plaintiff was wrongfully arrested, imprisoned, and prosecuted, by virtue of the fact that the KingsCounty DA joined in the plaintiff's CPL 440.10 motion, as the Kings County DA is a separate entityfrom the City defendants (see Brown v City of New York, 60 NY2d 897, 898 [1983];Matter of Saccoccio v Lange, 194 AD2d 794 [1993]). Accordingly, any admissions by theKings County DA in the criminal proceeding neither bind the City defendants (cf. Matter of UnionIndem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]), nor judicially or collaterally estop the Citydefendants from opposing the complaint in the instant action (cf. Brown v City of New York,60 NY2d at 898; People v Berkowitz, 50 NY2d 333, 345 [1980]; Festinger v Edrich, 32 AD3d 412, 413[2006]). Since the plaintiffs failed to establish, prima facie, their entitlement to summary judgment on theissue of liability, that branch of their motion was properly denied regardless of the sufficiency of thedefendants' opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court properly denied that branch of the defendants' motion which was for aprotective order with respect to Crowe's deposition. The record establishes that Crowe's testimony ismaterial and necessary, and the defendants failed to demonstrate that the deposition of Crowe wouldprejudice them (see CPLR 3101 [a]; 3103 [a]).
The plaintiff's remaining contentions either are without merit or need not be reached in light of ourdetermination. Mastro, J.P., Miller, Balkin and McCarthy, JJ., concur.