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Barrett v. Watkins - 2011 NY Slip Op 2521, 82 A.D.3d 1569, 919 N.Y.S.2d 569 (App. Div.)


To succeed on a malicious prosecution claim, plaintiffs are required to establish 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. In order for a civilian complainant to be considered to have initiated a criminal proceeding, it must be shown that the complainant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act. Merely furnishing information to law enforcement authorities, who are then free to exercise their own judgment as to whether criminal charges should be filed, and giving testimony at a subsequent trial are insufficient to establish liability.


Plaintiffs, driver Robert Barrett and his passengers, drove to a remote, wooded public recreation area. When they attempted to leave, they discovered that the access road was blocked by an unoccupied truck. Wade Ebert, who stated he was employed by defendant Steven M. Dubrovsky, refused to move the truck. Defendant Dubrovsky, whose company, defendants Woodstone companies, owned the land adjacent to the recreational area, arrived at the area about 40 minutes later, told plaintiffs that they did not belong there and stated that he did not care if they had to sit there all night. Defendant Dubrovsky then got into his vehicle with Ebert and left the area, leaving plaintiffs behind. The police, who were called earlier by both parties, eventually arrived with Dubrovsky and resolved the incident by instructing that the truck be moved. No charges were brought against any party as a result of this incident.

Approximately three weeks later, plaintiffs were driving on a public road when they passed a "no trespassing" sign erected by defendant development company. Plaintiff driver turned the vehicle around and left the area. Defendant Michael B. Watkins, a contractor who was working in the private development, witnessed the incident and reported it to defendant Dubrovsky and defendant David Allen. As this was not the first time that plaintiff Barrett had allegedly trespassed on private property owned by defendants Woodstone companies, a criminal trespass complaint against Barrett was filed by defendant Allen at the request of defendant Dubrovsky and on behalf of the defendants Woodstone companies. The subsequent criminal case was apparently dismissed due to a lack of evidence. Plaintiffs commenced this action alleging unlawful imprisonment against, among others, defendants Dubrovsky and the Woodstone companies based upon the earlier incident and malicious prosecution against defendants Watkins, Allen and the Woodstone companies in connection with the prosecution of the criminal trespass complaint resulting from the later incident. The trial court granted defendants' subsequent motions for summary judgment and dismissed the complaint, prompting the appeal.


Did the lower court err in dismissing the complaint that alleged unlawful imprisonment and malicious prosecution in connection with the prosecution of a criminal trespass complaint?




The appellate court held that plaintiffs were confined and that there was a question of fact as to whether defendant Dubrovsky intended to confine them. The employee had told the police officer that he was ordered by Dubrovsky to block the road in order to prevent plaintiffs from leaving the area. Turning to the malicious prosecution cause of action, the appellate court agreed that summary judgment was warranted as defendant companies merely furnished information to law enforcement authorities, who were then free to exercise their own judgment as to whether criminal charges should be filed.

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