Rohrs v. Rohrs

Appellate Division of the Supreme Court of New York

Rohrs v. Rohrs

17 A.D.3d 659, 793 N.Y.S.2d 532, 2005 N.Y. App. Div. LEXIS 4347

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

DecidedApril 25, 2005

StatusPublished

Cited by6 cases

This text of 17 A.D.3d 659 (Rohrs v. Rohrs) 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.

Bluebook

Rohrs v. Rohrs, 17 A.D.3d 659, 793 N.Y.S.2d 532, 2005 N.Y. App. Div. LEXIS 4347 (N.Y. Ct. App. 2005).

Pincite

Opinion

In an action, inter alia, to recover damages for malicious prosecution, the defendant appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J), dated December 8, 2003, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $50,000.

Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial on the issue of damages only is granted, unless within 20 days after service upon the plaintiff of a copy of this decision and order, she shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to decrease the verdict as to damages from the sum of $50,000 to the sum of $25,000, and to the entry of an appropriate amended judgment; [660]*660in the event the plaintiff so stipulates, the judgment, as so decreased and amended, is affirmed, without costs or disbursements.

To recover damages for malicious prosecution, a plaintiff must establish that the underlying criminal action was terminated in his or her favor (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Cantalino v Danner, 96 NY2d 391 [2001]; Smith-Hunter v Harvey, 95 NY2d 191 [2000]). A dismissal, without prejudice, of the underlying criminal charges against a plaintiff, will serve as a “favorable termination” where it represents the “formal abandonment of the proceedings” (Smith-Hunter v Harvey, supra at 198, quoting Restatement [Second] of Torts § 659 [c] and Comment e; see Verboys v Town of Ramapo, 12 AD3d 665 [2004]; cf. Tzambazis v City of New York, 291 AD2d 397 [2002]; Kirshenbaum v Kirshenbaum, 203 AD2d 534 [1994]; Campo v Wolosin, 211 AD2d 660 [1995]; Mondello v Mondello, 161 AD2d 690 [1990]).

The dismissal of the pending charges against the plaintiff in this case pursuant to CPL 160.50 constituted a favorable termination as a matter of law. Accordingly, contrary to the defendant’s contention, the Supreme Court properly declined to submit this issue to the jury (see Loeb v Teitelbaum, 77 AD2d 92, 98 [1980]).

However, we agree with the defendant’s contention that the award of $50,000 for compensatory damages deviated materially from what would be reasonable compensation to the extent indicated (see CPLR 5501 [c]; Lynch v County of Nassau, 278 AD2d 205 [2000]). H. Miller, J.P., Cozier, Rivera and Skelos, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action, inter alia, to recover damages for malicious prosecution, the defendant appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J), dated December 8, 2003, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $50,000.

Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial on the issue of damages only is granted, unless within 20 days after service upon the plaintiff of a copy of this decision and order, she shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to decrease the verdict as to damages from the sum of $50,000 to the sum of $25,000, and to the entry of an appropriate amended judgment; [660]*660in the event the plaintiff so stipulates, the judgment, as so decreased and amended, is affirmed, without costs or disbursements.

To recover damages for malicious prosecution, a plaintiff must establish that the underlying criminal action was terminated in his or her favor (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Cantalino v Danner, 96 NY2d 391 [2001]; Smith-Hunter v Harvey, 95 NY2d 191 [2000]). A dismissal, without prejudice, of the underlying criminal charges against a plaintiff, will serve as a “favorable termination” where it represents the “formal abandonment of the proceedings” (Smith-Hunter v Harvey, supra at 198, quoting Restatement [Second] of Torts § 659 [c] and Comment e; see Verboys v Town of Ramapo, 12 AD3d 665 [2004]; cf. Tzambazis v City of New York, 291 AD2d 397 [2002]; Kirshenbaum v Kirshenbaum, 203 AD2d 534 [1994]; Campo v Wolosin, 211 AD2d 660 [1995]; Mondello v Mondello, 161 AD2d 690 [1990]).

The dismissal of the pending charges against the plaintiff in this case pursuant to CPL 160.50 constituted a favorable termination as a matter of law. Accordingly, contrary to the defendant’s contention, the Supreme Court properly declined to submit this issue to the jury (see Loeb v Teitelbaum, 77 AD2d 92, 98 [1980]).

However, we agree with the defendant’s contention that the award of $50,000 for compensatory damages deviated materially from what would be reasonable compensation to the extent indicated (see CPLR 5501 [c]; Lynch v County of Nassau, 278 AD2d 205 [2000]). H. Miller, J.P., Cozier, Rivera and Skelos, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

17 A.D.3d 659, 793 N.Y.S.2d 532, 2005 N.Y. App. Div. LEXIS 4347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rohrs-v-rohrs-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack