Potash v. Sacks

282 A.D. 962, 125 N.Y.S.2d 787, 1953 N.Y. App. Div. LEXIS 5575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1953
• Status: Published

Opinion

In an action characterized by plaintiff as one to recover damages for malicious prosecution, or “ on the case, for malicious conduct resulting in damages ”, plaintiff appeals from an order dismissing the complaint, with leave to serve an amended complaint. Order affirmed, with $10 costs and disbursements, with leave to appellant, if he be so advised, to serve an amended complaint within ten days after the entry of the order hereon. The complaint does not state a cause of action for malicious prosecution, since no judicial proceeding is alleged to have been instituted. (Barry v. Third Ave. B. B. Co., 51 App. Div. 385; Al Basehid v. News Syndicate Co., 265 N. Y. 1; Halberstadt V. New York Life Ins. Go., 194 N. Y. 1.) It does not set forth a cause of action for libel or slander since, inter alia, the words uttered by defendants are not alleged. (Crowell v. Schneider, 165 App. Div. 690; Durante v. Contanti, 130 Mise. 632.) Neither does it state a cause of action for “ malicious conduct resulting in damages ”, since appellant has not sufficiently alleged that he suffered any special damages. (Frawley Chem. Corp. v. Larson Co., 274 App. Div. 643; Bayer v. McCloskey, 305 N. Y. 75, 80.) Moreover, the complaint does not contain a plain and concise statement of the facts on which appellant relies as constituting a cause of action. (Civ. Prac. Act, § 241; see Keefe v. Lee, 197 N. Y. 68, 71.) Nolan, P. J., Adel, Wenzel. Schmidt and Beldock, JJ., concur.