| Furgang & Adwar, LLP v Fiber-Shield Indus., Inc. |
| 2008 NY Slip Op 07862 [55 AD3d 665] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Furgang & Adwar, LLP, Appellant, v Fiber-Shield Industries,Inc., et al., Respondents. |
—[*1] Goldberg Segalla, LLP, White Plains, N.Y. (Suzin L. Raso of counsel), for respondents.
In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.),dated March 5, 2007, as granted that branch of the defendants' cross motion which was for summaryjudgment dismissing the cause of action to recover damages for malicious prosecution.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleges that the defendants maliciously commenced a prior action alleging, inter alia,professional negligence and breach of contract in connection with its legal representation of thedefendants on various legal matters. The record shows that the action of which the plaintiff complainswas terminated upon an agreement discontinuing the case with prejudice and the defendants' agreementto release and discharge the plaintiff from, inter alia, any and all of the claims alleged in the action orwhich could have been alleged in the action. The settlement agreement also provided that neither partyadmitted fault or liability and that the settlement agreement was entered into to avoid the time andexpense of litigation.
In order for a plaintiff to maintain a civil action to recover damages for malicious prosecution, itmust show: "(1) the commencement of a judicial proceeding against the plaintiff, (2) at the insistence ofthe defendant, (3) without probable cause, (4) with malice, (5) which action was terminated in favor ofthe plaintiff, and (6) to the plaintiff's injury" (Felske v Bernstein, 173 AD2d 677, 678 [1991][internal quotation marks omitted]; Berman v Silver, Forrester & Schisano, 156 AD2d 624[1989]). "To show a termination in [its] [*2]favor, the plaintiff mustprove that the court passed on the merits of the charge or claim against [it] under such circumstances asto show [its] innocence or nonliability, or show that the proceedings were terminated or abandoned atthe instance of the defendant under circumstances which fairly imply the plaintiff's innocence"(Pagliarulo v Pagliarulo, 30 AD2d 840 [1968]).
The action of which the plaintiff complains was discontinued by agreement entered into by theparties to this action. Under the circumstances, there was no termination of the action favorable to theplaintiff which would give rise to a cause of action to recover damages for malicious prosecution(see Pagliarulo v Pagliarulo, 30 AD2d 840 [1968]). Therefore, there being no issues of fact,the Supreme Court properly granted that branch of the defendants' cross motion which was forsummary judgment dismissing the plaintiff's cause of action alleging malicious prosecution. Skelos, J.P.,Covello, Balkin and Dickerson, JJ., concur.