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Rohrs v. Rohrs

Appellate Division of the Supreme Court of New York, Second Department
Apr 25, 2005
17 A.D.3d 659 (N.Y. App. Div. 2005)

Summary

holding that a $50,000 malicious prosecution compensatory damages award deviated materially from what would be reasonable compensation and ordering a new trial on the issue of damages unless plaintiff stipulated to a reduction in the award to $25,000

Summary of this case from Stampf v. Long Island R.R. Co.

Opinion

2004-00974.

April 25, 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.

Kevin Costello, Flushing, N.Y., for appellant.

Gallagher, Walker, Bianco Plastaras, Mineola, N.Y. (Robert J. Walker of counsel), for respondent.

Before: H. Miller, J.P., Cozier, Rivera and Skelos, JJ., concur.


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 NY2d 78; Cantalino v. Danner, 96 NY2d 391; Smith-Hunter v. Harvey, 95 NY2d 191). 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, quoting Restatement [Second] of Torts § 659 [c] and Comment e; see Verboys v. Town of Ramapo, 12 AD3d 665; cf. Tzambazis v. City of New York, 291 AD2d 397; Kirshenbaum v. Kirshenbaum, 203 AD2d 534; Campo v. Wolosin, 211 AD2d 660; Mondello v. Mondello, 161 AD2d 690).

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 AD2d 92, 98).

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 AD2d 205).


Summaries of

Rohrs v. Rohrs

Appellate Division of the Supreme Court of New York, Second Department
Apr 25, 2005
17 A.D.3d 659 (N.Y. App. Div. 2005)

holding that a $50,000 malicious prosecution compensatory damages award deviated materially from what would be reasonable compensation and ordering a new trial on the issue of damages unless plaintiff stipulated to a reduction in the award to $25,000

Summary of this case from Stampf v. Long Island R.R. Co.

holding that a dismissal of the underlying charges against a plaintiff will serve as a "favorable termination"

Summary of this case from Ackerson v. City of White Plains
Case details for

Rohrs v. Rohrs

Case Details

Full title:MARYANN ROHRS, Respondent, v. THEODORE ROHRS, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 25, 2005

Citations

17 A.D.3d 659 (N.Y. App. Div. 2005)
793 N.Y.S.2d 532

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