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March 19, 1992


The opinion of the court was delivered by: LEONARD D. WEXLER


 WEXLER, District Judge

 Thomas Delaney, Terrence Delaney and Catherine Delaney ("plaintiffs") have brought this action, pursuant to 42 U.S.C. § 1983, against David Gerdon, individually and as a Suffolk County police officer; "John Doe," individually and as a Suffolk County police officer, and Suffolk County (collectively "defendants"), for alleged violation of plaintiffs' Fourth Amendment right to be free from unreasonable search of their property and seizure of their persons and from the use of excessive force in connection therewith, and their Fourteenth Amendment rights to substantive and procedural due process and equal protection. Pendent state claims include assault, battery, trespass, false arrest and malicious prosecution. Now before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure as to those claims that are grounded in malicious prosecution. Also before the Court is plaintiffs' cross-motion for discovery of the Suffolk County District Attorney's files bearing on the prosecution of Thomas and Terrence Delaney and that defendants' motion for summary judgment be stayed until the completion of such discovery. For the reasons stated below, defendants' motion is granted and plaintiffs' cross-motion is denied.


 Thereafter, the Delaneys were taken to the First Suffolk District Court in Hauppauge, New York, where they were arraigned. Gerdon, without probable cause, caused the accusatory instruments to be filed, thereby commencing malicious prosecutions against them. Subsequently, the Delaneys were transported to the Suffolk County Jail, in Riverhead, New York.

 At about one o'clock a.m. on April 17, 1990, a Suffolk County Police Department employee, without warrant, consent, or other justification, entered and searched the fenced yard at the home of Catherine Delaney at 775 Connetquot Avenue.

 Thereafter, on July 2, 1990, the charges of robbery against Thomas and Terrence Delaney were dismissed pursuant to New York Criminal Procedure Law § 170.40 "in the interest of justice" by Suffolk County District Court Judge John Carroll.


 Under New York law, a plaintiff alleging malicious prosecution must establish, among other things, that the underlying criminal proceeding was terminated in his favor. Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989) (citations omitted). The same is true for a plaintiff who seeks to recover for malicious prosecution under 42 U.S.C. § 1983. Id. citing Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984).

 Defendants contend that plaintiffs cannot prove a termination favorable to them because a dismissal pursuant to CPL § 170.40 is not a favorable disposition. Manno v. State, 176 A.D.2d 1222, 576 N.Y.S.2d 717 (4th Dep't 1991); MacLeay v. Arden Hill Hosp., 164 A.D.2d 228, 563 N.Y.S.2d 333 (3rd Dep't 1990), appeal denied, 568 N.Y.S.2d 913, 571 N.E.2d 83 (Ct. App. 1991); Jackson v. County of Nassau, 123 A.D.2d 834, 507 N.Y.S.2d 449 (2d Dep't 1986), appeal denied, 516 N.Y.S.2d 1023, 509 N.E.2d 358; Miller v. Star, 123 A.D.2d 750, 507 N.Y.S.2d 223 (2d Dep't 1985).

 Plaintiffs respond that this Court must evaluate the instant case "to determine whether [the] dismissal 'in the furtherance of justice' was or was not on the merits." Brown v. Town of Henrietta, 118 Misc. 2d 133, 459 N.Y.S.2d 996, 998 (Sup. Ct. 1983). In Brown, the dismissing court stated that the case was dismissed due to delays in prosecuting and was therefore a favorable termination on the merits. Consequently, a malicious prosecution claim was not dismissed.

 Plaintiffs attempt to distinguish Jackson, and Miller from the instant case by noting that in Jackson and Miller the dismissing court had stated that the dismissal was not on the merits. No such statement was made in the instant case.

 In MacLeay and Manno however, the Appellate Division for the Third and Fourth Departments did not discuss the rationale of the dismissing court. Instead, in broad language, they held that, "where, as here, the underlying criminal proceeding is dismissed in the interest of justice upon motion by the prosecution pursuant to CPL 170.40, the dismissal 'is neither an acquittal of the charges nor any determination on the merits. Rather it leaves the question of guilt or innocence unanswered.'" Manno, 576 N.Y.S.2d at 717; MaCleay, 563 N.Y.S.2d at 334-35 (both quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (Ct. App. 1984)). Moreover, in both and MacLeay, as in the instant case, it was the prosecutor who sought the dismissal pursuant to CPL § 170.40. See Hollender v. Trump ...

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