Zetes v. Stephens

• Decision Date: 05 July 2013
• Parties: James P. ZETES, Plaintiff–Appellant–Respondent, v. Kelly A. STEPHENS and Lucas A. Stephens, Defendants, County of Niagara, James Voutour, in His Capacity as Niagara County Sheriff, and Guy Fratello, also known as G. Fratello, Individually and in His Capacity as Niagara County Deputy Sheriff, Defendants–Respondents–Appellants. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 1014
969 N.Y.S.2d 298
2013 N.Y. Slip Op. 05102

James P. ZETES, Plaintiff–Appellant–Respondent,
v.
Kelly A. STEPHENS and Lucas A. Stephens, Defendants,
County of Niagara, James Voutour, in His Capacity as Niagara County Sheriff, and Guy Fratello, also known as G. Fratello, Individually and in His Capacity as Niagara County Deputy Sheriff, Defendants–Respondents–Appellants. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

July 5, 2013.

[969 N.Y.S.2d 300]

John J. Delmonte, Niagara Falls, for Plaintiff–Appellant–Respondent.

Webster Szanyi LLP, Buffalo (Adam P. Hatch of Counsel), for Defendants–Respondents–Appellants.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.

MEMORANDUM:

[108 A.D.3d 1014]Plaintiff commenced this action seeking to recover damages for, inter alia, false arrest, false imprisonment, and malicious prosecution. In appeal No. 1, plaintiff appeals and defendants County of Niagara, James Voutour, in his capacity as Niagara County Sheriff, and Guy Fratello, also known as G. Fratello, individually and in his capacity as Niagara County Deputy Sheriff (collectively, County defendants), cross-appeal from an order granting that part of the County defendants' motion for summary judgment dismissing the complaint against them, but denying that part of their motion for sanctions based upon plaintiff's alleged frivolous conduct. In appeal No. 2, defendants Kelly A. Stephens and Lucas A. Stephens (collectively,[108 A.D.3d 1015]Stephens defendants) appeal from an order denying their motion for summary judgment dismissing the complaint against them.

We note at the outset that, with respect to appeal No. 1, plaintiff has abandoned his second cause of action for abuse of process and his fifth cause of action for negligence against the County defendants ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745). Further, with respect to appeal No. 2, plaintiff concedes that his second cause of action and so much of his tenth cause of action that alleges that the Stephens defendants tortiously interfered with “present contractual relations” are not viable. We therefore modify the order in appeal No. 2 accordingly.

Regarding the remaining causes of action, we conclude that Supreme Court properly granted that part of the County defendants' motion for summary judgment dismissing the malicious prosecution cause of action (first cause of action) against them in appeal No. 1, and properly denied that part of the Stephens defendants' motion seeking the same relief in appeal No. 2. “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. denied423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257;see Smith–Hunter v. Harvey, 95 N.Y.2d 191, 195, 712 N.Y.S.2d 438, 734 N.E.2d 750;Nichols v. Xerox Corp., 72 A.D.3d 1501, 1502, 899 N.Y.S.2d 524). With respect to the first element, it is undisputed that defendants commenced a criminal proceeding against plaintiff by filing a misdemeanor information accusing him of stalking in the fourth degree. Further, with respect to the second element, neither the County defendants nor the Stephens defendants established that the criminal proceeding did not terminate in plaintiff's favor ( see Cantalino v. Danner, 96 N.Y.2d 391, 395–396, 729 N.Y.S.2d 405, 754 N.E.2d 164;Smith–Hunter, 95 N.Y.2d at 195–197, 712 N.Y.S.2d 438, 734 N.E.2d 750).

With respect to the third and fourth elements, however, the County defendants established that Fratello had probable cause to file the misdemeanor information and that he did not act with

[969 N.Y.S.2d 301]

actual malice ( see Lyman v. Town of Amherst, 74 A.D.3d 1842, 1842, 903 N.Y.S.2d 626;Weiss v. Hotung, 26 A.D.3d 855, 856, 809 N.Y.S.2d 376;Du Chateau v. Metro–North Commuter R.R. Co., 253 A.D.2d 128, 132, 688 N.Y.S.2d 12). “In the context of a malicious prosecution cause of action, probable cause ‘consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances [108 A.D.3d 1016]to believe plaintiff guilty’ ” ( Passucci v. Home Depot, Inc., 67 A.D.3d 1470, 1470, 889 N.Y.S.2d 353, quoting Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248,rearg. denied61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232). It is well established that “information provided by an identified citizen accusing another of a crime is legally sufficient to provide the police with probable cause to arrest” ( Lyman, 74 A.D.3d at 1843, 903 N.Y.S.2d 626 [internal quotation marks omitted] ). Actual malice “means that the defendant must have commenced the ... criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served” ( Nardelli v. Stamberg, 44 N.Y.2d 500, 503, 406 N.Y.S.2d 443, 377 N.E.2d 975;see Putnam v. County of Steuben, 61 A.D.3d 1369, 1371, 876 N.Y.S.2d 819,lv. denied13 N.Y.3d 705, 2009 WL 2925526;Du Chateau, 253 A.D.2d at 132, 688 N.Y.S.2d 12).

Here, the County defendants submitted evidence that Kelly A. Stephens (hereafter, Stephens) told Fratello that plaintiff (1) frequently drove by her house and often slowed down or stopped in front of the house; (2) took pictures of Stephens and the house; (3) made sexual comments to Stephens; and (4) threatened to damage Stephens's property. Stephens told Fratello that she feared for her safety and, according to Fratello, “[s]he was visibly upset and crying as she explained [plaintiff]'s conduct to [him].” After Fratello advised Stephens “multiple times” that making a false statement was punishable as a crime, Stephens provided a supporting deposition attesting to the above facts. Fratello averred in an affidavit that Stephens “appeared to be reliable and believable,” and that he “had no reason to believe [that] anything [she] told [him] was false or inaccurate.” He had never met Stephens or plaintiff prior to that date. Based upon the information Stephens provided, Fratello completed a misdemeanor information accusing plaintiff of stalking in the fourth degree. He had no further involvement in plaintiff's prosecution. Inasmuch as the County defendants established that Fratello had probable cause to file the misdemeanor information and that he did not act with actual malice, thereby negating two necessary elements of malicious prosecution, they met their initial burden on that part of their motion for summary judgment with respect to that cause of action.

In opposition to the County defendants' motion, plaintiff failed to raise an issue of fact with respect to probable cause or actual malice. Plaintiff submitted excerpts from Fratello's deposition in which he testified that he did not recall Stephens mentioning any disputes that she and her husband had with plaintiff...