| MacDonald v Town of Greenburgh |
| 2013 NY Slip Op 08054 [112 AD3d 586] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Jodee MacDonald, Respondent, v Town ofGreenburgh et al., Defendants, and Dennis Basulto, Appellant. (Appeal No. 1.) JodeeMacDonald, Respondent, v Town of Greenburgh et al., Appellants. (Appeal No.2.) |
—[*1] Mark A. Siesel, White Plains, N.Y., for respondent.
In an action, inter alia, to recover damages for false arrest, malicious prosecution,and civil rights violations pursuant to 42 USC § 1983, the defendant DennisBasulto appeals, as limited by his brief, from so much of (1) an order of the SupremeCourt, Westchester County (Bellantoni, J.), entered February 3, 2012, as denied hismotion for summary judgment dismissing the complaint insofar as asserted against him,and (2) an order of the same court, entered June 1, 2012, as, upon reargument, adhered toits original determination in the order entered February 3, 2012, and the defendantsTown of Greenburgh and Town of Greenburgh Police Department appeal from the orderentered June 1, 2012.
Ordered that the appeal by the defendants Town of Greenburgh and Town ofGreenburgh Police Department from the order entered June 1, 2012, is dismissed asabandoned for failure to perfect the same in accordance with the rules of this Court(see 22 NYCRR 670.8 [c] [e]; and it is further,
Ordered that the appeal by the defendant Dennis Basulto from the order enteredFebruary 3, 2012, is dismissed, as that order was superseded by the order entered June 1,2012, made upon reargument; and it is further,
Ordered that the order entered June 1, 2012, is affirmed insofar as appealed from bythe defendant Dennis Basulto; and it is further,
Ordered that the plaintiff is awarded one bill of costs, payable by the defendantDennis Basulto.
Probable cause to believe that a person committed a crime is a complete defense toclaims of false arrest and malicious prosecution (see Fortunato v City of New York, 63 AD3d 880 [2009]).[*2]The existence or absence of probable cause becomesa question of law to be decided by the court only where there is no real dispute as to thefacts or the proper inferences to be drawn surrounding the arrest (see Wyllie v District Attorney ofCounty of Kings, 2 AD3d 714, 718 [2003]; Orminski v Village of LakePlacid, 268 AD2d 780 [2000]).
On his motion for summary judgment dismissing the complaint insofar as assertedagainst him, the defendant Dennis Basulto, a police officer, met his initial burden bydemonstrating, prima facie, that he had probable cause to arrest the plaintiff (seeCarlton v Nassau County Police Dept., 306 AD2d 365 [2003]). However, inopposition, the plaintiff submitted, inter alia, her testimony at a General Municipal Law§ 50-h hearing and her deposition testimony. The plaintiff's account of the subjectincident giving rise to her arrest differed markedly from Basulto's, and raised a triableissue of fact as to whether Basulto had probable cause to arrest the plaintiff (see Mohen v Stepanov, 59AD3d 502, 505 [2009]; Lundgren v Margini, 30 AD3d 476, 477 [2006];Malone v City of Glens Falls, 251 AD2d 838, 840 [1998]). Accordingly, uponreargument, the Supreme Court properly adhered to its prior determination denying thosebranches of Basulto's motion which were for summary judgment dismissing the causes ofaction alleging false arrest and malicious prosecution insofar as asserted against him.Similarly, as there is a triable issue of fact as to whether Basulto had probable cause toarrest the plaintiff, the Supreme Court, upon reargument, properly adhered to its priordetermination denying that branch of his motion which was for summary judgment onthe issue of qualified immunity (see Diederich v Nyack Hosp., 49 AD3d 491, 493 [2008]).
Basulto's remaining contentions are without merit. Rivera, J.P., Balkin, Hall andCohen, JJ., concur.