Patrick v. United Parcel Service, Inc. , 33 N.Y.S.3d 902 ( 2016 )

Patrick v United Parcel Serv., Inc. (2016 NY Slip Op 05446)

Patrick v United Parcel Serv., Inc.

2016 NY Slip Op 05446

Decided on July 7, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2016
Mazzarelli, J.P., Friedman, Andrias, Webber, Gesmer, JJ.

1687 300841/10

[*1]Lincoln Patrick, et al., Plaintiffs-Appellants,

v

United Parcel Service, Inc., et al., Defendants-Respondents, "John" and "Jane" Does, etc., Defendants.

The Cochran Firm, New York (Norman A. Olch of counsel), for appellants.

Ansa Assuncao LLP, White Plains (Stephen McLaughlin of counsel), for respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 31, 2015, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claim of malicious prosecution, unanimously affirmed, without costs.

The record does not support a finding that defendants initiated the criminal proceeding against plaintiff Lincoln Patrick without probable cause and with malice (see Colon v City of New York, 60 NY2d 78, 82 [1983]). It shows only that they provided the police with information and cooperated with authorities; there is no evidence that defendants affirmatively induced the authorities to act (see Moorhouse v Standard, N.Y., 124 AD3d 1, 7 [1st Dept 2014]; Brown v Sears Roebuck & Co., 297 AD2d 205, 209 [1st Dept 2002]). Further, the record establishes probable cause for plaintiff's arrest and prosecution for theft and drug possession (see Brown, 297 AD2d at 210). The grand jury indictment also raises a presumption of probable cause for the drug possession charge that plaintiff has not rebutted (see Colon, 60 NY2d at 82; Morant v City of New York, 95 AD3d 612 [1st Dept 2012]). Nor does the record support a finding of actual malice on defendants' part since there is no evidence that defendants initiated the arrest due to an improper motive (see Nardelli v Stamberg, 44 NY2d 500 [1978]).

We find plaintiff's other arguments unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2016

DEPUTY CLERK