Posted by: Patricia Salkin | June 16, 2021

NY Appeals Court Concluded Plaintiffs Properly Stated the Cause of Action in A Lawsuit for Malicious Prosecution Regarding Activities on State-Owned Navigable Waters

This post was authored by Olena Botshteyn, Esq.

The Melchners own and operate the Mahopac Marina, which provides access to Lake Mahopac in the Town of Carmel. The state law defines that the lake is among the “navigable waters of the state” and the Town is not authorized to navigate activities on state-owned navigable waters. Despite this, in the past, the Town alleged violations of its zoning laws by the Melchners several times, and in 2008, the Town commenced a criminal proceeding against them for expansion of existing dock structures and mooring facilities. The Town also commenced a civil action to enjoin the Melchners from operating Marina. In 2009, the Court granted the preliminary application to enjoin, the Melchners appealed, and in 2013, the court dismissed the case for lack of jurisdiction, having determined that the Town was not authorized to regulate activities on state-owned navigable waters. The Town then withdrew the criminal proceeding without notifying the Melchners.

In 2016, the Melchners discovered that the criminal proceeding against them had been terminated and commenced an action to recover damages for malicious prosecution. Their complaint alleged that the Town had long been aware that it was not authorized to regulate activities on state-owned navigable waters and that prior to commencing the 2008 proceeding, the Town received copies of opinion letters from the State confirming the State’s exclusive jurisdiction. The Town moved to dismiss for failure to state a cause of action, and the Supreme Court granted the motion. The Melchners appealed.

On appeal, the court reversed the order to dismiss. In an action for damages for malicious prosecution a plaintiff must show that there was a criminal proceeding against the plaintiff, that it terminated in favor of the plaintiff, that there was no probable cause and that there was actual malice. The disposition in the case must be final and not “inconsistent with a plaintiff’s innocence.” The court concluded that since the Melchners could not be prosecuted for the alleged offences, as the Town was not authorized to navigate activities on state-owned navigable waters, and the disposition was not inconsistent with the Melchners’ innocence, the Supreme Court should have denied the Town’s motion.

Melchner v Town of Carmel, 2021 WL 2447412 (NYAD 2 Dept. 6/16/2021)


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