FLEMING, JACQUELINE v. SANGSTER, EARNSTEIN ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
388
CA 16-01150
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.
JACQUELINE FLEMING, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
EARNSTEIN SANGSTER, DEFENDANT-RESPONDENT.
LOUIS ROSADO, BUFFALO, FOR PLAINTIFF-APPELLANT.
RAMOS & RAMOS, BUFFALO (JOSHUA I. RAMOS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered October 1, 2015. The order, among other
things, granted defendant’s motion for summary judgment dismissing the
third amended complaint.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this litigation arising from a longstanding
acrimonious relationship between neighbors, plaintiff appeals from an
order that, inter alia, granted defendant’s motion for summary
judgment dismissing the third amended complaint. Contrary to
plaintiff’s contention, Supreme Court properly granted defendant’s
motion insofar as it sought dismissal of the cause of action for
malicious prosecution. The record establishes that no judicial
proceedings were commenced as a result of defendant’s complaints to
various agencies in July 2010 (see generally Broughton v State of New
York, 37 NY2d 451, 457, cert denied 423 US 929). With respect to
defendant’s complaint to the police in August 2011, which accused
plaintiff of violating a previously-issued order of protection and
which resulted in a criminal proceeding, defendant established that
she merely reported the purported violations to the police and did not
“play[ ] an active role in the prosecution, such as giving advice and
encouragement or importuning the authorities to act” (Viza v Town of
Greece, 94 AD2d 965, 966, appeal dismissed 64 NY2d 776; see Moorhouse
v Standard, N.Y., 124 AD3d 1, 7; Quigley v City of Auburn, 267 AD2d
978, 979), and that there was probable cause to believe that plaintiff
had committed criminal contempt (see Shapiro v County of Nassau, 202
AD2d 358, 358, lv denied 83 NY2d 760; see generally Colon v City of
New York, 60 NY2d 78, 82, rearg denied 61 NY2d 670). Plaintiff failed
to raise a triable issue of fact in opposition (see generally
Zuckerman v City of New York, 49 NY2d 557, 562).
-2- 388
CA 16-01150
We agree with defendant that the court properly granted that part
of her motion seeking dismissal of the cause of action alleging false
arrest and imprisonment inasmuch as plaintiff first alleged that cause
of action in an amended complaint after expiration of the one-year
statute of limitations (see CPLR 215 [3]; Coleman v Worster, 140 AD3d
1002, 1004).
We have considered plaintiff’s remaining contentions, including
those concerning the dismissal of the remaining causes of action and
the denial of her cross motion for partial summary judgment, and we
conclude that they are without merit.
Entered: March 31, 2017 Frances E. Cafarell
Clerk of the Court