Opinion
February 26, 1990
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the order is modified, on the law, by deleting the provisions thereof which denied so much of those branches of the defendants' motions which were for summary judgment dismissing the plaintiffs' causes of action to recover damages for assault, unlawful imprisonment and conversion, and substituting therefor provisions granting so much of those branches of the defendants' motions which were for summary judgment dismissing the plaintiffs' causes of action to recover damages for assault, unlawful imprisonment and conversion, and by deleting the provision thereof which struck the plaintiffs' demand for punitive damages against the defendant Willcox in action number 1 and substituting therefor a provision denying that branch of the defendant Willcox's motion which was to strike the demand for punitive damages against him in action number 1; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Contrary to the plaintiffs' contentions, the Supreme Court correctly dismissed the first seven causes of action in action number 2. Notwithstanding the plaintiffs' allegations that 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). Since the notice of claim relating to action number 1 fails to adequately apprise the county and the individual defendants of the plaintiffs' assault, unlawful imprisonment or conversion causes of action, these causes of action should have been dismissed (see, Mojica v New York City Tr. Auth., 117 A.D.2d 722).
We further conclude that the court erred in granting that branch of the motion of the defendant Willcox which was to strike the demand for punitive damages against him. Although punitive damages are not available against a municipal corporation because the imposition of such damages would punish the taxpayer rather than the wrongdoer (see, Sharapata v Town of Islip, 56 N.Y.2d 332; Bishop v Bostick, 141 A.D.2d 487), punitive damages may be assessed against a municipal employee who engages in intentional wrongdoing in excess of the scope of his official duties. Under such circumstances, the employee will not be entitled to indemnification (Public Officers Law § 18 [b], [c]), but, rather, will be personally liable for any punitive damages assessed against him (Carney v City of Utica, 148 A.D.2d 927; Kelly v Kane, 98 A.D.2d 861; Miller v City of Rensselaer, 94 A.D.2d 862). In the case at bar, the plaintiffs have alleged that the defendant Willcox committed intentional and malicious acts during the investigatory phase of the plaintiffs' prosecution which are clearly beyond the scope of his authority as an Assistant District Attorney. Accordingly, the plaintiffs are entitled to seek punitive damages against this defendant only.
We have reviewed the parties' remaining contentions and find them to be without merit. Mollen, P.J., Mangano, Kunzeman and Kooper, JJ., concur.