Opinion
October 6, 1989
Appeal from the Supreme Court, Onondaga County, Mordue, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lawton, JJ.
Order unanimously modified on the law without costs and as modified affirmed, in accordance with the following memorandum: Special Term erred in denying defendant Walker's motion for summary judgment on the malicious prosecution cause of action. It is well established that an indictment by a Grand Jury creates a presumption of probable cause (Colon v City of New York, 60 N.Y.2d 78, 82; Lee v City of Mount Vernon, 49 N.Y.2d 1041; Landsman v Moss, 133 A.D.2d 359, 360; Malte v State of New York, 125 A.D.2d 958, 960, lv denied 69 N.Y.2d 607; Boose v City of Rochester, 71 A.D.2d 59, 69). The presumption of probable cause may be rebutted only upon a showing that the indictment was procured by fraud, perjury, the suppression of evidence or other police misconduct (Colon v City of New York, supra, at 82-83; Malte v State of New York, supra, at 960; Boose v City of Rochester, supra, at 69). Here, the affirmation by plaintiff's attorney submitted in opposition to defendant's motion was insufficient to raise a triable issue of fact whether defendant Walker initiated the underlying criminal action maliciously and without probable cause (see, Phillips v City of Syracuse, 84 A.D.2d 957, affd 57 N.Y.2d 996; Rao v State of New York, 74 A.D.2d 964, lv denied 50 N.Y.2d 803, cert denied 449 U.S. 982; Matter of Williams v City of Hudson, 69 A.D.2d 921; Johler v Consolidated Laundries Corp., 54 A.D.2d 632). Moreover, because plaintiff's cause of action pursuant to 42 U.S.C. § 1983 was premised on his claim of malicious prosecution, it likewise should have been dismissed (see, Fair v City of Rochester, 84 A.D.2d 908, 909).