Daniel D. Molinoff v. George Sassower

In an action to recover damages for malicious prosecution, prima facie tort and abuse of process, plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Dachenhausen, J.), entered April 12, 1982, which granted defendants motion to dismiss the first three causes of action asserted in the amended complaint and (2) as limited by his brief, from so much of an order of the same court, entered June 14, 1982, as, upon reargument, adhered to the original determination, and denied that branch of plaintiffs motion which sought leave to enter a default judgment upon the fourth cause of action contained in the amended complaint, upon condition that defendant serve his answer thereto within 20 days after service upon him of a copy of said order with notice of entry. Appeal from order entered April 12, 1982, dismissed, without costs or disbursements. Said order was superseded by the order entered June 14, 1982, made upon reargument. Order entered June 14, 1982 affirmed, insofar as appealed from, without costs or disbursements. By his amended complaint, plaintiff alleges four causes of action, the first two of which sound in the tort of malicious prosecution. Therein, plaintiff alleges that defendant sued him in both State and Federal court "merely out of malice to harass plaintiff because of plaintiffs professional relationship with defendants wife", and that, as a result, plaintiff had to spend a substantial amount of time corresponding with two insurance carriers and with retained counsel to determine his coverage. Further, plaintiff asserted that for a period in excess of four years he was required to "bear the severe psychological burden of being a defendant in a law suit for which he had no insurance coverage for punitive damages". The third cause of action, denominated as one for prima facie tort, alleged that the Federal suit instituted by defendant against plaintiff "was intentionally brought * * * without cause or justification, to inflict harm on plaintiff". The final cause of action sought recovery based upon abuse of process. Special Term granted defendants motion to dismiss the first three causes of action in the amended complaint, and, upon reargument, adhered to its original determination, and denied that branch of plaintiffs motion which sought leave to enter a default judgment upon the fourth cause of action in the amended complaint, upon condition that defendant cure his default in answering. Plaintiff appeals, and we affirm. The tort of malicious prosecution is founded upon "the perversion of proper legal procedures" (Broughton v State of New York, 37 N.Y.2d 451, 457, cert den sub nom. Schanbarger v Kellogg, 423 U.S. 929). Where the underlying proceeding initiated against a particular plaintiff is civil in nature, the elements essential to the maintenance of an [99 A.D.2d 528 Page 529]