| 347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC |
| 2011 NY Slip Op 02864 [83 AD3d 689] |
| April 5, 2011 |
| Appellate Division, Second Department |
| 347 Central Park Associates, LLC, Respondent, v Pine TopAssociates, LLC, et al., Appellants. |
—[*1] Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito and John H. Somoza ofcounsel), for appellant Stephen Brotmann. Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), forrespondent.
In an action to recover damages for malicious prosecution, the defendants Pine TopAssociates, LLC, Bob Lord, and Mauro Valentine appeal, and the defendant Stephen Brotmannseparately appeals from an order of the Supreme Court, Westchester County (DiBella, J.), enteredDecember 30, 2009, which denied their separate motions to dismiss the complaint as time-barredpursuant to CPLR 3211 (a) (5) and for failure to state a cause of action pursuant to CPLR 3211(a) (7) insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs payable by the appellants appearingseparately and filing separate briefs.
"In order for a plaintiff to maintain a civil action to recover damages for maliciousprosecution, it must show: '(1) the commencement of a judicial proceeding against the plaintiff,(2) at the insistence of the defendant, (3) without probable cause, (4) with malice, (5) whichaction was terminated in favor of the plaintiff, and (6) to the plaintiff's injury' " (Furgang & Adwar, LLP v Fiber-ShieldIndus., Inc., 55 AD3d 665, 665 [2008], quoting Felske v Bernstein, 173 AD2d677, 678 [1991]; see Berman v Silver, Forrester & Schisano, 156 AD2d 624 [1989]). Theprior judicial proceeding is "to the plaintiff's injury" if it resulted in interference with theplaintiff's person or property (see PurdueFrederick Co. v Steadfast Ins. Co., 40 AD3d 285, 286 [2007]; Oceanside Enters. vCapobianco, 146 AD2d 685 [1989]). A motion to dismiss a complaint for failure to state acause of action pursuant to CPLR 3211 (a) (7) "will fail if, taking all facts alleged as true andaccording them every possible inference favorable to the plaintiff, 'the complaint states in somerecognizable form any cause of action known to our law' " (Sheroff v Dreyfus Corp., 50 AD3d 877, 877-878 [2008], quotingShaya B. Pac., LLC v Wilson, Elser,Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]). Under the circumstancesalleged herein, the Supreme Court properly concluded that the complaint adequately stated acause of action alleging [*2]malicious prosecution. Moreover,contrary to the defendants' contention, the complaint does not sound only in a cause of actionalleging slander of title (see Fink vShawangunk Conservancy, Inc., 15 AD3d 754, 756 [2005]; Alexander v Scott,286 AD2d 692, 693 [2001]; Sopher v Martin, 243 AD2d 459, 462 [1997]; Brown vBethlehem Terrace Assoc., 136 AD2d 222, 224 [1988]; see also Casa de Meadows Inc. [Cayman Is.] v Zaman, 76 AD3d917, 922 [2010]; Pelc v Berg,68 AD3d 1672, 1674 [2009]; 35-45 May Assoc. v Mayloc Assoc., 162 AD2d 389,389-390 [1990]; cf. Plot Realty LLC vDeSilva, 45 AD3d 312 [2007]).
The Supreme Court also properly denied those branches of the defendants' separate motionswhich sought to dismiss the complaint as time-barred (see CPLR 3211 [a] [5]). Amalicious prosecution cause of action is governed by a one-year statute of limitations (seeCPLR 215 [3]). Here, the cause of action accrued in May 2009 when the underlying civilaction was dismissed in its entirety, and thus "terminated in favor of the plaintiff" (Felske vBernstein, 173 AD2d at 678; see Berman v Silver, Forrester & Schisano, 156 AD2dat 625; see also Purdue Frederick Co. v Steadfast Ins. Co., 40 AD3d at 286;Wildwood Estates v Lebert, 276 AD2d 481 [2000]; Oceanside Enters. vCapobianco, 146 AD2d 685 [1989]). Accordingly, the commencement of this action in July2009 was timely.
The defendants' remaining contentions are improperly raised for the first time on appeal and,in any event, are without merit. Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.