Anderson v. Pegalis
| Decision Date | 01 May 1989 |
| Citation | 540 N.Y.S.2d 843,150 A.D.2d 315 |
| Parties | Roy A. ANDERSON, et al., Appellants, v. Steven E. PEGALIS, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Redmond, Pollio & Pittoni, P.C., Mineola (M. John Pittoni, of counsel), for appellants.
Pegalis & Wachsman, Great Neck (Anna M. Andron, of counsel), for respondents.
Before BRACKEN, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for malicious prosecution and abuse of process, the plaintiffs Roy A. Anderson and Earl L. Anderson appeal (1) from an order of the Supreme Court, Nassau County (DiPaola, J.), dated December 14, 1987, which granted the defendants' motion for summary judgment dismissing the complaint, and (2) as limited by their brief, from so much of an order of the same court, dated March 8, 1988, as denied their motion for reargument of the defendants' motion for summary judgment.
ORDERED that the plaintiffs are awarded one bill of costs.
The defendants commenced an action claiming title by adverse possession to a vacant strip of the property owned by the plaintiffs Roy A. Anderson and Earl L. Anderson adjacent to the defendants' law offices. The defendants claimed continuous use for a period exceeding 10 years. At a nonjury trial, they sought to establish adverse possession through the testimony of their landscape gardener. However the gardener's testimony at the trial revealed two gaps in his care and cultivation of the strip of land in question. The gardener further testified that he had advised the defendants' counsel of those two gaps at the commencement of the adverse possession action. His testimony is not clear as to whether he specifically advised the defendants Pegalis and Wachsman of those gaps. At the conclusion of the trial, a judgment was entered in favor of the Andersons. The Andersons then commenced the instant action to recover damages for malicious prosecution and abuse of process.
The Andersons claim that the defendants' purpose in initiating the prior suit was to force them to sell the property in question to the defendants after a breakdown in negotiations as to a proposed sale. However, on the defendants' motion for summary judgment, the Supreme Court determined that the submitted papers demonstrated that two essential elements of a cause of action to recover damages for malicious prosecution, namely lack of probable cause and actual malice, were not shown (see, Martin v. City of Albany, 42 N.Y.2d 13, 17, 396 N.Y.S.2d 612, 364 N.E.2d 1304). The court reasoned that the defendants did not act hastily but consulted with and relied upon the advice of counsel and that the...
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