Opinion
November 16, 2000.
Order, Supreme Court, New York County (Richard Braun, J.), entered March 18, 1999, which, insofar as appealed from, denied petitioner's application to serve a late notice of claim for malicious prosecution, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the application granted and the notice of claim sworn to August 10, 1998 deemed timely filed.
Gary Maitland, for petitioner-appellant.
George Gutwirth, for respondent-respondent.
Before: Rubin, J.P., Andrias, Saxe, Buckley, Friedman, JJ.
Pursuant to the recent Court of Appeals decision in Smith-Hunter v. Harvey ( 95 N.Y.2d 191), the dismissal of all pending criminal charges against petitioner pursuant to CPL 30.30 for the People's failure to be ready for trial was a "favorable termination" as is required to maintain an action for malicious prosecution.
Thus, as the City now concedes, permission to serve a late notice of claim should have been granted.
The Decision and Order of this Court entered herein on May 4, 2000 is hereby recalled and vacated. See M-3410 decided simultaneously herewith.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.