KRZYZAK v. SCHAEFER (2008)

Appeal from an order of the Supreme Court (Reilly Jr., J.), entered October 31, 2006 in Schenectady County, which, among other things, granted defendant's cross motion for summary judgment dismissing the complaint.

Plaintiff and defendant are neighbors residing in the City of Schenectady, Schenectady County.   On July 22, 2000, an animal control officer and police officer from the Schenectady Police Department went to plaintiff's house regarding his allegation that defendant or a member of her family had poisoned his dog.   In conjunction with this incident, defendant filed a harassment complaint against plaintiff based upon threatening statements plaintiff allegedly made to her in the presence of the animal control officer.   As a result, plaintiff was charged with harassment in the second degree, but that charge was ultimately dismissed.

Thereafter, plaintiff commenced the present action against defendant alleging malicious prosecution and false arrest.   Defendant answered and asserted a counterclaim seeking sanctions under CPLR 8303-a.   Plaintiff subsequently moved for summary judgment and to dismiss defendant's counterclaim, and defendant cross-moved for, among other things, summary judgment dismissing the complaint.   Supreme Court granted that portion of defendant's cross motion that sought summary judgment and dismissed the complaint.   Plaintiff now appeals and we affirm.

 To succeed on a claim of 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 [2001];  see Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975];  De Cicco v. Madison County, 300 A.D.2d 706, 707, 750 N.Y.S.2d 371 [2002];  Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128, 131, 688 N.Y.S.2d 12 [1999] ).   Similarly, a claim of false arrest or imprisonment requires that the plaintiff “establish that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged” (Martinez v. City of Schenectady, 97 N.Y.2d at 85, 735 N.Y.S.2d 868, 761 N.E.2d 560;  see Broughton v. State of New York, 37 N.Y.2d at 456, 373 N.Y.S.2d 87, 335 N.E.2d 310;  Holmberg v. County of Albany, 291 A.D.2d 610, 612, 738 N.Y.S.2d 701 [2002], lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 [2002];  Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d at 132, 688 N.Y.S.2d 12).   However, in the case of a civilian complainant, “[i]t is well settled in this [s]tate's jurisprudence that ․ by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, [the complainant] will not be held liable for false arrest or malicious prosecution” (Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d at 132, 688 N.Y.S.2d 12;  accord Paisley v. Coin Device Corp., 5 A.D.3d 748, 749-750, 773 N.Y.S.2d 582 [2004] ).

 Here, the record demonstrates nothing more than defendant furnishing information regarding the incident to the police and signing a complaint against plaintiff.   Importantly, the record does not reveal any evidence of defendant's active involvement in the prosecution of plaintiff following the signing of the complaint (see Paisley v. Coin Device Corp., 5 A.D.3d at 749-750, 773 N.Y.S.2d 582;  Wasilewicz v. Village of Monroe Police Dept., 3 A.D.3d 561, 562, 771 N.Y.S.2d 170 [2004];  Russ v. State Empls. Fed. Credit Union [SEFCU], 298 A.D.2d 791, 792-793, 750 N.Y.S.2d 658 [2002];  Quigley v. City of Auburn, 267 A.D.2d 978, 980, 701 N.Y.S.2d 580 [1999];  Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d at 131-133, 688 N.Y.S.2d 12;  Schrull v. Shafer, 252 A.D.2d 723, 723, 675 N.Y.S.2d 395 [1998];  Celnick v. Freitag, 242 A.D.2d 436, 437, 662 N.Y.S.2d 37 [1997];  Schiffren v. Kramer, 225 A.D.2d 757, 758-759, 640 N.Y.S.2d 175 [1996];  Cobb v. Willis, 208 A.D.2d 1155, 1156, 617 N.Y.S.2d 601 [1994] ).   Accordingly, Supreme Court properly granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

SPAIN, J.

MERCURE, J.P., ROSE, KAVANAGH and STEIN, JJ., concur.