Pejcinovic v. City of New York

Full title: ADAM PEJCINOVIC et al., Respondents, v. CITY OF NEW YORK et al., Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 18, 1999

258 A.D.2d 365 (N.Y. App. Div. 1999)

685 N.Y.S.2d 248

Opinion

February 18, 1999

Appeal from the Supreme Court, Bronx County (Lucindo Suarez, J.).

The motion court properly denied defendants' motion insofar as it sought summary judgment dismissing plaintiffs' malicious prosecution cause of action since issues of fact exist as to whether plaintiffs' arrests were supported by probable cause and as to whether defendants acted with malice (see, Colon v. City of New York, 60 N.Y.2d 78; see also, People v. Pejcinovic, 174 A.D.2d 461). The motion court's denial of that part of defendants' motion seeking dismissal of plaintiffs' 42 U.S.C. § 1983 cause premised upon malicious prosecution was also proper since the pleading deficiency upon which dismissal was sought was curable by the grant of that portion of plaintiffs' cross motion seeking leave to amend the complaint to further articulate the customs and practices of municipal defendant that are claimed to have resulted in the violation of plaintiffs' civil rights. In this connection, we note that the City was given sufficient notice, at the time of the original complaint, respecting the acts about which plaintiffs are complaining (see, Carlisle v. County of Nassau, 75 A.D.2d 593) and, accordingly, can make no persuasive claim that permitting the amendment will cause it undue prejudice.

Concur — Tom, J. P., Mazzarelli, Andrias and Saxe, JJ.