Montesano v. Iannuzzo

In an action to recover damages for malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated May 24, 2004, as granted the defendant’s motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. Ordered that the order is affirmed insofar as appealed from, with costs. The allegations set out in the complaint, even when read in the light most favorable to the plaintiff, did not allege that the defendant either commenced or continued a criminal proceeding against the plaintiff. Since that is a necessary element to prove a cause of action alleging malicious prosecution, the complaint was properly dismissed (see Wasilewicz v Village of Monroe Police Dept., 3 AD3d 561 [2004], and the cases cited therein; Goddard v Daly, 295 AD2d 314 [2002]; see also Leon v Martinez, 84 NY2d 83, 87 [1994]; Aversa v Safran, 303 AD2d 700 [2003]; Keeley v Tracy, 301 AD2d 501 [2003]). Prudenti, P.J., Florio, Cozier and Lifson, JJ., concur.