Matthews v. City of New York

Matthews v City of New York (2016 NY Slip Op 02761)

Matthews v City of New York

2016 NY Slip Op 02761

Decided on April 12, 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 April 12, 2016
Tom, J.P., Andrias, Manzanet-Daniels, Kapnick, Gesmer, JJ.

815 310549/10

[*1]Ronald Matthews, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent.

Becker & D'Agostino, PC, New York (Michael D'Agostino of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 16, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's cross motion to amend the complaint to add a claim for malicious prosecution, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying plaintiff's cross motion for leave to amend the complaint (see e.g. Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]), since the proposed amendment lacked merit (see e.g. Bag Bag v Alcobi, 129 AD3d 649 [1st Dept 2015]). Plaintiff failed to submit "an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgment" (id. [internal quotation marks omitted]). Despite two years of discovery, he merely submitted his attorney's affirmation and the proposed amended complaint, verified only by counsel. He submitted no evidence by which to overcome the presumption of probable cause created by his indictment by a grand jury (see Colon v City of New York, 60 NY2d 78, 82-83 [1983]).

In light of the above disposition, we need not consider plaintiff's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 12, 2016

CLERK