NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
June 18, 2009
FRANK J. STUBBOLO, ET AL., PLAINTIFFS-RESPONDENTS-APPELLANTS,
THE CITY OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS-RESPONDENTS.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 25, 2008, which, to the extent appealed from, denied defendants' motion to dismiss as to plaintiffs' 42 USC § 1983 claim based upon alleged fabrication of evidence prior to the initiation of certain grand jury proceedings and prosecutions against plaintiff Frank J. Stubbolo, and granted defendants' motion to dismiss as to plaintiffs' remaining claims, unanimously modified, on the law, without costs, to the extent of granting the motion in its entirety. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Catterson, Renwick, DeGrasse, Freedman, JJ.
The motion court erred in denying dismissal of plaintiffs' 42 USC § 1983 claim based on the theory of fabrication of evidence prior to the initiation of the grand jury proceedings and prosecutions against plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03. The complaint fails to sufficiently allege such prosecutorial misconduct and, as a result, the claim is barred by absolute prosecutorial immunity (see Buckley v Fitzsimmons, 509 US 259, 269-270 ; Imbler v Pachtman, 424 US 409, 430-31 ; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).
Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed plaintiffs' remaining federal and state law claims as time-barred or for failure to state a cause of action (CPLR 3211[a], ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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