Opinion
2001-02271
Submitted December 5, 2001.
February 4, 2002.
In an action, inter alia, to recover damages for false arrest and malicious prosecution, the defendant Syntagma Square, Inc., appeals from so much of an order of the Supreme Court, Queens County (Flug, J.), dated January 10, 2001, as denied its motion for summary judgment dismissing the third cause of action in the complaint insofar as asserted against it.
Gennet, Kallmann, Antin Robinson, P.C., New York, N.Y. (Paul A. Tumbleson of counsel), for appellant.
Becker D'Agostino, P.C., New York, N.Y. (Michael D'Agostino of counsel), for respondent.
Before: DAVID S. RITTER, ACTING P.J., SANDRA J. FEUERSTEIN, GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, STEPHEN G. CRANE, JJ.
DECISION AND ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the third cause of action in the complaint is dismissed insofar as asserted against the appellant.
The third cause of action in the complaint asserted claims against the appellant for false arrest and malicious prosecution. However, the plaintiff failed to rebut the appellant's prima facie showing that its employee did not instigate the plaintiffs arrest, but merely supplied information to the police officers who determined that his arrest was appropriate. Accordingly, the appellant was entitled to summary judgment dismissing that portion of the third cause of action which was to recover damages for false arrest ( see, Vernes v. Phillips, 266 N.Y. 298; Martone v. Blue Ridge Farms, 272 A.D.2d 305, 305-306; O'Connell v. Luebs, 264 A.D.2d 385; Byrd v. Middleton-Bond, 253 A.D.2d 510, 511).
The appellant was also entitled to summary judgment dismissing that portion of the third cause of action which was to recover damages for malicious prosecution. The underlying criminal prosecution was terminated when the plaintiff received an adjournment in contemplation of dismissal and the action was subsequently dismissed. The plaintiff failed to establish that the criminal proceeding terminated favorably to him ( see, Cantalino v. Danner, 96 N.Y.2d 391; Smith-Hunter v. Harvey, 95 N.Y.2d 191; Hollender v. Trump Vil. Coop., 58 N.Y.2d 420). Therefore, the Supreme Court erred in denying the appellant's motion for summary judgment dismissing that portion of the third cause of action which was to recover damages for malicious prosecution.
RITTER, ACTING P.J., FEUERSTEIN, GOLDSTEIN, FRIEDMANN and CRANE, JJ., concur.