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February 9, 1998

CITY OF ITHACA, HARLEN MCEWEN, Chief of Police; SCOTT WESTON, Police Officer, Defendants.

The opinion of the court was delivered by: SCULLIN


 This is a pro se action brought by the Plaintiff, Dana C. Pawlicki, arising out of his misdemeanor arrest for Fourth Degree Criminal Mischief by the Defendant Scott Weston. *fn1" Plaintiff originally alleged constitutional claims for false arrest and malicious prosecution pursuant to 42 U.S.C. ยง 1983 in addition to state law claims alleging negligence, false arrest, malicious abuse of process, intentional infliction of emotional distress, and assault. In a previous Memorandum-Decision and Order, the Court granted summary judgment to the Defendants on Plaintiff's federal causes of action. See Pawlicki v. City of Ithaca, 1996 U.S. Dist. LEXIS 18090, 95-C V-1571, 1996 WL 705785 (N.D.N.Y., Dec. 5, 1996). Presently before the Court is a motion for summary judgment brought by the Defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure on the Plaintiff's remaining state causes of action. Also before the Court is a cross-motion by the Plaintiff to compel discovery and for sanctions.

 Factual Background

 On May 5, 1995, Plaintiff, then a law student, was walking in a crosswalk near Cornell University when he was struck by a motor vehicle which subsequently left the scene. The incident was investigated by the Ithaca Police Department, specifically the Defendant Officer Scott Weston. In his investigation of the incident, Officer Weston uncovered two vastly different versions of the accident: one advanced by the Plaintiff and some of his acquaintances who were at the scene, and the other advanced by the driver and two female occupants of the car. Based on these competing stories, Officer Weston decided that the version of events described by the driver and two occupants of the car was more credible than the Plaintiff's version of the accident. Officer Weston issued the driver of the car a traffic citation, and then arrested and subsequently prosecuted the Plaintiff for a misdemeanor, fourth degree criminal mischief, for allegedly swinging a bag of beer bottles and hitting the driver's car causing body damage to the hood of the car. Plaintiff's arrest and prosecution is the factual source of his various state claims alleged against Officer Weston and the City of Ithaca.

 Following his arrest, Plaintiff was detained for approximately three hours until bail was posted. The Plaintiff's criminal action was eventually resolved when the Plaintiff accepted an Adjournment in Contemplation of Dismissal ("ACD"), conditional upon his payment of $ 508.31 restitution to the driver of the car. Plaintiff subsequently brought an action in state court against the driver and owner of the car which allegedly struck him alleging negligence, battery, malicious prosecution, intentional infliction of emotional distress, libel, and slander. In a Decision an Order issued on May 16, 1996, County Judge M. John Sherman dismissed each of Plaintiff's claims, with the exception of battery, for failure to state a claim. See Pawlicki v. Karen Wu, No. 96-0094 (Thompkins Cty Court, May 16, 1996).



 Under Rule 56(c), summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). To survive a motion for summary judgment the non-movant must do more than present evidence that is merely colorable, conclusory, or speculative. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-movant must offer evidence that demonstrates that there are issues of fact that must be decided by a fact finder because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Thus, the Court will examine the Plaintiffs' remaining claims pursuant to this standard.

 A. Negligence

 Plaintiff has made multiple negligence claims against Defendant Officer Weston and unnamed Officer "Y" for arresting the Plaintiff without probable cause, in addition to a claim for negligence against the City of Ithaca for failing to train and supervise these officers. However, case law is clear that under New York Law a negligence action on these facts cannot be maintained. Where the negligence alleged is based upon an arrest, a plaintiff must resort to the traditional remedies of false imprisonment and malicious prosecution and cannot recover under the broader principles of negligence. See Shea v. County of Erie, 202 A.D.2d 1028, 1028, 609 N.Y.S.2d 473, 474 (4th Dep't 1994); Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 744 (4th Dep't 1979); Remley v. State of New York, 174 Misc. 2d 523, 665 N.Y.S.2d 1005, 1997 WL 713949 at *2 (N.Y. Ct. Cl. 1997). Accordingly, Plaintiff's negligence claims on these facts must be dismissed.

 B. Malicious Abuse of Process/False Arrest

 Plaintiff also alleges claims for false arrest, false imprisonment, and malicious abuse of process. Because the gravamen of the Plaintiff's allegations is that the Defendant filed a criminal information against him without probable cause, the Court will consider Plaintiff's claims to be for malicious prosecution *fn2" and false arrest.

 Both constitutional and common law malicious prosecution require a plaintiff to allege and prove that the prosecution of the underlying criminal case terminated in some manner indicating that the person was not guilty of the offense charged. See Singleton v. City of New York, 632 F.2d 185, 194-95 (2d Cir. 1980). The Court previously dismissed the Plaintiff's constitutional malicious prosecution claim because the Plaintiff did not receive a favorable termination of the underlying criminal charge. See Pawlicki, 1996 WL 705785 at *1. Plaintiff's state law malicious prosecution must be dismissed for the same reason. See Malanga v. Sears, Roebuck & Co., 109 A.D.2d 1054, 1054-55, 487 N.Y.S.2d 194, 195-96 ...

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