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Paredes v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 6, 2010

WILSON PAREDES, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS,
THE DISTRICT ATTORNEY OF NEW YORK COUNTY, DEFENDANT.

Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered December 18, 2008, which, insofar as appealed from as limited by the briefs, granted defendants-respondents' cross motion for summary judgment dismissing the malicious prosecution cause of action, unanimously affirmed, without costs.

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.

Mazzarelli, J.P., Sweeny, Freedman, Richter, Manzanet-Daniels, JJ.

112224/05

Respondents established their prima facie entitlement to summary judgment dismissing the malicious prosecution cause of action by submitting evidence establishing that there was probable cause to arrest and prosecute plaintiff, as the undercover officer identified plaintiff as the person who sold him cocaine during a buy-and-bust operation (see Batista v City of New York, 15 AD3d 304 [2005]; Grant v Barnes & Noble, 284 AD2d 238 [2001]). In opposition, plaintiff failed to raise a triable issue of fact. The alleged inconsistencies in the accounts provided by the arresting officer and the undercover officer do not undermine a finding of probable cause. Furthermore, the cause of action is not viable as the complaint fails to allege actual malice (see Shapiro v County of Nassau, 202 AD2d 358 [1994], lv denied 83 NY2d 760 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100506

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