647 N.Y.S.2d 604 | N.Y. App. Div. | 1996
Order unanimously affirmed without costs. Memorandum: On February 27, 1992, at about 2:40 a.m., plaintiff entered a restaurant in Rome. According to Susan Sterling, a waitress at the restaurant, he appeared to be intoxicated. Plaintiff became loud and boisterous and Sterling finally called the police to request that they remove plaintiff from the premises. Upon their arrival, Officers Simons and la
"The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” (Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929; see, Colon v City of New York, 60 NY2d 78, 82, rearg denied 61 NY2d 670). Probable cause in the context of malicious prosecution is defined as the existence of facts and circumstances leading a reasonably prudent person to believe plaintiff guilty of a crime (Colon v City of New York, supra, at 82). "[IJnformation provided by an identified citizen accusing another of a crime is legally sufficient to provide the police with probable cause to arrest” (People v Banks, 151 AD2d 491, lv denied 74 NY2d 805). If the facts are undisputed, the existence of probable cause may be resolved as a matter of law (see, Weingarten v Halfpenny Auto Parts, 138 AD2d 373, 374).
Defendant met its initial burden of showing that the officers had probable cause to make an arrest and plaintiff failed to raise a triable issue of fact in response. Vehicle and Traffic Law § 1194 (1) (a) provides that "a police officer may, without a