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
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
William Leach, Confidential Investigator at Letchworth, had been employed at
Letchworth since 1984 after serving 20 years as a New York City Police
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
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
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
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
, Colon v City of New York
, 60 NY2d 78; Broughton v State of
, 37 NY2d 451).
claimant did not establish that the proceeding was terminated in his favor
, Smith-Hunter v Harvey
, 95 NY2d 191, 197; Ward v
, 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
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,
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
, 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).
claimant failed to meet his burden of proof.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 94215.