MOLINA v. The County of Westchester, et al., Defendants-Respondents. (2006)

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered March 8, 2005, which, to the extent appealed from, granted the motion of defendant-respondent Victor Cruz and the cross motion of defendants-respondents County of Westchester and Donald McArthur for summary judgment dismissing the fifth and seventh through tenth causes of action, and denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.

 Inasmuch as the law enforcement actions upon which this law-suit is premised did not terminate in an acquittal or unqualified dismissal, but merely in an adjournment in contemplation of dismissal (see Roesch v. Otarola, 980 F.2d 850, 853-854 [1992] ), plaintiff's claims for malicious prosecution and, on the basis of the alleged malicious prosecution, seeking damages for federal civil rights violations, were properly dismissed (see Singleton v. City of New York, 632 F.2d 185, 194-195 [1980], cert. denied 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 [1981];  Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 425-426, 461 N.Y.S.2d 765, 448 N.E.2d 432 [1983] ).   Plaintiff's acceptance of the adjournment in contemplation of dismissal also operated as a waiver of his right to challenge whether there was probable cause for his arrest and renders untenable his claims for false arrest and imprisonment (see Hock v. Kline, 304 A.D.2d 477, 478, 758 N.Y.S.2d 640 [2003] ).   In any event, it is clear that there was probable cause to support plaintiff's arrest, and the existence of probable cause constitutes a complete defense to the claims for false arrest and imprisonment (see Weyant v. Okst, 101 F.3d 845, 852 [1996];  Tersigni v. Triborough Bridge & Tunnel Auth., 293 A.D.2d 366, 741 N.Y.S.2d 204 [2002] ).   Although probable cause was not pleaded as an affirmative defense, summary judgment based on the existence of probable cause was nonetheless permissible since defendants did allege in their responsive pleadings that their conduct toward plaintiff had been justified, thus placing plaintiff on notice that they would contend that allegedly wrongful arrest had been based on probable cause (see M.J. Williams Corp. v. Roma Fragrances & Cosmetics, Ltd., 121 A.D.2d 278, 279, 503 N.Y.S.2d 734 [1986] ).

 Also properly dismissed was plaintiff's claim for abuse of process, since it is plain that plaintiff is unable to demonstrate that process was utilized against him, without excuse or justification, to obtain a collateral objective (see Rosen v. Hanrahan, 2 A.D.3d 352, 353, 768 N.Y.S.2d 818 [2003] ).

We have considered plaintiff's remaining arguments and find them unavailing.