CHASE v. TOWN OF CAMILLUS (1998)

 Supreme Court erred in dismissing the first cause of action for false arrest and imprisonment.   It is well established that, where, as here, a motion to dismiss for failure to state a cause of action is addressed to the entire complaint, the motion must be denied in its entirety if even one cause of action is legally sufficient (see, Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84, 70 N.E.2d 401;  Great N. Assocs. v. Continental Cas. Co., 192 A.D.2d 976, 978, 596 N.Y.S.2d 938;  Duffy v. Cross Country Indus., 57 A.D.2d 1063, 395 N.Y.S.2d 852).

 Further, the court erred with respect to the merits in dismissing the first cause of action.   Where a warrant of arrest is issued by a court of competent jurisdiction, there is “a presumption that the arrest was issued on probable cause” (Broughton v. State of New York, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257).   An arresting officer will not be insulated from liability, however, “if the arrest warrant was procured based upon the officer's ‘own false or unsubstantiated evidence’ ” (Melito v. City of Utica, 210 A.D.2d 888, 889, 620 N.Y.S.2d 648, quoting Boose v. City of Rochester, 71 A.D.2d 59, 67, 421 N.Y.S.2d 740;  see, Ross v. Village of Wappingers Falls, 62 A.D.2d 892, 896, 406 N.Y.S.2d 506).   The first cause of action sufficiently alleges that the police knew that there was no probable cause to arrest plaintiff for harassment in the first degree (Penal Law § 240.25) and that they procured the arrest warrant as a result of the influence of defendant Kathryn M. Krisak, a member of the Town Board of the Town of Camillus.

We therefore modify the order by denying in its entirety defendants' motion and reinstating the first cause of action.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: