Wildwood Estates, Ltd. v. Lebert

276 A.D.2d 481, 713 N.Y.S.2d 702, 2000 N.Y. App. Div. LEXIS 9888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2000
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Collins, J.H.O.), entered June 29, 1999, as, after a nonjury trial and upon a decision of the same court dated April 28, 1999, is in favor of the plaintiff and against them dismissing their counterclaim, in effect, to recover damages for malicious prosecution in the filing of a lis pendens.

Ordered that the order is affirmed insofar as appealed from, with costs.

Upon rendering judgment in favor of the plaintiff, the Supreme Court properly dismissed the defendants’ counterclaim alleging that the plaintiff maliciously filed a lis pendens in connection with the instant action. An essential element of a cause of action to recover damages for malicious prosecution is that the action complained of terminated in favor of the party asserting that claim (see, Laval Realty v Shell Realty Co., 151 AD2d 321; Ellman v McCarty, 70 AD2d 150). Here, the defendant failed to make such a showing.

The defendants’ remaining contentions are without merit. Bracken, J. P., Florio, H. Miller and Smith, JJ., concur.