Opinion
Argued May 29, 2001.
June 25, 2001.
In an action to recover damages for malicious prosecution and Federal civil rights violations, the defendants City of New York, New York City Police Department, Stephen Chmil, and Joseph Cummings appeal, and the defendants New York City Housing Authority and Miguel Hernandez separately appeal (1) from an order of the Supreme Court, Kings County (Hutcherson, J.), dated July 17, 2000, and (2), as limited by their respective briefs, from so much of an amended order of the same court, dated July 19, 2000, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Elizabeth Glener Gallay, and Alan Beckoff of counsel), for appellants City of New York, New York City Police Department, Stephen Chmil, and Joseph Cummings.
Cullen and Dykman, Brooklyn, N.Y. (John J. Fannings, Rona L. Kaplan, and Jeffrey Mongelli of counsel), for appellants New York City Housing Authority and Miguel Hernandez.
Steven Hoffner, New York, N.Y. (Donald J. Yannella of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
ORDERED that the appeals from the order dated July 17, 2000, are dismissed, as that order was superseded by the amended order dated July 19, 2000; and it is further,
ORDERED that the amended order is reversed insofar as appealed from, on the law, the motions are granted, and the complaint is dismissed in its entirety; and it is further,
ORDERED that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.
To prevail on a claim alleging malicious prosecution, a plaintiff must establish four elements: (1) the commencement or continuation of a criminal action by the defendant against him or her, (2) the termination of the proceeding in his or her favor, (3) the absence of probable cause for the criminal action, and (4) actual malice (see, Broughton v. State of New York, 37 N.Y.2d 451, 457, cert denied 423 U.S. 929; Colon v. City of New York, 60 N.Y.2d 78, 82; Jean-Mary v. City of New York, 234 A.D.2d 515). Failure to establish any of those elements defeats the entire claim (see, Covert v. County of Westchester, 202 A.D.2d 384). The defendants met their respective burdens of establishing their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against them. In opposition, the plaintiff failed to present sufficient evidence to rebut the presumption of probable cause created by the Grand Jury indictment. Accordingly, her malicious prosecution claim should have been dismissed (see, Jean-Mary v. City of New York, supra; Berman v. Silver, Forrester Schisano, 156 A.D.2d 624; Burt v. Smith, 181 N.Y. 1). For the same reason, the plaintiff's claims alleging Federal civil rights violations should have also been dismissed (see, Day v. Morgenthau, 909 F.2d 75; Kandekore v. Town of Greenburgh, 243 A.D.2d 610).
SANTUCCI, J.P., KRAUSMAN, McGINITY and FEUERSTEIN, JJ., concur.