Neulist v. County of Nassau

50 A.D.2d 803, 375 N.Y.S.2d 402, 1975 N.Y. App. Div. LEXIS 11618

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1975
• Status: Published

Opinion

— In an action to recover damages for malicious prosecution, defendants appeal from so much of an order of the Supreme Court, Nassau County, dated June 19, 1975, as granted that branch of plaintiffs motion as sought dismissal of the third affirmative defense — the pendency of another action by plaintiff against defendants in a Federal court based upon the same facts and seeking the same relief. Order affirmed insofar as appealed from, without costs. One of the purposes underlying the Federal Civil Rights Act (US Code, tit 42, §§ 1981 et seq.) was "to provide a remedy in the federal courts supplementary to any remedy any State might have” (McNeese v Board of Educ., 373 US 668, 672). We believe that a common-law action for malicious prosecution brought in this State may coexist with a pending Federal civil rights action based upon the same facts (Monroe v Pape, 365 US 167, 183). Gulotta, P. J., Rabin, Hopkins, Martuscello and Cohalan, JJ., concur.