Jurow v. Brickman House, Inc.

159 A.D.2d 562, 552 N.Y.S.2d 425, 1990 N.Y. App. Div. LEXIS 2750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1990
• Status: Published

Opinion

In an action to recover damages for malicious prosecution, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (Green, J.), entered October 12, 1988, as granted the defendants’ cross motion to dismiss the complaint for failure to state a cause of action, and the defendants cross-appeal from so much of the order as failed to grant their motion to vacate their default in answering.

Ordered that the cross appeal is dismissed, without costs or disbursements (see, Parochial Bus Sys. v Board of Educ., 60 NY2d 539); and it is further,

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff architect brought an action to recover damages for malicious prosecution against the defendants for instituting a third-party action against him in a personal injury action pending in Federal court. The third-party action was terminated in plaintiffs favor. As the Supreme Court noted, the plaintiff was unable to show any interference with his person or property by the defendants, such as by the use of the remedies of attachment, arrest or injunction. A necessary element of a cause of action to recover damages for malicious prosecution is interference with the person or property of the plaintiff (Sokol v Sofokles, 136 AD2d 535; Molinoff v Sassower, 99 AD2d 528). Kooper, J. P., Harwood, Balletta and Miller, JJ., concur.