Shea v Savage

[*1] Shea v Savage 2006 NY Slip Op 52419(U) [14 Misc 3d 1205(A)] Decided on December 20, 2006 City Court Of Albany Heath-Roland, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2006
City Court of Albany

Allyson Shea, Plaintiff,

against

Joan Savage, Defendant.



SC 06-0288



Allyson Shea

Plaintiff, pro se

101 Cherry Avenue, No.39

Delmar, New York 12054

Terence L. Kindlon, Esq.

Attorney for Defendant

74 Chapel Street

Albany, New York12207

Helena Heath-Roland, J.

Plaintiff commenced the instant action seeking recovery in the amount of $3,714.25 for legal and other expenses plaintiff incurred due to her defense of a harassment charge (Penal Law § 240.26[3]) in the Bethlehem Town Court stemming from a criminal complaint filed against her by defendant. Defendant appeared herein and now moves for an Order granting summary judgment pursuant to CPLR 3212.

In Zuckerman v. City of New York, 49 NY2d 557, 562, the Court of Appeals, citing its previous decision in Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065, 1067-1068, stated the following:

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor (CPLR 3212, subd. [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require atrial of any issue of fact (CPLR 3212, subd. [b])." [*2]

Plaintiff's cause of action herein is essentially a claim of malicious prosecution. While the tort of malicious prosecution protects against the consequences of wrongful prosecution, public policy favors bringing criminals to justice, and accusers must be allowed room for benign misjudgments. The law therefore places a heavy burden on malicious prosecution plaintiffs, requiring that they establish the following 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).

Defendant contends that plaintiff has failed to establish the first and third of these elements.

As stated in the Court's Interim Decision and Order in this matter, dated November 8, 2006, the Court assessed defendant's contentions with respect to the third element of a cause of action for malicious prosecution, which is the absence of probable cause. Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty (Colon v. City of New York, 60 NY2d 78, 83, 455 NE2d 1248, 468 NYS2d 453 [1983]; see also Butler v. Ratner 210 AD2d 691, 694, 619 NYS2d 871 [3rd Dept 1994]). A party may act with probable cause even though mistaken, for a mistake of fact as to the identity of a criminal, for example, may be consistent with probable cause if the party acted reasonably under the circumstances in good faith (Burt v Smith, 181 NY 1; Vennard v Sunnyside Savings & Loan Assn., 44 AD2d 727, 354 NYS2d 446).

In determining whether there was probable cause for the institution of the underlying criminal proceeding against plaintiff, the Court must examine the subject harassment charge filed against plaintiff. Penal Law § 240.26(3) states in pertinent part that "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person ... [h]e or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. ... Harassment in the second degree is a violation."

It is undisputed that a Temporary Order of Protection was issued against plaintiff by the Town Court of Bethlehem in the underlying criminal proceeding against plaintiff. Before a Temporary Order of Protection may be issued at a criminal arraignment, a probable cause determination must be made by a judicial officer, based on a verified complaint or supporting deposition containing facts of an evidentiary character providing reasonable cause to believe that a crime has been committed CPL 100.15(3); CPL 100.40(4). Therefore, since a court had granted an Order of Protection in the underlying criminal proceeding, such an order creates a presumption of probable cause which must be rebutted by plaintiff in order to sustain her claim of malicious prosecution. Hornstein v Wolf, 67 NY2d 721, 499 NYS2d 938 (1986); Burt v Smith, 181 NY 1; Butler v Ratner, 210 AD2d 691, 619 NYS2d 871 (3d Dept 1994); Denza v Diaz, 5 Misc 3d 1002(A) (Kings Co. Sup Ct 2004).

Plaintiff was provided an opportunity to rebut this presumption of probable cause. Plaintiff submitted to the Court a copy of the Information/Complaint and other court documents relating to the subject criminal proceeding. The Information/Complaint stated, in part, that "[t]he defendant [Allyson L. Shea] has followed the complainant [Joan Savage] to her place of [*3]employment on 3/31/04 and again on 4/21/04 at which time the defendant did force the complainant off the road." Based upon a review of the submitted documentation, the Court finds that plaintiff has failed to meet her burden to rebut the probable cause presumption at issue in defendant's motion. The Court determines that the criminal Information/Complaint filed with the Bethlehem Town Court in the subject criminal proceeding did provide probable cause to believe that plaintiff violated the provisions of Penal Law § 240.26(3).

With respect to defendant's argument that plaintiff failed to establish the first element of a malicious prosecution cause of action, the Court need not decide this issue in view of the Court's determination that plaintiff failed to establish that there was an absence of probable cause, the third element of a malicious prosecution claim referenced above.

Therefore, plaintiff has not met the heavy burden the law places on a party who wishes to bring an action for malicious prosecution. Accordingly, defendant's motion for summary judgment is granted, and plaintiff's small claim is dismissed.

The Court is mindful of the difficult circumstances that preceded the filing of this small claims action and of the toll those circumstances have taken on both parties. However, pursuant to law, the Court has concluded that plaintiff is not entitled to the relief she sought in this action.

So ordered.

Dated at Albany, New York

December 20, 2006

__________________________________

Helena Heath-Roland

Albany City Court Judge