Dubrovsky v Zaicher

[*1] Dubrovsky v Zaicher 2009 NY Slip Op 52606(U) [26 Misc 3d 127(A)] Decided on December 15, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-71 K C.

Zalmon Dubrovsky, Appellant,

against

Vera Zaicher, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered October 7, 2008. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed without costs.

At the nonjury trial in this small claims action to recover the sum of $2,500 based, in essence, on a theory of malicious prosecution, plaintiff testified that, in 2007, defendant had filed a criminal complaint against him, in defense of which complaint he had executed a $2,500 retainer agreement with his criminal court counsel. Eleven months later, the criminal proceedings had terminated, followed by a CPL 160.50 sealing order. At the close of plaintiff's case, the Civil Court granted defendant's motion to dismiss this small claims action, finding that plaintiff had incurred attorney's fees in the criminal proceeding at his own election, with no responsibility therefor attributable to defendant.

Although we disagree with the Civil Court's determination, in effect, that a criminal court complainant can never be liable for the accused's legal fees based on a theory of malicious prosecution upon a termination of the criminal court proceeding in the accused's favor (see e.g. Broughton v State of New York, 37 NY2d 451, 456 [1975]; Putnam v County of Steuben, 61 AD3d 1369, 1371 [2009]; Burlett v County of Saratoga, 111 AD2d 426, 427 [1985]), we find that plaintiff failed to establish a necessary element of the cause of action, namely that the criminal proceeding had terminated in his favor (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Colon v City of New York, 60 NY2d 78, 82 [1983]). Although plaintiff testified as to facts which, if true, supported termination theories consistent with a disposition in his favor, plaintiff did not provide any proof of the actual basis for the termination, such as the statements of the parties at the dismissal proceeding or in documentation sealed via the CPL 160.50 order [*2](see e.g. Wright v Snow, 175 AD2d 451, 452 [1991]). We note that the fact that a CPL 160.50 order was issued does not conclusively establish that the termination was in plaintiff's favor as such an order can issue for reasons that are not inherently consistent with the innocence of the accused (see e.g. Matter of Harper v Angiolillo, 89 NY2d 761, 761 [1997]; Martinez v City of Schenectady, 97 NY2d at 84; cf. Rohrs v Rohrs, 17 AD3d 659, 660 [2005]), as, for example, where there is a dismissal in the interest of justice (Canatalino v Danner, 96 NY2d 391, 396-397 [2001]; Smith-Hunter v Harvey, 95 NY2d 191, 197 [2000]; see CPL 160.50 [1], [3] [b]; 170.30 [1] [g]; 170.40).

Accordingly, we find that substantial justice was done between the parties according to the rules and principles of substantive law (CCA 1807) and affirm the judgment.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 15, 2009