Eric Lundgren v Leslie Margini

Lundgren v Margini 2006 NY Slip Op 04805 [30 AD3d 476] Decided on June 13, 2006 Appellate Division, Second 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 June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
GABRIEL M. KRAUSMAN, J.P.
DANIEL F. LUCIANO
STEVEN W. FISHER
MARK C. DILLON, JJ.
2005-02141 DECISION & ORDER

[*1]Eric Lundgren, appellant-respondent,

v

Leslie Margini, et al., appellants, Town of Cornwall, et al., respondents. (Index No. 3477/04)




Medina, O'Brien, Mamo & Garcia, P.C., Sleepy Hollow, N.Y.
(Anthony J. Mamo, Jr., of counsel), for appellant-respondent.
Kelly & Meenagh, Poughkeepsie, N.Y. (Maria A. Petrone of
counsel), for appellants.
Miranda & Sokoloff, LLP, Mineola, N.Y. (Brian Sokoloff
and Steven C. Stern of counsel), for
respondents.

In an action, inter alia, to recover damages for abuse of process, false imprisonment, and malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated January 27, 2005, as granted the motion of the defendants Town of Cornwall and Town of Cornwall Police Department for summary judgment dismissing the complaint insofar as asserted against them, and the defendants Leslie Margini and Steven Margini separately appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment dismissing the abuse of process causes of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Town of Cornwall and Town of Cornwall Police Department for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff by the defendants, and the complaint is reinstated [*2]insofar as asserted against the defendants Town of Cornwall and Town of Cornwall Police Department.

The Supreme Court erred in granting the motion of the defendants Town of Cornwall and Town of Cornwall Police Department for summary judgment dismissing the complaint insofar as asserted against them, alleging causes of action to recover damages for malicious prosecution and false imprisonment, based upon the finding that there was probable cause to arrest the plaintiff. "[T]he issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts" (Parkin v Cornell Univ., 78 NY2d 523). In this case, there is a triable issue of fact as to whether there was probable cause for the plaintiff's arrest. Moreover, as relevant to the malicious prosecution cause of action, a finding that there was no probable cause for the plaintiff's arrest could support an inference of actual malice (see Martin v City of Albany, 42 NY2d 13).

The Supreme Court properly denied the cross motion of the defendants Leslie Margini and Steven Margini for summary judgment dismissing the abuse of process causes of action, based upon triable issues of fact concerning whether they intended to do harm to the plaintiff without excuse or justification and whether they sought a collateral advantage or corresponding detriment to the plaintiff outside the legitimate ends of the process (see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., 38 NY2d 397).
KRAUSMAN, J.P., LUCIANO, FISHER and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court