By: Daily Record Staff//July 11, 2013
By: Daily Record Staff//July 11, 2013//
Appellate Division, Fourth Department
Immunity — Evaluating Evidence vs. Conducting Investigation
Kirchner v. County of Niagara, et al.
Appealed from Supreme Court, Niagara County
Background: The plaintiff commenced a malicious prosecution action after he was arrested and indicted for the death of his seven-month-old daughter. The defendants appealed from the dismissal of their motion to dismiss.
Ruling: The Appellate Division affirmed. The court found that the conduct of the assistant district attorney and the medical examiner were discretionary in nature. Therefore, they were not entitled to immunity. Further, the plaintiff sufficiently alleged a malicious prosecution claim because the police had informed the defendants that they believed the incident was an accident. Further, by the time the plaintiff was indicted, the defendants were no longer evaluating the evidence, but conducting an investigation.
Elizabeth M. Bergen of Gibson, McAskill & Crosby for the defendants-appellants County of Niagara and Claudette Caldwell; Shawn P. Hennessy, county attorney, for the defendant-appellant County of Erie; Matthew J. Kibler of Feldman Kieffer for the defendants-appellants James J. Woytash MD and Univ. at Buffalo Pathologists, Inc.; Steven M. Cohen of Hogan Willig for the plaintiff-respondent