Opinion
February 25, 1985
Appeal from the Supreme Court, Westchester County (Buell, J., Walsh, J., Donovan, J.).
Order entered July 14, 1983, modified, on the law, by granting that branch of defendant's motion which sought dismissal of plaintiff's cause of action for prima facie tort. As so modified, order affirmed, insofar as appealed from, without costs or disbursements.
Order entered October 14, 1983, affirmed, insofar as appealed from, without costs or disbursements.
Order entered November 17, 1983, affirmed, without costs or disbursements.
Upon review of the record we find that plaintiff properly stated a cause of action for malicious prosecution ( see, Molinoff v Sassower, 99 A.D.2d 528; Ellman v McCarty, 70 A.D.2d 150). We further find that, upon amendment of his complaint, plaintiff properly stated a cause of action for abuse of process ( see, Board of Educ. v Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397). However, retaliatory lawsuits to recover damages for prima facie tort predicated on the malicious institution of a prior civil action are not allowed in New York courts ( Curiano v Suozzi, 63 N.Y.2d 113, 118). Therefore, plaintiff may not plead prima facie tort as an alternative pleading to his causes of action for malicious prosecution and abuse of process and that cause of action is dismissed ( Curiano v Suozzi, supra, pp 118-119).
We have considered defendant's other contentions and find them to be lacking in merit. Lazer, J.P., Thompson, Bracken and Eiber, JJ., concur.