Parkhurst v. Westchester County Department of Social Services

228 A.D.2d 568, 644 N.Y.2d 768, 644 N.Y.S.2d 768, 1996 N.Y. App. Div. LEXIS 7085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1996
• Status: Published

Opinion

On March 8, 1990, the defendant filed a petition under Family Court Act article 10 alleging, that the plaintiff had abused and neglected his son. This proceeding was settled on consent by order of adjournment in contemplation of dismissal dated October 18, 1991. The petition was dismissed, by operation of law, on April 18, 1992.

The plaintiff commenced the instant action, inter alia, to recover damages for malicious prosecution. In an action alleging malicious prosecution, the plaintiff must show that the underlying proceeding was terminated in favor of the accused. This requirement is only satisfied when the case has been disposed of on the merits finding the accused innocent. Since an adjournment in contemplation of dismissal is not the equivalent of a finding of innocence, it did not support a cause of action for malicious prosecution (see, Champagne v Shop Rite Supermarkets, 203 AD2d 410).

The plaintiff’s complaint likewise failed to allege facts sufficient to state causes of action for fraud or the violation of civil rights. Rosenblatt, J. P., Thompson, Pizzuto and Hart, JJ., concur.