3 No. 79
Andrea Smith-Hunter,
Appellant,
v.
Jonathan Harvey et al.,
Respondents.
_________________________________________________________________
2000 NY Int. 84
July 6, 2000
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Alan J. Pierce, for appellant.
Nancy E. May-Skinner, for respondents.
_________________________________________________________________
KAYE, CHIEF JUDGE:
On February 21, 1996, plaintiff--then a graduate student at the State
University at Albany--parked her car in a private lot near the
downtown Albany offices of defendant law firm, in a spot reserved for
defendant Jonathan Harvey, a partner in the firm. When she returned a
short time later, plaintiff found that her car had been blocked in by
another car. Told that the vehicle belonged to someone at the law
firm, plaintiff entered the reception area to ask that the car be
moved. After arguing with Harvey, who refused to move his car,
plaintiff was asked to leave the offices. Defendant's brother Jack
Harvey, another partner in the firm, physically escorted her out.
While being maneuvered out the door, plaintiff fell down a nine-step
stairway to the sidewalk pavement below. She was taken by ambulance to
the hospital, where she underwent surgery and remained for nine days.
On the day of the incident, defendant Jonathan Harvey signed an
information charging plaintiff with trespass, a violation (see,
Penal Law § 140.05). Days later, plaintiff swore to a complaint
charging Jack Harvey with third-degree assault, a class A misdemeanor
(see, Penal Law § 120.00(2)), alleging that he had recklessly
caused her to fall down stairs and fracture a bone in her knee. On the
application of the District Attorney, the court appointed James
Banagan to prosecute the charges against plaintiff, and a special
prosecutor for the charges against Jack Harvey.(1)
After she was arraigned on the charges against her, plaintiff served
SNIPPETS:
Andrea Smith-Hunter, Appellant, v. Jonathan Harvey et al., Respondents.
This opinion is uncorrected and subject to revision before publication in the New York
KAYE, CHIEF JUDGE:
On February 21, 1996, plaintiff--then a graduate student at the State University at
Told that the vehicle belonged to someone at the law firm, plaintiff entered the reception
Days later, plaintiff swore to a complaint charging Jack Harvey with third-degree assault, a
On the application of the District Attorney, the court appointed James Banagan to prosecute
Banagan, however, failed to respond, or to appear on six separate court dates, despite
Exasperated by the delays, on June 11, 1996 plaintiff moved to dismiss the case for violation
By letter dated June 17, 1997, Jonathan Harvey advised Banagan that he had recently learned
In July 1997, a year after the trespass charges against plaintiff were dismissed, she
Defendants sought summary judgment on the ground that dismissal of the criminal proceedings
Defendants supported their motion with a Banagan affidavit averring that he had failed to
While the tort of malicious prosecution protects against the consequences of wrongful
"the commencement or continuation of a criminal proceeding by the defendant against the
The common law, however, also recognizes an exception to the general rule where termination
A termination is not considered favorable, for example, if the charge is dismissed "because
Indeed, it is well settled that any "disposition of the criminal action which does not
Banagan's bald statement that this failure was the consequence of his conducting a trial out
The Chief Judge has written a cogent decision resolving a conundrum that has beset the law of
speedy trial dismissals do not indicate innocence.
|
