Supreme Court, Appellate Division, Fourth Department, New York.
Edward Howard PHILLIPS, Jr., Appellant-Respondent,
v.
The CITY OF SYRACUSE and its Police Department, Respondent-Appellant,
The County of Onondaga, et al., Defendants. Appeal No. 2.
Nov. 13, 1981.
Attorneys and Law Firms
**726 Stephen F. Guthmann, DeWitt by Stephen Guthmann, DeWitt, for appellant-respondent.
David M. Garber, Corp. Counsel, Syracuse by Robert Jenkins, Syracuse, for respondents-appellants.
Before SIMONS, J. P., and CALLAHAN, DENMAN, MOULE and SCHNEPP, JJ.
Opinion
MEMORANDUM:
*957 Plaintiff, Edward Phillips, instituted this action against several named defendants based mainly upon negligence, false imprisonment and malicious prosecution. The action stems from plaintiff's arrest and extradition for a crime committed by his brother, Jesse Phillips, who identified himself as Edward Phillips.
Several motions and cross-motions were brought by plaintiff and defendants resulting in numerous orders, one of which forms the basis of this appeal. Plaintiff and defendant City of Syracuse and its Police Department both appeal from an order granting defendant's motion to dismiss the complaint as to the first cause of action sounding in negligence; denying its motion as to the remaining causes of action and denying plaintiff's cross-motion for partial summary judgment. We affirm that part of the order dismissing the first cause of action and dismissing plaintiff's cross-motion and modify the order so as to dismiss the complaint in its entirety as against the City of Syracuse and its Police Department.
Plaintiff has failed to specifically allege any facts which would evidence malice on the part of the City of Syracuse and its Police Department. The conclusory allegation that plaintiff instituted a criminal proceeding against him “maliciously and without probable cause, * * * although the arrest and incarceration was pursuant to an indictment and warrant”, is insufficient to support a charge of malicious prosecution where an indictment appears on the face of the complaint. Plaintiff failed to allege any facts that would tend to demonstrate that the defendant City and its Police Department acted with improper motives (see, Nardelli v. Stamberg, 44 N.Y.2d 500, 406 N.Y.S.2d 443, 377 N.E.2d 975).
Order unanimously modified and as modified affirmed without costs.