Opinion
690 CA 19-01698
12-23-2020
Jack E. PRIEBE, Plaintiff-Appellant, v. Village of Newark Police Officer Matthew COLACINO, Individually and in His Capacity as a Patrolman/Officer of Village of Newark Police Department, Defendant-Respondent, et al., Defendant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR PLAINTIFF-APPELLANT. GOLDBERG SEGALLA LLP, ROCHESTER (PATRICK B. NAYLON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, ROCHESTER (PATRICK B. NAYLON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action asserting three causes of action, i.e., for false arrest and malicious prosecution, abuse of process, and intentional infliction of emotional distress. Supreme Court granted the motion of defendant-respondent (defendant) for summary judgment dismissing the complaint against him, and plaintiff appeals. We affirm.
As an initial matter, we note that plaintiff failed to present any argument on appeal with respect to his causes of action for abuse of process and intentional infliction of emotional distress. Consequently, we conclude that he has abandoned any challenge to the dismissal against defendant of those causes of action (see Bratge v. Simons , 173 A.D.3d 1623, 1623-1624, 102 N.Y.S.3d 818 [4th Dept. 2019] ; see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). Thus, only plaintiff's first cause of action insofar as it asserts against defendant claims for false arrest and malicious prosecution is at issue on this appeal.
" ‘The existence of probable cause constitutes a complete defense to causes of action alleging false arrest ... and malicious prosecution’ " ( Harmon v. City of Buffalo , 187 A.D.3d 1644, 1644, 132 N.Y.S.3d 493 [4th Dept. 2020] ; see Britt v. Monachino , 73 A.D.3d 1462, 1462, 900 N.Y.S.2d 576 [4th Dept. 2010] ; see generally De Lourdes Torres v. Jones , 26 N.Y.3d 742, 759-761, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ). "In the context of a false arrest or malicious prosecution claim, ‘[p]robable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [the plaintiff] guilty’ " ( Mahoney v. State of New York , 147 A.D.3d 1289, 1291, 47 N.Y.S.3d 798 [3d Dept. 2017], lv denied 30 N.Y.3d 906, 2017 WL 5560541 [2017], quoting Colon v. City of New York , 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983], rearg denied 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232 [1983] ). Indeed, " ‘[p]robable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed’ by the suspected individual, and probable cause must be judged under the totality of the circumstances" ( De Lourdes Torres , 26 N.Y.3d at 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 ).
Here, we conclude that, contrary to plaintiff's contention, the court properly granted defendant's motion with respect to the first cause of action. Defendant established his entitlement to summary judgment with respect to the claims asserted against him therein by submitting evidence demonstrating that he had probable cause to believe that plaintiff had committed harassment in the second degree (see Penal Law § 240.26 [1] ; see also Harmon , 187 A.D.3d at 1645, 132 N.Y.S.3d 493 ; Broyles v. Town of Evans , 147 A.D.3d 1496, 1496-1497, 47 N.Y.S.3d 605 [4th Dept. 2017] ), and plaintiff failed to raise an issue of fact in opposition.