Smith v. Livingston County

• Decision Date: 06 April 1979
• Docket Number: No. 1,1
• Parties: Robert J. SMITH, Jr. and Angelina Smith, Appellants, v. COUNTY OF LIVINGSTON, Defendant, Village of Avon, et al., Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 130

416 N.Y.S.2d 130

69 A.D.2d 993

Robert J. SMITH, Jr. and Angelina Smith, Appellants, v. COUNTY OF LIVINGSTON, Defendant,

Village of Avon, et al., Respondents. Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

April 6, 1979.

Joan de R. O'Byrne, Rochester, for appellants in appeals 1 & 2 sub by Joan de R. O'Byrne, Rochester.

Winchell, Connors & Corcoran, Rochester, for respondent Co. of Livingston in appeal 2 sub by George G. Mackey, Rochester.

Wickes-Wiedman & Jordan, Rochester, for respondents Village of Avon, Piampiano, Hayes and McFee in appeal 1 sub by Charles A. Hall, Rochester.

Before SIMONS, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

MEMORANDUM:

The plaintiffs appeal from orders dismissing their complaints which alleged false imprisonment, malicious prosecution, prima facie tort, conspiracy and deprivation of constitutional rights.

Plaintiffs were indicted by a Livingston County Grand Jury accusing them of endangering the welfare of a child in violation of section 260.10 (subd. 1) of the Penal Law. The indictment was the aftermath of a birthday and slumber party sponsored by plaintiffs on behalf of their young daughter. It charged that seven girls under age 17 were served beer while at plaintiffs' residence. The record indicates that any consumption of beer by the girls was without the permission, consent or knowledge of the plaintiffs. A motion on behalf of the plaintiffs to dismiss the indictment was granted in a memorandum decision declaring the indictment incurably defective.

The Court of Appeals has spelled out the elements of a cause of action in false imprisonment and one for malicious prosecution (Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310). Plaintiffs were arrested pursuant to warrants issued to the Livingston County Sheriff which directed the Sheriff to bring them before the County Court. An unlawful detention gives rise to a cause of action for false imprisonment, except where the confinement was by arrest under a valid process issued by a court having jurisdiction (Broughton v. State of New York, supra). The Smith indictment was dismissed as being defective within CPL 210.25(1) because it failed to contain a plain or concise factual statement asserting facts supporting every element of the offense charged (CPL 200.50(7)). Such a defect is jurisdictional (People v. Russo, 57 A.D.2d 578, 393 N.Y.S.2d 435) and cannot be cured by amendment (CPL 200.70(2)(b)). This is not the type of a defect, however, which mandates a finding that the court lacked jurisdiction within the meaning of the tort of false imprisonment. The court had jurisdiction of the person and charge (Casler v. State of New York, 33 A.D.2d 305, 307 N.Y.S.2d 695). Since there was an alleged unlawful arrest effected by a warrant, the appropriate form of action was for malicious prosecution not false imprisonment (Broughton v. State of New York, supra, 37 N.Y.2d pp. 456-58, 373 N.Y.S.2d pp. 92-94, 335 N.E.2d pp. 313-314).

The elements 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, supra, p. 457, 373 N.Y.S.2d p. 93, 335 N.E.2d p. 314). The pleading for malicious prosecution must contain a plain and concise statement of the material facts upon which the party relies (Berger v. American Nat. Fire Ins. Co., 279 App.Div. 335, 109 N.Y.S.2d 696); general allegations are insufficient. Where there is an indictment, there is a presumption of probable cause. The complaint must therefore allege specific facts to overcome the effect of the indictment. Plaintiffs' complaint is couched in general terms, does not overcome the presumption, and does not set forth facts to establish malice. The cause of action for malicious prosecution was therefore, properly dismissed (Ashlaw v. Racquette Riv. Paper Co., 1 A.D.2d 69, 147 N.Y.S.2d 148, affd. 2 N.Y.2d 744, 157 N.Y.S.2d 379, 138 N.E.2d 739).

The key to prima facie tort is the infliction of intentional...