Cobban v. B. Altman & Co.

—In an action, inter alia, to recover damages for malicious prosecution, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Ingrassia, J.), dated December 9, 1992, as granted the defendants’ motion for summary judgment dismissing the malicious prosecution cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

To make out a cause of action to recover damages for malicious prosecution, it is essential that the plaintiff demonstrate that the criminal proceeding was not predicated upon probable cause (see, Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). Although the plaintiff Yolanda Cobban was acquitted of the underlying larceny charge, the criminal court expressly found, in denying the plaintiff’s motion to dismiss the criminal court complaint, that the defendant security guard had probable cause to detain her for shoplifting. Under the circumstances of this case, the malicious prosecution cause of action was properly dismissed. Bracken, J. P., Miller, Copertino and Hart, JJ., concur.