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Supreme Court, Appellate Term, New York.

Michael MELNITZKY and Elizabeth Melnitzky, an infant, by her father Michael Melnitzky, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Police Officer Edward Castro, Police Officer Mark Rawdon, Alfredo Palacios, The Irvington Institute for Immunological Research and The Irvington Institute for Immunological Research Thrift Shop, Defendants-Respondents.

Decided: January 06, 2005

Present:  Hon. LUCINDO SUAREZ, P.J., Hon. WILLIAM P. McCOOE, Hon. WILLIAM J. DAVIS, Justices. Michael Melnitzky, appellant pro se. Ted M. Tobias, New York City, for Alfredo Palacios and others, respondents.

Order entered November 4, 2002 (Paul G. Feinman, J.) reversed, with $10 costs, motion denied, and complaint reinstated.

This malicious prosecution action, commenced in Supreme Court in July 1996, stems from allegations, inter alia, that the nonmunicipal defendants, a research foundation and its employee, Palacios (hereinafter collectively referred to as “defendants” or “Foundation defendants”), provided police with false information which led to the arrest and ultimately unsuccessful prosecution of plaintiff on trespass and related charges.

The litigation has taken a circuitous procedural path, summarized as follows.   Plaintiff's claims against the municipal defendants, the City of New York and the two arresting police officers, proceeded to trial in November of 2000, resulting in a defense verdict predicated upon a jury finding that the police had probable cause for plaintiff's arrest.   In ensuing motion practice, the Foundation defendants argued that the doctrine of collateral estoppel should serve to bar plaintiff's malicious prosecution claim against them because the issue of probable cause was previously resolved against plaintiff in the context of the jury trial involving the municipal defendants.   By order dated August 29, 2001, Supreme Court (Richard Braun, J.) rejected the Foundation defendants' collateral estoppel argument, noting the absence of the requisite element of an identity of issues.   As Justice Braun put it, “Although the [City] Defendants may have had probable cause for [Plaintiff's] arrest ․, that does not mean that the [Foundation] Defendants may not have maliciously prosecuted Plaintiff[ ], because those Defendants' actions were different than those of the [City] Defendants.”   A second trial was then held in June 2002, this time involving the plaintiff's claims against the Foundation defendants.   Upon declaring a mistrial, the court (Louise Gruner Gans, J.) transferred the case to Civil Court pursuant to CPLR § 325(d).  Defendants thereafter moved for summary judgment dismissing the complaint, based solely upon the identical collateral estoppel argument advanced by them during the earlier motion practice before Justice Braun in Supreme Court.   In the order now under review, Civil Court adopted the defendants' collateral estoppel theory and granted their motion for summary judgment dismissal.   Plaintiff now appeals, and we reverse.

 Even assuming, in the Foundation defendants' favor, that the statements made by Justice Braun in his August 29, 2001 order constitute dicta and are not entitled to preclusive effect under the law of the case doctrine (see Pollicino v. Roemer and Featherstonhaugh, P.C., 277 A.D.2d 666, 716 N.Y.S.2d 416 [2000];  but cf. Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 895, 764 N.Y.S.2d 17 [2003], lv. dismissed 98 N.Y.2d 671, 746 N.Y.S.2d 458, 774 N.E.2d 223 [2002] ), we agree with Justice Braun on the merits that the doctrine of collateral estoppel is inapplicable to bar relitigation of the central issue of probable cause “since only the City's liability for malicious prosecution, not [the Foundation defendants'] liability was at issue and decided in the prior [jury] determination.”  (Brown v. Sears Roebuck and Co., 297 A.D.2d 205, 209, 746 N.Y.S.2d 141 [2002].)   As the Brown court stated in closely analogous circumstances, “a probable cause finding as to one entity does not compel such a finding as to the other where the facts and circumstances known to each defendant may be different.   For instance, assuming, as plaintiff contends, that false information given by [Palacios] ( [a Foundation] employee) contributed to the [police officers'] decision to arrest the plaintiff, in those circumstances only the City, not [the Foundation defendants], may be said to have acted with probable cause.”  [Id.]

Inasmuch as defendants relied exclusively on the inapplicable doctrine of collateral estoppel in moving for summary judgment below, without addressing the sufficiency of plaintiff's showing as to the other required elements of a malicious prosecution cause of action, a summary disposition of the matter is unwarranted.

This constitutes the decision and order of this Court.