Bayat v. Azaz

12 A.D.3d 547, 784 N.Y.S.2d 382, 2004 N.Y. App. Div. LEXIS 14232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2004
• Status: Published

Opinion

In an action to recover damages for malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), entered January 8, 2004, as, upon reargument, adhered to its determination in an order dated November 24, 2003, granting the defendants’ prior motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

To maintain a cause of action to recover damages for malicious prosecution, a plaintiff must establish, inter alia, that the defendant either commenced or continued a criminal proceeding against him or her, and that the proceeding terminated in his or her favor (see Cantalino v Danner, 96 NY2d 391 [2001]; Smith-Hunter v Harvey, 95 NY2d 191 [2000]; Avgush v Town of Yorktown, 303 AD2d 340 [2003]). The complaint’s factual allegations were insufficient to establish that the defendants commenced or continued a criminal action against the plaintiff (see Wasilewicz v Village of Monroe Police Dept., 3 AD3d 561 [2004]; Goddard v Daly, 295 AD2d 314 [2002]), or that the criminal proceeding terminated in the plaintiffs favor (see Cantalino v Danner, supra at 394-395; Smith-Hunter v Harvey, supra at 195). Accordingly, the Supreme Court properly granted the defendants’ motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]) and, upon reargument, properly adhered to its original determination.

The plaintiff’s remaining contentions are without merit. Santucci, J.P., Schmidt, Cozier and Rivera, JJ., concur.