Scaccia v. Mack Trucks, Inc.

83 A.D.2d 903, 442 N.Y.S.2d 148, 1981 N.Y. App. Div. LEXIS 15331

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 31, 1981
• Status: Published

Opinions

— In an action to recover damages for false imprisonment, malicious prosecution and negligence, defendant appeals from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated May 5,1980, as denied that branch of his motion which was to dismiss the second cause of action of plaintiffs’ complaint for malicious prosecution and granted plaintiffs leave to replead their third cause of action. Order modified, on the law, by deleting the second decretal paragraph thereof. As so modified, order affirmed insofar as appealed from, with one bill of $50 costs and disbursements payable to the defendant. As per CPLR 3211 (subd [e]), “leave to plead again shall not be granted unless the court is satisfied that the opposing party has good ground to support his cause of action or defense”. The evidence should be in the form of affidavits of those with direct knowledge of the facts (see Rovello v Orofino Realty Co., 40 NY2d 633; Young v Nelson, 23 AD2d 531). Insofar as the plaintiffs’ application for leave to replead was submitted in the context of an attorney’s affirmation, the requisite proof is lacking. Accordingly, leave to replead should have been denied. Furthermore, we note that plaintiffs have set forth a complaint which alleges the requisite elements of malicious prosecution (see Broughton v State of New York, 37 NY2d 451) and therefore the branch of the motion which was to dismiss that cause of action was properly denied (see Rovello v Orofino Realty Co., supra). Whether, on the facts, plaintiffs can ultimately prove their claim is a matter more properly left for trial or motion for summary judgment. Any decision on the merits of this claim would be premature at this juncture. Gulotta, J. P., O’Connor and Bracken, JJ., concur.