               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

738
CA 11-01971
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


STEPHEN NICHOLS, PLAINTIFF-APPELLANT,

                    V                                     MEMORANDUM AND ORDER

MARIE HACK, DEFENDANT-RESPONDENT.
(APPEAL NO. 2.)


NIRA T. KERMISCH, SUDBURY, MASSACHUSETTS, FOR PLAINTIFF-APPELLANT.

LITTLER MENDELSON, P.C., ROCHESTER (PAMELA S.C. REYNOLDS OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from a second amended judgment of the Supreme Court,
Monroe County (David Michael Barry, J.), entered June 24, 2011. The
second amended judgment dismissed the complaint upon a jury verdict.

     It is hereby ORDERED that the second amended judgment so appealed
from is unanimously affirmed without costs.

     Memorandum: On appeal from a second amended judgment that
dismissed his complaint for malicious prosecution after the jury
returned a verdict in favor of defendant, plaintiff contends, inter
alia, that Supreme Court erred in admitting testimony that defendant
consulted with an attorney prior to filing a harassment charge against
plaintiff and in giving a jury charge addressing reliance on the
advice of counsel in the context of a malicious prosecution action.
We reject plaintiff’s contentions. Whether a defendant in a malicious
prosecution action is required to plead reliance on the advice of
counsel “as an affirmative defense turns on the particular
circumstances of each case and is a matter within the sound discretion
of the [trial] court” (Edwards v New York City Tr. Auth., 37 AD3d 157,
158). Here, the court properly exercised its discretion in admitting
testimony regarding defendant’s consultation with an attorney.
Moreover, it is apparent on this record that plaintiff knew that
defendant had conferred with an attorney prior to filing a harassment
charge against him and, thus, there was no chance that the failure to
plead reliance on the advice of counsel took plaintiff “by surprise”
(CPLR 3018 [b]). In addition, the testimony of defendant and the
attorney with whom she consulted prior to filing a harassment charge
was sufficient to support the court’s decision to instruct the jury
regarding defendant’s assertion that she had relied on the advice of
counsel (see PJI 3:50.3). We have considered plaintiff’s remaining
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                                                         CA 11-01971

contentions and conclude that they are without merit.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
