Opinion
February 23, 1981
In an action, inter alia, to recover damages for false arrest and malicious prosecution, plaintiff appeals from an order of the Supreme Court, Kings County, dated June 5, 1979, which, inter alia, granted defendant's motion for summary judgment and dismissed the complaint. Order modified, on the law, by deleting the first and second decretal paragraphs, and substituting therefor a provision granting defendant's motion for summary judgment except as to the cause of action for malicious prosecution arising out of plaintiff's prosecution for the attempted rape in April of 1964, and complaint dismissed as to all but that cause of action. As so modified, order affirmed, without costs or disbursements. In the complaint under review, plaintiff alleged, inter alia, parallel causes of action for false arrest and malicious prosecution arising out of three separate criminal prosecutions. On the instant motion for summary judgment, the city maintained, in part, that all but one of these causes of action were time barred, and that the remaining cause of action (for malicious prosecution) was legally insufficient due to the absence of a favorable termination of the underlying criminal action and the conclusive establishment of probable cause for prosecuting the plaintiff. From a grant of summary judgment in the defendant's favor, plaintiff appeals. For purposes of the applicable Statute of Limitations, the causes of action for false imprisonment accrued upon plaintiff's release from confinement in 1966 (see Boose v. City of Rochester, 71 A.D.2d 59, 65; Caminito v. City of New York, 25 A.D.2d 848, affd 19 N.Y.2d 931), so that all of these causes of action were time barred at the commencement of this action in 1974 (see General Municipal Law, § 50-i). Moreover, since the various causes of action for malicious prosecution accrued when each of the underlying criminal proceedings was terminated in plaintiff's favor (see Giglio v Delesparo, 46 A.D.2d 928), his claims with respect to the two prosecutions which terminated, respectively, in 1965 and 1966, were also time barred in 1974. Thus, it is only plaintiff's remaining cause of action, i.e., for malicious prosecution based on the charge of attempted rape, which was timely commenced. Plaintiff was eventually convicted of that charge in 1967, and his conviction was thereafter affirmed on appeal (see People v Whitmore, 35 A.D.2d 607, affd 28 N.Y.2d 826). However, in 1973, his conviction was vacated and the charges dismissed on motion of the District Attorney, Kings County. Since the basis of that motion was the discovery of "fresh evidence" which cast doubt upon the sufficiency and trustworthiness of the trial evidence, we believe that the 1973 dismissal must be considered to be a favorable termination of the criminal proceedings against the plaintiff for purposes of this action (see Reit v. Meyer, 160 App. Div. 752). Generally, a conviction which survives appeal would constitute conclusive evidence of probable cause of initiating a criminal prosecution, and would therefore be fatal to the maintenance of a cause of action for malicious prosecution (see Broughton v. State of New York, 37 N.Y.2d 451, 458; see, also, Restatement, Torts 2d, § 667). Where, however, that affirmed conviction has subsequently been vacated on evidentiary grounds, there exists, at the least, a question as to whether the presumption of probable cause survives (see Boose v. City of Rochester, 71 A.D.2d 59, 69, supra). In any event, where a plaintiff can establish that his conviction was obtained by fraud, perjury, conspiracy, or other undue means (e.g., the misrepresentation, falsification or withholding of material evidence), a cause of action for malicious prosecution may nevertheless be sustained (see Caminito v. City of New York, supra; Simmonds v. Sowers, 253 App. Div. 819; see, also, Boose v. City of Rochester, supra). Turning to the facts of the instant case, plaintiff alleges, in pertinent part, that the police and the District Attorney's office were guilty of certain misconduct which constituted, in effect, the intentional withholding of exculpatory evidence, so that a viable cause of action has at least been stated. However, it is well established that a prosecutor is entitled to absolute immunity "for actions taken within the scope of his official duties in initiating and pursuing a criminal prosecution and in presenting the State's case" (Brenner v. County of Rockland, 67 A.D.2d 901, mot for lv to app den 47 N.Y.2d 705). Accordingly, since all of the alleged wrongdoing on the part of the District Attorney's office concerns conduct "intimately associated with the judicial phase of the criminal process, and * * * performed by the prosecutor in a quasi-judicial capacity" (Brenner v. County of Rockland, supra, p 901), the doctrine of absolute immunity fully applies to bar liability on this branch of the case (see Schanbarger v. Kellogg, 35 A.D.2d 902, app dsmd 29 N.Y.2d 649, cert den 405 U.S. 919). Moreover, it appears that the city would not be responsible for the prosecutor's misconduct in any event (see Lee v. City of Mount Vernon, 49 N.Y.2d 1041; Zimmerman v. City of New York, 52 Misc.2d 797; see, also, Rottkamp v. Young, 21 A.D.2d 373, 377, affd 15 N.Y.2d 831; cf. Dennis v. Sparks, 449 U.S. 24). The defendant may, however, be held responsible for the alleged misconduct of the members of its own police department regarding the prosecution (cf. Lee v. City of Mount Vernon, supra), and since, in our view, there exists a viable issue of fact regarding the truth of the allegations of police misconduct and its sufficiency to negate the presumption of probable cause and demonstrate the existence of actual malice (see Giglio v. Delesparo, 46 A.D.2d 928, supra; see, also, Boose v. City of Rochester, supra, pp 69-70), summary judgment was improperly granted with respect to the cause of action for malicious prosecution arising out of the charge of attempted rape. We have considered the parties' remaining contentions and find them to be without merit. Titone, J.P., Lazer, Gulotta and Margett, JJ., concur.