October 4, 1991
Appeal from the Court of Claims, Corbett, Jr., J.
Present — Callahan, A.P.J., Denman, Green, Balio and Davis, JJ.
Order, insofar as appealed from, unanimously reversed on the law without costs and cross motion granted. Memorandum: The Court of Claims erred in denying the State's cross motion for summary judgment dismissing claimant's false arrest and malicious prosecution causes of action. With respect to the issue of malicious prosecution, the uncontroverted evidence presented by the State reveals that the criminal proceeding was not terminated in favor of the claimant (see, Colon v City of New York, 60 N.Y.2d 78, 82, rearg denied 61 N.Y.2d 670; Broughton v State of New York, 37 N.Y.2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929). Where, as here, the underlying criminal proceeding is dismissed in the interest of justice upon motion by the prosecution pursuant to CPL 170.40, the dismissal "is neither an acquittal of the charges nor any determination on the merits. Rather, it leaves the question of guilt or innocence unanswered" (Ryan v New York Tel. Co., 62 N.Y.2d 494, 504-505). Because the dismissal does not result in a determination on the merits favorable to claimant, the cause of action for malicious prosecution should have been dismissed (see, MacLeay v Arden Hill Hosp., 164 A.D.2d 228, lv denied 77 N.Y.2d 806; Jackson v County of Nassau, 123 A.D.2d 834, lv denied 69 N.Y.2d 608; Miller v Star, 123 A.D.2d 750).
Further, under the circumstances of this case, neither the alleged failure of the police to disclose that an earlier sworn statement by one of the participants in the burglary did not implicate claimant nor the failure to present alibi evidence to the Grand Jury rebutted the presumption of probable cause arising from the indictment (see, Gisondi v Town of Harrison, 72 N.Y.2d 280; cf., People v Townsend, 127 A.D.2d 505, 507, lv denied 69 N.Y.2d 1011; People v Smalls, 111 A.D.2d 38; People v Rockwell, 97 A.D.2d 853; People v Filis, 87 Misc.2d 1067). For the same reason, the claimed failure to disclose evidence was not sufficient to overcome the presumption arising from the arrest of claimant pursuant to a warrant (see, Gisondi v Town of Harrison, supra; cf., Boose v City of Rochester, 71 A.D.2d 59, 67). We further conclude that, based upon the sworn statements submitted in support of the warrant application, the State Police demonstrated probable cause for the issuance of the warrant.