PACHOLKA v. Sky Rink Hockey League, et al., Defendants. (1997)

Supreme Court, Appellate Division, First Department, New York.

James PACHOLKA, Plaintiff-Respondent, v. Zoran KOZIC, Defendant-Appellant, Sky Rink Hockey League, et al., Defendants.

Decided: February 18, 1997

Before WALLACH, J.P., and RUBIN, MAZZARELLI and ANDRIAS, JJ.

Steven D. Ateshoglou, for Plaintiff-Respondent. Harry H. Wise, III, for Defendant-Appellant.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 1, 1995, which denied defendant Kozic's motion to amend and supplement his answer to include a counterclaim alleging malicious prosecution, and order of the same court and Justice entered on or about June 25, 1996, which, to the extent appealable, denied defendant Kozic's motion to renew, unanimously affirmed, without costs.

In a malicious prosecution action, “[p]laintiff ․ bears the burden of establishing that the underlying criminal action terminated favorably to him [citations omitted]. A criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused's innocence” (MacFawn v. Kresler, 88 N.Y.2d 859, 860, 644 N.Y.S.2d 486, 666 N.E.2d 1359). Defendant failed to meet this burden where he merely alleged that the criminal complaint against him had been “dismissed”.

MEMORANDUM DECISION.

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