The opinion
—In an action, inter alia, to recover damages for malicious prosecution, the defendant Carmen J. Bianco appeals from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 24, 2001, as denied his motion for summary judgment dismissing the cause of action to recover damages for malicious prosecution insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court was not obligated by the doctrine of the law of the case to follow a determination of the United States Court of Appeals for the Second Circuit that the plaintiff failed to establish the elements of a federal constitutional claim pursuant to 42 USC § 1983 against the defendant Carmen J. Bianco (see Rohman v New York City Tr. Auth., 215 F3d 208 ; Freer v Mayer, 223 AD2d 667 ).
The defendant Carmen J. Bianco failed to establish his entitlement to summary judgment as there are material issues of fact regarding his initiation of a criminal prosecution against the plaintiff (see Dudick v Gulyas, 277 AD2d 686, 687 ; Dempsey v Masto, 83 AD2d 725 , affd 56 NY2d 665 ), and the application of qualified immunity to the facts of this case (see Quigley v City of Auburn, 267 AD2d 978, 979 ; cf. Arteaga v State of New York, 72 NY2d 212, 216 ; Tango v Tulevech, 61 NY2d 34, 40 ; Rottkamp v Young, 21 AD2d 373, 375 , affd 15 NY2d 831 ). Accordingly, the Supreme Court properly denied the motion of the defendant Carmen J. Bianco for summary judgment. O’Brien, J.P., Friedmann, H. Miller and Crane, JJ., concur.