| Rivera v County of Nassau |
| 2011 NY Slip Op 03574 [83 AD3d 1032] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Ruben E. Rivera, Jr., Appellant, v County of Nassau et al.,Respondents. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Brian M. Libert and Dennis J. Saffran ofcounsel; Nicholas De Meo on the brief), for respondents County of Nassau, Nassau CountyPolice Department, and Detective John J. Ash. Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John J. Nicolini of counsel), forrespondent Walter Amend.
In an action, inter alia, to recover damages for false arrest and malicious prosecution, theplaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), datedDecember 17, 2009, which granted the motion of the defendants County of Nassau, NassauCounty Police Department, and Detective John J. Ash, and the separate motion of the defendantWalter Amend, for summary judgment dismissing the complaint insofar as asserted against eachof them.
Ordered that the order is affirmed, with one bill of costs payable to the defendants appearingseparately and filing separate briefs.
After the plaintiff was evicted from an apartment owned by the defendant Walter Amend,Amend and his family allegedly received threatening telephone calls. Amend claimed to haverecognized the plaintiff's voice, and he filed a complaint with the defendant Nassau CountyPolice Department. The plaintiff was arrested, and a criminal accusatory instrument was filed,but the charges were dismissed after it was learned that the voice on the only call that had beenrecorded was not that of the plaintiff. The plaintiff then commenced this action, seeking torecover damages, inter alia, for false arrest and malicious prosecution, against the County ofNassau, the Nassau County Police Department, Detective John J. Ash (hereinafter collectivelythe County defendants), and Amend. After discovery, the County defendants and Amendseparately moved for summary judgment dismissing the complaint insofar as asserted againstthem. The Supreme Court granted both motions, the plaintiff appeals, and we affirm.
In order to prevail on a cause of action seeking to recover damages for malicious prosecution,a plaintiff must establish that (1) a criminal proceeding was commenced; (2) it was terminated infavor of the accused; (3) it lacked probable cause; and (4) it was commenced out of actual malice(see Cantalino v Danner, 96 NY2d 391, 394 [2001]; Broughton v State of NewYork, 37 NY2d 451, 457 [1975], cert [*2]denied subnom. Schanbarger v Kellogg, 423 US 929 [1975]; Baker v City of New York, 44AD3d 977, 979 [2007]). "Generally, information provided by an identified citizen accusinganother individual of a specific crime is legally sufficient to provide the police with probablecause to arrest" (People v Bero, 139 AD2d 581, 584 [1988]; see People v Read,74 AD3d 1245, 1246 [2010]). In order to prevail on a cause of action seeking to recover damagesfor false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confinethe plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did notconsent to the confinement; and (4) the confinement was not otherwise privileged (seeMartinez v City of Schenectady, 97 NY2d 78, 85 [2001]; NY PJI 3:5, Comment). "Theexistence of probable cause serves as a legal justification for the arrest and an affirmative defenseto the claim" of false imprisonment or false arrest (Martinez v City of Schenectady, 97NY2d at 85; see Broughton v State of New York, 37 NY2d at 458). In order to hold acivilian defendant liable for false arrest, the plaintiff must establish that that defendant did notmerely report a crime to the police or participate in the prosecution, but actively importuned thepolice to make an arrest without "reasonable cause [to believe] in the plaintiff's culpability"(DeFilippo v County of Nassau, 183 AD2d 695, 696-697 [1992]; see Grinnell vWeston, 95 App Div 454, 459 [1904]; cf. Brown v Nassau County, 306 AD2d 303[2003]).
Here, the County defendants established their prima facie entitlement to judgment as a matterof law on the causes of action alleging malicious prosecution and false arrest insofar as assertedagainst them by submitting evidence that they acted upon information provided by a knowncitizen informant that provided them with probable cause to arrest the plaintiff (see Martinezv City of Schenectady, 97 NY2d at 85; Wasilewicz v Village of Monroe PoliceDept., 3 AD3d 561, 562 [2004]; Du Chateau v Metro-North Commuter R.R. Co.,253 AD2d 128, 132 [1999]; Eisenkraft v Armstrong, 172 AD2d 484, 486 [1991]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Eisenkraft v Armstrong,172 AD2d at 486).
Amend established his prima facie entitlement to judgment as a matter of law dismissing thecause of action alleging malicious prosecution insofar as asserted against him (cf. Munoz vCity of New York, 18 NY2d 6, 9 [1966]; Santoro v Town of Smithtown, 40 AD3d736, 738 [2007]). In opposition, the plaintiff failed to raise a triable issue of fact (see Baker vCity of New York, 44 AD3d at 980). Amend established his prima facie entitlement tojudgment as a matter of law dismissing cause of action alleging the false arrest by submittingevidence that he did not actively importune the police to arrest the defendant without "reasonablecause" to believe that the plaintiff had made the threatening telephone calls (DeFilippo vCounty of Nassau, 183 AD2d at 696-697; see Brown v Nassau County, 306 AD2d303 [2003]; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d at 132;Grinnell v Weston, 95 App Div at 459). In opposition, the plaintiff failed to raise a triableissue of fact (see Cotter v Summit Sec. Servs., Inc., 14 AD3d 475 [2005]). Consequently,the Supreme Court properly granted the defendants' separate motions for summary judgmentdismissing the causes of action alleging malicious prosecution and false arrest.
Since the plaintiff makes no independent argument with respect to the summary dismissal ofthe third and fourth causes of action as derivative of his claims for malicious prosecution andfalse imprisonment, we need not address those causes of action separately. Angiolillo, J.P.,Balkin, Leventhal and Sgroi, JJ., concur.