Body Parts, Cadavers and Rochester Ties, Oh My!
Define That Term #48

Fourth Department Dismisses Claims Against Police

In Weiss v. Hotung, 2006 N.Y. Slip Op. 00886, the Fourth Department considered whether the plaintiff's claims for malicious prosecution, false arrest and false imprisonment were properly dismissed by the lower court.  I've litigated a number of these cases in the past and am always interested in cases that address these types of claims.  The holding in this case isn't necessarily surprising, but bears repeating.

At the outset, the Court noted that the false arrest and false imprisonment claims were properly dismissed since a criminal summons had been issued pursuant to CPL 130.30 and thus:

(P)laintiff was never arrested or "held in actual custody by any law enforcement agency as a result of the charge ... filed against [him]."

The Court then turned to the malicious prosecution claim and established the elements of the claim: 1) the initiation of a criminal proceeding by the defendant against the plaintiff, 2) the termination of the proceeding in favor of the accused, 3) a lack of probable cause, and 4) malice.  The Court held that the claims against the individual police officers were properly dismissed since nothing aside from speculation and conclusions supported the claim that they acted with malice.

However, the Court held that the lower court should not have dismissed the claim against Violet Realty, Inc., since:

A probable cause finding as to one entity does not compel such a finding as to the other where the facts and circumstances known to each defendant may be different. Upon our review of the record, we conclude that there is an issue of fact whether an employee of Violet Realty intentionally gave false information to the police, resulting in the commencement of the criminal proceeding against plaintiff.  (Internal citations and quotations omitted).

I'm not sure how thrilled the plaintiff will be with this decision.  Generally, insurance policies don't cover these types of claims, so the guaranteed deep pocket in this case was the municipal entity, and it's no longer on the hook.  It's difficult to establish intentional malice at trial, and even if the plaintiff is successful,  he'll have to try to collect the judgment from a corporate entity that may very well be non-existent by the time the trial rolls around.  So, this may be a shallow victory, at best.

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