DeFilippo v. County of Nassau
| Decision Date | 04 May 1992 |
| Citation | 183 A.D.2d 695,583 N.Y.S.2d 283 |
| Parties | Salvatore DeFILIPPO, Plaintiff-Respondent, v. COUNTY OF NASSAU, Defendant-Respondent, Long Island Trust Company, N.A., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City (John D. Leone, of counsel), for appellant.
Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis, Nicholas Papain, and Kathleen Gill Miller, of counsel), for plaintiff-respondent.
Before SULLIVAN, J.P., and BALLETTA, EIBER and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for malicious prosecution and false imprisonment the defendant Long Island Trust Company, N.A., appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated March 27, 1990, which denied its motion for summary judgment dismissing the complaint and cross claim insofar as they are asserted against it.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint and cross claim are dismissed insofar as they are asserted against the defendant Long Island Trust Company, N.A., and the action against the remaining defendant is severed.
On January 25, 1983, at approximately 9:20 A.M., the defendant Long Island Trust Company, N.A., in Hicksville was held up by an armed robber. Two bank employees were able to give the authorities a description of the perpetrator. Thereafter, they identified the plaintiff from a photographic array consisting of eight pictures, and testified before the Nassau County Grand Jury. One of the bank employees, as well as a police officer, subsequently identified the plaintiff from a lineup. Following the plaintiff's arrest, a third bank employee also came forward and identified the plaintiff from a photograph of the original lineup.
On May 2, 1983, the plaintiff was indicted by a Grand Jury on four counts of robbery, criminal use of a firearm, and menacing. After the plaintiff had served 13 months in jail, the actual perpetrator confessed, and the plaintiff was released on or about June 1, 1984.
The plaintiff thereafter commenced this action to recover damages for false imprisonment and malicious prosecution. The bank subsequently moved for summary judgment, contending that the actions of its employees in reporting the robbery and cooperating in the police investigation were insufficient to support these tort claims. The Supreme Court denied the bank's motion for summary judgment, and we now reverse.
The essential elements of an action to recover damages for malicious prosecution are (1) the initiation of an action, (2) its termination favorably to the plaintiff, (3) lack of probable cause, and (4) malice ( Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248; Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, ...
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