Telfer v. Friedman

163 A.D.2d 857, 558 N.Y.S.2d 386, 1990 N.Y. App. Div. LEXIS 9543

Opinion

Order unanimously reversed on the law with costs, motion denied, and complaint reinstated. Memorandum: In this action for malicious prosecution, plaintiffs appeal from an order granting defendant’s motion for summary judgment dismissing the complaint. The court held that, because the underlying criminal proceeding against plaintiff husband was dismissed in the interest of justice, plaintiffs could not demonstrate the essential element that the prosecution terminated in favor of the accused (see, Davis v State of New York, 124 AD2d 420, 421, 423; Jackson v County of Nassau, 123 AD2d 834, lv denied 69 NY2d 608; Miller v Star, 123 AD2d 750, 751; Kenyon v State of New York, 118 AD2d 942, 943-944; cf., Hollender v Trump Vil. Coop., 58 NY2d 420, 423-426). Although the court’s decision states the correct rule for ultimate resolution of plaintiffs’ claim, there is a triable question of fact whether the criminal prosecution in fact was terminated by a dismissal in the interest of justice and, if so, whether such disposition was obtained by defendant by means of an artifice in order to preclude a malicious prosecution claim. (Appeal from order of Supreme Court, Oneida County, Tenney, J.—summary judgment.) Present— Callahan, J. P., Denman, Green, Balio and Lowery, JJ.