ROMAN v. COMP USA INC (2007)

In an action, inter alia, to recover damages for malicious prosecution, the defendant Comp USA, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated March 30, 2006, as, in effect, denied those branches of their motion which were to dismiss the causes of action alleging malicious prosecution, defamation, and false arrest.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were to dismiss the causes of action alleging malicious prosecution, defamation, and false arrest are granted.

As the plaintiffs conceded at oral argument, the causes of action alleging defamation and false arrest were interposed after the expiration of the applicable one-year statute of limitations (see CPLR 215[3];  Bonanno v. City of Rye, 280 A.D.2d 630, 721 N.Y.S.2d 98;  Losco Group v. Yonkers Residential Ctr., 276 A.D.2d 532, 533, 716 N.Y.S.2d 577).   Accordingly, those causes of action should have been dismissed.

 The tort of malicious prosecution has four elements:  (1) commencement of a criminal proceeding, which (2) terminated in favor of the accused, and which (3) lacked probable cause, and (4) was brought out of actual malice (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560;  Cantalino v. Danner, 96 N.Y.2d 391, 394-395, 729 N.Y.S.2d 405, 754 N.E.2d 164).   The record contains a Justice Court certificate of disposition dated March 10, 2004, which indicates that on March 5, 2004, certain criminal charges brought against the plaintiff Ruben Roman were dismissed.   The one-year statute of limitations applicable to a cause of action for malicious prosecution (see CPLR 215 [3];  Syllman v. Nissan, 18 A.D.3d 221, 222, 794 N.Y.S.2d 351) does not begin to run until favorable termination of the underlying criminal proceeding (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560;  Roche v. Village of Tarrytown, 309 A.D.2d 842, 843, 766 N.Y.S.2d 46).   This action was commenced in September 2005.   Assuming the March 2004 disposition was a “favorable” termination of the criminal proceeding (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560), this cause of action was untimely as well.

 In an effort to avoid the statute of limitations on the malicious prosecution cause of action, in their brief on appeal, the plaintiffs state that it is “not clear if the [pertinent accusatory instrument] has been dismissed in its entirety.”   If that is the case, then an essential element of the tort of malicious prosecution (termination of the underlying criminal proceeding) is absent, and the cause of action should be dismissed for that reason.

Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was to dismiss the cause of action alleging malicious prosecution.

The plaintiffs' remaining contentions are without merit.