New York State Court of Claims

New York State Court of Claims
PORTER v. STATE OF NEW YORK, # 2018-038-540, Claim No. 123337, Motion No. M-90807


Defendant's motion for summary judgment granted, and claim for malicious prosecution dismissed. Defendant conceded the commencement of a criminal prosecution, and did not demonstrate that the termination of the criminal proceeding was not final. However, defendant demonstrated that there was probable cause to arrest claimant, thus defeating the third and fourth elements of the cause of action, and claimant did not raise a triable issue of material fact regarding the existence of probable cause.

Case information

UID: 2018-038-540
Claimant(s): ANDRE W. PORTER
Claimant short name: PORTER
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123337
Motion number(s): M-90807
Cross-motion number(s):
Claimant's attorney: THE SGAMBETTERA LAW FIRM
By: Matthew J. Sgambettera, Esq.
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 17, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


This claim alleges that claimant was falsely and maliciously arrested by a New York State Police Investigator who instituted criminal proceedings against claimant without any reasonable or probable cause, and that the criminal matter was dismissed in its entirety on October 19, 2013 (see Claim,  2-4). The claim initially asserted various theories upon which defendant should be found liable to claimant. Defendant moved to dismiss the claim in its entirety for failure to state a cause of action. Giving the claim the generous reading that is due on such a motion, and acknowledging claimant's pro se status at that time, the Court granted defendant's motion in part, denying it only with respect to a cause of action sounding in malicious prosecution (see Porter v State of New York, UID No. 2015-038-578 [Ct Cl, DeBow, J., Nov. 19, 2015] [Calabrese Affirmation, Exhibit C]). Defendant moves for summary judgment dismissing the remainder of the claim, which claimant, now represented by counsel, opposes.

A movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A cause of action for malicious prosecution has four elements: " '(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (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'  " (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000], quoting Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see DeLourdes Torres v Jones, 26 NY3d 742, 760 [2016]; Colon v City of New York, 60 NY2d 78, 82 [1983]). Because the claimant must ultimately prove all four elements of the cause of action, the defendant will be entitled to summary judgment if it establishes its right to judgment as a matter of law on only one element, while to withstand defendant's summary judgment motion, claimant must raise an issue of fact with respect to all causes of action upon which defendant has made its prima facie case. Defendant concedes that claimant can establish that a criminal proceeding was commenced against him, but it argues that he cannot establish any of the remaining three elements.

The facts underlying the criminal proceeding against claimant follow. Claimant was involved in an automobile accident on July 4, 2009. On October 29, 2009 he submitted a no-fault claim to Nationwide General Insurance Company seeking compensation for loss of earnings, in which he asserted that he had been out of work from his full-time employment at Price Chopper (also referred to as the Golub Corporation) since the accident (see Calabrese Affirmation, Exhibit D). An Employer's Wage Verification Report, identified as an NF-6 form, was completed by Kirk Leonard, a night manager at Price Chopper in Schenectady and signed on December 24, 2009 (see id., Exhibit H). Leonard indicates that claimant was currently employed as a grocery clerk for 35 hours per week (id.). A second NF-6 form, dated April 28, 2010 and ostensibly completed by "H.R. Denise Cross" (see id., Exhibit I) reports that claimant had been previously employed at Price Chopper working an average of 18.5 hours per week, but that claimant's last day of work was May 18, 2009, more than seven months before Leonard reported on December 24, 2009 that claimant was then currently employed. The second NF-6 also stated that Price Chopper's payroll system would have included claimant as an active associate until his termination was processed by his store on July 20, 2009 (see id.). After interactions between claimant and Howard Garvar, a representative of Nationwide Insurance, claimant withdrew his no-fault claim on May 10, 2010 (see id., Exhibit E).

New York State Police Senior Investigator Nicholas Georgeadis testified in deposition that Garvar believed that the no-fault claim was "fake," that Garvar contacted Georgeadis to get a State Police case number that he could provide to the New York State Insurance Department, and that Georgeadis opened a case on May 11, 2010 (see id., Exhibit T-2, pp. 22-23, 26). Garvar contacted State Insurance Department Investigator Phil D'Angelo, who conducted an investigation and determined that the NF-6 from Kirk Leonard was not truthful and was unauthorized (see id., p.83, 85-86; see also id., Exhibit G ["(Investigator) found that (claimant) was terminated from price Chopper 2 months prior to the MVA, and the mgr (Kirkland) who prepared the NF6 had no authority to do so, and apparently made up the salary figures on the form"]). On June 8, 2010, Georgeadis and D'Angelo met and reviewed and discussed D'Angelo's investigation and findings. On June 30, 2010 Georgeadis and D'Angelo arrested claimant, who was charged by Georgeadis in felony complaint of insurance fraud in the third degree and in a misdemeanor information of falsifying business records in the second degree, and he was given appearance tickets on those charges (see id., pp. 20, 23-24, 30; Exhibit F). The misdemeanor information sworn by Georgeadis states that a "[d]eposition obtained from Price Chopper shows [claimant] was not working at Price Chopper as of 5/24/09" (id., Exhibit F [Misdemeanor Information]). Ultimately, on October 19, 2012, the charges were dismissed by County Court on its own motion pursuant to Criminal Procedure Law (CPL) 180.85 (see id.). The instant claim was filed on October 15, 2013.

Defendant concedes the first element of the malicious prosecution cause of action, inasmuch as "[t]here can be no argument that a criminal proceeding commenced against claimant" (Calabrese Affirmation,  16).(1)

With regard to the second element of a malicious prosecution cause of action, termination of the proceeding in favor of the accused is satisfied if "any final termination of a criminal proceeding in favor of the accused such that the proceeding cannot be brought again" (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). Where, as here, there has been a dismissal pursuant to CPL  180.85, prosecutors are not precluded from "subsequently filing an indictment charging the same count or counts provided such filing is in accordance with . . . [CPL] article 30" (CPL  180.85 [7]). Defendant argues that the dismissal of the criminal proceedings against claimant were not final at the time he filed this claim in 2013 because charges against claimant could have been brought again until October 28, 2015, as the felony charge of insurance fraud is subject to a five-year statute of limitations (see Calabrese Affirmation  20-22). However, as claimant contends, any such charges would "originate from the prior accusatory instrument" (People v Farkas, 16 NY3d 190, 194 [2011], citing People v Osgood, 52 NY2d 37, 44 [1980]), and accordingly, a future accusatory instrument would be subject to dismissal under CPL 30.30 speedy trial rules (see Smith-Hunter v Harvey, 95 NY2d 191, 198-199 [2000]; see also Berry v Marchinkowski, 137 F.Supp.3d 495, 535 [S.D.N.Y. 2015]). Timeliness in compliance with a statute of limitations is not, as defendant argues, at issue where, as here, a prior accusatory instrument addressing the same conduct has been filed. A dismissal under CPL 30.30 is a final judgment that cannot be revived if the prosecution was terminated in a manner not inconsistent with claimant's innocence (see Smith-Hunter v Harvey, at 198), such as by settlement, mercy, or claimant's misconduct (see id.). Defendant has not disputed claimant's contention that finality of the prosecution is, in this matter, determined by application of CPL  30.30 and not by the expiration of the statute of limitations. Nor has defendant demonstrated that the prosecutor's speedy trial period had not expired prior to the dismissal pursuant to CPL 180.85, or that the prosecution was terminated in a manner that is inconsistent with claimant's innocence. Thus, defendant has not met its initial burden of demonstrating that claimant cannot prove the second element of the malicious prosecution cause of action, and has therefore not yet shown its entitlement to judgment dismissing the claim as a matter of law.

The third element of a malicious prosecution cause of action is the lack of probable cause, and the fourth element - actual malice - may also be established by a lack of probable cause (see Haynes v City of New York, 29 AD3d 521, 523 [2d Dept 2006] citing Hernandez v State of New York, 228 AD2d 902, 904 [3d Dept 1996]).(2)

"Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [claimant] guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983]). "Whether probable cause existed for an arrest may be decided as a matter of law only where the facts leading to the arrest and the proper inferences to be drawn are not in dispute" (Guntlow v Barbera, 76 AD3d 760, 763 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010]).

In support of its motion, defendant demonstrates that prior to arresting claimant, Georgeadis spoke with Garvar, who informed Georgeadis that he had investigated the claim and had determined that it was fake, and that claimant had agreed to withdraw the claim, and that the matter was thereafter referred to D'Angelo, who further investigated the matter and also concluded that the insurance claim was false. Georgeadis thereafter met with D'Angelo and reviewed his investigative file, including claimant's application for benefits, and the NF-6 wage reports of both Kirkland and Cross, and discussed the matter prior to arresting claimant. Further, in bringing charges, Georgeadis relied upon the deposition of a Price Chopper employee that stated that claimant was not employed by Price Chopper as of May 24, 2009, approximately six weeks before his motor vehicle accident. Also prior to the arrest, Georgeadis reviewed the information and documents with his supervisor, who approved the arrest. In the view of the Court, defendant has established prima facie that the facts that were known to Georgeadis and the circumstances of the investigation provided sufficient information to give Georgeadis cause to believe that claimant had committed insurance fraud, and thus, that there was probable cause to arrest claimant.

In opposition to the motion, claimant argues that Georgeadis was presented with contradictory documentary evidence regarding claimant's employment at Price Chopper, and that he did not seek to investigate these contradictions inasmuch as he did not speak with claimant, Kirkland, Cross, or any other employee of Price Chopper prior to arresting claimant. Claimant places almost exclusive and heavy reliance upon Sweet v Smith (42 App Div 502 [4th Dept 1899]), in which it was concluded that it could not be said as a matter of law that probable cause existed to arrest the plaintiff. That case involved an alleged violation of a city ordinance that prohibited the plaintiff from injuring or damaging a tree, and the defendant in the civil action for malicious prosecution had plaintiff arrested and detained for having trimmed a tree that belonged to plaintiff's landlord. The plaintiff claimed that he had removed limbs from the tree with his landlord's permission, in accordance with her directions, and while she was at home in the building in which they both resided. The defendant was the son-in-law and rental agent of the landlord, and he asserted that his mother-in-law had told him that the tree was trimmed by plaintiff without her consent. The defendant did not speak with the plaintiff, even though plaintiff was available to discuss it with defendant for more than two weeks before he was arrested. Additionally, there was evidence before the court that the defendant desired to terminate the plaintiff's tenancy, and that defendant "had procured the plaintiff's arrest to accomplish that end" (id., at 508). The appellate court stated:

"We think that the defendant was bound to obtain such facts and information as he could obtain by reasonable diligence, which would enable him to determine whether or not the plaintiff was probably guilty of the offense charged. The fact that the defendant acted upon hearsay evidence in causing plaintiff's arrest, if such evidence could easily be tested and the truth ascertained, is one element, though not a conclusive one, in determining the question of probable cause.

"Under the circumstances disclosed by the evidence in this case, considering the relations the parties sustained to each other, the nature of the offense charged, and the ease with which the truth of [the mother-in-law's] statements might be ascertained, the question of probable cause should have been submitted to the jury."

(Sweet v Smith, 42 App Div, at 506). Relying on Sweet, claimant contends that defendant's failure to interview claimant and other employees of Price Chopper reveals an inadequate investigation which was based, in part, upon hearsay, and that there is therefore an issue of fact regarding whether there was probable cause for claimant's arrest. This is an over-extension of Sweet's fact pattern that was, essentially, a "he said, she said" dispute. Here, defendant relied upon documentary evidence that suggested insurance fraud, including claimant's withdrawal of the claim, as well as review by and consultation between professional investigators of the facts and the probability that claimant's insurance application was fraudulent. D'Angelo's investigation, which Georgeadis relied upon prior to making the arrest, revealed that claimant's employment was terminated prior to his accident and that Kirkland had no authority to prepare the NF-6 and fabricated salary figures. The supporting deposition cited in the misdemeanor information states that claimant was no longer employed by Price Chopper as of May 24, 2009, which demonstrates that further investigation of the insurance claim was done and that the arrest was not based merely upon assertions contained within the second NF-6 form. The existence of contradictory facts does not necessarily defeat defendant's determination that there was probable cause to believe that claimant's insurance claim was fraudulent, and claimant has not raised any specific issue of fact regarding defendant's probable cause determination. Thus, claimant has not borne his burden in opposition to defendant's motion for summary judgment.

In sum, because claimant has not raised a triable issue of fact that would defeat defendant's prima facie showing that there was probable cause to arrest claimant, he cannot establish the third and fourth elements of his cause of action for malicious prosecution. Defendant is therefore entitled to summary judgment dismissing the claim, and therefore, it is

ORDERED, that defendant's motion number M-90807 is GRANTED, and claim number 123337 is DISMISSED.

April 17, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

(1) Claim Number 123337, filed October 15, 2013;

(2) Verified Answer, filed February 26, 2016;

(3) Notice of Motion, dated July 20, 2017;

(4) Affirmation of Christina M. Calabrese, AAG, dated July 20, 2017, with

Exhibits A-I, T1 and T2;

(5) Affidavit of Claimant Andre W. Porter in Opposition to the Defendant's Motion for

Summary Judgment, sworn to November 28, 2017, with Exhibit A;

(6) Affirmation of Matthew J. Sgambettera, Esq., in Support of Defendants' [sic] Opposition to

Defendant's Motion for Summary Judgment, dated November 26, 2017.

1. Defendant's assertion that it is immune from liability for the conduct of the State Police pursuant to Financial Services Law 405 (c) is misplaced. That statute provides immunity to those who provide information to law enforcement, and it does not include a provision of immunity for the State Police under the facts of this claim.

2. While the element of actual malice can be proven by evidence that the criminal proceeding giving rise to the claim for malicious prosecution was commenced "due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]), here, the parties dispute only whether Investigator Georgeadis had probable cause to arrest claimant, and not whether his alleged actual malice was borne of other miscreance.