Mastic Fuel Service, Inc. v. Van Cook

55 A.D.2d 599, 389 N.Y.S.2d 388, 1976 N.Y. App. Div. LEXIS 15305

Opinion

In Em action to recover damages predicated upon the unlawful use of execution and malicious prosecution, defendants appeal from an order of the Supreme Court, Suffolk County, dated June 8, 1976, which denied their motion to dismiss the complaint for failure to state a cause of action. Order affirmed, without costs or disbursements. Plaintiff’s complaint sufficiently established a cause of action for malicious prosecution and abuse of process. The defendEmts were given notice of the transactions to be proved and of the material elements of each cause of action (see CPLR 3013). Attorneys’ fees are recoverable as a measure of damages in tort actions where malice is an element of the tort (see 13 NY Jur, Damages, § 145). Hopkins, Acting P. J., Cohalan, Shapiro and Suozzi, JJ., concur.