Peresluha v. City of New York

Decision Date27 December 1977
Citation400 N.Y.S.2d 818,60 A.D.2d 226
CourtNew York Supreme Court — Appellate Division
PartiesEdmund John PERESLUHA, II, Plaintiff-Appellant, v. CITY OF NEW YORK, Police Department of the City of New York and Gerald Prezio, Defendants-Respondents.

Richard P. Broder, Williston Park, of counsel (Ira H. Futterman, Kew Gardens, with him on the brief; Pearlman, Gottesman, Apat, Kupillas & Futterman, Kew Gardens, attys.), for plaintiff-appellant.

James P. Griffin, Long Island City, of counsel (Bernard Burstein, New York City, with him on the brief; W. Bernard Richland, Corp. Counsel, New York City), for defendants-respondents.

Before MURPHY, P. J., and LUPIANO, BIRNS and LANE, JJ.

LANE, Justice:

Two cars and a tractor-trailer were involved in an accident on the Cross-Bronx Expressway on March 21, 1969 at approximately 3:30 A.M. The driver of one of the cars immediately left the scene of the accident. Edmund John Peresluha alleged that he observed the accident and chased after the car which left the scene, overtook it, and recorded its license-plate number. He passed the vehicle and went to telephone the information to the police. The driver of the car he was pursuing followed him. The driver of the allegedly pursued car, Gerald Prezio, interrupted Peresluha's telephone call and told Peresluha that he was a police officer. Peresluha finally did complete the phone call to the police.

Prezio claimed that it was he who observed Peresluha leaving the scene of the accident. He therefore arrested Peresluha and, in a criminal complaint, charged Peresluha with leaving the scene of an accident without reporting personal injury, and with reckless driving. Peresluha was arraigned on these charges on March 21, 1969. The criminal action was dismissed on motion of the Assistant District Attorney on April 15, 1970 after numerous adjournments were granted because of the nonappearance of Prezio.

On June 10, 1970, Peresluha filed a notice of claim against the City of New York and instituted this lawsuit against the City of New York, the Police Department of the City of New York, and Gerald Prezio, by service of a summons and complaint on October 26, 1970, alleging, in essence, causes of action for false arrest and malicious prosecution based on the March 21, 1969 events and the subsequent dismissal of the charges against Peresluha.

After Peresluha filed his notice of claim, the owner of the tractor-trailer and the driver of the tractor-trailer involved in the March 21, 1969 incident instituted an independent action (hereinafter referred to as the "tractor-trailer action") to recover for personal injury and property damage which they incurred. They named as defendants Edmund John Peresluha, Gerald Prezio, and Thomas Robinson (the driver of the other car involved in the accident). A jury trial in the tractor-trailer action resulted in a unanimous general verdict finding that only Edmund John Peresluha was guilty of negligence.

The City of New York, on behalf of all named defendants, moved in the action at bar to dismiss the complaint on the grounds of the bar of collateral estoppel worked by the tractor-trailer action and the failure of Peresluha to comply with the time limitations contained in General Municipal Law, §§ 50-e and 50-i.

Special Term granted the motion. We hold that the cause of action for false arrest should have been dismissed; the cause of action for malicious prosecution should not.

The false arrest claim arose on March 21, 1969, the date of Peresluha's arrest and arraignment (Molyneux v. County of Nassau, 22 A.D.2d 954, 256 N.Y.S.2d 123, aff'd 16 N.Y.2d 663, 261 N.Y.S.2d 294, 209 N.E.2d 286; Allee v. City of New York, 42 A.D.2d 899, 347 N.Y.S.2d 708). The notice of claim filed by Peresluha on June 10, 1970 more than 90 days after March 21, 1969 was therefore untimely filed (General Municipal Law, § 50-e). The action based thereon, commenced on October 26, 1970 more than one year and 90 days after March 21, 1969 was likewise untimely brought (General Municipal Law, § 50-i). Special Term therefore properly dismissed the cause of action in the complaint alleging false arrest.

However, Special Term found that the cause of action for malicious prosecution, though timely brought, * must nonetheless be dismissed on the basis of collateral estoppel worked by the finding of negligence against Peresluha alone in the separate action brought by the driver and owner of the tractor-trailer. It is with this collateral estoppel aspect of the determination of Special Term that we disagree.

The elements of the tort of malicious prosecution are fourfold; they are:

(1) (T)he 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 N. Y., 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 94, 335 N.E.2d 310, 314.)

The essential elements of an action for negligence require "first, the existence of a duty owing by the defendant to the plaintiff; second, defendant's failure to discharge that duty; third, injury to plaintiff proximately resulting from such failure" (41 N.Y.Jur., Negligence, § 7, p. 13).

The facts necessary for a finding of negligence are not the same facts required for a finding of malicious prosecution. There are absent, therefore, the two necessary requisites for invoking the doctrine of collateral estoppel; namely, identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and a full opportunity to contest the decision now claimed to be controlling (Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 959, 246 N.E.2d 725, 728).

In any event, we cannot say that the record presently before the Court indicates, for example, that the element of probable cause essential to prove a cause of action for malicious prosecution was of necessity or in fact proven in the tractor-trailer action. The complaint lodged against Peresluha charged him with the misdemeanors of reckless driving (Vehicle and Traffic Law, § 1190) and leaving the scene of an accident without reporting (Vehic and Traffic Law, § 600). The latter misdemeanor requires knowledge on the part of the offender that damage has been caused to either a person or property.

In 1969, the date of this incident, a police officer could effectuate an arrest without a warrant if he had, inter alia, "reasonable grounds for believing that an offense is being committed in his presence" (Code of Criminal Procedure, § 177). An arrest for a violation of Vehicle...

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    ...201 A.D.2d 7, 613 N.Y.S.2d 937, 939 (1994); McElveen v. Police Dep't, 70 A.D.2d 858, 418 N.Y.S.2d 49 (1979); Peresluha v. New York, 60 A.D.2d 226, 400 N.Y.S.2d 818 (1977); accord Malone v. McHugh, 797 F.Supp. 154, 155-56 (E.D.N.Y.1991); Leung v. New York, 216 A.D.2d 10, 627 N.Y.S.2d 369 (19......
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