Opinion
February 6, 1978
In an action to recover damages for false arrest, false imprisonment and malicious prosecution, plaintiff appeals from an order of the Supreme Court, Kings County, dated November 1, 1977, which denied his motion for partial summary judgment. Order affirmed, without costs or disbursements. Plaintiff-appellant's motion is, in effect, a motion to strike those portions of defendant-respondent's answer which deny that the city is liable for the torts of the District Attorneys of New York and Kings Counties. The motion was properly denied since a motion "to strike as sham" no longer exists under the CPLR (see Chicago Dressed Beef Co. v Gold Medal Packing Corp., 22 A.D.2d 1010). We do not reach the question of whether the immunity accorded a District Attorney inures to the benefit of the city (but see, Schubert v Schubert Wagon Co., 249 N.Y. 253 ; Carter v Carlson, 447 F.2d 358, revd on other grounds sub nom. District of Columbia v Carter, 409 U.S. 418). Martuscello, J.P., Damiani, Titone and Shapiro, JJ., concur.