| Singer v Krul |
| 2011 NY Slip Op 09236 [90 AD3d 1378] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Daniel Singer, Appellant, v Casey Krul,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Mercure, A.P.J. Appeal from an order of the Supreme Court (Aulisi, J.), entered July 8, 2010in Fulton County, which denied plaintiff's motion for a new trial.
After plaintiff was acquitted of violating Vehicle and Traffic Law § 1128 (d), hecommenced this action alleging false arrest and malicious prosecution by defendant, the StateTrooper who had issued the traffic ticket. The case proceeded to a jury trial and, at the close ofthe evidence, Supreme Court dismissed the false arrest cause of action. The jury then found indefendant's favor on the malicious prosecution claim. The court denied plaintiff's subsequentmotion for a new trial, and plaintiff now appeals from that order.
The decision whether to grant a motion for a new trial pursuant to CPLR 4404 (a) iscommitted to the trial court's discretion and will not be disturbed absent an abuse of thatdiscretion (see Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 381[1976]; Straub v Yalamanchili, 58 AD3d 1050, 1051 [2009]; Packard v State FarmGen. Ins. Co., 268 AD2d 821, 822 [2000]). Here, in order to prevail upon his maliciousprosecution claim, plaintiff was required to prove—among other things—"theabsence of probable cause for the criminal proceeding" (Smith-Hunter v Harvey, 95NY2d 191, 195 [2000] [internal quotation marks and citation omitted]; see Guntlow v Barbera, 76 AD3d760, 765 [2010], appeal dismissed 15 NY3d 906 [2010]). He contended at trial thatprobable cause in this case was negated because the incident leading to the traffic charge wasprovoked by defendant. Specifically, he claimed that [*2]defendant drove up behind him at a high rate of speed, whichcaused him to make a right-hand turn and resulted in his tires crossing the fog line.
In support of his argument, plaintiff sought to call an expert to testify to his calculation ofdefendant's speed, to show that defendant must have exceeded the speed limit. Supreme Courtgranted defendant's motion to preclude the testimony, finding that the record containedinsufficient evidence as to defendant's rate of acceleration to permit an expert opinion on thatissue and, even if there had been sufficient evidence, evaluating the speed of defendant's car wasnot beyond the ken of an ordinary juror. Upon our examination of the record, we are unpersuadedby plaintiff's contention that the court thereafter abused its discretion in denying his subsequentmotion for a new trial.
Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.