Moran v. County of Chautauqua

294 A.D.2d 925, 741 N.Y.S.2d 770, 2002 N.Y. App. Div. LEXIS 4514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2002
• Status: Published

Opinion

—Appeal from an order of Supreme Court, Chautauqua County (Martoche, J.), entered March 27, 2001, which, inter alia, granted defendant’s motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff commenced this action alleging claims for negligence and malicious prosecution based on the issuance of a warrant for his violation of probation. Plaintiff alleged that he had informed the Probation Department that he was awaiting transfer of his probation from New York to Pennsylvania, his home state, and that defendant was negligent in handling the matter and engaged in malicious prosecution by pursuing the violation of probation. We conclude that defendant established its entitlement to judgment as a matter of law and that plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). With respect to the negligence claim, defendant established as a matter of law that the actions of the Probation Department were discretionary in nature rather than ministerial (see Shaw v Town of Camillus, 288 AD2d 902, 903; Glowinski v Braun, 105 AD2d 1153, appeal dismissed 65 NY2d 637). With respect to the malicious prosecution claim, defendant established that plaintiff pleaded guilty to a violation of probation. Thus, defendant established as a matter of law that the underlying action did not terminate in plaintiffs favor, a necessary element of a claim for malicious prosecution (see Martinez v City of Schenectady, 97 NY2d 78, 84; Cantalino v Danner, 96 NY2d 391, 395). Present—Pigott, Jr., P.J., Green, Hurlbutt, Burns and Lawton, JJ.