CHRISTOPHER DANN PLAINTIFF RESPONDENT APPELLANT v. CAYUGA COUNTY DISTRICT ATTORNEY OFFICE AND COUNTY OF CAYUGA DEFENDANTS RESPONDENTS (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion with respect to the malicious prosecution cause of action in its entirety and dismissing that cause of action against all defendants and as modified the order is affirmed without costs.

Memorandum:  In this action by plaintiff to recover damages from two sets of defendants on various theories, defendants Auburn Police Department and the City of Auburn (City defendants) appeal and plaintiff cross-appeals from an order that, inter alia, granted that part of defendants' motion for summary judgment dismissing the cause of action for malicious prosecution only against defendants Cayuga County District Attorney's Office and County of Cayuga (County defendants).  We reject plaintiff's contention on his cross appeal that Supreme Court erred in granting the motion to that extent.  The County defendants demonstrated their entitlement to judgment as a matter of law based on their prosecutorial immunity, and plaintiff failed to raise a triable question of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).  The law provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process' “ (Buckley v. Fitzsimmons, 509 U.S. 259, 270, quoting Imbler v. Pachtman, 424 U.S. 409, 430;  see Kirchner v. County of Niagara, 107 AD3d 1620, 1622), i.e., conduct that involves “ ‘initiating a prosecution and ․ presenting the State's case’ “ (Johnson v Kings County Dist. Attorney's Off., 308 A.D.2d 278, 285, quoting Imbler, 424 U.S. at 431;  see Kirchner, 107 AD3d at 1623).  Although prosecutors are afforded only qualified immunity when acting in an investigative capacity (see Buckley, 509 U.S. at 275–276;  Kirchner, 107 AD3d at 1623;  Claude H. v. County of Oneida, 214 A.D.2d 964, 965), we reject plaintiff's contention that the prosecutor's actions in this case went beyond “the professional evaluation of the evidence assembled by the police,” a function that would not deprive the prosecutor of absolute immunity (Buckley, 509 U.S. at 273;  cf.  Kirchner, 107 AD3d at 1623–1624).

We conclude, however, that the court erred in denying that part of the motion for summary judgment dismissing the malicious prosecution cause of action against the City defendants as well.  The court should have dismissed that cause of action in its entirety, and we modify the order accordingly.  The City defendants demonstrated their entitlement to judgment as a matter of law on the issue whether the police had probable cause to charge plaintiff with assault in the second degree, and plaintiff failed to raise a triable issue of fact (see Zetes v. Stephens, 108 AD3d 1014, 1015–1016;  Lyman v. Town of Amherst, 74 AD3d 1842, 1842;  see generally Broughton v. State of New York, 37 N.Y.2d 451, 457, cert denied sub nom.  Schanbarger v Kellogg, 423 U.S. 929).  That quantum of suspicion was furnished to the police by the sworn statements of the victim and the victim's brother-in-law, was buttressed by the sworn statement of plaintiff himself, and was further supported by the findings made by the police during their prudent and careful investigation into the incident.  “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, 108 AD3d at 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).  “ ‘Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely [requires] information sufficient to support a reasonable belief that an offense has been or is being committed’ by the suspected individual” (Torres v. Jones, 26 NY3d 742, 759).  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, 74 AD3d at 1843;  see Zetes, 108 AD3d at 1016).  Moreover, where, as here, “a warrant of arrest [has been] issued by a court of competent jurisdiction, there is ‘a presumption that the arrest was [made] on probable cause’ “ (Chase v. Town of Camillus, 247 A.D.2d 851, 852, quoting Broughton, 37 N.Y.2d at 458;  see Lyman, 74 AD3d at 1842–1843), and that the accompanying criminal prosecution was likewise based on probable cause.  That “presumption of probable cause ‘can be overcome only upon a showing of fraud, perjury or the withholding of

evidence' “ (Lyman, 74 AD3d at 1843), none of which is demonstrated by plaintiff in this case.

Frances E. Cafarell

Clerk of the Court