PEJCINOVIC v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

Adam PEJCINOVIC, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, et al., Defendants-Appellants.

Decided: February 18, 1999

TOM, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Thomas Rubertone, Jr., for plaintiffs-respondents. Julian L. Kalkstein, for defendants-appellants.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 31, 1997, which, to the extent appealed from as limited by the brief, denied that branch of defendants' motion seeking dismissal pursuant to CPLR 3212 of plaintiffs' malicious prosecution cause of action and that branch seeking dismissal pursuant to CPLR 3211 of plaintiffs' 42 U.S.C. § 1983 cause premised upon malicious prosecution, unanimously affirmed, without costs.

 The motion court properly denied defendants' motion insofar as it sought summary judgment dismissing plaintiffs' malicious prosecution cause of action since issues of fact exist as to whether plaintiffs' arrests were supported by probable cause and as to whether defendants acted with malice (see, Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248;  see also, People v. Pejcinovic, 174 A.D.2d 461, 571 N.Y.S.2d 245).  The motion court's denial of that part of defendants' motion seeking dismissal of plaintiffs' 42 U.S.C. § 1983 cause premised upon malicious prosecution was also proper since the pleading deficiency upon which dismissal was sought was curable by the grant of that portion of plaintiffs' cross motion seeking leave to amend the complaint to further articulate the customs and practices of municipal defendant that are claimed to have resulted in the violation of plaintiffs' civil rights.   In this connection, we note that the City was given sufficient notice, at the time of the original complaint, respecting the acts about which plaintiffs are complaining (see, Carlisle v. County of Nassau, 75 A.D.2d 593, 426 N.Y.S.2d 815) and, accordingly, can make no persuasive claim that permitting the amendment will cause it undue prejudice.

MEMORANDUM DECISION.