Appeals from an order of the Supreme Court, Niagara County (Catherine Nugent Panepinto, J.), entered February 1, 2012. The order denied the motions of defendants to dismiss the complaint, and granted the cross motion of plaintiff for leave to amend the complaint.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ELIZABETH M. BERGEN OF COUNSEL), FOR DEFENDANTS-APPELLANTS COUNTY OF NIAGARA AND CLAUDETTE CALDWELL, ESQ.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR DEFENDANT-APPELLANT COUNTY OF ERIE.
FELDMAN KIEFFER, LLP, BUFFALO (MATTHEW J. KIBLER OF COUNSEL), FOR DEFENDANTS-APPELLANTS JAMES J. WOYTASH, M.D. AND UNIVERSITY AT BUFFALO PATHOLOGISTS, INC.
HOGAN WILLIG, PLLC, AMHERST (STEVEN M. COHEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this malicious prosecution action after he was arrested and indicted for the death of his seven-month-old daughter. Supreme Court, inter alia, denied the motions of defendants insofar as they sought to dismiss the complaint, and defendants now appeal. We affirm.
On these motions to dismiss, we accept the facts alleged in the complaint as true and accord plaintiff the benefit of every favorable inference (see Daley v County of Erie, 59 A.D.3d 1087, 1087-1088). According to plaintiff, his daughter fellfrom a couch and struck her head on a television tray the day before she died. The fall left a mark on the infant's forehead. She died the following evening after she stopped breathing, and defendant James J. Woytash, M.D., the Chief Medical Examiner of Erie County, conducted an autopsy the day after her death. Defendant University at Buffalo Pathologists, Inc. provided Woytash's services to defendant County of Erie pursuant to a contract. The County of Erie, in turn, provided defendant County of Niagara with forensic autopsy services pursuant to a contract. Woytash concluded that the infant's death was caused by complications from a head injury, with a respiratory infection as a contributing factor, but ultimately concluded that the cause of death was undetermined.
Defendant Claudette Caldwell, Esq., an assistant district attorney with the Niagara County District Attorney's Office, recommended in June 2009 that the case be closed. Plaintiff alleged that his estranged wife thereafter contacted Caldwell and convinced her to reopen the investigation. Caldwell allegedly told Woytash that "no criminal prosecution would be possible unless evidence could be presented to the grand jury that would place the time of the head injury to no more than six hours prior to the time of [the infant's] death." Woytash allegedly fabricated findings that had no scientific basis, which were communicated to the police and later to a grand jury. Plaintiff was indicted for two counts of criminally negligent homicide and one count of manslaughter. After receiving an affidavit from plaintiff's expert challenging the testimony of Woytash before the grand jury, the Niagara County District Attorney's Office moved to dismiss the indictment, and the motion was granted.
The four elements of a cause of action for malicious prosecution are "that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice" (Cantalino v Danner, 96 N.Y.2d 391, 394; see Broughton v State of New York, 37 N.Y.2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929; Nichols v Xerox Corp., 72 A.D.3d 1501, 1502). The County of Erie contends that plaintiff "failed to demonstrate" that the County of Erie, either on its own or as the employer of Woytash, commenced or continued a criminal proceeding against plaintiff. The County of Erie improperly raises that contention for the first time on appeal (see Ciesinski v Town of Aurora, 202 A.D.2d 984, 985). In any event, it is without merit. On this motion to dismiss, we need only determine "whether the facts as alleged fit within any recognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 87-88). Although plaintiff was investigated in Niagara County, was arrested in Niagara County, was indicted in Niagara County, and was ultimately exonerated in Niagara County, a person may be liable for malicious prosecution for commencing a criminal proceeding where the person "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act" (Viza v Town of Greece, 94 A.D.2d 965, 966, appeal dismissed 64 N.Y.2d 776). Here, the allegations in the complaint sufficiently state that Woytash, as the employee of the County of Erie, played such an active role in the prosecution by giving false findings to the police and false testimony to the grand jury.
We reject the contention of the County of Niagara and Caldwell that plaintiff failed to state a cause of action for malicious prosecution against them with respect to the element of lack of probable cause for the criminal proceeding. Once a suspect has been indicted, the grand jury action creates a presumption of probable cause (see Colon v City of New York, 60 N.Y.2d 78, 82, rearg denied 61 N.Y.2d 670; Santiago v City of Rochester, 19 A.D.3d 1061, 1062). "If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith" (Colon, 60 N.Y.2d at 83). Here, the complaint sufficiently alleges fraud, perjury, and conduct undertaken in bad faith. Plaintiff alleged that the police concluded in their initial investigation, based upon statements by Woytash, that the infant's death was accidental, and the case was closed. However, after plaintiff's wife spoke with Caldwell, Caldwell allegedly began a campaign to bring charges against plaintiff despite knowing that plaintiff's wife was giving inconsistent information. Plaintiff alleged that Caldwell encouraged or coached Woytash to provide false information to the police and false testimony to the grand jury regarding the infant's cause of death and time of death. Plaintiff further alleged that Caldwell and Woytash were aware that the information was not mentioned in the autopsy report, was not supported by any document, and had no scientific basis.
The County of Erie, the County of Niagara, and Caldwell contend that plaintiff failed to state a cause of action against them for malicious prosecution because plaintiff did not allege any special duty that was owed by them to him. In a negligence-based claim against a municipality, a plaintiff must allege that a special duty existed between the municipality and the plaintiff (see Valdez v City of New York, 18 N.Y.3d 69, 75; Laratro v City of New York, 8 N.Y.3d 79, 82-83). Such a requirement is wholly distinct from any immunity defense (see Valdez, 18 N.Y.3d at 77-78). Plaintiff, however, withdrew hiscause of action for negligent hiring, training, and supervision and is asserting a cause of action only for malicious prosecution. As previously noted herein, however, the existence of a special duty owed to the plaintiff is not an element of that cause of action (see Cantalino, 96 N.Y.2d at 394).
We reject the contention of the County of Niagara and Caldwell that the complaint fails to state a cause of action against them because they are entitled to prosecutorial immunity. Prosecutorial immunity provides absolute immunity "for conduct of prosecutors that was intimately associated with the judicial phase of the criminal process' " (Buckley v Fitzsimmons, 509 U.S. 259, 270, quoting Imbler v Pachtman, 424 U.S. 409, 430; see Rodrigues v City of New York, 193 A.D.2d 79, 85), i.e., conduct that involves " initiating a prosecution and in presenting the State's case' " (Johnson v Kings County Dist. Attorney's Off., 308 A.D.2d 278, 285, quoting Imbler, 424 U.S. at 431; see Cunningham v State of New York, 71 A.D.2d 181, 182). Thus, a prosecutor's conduct in preparing for those functions may be absolutely immune, but acts of investigation are not (see Buckley, 509 U.S. at 270). Prosecutors are afforded only qualified immunity when acting in an investigative capacity (see id. at 275; Johnson, 308 A.D.2d at 285; Claude H. v County of Oneida, 214 A.D.2d 964, 965). The focus is on the conduct for which immunity is claimed (see Buckley, 509 U.S. at 271). It is ...