Clark v. MacKay

97 A.D.2d 394, 467 N.Y.S.2d 217, 1983 N.Y. App. Div. LEXIS 19974

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1983
• Status: Published

Opinion

In an action to recover damages for malicious prosecution, plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Vitale, J.), dated February 22, 1983, which granted defendants-respondents’ motion to dismiss the complaint against them and (2) a judgment of the same court entered thereon on March 4,1983. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment affirmed. Respondents are awarded one bill of costs. To the extent that the action was against the attorneys for David MacKay, Jr., it failed to state a cause of action. (See Drago v Buonagurio, 46 NY2d 778.) As to defendant David MacKay, Jr., a necessary element of an action for malicious prosecution of a civil proceeding is that the original proceeding caused interference with the person or property of the defendant therein. The failure to allege such interference requires dismissal of the complaint as to MacKay. (See Williams v Williams, 23 NY2d 592, 596.) Weinstein, J. P., Bracken, Rubin and Boyers, JJ., concur.