Opinion
101 CA 18–01141
06-07-2019
Mark BRATGE and Katrina Bratge, Plaintiffs–Appellants, v. Jeffery SIMONS, et al., Defendants, County of Oneida and Oneida County Child Advocacy Center, Defendants–Respondents.
FRANK POLICELLI, UTICA, FOR PLAINTIFFS–APPELLANTS. BARTH SULLIVAN BEHR, SYRACUSE (DANIEL K. CARTWRIGHT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
FRANK POLICELLI, UTICA, FOR PLAINTIFFS–APPELLANTS.
BARTH SULLIVAN BEHR, SYRACUSE (DANIEL K. CARTWRIGHT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: This action arises from an accusation made against Mark Bratge (plaintiff), a junior high school teacher, by a student in one of his classes. Plaintiff was prosecuted on charges arising from that accusation, but was acquitted after a bench trial. Insofar as relevant here, plaintiffs commenced this action seeking damages for personal injuries under the theory of malicious prosecution. They appeal from an order granting the motion of County of Oneida and Oneida County Child Advocacy Center (collectively, defendants) for summary judgment dismissing the complaint against them. We affirm.
Initially, we note that plaintiffs conceded in Supreme Court that the first, third and fourth causes of action should be dismissed against defendants, and on appeal plaintiffs do not present any argument concerning those causes of action. Consequently, they have abandoned any challenge to the dismissal of those causes of action (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). Therefore, only the second cause of action, for malicious prosecution against these defendants is at issue on this appeal.
We reject plaintiffs' contention that the court should have permitted further discovery before determining the motion. It is well settled that a party opposing summary judgment on the ground that additional discovery is needed must "demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" ( Buto v. Town of Smithtown, 121 A.D.3d 829, 830, 994 N.Y.S.2d 366 [2d Dept. 2014] [internal quotation marks omitted]; see CPLR 3212[f] ; Gannon v. Sadeghian, 151 A.D.3d 1586, 1588, 57 N.Y.S.3d 252 [4th Dept. 2017] ). Here, we agree with defendants that plaintiffs' " ‘mere hope’ that further depositions would disclose evidence to prove their case is insufficient to support denial of the motion" ( Boyle v. Caledonia–Mumford Cent. Sch., 140 A.D.3d 1619, 1621, 34 N.Y.S.3d 548 [4th Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209065 [2016] ).
With respect to the merits, we conclude that defendants met their initial burden of establishing their entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). It is well settled that, in order "[t]o obtain recovery for malicious prosecution, a plaintiff must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" ( Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; see Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ; Putnam v. County of Steuben, 61 A.D.3d 1369, 1370, 876 N.Y.S.2d 819 [4th Dept. 2009], lv denied 13 N.Y.3d 705, 2009 WL 2925526 [2009] ). Thus, " ‘[p]robable cause to believe that a person committed a crime is a complete defense to claims of ... malicious prosecution’ " ( Batten v. City of New York, 133 A.D.3d 803, 805, 20 N.Y.S.3d 160 [2d Dept. 2015], lv denied 28 N.Y.3d 902, 2016 WL 4742309 [2016] ; see Broyles v. Town of Evans, 147 A.D.3d 1496, 1496, 47 N.Y.S.3d 605 [4th Dept. 2017] ; see e.g. Kirchner v. County of Niagara, 153 A.D.3d 1572, 1573, 61 N.Y.S.3d 406 [4th Dept. 2017] ).
"In the context of a malicious prosecution cause of action, probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty ... It is well established that information provided by an identified citizen accusing another of a crime is legally sufficient to provide the police with probable cause to arrest" ( Dann v. Auburn Police Dept., 138 A.D.3d 1468, 1470, 31 N.Y.S.3d 335 [4th Dept. 2016] [internal quotation marks omitted]; see Mahoney v. State of New York, 147 A.D.3d 1289, 1291, 47 N.Y.S.3d 798 [3d Dept. 2017], lv denied 30 N.Y.3d 906, 2017 WL 5560541 [2017] ; Lyman v. Town of Amherst, 74 A.D.3d 1842, 1843, 903 N.Y.S.2d 626 [4th Dept. 2010] ). Although the identified citizen in this case was a minor, "the sole testimony of a minor is sufficient to establish probable cause" ( Medina v. City of New York, 102 A.D.3d 101, 106, 953 N.Y.S.2d 43 [1st Dept. 2012] ), and she provided a sworn deposition accusing plaintiff of committing the crime of which he was accused. Contrary to plaintiffs' contention, the "mere denial by the accused of the complainant's claims will not constitute ‘materially impeaching circumstances’ or grounds for questioning the complainant's credibility so as to raise a question of fact as to probable cause" ( id. at 105, 953 N.Y.S.2d 43 ), and "[t]here is nothing in the record that suggests that [defendants' investigator] should have questioned the complainant['s] credibility" ( Grimes v. City of New York, 106 A.D.3d 441, 441, 965 N.Y.S.2d 50 [1st Dept. 2013] ). Consequently, the court properly concluded that the investigator had " ‘[p]robable cause to believe that [plaintiff] committed a crime, [which] is a complete defense to claims of ... malicious prosecution’ " ( Batten, 133 A.D.3d at 805, 20 N.Y.S.3d 160 ).