Russo v. State of N. Y.

• Decision Date: 09 February 1982
• Docket Number: D,Nos. 161,309,s. 161
• Citation: 672 F.2d 1014
• Parties: Anthony RUSSO and Joann Russo, on behalf of themselves and their infant children Rose Russo and Antonina Russo, Plaintiffs-Appellees, v. STATE OF NEW YORK, The State of New York Police Department, Lawrence Cichocki, Delbert George, Orange Motel Corporation, Tina Horton, Howard Johnsons Company and Big V Supermarkets, Inc., Defendants, Lawrence Cichocki, Defendant-Appellant. ockets 81-7244, 81-7442.
• Court: U.S. Court of Appeals — Second Circuit

Page 1014

672 F.2d 1014

Anthony RUSSO and Joann Russo, on behalf of themselves and

their infant children Rose Russo and Antonina

Russo, Plaintiffs-Appellees, v. STATE OF NEW YORK, The State of New York Police Department, Lawrence Cichocki, Delbert George, Orange Motel

Corporation, Tina Horton, Howard

Johnsons Company and Big V

Supermarkets, Inc., Defendants,

Lawrence Cichocki, Defendant-Appellant.

Nos. 161, 309, Dockets 81-7244, 81-7442.

United States Court of Appeals, Second Circuit.

Argued Oct. 5, 1981.

Decided Feb. 9, 1982.

Allen M. Kranz, Garden City, N. Y. (DeMartin, Kranz & Davis, Albertson, N. Y., of counsel), for defendant-appellant.

Lawrence R. Posner, Newburgh, N. Y., for plaintiffs-appellees.

Before FEINBERG, Chief Judge, and TIMBERS and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Lawrence Cichocki, a former New York State Trooper, appeals from a judgment entered after a jury trial in the United States District Court, 515 F.Supp. 470, for the Southern District of New York, Abraham D. Sofaer, Judge, awarding Anthony Russo $25,000 compensatory and $5,000 punitive damages upon a finding that Cichocki was guilty of malicious prosecution against Russo. Cichocki also appeals from a second judgment of the district court awarding Russo $10,000 counsel fees pursuant to 42 U.S.C. § 1988 as a prevailing party in a civil rights action. We reverse, vacate both judgments and remand for a new trial on the malicious prosecution claim.

BACKGROUND

The facts relevant to this appeal constitute one episode in a series of events which gave rise to the suit below. The original complaint filed on behalf of Russo and his family alleged that the State of New York, the State of New York Police Department, the Orange Motel Corporation, the Howard Johnson's Company, Big V Supermarkets, Tina Horton, Detective Delbert George and Officer Lawrence Cichocki had violated the Russos' civil rights, and committed the torts of false arrest, false imprisonment, malicious prosecution, intentional infliction of On May 6, 1977, Anthony Russo discovered that the 1971 Chevrolet Vega automobile which he and his family had borrowed from his brother-in-law Robert Lostraglio was stolen. Unable to contact Lostraglio, Russo contacted his brother-in-law's insurance company. Identifying himself as Lostraglio, Russo informed the company of the theft and was told that he would have to report the car stolen to the police before the insurance company would accept a claim for processing. Still posing as Lostraglio, Russo reported the theft to the Orange County Sheriffs Department which, in turn, contacted the Walkill Police Department. Officer Kopp of the Walkill Police was assigned to investigate the case. After speaking with appellee over the telephone, Kopp traveled to Russo's residence where Russo, posing as Lostraglio, related the circumstances surrounding his discovery of the theft and gave the officer Lostraglio's registration for the vehicle.

                emotional and mental distress, abuse of process and prima facie tort under New York law.  1  Only the state tort claims of malicious prosecution and intentional infliction of emotional and mental distress, and the federal civil rights claim against appellant Cichocki and against Detective George were submitted to the jury.  The sole ground of recovery was the jury finding that Cichocki was guilty of malicious prosecution against Anthony Russo.  The issues presented on appeal relate solely to Cichocki's challenges to the judgment against him on the malicious prosecution claim and to the award of counsel fees.  We limit our recitation of facts accordingly
                

That evening, New York State Trooper Lawrence Cichocki received word that a 1971 Chevrolet Vega registered to a Robert Lostraglio had been recovered in Ellenville, New York. Trooper Cichocki then went to Robert Lostraglio's residence, where Lostraglio informed him that he had no knowledge of the car theft since the vehicle was being used by Anthony Russo. Lostraglio concluded that it must have been Russo who had reported the car stolen. At Cichocki's request, Lostraglio accompanied him to the police barracks and gave a deposition which reiterated that he had neither reported the car stolen nor given anyone permission to do so.

Upon completion of Lostraglio's deposition, Cichocki contacted Officer Kopp, who repeated his earlier conversation with an individual who had identified himself as Robert Lostraglio. Kopp also informed Trooper Cichocki of the location of the residence where he had met "Robert Lostraglio" and described "Lostraglio's" physical characteristics. Based upon his prior contact with Anthony Russo and his knowledge of Russo's address, Cichocki suspected that Russo was impersonating Robert Lostraglio. In order to confirm his suspicion, Cichocki contacted Lostraglio's insurance company and was told that a Mr. Lostraglio has apprised it of the theft, and that it had instructed him to contact the police.

Cichocki concluded that Russo had impersonated his brother-in-law in order to defraud the insurance company. He believed that because the insurance policy was in the name of Lostraglio and did not name Russo as an operator, the insurance company would contend that Lostraglio had breached the policy by allowing Russo and his family to operate the Vega and, therefore, Russo had posed as Lostraglio to prevent the company from discovering the policy breach.

Armed with the depositions of Lostraglio and Officer Kopp, Cichocki delivered an information complaint to Judge Sawyer of the Walkill Town Court which charged Russo with criminal impersonation, N.Y. Penal Law § 190.25(1) (McKinney 1975). ² Judge On March 29, 1979, Russo filed a complaint on behalf of himself and his family. On April 15, 1981, the jury returned a verdict in favor of Russo on his claim of malicious prosecution against Cichocki and the court awarded compensatory and punitive damages and counsel fees. Cichocki appeals from these awards.

Sawyer issued an arrest warrant on May 7, 1977, and on May 17, 1977, Russo was arrested. On August 23, 1978, the charge was dismissed.

DISCUSSION

We find no merit in Cichocki's challenges concerning the admission of evidence, the trial court's demeanor and conduct of the trial, the jury charge and the jury award. Therefore, we dismiss these claims without discussion. In addition, we disagree with his arguments regarding the probable cause element of malicious prosecution. However, because we agree that Russo presented insufficient evidence to prove that the underlying criminal proceeding was terminated in his favor, and that the district court was without discretion to award counsel fees to Russo under 42 U.S.C. § 1988, we vacate the judgment and remand the case for a new trial on the malicious prosecution charge.

I. Malicious Prosecution

To recover on a claim of malicious prosecution under New York law, a plaintiff must establish four elements:

that (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice.

Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977); Broughton v. New York, 37 N.Y.2d 451, 457, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 94, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). On appeal, Cichocki raises challenges concerning the elements of probable cause and favorable termination.

A. Probable Cause

Appellant asserts that the issuance of an arrest warrant by Judge Sawyer raises a presumption that Cichocki acted with probable cause, and that the failure of the trial court to instruct the jury as to this presumption and of Russo to present rebuttal evidence are fundamental errors requiring reversal. Appellant failed to object to the jury charge at trial and normally would be precluded from challenging it on appeal. Fed.R.Civ.P. 51; Spano v. N.V. Koninklijke Rotterdamsche Lloyd, 472 F.2d 33, 34 (2d Cir. 1973). Had appellant made a timely objection to the jury charge, his argument on this point would still fail. It is true that under New York law, where a warrant has been issued following an indictment by a grand jury, a presumption arises that the defendant acted with probable cause. Broughton v. New York, 37 N.Y.2d at 456, 335 N.E.2d at 313, 373 N.Y.S.2d at 92. That rule is inapplicable, however, where as here the warrant is issued by a judge on the basis of the sworn accusations of the defendant in the malicious prosecution action. Pandolfo v. Brodell, 3 A.D.2d 853, 161 N.Y.S.2d 494 (2d Dep't 1957); see Colegrove v. City of Corning, 54 A.D.2d 1093, 388 N.Y.S.2d 964 (4th Dep't 1976); Watson v. City of New York, 57 Misc.2d 542, 293 N.Y.S.2d 348 (Civ.Ct.1968). The fact that Cichocki is a police officer who presented depositions in addition to his information complaint does not give him the benefit of the presumption that there was probable cause for the prosecution. Therefore, the district court did not err in failing to give the instruction now proposed by appellant.

Cichocki next argues that the evidence established as a matter of law that it was reasonable for him to conclude that Russo was attempting to defraud the insurance company by impersonating Lostraglio and that this reasonable belief is all that is necessary to show that he acted with probable cause. See Munoz v. City of New York, 18 N.Y.2d 6, 218 N.E.2d 527, 271 N.Y.S.2d 645 (1966). Cichocki testified that at the time that he filed the complaint, he knew that Russo had reported the car stolen and had contacted the insurance company using the name of his brother-in-law.

We do not believe that the only reasonable inference that can be drawn from these facts is that Russo used the name of his brother-in-law to defraud the insurance company. Therefore, the...