JAMES P. ZETES, PLAINTIFF-APPELLANT-RESPONDENT,
KELLY A. STEPHENS AND LUCAS A. STEPHENS, DEFENDANTS, COUNTY OF NIAGARA, JAMES VOUTOUR, IN HIS CAPACITY AS NIAGARA COUNTY SHERIFF, AND GUY FRATELLO, ALSO KNOWN AS G. FRATELLO, INDIVIDUALLY AND IN HIS CAPACITY AS NIAGARA COUNTY DEPUTY SHERIFF, DEFENDANTS-RESPONDENTS-APPELLANTS. (APPEAL NO. 1.)
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 31, 2012. The order, among other things, granted that part of the motion of defendants County of Niagara, James Voutour, and Guy Fratello seeking summary judgment dismissing plaintiff's complaint against them.
JOHN J. DELMONTE, NIAGARA FALLS, FOR PLAINTIFF-APPELLANT-RESPONDENT.
WEBSTER SZANYI LLP, BUFFALO (ADAM P. HATCH OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover damages for, inter alia, false arrest, false imprisonment, and malicious prosecution. In appeal No. 1, plaintiff appeals and defendants County of Niagara, James Voutour, in his capacity as Niagara County Sheriff, and Guy Fratello, also known as G. Fratello, individually and in his capacity as Niagara County Deputy Sheriff (collectively, County defendants), cross-appeal from an order granting that part of the County defendants' motion for summary judgment dismissing the complaint against them, but denying that part of their motion for sanctions based upon plaintiff's alleged frivolous conduct. In appeal No. 2, defendants Kelly A. Stephens and Lucas A. Stephens (collectively, Stephens defendants) appeal from an order denying their motion for summary judgment dismissing the complaint against them.
We note at the outset that, with respect to appeal No. 1, plaintiff has abandoned his second cause of action for abuse of process and his fifth cause of action for negligence against the County defendants (see Ciesinski v Town of Aurora, 202 A.D.2d 984, 984). Further, with respect to appeal No. 2, plaintiff concedes that his second cause of action and so much of his tenth cause of action that alleges that the Stephens defendants tortiously interfered with "present contractual relations" are not viable. We therefore modify the order in appeal No. 2 accordingly.
Regarding the remaining causes of action, we conclude that Supreme Court properly granted that part of the County defendants' motion for summary judgment dismissing the malicious prosecution cause of action (first cause of action) against them in appeal No. 1, and properly denied that part of the Stephens defendants' motion seeking the same relief in appeal No. 2. "The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (Broughton v State of New York, 37 N.Y.2d 451, 457, cert denied 423 U.S. 929; see Smith-Hunter v Harvey, 95 N.Y.2d 191, 195; Nichols v Xerox Corp., 72 A.D.3d 1501, 1502). With respect to the first element, it is undisputed that defendants commenced a criminal proceeding against plaintiff by filing a misdemeanor information accusing him of stalking in the fourth degree. Further, with respect to the second element, neither the County defendants nor the Stephens defendants established that the criminal proceeding did not terminate in plaintiff's favor (see Cantalino v Danner, 96 N.Y.2d 391, 395-396; Smith-Hunter, 95 N.Y.2d at 195-197).
With respect to the third and fourth elements, however, the County defendants established that Fratello had probable cause to file the misdemeanor information and that he did not act with actual malice (see Lyman v Town of Amherst, 74 A.D.3d 1842, 1842; Weiss v Hotung, 26 A.D.3d 855, 856; Du Chateau v Metro-North Commuter R.R. Co., 253 A.D.2d 128, 132). "In the context of a malicious prosecution cause of action, probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty' " (Passucci v Home Depot, Inc., 67 A.D.3d 1470, 1470, quoting Colon v City of New York, 60 N.Y.2d 78, 82, rearg denied 61 N.Y.2d 670). It is well established that "information provided by an identified citizen accusing another of a crime is legally sufficient to provide the police with probable cause to arrest" (Lyman, 74 A.D.3d at 1843 [internal quotation marks omitted]). Actual malice "means that the defendant must have commenced the... criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 N.Y.2d 500, 503; see Putnam v County of Steuben, 61 A.D.3d 1369, 1371, lv denied 13 N.Y.3d 705; Du Chateau, 253 A.D.2d at 132).
Here, the County defendants submitted evidence that Kelly A. Stephens (hereafter, Stephens) told Fratello that plaintiff (1) frequently drove by her house and often slowed down or stopped in front of the house; (2) took pictures of Stephens and the house; (3) made sexual comments to Stephens; and (4) threatened to damage Stephens's property. Stephens told Fratello that she feared for her safety and, according to Fratello, "[s]he was visibly upset and crying as she explained [plaintiff]'s conduct to [him]." After Fratello advised Stephens "multiple times" that making a false statement was punishable as a crime, Stephens provided a supporting deposition attesting to the above facts. Fratello averred in an affidavit that Stephens "appeared to be reliable and believable, " and that he "had no reason to believe [that] anything [she] told [him] was false or inaccurate." He had never met Stephens or plaintiff prior to that date. Based upon the information Stephens provided, Fratello completed a misdemeanor information accusing plaintiff of stalking in the fourth degree. He had no further involvement in plaintiff's prosecution. Inasmuch as the County defendants established that Fratello had probable cause to file the misdemeanor information and that he did not act with actual malice, thereby negating two necessary elements of malicious prosecution, they met their initial burden on that part of their motion for summary judgment with respect to that cause of action.
In opposition to the County defendants' motion, plaintiff failed to raise an issue of fact with respect to probable cause or actual malice. Plaintiff submitted excerpts from Fratello's deposition in which he testified that he did not recall Stephens mentioning any disputes that she and her husband had with plaintiff concerning money or deed restrictions, and that he had not heard anything to that effect prior to that time. Plaintiff also submitted excerpts from Stephens's deposition, in which she testified that she did not recall mentioning to Fratello her disagreement with plaintiff over amounts allegedly owed to plaintiff for construction work that he performed. Plaintiff admitted at his own deposition that he had no reason to believe that Fratello was aware of plaintiff's claim that the Stephens defendants owed him $4, 000 for construction work. Although plaintiff emphasizes alleged "inconsistencies" with respect to whether Fratello attempted to contact him before filing the misdemeanor information and speculates that Fratello "covered up his failure or intentional decision to not talk to the plaintiff by saying that he could not locate him, " we conclude that such conjecture is insufficient to raise a question of fact whether Fratello "lacked probable cause to initiate the criminal proceeding or acted with malice in doing so" (Weiss, 26 A.D.3d at 856; see Du Chateau, 253 A.D.2d at 132).
With respect to the Stephens defendants, however, we agree with plaintiff that there are triable issues of fact whether Stephens had probable cause to file criminal charges against plaintiff and whether she acted out of malice (see Nichols, 72 A.D.3d at 1502). "A probable cause finding as to one [group of defendants] does not compel such a finding as to the other where the facts and circumstances known to each defendant may be different" (Weiss, 26 A.D.3d at 857 [internal quotation marks omitted]). Here, plaintiff submitted evidence suggesting that Stephens commenced the criminal proceeding against him out of spite or retaliation based upon his enforcement of alleged deed restrictions and his claim against the Stephens defendants for money owed to him for construction work that he performed, and that Stephens provided incomplete or misleading information to Fratello (see generally Nardelli, 44 N.Y.2d at 502-503). We thus conclude that there is a question of fact whether Stephens commenced the criminal proceeding against plaintiff "due to... something other than a desire to see the ends of justice served" (id. at 503; see Nieminski v Cortese-Green, 74 A.D.3d 1550, 1551).
With respect to the false arrest and false imprisonment causes of action, i.e., the third and fourth causes of action, respectively, we conclude that the court properly dismissed those causes of action against the County defendants in appeal No. 1, but that it also should have dismissed those causes of action against the Stephens defendants in appeal No. 2. We therefore further modify the order in appeal No. 2 accordingly. It is well settled that a plaintiff's appearance in court as a result of the issuance of a criminal summons or appearance ticket is insufficient to support a claim of false arrest or false imprisonment (see Weiss, 26 A.D.3d at 856; see also Santoro v Town of Smithtown, 40 A.D.3d 736, 737; Nadeau v LaPointe, 272 A.D.2d 769, 770-771), and here"the record establishes that plaintiff was never arrested or held in actual custody by any law enforcement agency as a result of the charge... filed against [him]" (Weiss, 26 A.D.3d at 856 [internal quotation marks omitted]; see Du Chateau, 253 A.D.2d at 132).
Regarding appeal No. 1 and specifically the causes of action asserted against only the County defendants, we conclude that, because the court properly dismissed plaintiff's causes of action for false arrest, false imprisonment, and malicious prosecution against the County defendants in appeal No. 1, the cause of action for negligent training and/or instruction (sixth cause of action) was likewise properly dismissed against them (see Cotter v Summit Sec. Servs., Inc., 14 A.D.3d 475, 476; cf. U.S. Underwriters Ins. Co. v Val-Blue Corp., 85 N.Y.2d 821, 823). In any event, the County defendants established that Fratello did not "lack training in proper law enforcement techniques" (Barr v County of Albany, 50 N.Y.2d 247, 258; cf. Martinetti v Town of New Hartford Police Dept., 307 A.D.2d 735, 737), and plaintiff failed to raise an issue of fact concerning a lack of training (see generally Panzera v Johnny's II, 253 A.D.2d 864, 865). The court also properly dismissed plaintiff's 42 USC § 1983 cause of action (seventh cause of action) against the County defendants, which was premised upon the false arrest, false imprisonment, and malicious prosecution claims (see generally Shopland v County of Onondaga, 154 A.D.2d 941, 941). With respect to the County defendants' cross appeal in appeal No. 1, we conclude that, although the court properly ...