Fourth Department — Malicious Prosecution: Nichols v. Hack

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Appellate Division, Fourth Department 

Malicious Prosecution

Attorney Consultation Defense — Surprise

Nichols v. Hack
CA 11-01971
Appealed from Supreme Court, Monroe County

Background: The plaintiff appealed from a judgment after a jury returned a verdict in favor of the defendant. The plaintiff alleged that the court erred by allowing testimony that the defendant consulted with an attorney prior to filing a harassment charge against the plaintiff. The plaintiff also challenged the jury charge addressing reliance on the advice of counsel in the context of a malicious prosecution action.

Ruling: The Appellate Division affirmed. The court held that there was evidence on the record that the plaintiff knew that the defendant had conferred with an attorney prior to filing a harassment complaint and that there was no chance that the failure to plead reliance on the advice of counsel took the plaintiff by surprise.

Nira T. Kermisch for the plaintiff-appellant; Pamela S.C. Reynolds of Littler Mendelson PC for the defendant-respondent