Fowler v. Leahey & Johnson, P. C.

272 A.D.2d 240, 708 N.Y.S.2d 623, 2000 N.Y. App. Div. LEXIS 5869

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered on or about December 28, 1999, which denied plaintiffs motion to vacate an order, same court and Justice, dated May 4, 1999, dismissing the complaint, unanimously affirmed, with costs.

Vacatur of the motion court’s prior order was properly denied in light of plaintiffs failure to demonstrate any ground warranting that relief (see, CPLR 5015), and, in any event, the prior order was correct on the merits. Contrary to plaintiffs contentions, complaints to the Departmental Disciplinary Committee (DDC) may not be used as grounds for claims of malicious prosecution (see, Capoccia v Couch, 134 AD2d 806, appeal dismissed 71 NY2d 1022). In any case, plaintiff has made no showing that the subject DDC complaint resulted in the “highly substantial and identifiable interference with person, property, or business” necessary to sustain a malicious prosecution claim (Engel v CBS, Inc., 93 NY2d 195, 205); the judgment, properly entered against plaintiff on March 22, 1991, preceded defendant’s complaint to the DDC by almost five years and the DDC’s admonition of plaintiff was vacated pursuant to 22 NYCRR 605.8 (c) (2), when plaintiff requested a formal hearing. Concur — Sullivan, P. J., Rosenberger, Williams, Wallach and Friedman, JJ.