Batten v. City of N.Y.

• Decision Date: 25 November 2015
• Citation: 133 A.D.3d 803,20 N.Y.S.3d 160
• Parties: Floyd BATTEN, et al., respondents, v. CITY OF NEW YORK, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 803
20 N.Y.S.3d 160

Floyd BATTEN, et al., respondents,
v.
CITY OF NEW YORK, et al., appellants, et al., defendant.

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

Nov. 25, 2015.

20 N.Y.S.3d 161

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Julie Steiner, Margaret King, and Bradley M. Wanner of counsel), for appellants.

The Coffinas Law Firm, PLLC, New City, N.Y. (George G. Coffinas and Lawrence B. Goodman of counsel), for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

133 A.D.3d 803

In an action, inter alia, to recover damages for malicious prosecution, etc., the defendants City of New York, John D'Elia, Nicholas Krosofsky, Paul Bostic, and Patty Varrone appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated June 21, 2013, as denied those branches of their motion which were for summary judgment dismissing the cause of action alleging malicious prosecution insofar as asserted against them and dismissing the claim for punitive damages insofar as asserted against John D'Elia, Nicholas Krosofsky, Paul Bostic, and Patty Varrone.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants City of New York, John D'Elia, Nicholas Krosofsky, Paul Bostic, and Patty Varrone which were for summary judgment dismissing the cause of action alleging malicious prosecution insofar as asserted against them and dismissing the claim for punitive damages insofar as asserted against John D'Elia,

133 A.D.3d 804

Nicholas Krosofsky, Paul Bostic, and Patty Varrone are granted.

20 N.Y.S.3d 162

On November 4, 1983, Igor Khutorsky was shot and killed during the course of a robbery of his furniture store in Brooklyn. Two perpetrators were involved in this crime. The plaintiff Floyd Batten (hereinafter Batten) was arrested on November 7, 1983, based on the eyewitness identification of him by a store employee as the perpetrator who shot Khutorsky. The second perpetrator was never identified.

A grand jury indicted Batten and he was convicted by a jury of murder in the second degree, and sentenced to a term of 20 years to life in prison. His judgment of conviction was affirmed by this Court (see People v. Batten, 141 A.D.2d 746, 529 N.Y.S.2d 843 ) and his application for leave to appeal to the Court of Appeals was denied (see People v. Batten, 72 N.Y.2d 915, 532 N.Y.S.2d 849, 529 N.E.2d 179 ).

While he was incarcerated, Batten made several requests pursuant to the Freedom of Information Law (hereinafter FOIL) to the Kings County District Attorney's office. In response to his FOIL requests, Batten received certain police reports that he alleged he and his attorney had never seen. One of the reports contained information relating to a telephone call from a confidential informant, received after the presentment of the case to the grand jury. The confidential informant stated that an employee at Khutorsky's furniture store approached his girlfriend and asked if she knew anyone who could rob the store for him on a Thursday or a Friday. Another report concerned the investigation of an employee of Khutorsky's store who fit the general description provided by the confidential informant.

Thereafter, Batten filed a motion pursuant to CPL 440.10, which was denied by the Supreme Court in an order dated March 4, 1994. The defendant's application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from that order was denied on May 20, 1994.

Subsequently, Batten sought a writ of habeas corpus by filing a petition in the United States District Court for the Eastern District of New York. This petition was granted in August 2003 and Batten was released from custody. Thereafter, Batten, and his wife suing derivatively, commenced this action against the City of New York and various retired police officers and detectives.

The defendants City of New York, John D'Elia, Nicholas Krosofsky, Paul Bostic, and Patty Varrone (hereinafter collectively the appellants) moved pursuant to CPLR 3211 to dismiss the complaint and for summary judgment dismissing the

133 A.D.3d 805

complaint insofar as asserted against them. In the order appealed from, the Supreme Court, inter alia, denied those branches of the appellants' motion which were for summary judgment dismissing the cause of action alleging malicious prosecution insofar as asserted against them and dismissing the claim for punitive damages insofar as asserted against D'Elia, Krosofsky, Bostic, and Varrone. The appellants appeal from so much of the order as denied those branches of their motion. We reverse the order insofar as appealed from.

In an action alleging malicious prosecution, the plaintiff must establish "(1) the initiation of a proceeding, (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 ; see Williams v. City of New York, 114 A.D.3d 852, 853, 981 N.Y.S.2d 114 ; Washington–Herrera v. Town of Greenburgh, 101 A.D.3d 986, 988, 956 N.Y.S.2d 487 ; Gagliano v. County of Nassau, 31 A.D.3d 375, 376, 817 N.Y.S.2d 651 ). "Probable...