Posted: August 16, 2014

Defendant Liable for Malicious Prosecution Even Though No Actual Prosecution Took Place

On July 30, 2014, the Second Circuit issued a decision in Stampf v. Trigg, Docket No. 11-3225-CV, affirming an EDNY decision finding a defendant liable for malicious prosecution.

In Stampf, a defendant, Trigg, accused the plaintiff, her co-worker Stampf, of touching her inappropriately and filed a complaint with the MTA police.  Trigg’s complaint led to Stampf’s arrest, during which she “was handcuffed” in front of co-workers, “placed in a police car,” “held in a locked cell for approximately four hours, and “issued a desk appearance ticket (‘DAT’), which listed Forcible Touching as the offense charged.”  Stampf was subsequently released and no criminal complaint ever was filed against her. However, Stampf’s employer, the LIRR, suspended her for 21 days without pay; “an arbitration panel convened pursuant to the Railway Labor Act and affirmed the” LIRR’s “determination that [the plaintiff] violated [its] Anti-Harassment Policy, but reduced the suspension to ten days and awarded [the plaintiff] compensation for lost time.”

Stampf subsequently sued Trigg, the LIRR “and other defendants” in the EDNY “asserting violations of the Federal Employers Liability Act (‘FELA’) and 42 U.S.C. § 1983; state law claims of false arrest, malicious prosecution, negligent and intentional infliction of emotional distress; and violations of state and city human rights laws.” The EDNY granted the defendants summary judgment on all of Stampf’s claims except her “malicious prosecution against Trigg . . . and her discrimination claims against the LIRR.” At trial, “the jury found Trigg liable for malicious prosecution and awarded Stampf damages of $200,000 for past mental and emotional suffering, $100,000 for future mental and emotional suffering, $30,000 as compensation for out-of-pocket losses, and $150,000 as punitive damages, totaling $480,000.”

On appeal, the Second Circuit affirmed the jury’s finding of liability but found the damages excessive. As to liability, the Second Circuit explained:

To establish a malicious prosecution claim under New York law, a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions. . . . .

As to the first element, the Second Circuit held that the MTA’s issuance of a DAT to Stampf constituted “the initiation or continuation of a criminal proceeding.” It explained:

In Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1249-50 (2d Cir. 1979), . . . this court concluded that a New York court would rule that the issuance of [a Desk] Appearance Ticket commences a prosecution for purposes of determining whether an action for malicious prosecution lies. The Rosario court reasoned:

[When a DAT is issued,] the accused bears the inconvenience and expense of appearing in court and, perhaps more important, is subject to the anxiety induced by a pending criminal charge. Moreover, if others learn that charges have been lodged against the accused, his character is no less traduced because the accusation is contained in an Appearance Ticket rather than in a summons.

Trigg urges us to reject our holding in Rosario in light of the subsequent New York Civil Court decision in McClellan v. New York City Transit Authority, 444 N.Y.S.2d 985 (Civ. Ct., Kings Co. 1981). McClellan ruled that the issuance of a D.A.T. by the police, without a concomitant filing of an accusatory instrument, or other judicial intervention, is not the commencement of a criminal action and cannot support a cause of action for malicious prosecution. The court noted its respectful disagreement with the United States Court of Appeals for the Second Circuit.

However, the Appellate Division, Fourth Department has explicitly declined to follow McClellan and instead adopted Rosario’s reasoning, holding that a DAT was sufficient to support a claim of malicious prosecution. See Snead v. Aegis Sec., Inc., 482 N.Y.S.2d 159, 160-61 (4th Dep’t 1984). Likewise, in reversing the dismissal of a malicious prosecution claim, the Third Department, citing Snead, treated the issuance of a DAT as constituting initiation of a criminal proceeding. Allen v. Town of Colonie, 583 N.Y.S.2d 24, 26 (3d Dep’t 1992).

Trigg also relies on the Second Department’s ruling in Stile v. City of New York, 569 N.Y.S.2d 129 (2d Dep’t 1991), which dismissed a malicious prosecution claim on the ground that such a claim may arise only after an arraignment or indictment or some other evaluation by a neutral body that the charges were warranted. However, Stile is not on point because the plaintiff in that case was not issued a DAT or any other command to appear in court.

We recognize that several courts of first instance, following the language of Stile, have ruled that a DAT does not initiate a criminal proceeding. Nonetheless, in view of the fact that the Second Department has never held that a DAT does not initiate a criminal proceeding for the purposes of a malicious prosecution claim, and that the Third and Fourth Departments in Snead and Allen held, in accordance with Rosario, that it does, we adhere to the position we took in Rosario that, under New York law, the issuance of a DAT sufficiently initiates a criminal prosecution to sustain a claim of malicious prosecution.

(Internal quotations and citations omitted).

The Second Circuit rejected the argument that Trigg “played [no] role in the issuance of the DAT,” holding that “[i]n order to initiate a criminal proceeding for the purposes of a malicious prosecution claim, Trigg need not have explicitly named each element of a particular crime[ and i]nstead, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act,” something which she clearly did.

Finally, the Second Circuit rejected the argument that “the proceeding” against Stampf did not terminate in her favor, explaining that a “dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents the formal abandonment of the proceedings by the public prosecutor.”

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