CANTALINO v. DANNER (2000)

In an action, inter alia, to recover damages for malicious prosecution, the defendant appeals from so much of an order of the Supreme Court, Kings County (Barasch, J.), entered August 30, 1999, as denied that branch of her motion which was for summary judgment dismissing the first cause of action alleging malicious prosecution.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the first cause of action is dismissed.

 To defeat a defendant's motion for summary judgment, a plaintiff in an action to recover damages for malicious prosecution must establish that the underlying criminal action brought against him or her by the defendant was terminated in his or her favor (see, Ward v. Silverberg, 85 N.Y.2d 993, 629 N.Y.S.2d 168, 652 N.E.2d 914;  Martin v. City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612, 364 N.E.2d 1304).   A criminal action is “terminated in the accused's favor” for purposes of a malicious prosecution claim where a judicial determination of the accused's innocence has been made on the merits of the action (see, Ward v. Silverberg, supra at 994;  Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 448 N.E.2d 432).   It is well settled that a dismissal in the interests of justice pursuant to CPL 170.40 is not a “judicial determination of the accused's innocence on the merits” (Ward v. Silverberg, supra, at 994, 629 N.Y.S.2d 168, 652 N.E.2d 914;  Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487;  Ormandy v. Price Co., 251 A.D.2d 474, 673 N.Y.S.2d 591;  DiCecilia v. Early, 234 A.D.2d 335, 651 N.Y.S.2d 94;  Wolosin v. Campo, 222 A.D.2d 432, 635 N.Y.S.2d 50).   Since the dismissal of the underlying criminal proceeding in this case was pursuant to CPL 170.40 in the interests of justice, the Supreme Court erred in denying that branch of the defendant's motion which was for summary judgment dismissing the first cause of action alleging malicious prosecution (see, Ormandy v. Price Co., supra;  DiCecilia v. Early, supra;  Wolosin v. Campo, supra).

MEMORANDUM BY THE COURT.