Order unanimously affirmed without costs.
Memorandum:
As a threshold issue, we conclude that Supreme Court did not err in granting the motion of defendants City of Rochester (City) and Captain Paul Chechak for summary judgment dismissing the complaint against them on a ground not argued by them. In their motion, the City and Chechak argued only that plaintiff, as a public figure, had failed to produce evidence of constitutional malice on the part of either...
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