Kenul v. Hollander
| Decision Date | 15 April 1976 |
| Citation | 382 N.Y.S.2d 650,86 Misc.2d 466 |
| Parties | Philip KENUL, Plaintiff, v. Albert HOLLANDER, Defendant. |
| Court | New York District Court |
Skoy, Lowell & Chase, Mineola, for plaintiff.
After considering the proof presented by the plaintiff at the inquest, the first cause of action for malicious prosecution is dismissed.
At the inquest before this court, the court, at the conclusion of the plaintiff's proof, dismissed the second cause of action for slander. It now must rule as to the sufficiency of proof offered on the first cause of action for malicious prosecution.
On this cause too, the court is constrained to dismiss for failure to establish a prima facie case.
Two of the essential elements that plaintiff must prove are (1) malice, and (2) a final determination favorable to the plaintiff in this action. See Pattern Jury Instructions, 3:50, page 799, first paragraph. From the evidence presented, the plaintiff has failed to sustain his burden as to both of these elements.
Nowhere in the testimony is there a scintilla of evidence of actual malice by the defendant in having the plaintiff arrested. Nor have facts been shown from which such malice could be inferred. See Best v. Genung's, 46 A.D.2d 550, 363 N.Y.S.2d 669; Casler v. State of New York, 33 A.D.2d 305, 307 N.Y.S.2d 695.
In addition, this court is faced with what seems to be a novel question. Is an A.C.O.D. under CPL 170.55 a final termination of the criminal charge favorable to defendant? See 36 N.Y.Jur., page 276, § 20--22.
This court thinks not. An A.C.O.D. is nothing more than a special break, given usually to first offenders, who will continue to behave themselves for a period up to six months, after such an order is granted. That to this court does not seem to qualify as a final determination of defendant's guilt or innocence. In fact if at any time in the adjourned period the defendant misbehaves again, the court must upon D.A.'s application restore the case to the calendar for trial. See Comment to CPL § 170.55, McKinney's Cons.Laws, Vol. 11A.
So, in effect, this is a mere adjournment without a decision on the merits.
Going one step further even if an A.C.O.D. would amount to a dismissal, such dismissal takes place when the adjourned date has been reached and not when the adjournment is initially granted.
In the case beforse this court the A.C.O.D. was granted September 5, 1975. It could not blossom...
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Singleton v. City of New York
...court's conclusion is correct and adequately supported. Cardi v. Supermarket Corp., 453 F.Supp. 633 (E.D.N.Y.1978); Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 650 (Dist.Ct.Nassau Cty.1976). Proceedings are "terminated in favor of the accused" only when their final disposition is such ......
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Russo v. State of N. Y.
...170.55 creates a procedure not unlike probation, designed as a "special break, given usually to first offenders." Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 650 (Dist.Ct. Nassau County 1976).... It is a period of observation, during which time the defendant's behavior may be observed ......
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Grobe v. Three Village Herald
..."); Perez v. Dumpson, 88 Misc.2d 506, 389 N.Y.S.2d 279, mod. on other grounds 58 A.D.2d 887, 396 N.Y.S.2d 883; Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 877; Cardi v. Supermarket Gen. Corp., D.C., 453 F.Supp. 633). Thus, from the viewpoint of assessing not whether the article was acc......
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Hollender v. Trump Village Co-op., Inc.
...suspense for a period of six months, during which the subject's habitual behavior pattern can be tested by time (see Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 650; People v. McDonnell, 83 Misc.2d 907, 910, 373 N.Y.S.2d 971; People v. Siragusa, 81 Misc.2d 368, 371, 366 N.Y.S.2d 336). ......