Baker v. City of New York

• Decision Date: 30 October 2007
• Docket Number: 2006-02766.,2006-07218.
• Citation: 2007 NY Slip Op 08171,44 A.D.3d 977,845 N.Y.S.2d 799
• Court: New York Supreme Court — Appellate Division
• Parties: LEROY BAKER, Respondent, v. CITY OF NEW YORK et al., Appellants, et al., Defendants.

44 A.D.3d 977

845 N.Y.S.2d 799

2007 NY Slip Op 08171

LEROY BAKER, Respondent, v. CITY OF NEW YORK et al., Appellants, et al., Defendants.

2006-02766.

2006-07218.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided October 30, 2007.

In an action, inter alia, to recover damages for malicious prosecution and abuse of process arising from the arrest of the plaintiff on two separate charges, the defendant Dan Berman appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Queens County (Elliot, J.), dated January 27, 2006, as denied that branch of his motion which was for summary judgment dismissing the cause of action alleging malicious prosecution insofar as asserted against him, and (2) so much of an order of the same court dated June 15, 2006, as, upon reargument, adhered to the original determination, and the defendant City of New York separately appeals, as limited by its brief, from so much of the order dated January 27, 2006, as denied that branch of its motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging malicious prosecution insofar as asserted against it.

Ordered that the appeal by the defendant Dan Berman from so much of the order dated January 27, 2006, as denied that branch of his motion which was for summary judgment dismissing the cause of action alleging malicious prosecution insofar as asserted against him is dismissed, as that portion of the order was superseded by the order dated June 15, 2006, made upon reargument; and it is further,

Ordered that the order dated January 27, 2006 is reversed insofar as appealed from by the defendant City of New York, on the law, and that branch of the motion of the defendant City of New York which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging malicious prosecution insofar as asserted against it is granted; and it is further,

Ordered that the order dated June 15, 2006 is reversed insofar as appealed from, on the law, upon reargument, so much of the order dated January 27, 2006, as denied that branch of the motion of the defendant Dan Berman which was for summary judgment dismissing the cause of action alleging malicious prosecution insofar as asserted against him is vacated, and that branch of the motion is granted; and it is further,

Ordered that one bill of costs is awarded to the appellants.

The plaintiff was employed by the defendant North Shore Towers Apartments Incorporated (hereinafter North Shore). The defendant Dan Berman lived in an apartment at North Shore. In April 2001 the plaintiff performed maintenance work in Berman's apartment on two separate occasions, eight days apart. A few hours after the plaintiff left the Berman apartment on the second occasion, Berman noticed that two watches and a pair of sun glasses were missing from a dresser drawer in his bedroom. Berman reported the loss of the watches and sun glasses to the security director of North Shore, who in turn contacted the police. The police investigated the report and Berman signed a complaint alleging that the plaintiff committed petit larceny. After the police investigation and their consultation with the Office of the District Attorney, Queens County, the plaintiff was arrested on May 15, 2001, charged with petit larceny, and given an appearance ticket.

Some six days after his arrest on the petit larceny charge, the plaintiff left a message on Berman's telephone answering machine. The message was to the effect that Berman had the plaintiff arrested and that the plaintiff was going to sue Berman and cause Berman "double" the pain the plaintiff had experienced as a result of his arrest. Berman again contacted the police, a detective listened to the tape, Berman signed a complaint, and the plaintiff was arrested on May 30, 2001 and charged with aggravated harassment.

On April 12, 2002 the two charges against the plaintiff were dismissed on speedy trial grounds pursuant to CPL 30.30. The plaintiff commenced this action, alleging, inter alia, malicious prosecution and abuse of process. Berman and North Shore moved for summary judgment and the City moved for dismissal of the complaint pursuant to CPLR 3211 (a) (7). The Supreme Court awarded summary judgment to North Shore dismissing all causes of action insofar as asserted against it. The court awarded summary judgment to Berman dismissing the abuse of process cause of action and dismissed that cause of action insofar as asserted against the City. The Supreme Court found that there was a triable issue of fact with respect to whether there was probable cause for the plaintiff's arrest as to both charges, and therefore denied that branch of Berman's motion which was for summary judgment dismissing the cause of action to recover damages for malicious prosecution and denied that branch of the City's motion which was to dismiss that cause of action. The City and Berman separately appeal.

"In order to recover for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable...