If the conduct is extraneous to the judicial proceedings, as in the nature of investigatory, law-enforcement or other functions that might be performed by other public officials, the conduct is afforded the same qualified immunity granted to those acting in a similar capacity. Buckley, 509 U.S. at 270-271; Claude H. v. County of Oneida, 214 AD2d 964, 965; Rosen Bardunias, 158 AD2d 679, 680; Cunningham v. State of New York, 71 AD2d 181.

lv denied 93 NY2d 814. But see Rosen Bardunias v County of Westchester, 158 AD2d 679 [2d Dept 1990, lv denied 76 NY2d 703, cert denied sub nom Bardunias v County of Westchester, 498 US 1086; Cunningham v State of New York, 71 AD2d 181 [3d Dept 1979].) However, both New York state and federal courts analyzing § 1983 claims recognize that a prosecutor is entitled only to qualified immunity from a § 1983 claim based on the prosecutor's investigative acts.

However, even prosecutors who are afforded absolute immunity for actions undertaken in their quasi-judicial role of prosecuting crimes, have only qualified immunity for actions that are investigative or administrative in nature. Claude H. v. County of Oneida, 214 A.D.2d 964, 965 (4th Dep't 1995); Rodrigues v. City of New York, 193 A.D.2d 79, 87 (1st Dep't 1993); Cunningham v. State, 71 A.D.2d 181, 183 (2d Dep't 1979). Other appellate division cases have limited absolute immunity to the attorneys of child welfare agencies.

Aside from the pleaded acts of prosecutorial misconduct to which the majority confines itself, claimant's allegations of aggrievement, not without support in the record, may also be said to spell out a charge that the accusations which were made against him not only were baseless but hardly free from political motivation. But, assuming these conflicted with the Code of Professional Responsibility (DR7-103; EC7-14; see, also, EC7-13) or could be thought to justify action to vindicate the victim's reputation (cf. United States v Modica, 663 F.2d 1173, 1185), it seems settled that these too could not support an action against the sovereign in this State (see Rao v State of New York, 74 A.D.2d 964, mot for lv to app den 50 N.Y.2d 803, cert den 449 U.S. 982; Cunningham v State, 71 A.D.2d 181). Judges JASEN, GABRIELLI, JONES and WACHTLER concur; Judge FUCHSBERG concurs in a separate memorandum; Chief Judge COOKE and Judge MEYER taking no part.

We reject the contention of the County of Niagara and Caldwell that the complaint fails to state a cause of action against them because they are entitled to prosecutorial immunity. Prosecutorial immunity provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process' ” ( Buckley v. Fitzsimmons, 509 U.S. 259, 270, 113 S.Ct. 2606, 125 L.Ed.2d 209, quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128;see Rodrigues v. City of New York, 193 A.D.2d 79, 85, 602 N.Y.S.2d 337), i.e., conduct that involves “ ‘initiating a prosecution and in presenting the State's case’ ” ( Johnson v. Kings County Dist. Attorney's Off., 308 A.D.2d 278, 285, 763 N.Y.S.2d 635, quoting Imbler, 424 U.S. at 431, 96 S.Ct. 984;see Cunningham v. State of New York, 71 A.D.2d 181, 182, 422 N.Y.S.2d 497). Thus, a prosecutor's conduct in preparing for those functions may be absolutely immune, but acts of investigation are not ( see Buckley, 509 U.S. at 270, 113 S.Ct. 2606). Prosecutors are afforded only qualified immunity when acting in an investigative capacity ( see id. at 275, 113 S.Ct. 2606;Johnson, 308 A.D.2d at 285, 763 N.Y.S.2d 635;Claude H. v. County of Oneida, 214 A.D.2d 964, 965, 626 N.Y.S.2d 933). The focus is on the conduct for which immunity is claimed ( see Buckley, 509 U.S. at 271, 113 S.Ct. 2606). It is therefore the case that, where the prosecutor advises the police ( see Burns v. Reed, 500 U.S. 478, 493–495, 111 S.Ct. 1934, 114 L.Ed.2d 547) or performs investigative work in order to decide whether a suspect should be arrested ( see Buckley, 509 U.S. at 273–275, 113 S.Ct. 2606), the prosecutor is not entitled to absolute immunity.

On a motion for summary judgment, the movant has the burden of tendering sufficient evidence to make out its prima facie case. The failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Winegrad v. New York Univ. Hosp., 64 N.Y.2d 851; Berkey v. Emma, 291 A.D.2d 517). The DA defendants are not entitled to absolute immunity for official actions taken by them under any and all circumstances, and at all times (see Rodrigues v. City of New York, 193 A.D.2d 79; Rosen Bardunias v. County of Westchester, 158 A.D.2d 679, appeal denied 76 N.Y.2d 703, cert denied 498 U.S. 1086; Cunningham v. State of New York, 71 A.D.2d 181). Accordingly, as the proponents of the motion for summary judgment dismissing the complaint on that basis, they had the burden of showing that such immunity was warranted here. The DA defendants failed to do so.

A prosecutor is afforded absolute immunity for actions undertaken in his quasi-judicial role, i.e., those actions taken in "preparation for the initiation of a prosecution or for judicial proceedings" (Buckley v Fitzsimmons, 509 US ___, ___, 113 S Ct 2606, 2615; see, Sher v Pellicano, 203 A.D.2d 273, 273-274; Rosen Bardunias v County of Westchester, 158 A.D.2d 679, 680, lv denied 76 N.Y.2d 703, rearg denied 76 N.Y.2d 889, cert denied sub nom. Bardunias v County of Westchester, 498 U.S. 1086; Minicozzi v City of Glen Cove, 97 A.D.2d 815, 816). Where a prosecutor goes outside his quasi-judicial role, however, and acts as an investigator or police officer, he is entitled only to qualified immunity (Burns v Reed, 500 U.S. 478, 491-496; Rodrigues v City of New York, 193 A.D.2d 79, 85; Cunningham v State of New York, 71 A.D.2d 181, 183). The complaint alleges that the District Attorney was acting in an investigative, law-enforcement role when he directed the police to arrest plaintiff.

Thus, with respect to State law claims, there is some authority for conferring an immunity upon prosecutors somewhat broader than that to which they are entitled under Federal law. (But see, Cunningham v State of New York, 71 A.D.2d 181, 183 [prosecutor engaged in the role of an investigator "should not enjoy absolute but only qualified immunity"].) Not even a broadened scope of absolute immunity, however, would afford defendants protection for plaintiffs' State law claims.

Memorandum: Supreme Court erred in denying the County's motion to dismiss plaintiff's cause of action for malicious prosecution. The County is immune from liability for the acts of an Assistant District Attorney who, as here, has acted solely in a quasi-judicial capacity (see, Imbler v Pachtman, 424 U.S. 409; Rosen Bardunias v County of Westchester, 158 A.D.2d 679; Cunningham v State of New York, 71 A.D.2d 181; Brenner v County of Rockland, 67 A.D.2d 901, lv denied 47 N.Y.2d 705).

Assistant District Attorney Willcox was motivated by malice and was less than forthright in his prosecution of the criminal charges for which the plaintiffs were ultimately exonerated, the defendants are absolutely immune from civil liability for exercising this prosecutorial function (see, Imbler v Pachtman, 424 U.S. 409; Arteaga v State of New York, 72 N.Y.2d 212, 216; Ryan v State of New York, 81 A.D.2d 947, affd 56 N.Y.2d 561; Whitmore v City of New York, 80 A.D.2d 638). Furthermore, the Supreme Court correctly denied the defendants summary judgment on the plaintiffs' causes of action in action number 1 arising out of the manner in which the defendants obtained and executed the search warrant in the course of the criminal investigation of the plaintiffs. With regard to these claims, the defendants were acting only in an investigatorial capacity, and thus were correctly held to enjoy only a qualified immunity from civil liability (see, Bacon v County of Westchester, 149 A.D.2d 451; Cunningham v State of New York, 71 A.D.2d 181; Drake v City of Rochester, 96 Misc.2d 86, affd 74 A.D.2d 996). Although the defendants were not entitled to summary judgment in action number 1 on the ground of absolute prosecutorial immunity, several of the plaintiffs' causes of action in action number 1 should have been dismissed owing to the inadequacy of the plaintiffs' notices of claim (see, General Municipal Law § 50-e).