WATSON v. CITY OF JAMESTOWN (2008)

Plaintiff, an officer with the Jamestown Police Department (Department), was questioned by the Federal Bureau of Investigation (FBI) in connection with its investigation of a missing woman with whom plaintiff had a relationship.   The FBI reported to the Department that its investigation revealed that plaintiff had been stalking women.   The Department launched an internal investigation and, after receiving statements from three women, prepared a warrant to arrest plaintiff on charges of stalking, harassment, and official misconduct.   The warrant was signed by a City Court Judge and, on the day on which plaintiff was arrested, the Department held a press conference concerning the charges.   Plaintiff was subsequently indicted, and County Court granted that part of his omnibus motion seeking to dismiss seven counts of the indictment.   On a prior appeal, we modified that order and reinstated one of those counts (People v. Watson, 32 A.D.3d 1199, 821 N.Y.S.2d 328, lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000).

Plaintiff commenced this action alleging, inter alia, defamation, abuse of process, malicious prosecution, and the violation of his civil rights.   We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.

 With respect to the cause of action for defamation, we reject the contention of plaintiff that he was defamed by certain comments made by the individual defendants at the press conference.  “A public official may not recover damages for defamation unless the official proves that the offending false statement was made with actual malice-that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (Freeman v. Johnston, 84 N.Y.2d 52, 56, 614 N.Y.S.2d 377, 637 N.E.2d 268 [internal quotation marks omitted], cert. denied 513 U.S. 1016, 115 S.Ct. 576, 130 L.Ed.2d 492;  see New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686).   Defendants established their entitlement to judgment as a matter of law with respect to that cause of action by demonstrating that the remarks that allegedly defamed plaintiff were true with the exception of one remark that was a misstatement but was not made with malice.   Plaintiff failed to raise a triable issue of fact (see Kasachkoff v. City of New York, 68 N.Y.2d 654, 657, 505 N.Y.S.2d 67, 496 N.E.2d 226).

 With respect to the cause of action for abuse of process, plaintiff contends that the arrest warrant was used by defendants to gain an advantage at the civil service hearing conducted to terminate him as a police officer.  “Abuse of process has three essential elements:  (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” (Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324;  see Berisic v. Winckelman, 40 A.D.3d 561, 562, 835 N.Y.S.2d 390;  Johnson v. Kings County Dist. Attorney's Off., 308 A.D.2d 278, 288-289, 763 N.Y.S.2d 635).   Defendants met their initial burden by establishing that, in seeking the warrant, they did not intend to harm plaintiff without excuse or justification.   In addition, they established that they did not use process to gain an advantage at the civil service hearing.   Rather, they established that they had sought the warrant based upon the sworn statements given by three women to the Department.   In opposition to the motion, plaintiff submitted the affidavits of two of those women, each of whom indicated that she never requested that criminal charges be brought against plaintiff.   Those women, however, did not refute the statements given by them to the Department, and we note that they were not required to request that criminal charges be brought against plaintiff, nor was it necessary for the Department to obtain their consent to do so.   Plaintiff thus failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 With respect to the cause of action for malicious prosecution, “a plaintiff must establish 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” (Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560;  see Diederich v. Nyack Hosp., 49 A.D.3d 491, 493, 854 N.Y.S.2d 411;  Weiss v. Hotung, 26 A.D.3d 855, 856, 809 N.Y.S.2d 376).   Defendants established in support of their motion that, after two of the individual defendants prepared the application for an arrest warrant, it was signed by a City Court Judge.   The determination of that City Court Judge that the police had probable cause to arrest plaintiff bars the cause of action for malicious prosecution (see Diederich, 49 A.D.3d at 493-494, 854 N.Y.S.2d 411).   In addition, defendants established that the criminal proceeding has not been terminated in plaintiff's favor, although several of the charges have been dismissed, and that the charges were not made with malice.   Plaintiff failed to raise a triable issue of fact (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

With respect to the cause of action alleging the violation of plaintiff's civil rights, plaintiff contends that he was arrested without probable cause in violation of his Fourth Amendment rights.   We agree with defendants that they are entitled to qualified immunity with respect to plaintiff's arrest inasmuch as it was “objectively reasonable for the defendants to have believed that their conduct as related to the plaintiff was lawful under the circumstances” (Colao v. Mills, 39 A.D.3d 1048, 1050, 834 N.Y.S.2d 375;  see Anderson v. Creighton, 483 U.S. 635, 638-639, 107 S.Ct. 3034, 97 L.Ed.2d 523;  Malley v. Briggs, 475 U.S. 335, 343-344, 106 S.Ct. 1092, 89 L.Ed.2d 271).

We have considered plaintiff's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: