Opinion
December 4, 1995
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the appeal from so much of the order entered January 13, 1995, as denied the defendants' cross motion for reargument is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated September 27, 1994, is reversed insofar as appealed from, on the law, the defendants' cross motion for summary judgment is granted, the complaint is dismissed, and the order entered January 13, 1995, is vacated; and it is further,
Ordered that the defendants are awarded one bill of costs.
It is well settled that in order to recover damages for malicious prosecution, a plaintiff must establish that the underlying criminal action was resolved in her favor (see, Hollender v Trump Vil. Coop., 58 N.Y.2d 420, 425). Here the criminal charges against the plaintiff were dismissed pursuant to CPL 170.40. A dismissal pursuant to this provision is neither an acquittal nor a conviction. Instead, it leaves the question of guilt or innocence unanswered. Thus, as a matter of law, there was no favorable termination, and the dismissal barred the instant suit (see, Manno v State of New York, 176 A.D.2d 1222; MacLeay v Arden Hill Hosp., 164 A.D.2d 228, 230; Jackson v County of Nassau, 123 A.D.2d 834; Miller v Star, 123 A.D.2d 750; see also, Ryan v New York Tel. Co., 62 N.Y.2d 494, 504). Sullivan, J.P., Thompson, Krausman and Florio, JJ., concur.