New York State Court of Claims

New York State Court of Claims

HILAIRE v. THE STATE OF NEW YORK, #2001-010-009, Claim No. 94215


Malicious prosecution claim of aide at Letchworth Village not established.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
ROGERS & MULHERN, P.C.By: Kevin T. Mulhern,Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an aide at Letchworth Village ("Letchworth"), a State facility, was charged with: Assault in the Third Degree in violation of Penal Law 120.00; Endangering the Welfare of an Incompetent Person in violation of Penal Law 260.25; and Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law 265.01. The charges arose out of an incident that occurred on Saturday, January 28, 1995, involving a Letchworth resident, Steven Mallek. Mallek had apparently been struck across his back with a metal rod and sustained welts (Exs. 1, R). Claimant was accused of the attack and suspended from his position at Letchworth. The charges were ultimately dismissed on August 10, 1995 and claimant was reinstated to his position. Claimant brings this malicious prosecution claim seeking damages. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
On Saturday, January 28, 1995,
claimant and two other aides were working the 2:30 p.m. to 10:30 p.m. shift on Ward 2, which housed 12 patients including Mallek. Aides were authorized to withhold smoking privileges from patients who misbehaved. Claimant testified that Mallek had flipped a sofa; therefore claimant suspended Mallek's smoking privileges for two hours. Claimant maintained that he had no further dealings with Mallek.
William Leach, Confidential Investigator at Letchworth, had been employed at Letchworth since 1984 after serving 20 years as a New York City Police Officer.
Leach testified that it was his duty to investigate all incidents of direct misconduct. On January 28, 1995 at approximately 11:30 p.m., Leach was contacted at his home and advised that, an hour earlier, Mallek had presented himself with injuries and had made allegations that he had been struck. Leach stated that complaints were commonly made at the end of a shift. Leach directed that photographs be taken of Mallek and that he be examined by a doctor.
Leach interviewed Mallek the following morning at Letchworth. Mallek had large raised welts on his back. Mallek stated that he had been struck
with a white stick by a black man identified as Zu Zu. Mallek stated that he had been hit because he had spilled a drink. A metal rod was located at the facility and was consistent with the injuries Mallek had sustained (Exs. A, C, H, M). Liquid stains were also found on the floor next to Mallek's bed (Ex. B). Mallek described Zu Zu as a person on duty Saturday night who did not work on Tuesdays and Wednesdays. Claimant was the only aide whose hours matched the schedule described by Mallek.
Leach also interviewed Charlie Franco, another Letchworth resident, whose bed was adjacent to Mallek's. Leach eliminated Franco as a suspect because of his size, his lack of injuries and Mallek's identification. Franco initially stated that a staff member had inflicted Mallek's injuries; however Franco later retracted his statement.

Leach knew Mallek for 10 years and was aware that he had previously made false accusations about staff members. On the prior occasions, however, Mallek had quickly retracted his allegations and there had never been any significant injuries accompanying these allegations
. Leach was aware of Mallek's mental deficiencies, i.e., that he was mentally retarded and suffered from some mental illness. This, however, did not detract from Mallek's truthfulness with regard to the incident at issue.
Leach contacted the New York State Police. Investigator Louis Roman responded to the scene on the morning of January 29, 1995. Roman showed Mallek a photo array which included the male employees who worked the 2:30 p.m. to 10:30 p.m. shift. Mallek picked claimant out of the array and identified him as Zu Zu. Roman was aware of Mallek's mental deficiencies and that he had a history of making false accusations. Nonetheless, Roman found Mallek able to communicate effectively and credible with regard to this incident.
Roman also interviewed the other aides on duty. Roman learned that Mallek usually had a milkshake after his evening shower at 7:30 p.m. Roman concluded that, based upon his interview with Mallek, Mallek's identification of claimant from the photo array, and Roman's investigation regarding the spilled liquid on the floor next to Mallek's bed, there was probable cause to charge claimant with regard to the assault of Mallek.
On January 30, 1995,
claimant was confronted by Leach and Roman. Roman interviewed claimant before his arrest. Claimant denied committing the assault and stated he had no knowledge of the incident. Roman placed claimant under arrest and took him to the State police barracks in West Nyack. The case was turned over to the District Attorney's office. Claimant was suspended from work from March 7, 1995 to July 25, 1995.
Roman subsequently learned that the charges had been dismissed. Roman testified that he believed that the dismissal had occurred because the "administration did not have the guts to go ahead and prosecute."[1]

Leach testified that he had discussed Mallek's credibility with Dr. Frederick Paul, a psychiatrist on staff and that, while Paul had determined that Mallek was credible, Paul thought that Mallek would not do well in a structured court setting. Leach explained that it was a clinical decision not to go forward with the prosecution because it would not be in Mallek's best interest to testify. This, however, did not change Leach's view of claimant's guilt. Leach informed the District Attorney's office that the Letchworth Director requested that the charges be dismissed in the interest of justice.
To prevail on his claim for malicious prosecution, claimant must establish that: defendant commenced a criminal proceeding against claimant; the termination of the proceeding was in favor of claimant; there was an absence of probable cause for the criminal proceeding; and that there was actual malice (
see, Colon v City of New York, 60 NY2d 78; Broughton v State of New York, 37 NY2d 451).
claimant did not establish that the proceeding was terminated in his favor (see, Smith-Hunter v Harvey, 95 NY2d 191, 197; Ward v Silverberg, 85 NY2d 993, 994 [dismissal in interests of justice does not constitute favorable termination]). The testimony showed that while Mallek was determined to be credible by Leach, Roman and Dr. Paul, it was not in Mallek's best interest to testify in a structured court setting. Thus, the Letchworth Director requested that the charges be dismissed in the interests of justice.
Second, claimant did not establish an absence of probable cause. Mallek identified claimant from the photo array and claimant's schedule was consistent with that described by Mallek. There were liquid stains found next to Mallek's bed and a metal rod was found at the facility that could have produced the injuries sustained by Mallek. Roman was aware of Mallek's mental deficiencies and history of false complaints; however Roman determined that Mallek was credible with regard to this incident. Under these circumstances, there was sufficient probable cause to initiate criminal proceedings against claimant and there was no showing that defendant acted with a reckless or grossly negligent disregard for claimant's rights or commenced the proceeding because of an improper motive. (cf., Hernandez v State of New York, 228 AD2d 902, 904; Boose v City of Rochester, 71 AD2d 59, 70).
Third, there was no evidence of actual malice. While malice may be inferred from a lack of probable cause insofar as it tends to show that
defendant did not believe in the guilt of the accused and thus did not initiate the proceedings for a proper purpose (see, Martin v City of Albany, 42 NY2d 13, 17), here there was probable cause. Nor was there a factual basis from which malice could be inferred (see, Scott v State of New York, 204 AD2d 424, 425).
In sum,
claimant failed to meet his burden of proof.

February 20, 2001
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to the trial notes or audio tapes unless otherwise indicated.