Hornstein v. Wolf

490 N.E.2d 857, 67 N.Y.2d 721, 499 N.Y.S.2d 938, 1986 N.Y. LEXIS 16646

• Court: New York Court of Appeals
• Decided: February 13, 1986
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Our examination of the record persuades us, contrary to plaintiff’s belated contention, that defendant Petker did move to dismiss for failure to state a cause of action.

As to the merits of the appeal, it is evident that plaintiff has failed to plead a cause of action for either malicious prosecution or abuse of process. The cause of action for malicious prosecution is defective because of the failure specifically to plead facts sufficient to overcome the presumption of probable cause for the prior temporary restraining orders which arose as a result of the fact that those temporary restraining orders were necessarily passed upon initially by the issuing court (see, Burt v Smith, 181 NY 1; see also, Phillips v City of Syracuse, 57 NY2d 996; 2 NY PJI 813).

With respect to the abuse of process claim, plaintiff has failed to allege any actual misuse of the process to obtain an end outside its proper scope (cf. Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397).

Finally, denial by the Appellate Division of a right to replead did not abuse its discretion for the record viewed as a whole indicates that plaintiff cannot plead a sound cause of action (see, ATI, Inc. v Ruder & Finn, 42 NY2d 454, 461).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.