JAMES MACFAWN, JR., APPELLANT, v. KERI A. KRESLER ET AL., RESPONDENTS.
88 N.Y.2d 859, 666 N.E.2d 1359, 644 N.Y.S.2d 486 (1996).
May 2, 1996
3 No. 84(1996 NY Int. 104)
Decided May 2, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Eugene R. Spada, for Appellant.
Timothy J. Coleman, for Respondents.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Plaintiff in this malicious prosecution action bears the burden of
establishing that the underlying criminal action terminated favorably
to him (Ward v Silverberg, 85 NY2d 993; Hollender v Trump Vil.
Coop., 58 NY2d 420; Martin v City of Albany, 42 NY2d 13, 16). A
criminal proceeding terminates favorably to the accused, for purposes
of a malicious prosecution claim, when the final disposition of the
proceeding involves the merits and indicates the accused's innocence
(see, Hollender v Trump Vil. Coop., supra; Halberstadt New York Life
Ins. Co., 194 NY 1).
In this case the information charging plaintiff with attempted grand
larceny in the fourth degree, theft of a credit card (Penal Law
155.30(4); 110.00), was dismissed by the court because it concluded
that the facts alleged by the People were not legally sufficient to
support the charge (CPL 170.30(1)(a), 170.35(1)(a)). The People were
at liberty to amend the information to correct the deficiency but did
not do so. Neither did they refile the charge as they could have (see,
People v Nuccio, 78 NY2d 102, 104).
Manifestly, the criminal action was disposed of on procedural
grounds. The court did not reach the merits and the question of
plaintiff's guilt or innocence remained unanswered after the court
dismissed the information. Accordingly, plaintiff's complaint in the
civil action failed to state a cause of action for malicious
prosecution and it was properly dismissed.
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SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Eugene R. Spada, for Appellant.
Timothy J. Coleman, for Respondents.
The order of the Appellate Division should be affirmed, with costs.
Plaintiff in this malicious prosecution action bears the burden of establishing that the
Coop., 58 NY2d 420; Martin v City of Albany, 42 NY2d 13, 16).
A criminal proceeding terminates favorably to the accused, for purposes of a malicious
Neither did they refile the charge as they could have (see, People v Nuccio, 78 NY2d 102,
the criminal action was disposed of on procedural grounds.
The court did not reach the merits and the question of plaintiff's guilt or innocence
plaintiff's complaint in the civil action failed to state a cause of action for malicious
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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