Opinion
December 12, 1994
Appeal from the Supreme Court, Orange County (Peter C. Patsalos, J.).
Ordered that the order is affirmed, with costs to the respondent Andrew Homar.
Contrary to the appellant's contentions, the Supreme Court correctly awarded summary judgment to the defendants. Among the essential elements of a cause of action to recover damages for malicious prosecution is that the underlying criminal action was terminated in the plaintiff's favor (see, Colon v City of New York, 60 N.Y.2d 78; Martin v City of Albany, 42 N.Y.2d 13). In the instant case, the criminal charges, which arose in the context of an acrimonious divorce, were withdrawn on consent pursuant to the terms of a stipulation settling the divorce action. This does not constitute a termination favorable to the plaintiff, as it is not indicative of his innocence (see, Mondello v Mondello, 161 A.D.2d 690). Accordingly, the court correctly dismissed the plaintiff's first five causes of action.
The sixth cause of action, sounding in abuse of process, was likewise correctly dismissed. The plaintiff failed to prove that he suffered special damages in this case (see, Kabnick v O'Malley, 58 A.D.2d 804; cf., Weisman v Weisman, 108 A.D.2d 852), and he failed to demonstrate that the process was improperly used by the defendants after it was initiated (see, Curiano v Suozzi, 63 N.Y.2d 113).
We have reviewed the plaintiff's remaining contentions and find them to be without merit. Sullivan, J.P., Rosenblatt, Miller and Ritter, JJ., concur.