Lieberman v. Roadside 3 Hour Cleaners, Inc.

Appellate Division of the Supreme Court of New York

Lieberman v. Roadside 3 Hour Cleaners, Inc.

81 A.D.2d 635, 438 N.Y.S.2d 134, 1981 N.Y. App. Div. LEXIS 11141

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

DecidedApril 20, 1981

StatusPublished

Cited by2 cases

This text of 81 A.D.2d 635 (Lieberman v. Roadside 3 Hour Cleaners, Inc.) 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

Lieberman v. Roadside 3 Hour Cleaners, Inc., 81 A.D.2d 635, 438 N.Y.S.2d 134, 1981 N.Y. App. Div. LEXIS 11141 (N.Y. Ct. App. 1981).

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Opinion

— In an action to recover damages for defendants’ failure to return bailed property after demand, plaintiff appeals from an order of the Supreme Court, Westchester County, entered September 23, 1980, which denied her motion for summary judgment. Defendants cross-appeal from so much of the same order as failed to grant them costs on the motion. Order modified, on the law, by granting plaintiff’s motion for summary judgment to the extent of dismissing defendants’ counterclaims for malicious prosecution and libel. As so modified, order affirmed, without costs or disbursements. Since the action at bar has not terminated in the defendants’ favor, which is an essential element of their cause of action for malicious prosecution (see Ellman v McCarty, 70 AD2d 150, 155), that cause of action must be dismissed as premature. The libel claim, based upon the indorsement on the summons warning defendants that their failure to appear could subject them to “arrest and imprisonment” must also be dismissed. The warning was clearly germane to this litigation, and therefore enjoys an absolute privilege (see Moore v Manufacturer’s Nat. Bank of Troy, 123 NY 420, 425-426; Zefferer v Campbell, 3 AD2d 856). Under the circumstances presented, Special Term’s failure to grant defendants’ request for costs on the plaintiff’s motion did not constitute an abuse of discretion. Titone, J.P., Gulotta, Cohalan and O’Connor, JJ., concur.

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— In an action to recover damages for defendants’ failure to return bailed property after demand, plaintiff appeals from an order of the Supreme Court, Westchester County, entered September 23, 1980, which denied her motion for summary judgment. Defendants cross-appeal from so much of the same order as failed to grant them costs on the motion. Order modified, on the law, by granting plaintiff’s motion for summary judgment to the extent of dismissing defendants’ counterclaims for malicious prosecution and libel. As so modified, order affirmed, without costs or disbursements. Since the action at bar has not terminated in the defendants’ favor, which is an essential element of their cause of action for malicious prosecution (see Ellman v McCarty, 70 AD2d 150, 155), that cause of action must be dismissed as premature. The libel claim, based upon the indorsement on the summons warning defendants that their failure to appear could subject them to “arrest and imprisonment” must also be dismissed. The warning was clearly germane to this litigation, and therefore enjoys an absolute privilege (see Moore v Manufacturer’s Nat. Bank of Troy, 123 NY 420, 425-426; Zefferer v Campbell, 3 AD2d 856). Under the circumstances presented, Special Term’s failure to grant defendants’ request for costs on the plaintiff’s motion did not constitute an abuse of discretion. Titone, J.P., Gulotta, Cohalan and O’Connor, JJ., concur.

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Bluebook (online)

81 A.D.2d 635, 438 N.Y.S.2d 134, 1981 N.Y. App. Div. LEXIS 11141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieberman-v-roadside-3-hour-cleaners-inc-nyappdiv-1981.

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