Opinion
CA 01-02353
May 3, 2002.
Appeal from an order of Supreme Court, Chautauqua County (Martoche, J.), entered March 27, 2001, which, inter alia, granted defendant's motion for summary judgment.
GOODELL GOODELL, JAMESTOWN (JOHN L. GOODELL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FREDERICK A. LARSON, COUNTY ATTORNEY, MAYVILLE (KURT D. GUSTAFSON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Plaintiff commenced this action alleging claims for negligence and malicious prosecution based on the issuance of a warrant for his violation of probation. Plaintiff alleged that he had informed the Probation Department that he was awaiting transfer of his probation from New York to Pennsylvania, his home state, and that defendant was negligent in handling the matter and engaged in malicious prosecution by pursuing the violation of probation. We conclude that defendant established its entitlement to judgment as a matter of law and that plaintiff failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562). With respect to the negligence claim, defendant established as a matter of law that the actions of the Probation Department were discretionary in nature rather than ministerial ( see Shaw v. Town of Camillus, 288 A.D.2d 902, 903; Glowinski v. Braun, 105 A.D.2d 1153, appeal dismissed 65 N.Y.2d 637). With respect to the malicious prosecution claim, defendant established that plaintiff pleaded guilty to a violation of probation. Thus, defendant established as a matter of law that the underlying action did not terminate in plaintiff's favor, a necessary element of a claim for malicious prosecution ( see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84; Cantalino v. Danner, 96 N.Y.2d 391, 395).