VERBOYS v. Lydia Cotz, et al., appellants.

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

Joseph VERBOYS, respondent, et al., plaintiff, v. TOWN OF RAMAPO, et al., defendants, Lydia Cotz, et al., appellants.

Decided: November 29, 2004

ANITA R. FLORIO, J.P., HOWARD MILLER, SONDRA MILLER, and ROBERT A. SPOLZINO, JJ. George Cotz, Mahwah, N.J., for appellant Lydia Cotz and appellant pro se. Bartels & Feureisen, LLP, White Plains, N.Y. (Michael Fahey of counsel), for respondent.

In an action, inter alia, to recover damages for malicious prosecution, the defendants Lydia Cotz and George Cotz appeal from a judgment of the Supreme Court, Rockland County (O'Rourke, J.), entered July 22, 2003, which, upon a jury verdict, is in favor of the plaintiff Joseph Verboys and against them in the principal sum of $10,000 each.

ORDERED that the judgment is affirmed, with costs.

 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, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560;  Cantalino v. Danner, 96 N.Y.2d 391, 394, 729 N.Y.S.2d 405, 754 N.E.2d 164).   A dismissal of the criminal charges without prejudice qualifies as a final, favorable termination if the dismissal represents “the formal abandonment of the proceedings by the public prosecutor” (Smith-Hunter v. Harvey, 95 N.Y.2d 191, 198, 712 N.Y.S.2d 438, 734 N.E.2d 750 [citations and internal quotation marks omitted] ).   Here, although the initial criminal proceeding against the plaintiff Joseph Verboys was dismissed without prejudice, the record demonstrates that the prosecution undertook a full investigation and elected not to proceed with the charges because it determined that the allegations against the plaintiff were not supported by the evidence.   Thus, there was sufficient evidence in the record for the jury to conclude that the criminal proceedings terminated in favor of the plaintiff (see Cantalino v. Danner, supra;  Smith-Hunter v. Harvey, supra ).

The defendants' remaining contention is without merit.

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