Albee v. Schoene

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendants’ motion for summary judgment dismissing the amended complaint. Plaintiff commenced this action to recover damages for false arrest and malicious prosecution. The underlying criminal prosecution, which culminated in a verdict of not guilty after a bench trial in Buffalo City Court, arose 969 from a complaint lodged by defendant Louise Schoene alleging that plaintiff stole various items of office equipment belonging to defendant Gary Schoene. In dismissing'the civil complaint, the court properly determined as a matter of law that Louise was acting on her own, not on behalf of Gary, in lodging the criminal complaint, thus warranting the dismissal of the civil complaint against Gary for lack of any agency relationship. The court also properly determined as a matter of law that Louise had probable cause to lodge the criminal complaint, thus warranting the dismissal of the civil complaint against her (see, Martinez v Wegmans Food Mkts., 270 AD2d 834, lv denied 95 NY2d 757; Pandolfo v U.A. Cable Sys., 171 AD2d 1013, 1013-1014; Jackson v County of Nassau, 123 AD2d 834, lv denied 69 NY2d 608). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present— Hayes, J. P., Scudder, Kehoe and Lawton, JJ.