Order unanimously reversed on the law with costs, motion denied, and complaint reinstated. Memorandum: In this action for malicious prosecution, plaintiffs appeal from an order granting defendant's motion for summary judgment dismissing the complaint. The court held that, because the underlying criminal proceeding against plaintiff husband was dismissed in the interest of justice, plaintiffs could not demonstrate the essential element that the prosecution terminated in favor of the accused (see, Davis v. State of New York, 124 A.D.2d 420, 421, 423; Jackson v County of Nassau, 123 A.D.2d 834, lv denied 69 N.Y.2d 608; Miller v. Star, 123 A.D.2d 750, 751; Kenyon v. State of New York, 118 A.D.2d 942, 943-944; cf., Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 423-426). Although the court's decision states the correct rule for ultimate resolution of plaintiffs' claim, there is a triable question of fact whether the criminal prosecution in fact was terminated by a dismissal in the interest of justice and, if so, whether such disposition was obtained by defendant by means of an artifice in order to preclude a malicious prosecution claim.