I dissent and vote to reinstate the jury verdict in the malicious prosecution action. For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence requires a very harsh and drastic assessment. On appeal we must review the proof in the light most favorable to the plaintiff (see Colegrove v City of Corning, 54 AD2d 1093). In its decision setting aside the verdict the court acknowledged that it "can conceive of there being probable cause for an arrest and there being a lack of probable cause for malicious prosecution, for a prosecution which could be determined afterward if there were incidents after the arrest.” The jury agreed and so determined. There was probable cause in the record to make a lawful arrest on the "peeping Tom” report when they saw plaintiff with guns. They had no right, however, to continue prosecution once they discovered that he was not the "peeping Tom” but rather was a good citizen of the community who had just completed a gun safety demonstration before a group of boy scouts at the Dewey Avenue Presbyterian Church.
In order to justify setting aside this verdict, the court had to find that the evidence was so heavily weighted against the verdict that such a finding could not have been reached upon any fair interpretation of the evidence (Ellis v Hoelzel, 57 AD2d 968; McDowell v Di Pronio, 52 AD2d 749). It was *20improper in my view for the court to substitute its judgment for that of the jury and conclude from the record herein that the verdict was inconsistent. Where as here there is a rational basis for such determination by the jury, the verdict should not be disturbed (Teller v Fairchild, 67 AD2d 1105).
Cardamone, J. P., Schnepp and Witmer, JJ., concur with Moule, J.; Callahan, J., dissents and votes to reinstate the verdict in an opinion.
Judgment affirmed, without costs.