Opinion
896 Index No. 154295/20 Case No. 2023–01608
10-24-2023
Burton RUBIN, Plaintiff–Appellant, v. Francesca DI DIMATTEO, Defendant–Respondent.
Max D. Leifer, P.C., New York (Max Leifer of counsel), for appellant. Law Offices of Steven D. Isser, New York (Steven D. Isser of counsel), for respondent.
Max D. Leifer, P.C., New York (Max Leifer of counsel), for appellant.
Law Offices of Steven D. Isser, New York (Steven D. Isser of counsel), for respondent.
Kern, J.P., Singh, Gesmer, Scarpulla, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 23, 2023, which, inter alia, granted defendant's motion for partial summary judgment dismissing the malicious prosecution claim, unanimously affirmed, without costs.
The court properly granted defendant's motion for partial summary judgment and dismissed the malicious prosecution claim. Plaintiff failed to demonstrate that defendant initiated or continued the criminal proceeding against him ( Vizcaino v. City of New York, 201 A.D.3d 538, 538, 157 N.Y.S.3d 370 [1st Dept. 2022] ; Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 208, 746 N.Y.S.2d 141 [1st Dept. 2002] ). The record demonstrates only that defendant provided information to police and signed a supporting deposition. She did not call the police; rather, plaintiff did. Defendant also did not implore prosecutors to continue the prosecution ( id. at 209, 746 N.Y.S.2d 141 ). Plaintiff cites no evidence that shows that defendant knowingly provided false information; in fact, he testified that he was not aware of any false statement she made to prosecutors or the court ( Du Chateau v. Metro–North Commuter R.R., 253 A.D.2d 128, 131, 688 N.Y.S.2d 12 [1st Dept. 1999] ).