Jo-Ann Cantalino,
Appellant,
v.
Jacqueline Danner,
Respondent.
2001 NY Int. 86
Is a dismissal in the interest of justice a "favorable termination" for purposes of a malicious prosecution action? Under the circumstances here, we conclude that it is, since the court's reasons for dismissing the criminal charges were not inconsistent with the innocence of the accused.
This case arises out of the bitterly contested divorce
of plaintiff from her husband. The husband, a Lieutenant in the
New York City Police Department, was living with defendant -- his
girlfriend, who was also a police officer. While the divorce
action was pending in Kings County Supreme Court, the husband
purported to obtain a divorce in the Dominican Republic and marry
Plaintiff moved to have her husband held in contempt, and Supreme Court ordered that he be personally served. One service attempt was unsuccessful when defendant allegedly grabbed the papers from the process server. On another occasion, the officers at the husband's precinct apparently thwarted a service attempt by informing the process server that he was not at work and sending the process server to a false location. On yet a third occasion, the Police Department allegedly refused to provide a police escort so that plaintiff could serve her husband at his home in Staten Island.
Following these failed attempts, Supreme Court ordered that service be made on the husband by "nailing [the papers] to the door" of his home and sending them by regular and certified mail to that address. Pursuant to that order, plaintiff, accompanied by her process server, Rosalie Perez, went to his home, armed with a hammer and nails. In the course of nailing the papers, they damaged the screen door. Defendant came out of the house, and an altercation ensued. Defendant called the police, claiming that plaintiff had pushed her and threatened her with the hammer. As a result, the police arrested both plaintiff and Perez. Plaintiff spent the night in jail; Perez was given a Desk Appearance Ticket and released.
By a Criminal Court complaint, plaintiff was charged with assault in the third degree, menacing in the second degree, criminal possession of a weapon in the fourth degree, criminal mischief in the fourth degree and harassment. In a lengthy opinion, Criminal Court dismissed the complaint in the interest of justice, stating that the charges against plaintiff were groundless. Specifically, the court held that because plaintiff was complying with Supreme Court's order to nail service to her husband's door, she "clearly did not have the intent required to have committed the crime of Criminal Mischief in the Fourth Degree." In addition, the court stated that the assault, harassment and menacing charges must be dismissed, since "there is no demonstrated intent to cause physical injury to [defendant] or to place her in reasonable fear of physical injury, nor was there any intent to harass, annoy or alarm her."
Further, concerning the weapons charge, the court held that the People "will not be able to prove beyond a reasonable doubt that either Ms. Perez or [plaintiff] possessed a hammer with the intent to use it as a dangerous or deadly weapon or that they intended to menace the complainant with it." Rather, the court held that it was "apparent that [plaintiff] was using the hammer to carry out the mandate of the Supreme Court."
The court added that plaintiff was involved in "an
acrimonious long pending matrimonial matter with the paramour of
the complainant;" that the allegation did not involve a "serious
Plaintiff then brought the present malicious prosecution action against defendant.[1] Defendant moved for summary judgment, arguing that the dismissal of criminal charges in the interest of justice did not constitute a termination of the proceedings in plaintiff's favor. Supreme Court denied the motion. The Appellate Division reversed and dismissed the complaint, holding that a dismissal in the interest of justice is not a "judicial determination of the accused's innocence on the merits" (269 2 349 [quoting Ward v Silverberg, , 85 NY2d 993, 994]). We now reverse and reinstate the complaint.
In order to recover for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice (see, Smith-Hunter v Harvey, , 95 NY2d 191, 195; Broughton v State of New York, , 37 NY2d 451, 457, cert. denied 423 US 929). This appeal centers on the second element: whether the dismissal of criminal charges against plaintiff in the interest of justice constituted a termination of the proceedings in her favor.
In Smith-Hunter, this Court held that any termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused. The Court rejected the notion that the termination must affirmatively demonstrate the accused's innocence, stating that the law "should not require one who is falsely and maliciously accused to proceed to trial -- incurring additional financial and emotional costs -- as a prerequisite to recovery for malicious prosecution" (95 2 at 199).
As we noted in Smith-Hunter, however, several types of
terminations do not qualify as "favorable" at common law, since
they are fundamentally inconsistent with innocence. For
instance, where a prosecution fails to go forward because of
Applying these principles to the case at hand, the dismissal of criminal charges against plaintiff was a favorable termination because it was not inconsistent with her innocence. Far from implying guilt, the Criminal Court Judge made clear that he dismissed the charges because plaintiff was innocent and the prosecution groundless. Specifically, he stated that plaintiff was innocent of assault and harassment because she did not have the intent to injure, harass, annoy or alarm; that she was innocent of criminal mischief because Supreme Court's order authorized her to nail the papers to her husband's door; and that she was innocent of weapons possession because she did not possess the hammer with the intent to use it as a dangerous instrument -- rather, she was using it to carry out Supreme Court's order. Plainly, the Criminal Court's findings cannot be construed as inconsistent with plaintiff's innocence.
To be sure, there are circumstances where a dismissal
in the interest of justice is inconsistent with innocence because
it represents "mercy requested or accepted by the accused"
(Smith-Hunter v Harvey,
Unlike the case at hand, the criminal charges in Ward
were dismissed out of mercy. While the Criminal Court there
recognized that plaintiff had committed the charged conduct, it
did not believe a criminal sanction was appropriate. Such a
Contrary to the Appellate Division's holding, Ward did not establish a per se rule that a dismissal in the interest of justice can never constitute a favorable termination. Rather, as we stated in Smith-Hunter, the question is whether, under the circumstances of each case, the disposition was inconsistent with the innocence of the accused. A case-specific rule is particularly appropriate for dismissals in the interest of justice, since the trial court is required to state on the record its reasons for dismissing the criminal charges (see, CPL 170.40[2]). And here, as noted, the Criminal Court's statement of reasons makes clear that it dismissed the charges against plaintiff because they were groundless -- not out of mercy or compassion.
Nor does Ryan v New York Telephone Co. (62 2 494) mandate a different result. As we stated in Smith-Hunter:
>(95 NY2d, at 199 n. 4 [internal quotations and citations omitted]). Thus, Ryan says nothing about the question at hand."In Ryan, this Court held that plaintiff was collaterally estopped from suing for wrongful discharge and other related claims based on an administrative determination that he had
stolen company property. We held that collateral estoppel applied even though criminal charges against plaintiff had been dismissed in the interest of justice, noting that such a dismissal did not establish plaintiff's innocence of the charges. In addition, the Court dismissed plaintiff's malicious prosecution claim because the administrative determination provided probable cause to prosecute. Ryan did not address whether a dismissal in the interest of justice constitutes a favorable termination for the purposes of a malicious prosecution action"
Finally, we reject defendant's argument that the "inconsistent with innocence" standard is limited to speedy trial dismissals, like the one at issue in Smith-Hunter. The rule announced in Smith-Hunter is one of general application, and we see no reason to deviate from it here.
Accordingly, the order of the Appellate Division should be reversed, with costs, and plaintiff's malicious prosecution claim reinstated.
1 The complaint additionally alleged intentional infliction of emotional distress. That claim was dismissed, with plaintiff's consent, as barred by the statute of limitations.
2 In addition, the Court stated that the dismissal had failed to demonstrate that the plaintiff was innocent of the charges. In Smith-Hunter, we disclaimed the language in Ward that plaintiff was required to establish her innocence to show a favorable termination, but held that Ward itself was correctly decided since the dismissal of the criminal charges had been out of mercy and in "the interest of justice" (95 2 at 197).