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QUESTIONS OF FACT HAD BEEN RAISED IN PLAINTIFF’S MALICIOUS PROSECUTION AND FALSE ARREST ACTIONS AGAINST POLICE OFFICERS, DEFENSE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing (modifying) the Appellate Division, determined questions of fact precluded summary judgment dismissing the complaint against police officers alleging, inter alia, false arrest and malicious prosecution. Plaintiff had been arrested and indicted for murder after signing a confession. The charges were eventually dismissed by the prosecutor. In her civil suit, plaintiff alleged the confession was essentially written by the police and she signed it only after she was subjected to hours of intense interrogation. The Court of Appeals concluded a question of fact had been raised whether the police had probable cause to arrest. The court noted that if the police pass false information on to the prosecutor, the “commencement or continuation of a criminal proceeding” element of malicious prosecution has been satisfied (with respect to the police officers). The absence of probable cause also bears on the “actual malice” element of malicious prosecution:

 

We have “never elaborated on how a plaintiff in a malicious prosecution case demonstrates that the defendant commenced or continued the underlying criminal proceeding” … . But, by suggesting that a defendant other than a public prosecutor may be liable for supplying false information to the prosecutor in substantial furtherance of a criminal action against the plaintiff, we have implicitly recognized that such conduct may, depending on the circumstances, constitute the commencement or continuation of the prosecution … . * * *

Just as in the false arrest context, the plaintiff in a malicious prosecution action must also establish at trial the absence of probable cause to believe that he or she committed the charged crimes, but this element operates differently in the malicious prosecution context because “[o]nce a suspect has been indicted, [ ] the law holds that the Grand Jury action creates a presumption of probable cause” … . Generally, the plaintiff cannot rebut the presumption of probable cause with evidence merely indicating that the authorities acquired information that, depending on the inferences one might choose to draw, might have fallen somewhat shy of establishing probable cause … . And, even if the plaintiff shows a sufficiently serious lack of cause for the prosecution and rebuts the presumption at trial, he or she still must prove to the satisfaction of the jury that the defendant acted with malice, i.e., that the defendant “must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served” … .

… [I]n some instances, the plaintiff can simultaneously rebut the presumption of probable cause and satisfy the malice element by demonstrating that the evidence of guilt relied upon by the defendant was so scant that the prosecution was entirely baseless and maliciously instituted. In that sense, “[w]hile lack of probable cause to institute a criminal proceeding and proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue,” and “probable cause to initiate a criminal proceeding may be so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted” … . Moreover, in the alternative, the plaintiff may show malice and overcome the presumption of probable cause with proof that the defendant falsified evidence in bad faith and that, without the falsified evidence, the authorities’ suspicion of the plaintiff would not have fully ripened into probable cause … . Thus, we have observed that, in the context of a malicious prosecution suit against the police, the presumption may be overcome “by evidence establishing that the police witnesses have not made a complete and full statement of facts . . . to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith” … . De Lourdes Torres v Jones, 2016 NY Slip Op 01254, CtApp 2-23-16

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)/STATUTE OF LIMITATIONS (DEFENSE MAY BE RAISED FOR THE FIRST TIME IN ANSWER TO AN AMENDED COMPLAINT)/RELATION-BACK DOCTRINE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)

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