Claimant, Thomas Corrigan, seeks damages for alleged malicious prosecution and
abuse of process relating to his arrest on January 26, 1998 for vehicle and
traffic violations. The charges arose out of a hit and run accident that
occurred on January 25, 1998
12:30 p.m., when claimant purportedly drove an all terrain vehicle (ATV) and
struck a car in the rear, driven by Peter Furu, that was backing out of Michael
Vogt's driveway at 2 Hillview Place, Town of Cortlandt. New York State Trooper
Timothy Owens arrested claimant based upon information that Owens had obtained
from Furu and Vogt and other information obtained pursuant to Owens'
investigation. Owens issued claimant nine simplified traffic informations which
were dismissed due to the insufficiency of the supporting depositions. Seven of
the informations were refiled. They were dismissed in the interests of justice
on claimant's unopposed motion. The trial of this claim was bifurcated and this
Decision pertains solely to the issue of liability.
Claimant testified that on Sunday, January 25, 1998, he did not drive his ATV;
his ATV was in his garage; and he had not been involved in an accident
At his examination before trial,
he stated that none of his neighbors had ATVs. At trial, he could not recall
giving such testimony. However on re-direct, he explained that none of his
"immediate neighbors two or three houses around me" had ATVs, but there were
"lots of ATVs in the general neighborhood, that being Lake Allendale in a whole"
(T:233-34). Claimant testified that he attended a Super Bowl party on the 25th
at his brother-in-law's house. He arrived at the house between 11:30 and noon;
the game started at 6:29 p.m. (T:185-86, 188-89).
On the morning of January 26, 1998,
claimant went to his parents' home located across the street from his residence.
He customarily went there to drink coffee. Before returning home, claimant
noticed a State police car parked in front of his house (T:107, 202-03). Rather
than enter his home through the front door, claimant entered through the garage.
He was met by Trooper Owens at the top of the basement stairs (T:107, 203).
Owens told claimant that he had been involved in a motor vehicle accident the
day before and claimant was placed under arrest. Claimant professed his
innocence. He denied using any profanity with the trooper. Claimant also
denied receiving a telephone call at his home on the
According to claimant, he
was handcuffed and transported to the police barracks, where he was placed in an
investigation room. Claimant protested that he had been wrongly accused. He
was not permitted to make any telephone calls. Owens wrote nine vehicle and
traffic informations returnable in the Town Court, Town of Cortlandt (Cortlandt
Town Court) before claimant was permitted to leave (Exs. C, L). The charges were
dismissed on April 30, 1998 because the supporting depositions were insufficient
(Ex. 3). Thereafter, seven of the nine informations were refiled. Claimant
moved to dismiss these charges in the interest of justice. The People offered
no opposition and, on August 24, 1998, claimant's motion was granted dismissing
Claimant also testified to several encounters he had with Owens prior to the
final dismissal of the charges. On April 28, 1998, Owens responded to Geis Auto
Mall, claimant's place of employment, and, upon seeing claimant, Owens left
abruptly without conducting an investigation.
mid-August of 1998, claimant noticed Owens in a gas station at approximately
5:00 p.m. Claimant testified that Owens tailgated claimant and his girlfriend
at a distance of six inches for 10 to 15 miles, for approximately 30 minutes.
Claimant applied his brakes, but never made contact with Owens' car. Nine days
later, claimant made a written statement regarding this incident, stating the
date of the occurrence as August 15, 1998 (Ex. N). The alleged encounter was
also recorded as an August 15, 1998 incident in the claim filed in this court
and a complaint filed by claimant in the United States District Court, Southern
District of New York (Ex. C). Despite this repeated reaffirmation of the August
15, 1998 date, at trial claimant maintained, for the first time, that he had
been mistaken about the date of the incident and that the correct date was
Friday, August 14, 1998 (T:238-46).
prior document, claimant referred to the incident as August 15, 1998 without
mention of the day of the week.
Claimant referred to another incident with Owens, which occurred at
approximately 3:30 p.m. on October 14, 1998. Claimant was working when he
noticed Owens at a traffic light (T:148). Claimant testified that Owens stared
claimant down for approximately 30 seconds before driving away (Id.
his examination before trial, claimant testified that the staring incident
lasted between one and five minutes (T:229-30). Later that evening at 9:15 p.m.,
claimant was driving home and failed to make a full stop at a stop sign. Owens
pulled claimant over and asked for his license and registration. According to
claimant, Owens returned claimant's documents and warned claimant to watch his
back, because Owens knew where claimant lived (T:153).
Several discrepancies between claimant's testimony at trial and at his
deposition were elicited on cross-examination such as: whether any neighbors
owned an ATV; the attendees at the Super Bowl party; how many ATVs were in his
garage on January 26, 1998; the time he awakened and went to his parents' house
on January 26, 1998; whether both parents were home; the length of time Owens
claimant on October 14, 1998. In response to these discrepancies, claimant
repeatedly stated that he did not remember giving his deposition testimony.
Claimant was very evasive in his trial testimony.
claimant's wife, testified that in January 1998 she was claimant's
and they lived together at 4
Richmond Place, in the Lake Allendale section of the Town of Cortlandt. At
approximately 7:30 a.m. on January 26, 1998, Corrigan was awakened by Trooper
Owens knocking at the door. Owens asked for claimant and inquired whether he
owned an ATV. Corrigan responded that claimant was not home and she showed
Owens claimant's ATV stored in their garage. Owens left and Corrigan went back
A half hour later, Owens
returned and again asked for claimant. Owens stated that he wanted to question
claimant about an accident. Owens asked Corrigan to leave word with claimant to
contact Owens. He left and Corrigan went to claimant's sister's house in town
because she thought claimant might be there. Claimant was not and Corrigan
returned home and went back to sleep.
Owens returned a third time between 9:00 and 9:15 a.m. and again awakened
Corrigan. Owens asked for
claimant and Corrigan replied that he was not home. According to Corrigan,
Owens gently pushed Corrigan aside and stated, "you won't mind if I look around
the house" (T:45). Corrigan did not respond because she believed Owens' words
were more in the nature of a statement, rather than a question. Owens entered
the house and went through the bedrooms. As Owens opened the basement door,
claimant walked up the stairs. Owens arrested claimant and both he and Corrigan
were transported to the police
Corrigan testified that, while it was unusual for a police officer to visit
their home, she nonetheless
was able to go back to sleep on each occasion after Owens came to their home.
She made no effort to look for claimant's pickup truck in front of their house
nor did she attempt to contact claimant at his parents' home, even though she
knew that he often visited them in the morning. Corrigan did not remember the
phone ringing or receiving a call inquiring as to claimant's whereabouts.
Corrigan did not recall whether there was any snow on the ground or any ATV tire
tracks in their yard.
Corrigan's next encounter with Owens was purportedly on August 15, 1998. She
claimant had stopped for gas in Westchester County. They were subsequently
followed for 15 to 20 minutes by a State police vehicle, which she implied was
driven by Owens, although she concededly did not see the
David Glickstein, the sales manager at Geis Auto Mall where
claimant was employed, testified that he worked with claimant for approximately
four and one half years, socialized with claimant and, in 1997, lived with him.
On April 28, 1998, Glickstein contacted the State police to report vandalism to
cars on the Geis lot caused by BB guns. Trooper Owens responded to the scene.
In the midst of Glickstein's conversation with Owens, Owens observed claimant
and the conversation ceased. According to Glickstein, Owens indicated that he
would no longer assist Geis because Owens had a problem with one of Geis'
employees. Before leaving, Owens stated that he would inform another trooper
about the vandalism. Glickstein had no knowledge if Owens returned to examine
the damaged cars. Approximately 15 minutes after Owens left, Glickstein called
the State police and spoke with Trooper Joseph D'Urso.
testified that he lived at 2 Hillview Place, which he described as across and
through the woods from Lake Allendale, where claimant lived. At approximately
12:30 p.m. on January 25, 1998, Peter Furu drove Vogt to his home. As Furu
backed his car out of the driveway, it was struck by a yellow and red Yamaha
Banshee ATV that was traveling at a high rate of speed onto Hillview Place
(T:285-88, 290, 307-08, 314, 328, 341, 347). The ATV dented the truck and broke
the taillights and some pieces of plastic broke off the ATV (T: 332, 347). A
few months earlier, Vogt had seen claimant on that ATV and claimant had
indicated that he lived in Lake Allendale. Immediately after the accident, Vogt
telephoned the police and Furu chased the ATV across a neighbor's lawn. Owens
responded to the scene within approximately 10 minutes and Vogt reported that
the ATV hit the car and then took off. Vogt told Owens that the ATV appeared to
be claimant's, who lived in Lake Allendale.
Owens left the scene and Vogt and Furu followed the tracks of the ATV across
the snow covered ground to 4 Richmond Place. A man standing outside a
neighboring home told them that the resident at 4 Richmond Place had an ATV.
Vogt and Furu called Owens and the three men met near Lake Allendale. They then
drove to 4 Richmond Place.
Peter Furu testified that on January 25, 1998, his car was hit by a yellow ATV
as he backed out of Vogt's driveway. Furu could not make a positive
claimant because the driver was wearing a helmet that concealed most of his
face. Furu testified that after the accident, the driver of the ATV said not to
call the police. The driver pointed in the direction of Lake Allendale and said
that he lived near his father, over the hill (T:347, 351). The driver stated he
would bring his ATV home and then return (T:276-77, 292, 345-47, 384). Furu
told claimant that he should remain at the scene until the police arrived. Vogt
went inside to call the police and claimant then pulled his ATV from Furu's car
and drove across a lawn at the corner of Hillview Place (T:290-92, 347-49).
Furu tried to follow on foot, but fell. Furu reported to Owens the comment made
by claimant. Furu also testified that he and Vogt followed the tracks through
the snow to claimant's house and, later that day, went to claimant's residence
Trooper Owens testified that at approximately 12:30 p.m.
on Sunday, January 25, 1998, he responded to 2 Hillview Place, to investigate a
motor vehicle accident. Owens observed damage to the rear of Furu's automobile
and some material from the ATV lodged underneath Furu's car. Furu explained to
Owens that, as Furu was backing out of Vogt's driveway, an ATV struck the car
and the operator landed next to the driver's side door. The ATV operator pulled
his vehicle free and then drove away. Vogt told Owens that the ATV driver had
been speeding, lost control of his vehicle, and then went through a stop sign.
Before leaving the scene, the ATV driver stated that he wanted to check his
vehicle and pointed to Lake Allendale stating that he lived over there, across
from his parents. Furu and Vogt described the ATV operator as a stocky, white
man with a helmet. They testified that the ATV was a red and yellow Baja or
Furu and Vogt's description of the route that the ATV had taken in fleeing the
scene corresponded to fresh tracks in the snow that Owens observed. Owens left
on foot and proceeded to Lake Allendale, which was five minutes away separated
by the aqueduct. He followed tracks along the aqueduct which ended at 4
Richmond Place, claimant's residence. Owens knocked on the door, but there was
no response. Owens retraced his steps to his car and drove back to Lake
Allendale to continue his investigation. He checked for tracks at other homes,
but there were none. Owens intended to return the next morning to speak with
the homeowner at 4 Richmond Place.
In the interim, Furu and Vogt contacted Owens and the three met on January
th at approximately 2:15 p.m. Furu and Vogt informed Owens that they had found
ATV tracks leading to 4 Richmond Place and that a neighbor stated that the
resident of the house owns an ATV. The next morning Monday, January 26, 1998,
at approximately 7:15 a.m., Owens returned to 4 Richmond Place. He observed two
vehicles in the driveway, a sports utility vehicle and a pickup truck. He
knocked on the door and there was no answer. A neighbor told Owens that a
resident of 4 Richmond Place owned an ATV, which he had seen him driving the day
before and that his parents (the Corrigans) lived across the street, at 5
Richmond Place (T:552-53). Owens went to the Corrigans' home, but received no
Owens then went into the home of the Corrigans' neighbor, Violet LaDuca. From
her kitchen window,
he observed something underneath a tarp in the Corrigans' backyard. There was
no snow on the tarp and the snow in the yard appeared to have ATV tracks
(T:428-29, 554-56). Owens entered the yard and looked under the tarp. He
observed a red and yellow ATV, which was damaged. The piece missing from the
ATV seemed to match the material lodged under Furu's car
At approximately 7:30 a.m., Owens returned to 4 Richmond Place. Corrigan
answered the door. Owens explained that he was investigating an accident
involving an ATV. Corrigan admitted that
claimant, who lived with her, owned an ATV. She denied knowing claimant's
whereabouts and suggested that he was probably at work. She showed Owens
several ATVs stored in the garage. None of them matched the description of the
ATV involved in the accident. Owens left the residence through the garage door,
which made a loud sound as it opened and closed.
Owens went to Geis Auto Mall and was advised that
claimant was not working that day. Feeling deceived, at approximately 8:15 to
8:30 a.m., Owens returned to 4 Richmond Place. There were no vehicles in the
driveway and no one responded to his knocking on the door. Owens went to 5
Richmond Place and noted that the ATV was no longer there
At 9:40 a.m., Owens returned to
claimant's home at 4 Richmond Place. The vehicles that he had previously
observed outside the residence had reappeared. The ATV, however, was not in the
Corrigans' yard at 5 Richmond Place. Corrigan opened the door. In response to
Owens' inquiry, she replied that she did not know claimant's whereabouts.
Corrigan suggested that he might be walking the dog. Owens saw a dog on the
porch and believed that Corrigan was not being forthright. He went back to his
car, from which he could still observe 4 Richmond Place, and had the dispatcher
at the barracks telephone claimant's home and ask for Tom, i.e., claimant. The
dispatcher reported to Owens that someone named Tom had answered the
At 9:54 a.m., Owens went back to 4 Richmond Place again and asked for
claimant. Corrigan again stated that he was not there. Corrigan also denied
receiving a telephone call from someone asking for Tom (T:568). According to
Owens, at his request, Corrigan allowed him into the house to look for claimant.
Owens did not push Corrigan aside (T:569). Owens found claimant standing at the
bottom of the stairs from the garage entrance into the house. Owens had not
heard the garage door open or close. He tried to talk with claimant to resolve
the matter, but claimant was cursing and uncooperative.
Owens testified that he believed that
claimant was the driver of the ATV based upon several factors: 1) At the time
of the accident, the driver of the ATV pointed in the direction of claimant's
home and stated that he lived across the street from his parents; 2) LaDuca
confirmed that claimant had an ATV and lived across the street from his parents;
3) Owens followed the ATV tracks in the snow from the aqueduct to claimant's
residence at 4 Richmond Place; 4) Corrigan appeared deceptive as if she was
attempting to get Owens out of the house; 5) Corrigan's repeated assertions that
claimant was not home were contradicted by the telephone call from the
dispatcher; 6) Owens observed a damaged red and yellow ATV under a tarp at the
Corrigans; 7) The tracks in the Corrigan yard appeared fresh and there was no
snow on the tarp; 8) During the course of Owen's investigation, the ATV
disappeared from the Corrigan yard and the two vehicles in claimant's driveway
were present and then missing.
Owens placed both
claimant and Corrigan under arrest and brought them back to the barracks where
they were put in separate rooms for questioning. After claimant requested an
attorney, Owens took only pedigree information (T:583). Owens told claimant
that, as soon as he was processed, he could use the telephone, but claimant
declined use of the phone (T:584). Based upon information furnished by Furu and
Vogt, in addition to his own observations, Owens issued claimant nine simplified
traffic informations (Ex. L). Owens used a police summary guide or a "quick
guide," rather than the actual Vehicle and Traffic Law to delineate the charges
(T:590). He conceded that two tickets were charged in error, i.e., Driving
Within 100 Feet of a Person (which only applies when the operator is driving on
a frozen body of water) and Driving Within 100 Feet of a Dwelling (which only
applies between 9:00 p.m. and 5:00 a.m.) (T:590). The other tickets were for:
1) Leaving the Scene of an Accident; 2) Failing to Stop at a Stop Sign; 3)
Unreasonable Speed; 4) Reckless Driving; 5) Operating a Motor Vehicle on Private
Property; 6) Unlawful Operation Over Public Land; 7) Unlawful Operation on a
Public Roadway. Claimant and Corrigan were released at 12:15 p.m. The tickets
were returnable in the Cortlandt Town Court.
On the return date, Furu appeared with Owens. There were approximately 50
people in the courtroom and Furu was able to identify
claimant as the driver of the ATV. Vogt had previously visited Geis Auto Mall
and identified claimant there as the ATV operator. At the Court session,
claimant's attorney brought a motion to dismiss based upon the insufficiency of
the supporting deposition. Owens had not obtained depositions from Furu and
Vogt because he had mistakenly believed that supporting depositions were not
required when a witness agrees to testify in court (T:596). Owens had requested
an adjournment to respond. Upon review, the Assistant District Attorney advised
Owens that the supporting depositions were deficient and no response to
claimant's motion was submitted (T:412-15, 600). The charges were dismissed
Following usual practice, Owens contacted a supervisor, Captain Spahl, and
they decided that seven of the charges should be refiled (T:601-02). Owens also
conferred with attorney Hogan at State police counsel's office (T:396-97, 602).
Hogan agreed with the decision to refile and reviewed the new long form
informations that Owens had prepared (Ex. X). Supporting depositions from Furu
and Vogt were obtained and included (Exs. G, H). The positive identification of
claimant by Furu and Vogt gave Owens an additional basis to refile the charges.
Owens refiled and claimant moved to dismiss in the interests of justice. The
People failed to oppose the motion and their request for an adjournment was
denied. Claimant's motion was granted dismissing the charges (T:420-21,
Regarding the April 28, 1998 incident at Geis Auto Mall, Owens testified that
claimant was rude and taunting at the scene and, the day before, had filed a
Notice of Claim charging Owens with improper behavior (Ex. A). Accordingly,
Owens felt it was prudent to leave and return after the dealership had closed.
Later that evening, Owens returned and checked the
As to the October 14, 1998 incident, Owens maintained that he was on routine
road patrol, stopped at a light, when he heard someone yell, "Hey Timmy over
here" (T:613-14). The light turned green and he continued driving. Later that
evening, Owens was on patrol in a stationary position at a stop sign. There was
no lighting in the area and it was dark (T:615). Between 9:10 and 9:40 p.m.,
Owens stopped three vehicles, the second of which was
claimant's. Until Owens approached the vehicle, he did not know claimant was
the driver. Owens did not issue claimant a ticket, but warned him that he
should be careful not to pass stop signs. Owens did not threaten claimant to
watch his back. He was reluctant to pursue a summons since claimant had filed
the Notice of Claim. Owens issued a ticket to the next car that passed the stop
sign (Ex. DD).
Owens denied the alleged tailgating incident with
claimant on either August 14, 1998 or August 15, 1998. The parties stipulated
that August 15, 1998, Owens was working the desk at the Peekskill barracks and
remained there from 3:00 p.m. to 11:00 p.m. (T:272). Regarding August 14, 1998,
Owens testified that from 3:55 p.m. to approximately 6:00 p.m., he was
processing the arrest of two men, the Sinischalis. He confirmed that he
personally ran the request for the Sinischalis' criminal history. Owens never
left the barracks during the incident. At approximately 6:00 to 6:15 p.m.,
Owens collected the paperwork and discussed the arrest with others at the
barracks. At 6:25 p.m., he responded to another accident scene involving a car
and a bicycle.
Stephen Hogan, an assistant counsel with the New York State police since 1989,
testified that his responsibilities included advising troopers on legal issues.
He recalled being contacted by Owens regarding refiling simplified traffic
informations that had been dismissed due to insufficiency of the supporting
depositions. Hogan characterized this as a common inquiry and advised Owens
that the informations could be refiled. Prior to the refiling, Hogan reviewed
the new accusatory instruments and told Owens that they appeared fine. Hogan
described a refiling as a bit rare, but stated that it does occur for a variety
of reasons. In late June or early July, Owens sent Hogan a copy of claimant's
motion to dismiss the second set of charges. Hogan requested additional time
for the People to reply (Ex. Y). Claimant's counsel would not consent and the
request was denied. The People failed to file papers in opposition. By
Decision dated August 24, 1998, defendant's motion to dismiss pursuant to CPL
170.40, in the interests of justice, was granted (Ex.
Patricia Hayes, the Court Clerk in the Cortlandt Town Court for 22 years,
testified that, i
n her experience, troopers have refiled simplified traffic informations, after
dismissals, a dozen or more times.
Violet LaDuca, who lived at 3 Richmond Place, next door to claimant's parents
and across the street from
claimant, testified that she recalled a trooper inquiring whether claimant had a
"scooter" and she replied yes (T:427-29). She and the trooper looked out her
kitchen window and she observed something in claimant's parents' yard covered by
a tarp. She did not know what was under the tarp.
Donna Boyd, who had been employed by the New York State police for seven
years, testified that in January 1998, she was a dispatcher at the State police
barracks at Peekskill. On January 26, 1998, she was working the desk on the
7:00 a.m. to 3:00 p.m. shift. She recalled that at approximately 9:15 a.m.,
Owens telephoned the barracks and requested that she call
a particular number and ask for Tom. She placed the call and a female answered,
acknowledged that Tom was home and gave the phone to a man who said hello. Boyd
hung up without saying anything further. Boyd told Owens what had
Sergeant Richard Betts testified that, on August 14, 1998, he was the supervisor
in charge of the Peekskill barracks and a blotter entry revealed that Owens had
returned to the barracks at 3:55 p.m. with two suspects who were under arrest
for Reckless Endangerment, Harassment and Exposure of Person (Ex. JJJJ, p. 2).
Betts noted that he remembered the incident because it was a unique case of road
rage involving a father and son, Biago and Guissepe Sinischali. The son had
pulled down his pants and showed his rear to a traffic flagman. At the
barracks, Betts participated in the decision process regarding the charges of
these defendants. Owens conducted the actual processing of the men, which
involved checking the suspects' criminal history, taking fingerprints and
photographs, and preparing arrest reports and appearance tickets. Criminal
histories are usually obtained early in the process from the Division of
Criminal Justice Services (DCJS) to ascertain if the individual is wanted
elsewhere. The computer printout received that day from DCJS indicated that
Timothy Owens requested the information at 5:03 p.m. and 5:04 p.m. (Exs. KKKK,
LLLL, MMMM). A personalized code is necessary to access the computerized
information. Before releasing the Sinischalis, Owens prepared nine simplified
traffic informations and desk appearance tickets. Betts estimated that the
processing lasted approximately two hours and that he and Owens were at the
barracks the entire time.
Investigator Joseph D'Urso testified that on August 14, 1998, he was assigned
to the desk and directed Owens to investigate a possible assault at 3:15 p.m.
Owens returned to the barracks at 3:55 p.m. with the suspects. D'Urso testified
that he remembered the incident specifically because it was unusual and almost
comical. He estimated that the processing took two hours.
D'Urso also testified that on April 28, 1998, he was working the desk and
received two phone calls from Glickstein of Geis Auto Mall. After the first
call, D'Urso dispatched Owens to investigate the complaint of criminal mischief.
During the second call, D'Urso did not understand what Glickstein wanted and he
did not characterize such call as a complaint about Owens requiring further
action (Ex. W).
To prevail on his claim for malicious prosecution,
claimant must establish: 1) the commencement or continuation of a criminal
proceeding by defendant against claimant; 2) the termination of the proceeding
in favor of claimant; 3) an absence of probable cause for the criminal
proceeding; and 4) actual malice (see Broughton v State of New
, 37 NY2d 451). The first element was established. The second element
was conceded by defendant at trial (T:268), and, upon the Court's review of the
dismissal by the Town Justice, the dismissal appears to be not inconsistent with
claimant's innocence and therefore a determination which is favorable to
claimant (Smith-Hunter v Harvey
, 95 NY2d 191).
With regard to the third and fourth elements,
"lack of probable cause to institute a criminal proceeding and proof of actual
malice are independent and indispensable elements of a malicious prosecution
action" (Martin v City of Albany
, 42 NY2d 13, 17). "Proof of one will
not automatically result in an inference of the other" (Arnold v Town of
, 126 AD2d 135, 137 [court rejected plaintiff's contention that no
proof of malice is required if there is proof of lack of probable cause]).
Probable cause in this context "consists of such facts and circumstances as
would lead a reasonably prudent person in like circumstances to believe
[claimant] guilty" (Colon v City of New York
, 60 NY2d 78, 82). "A party
may act with probable cause even though mistaken, for a mistake of fact as to
the identity of a criminal may be consistent with probable cause if the party
acted reasonably under the circumstances in good faith" (id.
). It is
noted that probable cause to initiate a proceeding is distinct from probable
cause to arrest.
Malice exists if the evidence shows that defendant commenced the proceeding
because of a wrong or improper motive, that is, something other than a desire to
see the ends of justice served (
Boose v City of Rochester
, 71 AD2d 59, 69-70). At times, malice may be
inferred from a lack of probable cause to initiate a proceeding, e.g., where
probable cause is "so totally lacking as to reasonably permit an inference that
the proceeding was maliciously instituted" (Martin v City of Albany
NY2d at 17). The inference is appropriate where "[t]he circumstances ‘may
show so slight a basis for the defendant's belief in the guilt of the accused as
to justify [the trier of fact] in finding that he did not have that belief in
the guilt of the accused which is necessary to justify the initiation of
criminal proceedings, and, therefore, did not initiate them for their only
proper purpose'"(Martin v City of Albany
, 42 NY2d at 17 quoting
Restatement, Torts, Comment a, §669). "Often the problem is whether the
prosecutor was justified from the appearance of things in believing the charge
to have been warranted. This would embrace situations where a prudent man might
believe, from the facts coming to him, another guilty, even though the accused
were acquitted or even innocent in fact" (Munoz v City of New York
NY2d 6, 10). Thus the inference is not mandatory. The fact finder "may, but is
not required to, infer the existence of actual malice from the fact that there
was no probable cause to initiate the proceeding" (Martin v City of
In the instant case,
the sum of the credible evidence established that the trooper had probable cause
to initiate the proceeding and there is no basis for either inferring or finding
A claim for abuse of process has three essential elements: 1) regularly issued
process, civil or criminal, compelling the performance or forebearance of some
act; 2) the person activating the process must be motivated by a purpose to do
harm without excuse or justification; and 3)
defendant must be seeking some collateral advantage or corresponding detriment
to claimant, which is outside the legitimate ends of the process (Board of
Educ. v Farmingdale
, 38 NY2d 397, 403). The Court finds an absence of
credible evidence sufficient to establish the claim of abuse of process
(see Ben-Zaken v City of New Rochelle
, 273 AD2d
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 101457.