Delello v. State of New York

Appellate Division of the Supreme Court of New York

Delello v. State of New York

221 A.D.2d 1010, 633 N.Y.S.2d 896

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1995

DocketClaim No. 77273

StatusPublished

Cited by3 cases

This text of 221 A.D.2d 1010 (Delello v. State of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Delello v. State of New York, 221 A.D.2d 1010, 633 N.Y.S.2d 896 (N.Y. Ct. App. 1995).

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Opinion

—Judgment unanimously affirmed without costs. Memorandum: The Court of Claims properly dismissed the claim in this action for malicious prosecution on the ground that plaintiff failed to meet her burden of proving, by a preponderance of the evidence, that the underlying criminal action terminated in her favor.

The elements of the tort of malicious prosecution are: (1) the commencement of a criminal action against plaintiff; (2) termination of the criminal action in favor of plaintiff; (3) the absence of probable cause for the criminal action; and (4) actual malice (see, Colon v City of New York, 60 NY2d 78, 82; Pandolfo v U.A. Cable Sys., 171 AD2d 1013). The burden of proving that the criminal action terminated in plaintiffs favor is met " 'only when [the] * * * final disposition is such as to indicate * * * innocence’ ” (Hollender v Trump Vil. Coop., 58 NY2d 420, 425-426, quoting Restatement [Second] of Torts 2d § 660, comment a).

In the present case, the order of dismissal in the criminal action "leaves the question of guilt or innocence unanswered” (Ryan v New York Tel. Co., 62 NY2d 494, 504-505; see, Witcher v Children’s Tel. Workshop, 187 AD2d 292, 294). Furthermore, plaintiffs amended notice of claim failed to allege in a nonconclusory fashion the basis for the dismissal of the criminal charges (see, Witcher v Children’s Tel. Workshop, supra, at 294). Lastly, from our review of the record, we conclude that dismissal of the complaint was authorized on the further ground that, as a matter of law, plaintiffs arrest was based upon probable cause (see, Pandolfo v U.A. Cable Sys., supra, at 1013; see also, Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). (Appeal from Judgment of Court of Claims, Margolis, Israel, J.— Malicious Prosecution.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.

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—Judgment unanimously affirmed without costs. Memorandum: The Court of Claims properly dismissed the claim in this action for malicious prosecution on the ground that plaintiff failed to meet her burden of proving, by a preponderance of the evidence, that the underlying criminal action terminated in her favor.

The elements of the tort of malicious prosecution are: (1) the commencement of a criminal action against plaintiff; (2) termination of the criminal action in favor of plaintiff; (3) the absence of probable cause for the criminal action; and (4) actual malice (see, Colon v City of New York, 60 NY2d 78, 82; Pandolfo v U.A. Cable Sys., 171 AD2d 1013). The burden of proving that the criminal action terminated in plaintiffs favor is met " 'only when [the] * * * final disposition is such as to indicate * * * innocence’ ” (Hollender v Trump Vil. Coop., 58 NY2d 420, 425-426, quoting Restatement [Second] of Torts 2d § 660, comment a).

In the present case, the order of dismissal in the criminal action "leaves the question of guilt or innocence unanswered” (Ryan v New York Tel. Co., 62 NY2d 494, 504-505; see, Witcher v Children’s Tel. Workshop, 187 AD2d 292, 294). Furthermore, plaintiffs amended notice of claim failed to allege in a nonconclusory fashion the basis for the dismissal of the criminal charges (see, Witcher v Children’s Tel. Workshop, supra, at 294). Lastly, from our review of the record, we conclude that dismissal of the complaint was authorized on the further ground that, as a matter of law, plaintiffs arrest was based upon probable cause (see, Pandolfo v U.A. Cable Sys., supra, at 1013; see also, Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). (Appeal from Judgment of Court of Claims, Margolis, Israel, J.— Malicious Prosecution.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.

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221 A.D.2d 1010, 633 N.Y.S.2d 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delello-v-state-of-new-york-nyappdiv-1995.

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