Kliebert v. McKoan
| Decision Date | 11 June 1996 |
| Citation | 228 A.D.2d 232,643 N.Y.S.2d 114 |
| Parties | John V. KLIEBERT, Plaintiff-Appellant, v. Joel "JJ." McKOAN, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
John V. Kliebert, pro se.
Joel M. Miller, New York City, for defendants-respondents.
Before SULLIVAN, J.P., and ELLERIN, RUBIN, KUPFERMAN and NARDELLI, JJ.
Judgment, Supreme Court, New York County (Elliott Wilk, J.), entered October 31, 1995, dismissing the amended complaint, and bringing up for review an order of the same court and Justice entered October 20, 1995, which, inter alia, granted defendants' motion to dismiss the amended complaint pursuant to CPLR 3211(a)1 and 7, unanimously affirmed, without costs.
Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference, nevertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not entitled to such consideration (Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220, 570 N.Y.S.2d 799, lv. denied 80 N.Y.2d 788, 587 N.Y.S.2d 284, 599 N.E.2d 688). Applying the foregoing, we find that the IAS court properly dismissed, pursuant to CPLR 3211(a)(1) and (7), the causes of action of the amended complaint seeking to recover monetary damages for malicious prosecution inasmuch as plaintiff failed to prove that the underlying criminal action, wherein the People's misdemeanor complaint was dismissed solely because of the District Attorney's failure to plead sufficient facts to support a menacing charge, was terminated in the plaintiff's favor on the merits, a necessary element of a malicious prosecution claim (see, MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359; Ward v. Silverberg, 85 N.Y.2d 993, 629 N.Y.S.2d 168, 652 N.E.2d 914). The malicious prosecution causes of action were also properly dismissed since the reasonableness of, and therefore probable cause for, defendants' decision to report plaintiff's conduct to the District Attorney was amply supported by documentary evidence from plaintiff's criminal case, including plaintiff's admissions with respect to his alleged threatening statements and behavior, the discovery of weapons in one of the plaintiff's homes, and court orders directing plaintiff to undergo psychiatric treatment and to stay away from Kidder Peabody...
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