Supreme Court, Appellate Division, Second Department, New York.
John T. JACKSON, Respondent,
v.
The COUNTY OF NASSAU, et al., Appellants.
Oct. 27, 1986.
Attorneys and Law Firms
**450 Edward O'Brien, Acting Co. Atty., Mineola (Robert O. Boyhan, of counsel), for appellants.
Immerman & Perlman, Baldwin (Stanley A. Immerman, of counsel), for respondent.
Before *835 EIBER, J.P., and KUNZEMAN, KOOPER and SPATT, JJ.
Opinion
MEMORANDUM BY THE COURT.
*834 In an action to recover damages for malicious prosecution and false arrest, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Samenga, J.), dated July 10, 1985, as denied that branch of their motion which was to dismiss the malicious prosecution cause of action.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment is granted in its entirety.
To establish a malicious prosecution cause of action arising from a criminal proceeding, the plaintiff must prove that (1) the defendant either commenced or continued a criminal proceeding against him, (2) the proceeding terminated in his favor, (3) there was no probable cause for the criminal proceeding, and (4) the criminal proceeding was instituted with actual malice (Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 364 N.E.2d 893). Here, the plaintiff cannot demonstrate that the defendants lacked probable cause to arrest or that the prior proceeding terminated in his favor.
Additionally, it cannot be said that the prior criminal proceeding which was dismissed in the furtherance of justice pursuant to CPL 170.40 was such a termination which would indicate the guilt or innocence of the plaintiff (Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 448 N.E.2d 432). A dismissal in the interest of justice is neither an acquittal nor a conviction; rather, it leaves the question of guilt or innocence unanswered (cf. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487). Thus, as a matter of law, there was no favorable termination, and this kind of dismissal bars a subsequent suit to recover damages for malicious prosecution.
We have examined the plaintiff's remaining contentions and find them to be without merit.