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Friday, January 6, 2012

Amed Marzano & Sediva PLLC's appellate lawyers discuss civil liability arising out of a New York malicious proscution action in a criminal matter.

Marzano Lawyers PLLC's NY appellate lawyers have handled and are presently handling cases in NY courts dealing with malicious prosecution.  If you need assistance in this area of law, please contact us or another law firm of your choosing.

An action for malicious prosecution in New York will not survive a motion for summary judgment unless the party making the claim can satisfy all four of the below elements.

  1. That a criminal proceeding was commenced,
  2. That it was terminated in favor of the accused,
  3. That it lacked probable cause,
  4. That the proceeding was brought out of actual malice.

            Failure to establish any of these four elements defeats a plaintiff’s entire claim for malicious prosecution.  Hoyt v. City of New York, 284 A.D.2d 501 [2nd Dept. 2001]. 

Can a civil complainant in New York, then, ever be sued for malicious prosecution for simply reporting a crime to the police?  The short answer is, no. 

An abundance of New York case law institutes the notion that simply providing information to law enforcement is not sufficient to establish that a complainant initiated or commenced an action for malicious prosecution (the first of the above four elements).

It is well settled in this State's jurisprudence that a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.  Du Chateau v. Metro-North Commuter R. Co., 253 A.D.2d 128 [1st Dept. 1999]

            Daniel Du Chateau, a rail user, brought an action against Madeline Romanoski, a conductor for Metro North asserting claims for false arrest and malicious prosecution.  Subsequent to a verbal exchange between Du Chateau and Romanoski, Du Chateau grabbed Romanoski’s arm prompting Romanoski to report the incident to her superior who radioed ahead for Metro North police to intercept the train at the following station.  Metro North police officers spoke with both parties individually and upon concluding their investigation, issued Du Chateau an appearance ticket.  The officer asked and Romanoski agreed to sign the appearance ticket as the complainant.  Plaintiff was tried and acquitted for harassment and brought an action for malicious prosecution against Romanoski and Metro North.  The New York Appellate Division First Department reversed the New York State Supreme court’s denial of Romanoski’s motion for summary judgment and held that identifying a plaintiff in an action for malicious prosecution as the perpetrator of a crime, signing a summons, or even testifying at trial does not give rise to tort liability.  Du Chateau v. Metro-North Commuter R. Co., 253 A.D.2d 128, 131 [1st Dept. 1999].  Plaintiff cannot satisfy the initiation of a criminal proceeding burden without a showing that defendant, “played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.”  Du Chateau v. Metro-North Commuter R. Co., 253 A.D.2d 128, 131 [1st Dept. 1999] citing Viza v. Town of Greece, 94 A.D.2d 965 [4th Dept. 1983].  The 1st Department reasoned that there was no evidence that Romanoski gave false information or withheld information from the police, thus, as a matter of law Du Chateau failed to show that Romanoski initiated the prosecution.  In the words of the court,

Here all that has been shown is that [Defendant] reported the incident, identified, plaintiff, signed the summons as a complaining witness and testified at the original trial.  The decision to arrest and charge Plaintiff with harassment was made solely by [the police].  Du Chateau v. Metro-North Commuter R. Co., 253 A.D.2d 128, 131 [1st Dept. 1999]

The New York State Supreme Court Second Department does not digress from this analysis in Eisenkraft v. Armstrong, 172 A.D.2d 484 [2nd Dept. 1991].  Steven Eisenkraft was accused of forcing his way into Catherine Armstrong’s home and committing robbery.  Armstrong provided a description of the robber that in turn led to Eisenkraft’s arrest and indictment.  Subsequently, the indictment was dismissed, and Eisenkraft, brought an action against Armstrong for malicious prosecution.  The trial court denied Armstrong’s motion for summary judgment.  The Second Department disagreed, and reversing the motion court, stated,

[The] Court improperly denied [Armstrong’s] motion for summary judgment.  The defendant Armstrong merely provided information to the police and there is nothing to indicate that she commenced the proceeding against the plaintiff or that she instigated the arrest.  Eisenkraft v. Armstrong, 172 A.D.2d 484, 486 [1991]

            Similarly, in Brown III v. Sears Roebuck and Co., 297 A.D.2d 205 [1st Dept. 2002], the court reversed the IAS court’s decision denying summary judgment to defendant Sears because a Sears employee did nothing more than to furnish information to the police regarding an employee’s actions.  A civil complainant, the court stated, must go so far as to mislead the police by providing false evidence, or withholding evidence to be held liable in an action for malicious prosecution.  Brown III v. Sears Roebuck and Co., 297 A.D.2d 205, 210 [1st Dept. 2002]

            A victim of a crime is still permitted to complain to the police without risking a lawsuit for malicious prosecution.  Case law provides this protection to victims of crime because to not do so would tear apart the annals of justice.

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