Lindo v. City of New York

277 A.D.2d 92, 716 N.Y.S.2d 568, 2000 N.Y. App. Div. LEXIS 11967

Opinion

—Order, Supreme Court, New York County (Richard Braun, J.), entered March 18, 1999, which, insofar as appealed from, denied petitioner’s application to serve a late notice of claim for malicious prosecution, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the application granted and the notice of claim sworn to August 10, 1998 deemed timely filed.

Pursuant to the recent Court of Appeals decision in Smith-Hunter v Harvey (95 NY2d 191), the dismissal of all pending criminal charges against petitioner pursuant to CPL 30.30 for the People’s failure to be ready for trial was a “favorable termination” as is required to maintain an action for malicious prosecution.

Thus, as the City now concedes, permission to serve a late notice of claim should have been granted.

Reargument granted and, upon reargument, the decision and order of this Court entered on May 4, 2000 (272 AD2d 90) recalled and vacated and a new decision and order substituted therefor. Concur — Rubin, J. P., Andrias, Saxe, Buckley and Friedman, JJ.