Opinion
May 21, 1990
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Upon our review of the complaint and the affidavits submitted in support of the motion and cross motion (see, M L Provisions v. Dominick's Italian Delights, 141 A.D.2d 616), we find that the plaintiff did not make out a cause of action for malicious prosecution. The elements of this cause of action require the plaintiff to establish that a proceeding was initiated by the defendants, with malice and without probable cause, and that it was terminated in the plaintiff's favor (see, Colon v. City of New York, 60 N.Y.2d 78, 82; Martin v. City of Albany, 42 N.Y.2d 13, 16). In the case at bar, however, the plaintiff's unsubstantiated and conclusory allegations of malice were insufficient to sustain his cause of action (Hornstein v. Wolf, 109 A.D.2d 129, affd 67 N.Y.2d 721).
Moreover, the record reveals that the underlying criminal action was initiated by the defendant Mrs. Mondello with probable cause inasmuch as she had been harassed by her estranged husband who damaged an automobile owned by the codefendant while it was in her possession. The resulting charge of criminal mischief in the fourth degree was thus not unwarranted, unlike the case in Levine v. Gurney ( 149 A.D.2d 473) on which the plaintiff mistakenly relies. Furthermore, the criminal prosecution was terminated only when Mrs. Mondello voluntarily withdrew the charge in light of the parties' impending divorce trial. Accordingly, the prosecution was not terminated in the plaintiff's favor as the voluntary withdrawal of a charge is not a final disposition on the merits indicative of innocence (see, Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 425-426; Miller v Star, 123 A.D.2d 750, 751-752). Thus, the motion to dismiss the complaint was correctly granted.
Finally, in light of the foregoing there is no merit to the plaintiff's argument, advanced for the first time on appeal, that he should be granted leave to serve an amended complaint (CPLR 3211 [e]; see, Bardere v. Zafir, 63 N.Y.2d 850). Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.