Malicious Prosecution Archives - New York Appellate Digest

Civil Procedure, Criminal Law, Malicious Prosecution, Municipal Law, Navigation Law, Water Law

BECAUSE THE STATE, NOT THE TOWN, OWNS THE LAND BENEATH THE LAKE, THE TOWN DID NOT HAVE JURISDICTION TO BRING CRIMINAL CHARGES BASED UPON THE CONSTRUCTION OF DOCKS; THE CRIMINAL MATTER WAS DISMISSED ON THAT GROUND AND PLAINTIFFS BROUGHT A MALICIOUS PROSECUTION ACTION; BECAUSE THE CRIMINAL MATTER WAS TERMINATED IN PLAINTIFFS’ FAVOR THE MALICIOUS PROSECUTION ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the underlying criminal matter brought against the plaintiffs (the Melchers) by the town had been terminated in favor of the plaintiffs. Therefore the plaintiffs’ malicious prosecution action against the town should not have been dismissed. The town brought criminal charges based upon plaintiffs’ construction of docks in a marina. Pursuant to the Navigation Law, the state owns the land beneath the lake and the town, therefore, did not have jurisdiction to bring the criminal charges. The criminal charges had been dismissed on that ground:

In order to maintain a civil action to recover damages for malicious prosecution, a plaintiff must show “(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” … . A criminal proceeding terminates favorably to the accused where the disposition is final, “such that the proceeding cannot be brought again” … , and the disposition is not “inconsistent with a plaintiff’s innocence” … . Whether a disposition was inconsistent with innocence is a case-specific determination that considers the circumstances of the particular case … .

Here, the 2008 criminal proceeding was dismissed for lack of jurisdiction pursuant to CPL 170.30(1)(f) because the Town lacked legal authority to regulate the activity upon which the criminal charges were based. In the dismissal order, the Supreme Court found that “jurisdiction over the [Melchners] ha[d] never been properly obtained and accordingly the [Melchners] [could] not be prosecuted for the offenses alleged.” Under the circumstances, the disposition was not inconsistent with the Melchners’ innocence … . Melchner v Town of Carmel, 2021 NY Slip Op 03830, Second Dept 6-16-21

June 16, 2021/by Bruce Freeman

Immunity, Judges, Malicious Prosecution, Municipal Law

THE MALICIOUS PROSECUTION CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE TOWN JUSTICE’S ISSUANCE OF AN ARREST WARRANT FOR PLAINTIFF SHOULD HAVE BEEN DISMISSED AS BARRED BY THE DOCTRINE OF JUDICIAL IMMUNITY (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the malicious prosecution cause of action against the town should have been dismissed. Plaintiff daughter filed a report accusing her mother of withdrawing money from the daughter’s account without permission. An arrest warrant was issued. Plaintiff thereafter produced a power of attorney allowing her to withdraw money from her daughter’s account and the larceny charge against plaintiff was dropped. Plaintiff then brought a malicious prosecution action against the town and the village:

Under the doctrine of judicial immunity, a judge is immune from civil liability for any acts that he or she performs in the exercise of his or her judicial function … .

Defendants correctly observe that plaintiff’s malicious prosecution claim against the Town is premised solely upon the Town Justice signing the warrant authorizing plaintiff’s arrest. The record indisputably establishes that the Town Justice signed the arrest warrant in the exercise of his judicial function. Consequently, the doctrine of judicial immunity applies and Supreme Court should have dismissed the malicious prosecution claim against the Town on that basis … . Gagnon v Village of Cooperstown, N.Y., 2020 NY Slip Op 07256, Third Dept 12-3-20

December 3, 2020/by Bruce Freeman

Attorneys, Immunity, Malicious Prosecution, Municipal Law

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

December 2, 2020/by Bruce Freeman

Battery, False Arrest, False Imprisonment, Malicious Prosecution, Municipal Law

DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST FOR THE CHARGED CRIMES OR FOR ANY UNCHARGED CRIMES; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this false arrest, false imprisonment, malicious prosecution, assault and battery action should not have been granted because defendants did not demonstrate as a matter of law that there was probable cause for plaintiff’s arrest. When plaintiff flagged down the police he told the police he had been shot and had the drug dealer’s weapon on his person which he immediately surrendered:

… [D]efendants failed to establish prima facie that they had probable cause to arrest plaintiff for criminal possession of a weapon or firearm … , which is the lynchpin to plaintiff’s claims for false arrest, false imprisonment, malicious prosecution, assault and battery … , as well as the arresting officer’s entitlement to qualified immunity … . While “the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it” … , plaintiff’s claim that he temporarily lawfully possessed the gun at issue after an alleged altercation with a drug dealer who attempted to rob him was not merely a lead. Rather, as soon as plaintiff flagged down the officers, he told them that he had been shot and volunteered that he had the drug dealer’s gun on his person, which he immediately surrendered.

Assuming, without deciding, that defendants could meet their prima facie burden by identifying probable cause to arrest plaintiff for an uncharged crime or offense … , they failed to do so. Specifically, defendants have not established probable cause to arrest plaintiff for trespass … , since there is no evidence that plaintiff knowingly entered or remained unlawfully in the basement where his altercation with the drug dealer took place. Nor did they establish probable cause to arrest plaintiff for attempted criminal possession of marijuana … or attempted unlawful possession of marijuana in the first degree … , since there is no evidence as to the quantity of marijuana that plaintiff allegedly attempted to possess. Finally, defendants failed to establish prima facie probable cause to arrest and detain plaintiff to the extent that they did for attempted unlawful possession of marijuana in the second degree … , since, had they so charged him, they only would have been permitted to issue a desk appearance ticket … . Idelfonso v City of New York, 2020 NY Slip Op 05854, First Dept 10-20-20

October 20, 2020/by Bruce Freeman

Civil Rights Law, False Arrest, False Imprisonment, Malicious Prosecution

PLAINTIFF RAISED QUESTIONS OF FACT WHETHER THE POLICE HAD PROBABLE CAUSE TO ARREST HIM AND WHETHER THE POLICE GAVE FALSE EVIDENCE TO THE GRAND JURY; THE MALICIOUS PROSECUTION, FALSE ARREST, FALSE IMPRISONMENT AND VIOLATION OF CIVIL RIGHTS CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the malicious prosecution, false arrest, false imprisonment and 42 USC 1983 civil rights causes of action should not have been dismissed. Plaintiff had been arrested and indicted in a shooting based upon information from Pierre-Riviera, who allegedly claimed plaintiff was the shooter. The charges against plaintiff were dismissed by the District Attorney. Plaintiff alleged the information provided by Pierre-Riviera was the product of coercion by the police, and the police witnesses provided false evidence to the grand jury:

… [T]he defendants failed to eliminate triable issues of fact as to whether the police had probable cause to arrest the plaintiff … . Pierre-Riviera’s deposition testimony, submitted by the defendants on their motion, raised triable issues of fact as to whether his identification of the plaintiff as the shooter was coerced, and therefore, whether the police had probable cause to arrest the plaintiff … . …

Regarding malicious prosecution, once a suspect has been indicted, the grand jury action creates a presumption of probable cause … . A plaintiff can overcome the presumption of probable cause “by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith” … . Elie v City of New York, 2020 NY Slip Op 03001, Second Dept 5-27-20

May 27, 2020/by Bruce Freeman

Civil Procedure, Evidence, False Arrest, Malicious Prosecution

TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, vacating the plaintiff’s judgment and ordering a new trial in this false arrest and malicious prosecution action, determined that the testimony of the defense witness who identified plaintiff as fleeing the scene of a crime should not have been precluded. The name and address of the witness had been provided to plaintiff four years before the trial and the fact that she had since moved and did not want to disclose her new address to any party was not something the defense could control. In addition, the jury was given no guidance on the criteria for an alleged wrongful stop of the plaintiff by police (reasonable suspicion, not probable cause), despite the questions concerning the stop on the special verdict sheet:

The trial court improvidently exercised its discretion in precluding testimony from the witness who identified plaintiff to the police as an individual she had seen fleeing the scene of a crime. Defendants satisfied their discovery obligation by providing the witness’s last known address and telephone number during discovery, more than four years before trial. Thus, there could have been no surprise or prejudice warranting the preclusion … . While the witness subsequently moved, she declined to disclose her new address to any parties to the suit, a factor defendants could not control … . As defendants did not know her new address, they had no obligation under CPLR 3101(h). Nor should defendants have been sanctioned for the fact that the wtness did not wish to discuss the case with plaintiff’s counsel when counsel called her. Notably, plaintiff’s counsel did not attempt to contact the witness until two months before trial and did not attempt to obtain a nonparty deposition of the witness during discovery. Defendant offered to have the witness further confirm these facts, under oath and outside the presence of the jury. Under these circumstances, the trial court improvidently exercised its discretion in ordering a hearing at which defendants’ trial attorney would be subject to questioning by plaintiff’s trial attorney, and precluding the witness’s testimony when defense counsel declined to participate in such a hearing. Given that the witness would have offered highly relevant and non-cumulative trial testimony, the error was not harmless … .

It was error to include on the special verdict sheet a questions as to a wrongful stop (Terry v Ohio, 392 US 1 [1968]), because there was no charge given instructing the jury on the legal standard that must be applied in resolving those claims. The jury was never told that a stop is improper if the detaining officer does not have “reasonable suspicion” that the detainee committed a crime, which is less demanding than the “probable cause” standard applicable to the malicious prosecution claims … . That the jury sent a note requesting clarification on the question indicated its awareness of the lack of guidance …. . Onilude v City of New York, 2019 NY Slip Op 08925, First Dept 12-12-19

December 12, 2019/by Bruce Freeman

Corporation Law, Employment Law, False Arrest, Malicious Prosecution

FALSE ARREST AND MALICIOUS PROSECUTION ACTIONS AGAINST THE RESTAURANT FRANCHISOR PROPERLY DISMISSED IN THE ABSENCE OF EVIDENCE OF CONTROL OVER THE DAY TO DAY OPERATION OF THE RESTAURANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this false arrest and malicious prosecution action, determined plaintiff’s motion for summary judgment should not have been granted because the video evidence raised questions of fact. The court noted that the action against the franchisor, Denny’s, where the confrontation between plaintiff and the restaurant security guards took place, was properly dismissed:

… [T]he court properly granted that part of the cross motion seeking summary judgment dismissing the complaint against Denny’s. ” The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee’ ” … . Defendants established that Denny’s did not exercise control over the day-to-day operations of its franchisee or specifically maintain control over the security of the restaurant, and plaintiff failed to raise a triable issue of fact with respect thereto … . Hernandez v Denny’s Corp., 2019 NY Slip Op 08302, Fourth Dept 11-15-19

November 15, 2019/by Bruce Freeman

Civil Procedure, False Arrest, Malicious Prosecution

COMPLAINT DID NOT STATE CAUSES OF ACTION FOR FALSE ARREST AND MALICIOUS PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint did not state causes of action for false arrest and malicious prosecution:

“A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution” … . “To be held liable for false arrest, the defendant must have affirmatively induced the officer to act, such 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 [or her] own volition” … . “Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act” … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . Here, the plaintiff’s complaint and his affidavit in opposition to the motion merely alleged that the defendants provided false information to the police, and therefore, did not establish that the plaintiff has a cause of action to recover damages for malicious prosecution or false arrest against the defendants … . Williston v Jack Resnick & Sons, Inc., 2019 NY Slip Op 08247, Second Dept 11-13-19

November 13, 2019/by Bruce Freeman

Civil Procedure, Civil Rights Law, Malicious Prosecution, Municipal Law

42 USC 1983 IS NOT SUBJECT TO THE MUNICIPAL-LAW NOTICE OF CLAIM REQUIREMENT; THE NOTICE OF THE MALICIOUS PROSECUTION ACTION WAS TIMELY; THE PETITION TO FILE LATE NOTICES OF CLAIM FOR THE REMAINING STATE LAW CLAIMS SHOULD NOT HAVE BEEN GRANTED; THE EXCUSES WERE NOT VALID AND THE VILLAGE DID NOT HAVE TIMELY NOTICE OF THE CLAIMS SIMPLY BY VIRTUE OF THE POLICE REPORT AND THE INVOLVEMENT OF A POLICE OFFICER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a partial dissent, determined: (1) the 42 USC 1983 action was not subject to the notice of claim requirement of the General Municipal Law; the notice of claim for the malicious prosecution cause of action was timely because the limitations period began when the underlying charges were dismissed; and (3) the petition for leave to file late notices of claim for the state law discrimination, false arrest, abuse of process, excessive force, failure to intervene, denial of access to the courts, intimidation and intentional infliction of emotional distress actions should not have been granted:

The petitioner’s explanation that the counsel who represented him during the criminal proceeding did not advise him of the notice of claim requirement and that he did not learn of the requirement until … he retained his current attorney to represent him in a potential civil action did not constitute a reasonable excuse for his failure to timely serve the Village with a notice of claim for the remaining state law claims … . The petitioner’s ignorance of the law does not constitute a reasonable excuse … . Moreover, the petitioner’s assertion that he knowingly delayed commencing any action against the Village while the criminal charges were pending due to unsubstantiated claims of fear and intimidation does not constitute a reasonable excuse … . …

The petitioner did not establish that the Village acquired actual knowledge of the essential facts constituting the remaining state law claims within 90 days after they arose or a reasonable time thereafter. “Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” … . “[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation” … . Here, the involvement of a Village police officer in arresting the petitioner did not, without more, establish that the Village acquired actual knowledge of the essential facts constituting the petitioner’s remaining state law claims within 90 days following their accrual or a reasonable time thereafter … . Matter of Nunez v Village of Rockville Ctr., 2019 NY Slip Op 07783, Second Dept 10-30-19

October 30, 2019/by Bruce Freeman

False Arrest, Malicious Prosecution

DEFENDANT WAS ACQUITTED OF MURDER AFTER IMPRISONMENT FOR TWO AND A HALF YEARS; HIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION WAS PROPERLY DISMISSED AT THE SUMMARY JUDGMENT STAGE; TWO-JUDGE DISSENT ARGUED CONTESTED FACTS REQUIRED A TRIAL (CT APP).

The Court of Appeals, in a one-sentence memorandum decision, over a two-judge dissenting opinion, determined that the defendants’ motion for summary judgment in this false arrest/malicious prosecution case was properly granted. The dissenters argued contested facts required a trial:

The order of the Appellate Division should be affirmed, with costs. Plaintiff failed to raise any material, triable issue of fact with respect to whether probable cause for his arrest and prosecution was lacking, or as to whether the police acted with actual malice (see generally De Lourdes Torres v Jones, 26 NY3d 742 [2016]).

From the dissent:

A jury acquitted plaintiff Wayne Roberts of murder in the second degree and related charges. He then sued the City of New York, the City Police Department and various police officers for, amongst other claims, false arrest and malicious prosecution. In his complaint, plaintiff asserted that he was wrongfully accused and imprisoned for two and half years, and maliciously prosecuted despite the lack of probable cause to arrest and legal justification to pursue his criminal prosecution. He claimed defendants acted with malice and in bad faith, in deliberate indifference to his rights. * * *

Where, as here, conflicting evidence creates one or more material issues of fact, those issues “must be resolved by the jury rather than by the court as a matter of law” (De Lourdes Torres, 26 NY3d at 771). The decision in this Court and the majority decision below both defy this basic principle. Roberts v City of New York, 2019 NY Slip Op 07713, CtApp 10-29-19

October 29, 2019/by Bruce Freeman