| Wilner v Village of Roslyn |
| 2012 NY Slip Op 06600 [99 AD3d 702] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Judith Wilner, Individually and as Executor of Harry Wilner,Appellant, v Village of Roslyn et al., Respondents, et al.,Defendant. |
—[*1] Sokoloff Stern LLP, Westbury, N.Y. (Brian S. Sokoloff and Melissa L. Holtzer of counsel),for respondents.
In an action, inter alia, to recover damages for abuse of process and malicious prosecutionunder New York State law, and civil rights violations pursuant to 42 USC § 1983, theplaintiff appeals from so much of an order of the Supreme Court, Nassau County (Winslow, J.),entered March 28, 2011, as granted the motion of the defendants Village of Roslyn, RichardBarbieri, and Wade Curry for summary judgment dismissing the complaint insofar as assertedagainst them and denied her cross motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the motion of the defendants Village of Roslyn, Richard Barbieri, and WadeCurry which were for summary judgment dismissing the causes of action to recover damages formalicious prosecution under New York State law, and for equal protection violations pursuant to42 USC § 1983, insofar as asserted against them, and substituting therefor a provisiondenying those branches of the motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The plaintiff owns a house located in the Village of Roslyn. A rain storm, which began on orabout October 7, 2005, and which continued for several days, undermined a hillside on herproperty and caused the collapse of the plaintiff's retaining wall. The resulting landslide damagedthe plaintiff's property, and it also damaged the Village Hall, which is located about 130 feetdownhill from the plaintiff's property.
Immediately after the storm, the Village's Code Enforcement Officer, the defendant WadeCurry, concluded that a faulty storm drain on the plaintiff's property caused the landslide, and heissued summonses against the plaintiff to appear in criminal court on misdemeanor charges. Asubsequent investigation revealed that the damage was, in fact, due to a clogged and damagedmanhole, located at the top of the hill, which was part of a drain line belonging to the Village.Despite this subsequent revelation, however, the Village proceeded with the criminal actionagainst [*2]the plaintiff until the trial in or about August andSeptember 2006, at which point the Village moved to dismiss the case.
The plaintiff commenced this action against the Village, Curry, Richard Barbieri (then theSuperintendent of Buildings) (hereinafter collectively the Village defendants), and John P.Gibbons, Jr. (the Village Attorney and Prosecutor), to recover damages for abuse of process andmalicious prosecution under New York State law, and civil rights violations pursuant to 42 USC§ 1983. The Village defendants moved for summary judgment dismissing the complaintand the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Courtgranted the Village defendants' motion and denied the plaintiff's cross motion.
To prevail on her abuse of process claim, the plaintiff must establish that the Villagedefendants " '(1) used regularly-issued process, either civil or criminal, (2) intended to do harmwithout excuse or justification, and (3) used the process in a perverted manner to obtain acollateral objective' " (Hudson Val.Mar., Inc. v Town of Cortlandt, 79 AD3d 700, 702 [2010], quoting Johnson v KingsCounty Dist. Attorney's Off., 308 AD2d 278, 288-289 [2003]). The Village defendantsestablished their prima facie entitlement to judgment as a matter of law dismissing the causes ofaction to recover damages for abuse of process by demonstrating that they did not use the processto obtain a collateral objective. In opposition, the plaintiff failed to raise a triable issue of fact(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The elements of the tort of malicious prosecution under New York State law are (1) thecommencement or continuation of a criminal proceeding by the defendant against the plaintiff,(2) the termination of the proceeding in favor of the accused, (3) the absence of probable causefor the criminal proceeding, and (4) actual malice (see Smith-Hunter v Harvey, 95 NY2d191, 195 [2000]; Broughton v State of New York, 37 NY2d 451, 457 [1975], certdenied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Johnson v Kings CountyDist. Attorney's Off., 308 AD2d at 286). Here, the Supreme Court erred in determining thatthe Village defendants established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action to recover damages for malicious prosecution asserted under NewYork State law. It is uncontested that the plaintiff can establish the first two elements of the causeof action. Further, the Village defendants failed to establish that the plaintiff is unable to provethe remaining elements in that they failed to adduce evidence demonstrating that they hadprobable cause to commence and continue the criminal proceeding against the plaintiff, or thattheir motives were not malicious.
Under 42 USC § 1983, a party may pursue a civil claim for damages and injunctiverelief against any person who acts under color of state law to deprive that party of a constitutionalright (see Holland v City ofPoughkeepsie, 90 AD3d 841, 846 [2011]). "[T]o sustain a § 1983 maliciousprosecution claim, there must be a seizure or other perversion of proper legal proceduresimplicating the claimant's personal liberty and privacy interests under the Fourth Amendment"(Washington v County of Rockland, 373 F3d 310, 316 [2004] [internal quotation marksomitted]; see Albright v Oliver, 510 US 266 [1994]). Here, the Village defendantsestablished their prima facie entitlement to judgment as a matter of law dismissing the 42 USC§ 1983 malicious prosecution cause of action by demonstrating that the criminalproceeding against the plaintiff was commenced with a prearraignment, nonfelony summonswhich subsequently required the plaintiff to appear in court on five occasions without imposingany additional restrictions on her liberty or travel (see Parkash v Town of Southeast, 2011WL 5142669, *5-6, 2011 US Dist LEXIS 128545, *14-16 [SD NY], affd 468 Fed Appx80 [2d Cir]; Burg v Gosselin, 591 F3d 95, 97-98 [2d Cir 2010]; Mangino vIncorporated Vil. of Patchogue, 739 F Supp 2d 205, 228 [ED NY 2010]). In opposition, theplaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly grantedthat branch of the Village defendants' motion which was for summary judgment dismissing thecause of action to recover damages for malicious prosecution under 42 USC § 1983.
The Village defendants failed to establish their prima facie entitlement to judgment as amatter of law dismissing the cause of action to recover damages for equal protection violationspursuant to 42 USC § 1983. Thus, it is unnecessary to consider whether the plaintiff'spapers in opposition to the Village defendants' motion were sufficient to raise a triable issue offact (see [*3]generally Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court erred in granting thatbranch of the Village defendants' motion which was for summary judgment dismissing the causeof action to recover damages for equal protection violations pursuant to 42 USC § 1983.
The plaintiff's remaining contentions are without merit. Angiolillo, J.P., Belen, Chambersand Austin, JJ., concur. [Prior Case History: 2011 NY Slip Op 30816(U).]