Opinion
May 15, 1989
Appeal from the Supreme Court, Putnam County (Silberman, J.H.O.).
Ordered that the judgment is modified, on the law, by deleting therefrom the provision awarding the plaintiff judgment on her cause of action to recover damages for malicious prosecution in the principal sum of $2,500, and substituting therefor a provision dismissing that cause of action; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, with costs to the defendants.
The plaintiff did not meet her burden of establishing that the underlying criminal action terminated in her favor. The certificate of disposition of the criminal charges brought against her merely noted that the charge was dismissed. This leaves the question of the plaintiff's guilt or innocence unanswered (see, Jackson v County of Nassau, 123 A.D.2d 834, lv denied 69 N.Y.2d 608). The plaintiff's cause of action to recover damages for malicious prosecution should therefore have been dismissed (Ryan v New York Tel. Co., 62 N.Y.2d 494, 504-505; Hollender v Trump Vil. Coop., 58 N.Y.2d 420, 425; Broughton v State of New York, 37 N.Y.2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929; Sokol v Sofokles, 136 A.D.2d 535, 536). Moreover, the plaintiff's cause of action to recover damages for assault was properly dismissed. The plaintiff did not establish that any of the actions of the defendant Schultz, although arguably discourteous, put her in "imminent apprehension" of "harmful or offensive contact" (Restatement [Second] of Torts § 21 [1] [1965]; see, Reichle v Mayeri, 110 A.D.2d 694). Mollen, P.J., Thompson, Kunzeman and Rubin, JJ., concur.