72 A.D.2d 702 | N.Y. App. Div. | 1979
Lead Opinion
Appeal from an order of the Supreme Court, New York County, entered July 3, 1978, dismissed as moot. Order of the Supreme Court, New York County (Appeal No. 6311N), entered June 18,1979, granting so much of defendants’ motion as sought to expunge from the file the in camera affidavit submitted pursuant to the court’s order entered January 26, 1978 and expunged Part I thereof and denied so much of the motion as sought dismissal of the third amended complaint, modified, on the law, to the extent of dismissing the second, fourth and fifth causes of action of the third amended complaint, with leave to serve a further amended complaint properly repleading the fourth and fifth causes of action, and, except, as so modified, affirmed, without costs. Order of the Supreme Court, New York County, entered January 26, 1979, denying defendants’ motion to dismiss the second and fourth causes of action and granting the motion conditionally with respect to the sixth cause of action, modified, on the law, to the extent of dismissing the second, fourth and sixth causes of action with leave to serve a further amended complaint properly repleading the fourth and sixth causes of action, and, except, as so modified, affirmed, without costs. This action arises out of the indictment of plaintiff and others on June 4, 1976. The indictment was obtained by Special Prosecutor Maurice H. Nadjari. In March, 1977, Justice Sandler, then sitting at Trial Term, in a most comprehensive opinion, dismissed the indictment as to this plaintiff, with leave to the Special Prosecutor to represent the matter to a Grand Jury other than the Grand Jury which found the indictment. In the course of his opinion, Justice Sandler noted, with respect to specific evidence presented to the Grand Jury, that "the Assistant Special Prosecutor violated here, as throughout the presentation, his obligation to 'act impartially in the interest only of justice’ [citation omitted]”. The evidence presented to the Grand Jury consisted, in large part, of testimony given by defendants and transcripts of tape recordings of conversations had between plaintiff and others, with defendant. Inasmuch as the transcripts were voluminous, they were edited, and plaintiff asserts that the editing resulted in a presentation both unfair and detrimental to him. No representation was ever made to a Grand Jury. This action was then commenced. In the second amended complaint, plaintiff alleged six causes of action: These counts, in the sequence set forth in the complaint, allege: (1) malicious prosecution; (2) conspiracy to commit malicious prosecu
Dissenting Opinion
dissents in part in a memorandum as to Appeal No. 6311N, as follows: I agree with the majority except that I would not at this time grant leave to plaintiff to serve a further amended complaint with respect to the fourth and fifth causes of action in the third amended complaint; instead I would make our determination without prejudice to an application