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April 23, 1999


The opinion of the court was delivered by: Rakoff, District Judge.


Defendants pending motions to dismiss are hereby granted in part and denied in part.

For purposes of these motions, the following allegations, drawn from the plaintiff's Amended Complaint, are assumed to be true. See Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996). On or about August 15, 1994, plaintiff Coakley and the 53 West Tiana Road Corporation ("Tiana Road Corp.") leased a home in Southampton from Mahmood and Joanna Karimi ("the Karimis") for a period to run from May to September of 1995. See Amended Complaint ¶ 17. Subsequently, Coakley and Tiana Road Corp. sublet the Karimis' home to defendant Michael Jaffe, who, together with defendant Daniel I. Neveloff, then sold "summer shares" in the property in violation of a Southampton zoning ordinance. See id. ¶¶ 20-21, 27-33. In response, the Karimis brought suit in state court and obtained a judgment terminating the original lease to Coakley and Tiana Road Corp. See id. ¶¶ 35-39, 43-44. This had the further effect of terminating Jaffe's sublease and causing his eviction. See id. ¶ 43-44. Jaffe responded in turn by filing a separate suit in state court making claims of fraud, breach of contract, and the like against the plaintiffs here (Coakley and MacPherson), Tiana Road Corp., the Karimis, and other parties including one Danny Pustovit. See id. ¶¶ 45-47. Jaffe retained defendant Steven W. Heller, Esq. to represent him in the action, while the plaintiffs and Pustovit hired an attorney named Irwin Popkin, Esq. See id. at ¶¶ 47, 49.

Thereafter, according to the Amended Complaint, Jaffe, Heller and Neveloff conspired to gain an unfair advantage in Jaffe's civil suit by obtaining an unwarranted criminal indictment of the plaintiffs. See id. ¶ 59. To this end, Jaffe, Heller, and Neveloff disseminated misleading information to the Suffolk County District Attorney's Office, and eventually obtained the connivance of defendant Daniel Driscoll, an Assistant District Attorney, who was assigned to investigate the case. See, e.g., id. ¶¶ 59, 69, 97, 118-22. Driscoll not only conducted a flawed investigation, see id. ¶ 66, but purportedly impeded the plaintiffs' ability to defend themselves by contacting Pustovit, a co-defendant in Jaffe's civil case against the plaintiffs, persuading him to obtain a lawyer other than Popkin (who until that time represented both Pustovit and the plaintiffs), and threatening to prosecute Pustovit if he did not cooperate with the criminal investigation. See id. ¶ 62-63.

As a result of the conspirators' efforts, plaintiffs were indicted in August 1996 on charges of fraud and grand larceny. See id. ¶ 67. Following their voluntary surrender, see id. ¶ 68, they were released on their own recognizance, subject to the requirement of thereafter appearing in court, which they did on several occasions. See id. ¶ 71.

The conspiracy purportedly achieved its further object of advancing Jaffe's civil suit when Jaffe won partial summary judgment by emphasizing to the judge that plaintiffs had been indicted, thereby creating the misimpression that "there was some criminal wrongdoing afoot." Id. ¶¶ 81-82. Additionally, plaintiff MacPherson allegedly suffered further harm when certain gun permits were revoked as a result of his arrest and prosecution. See id. ¶ 73.

On April 7, 1998 (a year after the criminal charges were dismissed), the plaintiffs filed this suit. On defendants' motion, plaintiffs' original Complaint was dismissed without prejudice on July 23, 1998. On August 12, 1998, plaintiffs filed an Amended Complaint alleging federal claims under 42 U.S.C. § 1983, 1985(2), 1985(3), and 1986, and pendent state law claims for false arrest, malicious prosecution, abuse of process, breach of contract, violations of the New York State Constitution, and negligence. Defendants duly moved to dismiss.

Upon review of the parties' extensive written submissions and oral arguments, the Court, for the following reasons, dismisses all of the plaintiffs' claims against all defendants*fn1 except: (1) plaintiffs' federal claim against defendants Jaffe, Heller and Neveloff for false arrest under 42 U.S.C. § 1983; (2) plaintiff's state law claim against Jaffe, Heller and Neveloff for abuse of process; and (3) plaintiffs' state law claim against Jaffe for breach of contract.*fn2

Taking the claims in the order they appear in the Amended Complaint (except for Counts VI and VII, which are appropriately considered together with Count I), Count I of the Amended Complaint purports to state federal claims for both false arrest and malicious prosecution under 42 U.S.C. § 1983, while Count VI purports to state a false arrest claim under New York State law and Count VII purports to state a claim for malicious prosecution under state law. With respect to the malicious prosecution claims, both of those claims, under federal and state law respectively, must be dismissed because the plaintiffs cannot prove, among other things, that the criminal proceedings against them were terminated in their favor, an essential element of such a claim. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).

Specifically, the criminal charges against the plaintiffs were dismissed in the interests of justice pursuant to New York Criminal Procedure Law § 210.40. As a general rule, such a dismissal cannot constitute a favorable termination, see Hygh v. Jacobs, 961 F.2d 359, 368 (2d Cir. 1992); MacLeay v. Arden Hill Hospital, 164 A.D.2d 228, 563 N.Y.S.2d 333, 334-35 (3d Dep't 1990), cf. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 504-505, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984), unless the circumstances surrounding the dismissal are indicative of innocence, see Hankins v. Great Atlantic & Pacific Tea Co., 208 A.D.2d 111, 622 N.Y.S.2d 678, 680-81 (1st Dep't 1995). Here, the transcript of the dismissal proceedings in Suffolk County Court makes unequivocally clear that the dismissal was the result of a plea bargain and thereby forecloses the possibility that the termination was favorable.*fn3 See Murphy v. Lynn, 118 F.3d 938, 949 (2d Cir. 1997) (a dismissal is not favorable if it is "the result of a compromise to which the accused agreed"), citing Halberstadt v. New York Life Insurance Co., 194 N.Y. 1, 11, 86 N.E. 801 (N.Y. 1909).

The pertinent portion of the transcript reads as follows:

  THE COURT: It's my understanding that the indictments
    are to be dismissed against the individual[s]; is
    that correct?
  MR. McVANN [the lawyer representing both the
    plaintiffs and Tiana Road Corp.]: That's correct.

MR. ZANGRI [the prosecutor]: Yes, your Honor.

THE COURT: Are they officers of [Tiana ...

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