Cardi v. Supermarket General Corp., 77 C 662.

• Decision Date: 24 July 1978
• Docket Number: No. 77 C 662.,77 C 662.
• Citation: 453 F. Supp. 633
• Parties: Frank CARDI, Plaintiff, v. SUPERMARKET GENERAL CORP., Defendant.
• Court: U.S. District Court — Eastern District of New York

453 F. Supp. 633

Frank CARDI, Plaintiff, v. SUPERMARKET GENERAL CORP., Defendant.

No. 77 C 662.

United States District Court, E. D. New York.

July 24, 1978.

John A. Bray, Deer Park, N. Y., for plaintiff.

Montfort, Healy, McGuire & Salley, Mineola, N. Y., for defendant.

DECISION

GEORGE C. PRATT, District Judge:

In this diversity action, plaintiff asserted claims of false arrest, malicious prosecution and defamation against defendant Supermarket General Corp., after an employee of the defendant had detained plaintiff for alleged shoplifting, and then filed against him a criminal complaint which was ultimately dismissed following an adjournment in contemplation of dismissal (ACOD) pursuant to New York Criminal Procedure Law § 170.55.

An action for malicious prosecution seeks tort damages for the initiation of a criminal prosecution which is without justification. Initiation of meritorious criminal prosecutions should not be discouraged, and sound policy requires that those who press charges in good faith, whether police officers or private citizens, be protected against claims of malicious prosecution.

Thus, it is well settled in New York that in order to maintain a claim for malicious prosecution the plaintiff must establish not only that defendant instituted a criminal proceeding against him without probable cause and with malice, but also that the proceeding itself was finally terminated in plaintiff's favor. See Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (1977); Broughton v. Schanbarger, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. den., 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975).

At the close of the evidence on July 10, 1978, defendant moved to dismiss the malicious prosecution claim on the ground that plaintiff had failed to establish that the criminal charge had been finally determined favorably to him.

Plaintiff urged that the petty larceny charge filed by the defendant against him was terminated in his favor by the dismissal. Defendant argued that the dismissal should not be viewed as a termination favorable to the accused since it was pursuant to NYCPL § 170.55 which provides that a criminal charge based on an information or misdemeanor complaint may be adjourned in contemplation of dismissal when both the prosecution and the defendant consent. Subdivision 2 of that section explains that an ACOD is

* * * an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice. Upon issuing such an order, the court must release the defendant on his own recognizance. Upon application of the people, made at any time not more than six months after the issuance of such order, the court must restore the case to the calendar and the action must thereupon proceed. If the case is not so restored within such six months period, the accusatory instrument is, at the expiration of such period, deemed to have been dismissed by the court in furtherance of justice.

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