Opinion
349 CA 15-01561.
04-29-2016
Christopher DANN, Plaintiff–Respondent–Appellant, v. AUBURN POLICE DEPARTMENT, City of Auburn, Defendants–Appellants, Cayuga County District Attorney's Office, and County of Cayuga, Defendants–Respondents.
The Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of Counsel), for Defendants–Appellants. Jarrod W. Smith, Esq., P.L.L.C., Jordan (Jarrod W. Smith of Counsel), for Plaintiff–Respondent–Appellant.
The Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of Counsel), for Defendants–Appellants.
Jarrod W. Smith, Esq., P.L.L.C., Jordan (Jarrod W. Smith of Counsel), for Plaintiff–Respondent–Appellant.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM: In this action by plaintiff to recover damages from two sets of defendants on various theories, defendants Auburn Police Department and the City of Auburn (City defendants) appeal and plaintiff cross-appeals from an order that, inter alia, granted that part of defendants' motion for summary judgment dismissing the cause of action for malicious prosecution only against defendants Cayuga County District Attorney's Office and County of Cayuga (County defendants). We reject plaintiff's contention on his cross appeal that Supreme Court erred in granting the motion to that extent. The County defendants demonstrated their entitlement to judgment as a matter of law based on their prosecutorial immunity, and plaintiff failed to raise a triable question of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). The law provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process' ” (Buckley v. Fitzsimmons, 509 U.S. 259, 270, 113 S.Ct. 2606, 125 L.Ed.2d 209, quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 ; see Kirchner v. County of Niagara, 107 A.D.3d 1620, 1622, 969 N.Y.S.2d 277 ), i.e., conduct that involves “ ‘initiating a prosecution and ... presenting the State's case’ ” (Johnson v. Kings County Dist. Attorney's Off., 308 A.D.2d 278, 285, 763 N.Y.S.2d 635, quoting Imbler, 424 U.S. at 431, 96 S.Ct. 984 ; see Kirchner, 107 A.D.3d at 1623, 969 N.Y.S.2d 277 ). Although prosecutors are afforded only qualified immunity when acting in an investigative capacity (see Buckley, 509 U.S. at 275–276, 113 S.Ct. 2606 ; Kirchner, 107 A.D.3d at 1623, 969 N.Y.S.2d 277 ; Claude H. v. County of Oneida, 214 A.D.2d 964, 965, 626 N.Y.S.2d 933 ), we reject plaintiff's contention that the prosecutor's actions in this case went beyond “the professional evaluation of the evidence assembled by the police,” a function that would not deprive the prosecutor of absolute immunity (Buckley, 509 U.S. at 273, 113 S.Ct. 2606 ; cf. Kirchner, 107 A.D.3d at 1623–1624, 969 N.Y.S.2d 277 ).
We conclude, however, that the court erred in denying that part of the motion for summary judgment dismissing the malicious prosecution cause of action against the City defendants as well. The court should have dismissed that cause of action in its entirety, and we modify the order accordingly. The City defendants demonstrated their entitlement to judgment as a matter of law on the issue whether the police had probable cause to charge plaintiff with assault in the second degree, and plaintiff failed to raise a triable issue of fact (see Zetes v. Stephens, 108 A.D.3d 1014, 1015–1016, 969 N.Y.S.2d 298 ; Lyman v. Town of Amherst, 74 A.D.3d 1842, 1842, 903 N.Y.S.2d 626 ; see generally Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 ). That quantum of suspicion was furnished to the police by the sworn statements of the victim and the victim's brother-in-law, was buttressed by the sworn statement of plaintiff himself, and was further supported by the findings made by the police during their prudent and careful investigation into the incident. “In the context of a malicious prosecution cause of action, probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty” (Zetes, 108 A.D.3d at 1015–1016, 969 N.Y.S.2d 298 [internal quotation marks omitted]; see Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248, rearg. denied 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232 ). “ ‘Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely [requires] information sufficient to support a reasonable belief that an offense has been or is being committed’ by the suspected individual” (Torres v. Jones, 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ). It is well established that “ ‘information provided by an identified citizen accusing another of a crime is legally sufficient to provide the police with probable cause to arrest’ ” (Lyman, 74 A.D.3d at 1843, 903 N.Y.S.2d 626 ; see Zetes, 108 A.D.3d at 1016, 969 N.Y.S.2d 298 ). Moreover, where, as here, “a warrant of arrest [has been] issued by a court of competent jurisdiction, there is ‘a presumption that the arrest was [made] on probable cause’ ” (Chase v. Town of Camillus, 247 A.D.2d 851, 852, 668 N.Y.S.2d 830, quoting Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 ; see Lyman, 74 A.D.3d at 1842–1843, 903 N.Y.S.2d 626 ), and that the accompanying criminal prosecution was likewise based on probable cause. That “presumption of probable cause ‘can be overcome only upon a showing of fraud, perjury or the withholding of evidence’ ” (Lyman, 74 A.D.3d at 1843, 903 N.Y.S.2d 626 ), none of which is demonstrated by plaintiff in this case.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion with respect to the malicious prosecution cause of action in its entirety and dismissing that cause of action against all defendants and as modified the order is affirmed without costs.