the false arrest claim against Sino, or the tenth cause of action against the City except insofar as the dismissal of the underlying claims against the alleged tortfeasors would require dismissal of that respondeat superior claim against the City.
Defendants seek dismissal of the false arrest charges against Soler, arguing that Soler did not initiate the arrests.
A defendant who is not an arresting officer may be liable for false arrest if the defendant instigated an arrest by a police officer, knowing that there was no probable cause to believe that plaintiff committed a crime. However, if the officer decided, in the exercise of the officer's own discretion, to make the arrest, then a person providing information to the officer is not liable. Rosario v. Amalgamated Ladies' Garment, Etc., 605 F.2d 1228, 1248 (2d Cir. 1979), cert. denied, 446 U.S. 919, 64 L. Ed. 2d 273, 100 S. Ct. 1853 (1980); Donnelly v. Morace, 162 A.D.2d 247, 248, 556 N.Y.S.2d 605, 607 (1st Dept. 1990); Smalls v. Board of Education, 114 Misc. 2d 109, 117, 450 N.Y.S.2d 987, 992 (Civ. Ct. Queens Co. 1982); cf. PROSSER AND KEETON ON TORTS § 11, at 52 (5th ed. 1984) (hereinafter PROSSER).
In seeking dismissal, defendants maintain that the arresting officer, Captain Sino, exercised his own discretion in deciding to arrest plaintiffs. Plaintiffs allege that they observed Soler direct Sino to make the arrest. Thus there is a material factual dispute and the Court denies summary judgment on this claim.
Plaintiffs' malicious prosecution claims under both Section 1983 and State law are directed against Soler. Plaintiffs accuse him of maliciously causing DATs to be issued to them without probable cause.
The elements of a malicious prosecution claim under New York law and Section 1983 are the same because the elements of a Section 1983 claim are borrowed from State law. Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994). Plaintiffs must establish that: (1) the defendant commenced criminal proceedings against them; (2) the proceedings terminated in plaintiffs' favor; (3) no probable cause existed for the proceedings; and (4) the defendant acted with actual malice. Cook, 41 F.3d at 78; Russo v. State of New York, 672 F.2d 1014, 1018 (2d Cir. 1982).
The first element of the malicious prosecution claim has been satisfied, as the issuance of a DAT qualifies as the commencement of a criminal proceeding for purposes of a malicious prosecution claim. Rosario, 605 F.2d at 1250; accord, Snead v. Aegis Security Inc., 105 A.D.2d 1059, 482 N.Y.S.2d 159 (4th Dept. 1984). There plainly are disputed issues of fact as to the existence of probable cause and malice. Hence, the defendants are entitled to dismissal of the malicious prosecution claim only if the District Attorney's declination of prosecution constituted a favorable termination of the proceedings commenced by the issuance of the DATs.
The question whether a district attorney's decision not to proceed against one charged with an offense in a DAT is troublesome. Unfortunately, the cases dealing with the pertinent situations have reached varying results that are difficult to reconcile.
In Cook v. Sheldon, 41 F.3d 73, the Second Circuit held that the dropping of criminal charges following arraignment constituted a favorable termination. In doing so, it relied on Loeb v. Teitelbaum, 77 A.D.2d 92, 100-01, 432 N.Y.S.2d 487, 493-94 (2d Dept. 1980), which stands for the proposition that the formal abandonment of proceedings by a prosecutor constitutes a favorable termination provided it was not procured by the malicious prosecution plaintiff. Cook therefore suggests that the declination of prosecution in this case is sufficient.
Loeb, however, was decided prior to Ryan v. New York Telephone Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984). In that case, the plaintiff was discharged from his position for theft. His application for unemployment insurance benefits was denied on the ground that he was fired on the basis of his own misconduct. He was prosecuted criminally as well, but the case was dismissed, on motion of the prosecution, "in the interest of justice" pursuant to N.Y. CRIM. PROC. L. ("CPL") § 210.40.
The Court of Appeals held that the dismissal in the interest of justice did not constitute a termination of the criminal proceeding favorable to the accused:
"The eventual dismissal of the criminal charges on the motion of a prosecutor 'in the interest of justice' does not constitute an adjudication of the veracity of the charges. Consequently, it in no way undermines the force and effect of the administrative determination. A dismissal 'in the interest of justice' is neither an acquittal of charges nor any determination on the merits. Rather, it leaves the question of guilt or innocence unanswered." 62 N.Y.2d at 504-05, 478 N.Y.S.2d at 828.