Groat v. Town Bd. of Town of Glenville

• Decision Date: 03 April 1980
• Citation: 426 N.Y.S.2d 339,73 A.D.2d 426
• Parties: Douglas F. GROAT et al., Appellants, v. TOWN BOARD OF the TOWN OF GLENVILLE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 339

426 N.Y.S.2d 339

73 A.D.2d 426

Douglas F. GROAT et al., Appellants, v. TOWN BOARD OF the TOWN OF GLENVILLE et al., Respondents.

Supreme Court, Appellate Division, Third Department.

April 3, 1980.

Gordon, Siegel, Mullaney & Gordon, Schenectady (Arnold M. Gordon, Schenectady, of counsel), for appellants.

Gibbons & Burke, Scotia (Kenneth T. Gibbons, Scotia, of counsel), for respondents.

Before GREENBLOTT, J. P., and SWEENEY, KANE, STALEY and CASEY, JJ.

STALEY, Justice.

Plaintiff Douglas Groat, employed by the Town of Glenville as a police officer, on May 4, 1976 was charged with nine charges, subsequently consolidated into three charges, of misconduct by the chief of police. On June 29, 1976, six more charges of misconduct were preferred against him by the town board. After a hearing and trial of the charges, the hearing officer died. A successor hearing officer was appointed by the board and, based upon the transcript of the record on the hearing, he reported to the board, finding plaintiff not guilty of all of the charges except one of the charges preferred by the town board on June 29, 1976. The town board rejected the recommendations of the hearing officer and found plaintiff guilty of eight of the nine charges. On August 16, 1977, he was dismissed from the police force by the town board.

On August 30, 1977, plaintiff Douglas Groat commenced a proceeding pursuant to CPLR article 78 to review the determination of the town board. Special Term reversed the determination of the board and ordered him restored to the payroll, effective August 16, 1977. On appeal by the town board, this court affirmed (Matter of Groat v. Town Bd. of Town of Glenville, 63 A.D.2d 1043, 405 N.Y.S.2d 796).

Plaintiffs then commenced this action, alleging three causes of action: malicious prosecution, prima facie tort and a derivative action on behalf of his wife, Madeline Groat.

The answer of the respondents alleged as affirmative defenses:

That the actions were not brought within the time provided by law and the plaintiffs have failed to comply with the conditions precedent to the bringing of said actions.

That as to the First, Second and Third Causes of Action stated in said complaint, the allegations therein fail to state facts sufficient to constitute causes of action.

Plaintiffs then moved pursuant to CPLR 3211 for an order dismissing defendants' affirmative defenses. Special Term treated the motion as a motion for summary judgment, pursuant to CPLR 3211 (subd. (c)) and 3212 (subd. (b)), and dismissed the three causes of action alleged in the complaint with leave to plaintiffs to serve an amended complaint as to the second and third causes of action. The cause of action for malicious prosecution was dismissed on the ground that disciplinary proceedings involving an administrative hearing may not form the basis for an action for malicious prosecution since they are not judicial proceedings before a court or judge. The issues presented are whether the first cause of action fails to state a cause of action and whether plaintiffs complied with the notice provisions of section 50-e of the General Municipal Law.

A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure. An action for malicious prosecution is usually based upon an arrest in criminal proceedings, although it may be founded upon a civil action when commenced simply to harass and oppress the defendant (Burt v. Smith, 181 N.Y. 1, 5, 73 N.E. 495, 496).

Defendants urge that disciplinary proceedings initiated against appellant Douglas Groat pursuant to section 75 of the Civil Service Law and section 155 of the Town Law are administrative proceedings and not judicial proceedings, and are, therefore, not sufficient to support an action for malicious prosecution.

In the case of Fulton v. Ingalls, 165 App.Div. 323, 151 N.Y.S. 130, affd. 214 N.Y. 665, 108 N.E. 1094, charges had been filed against a police officer for allegedly committing a felony. After he was exonerated, the police officer brought suit in a blanket complaint, alleging causes of action for both libel and malicious prosecution. The Appellate Division sustained the complaint, reasoning that if the disciplinary proceeding was not deemed "judicial", no absolute privilege could attach to bar plaintiff's action for libel; if, however, the proceeding was to be deemed a judicial one, it could then form the basis for malicious prosecution. The court stated (165 App.Div. 323, 326, 151 N.Y.S. 130, 132) that it was "inclined to think" that the proceeding before the police commissioner was a judicial proceeding and that "(i)f the proceeding in which (plaintiff) was tried was a judicial one, having been instituted maliciously and without probable cause, and plaintiff's personal and property rights having been interfered with pending the...