New York State Court of Claims

New York State Court of Claims
HICKS v. THE STATE OF NEW YORK, # 2018-015-146, Claim No. 127485, Motion No. M-92235


Defendant's summary judgment motion seeking dismissal of malicious prosecution claim was denied inasmuch as there is no per se rule foreclosing such claims where the underlying criminal charges were dismissed in the interest of justice.

Case information

UID: 2018-015-146
Claimant(s): ROBERT L. HICKS
Claimant short name: HICKS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127485
Motion number(s): M-92235
Cross-motion number(s):
Claimant's attorney: Law Offices of Carolyn V. Minter
By: Carolyn V. Minter, Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 14, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212.(1)

Claimant was arrested on September 16, 2015 for obstructing governmental administration in the second degree in violation of Penal Law 195.05, and resisting arrest in violation of Penal Law 205.30 (claimant's attachments submitted in opposition). According to the affidavit of Charles J. Dechon, the Town Justice who presided over the criminal case against the claimant: "On December 11, 2015, this case was dismissed in the interest of justice, pursuant to New York State Criminal Procedure Law 170.40" (defendant's Exhibit G, Dechon affidavit, 3). Other than this information, the circumstances giving rise to the dismissal are not disclosed.

Defendant contends in support of its motion that dismissals in the interest of justice pursuant to Penal Law 170.40 are not favorable terminations for the purpose of fulfilling the criteria necessary for a malicious prosecution action. Claimant opposes the motion on the ground that any termination of a criminal proceeding is favorable so long as the accused was not convicted and no further proceedings could be brought.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). At this stage, the evidence must be viewed " 'in the light most favorable to the non-moving party,' " (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015], rearg denied 27 NY3d 957 [2016], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Only if the movant has made the required showing does the burden shift to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Here, the defendant failed to meet its burden of demonstrating its entitlement to judgment as a matter of law.

To recover for malicious prosecution, the claimant is required to demonstrate 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"

(Cantalino v Danner, 96 NY2d 391, 394 [2001]). Reaffirming its holding in Smith-Hunter v Harvey (95 NY2d 191 [2000]), the Court of Appeals in Cantalino made clear 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" (Cantalino, 96 NY2d at 395). Terminations that do not qualify as "favorable" include those which result from the criminal defendant's misconduct or are the result of compromise or mercy. Terminations such as these form no basis for a malicious prosecution action because they are "fundamentally inconsistent with innocence" (id. at 395).

The Court of Appeals in Cantalino also made clear that there is no per se rule foreclosing malicious prosecution claims where the underlying criminal charges are dismissed in the interest of justice. Rather, "the question is whether, under the circumstances of each case, the disposition was inconsistent with the innocence of the accused" (Cantalino, 96 NY2d at 396; see also Bellissimo v Mitchell, 122 AD3d 560 [2d Dept 2014]; Guntlow v Barbera, 76 AD3d 760 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010]; Minasian v Lubow, 49 AD3d 1033 [3d Dept 2008]). The Court noted that such a case-specific rule is particularly appropriate for dismissals in the interest of justice because trial courts are required to state the reasons for such dismissals on the record. Indeed, Criminal Procedure Law 170.40 (1) requires the examination and consideration of various specified factors to the extent they may apply, and 170.40 (2) requires that upon issuance of a dismissal in the interest of justice, " the court must set forth its reasons therefor upon the record" (id.).

Here, the defendant demonstrated no more than the fact that the dismissal was in the interest of justice. The reasons underlying the dismissal remain completely unknown. Consequently, defendant failed to meet its burden of demonstrating its entitlement to summary judgment as a matter of law and the burden never shifted to the claimant to raise a triable issue of fact.

Accordingly, the defendant's motion is denied.

August 14, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, dated May 4, 2018;
  2. Affirmation in Support, dated May 4, 2018, with Exhibits A - G;
  3. Affirmation in opposition, dated May 31, 2018, with Exhibits A - F.

1. Two claims are pending regarding this matter. Under claim number 127485, the instant malicious prosecution cause of action remains pending, and under claim number 129244 a cause of action under the NYS Constitution remains pending for an alleged violation of the search and seizure clause (NY Const art I, 12). Trial is currently scheduled for September 13, 2018.