Steven Greer, respondent, v. National Grid, et al., appellants.

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

Steven Greer, respondent, v. National Grid, et al., appellants.

2011–00969 (Index No. 8349/10)

Decided: November 29, 2011

PETER B. SKELOS, J.P. RUTH C. BALKIN RANDALL T. ENG SANDRA L. SGROI, JJ. Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Jessica C. Satriano of counsel), for appellants. Scott Lockwood, North Babylon, N.Y., for respondent.

Argued—November 7, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for malicious prosecution, the defendants appeal from an order of the Supreme Court, Suffolk County (Spinner, J.), dated October 5, 2010, which denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was to dismiss the second cause of action, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;  Leon v. Martinez, 84 N.Y.2d 83, 87;  Prestige Caterers, Inc. v. Siegel, 88 AD3d 679;  Peery v. United Capital Corp., 84 AD3d 1201).   Here, the complaint sufficiently states all of the necessary elements of a cause of action to recover damages for malicious prosecution (see Ramos v. City of New York, 285 A.D.2d 284, 298–299;  Melnik v. Saks & Co., 248 A.D.2d 446;  see also Cantalino v. Danner, 96 N.Y.2d 391, 394;  cf.  Lupski v. County of Nassau, 32 AD3d 997, 999).   Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was to dismiss the first cause of action to recover damages for malicious prosecution.

However, the Supreme Court should have granted that branch of the defendants' motion which was to dismiss the second cause of action.   The second cause of action arises from the same facts as the first cause of action alleging malicious prosecution, and seeks to recover damages on the theory that a criminal prosecution would not have been initiated against the plaintiff had the defendant National Grid properly trained and supervised its employees.   However, allegations of negligence do not support a malicious prosecution cause of action (see Ramos v. City of New York, 285 A.D.2d at 301;  Romero v. State of New York, 294 A.D.2d 730, 734) and, as a matter of public policy, New York does not recognize a cause of action to recover damages for negligent prosecution (see Russ v State Empls.   Fed. Credit Union [SEFCU ], 298 A.D.2d 791, 793;  Coleman v Corporate Loss Prevention Assocs., Inc., 282 A.D.2d 703;  Pandolfo v U.A. Cable Sys. of Watertown, 171 A.D.2d 1013, 1014).   Accordingly, the second cause of action fails to state a cognizable claim, and that branch of the defendants' motion which was to dismiss the second cause of action should have been granted.

SKELOS, J.P., BALKIN, ENG and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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