ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs. In 2017, Marlaina Koller-Gurgigno commenced this action against the defendants City of Yonkers, James McGovern, Patrick Salierno, and her estranged husband, Vincent Gurgigno, Jr., among others, in relation to her arrest and prosecution in 2016 for an incident involving Gurgigno's mother. The complaint included a sixth cause of action, alleging false arrest and false imprisonment, a seventh cause of action, alleging malicious prosecution, and a twelfth cause of action, alleging negligent training, supervision, and discipline, asserted against the City. While this action was pending, the plaintiff was substituted in place of Koller-Gurgigno. The defendants moved for summary judgment dismissing the sixth through twelfth causes of action. In an order dated April 13, 2022, the Supreme Court, inter alia, granted that branch of the motion which was for summary judgment dismissing the twelfth cause of action but denied those branches of the motion which were for summary judgment dismissing the sixth and seventh causes of action. The defendants then moved for leave to reargue, among other things, those branches of their prior motion which were for summary judgment dismissing the sixth cause of action insofar as asserted against the City, Gurgigno, McGovern, and Salierno and the seventh cause of action insofar as asserted against the City, Gurgigno, and Salierno. In an order dated December 23, 2022, the Supreme Court, inter alia, granted leave to reargue and, upon reargument, in effect, vacated so much of the order dated April 13, 2022, as denied those branches of the prior motion, and thereupon granted those branches of the prior motion. The plaintiff appeals from both orders.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion"
(CPLR 2221[d][2]). "While the determination to grant leave to reargue lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue
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issues previously decided, or to present arguments different from those originally presented" (Emigrant Bank v Kaufman, 223 AD3d 650, 651-652 [citation and internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for leave to reargue those branches of their prior motion which were for summary judgment dismissing the sixth cause of action insofar as asserted against the City, Gurgigno, McGovern, and Salierno and the seventh cause of action insofar as asserted against the City, Gurgigno, and Salierno. Contrary to the plaintiff's contention, the defendants did not raise new arguments in their motion for leave to reargue (see id. at 652).
"False arrest and false imprisonment are two different names for the same common-law tort" (Ballinger v City of Mount Vernon, 233 AD3d 736, 737; see Metwally v City of New York, 215 AD3d 820, 822). "The existence of probable cause constitutes a complete defense to causes of action alleging false arrest and malicious prosecution" (Burns v City of New York, 181 AD3d 554, 555; see Gisondi v Town of Harrison, 72 NY2d 280, 283; Braxton v City of New York, 178 AD3d 1000, 1001). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed by the suspected individual, and probable cause must be judged under the totality of the circumstances" (De Lourdes Torres v Jones, 26 NY3d 742, 759 [internal quotation marks omitted]; see Burns v City of New York, 181 AD3d at 555).
"Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" (Farquharson v United Parcel Serv., 202 AD3d 923, 926 [internal quotation marks omitted]; see Jones v City of New York, 206 AD3d 635, 638; Masciello v Incorporated Vil. of Lloyd Harbor, 140 AD3d 834, 835). "Indeed, probable cause is established absent materially impeaching circumstances, where the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator" (Jones v City of New York, 206 AD3d at 638 [internal quotation marks omitted]; see Medina v City of New York, 102 AD3d 101, 104). Here, the defendants established their prima facie entitlement to summary judgment dismissing the sixth cause of action insofar as asserted against McGovern and Salierno and the seventh cause of action insofar as asserted against Salierno. In support of their motion, the defendants submitted evidence establishing that identified citizens had provided information accusing the plaintiff of specific crimes, which was sufficient to provide the police with probable cause to arrest her (see Gisondi v Town of Harrison, 72 NY2d at 283; Farquharson v United Parcel Serv., 202 AD3d at 926; Rapuzzi v City of New York, 186 AD3d 1548, 1550). Further, nothing in their submissions indicate the existence of
"materially impeaching circumstances" known to McGovern or Salierno (see Farquharson v United Parcel Serv., 202 AD3d at 926; Medina v City of New York, 102 AD3d at 105). In opposition, the plaintiff failed to raise a triable issue of fact (see Farquharson v United Parcel Serv., 202 AD3d at 926).
The defendants also established their prima facie entitlement to summary judgment [*2]dismissing the sixth and seventh causes of action insofar as asserted against Gurgigno, who was not on duty at the time of the incident. "A civilian defendant who merely provides information to law enforcement authorities, who are free to exercise their own independent judgment as to whether to make an arrest and file criminal charges, will not be held liable for false arrest or malicious prosecution" (Tueme v Lezama, 217 AD3d 715, 717; see Hughes v Vento, 226 AD3d 753, 755). "To be held liable for false arrest, [a civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition" (Hughes v Vento, 226 AD3d at 755 [internal quotation marks omitted]; see Tueme v Lezama, 217 AD3d at 717; Williams v CVS Pharmacy, Inc., 126 AD3d 890, 892). "Similarly, to be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act" (Tueme v Lezama, 217 AD3d at 717; see Hughes v Vento, 226 AD3d at 755; Williams v CVS Pharmacy, Inc., 126 AD3d at 892).
Here, in opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Gurgigno induced the other officers to act such that they were not acting of their own volition or played an active role in the prosecution (see Johnson v Follett Higher Educ. Group, Inc., 113 AD3d 819, 820; cf. Robles v City of New York, 104 AD3d 829, 830).
Inasmuch as the defendants established that the individual officers could not be held liable for false arrest, false imprisonment, or malicious prosecution, the City, as their employer, established that it could not be held liable under any theory of vicarious liability with regards to those causes of action. "A claim of vicarious liability cannot stand when there is no primary liability upon which such a claim of vicarious liability might rest" (Hannen v Nici, 230 AD3d 1118, 1120 [internal quotation marks omitted]; see Wijesinghe v Buena Vida Corp., 210 AD3d 824, 826). Accordingly, upon reargument, the Supreme Court properly granted those branches of the defendants' motion which were for summary judgment dismissing the sixth cause of action insofar as asserted against the City, Gurgigno, McGovern, and Salierno, and the seventh cause of action insofar as asserted against the City, Gurgigno, and Salierno. In light of the grant of summary judgment dismissing the other causes of action, the Supreme Court also properly granted that branch of the defendants' motion which was for summary judgment dismissing the twelfth cause of action, which alleged negligent hiring, supervision, and discipline against the City (see Acadia Constr. Corp. v ZHN Contr. Corp., 144 AD3d 1059, 1061; Cotter v Summit Sec. Servs., Inc., 14 AD3d 475, 476). In light of our determination, we need not consider the parties' remaining contentions. DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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