While other departments have recited Ryan (supra) to bar claims for malicious prosecution where the underlying criminal proceeding was dismissed in the interest of justice, each case is distinguishable and none involved facts so indicative of favorable termination. For example, in Miller v. Star ( 123 A.D.2d 750 [2d Dept 1986]), the criminal defendant was initially convicted of harassment, fined and sentenced to a one-year conditional discharge. When a new trial was ordered after appeal, the Criminal Court granted the defendant's motion to dismiss in the interest of justice largely because the retrial would not have occurred until after expiration of the original conditional discharge period.
Similarly, dismissals by the prosecution "in the interests of justice" under N.Y. Crim. Pro. L. Section(s) 170.40, are generally considered not to be dispositions in favor of the accused. See, e.g., MacLeay v. Arden Hill Hospital, 164 A.D.2d 228, 230-31, 563 N.Y.S.2d 333, 334-35 (3d Dep't 1990), appeal denied, 77 N.Y.2d 806, 568 N.Y.S.2d 913 (1991); Miller v. Star, 123 A.D.2d 750, 751, 507 N.Y.S.2d 223, 224 (2d Dep't 1986) (mem.). See also Hygh v. Jacobs, 961 F.2d 359, 368 (2d Cir. 1992) ("as a matter of law" a dismissal in the interests of justice "cannot provide the favorable termination required as the basis for a claim of malicious prosecution"); but see Hankins v. Great Atlantic Pacific Tea Co., 208 A.D.2d 111, 114-16, 622 N.Y.S.2d 678, 680-81 (1st Dep't 1995) (dismissal in the interests of justice can be a favorable termination, depending on the facts and circumstances surrounding the dismissal).
tion requirement satisfied only when disposition indicates innocence), appeal denied, 87 N.Y.2d 810 (1996); Ward v. Silverberg, 206 A.D.2d 522, 523 (2d Dep't 1994) (dismissal granted at defense counsel's request "as a matter of favor" insufficient to establish termination favorable to plaintiff), aff'd, 85 N.Y.2d 993 (1995) (mem.); Buccieri v. Franzreb, 201 A.D.2d 356, 358 (1st Dep't 1994) (malicious prosecution claim defective because it did not plead former action "was dismissed on the merits"); Kramer v. Herrera, 176 A.D.2d 1241, 1241 (4th Dep't 1991) (dismissal "in the interest of justice" not a termination in favor of accused and insufficient to sustain malicious prosecution claim); Manno v. New York, 176 A.D.2d 1222, 1223 (4th Dep't 1991) (applying same rule); MacLeay v. Arden Hill Hosp., 164 A.D.2d 228, 230-31 (3d Dep't 1990) (same), appeal denied, 77 N.Y.2d 806 (1991); Jackson v. County of Nassau, 123 A.D.2d 834, 834 (2d Dep't 1986) (same), appeal denied, 69 N.Y.2d 608 (1987); Miller v. Star, 123 A.D.2d 750, 751-52 (2d Dep't 1986) (dismissal "in interest of justice" bars malicious prosecution claim because neither acquittal nor any determination of the merits); cf. Hankins v. Great Atl. Pac. Tea Co., 208 A.D.2d 111, 116 (1st Dep't 1995) (malicious prosecution cause of action reinstated when prior proceeding dismissed "in the interest of justice" because of an "uncontroverted alibi"). 3. Termination in the Instant Case
Under the circumstances, it is clear that Pinaud cannot demonstrate that the dismissal of the stolen property charge was "on the merits and in [his] favor," id. at 681, and so Pinaud cannot, as a matter of law, satisfy the favorable termination requirement of a malicious prosecution claim as to this charge. See Miller v. Star, 123 A.D.2d 750, 750-52, 507 N.Y.S.2d 223, 224 (2d Dep't 1986) (holding, "as a matter of law," on similar facts that dismissal in the interests of justice could not "constitute a resolution favorable to the accused"); see also Hankins, 622 N.Y.S.2d at 680-81 (justifying the holding in Miller by explaining that in that case the original dismissal "was more in the nature of a procedurally-induced gift to the defendant than a determination based on the merits"). Thus, we conclude that the District Court was ultimately correct when it found that Pinaud had failed to state a malicious prosecution claim based on the stolen property charge.
Consequently, as a matter of law, it cannot provide the favorable termination required as the basis for a claim of malicious prosecution. See Kramer v. Herrera, 176 A.D.2d 1241, 576 N.Y.S.2d 736, 737 (4th Dep't 1991) (mem.); Manno v. State, 176 A.D.2d 1222, 576 N.Y.S.2d 717, 717 (4th Dep't 1991) (mem.); MacLeay v. Arden Hill Hosp., 164 A.D.2d 228, 230-31, 563 N.Y.S.2d 333, 334-35 (3d Dep't 1990), appeal denied, 77 N.Y.2d 806, 571 N.E.2d 83, 568 N.Y.S.2d 913 (1991); Jackson v. County of Nassau, 123 A.D.2d 834, 834, 507 N.Y.S.2d 449, 450 (2d Dep't 1986) (mem.), appeal denied, 69 N.Y.2d 608, 509 N.E.2d 358, 516 N.Y.S.2d 1023 (1987); Miller v. Star, 123 A.D.2d 750, 751, 507 N.Y.S.2d 223, 224 (2d Dep't 1986) (mem.). F. Attorney's Fees.
"Similarly, dismissals by the prosecution `in the interests of justice' under N.Y. CRIM. PROC. § 170.40, are generally considered not to be dispositions in favor of the accused." Murphy, 118 F.3d at 949 (citing MacLeay v. Arden Hill Hospital, 164 A.D.2d 228, 230-31, 563 N.Y.S.2d 333, 334-35 (3d Dep't 1990); Miller v. Star, 123 A.D.2d 750, 751, 507 N.Y.S.2d 223, 224 (2d Dep't 1986); Hygh, 961 F.2d at 368 ("as a matter of law" a dismissal in the interests of justice "cannot provide the favorable termination required as the basis for a claim of malicious prosecution"). Here, Plaintiffs have failed to establish a favorable termination for Angela Ferlito.
PROC. § 170.40, are generally considered not to be dispositions in favor of the accused." Murphy, 118 F.3d at 949 (citing MacLeay v. Arden Hill Hospital, 164 A.D.2d 228, 230-31, 563 N.Y.S.2d 333, 334-35 (3d Dep't 1990); Miller v. Star, 123 A.D.2d 750, 751, 507 N.Y.S.2d 223, 224 (2d Dep't 1986); Hygh, 961 F.2d at 368 ("as a matter of law" a dismissal in the interests of justice "cannot provide the favorable termination required as the basis for a claim of malicious prosecution").
"Similarly, dismissals by the prosecution 'in the interests of justice' under N.Y. CRIM. PROC. § 170.40, are generally considered not to be dispositions in favor of the accused." Murphy, 118 F.3d at 949 (citing MacLeay v. Arden Hill Hospital, 164 A.D.2d 228, 230-31, 563 N.Y.S.2d 333, 334-35 (3d Dep't 1990); Miller v. Star, 123 A.D.2d 750, 751, 507 N.Y.S.2d 223, 224 (2d Dep't 1986); Hygh, 961 F.2d at 368 ("as a matter of law," a dismissal in the interests of justice "cannot provide the favorable termination required as the basis for a claim of malicious prosecution").
Id. at 779; see Dorak v. County of Nassau, 329 F. Supp. 497, 503 (E.D.N.Y. 1970) (dismissal in the interest of justice as a matter of judicial discretion will not support claim for malicious prosecution), aff'd, 445 F.2d 1023 (2d Cir. 1971); Ryan v. New York Telephone Co., 62 N.Y.2d 494, 478 N YS.2d 823, 829, 467 N.E.2d 487 (Ct.App. 1984), ("dismissal 'in the interest of justice' [pursuant to CPL § 210.40] is neither an acquittal of the charges nor any determination of the merits. Rather, it leaves the question of guilt or innocence unanswered"); MacLeay v. Arden Hill Hospital, 164 A.D.2d 228, 563 N.Y.S.2d 333 (3rd Dep't 1990) (dismissal in the interest of justice pursuant to CPL § 170.40 does not sustain a malicious prosecution claim), appeal denied, 77 N.Y.2d 806, 568 N YS.2d 913, 571 N.E.2d 83 (1991); Miller v. Star, 123 A.D.2d 750, 507 N.Y.S.2d 223 (2d Dep't 1986) (same).
Defendants contend that plaintiffs cannot prove a termination favorable to them because a dismissal pursuant to CPL § 170.40 is not a favorable disposition. Manno v. State, 576 N.Y.S.2d 717 (4th Dep't 1991); MacLeay v. Arden Hill Hosp., 164 A.D.2d 228, 563 N.Y.S.2d 333 (3rd Dep't 1990), appeal denied, 77 N.Y.2d 806, 568 N.Y.S.2d 913, 571 N.E.2d 83 (Ct.App. 1991); Jackson v. County of Nassau, 123 A.D.2d 834, 507 N YS.2d 449 (2d Dep't 1986), appeal denied, 69 N.Y.2d 608, 516 N YS.2d 1023, 509 N.E.2d 358; Miller v. Star, 123 A.D.2d 750, 507 N.Y.S.2d 223 (2d Dep't 1985). Plaintiffs respond that this Court must evaluate the instant case "to determine whether [the] dismissal `in the furtherance of justice' was or was not on the merits."