Cooper v Lathillerie

Cooper v Lathillerie 2014 NY Slip Op 50783(U) Decided on April 30, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.


SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ.
2013-323 N C

Stephen Cooper, Appellant,

against

Agnes Lathillerie, Respondent.

[*1]

Appeal from a judgment of the District Court of Nassau County, First District (Eric Bjorneby, J.), entered July 16, 2012. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the principal sum of $5,000 for malicious prosecution, alleging that he lost wages and incurred expenses for attorney's fees in the defense of two criminal proceedings in which defendant was the complaining witness. Both proceedings had terminated in plaintiff's favor. After a nonjury trial, the District Court found that plaintiff had failed to meet his burden of establishing his claim for malicious prosecution and dismissed the action.

Appellate review of a small claims judgment is limited to determining whether substantial justice has been done between the parties according to the rules and principles of substantive law (UDCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to evaluate their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

On a prior appeal in this action (33 Misc 3d 1, 3), this court stated:

"A cause of action based on malicious prosecution may be stated against a complaining witness where a criminal proceeding was commenced on the strength of the complaining witness's complaints, terminated in favor of the accused, lacked probable cause, and was initiated on the basis of actual malice (e.g. Nieminski v Cortese-Green, 74 AD3d 1550, 1551 [2010]; Mohen v Stepanov, 59 AD3d 502, 503 [2009]). Where the tort of malicious prosecution is established, the plaintiff's legal fees incurred in the defense of the criminal action may be claimed as damages in the civil action for malicious prosecution (see Dubrovsky v Zaicher, 26 Misc 3d 127[A], 2009 NY Slip Op 52606[U]; [App Term, 2d, 11th & 13th Jud Dists 2009])."

In order to support his claim for malicious prosecution, plaintiff had to demonstrate that defendant, as a complainant, had "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act" (Mesiti v Wegman, 307 AD2d 339, 340 [2003]; [internal quotation marks omitted]). Moreover, to show actual malice on defendant's part, plaintiff had to prove that defendant had "commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]). We agree with the District Court that, at trial, plaintiff did not meet his burden of establishing, by a preponderance of the evidence, the constituent elements of an action for malicious prosecution. Although the testimony indicated that defendant had pointed out plaintiff to the police prior to his arrest, such conduct is not sufficient to establish liability. While it is true that both of the criminal proceedings underlying the instant action had terminated in plaintiff's favor, such favorable terminations are not necessarily evidence of malice.

In view of the foregoing, we find that substantial justice was done between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807).

Accordingly, the judgment is affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.

Decision Date: April 30, 2014