| Fortunato v City of New York |
| 2009 NY Slip Op 05087 [63 AD3d 880] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Annamarie Fortunato, Respondent, v City of New York,Appellant. |
—[*1] Kenneth J. Ready, Mineola, N.Y. (Brian C. Pascale of counsel), for respondent.
In an action, inter alia, to recover damages for false arrest and malicious prosecution, thedefendant appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Kurtz, J.), dated March 13, 2008, as denied those branches of its motion which were forsummary judgment dismissing the causes of action alleging false arrest and maliciousprosecution.
Ordered that the order is affirmed insofar as appealed from, with costs.
Probable cause to believe that a person committed a crime is a complete defense to claims offalse arrest and malicious prosecution (see Gisondi v Town of Harrison, 72 NY2d 280,283 [1988]; Iorio v City of New York, 19 AD3d 452, 453 [2005]). Although a witness'sidentification of a suspect generally may be sufficient to establish probable cause (see Smithv County of Nassau, 34 NY2d 18, 25 [1974]; Williams v Moore, 197 AD2d 511,514 [1993]; Berson v City of New York, 122 AD2d 7, 9 [1986]; People vBrewster, 100 AD2d 134, 141 [1984]), "failure to make further inquiry when a reasonableperson would have done so may be evidence of lack of probable cause" (Carlton v NassauCounty Police Dept., 306 AD2d 365, 366 [2003]). The existence or absence of probablecause becomes a question of law to be decided by the court "only where there is no real disputeas to the facts or the proper inferences to be drawn therefrom" (Fausto v City of NewYork, 17 AD3d 520, 521 [2005]).
Here, while the plaintiff was identified as the perpetrator, the police also had informationsuggesting that it was the plaintiff's sister who committed the crime. Consequently, the SupremeCourt properly denied that branch of the defendant's motion which was for summary judgmentdismissing the cause of action alleging false arrest because there is a question of fact as towhether the police had probable cause to arrest the plaintiff (see Fausto v City of NewYork, 17 AD3d at 521; Carlton v Nassau County Police Dept., 306 AD2d at 366).
A cause of action alleging malicious prosecution requires "(1) the commencement orcontinuation of a criminal proceeding by the defendant against the plaintiff, (2) the terminationof the proceeding in favor of the accused, (3) the absence of probable cause for the criminalproceeding and (4) actual malice" (Broughton v State of New York, 37 NY2d 451, 457[1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]).[*2]
When an arrest is made without a warrant andjustification for the arrest has not been demonstrated, the "absence of probable cause" element issatisfied for the malicious prosecution claim (id. at 457). Furthermore, malice can beinferred by lack of probable cause or "conduct that was reckless or grossly negligent"(Haynes v City of New York, 29 AD3d 521, 523 [2006], quoting Carlton v NassauCounty Police Dept., 306 AD2d at 366; Loeb v Teitelbaum, 77 AD2d 92, 104[1980]). Thus, the Supreme Court correctly denied that branch of the defendant's motion whichwas for summary judgment dismissing the cause of action alleging malicious prosecution. Florio,J.P., Miller, Covello and Austin, JJ., concur.