The plaintiff seeks to recover $5,000.00 from the defendant for malicious prosecution, loss of wages and pain and suffering relating to a criminal charge of harassment in the second degree in this small claims action. The defendant in this matter, Shaera Martin, was the complainant in the above noted criminal action, which charge was dismissed after a non-jury trial. Defendant filed a counterclaim against the plaintiff for assault and battery resulting in physical injury that has caused loss of wages in the amount of $5,000.00. In the criminal case, it was alleged that plaintiff harassed Shaera Martin by pushing, striking, scratching and threatening her on June 22, 2018. The information further alleged that plaintiff’s actions caused defendant to suffer pain to her head as well as abrasions which bled to her neck and arms. In her supporting deposition, Ms. Martin affirmed that the plaintiff’s actions caused her to fear for her safety and well-being. On February 21, 2019, a non-jury trial was held on the harassment charge. Ms. Martin was a witness at the trial. Based upon the evidence and testimony presented, the Court found that the People had failed to meet their burden and dismissed the matter from the bench. In the case at bar, the parties appeared before the Court on October 16, 2020 and a trial was held. Plaintiff testified that defendant was a security officer at her son’s high school. Plaintiff further testified that on June 22, 2018, while she was attending her son’s high school graduation ceremony in the school’s auditorium, defendant repeatedly blocked her way and attempted to prevent her from taking her son’s picture. Plaintiff further testified that defendant cursed at her and harassed her until someone pulled defendant away. Plaintiff further testified that as she was leaving the auditorium she saw a commotion and saw her son upset as he was running to the back of the school. She stated that she followed him and when she turned the corner of the building she saw her son and daughter in handcuffs. Her children were arrested and after she arrived at the courthouse for their arraignment she was arrested. Plaintiff further testified that after a trial she was found not guilty and the charge was dismissed. She stated that she was unable to work when the charges were pending against her and as a result she lost wages. Defendant testified that she worked as a security guard for Mandela High School and that plaintiff always caused a problem at the school because she refused to present her identification to get into the school. Defendant stated that the plaintiff was actually banned from the school for that reason. Defendant testified that on June 22, 2018 she was instructed by her supervisor to stand in the front of the auditorium and to keep the parents from getting past her. Defendant states that while she was doing her job, plaintiff yelled in her face that she was not having this today and then plaintiff pushed her in the back. Defendant stated that while she was on her way out of the building the plaintiff’s daughter sprayed her with water and that the plaintiff and her son began to punch her. She testified that she was helped to an ambulance by another teacher and the custodian. She further testified that she was taken to the hospital and that she has been suffering injuries related to that day that prevent her from working. The defendant asserts that she brought the harassment complaint in good faith based upon the plaintiff’s assault and harassment of her. The plaintiff’s claim is essentially one for malicious prosecution. Under New York law in order to make out a claim for malicious prosecution a plaintiff is required to show that: 1) the defendant initiated a prosecution against the defendant; 2) the proceeding ended in the plaintiff’s favor; 3) defendant lacked probable cause to believe the plaintiff was guilty of the crime charged; and 4) the defendant acted with malice. See Cruz v. City of New York, 2013 NY Misc. LEXIS 3854 (NY Sup. Ct. 2013). Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. CPL §70.10(2). A person is guilty of harassment in the second degree pursuant to PL §240.26(1) when “with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” After hearing the testimony of the parties and judging their credibility, the Court finds that the plaintiff failed to meet her burden of proving that the defendant lacked probable cause to believe that the plaintiff was guilty of harassment in the second degree. With respect to the third element, the plaintiff must establish the lack of probable cause as part of her prima facie case (Covert v. Westchester County, 153 Misc 2d 733 (Sup. Ct., Westchester Co. 1992)). Probable cause, the element at issue in this case, is defined in an action for malicious prosecution as “the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of” (Kellermueller v. Port Auth., 201 AD2d 427 (1st Dept 1994) (citing New York State Properties v. Clark, 183 AD2d 1003, 1006; Burroughs v. New York City Transit Auth., 112 AD2d 186, 188)). Although the criminal charge was ultimately dismissed after trial, this alone does not negate probable cause for the proceeding. Based upon the testimony of both parties, it is clear that the defendant could have had probable cause to believe that the plaintiff was guilty of harassing her since the plaintiff acknowledged that on the day in question she and the defendant engaged in a verbal dispute while in close proximity to one another and where they had bodily contact with each other. As such, even assuming arguendo that the plaintiff’s statement of the events is what actually transpired, defendant could have felt that the plaintiff was threatening to harm her by her aggressive actions. Moreover, the Westchester County District Attorney’s Office filed the charges against the plaintiff based upon the allegations made by the defendant and PO Lloyd, who swore out the complaint, thereby countenancing defendant’s reasonable belief that plaintiff was guilty of harassment. Moreover, the plaintiff also failed to establish by any evidence that the defendant acted with malice when filing the criminal complaint with the police. Since the elements of the cause of action for malicious proceeding were not established, the plaintiff’s claim is dismissed. Accordingly, judgment for defendant on the claim. The Court now turns to the defendant’s counterclaim. After reviewing all the testimony and evidence presented, the Court finds that defendant did not meet her burden of proof with respect to her claim for assault and battery. Simply stated, defendant did not prove by a preponderance of the evidence that plaintiff assaulted her and caused her physical injury that has prevented her from working. Defendant failed to produce any evidence from another witness to substantiate her claim that the plaintiff assaulted her. Defendant also failed to provide any evidence, documentary or otherwise, which demonstrates that defendant sustained physical injuries on the day in question. As such, the Court cannot adequately assess the alleged physical injuries the defendant claims she suffered as a result of plaintiff’s alleged actions on June 22, 2018. Moreover, the fact that the underlying criminal action against the plaintiff was dismissed by the Court after a bench trial belies defendant’s testimony that plaintiff assaulted her on the day in question and precludes a finding by a preponderance of the evidence that the defendant assaulted and injured the defendant. Accordingly, judgment for the plaintiff dismissing the counterclaim. The above meets the Court’s statutory charge to do substantial justice between the parties. This constitutes the Decision and Order of this Court. Dated: November 19, 2020
