Levine v. Gurney , 149 A.D.2d 473 ( 1989 )

In an action to recover damages for malicious prosecution and intentional infliction of emotional distress, the defendants appeal from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Coppola, J.), dated May 21, 1987, as denied their motion for summary judgment.

Ordered that the order and judgment is modified, on the law, by deleting so much of the third decretal paragraph thereof as denied that branch of the motion which was for summary judgment dismissing the complaint insofar as it is asserted against Leslie I. Levine and substituting therefor a provision granting that branch of the motion, dismissing the complaint insofar as it is asserted against him, and severing the action insofar as it is asserted against the defendant Gurney; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the appellants.

The defendant Jane Gurney filed a police report charging the plaintiff with leaving the scene of the accident. While filing the complaint, the plaintiff’s husband, the defendant Levine, was present. The plaintiff maintains that she was never involved in a motor vehicle accident with Gurney. At the time of the alleged accident, the plaintiff and the defendant Levine were in the midst of a matrimonial action in which Gurney was named. The judicial proceeding against the plaintiff was dismissed since there was no admissible evidence against her and the prosecuting authority failed to subpoena Gurney to testify. The plaintiff instituted the instant case seeking damages against the defendants for malicious prosecution and intentional infliction of emotional distress.

Despite the defendants’ contention to the contrary, the plaintiff is not barred from seeking damages for malicious prosecution because the underlying judicial proceeding was dismissed without a trial (see, Loeb v Teitelbaum, 77 AD2d 92). Additionally, given the possible threat of imprisonment as a result of the charges filed by the defendant Gurney, Gurney’s conduct may rise to the level of outrageous conduct if she were guilty of falsely accusing the plaintiff. Therefore, the cause of action against Gurney to recover damages for intentional infliction of emotional distress is sufficient to withstand a motion for summary judgment (see, Freihofer v Hearst Corp., 65 NY2d 135; Fischer v Maloney, 43 NY2d 553).

The plaintiff failed to proffer any admissible evidence regarding the defendant Leslie I. Levine’s involvement with the filing of an alleged false accident report against the plaintiff. Since the plaintiff was unable to present a triable issue of fact concerning Mr. Levine’s efforts in accusing the plaintiff of leaving the scene of an accident, summary judgment was warranted in his favor (see, Silver v Brodsky, 112 AD2d 213). Thompson, J. P., Bracken, Brown and Rubin, JJ., concur.