Opinion
January 19, 1988
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the plaintiff's appeal from the order dated September 15, 1986, is dismissed, as so much of that order as is appealed from by the plaintiff was superseded by the order dated December 3, 1986, made upon reargument; and it is further,
Ordered that the order dated December 3, 1986, is affirmed insofar as reviewed; and it is further,
Ordered that the order dated September 15, 1986, is affirmed insofar as cross-appealed from; and it is further,
Ordered that the defendant Daniel Grattan is awarded one bill of costs.
The court properly granted summary judgment dismissing the complaint because the affirmation of the plaintiff's attorney, who had no personal knowledge of the facts, was insufficient to raise a triable issue of fact with respect to the plaintiff's claimed easement on Daniel Grattan's property (see, Barbieri v D'Angelo, 128 A.D.2d 661).
The court also properly dismissed Daniel Grattan's counterclaims for malicious prosecution. In this case, a claim for malicious prosecution would lie if the defendant Grattan's property was interfered with, as by injunction or some other provisional remedy (see, Ellman v McCarty, 70 A.D.2d 150, 155; Tedeschi v Smith Barney, Harris Upham Co., 548 F. Supp. 1172). Since there is no proof of such interference, these counterclaims were properly dismissed. Bracken, J.P., Kunzeman, Eiber and Harwood, JJ., concur.