ROHRS v. ROHRS (2005)

In an action, inter alia, to recover damages for malicious prosecution, the defendant appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J.), dated December 8, 2003, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $50,000.

ORDERED that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial on the issue of damages only is granted, unless within 20 days after service upon the plaintiff of a copy of this decision and order, she shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to decrease the verdict as to damages from the sum of $50,000 to the sum of $25,000, and to the entry of an appropriate amended judgment;  in the event the plaintiff so stipulates, the judgment, as so decreased and amended, is affirmed, without costs or disbursements.

 To recover damages for malicious prosecution, a plaintiff must establish that the underlying criminal action was terminated in his or her favor (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d 560;  Cantalino v. Danner, 96 N.Y.2d 391, 729 N.Y.S.2d 405, 754 N.E.2d 164;  Smith-Hunter v. Harvey, 95 N.Y.2d 191, 712 N.Y.S.2d 438, 734 N.E.2d 750).   A dismissal, without prejudice, of the underlying criminal charges against a plaintiff, will serve as a “favorable termination” where it represents the “formal abandonment of the proceedings” (Smith-Hunter v. Harvey, supra at 198, 712 N.Y.S.2d 438, 734 N.E.2d 750, quoting Restatement [Second] of Torts § 659[c] and comment e;  see Verboys v. Town of Ramapo, 12 A.D.3d 665, 785 N.Y.S.2d 496;  cf. Tzambazis v. City of New York, 291 A.D.2d 397, 736 N.Y.S.2d 911;  Kirshenbaum v. Kirshenbaum, 203 A.D.2d 534, 611 N.Y.S.2d 228;  Campo v. Wolosin, 211 A.D.2d 660, 622 N.Y.S.2d 291;  Mondello v. Mondello, 161 A.D.2d 690, 555 N.Y.S.2d 826).

 The dismissal of the pending charges against the plaintiff in this case pursuant to CPL 160.50 constituted a favorable termination as a matter of law.   Accordingly, contrary to the defendant's contention, the Supreme Court properly declined to submit this issue to the jury (see Loeb v. Teitelbaum, 77 A.D.2d 92, 98, 432 N.Y.S.2d 487).

 However, we agree with the defendant's contention that the award of $50,000 for compensatory damages deviated materially from what would be reasonable compensation to the extent indicated (see CPLR 5501[c];  Lynch v. County of Nassau, 278 A.D.2d 205, 717 N.Y.S.2d 248).