Morant v City of New York

Morant v City of New York 2012 NY Slip Op 03773 Decided on May 15, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 15, 2012
Tom, J.P., Andrias, Renwick, DeGrasse, Abdus-Salaam, JJ.
7653 105532/98

[*1]John Morant, Plaintiff-Appellant, The

v

City of New York, et al., Defendants-Respondents.




Mischel & Horn, P.C., New York (Naomi M. Taub of counsel),
for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Diana
Lawless of counsel), for respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 27, 2010, which, in this action alleging malicious prosecution, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

"The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice" (Colon v City of New York, 60 NY2d 78, 82 [1983]). The existence of probable cause constitutes a complete defense to a claim of malicious prosecution (see Lawson v City of New York, 83 AD3d 609 [2011]).

Here, defendants established their entitlement to judgment as a matter of law. The indictment of plaintiff by a grand jury "create[d] a presumption of probable cause" for his arrest (Colon at 82), and plaintiff's opposition failed to raise a triable issue of fact to rebut this presumption. There is a lack of support for plaintiff's argument that there was no probable cause for his arrest because the search warrant underlying his arrest and indictment was based on false information provided by an confidential informant who was not shown to be reliable. Indeed, there is no indication that plaintiff made an effort in this action to discover the identity of the [*2]confidential informant or ascertain whether the informant's information was false.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 15, 2012

CLERK