STEPHEN NICHOLS PLAINTIFF APPELLANT RESPONDENT v. XEROX CORPORATION ROBERT MARA INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF XEROX CORPORATION AND MARIE HACK INDIVIDUALLY AND IN HER CAPACITY AS AN EMPLOYEE OF XEROX CORPORATION DEFENDANTS RESPONDENTS APPELLANTS (2010)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.), entered July 10, 2009.   The order granted in part defendants' motion for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion for summary judgment dismissing the malicious prosecution cause of action and reinstating that cause of action and by granting that part of the motion for summary judgment dismissing the misrepresentation cause of action and dismissing that cause of action and as modified the order is affirmed without costs.

We agree with plaintiff on his appeal that the court erred in granting that part of defendants' motion for summary judgment dismissing the malicious prosecution cause of action against Hack, and we therefore modify the order accordingly.   A cause of action for malicious prosecution requires four elements:  “that a criminal proceeding was commenced;  that it was terminated in favor of the accused;  that it lacked probable cause;  and that the proceeding was brought out of actual malice” (Cantalino v. Danner, 96 N.Y.2d 391, 394;  see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84;  Watson v. City of Jamestown, 56 AD3d 1289, 1291).   Viewing the evidence in the light most favorable to plaintiff, the party opposing the motion (see Esposito v. Wright, 28 AD3d 1142, 1143), we conclude that there are triable issues of fact whether Hack had probable cause to file a charge of harassment in the second degree against him and whether that proceeding was brought out of malice.

Patricia L. Morgan

Clerk of the Court