        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

406
CA 12-01499
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


JAMES P. ZETES, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KELLY A. STEPHENS AND LUCAS A. STEPHENS,
DEFENDANTS,
COUNTY OF NIAGARA, JAMES VOUTOUR, IN HIS
CAPACITY AS NIAGARA COUNTY SHERIFF, AND GUY
FRATELLO, ALSO KNOWN AS G. FRATELLO,
INDIVIDUALLY AND IN HIS CAPACITY AS NIAGARA
COUNTY DEPUTY SHERIFF,
DEFENDANTS-RESPONDENTS-APPELLANTS.
(APPEAL NO. 1.)


JOHN J. DELMONTE, NIAGARA FALLS, FOR PLAINTIFF-APPELLANT-RESPONDENT.

WEBSTER SZANYI LLP, BUFFALO (ADAM P. HATCH OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Niagara County (Richard C. Kloch, Sr., A.J.), entered January 31,
2012. The order, among other things, granted that part of the motion
of defendants County of Niagara, James Voutour, and Guy Fratello
seeking summary judgment dismissing plaintiff’s complaint against
them.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for, inter alia, false arrest, false imprisonment, and
malicious prosecution. In appeal No. 1, plaintiff appeals and
defendants County of Niagara, James Voutour, in his capacity as
Niagara County Sheriff, and Guy Fratello, also known as G. Fratello,
individually and in his capacity as Niagara County Deputy Sheriff
(collectively, County defendants), cross-appeal from an order granting
that part of the County defendants’ motion for summary judgment
dismissing the complaint against them, but denying that part of their
motion for sanctions based upon plaintiff’s alleged frivolous conduct.
In appeal No. 2, defendants Kelly A. Stephens and Lucas A. Stephens
(collectively, Stephens defendants) appeal from an order denying their
motion for summary judgment dismissing the complaint against them.

     We note at the outset that, with respect to appeal No. 1,
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                                                         CA 12-01499

plaintiff has abandoned his second cause of action for abuse of
process and his fifth cause of action for negligence against the
County defendants (see Ciesinski v Town of Aurora, 202 AD2d 984, 984).
Further, with respect to appeal No. 2, plaintiff concedes that his
second cause of action and so much of his tenth cause of action that
alleges that the Stephens defendants tortiously interfered with
“present contractual relations” are not viable. We therefore modify
the order in appeal No. 2 accordingly.

     Regarding the remaining causes of action, we conclude that
Supreme Court properly granted that part of the County defendants’
motion for summary judgment dismissing the malicious prosecution cause
of action (first cause of action) against them in appeal No. 1, and
properly denied that part of the Stephens defendants’ motion seeking
the same relief in appeal No. 2. “The elements of the tort of
malicious prosecution are: (1) the commencement or continuation of a
criminal proceeding by the defendant against the plaintiff, (2) the
termination of the proceeding in favor of the accused, (3) the absence
of probable cause for the criminal proceeding and (4) actual malice”
(Broughton v State of New York, 37 NY2d 451, 457, cert denied 423 US
929; see Smith-Hunter v Harvey, 95 NY2d 191, 195; Nichols v Xerox
Corp., 72 AD3d 1501, 1502). With respect to the first element, it is
undisputed that defendants commenced a criminal proceeding against
plaintiff by filing a misdemeanor information accusing him of stalking
in the fourth degree. Further, with respect to the second element,
neither the County defendants nor the Stephens defendants established
that the criminal proceeding did not terminate in plaintiff’s favor
(see Cantalino v Danner, 96 NY2d 391, 395-396; Smith-Hunter, 95 NY2d
at 195-197).

     With respect to the third and fourth elements, however, the
County defendants established that Fratello had probable cause to file
the misdemeanor information and that he did not act with actual malice
(see Lyman v Town of Amherst, 74 AD3d 1842, 1842; Weiss v Hotung, 26
AD3d 855, 856; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d
128, 132). “In the context of a malicious prosecution cause of
action, probable cause ‘consists of such facts and circumstances as
would lead a reasonably prudent person in like circumstances to
believe plaintiff guilty’ ” (Passucci v Home Depot, Inc., 67 AD3d
1470, 1470, quoting Colon v City of New York, 60 NY2d 78, 82, rearg
denied 61 NY2d 670). It is well established that “information
provided by an identified citizen accusing another of a crime is
legally sufficient to provide the police with probable cause to
arrest” (Lyman, 74 AD3d at 1843 [internal quotation marks omitted]).
Actual malice “means that the defendant must have commenced the . . .
criminal proceeding due to a wrong or improper motive, something other
than a desire to see the ends of justice served” (Nardelli v Stamberg,
44 NY2d 500, 503; see Putnam v County of Steuben, 61 AD3d 1369, 1371,
lv denied 13 NY3d 705; Du Chateau, 253 AD2d at 132).

     Here, the County defendants submitted evidence that Kelly A.
Stephens (hereafter, Stephens) told Fratello that plaintiff (1)
frequently drove by her house and often slowed down or stopped in
                                 -3-                           406
                                                         CA 12-01499

front of the house; (2) took pictures of Stephens and the house; (3)
made sexual comments to Stephens; and (4) threatened to damage
Stephens’s property. Stephens told Fratello that she feared for her
safety and, according to Fratello, “[s]he was visibly upset and crying
as she explained [plaintiff]’s conduct to [him].” After Fratello
advised Stephens “multiple times” that making a false statement was
punishable as a crime, Stephens provided a supporting deposition
attesting to the above facts. Fratello averred in an affidavit that
Stephens “appeared to be reliable and believable,” and that he “had no
reason to believe [that] anything [she] told [him] was false or
inaccurate.” He had never met Stephens or plaintiff prior to that
date. Based upon the information Stephens provided, Fratello
completed a misdemeanor information accusing plaintiff of stalking in
the fourth degree. He had no further involvement in plaintiff’s
prosecution. Inasmuch as the County defendants established that
Fratello had probable cause to file the misdemeanor information and
that he did not act with actual malice, thereby negating two necessary
elements of malicious prosecution, they met their initial burden on
that part of their motion for summary judgment with respect to that
cause of action.

     In opposition to the County defendants’ motion, plaintiff failed
to raise an issue of fact with respect to probable cause or actual
malice. Plaintiff submitted excerpts from Fratello’s deposition in
which he testified that he did not recall Stephens mentioning any
disputes that she and her husband had with plaintiff concerning money
or deed restrictions, and that he had not heard anything to that
effect prior to that time. Plaintiff also submitted excerpts from
Stephens’s deposition, in which she testified that she did not recall
mentioning to Fratello her disagreement with plaintiff over amounts
allegedly owed to plaintiff for construction work that he performed.
Plaintiff admitted at his own deposition that he had no reason to
believe that Fratello was aware of plaintiff’s claim that the Stephens
defendants owed him $4,000 for construction work. Although plaintiff
emphasizes alleged “inconsistencies” with respect to whether Fratello
attempted to contact him before filing the misdemeanor information and
speculates that Fratello “covered up his failure or intentional
decision to not talk to the plaintiff by saying that he could not
locate him,” we conclude that such conjecture is insufficient to raise
a question of fact whether Fratello “lacked probable cause to initiate
the criminal proceeding or acted with malice in doing so” (Weiss, 26
AD3d at 856; see Du Chateau, 253 AD2d at 132).

     With respect to the Stephens defendants, however, we agree with
plaintiff that there are triable issues of fact whether Stephens had
probable cause to file criminal charges against plaintiff and whether
she acted out of malice (see Nichols, 72 AD3d at 1502). “A probable
cause finding as to one [group of defendants] does not compel such a
finding as to the other where the facts and circumstances known to
each defendant may be different” (Weiss, 26 AD3d at 857 [internal
quotation marks omitted]). Here, plaintiff submitted evidence
suggesting that Stephens commenced the criminal proceeding against him
out of spite or retaliation based upon his enforcement of alleged deed
restrictions and his claim against the Stephens defendants for money
                                 -4-                           406
                                                         CA 12-01499

owed to him for construction work that he performed, and that Stephens
provided incomplete or misleading information to Fratello (see
generally Nardelli, 44 NY2d at 502-503). We thus conclude that there
is a question of fact whether Stephens commenced the criminal
proceeding against plaintiff “due to . . . something other than a
desire to see the ends of justice served” (id. at 503; see Nieminski v
Cortese-Green, 74 AD3d 1550, 1551).

     With respect to the false arrest and false imprisonment causes of
action, i.e., the third and fourth causes of action, respectively, we
conclude that the court properly dismissed those causes of action
against the County defendants in appeal No. 1, but that it also should
have dismissed those causes of action against the Stephens defendants
in appeal No. 2. We therefore further modify the order in appeal No.
2 accordingly. It is well settled that a plaintiff’s appearance in
court as a result of the issuance of a criminal summons or appearance
ticket is insufficient to support a claim of false arrest or false
imprisonment (see Weiss, 26 AD3d at 856; see also Santoro v Town of
Smithtown, 40 AD3d 736, 737; Nadeau v LaPointe, 272 AD2d 769,
770-771), and here “the record establishes that plaintiff was never
arrested or held in actual custody by any law enforcement agency as a
result of the charge . . . filed against [him]” (Weiss, 26 AD3d at 856
[internal quotation marks omitted]; see Du Chateau, 253 AD2d at 132).

     Regarding appeal No. 1 and specifically the causes of action
asserted against only the County defendants, we conclude that, because
the court properly dismissed plaintiff’s causes of action for false
arrest, false imprisonment, and malicious prosecution against the
County defendants in appeal No. 1, the cause of action for negligent
training and/or instruction (sixth cause of action) was likewise
properly dismissed against them (see Cotter v Summit Sec. Servs.,
Inc., 14 AD3d 475, 476; cf. U.S. Underwriters Ins. Co. v Val-Blue
Corp., 85 NY2d 821, 823). In any event, the County defendants
established that Fratello did not “lack[] training in proper law
enforcement techniques” (Barr v County of Albany, 50 NY2d 247, 258;
cf. Martinetti v Town of New Hartford Police Dept., 307 AD2d 735,
737), and plaintiff failed to raise an issue of fact concerning a lack
of training (see generally Panzera v Johnny’s II, 253 AD2d 864, 865).
The court also properly dismissed plaintiff’s 42 USC § 1983 cause of
action (seventh cause of action) against the County defendants, which
was premised upon the false arrest, false imprisonment, and malicious
prosecution claims (see generally Shopland v County of Onondaga, 154
AD2d 941, 941). With respect to the County defendants’ cross appeal
in appeal No. 1, we conclude that, although the court properly
dismissed the complaint in its entirety against the County defendants,
the court did not abuse its discretion in denying that part of their
motion seeking sanctions against plaintiff for frivolous conduct (see
generally Matter of Lodge Hotel, Inc. v Town of Erwin Planning Bd., 62
AD3d 1257, 1259; Cammarata v Cammarata, 61 AD3d 912, 913).

     With respect to appeal No. 2 and specifically the causes of
action asserted against the Stephens defendants only, we conclude that
the court properly denied that part of their motion seeking to dismiss
                                 -5-                           406
                                                         CA 12-01499

the libel cause of action (eighth cause of action). Stephens’s
statement that plaintiff made “several threats toward[] [Stephens] and
[her] residence,” which was contained in her supporting deposition
that she provided to the police, “tends to expose the plaintiff to
public contempt, ridicule, aversion or disgrace, or [to] induce an
evil opinion of him in the minds of right-thinking persons” (Rinaldi v
Holt, Rinehart & Winston, 42 NY2d 369, 379, rearg denied 42 NY2d 1015,
cert denied 434 US 969). Moreover, contrary to the contention of the
Stephens defendants, proof of special damages is not required for
libel on its face or libel per se (see Rinaldi, 42 NY2d at 379;
Nichols v Item Publs., 309 NY 596, 600-601; 1 NY PJI3d 3:23 at 224
[2012]).

     We agree with the Stephens defendants, however, that the court
should have dismissed the slander cause of action (ninth cause of
action) against them, and we therefore further modify the order in
appeal No. 2 accordingly. The two allegedly defamatory statements
pleaded in the complaint do not constitute slander per se because they
do not “charg[e] plaintiff with a serious crime” or “tend to injure
[plaintiff] in his . . . trade, business or profession” (Liberman v
Gelstein, 80 NY2d 429, 435; see Warlock Enters. v City Ctr. Assoc.,
204 AD2d 438, 438). Contrary to the contention of plaintiff, stalking
in the fourth degree does not constitute a “serious crime” for
purposes of slander per se (see generally Liberman, 80 NY2d at 436).
“To be actionable as words that tend to injure another in his or her
profession, the challenged statement must be more than a general
reflection upon [the plaintiff]’s character or qualities. Rather, the
statement must reflect on [the plaintiff’s] performance or be
incompatible with the proper conduct of [the plaintiff’s] business”
(Golub v Enquirer/Star Group, 89 NY2d 1074, 1076; see Liberman, 80
NY2d at 436). Here, Stephens’s alleged statements, at worst, reflect
generally upon plaintiff’s character or qualities, and do not relate
to his occupation as a builder or developer (see Liberman, 80 NY2d at
436; Warlock Enters., 204 AD2d at 438; see also Kowalczyk v
McCullough, 55 AD3d 1208, 1211). Because the statements at issue do
not constitute slander per se, plaintiff was required “to plead and
prove special damages, i.e., the loss of something having economic or
pecuniary value” (Hassig v FitzRandolph, 8 AD3d 930, 932 [internal
quotation marks omitted]; see Nasca v Sgro, 101 AD3d 963, 965), and he
failed to do so (see Cammarata, 61 AD3d at 913; Hassig, 8 AD3d at
932). Although plaintiff also relies upon statements Stephens
allegedly made in various internet postings, CPLR 3016 (a) requires a
plaintiff alleging libel or slander to set forth “the particular words
complained of” in the complaint (see Nieminski, 74 AD3d at 1551), and
here plaintiff did not include any of those statements in his
complaint or in his bill of particulars.

     Contrary to the further contention of the Stephens defendants, we
conclude that the court properly denied that part of their motion
seeking to dismiss the tenth cause of action insofar as it alleges
tortious interference with prospective business relations. “To
establish a claim for tortious interference with prospective business
advantage, a plaintiff must demonstrate that (a) the plaintiff had
business relations with a third party; (b) the defendant interfered
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                                                         CA 12-01499

with those business relations; (c) the defendant acted with the sole
purpose of harming the plaintiff or by using unlawful means; and (d)
there was resulting injury to the business relationship” (North State
Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d 5, 21; see PJI
3:57). As relevant here, a plaintiff is required to identify a
specific customer that the plaintiff would have obtained “but for” the
defendant’s wrongful conduct (see Parrott v Logos Capital Mgt., LLC,
91 AD3d 488, 489; Learning Annex Holdings, LLC v Gittelman, 48 AD3d
211, 211; Forken v CIGNA Corp., 234 AD2d 992, 993). Although many of
plaintiff’s assertions of interference are too vague to support a
claim of tortious interference with prospective business relations,
plaintiff testified at his deposition that a particular couple
allegedly changed their minds about purchasing a lot in plaintiff’s
subdivision because of the conduct of the Stephens defendants. We
conclude that such testimony is sufficient to raise a question of fact
whether the Stephens defendants tortiously interfered with plaintiff’s
prospective business relations (see generally Caprer v Nussbaum, 36
AD3d 176, 204).

     Finally, because several substantive causes of action against the
Stephens defendants remain intact, we reject their contention that the
court erred in refusing to dismiss the eleventh cause of action,
seeking punitive damages against them (cf. Sclar v
Fayetteville-Manlius School Dist., 300 AD2d 1115, 1115, lv denied 99
NY2d 510; see generally Mantione v Crazy Jakes, Inc., 101 AD3d 1719,
1719-1720).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
