ALBEE v. SCHOENE (2000)

Supreme Court properly granted defendants' motion for summary judgment dismissing the amended complaint.   Plaintiff commenced this action to recover damages for false arrest and malicious prosecution.   The underlying criminal prosecution, which culminated in a verdict of not guilty after a bench trial in Buffalo City Court, arose from a complaint lodged by defendant Louise Schoene alleging that plaintiff stole various items of office equipment belonging to defendant Gary Schoene.   In dismissing the civil complaint, the court properly determined as a matter of law that Louise was acting on her own, not on behalf of Gary, in lodging the criminal complaint, thus warranting the dismissal of the civil complaint against Gary for lack of any agency relationship.   The court also properly determined as a matter of law that Louise had probable cause to lodge the criminal complaint, thus warranting the dismissal of the civil complaint against her (see, Martinez v. Wegmans Food Mkts., 270 A.D.2d 834, 705 N.Y.S.2d 545, lv. denied 95 N.Y.2d 757, 713 N.Y.S.2d 1, 734 N.E.2d 1212;  Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013, 1013-1014, 568 N.Y.S.2d 981;  Jackson v. County of Nassau, 123 A.D.2d 834, 507 N.Y.S.2d 449, lv. denied 69 N.Y.2d 608, 516 N.Y.S.2d 1023, 509 N.E.2d 358).

Order unanimously affirmed with costs.

MEMORANDUM: