Giglio v. Delesparo
| Decision Date | 05 December 1974 |
| Citation | 46 A.D.2d 928,361 N.Y.S.2d 721 |
| Parties | Lucille GIGLIO et al., Respondents, v. Louis DELESPARO et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Jacobowitz & Gubits, Walden (John H. Thomas, Jr., Walden, of counsel), for appellants.
Michael Nardone, Highland (Siff & Newman, P.C., New York City, of counsel), for respondents.
Before HERLIHY, P.J., and SWEENEY, KANE, MAIN and REYNOLDS, JJ.
Appeal from an order of the Supreme Court at Special Term, entered July 23, 1973 in Ulster County, which denied a motion for summary judgment dismissing the complaint.
The within action was commenced on April 21, 1971 seeking damages for malicious prosecution, libel and slander. These causes of action arise from an incident which occurred on April 17, 1970 when an information was filed charging plaintiff with petit larceny, followed by subsequent informations filed on April 27, 1970 charging her with petit larceny and conspiracy by acting in concert with a cashier of defendant's supermarket to check out items valued at over $50 for less than that amount. The complaint contains the required allegations that her criminal prosecution was maliciously instituted, without legal foundation, and recites that the cashier involved pleaded guilty to petit larceny, executed an affidavit which exonerated plaintiff, and the charges against plaintiff were thereafter dismissed by the court on January 28, 1971 when they were withdrawn by the District Attorney's office.
On this motion for summary judgment, defendants urge several grounds for relief. First, they claim that the action is barred by the one-year Statute of Limitations (CPLR 215, subd. (3)). There is no merit in this contention. A cause of action for malicious prosecution does not accrue until there has been a favorable termination of the original proceeding against the one claiming to be maliciously prosecuted, in this case on January 28, 1971 (36 N.Y.Jur., Malicious Prosecution, §§ 3, 19; Prosser, Torts (3d ed.), 857). The causes of action for libel and slander arose when the criminal informations upon which they are founded were executed and filed by defendant Delesparo on April 27, 1970. Therefore, the action commenced on April 21, 1971 is clearly timely in all respects.
Secondly, defendants argue that there are no facts alleged which support the allegation of malice in the institution of the criminal proceedings against plaintiff. While malice is an essential element of a cause of action for malicious prosecution, it need not be established by direct evidence but can be inferred if there is a showing of a wanton, reckless disregard of a plaintiff's rights inconsistent with good faith (Pecue...
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Whitmore v. City of New York
...prosecution accrued when each of the underlying criminal proceedings was terminated in plaintiff's favor (see Giglio v. Delesparo, 46 A.D.2d 928, 361 N.Y.S.2d 721), his claims with respect to the two prosecutions which terminated, respectively, in 1965 and 1966, were also time-barred in 197......
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Tunia v. State
...14, 1976. His right to sue therefore accrued on that date (see Robbins v. Robbins, 133 N.Y. 597, (30 N.E. 977); Giglio v. Delesparo, 46 A.D.2d 928 (361 N.Y.S.2d 721))." Claimant's counsel in the claim at bar urged that Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453, sup......
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Pratt v. Bernstein
...claim accrued on July 11, 1978, the date of the dismissal of the criminal charges against plaintiff. See Giglio v. Delesparo, 46 A.D.2d 928, 928, 361 N.Y.S.2d 721, 723 (3d Dep't 1974). The other claims all accrued on April 1, 1977, the date of plaintiff's arrest. Thus, since plaintiff filed......
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Wilson v. Erra
...Court properly granted the defendants' motion for summary judgment dismissing the complaint as time-barred ( see Giglio v. Delesparo, 46 A.D.2d 928, 361 N.Y.S.2d 721). The Supreme Court properly determined that an award of summary judgment to the defendants was warranted on the additional g......