Summary
giving information to the police or encouraging others to do so is not actionable
Summary of this case from Ruderman v. SternOpinion
June 21, 2001.
Order, Supreme Court, New York County (Kibbie Payne, J.), entered October 5, 2000, which granted the motion of defendants Barnes Noble, Inc. and Sara Mays to reargue their prior motion for summary judgment, and, upon reargument, adhered to the prior order of the same court and Justice, entered May 5, 2000, granting said defendants' summary judgment motion to the extent of dismissing plaintiffs' first and fifth causes of action alleging false arrest and malicious prosecution and denying the motion to the extent that it sought dismissal of plaintiffs' second and fourth causes of action alleging deprivations of civil rights under 42 U.S.C. § 1983, unanimously modified, on the law, to the extent of granting defendants-appellants' motion for summary judgment dismissing plaintiffs' second and fourth causes of action, and otherwise affirmed, without costs. Appeal and cross appeal from the order entered May 5, 2000, unanimously dismissed, without costs, as superseded by the appeal and cross appeal from the October 5, 2000 order.
Steven A. Hershkowitz, for plaintiffs-respondents-appellants.
Robert A. Wolf, for defendants-appellants-respondents.
Before: Rosenberger, J.P., Williams, Tom, Andrias, Marlow, JJ.
The motion court properly dismissed plaintiffs' claims for false arrest and malicious prosecution. Two eyewitnesses to the robbery identified plaintiffs as the perpetrators. Thus, probable cause existed for the arrest and prosecution of plaintiffs (see, People v. Morro, 165 A.D.2d 719,lv denied 77 N.Y.2d 964). Given the existence of probable cause for the arrests and prosecution, the claims for false arrest and malicious prosecution must fail (see, Graham v. City of New York, 279 A.D.2d 435, 720 N.Y.S.2d 452; Akande v. City of New York, 275 A.D.2d 671; Minott v. City of New York, 203 A.D.2d 265, lv dismissed 83 N.Y.2d 1000). Moreover, the evidence shows merely that defendant Mays gave certain information to the police, or encouraged others to do so. Such behavior is not actionable (see, Du Chateau v. Metro-North Commuter Railroad Co., 253 A.D.2d 128, 131; Celnick v. Freitag, 242 A.D.2d 436; Buccieri v. Franzreb, 201 A.D.2d 356, 357-358). Plaintiffs' speculation that Mays may have acted more culpably than the record indicates is insufficient to raise a triable issue of material fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563).
Since plaintiffs' 42 U.S.C. § 1983 causes for violation of their civil rights are predicated exclusively on their legally untenable claims for false arrest and malicious prosecution, the 42 U.S.C. § 1983 causes are also untenable and should also have been dismissed (see,Zwecker v. Clinch, 279 A.D.2d 572, 720 N.Y.S.2d 150; Kandekore v. Town of Greenburgh, 243 A.D.2d 610, lv denied 91 N.Y.2d 810).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.