Freedman v. Capital Cities/ABC, Inc.

—Order unanimously affirmed with costs. Memorandum: Defendant Coppola, an investigative television reporter, appeals from that portion of an order that denied his motion [1007] to dismiss plaintiffs first cause of action alleging that defendant violated 42 USC § 1983. Defendant contends that the claim failed to state a cause of action. Plaintiff alleges that defendant violated his civil rights by instigating baseless criminal charges against him and arranging for plaintiffs unlawful arrest by Town of Cheektowaga police as the denouement to one of defendant’s investigative reports. We conclude that the complaint sufficiently states a cause of action under section 1983. Addressing defendant’s specific challenges to the adequacy of the pleading, we find that it sufficiently implies a lack of probable cause and alleges a violation of plaintiffs constitutional right to be free from an illegal arrest. We also find that it sufficiently alleges that defendant jointly engaged with government officials in the prohibited action (see, Adickes v Kress & Co., 398 US 144, 152). Further, the complaint sufficiently alleges that the constitutional violation constituted, or resulted from, official policy or custom. In contrast to the cases relied upon by defendant (see, e.g., Kolko v City of Rochester, 93 AD2d 977, 978), the complaint alleges more than mere negligence on defendant’s part. It alleges that defendant willfully participated in a conspiracy to deprive plaintiff of his civil rights. Finally, we find the decision in Fitzpatrick v Wert (432 F Supp 601, 603), relied upon by defendant, to be distinguishable from this case. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Dismiss Complaint.) Present—Callahan, J. P., Denman, Balio, Lawton and Lowery, JJ.