You are here: / Malicious Prosecution Requires Something More than Merely Reporting an...

Search Results

/ ,

Malicious Prosecution Requires Something More than Merely Reporting an Alleged Incident to Authorities/Uncorroborated, Incredible, Allegations by Plaintiff Did Not Raise a Question of Fact

The First Department, in a full-fledged opinion by Justice Richter, determined summary judgment in favor of the defendants was properly granted for malicious prosecution and defamation causes of action.  Plaintiff, Moorhouse, had been charged with attempted rape of a hotel worker, G.P., and was acquitted.  He then brought a civil suit alleging, among other causes of action, malicious prosecution and defamation.  The First Department explained that plaintiff’s uncorroborated, incredible version of events, contradicted by eyewitness testimony which corroborated the hotel worker’s allegations, and the acquittal itself, did not raise a question of fact:

In the malicious prosecution cause of action, Moorhouse contends that G.P. initiated the criminal proceeding against him without probable cause and with malice … . The Court of Appeals has imposed “stringent requirements” for bringing malicious prosecution claims … . The Court explained that this is necessary “to effectuate the strong public policy of open access to the courts for all parties without fear of reprisal in the form of a retaliatory lawsuit” … . To prevail on such a claim, a plaintiff has a “heavy burden” …, and must establish the following four elements: “(1) the initiation of a criminal proceeding by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) lack of probable cause, and (4) malice” … . A plaintiff’s failure to prove any one of these elements will defeat the entire claim … .

A civilian who simply provides information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest should be made and criminal charges filed, will generally not be held liable for malicious prosecution … . To establish the element of initiation of a criminal proceeding, it typically must be shown that the defendant did something “more than merely report a crime to the police and cooperate in its prosecution” … . Instead “[t]he defendant must have affirmatively induced the officer to act, such [*5]as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition” … . Moorhouse v Standard NY, 2014 NY Slip Op 07605, 1st Dept 11-6-14

 

/ ,

Real Estate Broker Not an Employee of Commercial Real Estate Firm

The Third Department upheld the Unemployment Insurance Appeal Board’s determination that claimant, a real estate broker, was not an employee of a commercial real estate firm (Optimal):

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence … . The pertinent inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being more important … .

Evidence was presented that claimant was paid a commission of 60% of the brokerage fee collected by Optimal, which she negotiated with Optimal’s senior managing director. Moreover, claimant did not have an established work schedule or work location, independently maintained her own real estate license, carried her own business cards and was permitted to and did receive commissions on referrals from other parties. Notably, she was not required to report to anyone at Optimal nor was she required to accept leads that Optimal sent to her. In view of the foregoing, while we are unable to conclude, as a matter of law that no employment relationship exists (see Labor Law § 511 [19]), substantial evidence supports the Board’s finding that Optimal did not exercise sufficient control over claimant’s work to be deemed her employer … . Matter of Spielberger…, 2014 Slip Op 07564, 3rd Dept 11-6-14

 

/

Employer Took Responsibility for Transporting Claimant Home After Cancellation of Work Due to a Storm—Injury During Ride Home Compensable

The Third Department affirmed the Workers’ Compensation Board’s determination that plaintiff was injured on the job.  A snowstorm forced the cancellation of work and the employer took responsibility for getting the claimant home.  Because the van used to transport claimant had no seats, claimant injured her spine during the trip:

Generally, travel to and from the place of employment is not considered to be within the scope of employment and, thus, injuries sustained during that period are not compensable … . However, an exception arises when the employer takes responsibility for transporting employees, particularly where the employer is in exclusive control of the means of conveyance … . The key determination in establishing compensability is whether there is “some nexus between the accident and the employment” … . Here, it is undisputed that the employer furnished the van for transportation, one of claimant’s supervisors was the driver and, further, claimant’s injuries were sustained during the course of that transportation while she was still on the clock and being paid. Inasmuch as the employer took responsibility for the inherent risks of transporting its employees from the work site and had exclusive control of the conveyance, we find no reason to disturb the Board’s determination that claimant’s injury arose out of and in the course of her employment … . Matter of Noboa v International Shoppes Inc, 2014 NY Slip Op 07540, 3rd Dept 11-6-14

 

/

Where an Injured Worker Remains Attached to the Work Force After Injury, the Measure of Benefits Is the Difference Between Actual Earnings Before and After Injury and Cannot Be Based On Evidence of What the Worker Could Be Earning

The Third Department determined that the Workers’ Compensation Board correctly calculated the benefits to which claimant was entitled based upon her actual earnings in her new job in a delicatessen, as opposed to the amount her employer argued she was capable of earning.  Claimant was a nurse’s aid who injured her back while working in a nursing home:

Following a hearing, a Workers’ Compensation Law Judge determined that she had a permanent partial disability and calculated her weekly compensation rate — i.e., two thirds of the difference between what her average weekly wage would be absent injury and her current wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]), as measured by her degree of disability. Upon claimant’s application for review, the Workers’ Compensation Board increased claimant’s degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly. …

“[B]efore awarding wage replacement benefits in a nonschedule permanent partial disability case,” the Board must determine “whether a claimant has maintained a sufficient attachment to the labor market” … — i.e., that the claimant’s “reduced earning capacity is due to the disability, not . . . factors unrelated to the disability” (id. [internal quotation marks and citations omitted]), such as “‘age, [or] general economic conditions'” … . Once it is determined that a claimant’s reduced earning capacity remains involuntary and related to his or her permanent partial disability, “[t]he wage earning capacity of an injured employee . . . shall be determined by his [or her] actual earnings” while disabled (Workers’ Compensation Law § 15 [5-a]…). In that regard, the Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remained attached to the labor market, “where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period”… . Matter of Gioia v Cattaraugus County Nursing Home, 2014 NY Slip Op 07535, 3rd Dept 11-6-14

 

/ ,

Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

/

Unexcused Late Disclaimer of Coverage Invalid and Unenforceable

The Third Department determined the insurer’s disclaimer of coverage was invalid and uneforceable because it was inexcusably late.  The court noted that a “reservation of rights letter” does not constitute a disclaimer:

An insurer’s decision to disclaim liability insurance coverage must be given to the insured, in writing, as soon as is reasonably practicable, “failing which the disclaimer or denial will be ineffective” (… see Insurance Law § 3420 [d] [2]…). While the timeliness of an insurer’s notice of disclaimer generally raises an issue of fact for a jury to decide, where, as here, the basis for a disclaimer “was or should have been readily apparent before the onset of the delay,” the delay will be found to be unreasonable as a matter of law … . “Reasonableness of delay is measured from the time when the insurer learns of sufficient facts upon which to base the disclaimer” … . * * *

Even after receiving the attorney’s summary, which ostensibly equipped it with sufficient facts to issue a written disclaimer, plaintiff instead sent defendant a reservation of rights letter, which does not serve as “a substitute for the required notice of disclaimer” … . Vermont Mut Ins Co v Mowery Constr Inc, 2014 NY Slip Op 07537, 3rd Dept 11-6-14

 

/

Worker Struck by Falling Brick Entitled to Summary Judgment/Comparative Negligence Is Not a Defense to a Labor Law 240(1) Claim

The First Department determined that summary judgment pursuant to Labor Law 240(1) was properly granted to a worker struck by a falling brick.  The court noted that comparative negligence is not a defense to a Labor Law 240(1) action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim by submitting, among other things, his testimony that he was performing his assigned work of cleaning debris from the ground level, just outside the north side of the subject building under construction, when he was suddenly struck by a falling brick, in the absence of any overhead netting or other such protective devices … . Defendants’ witnesses further established their liability by confirming that the brick fell out of the hands of a masonry worker several stories above plaintiff, and that safety netting which had been installed on other sides of the building was absent from the north exterior. The lack of overhead protective devices was a proximate cause of plaintiff’s injuries under any of the conflicting accounts …, and plaintiff’s comparative negligence is not a defense to a Labor Law § 240(1) claim… . Hill v Acies Group LLC, 2014 NY Slip Op 07601, 2nd Dept 11-6-14

 

/ ,

Plaintiff-Passenger’s Injury In an Illegal Drag-Race Not Actionable—Under the Facts, Public Policy Precluded Plaintiff from Bringing Suit

The First Department, over a dissent, determined that a complaint brought by a passenger, who was a willing participate in illegal drag-racing, against the drivers and other passengers involved, was properly dismissed.  Plaintiff was injured when the car he was in crashed during the race:

“[A]s a matter of public policy, . . . where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation” … . Plaintiff urges that this rule of law is inapplicable because he was merely a passenger and also because some of the defendants indicated during disclosure that they did not consider themselves to be racing. As for the latter argument, plaintiff controls the theory of his case and he has not wavered from his contention that a high-speed drag race was in progress — an allegation made in his complaint, bills of particulars, proposed amended complaint, affidavits submitted in the underlying motions and about which he testified in detail at his deposition. Supreme Court did not err in accepting plaintiff’s admitted conduct in such regard … .

The fact that a plaintiff’s injuries occurred in the course of unlawful conduct does not mandate dismissal …, but instead the violation of law must be “sufficiently serious” to support such an extreme result, and this determination necessarily implicates “due consideration of all the relevant facts and circumstances” … . Here, plaintiff testified that he knew Eastman had been drinking beer all day, plaintiff participated in banter regarding racing and he vouched for Eastman’s truck as the fastest. Plaintiff stated that he entered the truck knowing a race was about to start, the truck and the vehicle driven by Losaw revved engines at a starting point on the road with yelling back and forth, and plaintiff never suggested that Eastman not proceed to race. In fact, once the race started, he even made comments urging Eastman to go faster so as not to be defeated in the race. Shortly thereafter, Eastman lost control of the truck. Estimated speeds during the race exceeded 100 miles per hour. Plaintiff was very familiar with the road, acknowledged racing on it previously and described it as “pretty curvy,” “surface isn’t even,” “potholes, bumps” and “not much shoulder.”

Racing side by side at over 100 miles per hour in the dark on a two-lane rural road under the circumstances of this case constitutes the type of grossly reckless conduct that created a grave risk to the public … . Hathaway v Eastman, 2014 NY Slip Op 07533, 3rd Dept 11-6-14

 

/ , , ,

Non-Party Attorneys Properly Held in Civil Contempt for Starting a Class Action Suit In Violation of Anti-Suit Injunctive Order

In a proceeding to liquidate the Executive Life Insurance Company of New York, non-party attorneys for objectors to the liquidation filed a class action lawsuit in federal court in violation of anti-suit injunctive orders issued by Supreme Court.  In affirming Supreme Court’s finding the non-party attorneys in contempt, the Second Department explained the criteria:

To prevail on a motion to punish for civil contempt, the movant must demonstrate that the alleged contemnor violated a clear and unequivocal court order, of which the alleged contemnor had knowledge, thereby prejudicing a right of a party to the litigation (see Judiciary Law § 753[A][3]…). “To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” … .

* * * The commencement of the class action violated the anti-suit injunctive provisions set forth in three court orders entered in this rehabilitation proceeding commenced pursuant to Insurance Law article 74, that was later converted into a liquidation proceeding … . An order of the court must be obeyed until that order is set aside, either by appeal or otherwise, where, as here, the court that issued the order had jurisdiction to issue it … . The petitioner also demonstrated that the commencement of the class action prejudiced its rights … . Matter of Executive Life Ins Co of NY, 2014 NY Slip Op 07506, 2nd Dept 11-5-14

 

/

Criteria for Allowing Late Claim Described

The Second Department determined the Court of Claims should have granted claimant’s request to file a late claim:

Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim … . “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” … .

Here, the Court of Claims improvidently exercised its discretion in denying that branch of the claimants’ motion which was for leave to file a late claim on behalf of the claimant … . It is undisputed that the State received actual notice of the essential facts constituting the claim within 90 days after the claimant[‘s] …  accident, and there is no indication that the State would suffer substantial prejudice if the claimants were permitted to file a late claim … . Furthermore, notwithstanding the existence of a factual issue as to which governmental entity bears responsibility for maintenance of the roadway and guardrail where the accident occurred, the claimants’ submissions were sufficient, at this point, to demonstrate that there appears to be merit to their claim within the meaning of Court of Claims Act § 10(6) … . Tucholski v State of New York, 2014 NY Slip Op 07494, 2nd Dept 11-5-14

 

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