Vitellarov.Eagle Insurance Company

Appellate Division of the Supreme Court of New York, Second DepartmentMay 30, 1989
150 A.D.2d 770 (N.Y. App. Div. 1989)
150 A.D.2d 770541 N.Y.S.2d 614

May 30, 1989

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

Ordered that the order is modified by deleting the provision thereof which granted the motion of the defendants The Eagle Insurance Company and Material Damage Adjustment Corporation to dismiss the complaint and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.

The defendant insurance companies sought dismissal of the complaint pursuant to CPLR 3211 (a) (7) solely on the ground that a malicious prosecution cause of action was barred because the underlying criminal proceeding was not terminated in the plaintiff Peter Vitellaro's favor (see generally, Colon v City of New York, 60 N.Y.2d 78). The felony complaint filed against that plaintiff was dismissed on speedy trial grounds (see, CPL 30.30). Such a dismissal has been held to constitute a favorable termination because it implies a lack of reasonable ground for the prosecution (see, Loeb v Teitelbaum, 77 A.D.2d 92, mod on other grounds 80 A.D.2d 838; Lenehan v Familo, 79 A.D.2d 73, appeal dismissed 54 N.Y.2d 680; Reit v Meyer, 160 App. Div. 752). The court therefore erred in granting the defendant insurance companies' motion to dismiss the complaint. However, the motion of the county defendant to dismiss the complaint on the same ground was properly denied. Bracken, J.P., Eiber, Spatt and Rosenblatt, JJ., concur.