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ABDUL HAMID v. BASHARAT AHMAD JAMIL

February 29, 1984

ABDUL HAMID, ABDUL SALAM HAMID AND ABDUL MOMAN HAMID, Plaintiffs, against BASHARAT AHMAD JAMIL AND NAWAB BAIG, Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

This is a diversity-based action for malicious prosecution which defendant Basharat Ahmad Jamil ("Jamil") moves to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

 Facts

 On August 29, 1976 a fire occurred in Jamil's apartment in Queens, New York. Jamil accused plaintiffs of starting the fire.As a result of these charges, an extensive investigation was conducted by the New York City Police and Fire Departments, the Queens County District Attorney's Office, and the Queens County Grand Jury. On August 27, 1981, plaintiffs were indicted by the Grand Jury for arson in the second degree and burglary in the second degree. After further investigation, however, the District Attorney's Office recommended that the indictment against them be dismissed. On October 21, 1982, the New York State Supreme Court, Queens County, dismissed the indictment. This action for malicious prosecution followed in the wake of that dismissal.

 Discussion

 Jamil, in support of his motion to dismiss, argues that "the allegations contained in plaintiffs' complaint are not specific enough to overcome the prima facie [sic] evidence of probable cause which exists by virtue of the Grand Jury indictment of the plaintiffs." Affirmation of Robert M. Unger, at P3 (December 13, 1983).

 The argument is placed in perspective by reviewing the elements of a claim for malicious prosecution as delineated in Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S. 2d 87, 94, 335 N.E.2d 310 (1975):

 The elements of the tort of malicious prosection are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice. . . .

 Discussing the tort's "probable cause" element, Professor Prosser states:

 Where the accused is . . . indicted by the grant jury, it is evidence that there was probable cause for the prosecution. It is very often said that this establishes a "prima facie" case; but since the plaintiff has the burden of proving lack of probable cause in any case, and is free to do so, this apparently means nothing more than that the [indictment] is important evidence on the issue.

 W. Prosser, Law Of Torts § 119 at p. 846 (4th ed. 1971).

 In Berger v. American Nat. Fire Ins. Co., 279 App. Div. 335, 336, 109 N.Y.S.2d 696, 698 (4th Dept. 1952), the court stated:

 In a malicious prosecution action, where the complaint itself establishes prima facie probable cause, specific facts must be alleged to overcome the effect of the indictment.General allegations are not enough. The complaint must allege the wrongful acts with which the defendant is charged. The complaints under consideration are faulty in that they fail to show what false information defendants presented before the Grand Jury, or wherein the evidence was falsified, or what facts within the possession of the defendants were maliciously withheld from the Grand Jury.

 Thus, under the common law of New York, an indictment in the underlying criminal action creates a rebuttable presumption of probable cause, that, in turn, imposes upon the plaintiff (former defendant) the ...


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