You are here: / / THE MALICIOUS PROSECUTION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED;...
, , ,

THE MALICIOUS PROSECUTION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; AN INDICTMENT RAISES ONLY A PRESUMPTION OF PROBABLE CAUSE WHICH CAN BE REBUTTED; A PROSECUTOR IS ENTITLED ONLY TO QUALIFIED IMMUNITY AS AN INVESTIGATOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s malicious prosecution cause of action should not have been dismissed. Plaintiff was arrested and indicted for sex trafficking, held in jail for 10 months, and then the charges were dropped. The court noted that the indictment raised only a presumption of probable cause which can be rebutted. The plaintiff raised a question of fact about whether the prosecution was motivated by malice. A prosecutor is entitled only to qualified immunity when acting as an investigator:

“The elements of the tort of malicious prosecution are: (1) the commencement 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 cause for the criminal proceeding and (4) actual malice” … . Although a grand jury indictment raises a presumption of probable cause, this presumption may be rebutted … . “[E]ven if the jury at a trial could, or likely would, decline to draw inferences favorable to the plaintiff on issues of probable cause and malice, the court on a summary judgment motion must indulge all available inferences of the absence of probable cause and the existence of malice” … . …

“[A] prosecutor is entitled to absolute immunity for actions taken within the scope of his or her official duties in initiating and pursuing a criminal prosecution and in presenting the People’s case, but a prosecutor is entitled only to qualified immunity when acting in an investigatory capacity” … . Crooks v City of New York, 2020 NY Slip Op 07161, Second Dept 12-2-20

 

You might also like
Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony
PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT).
Declaratory Judgment Actions Seeking a Determination of the Validity of Certain Tax Assessment/Liens Were Governed by the Six-Year Statute of Limitations
SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF WATER ON THE FLOOR IN THIS SLIP AND FALL CASE; SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
MURDER SECOND DISMISSED AS INCLUSORY CONCURRENT COUNT OF MURDER FIRST (SECOND DEPT).
THE SUPPORT MAGISTRATE SHOULD HAVE INQUIRED FURTHER WHEN FATHER SAID HE WISHED TO HAVE AN ATTORNEY BUT COULD NOT AFFORD ONE; THE SUPPORT MAGISTRATE TOLD FATHER HE WAS NOT ENTITLED TO APPOINTED COUNSEL BECAUSE HE WAS WORKING; FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL (SECOND DEPT).
THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).
ZONING BOARD DID NOT CONSIDER ALL THE STATUTORY FACTORS; DENIAL OF APPLICATION FOR VARIANCES TO ALLOW NEW CONSTRUCTION ANNULLED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PROPERTY OWNER SUED THE VILLAGE ALLEGING THE VILLAGE BREACHED A CONTRACT... PLAINTIFF’S FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE,...