Mager v. Seril

204 A.D.2d 205, 612 N.Y.S.2d 30, 1994 N.Y. App. Div. LEXIS 5581

Opinion

—Order, Supreme Court, New York County (Carol Huff, J.), entered April 23, 1993, which granted defendants’ motion for summary judgment dismissing the complaint and for partial summary judgment on the issue of liability on the counterclaim, and directed a hearing on the issue of damages, unanimously affirmed, without costs.

The IAS Court correctly determined that the Referee’s findings, confirmed by another Justice, barred plaintiffs claims alleging failure to make repairs and harassment, and entitled defendants to judgment on their counterclaims.

The claims for either harassment, abuse of process or malicious prosecution based upon defendants’ prosecution of a New Jersey action in which they obtained a restraint against distribution of the estate of plaintiffs father, who had guaranteed her lease, were not viable in view of the affirmance by the New Jersey Appellate Division of the initial injunction grounded upon a finding of a likelihood of success on the merits.

We have considered plaintiffs other contentions, several of which were improperly raised for the first time on appeal (Murray v City of New York, 195 AD2d 379, 381), and find them to be without merit. Concur—Murphy, P. J., Kupferman, Ross and Tom, JJ.