Shopland v. County of Onondaga

154 A.D.2d 941, 546 N.Y.S.2d 70, 1989 N.Y. App. Div. LEXIS 13072

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1989
• Status: Published

Opinion

Order unanimously modified on the law without costs and as modified affirmed, in accordance with the following memorandum: Special Term erred in denying defendant Walker’s motion for summary judgment on the malicious prosecution cause of action. It is well established that an indictment by a Grand Jury creates a presumption of probable cause (Colon v City of New York, 60 NY2d 78, 82; Lee v City of Mount Vernon, 49 NY2d 1041; Landsman v Moss, 133 AD2d 359, 360; Malte v State of New York, 125 AD2d 958, 960, Iv denied 69 NY2d 607; Boose v City of Rochester, 71 AD2d 59, 69). The presumption of probable cause may be rebutted only upon a showing that the indictment was procured by fraud, perjury, the suppression of evidence or other police misconduct (Colon v City of New York, supra, at 82-83; Malte v State of New York, supra, at 960; Boose v City of Rochester, supra, at 69). Here, the affirmation by plaintiffs attorney submitted in opposition to defendant’s motion was insufficient to raise a triable issue of fact whether defendant Walker initiated the underlying criminal action maliciously and without probable cause (see, Phillips v City of Syracuse, 84 AD2d 957, affd 57 NY2d 996; Rao v State of New York, 74 AD2d 964, Iv denied 50 NY2d 803, cert denied 449 US 982; Matter of Williams v City of Hudson, 69 AD2d 921; Johler v Consolidated Laundries Corp., 54 AD2d 632). Moreover, because plaintiffs cause of action pursuant to 42 USC § 1983 was premised on his claim of malicious prosecution, it likewise should have been dismissed (see, Fair v City of Rochester, 84 AD2d 908, 909). (Appeals from order of Supreme Court, Onondaga County, Mordue, J. — summary judgment.) Present — Callahan, J. P., Denman, Boomer, Balio and Lawton, JJ.