Ormandy v. Price Co.

251 A.D.2d 474, 673 N.Y.S.2d 591, 1998 N.Y. App. Div. LEXIS 6871

Opinion

—In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated June 18, 1997, as granted that branch of the defendants’ cross motion which was for summary judgment dismissing the plaintiff’s cause of action to recover damages for malicious prosecution, and thereafter denied as academic those branches of the plaintiffs cross motion which were to dismiss the defendants’ second and fifth affirmative defenses.

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

Contrary to the plaintiffs contention, the Supreme Court properly granted that branch of the defendants’ cross motion which was for summary judgment dismissing his cause of ac tion to recover damages for malicious prosecution since he failed to establish that the underlying criminal action, which was dismissed in the interest of justice (see, CPL 170.40), was terminated in his favor (see, MacFawn v Kresler, 88 NY2d 859, 860; Ward v Silverberg, 85 NY2d 993, 994; Hollender v Trump Vil. Coop., 58 NY2d 420, 425-426). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.