MEMORANDUM AND ORDER

SPAIN, J.

In 1997, a jury convicted plaintiff of numerous traffic violations, acquitted him of driving while intoxicated, and was unable to reach a verdict on a resisting arrest charge. Justice Court subsequently dismissed the resisting arrest charge without explanation. On appeal, however, County Court reinstated it and remanded to Justice Court. In February 2000, plaintiff moved to dismiss the resisting arrest charge on the ground that the information was insufficient on its face in that it failed to make factual allegations establishing that the arresting officer was effecting an authorized arrest (see CPL 100.15, 100.40, 170.30 [a]; 170.35 [1] [a]). The prosecution offered no opposition, and Justice Court granted the motion.

Thereafter, plaintiff commenced this action in Supreme Court alleging malicious prosecution, defamation and abuse of process. Defendants moved for summary judgment seeking dismissal of the complaint. The court granted the motion holding that (1) the facts alleged by plaintiff failed to establish the elements of any of the asserted causes of action, (2) plaintiff failed to timely file a notice of claim with respect to the defamation and abuse of process claims, and (3) plaintiff had not obtained jurisdiction over defendants Madison County District Attorney's office and Madison County Sheriff's Department. Plaintiff appeals, and we affirm.

Plaintiff challenges only the dismissal of his malicious prosecution cause of action. "In order to establish a prima facie case of malicious prosecution, a plaintiff must demonstrate (1) the commencement of a criminal proceeding by defendant against him, (2) the termination of that proceeding in his favor, (3) the absence of probable cause for the proceeding, and (4) actual malice" (Ellsworth v. City of Gloversville, 269 A.D.2d 654, 656 [citation omitted]; see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84; Romero v. State of New York, 294 A.D.2d 730, 731, lv dismissed 98 N.Y.2d 727). A dismissal based upon the legal insufficiency of a charging instrument is not a termination in favor of plaintiff within the context of a malicious prosecution claim (see MacFawn v. Kresler, 88 N.Y.2d 859, 860).

Here, inasmuch as the resisting arrest charge was ultimately dismissed on the ground that the information was defective in that it was insufficient on its face (see CPL 170.35 [a]), plaintiff failed to allege facts sufficient to establish the second element of his malicious prosecution cause of action. Furthermore, plaintiff's argument on the third element of the malicious prosecution claim — that probable cause did not exist to support the resisting arrest charge — "has been raised, litigated and conclusively decided [against defendant] in connection with the direct appeal of the criminal action [in County Court]" (Larsen v. Schultz, 280 A.D.2d 839, 840). Plaintiff, having had a full and fair opportunity to litigate that issue at the suppression hearing in Justice Court and again on appeal in County Court, is precluded by the doctrine of collateral estoppel from relitigating that issue in this Court in the context of his civil cause of action (see id.). For these reasons, we conclude that Supreme Court properly dismissed the malicious prosecution cause of action.

CARDONA, P.J., MERCURE, PETERS and ROSE, JJ., concur.

ORDERED that the order is affirmed, without costs.