James Pacholka, Respondent, v. Zoran Kozic, Appellant, et al., Defendants

James Pacholka, Respondent, v Zoran Kozic, Appellant, et al., Defendants. [653 NYS2d 344] [MAJORITY] —Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 1, 1995, which denied defendant Kozic’s motion to amend and supplement his answer to include a counterclaim alleging malicious prosecution, and order of the same court and Justice entered on or about June 25, 1996, which, to the extent appeal-able, denied defendant Kozic’s motion to renew, unanimously affirmed, without costs. In a malicious prosecution action, "[p]laintiff * * * bears the burden of establishing that the underlying criminal action terminated favorably to him [citations omitted]. A criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused’s innocence” (MacFawn v Kresler, 88 NY2d 859, 860). Defendant failed to meet this burden where he merely alleged that the criminal complaint against him had been "dismissed”. Concur—Wallach, J. P., Rubin, Mazzarelli and Andrias, JJ.