Summary
In MacFawn v Kresler (214 A.D.2d 925, affd 88 N.Y.2d 859, supra), the cause of action for malicious prosecution was dismissed because the complaint was "insufficient" (CPL 170.30 [a]; 170.35 [1] [a]), which was not an adjudication on the merits and would not bar reprosecution.
Summary of this case from Gallagher v. State of N.YOpinion
April 27, 1995
Appeal from the Supreme Court, Albany County (Kahn, J.).
Plaintiff was employed by defendant Environmental Planning Lobby, Inc. (hereinafter EPL) and was supervised by defendant Keri A. Kresler until he was accused of stealing in March 1993. Kresler filed a criminal information against plaintiff alleging an attempted grand larceny in the fourth degree (see, Penal Law § 155.30; § 110.00). After being arrested and released on his own recognizance, plaintiff moved City Court to, inter alia, dismiss the information pursuant to CPL 170.30 (1) (a), (g) and 170.35 (1) (a). City Court dismissed the information, finding it to be "insufficient".
Plaintiff thereafter commenced this action for malicious prosecution alleging that Kresler, with EPL's express approval, maliciously charged plaintiff with the crime of attempted grand larceny. Defendants moved for dismissal of the complaint which was denied by Supreme Court. Defendants appeal.
Noting our limited scope of review on a motion to dismiss made pursuant to CPLR 3211 (a) (7) and that we must construe the complaint liberally in the plaintiff's favor (see, Quail Ridge Assocs. v Chemical Bank, 162 A.D.2d 917, 918, lv dismissed 76 N.Y.2d 936), where, as here, evidentiary materials have been submitted, our role is to determine as a matter of law "whether plaintiff has a cause of action, not whether he has properly stated one" (supra, at 918 [emphasis supplied]; see, New York State Elec. Gas Corp. v Aasen, 157 A.D.2d 965, 966; Brown v State of New York, 125 A.D.2d 750, 751, lv dismissed 70 N.Y.2d 747).
Thus viewing the complaint, it is well settled that to recover in a malicious prosecution action, plaintiff must prove "(1) the commencement or continuation of a criminal proceeding * * * (2) the termination of the proceeding in favor of the accused, (3) lack of probable cause, and (4) the presence of actual malice" (Janendo v Town of New Paltz Police Dept., 211 A.D.2d 894, 897; see, Colon v City of New York, 60 N.Y.2d 78, 82; see also, Martin v City of Albany, 42 N.Y.2d 13, 16).
The primary issue on appeal is whether City Court's dismissal of the complaint due to its "insufficiency" constitutes a termination of the proceeding in plaintiff's favor. Plaintiff bears the burden of demonstrating that the proceeding terminated in his favor, which may be sustained only when the final disposition fairly implies his innocence (see, Hollender v Trump Vil. Coop., 58 N.Y.2d 420, 425-426; Restatement [Second] of Torts § 660, comment a).
Dismissal of an information under CPL 170.35 (1) (a) and 170.30 (1) (a) is neither an acquittal nor an adjudication on the merits (see, People v Nuccio, 78 N.Y.2d 102, 105; Ryan v New York Tel. Co., 62 N.Y.2d 494, 504). Even "look[ing] beyond that designation and consider[ing] the actual basis for the decision" (Hankins v Great Atl. Pac. Tea Co., 208 A.D.2d 111, 113), we note that plaintiff's supporting affidavits fail to allege any facts indicating that the dismissal of the information was either a favorable determination or that the dismissal implied his innocence. The dismissal of a legally insufficient information neither bars re-prosecution by the People (see, People v Nuccio, supra, at 104; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 170.30, at 61), nor does the failure to re-prosecute imply plaintiff's innocence (see, Colon v City of New York, supra, at 84). Hence, we find that the complaint with supporting affidavits is insufficient to sustain a cause of action for malicious prosecution since City Court's dismissal of the information as "insufficient" neither terminated the criminal proceeding nor adjudicated its merit in plaintiff's favor (see, Ryan v New York Tel. Co., supra, at 504-505; MacLeay v Arden Hill Hosp., 164 A.D.2d 228, 230-231, lv denied 77 N.Y.2d 806; Kenyon v State of New York, 118 A.D.2d 942, 944).
Accordingly, as plaintiff failed to sustain his burden of showing that the final disposition fairly implied his innocence, Supreme Court erred in denying defendants' motion to dismiss the complaint.
Mikoll, J.P., White, Casey and Spain, JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted and complaint dismissed.