Opinion
No. 2734.
May 6, 2010.
Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered December 18, 2008, which, insofar as appealed from as limited by the briefs, granted defendants-respondents' cross motion for summary judgment dismissing the malicious prosecution cause of action, unanimously affirmed, without costs.
Alexander J. Wulwick, New York, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.
Before: Mazzarelli, J.P., Sweeny, Freedman, Richter and Manzanet-Daniels, JJ.
Respondents established their prima facie entitlement to summary judgment dismissing the malicious prosecution cause of action by submitting evidence establishing that there was probable cause to arrest and prosecute plaintiff, as the undercover officer identified plaintiff as the person who sold him cocaine during a buy-and-bust operation ( see Batista v City of New York, 15 AD3d 304; Grant v Barnes Noble, 284 AD2d 238). In opposition, plaintiff failed to raise a triable issue of fact. The alleged inconsistencies in the accounts provided by the arresting officer and the undercover officer do not undermine a finding of probable cause. Furthermore, the cause of action is not viable as the complaint fails to allege actual malice ( see Shapiro v County of Nassau, 202 AD2d 358, lv denied 83 NY2d 760). [Prior Case History: 2008 NY Slip Op 33399(U).]