JAMES ZETES PLAINTIFF APPELLANT RESPONDENT v. APPEAL NO

Reset A A Font size: Print

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

JAMES P. ZETES, PLAINTIFF–APPELLANT–RESPONDENT, v. KELLY A. STEPHENS AND LUCAS A. STEPHENS, DEFENDANTS, COUNTY OF NIAGARA, JAMES VOUTOUR, IN HIS CAPACITY AS NIAGARA COUNTY SHERIFF, AND GUY FRATELLO, ALSO KNOWN AS G. FRATELLO, INDIVIDUALLY AND IN HIS CAPACITY AS NIAGARA COUNTY DEPUTY SHERIFF, DEFENDANTS–RESPONDENTS -APPELLANTS. (APPEAL NO. 1.)

CA 12–01499

Decided: July 05, 2013

PRESENT:  SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ. JOHN J. DELMONTE, NIAGARA FALLS, FOR PLAINTIFF–APPELLANT–RESPONDENT. WEBSTER SZANYI LLP, BUFFALO (ADAM P. HATCH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS–APPELLANTS.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 31, 2012.   The order, among other things, granted that part of the motion of defendants County of Niagara, James Voutour, and Guy Fratello seeking summary judgment dismissing plaintiff's complaint against them.

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

Regarding the remaining causes of action, we conclude that Supreme Court properly granted that part of the County defendants' motion for summary judgment dismissing the malicious prosecution cause of action (first cause of action) against them in appeal No. 1, and properly denied that part of the Stephens defendants' motion seeking the same relief in appeal No. 2. “The elements of the tort of malicious prosecution are:  (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” (Broughton v. State of New York, 37 N.Y.2d 451, 457, cert denied 423 U.S. 929;  see Smith–Hunter v. Harvey, 95 N.Y.2d 191, 195;  Nichols v. Xerox Corp., 72 AD3d 1501, 1502).   With respect to the first element, it is undisputed that defendants commenced a criminal proceeding against plaintiff by filing a misdemeanor information accusing him of stalking in the fourth degree.   Further, with respect to the second element, neither the County defendants nor the Stephens defendants established that the criminal proceeding did not terminate in plaintiff's favor (see Cantalino v. Danner, 96 N.Y.2d 391, 395–396;  Smith–Hunter, 95 N.Y.2d at 195–197).

With respect to the third and fourth elements, however, the County defendants established that Fratello had probable cause to file the misdemeanor information and that he did not act with actual malice (see Lyman v. Town of Amherst, 74 AD3d 1842, 1842;  Weiss v. Hotung, 26 AD3d 855, 856;  Du Chateau v Metro–North Commuter R.R. Co., 253 A.D.2d 128, 132).  “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’ “ (Passucci v. Home Depot, Inc., 67 AD3d 1470, 1470, quoting Colon v. City of New York, 60 N.Y.2d 78, 82, rearg. denied 61 N.Y.2d 670).   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 [internal quotation marks omitted] ).   Actual malice “means that the defendant must have commenced the ․ criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served” (Nardelli v. Stamberg, 44 N.Y.2d 500, 503;  see Putnam v. County of Steuben, 61 AD3d 1369, 1371, lv denied 13 NY3d 705;  Du Chateau, 253 A.D.2d at 132).

Here, the County defendants submitted evidence that Kelly A. Stephens (hereafter, Stephens) told Fratello that plaintiff (1) frequently drove by her house and often slowed down or stopped in front of the house;  (2) took pictures of Stephens and the house;  (3) made sexual comments to Stephens;  and (4) threatened to damage Stephens's property.   Stephens told Fratello that she feared for her safety and, according to Fratello, “[s]he was visibly upset and crying as she explained [plaintiff]'s conduct to [him].”   After Fratello advised Stephens “multiple times” that making a false statement was punishable as a crime, Stephens provided a supporting deposition attesting to the above facts.   Fratello averred in an affidavit that Stephens “appeared to be reliable and believable,” and that he “had no reason to believe [that] anything [she] told [him] was false or inaccurate.”   He had never met Stephens or plaintiff prior to that date.   Based upon the information Stephens provided, Fratello completed a misdemeanor information accusing plaintiff of stalking in the fourth degree.   He had no further involvement in plaintiff's prosecution.   Inasmuch as the County defendants established that Fratello had probable cause to file the misdemeanor information and that he did not act with actual malice, thereby negating two necessary elements of malicious prosecution, they met their initial burden on that part of their motion for summary judgment with respect to that cause of action.

With respect to the false arrest and false imprisonment causes of action, i.e., the third and fourth causes of action, respectively, we conclude that the court properly dismissed those causes of action against the County defendants in appeal No. 1, but that it also should have dismissed those causes of action against the Stephens defendants in appeal No. 2. We therefore further modify the order in appeal No. 2 accordingly.   It is well settled that a plaintiff's appearance in court as a result of the issuance of a criminal summons or appearance ticket is insufficient to support a claim of false arrest or false imprisonment (see Weiss, 26 AD3d at 856;  see also Santoro v. Town of Smithtown, 40 AD3d 736, 737;  Nadeau v. LaPointe, 272 A.D.2d 769, 770–771), and here “the record establishes that plaintiff was never arrested or held in actual custody by any law enforcement agency as a result of the charge ․ filed against [him]” (Weiss, 26 AD3d at 856 [internal quotation marks omitted];  see Du Chateau, 253 A.D.2d at 132).

Regarding appeal No. 1 and specifically the causes of action asserted against only the County defendants, we conclude that, because the court properly dismissed plaintiff's causes of action for false arrest, false imprisonment, and malicious prosecution against the County defendants in appeal No. 1, the cause of action for negligent training and/or instruction (sixth cause of action) was likewise properly dismissed against them (see Cotter v. Summit Sec. Servs., Inc., 14 AD3d 475, 476;  cf.  U.S. Underwriters Ins. Co. v Val–Blue Corp., 85 N.Y.2d 821, 823).   In any event, the County defendants established that Fratello did not “lack[ ] training in proper law enforcement techniques” (Barr v. County of Albany, 50 N.Y.2d 247, 258;  cf.  Martinetti v Town of New Hartford Police Dept., 307 A.D.2d 735, 737), and plaintiff failed to raise an issue of fact concerning a lack of training (see generally Panzera v. Johnny's II, 253 A.D.2d 864, 865).   The court also properly dismissed plaintiff's 42 USC § 1983 cause of action (seventh cause of action) against the County defendants, which was premised upon the false arrest, false imprisonment, and malicious prosecution claims (see generally Shopland v. County of Onondaga, 154 A.D.2d 941, 941).   With respect to the County defendants' cross appeal in appeal No. 1, we conclude that, although the court properly dismissed the complaint in its entirety against the County defendants, the court did not abuse its discretion in denying that part of their motion seeking sanctions against plaintiff for frivolous conduct (see generally Matter of Lodge Hotel, Inc. v Town of Erwin Planning Bd., 62 AD3d 1257, 1259;  Cammarata v. Cammarata, 61 AD3d 912, 913).

With respect to appeal No. 2 and specifically the causes of action asserted against the Stephens defendants only, we conclude that the court properly denied that part of their motion seeking to dismiss the libel cause of action (eighth cause of action).   Stephens's statement that plaintiff made “several threats toward[ ] [Stephens] and [her] residence,” which was contained in her supporting deposition that she provided to the police, “tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or [to] induce an evil opinion of him in the minds of right-thinking persons” (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, rearg. denied 42 N.Y.2d 1015, cert denied 434 U.S. 969).   Moreover, contrary to the contention of the Stephens defendants, proof of special damages is not required for libel on its face or libel per se (see Rinaldi, 42 N.Y.2d at 379;  Nichols v. Item Publs., 309 N.Y. 596, 600–601;  1 N.Y. PJI3d 3:23 at 224 [2012] ).

Finally, because several substantive causes of action against the Stephens defendants remain intact, we reject their contention that the court erred in refusing to dismiss the eleventh cause of action, seeking punitive damages against them (cf.  Sclar v Fayetteville–Manlius School Dist., 300 A.D.2d 1115, 1115, lv. denied 99 N.Y.2d 510;  see generally Mantione v. Crazy Jakes, Inc., 101 AD3d 1719, 1719–1720).

Frances E. Cafarell

Clerk of the Court