Nichols v. Xerox Corp.
| Decision Date | 30 April 2010 |
| Citation | 72 A.D.3d 1501,899 N.Y.S.2d 524 |
| Parties | Stephen NICHOLS, Plaintiff-Appellant-Respondent, v. XEROX CORPORATION, Robert Mara, Individually and in his Capacity as an Employee of Xerox Corporation, and Marie Hack, Individually and in her Capacity as an Employee of Xerox Corporation, Defendants-Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
72 A.D.3d 1501
Stephen NICHOLS, Plaintiff-Appellant-Respondent,
v.
XEROX CORPORATION, Robert Mara, Individually and in his Capacity as an Employee of Xerox Corporation, and Marie Hack, Individually and in her Capacity as an Employee of Xerox Corporation, Defendants-Respondents-Appellants.
Supreme Court, Appellate Division, Fourth Department, New York.
April 30, 2010.
Nira T. Kermisch, Rochester, for Plaintiff-Appellant-Respondent.
Littler Mendelson, P.C., Rochester (Margaret A. Clemens of Counsel), for Defendants-Respondents-Appellants.
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action against his employer, defendant Xerox Corporation (Xerox), as well as his supervisor, defendant Robert Mara and a coworker, defendant Marie Hack, seeking damages based on, inter alia, Mara's alleged misrepresentations to plaintiff that he would be promoted if he transferred to Mara's work group. On a prior appeal, we determined that Supreme Court erred in granting defendants' motion for partial summary judgment dismissing the second through sixth causes of action, and we reinstated those causes of action ( Nichols v. Xerox Corp., 34 A.D.3d 1200, 825 N.Y.S.2d 847). Plaintiff commenced a separate action against Hack for malicious prosecution, which was consolidated with this action. The parties thereafter conducted discovery, and the court granted defendants' motion for summary judgment dismissing the amended complaint with the exception of the third cause of action, for misrepresentation.
We agree with plaintiff on his appeal that the court erred in granting that part of defendants' motion for summary judgment dismissing the malicious prosecution cause of action against Hack, and we therefore modify the order accordingly. A cause of action for malicious prosecution requires 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 N.Y.2d 391, 394, 729 N.Y.S.2d 405, 754 N.E.2d 164; see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560; Watson v. City of Jamestown, 56 A.D.3d 1289, 1291, 867 N.Y.S.2d 815). Viewing the evidence in the light most favorable to plaintiff, the party opposing the motion ( see Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430), we conclude...
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