Morant v. City of New York

95 A.D.3d 612, 944 N.Y.S.2d 115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2012
• Status: Published

Opinion

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 27, 2010, which, in this action alleging malicious prosecution, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

“The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice” (Colon v City of New York, 60 NY2d 78, 82 [1983]). The existence of probable cause constitutes a complete defense to a claim of malicious prosecution (see Lawson v City of New York, 83 AD3d 609 [2011]).

Here, defendants established their entitlement to judgment as a matter of law. The indictment of plaintiff by a grand jury “create[d] a presumption of probable cause” for his arrest (Colon at 82), and plaintiffs opposition failed to raise a triable issue of fact to rebut this presumption. There is a lack of support for plaintiffs argument that there was no probable cause for his arrest because the search warrant underlying his arrest and indictment was based on false information provided by an confidential informant who was not shown to be reliable. Indeed, there is no indication that plaintiff made an effort in this action to discover the identity of the confidential informant or ascertain whether the informant’s information was false.

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Tom, J.E, Andrias, Renwick, De-Grasse and Abdus-Salaam, JJ.