Labor & Employment Law

Employee sues public employer for alleged malicious prosecution

By Harvey Randall, Esq.

Employee sues public employer for alleged malicious prosecution
Donald Perryman v Village of Saranac Lake, 41 A.D.3d 1080, Appellate Division, Third Department

Donald Perryman had served as the Village of Saranac Lake?s police chief for some 10 years. Based on complaints it had received concerning Perryman?s performance of his duties, the Village?s Board of Trustees suspended him from his position and hired a private investigation firm, McKee and Associates, Inc., to investigate the allegations of misconduct.

Ultimately, the Board voted to file disciplinary charges against Perryman. A disciplinary hearing was held. The Hearing Officer recommended that the charges be dismissed and the Board adopted the Hearing Officer?s recommendation. It then reinstated Perryman as the Village?s police chief.

Following this, Perryman sued the Village and McKee and Associates. He made a number of allegations in support of his action, including an allegation that he was the victim of malicious prosecution. Supreme Court dismissed all of Perryman?s claims except his claims regarding malicious prosecution. As to Perryman?s malicious prosecution claims, the court said that although there was probable cause to support 16 of the 19 charges that the Board brought against Perryman, there were questions of fact whether there was probable cause to support the remaining three charges.

When Supreme Court refused to grant the Village?s motion for summary judgment with respect to Perryman?s allegation of malicious prosecution, the Village and McKee appealed.

The Appellate Division held that it was unnecessary for the Village to show that its action in filing charges against Perryman was supported by probable cause for each and every allegation it made against Perryman. Rather, said the court, Saranac could meet its burden with respect to its motion for summary judgment by demonstrating that probable cause existed for the prior disciplinary action taken against Perryman as a whole.

In the words of the Appellate Division, ?Supreme Court erred in refusing to dismiss [Perryman?s] malicious prosecution claim.?

In contrast, said the court:

To succeed on a claim for malicious prosecution, a plaintiff must show that the defendant initiated a proceeding that terminated in favor of the plaintiff, ?an entire lack of probable cause in the prior proceeding,? malice, and special injury; and

Probable cause is defined as ?such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty.?

The Appellate Division noted that it had recently dismissed a malicious prosecution cause of action based on prior civil litigation where ?at least some causes of action in the underlying complaint? had ?potential merit,? citing its ruling in Black v Green Harbour Homeowners? Association, 37 AD3d 1013.

As Supreme Court found that there was probable cause to support all but three of the 19 charges that the Board brought against Perryman, ?a finding that is not challenged on this appeal,? the Appellate Division concluded that his malicious prosecution claim should have been dismissed by Supreme Court as well. The Appellate Division commented that ?in his brief on appeal, [Perryman] expressly declines to address the charges that Supreme Court found to be supported by probable cause.?

Full post as published by New York Public Personnel Law on April 01, 2008 (boomark / email).