Defendant's motion for summary judgment dismissing the third and fourth causes
of action asserted in the claim pursuant to Rule 3212 of the Civil Practice Law
and Rules is granted. The claim filed on August 8, 2003 asserts, inter
alia, causes of action for false arrest and malicious prosecution allegedly
arising on August 9, 2002 when the claimant was arrested by Court Officer James
Kennedy and charged with disorderly conduct and resisting arrest. The defendant
has included as Exhibit A to his motion papers a decision and judgment of the
Town Court, Town of Gardiner (Blatchly, J.) , finding the claimant guilty of
disorderly conduct (Penal Law § 240.20 ). Also included as defendant's
Exhibit B is a Certificate of Disposition dated September 26, 2003.
Justice Blatchly's decision relates the salient facts surrounding claimant's
arrest. Apparently claimant's husband and brother became embroiled in an
argument in the parking lot of the Ulster County Family Court in Kingston, New
York. Claimant was arrested by a court officer who was attempting to mediate
the dispute when she began to involve herself in the altercation. Claimant's
counsel does not deny that his client was found guilty upon a charge of
violating the penal law proscription against disorderly conduct contained in
Penal Law § 240.20 (3).
To establish a prima facie case of malicious prosecution a claimant must
establish the initiation of a judicial proceeding by the defendant, that the
proceeding was terminated in favor of the accused, the absence of probable cause
and malice (Martin v City of Albany, 42 NY2d 13; Romero v State of New
York, 294 AD2d 730; Ellsworth v City of Gloversville, 269 AD2d 654).
It is claimant's burden to establish all elements of a malicious prosecution
cause of action (Hollender v Trump Vil. Coop., 58 NY2d 420; Broughton
v State of New York, 37 NY2d 451).
A cause of action for false arrest is established upon proof that "the
defendant intended to confine plaintiff, that the plaintiff was conscious of
the confinement and did not consent to the confinement, and that the confinement
was not otherwise privileged" (Martinez v City of Schenectady, 97 NY2d
78, 85; see also Parvi v City of Kingston, 41 NY2d 553). In a
false arrest action "the defendant has the burden of proving legal justification
[probable cause] as an affirmative defense" (Broughton v State of New
York, supra at p 458).
In the instant matter the existence of probable cause, if established, is
dispositive. Where the facts concerning an arrest and/or confinement are not
seriously disputed the Court may determine the existence of probable cause as a
matter of law (Saunders v County of Washington, 255 AD2d 788).
With regard to claimant's false arrest and malicious prosecution causes of
action, the defendant has established both the existence of probable cause and
the unfavorable termination of the prior judicial proceeding through proof
establishing that the claimant was found guilty of the charge of disorderly
conduct. A conviction is not a termination favorable to the accused and
conclusively establishes probable cause for purposes of claims sounding in both
false arrest and malicious prosecution (Bennett v New York City Hous.
Auth., 245 AD2d 254; Kandekore v Town of Greenburgh, 243 AD2d
The protestations of claimant's counsel alleging that the decision of the town
court was unsupported by the evidence and based upon an erroneous interpretation
of the facts are insufficient to establish the legal validity of the third and
fourth causes of action contained in the claim and those causes of action are,