Joseph Verboys v Town of Ramapo

Verboys v Town of Ramapo 2004 NY Slip Op 08857 [12 AD3d 665] November 29, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Joseph Verboys, Respondent, et al., Plaintiff,
v
Town of Ramapo et al., Defendants, and Lydia Cotz et al., Appellants.

—[*1]

In an action, inter alia, to recover damages for malicious prosecution, the defendants Lydia Cotz and George Cotz appeal from a judgment of the Supreme Court, Rockland County (O'Rourke, J.), entered July 22, 2003, which, upon a jury verdict, is in favor of the plaintiff Joseph Verboys and against them in the principal sum of $10,000 each.

Ordered that the judgment is affirmed, with costs.

To recover damages for malicious prosecution, a plaintiff must establish that the underlying criminal action was terminated in his or her favor (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Cantalino v Danner, 96 NY2d 391, 394 [2001]). A dismissal of the criminal charges without prejudice qualifies as a final, favorable termination if the dismissal represents "the formal abandonment of the proceedings by the public prosecutor" (Smith-Hunter v Harvey, 95 NY2d 191, 198 [2000] [internal quotation marks omitted]). Here, although the initial criminal proceeding against the plaintiff Joseph Verboys was dismissed without prejudice, the record demonstrates that the prosecution undertook a full investigation and elected not to proceed with the charges because it determined that the allegations against the plaintiff were not supported by the evidence. Thus, there was sufficient evidence in the record for the jury to conclude that the criminal proceedings terminated in favor of the plaintiff (see Cantalino v Danner, supra; Smith-Hunter v Harvey, supra). [*2]

The defendants' remaining contention is without merit. Florio, J.P., H. Miller, S. Miller and Spolzino, JJ., concur.