BEST v. 2170 5TH AVENUE CORPORATION (2009)

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about January 4, 2008, which to the extent appealed from as limited by the brief, denied defendant's motion to unseal plaintiff's criminal court file, unanimously reversed, on the law, with costs, and the motion granted.

 Where an individual, who has records that would otherwise be kept sealed under Criminal Procedure Law § 160.50, affirmatively places the underlying conduct at issue by bringing a civil suit, the statutory protection afforded by section 160.50 is waived, as the privilege, which is intended to protect the accused, may not be used as “a sword to gain an advantage in a civil action” (Green v. Montgomery, 95 N.Y.2d 693, 701, 723 N.Y.S.2d 744, 746 N.E.2d 1036 [2001] [internal quotation marks and citation omitted];  see Rodriguez v. Ford Motor Co., 301 A.D.2d 372, 753 N.Y.S.2d 63 [2003] ).   Here, plaintiff waived the protection afforded by the statute by placing into issue the prosecution against him when he commenced this action alleging, inter alia, malicious prosecution based on that criminal proceeding (see Kalogris v. Roberts, 185 A.D.2d 335, 336, 586 N.Y.S.2d 806 [1992];  Wright v. Snow, 175 A.D.2d 451, 452, 572 N.Y.S.2d 503 [1991], lv. dismissed 79 N.Y.2d 822, 580 N.Y.S.2d 201, 588 N.E.2d 99 [1991] ).