Bornstein v. Levine

Appellate Division of the Supreme Court of New York

Bornstein v. Levine

7 A.D.2d 843, 181 N.Y.S.2d 653, 1959 N.Y. App. Div. LEXIS 10157

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 27, 1959

StatusPublished

Cited by4 cases

This text of 7 A.D.2d 843 (Bornstein v. Levine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bornstein v. Levine, 7 A.D.2d 843, 181 N.Y.S.2d 653, 1959 N.Y. App. Div. LEXIS 10157 (N.Y. Ct. App. 1959).

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Opinion

Order, following reargument, denying motion to dismiss the first and second causes of action in the complaint modified, on the law, to dismiss the second cause of action as insufficient, with leave to replead, and the order is otherwise affirmed, with costs to appellant. The first cause of action is sufficient because it depends upon processes, to wit, executions, issued without prior judicial approval, which were void, as eventually resolved by the courts (Levine v. Bornstein, 4 N Y 2d 241). The second cause of action, however, is insufficient. It depends upon the issuance of third-party orders by a court, such orders being in the nature of a summary proceeding to discover. Under such circumstances, the party having first obtained judicial approval, an action in the nature of trespass does not lie. (Fischer v. Langbein, 103 N. Y. 84; Solomon v. Baar, 168 Misc. 439, affd. 255 App. Div. 849.) Not to be confused is the situation which obtains with respect to process irregularly issued, in which event it is voidable, and an action for trespass ab initio may thereafter lie. (See, e.g., Day v. Bach, 87 N. Y. 56; Lyon v. Yates, 52 Barb. 237 ; 7 C. J. S., Attachment, § 503 et seq.) In the absence of allegation and proof of lack of probable cause an action in the nature of malicious prosecution does not lie. Plaintiff, however should be entitled to replead the cause of action, if he can. Concur — Breitel, J. P., M. M. Frank, Yalente, McNally and Bergan, JJ.

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Order, following reargument, denying motion to dismiss the first and second causes of action in the complaint modified, on the law, to dismiss the second cause of action as insufficient, with leave to replead, and the order is otherwise affirmed, with costs to appellant. The first cause of action is sufficient because it depends upon processes, to wit, executions, issued without prior judicial approval, which were void, as eventually resolved by the courts (Levine v. Bornstein, 4 N Y 2d 241). The second cause of action, however, is insufficient. It depends upon the issuance of third-party orders by a court, such orders being in the nature of a summary proceeding to discover. Under such circumstances, the party having first obtained judicial approval, an action in the nature of trespass does not lie. (Fischer v. Langbein, 103 N. Y. 84; Solomon v. Baar, 168 Misc. 439, affd. 255 App. Div. 849.) Not to be confused is the situation which obtains with respect to process irregularly issued, in which event it is voidable, and an action for trespass ab initio may thereafter lie. (See, e.g., Day v. Bach, 87 N. Y. 56; Lyon v. Yates, 52 Barb. 237 ; 7 C. J. S., Attachment, § 503 et seq.) In the absence of allegation and proof of lack of probable cause an action in the nature of malicious prosecution does not lie. Plaintiff, however should be entitled to replead the cause of action, if he can. Concur — Breitel, J. P., M. M. Frank, Yalente, McNally and Bergan, JJ.

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Bluebook (online)

7 A.D.2d 843, 181 N.Y.S.2d 653, 1959 N.Y. App. Div. LEXIS 10157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bornstein-v-levine-nyappdiv-1959.

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