New York State Court of Claims

New York State Court of Claims

DELANEY v. THE STATE OF NEW YORK, #2006-015-113, Claim No. 109800, Motion No. M-71642


Defendant's motion for summary judgment dismissing claim for malicious prosecution was granted.

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):

Claimant’s attorney:
Michael J. Phillips, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 22, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment pursuant to CPLR 3212 is granted. The motion seeks an order dismissing the claim on the grounds that claimant's cause of action for malicious prosecution does not lie in that (i) the underlying criminal action was not terminated in claimant's favor and (ii) the cause of action for false arrest is without merit because the State Police Investigator who arrested the claimant and filed the accusatory instruments had probable cause to believe that claimant committed the crime and family offense charged.

The claim seeks money damages for false arrest/false imprisonment and malicious prosecution in relation to a felony complaint charging the claimant with Rape in the First Degree (Penal Law § 130.35) and a family offense information charging claimant with Endangering the Welfare of a Child (Penal Law § 260.10)[1].

Defendant's motion seeking dismissal of the claim as a matter of law is supported by the affidavits of defense counsel and New York State Police Investigator (Karen L. Dufour[2]) who conducted the criminal investigation and filed the subject felony complaint (Exhibit 10) and family offense information (Exhibit 11); a police incident report and supplement; sworn statements of various witnesses and an Order of Fact-Finding and Disposition of Family Court Integrated Domestic Violence Part signed by Hon. Timothy J. Lawliss (Exhibit 12) which inter alia found claimant guilty of abuse and neglect of her twelve-year-old child.

To establish a cause of action for false arrest the following elements must be shown: (1) the intentional confinement of the claimant, (2) claimant's conscious awareness of the confinement, (3) claimant's lack of consent to the confinement, and (4) the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). Legal justification for an arrest is an affirmative defense to be alleged and proved by the defendant (see Gebbie v Gertz Div. of Allied Stores of N.Y., 94 AD2d 165). An arrest is deemed privileged if the arresting officer had probable cause to make the arrest. Probable cause has been defined as such facts and circumstances as would lead a reasonably prudent person to believe claimant is guilty of an offense given the facts known or reasonably known to be true to the defendant (see Colon v City of New York, 60 NY2d 78, 82).

The unrefuted allegations set forth in the affidavits and those exhibits or parts thereof which pre-date or are contemporaneous with the accusatory instruments, including a Social Services Hotline referral (Exhibit 1) and State Police incident report (Exhibit 2) establish prima facie that there was probable cause to arrest claimant. Accordingly, her confinement following her arrest is deemed privileged and defendant's motion to dismiss the false arrest/false imprisonment cause of action is granted.

With regard to the portion of the claim alleging malicious prosecution "[t]he law . . . places a heavy burden on malicious prosecution plaintiffs, requiring that they establish four elements: '(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice' (Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929)" (Smith-Hunter v Harvey, 95 NY2d 191, 195).

Here there is no doubt that a criminal proceeding was instituted against claimant by the filing of a felony complaint and family offense information charging her with violations of Penal Law § § 130.35 and 260.10. Clearly the burden of proving that the underlying criminal action was terminated favorably to her is borne by the claimant (Ward v Silverberg, 85 NY2d 993; Reinhart v Jakubowski, 239 AD2d 765). "A criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused's innocence (Hollender v Trump Vil. Coop., [58 NY2d 420]; Halberstadt v New York Life Ins. Co., 194 NY1)" (MacFawn v Kresler, 88 NY2d 859, 860). Here claimant did not oppose the motion or otherwise raise a material issue of fact regarding defendant's assertion that the termination of the criminal charges in this case did not favor the claimant.

In Romero v State of New York (294 AD2d 730, 732, appeal dismissed 98 NY2d 727, lv denied 99 NY2d 503), the Appellate Division, Third Department held "the mere dismissal of a charge does not, in and of itself, establish the element of favorable termination." Where the order of dismissal in the criminal action "leaves the question of guilt or innocence unanswered" claimant's burden in this regard has not been met (see Delello v State of New York, 221 AD2d 1010; see also MacFawn v Kresler, 88 NY2d 859; Ryan v New York Tel. Co., 62 NY2d 494, 504-505; Witcher v Children's Tel. Workshop, 187 AD2d 292, 294). It appears from Exhibit 12 that the dismissal, which was purportedly without prejudice, was granted on procedural grounds (see MacFawn v Kresler, supra).

The non-appearing claimant has also failed to offer any proof regarding the absence of probable cause. "For purposes of the tort of malicious prosecution, probable cause has been defined as 'the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of' (Burt v Smith, [181 NY 1, error dismissed 203 US 129]) or whether 'a discreet and prudent person would be led to the belief that a crime had been committed by the person charged' (Carl v Ayers, 53 NY 14, 17; see, also, Hyman v New York Cent. R.R. Co., 240 NY 137)" (Loeb v Teitelbaum, 77 AD2d 92, 102-103). As noted above with regard to the false arrest cause of action, this Court finds that Trooper Dufour had probable cause to file the felony complaint and family offense information.

Finally, claimant neither pled nor offered proof in opposition to this motion showing that Trooper Dufour acted with actual malice, i.e., ill will or personal hostility toward the claimant (see Martin v City of Albany, 42 NY2d 13, 17) nor may the Court infer malice from the surrounding facts and circumstances where probable cause to initiate a criminal proceeding has been found (id.).

Accordingly, claimant has not raised a material issue of fact to defeat defendant's summary judgment motion regarding the cause of action for malicious prosecution and it too must be dismissed. Defendant's unopposed motion is granted in all respects and the claim is dismissed.

August 22, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 25, 2006;
  2. Affidavit of Michael C. Rizzo sworn to April 25, 2006 with exhibits.

[1].Defense counsel attached to the motion a copy of a document entitled "notice of claim" dated August 9, 2004 (Exhibit 13). Prior to the Court's consideration of the State's unopposed motion defense counsel advised the Court on notice to claimant's counsel that Exhibit 13 had been superceded by a verified claim served on August 31, 2004 and that the answer attached to the moving papers had been withdrawn and a new answer dated September 30, 2004 had been served and filed. The Court held the matter in abeyance for a possible response to the new submissions from claimant's attorney but none was received.
[2].Papers on the motion contain alternate spellings of the State Police Investigator's name. The Court has chosen to use Dufour in this decision and order.