New York State Court of Claims

New York State Court of Claims

CORRIGAN v. THE STATE OF NEW YORK, #2002-010-056, Claim No. 101457


Synopsis


Malicious prosecution and abuse of process claims dismissed.

Case Information

UID:
2002-010-056
Claimant(s):
THOMAS CORRIGAN
Claimant short name:
CORRIGAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101457
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SARCONE & CYPHER, LLPBy: John A. Sarcone, III, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 18, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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[1] at approximately 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 (T:106-07).[2] 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 26th.
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 the charges.
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.
In
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).[3] In every 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.). At 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 stared at
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.
Nichole Corrigan,
claimant's wife, testified that in January 1998 she was claimant's girlfriend[4] 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 to sleep.
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 barracks.[5]
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 and
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 driver.
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.
Michael Vogt
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 identification of
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 with Owens.
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 Banshee.
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 25
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 response.
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 (T:556-57).
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 (T:563).
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 phone.
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 (Ex. 3).
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, 606).
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 vehicles.
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. 4).
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 transpired.
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 York, 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 Wilton, 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.[6]
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, 42 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, 18 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 Albany, supra at 17).
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 actual malice.
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 426).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 101457.

March 18, 2003
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] The Second Amended Claim incorrectly states that the date of arrest was January 25, 1998 instead of January 26, 1998. Defendant notes in his post-trial memorandum at page 23 that claimant's counsel was advised of the incorrect date at claimant's examination before trial on July 26, 2000, but claimant failed to correct this defect. At trial, defendant moved to dismiss on the basis of this jurisdictional defect. Under the particular circumstances of this case and where there is no prejudice to defendant, the motion is DENIED and the Court will address the merits of the claim.
[2] All references to the trial transcript are preceded by the letter "T."
[3] Claimant's girlfriend, now wife, testified before claimant and testified that the incident took place on August 15, 1998.
[4] In 1998, she was known as Nichole Rosenbarker. For consistency, she will be referred to as Corrigan throughout the Decision.
[5] Corrigan was arrested for obstruction of justice. The charge was ultimately dismissed.

[6] While lack of probable cause for an arrest may be a basis for a false arrest or false imprisonment claim, it is not an element of malicious prosecution. Claimant's false arrest and false imprisonment claims were addressed by this Court on a late claim application and were time barred by the statute of limitations, and therefore not properly before the Court (Corrigan v State of New York, Ct Cl, Oct. 18, 1999, Ruderman, J., Claim No. 100168, Motion No. M-60069, Cross-Motion No. CM-60266). Claimant argued, not at trial, but in his post-trial memorandum, that the trooper did not have probable cause for the arrest under CPL 140.10(1)(a), and that, consequently, there was an absence of probable cause to initiate a proceeding against claimant. (Because this issue was not raised at trial, the Court permitted defendant to be heard on the issue and for claimant to reply before any determination was made by the Court.) CPL 140.10(1)(a) provides that a police officer may arrest a person for any offense, "when he has reasonable cause to believe that such person has committed such offense in his presence." Claimant argues that, because the trooper did not witness claimant's conduct, the warrantless arrest for traffic violations was not authorized under CPL 140.10(1)(a). Even assuming that the arrest was without probable cause, "[a]n illegal arrest, without more, has never been envisioned as a bar to prosecution" (People v Young, 55 NY2d 419, 426; see also People v Grant, 16 NY2d 722 [validity of an arrest is immaterial to validity of subsequent conviction]; People v Pugach, 179 Misc2d 819). It is noted, however, that the trooper testified that he could have charged
claimant with reckless driving, a
misdemeanor
(VTL 1212), which could justify the arrest under CPL 140.10(1)(b), which authorizes arrest for a crime whether committed in the officer's presence or otherwise (see People v Solomon, [Sup. Ct. Monroe Co. 2002] 2002 WL 1059750).