91 A.D.2d 1056 | N.Y. App. Div. | 1983
— In an action to recover damages for false arrest, false imprisonment, malicious prosecution and deprivation of civil rights, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated July 20, 1981, as, upon granting the motion of defendant Herrman and the cross motions of the defendant City of New York to dismiss the complaint, dismissed the cause of action for malicious prosecution. Order affirmed, insofar as appealed from, with $50 costs and disbursements. Special Term dismissed plaintiff’s complaint on the ground that the causes of action asserted therein were time barred by the appropriate Statutes of Limitation. Now, on appeal, the defendant City of New York concedes that insofar as the complaint attempts to allege a cause of action for malicious prosecution, the action was timely commenced against it. The city argues, however, that to the extent that the order under review dismissed that claim, it should nonetheless be affirmed on the basis of an alternative argument submitted to Special Term, namely, that the complaint fails to state a cause of action for malicious prosecution (CPLR 3211, subd [a], par 7). We agree. In order to state a cause of action for malicious prosecution, a plaintiff must allege (1) the commencement of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused plaintiff, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice on the part of the defendant in commencing the criminal proceeding (Broughton v State of New York, 37 NY2d 451, cert den sub nom. Schanbarger v Kellogg, 423 US 929). The first two elements are not contested. However, as to the third
