Laval Realty, Inc. v. Shell Realty Co.

Appellate Division of the Supreme Court of New York

Laval Realty, Inc. v. Shell Realty Co.

151 A.D.2d 321, 542 N.Y.S.2d 585, 1989 N.Y. App. Div. LEXIS 7885

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

DecidedJune 15, 1989

StatusPublished

Cited by2 cases

This text of 151 A.D.2d 321 (Laval Realty, Inc. v. Shell Realty Co.) 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

Laval Realty, Inc. v. Shell Realty Co., 151 A.D.2d 321, 542 N.Y.S.2d 585, 1989 N.Y. App. Div. LEXIS 7885 (N.Y. Ct. App. 1989).

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Opinion

Order, Supreme Court, New York County (An[322]*322drew Tyler, J.), entered December 13, 1988, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint and plaintiffs cross motion to dismiss the counterclaim, unanimously modified, on the law, to grant the cross motion and, except as thus modified, affirmed without costs or disbursements.

In this action for specific performance of a real estate contract, we agree with the motion court that a sufficient showing was made, in admissible form, to present an issue of fact as to whether plaintiff had the financial capacity on the date set for closing to consummate the transaction. Thus, summary judgment was properly denied. The counterclaim for malicious prosecution based on plaintiffs filing of a lis pen-dens should, however, have been dismissed for failure to allege an essential element, i.e., that the underlying action complained of " 'has terminated in favor of the plaintiff in the malicious prosecution action’ ”. (Molinoff v Sassower, 99 AD2d 528, 529.) Defendant has yet to prevail in the underlying action. In interposing its malicious prosecution claim as a counterclaim before a favorable resolution of the action for specific performance, defendant has proceeded prematurely. Accordingly, we modify to dismiss the counterclaim. Concur— Sullivan, J. P., Ross, Asch, Rosenberger and Ellerin, JJ.

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Order, Supreme Court, New York County (An[322]*322drew Tyler, J.), entered December 13, 1988, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint and plaintiffs cross motion to dismiss the counterclaim, unanimously modified, on the law, to grant the cross motion and, except as thus modified, affirmed without costs or disbursements.

In this action for specific performance of a real estate contract, we agree with the motion court that a sufficient showing was made, in admissible form, to present an issue of fact as to whether plaintiff had the financial capacity on the date set for closing to consummate the transaction. Thus, summary judgment was properly denied. The counterclaim for malicious prosecution based on plaintiffs filing of a lis pen-dens should, however, have been dismissed for failure to allege an essential element, i.e., that the underlying action complained of " 'has terminated in favor of the plaintiff in the malicious prosecution action’ ”. (Molinoff v Sassower, 99 AD2d 528, 529.) Defendant has yet to prevail in the underlying action. In interposing its malicious prosecution claim as a counterclaim before a favorable resolution of the action for specific performance, defendant has proceeded prematurely. Accordingly, we modify to dismiss the counterclaim. Concur— Sullivan, J. P., Ross, Asch, Rosenberger and Ellerin, JJ.

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Bluebook (online)

151 A.D.2d 321, 542 N.Y.S.2d 585, 1989 N.Y. App. Div. LEXIS 7885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laval-realty-inc-v-shell-realty-co-nyappdiv-1989.

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