| Hendrickson-Brown v City of White Plains |
| 2012 NY Slip Op 00930 [92 AD3d 638] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Avis Hendrickson-Brown, Appellant, v City of WhitePlains et al., Respondents. |
—[*1] Joseph A. Maria, White Plains, N.Y. (Frances Dapice Marinelli of counsel), for respondentCity of White Plains. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent Comp USA.
In an action to recover damages for false arrest and malicious prosecution, the plaintiffappeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), enteredDecember 10, 2010, which granted the motion of the defendant City of White Plains pursuant toCPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against it, and (2) anorder of the same court, also entered December 10, 2010, which granted the separate motion ofthe defendant Comp USA for summary judgment dismissing the amended complaint insofar asasserted against it.
Ordered that the orders are affirmed, with one bill of costs.
Contrary to the plaintiff's contention, the Supreme Court properly dismissed, for failure tostate a cause of action, so much of the amended complaint as alleged false arrest against thedefendant City of White Plains inasmuch as the plaintiff did not serve her notice of claim within90 days of the accrual of the cause of action (see General Municipal Law § 50-e),i.e., within 90 days of the date on which the plaintiff was released from custody (seeMolyneaux v County of Nassau, 22 AD2d 954 [1964], affd 16 NY2d 663 [1965];Avgush v Town of Yorktown, 303 AD2d 340, 341 [2003]; Bennett v City of NewYork, 204 AD2d 587 [1994]; Allee v City of New York, 42 AD2d 899 [1973]).
Moreover, so much of the amended complaint as alleged malicious prosecution against theCity was properly dismissed for failure to state a cause of action because the plaintiff did notallege any facts sufficient to rise to the level of actual malice, i.e., "some deliberate actpunctuated with awareness of 'conscious falsity' " (Santoro v Town of Smithtown, 40 AD3d 736, 738 [2007] [internalquotation marks omitted]), and there was probable cause to arrest the plaintiff (see Wasilewicz v Village of Monroe PoliceDept., 3 AD3d 561, 562 [2004]; Kracht v Town of Newburgh, 245 AD2d 424,425 [1997]; Minott v City of New York, 203 AD2d 265, 267 [1994]).[*2]
The Supreme Court also properly granted the motion ofthe defendant Comp USA for summary judgment dismissing the amended complaint insofar asasserted against it. The amended complaint asserted causes of action alleging maliciousprosecution and false arrest against Comp USA. The evidence demonstrated merely that anemployee of Comp USA sought police assistance, provided information to the police, and signeda criminal complaint against the plaintiff, alleging a larceny. "[A] civilian defendant who merelyfurnishes information to law enforcement authorities who are then free to exercise their ownindependent judgment as to whether an arrest will be made and criminal charges filed will not beheld liable for malicious prosecution" (Lupski v County of Nassau, 32 AD3d 997, 998 [2006]) or falsearrest (see Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, 131 [1999]).Since the plaintiff failed to raise a triable issue of fact in opposition to Comp USA's prima faciedemonstration of entitlement to judgment as a matter of law, its motion for summary judgmentdismissing the amended complaint insofar as asserted against it was properly granted. Rivera,J.P., Dickerson, Chambers and Austin, JJ., concur.