Summary
filing malicious prosecution claim "waived the privilege conferred by" New York's sealing statute
Summary of this case from Allen v. RichardsonOpinion
July 27, 1992
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion is granted.
The plaintiff commenced this action to recover damages for malicious prosecution after she was acquitted on charges of harassment in the District Court, Suffolk County, stemming from an incident in which she had allegedly twisted the defendant's arm. The defendant in this action was the complainant in the harassment action against the plaintiff.
In her complaint, the plaintiff alleged that, inter alia, the defendant swore falsely to a criminal complaint charging her with having committed the offense of harassment, with actual malice and intent to injure her good reputation, and without probable cause. The defendant then moved to unseal the file in the criminal action entitled People v. Kalogris that had been commenced in the District Court, Suffolk County, against the plaintiff. The defendant asserted that, by bringing the malicious prosecution action, the plaintiff waived her privilege to have the record in the underlying criminal action remain unavailable to the defendant in the civil action. The motion was unopposed. The Supreme Court, Suffolk County, denied the defendant's motion to unseal the record in the underlying criminal action.
CPL 160.50 provides for the sealing of records relating to the arrest and prosecution of an accused upon the termination of a criminal proceeding in his or her favor. This statute creates a privilege to insure that one who is charged but not convicted of an offense suffers no stigma as a result of having once been the subject of an unsustained accusation (Matter of Hynes v Karassik, 47 N.Y.2d 659, 662; Taylor v. New York City Tr. Auth., 131 A.D.2d 460, 462). However, where an individual commences a civil action and affirmatively places the information protected by CPL 160.50 into issue, the privilege is effectively waived (Wright v. Snow, 175 A.D.2d 451; Gebbie v. Gertz Div., 94 A.D.2d 165; see also, Lundell v. Ford Motor Co., 120 A.D.2d 575, 576). The privilege, which is intended to protect the accused, may not be used as a sword to gain advantage in a civil action (Taylor v. New York City Tr. Auth., supra; see also, Koump v Smith, 25 N.Y.2d 287, 294).
The plaintiff in this case clearly placed into issue the prosecution for harassment against her by commencing this action to recover damages for malicious prosecution based on that action. Thus, the plaintiff has waived the privilege conferred by CPL 160.50 (see, Wright v. Snow, supra). Thompson, J.P., Lawrence, Miller and Santucci, JJ., concur.