Pomento v. City of Rome

• Decision Date: 27 September 1996
• Citation: 647 N.Y.S.2d 604,231 A.D.2d 875
• Parties: Patrick A. POMENTO, Appellant, v. CITY OF ROME, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 604

647 N.Y.S.2d 604

231 A.D.2d 875

Patrick A. POMENTO, Appellant, v. CITY OF ROME, Respondent.

Supreme Court, Appellate Division Fourth Department.

Sept. 27, 1996.

Mark A. Wolber, Utica, for appellant.

Corporation Counsel's Office, Rome (Gregory J. Amoroso, for respondent).

Before GREEN, J.P., and PINE, FALLON, DOERR and BOEHM, JJ.

MEMORANDUM.

On February 27, 1992, at about 2:40 A.M., plaintiff entered a restaurant in Rome. According to Susan Sterling, a waitress at the restaurant, he appeared to be intoxicated. Plaintiff became loud and boisterous and Sterling finally called the police to request that they remove plaintiff from the premises. Upon their arrival, Officers Simons and Iacobissi observed that plaintiff had glassy eyes, slurred speech, and impaired motor skills, and that his breath had an alcoholic odor. In their opinion, plaintiff was intoxicated. Sterling told Officer Simons that she had earlier observed plaintiff leave the restaurant, and that, when she looked out of the restaurant window a few minutes later, she saw plaintiff behind the wheel of a truck, which was stopped at an intersection and resting against a stop sign. She then saw plaintiff get out of the truck and return to the restaurant. Upon examining the truck, the officers observed that the passenger door was damaged; they also observed that the stop sign was slightly angled. After obtaining Sterling's statement, Officer Simons administered an alco-sensor test to plaintiff, which indicated positive for alcohol. Plaintiff refused to submit to any further field sobriety tests and Officer Simons placed him under arrest for driving while intoxicated and failure to use a designated lane. Following a trial, Rome City Court dismissed the charges on the ground that the evidence against plaintiff was legally insufficient. Plaintiff then commenced this action for malicious prosecution, alleging that defendant's police officers acted with malice and without probable cause to arrest him. Supreme Court granted defendant's motion for summary judgment dismissing the complaint, and plaintiff appeals. We affirm.

"The elements of the tort of malicious prosecution are: (1) the 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 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, 46 L.Ed.2d 257; see, Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248, rearg. denied 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232). Probable cause in the context of malicious prosecution is defined as the existence of facts and circumstances leading a reasonably prudent person to believe plaintiff guilty of a crime (Colon v. City of New York, supra, at 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248). "[I]nformation provided by an identified citizen accusing another of a crime is legally sufficient to provide the police with probable cause to arrest" (People v. Banks, 151 A.D.2d 491, 542 N.Y.S.2d 280, lv denied 74 N.Y.2d 805, 546 N.Y.S.2d 563, 545 N.E.2d 877). If the facts are undisputed, the existence of probable cause may be resolved as a matter of law (see, ...