| Best v 2170 5th Ave. Corp. |
| 2009 NY Slip Op 01524 [60 AD3d 405] |
| March 3, 2009 |
| Appellate Division, First Department |
| Robert C. Best, Respondent, v 2170 5th AvenueCorporation, Appellant. |
—[*1]
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutJanuary 4, 2008, which to the extent appealed from as limited by the brief, denied defendant'smotion to unseal plaintiff's criminal court file, unanimously reversed, on the law, with costs, andthe motion granted.
Where an individual, who has records that would otherwise be kept sealed under CriminalProcedure Law § 160.50, affirmatively places the underlying conduct at issue by bringinga civil suit, the statutory protection afforded by section 160.50 is waived, as the privilege, whichis intended to protect the accused, may not be used as "a sword to gain an advantage in a civilaction" (Green v Montgomery, 95 NY2d 693, 701 [2001] [internal quotation marks andcitation omitted]; see Rodriguez v Ford Motor Co., 301 AD2d 372 [2003]). Here,plaintiff waived the protection afforded by the statute by placing into issue the prosecutionagainst him when he commenced this action alleging, inter alia, malicious prosecution based onthat criminal proceeding (see Kalogris v Roberts, 185 AD2d 335, 336 [1992]; Wrightv Snow, 175 AD2d 451, 452 [1991], lv dismissed 79 NY2d 822 [1991]).Concur—Mazzarelli, J.P., Gonzalez, Sweeny, McGuire and DeGrasse, JJ.