58 A.D.2d 804 | N.Y. App. Div. | 1977
In an action to recover damages for conversion, malicious prosecution and abuse of process, defendant O’Malley appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, dated April 27, 1976, as denied the branches of her motion which sought dismissal of the second and third causes of action of the complaint on the ground of general release, and of the second cause of action on the ground that it failed to state a cause of action. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and the second and third causes of action of the complaint are dismissed. In his complaint against appellant, plaintiff-respondent set forth three causes of action, based upon conversion, malicious prosecution and abuse of process, respectively. The latter two causes of action were based upon the fact that appellant had brought criminal charges of harassment, aggravated assault and assault against plaintiff which led to his arrest. At the commencement of plaintiff’s trial on these criminal charges, the parties entered into an agreement whereby appellant withdrew all criminal charges against plaintiff and plaintiff released her, in writing, from all liability resulting from his arrest and confinement. Plaintiff was thereupon released from custody. In support of her motion to dismiss the causes of action alleging malicious prosecution and abuse of process, appellant submitted an excerpt from an examination before trial of plaintiff which clearly indicated that plaintiff signed the releases on his own volition, upon the advice of his counsel and with the consent of the District Attorney. In addition, appellant argued that a cause of action for malicious prosecution does not lie where a criminal action is terminated by agreement of the parties. In opposition to the