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

407
CA 15-01387
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


RANDY SMITHERS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ONEIDA, DEFENDANT-RESPONDENT.


MARK A. WOLBER, UTICA, FOR PLAINTIFF-APPELLANT.

HILTON ESTATE & ELDER LAW, LLC, BOONVILLE (JAMES S. RIZZO OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Erin P.
Gall, J.), entered May 17, 2015. The order, inter alia, granted
defendant summary judgment dismissing the complaint.

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

     Memorandum: Plaintiff commenced this malicious prosecution
action after a Town Justice dismissed a criminal information charging
him with public lewdness (Penal Law § 245.00). The Town Justice
concluded that the evidence at the bench trial was legally
insufficient to establish that plaintiff engaged in a lewd act when he
exposed his genitals to his neighbors on a public street. Defendant
moved to dismiss the complaint pursuant to CPLR 3211 or, in the
alternative, for summary judgment dismissing the complaint pursuant to
CPLR 3212. Supreme Court denied the motion insofar as it sought to
dismiss the complaint but granted the motion insofar as it sought
summary judgment dismissing the complaint. We affirm.

     We reject plaintiff’s contention that the court was required to
give the parties notice that it was treating the motion as one for
summary judgment. “[A] court may treat a motion to dismiss as a
motion for summary judgment when the parties have otherwise received
adequate notice by expressly seeking summary judgment or submitting
facts and arguments clearly indicating that they were deliberately
charting a summary judgment course” (Village of Webster v Monroe
County Water Auth., 269 AD2d 781, 782 [internal quotation marks
omitted]; see generally Mihlovan v Grozavu, 72 NY2d 506, 508). Here,
plaintiff was on notice that defendant was seeking summary judgment in
the alternative and, indeed, opposed that part of the motion.

     Contrary to plaintiff’s further contention, the court properly
granted the motion. A plaintiff asserting a cause of action for
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                                                         CA 15-01387

malicious prosecution must demonstrate “ ‘that a criminal proceeding
was commenced; that it was terminated in favor of the accused; that it
lacked probable cause; and that the proceeding was brought out of
actual malice’ ” (Kirchner v County of Niagara, 107 AD3d 1620, 1621;
see Engel v CBS, Inc., 93 NY2d 195, 204). In support of its motion,
defendant established that it had probable cause to charge plaintiff
with public lewdness (see generally Zetes v Stephens, 108 AD3d 1014,
1015-1016). “Probable cause consists of such facts and circumstances
as would lead a reasonably prudent person in like circumstances to
believe plaintiff guilty” (Colon v City of New York, 60 NY2d 78, 82,
rearg denied 61 NY2d 670). In her supporting deposition given to the
Sheriff, the complainant stated that she and her husband stopped
walking to let plaintiff and his dog walk past them, and plaintiff
stopped and said “what is your problem.” Plaintiff said something
else the complainant did not understand before he unzipped his jeans,
“pulled his penis out[,] stood there with his penis in his hand[,] and
yelled something” else at them. While the Town Justice concluded that
the statute required the exposure of genitals in the context of sexual
activity, the statute in fact prohibits the exposure of the private or
intimate parts of a person’s body “in a lewd manner” (Penal Law
§ 245.00). The allegations by the complainant showed that plaintiff
“did not merely expose his private parts, but did so in an offensive
manner,” which was “sufficient to establish the ‘lewd manner’ element
of public lewdness” (Matter of Carlos R., 78 AD3d 461, 461; see Matter
of Tyrone G., 74 AD3d 671, 671; Matter of Jeffrey V., 185 AD2d 241,
241-242). The information provided by the complainant was therefore
sufficient to provide the Sheriff with probable cause to arrest
plaintiff and charge him with public lewdness (see generally Lyman v
Town of Amherst, 74 AD3d 1842, 1843). In opposition to the motion,
plaintiff failed to raise a triable issue of fact whether defendant
had probable cause to commence the criminal prosecution (see generally
Zetes, 108 AD3d at 1016).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
