Opinion
September 22, 1977
Appeal from (1) an order of the Supreme Court at Special Term, entered July 1, 1976 in Washington County, which granted defendant Connors' motion to dismiss the complaint, and (2) the judgment entered thereon. Plaintiff was convicted of violations of the Vehicle and Traffic Law (§ 1102) and Penal Law (§ 400.00 subd 8) in Justice Court in the Town of Colonie. He was sentenced to one year probation. When plaintiff failed to meet a condition of his probation, a probation revocation hearing was held resulting in probation revocation and the imposition of a jail sentence. After the conviction was reversed on appeal, plaintiff, acting as his own attorney, commenced a civil action against his probation officer, defendant Connors, wherein he alleged that Connors caused him to be maliciously prosecuted. Special Term dismissed the complaint on the grounds (1) it failed to state a cause of action, (2) it was not timely commenced and (3) because of noncompliance with sections 50-e Gen. Mun. and 50-i Gen. Mun. of the General Municipal Law. Reading the complaint in a manner most favorable to plaintiff clearly reveals the absence of any allegations of lack of probable cause for the initiation of the revocation proceeding by defendant Connors, the plaintiff having conceded that he failed to report in accordance with the terms of his probation, as well as any allegations that defendant Connors was motivated by malice toward plaintiff. In fact, Connors would have been derelict in his duty had he failed to initiate the proceeding. Next, plaintiff's contention that Connors was a known criminal because he denied parking in a fire lane is so frivolous a ground for plaintiff's failure to report that it requires no riposte. Since the evidence before the court with respect to the action against defendant Connors is as complete as it would be in a motion for summary judgment, we choose, sua sponte, to treat the motion as one for summary relief and dismiss the complaint on the merits (cf. CPLR 3211, subd [c]). Order and judgment affirmed, without costs. Sweeney, J.P., Kane, Mahoney and Herlihy, JJ., concur; Mikoll, J. concurs in the result only.