## Facts

- Anthony Russo reported a borrowed 1971 Chevrolet Vega as stolen after discovering it missing and being unable to reach the owner, Robert Lostraglio.
- Russo contacted the owner’s insurer and the police while representing himself as Lostraglio to initiate the theft report and insurance process.
- After the vehicle was recovered, New York State Trooper Lawrence Cichocki investigated and learned Russo had impersonated Lostraglio in the reports.
- Cichocki concluded Russo’s conduct suggested an insurance-fraud scheme and obtained a warrant charging Russo with criminal impersonation.
- Russo was arrested and prosecuted; the criminal impersonation charge was later dismissed.
- Russo and family sued on multiple theories; the jury found liability only on a state-law malicious prosecution claim against Cichocki, awarding compensatory and punitive damages, and the court awarded attorney’s fees under 42 U.S.C. § 1988.

## Issues

1. Whether the dismissal of the criminal impersonation prosecution constituted a “favorable termination” sufficient to satisfy an element of malicious prosecution under New York law.
2. Whether reversal of the malicious prosecution judgment required vacatur of the § 1988 attorney’s-fee award.

## Decision

- The Second Circuit reversed the judgment against Cichocki on the malicious prosecution claim.
- The court held Russo failed, on the trial record, to prove the criminal proceeding terminated in his favor as New York law requires.
- The court vacated the compensatory and punitive damages award.
- The court vacated the § 1988 attorney’s-fee award because Russo was no longer a prevailing party.
- The court remanded for a new trial on the malicious prosecution claim.

## Legal Principles

- Under New York law, malicious prosecution requires: (1) initiation/continuation of a criminal proceeding, (2) favorable termination, (3) lack of probable cause, and (4) malice.
- “Favorable termination” is not established by every dismissal; the disposition must be indicative of innocence or, at minimum, not inconsistent with innocence.
- Where the record does not show why a prosecution was dismissed, a plaintiff may fail to meet the favorable-termination element as a matter of law.
- A § 1988 fee award depends on prevailing-party status; if the underlying judgment is vacated, the fee award cannot stand.

## Conclusion

The Second Circuit set aside a jury verdict for malicious prosecution because the plaintiff did not prove that the underlying criminal case ended in a manner showing, or consistent with, innocence under New York law, and it accordingly vacated the related damages and attorney’s-fee awards and ordered a new trial.


Russo v. State of New York, 672 F.2d 1014 (2d Cir. 1982)