CHETRICK v. COHEN

Friday, February 15, 2002

Supreme Court

Suffolk County

Justice Underwood

CHETRICK v. COHEN ” ORDERED that the defendants District Attorney James M. Catterson, Jr., and Assistant District Attorneys Frank Morro, Jr., Glenn Murphy, and Richard Dunn’s motion for summary judgment is granted under the circumstances presented herein. (CPLR 3212). It is further

ORDERED that the plaintiff’s cross-motion for summary judgment as to defendants District Attorney James M. Catterson, Jr., and Assistant District Attorneys Frank Morro, Jr., Glenn Murphy, and Richard Dunn is denied.

This is an action for false arrest, false imprisonment, abuse of process, malicious prosecution, coercion, assault and battery, defamation, intentional infliction of emotional distress, harassment, aggravated harassment, attempted entrapment, fraudulent inducement, fraud, intentional tort, intentional interference with contractual rights, prima facie tort, civil rights violations, and legal fees each arising out of the arrest and subsequent prosecution of plaintiffs Harold Chetrick and Kenneth Chetrick for insurance fraud and grand larceny. Plaintiff Harold Chetrick as Executor of the Estate of Helen Chetrick has brought a derivative claim.

The plaintiffs, both attorneys, were arrested on March 14, 1996 by way of felony complaint charged with one count of insurance fraud in the third degree and one count of grand larceny in the third degree. On November 22, 1996, the plaintiffs were indicted and charged with insurance fraud in the second degree, attempted grand larceny in the second degree, conspiracy in the fourth degree and two counts of falsifying records. By decision and order of the Hon. John V. Vaughn, J.C.C., dated February 5, 1997, the indictment was dismissed on the grounds that the People failed to give notice, pursuant to CPL 190.50 (5), to the defendants ( plaintiffs herein ) of their right to testify before the Grand Jury. Said order granted the People leave to re-present and the plaintiffs were again indicted on March 7, 1997 and charged with insurance fraud in the second degree, insurance fraud in the third degree, attempted grand larceny in the second degree, grand larceny in the third degree, conspiracy in the fourth degree and two counts of falsifying business records in the first degree. The plaintiffs moved to dismiss the second indictment and the motion was granted by decision and order dated June 17, 1997 (J. Vaughn J.C.C.).

It is well settled that ” ‘a prosecutor is entitled to absolute immunity for actions taken within the scope of his official duties in initiating and pursuing a criminal prosecution and in presenting the State’s case.’ [citations omitted]“. (Shapiro v. Town of Clarkstown, et. al., 238 A.D.2d 498, 499, 656 N.Y.S.2d 682 [2nd Dept. 1997]). “In the usual case where the government professes entitlement to absolute sovereign immunity, no question arises concerning the authority of its officials to act ( see, e.g., Arteaga v. State of New York, 72 N.Y.2d 212, 218, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Tango v. Tulevech, supra, 61 N.Y.2d at 41-42, 471 N.Y.S.2d 73, 459 N.E.2d 182). The sole question, ordinarily, is whether the official actions constitute discretionary conduct which sufficiently manifests the attributes of judicial decision-making to merit full immunity. (Arteaga v. State of New York, supra, 72 N.Y.2d at 217, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Tarter v. State of New York, supra, 68 N.Y.2d at 518-519, 510 N.Y.S.2d 528, 503 N.E.2d 84; Santangelo v. State of New York, 101 A.D.2d 20, 28-29, 474 N.Y.S.2d 995)”. (Pietra v. State of New York, 71 N.Y.2d 792, 530 N.Y.S.2d 510,511 [1988]).

Herein, there is nothing in the record to indicate that the defendants’ actions did not constitute official, discretionary, quasi judicial activities warranting absolute privilege. (See, Hazen v. Dufrane, 226 A.D.2d 901, 640 N.Y.S.2d 684 [3rd Dept. 1996]). The search of the plaintiffs’ office was authorized by a search warrant executed by the Hon. Louis Ohlig, J.C.C. The plaintiffs were indicted by two separate Grand Juries. Although the indictments were subsequently dismissed pursuant to CPL 190.50 (5) and CPL 30.30 respectively, the actions of the defendants which gave rise to the dismissals were clearly discretionary. As such, we find that the moving defendants are entitled to immunity and the motion is granted. Based upon the foregoing, the plaintiffs cross-motion is in all respects denied.

This shall constitute the decision and order of the Court.

Submit judgment.