DAVID SCHERR PLAINTIFF APPELLANT v. CITY OF LACKAWANA DEFENDANT RESPONDENT

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

DAVID SCHERR, PLAINTIFF-APPELLANT, v. CITY OF LACKAWANA, DEFENDANT-RESPONDENT.

CA 10-00910

Decided: December 30, 2010

PRESENT:  SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ. RICHARD J. SHERWOOD, LANCASTER, FOR PLAINTIFF-APPELLANT. ANTONIO M. SAVAGLIO, LACKAWANNA, FOR DEFENDANT-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  On appeal from an order granting defendant's motion for summary judgment dismissing the complaint in this action for, inter alia, false arrest and malicious prosecution, plaintiff contends that his acceptance of an adjournment in contemplation of dismissal (ACD) with respect to the underlying charge of criminal possession of stolen property does not constitute a waiver of the right to contend herein that there was no probable cause to arrest him.   We agree with plaintiff that, although his acceptance of an ACD bars his cause of action for malicious prosecution, it “does not interdict an action for false imprisonment” (Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 423;  cf.   Molina v. City of New York, 28 AD3d 372).   Contrary to the further contention of plaintiff, however, the record establishes that there was probable cause for his arrest, and thus Supreme Court properly granted defendant's motion (see generally Fortunato v. City of New York, 63 AD3d 880).

Patricia L. Morgan

Clerk of the Court