Jacksonv.County of Nassau

Appellate Division of the Supreme Court of New York, Second DepartmentOct 27, 1986
123 A.D.2d 834 (N.Y. App. Div. 1986)

October 27, 1986

Appeal from the Supreme Court, Nassau County (Samenga, J.).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment is granted in its entirety.

To establish a malicious prosecution cause of action arising from a criminal proceeding, the plaintiff must prove that (1) the defendant either commenced or continued a criminal proceeding against him, (2) the proceeding terminated in his favor, (3) there was no probable cause for the criminal proceeding, and (4) the criminal proceeding was instituted with actual malice (Martin v City of Albany, 42 N.Y.2d 13). Here, the plaintiff cannot demonstrate that the defendants lacked probable cause to arrest or that the prior proceeding terminated in his favor.

The plaintiff was prosecuted for the crime of possession of stolen property. The police had obtained a statement from a burglar which implicated the plaintiff; further, the stolen property was found in the plaintiff's car. Therefore, there were sufficient facts available to the police which would lead a reasonable person to believe the plaintiff guilty (see, Colon v City of New York, 60 N.Y.2d 78), and, as a matter of law, there was probable cause for the criminal proceeding (see, Veras v Truth Verification Corp., 87 A.D.2d 381, 383, 384, affd 57 N.Y.2d 947; Giorgio v Batterman, 134 App. Div. 139; Tyson v Bauland Co., 68 App. Div. 310).

Additionally, it cannot be said that the prior criminal proceeding which was dismissed in the furtherance of justice pursuant to CPL 170.40 was such a termination which would indicate the guilt or innocence of the plaintiff (Hollender v Trump Vil. Coop., 58 N.Y.2d 420). A dismissal in the interest of justice is neither an acquittal nor a conviction; rather, it leaves the question of guilt or innocence unanswered (cf. Ryan v New York Tel. Co., 62 N.Y.2d 494). Thus, as a matter of law, there was no favorable termination, and this kind of dismissal bars a subsequent suit to recover damages for malicious prosecution.

We have examined the plaintiff's remaining contentions and find them to be without merit. Eiber, J.P., Kunzeman, Kooper and Spatt, JJ., concur.