Selinger v. Selinger

Dec 12, 1994
Versions:210 A.D.2d 309
620 N.Y.S.2d 277
1994 N.Y. App. Div. LEXIS 12597

—In an action, inter alia, to *310recover damages for malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated April 16, 1993, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs to the respondent Andrew Homar.

Contrary to the appellant’s contentions, the Supreme Court correctly awarded summary judgment to the defendants. Among the essential elements of a cause of action to recover damages for malicious prosecution is that the underlying criminal action was terminated in the plaintiffs favor (see, Colon v City of New York, 60 NY2d 78; Martin v City of Albany, 42 NY2d 13). In the instant case, the criminal charges, which arose in the context of an acrimonious divorce, were withdrawn on consent pursuant to the terms of a stipulation settling the divorce action. This does not constitute a termination favorable to the plaintiff, as it is not indicative of his innocence (see, Mondello v Mondello, 161 AD2d 690). Accordingly, the court correctly dismissed the plaintiffs first five causes of action.

The sixth cause of action, sounding in abuse of process, was likewise correctly dismissed. The plaintiff failed to prove that he suffered special damages in this case (see, Kabnick v O’Malley, 58 AD2d 804; cf., Weisman v Weisman, 108 AD2d 852), and he failed to demonstrate that the process was improperly used by the defendants after it was initiated (see, Curiano v Suozzi, 63 NY2d 113).

We have reviewed the plaintiffs remaining contentions and find them to be without merit. Sullivan, J. P., Rosenblatt, Miller and Ritter, JJ., concur.