Niego v. Braun

212 A.D.2d 445, 623 N.Y.S.2d 109

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered on or about May 13, 1994, granting summary judgment to plaintiff on defendant’s counterclaim for prima facie tort, unanimously affirmed, with costs.

As alleged in the complaint and conceded by defendant in his answer and counterclaims, a contractual relationship was established between the parties and there exists a dispute over monies transferred from plaintiff to defendant in connection with that relationship. Thus, the motion court properly found that defendant’s prima facie tort counterclaim cannot stand because both the complaint and answering papers establish that plaintiff’s sole motive in bringing this action was not " 'disinterested malevolence’ ” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333). Concur—Wallach, J. P., Rubin, Ross, Asch and Mazzarelli, JJ.