CHRISTINA J. BROYLES, PLAINTIFF-APPELLANT,
TOWN OF EVANS, OFFICER THOMAS J. CRUPE, LIEUTENANT MICHAEL MASULLO, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.
HOGANWILLIG, PLLC, AMHERST (LINDA LALLI STARK OF COUNSEL),
SUGARMAN LAW FIRM LLP, BUFFALO (BRENNA C. GUBALA OF COUNSEL),
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND
from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered July 28, 2015. The order granted
the motion of defendants Town of Evans, Officer Thomas J.
Crupe, and Lieutenant Michael Masullo to dismiss
plaintiff's complaint and any cross claims against them
and denied the cross motion of plaintiff for leave to amend
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff commenced this action for, inter alia, malicious
prosecution after she was charged with criminal trespass in
the third degree. The Town of Evans and two of its police
officers (collectively, defendants) moved for dismissal of
the complaint and any cross claims against them, and
plaintiff cross-moved for leave to amend the complaint.
Supreme Court granted the motion and denied the cross motion.
We affirm. We note at the outset that only two causes of
action are at issue on this appeal, i.e., the first cause of
action and the fifth cause of action.
conclude that the court properly granted the motion with
respect to the first cause of action, asserting malicious
prosecution on the part of defendants, for failure to state a
cause of action (see CPLR 3211 [a] ). In
particular, we conclude that plaintiff failed adequately to
plead the requisite elements of lack of probable cause and
malice on the part of the officers, and likewise failed to
submit affidavits or other evidentiary material remedying
that defect of her complaint (see Leon v Martinez,
84 N.Y.2d 83, 88). " Probable cause to believe that a
person committed a crime is a complete defense to claims
of... malicious prosecution' " (Batten v City of
New York, 133 A.D.3d 803, 805; see Fortunato v City
of New York, 63 A.D.3d 880, 880; see also Britt v
Monachino, 73 A.D.3d 1462, 1462). "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" (Zetes v Stephens, 108 A.D.3d
1014, 1015-1016 [internal quotation marks omitted]; see
Colon v City of New York, 60 N.Y.2d 78, 82, rearg
denied 61 N.Y.2d 670; Passucci v Home Depot,
Inc., 67 A.D.3d 1470, 1470). 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 v Town
of Amherst, 74 A.D.3d 1842, 1843 [internal quotation
marks omitted]; see Zetes, 108 A.D.3d at 1016).
Here, the record, including the complaint itself, establishes
as a matter of law that the officers, upon hearing the
complaint of plaintiff's neighbors, had probable cause to
believe that plaintiff had committed criminal trespass in the
third degree (see Zetes, 108 A.D.3d at 1015-1016;
see also Lyman, 74 A.D.3d at 1843).
court also properly granted the motion with respect to the
fifth cause of action, alleging negligent hiring, training,
and supervision of the officers on the part of the Town, on
the ground that the cause of action is time-barred
(see CPLR 3211 [a] ). Plaintiff's action was
not commenced until more than one year and 90 days
"after the happening of the event upon which the claim
is based" (General Municipal Law § 50-i ;
see Cardiff v Carrier, 79 A.D.3d 1626, 1626-1627,
lv denied 16 N.Y.3d 710; Ruggiero v
Phillips, 292 A.D.2d 41, 43; see also Klein v City
of Yonkers, 53 N.Y.2d 1011, 1012-1013).
we conclude that the court did not abuse its discretion in
denying plaintiff's cross motion for leave to amend her
complaint with regard to the cause of action for malicious
prosecution. Although leave to amend is freely granted
(see CPLR 3025 [b]; Edenwald Contr. Co. v City
of New York, 60 N.Y.2d 957, 959), it should be denied
where the proposed amendment is patently lacking in merit
(see ARG Trucking Corp. v Amerimart Dev. Co., 302
A.D.2d 876, 877; Nahrebeski v Molnar, 286 A.D.2d
891, 891-892). Here, the proposed amended ...