be denied, however, because there is a triable issue of fact as
to each element.
As to the first element — initiation of a criminal prosecution
— the defendants argue that they did not play a sufficiently
active role in initiating or prosecuting the charges against the
plaintiff to be held liable. While the defendants would be
correct if all they had done was to provide truthful information
and evidence to prosecuting authorities, see DeFilippo v. County
of Nassau, 183 A.D.2d 695, 696, 583 N.Y.S.2d 283 (2d Dep't
1992), there is, as discussed above, a triable issue as to
whether the defendants planted evidence on the plaintiff. Where a
party is responsible for providing false information or
manufactured evidence that influences a decision whether to
prosecute, he may be held liable for malicious prosecution. See
Babi-Ali v. City of New York, 979 F. Supp. 268, 276 (S.D.N Y
1997); Restatement (Second) of Torts § 653 cmt. g; cf.
DeFilippo, 183 A.D.2d at 696, 583 N.Y.S.2d 283 (dismissal
required where no allegation that defendant knowingly provided
false or incomplete information to authorities).
As to the second element of a malicious prosecution claim, the
defendants argue that since the criminal charges against the
plaintiff were voluntarily dismissed on the District Attorney's
motion, there was no judicial determination on the merits and
plaintiff consequently cannot establish favorable termination.
This is a nice question, because even though there are many
situations in which a voluntary dismissal does not constitute a
favorable termination on the merits, see generally O'Brien v.
Alexander, 101 F.3d 1479, 1486 (2d Cir. 1996) (discussing the
"confusion in the case law" on favorable termination), there are
also circumstances in which even a bare voluntary dismissal may,
in context, indicate the innocence of the accused. See Hankins
v. Great Atlantic and Pacific Tea Company, 208 A.D.2d 111,
622 N.Y.S.2d 678, 678-81 (1st Dep't 1995); Gallagher v. State,
176 Misc.2d 226, 673 N.Y.S.2d 801, 809 (N.Y.Ct.Cl. 1997); cf. Murphy
v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997) (suggesting that
abandonment of prosecution may constitute favorable termination
where disposition indicates innocence); Pinaud v. County of
Suffolk, 52 F.3d 1139, 1154-55 (2d Cir. 1995) (acknowledging the
possibility that after Hankins a dismissal in the interest of
justice may constitute a favorable termination under certain
circumstances); Kurschus v. PaineWebber, 16 F. Supp.2d 386, 394
n. 2 (S.D.N.Y. 1998) (dismissal in the interests of justice may
constitute a favorable termination).
Deciding, therefore, whether a voluntary dismissal is
indicative of innocence requires a careful examination of the
record. Here, however, the single piece of relevant evidence
adduced by the parties is the transcript of the hearing at which
the charges against the plaintiff were dismissed. See Munic.
Def. Mot. Ex. I. The transcript indicates only that the
Government made its motion to dismiss "based upon [plaintiff's]
background and [its] review of the facts." Id. While ambiguous,
this at least raises a reasonable possibility that the dismissal
was for lack of evidence, i.e., favorable to the plaintiff, and
that, accordingly, summary judgment is not appropriate on this
issue. See Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir.
As to the defendants' contention that the plaintiff cannot
establish the third element of a malicious prosecution claim —
lack of probable cause — the argument fails because, as discussed
above in connection with plaintiff's false arrest claims, there
is a triable dispute as to whether genuine probable cause existed
or whether the individual defendants manufactured it falsely.
This dispute not only prevents the Court from granting summary
judgment on the ground that probable cause is lacking but
dictates the conclusion that a triable issue exists as to the
fourth and final element of a malicious prosecution claim:
malice. Where, as here, there is a triable issue as to probable
cause, there will almost always be a triable issue as to malice,
since "the existence of malice may be inferred
from a finding that defendants lacked probable cause." Id. at
631. This is even more the case where, as here alleged, the
defendants attempted to falsely create a sham probable cause.
Thus, there is a genuine dispute as to each of the elements of
plaintiff's malicious prosecution claims, and the defendants'
motion for summary judgment on those claims must therefore be
denied as to defendants Padula and Fields.
One final issue remains: whether the City may be held liable on
plaintiff's false arrest and malicious prosecution claims. To the
extent that plaintiff brings such claims under § 1983, the City
may not be held liable since a plaintiff who seeks under that
statute to recover from a municipality for the actions of its
employees must prove that the actions resulted from a municipal
custom or policy. See Monell v. Department of Social Services,
436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);
Walden v. Wishengrad, 745 F.2d 149, 153 (2d Cir. 1984). Here,
plaintiff has failed to adduce any competent evidence that her
arrest or prosecution was the result of a City policy or
To the extent, however, that plaintiff seeks to impose
liability on the City under state law, there is no reason to
dismiss her claims at this time. "[T]he rules that govern the
vicarious liability of a municipality [under § 1983] do not apply
in common-law actions for false arrest and false imprisonment."
Claude H. v. County of Oneida, 214 A.D.2d 964, 626 N.Y.S.2d 933,
936 (4th Dep't 1995). Under the common law, unlike § 1983, a
municipality may be held liable for common law false arrest and
malicious prosecution on a theory of respondeat superior. See
Johnson v. Town of Colonie, 102 A.D.2d 925, 477 N.Y.S.2d 513,
514 (3d Dep't 1984).
In sum, the defendants' summary judgment motions are decided as
follows: (1) summary judgment is granted in favor of all
defendants on plaintiff's claims of negligence, denial of equal
protection, and deprivation of due process; (2) summary judgment
is granted in favor of defendants Guarino, Kerik and Heard on all
claims asserted against them; (3) summary judgment is denied with
respect to plaintiff's state and federal claims for false arrest
and malicious prosecution against defendants Padula and Fields;
and (4) summary judgment is granted with respect to plaintiff's
federal claims for false arrest and malicious prosecution against
the City of New York, but denied with respect to plaintiff's
state claims for false arrest and malicious prosecution against
the City of New York.
Plaintiff (who is serving as her own counsel) and counsel for
the remaining parties are directed to jointly telephone Chambers
by April 23, 1999 to set a trial date for the remainder of this